State v. Borders

• Decision Date: 02 September 2014
• Docket Number: No. COA13–1208.,COA13–1208.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, Plaintiff v. Donald Eugene BORDERS, Defendant.

762 S.E.2d 490

STATE of North Carolina, Plaintiff

v.Donald Eugene BORDERS, Defendant.

No. COA13–1208.

Court of Appeals of North Carolina.

Sept. 2, 2014.

Appeal by defendant from judgments entered 29 January 2013 by Judge Richard D. Boner in Cleveland County Superior Court. Heard in the Court of Appeals 22 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., Chapel Hill, for defendant-appellant.

HUNTER, JR., ROBERT N., Judge.

Donald Eugene Borders (“Defendant”) appeals from a jury verdict finding him guilty of raping and murdering Margaret Tessneer (“Ms.Tessneer”). Defendant argues (i) that the trial court erred by admitting DNA evidence obtained by officers after effectuating an arrest based on an unrelated warrant at his domicile; (ii) that the trial court erred by denying his motion for a change of venue because pretrial publicity made it impossible to empanel an impartial jury; and (iii) that the trial court abused its discretion in allowing the admission of expert testimony that Ms. Tessneer died from asphyxiation because the testimony was unreliable and lacked a proper foundation. After careful review, we find no error in the trial court's judgments.

I. Facts & Procedural History

Defendant was indicted on 11 January 2010 for rape and felonious breaking and entering in File Nos. 09 CRS 057186 and 09 CRS 05187. Defendant was also indicted on 8 March 2010 for first-degree murder in File No. 10 CRS 00285. Defendant stood trial in Cleveland County Superior Court, beginning on 13 November 2012 and ending on 29 January 2013. The record and trial transcript below tended to show the following facts.

Immediately prior to Defendant's trial, the trial court held a suppression hearing concerning a DNA sample acquired from a cigarette used by Defendant, the facts surrounding which are discussed in Section III infra. After the hearing on Defendant's motion to suppress the DNA evidence, Defendant twice moved for a change of venue; neither request was granted. The jury was empaneled and the State called Amy Fredell (“Ms. Fredell”), a Service Division Supervisor with the Shelby Police Department, as its first witness.

A. Events of 20 September 2003

Ms. Fredell testified that on 20 September 2003, the Shelby Police Department received a 911 call requesting that an officer be dispatched to 1024 Railroad Avenue, where a death had occurred. Patrol Officer Victor Haynes (“Officer Haynes”) was dispatched to the residence, where Officer Haynes saw Ms. Tessneer, an elderly woman, lying on a bed in the home. Ms. Tessneer's feet were on the floor, she was clothed in a light-colored nightgown, her eyes were fixed, and her mouth was open. Officer Haynes observed false teeth next to her body on the bed. Officer Haynes did not find a pulse or observe her breathing. Officer Haynes stated that Ms. Tessneer felt cold. Officer Haynes cleared the residence and then went outside to ensure that emergency medical service personnel (“EMS”) came to the residence.

Louie Ledford (“Mr. Ledford”) of EMS arrived at the scene. Mr. Ledford entered with Officer Haynes, checked Ms. Tessneer's vital signs, and found that Ms. Tessneer had passed away. Officer Haynes surveyed the home and found two cement blocks stacked outside of Ms. Tessneer's bedroom window as well as some phone lines that had been cut on the same side of the house. Mr. Ledford testified Ms. Tessneer was not breathing when he arrived at her home. After taking Ms. Tessneer's pulse, Mr. Ledford told Officer Haynes that she was dead, closed her eyes with his gloved fingers, and covered her body with a sheet. Mr. Ledford described the body as “morbid,” having bruising on the wrists and arms, and stated that a pool of blood collected around Ms. Tessneer's body. Mr. Ledford did not notice any signs of struggle.

Ms. Tessneer's daughter, Libby Clark (“Ms. Clark”), testified that on 20 September 2003, Ms. Clark took her husband to the doctor's office, stopped by Hardee's to purchase a biscuit, and purchased another biscuit to take to her mother. Ms. Clark arrived at her mother's home at around 11 A.M. Ms. Clark stated that upon leaving her car, she noticed a cement block underneath her mother's bedroom window, which she thought was unusual. Ms. Clark then walked up the home's steps and through the unlocked screen door, which her mother usually kept locked. Ms. Clark then saw her mother laying on her bed. Ms. Clark ran to Ms. Tessneer's phone to dial 911, but found that the phone did not work. Ms. Clark tried another phone, which also did not work. Ms. Clark then ran to a neighbor's home, asking the woman inside to dial 911 and then went to her uncle's home, which was near Ms. Tessneer's residence.

