State v. Perry, COA13–30.

• Decision Date: 20 August 2013
• Docket Number: No. COA13–30.,COA13–30.
• Citation: 750 S.E.2d 521
• Parties: STATE of North Carolina v. Johnathan Blake PERRY.
• Court: North Carolina Court of Appeals

750 S.E.2d 521

STATE of North Carolina

v.Johnathan Blake PERRY.

No. COA13–30.

Court of Appeals of North Carolina.

Aug. 20, 2013.

Appeal by defendant from judgment entered 5 June 2012 by Judge Michael J. O'Foghludha in Wake County Superior Court. Heard in the Court of Appeals 22 May 2013.

Attorney General Roy Cooper, by Assistant Attorney General Nicholaos G. Vlahos, for the State.

Kathryn L. VandenBerg for Defendant-appellant.

ERVIN, Judge.

Defendant Johnathan Blake Perry appeals from a judgment sentencing him to a term of life imprisonment without the possibility of parole based upon his conviction for first degree murder. On appeal, Defendant argues that the trial court committed plain error by allowing the State's expert witnesses to express opinions to the effect that the injuries sustained by the alleged victim, J.W., ¹ had been intentionally inflicted on the grounds that this testimony was “not sufficiently reliable”; that the trial court erred by denying his motion to dismiss the charge against him for lack of adequate evidentiary support; that his felony murder conviction cannot be properly predicated on his commission of felonious child abuse inflicting serious bodily injury; and that his conviction of first degree murder and resulting sentence of life imprisonment without possibility of parole are disproportionate and constitute cruel and unusual punishment. 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 the trial court's judgment should remain undisturbed.

I. Factual Background

A. Substantive Facts

1. State's Evidence

a. Events of 7 December 2010

Joan was born on 29 September 2009 to Sebrina Wright, who had three other children. Although Defendant was Joan's father, he was not the father of any of her siblings. Defendant and Ms. Wright had little contact during the time that Ms. Wright was pregnant with Joan or the first year of Joan's life. However, Defendant moved in with Ms. Wright and her four children in September 2010.

Joan was a healthy baby who developed normally and did not have significant medical problems. Yolanda Manson, Ms. Wright's sister, recalled Joan as a happy, outgoing baby, who drank from a cup and could pick herself up if she fell. Joan did not take any medications, had no problems eating, and was not known to choke on food or milk.

Joan continued to appear happy and healthy during the first week of December 2010. On Monday, 6 December 2010, Joan behaved normally, smiling at family members and eating well. At that time, Joan was starting to use a drinking cup; however, she also used a bottle, which she was able to hold on her own.

Although Joan initially appeared to be comfortable with Defendant, as time went on, Ms. Wright “started to notice [that] she would scream a lot ... when he would have her” and that “he was the only male that she really didn't favor.” According to Ms. Wright, Defendant “always thought [Joan] was real clingy to [Ms. Wright]” and “just didn't like the fact that she was so clingy [.]” When Joan was approximately six months old, Ms. Wright returned to work. At that point, Ms. Wright's mother began watching Joan during the work day. After Defendant moved in, Ms. Wright's mother continued to watch Joan on most days. However, Defendant watched Joan once or twice on a “rare occasion.”

At about 5:30 a.m. on Tuesday, 7 December 2010, Ms. Wright got up, changed Joan's diaper, and gave her a bottle of milk, which Joan drank normally. Ms. Wright did not see any bruising on Joan's legs or body at that time. Before she left for work, Ms. Wright woke Defendant, who was sleeping in the living room. Upon being awakened, Defendant moved into the bedroom where Joan was sleeping. At approximately 6:30 a.m., Ms. Wright departed with the three older children, leaving Defendant and Joan alone in the house.

Ms. Wright spoke briefly with Defendant on the phone at approximately 11:30 a.m. on 7 December 2010. When Defendant held Joan up to the phone, Ms. Wright could hear her “little baby talk” and recalled that she “just sounded normal.” When Ms. Wright hung up in order to enter a bank branch, Defendant asked her to call back as soon as she emerged from the bank building. After depositing a check and leaving the bank, Ms. Wright called Defendant twice without receiving any answer. At the time of her third call, Defendant answered and told Ms. Wright that Joan was not breathing and was “gone.” Ms. Wright told Defendant to call 911, hung up, and drove home immediately, calling 911 herself as she drove.

