Heard in the Court of Appeals January 21, 2015
[Copyrighted Material Omitted]
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.
Glenn Gerding, for defendant.
ELMORE, Judge. Judges DAVIS and TYSON concur.
Appeal by defendant from judgment entered 16 September 2013 by Judge Donald W. Stephens in Wake County Superior Court, No. 11 CRS 008656.
On 16 September 2013, a jury found defendant guilty of first degree murder. The trial court sentenced defendant to life imprisonment without parole. After careful consideration, we hold that defendant received a fair trial, free from prejudicial error.
Laura Jean Ackerson (the victim) and Grant Ruffin Hayes (defendant) met in March 2007. Thereafter, the two engaged in a domestic relationship, but never married. Two children were born of the relationship, and once defendant and the victim separated, a custody dispute over the children ensued. In late 2009, defendant met Amanda Hayes (Amanda) and they began dating. Defendant and Amanda married in April 2010 and moved into an apartment in Raleigh. The victim lived in Kinston.
On 29 June 2010, the Lenoir County District Court entered a consent order giving temporary physical custody of the children to defendant during the week and to the victim on weekends. As part of their temporary arrangement, the parties agreed to a psychological evaluation by Dr. Ginger Calloway, a forensic psychologist. After evaluating the parties over a period of time, Dr. Calloway issued a report recommending that defendant and the victim share legal and physical custody of the children. Over defendant's objection, Dr. Calloway testified about the contents of her report at trial.
On 12 July 2011, defendant e-mailed the victim to suggest that she see the children for a mid-week visit. The victim drove to Raleigh on 13 July, texting defendant at 4:12 p.m., " I'm leaving the Wilson area now. I'll call when I get past the traffic. Where will you be in [an] hour or so?" The victim also called defendant, with the last outgoing call occurring at 4:59 p.m. near Crabtree Valley mall " going outbound toward [defendant's] apartment[.]" Chevon Mathes, the victim's friend and business partner, knew that the victim was going to Raleigh and expected a business related call from her at approximately 9:00 p.m., which she never received.
In the early hours of 14 July, defendant bought goggles, trash bags, a reciprocating saw, blades, plastic sheeting, tarp, gloves, bleach, tape, and a lint roller at Wal-Mart and Target in Raleigh. Amanda called her daughter, Sha, later that morning, and Sha took the children to Monkey Joe's, a play center, in Raleigh for most of the day. On
16 July, defendant bought coolers and ice. He also rented a U-Haul trailer and indicated that his destination was Texas. Amanda called Sha and told her that she was going to Texas to see her sister, Karen Berry. Defendant, Amanda, and the children drove to Texas in the U-Haul and arrived at Ms. Berry's house in the late hours of 17 July or early in the morning of 18 July.
On 19 July, defendant bought gloves and bottles of acid from Home Depot. Surveillance cameras captured Amanda dumping some of the bottles in an area near Ms. Berry's residence. Ms. Berry's residence was also located near a creek that was often used for fishing. Ms. Berry testified that defendant and Amanda took her boat into the creek on the night of 19 July. When investigators later searched the creek, they found the victim's decomposed and dismembered body parts. The State's expert witness pathologists testified at trial that the victim's cause of death was " homicide by und[et]ermined means" or " undetermined homicidal violence."
Defendant returned the U-Haul trailer on 20 July and drove with Amanda and the children back to Raleigh. Mathes became concerned about the victim's disappearance and notified law enforcement. After launching an investigation, law enforcement officers searched defendant's apartment on 20 July. In addition to a bleach stain, missing furniture, and cleaning products, they also found lyrics to a song entitled, " Man Killer." The lyrics concerned the first-person killing of a woman by making her bleed and by strangulation. Over defendant's objection at trial, the trial court admitted the song lyrics into evidence.
The State also offered the witness testimony of Pablo Trinidad at trial. Trinidad testified that in July 2011, he was being held in the Wake County Detention Center on federal charges while defendant was being held in the same location for the murder charge. Trinidad stated that he met defendant because they were housed in the same area. One day, inmates saw defendant's case being discussed on television and wanted to harm him, but Trinidad diffused the situation. Trinidad testified that at some point after this incident, defendant told him that he called the victim and " lured" her to his apartment under the " false pretenses" of settling the custody dispute, " subdued" her with Amanda's help, strangled her, and drove out of state to dispose of the body.
a.) Dr. Calloway's Report and Testimony
Defendant first argues that the trial court erred by admitting Dr. Calloway's report into evidence and by allowing her to testify about the report. Defendant specifically avers that information about defendant and the victim that was presented in Dr. Calloway's testimony and report was inadmissible under both the North Carolina Rules of Evidence 402, 404, and 802 and the Confrontation Clause of the United States Constitution because it allegedly discussed: 1.) defendant's history of illicit drug use, 2.) defendant having suffered from possible mental illness, 3.) defendant's character for untruthfulness, 4.) Dr. Calloway's opinion that defendant wanted to " obliterate" the victim, 5.) defendant's prior conviction for DWI, and 6.) sympathy for the victim and her good character.
i. Confrontation Clause
We first address defendant's argument that Dr. Calloway's report and testimony violated the Confrontation Clause of the United States Constitution because they contained third party statements from non-testifying witnesses who were not subject to cross-examination. We disagree.
" The standard of review for alleged violations of constitutional rights is de novo." State v. Graham, 200 N.C.App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766, 767 (2010). " The Confrontation Clause bars testimonial statements of witnesses if they are not subject to cross-examination at trial unless (1) the witness is unavailable and (2) there has been a prior opportunity for cross-examination." State v. Walker, 170 N.C.App. 632, 635, 613 S.E.2d 330, 333 (2005). However, " where evidence is admitted for a purpose other than the truth of the matter asserted, the protection afforded by
the Confrontation Clause against testimonial statements is not at issue." Id.
