State v. McKenzie

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA12-290 NORTH CAROLINA COURT OF APPEALS Filed: 16 November 2012 STATE OF NORTH CAROLINA v. Guilford County No. 09CRS083005 CHARLES ANTOINE MCKENZIE Appeal by Defendant from judgment entered 29 July 2011 by Judge William Z. Wood, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 11 September 2012. Attorney General Roy Cooper, by Special General I. Faison Hicks, for the State. Deputy Attorney Parish & Cooke, by James R. Parish, for Defendant. BEASLEY, Judge. Defendant appeals from his conviction murder in violation of N.C. Gen. Stat. § 14-17. of first-degree For the reasons stated below, we find no error. Edwin Cornelius was on his way to First Presbyterian Church in downtown Greensboro, North Carolina, on the morning of 9 November 2008 when he, and Jasmine Rowe who was out walking her dog, heard a moan and four pops that he identified as pistol -2shots. Moments earlier, he witnessed two African-American men walking north on Elm Street in the direction of convenience store, located at 600 North Elm Street. men was wearing a sweatshirt. Red Mike s One of the The other man was wearing a black coat and a black hat with a bill. The man in the coat was on a cell shots, phone. After hearing the Mr. Cornelius turned toward Red Mike s and saw the man in the coat and hat run from the store as did Ms. Rowe. Avenue. The suspect fled east on Fisher Mr. Cornelius described the suspect to police as being 5 10 or 5 11 and weighing 180 to 190 pounds. Mr. Cornelius went to the store to investigate and met a doctor and his wife who were also on their way to church. The doctor said a man had been Mike shot. The victim, Mohammed Hassan Ali, the proprietor of Red Mike s, was taken to Moses Cone Hospital and later pronounced dead. Later that evening around 4 p.m., Cass Catlett discovered a black fleece pullover in a trash can outside of her home on Magnolia Street in Fisher Park. Crime scene investigators and police officers also found a black jacket, a black hat, and a pair of sunglasses in Ms. Catlett s neighbors trash can. handgun was found inside the sleeve of the black A jacket. -3Subsequent forensic ballistics testing revealed that this handgun fired the bullets that were recovered at Red Mike s. The following morning on 10 November 2008, Detective Mike Matthews received an anonymous phone call routed to him through Crime Stoppers. eating Mike s, at The caller said that he and his wife had been Ganache, on the a morning restaurant of the in close murder. proximity The caller to Red reported having seen a light-skinned African-American male suspiciously pacing back and forth on North Elm Street. approximately 6 0 tall and heavyset with a gut. The man was He was wearing a black jacket, a black cap with no writing, sunglasses, and black boots. A second man joined him, and they walked toward Red Mike s. This information led Greensboro Inn, Detective Matthews to the located in the vicinity of Red Mike s, from which direction the anonymous caller said that the suspect had come. Detective Matthews spoke with Lavonne Chambliss, a motel employee. by the After Detective Matthews described the suspect seen anonymous caller, Ms. Chambliss stated that the description fit Defendant, a regular customer at the inn. Ms. Chambliss indicated that the victim also used to stay at the inn and that Defendant and the victim knew one another. -4Defendant January 2009 Detective went to Mike to the retrieve Terry that police his he station cell had phone. lost his voluntarily on Defendant cell phone 6 told on 1 November 2008 and did not get it back until 10 November 2008. Prior to the introduction of DNA evidence at trial, Defendant filed a motion to suppress, arguing that the search warrant affidavit lacked probable cause and/or was sworn out in bad faith. This motion was denied. Defendant also objected to this evidence at trial. Defendant did not testify. Defendant s mother testified that her son was at her apartment on the morning of the murder and that he did not leave her apartment until 10:20 a.m. After the jury began its deliberations, Defendant requested the trial court s permission to submit an exhibit to the jury not admitted misinterpreted in evidence the Cricket to cell show that the phone records. State had Defendant s request was denied. Defendant was found guilty of first-degree murder on 29 July 2011 and sentenced possibility of parole. to life in prison without Defendant now appeals to this Court. the -5Defendant argues that the search warrant affidavit by Detective Terry lacked probable cause and was sworn out in bad faith. We disagree. We review a denial of a motion to dismiss by determining whether competent evidence supports the trial court s findings of fact and whether the findings of fact support the conclusions of law. State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011). When the defendant does not challenge the trial court s findings of fact, they are deemed to be supported by competent evidence and are binding on appeal. S.E.2d at 878. Id. at 168, 712 The trial court s conclusions of law, however, we review de novo. Id. The affidavit is sufficient if it supplies reasonable cause to believe that the proposed search for evidence probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender. Probable cause does not mean actual and positive cause nor import absolute certainty. The facts set forth in an affidavit for a search warrant must be such that a reasonably discreet and prudent person would rely upon them before they will be held to provide probable cause justifying the issuance of a search warrant. A determination of probable cause is grounded in practical considerations. State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256-57 (1984)(citations omitted). There are additional considerations -6when probable cause is based on information from an informant: (1) whether the informant was known or anonymous, (2) the informant s history of reliability, and (3) whether information provided by the informant corroborated by the police. could be and was independently State v. Collins, 160 N.C. App. 310, 315, 585 S.E.2d 481, 485 (2003), aff d per curiam, 358 N.C. 135, 591 S.E.2d 518 (2004). Section 15A 978(a) of the General Statutes permits a defendant to challenge the truthfulness of the allegations forming the basis for probable cause to issue the search warrant. Our case law shows that [i]t is elementary that the Fourth Amendment s requirement of a factual showing sufficient to constitute probable cause anticipates a truthful showing of facts. State v. Fernandez, 346 N.C. 1, 13, 484 S.E.2d 350, 358 (1997)(citing Franks v. Delaware, 438 U.S. 154, 164 65, 57 L.Ed.2d 667, 678 (1978)). Truthful, as intended here, does