State v. Munn
| Decision Date | 01 May 2012 |
| Docket Number | No. COA11–1202.,COA11–1202. |
| Citation | 725 S.E.2d 474 |
| Parties | STATE of North Carolina v. Latrail Cinquince MUNN. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered 20 May 2011 by Judge Jack W. Jenkins in Onslow County Superior Court. [R72] Heard in the Court of Appeals 21 March 2012.
Attorney General Roy Cooper, by Assistant Attorney General Susannah P. Holloway, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and Kirby H. Smith, III, for Defendant–Appellant.
Defendant Latrail Cinquince Munn appeals from a judgment sentencing him to thirteen to sixteen months imprisonment based upon his conviction for possession of a firearm by a convicted felon. [R72] On appeal, Defendant contends that the trial court erred by (1) admitting evidence tending to show that the firearm Defendant allegedly possessed was utilized in connection with the murder of William Palmer; (2) denying his motion to dismiss; and (3) instructing the jury concerning the doctrine of constructive possession. [DBi] After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant received a fair trial that was free from prejudicial error and is not entitled to relief from the trial court's judgment on appeal.
In January of 2008, Bertram Kirton reported to the Jacksonville Police Department that a Ruger .44 magnum handgun was missing from his home, which was located in the Cardinal Village neighborhood. [TI 39–45; 53 ln 7–8] A report maintained by the Jacksonville Police Department described the missing firearm as a “black-in-color Ruger ... Red Hawk ... [with a] seven-inch barrel.” [T55 ln 5–11] At the time that the handgun disappeared, Mr. Kirton's daughter, Michelle Kirton, was living in the family home and dating Lawrence Dowsing. [T46 ln 7–18]
On 1 March 2008, officers of the Jacksonville Police Department found the body of William Palmer inside a truck while responding to a call from the Cardinal Village neighborhood.1[T62–63; T68 ln 9–23; 69–70; 115 ln 12–18] Mr. Palmer had sustained “[a] very traumatic entrance wound caused by a firearm, or projectile, with a great deal of velocity and power,” to his chest. [T79 ln 2–3] Investigating officers observed a hole in the driver's side arm rest in Mr. Palmer's truck and recovered a projectile from the driver's side door of that vehicle. [T75–76] The projectile recovered from Mr. Palmer's truck had been fired from a .44 magnum firearm, with “[t]he most probable weapon [being] a Ruger Red Hawk.” [T125 ln 8–17]
Detective David Kaderbek of the Jacksonville Police Department determined that a call had been made to Mr. Palmer's cellular telephone at 12:07 a.m. on 1 March 2008 from a phone number registered to Mr. Dowsing. [T112–14; T 123 ln 16–18] In addition, Detective Kaderbek ascertained that, shortly after receiving the call from Mr. Dowsing, Mr. Palmer called a telephone number registered to Michelle Kirton. [T124 ln 4–8] As a result of his efforts to follow up on this information, Detective Kaderbek learned about Mr. Kirton's missing firearm report. [T124 ln 14–17]
Officers of the Jacksonville Police Department eventually learned that Mr. Dowsing and Defendant had attempted to sell a large caliber handgun to Willie Anderson. According to Mr. Anderson, Defendant and Mr. Dowsing had come to his house on 28 February 2008 and tried to sell him a .44 caliber revolver. [T196] In addition, Mr. Anderson had seen Defendant in possession of the handgun on 1 March 2008. [T209] Mr. Anderson stated that the photograph of a .44 caliber Ruger Red Hawk firearm shown to him at Defendant's trial looked like the handgun that he had seen on 28 February 2008 and 1 March 2008. [TI 128 ln 17–22; TII 208–9; R14 StEx 56] Mr. Anderson was willing to attempt to purchase the handgun from Defendant and Mr. Dowsing at investigating officers' request. [T127 ln 1–10; T190 ln 4–5]
On 4 March 2008, investigating officers fitted Mr. Anderson with a recording device and provided him with money to use in purchasing the handgun from Defendant. [TII 203 ln 11–20] After Defendant told Mr. Anderson that he had given the handgun back to Mr. Dowsing, Mr. Anderson asked Defendant to retrieve the handgun and indicated that he would check back with Defendant at a later time. [T202 ln 15–16; 204 ln 20–23; 205 ln 13–16; 205 ln 20–23] At their subsequent meeting, Defendant gave Mr. Anderson a bullet, which Mr. Anderson turned over to investigating officers. [T206 ln 18–20; 207 ln 8–16] The bullet was an unfired “Winchester caliber .44 Remington magnum cartridge.” [T162–64; 163 ln 1] The handgun that Defendant allegedly possessed was never recovered. [TI 127 ln 11–12]
