No. COA10-1363 DISTRICT 3-A NORTH CAROLINA COURT OF APPEALS *************************************** STATE OF NORTH CAROLINA ) PITT COUNTY ) 05CRS53713 ) 05CRS5889 VS. ) ) VONZEIL ADAMS, ) Defendant. ) *************************************** DEFENDANT-APPELLANT’S BRIEF *************************************** ************************ INDEX ************************ TABLE OF CASES……………………………………… ……. iii OTHER AUTHORITIES……………………………………… iv ISSUES PRESENTED………………………………………… 1 STATEMENT OF THE CASE………………………………… 1 STATEMENT OF GROUNDS FOR APPELLATE REVIEW.. 3
Transcript
No. COA10-1363 DISTRICT 3-A
NORTH CAROLINA COURT OF APPEALS***************************************
STATE OF NORTH CAROLINA ) PITT COUNTY) 05CRS53713) 05CRS5889
VS. ))
VONZEIL ADAMS, )Defendant. )
***************************************
DEFENDANT-APPELLANT’S BRIEF
***************************************
************************
INDEX
************************
TABLE OF CASES……………………………………………. iii
OTHER AUTHORITIES……………………………………… iv
ISSUES PRESENTED………………………………………… 1
STATEMENT OF THE CASE………………………………… 1
STATEMENT OF GROUNDS FOR APPELLATE REVIEW.. 3
PROCEDURAL HISTORY…………………………………… 3
STATEMENT OF FACTS…………………………………….. 5
ARGUMENT:
1. THE TRIAL COURT ERRED WHEN IT DENIED THE MOTIONS TO DISMISS THE CHARGES.……………………………………… 14
STANDARD OF REVIEW……………………………………. 14
LAW AND ANALYSIS………………………………………. 15
A. The Trial Court Erred in Denying the Motion to Dismiss the Murder Indictment Because the State Failed to Produce Substantial Evidence that Jamaul Green Relied, in Fact, Upon Vonzeil Adams’ Alleged Statements. …………………………………..15
B. The Trial Court Erred in Denying the Motion to Dismiss the Multiple Counts of Discharging a Firearm Into Occupied Property Not Only Upon the State’s Evidence of Jamaul Green’s Use of a Semi-Automatic Weapon Establishing a Single Assault But Also on the Insufficient Evidence that the Home Was Occupied By Jasmine Cox When Green Fired His Weapon and That the Bullets Entered the Property……………………………………20
2. THE NATIONAL ACADEMY OF SCIENCES HAS PRODUCED TWO REPORTS, CONDEMNING THE THEORY OF BULLET FRAGMENT ANALYSIS AND BULLET CASINGS ANALYSIS AS LACKING ANY REAL BASIS IN SCIENCE. THESE REPORTS HAVE SHOWN THAT SUCH ANALYSIS IS NOT BASED UPON ANY REPRODUCEABLE SCIENTIFIC METHOD. THE DEFENSE PRODUCED SAID REPORTS FOR THE TRIAL COURT ALONG WITH THE TESTIMONY OF DR. ADINA SCHWARTZ WHO HAS BEEN QUOTED IN BOTH REPORTS BY THE N.A.S. THE TRIAL COURT ERRED IN ALLOWING THIS STATE TO INTRODUCE THE TESTIMONY OF AGENT DESMOND WHO CLAIMED NOT ONLY THAT THE BULLET CASINGS REVEALED THAT ONE GUN HAD BEEN USED BUT ALSO THAT
ii
THE BULLET FRAGMENTS SHOWED THAT THE FIREARM WAS A HI-POINT, 9MM FIREARM……… 23
NORTH CAROLINA COURT OF APPEALS***************************************
STATE OF NORTH CAROLINA ) PITT COUNTY) 05CRS53713) 05CRS5889
VS. ))
VONZEIL ADAMS, )Defendant. )
***************************************
DEFENDANT-APPELLANT’S BRIEF
***************************************
ISSUES PRESENTED
1. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED THE MOTIONS TO DISMISS THE CHARGES?
2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING THE STATE TO INTRODUCE EVIDENCE THAT THE DEFENSE SHOWED THROUGH TESTIMONY AND DOCUMENTARY EVIDENCE THAT THE NATIONAL ACADEMY OF SCIENCES HAS CONCLUDED LACKS SUFFICIENT SCIENTIFIC RELIABILITY?
