Heard in the Court of Appeals May 22, 2014
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr.Mr., for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General Ms. Mary Carla Babb, Primary Attorney, Assistant Attorney General, for the State.
Robert N. HUNTER, JR., Judge. Judges ERVIN and DAVIS concur.
Appeal by defendant from judgments entered 29 January 2013 by
Richard D. Boner Cleveland County. Nos. 09 CRS 57186, 09 CRS 57187, 10 CRS 285
HUNTER, JR., Robert N., Judge.
Donald Eugene Borders (" Defendant" ) appeals from a jury verdict finding him guilty of raping and murdering Margaret Tessneer (" Ms. Tessneer" ). Defendant argues (i) that the trial court erred by admitting DNA evidence obtained by officers after effectuating an arrest based on an unrelated warrant at his domicile; (ii) that the trial court erred by denying his motion for a change of venue because pretrial publicity made it impossible to empanel an impartial jury; and (iii) that the trial court abused its discretion in allowing the admission of expert testimony that Ms. Tessneer died from asphyxiation because the testimony was unreliable and lacked a proper foundation. After careful review, we find no error in the trial court's judgments.
I. Facts & Procedural History
Defendant was indicted on 11 January 2010 for rape and felonious breaking and entering in File Nos. 09 CRS 057186 and 09 CRS 05187. Defendant was also indicted on 8 March 2010 for first-degree murder in File No. 10 CRS 00285. Defendant stood trial in Cleveland County Superior Court, beginning on 13 November 2012 and ending on 29 January 2013. The record and trial transcript below tended to show the following facts.
Immediately prior to Defendant's trial, the trial court held a suppression hearing concerning a DNA sample acquired from a cigarette used by Defendant, the facts surrounding which are discussed in Section III infra. After the hearing on Defendant's motion to suppress the DNA evidence, Defendant twice moved for a change of venue; neither request was granted. The jury was empaneled and the State called Amy Fredell (" Ms. Fredell" ), a Service Division Supervisor with the Shelby Police Department, as its first witness.
A. Events of 20 September 2003
Ms. Fredell testified that on 20 September 2003, the Shelby Police Department received a 911 call requesting that an officer be dispatched to 1024 Railroad Avenue, where a death had occurred. Patrol Officer Victor Haynes (" Officer Haynes" ) was dispatched to the residence, where Officer Haynes saw Ms. Tessneer, an elderly woman, lying on a bed in the home. Ms. Tessneer's feet were on the floor, she was clothed in a light-colored nightgown, her eyes were fixed, and her mouth was open. Officer Haynes observed false teeth next to her body on the bed. Officer Haynes did not find a pulse or observe her breathing. Officer Haynes stated that Ms. Tessneer felt cold. Officer Haynes cleared the residence and then went outside to ensure that emergency medical service personnel (" EMS" ) came to the residence.
Louie Ledford (" Mr. Ledford" ) of EMS arrived at the scene. Mr. Ledford entered with Officer Haynes, checked Ms. Tessneer's vital signs, and found that Ms. Tessneer had passed away. Officer Haynes surveyed the home and found two cement blocks stacked outside of Ms. Tessneer's bedroom window as well as some phone lines that had been cut on the same side of the house. Mr. Ledford testified Ms. Tessneer was not breathing when he arrived at her home. After taking Ms. Tessneer's pulse, Mr. Ledford told Officer Haynes that she was dead, closed her eyes with his gloved fingers, and covered her body with a sheet. Mr. Ledford described the body as " morbid," having bruising on the wrists and arms, and stated that a pool of blood collected around Ms. Tessneer's body. Mr. Ledford did not notice any signs of struggle.
