State v. Muhammad

• Decision Date: 16 October 2007
• Docket Number: No. COA06-1430.,COA06-1430.
• Citation: 651 S.E.2d 569
• Parties: STATE of North Carolina v. Kaher Maruf MUHAMMAD.
• Court: North Carolina Court of Appeals

651 S.E.2d 569

STATE of North Carolina v. Kaher Maruf MUHAMMAD.

No. COA06-1430.

Court of Appeals of North Carolina.

October 16, 2007.

Appeal by defendant from judgment entered 31 March 2006 by Judge John R. Jolly, Jr. in Martin County Superior Court. Heard in the Court of Appeals 20 August 2007.

Roy Cooper, Attorney General, by Diane A. Reeves, Special Deputy Attorney General, for the State.

Staples Hughes, Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for defendant-appellant.

MARTIN, Chief Judge.

Defendant appeals from a judgment entered upon a jury verdict finding him guilty of the first degree murder of Shelby Tripp Leggett. At trial, the evidence tended to show that defendant was a close friend of Amy Jo Nicholson and spent a great deal of time at her home. Amy Nicholson's teenage daughter, Rebecca Nicholson, and Rebecca's daughter also lived in Amy Nicholson's house. Defendant was very protective of Rebecca. Rebecca's boyfriend, and the father of her child, was Troy Edwards. Edwards had a criminal history and admittedly used crack cocaine.

On the night of 8 February 2005, Edwards' grandmother, Shelby Leggett, was driving Rebecca and Edwards to Amy Nicholson's house to leave the baby with Amy and pick up some clothes for Rebecca. When they arrived, defendant was outside drinking. He tried to get Rebecca to speak to him, but she would not. Rebecca got in the back of the car with Edwards, with Leggett driving. Defendant followed them in his car as they left.

Defendant made a series of twenty telephone calls to Rebecca's cell phone, which she was carrying. According to defendant's own testimony, he was enraged at the time and wanted to get Rebecca away from Edwards. In one call, defendant said "you need to F-ing call me back right now. Don't make me kill nobody, all right. Don't f[—]ing make me kill nobody. In a minute I'm going to go inside and shoot somebody. Call me." In another message, defendant said "I'm going to F-ing kill everybody in a minute. You need to answer the G D phone or call me back or do something. I'm going to get that bitch out in the ditch in a minute." While defendant was following the others in his car, he repeatedly came very close to Leggett's car. When they reached the intersection with Highway 125, defendant ran the stop sign, passed them, changed direction in the road, and made his tires screech, so that Leggett almost hit him. Then Leggett pulled to the side of the road, and defendant pulled up beside her car. He got out of his car holding a pistol. As he approached Leggett's window, he said "I don't have a problem with you yet." The pistol discharged within a foot or two of Leggett's face, and she was killed by the bullet. Defendant then drove back to Amy Nicholson's residence.

According to defendant's own testimony, he got out of his car with his gun in hand and walked toward Leggett's car. He wanted Rebecca to get out of the car and wanted Edwards to see the gun, which defendant thought was empty. Defendant testified that as he walked toward the driver's side window, he stumbled, caught himself by placing his hand on the car roof, and the gun fired.

The jury found defendant guilty of first degree murder on the basis of premeditation with deliberation and felony murder. Defendant appeals his conviction.

Defendant raises seven issues on appeal. He first contends the trial court erroneously denied his motion to dismiss under N.C.G.S. § 15A-954(a)(4), which requires dismissal of a claim when "[t]he defendant's constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant's preparation of his case that there is no remedy but to dismiss the prosecution." N.C. Gen.Stat. § 15A-954(a)(4) (2005). In his brief, defendant argues four allegedly flagrant violations causing irreparable prejudice: (1) that the prosecutor made statements about defendant's possible presence on the National Terrorist Watch List; (2) that the Clerk of Court refused to approve defendant's documentation of citizenship; (3) that the trial court revoked defendant's bail ex parte; and (4) that the trial court refused to determine the conditions of pre-trial release. Of these assertions, only the statements about the National Terror Watch List were raised in defendant's motion. "[W]here a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts." State v. Holliman, 155 N.C.App. 120, 123, 573 S.E.2d 682, 685 (2002) (internal quotation marks omitted). Since these specific grounds were not argued in defendant's motion to the trial court, they are not preserved for appellate review. See N.C. R.App. P. 10(b)(1) (2006).

