Opinion
No. COA11–752.
2012-04-3
STATE of North Carolina v. Mario Ivan MARTINEZ.
Attorney General Roy Cooper, by Assistant Attorney General Torrey D. Dixon, for the State. Haral E. Carlin, for defendant-appellant.
Appeal by defendant from judgment entered 6 May 2010 by Judge D. Jack Hooks Jr. in Robeson County Superior Court. Heard in the Court of Appeals 30 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Torrey D. Dixon, for the State. Haral E. Carlin, for defendant-appellant.
CALABRIA, Judge.
Mario Ivan Martinez (“defendant”) appeals from a judgment entered upon a jury verdict finding him guilty of first-degree murder. We find no error.
I. Background
In June 2006, defendant lived with his girlfriend, his girlfriend's brother, Spencer Locklear (“Locklear”), and Locklear's girlfriend. Defendant was friends with Brad Jones and Chris Emanuel (“Emanuel”). They sold marijuana together. One night while Locklear lived with defendant, someone stole marijuana from their apartment. At that time, defendant stated that “if he found out who took his weed, he [was] going to shoot them.”
On 26 June 2006, Locklear and defendant visited Locklear's mom's (“Laura”) house. Laura said that defendant showed her a gun and told her that he was sick of people stealing from him and “tonight [Emanuel] was going in the hole.” At that point, defendant made a call to Emanuel and arranged to pick him up by Emanuel's home. When Laura tried to keep Locklear from going with defendant, both men told Laura that defendant was just “playing with” her. The men left together.
After they left Laura's house, defendant and Locklear picked Emanuel up near Emanuel's house. Once they picked up Emanuel, defendant drove down a dirt road. At the end of the road, both defendant and Emanuel got out of the car and went around to the trunk while Locklear remained in the car. Locklear saw defendant walk to the front of the car with a black pistol in his hand while Emanuel remained near the trunk. Defendant asked Emanuel why he took his weed. After Emanuel denied taking the marijuana, defendant shot five times. Emanuel fell, tried to get up and run and fell again. Locklear heard him say “I'm gone, I'm gone” and Locklear did not see him move again.
When Locklear and defendant drove away, Emanuel was lying face down on the ground and was not moving. As they drove, defendant threw the gun out the window into a river. Emanuel's body was discovered the next day. Ten shell casings were found at the scene. The cause of death was two gunshot wounds to the back.
Defendant was apprehended sometime later in Texas and transported back to North Carolina on 11 July 2006. Defendant was arrested and indicted for first-degree murder. The jury returned a verdict finding defendant guilty of first-degree murder. The trial court sentenced him to life in prison without parole, in the North Carolina Department of Correction. Defendant appeals.
II. Standard of Review
Initially we note that defendant failed to object during trial to any of the issues raised on appeal. Therefore, we will examine each issue for plain error.
When an issue is not preserved by objection in a criminal case, it “nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007). “[P]lain error review is available ... for challenges to jury instructions and evidentiary issues....” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (internal quotations and citations omitted).
Plain error arises when the error is “so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (internal quotations and citations omitted). Under the plain error standard of review, a defendant is entitled to a reversal “only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
III. Relevant Evidence
Defendant alleges the trial court erred by allowing admission of evidence that was not relevant to the crime charged. Specifically, he alleges the trial court should have excluded evidence of shell casings at the crime scene and testimony about defendant's ownership of guns that were not the weapons used at the time of the murder. We agree, but find the error did not rise to the level of plain error.
Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen.Stat. § 8C–1, Rule 401 (2009). Relevant evidence is admissible, but all irrelevant evidence is inadmissible. N.C. Gen.Stat. § 8C–1, Rule 402 (2009). “If the proffered evidence has no tendency to prove a fact in issue in the case, the evidence is irrelevant and must be excluded.” State v. Coen, 78 N.C.App. 778, 780–81, 338 S.E.2d 784, 786 (1986) (citation omitted). “Erroneous admission of evidence may be harmless where there is an abundance of other competent evidence to support the state's primary contentions, or where there is overwhelming evidence of defendant's guilt.” State v. Weldon, 314 N.C. 401, 411, 333 S.E.2d 701, 707 (1985) (internal quotations and citations omitted). A. Empty Shell Casings
In the instant case, Bruce Meares (“Meares”), Crime Scene Technician for Robeson County Sheriff's office (“RCS”), testified that he found ten empty shell casings around Emanuel's body. These casings were examined by Stephanie Barnhouse, (“Barnhouse”) a lab technician with RCS. Barnhouse identified five of the casings as being “caliber nine millimeter Lugar cartridges” that were all fired by the same firearm. She indicated that this type of casing is typically associated with handguns. The other five casings were not “caliber nine millimeter Lugar cartridges,” but were of different types and were discolored and damaged by weather exposure. Medical Examiner, Dr. Maryanne Gaffney–Kraft (“Dr.Gaffney–Kraft”) determined Emanuel's death was caused by two gunshot wounds to the back. She also testified that the damage and wounds to the organs were much more consistent with a handgun. In addition, Locklear testified that defendant fired a gun five times when he shot Emanuel.