STATEMENT OF THE CASE
At the 23 February 2009 Criminal Session of Pitt County Superior
Court, the District Attorney called this case for trial, charging Vonzeil
Adams on true bills of indictment with second-degree murder, three counts
of discharging a firearm into occupied property, and fourteen counts of
1
assault with a deadly weapon.1 The Honorable W. Russell Duke, Jr.,
presided. After a jury announced it was unable to reach a unanimous
verdict, the Court declared a mistrial, on March 2, 2009.
At the 22 March 2010 Criminal Session of Pitt County Superior
Court, the District Attorney again called this for trial. The Honorable
Clifton W. Everett, Jr. presided. In a pre-trial hearing, the Court denied the
defendant’s motion to exclude the State’s ballistics evidence and also denied
the defendant’s motion to dismiss the indictments.
The State presented evidence. The court denied the defendant’s
motions to dismiss at the conclusion of the State’s evidence. The defendant
presented evidence and at the conclusion of which the trial court allowed the
defendant’s motion to dismiss one count of assault with a deadly weapon2
and again denied the defendant’s motion to dismiss the other charges.
The jury returned a unanimous verdict finding the defendant guilty of
voluntary manslaughter, three counts of discharging a firearm into occupied
property, and one count of assault with a deadly weapon. The trial court
1 The indictments charged first-degree murder and fourteen counts of assault with a deadly weapon with intent to kill. The State theorized that Ms. Adams aided and abetted Jemaul Green. After a jury convicted Green of second-degree murder and assault with a deadly weapon, the State elected to proceed on those same charges against Ms. Adams. The three counts of discharging a firearm into occupied property also remained.2 The Court dismissed the thirteenth count of assault with a deadly weapon involving the alleged victim “Victoria Whitaker”.
2
sentenced Vonzeil Adams to consecutive terms of imprisonment in the
North Carolina Department of Corrections.
In 05 CRS 53713, for the conviction of voluntary manslaughter, the
Court imposed an active sentence of 64 months minimum to 86 months
maximum. In 05 CRS 5889, for one count of discharging a firearm into
occupied property, the Court imposed an active sentence of 24 months
minimum to 38 months maximum. The Court consolidated for judgment the
remaining two counts of discharging a firearm into occupied property,
imposing an active sentence of 24 months minimum to 38 months
maximum. For the conviction for assault with a deadly weapon, the Court
imposed an active sentence of 150 days in the Department of Corrections.
The defendant entered timely notice of appeal on 6 April 2010.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
This Court has jurisdiction over this appeal by virtue of N.C.G.S.
§7A-27(b) and N.C.G.S. §§15A-979, 15A-1442 and 15A-1446. Vonzeil
Adams entered timely notice of appeal on 6 April 2010. (T. p. 1889).
PROCEDURAL HISTORY
Prior to trial, Vonzeil Adams’ filed a motion, seeking to exclude the
testimony and report from Beth Desmond3, one of the S.B.I. firearms
3 Agent Desmond is a graduate of the John Jay College of Criminal Justice, in New York City, with a degree in forensic science. (T.p.31).
3
examiners, (R.p.13-74), providing the trial court with studies that showed
such evidence is not the product of reliable, scientific analysis. (R.p.22-74).
Dr. Adina Schwartz, a professor at the John Jay College of Criminal Justice
and also at the Graduate Center of the City University of New York4
testified in support of the motion. (T.p.111).
Dr. Schwartz explained that the standards for examination in this area
are subjective, dependent upon the individual examiner’s interpretations.
(T.p.125-127). Specifically, the National Academy of Sciences (N.A.S.)
published two reports, finding that the underlying theory5 for firearms and
tool marks examination has not been scientifically established.
(T.p.128;R.p.22-74). The N.A.S. report also heavily criticized the theory
for its lack of a reliable method of calculating an error rate. (T.p.143).
Furthermore, even with the tests conducted by Agent Desmond, she failed to
follow the recommendations and standards of the Association of Firearm
and Tool Mark Examiners (A.F.T.E.) and the S.B.I. manual. (T.p.153-156).
The trial court denied the motion. (T.p.196).
4 At the time of this trial, the City University of New York was the only graduate school in the country, offering a forensic science track in its doctoral degree program. (T.p.112).5 The underlying theory is that a firearm makes unique and reproducible marks. (R.p.22).
4
At the close of the State’s evidence and again at the close of all of the
evidence, the defendant moved to dismiss the charges, which the trial court
denied. (T. p.1185, 1638). 6
STATEMENT OF FACTS
On Tuesday, 19 April 2005, in the early afternoon, an argument
erupted between two groups of young women near Sixth Street and High
Street, in Ayden. (T. p.462-3; 549). One group of young women was in a
blue colored Dodge Neon7, which included Vonzeil Adams, while the other
group had a large assembly of people gathered8 in an abandoned lot. (T.
p.630). “[E]verybody was just cussing, fussing, back and forth between one
another.” (T. p.549, 600).
