Opinion
No. COA11–708.
2012-04-17
STATE of North Carolina v. Sherita Nicole McNEIL, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery and Assistant Attorney General Anne M. Middleton, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
Appeal by defendant from judgment entered 19 August 2010 by Judge Ripley E. Rand in Wake County Superior Court. Heard in the Court of Appeals 24 January 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery and Assistant Attorney General Anne M. Middleton, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Sherita Nicole McNeil (“defendant”) appeals from the judgment entered 19 August 2010 after a jury found her guilty of first-degree murder based on the felony murder rule and guilty of concealing the death of another person. Defendant argues the trial court erred by denying her motion to dismiss for insufficient evidence of murder by felony child abuse; by instructing the jury that defendant's hands could be considered deadly weapons; and by permitting the State's expert witness to testify as to the cause of her son's death because the witness's opinion was not based on her medical expertise. After careful review, we find no error.
Background
Defendant was arrested on 22 January 2009 and charged with the first-degree murder of her 19–month–old son and of concealing his death. Defendant was tried before a jury during the 9 August 2010 Criminal Session of Wake County Superior Court, Judge Ripley E. Rand presiding. The State's evidence tended to establish the following: On 7 March 2007, defendant gave birth to the decedent, D.G. (hereinafter “David” ). At the time of David's birth, defendant already had a daughter named Janie whose father was Ira James (“James”). While defendant was pregnant with David she decided she did not want the child and agreed to let a friend, Latracey Gross (“Ms.Gross”), take the child. Ms. Gross agreed to do so upon the condition that she could give the child back if she changed her mind and did not want the child. Ms. Gross took defendant's son home from the hospital.
“David” is a pseudonym used to protect the identity of the minor victim.
“Janie” is a pseudonym used to protect the identity of the minor daughter.
In November 2007, defendant arranged to take David back from Ms. Gross. David's father, Eric Chambers (“Chambers”) was incarcerated on a charge of murder while defendant was pregnant with David, but he was released after the charge was dismissed. Defendant, Chambers, and David lived together in an apartment in Garner, North Carolina.
After Chambers was again incarcerated in May 2008, Chambers' mother, Kay Washington (“Ms.Washington”), became concerned that David was being mistreated. Ms. Washington noticed that David had a scar on the back of his head; defendant said David's scar was caused by a fall. Ms. Washington also noticed that David flinched as if he expected Ms. Washington to hit him when David dropped a cereal bowl. A teacher at David's daycare center noticed that after David's father was incarcerated David began losing weight, became very fussy, and suffered bodily injuries; specific injuries she witnessed on David were a busted lip and a belt mark on his back; the pattern from the belt appeared similar to a belt that defendant wore. The daycare teacher also observed defendant's indifference to David, such as her rushing to drop off David, not picking him up off the ground when he would fall, but rather, telling him to “shut up” before leaving him.
Ashley McNair (“Ms.McNair”), defendant's coworker, testified that after she befriended defendant, defendant told her she did not love David as much as her daughter and that she would “punch” David to discipline him. On many occasions, Ms. McNair witnessed defendant's interactions with Janie and David, describing defendant as being affectionate with Janie, but indifferent toward David.
In letters to Janie's incarcerated father, James, defendant admitted her hatred and mistreatment of David: “I love my daughter to [sic] much to whoop her, but my son oh If [–––] him up bad”; “I hated that baby and [Chambers] the whole time [I was pregnant] and now thats all I have for both of them is hate.” In another letter to James defendant admitted, “I don't [sic] love him and never will, I look at him and I just slap the sh[-] out of him. I want somebody to get him because Im [sic] going to end up in jail forreal [sic].” During a phone call recorded while James was incarcerated, defendant stated that she did not like David and that she would prefer that her daughter was “the only child.”
When David did not return to daycare after 3 October 2008, people began to question defendant as to David's whereabouts. On 10 October 2008, in another phone call with James, defendant stated that David was with Ms. Gross. Later in the same call, however, defendant told James that she had done something to David and that he was not with Ms. Gross.