About five minutes after speaking with Defendant, Ms. Wright arrived at her home. At that time, she saw emergency medical services personnel carrying Joan, who was not moving and whose eyes were rolled back into her head, to an ambulance for transportation to Wake Medical Center. At the time that they attempted to render assistance to Joan, emergency medical personnel noted that she was unresponsive, not moving or breathing on her own, had no discernible pulse, and felt “very limp” and “like a rag doll.” After emergency medical services personnel moved Joan's tongue, she resumed an inadequate labored breathing. However, she did not open her eyes or respond to stimuli. In the ambulance, Joan was unresponsive, was only breathing about four times a minute, vomited a thin white fluid, and never regained consciousness. In the course of treating the child, emergency medical services personnel determined that Joan's blood sugar was normal, that her airway was not obstructed, that she was not on any sort of medication, that she did not have a fever or a history of seizures, and that she had not had any access to cleaning products or illegal drugs.

According to Ms. Wright, Defendant was “running back and forth” “arguing” and “fussing” “with the ambulance people.” As a result, Captain Tony Pack of the Wake County Emergency Medical Services called upon police to restrain Defendant. When emergency workers asked Defendant what had happened, he said that he had given Joan a bottle, departed from the room while leaving Joan on the couch, and returned about eight minutes later to find her on the floor “gargling,” unresponsive, and not breathing. According to investigating officers, the carpeted floor upon which Defendant claimed that Joan had fallen was 18 inches below the couch seat and 24 inches below the couch arm.

At the hospital, Joan began “posturing,” which is “a term for stiffening of the extremities,” a development that indicated that the “[s]welling in the brain [had] reached a point that it's actually beginning to force the brain out of ... the hole at the base of the skull.” According to Vernon Hilliard, Jr., of the Eastern Wake County Emergency Medical Services, these symptoms generally occur “almost immediately before death due to head trauma.” After receiving initial treatment at Wake Medical Center, Joan was airlifted to the University of North Carolina Medical Center at around 4:00 p.m. on 7 December 2010.

As they travelled between the two medical facilities, Ms. Wright asked Defendant “What did you do?” Defendant did not answer Ms. Wright's question. When investigating officers arrived at the University of North Carolina Medical Center, Defendant walked away. An hour or two later, Ms. Wright reiterated her question to Defendant, who, once again, failed to answer. However, Defendant did tell Melissa Williams of the Wake County Department of Human Services that he had put Joan on a sofa with a bottle; that, when he returned to the living room eight or ten minutes later, she was lying on the floor choking and with her eyes closed; that Ms. Wright had directed him to call 911 when she called and that he had not harmed Joan. Defendant later talked to investigating officers.

At the University of North Carolina Medical Center, attending physicians drilled a small hole in Joan's forehead for the purpose of installing an intracranial pressure monitor and administered medications in an attempt to reduce the pressure resulting from the swelling in her brain. Unfortunately, these medical interventions could not reverse the damage caused by Joan's injuries. As a result, Joan was pronounced dead in the early morning hours of 9 December 2010.

b. State's Expert Testimony

Dr. Molly Berkoff, the medical director of the child protection team at the University of North Carolina Medical Center, came to the hospital on 7 December 2010. According to Dr. Berkoff, the most common injuries seen in children who have experienced abusive head injury, which is a term used to describe injuries to a child's head or brain that appear to have been intentional rather than accidental in origin, were “intracranial hemorrhages” and “subdural hemorrhages, bleeding inside the brain, [ ] retinal hemorrhages or bleeding inside the eye, [and] subarachnoid edema or swelling inside the brain.” Abusive head trauma is “thought to be related to the child's brain being moved in a rotational way, not in one linear kind of direct manner but, instead, potentially as a result of shaking.” As a result, the injuries typically associated with abusive head trauma differ from those that tend to be sustained in a simple linear fall. In Dr. Berkoff's opinion, “having a child die as a result of a simple fall would be an extremely rare occurrence” affecting “less than .5 per million children.”

After arriving at the hospital, Dr. Berkoff consulted with the intensive care physicians, examined Joan briefly, and met with Defendant and Ms. Wright, who provided a history of the circumstances surrounding Joan's injury that was consistent with the other evidence presented at trial. During a second, more thorough, physical exam, Dr. Berkoff noted the presence of bruises and scratches on Joan's body, including bruises on Joan's thighs and abdomen which, according to Dr. Berkoff, were “not [in] a typical location for a bruise in a...