Opinion
NO. COA12-180
10-16-2012
STATE OF NORTH CAROLINA v. DEXTER TREMAINE McRAE
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Cumberland County
No. 06 CRS 064034
Appeal by Defendant from judgments entered 27 September 2010 by Judge James G. Bell in Superior Court, Cumberland County. Heard in the Court of Appeals 11 September 2012.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant.
McGEE, Judge.
Dexter Tremaine McRae (Defendant) was convicted of first-degree murder, first-degree burglary, and first-degree rape on 17 September 2010. The trial court sentenced Defendant to life imprisonment without parole for first-degree murder on 27 September 2010. Defendant was also sentenced to a term of 64 months to 86 months in prison for first-degree burglary, to run at the expiration of his life sentence. Defendant was sentenced to a term of 240 months to 297 months in prison for first-degree rape, to run at the expiration of his sentence for first-degree burglary. Defendant appeals.
I. Facts
Defendant was married to Sophia McRae (Ms. McRae) and they had three children together. Ms. McRae filed a petition for a domestic violence protective order on 7 July 2006. An order prohibiting Defendant from entering the family home for three months was issued on 17 July 2006. The order did not bar contact between Defendant and Ms. McRae.
On the evening of 20 September 2006, Defendant drove by the family home and saw a car parked outside. Defendant suspected a man was inside the house with his wife and he became angry. Defendant drove to his mother's house to arm himself. Defendant, armed with two knives and a crowbar, returned to the family home. Defendant pried open a window in his children's bedroom and entered the house. Defendant hid in an unused bedroom. Around 2:00 a.m. on the morning of 21 September 2006, Defendant heard a man speaking to Ms. McRae at the front door of the family home, followed shortly by the sounds of a car driving away from the house.
Defendant came out of hiding and confronted Ms. McRae as she was going into the bathroom. During their confrontation, Ms. McRae told Defendant that she had been having a sexual relationship with a co-worker. Defendant then hit Ms. McRae and cut her neck with one of the knives he was carrying.
Defendant carried Ms. McRae to the master bedroom and had sexual intercourse with her. The State offered evidence tending to show that the intercourse was not consensual, while Defendant contended that Ms. McRae gave her consent. One of the children began to cry and Ms. McRae went to calm the child. Defendant told Ms. McRae to not "try and run away" while she tended to the child. While Ms. McRae was seeing to the child, Defendant went to the kitchen and got two knives.
Ms. McRae and Defendant returned to the master bedroom and Defendant was "still enraged" and he began to stab Ms. McRae repeatedly. Ms. McRae sustained fifty-six stab wounds to her fingers, palms, left arm, neck, chest and back. She suffered cardiovascular and pulmonary collapse. Ms. McRae later died of her wounds.
After stabbing Ms. McRae, Defendant called his father around 4:00 a.m. and told him that he and Ms. McRae had been fighting and that his father needed to come to the house. Defendant's father arrived and Defendant took him to the bedroom, where Ms. McRae was lying on the floor, still alive. Defendant's father called his wife and told her that Ms. McRae was hurt and needed medical attention. He asked her to call 911, which she did at least three times, and she then drove to the house.
The State also presented the testimony of Defendant's six-year-old son. Defendant's son testified that he heard noises and went to see what the noises were and saw his father stab his mother. Defendant's son also testified that he tried to stop Defendant and that Defendant pushed him into a wall and he lost consciousness.
Detective Todd Joyce (Det. Joyce) testified at trial that he interviewed Defendant during the morning of 21 September 2006. Defendant confessed to stabbing Ms. McRae and provided a narrative of events conforming with those set forth above. Det. Joyce then wrote a police report summarizing Defendant's statement in Det. Joyce's own words. Det. Joyce used portions of his police report (the police report) to draft an affidavit in support of a search warrant (the affidavit).
Det. Joyce testified at length concerning his interview with Defendant and recounted Defendant's statement and confession. The State presented the affidavit as evidence and a redacted version of the affidavit was read to the jury by Det. Joyce, was admitted into evidence, and was published to the jury. The State, during rebuttal, moved to offer the police report into evidence. The trial court did not admit the police report, but did allow Det. Joyce to recite its contents to the jury.
