State v. Morgan

• Decision Date: 18 May 2004
• Docket Number: No. COA03-849.,COA03-849.
• Citation: 164 NC App. 298,595 S.E.2d 804
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Denise Khadijah MORGAN.

595 S.E.2d 804

164 NC App. 298

STATE of North Carolina v. Denise Khadijah MORGAN.

No. COA03-849.

Court of Appeals of North Carolina.

May 18, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Tina Lloyd Hlabse, for the State.

Haral E. Carlin, Fayetteville, for defendant appellant.

WYNN, Judge.

Denise Khadijah Morgan, Defendant, appeals from judgment of the trial court entered upon her conviction for assault with a deadly weapon inflicting serious injury. Defendant contends the trial court erred by (I) denying her motion for a mistrial; (II) denying her motion to dismiss; (III) sentencing her at a prior record level IV; and (IV) denying her motion to suppress evidence. For the reasons stated herein, we find the trial court erred in sentencing Defendant based on insufficient evidence of her prior convictions. We otherwise find no error by the trial court.

The evidence presented by the State at trial tended to show the following: On 16 April 2002, Charles Maddox visited his friend, Frances Watson, at her residence. Defendant was also present. Maddox and Defendant once resided together, but their relationship ended more than a year before the date in question. Maddox testified Defendant "got angry because I wouldn't talk to her, and she saw me talking to some other girls, and one thing led to another and she just got angrier and angrier." Maddox stated he was leaving Watson's residence when "I heard [Defendant] behind me, and I turned around. I saw her coming at me" with "knives and forks, barbecue forks[;]" she "started stabbing at me," stating, "I'll kill you, m.f., I got you now." Defendant stabbed Maddox in the eye, and he ran to the bathroom. Maddox testified "I thought I was blind. I thought my eye was out." Defendant kicked the bathroom door open and continued to attack Maddox. Maddox fled the residence, and was later treated for his injuries at a hospital. Maddox's treating physician testified he sustained multiple lacerations to his forearm, several small stab wounds to his leg, a deep laceration to his thumb, bruising to his back, and a puncture wound to his right orbital rim, which caused fracture of the bone. Maddox was referred to medical specialists to treat the injuries to his eye and thumb. Detective Ocee D. Horton, Jr., of the Wilmington Police Department testified he visited Maddox at the hospital and took his statement. Detective Horton then read to the jury from Maddox's statement as follows:

The victim stated he had stopped by Frances' apartment—and that would be Frances Watson—at approximately 12:00 a.m., to drop off some cigarettes, food and a few dollars to Frances. The victim stated that Frances let him into her apartment and that [Defendant] was there. The victim stated that [Defendant] started yelling and cursing at him. The victim stated that [Defendant] yelled that she hated him and that she would kill him. The victim stated that [Defendant] said she had already killed someone and that she could kill him, also.

Counsel for Defendant objected, and the trial court then instructed the jury as follows:

Ladies and gentlemen, let me say to you that any reference that was made to any prior criminal activity on the part of the defendant is not appropriate, and you should completely and totally disregard it. If you cannot do that, then I want you to raise your hand at this time. All right, let the record reflect that no one raised his or her hand.

The trial court denied Defendant's subsequent motion for a mistrial.

Defendant testified in her own defense and denied attacking Maddox. Defendant stated she was lying on Watson's couch when Maddox approached her and "sprayed [her] face with roach spray." Defendant followed Maddox into the kitchen, where the two argued and "tassled." Maddox picked up several knives and forks. Defendant then threw a frying pan at Maddox, who ducked and slipped. From his position on the floor, Maddox cut Defendant several times on her legs. Defendant threw a heavy punch bowl at Maddox, striking him in the temple. The wound to his temple bled heavily, and Maddox retreated to the bathroom. When he emerged from the bathroom, Maddox picked up a knife and "chased [Defendant] out" of the residence. Defendant drove away in her vehicle.

Upon conclusion of the evidence, the jury found Defendant guilty of assault with a deadly weapon inflicting serious injury. At sentencing, the State contended that Defendant's prior convictions gave her a total of nine points for a prior record level IV. One of Defendant's convictions was a New Jersey conviction for homicide in the third degree. The State contended that this charge was equivalent to voluntary manslaughter under North Carolina law, and that it should be assessed as a Class F point value. Defendant disputed the State's position, arguing that it was an unintentional homicide and that Defendant was under level III. The trial court sentenced Defendant at level IV, with a minimum term of thirty-seven months and a maximum term of fifty-four months. Defendant appealed.