Ms. Tessneer's daughter, Libby Clark (" Ms. Clark" ), testified that on 20 September 2003, Ms. Clark took her husband to the doctor's office, stopped by Hardee's to purchase a biscuit, and purchased another biscuit to take to her mother. Ms. Clark arrived at her mother's home at around 11 A.M. Ms. Clark stated that upon leaving her car, she noticed a cement block underneath her mother's bedroom window, which she thought was unusual. Ms. Clark then walked up the home's steps and through the unlocked screen door, which her mother usually kept locked. Ms. Clark then saw her mother laying on her bed. Ms. Clark ran to Ms. Tessneer's phone to dial 911, but found that the phone did not work. Ms. Clark tried another phone, which also did not work. Ms. Clark then ran to a neighbor's home, asking the woman inside to dial 911 and then went to her uncle's home, which was near Ms. Tessneer's residence.
Another of Ms. Tessneer's daughters, Peggy Sparks (" Ms. Sparks" ), testified. Ms. Sparks spent her lunch break on 19 September 2003 with her mother. Ms. Sparks stated that her mother was " in good spirts," that Ms. Tessneer was laughing and that Ms. Sparks enjoyed the visit. Ms. Sparks stated that her mother was not dating anyone at the time and showed no signs of injuries on 19 September 2003. Ms. Sparks described her mother's habit of locking both her screen door and main door at her home. Ms. Sparks stated that both doors were locked when she visited her mother on 19 September 2003 and that the screen door did not appear damaged.
Crime Scene Investigator Todd Vickery (" Investigator Vickery" ) performed the crime scene walkthrough on 20 September 2003. Investigator Vickery observed that Ms. Tessneer's false teeth were lying next to her on the bed, that some pantyhose were also on the bed, and that some blood was on the bed's mattress pad. Investigator Vickery also noticed a small tear on the entry door to the screened-in front porch, near the door's latch. Investigator Vickery then dusted for fingerprints, took photographs, and began collecting physical items. Investigator Vickery stated that " [o]ther than the area around Ms. Tessneer, the house appeared to be neat and in order."
Gaston Memorial Hospital pathologist Dr. Steven Tracy (" Dr. Tracy" ) testified at trial as an expert in forensic pathology, over Defendant's objection. Dr. Tracy performed an autopsy of Ms. Tessneer on 22 September 2003. Dr. Tracy stated that Ms. Tessneer had bruising to her arms, legs, one of her feet, left shoulder, and abdomen. Dr. Tracy believed Ms. Tessneer's injuries occurred within twenty-four hours of her death. Ms. Tessneer also had hemorrhaging over the surface of her arms. Dr. Tracy noted that many elderly people have surface hemorrhages. Dr. Tracy stated that without knowing Ms. Tessneer, he did not know whether the hemorrhages were there before or after the bruising occurred. Ms. Tessneer's right forearm also contained an abrasion near her hemorrhages.
Dr. Tracy described a tear to the outer portion of Ms. Tessneer's panties and a small amount of blood on the panties. Dr. Tracy also stated that Ms. Tessneer had a small abrasion to her vagina.
Dr. Tracy also used an SBI sexual assault evidence collection kit (" sexual assault kit" ) and took swabs from Ms. Tessneer's vagina, cheek, and rectum. In February 2004, the North Carolina State Bureau of Investigation Crime Laboratory (" SBI" ) reported that its testing showed the presence of sperm on the vaginal swab taken from Ms. Tessneer's sexual assault kit. A DNA profile of the evidence was created from the vaginal swab, but no DNA match was made at that time.
Immediately after the autopsy, Dr. Tracy withheld his opinion as to the cause of death. Dr. Tracy stated that the bruises on the body did not in and of themselves account for Ms. Tessneer's death, and no other anatomical findings apparent at that point explained her cause of death. Dr. Tracy's autopsy report lists the cause of death as undetermined, but contained a discussion stating that Dr. Tracy was " considering suffocation." Dr. Tracy stated that he waited for microscopic slides and a toxicology report to come back, and after ruling out " any other reasonable cause of death to a reasonable degree of medical certainty," Dr. Tracy opined that Ms. Tessneer died of asphyxiation secondary to suffocation. Dr. Tracy stated that this may have occurred after Ms. Tessneer's mouth was covered with a soft object, " such as a pillow or cushion, a piece of clothing or a hand." Dr. Tracy also testified that markings or injuries typically do not appear if the suffocation was effectuated by a soft object, and that injuries from suffocation are often very difficult to detect.