As for defendant's argument that the prosecutor improperly made statements about defendant's possible presence on the National Terrorist Watch List, in violation of N.C.G.S. § 15A-954(a)(4), defendant fails to cite any dispositive authority in support of his contention. Defendant alleges that the prosecutor violated defendant's right to a fair trial, as embodied in State v. Jones, 355 N.C. 117, 132, 558 S.E.2d 97, 107 (2002), when the prosecutor explained to the trial judge during a pre-trial detention hearing that a name similar to the defendant's with defendant's date of birth appeared on the National Terrorist Watch List and the prosecutor's office followed up on the hit and determined it was not the defendant. However, Jones concerns the issue of prejudicial statements made to a jury during closing arguments, id.; hence, it is not determinative of the issue raised by defendant in this case. Defendant does not cite any other authority demonstrating a violation of defendant's constitutional rights; therefore, this assignment of error is overruled.

Defendant next contends that the trial court erroneously admitted evidence of his pre-trial exercise of his right to remain silent in violation of the Fifth Amendment to the U.S. Constitution. Defendant notes "a defendant's exercise of his constitutionally protected right [] to remain silent ... during interrogation may not be used against him at trial." State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994). Thus, defendant argues that the court's admission into evidence of a signed waiver of rights form indicating that defendant did not want to speak with police officers, as well as testimony about the circumstances of his exercising his Miranda rights, is constitutional error entitling him to a new trial. "[S]uch a constitutional error will not warrant a new trial where it was harmless beyond a reasonable doubt." Elmore, 337 N.C. at 792, 448 S.E.2d at 502. In the instant case, however, defendant did not object to the testimony or the introduction of the Miranda form; therefore, defendant must show plain error. "[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a `fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' ... ." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (alteration in original) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Assuming arguendo that the court erred in admitting the evidence that defendant exercised his right to remain silent, defendant has not shown that a fundamental error was committed or that the result of his trial would probably have been different had the error not occurred. The admitted evidence served to explain the context of statements that were made by defendant after he was advised of his rights. The State did not make any prejudicial comment implying or inviting assumptions from defendant's silence. Therefore, this assignment of error is overruled.

By his next argument, defendant contends the trial court erred in admitting irrelevant and inadmissible evidence about the victim's good character. Among the evidence that defendant identifies as inadmissible are: (1) testimony evidencing the victim's Christian faith; (2) a photograph of the victim when she was alive; and (3) the victim's bloody eyeglasses and other personal effects. Because defendant did not object to this evidence at trial, defendant must show plain error.

N.C.G.S. § 8C-1, Rule 401, defines evidence as "relevant" when it has "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 (2005). Generally, relevant evidence is admissible. N.C. Gen. Stat. § 8C-1, Rule 402 (2005). However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen.Stat. § 8C-1, Rule 403 (2005). "[E]ven though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal." State v. Wallace, 104 N.C.App. 498, 502, 410 S.E.2d 226, 228 (1991).

Defendant argues that "[e]vidence of the general good character of the deceased is incompetent and the admission of it constitutes prejudicial error." State v. King, 26 N.C.App. 86, 87, 214 S.E.2d 597, 597 (1975). Defendant fails to recognize that if evidence is introduced not to show the good character of the victim, but rather for another permissible purpose, then the evidence may be relevant and properly admitted. State v. Alford, 339 N.C. 562, 569, 453 S.E.2d 512, 515 (1995). In the present case, evidence that the victim's last words were "I'm not scared of you. I'm a...