State v. Metcalf

• Court: North Carolina Court of Appeals
• Writing for the Court: GRIFFIN, Judge.
• Citation: State v. Metcalf, 867 S.E.2d 243 (N.C. App. 2021)
• Decision Date: 16 November 2021
• Docket Number: No. COA 20-917,COA 20-917
• Parties: STATE of North Carolina v. Jessica Lea METCALF, Defendant.

867 S.E.2d 243

STATE of North Carolina

v.Jessica Lea METCALF, Defendant.

No. COA 20-917

Court of Appeals of North Carolina.

Filed November 16, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Thomas H. Moore, for the State.

Anne Bleyman, for Defendant-Appellant.

GRIFFIN, Judge.

¶ 1 Defendant Jessica Lea Metcalf appeals from a judgment entered upon a jury verdict finding her guilty of involuntary manslaughter of a three-year-old child, Archie.¹ On appeal, Defendant contends that the trial court erred by (1) denying Defendant's motion to strike the jury venire; (2) failing to grant Defendant's motion to dismiss for insufficient evidence; and (3) failing to dismiss the indictment due to insufficient notice. Upon review, we hold that Defendant received a fair trial, free from error.

I. Factual and Procedural History

¶ 2 In January 2015, Defendant cohabitated in a trailer home with her boyfriend, Brandon Rathbone, in Buncombe County. The trailer home had no running water because the well pump "froze and busted" in the cold. The trailer home also had no house telephone, and Defendant's cell phone had minimal service. Defendant stated that an electric heater was used to heat the trailer when it was cold, and that the trailer's wall would get hot when Defendant and Mr. Rathbone used the heater.

¶ 3 Archie was Mr. Rathbone's nephew. On or around 20 January 2015, Archie came to stay with Mr. Rathbone and Defendant for several days while Archie's mother was hospitalized to give birth to another child. Mr. Rathbone's parents, Wanda and Stephen Neil, lived nearby. Typically, Mr. or Mrs. Neil would pick up Archie between 8:30 and 9:30 a.m. to care for Archie while Mr. Rathbone was at work. Defendant had taken time off of work to watch Archie when Mrs. Neil, Mr. Neil, and Mr. Rathbone were unwilling to do so.

¶ 4 At approximately 7:00 p.m. on 27 January 2015, Defendant took four tablets of Xanax, although Defendant stated she was only allowed to take "up to three [tablets] a day." Defendant also stated she could not remember if she had gotten up in the middle of the night to take more Xanax. Between 6:00 and 6:15 a.m. on the following morning, Mr. Rathbone left home for work like he did every day. After Mr. Rathbone left for work, Defendant heard Archie moving around, checked on him, and noticed Archie had wet the bed, so she changed his pants.

¶ 5 At approximately 7:00 a.m., Defendant turned on the heater in the living room. After watching television for some time, Defendant went to the bathroom and "smoked about a half of a cigarette." Defendant stated that she would only smoke outside or in the bathroom. Upon returning to the living room, Defendant observed that sparks were coming from either the heater or the electric outlet and that the sparks were already burning holes in the couch cushions. The couch was already smoking from the sparks.

¶ 6 In an attempt to stop the burning, Defendant grabbed a blanket to smother the fire; however, the blanket caught fire and stuck to Defendant's hands and burned her. Defendant stated that she did not immediately get Archie out of the trailer home because she believed that she could put out the fire. Defendant stated she went to the front door and yelled for help. Defendant then went to the kitchen to look for water to extinguish the fire, but there was no running water in the mobile home. Defendant stated that "usually they keep several gallons [of water] in the kitchen area, but they were empty." After finding a bleach jug on the dryer, Defendant returned to the front door to call for help again. Mr. Rathbone stated there were two fire extinguishers under the kitchen counter. Defendant "tried to use the fire extinguisher but it didn't work [because] [s]he squeezed the trigger, but she didn't pull the pin out."

¶ 7 Defendant stated a neighbor, Tammy Peek, arrived at the burning structure and escorted Defendant down a hall and out of the back door of the trailer home. Ms. Peek claims this occurred around 8:20 a.m. Ms. Peek, however, stated that Defendant was already standing in the yard outside of the burning trailer home when Ms. Peek arrived at the scene, and that Ms. Peek never entered the trailer home. Furthermore, Defendant claimed that she repeatedly mentioned her purse and Archie to Ms. Peek as they exited the trailer home together, but Defendant could not remember if she was speaking out loud or only thinking about the purse and Archie in her head. Conversely, Ms. Peek stated that she asked Defendant if anyone else was in the home, and Defendant said no, that "her children ... were with their father[.]" Ms. Peek stated Defendant was asked "numerous times ... [on] [a]t least four or five" occasions if anyone was in the trailer, and that Defendant replied "there's no one in the home."

