State v. Myers, COA04-567-2.

• Decision Date: 02 January 2007
• Docket Number: No. COA04-567-2.,COA04-567-2.
• Citation: 639 S.E.2d 1
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Thomas Henry MYERS and Jesse Warren Coleman, Defendants.

Page 1

639 S.E.2d 1

STATE of North Carolina v. Thomas Henry MYERS and Jesse Warren Coleman, Defendants.

No. COA04-567-2.

Court of Appeals of North Carolina.

January 2, 2007.

On remand by order of the Supreme Court of North Carolina filed 17 November 2006 to reconsider the unanimous decision of the Court of Appeals, State v. Myers, 174 N.C.App. 526, 621 S.E.2d 329 (2005) for reconsideration on the issue of sufficiency of the evidence in light of State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987). Appeal by the State from Order entered 20 November 2003 by Judge Robert F. Floyd, Jr., in Cumberland County Superior Court. Originally heard in the Court of Appeals 1 February 2005.

Attorney General Roy Cooper, by Assistant Attorney General William B. Crumpler, for the State.

Daniel Shatz, Durham, for defendant-appellee Myers.

Brian Michael Aus, Durham, for defendant-appellee Coleman.

HUDSON, Judge.

Defendants were tried for second-degree murder on 10 November 2003. At the close of the State's evidence and again at the close of all the evidence, defendants moved to dismiss, which motions the court denied. On 20 November 2003, the jury returned a verdict of guilty against both defendants. Before entry of judgment, defendants again moved to dismiss and the court granted their motion. The State appealed to this Court, and in an opinion issued 15 November 2005, we affirmed the trial court's dismissal. State v. Myers, 174 N.C.App. 526, 621 S.E.2d 329 (2005). The State appealed to the North Carolina Supreme Court, and on 17 November 2006, that Court remanded the case to us for reconsideration in light of State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987). We affirm the trial court's dismissal.

Defendants were tried for the murder of Tommy Lee Barrow. The State introduced evidence that Mary Ann Essell was delivering newspapers around 3:00 a.m. on 10 July 2001 when she noticed a black male lying in the middle of Hopedale Road near the residence of May and Damon Herring. The man was propped up on one elbow and held up his hand. Ms. Essell thought the man was drunk and homeless. The man was wearing long dark pants, a dark shirt, and an Army jacket. She did not see any blood. After looking around for police assistance, Ms. Essell left the scene to get help. She returned to the area fifteen to twenty minutes later, accompanied by her son, to look for the man, but he was gone. Ms. Essell and her son looked in the Herrings' yard and the surrounding area, but could not find him. Ms. Essell never identified Barrow as the man she saw in the road. She also testified that she saw an unidentified man in a white t-shirt riding a bicycle in the area.

Evidence also showed that during the early morning of 10 July 2001, the Herrings heard a noise outside of their home that sounded like someone or something had hit their aluminum carport. Mr. Herring turned on the outside light and saw nothing. Around 6:00 a.m., he went out to get the newspaper and noticed nothing unusual. However, later in the morning when he went outside to do yard work, he saw a black male, later identified as Tommy Lee Barrow, lying on the ground near his carport. The man had on muddy socks, boxer shorts, and a white t-shirt covered in blood on the back. His sneakers and jean shorts were on the ground nearby, as was a wallet, some scattered change, keys, a crack pipe, and a bag. No jacket was found at the scene. Mrs. Herring called the police. A deputy from the Cumberland County Sheriff's Department arrived and found no vital signs.

An autopsy of Barrow's body revealed a stab wound in the right back, from a blow which struck his right lung and damaged the liver. Barrow died as a result of both internal and external bleeding. The stab wound would not have caused instantaneous death; Barrow could have moved some distance for an unspecified period of time after being stabbed. North Carolina's Chief Medical Examiner, Dr. John Butts, opined that the injury was caused by a knife or knife-like object. The autopsy also revealed a cut on the left side of Barrow's face, as well as some blunt force injuries with scraped skin adjacent to the nose.

