State Carolina v. Trogdon

• Decision Date: 20 September 2011
• Docket Number: No. COA10–1344.,COA10–1344.
• Citation: 715 S.E.2d 635
• Parties: STATE of North Carolinav.Alex Jerome TROGDON, Defendant.
• Court: North Carolina Court of Appeals

715 S.E.2d 635

STATE of North Carolina

v.Alex Jerome TROGDON, Defendant.

No. COA10–1344.

Court of Appeals of North Carolina.

Sept. 20, 2011.

Appeal by defendant from judgment entered 4 March 2010 by Judge R. Stuart Albright in Randolph County Superior Court. Heard in the Court of Appeals 11 April 2011.

Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace–Smith, for the State.

Glenn Gerding, Chapel Hill, for defendant-appellant.

GEER, Judge.

Defendant Alex Jerome Trogdon appeals from his conviction of second degree murder of his girlfriend's 16–month–old son. He primarily contends on appeal that the trial court committed plain error by admitting expert testimony, a death certificate, and an autopsy report that the cause of the child's death was “homicide.” Our review of the record indicates, however, that the expert witnesses and the exhibits did not use the word “homicide” as a legal term of art. Instead, the expert witnesses detailed the nature of the child's injuries, the processes by which such injuries could occur, and the relation of the injuries to the child's death. They then explained that the “manner of death” was “homicide” as opposed to accidental means. Because our Supreme Court has already held in State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001), that an expert witness' use of the word “homicide” in this manner is permissible, we hold that the trial court did not err in admitting the challenged evidence.

Facts

The State's evidence tended to show the following facts. In 2003, Christal Milton had three children: Tre'Shaun, who was 16 months old, and two older daughters. Ms. Milton and Tre'Shaun's father, Walter Lamont Williams, were no longer in a relationship together, but Mr. Williams would call and visit his son. Ms. Milton began dating defendant in July 2003.

Earlier, in January 2003, Tre'Shaun, who had been wheezing, was diagnosed as having asthma, a reflux-induced respiratory disease, and laryngomalacia, which is “a developmental abnormality of the inlet of the larynx.” Individuals with this condition breathe in the flap of skin that covers the air way and make a whistle or wheezing type sound. In Tre'Shaun's case, this condition required only observation, and there was no indication that it was severe enough to obstruct Tre'Shaun's air way. His reflux was treated with the drug Nexium, and his asthma was treated with daily breathing treatments.

In November 2003, Ms. Milton and defendant planned to spend Thanksgiving together at Ms. Milton's home. However, Tre'Shaun's father, Mr. Williams, came to visit the children on Thanksgiving. Ms. Milton called defendant to let him know that Mr. Williams was there. Although Mr. Williams assured defendant that he was only there to visit the children, defendant became upset and refused to go over to Ms. Milton's home. He drove past the house more than once and called Ms. Milton complaining that “he's still there.”

The next day, defendant was very upset that Ms. Milton had let Mr. Williams visit. He did not trust Ms. Milton and thought that she and Mr. Williams were “trying to be together behind his back.” Two days after Thanksgiving, when Ms. Milton and defendant were arguing again, defendant told her that Tre'Shaun “wasn't his damn kid, anyway.” This statement upset Ms. Milton, and defendant apologized.

On approximately 8 December 2003, Tre'Shaun's sisters were carrying him upstairs and fell, tumbling down the steps. The next day, because of the fall, Ms. Milton took Tre'Shaun to the doctor and then to the hospital to have x-rays taken. The fall had not resulted in any head injuries, but Tre'Shaun had a knot and sore area on one of his ribs. Although his doctor suspected that the rib might be fractured, the x-ray showed that there was no fracture.

On 15 December 2003, Tre'Shaun was sick with a cold, fever, and diarrhea. Ms. Milton stayed home from work with him and took the children to a Christmas program at church. When they left the program, Ms. Milton was surprised to see that defendant was in the parking lot “to make sure [Ms. Milton] was there and how things went.” That night, defendant spent the night at Ms. Milton's house but stayed downstairs watching television because he could not sleep.

The next morning, 16 December 2003, Ms. Milton took her daughters to daycare, briefly leaving Tre'Shaun at home with defendant. When she got home she brought Tre'Shaun downstairs, tried to get him to eat, and let him play with some toys. Ms. Milton decided to go to the grocery store to get some food she thought Tre'Shaun might eat and left Tre'Shaun with defendant. When she got home, defendant had gotten Tre'Shaun to eat a piece of cake. Tre'Shaun was crying, however, and defendant told Ms. Milton that she needed to change his diaper.