Dr. Tracy testified that police contacted him in 2009 and asked if he would consider changing his 2003 opinion about the cause of death. Dr. Tracy stated that the police did not suggest suffocation. Dr. Tracy also has not modified his written autopsy report to reflect suffocation. Dr. Tracy stated that he was willing to add an addendum to his report indicating that Ms. Tessneer died of asphyxiation, secondary to suffocation, but had not amended the autopsy report to reflect that view. Dr. Tracy stated that he always believed " to a reasonable degree of medical certainty that Ms. Tessneer died of asphyxiation." Dr. Tracy became even more confident in this opinion after receiving information about the examination of the sexual assault kit and lack of other findings as to Ms. Tessneer's cause of death.
Dr. John D. Butts (" Dr. Butts" ), a retired chief medical examiner for the State of North Carolina, testified at trial. Defendant did not object to Dr. Butts being tendered as an expert in the field of forensic pathology. Dr. Butts stated that he had consulted with Dr. Tracy in December 2003 and that the two had agreed the best designation for the cause and manner of Ms. Tessneer's death was " undetermined" because " the evidence was overwhelmingly [sic] that Ms. Tessneer's death was not the result of natural causes" but that there was not sufficient evidence to state the cause of death.
Dr. Butts later learned about the sexual assault kit's contents in 2009 after being contacted by the local district attorney. Dr. Butts prepared another report after learning of the evidence derived from the sexual assault kit's contents in which he opined that Ms. Tessneer had died from " external forces or causes rather than some natural process" at the hands of another individual. Dr. Butts stated in this report that " the environment and circumstances under which [Ms. Tessneer] was found were highly suspicious. There was evidence of entry into the house. Her telephone line had been cut or disabled." Dr. Butts also testified that her body was found in an unusual position for a natural death, that there was injury to her body, disturbances to her clothing, bruises on her body, and bruises in the entrance to Ms. Tessneer's vagina. Dr. Butts testified the toxicological tests revealed the presence of the pain medication Ms. Tessneer used, but that the amount was not excessive. Dr. Butts also noted the lack of a catastrophic natural event, findings consistent with an advanced disease process, or stroke, or any " evidence of a significant underlying medical condition either in her history or in the autopsy report upon examination that would explain her death." Dr. Butts testified that given the circumstances, the " most common mechanism of death would be an asphyxiation." Dr. Butts also testified that the autopsy report was not amended and that no one had coerced him into changing his opinion concerning the cause of death.
B. 2009 Investigation of Ms. Tessneer's Death
Agent John Kaiser (" Agent Kaiser" ) testified that he was contacted by Detective Rich Ivey (" Detective Ivey" ) in April 2009 to assist in the investigation of Ms. Tessneer's death. Detective Ivey was working in the Shelby Police Department at that time. Agent Kaiser and Detective Ivey worked through the case file and devised an investigative strategy. The two noticed that there was a suspect book in the case file as well as a DNA profile from the sexual assault kit; they resolved to work through the suspect book to clear individuals in the book or to find a match. There were around thirty individuals listed in the book, including Defendant.
On 4 May 2009, Detective Ivey and Agent Kaiser found Defendant at his mother's residence in Cherryville, where he lived. Defendant refused to comply with or submit to police officers' request for a DNA sample. Officers visited Defendant on a total of four separate occasions at his home and requested a DNA sample; officers visited on 4 May 2009, 6 May 2009, 8 May 2009, and once more after 8 May 2009 and prior to Defendant's arrest on 16 May 2009.
Agent Kaiser contacted Officer James Brienza (" Officer Brienza" ) on 13 May 2009 and asked Officer Brienza to serve an active warrant for assault on a female on Defendant. Agent Kaiser asked Officer Brienza to obtain DNA evidence from Defendant, " either from a drink can or some abandoned material."  Officer Brienza verified that the assault on a female warrant was still active and then served the warrant on Defendant on 16 May 2009 at his mother's residence in Cherryville.