Defendant did not testify at trial. He did present expert testimony from Dr. Robert Blackshear, Jr. (Dr. Blackshear) and Dr. Alton Williams (Dr. Williams). Dr. Blackshear opined that Defendant was under acute psychological stress on 21 September 2006, that Defendant did not intend to kill Ms. McRae, and that Defendant lacked the mental capacity to form a specific intent to kill. It was the opinion of Dr. Williams that Defendant was emotionally unstable and "function[ed] under some particular impairment[.]"
After a trial spanning two months, the jury convicted Defendant of first-degree murder on the basis of malice, premeditation, and deliberation; under the first-degree felony murder rule combined with first-degree rape; under the first-degree felony murder rule combined with first-degree burglary; and on the basis of lying in wait. The jury also found Defendant guilty of first-degree burglary and first-degree rape. The trial court submitted to the jury four aggravating factors, of which the jury found three: (1) that the "capital felony was committed while . . . [D]efendant was engaged, or was in the commission of rape[;]" (2) that the "capital felony was committed while . . . [D]efendant was engaged, or was in the commission of burglary[;]" and (3) that "the capital felony was especially heinous, atrocious, or cruel." The jury found that the murder was not "part of a course of conduct in which . . . [D]efendant engaged and which included the commission by . . . [D]efendant of other crimes of violence against another person." The trial court also submitted eighty-six mitigating factors to the jury, of which the jury found eighty-one existed. However, the jury found that the mitigating factors were sufficient to outweigh the aggravating factors. The jury recommended life imprisonment without parole.
II. Issues on Appeal
Defendant presents the issues on appeal of whether: (1) the trial court erred by allowing Det. Joyce "to recite the affidavit in support of a search warrant, in admitting the search warrant into evidence, and in publishing the affidavit, as the affidavit did not serve the purpose of corroboration and gave undue emphasis to one aspect of the State's case[;]" (2) the trial court erred by allowing Det. Joyce "to recite his police report as the report was not admissible as a confession and did not impeach any defense witness[;]" (3) the trial court abused its discretion in overruling Defendant's objection, motion for mistrial, and request for a curative instruction "when the prosecutor suggested that [Defendant], contrary to instructions by defense counsel, had attempted to intimidate his son during trial and affected the testimony elicited[;]" and (4) "the evidence was insufficient to establish murder by lying in wait[.]"
III. Affidavit in Support of Search Warrant
Defendant first argues that the trial court erred by allowing Det. Joyce to read to the jury his affidavit in support of a search warrant. Defendant also asserts that the trial court erred by admitting a copy of the affidavit into evidence and publishing the affidavit to the jury. Defendant contends the affidavit was inadmissible hearsay, "did not serve the purpose of corroboration and gave undue emphasis to one aspect of the State's case."
Defendant argues that, "[a]s the search warrant affidavit was not utilized to bolster the credibility of a witness other than Detective Joyce, the trial court's rulings were erroneous." Defendant contends that, "[g]iven the undue emphasis placed upon Detective Joyce's version of [Defendant]'s statement, [Defendant] was denied a fair trial[.]"
Defendant, citing State v. Corbett, 339 N.C. 313, 337, 451 S.E.2d 252, 265 (1994), argues that:
Just as the transcription of one witness' testimony for the jury's use in deliberations can result in the jury giving undue weight to one aspect of the evidence, erroneously permitting a witness to essentially testify three times highlights that witness' testimony at the expense of contrary evidence in the record.We first note that Defendant cites authority only for the first portion of his statement that deals with transcription of testimony. Defendant cites no authority in support of his assertion that "permitting a witness to essentially testify three times highlights that witness' testimony[.]"