After reviewing the record, it is clear that the trial court admitted Dr. Calloway's report and testimony to the extent that it was relevant upon the issue of defendant's state of mind, not for the truth of the matter asserted (see the trial court's limiting instruction below). Accordingly, the third party statements found in Dr. Calloway's report and testimony were not inadmissible on Confrontation Clause grounds. See id.
ii. Relevancy and Prejudicial Effect
Evidence is relevant when it has " any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2013). Relevant evidence may be excluded " if its probative value is substantially outweighed by the danger of unfair prejudice[.]" N.C. Gen. Stat. § 8C-1, Rule 403 (2013). Moreover, " [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013). However, " where evidence is relevant for some purpose other than proving character, it is not inadmissible because it incidentally reflects upon character." State v. Anderson,
__ N.C.App. __, __, 730 S.E.2d 262, 267 (2012) (citations and quotation marks omitted). This Court reviews de novo the legal conclusion that the evidence is admissible to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident within the permissible coverage of Rule 404(b). State v. Green,
__ N.C.App. __, __, 746 S.E.2d 457, 461 (2013) (citation and quotation marks omitted).
Upon our review of issues arising from Rules 401 and 403, this Court has noted:
[a]lthough the trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal. Because the trial court is better situated to evaluate whether a particular piece of evidence tends to make the existence of a fact of consequence more or less probable, the appropriate standard of review for a trial court's ruling on relevancy pursuant to Rule 401 is not as deferential as the abuse of discretion standard which applies to rulings made pursuant to Rule 403.
Dunn v. Custer, 162 N.C.App. 259, 266, 591 S.E.2d 11, 17 (2004) (citations and quotation marks omitted).
Before Dr. Calloway testified, the trial court provided the jury with a limiting instruction regarding her testimony as to the report:
Let me -- I need to give the jury some limiting instructions with regard to this testimony. Okay?
Ladies and gentlemen, Ginger Calloway is not here as an expert witness. She is here as a fact witness. And as such, she is permitted to testify about her report, which I believe is State's Exhibit 406. The report itself is in evidence. The report and her testimony about it may be relevant in this trial but only to the extent it may have been read by the victim or read by the defendant or read by both and that it may have had some bearing on either of them or both of them that caused them to form impressions about the upcoming August 15 custody dispute. Therefore, this information should be considered only to the extent that you find it is relevant and it bears upon the state of mind of Grant Hayes or Laura Ackerson or of both of them on or about July 13 of 2011. Otherwise, you may not consider this information for any other purpose. It is not received into evidence to prove the truth or the accuracy of the matters contained in the report but only to the extent that that report, in reviewing it, affected the mind of the victim, the alleged victim, or the defendant. And therefore I caution you and ask you to limit your evaluation of this evidence solely for that purpose.
During jury instructions, the trial court re-emphasized that the jury could only consider Dr. Calloway's report and testimony related to that report for a limited purpose:
Ladies and gentlemen, State's Exhibit 406, a child custody evaluation report, and testimony from the author of that report was received into evidence for a limited purpose. You may consider that evidence only to the extent that you find it relevant on the issue of Laura Ackerson's state of mind and intentions regarding custody of her children on July 13, 2011, and the state of mind of the defendant on July 13, 2011, as it relates to child custody and to any motive or intent involving the crime charged in this case. You may consider this evidence only for that limited purpose and for no other purpose.
The report and testimony primarily focused on " what [were] [in] the best interests of the children with regard to parental access or custody." In answering this question, Dr. Calloway obtained background information about the relationship between defendant and the victim, met with both of them to " ask them for their concerns generally, and tr[ied] to get some sense of their interaction with each other[,]" and conducted psychological assessments in the form of home visits, behavioral observations, and interaction with the children. The report, which spans over fifty pages, also contains Dr. Calloway's written observations of: defendant's drug use, his possible mental illness, his untruthfulness toward her during the evaluation process, her opinion that defendant desired to " obliterate" the victim's relationship with the children, his prior conviction for DWI, and according to defendant, her sympathy for the victim.
Based on her findings, Dr. Calloway recommended, in relevant part, that both parents share legal and physical custody, both children enter preschool programs that will " compensate for any parental deficiencies exhibited by both parents[,]" defendant obtain a parent coach to help him " provide a greater sense of reassurance and comfort to his children[,]" defendant " be referred to a psychiatrist for evaluation regarding the question of a mood disorder or other possible explanations for the illogical, disturbed thinking he exhibits", random drug screens for both parents, and the court retain oversight over the family.
Thus, the " bad character" evidence purportedly discussed in the report and testimony, whether in fact true or not, was considered by Dr. Calloway in reaching her child custody recommendation. Because Dr. Calloway's report was arguably unfavorable to defendant and the report was found in defendant's car with handwritten markings throughout the document, Dr. Calloway's report and ensuing testimony were relevant for the State to argue the effect of the report on defendant's state of mind--that the report as a whole created some basis for defendant's ill-will, intent, or motive towards the victim.
Although the report incidentally reflected on defendant's character, the probative value of Dr. Calloway's report and testimony substantially outweighed the potential prejudicial effect to defendant. The reflections of defendant's character, which comprised a small portion of the report, were not admitted for the truth of the matters asserted. Rather, they were offered to demonstrate how the resulting recommendations were ...