Officer Brienza arrived at the Cherryville residence between 12:00 A.M. and 2:00 A.M. on 16 May 2009. Officer Brienza knocked at the door and spoke with Defendant's mother. Defendant's mother allowed Officer Brienza into her home, where Officer Brienza found Defendant asleep. Officer Brienza woke Defendant up and told Defendant to come with him so he could serve the arrest warrant. Defendant got dressed and was taken outside in handcuffs. Defendant was handcuffed in the front of his body.
Officer Brienza noticed a pack of cigarettes on the nightstand near where he found Defendant and " felt like there was a good opportunity to take advantage of possible D.N.A. gathering at that point from a cigarette butt." Officer Brienza " asked [Defendant] if he wanted to smoke a cigarette before we left," to which Defendant replied affirmatively.
Officer Brienza testified that Defendant smoked a cigarette " [o]utside in the front porch area towards the driveway, next to the car. We had walked from the front porch area and down to my vehicle" where Defendant smoked the cigarette. Officer Brienza testified that Defendant did not smoke the entire cigarette, but that Defendant was allowed " enough time to take several hits off of the cigarette -- several drags." After Defendant took these cigarette drags, Officer Brienza " asked him if he would like me [to] discard the cigarette and told him that we needed to leave." Officer Brienza stated that Defendant responded affirmatively to his offer to discard the cigarette.
Officer Brienza, who was wearing gloves, " took the cigarette from his mouth and acted like [he] was going to get rid of the cigarette." Officer Brienza then " extinguished the end of the cigarette on the ground and cupped it, put it in a plastic bag[,] and took [Defendant] to jail." Defendant objected to the admission of this evidence under the Fourth Amendment of the United States Constitution, under " Article 19 - Article 1, Section 19, 20 and 23 of the North Carolina Constitution and also under State versus Reed." Defendant's objection was overruled by the trial court.
Officer Brienza stated that no part of the cigarette which touched Defendant's mouth had made contact with the ground. Officer Brienza also testified that after processing Defendant at the jail, he called Agent Kaiser to tell him about the evidence he had gathered and released the cigarette into his custody thereafter. Officer Brienza was the only officer to serve the warrant and approach Defendant initially, although other officers arrived later in a " support role."
Officer Brienza testified that he had two goals that evening: (i) to serve a warrant and (ii) to obtain a DNA sample. Officer Brienza stated that obtaining the DNA sample was the primary goal of his visit. Officer Brienza recounted that Defendant carried the cigarette outside and that Defendant was in his custody when Defendant smoked the cigarette, as well as when Defendant was asked whether he wanted Officer Brienza to discard the cigarette.
After Officer Brienza delivered the cigarette butt to Agent Kaiser, Agent Kaiser sent the cigarette butt to the SBI, which performed DNA tests on the cigarette butt. After Agent Kaiser learned that the DNA test results matched the DNA profile derived from a swab in Ms. Tessneer's sexual assault kit, Agent Kaiser obtained a second arrest warrant charging Defendant for murder, rape, and breaking and entering. Agent Kaiser and Officer Brienza served Defendant with the warrants at his mother's home on 28 December 2009. Agent Kaiser and Officer Brienza showed Defendant a picture of Ms. Tessneer and asked whether he recognized her; Defendant said he did not recognize her and denied ever having been in contact with her. Agent Kaiser and Detective Ivey also obtained a search warrant authorizing them to collect a suspect evidence collection kit from Defendant, whereby Defendant was required to provide the officers with a cheek swab. The DNA profile extracted from the cheek swab matched the DNA profile collected from the sperm found in Ms. Tessneer's sexual assault kit.
After the State rested its case at trial, Defendant moved to dismiss the case, and his motion was denied by the trial court. Defendant did not testify at trial, nor did Defendant present evidence. The trial court denied Defendant's renewed motion to dismiss. On 28 January 2013, the jury returned verdicts finding Defendant guilty of first-degree murder on a felony murder theory; first-degree rape; and felonious breaking and entering. The trial court arrested judgment with respect to the first-degree rape conviction. The trial court then sentenced Defendant to life in prison without the possibility of parole based upon the first-degree murder conviction. The trial court also sentenced Defendant ...