The cases Defendant does cite are procedurally distinguishable from the present case, as well. In Corbett, our Supreme Court held that the trial court did not abuse its discretion in denying the jury's request to review portions of the transcript during deliberation because, "[w]hen the foreman finally asked to review the transcript in general, the trial court explained it would not be fair to give the jury only portions of the testimony taken out of context of the whole trial." Corbett, 339 N.C. at 337-38, 451 S.E.2d at 265. Defendant also cites State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991), which involved the jury's request "to 'review' the testimony of the State's firearm and tool mark identification expert." Id. at 431, 402 S.E.2d at 820. Our Supreme Court held that there was no abuse of discretion where the trial court "indicated it was denying the request because it did not want to give undue emphasis to the testimony of any particular witness." Id. at 431, 402 S.E.2d at 821. Finally, Defendant cites State v. Lee, 335 N.C. 244, 439 S.E.2d 547 (1994), in which the jury requested "to 'have a copy of the testimony of the neurosurgeon and the neuropsychologist[.]'" Id. at 290, 439 S.E.2d at 571. The trial court denied the request, stating to the jury that:
"For you to have that and not have a copy of all of the testimony might cause something to be taken out of context or unduly—place undue emphasis on this. It is your duty to use your own recollection and recall the evidence as you heard it from the witness stand."Id. Thus, each of the three cases that Defendant cites stand for the proposition that a trial court does not abuse its discretion when denying a jury's request to review transcripts of testimony during deliberations on the grounds that the jury might assign undue weight to portions of the testimony. These cases do not speak to the situation involved in the present case, where the trial court allowed one witness to read a statement which closely paralleled portions of his prior testimony.
However, assuming arguendo that the trial court did err by admitting Det. Joyce's summary and affidavit, we find no prejudice to Defendant arising from the error. "The burden of showing . . . prejudice . . . is upon the defendant." N.C. Gen. Stat. § 15A-1443 (2011). "To receive a new trial based upon a violation of the Rules of Evidence, a defendant must show that the trial court erred and that there is a 'reasonable possibility' that without the error 'a different result would have been reached at the trial.'" State v. Ray, 364 N.C. 272, 278, 697 S.E.2d 319, 322 (2010) (citation omitted).
As Defendant states in his brief: "Detective Joyce . . . read the excised version of the affidavit, which closely mirrored the exact words he had used to recount [Defendant's] statement." Reviewing Det. Joyce's testimony and Det. Joyce's reading of the affidavit in support of a search warrant, we find no significant differences in terms of the facts contained therein. Defendant contends the repetition arising from Det. Joyce's testimony and the affidavit was prejudicial to Defendant because Defendant's "intent at the time he entered the home, the circumstances surrounding the sexual intercourse, and [his] mental state at the time of the homicide were at the heart of [the] case." Defendant asserts that "[n]o physical evidence supported that a forcible sexual encounter occurred."
We disagree. After comparing Det. Joyce's statement to his testimony concerning Defendant's confession, this Court concludes that the statement was merely repetitive of Det. Joyce's testimony. In State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970), our Supreme Court addressed the admission into evidence of a transcript of a defendant's confession and held that "[i]n any event, however, its contents were merely repetitive of the sheriff's testimony, and no prejudice could have resulted to defendant from its admission." Id. at 25, 175 S.E.2d at 576. Even if the trial court erred in admitting Det. Joyce's statement, we are not persuaded a different result would have been reached at trial had the statement not been admitted. The State presented evidence, including Det. Joyce's testimony, that tended to show that Defendant broke into the home, waited, fought with Ms. McRae, cut her neck with a knife, had sexual intercourse with her, told her not to leave the house, and then stabbed her fifty-six times. Defendant does not indicate any instances during the trial that suggest the jury gave undue weight to Det. Joyce's statement, nor do we find any during our own review. We therefore conclude that, assuming arguendo the trial court did err, any error was not prejudicial to Defendant.
