State v. Thomas
| Citation | 867 S.E.2d 377 |
| Decision Date | 21 December 2021 |
| Docket Number | No. COA20-402,COA20-402 |
| Parties | STATE of North Carolina v. Chan Tavares THOMAS, Defendant. |
| Court | Court of Appeal of North Carolina (US) |
Attorney General Joshua H. Stein, by Special Deputy Attorney General L. Michael Dodd, for the State.
Joseph P. Lattimore, for defendant.
¶ 1 Defendant Chan Tavares Thomas appeals from a judgment entered following a jury trial finding him guilty of first degree murder, discharging a firearm into an occupied vehicle in operation inflicting serious bodily injury, and six counts of discharging a firearm into an occupied vehicle in operation. Defendant makes six arguments on appeal, of which three are plain error arguments, relating to hearsay exceptions, expert testimony, lay opinion testimony, and relevancy. Defendant also argues cumulative error. We find no error on four issues, no plain error on the remaining two issues because they did not prejudice Defendant, and no cumulative error.
¶ 2 The State's evidence tended to show that on the evening of 2 December 2014, the victim, Kenneth Covington, and Demesha Warren, who had a long-term, on-again, off-again, non-exclusive sexual relationship with Defendant, were watching television together at Warren's apartment in Durham. Warren and Covington were friends from work, and while Warren denied they were in a romantic relationship, Warren's best friend from the time described Warren and Covington's relationship as romantic. Regardless of the true nature of the relationship, Defendant was jealous of Covington's relationship with Warren. For example, in August 2014, Defendant attacked Warren because of her relationship with Covington, and, upon seeing Covington and Warren driving around together one day, Defendant threatened to kill them if he ever saw them together again. As a result of those threats, Covington feared Defendant.
¶ 3 At one point during the night of 2 December, Covington took Warren's car to go to the store. Defendant somehow learned that someone else was driving Warren's car, and he came to her apartment to confront her about it. Warren refused to open her door for Defendant and told him from her patio to leave her alone. At that point, Defendant left Warren's apartment in his car, a gray or silver Acura. Warren tried to call Covington to tell him Defendant was in the neighborhood but could not reach him.
¶ 4 After Covington left the store and as he was driving back to Warren's apartment, a car later identified as Defendant's pulled alongside the car Covington was driving. Defendant then shot at Covington's car multiple times with a .40 caliber gun. Following the shooting, the car Covington was in crashed about a block down the road, and a bystander found Covington unresponsive with bullet wounds. When EMS arrived at the scene, they pronounced Covington dead due to a gunshot wound in his left ribcage. At trial, the forensic pathologist who performed the autopsy confirmed that gunshot wound killed Covington.
¶ 5 The police, specifically Investigator James Barr, determined the car Covington was found in belonged to Warren and went to her apartment from the crime scene. Barr interviewed Warren and recorded that interview on a small digital recorder he carried. During the interview, Warren told Barr that Defendant had previously attacked her because of her relationship with Covington and Defendant had visited her apartment earlier that night. After the interview, Warren had her best friend at the time pick her up so that Warren could eventually go stay with her family in Fayetteville. When her friend picked her up, Warren told the friend, "that bastard killed him," which the friend took to mean that Defendant had killed Covington.
¶ 6 In addition to her interview with Barr the night of the murder, Warren provided a written statement to Barr a few days later at Barr's request. She spoke to a family member who transcribed her statement in an email. When Warren experienced technical problems sending the email, she eventually had a family member drive her to Durham where she handed the printed-out email to Barr in person and signed and dated it. The email statement recounted Warren's interactions with Defendant and Covington the day of the murder, including most pertinently that she watched television with Covington in the evening, Covington took her car to the store, and the interaction where Defendant asked Warren who was driving her car.
