State Carolina v. Wright

• Decision Date: 01 March 2011
• Docket Number: No. COA10–854.,COA10–854.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolinav.Ernest Jawern WRIGHT.

708 S.E.2d 112

STATE of North Carolina
v.
Ernest Jawern WRIGHT.

No. COA10–854.

Court of Appeals of North Carolina.

March 1, 2011.

[708 S.E.2d 115]

Appeal by defendant from judgments entered 11 November 2009 by Judge James F. Ammons, Jr., in Bladen County Superior Court. Heard in the Court of Appeals 24 January 2010.

Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, for the State.

Staples Hughes, Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for defendant.

THIGPEN, Judge.

Defendant Ernest Wright appeals from six convictions arising from the assault of Steven Locklear and Demetrius Jacobs in Ms. Jacobs' mobile home. Four principal issues are presented on appeal: (1) whether there is sufficient evidence to support the secret manner element for the charge of secret assault of Mr. Locklear; (2) whether the trial court's classification and assignment of points to two out-of-state convictions violated N.C. Gen.Stat. § 15A–1340.14(e); (3) whether SBI Agent Jodie West overstated, and the State misrepresented, the results of the SBI Crime Lab blood tests; and (4) whether the trial court erred by admitting the State's bad character evidence and argument against Defendant. Defendant also contends the trial court erred by denying his motion to continue, admitting inadmissible evidence, and failing to submit lesser included offenses to the jury.

[708 S.E.2d 116]

Since we find there is insufficient evidence to support the secret manner element of secret assault, we vacate Defendant's conviction for secret assault of Mr. Locklear. Additionally, we remand for resentencing because the State failed to demonstrate the substantial similarity of Defendant's out-of-state convictions to North Carolina crimes, and the trial court failed to make a substantial similarity determination. For all other issues, we find no error.

At trial, the State's evidence tended to show that in the early morning hours of 28 December 2005, Ms. Jacobs and her boyfriend, Mr. Locklear, were assaulted inside Ms. Jacobs' rented mobile home. The mobile home was located in the rear of Eddie Pittman's property in Bladen County, and Ms. Jacobs began renting it from Mr. Pittman in September 2005. After Ms. Jacobs and her children moved into the mobile home, Mr. Pittman developed a romantic interest in Ms. Jacobs. Ms. Jacobs, however, did not reciprocate Mr. Pittman's romantic interest, and she began a romantic relationship with Mr. Locklear in November 2005. Mr. Locklear subsequently moved in with Ms. Jacobs. Mr. Pittman did not like Mr. Locklear living with Ms. Jacobs. Mr. Pittman began harassing Ms. Jacobs with letters and phone calls about Mr. Locklear, asked Ms. Jacobs to put Mr. Locklear out, turned off the water to the mobile home, started eviction proceedings against Ms. Jacobs, and had Mr. Locklear arrested for trespassing. Ms. Jacobs and Mr. Locklear decided to move out on 31 December 2005.

On the night of 27 December 2005, Ms. Jacobs and Mr. Locklear went to sleep in the bedroom of the mobile home at about 12:30 a.m. The only light on in the home was a Christmas tree in the living room. Ms. Jacobs testified she awoke in the middle of the night when she felt a “hit” on her shoulder and another “hit” on her knee. She screamed and looked up to see someone standing in the doorway of the bedroom with a bat or pipe in his hand. Mr. Locklear testified he heard Ms. Jacobs scream, looked to see someone standing in the doorway, jumped on him, and hit him with a chair. Ms. Jacobs testified Mr. Locklear lunged from the bed toward the man and “pushed him into the kitchen area [,]” where the men began fighting. Ms. Jacobs saw the attacker repeatedly hit Mr. Locklear with the pipe and continue to hit Mr. Locklear on the head after he had collapsed to the floor. Ms. Jacobs grabbed her cell phone and ran out of the trailer to call 911. The assailant ran out of the trailer after Ms. Jacobs and ran toward Mr. Pittman's house. Ms. Jacobs returned to the trailer to find Mr. Locklear covered in blood and “a gray hood with the eyes cut out and the mouth cut out” laying on the floor.

As a result of the 28 December 2005 assault, the right side of Mr. Locklear's skull was crushed and doctors had to insert a steel plate on the right side of his head; he had fractured ribs and an injury to his lung; he lost all of his teeth, except for two on the top; he suffers from seizures and severe headaches; and he receives disability benefits from the government. Ms. Jacobs suffered contusions and several bruises to her knee and had to use crutches for about a week and a half.