One of the women in the vacant lot, Loretta Strong, a dropout from
Ayden-Grifton High School did not live near Sixth and High Streets. (T.
p.459). Her grandmother, Lossie Haddock lived in a house on the corner of
those streets . Strong’s mother, Jacquelin Haddock Suggs was also there and
she saw Vonzeil Adams, whom she has known since Ms. Adams was an
6 In 05CRS5889, the trial court dismissed the charge of assault with a deadly weapon as to “Victoria Whitaker”. (T.p.1641). 7 Shaquila Roach, Tamara Thomas, Kadorsky Adams, and Ebony Green were also in the Neon.8 At least eight women and as many as ten loitered in the vacant lot when the Neon stopped. (T. p.662-664).
5
infant based upon her close friendship with Ms. Adams’ mother.9 (T.
p.599).
Ms. Suggs called to Ms. Adams and spoke to her, encouraging Ms.
Adams to talk with her about what was happening. (T. p.602-603). Ms.
Adams asked Ms. Suggs to “keep your kids away from my house, keep your
kids away from my sister”. (T. p.1360). The conversation deteriorated,
resulting in “fussing” and Suggs angrily stating that she was calling the
police. (T. p.1483, 1486). According to Ms. Suggs, Ms. Adams told her
that she would return, that she had “something for them”. (T. p.603). After
this brief encounter, Strong, joined by several other of the young women,
traveled to Ms. Adams’ home. (T. p.464-465).
Brooding over the year-long feud, (T. p.759), Laticia Whitaker drove
her car with her cousin, Arnessie Payton and Strong riding with her. (T.
p.552). As they reached Ms. Adams’ home, the women yelled at Ms.
Adams, (T. p.553), who stood in her yard, saying nothing in return. (T.
p.667). The women repeatedly drove by Ms. Adams’ home, yelling and
cursing at her throughout the day. (T.p.1492).
After dinner, Strong sat on her grandmother’s porch. There were
fifteen women milling about that porch, including Ms. Haddock, Jasmine
9 By April 2005, Ms. Adams’ mother had passed. (T. p.599).
6
Cox, Arnessie Payton (Strong’s cousin), Sierra Haddock (Strong’s sister),
Lossie Haddock, Frances Jones( Strong’s great aunt), Victoria Gardner,
Patrice Smith (Strong’s cousin), Lizzie Whitaker, Laticia Whitaker, Rakeeta
Haddock (Strong’s cousin), and Margaux Bruce. (T. p.468-470, 546).
Meanwhile, Christopher Foggs, whose grandmother lived next door,
played with Rico and Chico Haddock, “in a house”, (T. p.470), playing
video games and also outside, running back and forth between the two
homes and in the two yards. (T. p.601, 1086). While sitting on her
grandmother’s porch, Strong saw Ms. Adams in a red Caprice. (T. p.471,
476).
After the women from Sixth and High Streets repeated their drive-by
harassment, Vonzeil Adams had started walking to that area to confront
them. (T.p.1492). Jamaul Green had the Caprice and offered to drive Ms.
Adams and the other girls. (T. p.1493). Green drove the car, stopping it at
the corner, near a tree. (T. p.477). There had been no discussions between
the five people in the car about shooting anyone or shooting into any house.
(T. p.1325, 1498-1499). None of the girls knew that Jamaul Green had a
firearm.
7
Ms. Adams got out of the car and walked towards Ms. Haddock’s
house, “fussing”, (T. p.477), and asking, “why are y’all constantly riding by
my house”. (T. p.1351). By this time, three other girls had emerged from
the Caprice, while the driver remained in the car. Tamara Thomas,
Kadorsky Adams, and Tashua Hardy10 stepped out from the car. (T. p.638).
Strong immediately jumped from her seated position on her grandmother’s
porch and advanced on Ms. Adams. (T. p. 478).
The women on the porch recognized Strong’s charge as the start of a
fight because the women “had previous times that we done [sic] fought them
before”. (T. p.690). Despite Strong’s intention to assault Ms. Adams, (T.
p.509), one of the women from the porch grabbed Strong from behind and
held her and the two did not physically engage each other. (T. p.478-479).
