State v. Brown
| Decision Date | 07 April 2020 |
| Docket Number | No. COA19-499,COA19-499 |
| Citation | 839 S.E.2d 874 (Table) |
| Parties | STATE of North Carolina v. Darne Nicholas BROWN, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney Generals Nicholaos Vlahos and Benjamin O. Zellinger, for the State.
Kimberly P. Hoppin for defendant-appellant.
Darne Nicholas Brown ("Defendant") was found guilty of first-degree murder, murder of an unborn child, and possession of a firearm by a felon. Defendant appeals, arguing the trial court erred when it (1) denied Defendant's motion to sever the charge of possession of a firearm by a felon, (2) admitted a prejudicial photo into evidence, (3) denied Defendant's motion to dismiss the murder charges for insufficient evidence, and (4) failed to instruct the jury on second-degree murder. We find no error.
Defendant and the seventeen-year-old victim, Hawa Gabbidon ("Hawa"), had an on-again-off-again relationship. On June 22, 2012, Hawa found out that she was pregnant, and attempted to contact Defendant. After repeated attempts to contact Defendant, he eventually agreed to meet Hawa on July 9, 2012, to discuss the pregnancy. At that time, Defendant had a new girlfriend.
Hawa had taken a bus to meet Defendant. Around 9:30 p.m., Hawa entered a sweepstakes location to charge her phone. While inside, she used the sweepstakes landline to make a call. An employee heard Hawa say, "I don't want to be walking around this ghetto ass neighborhood." The State introduced into evidence a text message from 9:24 p.m. that evening in which Defendant stated to Hawa, Hawa left the sweepstakes sometime after 9:35 p.m.
That same night, Ricky Williams ("Williams") saw Defendant walking by Williams' home dressed in dark clothing. Williams recognized Defendant, who was dressed in black and was attempting to conceal a .22 rifle. Williams asked Defendant where he was going, and Defendant replied, "I'm going to take care of some business." Williams and Defendant had a brief conversation, and Defendant walked in the direction of Elder Park.
Later that night, Dorian McCarter ("McCarter"), Timothy Frazier ("Frazier"), and Kitwon Ellis ("Ellis") were walking through Elder Park to meet some people when they discovered Hawa's body. Frazier called 911. McCarter testified that he witnessed Frazier "rummaging around" the body. The police arrived about five to ten minutes later.
Officers located a purse, a blue bag, some dresses, underwear, lingerie, makeup, deodorant, a phone cord, a key, a closed wallet, paperwork, and a pregnancy test around Hawa's body. The police also recovered a do-rag, t-shirt, bicycle, receipt, and backpack. No cell phones or weapons were located at the scene of the crime.
An autopsy report indicated that Hawa had three gunshot wounds to her head. All three entry wounds demonstrated that the shots took place at close range. The medical examiner recovered three .22 caliber projectiles from Hawa's head. The autopsy also revealed that Hawa was about five weeks pregnant at the time of her death.
At trial, Defendant did not testify but presented evidence that on July 19, 2012, a search warrant of Frazier's home was executed. Law enforcement recovered a Stevens .22 Long Rifle in the attic and ammunition from a nightstand. The State introduced rebuttal evidence from a firearms examiner. The examiner testified that the rifle recovered from Frazier's home had been tested, and the projectiles recovered from Hawa's body were not fired from Frazier's weapon.
Defendant was charged with first-degree murder, murder of an unborn child, and possession of a firearm by a felon. Defendant was tried non-capitally by a jury. The jury found Defendant guilty on each charge, and he received two consecutive sentences of life in prison without parole, and a concurrent sentence of 17 to 30 months in prison for possession of a firearm by a felon. Defendant appeals.
Defendant argues the trial court erred when it denied Defendant's pre-trial motion to sever the charge of possession of a firearm by a felon and granted the State's motion for joinder. We disagree.
A trial court's ruling on questions of joinder "is discretionary and will not be disturbed absent a showing of abuse of discretion." State v. Carson , 320 N.C. 328, 335, 357 S.E.2d 662, 666-67 (1987). A trial court will only be reversed for abuse of discretion "upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." Id. at 335, 357 S.E.2d at 667.