Defendant argues the trial court erred by (I) denying her motion for a mistrial; (II) denying her motion to dismiss; (III) sentencing her at a level IV; and (IV) denying her motion to suppress evidence. For the reasons stated herein, we hold the trial court erred in sentencing Defendant based on insufficient evidence of her prior convictions. We otherwise find no error by the trial court.

I. Motion for Mistrial

By her first assignment of error, Defendant contends the trial court erred in denying her motion for a mistrial after Detective Horton testified Defendant informed Maddox "she had already killed someone and that she could kill him also." Defendant argues the State elicited impermissible character evidence of Defendant's prior bad acts in an attempt to show she acted in conformity therewith during the present assault. Defendant contends the evidence substantially and irreparably prejudiced her, and that she is therefore entitled to a new trial.

Upon a motion by a defendant or with his concurrence,

the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.

N.C. Gen.Stat. § 15A-1061 (2003). The decision to grant a motion for a mistrial is within the sound discretion of the trial court. State v. Prevatte, 356 N.C. 178, 253-54, 570 S.E.2d 440, 482 (2002), cert. denied, 538 U.S. 986, 123 S.Ct. 1800, 155 L.Ed.2d 681 (2003). A mistrial should be declared only if there are serious improprieties making it impossible to reach a fair, impartial verdict. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 35-36 (1995), cert. denied, 517 U.S. 1110, 116 S.Ct. 1332, 134 L.Ed.2d 482 (1996). The trial court's decision of whether to grant a mistrial "is to be given great deference because the trial court is in the best position to determine whether the degree of influence on the jury was irreparable." State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264, 276 (1997), cert. denied, 523 U.S. 1142, 118 S.Ct. 1850, 140 L.Ed.2d 1099 (1998).

Although the statement by Detective Horton regarding possible crimes committed by Defendant was clearly inadmissible and should not have been elicited by the prosecutor, we do not conclude the trial court abused its discretion in denying her motion for mistrial. "When a court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured." State v. Walker, 319 N.C. 651, 655, 356 S.E.2d 344, 346 (1987). "Jurors are presumed to follow a trial court's instructions." McCarver, 341 N.C. at 384, 462 S.E.2d at 36. Here, the trial court immediately sustained Defendant's objection to the inadmissible evidence and gave a curative instruction by telling the jury to "completely and totally disregard" the objectionable statement. The trial court then asked the jury members to indicate whether they could not follow its instruction by raising their hands. The trial court indicated for the record that none of the jurors raised his or her hand. Under these circumstances, we must conclude the trial court did not abuse its discretion in denying Defendant's motion for a mistrial. See State v. McNeill, 349 N.C. 634, 648, 509 S.E.2d 415, 423 (1998) (holding that any potential prejudice was cured by the trial court's instruction to the jury not to consider the objectionable remark, and that the trial court did not err or abuse its discretion in denying the motion for a mistrial), cert. denied, 528 U.S. 838, 120 S.Ct. 102, 145 L.Ed.2d 87 (1999); State v. Pruitt, 301 N.C. 683, 687-88, 273 S.E.2d 264, 267-68 (1981) (holding the trial court did not err in denying the defendant's motion for a mistrial upon admission of evidence related to another crime where the trial court instructed the jury that the objectionable evidence had nothing to do with the case, that the jury should strike the evidence from their minds, and that any juror who could not do so should raise his hand, which no juror did). We reject this assignment of error.

II. Motion to Dismiss

By further assignment of error, Defendant contends the trial court erred in denying her motion to dismiss the charge of assault with a deadly weapon inflicting serious injury. Specifically, Defendant argues the State presented insufficient evidence that the alleged victim, Maddox, suffered serious injury. Defendant's argument is without merit.

"Upon a defendant's motion to dismiss, the court must consider whether the State has presented substantial evidence of each essential element of the crime charged." State v. Alexander, 152 N.C.App. 701, 705, 568 S.E.2d 317, 319 (2002). Substantial evidence is such "relevant evidence that a reasonable mind might accept as sufficient to support a...