In late October 2008, Ms. Gross began receiving calls from Chambers, Ms. Washington, and others asking if she had David with her. She did not and the calls prompted Ms. Washington to call the Garner Police Department and Children's Protective Services. A subsequent missing person investigation by the Garner police produced some suspicious responses from defendant but did not lead to any definitive answers as to David's whereabouts.
On 12 November 2008, defendant and Janie left defendant's apartment to stay with James' parents for a few days. On 14 November 2008, during a recorded phone call with defendant, James asked defendant if David was alive and defendant refused to answer. Approximately half an hour later on another call, James told defendant that he knew what had happened; that defendant should say that Chambers raped her and that she was forced to keep David because her life was in danger; and that defendant should “go get him” “no matter what his condition.”
That same day, defendant's mother called her son, Antonio McNeil, and asked him to go to defendant's apartment to look around while defendant and Janie were staying with James' parents. In defendant's apartment Antonio found a plastic container in the bedroom closet. The closet smelled of bleach and inside the container was a plastic bag that appeared to contain a child's head. Antionio told his mother what he had found and she called the police. The police discovered David's body in a fetal position inside the plastic bag; it was apparent that David was dead.
The next day, the Garner police interviewed defendant at the police station. Defendant claimed not to know where David was and that it had been a couple of weeks since she had seen him. Eventually, however, defendant told the police that David was not alive, that he died at home, and that his body was located there. Later in the interview, defendant told the police that David died when he was jumping on a chair with his sister, fell, and hit his head on a table. Defendant stated that when she picked David up he appeared as if he was trying to cry but he made no noise and “milk” was coming out of his nose.
Defendant told the police that after David died she took David upstairs, laid him on the bed with Janie, and went to sleep. In the morning defendant placed David's body in the closet and went about her day. After a few days of this routine David's body began to smell. Defendant placed him in a plastic bag, placed the bag in a plastic container, and used bleach to mask the odor of decay.
The autopsy of David's body, performed by former associate chief medical examiner Dr. Maryanne Gaffney–Kraft, revealed that David's body was significantly decomposed. David was found to have three fractured ribs in various stages of healing. Dr. Gaffney–Kraft concluded that the fractures were not the cause of death, but would have been extremely painful, causing a child to be in constant pain and unlikely to be jumping on furniture. Dr. Gaffney–Kraft could not reconcile David's injuries with defendant's version of the events that led to his death. Because of the decomposition of David's body, Dr. Gaffney–Kraft could not determine exactly what injury caused David's death and concluded David died from “undetermined homicidal violence.”
Defendant called Dr. Donald Jason, an associate professor of pathology at Wake Forest University, as an expert witness. Dr. Jason similarly concluded that it was not possible to determine the exact cause of David's death, but that it was possible that David died as defendant had described. However, Dr. Jason also testified that when dead bodies are concealed the deaths are most often the result of a drug overdose or some form of homicidal violence.
The jury found defendant guilty of first-degree murder of David based on the felony murder rule, with the underlying felony of felony child abuse. Defendant was also found guilty of concealing David's death. Defendant was sentenced to life in prison without parole and gave notice of appeal in open court.
Discussion
I. Sufficiency of the Evidence
Defendant first argues the trial court erred by denying her motion to dismiss because the evidence, when viewed in the light most favorable to the State, did not establish the specific cause of David's death or that defendant caused his death. She argues the State's evidence that David died from “undetermined homicidal violence” is speculative and thus the State failed to present substantial evidence of defendant's guilt. We disagree.
A defendant is guilty of first-degree murder under the felony murder rule when the defendant commits a murder during the commission of a felony or attempted commission of a felony with the use of a deadly weapon. State v. Pierce, 346 N.C. 471, 493, 488 S.E.2d 576, 589 (1997); N.C. Gen.Stat. § 14–17 (2009). Felony murder based on a charge of felony child abuse requires the State to prove the defendant committed a murder during the commission or attempted commission of felony child abuse with the use of a deadly weapon. Pierce, 346 N.C. at 493, 488 S.E.2d at 589. The trial court instructed the jury that felony child abuse occurs when a parent, who is providing care or supervision to a child less than 16 years of age, “intentionally inflicts any serious physical injury upon or to the child.” N.C. Gen.Stat. § 14–318.4 (2009).
