State v. Miles

• Decision Date: 21 August 2012
• Docket Number: No. COA11–1383.,COA11–1383.
• Citation: 730 S.E.2d 816
• Parties: STATE of North Carolina v. Keith Donnell MILES.
• Court: North Carolina Court of Appeals

730 S.E.2d 816

STATE of North Carolina

v.Keith Donnell MILES.

No. COA11–1383.

Court of Appeals of North Carolina.

Aug. 21, 2012.

Appeal by defendant from judgment entered 16 March 2011 by Judge Ronald E. Spivey in Wilkes County Superior Court. Heard in the Court of Appeals 24 May 2012.

Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.

M. Gordon Widenhouse, Jr., for defendant appellant.

McCULLOUGH, Judge.

On 16 March 2011, Keith Donnell Miles (“defendant”), was convicted of the first-degree murder of Jonathan Wayne Whitmore (“victim”) by a Wilkes County jury. The trial court sentenced defendant to life imprisonment without parole. Defendant now appeals. After a complete and careful review of the record, we find the trial court committed no error.

I. Facts and Procedural Background

On 14 September 2009, a Wilkes County grand jury returned an indictment charging defendant with the first-degree murder of the victim. This matter came to trial before a jury at the 7 March 2011 Special Session of the Superior Court for Wilkes County.

The relevant evidence produced at trial tended to show the following: The victim owned a business, Foothills Environmental (“Foothills”), which performed demolition and asbestos abatement. Around July 2007, Foothills hired defendant as its subcontractor to perform demolition work on a number of projects for North Carolina Central University (“NCCU”). At the time of the murder, Foothills had not yet completed the necessary paperwork for OSHA and NCCU had not yet remitted payment to Foothills for the work performed. As a result, the victim owed defendant approximately $41,000.00—$42,000.00 for his subcontracting work on these projects.

Defendant began contacting NCCU representatives demanding his payment around September–October 2007. In summer 2007, defendant began calling the victim's cellular and home phones demanding payment. Defendant visited the victim's home in late September 2007 and, two weeks before the victim's murder, a neighbor witnessed defendant again visit the victim. Between 20 September 2007 and 18 October 2007, defendant called the victim's home or cellular phone numbers at least 94 separate times, including 7 separate times on 16 October 2007, 11 separate times on 17 October 2007, and 7 separate times on 18 October 2007. After 18 October 2007, defendant never again contacted the victim or either of the NCCU agents demanding payment.

On 18 October 2007, the evening of the murder, the victim returned home from a job in Greensboro around 6:30 p.m. and picked up his daughters for dinner. Ms. Whitmore was not expecting her husband that night, but greeted her family at the door around 7:30 p.m. and retired to the living room with her daughters. The victim went outside and told his family that he would “be right back.” The victim had his work gear with him at his truck.

At some time after 7:30 p.m., Ms. Whitmore and her daughters heard a load “roaring sound” outside the window, which they described as a “roaring” of an engine. One of the victim's daughters looked out the window and witnessed “what looked like a big tour bus” with orange lights at the top and the bottom. She also described the vehicle as big and box-like, similar to a bus, U–Haul, or R.V. Defendant's wife owned an R.V. matching this description with similar amber lights, which defendant later sold in December 2007. When the R.V. was recovered in Georgia two years later, a section of carpet had been removed and replaced, a bleach stain was found near the driver's side couch, and a bloodstain not matching the victim's DNA was found.

After the vehicle drove by, Ms. Whitmore and her daughters noticed that the victim was not home. Ms. Whitmore noticed that the door was unlocked, the victim's work vehicle was still outside, and the victim's keys were on the picnic table outside. Around 8:00 p.m., Ms. Whitmore and her daughters began calling the victim, the victim's son, and family friends inquiring as to the victim's whereabouts. Ms. Whitmore also called defendant and left him voicemails. Defendant's cellular records indicated that he did not pick up Ms. Whitmore's calls, but listened to her voicemails almost immediately after she recorded them. While on the phone with her sister around 4:30 a.m., Ms. Whitmore received a call from defendant's number and an unidentified voice asked why she had been calling. Ms. Whitmore pleaded for defendant to return her husband, but the voice stated that defendant had been in the hospital all night.

The victim's neighbor, Dorothy Adams, discovered the body the morning of 19 October 2007, at approximately 7:15 a.m. The body was discovered approximately 100 feet from the rear of the Whitmores' home and 77 feet from the nearest light pole, positioned down a slope from the roadside and in an area of low shrubs near a dogwood tree. Mrs. Adams slept outside in her gazebo, about 150 feet away from where the body was found, from 10:00 p.m. to 4:00 a.m. and had not heard any loud or unusual sounds during that time.