Tashua Hardy stood behind Ms. Adams, while Adams and Strong
argued. (T. p.1326). With at least twenty people around that street, with
many of them yelling, (T.p.1500), during the argument, Hardy heard a
gunshot and turned to see Green with a handgun. (T. p.1326). At the same
time, Ebony Greene remained in the back seat of the Caprice. (T.p.1352).
As Ms. Adams and Strong began to argue, Ebony Greene heard
gunshots and screams. (T. p.1352-1353). Until he discharged the weapon,
10 Hardy was the front seat passenger. The other girls sat in the rear seats. (T. Vol. VII, p.1324-1325).
8
the girls did not know that he had it in his possession. (T. p.1325,1353).
Vonzeil Adams had not said anything to Jemaul Green about shooting or
getting a gun. (T. p.1326,1352,1504-1505, 1506-1507). After hearing the
first shot, Hardy urged Ms. Adams to leave, returning to the Caprice. (T.
p.1327). Jemaul Green had shot into the air after which another person
appeared, between the homes, shooting at him and Green returned fire.
(T.p.1663). Green did not fire his weapon based upon any urging from Ms.
Adams. (T.p.1572-1573).
Latisha Whitaker watched the incident from the porch. She provided
statements to law enforcement in 2005 and again in 2006, confirming the
fact that Ms. Adams had not made statements about shooting or getting a
gun. (T. p.1400). Sitting on the porch, Victoria Gardner studied the scene.
She saw these girls, hanging out of the back of the Caprice. (T.
p.1250). Watching it pull to the side of the road, Ms. Gardner noticed a
male got out almost simultaneously as Ms. Adams stepped out from the car.
(T. p.1254). As Ms. Gardner heard “fussing” by Ms. Adams with another
girl, Jemaul Green fired two shots into the air and Ms. Gardner fled behind a
house. (T. p.1251). During her observations, Ms. Gardner did not hear Ms.
Adams make any statements about shooting or getting a gun. (T. p.1251,
1261, 1276).
9
After two trials and hours of discussion amongst the family, (T.
p.648-650, 681,721,1129), Strong claimed that while facing Ms. Adams, she
said “get the gun and shoot” to the Caprice’s driver, (T. p.479, 483), who got
out of the car and shot twice, into the air. (T. p.479). Kendra Conyers
recalled that upon her arrival, Ms. Adams had immediately made statements
about shooting the women and twice said “get the gun”. (T. p.671).
Jasmine Cox and Juanita Conyers claimed Ms. Adams walked up to
the house and said “shoot” twice, (T. p.712, 743), while Tracy Taft recalled
that she said “shoot that bitch”. (T. p.1089). At the same time, with her
back turned from the street and entering the house during the argument, (T.
p.652), Sierra Haddock remembered that a pregnant Vonzeil Adams ran
back to the Caprice and from some distance heard her say “get the gun” two
times, after which she heard two shots. (T. p.641). While Patrice Smith saw
all of the young women get out of the car and approach the porch with Ms.
Adams ahead of the others, she heard Ms. Adams immediately say, “get the
gun” and “shoot them [sic] bitches”. (T. p.777).
Sitting on the porch, watching the same events, Arnessie Payton heard
Ms. Adams curse and say “go get the gun”, (T. p.564), after which Payton
reported that Green pulled a gun from his pants and shot once in the air. (T.
10
p.565). According to Payton, no one responded to that shot, continuing to
argue with each other, including Strong and Ms. Adams. (T. p.565).
Conversely, she also maintained that Green did not fire until after Ms.
Adams and Strong concluded their argument and Ms. Adams had returned to
the Caprice. (T. p.575). In fact, Payton asserted that Ms. Adams was seated
in the Caprice before the shooting occurred. (T. p.575). Payton claimed that
Green then aimed toward the house and started firing, which did not cause
any reaction until a bullet hit Whitaker’s car parked in front of the residence.
(T. p.565).
At that point, everyone scrambled inside the home, ending up in the
living room. Three bullets hit the home. (T. p.573, 846). As Loretta
Strong ran into the house, she heard yelling and screaming, (T. p.514), and
the Caprice left.
Between Lossie Haddock’s home and the neighbor’s home,
Christopher Foggs lay, bleeding from his chest. (T. p.569). Several people
called for emergency services, while others’ emotions overcame them. (T.
p.569). At 8:09 p.m., doctors pronounced Christopher Foggs dead. (T.
p.806). An autopsy revealed that the boy died from a single gunshot wound
to the chest that he received while facing the shooter and turning to his right.
(T.p.815, 819). No projectile was recovered. (T. p.818).