The evidence presented at trial indicated that only five shots were fired at Emanuel and all of the shots were from the same handgun. Defendant is correct that admission of the five additional shell casings was unnecessary as these casings were not consistent with Emanuel's injuries, were obviously older because of the damage and were not from the same weapon that was used to murder Emanuel. The admission of the casings did not tend to show that defendant shot Emanuel, and therefore were irrelevant. However, the admission of this evidence does not amount to plain error because defendant has failed to show how he was prejudiced by the admission of the additional casings. Although defendant claims this evidence portrayed him as a dangerous, violent man, these casings were never linked to defendant. In addition, no evidence was presented to suggest that defendant previously fired other guns in the same location. The introduction of this evidence was not plain error. B. Other Guns
“Evidence showing other crimes, wrongs, or acts and a propensity to commit them is admissible if it is relevant for some purpose other than to show that defendant has the propensity for the type of conduct for which he is being tried.” State v. Parker, 354 N.C. 268, 286, 553 S.E.2d 885, 898 (2001). “It is a well settled principle that weapons may be admitted into evidence when there is evidence tending to show that they have been used in the commission of a crime.” State v. Patterson, 59 N.C.App. 650, 652, 297 S.E.2d 628, 630 (1982).
In Patterson, the victim was robbed with a pistol but at trial the State also introduced evidence of a shotgun found in defendant's car. Id. at 653, 297 S.E.2d at 630. The Court held that the shotgun was irrelevant and erroneously admitted. The Court also concluded that there was “a reasonable possibility that the erroneous admission of the shotgun evidence contributed to the defendant's conviction, particularly in light of the conflicting evidence regarding the identity of the defendant as the man who robbed” the victim. Id. at 653–54, 297 S.E.2d at 630. In State v. Samuel, this Court found that introduction of irrelevant gun evidence was plain error because there was not, “by any fair characterization, overwhelming evidence that defendant was the robber” and “the prosecutor's reliance upon the revolver to link [the] [d]efendant to the crimes charged, had a ‘probable impact on the jury's finding that the defendant was guilty.’ “ 203 N.C.App. 610, 622–24, 693 S.E.2d 662, 670–71 (2010) (citation omitted).
In the instant case, evidence was presented that defendant owned or possessed guns other than the purported murder weapon. Locklear testified the defendant possessed two guns, a .357 handgun and an SKS assault rifle. Dustin Emanuel (“Dustin”) testified that he saw both a machine gun and a large handgun in the trunk of defendant's car. However, there was no evidence that any of these guns were used to commit the crime. Locklear indicated that the gun used to shoot Emanuel was a pistol, not a revolver. Additionally, Barnhouse and Dr. Gaffney–Kraft both testified that the gun used was likely a medium-sized handgun.
While we agree that the admission of the irrelevant evidence regarding the guns was unnecessary, in contrast to Patterson and State v. Samuel, there was overwhelming evidence that defendant killed Emanuel. Defendant told Locklear he was going to kill the man who stole his marijuana, he told Laura that he was going to put Emanuel, specifically, “in the hole” for stealing his marijuana, Emanuel's friends and brother observed him leaving with defendant, Dustin said that Emanuel told him he was leaving with defendant and Locklear witnessed defendant shoot Emanuel. The evidence against defendant was overwhelming and while the introduction of the other guns was error, as it was clear they were not involved in Emanuel's death, the error does not rise to the level of plain error as it is unlikely that it affected the jury's decision.
