State v. Barnett

• Decision Date: 29 December 2000
• Docket Number: No. COA99-1305.,COA99-1305.
• Citation: 540 S.E.2d 423,141 NC App. 378
• Parties: STATE of North Carolina v. Kendall Jermaine BARNETT.
• Court: North Carolina Court of Appeals

540 S.E.2d 423

141 NC App. 378

STATE of North Carolina v. Kendall Jermaine BARNETT.

No. COA99-1305.

Court of Appeals of North Carolina.

December 29, 2000.

Attorney General Michael F. Easley, by Assistant Attorney General Anne M. Middleton, for the State.

Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.

EAGLES, Chief Judge.

Defendant Kendall Jermaine Barnett was tried and found guilty of first-degree felony murder in Gaston County Superior Court on 2 December 1998. From a sentence imposing life imprisonment without parole, defendant appeals. After careful review, we conclude defendant received a fair trial free from prejudicial error.

The evidence presented at trial tended to show that shortly after 9:00 a.m. on 17 July 1996, customers of the Simply Amazing Grocery Store (store) in Gastonia, North Carolina found Max Hightower (victim), a store employee, dead behind the counter. At the time, the store cash register was emitting a beeping sound. Store owner Burgin Lindley (Lindley) testified that when someone improperly tries to open the cash register it emits a steady beep. Lindley further testified that when he arrived at the store shortly after the victim's body was discovered, approximately sixteen to twenty-four dollars in cash was missing from under the counter.

Gastonia Police Officers arrived at the store at approximately 9:30 a.m. While conducting their investigation, the police found a shoe impression in the blood on the floor around the victim's body. The police also found a bloody shoe impression on the white T-shirt the victim was wearing in his lower abdomen area. A State Bureau of Investigation (SBI) expert later compared photographs of these footprints with shoes owned by defendant. The SBI expert was unable to make a conclusive identification by comparison to defendant's shoes, but found defendant's shoes consistent with the bloody footprints. Although there was no indication that defendant's shoes had been washed, they did not test positive for blood residue. An SBI expert testified that blood may be removed from "wear surfaces of the soles ... in a short time by walking." In addition, he testified that walking in the rain would probably be sufficient to remove blood from the soles of shoes. Moreover, the SBI examined shoes taken from another suspect the Gastonia police initially considered, and were able to eliminate the shoes as having left the prints in the blood at the store.

Police obtained several latent fingerprints from the store, including from the store counter, the register and boxes around the counter. No identifications could be made with these prints.

Outside the store police found a large wooden stick with blood, hair, and tissue on the end. Lindley testified that the stick the police found outside the store was for his dog to play with and was normally kept on top of a drink machine in the store. Lindley further testified that the stick was actually more like a "club," big around at the top and "tapered down a little bit." SBI forensics experts later determined that a DNA sample taken from the stick was consistent with the victim's DNA. The pathologist who performed the autopsy on the victim testified that the victim died as a result of an extensive brain injury secondary to multiple blows to the skull. He further testified that death would have resulted within minutes after the wounds were inflicted.

There was testimony that a number of individuals were seen near the store on the morning of the murder. Although the Gastonia police initially considered some of these individuals in connection with the murder, they focused on defendant at the end of July. On 15 August 1996, while defendant was in police custody on another matter, he made a statement to Detective Larry Hardin regarding the murder. Prior to making his statement, defendant was orally advised of, and in writing waived, his Miranda rights. Defendant initially denied any involvement with the murder and denied being in the store that day. Detective Hardin then told defendant that the shoes he was wearing had the same sole pattern as the pattern found in the store in the victim's blood. At this point, defendant admitted to having been in the store that morning, but again denied any involvement in the murder. According to defendant, when he went into the store on the morning of 17 July 1996, he saw the victim lying behind the counter still breathing. Defendant walked around the counter to the victim to see if he was alright. Defendant stated that the victim moved his hand, which startled him, causing defendant to "push off" the victim with his foot. Defendant then backed out of the area behind the counter. As he backed away from the victim, defendant hit the cash register, causing some keys to drop. Defendant caught the keys, placed them on the counter and continued to back out from behind the counter. In the process, defendant bumped into a cigarette display, grabbed a pack of the cigarettes and continued toward the door of the store. Defendant then stated that he stepped on a bloody stick lying on the floor, which he picked up and threw on the grass outside the store as he ran outside.