IV. Police Report
Defendant next argues that the trial court erred by allowing, during the State's rebuttal, Det. Joyce to read to the jury portions of his police report. Defendant asserts this was error because "the report was not admissible as a confession and did not impeach any defense witness." Defendant argues that "[a] written statement which purports to be a confession by a defendant is not admissible into evidence unless the defendant acknowledged that the writing accurately captured his statement." However, our review of the transcript reveals that the portion of the police report read to the jury contained the notes taken by Det. Joyce after his interview with Defendant. As with the affidavit in support of arrest, the factual summary contained in the statement from the police report was substantively identical to Det. Joyce's admissible testimony concerning Defendant's confession. For the reasons discussed above, we likewise find that any error made by the trial court in allowing Det. Joyce to recite his notes would not have been prejudicial to Defendant given the substantial evidence otherwise admitted in this case. See Fox, 277 N.C. at 25, 175 S.E.2d at 576.
V. Intimidation
Defendant next argues the trial court erred in overruling an objection and a motion for mistrial Defendant made during the State's closing argument. Defendant argues that, during closing argument, the State "suggested that counsel had . . . advised [Defendant] as to his courtroom demeanor, but that [Defendant] violated that advice when his son took the stand." Specifically, Defendant asserts that the State's closing argument contained statements which suggested that Defendant attempted to intimidate his son when his son was called as a witness.
The following is the portion of the State's closing argument to which Defendant directs our attention:
[The State]: Now, [Defendant's son] came in here. And . . . [D]efendant has beenDefendant argued at trial that the State was not allowed to comment on Defendant's demeanor during the trial because "they may not comment on their observations of people in the trial . . . [or] on the reactions of a defendant who has exercised his right to remain silent[.]" Defendant also suggested that the State was improperly attempting to suggest that Defendant had intimidated his son. The State countered, arguing that our appellate courts have consistently held that the prosecutor is entitled to comment on a defendant's demeanor. See State v. Barrett, 343 N.C. 164, 469 S.E.2d 888 (1996); State v. Brown, 320 N.C. 179, 358 S.E.2d 1 (1987); and State v. Myers, 299 N.C. 671, 263 S.E.2d 768 (1980).
sitting there. You've seen him during the course of the trial. You've been looking around. He's been sitting there. "Eyes on the deck, soldier."
[Defense Counsel]: Objection, your Honor.
However, Defendant concedes on appeal that "[a] prosecutor is entitled to focus her argument 'on the defendant's demeanor as displayed throughout the trial.'" Defendant cites Barrett, Brown, and Eason, the cases on which the State relied, and attempts to distinguish them from the present case by arguing that "[s]uch arguments are typically directed at lack of remorse." Defendant asserts that, "[i]n this case, however, the argument suggested criminal conduct by [Defendant] in the courtroom in derogation of advice of counsel. The trial court abused its discretion in overruling the objection and failing in any manner requested to ameliorate the prejudice" to Defendant. Defendant cites no authority in support of his argument.
"The standard of review for improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection." State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002) (citations and quotation marks omitted). "[A] trial court's decision concerning a motion for mistrial will not be disturbed on appeal unless there is a clear showing that the trial court abused its discretion." State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991) (citation omitted). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).
In the present case, the State argued that Defendant sat with his "eyes on the deck" prior to his son's taking the stand. Defendant objected and the State's argument to that end ceased. "The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." N.C. Gen. Stat. § 15A-1061 (2011). In light of the facts of this case, and the full context of the closing argument, we are not persuaded that the trial court abused its discretion in concluding that the statements made by the State did not result in "substantial and irreparable prejudice to" Defendant's case. Id. We therefore find no abuse of discretion in the trial court's overruling Defendant's objection to the State's closing argument and the denial of Defendant's motion for a mistrial.
VI. Sufficiency of Evidence
In his final argument, Defendant simply states: "Upon retrial, the State is precluded from submitting the case upon a theory of first-degree murder by lying in wait[.]" Defendant does not actually request any relief from this Court. Even if Defendant did request relief, because we have found no prejudicial error to Defendant and Defendant will not receive a new trial, we need not address the sufficiency of the evidence of first-degree murder by lying in wait.
No prejudicial error in part, no error in part.
Judges BEASLEY and THIGPEN concur.
Report per Rule 30(e).