IV. Photographic Evidence
Defendant also contends the trial court erred by admitting photographs of the victim's body into evidence. We disagree.
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen.Stat. § 8C–1, Rule 403 (2011). “Photographs are usually competent to be used by a witness to explain or illustrate anything that it is competent for him to describe in words.” State v. Cutshall, 278 N.C. 334, 347, 180 S.E.2d 745, 753 (1971). Even if a photograph is “gory, grewsome [sic], revolting or horrible,” this “does not prevent its use by a witness to illustrate his testimony.” Id. However, “[w]hen a photograph add[s] nothing to the State's case, then its probative value is nil, and nothing remains but its tendency to prejudice.” State v. Hennis, 323 N.C. 279, 286, 372 S.E.2d 523, 527 (1988) (internal quotations and citations omitted).
In the instant case, Meares, the State's witness, introduced eleven photographs of the deceased as direct evidence and defendant did not object. Meares's photographs illustrated his testimony regarding different angles of the victim's wounds from different views. Defendant claims the photographs were repetitious and two photographs could have accurately depicted the wounds. Some of the photographs were close ups of Emanuel that were taken from different angles. Others were either overall shots of just the body or shots with the body and the relevant evidence surrounding the body. The photographs were taken while Emanuel was lying face down, as he was found, on his side and once he was rolled over. There were only eleven photographs admitted of Emanuel's body. While some of the photographs may have been similar, the admission of all the photographs was not overly repetitious.
Defendant relies upon Hennis to support his contention that the photographs should not have been admitted. The Supreme Court in Hennis held that “photographs that have inflammatory potential [are] excessive or repetitious, [when] the probative value of such evidence is eclipsed by its tendency to prejudice the jury.” 323 N .C. at 284, 372 S.E.2d at 526. The thirty-five photographs of the victims in Hennis were shown on a large projection screen that was positioned over the defendant's head. Id. at 282, 372 S.E.2d at 528. Subsequently, thirty-five eightby-ten inch glossy photographs, most in color, were distributed to jurors one at a time for an hour. Id.
In the instant case, the photographs were not published on a large screen to the jury and there is nothing to suggest they were excessive. Furthermore, although there were eleven photographs, Meares described all of them as depicting different angles and perspectives of Emanuel's body, therefore, they were not repetitious. Defendant has not shown that the photographs were published in a manner to increase their prejudicial effect. Unlike Hennis, the trial court did not abuse its discretion by the admission of the photographs. Id. at 285–87, 372 S.E.2d at 527–28;see State v. Dollar, 292 N.C. 344, 355, 233 S.E.2d 521, 527 (1977) (“What constitutes an excessive number of photographs must be left largely to the discretion of the trial court in the light of their respective illustrative values.”); see also State v. Sloan, 180 N.C.App. 527, 534, 638 S.E.2d 36, 41 (2006) (where repetitious use of photos for illustrative purposes were not aimed solely at arousing the passion of the jury, there was no abuse of discretion). This assignment of error is overruled.
V. Hearsay
Defendant contends that the trial court erred when it allowed inadmissible hearsay into evidence. Specifically, defendant argues the trial court should have excluded Dustin's testimony that Emanuel told him he was going with defendant and would be back. We disagree.
Hearsay has been defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen.Stat. § 8C–1, Rule 801 (2011). While hearsay is generally inadmissible, a statement of the declarant's then-existing state of mind is admissible under an exception to the hearsay rule. State v. Valentine, 357 N.C. 512, 515, 591 S.E.2d 846, 851 (2003). Even if the declarant is available, “[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent [or] plan ... )” is not excluded by the hearsay rule. N.C. Gen.Stat. § 8C–1, Rule 803(3) (2011). “Rule 803(3) of the North Carolina Rules of Evidence permits admission of a witness's testimony as to statements of intent by another person to prove subsequent conduct by that other person.” State v. Coffey, 326 N.C. 268, 285, 389 S.E.2d 48, 58 (1990).
In the instant case, Dustin testified that his brother, Emanuel, told him that he was “going with [defendant] and he [would] be back in a little while.” The statement clearly shows that Emanuel intended to go somewhere with defendant and intended to return. Dustin's testimony was admissible to show that Emanuel intended to go with defendant and he subsequently went with defendant. The statement was admissible hearsay.