When a defendant makes a motion to dismiss for insufficient evidence “the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455,cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995). When presented with circumstantial evidence, “ ‘the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances.’ “ Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 919 (1993)). If so, it is the jury's duty to determine if the defendant is actually guilty. Id.
A. Cause of Death
Defendant's assertion that the State must establish the specific manner in which David died in order to deny her motion to dismiss is incorrect. Defendant's reliance on State v. Edwards, 224 N.C. 577, 579, 31 S.E.2d 762, 763 (1944), for this proposition is misplaced.
In Edwards, our Supreme Court stated that without establishing the cause of death, or that the defendant caused the death, “ or circumstance from which these facts might reasonably be inferred,” the State fails to prove the corpus delicti of the crime and the charge should be dismissed. Id. (emphasis added). In State v. Head, 79 N.C.App. 1, 9, 14, 338 S.E.2d 908, 912, 915,disc. review denied, 316 N.C. 736, 345 S.E.2d 395 (1986), this Court cited Edwards and concluded that even where the victim's body was not found the defendant's motion to dismiss was properly denied where the evidence was sufficient to allow “the reasonable inference” that the victim died from a criminal act and that the defendant was the perpetrator.
Here, there was sufficient evidence from which the jury could reasonably infer that defendant caused David's death. Defendant provides multiple scenarios that could have led to David's death. However, that other possible explanations for David's death exist does not warrant dismissal of the charge. See State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988) ( “Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.”) As such, defendant's argument is dismissed.
B. Felony Child Abuse
Defendant next contends that the State's evidence was insufficient to establish that defendant committed felonious child abuse by the intentional infliction of serious physical injury pursuant to N.C. Gen.Stat. § 14–318.4 (2009). We disagree.
Based on her autopsy of David's body, Dr. Gaffney–Kraft's expert opinion was that David died as the result of “undetermined homicidal violence”; that his death was a homicide, not an accident. Dr. Gaffney–Kraft's autopsy revealed David had suffered three rib fractures in the weeks prior to his death. Dr. Gaffney–Kraft testified that these fractures, in various stages of healing, would have made it very painful for David to have been jumping around as defendant claims he was doing when he fell. Dr. Ann Ross testified as an expert witness in forensic anthropology that David's rib fractures were “strongly suggestive” of child abuse. David's paternal grandmother and daycare teacher testified that they noticed physical signs of abuse on David's body including a busted lip, a scar on his head, and a belt mark. The belt mark was in a pattern similar to a belt worn by defendant. While defendant argues this evidence cannot serve as the underlying felony for felony murder, our Supreme Court has held evidence of prior abuse to be admissible for establishing the identity of the perpetrator, plan, and absence of accident for a charge of first-degree murder by felony child abuse. State v. Anderson, 350 N.C. 152, 174, 513 S.E.2d 296, 310,cert. denied,528 U.S. 973, 145 L.E.2d 326 (1999) (concluding the State's evidence of the defendant's previous acts of mistreatment of the victim were permissible to establish the identity of the perpetrator, a plan, and an absence of accident).
Defendant relies on State v. Hood, 77 N.C.App. 170, 172, 334 S.E.2d 421, 423,disc. review denied, 314 N.C. 671, 335 S.E.2d 900 (1985), to argue that evidence of motive and opportunity, without more, is insufficient to establish that defendant was the perpetrator of the crime. However, Hood is distinguishable as the Court concluded that the possibility the victim committed suicide was sufficient to sustain a motion to dismiss. Id. Here, there can be no reasonable inference that David committed suicide. Furthermore, in Hood, there was no evidence creating a reasonable inference of either motive or opportunity where the defendant was “in the area” at the time a shot was fired and had “once” stated he would shoot the victim in self-defense. Id . at 173, 334 S.E.2d at 423.