11
Each witness had provided different testimony and statements about
this event. Most interestingly, Loretta Strong, Arnessie Payton, Kendra
Conyers, had not only made no mention of the purported “get the gun” or
“shoot” comments that they attribute to Vonzeil Adams in their statements
to law enforcement on the day of the shooting but also testified in two other
trials without mentioning those alleged remarks, while Jasmine Cox omitted
them from her statement to law enforcement in April 2005.
Beginning with Loretta, she had testified in the previous trials,
describing Ms. Adams’ statements on the night in question as “a lot of
fussing”. (T. p.507). During a meeting with one of the assistant district
attorneys11 and an officer from the Ayden Police Department, Strong did not
state that Ms. Adams had either urged the driver to get a gun or to shoot. (T.
p.523). By 2009, however, Strong not only offered testimony that Ms.
Adams had made the statement, which Strong “guessed” was directed at
Jemaul Green12, (T. p.529-530), but also testified that she could not
remember what Ms. Adams had said. (T. p.535).
Likewise, on the night of the shooting, Arnessie Payton spoke with
law enforcement, describing the incident and its genesis, making no mention
of any statement by Vonzeil Adams. (T. p.581). Payton also testified that 11 On 20 July 2006, Strong met with Assistant District Attorney Glenn Perry and Tim Moseley with the Ayden Police Department. Mr. Perry did not participate in this trial.12 Strong only knew Green as “Mob Cat”. (T. Vol. III, p.472).
12
she heard one shot, during her 2006 testimony. (T. p.592). Similarly,
neither Juanita Conyers nor Kendra Conyers provided any information to
law enforcement on 19 April 2005 about Ms. Adams’ allegedly saying
“shoot” or “get the gun”. (T. p.678-680, 721). During her testimony, in
2006, Kendra Conyers also did not offer any testimony, attributing those
comments to Vonzeil Adams or anyone else. (T. p.679). While in her 2009
testimony, Juanita Conyers claimed to have heard some comments, after the
shooting started. (T. p.727, 730-731). Additionally, even Jacqueline
Haddock Suggs had earlier testified differently.
Unlike her 2010 testimony, Ms. Suggs had previously testified that the
statement she attributed to Ms. Adams about returning and having
“something for them” actually came from some girls in the group. (T. p.
614). Ms. Suggs had, in fact, previously testified that none of the girls had
threatened each other. (T. p.613-614).
Investigators arrived at the scene that same evening, collecting eight
shell casings from the base of the tree, (T. p.874), collecting projectile
fragments from Haddock’s home and near Whitaker’s car, (T. p. 852),
observing an apparent bullet hole in Whitaker’s car’s windshield and bullet
holes in the Haddock’s eaves (T. p.850). The investigators identified the
13
shell casings as Luger-9mm casings and sent them to the S.B.I. for analysis.
(T. p. 895-896).
Over defendant’s objection, Beth Desmond, a firearms examiner
testified that she inspected the shell casings, concluding that the shell
casings were all fired from the same gun (T. p. 981), and that two of the
projectiles had indications that when entered into a database produced a
reference to the gun manufacturer Hi-Point . (T. p.993-994).
ARGUMENT
1. THE TRIAL COURT ERRED WHEN IT DENIED THE MOTIONS TO DISMISS THE CHARGES.
STANDARD OF REVIEW
This Court reviews a trial court’s denial of a motion to dismiss de
novo, considering whether the State presented substantial evidence of each
element of the offense and that the defendant was the perpetrator. State v.
Hart, 179 N.C. App. 30, 39, 633 S.E.2d 102, 108 (2006), reversed on other
grounds, 361 N.C. 309, 644 S.E.2d 201 (2007). In evaluating the
sufficiency of the evidence, the reviewing court examines the evidence in
the light most favorable to the State, giving the State the benefit of all
reasonable inferences. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d
“The standard of review of a trial court's denial of a motion to set
aside a verdict for lack of substantial evidence is the same as reviewing its
denial of a motion to dismiss.” State v. Duncan, 136 N.C. App. 515, 520,
524 S.E.2d 808, 811 (2000).
LAW AND ANALYSIS
A. The Trial Court Erred in Denying the Motion to Dismiss the Murder Indictment Because the State Failed to Produce Substantial Evidence that Jamaul Green Relied, in Fact, Upon Vonzeil Adams’ Alleged Statements.