The autopsy showed that the victim died of a single gunshot wound to the back of his head. The wound was located towards the middle of the victim's skull. Gunshot residue analysis revealed that the gun was not pressed against the victim's head, but was no more than one inch from it. The bullet that killed the victim could have been from a 9 millimeter, 10 millimeter, .38 millimeter, or possibly a .40 millimeter firearm, but not a .22 millimeter, .32 millimeter, or a .45 millimeter gun. The victim also had a scrape on his face and on the back of his right arm and a blood alcohol content of .11.

At trial, the medical examiner who performed the autopsy testified that based on the varying development of rigor mortis in each individual, the victim's actual time of death was difficult to pinpoint. A local medical examiner who filled out a written request for autopsy form but who did not perform the autopsy or testify at trial recorded the estimated time of death as somewhere between 8:00 p.m. and 9:00 p.m. The police discovered a .40 caliber shell casing at the scene. Detectives later searched the victim's truck and defendant's vehicles, but found no physical evidence connected to the crime. Police did not search the Whitmore home.

Detectives interviewed defendant on 19 October 2007, at approximately 3:00 p.m. and discovered that defendant had admitted himself to Duke Hospital at 4:26 a.m. on 19 October and again about ten hours later. Defendant first told detectives that he had worked in Raleigh until about 5:00 p.m. the day before, but later changed his statement and said that he was in Rocky Mount all evening and did not return home to Durham until 8:00 p.m. On the morning of the murder, defendant left the following voicemail on the victim's machine:

Jonathan, Jonathan this is Keith. I have been calling you. You know I have been calling. Now, I am going to get me a lawyer, but it ain't going to be to collect my money. And you will see me. You need to call me. You done pissed me the f- -k off. And g- -d- -nit, you need to f- - - - - g call me. Now, I am going to tell you, I don't give a f- -k about living. If you want to [live], you need to g- -d- -n pay me my m- - - - -f- - - - -g money. And this is Keith m- - - - -f- - - - -g Miles. And I swear to God, when I see you, you're going to know it. I mean that s- -t. M- - - - -f- - - -- r, you'd better call me. Do you hear me? You know, you had better check the g- -d- -n message. Ain't a d- -n thing you can do in this world to stop me from getting a hold of you. I done told you this s- -t, and I tried to g- -d- -n keep my patience with you but you want to play with me. M- - - - -f- - - -r, they going to pay you, you going to pay me. I don't give a f- -k. You're going to pay me.

On the afternoon of the murder at 3:23 p.m., defendant called Ms. Whitmore looking for the victim, and told her “that when [the victim] doesn't communicate we are going to have problems,” that defendant needed “to come up there” to “straighten this mess out,” that defendant was owed $42,000.00, and again that defendant was going to “come up there and get [the victim].”

At trial, the State called an FBI Special Agent who testified as to defendant's whereabouts on 18 October 2007, which were pinpointed by over 100 cellular phone calls. Defendant consistently utilized cellular phone towers in the Raleigh–Durham area in the morning and early afternoon, towers in the Durham area in the late afternoon, and between 4:00 p.m. and 7:00 p.m., towers indicating a progression westbound. Beginning at 7:23 p.m., defendant utilized one of the three cellular towers in the Wilkesboro area, thus placing him in the vicinity of the victim's home and scene of the murder. Defendant made a four-second call to the victim's work phone at 7:23 p.m. through a Wilkesboro tower. Following that call was a 12–minute gap. Beginning again at 7:35 p.m. and through 7:46 p.m. defendant made a series of calls to his wife, family members, and a friend, first utilizing towers in the Wilkesboro area, then towers indicating a progression east. Beginning at 7:46 p.m. and through 7:55 p.m., defendant used towers crossing the Wilkes County line. Defendant made 22 subsequent calls from 8:00 p.m. to 11:00 p.m. which indicated defendant was progressing eastward through Winston–Salem, Greensboro, and finally to Durham.

The State presented the testimony of Alfreddie Roberson, a friend of defendant's since 2000. In 2009, Roberson entered into a plea agreement with federal prosecutors to provide truthful information regarding this case in return for immunity and a sentence reduction. Roberson testified he knew that the victim owed defendant and that defendant had called and visited the victim. Additionally, Roberson testified defendant explicitly stated he was going to drive to the victim's house in his R.V. and kill the victim if he did not receive...