State v. Clark

• Decision Date: 20 June 2000
• Docket Number: No. COA99-646.,COA99-646.
• Citation: 531 S.E.2d 482,138 NC App. 392
• Parties: STATE of North Carolina v. Elizabeth Magdelene CLARK, a/k/a, Robin Gosnell.
• Court: North Carolina Court of Appeals

531 S.E.2d 482

138 NC App. 392

STATE of North Carolina v. Elizabeth Magdelene CLARK, a/k/a, Robin Gosnell.

No. COA99-646.

Court of Appeals of North Carolina.

June 20, 2000.

Attorney General Michael F. Easley, by Special Deputy Attorney General Robert J. Blum, for the State.

Nancy R. Gaines, Salisbury, for defendant-appellant.

WALKER, Judge.

Defendant was convicted of first degree murder upon perpetration of a felony, i.e. felonious child abuse, and was sentenced to life imprisonment without parole. The State's evidence tended to show the following:

The victim, Budde Lee Clark, born on 27 November 1990, was the son of Warren LeGrande Clark, a/k/a Lee Clark, and Pam Bradshaw, who were not married. In April 1994, Lee Clark married the defendant, Elizabeth Magdelene Clark, a/k/a Robin Gosnell. Lee Clark, the defendant, and her two sons from a previous marriage, Christian Pittman and Sammy Bringle, lived together. Lee Clark obtained custody of Budde in March 1995, and Budde lived in their home from then until the time of his death on 31 January 1997.

Lee Clark testified that during this time he occasionally saw Budde with injuries to his nose, arm, foot, face and backside. Clark testified that defendant always had an explanation as to how the injuries occurred. Further, Clark testified that the day before the victim died, he observed defendant whipping Budde with a belt and he took the belt away from her. However, the defendant retrieved the belt and hit Budde several more times. Clark then saw red marks and bruises on Budde's legs.

The following morning, 31 January 1997, as Clark was leaving for work, he noticed a bruise on Budde's forehead that was not there the night before. Around 9 a.m., Clark called the defendant and asked her what happened to Budde's head. She explained that Budde had been injured while "playing Power Rangers."

Later that day, Budde was found in the bathtub lying on his side in approximately eight inches of water. Defendant's son, Sammy Bringle, found Budde, lifted him out of the tub, and called for his mother. Defendant attempted CPR and Sammy called 911. Emergency Medical Services was unable to revive Budde and he was pronounced dead on arrival at the Rowan Regional Medical Center. Clark further testified that he saw Budde's body at the hospital and saw "big bruises on his head," and that some of the bruises were not there when he left for work that morning.

Dr. Karen Chancellor, associate chief medical examiner for North Carolina, performed the autopsy and testified that a "blunt force injury of the head" was the cause of death. Dr. Chancellor identified approximately thirteen discrete injuries to the head, but could not identify which blow or blows to the head would have been fatal. She testified there were numerous injuries present on every part of his body, as well as evidence of blunt force trauma to the head, back, chest, arms, and legs. Also, there was evidence of two healing rib fractures. She also testified that Budde's injuries were consistent with battered child syndrome. Dr. Chancellor used autopsy photographs and slides to illustrate her testimony. Some of the slides were projected onto a screen for the jury to view.

Pam Bradshaw testified that prior to living with defendant, Budde was a very outgoing and rambunctious child, but that she had not observed him jumping off bunk beds or injuring his head jumping off furniture. She also testified that Budde was more quiet and timid after he began living with defendant and Lee Clark.

Dr. Marcia Herman-Giddens, an expert in the investigation and analysis of the circumstances of child fatalities, testified that a month before Lee Clark and defendant obtained custody of Budde, he was in the 75th percentile on a children's growth chart, and at the time of his death he had dropped to the 5th percentile. Her examination of the autopsy report revealed "muscle wasting," whereby a child suffers from malnutrition to the point where his muscle tissue begins to deteriorate. Dr. Herman-Giddens further testified that Budde evidenced a "failure to thrive," which is common in abusive and neglectful situations.

Phyllis Reep, a registered nurse, observed Budde's body in the emergency room. She testified there were numerous bruises and abrasions on his head and body and a large raised bluish hematoma near the center of his forehead. Photographs taken of Budde in the emergency room were used by Ms. Reep to illustrate her testimony.