The trial court erred in denying the defendant’s motions to dismiss the
murder indictment. In this case, the State did not introduce sufficient
evidence that Vonzeil Adams’ presence or purported words, in fact,
contributed to Jamaul Green’s decision to fire his handgun. Conversely, in
the defendant’s evidence, Jemaul Green’s prior trial testimony revealed that
he did not fire his weapon in response to any statement by Ms. Adams.
Rather, he fired his weapon, after being fired upon by someone else. As
such, the trial court erred when it denied the motions and the charge should
have been dismissed.
“A person is guilty of a crime by aiding and abetting if (i) the crime
was committed by some other person; (ii) the defendant knowingly advised,
instigated, encouraged, procured, or aided the other person to commit that
crime; and (iii) the defendant's actions or statements caused or contributed to
15
the commission of the crime by that other person.” State v. Goode, 350 N.C.
247, 260, 512 S.E.2d 414, 422 (1999).
“A person aids or abets in the commission of a crime within the
meaning of this rule when he shares in the criminal intent of the actual
perpetrator.” State v. Little, 278 N.C. 484, 487, 180 S.E.2d 17, 19 (1971).
To support a conviction on a theory of aiding or abetting, there must be
substantial evidence that defendant's conduct amounted to more than mere
presence at the scene. State v. Aycoth, 272 N.C. 48, 157 S.E.2d 655 (1967).
The intent to aid or abet is also required. State v. Sanders, 288 N.C. 285,
presence and purpose do, in fact, encourage the actual perpetrator to commit
the crime.”).
16
In State v.Lewis, 27 N.C.App. 426, 219 S.E.2d 554 (1975), review
denied, 289 N.C. 141, 220 S.E.2d 799 (1976), Mrs. Lewis had an extra-
marital affair with Tom Richardson who came upon husband and wife
during an argument. Richardson shot and killed Mr. Lewis for which he was
convicted of second-degree murder. Id. at 430, 219 S.E.2d at 558. In
finding the State’s evidence insufficient to support Mrs. Lewis’ conviction
for second-degree murder, this Court held not only that the person must
share the principal’s intent and offer encouragement or assistance but also
that a person’s “presence and purpose do, in fact, encourage the actual
perpetrator to commit the crime”. Id. at 430-431, 219 S.E.2d at 558
(emphasis added).
In other words, the principal must actually rely upon the presence and
assistance or encouragement of the other person to support conviction upon
a theory of aiding and abetting. While strong circumstantial evidence
existed to support a suspicion that Mrs. Lewis shared Richardson’s criminal
intent, including her actions before and after the shooting, it was insufficient
to support submission to the jury.
That same circumstance exists in this case. While there is strong
evidence that contradicts the claims that Ms. Adams said “shoot” or “get the
gun” or words to that effect, the appellant recognizes that such factual
17
determinations are resolved by the jury. State v. Robledo, 193 N.C. App.
521, 524-525, 668 S.E.2d 91, 94 (2008). Even assuming that she spoke
some words to that effect, there is no evidence that the principal, Jamaul
Green actually relied upon those words in his firing of his handgun.
Conversely, Green has testified that he fired his weapon in response to
being fired upon by another person. Without his reliance upon any of those
alleged words of encouragement, there is no other evidence upon which the
State may rely in supporting Ms. Adams’ conviction for voluntary
manslaughter. The trial court should not have submitted the charge to the
jury. Presuming that Ms. Adams made some comments about a gun or
shooting, there is no evidence that she communicated them to Jamaul Green.
The encouragement or intent to assist must be communicated to the
actual perpetrator. State v. Burton, 119 N.C.App. 625, 635, 460 S.E.2d 181,
189 (1995). In Burton, the jury convicted Montrick Burton of voluntary
manslaughter in the death of Carlos Howard. Burton along with his cousin,
Patrick Burden stood at each other’s side, firing handguns in the direction of
Carlos Howard. Burton, 119 N.C.App at 635-636. Burton told his cousin,
“Shoot him, shoot him. I’ll get you out of jail.” Id. at 636. Howard died.
This Court found that encouragement, directly communicated to
Burden sufficient evidence to support Burton’s conviction upon the theory
18
of aiding and abetting. This Court also relied upon the relationship between
the two, specifically the fact that they are cousins and also friends.
Unlike the facts in Burton, in this case, all of the evidence related to
Ms. Adams’ alleged statements is that she made them in the street, near the
Haddock home. The principal, Jamaul Green was seated in the Caprice
more than ninety feet away from Ms. Adams. Even in the light most
favorable to the State, there simply is not substantial evidence that Ms.
Adams communicated any alleged words about a gun or shooting to Green.