Sheriff Deputy Michael Burney testified he received a call at 2:15 a.m. and drove to Ms. Jacobs' mobile home, where investigators seized a cut window screen and a piece of pipe on the ground in the backyard about 25 and 50 feet, respectively, outside the trailer, a gray knit toboggan inside the trailer, and a broken window pane in the spare bedroom. Officers searched, but did not find any trace evidence or fingerprints inside the trailer or footprints inside or outside the trailer.

At the hospital on 28 December 2005, Detective Larry Guyton interviewed Ms. Jacobs and Mr. Locklear. Ms. Jacobs told Detective Guyton about the problems she and Mr. Locklear had been having with Mr. Pittman. Although Ms. Jacobs stated she could not see the attacker's face or otherwise identify him, she told Detective Guyton that she was sure the attacker was Mr. Pittman. Mr. Locklear also told Detective Guyton that Mr. Pittman was the assailant.

On 6 December 2006, co-defendant Jason Todd pled guilty to several felonies related to the assault on Ms. Jacobs and Mr. Locklear. Mr. Todd testified at Defendant's trial that

[708 S.E.2d 117]

around 9:00 p.m. on 27 December 2005, Defendant came to Mr. Todd's house driving a Toyota car and asked Mr. Todd to come with him because he was “going to f––––a mother f––––up”. After stopping at Defendant's home to play video games for about one hour and a half, Defendant stated he was ready to go and grabbed a toboggan off the kitchen table. Mr. Todd testified Defendant was wearing “a gray fleece pull over shirt ... like a sweat shirt type deal,” “a dark pair of pants,” and “some kind of stocking on his head.” Mr. Todd and Defendant then got back into the Toyota, and Defendant directed Mr. Todd to drive to Purnell McLean Road. Defendant pointed to a trailer and told Mr. Todd that was the house where the people stayed. Mr. Todd testified Defendant directed him to park on a nearby dirt road. Defendant got out of the car with a piece of pipe and some white gloves and walked away. An hour later, Defendant returned to the car for a screwdriver and walked away again.

Mr. Todd stated that about an hour after Defendant left the car the second time, he heard “banging noises” and a woman screaming for help. Forty-five seconds later Defendant got back in the car covered in blood and told Mr. Todd he had hit two people. Mr. Todd drove to Defendant's house where he collected Defendant's pants and fleece and Defendant told Mr. Todd to get rid of the clothes. As Defendant's wife drove Mr. Todd home, Mr. Todd threw the clothes out the car window onto the side of the road about one half mile from Defendant's house.

Detective Guyton recovered Defendant's fleece pull-over and pants from the side of the road where Mr. Todd had thrown them. Officers also searched Defendant's house, car, and telephone records, but did not find any incriminating evidence, blood, bloody clothing, or a call between Defendant and Mr. Pittman. Officers did find hair on the toboggan hat, and submitted the clothes and toboggan to the SBI Crime Lab for forensic testing.

At trial, forensic serologist Jodie West testified he received the pants, fleece, and toboggan in the SBI Crime Lab and applied the phenolphthalein blood test to them. Mr. West explained the phenolphthalein test is “a[n]indicator test, which means a positive result of this test would give us an indication that blood could be present.” Mr. West testified the pants, fleece pull-over, and toboggan all tested positive. On cross-examination, Mr. West further explained the phenolphthalein test:

Q. That test for the presence of blood?

A. It test[s] for the chemical indications for the presence of blood.

Q. Is there anything that could make that test give a false positive?

A. There are certain plant materials that may give a positive reaction. There is also a couple of commercially produced chemicals that may give a positive reaction. But in my training and experience I have never found these plant materials to give a positive reaction.

Cuttings from the areas that tested positive during the phenolphthalein tests were forwarded to the DNA unit for further testing.

Special Agent Sharon Hinton, a DNA forensic biologist in the SBI Crime Lab, extracted DNA from Defendant, Mr. Todd, Mr. Pittman, and Mr. Locklear, and from the cuttings of the fleece pull-over, pants, and toboggan worn by the assailant. Agent Hinton testified she found DNA predominantly from Mr. Locklear, with a smaller amount from Defendant, on the cutting from the outside of the toboggan. On the cutting from the nose and mouth area inside the toboggan, she found DNA predominantly from Defendant, with a smaller amount from Mr. Locklear. No DNA from Mr. Todd or Mr. Pittman was found on the toboggan. Agent Hinton did not find DNA on the fleece sweatshirt and was unable to conclusively identify the donor from the partial DNA profile on the pants.

At trial, the jury found Defendant guilty of first-degree burglary, assault with a deadly weapon inflicting serious injury of Ms. Jacobs, assault with a deadly weapon with intent to kill inflicting serious injury of Mr. Locklear, secret assault of Mr. Locklear, attempted first-degree murder of Mr. Locklear, and conspiracy to commit felony of assault inflicting serious bodily injury of Mr. Locklear. The trial court...