Lisa Grass, the defendant's sister-in-law, testified how the defendant treated Budde. She stated that the defendant "talked hateful" to Budde "most of the time." Jaime Pittman, the defendant's daughter-in-law, also testified about defendant's treatment of Budde. Ms. Pittman lived with defendant and Lee Clark for a period of time and witnessed the defendant striking Budde with her hands and fist and kicking him. Additionally, she observed bruises on Budde and his being punished frequently by defendant. In her opinion, the reason he was treated so harshly was because he was not the defendant's biological son. Ms. Pittman also testified that she contacted the Department of Social Services about this, but that she did not personally intervene when the defendant was hitting Budde out of her fear of the defendant.

The defendant testified that Budde was a very active and rambunctious child who often injured himself while playing. She related how Budde would occasionally injure his head by "flipping" off of the bunk beds and that all of the bruises on his body were the result of accidents. She admitted that she spanked Budde with a belt, but that she did not spank him on the night prior to his death. Further, on the day of Budde's death, she ran water for him to take a bath and then went to use the phone and check her phone messages. She stated she was not in the bathroom when Budde got in the tub. When her son Sammy came and told her that something was wrong with Budde, she ran to the bathroom and discovered Budde's body laying beside the bathtub. While Sammy called 911, she attempted to clear his air passages since she thought Budde had drowned. Defendant denied hurting or injuring Budde in any way that would have caused his death. Prior to his bath that morning, Budde acted like he did not feel well.

Christian Pittman, defendant's son, testified that Budde was very rambunctious and suffered bruises from climbing on bunk beds and jumping on a trampoline. Pittman testified he never observed defendant slap Budde's head or kick him, but that she did spank Budde for breaking her rules.

Defendant first argues the State erred when it failed to correct false witness testimony offered by Dr. Chancellor when it contrasted with her written autopsy report. Dr. Chancellor's autopsy report stated there was "no evidence of uncal, cingulate or tonsillar herniation." However, defendant claims Dr. Chancellor's testimony described the victim's cause of death as "tonsillar herniation," although she never used the term in her testimony.

A prosecutor's presentation of known false evidence, allowed to go uncorrected, is a violation of a defendant's right to due process. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217, 1221-22 (1959); State v. Williams, 341 N.C. 1, 16, 459 S.E.2d 208, 217 (1995). The State has a duty to correct any false evidence which in any reasonable likelihood could affect the jury's decision. Id. However, if the evidence is inconsistent or contradictory, rather than a knowing falsehood, such contradictions in the State's evidence are for the jury to consider and resolve. State v. Edwards, 89 N.C.App. 529, 531, 366 S.E.2d 520, 522 (1988); State v. Joyce, 104 N.C.App. 558, 565, 410 S.E.2d 516, 520 (1991), cert. denied, 331 N.C. 120, 414 S.E.2d 764 (1992).

Dr. Chancellor testified that the cause of Budde's death was blunt force injury of the head. She described the specific mechanism of death, although she did not use the same terms as contained in her autopsy report's finding of no "tonsillar herniation." Defendant did not object to or move to strike this testimony. Any contradiction in her testimony and her autopsy report was to be considered and resolved by the jury and this argument is without merit. Next, defendant argues the trial court erred in failing to conduct an inquiry into Juror # 7's possible contact with a member of the victim's family. During the morning recess after Pam Bradshaw's testimony, the following exchange took place outside the presence of the other jurors:

THE COURT: Bill. Rick. Nancy [first names of counsel for State and defendant]. This is Mr. Childers?

JUROR # 7: Yes, sir.

THE COURT: If you'll speak up so she can get it.

JUROR # 7: Okay. I just found out that I go to church with [Pam Bradshaw's] uncle and I didn't know if that was—

THE COURT: Thanks for telling me. But that doesn't disqualify you.

JUROR # 7: Okay.

THE COURT: Thanks for letting us know.

JUROR # 7: All right. I just didn't want—

THE COURT: I appreciate it.

JUROR # 7:—you to find out later.

THE COURT: That's right. No problem. Thank you, sir.

JUROR # 7: Yes, sir.

The trial court did not conduct any further inquiry. Previously during the jury voir dire, Juror # 7 stated that he attended high school with Pam Bradshaw 12 years earlier.

Whether alleged misconduct has affected the impartiality of a particular juror is a discretionary determination for the trial court. See State v. Rutherford, 70 N.C.App. 674, 677, 320 S.E.2d 916, 919 (1984), disc. review denied, 313 N.C. 335, 327 S.E.2d 897 (1985). Misconduct must be determined by the facts and circumstances of each case. Id. The trial court has the responsibility to make such investigations as may be appropriate, including examination of jurors when warranted, to determine whether misconduct has occurred and, if so, whether such conduct has resulted in prejudice to the defendant. See State v. Williams, 330 N.C. 579, 583, 411 S.E.2d 814, 817 ...