Ebony Green, sitting behind Jamaul, in the Caprice did not hear any
such words. Jamaul Green testified that he did not act upon any words from
another person. There is clearly conflicting evidence as to whether Ms.
Adams made any such statements. She adamantly denied making any of
them, in her testimony, while other witnesses offered new versions of the
events during the 2010 trial to specifically include allegations that she said
“shoot” and “get the gun”. Even considering those new assertions by the
Haddock family members, the State lacked substantial evidence that Ms.
Adams communicated any such words to Jamaul Green.
That lack of substantial evidence required the trial court to dismiss the
charges related to the murder indictment. Its failure to allow the motion to
19
dismiss at the close of the State’s evidence and again at the close of all of the
evidence was error.
As such, this Court should vacate Ms. Adams’ conviction for
voluntary manslaughter.
B. The Trial Court Erred in Denying the Motion to Dismiss the Multiple Counts of Discharging a Firearm Into Occupied Property Not Only Upon the State’s Evidence of Jamaul Green’s Use of a Semi-Automatic Weapon Establishing a Single Assault But Also on the Insufficient Evidence that the Home Was Occupied By Jasmine Cox When Green Fired His Weapon and That the Bullets Entered the Property.
“The elements of [discharging a firearm into occupied property] are
(1) willfully and wantonly discharging (2) a firearm (3) into property (4)
while it is occupied.” State v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510,
512 (1995); see also N.C.G.S. §14-34.1.
In Rambert, the defendant pulled his car next to the victim’s car, in a
parking lot, producing a handgun and firing a single shot into the victim’s
windshield. While the victim sped forward, the defendant fired a second
shot into the passenger door of the victim’s car. Finally, while continuing
to follow the victim, the defendant fired another shot into the bumper of the
victim’s car. Rambert, 341 N.C at 176, 459 S.E.2d at 512-513. The
Supreme Court found that evidence sufficient to support Rambert’s multiple
convictions for discharging a firearm into occupied property, relying upon
20
the fact that Rambert’s use of the handgun required him to “employ his
thought processes each time he fired the weapon” and that each shot was an
“act ... distinct in time, and each bullet hit the vehicle in a different place.”
Id. The Court applied this same logic, upholding multiple convictions for
discharging a firearm into occupied property when the defendant employed a
handgun. State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999). This Court
has, however, rejected this proposition when the firearm is a semi-automatic.
In State v. Maddox, 159 N.C. App. 127, 132-133, 583 S.E.2d 601,
604-605 (2003), this Court relied upon the Supreme Court’s conclusion in
State v. Stager, 329 N.C. 278, 293, 406 S.E.2d 876, 884-885 (1991),
recognizing that “[w]hen a semi-automatic weapon is fired ‘it will fire the
round that is in the chamber, eject the spent casing and move another round
from the magazine into the firing chamber. Such a pistol automatically cocks
itself for the second round.’” Maddox, 159 N.C. App. at 133, 583 S.E.2d at
605 (quoting Stager, 329 N.C. at 293, 406 S.E.2d at 884-885). This Court
also adopted its analysis in State v. Antoine, 117 N.C. App. 549, 551, 451
S.E.2d 368, 370 (1995), that “a semi-automatic weapon ‘may be used
normally to fire several bullets … in rapid succession.’” Maddox, 159 N.C.
App. at 133-134.
21
Taking the evidence in the light most favorable to the State, according
to Agent Desmond, Jamaul Green fired a Hi-Point, 9mm, semi-automatic
pistol, on 19 April 2005. The testimony supports the fact that the shots
occurred in rapid succession.
Therefore, this case is not like the situations in Nobles and Rambert in
which each shot represented the culmination of the defendant’s “ … thought
processes each time he fired the weapon” and that each shot was an “act ...
distinct in time… .” Id. Instead, the use of that semi-automatic handgun
and the rapid succession of shots fired by Green are part of one act.
As such, the trial court erred when it denied the motions to dismiss the
multiple charges of discharging a firearm into occupied property.
In addition, the State failed to introduce substantial evidence that the
home was actually occupied by Jasmine Cox, during the shooting. She
testified that she was outside, on the porch, when she heard the shots. In
fact, no witness for the State established that any person was inside of the
home when the shots were fired. Ms. Cox alleged that she heard additional
shots, after she entered the living room. There is no substantial evidence,
however, that any shot went “into” the home, while Cox was in that room.
Without such evidence, the trial court erred when it denied the motions to
dismiss these charges.