Another of Ms. Tessneer's daughters, Peggy Sparks (“Ms. Sparks”), testified. Ms. Sparks spent her lunch break on 19 September 2003 with her mother. Ms. Sparks stated that her mother was “in good spirts,” that Ms. Tessneer was laughing and that Ms. Sparks enjoyed the visit. Ms. Sparks stated that her mother was not dating anyone at the time and showed no signs of injuries on 19 September 2003. Ms. Sparks described her mother's habit of locking both her screen door and main door at her home. Ms. Sparks stated that both doors were locked when she visited her mother on 19 September 2003 and that the screen door did not appear damaged.

Crime Scene Investigator Todd Vickery (“Investigator Vickery”) performed the crime scene walkthrough on 20 September 2003. Investigator Vickery observed that Ms. Tessneer's false teeth were lying next to her on the bed, that some pantyhose were also on the bed, and that some blood was on the bed's mattress pad. Investigator Vickery also noticed a small tear on the entry door to the screened-in front porch, near the door's latch. Investigator Vickery then dusted for fingerprints, took photographs, and began collecting physical items. Investigator Vickery stated that “[o]ther than the area around Ms. Tessneer, the house appeared to be neat and in order.”

Gaston Memorial Hospital pathologist Dr. Steven Tracy (“Dr. Tracy”) testified at trial as an expert in forensic pathology, over Defendant's objection. Dr. Tracy performed an autopsy of Ms. Tessneer on 22 September 2003. Dr. Tracy stated that Ms. Tessneer had bruising to her arms, legs, one of her feet, left shoulder, and abdomen. Dr. Tracy believed Ms. Tessneer's injuries occurred within twenty-four hours of her death. Ms. Tessneer also had hemorrhaging over the surface of her arms. Dr. Tracy noted that many elderly people have surface hemorrhages. Dr. Tracy stated that without knowing Ms. Tessneer, he did not know whether the hemorrhages were there before or after the bruising occurred. Ms. Tessneer's right forearm also contained an abrasion near her hemorrhages.

Dr. Tracy described a tear to the outer portion of Ms. Tessneer's panties and a small amount of blood on the panties. Dr. Tracy also stated that Ms. Tessneer had a small abrasion to her vagina.

Dr. Tracy also used an SBI sexual assault evidence collection kit (“sexual assault kit”) and took swabs from Ms. Tessneer's vagina, cheek, and rectum. In February 2004, the North Carolina State Bureau of Investigation Crime Laboratory (“SBI”) reported that its testing showed the presence of sperm on the vaginal swab taken from Ms. Tessneer's sexual assault kit. A DNA profile of the evidence was created from the vaginal swab, but no DNA match was made at that time.

Immediately after the autopsy, Dr. Tracy withheld his opinion as to the cause of death. Dr. Tracy stated that the bruises on the body did not in and of themselves account for Ms. Tessneer's death, and no other anatomical findings apparent at that point explained her cause of death. Dr. Tracy's autopsy report lists the cause of death as undetermined, but contained a discussion stating that Dr. Tracy was “considering suffocation.” Dr. Tracy stated that he waited for microscopic slides and a toxicology report to come back, and after ruling out “any other reasonable cause of death to a reasonable degree of medical certainty,” Dr. Tracy opined that Ms. Tessneer died of asphyxiation secondary to suffocation. Dr. Tracy stated that this may have occurred after Ms. Tessneer's mouth was covered with a soft object, “such as a pillow or cushion, a piece of clothing or a hand.” Dr. Tracy also testified that markings or injuries typically do not appear if the suffocation was effectuated by a soft object, and that injuries from suffocation are often very difficult to detect.

Dr. Tracy testified that police contacted him in 2009 and asked if he would consider changing his 2003 opinion about the cause of death. Dr. Tracy stated that the police did not suggest suffocation. Dr. Tracy also has not modified his written autopsy report to reflect suffocation. Dr. Tracy stated that he was willing to add an addendum to his report indicating that Ms. Tessneer died of asphyxiation, secondary to suffocation, but had not amended the autopsy report to reflect that view. Dr. Tracy stated that he always believed “to a reasonable degree of medical certainty that Ms. Tessneer died of asphyxiation.” Dr. Tracy became even more confident in this opinion after receiving information about the examination of the sexual assault kit and lack of other findings as to Ms. Tessneer's cause of death.

Dr. John D. Butts (“Dr. Butts”), a retired chief medical examiner for the State of North Carolina, testified at trial. Defendant did not object to Dr. Butts being tendered as an expert in the field of forensic pathology. Dr. Butts stated that he had consulted with Dr. Tracy in December 2003 and that the two had agreed the best designation for the cause and manner of Ms. Tessneer's death was “undetermined” because “the evidence was overwhelmingly [sic] that Ms. Tessneer's death was not the result of natural causes” but that there was not...