¶ 7 After concluding the interview with Warren the night of the shooting, Barr and other officers went to Defendant's residence. Upon arriving, Barr noticed Defendant's car, a gray or silver Acura with a sunroof, and based on his experience from past DWI cases, he felt under the hood and determined the car was still warm, indicating it had recently been driven. Barr then interviewed Defendant. Defendant told Barr he had been working that night and had gone to see a woman—other than Warren—but that he was home by 12:30am, before the shooting and car crash happened around 12:40am. Defendant did not initially mention he had gone to Warren's apartment, but when confronted by Barr with that information, Defendant admitted he had stopped by Warren's apartment, claiming the stop was related to concert tickets. Defendant also denied any involvement in Covington's murder and even denied knowing Covington. But Defendant admitted he knew what kind of car Warren drove. Defendant also admitted that he was the only one who drove the Acura that was out front and that he was the only one using that car the night of the murder.
¶ 8 During and following the interview, Defendant allowed the police to collect forensic evidence. First, he volunteered the clothes he wore the night of the murder. Defendant also consented to a gunshot residue ("GSR") test on his hands and car. The GSR collection expert collected the GSR kits from Defendant's hands and car at about 6am in the morning. The collection expert also filled out a standard GSR analysis information form based on Defendant's answers; Defendant said he had not fired a gun recently or been in close proximity to a gun that was fired, had not washed his hands recently, and had been asleep for the past four to six hours before collection. The State's GSR expert testified at trial that the kit revealed characteristic GSR particles on Defendant's left hand and in his vehicle.
¶ 9 When Barr received the GSR results in early January 2015, he obtained an arrest warrant on the murder charge. Defendant refused to meet at the police headquarters, so Barr arranged to meet with Defendant at a gas station about an unrelated matter with the goal of arresting him for the murder without incident. Upon discovering Barr had a murder warrant, Defendant fled and evaded police in the ensuring pursuit. About a week later, officers in Burlington, North Carolina saw Defendant in their jurisdiction and arrested him without incident. When the police recovered Defendant's car, they searched it and found a .45 caliber bullet that did not match the weapon used in the murder of Covington. Defendant was charged with one count of first degree murder, one count of discharging a firearm into an occupied vehicle in operation inflicting serious bodily injury, and six counts of discharging a firearm into an occupied vehicle in operation.
¶ 10 At trial, the State presented this evidence along with additional evidence of Defendant's jail phone calls with Warren in which Defendant repeatedly blamed Warren for implicating him in the murder. Defendant and the State also clashed on a few issues at trial. First, because Warren testified that she could not remember in detail the events at issue due to trauma-induced memory loss from Covington's murder, the death of family members, losing her job, and being separated from her son, the State sought to introduce her prior statements to Barr, both the interview and the email statement, as well as her past statement to her friend implicating Defendant in Covington's murder. While Defendant did not object to the statement Warren made to her friend, Defendant objected to Warren's past statements to Barr on the grounds that Warren did not remember making them. The State responded by asking the prior statements to Barr be read into evidence pursuant to Rule of Evidence 803(5) for past recorded recollection and Rule 804(b)(1) for former testimony because the statements were admitted at a prior trial.1 The trial court ruled the past statements were admissible under Rule 803(5) because Warren had testified it was her statement, made while matters were fresh in her mind, that she could no longer remember because of the trauma and because she testified she told Barr everything that happened to her on that night.
¶ 11 Defendant also objected to the State presenting the GSR evidence, leading the trial court to hold a full GSR hearing. Defendant's motion, filed by former counsel, was based upon multiple grounds, including the State Crime Lab's failure to follow its own protocol in testing a GSR kit from Defendant as it was collected more than four hours after the shooting and the State Crime Lab's failure to establish the threshold levels of each GSR particle element. At the hearing, Defendant argued only the failure to follow protocol by collecting the GSR kit more than four hours after the shooting. After hearing from Barr, the GSR collection expert, the GSR expert, and an outside expert, the trial court ultimately ruled the GSR evidence was admissible. As relevant to the four-hour-protocol issue, the trial court found the State Crime Lab's protocol, as testified to by the GSR expert, requires evidence of incapacity on the GSR kit information form to test kits collected more than four hours after the shooting. The trial court found that evidence existed here because, as recorded on the form Defendant stated he had been sleeping at the relevant time. The trial court also found that the State Crime Lab's policy sought to avoid...
To continue reading
Request your trial