On 6 March 2008, a warrant for arrest was issued charging Defendant with possession of a firearm by a felon. [R3] On 8 September 2009, the Onslow County grand jury returned a bill of indictment charging Defendant with possession of a firearm by a convicted felon. [R5] On 13 May 2011, Defendant filed a motion in limine in which he sought the entry of an order precluding the admission of any evidence concerning the murder of Mr. Palmer. [R7]
The charge against Defendant came on for trial before the trial court and a jury at the 16 May 2011 criminal session of the Onslow County Superior Court. [TI 1] Prior to trial, the trial court denied “[D]efendant's general motion to suppress evidence related to the murder in [Mr. Dowsing's] case, with the caveat that ... as [the trial] proceed[s] and as particular items of evidence are offered, the court will reserve the right to consider that further.” [T32 ln 1–6] On 20 May 2011, the jury returned a verdict finding Defendant guilty as charged. [R69] At the ensuing sentencing hearing, the trial court determined that Defendant should be sentenced as a Level III offender [R70] and entered a judgment providing that Defendant should be imprisoned for thirteen to sixteen months. [R72] Defendant noted an appeal to this Court from the trial court's judgment. [TII 320 ln 10–21]
In his first challenge to the trial court's judgment, Defendant contends that the trial court erred by refusing to preclude the State from eliciting evidence concerning Mr. Palmer's murder. [DB9] More specifically, Defendant argues that “allowing the State to present evidence that the firearm [Defendant] was alleged to have possessed was used in a murder improperly suggested to the jury that [Defendant] might be more dangerous and more culpable than they had feared or realized,” so that the admission of the challenged evidence violated N.C. Gen.Stat. § 8C–1, Rules 403 and 404(b), and Defendant's right to a fair trial as guaranteed by the federal and state constitutions.2[DB12] Defendant's argument lacks merit.
As an initial matter, the State contends that Defendant's challenge to the admission of evidence relating to the murder of Mr. Palmer was not properly preserved for appellate review given that Defendant failed to consistently object to the admission of the evidence in question. State v. Reaves, 196 N.C.App. 683, 686–87, 676 S.E.2d 74, 77 () (quoting State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam)), disc. review denied,363 N .C. 587, 683 S.E.2d 705 (2009). At trial, in addition to objecting at the time that the subject of Mr. Palmer's murder originally came up, Defendant objected to the admission of maps depicting the location at which Mr. Palmer's truck was found [TI 71 ln 5–19] and various photographs of the scene of Mr. Palmer's murder. [TI 80 ln 5–17; 81–90] After the denial of his motion in limine, Defendant reminded the trial court of his continuing obligation to object in order to preserve his challenge to the admission of the disputed evidence for purposes of appellate review, at which point the trial court stated that “we understand [Defendant] ha[s] a blanket objection to all of them.” [T32 ln 17–23] After the State assented to the “blanket” objection, Defendant confirmed that “one objection when we start talking about it, would be sufficient for the court.” [T32–33] At the time that evidence concerning Mr. Palmer's murder was initially proffered before the jury, Defendant stated that he “would like to renew [his] objection [to] the testimony that relates to what we're going to hear.” [TI 65 ln 8–10] As a result, we conclude that Defendant did not waive his right to appellate review of his challenge to the admission of evidence concerning Mr. Palmer's murder. See State v. Early, 194 N.C.App. 594, 601–02 n. 2, 670 S.E.2d 594, 601 n. 2 (2009) ().
At Defendant's trial, several officers testified concerning the circumstances surrounding Mr. Palmer's murder. Detective James Gamel of the Jacksonville Police Department described the scene of Mr. Palmer's murder, the interior and exterior of Mr. Palmer's truck, the recovery of the projectile from the driver's side door, and the nature and extent of Mr. Palmer's gunshot wounds. [T68–78] In addition, maps of the Cardinal Village neighborhood and photographs of the scene of Mr. Palmer's murder and the interior and exterior of Mr. Palmer's truck were admitted into evidence. [T78–90] Although the trial court sustained Defendant's objection to a photograph of Mr. Palmer's gunshot wounds, it admitted several exhibits that had been...
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