Here, the State presented substantial evidence that defendant did not want her child, wished he were dead, and had the opportunity to commit felonious child abuse. The State's evidence established that defendant had exclusive custody of David at the time his injuries occurred and at the time of his death. “Where an adult has exclusive custody of a child for a period of time and during such time the child suffers injuries which are neither self-inflicted nor accidental, the evidence is sufficient to create an inference that the adult inflicted an injury.” State v. Perdue, 320 N.C. 51, 63, 357 S.E.2d 345, 353 (1987). Thus, we conclude there was sufficient evidence from which the jury could draw a reasonable inference that defendant had the motive and opportunity to inflict a serious physical injury on David and did in fact do so.
C. Evidence of a Deadly Weapon
Next, defendant contends there was no evidence that David was killed with a deadly weapon. We disagree.
“When a strong or mature person makes an attack by hands alone upon a small child, the jury may infer that the hands were used as deadly weapons.” Pierce, 346 N.C. at 493, 488 S.E.2d at 589. Here, there was substantial evidence that defendant, an adult woman, committed an act of child abuse that resulted in the death of her 19–month–old son. This evidence was sufficient to permit the jury to infer that defendant's hands were the deadly weapon used to cause his death.
Defendant similarly contends that the trial court erred by instructing the jury that they could find defendant's hands were deadly weapons. “An instruction about a material matter must be based on sufficient evidence.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). As we conclude there was sufficient evidence to support the conclusion that defendant's hands were the deadly weapons that caused David's death, the jury instruction was proper.
II. Predicate Felony for the Felony Murder Rule
Next, defendant contends that in State v. Jones, 353 N.C. 159, 170 n. 3, 538 S.E.2d 917, 926 n. 3 (2000), the North Carolina Supreme Court held that felony child abuse is not a viable felony upon which a felony murder conviction can be based. We disagree.
In State v. Krider, 145 N.C.App. 711, 714, 550 S.E.2d 861, 863 (2001), appeal dismissed, 355 N.C. 219, 560 S.E.2d 150 (2002), we concluded that, where there was evidence of the defendant's intent to abuse the juvenile victim, a conviction for first-degree murder under the felony murder rule predicated on felony child abuse was consistent with the holding of Jones. In Jones, our Supreme Court held, in part, that culpable negligence could not satisfy the intent requirement for first-degree murder. 353 N.C. at 163, 165, 538 S.E.2d at 922, 923 (reversing the defendant's conviction for first-degree murder under the felony murder rule based on assault with a deadly weapon inflicting serious injury by operating his automobile “in a culpably or criminally negligent manner”). In Krider, this Court distinguished Jones on the issue of intent noting that the defendant in Jones “did not actually intend” to commit the felony underlying his conviction for first-degree murder under the felony murder rule. Krider, 145 N.C.App. at 712, 550 S.E.2d at 862. In Krider, however, there was substantial evidence that the defendant intentionally abused her child, using her hands as a deadly weapon, resulting in serious physical injury. Id. at 713–14, 550 S.E.2d at 862–63 (noting felonious child abuse does not require proof of specific intent and that past incidents of abuse are admissible for establishing intent to commit child abuse). Similarly, here, there was substantial circumstantial evidence that defendant intentionally abused David, using her hands as a deadly weapon, and that the abuse was the cause of the child's death.
Consequently, the holding of Jones does not apply. Our conclusion comports with the holding of Krider, by which we are bound. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”). Accordingly, defendant's argument is overruled.
As defendant did not cite Krider in her brief, we remind counsel of the duty of candor toward the tribunal, which requires disclosure of known, controlling, and directly adverse authority. N .C. Rev. R. Prof. Conduct 3. 3(a), (a)(2) (2012) (“A lawyer shall not knowingly: ... fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”). While the duty to disclose Krider rests upon defendant, the State also failed to cite the case. We remind counsel of the need to be diligent in finding controlling authority.
III. Expert Witness Testimony
Lastly, defendant argues the trial court erred by allowing the State's expert witness to testify as to her opinion of the cause of death because her testimony was not based upon her medical expertise. As such, defendant contends the jury was in as good a position as the expert witness to determine the cause of death.
Dr. Gaffney–Kraft testified that due to the advanced state of decomposition of David's body she could not give “an anatomical reason” why David died. However, she concluded that the cause of his death was “undetermined homicidal violence.” Defendant insists this opinion was not based upon the doctor's expertise, but was based on non-scientific considerations and the result of mere speculation. We disagree.