After changing the diaper, Ms. Milton gave Tre'Shaun some more food that he ate while Ms. Milton and defendant played Monopoly. Because Tre'Shaun looked like he was going to fall asleep, she put him down for a nap in the living room while she and defendant continued to play Monopoly. At about 4:30 p.m., Ms. Milton needed to go pick her daughters up from daycare. She asked defendant to watch Tre'Shaun once more while she was gone.

Ms. Milton returned home with her daughters approximately 30 minutes later. When she arrived, defendant was on the porch, telling her to “[h]urry up and come here.” She went inside and saw Tre'Shaun propped in the corner of the couch, but slumped over. He looked bluish-grey in color.

She drove Tre'Shaun to Randolph Hospital's emergency room. Defendant sat in the passenger seat holding Tre'Shaun. Ms. Milton asked defendant what happened and why he did not call 911. Defendant told her that he did not know what happened—that Tre'Shaun just looked like he was not breathing. He said that he tried to call 911 twice and could not drive Tre'Shaun for help because his car was parked down the street.

Upon his arrival at the emergency room, at approximately 5:15 p.m., Tre'Shaun was placed on a ventilator. He was breathing with assistance, but he was comatose. Three hours later, Tre'Shaun was flown by helicopter to the intensive care unit of Brenner Children's Hospital in Winston–Salem. Defendant drove Ms. Milton to Winston–Salem, and, during the drive, told Ms. Milton that they should pray about the situation and when it was over, they could be a family.

At Brenner Children's Hospital, Tre'Shaun's pediatrician examined him—she believed that his condition was not the result of a cold, allergies, or a fall down the stairs. Dr. Thomas Nakagawa, a pediatric intensive care specialist at Brenner Children's Hospital, determined that Tre'Shaun had bleeding over the surface of the brain and massive brain swelling as a result of blunt force injury to his head and neck. As a result of the injury, Tre'Shaun was brain dead. Dr. Nakagawa concluded that Tre'Shaun's injuries resulted from his “head moving back and forth very rapidly and the head being slammed into some type of soft object.”

According to Dr. Nakagawa, the head injuries likely occurred just before he was brought to the emergency room. After talking with Ms. Milton and defendant, Dr. Nakagawa decided that Tre'Shaun had no significant history that would account for his injuries. Dr. Nakagawa concluded that Tre'Shaun's injuries were non-accidental.

When defendant was questioned by the police, he first denied shaking or dropping Tre'Shaun. Defendant told the police that he went to the bathroom and, when he returned, Tre'Shaun was still asleep. Tre'Shaun, however, then raised and lowered his head and started breathing fast. His eyes were “laid back,” and he was limp. Defendant said he tried to call 911, but the call did not go through so he laid the phone down. When he tried to call again, the phone did not ring. He claimed that he rocked Tre'Shaun, took him outside for fresh air, and breathed into his mouth. In a subsequent interview, defendant said that when Tre'Shaun did not wake up, he shook Tre'Shaun and hit him on the back.

On 1 June 2004, defendant was indicted for first degree murder. The case was first tried in August 2006, but ended in a mistrial. It was tried again at the 23 February 2010 session of Randolph County Superior Court.

At trial, Dr. Ellen Riemer, the forensic pathologist who performed the autopsy of Tre'Shaun testified that he had bruises on the left side of his forehead, the back of his scalp, around his ear, on his tongue, and on the underside of the lips overlaying the teeth. There were two bruises that looked like bite marks on his left forearm and a bruise on the right side of his buttock. She also discovered hemorrhages underlying the bruises on his scalp, which included bleeding in his actual scalp. There was a subdural hemorrhage and subarachnoid hemorrhage of the brain and a bruise of the brain itself.

Dr. Riemer testified that she believed there were four blunt force impact sites on Tre'Shaun's skull. Dr. Riemer had concluded that the trauma was not consistent with an accidental fall, but rather was consistent with striking Tre'Shaun's head against an object.

According to Dr. Riemer, after receiving these injuries, Tre'Shaun would have immediately lost consciousness and been limp and unresponsive. He would have had a difficult time breathing, and would not have been able to eat, play, or interact after the injuries occurred. She concluded that Tre'Shaun's cause of death was acute brain injury with hemorrhage and edema due to blunt force trauma of the head and the manner of his death was homicide.

A forensic odontologist, Dr. Sarah Shoaf, also testified regarding the marks on the top and on the bottom of Tre'Shaun's arm that were suspected to be human bite marks. According to Dr. Shoaf, the two marks could not have been made at the same time because of their placement on the arm. After examining plaster casts of the teeth of Ms. Milton, her two daughters, Mr. Williams, and defendant, she...