22
Lastly, there is not substantial evidence that any bullets went “into”
the property. The investigators recovered bullet fragments near the car
parked in front of the home. They also saw holes in the “eaves” of the
house. There was not, however, any evidence introduced that any of the
bullets entered “into” the property.
As such, the trial court erred when it denied the motion to dismiss
these charges.
2. THE NATIONAL ACADEMY OF SCIENCES HAS PRODUCED TWO REPORTS, CONDEMNING THE THEORY OF BULLET FRAGMENT ANALYSIS AND BULLET CASINGS ANALYSIS AS LACKING ANY REAL BASIS IN SCIENCE. THESE REPORTS HAVE SHOWN THAT SUCH ANALYSIS IS NOT BASED UPON ANY REPRODUCEABLE SCIENTIFIC METHOD. THE DEFENSE PRODUCED SAID REPORTS FOR THE TRIAL COURT ALONG WITH THE TESTIMONY OF DR. ADINA SCHWARTZ WHO HAS BEEN QUOTED IN BOTH REPORTS BY THE N.A.S. THE TRIAL COURT ERRED IN ALLOWING THIS STATE TO INTRODUCE THE TESTIMONY OF AGENT DESMOND WHO CLAIMED NOT ONLY THAT THE BULLET CASINGS REVEALED THAT ONE GUN HAD BEEN USED BUT ALSO THAT THE BULLET FRAGMENTS SHOWED THAT THE FIREARM WAS A HI-POINT, 9MM FIREARM.
STANDARD OF REVIEW
This Court reviews the trial court’s decision on the admissibility of
expert testimony on an abuse of discretion standard. Howerton v. Arai
N.C.G.S. §8C-1, Rule 702 (a) provides that “[i]f scientific, technical
or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion.” Furthermore, N.C.G.S. §8C-1, Rule 104 (a)
establishes that “[p]reliminary questions concerning the qualification of a
person to be a witness ... shall be determined by the court....” Trial courts are
not bound by the rules of evidence when making these determinations. Id. It
is well established that “trial courts are afforded ‘wide latitude of discretion
when making a determination about the admissibility of expert testimony.’ “
Howerton v. Arai Helmet, Ltd., 358 N.C. at 458, 597 S.E.2d at 686.
Similarly, “our trial courts are ... vested with broad discretion to limit the
admissibility of expert testimony as necessitated by the demands of each
case.” Id. at 469, 597 S.E.2d at 692.
In Howerton, the Supreme Court set forth a three-step inquiry for
evaluating the admissibility of expert testimony: (1) Is the expert's proffered
method of proof sufficiently reliable as an area for expert testimony? (2) Is
the witness testifying at trial qualified as an expert in that area of testimony?
(3) Is the expert's testimony relevant? Id. (internal citations omitted).
24
In this case, the defense demonstrated to the trial court that this type
of evidence lacks support in the scientific community. In fact, the N.A.S.
has specifically refuted its validity. The N.A.S., in its two reports about the
state of forensic science in the courts has found that there is no support,
underlying the very theory upon which firearms examination and tool mark
examination testimony is based. In other words, the N.A.S. found no study
that supported the basic theory employed by the analysts in this alleged field
of study. The lack of said study is the basis for the N.A.S.’ conclusion that
this type of analysis cannot be considered scientifically reliable.
Dr. Adina Schwartz, a professor at the very university from which the
State’s witness received her degree, outlined for the trial court those
deficiencies. Dr. Schwartz explained the findings in the two N.A.S. reports
and also explained the deficiencies in the S.B.I.’s procedures, which do not
even meet the criteria to which that the agency claims to comply. In other
words, even the analysis performed by Agent Desmond did not meet the
criteria of the accrediting agency to whose standards Agent Desmond
claimed that the agents must meet.
The trial court refused to accept the reports and refused to accept Dr.
Schwartz’s explanation of them. The trial court noted that it had previously
25
allowed that type of testimony and would allow Agent Desmond to testify as
an expert in that field again.
The trial court’s decision constitutes an abuse of discretion, and as
such, Vonzeil Adams deserves a new trial at which said evidence is
excluded.
CONCLUSION
For all of the foregoing reasons, the defendant-appellant respectfully
requests that this Court reverse and vacate Vonzeil Adams’ judgments of
conviction or order a new trial in this matter.
Respectfully submitted, this the 10th day of January, 2011.
ELECTRONICALLY SUBMITTED Geoffrey W. HosfordAttorney for Defendant-AppellantState Bar No. 21239P.O. Box 1653Wilmington, NC 28402(910)[email protected] or [email protected]