¶ 8 Defendant stated that she could have gotten Archie out of the trailer home when she exited, but Defendant did not get Archie out because "she thought she could put the fire out."

¶ 9 Ms. Peek ran back to her house approximately 130 to 150 feet away from the burning trailer home, woke her sleeping boyfriend Billy Boyd, and called 911 with her cell phone. After placing the 911 call, Ms. Peek and Mr. Boyd returned to the burning trailer home where Defendant remained standing in the front yard. Again, Ms. Peek and Mr. Boyd asked Defendant if there was anyone else in the home. Even after being asked "multiple times" if there was anyone in the house, "[Defendant] consistently told [Ms. Peek and Mr. Boyd] no." Ms. Peek stated that Defendant asked for her cell phone and uniforms. Mr. Boyd observed that Defendant's face looked as though something "blew up" on it. Defendant then asked for a cigarette and when Ms. Peek gave her one, Defendant put it in her mouth backward, with the "tobacco part in, [and was] going to light the filter." Mr. Boyd then departed to inform Mr. Neil about the fire.

¶ 10 Mr. Neil and Mr. Boyd met outside the Neil home, and Mr. Boyd told Mr. Neil about the fire. Mrs. Neil informed Mr. Rathbone that his home was burning after Mr. Neil reported the incident. When Mr. Boyd asked Mr. Neil if there were any children in the trailer home, Mr. Neil answered that Archie was there. Mr. Neil then called 911 to inform emergency services that someone was inside the trailer home. Mr. Boyd and Mr. Neil departed the Neil home together to return to the burning trailer home. Mrs. Neil was unable to make it to the burning trailer home. Upon arriving at the trailer home, Mr. Neil asked Defendant where Archie was, and Defendant replied, "his daddy had him."

¶ 11 Shortly after the initial dispatch call, 911 communications dispatched firefighters from the Leceister Fire Department. Jeff Keever and Joshua Reeves were the initial firefighters on the scene. Keever stated he and Reeves were notified by dispatch while en route of a possible child entrapment in the trailer home. Keever estimated he arrived at the fire approximately three to four minutes after receiving the call. Upon arriving at the scene, Keever observed Defendant and Ms. Peek in the driveway, and the trailer presented "heavy smoke and heavy fire." Although Keever's focus upon arrival was on the entrapment, Keever asked for confirmation from Defendant. When asked if there was anybody still inside, Defendant stated that "[t]he kids are with their daddy." In response, Keever erroneously "notified all dispatch that there was no confirmed entrapment." Despite Defendant's misinformation, Keever stated that with their next help "about 15 minutes away" and "with that much involvement and that much smoke ... that there is a point of no return." Clarifying, Keever stated that "there wouldn't have been any life in there.... [W]e would have been risking our lives to go in there and try to save nothing."

¶ 12 During this time, Reeves attempted to get control of the fire and was interrupted by Mr. Neil, whom Reeves had to wrestle off the porch of the trailer home. According to Reeves, Mr. Neil was adamant that Archie was in the home. Reeves also stated at that time, "[t]here was no hope of going inside" and that "[Reeves] wouldn't have survived going into that room with [his] gear on much less letting [Mr. Neil] go inside without it." Christopher Brown, the Chief of Leicester Volunteer Fire Department, arrived and assumed command of the scene. Chief Brown reported that once the firefighting crews gained access to the structure, they located the deceased child on the bedroom floor of the trailer home.

¶ 13 Breena Williams, an arson investigator with the Asheville-Buncombe Arson Task Force at the time of the incident, obtained a search warrant for the trailer home and obtained approval to move Archie's body. Williams later observed Dr. Jerri McLemore perform an autopsy of Archie's body. Dr. McLemore observed extensive "thermal injuries or thermal changes of the outside of the body" and a carbon monoxide presence in Archie's blood in excess of sixty percent. Dr. McLemore noted that "going over 50 percent" is "basically lethal." Dr. McLemore then made a finding and diagnosis that the ultimate "cause of death was smoke and fume inhalation."

¶ 14 During initial trial proceedings, the trial court judge inadvertently mentioned that Defendant's attorneys were from the public defender's office. The trial judge briefly stated on a single instance, "Ms. McLendon is with the public defender's office also," in front of the jury, but never again made reference to defense counsel's office in front of the jury throughout the remaining proceedings. Defendant's counsel requested the trial court strike the entire jury venire. The trial court denied the motion, unless the parties could show any type of appellate decision showing the identification of public defenders as reversible error. Defendant moved to dismiss the charges against her for insufficient evidence at the close of the State's evidence and again at the close of Defendant's evidence. The trial court...