Defendant also contends the statement should have been excluded because of his constitutional right to confrontation under the standard set forth in Crawford v. Washington. The Confrontation Clause of the Sixth Amendment prohibits admission of testimonial statements of a witness who did not appear at trial unless: (1) the party is unavailable to testify and (2) the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 158 L.Ed.2d 177, 194 (2004).
As an initial matter, we must determine whether the statement was testimonial. While Crawford did not define “testimonial,” courts have held that statements are testimonial if they were made as part of prior testimony in a hearing or former trial or those made during police interrogations. Id; see State v. Clark, 165 N.C.App. 279, 283, 598 S.E.2d 213, 217 (2004); see also, Michigan v. Bryant, 179 L.Ed.2d 93 (2011). When someone “makes a formal statement to government officers” they bear “testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Clark, 165 N.C.App. at 284, 598 S.E.2d at 217 (citations omitted).
In the instant case, Emanuel told his brother, who is not a law enforcement officer, that he was meeting defendant. The statement was not made during a trial or hearing and there is no evidence that the purpose of the statement was part of an investigation. Since this statement was not testimony in a former trial or hearing or made during police interrogations it is not testimonial. A statement that is not testimonial requires no further analysis under Crawford. See State v. Craven, 205 N.C.App. 393, ––––, 696 S.E.2d 750, 753 (2010) (finding first step in evaluating the Confrontation Clause is to determine if the evidence is testimonial). Therefore, the trial court did not err in allowing admission of the statement into evidence.
VI. Testimony
Defendant alleges that the trial court erred when it failed to intervene ex mero motu during the prosecutor's examination of Locklear. We disagree.
In the instant case, Locklear entered into a plea agreement with the State, agreeing to testify against defendant in exchange for a reduced sentence. The plea agreement was read to the jury. A portion of the agreement indicated who was responsible for evaluating Locklear's truthfulness at trial:
... If it is determined by the State that the defendant has violated any provisions of the agreement, including the provision that the defendant provide complete and truthful information to which he will testify at trial, and the agreement is revoked, this agreement, if completed by the parties, shall be filed with and sealed by the Superior Court on the 11th of March, 2010.
During Locklear's direct examination the prosecutor questioned him as follows:
Q: By the way, as to your proffer that led to this, do you recall discussing who actually would be the judge of whether you were truthful or not?
A: No, I don't understand-what? Say that again, now.
Q: In other words who would decide if you were being truthful?
A: I don't ...
Q: Do you recall a conversation through your lawyer
A: Nope.
Q: —about the judge being the person who would determine if you were truthful after you testify?
A: I can't recall. All I know is I was told if I got up here and told the truth, that I would get the plea.
Defendant failed to object to this line of questioning at trial and argues the court should have intervened ex mero motu. In his brief, defendant cites two cases for the proposition that one witness cannot testify about another witness's credibility. See State v. Robinson, 355 N.C. 320, 334–35, 561 S.E.2d 245, 255 (2002); State v. Heath, 316 N.C. 337, 340–43, 341 S.E.2d 565, 567–69 (1986). The cases are inapplicable to these facts. Here, the prosecutor did not question Locklear about the truthfulness of another witness. Rather, he questioned Locklear about who would determine Locklear's truthfulness for purposes of the plea bargain.
Even assuming, arguendo, the prosecutor's statements were error, defendant has failed to show how the jury would have returned a different verdict if the trial court had intervened. First of all, Locklear never confirmed that the judge was the person who would determine his truthfulness. He simply said if he “told the truth, that [he] would get the plea.” In addition, as stated above, the evidence against defendant was overwhelming. Even without Locklear's testimony, defendant told Laura he was going to shoot Emanuel. He called Emanuel on the phone and then left Laura's house. Emanuel told Dustin he was going with defendant. Emanuel's friends and brother saw Emanuel get into defendant's car, and then Emanuel was discovered dead the next day. This assignment of error is overruled.
VII. Conclusion
The admission of evidence concerning the additional shell casings and other guns owned by defendant did not rise to the level of plain error. In addition, the trial court did not err by admitting the eleven photographs of Emanuel's body into evidence nor by allowing Dustin to testify about Emanuel's intent to leave with defendant. The trial court also did not err when it failed to intervene during the prosecution's questioning of Locklear. We find no error.
No error. Judges BRYANT and STROUD concur.
Report per Rule 30(e).