At trial, defendant testified that he did not contact the police after leaving the store because he "didn't want to be mixed up in it." In addition, defendant testified that he initially told the police that he had not been at the store on the morning of 17 July 1996, because he "didn't want to have anything to do with it," and because there was an outstanding arrest warrant for him.

On appeal defendant first argues that the trial court erred in denying his motions to dismiss and set aside the verdict. Defendant contends that the State presented insufficient evidence to sustain his conviction for first-degree felony murder. To support his contention, defendant argues that there is a lack of direct evidence in the form of eyewitnesses and physical evidence, and no proof of motive. We are not persuaded.

To convict a defendant of murder, the State must "`offer evidence from which it can be reasonably inferred that the deceased died by virtue of a criminal act and that the act was committed by the defendant.'" State v. Lambert, 341 N.C. 36, 42, 460 S.E.2d 123, 126 (1995) (quoting State v. Furr, 292 N.C. 711, 718, 235 S.E.2d 193, 198, cert denied, 434 U.S. 924, 98 S.Ct. 402, 54 L.Ed.2d 281 (1977)); State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Here it is undisputed that the victim died by virtue of a criminal act. The issue here is whether the State presented sufficient evidence tending to show that it was defendant who committed the criminal act.

It is well settled in this State that a conviction on evidence which merely gives rise to suspicion or conjecture that it was the defendant who committed the crime will not stand. State v. Sokolowski, 351 N.C. 137, 143, 522 S.E.2d 65, 69 (1999); Lambert, 341 N.C. at 42, 460 S.E.2d at 127. However, it is equally clear that if there is substantial evidence, whether it is direct, circumstantial, or both, that it was the defendant who committed the crime, a motion to dismiss must be denied. Lambert, 341 N.C. at 42,460 S.E.2d at 127. Our Supreme Court has described "substantial evidence" as "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); State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981). When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn from that evidence. Lambert, 341 N.C. at 42,460 S.E.2d at 127; State v. Stone, 323 N.C. 447, 451-52, 373 S.E.2d 430, 433 (1988). "Contradictions and discrepancies must be resolved in favor of the State," State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984), and the trial court is not to consider defendant's evidence rebutting the inference of guilt "except to the extent that it explains, clarifies or is not inconsistent with the State's evidence...." State v. Walker, 332 N.C. 520, 530, 422 S.E.2d 716, 722 (1992). Thus, the evidence need only give rise to a reasonable inference of guilt for the case to be properly submitted to the jury. Here, we conclude that when viewed in the light most favorable to the State, substantial evidence of first-degree murder was presented to sustain defendant's conviction.

Defendant relies heavily on State v. Bell, 65 N.C.App. 234, 309 S.E.2d 464 (1983), aff'd per curiam, 311 N.C. 299, 316 S.E.2d 72 (1984)

to support the argument that there was insufficient evidence to show that he committed the crime charged. In Bell, the defendant was convicted of second-degree murder. We held that the evidence, when taken in the light most favorable to the State, at most showed that the defendant had a non-exclusive opportunity to kill the victim, and that standing alone was insufficient to survive a motion to dismiss. Id. at 241, 309 S.E.2d at 469. In Bell, "[t]he only substantial evidence linking defendant to the crime consisted of the victim's keys which were found in the defendant's pockets." Id. Here there is more evidence.

Defendant's statements, both to the police and at trial, place him at the store on the morning of the murder. Defendant initially denied being present at the store on the morning the murder took place. When defendant eventually admitted to being in the store that morning, he related a story that a reasonable juror could infer was designed to explain the presence of his fingerprints at the crime scene. Although defendant contends that he happened upon the victim after the fatal head wound was inflicted, this argument is premised upon the possibility that another person struck the fatal blows just prior to defendant's arrival at the store. The forensic pathologist,...