The State's primary witness, Lisa Beeler, testified that on the afternoon of 9 July 2001, and the night of 10 July 2001, she was at the Lady Slipper trailer park, where she bought crack from defendant Coleman and got high with defendant Myers. She testified that Myers cut the crack into smaller pieces with a big knife that had brass knuckles. According to Beeler, Barrow visited the trailer where Beeler was using crack several times that evening and left about 1:00 a.m. after speaking with defendant Coleman. She testified that she left the trailer park with both defendants around 3:00 or 4:00 a.m. to get more drugs. She stated that defendant Coleman told her that they were going to meet a man nearby and pick up more crack and that in the vicinity of Hopedale Road, Coleman told Myers, "There he is. There he is. Go over there and get the stuff, go talk to him." Ms. Beeler testified that she looked and saw a black man walking up the street but she did not identify this man as Barrow, as she said she could not see him well enough to tell who it was. She and Coleman waited by a bush near the corner where the Herrings live. Beeler testified that she heard loud arguing coming from the direction where Myers and the other man were located and that Coleman turned her around and told her not to look that way, saying "You don't want to see this." According to Beeler, while they were still waiting, a light came on in the Herrings' house and Coleman said he was going to go see what was taking so long. Beeler testified that after a minute or so, she heard a loud groan coming from a struggle and then silence. She began to leave when defendants ran up to her about five minutes later. When she asked what was going on, Coleman told her to shut up and be patient.

Beeler testified that when she and defendants reached an intersection with a street light, Beeler saw that Myers had dirt and what appeared to be blood on him. Coleman told Myers he better remove the bloody clothes, to go home and shower. According to Beeler, Myers told Coleman, "I got him good, didn't I cuz?", to which Coleman responded that Myers should shut his mouth and be quiet, that he needed to think. Beeler stated that as they walked, Myers was going through something that appeared to be like a wallet and that one of the defendants commented that the there was no money in the wallet. When Beeler again asked what was going on, she said that Coleman told her, "Don't you want to get high? Just keep your mouth shut, or you're in like Tommy." However, Beeler testified that she believed that Coleman was referring to Tommy Myers and how dirty he was from the struggle. Coleman and Beeler returned to a friend's trailer, and when Myers got there about twenty minutes later, he had showered and changed into clean clothes. Beeler had made prior inconsistent statements to the police, but when questioned about this at trial, she stated that after she learned of the victim's death and realized what had happened, that she came forward.

Our review of a trial court's ruling on a motion to dismiss is the same regardless of whether the motion is made at the close of the State's evidence, at the close of all the evidence, after return of a verdict of guilty and before entry of judgment, or after discharge of the jury without a verdict and before the end of the session. State v. Scott, 356 N.C. 591, 595-96, 573 S.E.2d 866, 868 (2002). In reviewing the trial court's ruling, we must evaluate the evidence in the light most favorable to the State. State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983). All contradictions must be resolved in favor of the State. Id. The ultimate question is "whether a reasonable inference of the defendant's guilt may be drawn from the circumstances." State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). As long as the evidence supports a reasonable inference of defendant's guilt, it is up to the jury to decide whether there is proof beyond a reasonable doubt. State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998). This is true regardless of whether the evidence is direct or circumstantial. Id. However, if the evidence is "sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed." Malloy, 309 N.C. at 179, 305 S.E.2d at 720 (internal citation omitted). "This is true even though the suspicion aroused by the evidence is strong." Id. (internal citation omitted).

As noted by other courts faced with this issue, the rules regarding a determination of sufficiency of the evidence are easier to state than to apply and require a case-by-case analysis. See, e.g., State v. Bell, 65 N.C.App. 234, 236, 309 S.E.2d 464, 466 (1983), aff'd, 311 N.C. 299, 316 S.E.2d 72 (1984)...