As defendant did not object to the testimony by Dr. Gaffney–Kraft, our review is limited to a determination of whether the trial court committed plain error. N.C. R.App. P. 10(a)(4) (2012); State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). To establish plain error, defendant must show the trial court erred and “the error was so fundamental that, absent the error, the jury probably would have reached a different result.” Jones, 355 N.C. at 125, 558 S.E.2d at 103. We conclude defendant has not met this burden.
Initially, we note that while defendant's expert witness, Dr. Jason, testified that the phrase used by Dr. Gaffney–Kraft, “undetermined homicidal violence,” is not a phrase used in forensic pathology, our caselaw reveals several instances of similar determinations. See State v. Gregory, 340 N.C. 365, 381, 459 S.E.2d 638, 647 (1995) (noting victims' bodies were in an advanced state of decomposition and that the autopsy revealed that one victim died from “undetermined homicidal violence”), cert. denied,517 U.S. 1108, 134 L.Ed.2d 478 (1996); State v. Patel, ––– N.C.App. ––––, ––––, 719 S.E.2d 101, 106 (2011) (noting expert in forensic pathology testified that victim's cause of death was “ ‘homicidal violence of undetermined type’ ”), disc. review denied,––– N.C. ––––, 720 S.E.2d 395 (2012); State v. Johnson, 196 N.C.App. 330, 332, 674 S.E.2d 727, 729 (noting expert forensic pathologist testified that victim died of “ ‘unspecified homicidal violence’ but most likely asphyxiation”), appeal dismissed,363 N.C. 378, 679 S.E.2d 395 (2009).
A review of the transcript reveals that Dr. Gaffney–Kraft testified in detail as to the results of her autopsy of David's decomposed body. Her findings included three rib fractures in varying stages of healing indicating David would have suffered the fractures at different times, all prior to the day of his death. Based on her medical knowledge, Dr. Gaffney–Kraft opined that a child with such rib fractures would have been in “excruciating pain” and would not have been jumping on the furniture as defendant described David's activities immediately before his death. Our caselaw permits a medical expert to testify that a person's injuries are inconsistent with the proffered cause of the injuries. See State v. Brown, 300 N.C. 731, 734, 268 S.E.2d 201, 203 (1980) (concluding medical experts' opinions that “drew inferences from medical facts which were inconsistent with defendant's explanation of the child's injury in no way undercuts the validity of their testimony”); State v. Moss, 139 N.C.App. 106, 112, 532 S.E.2d 588, 593 (holding no error in admission of medical expert's testimony that it was “virtually impossible” for the victim's injuries to have resulted from events described by the defendant), disc. review denied, 353 N.C. 275, 546 S.E.2d 387 (2000).
Summarizing her findings and the injury that caused David's death, Dr. Gaffney–Kraft testified:
I cannot tell you exactly what the injury was. But, again, based on my autopsy findings of evidence of child abuse with three rib fractures occurring between seven and—seven days and three months prior to his death, and based on the history given by the mother of the circumstances surrounding his death which are inconsistent with the type of injuries he would have inflicted, inconsistent with the event that would have occurred, had he had an injury, and inconsistent with him jumping up and down on the couch because he has a recent seven to 14 day old rib fracture, that is how I came to my conclusion that the cause of death was undetermined homicidal violence.
Dr. Gaffney–Kraft further testified that she would have reached the same conclusion even without the knowledge that defendant had given David to another woman at birth and of her statements that she wished David was dead. Thus, Dr. Gaffney–Kraft's testimony establishes that her opinion was not the product of mere speculation, but was based on her expertise in forensic pathology. Because the trial court did not err in admitting this testimony it did not commit plain error and defendant's argument is overruled.
Conclusion
In sum, the trial court did not err in dismissing defendant's motion to dismiss for insufficient evidence. Our caselaw has established that felony child abuse is a valid underlying felony for a conviction under the felony murder rule. The trial court did not commit plain error in permitting the State's expert witness to testify as to the cause of David's death.
No error. Judges THIGPEN and McCULLOUGH concur.
Report per Rule 30(e).