not mean . . . that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant s own knowledge that sometimes must be garnered hastily. Rather, truthful in this context means that the information put forth is believed or appropriately accepted by the affiant as true. -7Id. (quoting Franks, 438 U.S. at 165, 57 L. Ed. 2d at 678)(internal citations and quotation marks omitted). The description from the anonymous caller matched the items that police recovered near the scene. Defendant from the description Defendant knew the victim. Ms. Chambliss identified and informed police that Though the informant was anonymous and there is no evidence of the informant s past reliability or unreliability, police confirmed the informant s specific facts, which had not been released to the public at that time, when they recovered clothing items near the crime scene that matched the caller s description. Despite evidence that Ganache was not open that Sunday morning, the anonymous caller s information was appropriately accepted by the affiant as true in light of the other confirmatory facts. at 358. Fernandez, 346 N.C. at 13, 484 S.E.2d Based on Defendant s cell phone records and Mr. Bryant, Defendant s acquaintance s testimony, Defendant also knew about the murder shortly after it happened. Despite failing to investigate whether Ganache was open on Sundays before seeking the search warrant, the trial court did not err in concluding that the law enforcement support its search warrant. officers formed probable cause to -8Defendant next argues that there was insufficient evidence that he was the perpetrator of the murder. We disagree and find ample evidence of his identity. On a defendant s motion for dismissal, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. What constitutes substantial evidence is a question of law for the court. . . . Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) (citations omitted). Defendant does not challenge the evidence substantive elements of first-degree murder. as to the He only challenges the element of identity as the perpetrator. Though evidence the tended perpetrator. State s to Mr. show case was ample Cornelius, circumstantial, evidence Ms. Rowe, of the Defendant and the State s as the anonymous informant gave similar descriptions of an African-American man fleeing Red Mike s after the shooting as stated above. three described All an African-American man in a black coat and -9black hat. Ms. Rowe and the anonymous caller described the suspect as a light-skinned African-American. Mr. Cornelius and the anonymous caller described a tall, heavy man. caller observed the suspect wearing The anonymous sunglasses. All three witnesses placed this suspect in the vicinity of Red Mike s store immediately after shots were fired. Ms. Rowe saw the suspect flee Red Mike s with a handgun after the shooting. Ms. Rowe and Mr. Cornelius reported that the suspect fled east on Fisher Avenue. Police recovered clothing matching the descriptions given by these three individuals in trash cans in the Fisher Park neighborhood, consistent with the direction in which the suspect fled. Defendant s DNA was found on the black coat, black hat, and sunglasses. some of the clothing items. The victim s DNA was also on The handgun found in the coat s sleeve was determined to be the murder weapon. later provided witnesses victim. police physical with Defendant s descriptions. name Defendant Ms. Chambliss based also on the knew the Taking all inferences in favor of the State, we find more than sufficient evidence that Defendant was the perpetrator of the murder. This argument is without merit. Defendant argues that the trial court erred by denying his request to publish an exhibit, which was not admitted into -10evidence, to the jury after deliberations had begun. We find no abuse of discretion. The standard of review for a motion to reopen the evidence is abuse of discretion. State v. Shelton, 53 N.C. App. 632, 648, 281 S.E.2d 684, 695 (1981). To disturb the trial court s ruling, we must find that there was no rational basis for the ruling. State v. Mutakbbic, 317 N.C. 264, 274, 345 S.E.2d 154, 159 (1986)(citation and internal quotation marks omitted). As this Court has held before, there is no due process right or right of confrontation for a defendant to reopen his case. Shelton, 53 N.C. App. at 647-48, 281 S.E.2d at 695. facts of Mutakbbic are directly on point. The After deliberations began in Mutakbbic, the defendant moved the court to reopen the evidence to admit a Social Services report. at 270, 345 S.E.2d at 156. Mutakbbic, 317 N.C. The Supreme Court of North Carolina was not persuaded by the defendant s argument, stating, First, no effort was made by defendant during trial to have the report introduced, although defendant knew then of its existence. Second, the evidentiary conflict defendant sought to resolve by introducing the document was relatively insignificant. 274, 345 S.E.2d at 159. Id. at -11Here, Defendant knew about the exhibit that he interpreted the Cricket cell phone records and he introduce it when representative, on the State the had stand. Ms. The Lesane, report argues failed to a was Cricket relatively insignificant in light of the real issues in the case. At most, it might have shown that Defendant was telling Detective Terry the truth about having lost his cell phone before the victim was murdered. In light of all the evidence presented by the State of witnesses who saw Defendant at and leaving the crime scene, described his appearance and attire, and noted his associations with the motel clerk and victim, we find no abuse of discretion by the trial court. Finally, Defendant argues that the short form indictment denied him due process. We disagree. In indictments for murder and manslaughter, . . . it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law[.] N.C. Gen. Stat. § 15-144 (2011). An indictment that complies with the requirements of N.C.G.S. § 15 144 will support second-degree murder. a conviction of both first-degree and State v. Braxton, 352 N.C. 158, 174, 531 -12S.E.2d 428, 437 (2000). The Supreme Court of North Carolina has consistently held that indictments for murder based on the short-form indictment statute are in compliance with both the North Carolina and United States Constitutions. Id. The indictment in this case stated, The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, aforethought kill willfully and murder and feloniously Mohammed Hassan did of malice Ali. This indictment plainly meets the requirements of N. C. Gen. § 15144. Defendant has not been deprived of due process of law. For the reasons stated above, we find no error. No Error. Judges MCGEE and THIGPEN concur. Report per Rule 30(e).

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