"A defendant's motion for severance of offenses must be made before trial." N.C. Gen. Stat. § 15A-927(a)(1) (2019). N.C. Gen. Stat. § 15A-927(a)(2) (2019). Thus, a defendant's failure to renew a motion to sever at the close of all evidence will waive any right to have claims severed and limit our review to whether the trial court abused its discretion in ordering joinder at the time of the trial court's decision to join. State v. Agubata , 92 N.C. App. 651, 661, 375 S.E.2d 702, 708 (1989).
Here, the State filed a pre-trial motion to join the offenses for trial. Defendant filed a pre-trial motion to sever, which the trial court denied. Defendant objected to the trial court's denial of his motion to sever but failed to renew his motion before or at the close of all the evidence. Thus, Defendant has waived any right to severance, and we must determine whether the trial court abused its discretion when it joined the offenses for trial.
"Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan." N.C. Gen. Stat. § 15A-926(a) (2019). A two-part analysis is utilized in ruling upon a motion for joinder: "(1) a determination of whether the offenses have a transactional connection and (2) if there is a connection, a consideration of whether the accused can receive a fair hearing on the consolidated offenses at trial." State v. Jenrette , 236 N.C. App. 616, 621, 763 S.E.2d 404, 408 (2014) (citations and quotation marks omitted).
In the present case, Defendant does not challenge the transactional connection between the two charges, but argues that joinder unfairly bolstered the State's case with otherwise inadmissible evidence that Defendant "was an unsavory convicted felon who might have the propensity for criminal behavior in general." However, this Court has routinely held that there is no "inherent prejudice in joining a charge of firearm possession by a felon with another charge ... [that] includes the element of a dangerous weapon" even though joinder permits the State to "introduce evidence which would ordinarily not be admissible, i.e. , that defendant had a prior felony conviction." State v. Cromartie , 177 N.C. App. 73, 78, 627 S.E.2d 677, 681 (2006).
Moreover, a defendant will not be found to have been prejudiced by the joinder of charges when joinder does "not unjustly or prejudicially hinder defendant's ability to defend himself or to receive a fair hearing[,] ... the evidence was not complicated and the trial court's instruction to the jury clearly separated the two offenses." Id. at 78, 627 S.E.2d at 681. Here, the evidence was not complicated. Defendant received a fair trial, and he was not deprived of his ability to defend the charges. In addition, the record reveals that the trial court clearly separated the offenses in its instructions to the jury. We conclude that the trial court did not abuse its discretion in granting the State's motion for joinder.
Defendant also argues the trial court erred when it admitted into evidence a photograph from Defendant's cell phone of him holding a rifle. The rifle depicted in the photograph was similar to the one he had on the night Hawa was murdered. Defendant specifically contends it was irrelevant under Rule 402 of the Rules of Evidence, and any probative value was substantially outweighed by the danger of unfair prejudice pursuant to Rule 403. We disagree.
"Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2019) (quotation marks omitted). With some exceptions, "[a]ll relevant evidence is admissible" and "[e]vidence which is not relevant is not admissible." N.C. Gen. Stat. § 8C-1, Rule 402 (2019). "Although the trial court's rulings on relevancy technically are not discretionary ..., such rulings are given great deference on appeal." State v. Stewart , 231 N.C. App. 134, 139, 750 S.E.2d 875, 878 (2013) (citation and quotation marks omitted).
State v. Mlo , 335 N.C. 353, 376, 440 S.E.2d 98, 109 (1994).
Defendant argues that the photo was inadmissible, relying on State v. Samuel , 203 N.C. App. 610, 693 S.E.2d 662 (2010) and State v. Patterson , 59 N.C. App. 650, 297 S.E.2d 628 (1982). Specifically, Defendant contends the weapon depicted in the photo was not linked to him and was not utilized in the crime.
Here, however, the photograph was relevant to show Defendant had a rifle in his possession which resembled the rifle Williams observed Defendant carrying the night...
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