State v. Moultry , 246 N.C. App. 702 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-267
Filed: 5 April 2016
Mecklenburg County, No. 12CRS010134-36
THE STATE OF NORTH CAROLINA,
v.
VICTOR OLANDUS MOULTRY, Defendant.
Appeal by defendant from judgments entered on 4 April 2014 by Judge H.
William Constangy in Superior Court, Mecklenburg County. Heard in the Court of
Appeals 9 September 2015.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Daniel
Snipes Johnson, for the State.
Appellate Defender Staple Hughes, by Assistant Appellate Defender Constance
E. Widenhouse, for defendant-appellant.
STROUD, Judge.
The trial court entered judgments against defendant for hit and run, second
degree murder, and possession of cocaine. Defendant appeals. For the following
reasons, we find no error.
I. Background
On 16 February 2012, Officer Tim Wilson of the Charlotte Mecklenburg Police
Department was speaking with Ms. Marian Carpenter, the victim of a hit and run
accident, and two witnesses to that accident when he heard over his radio that there
STATE V. MOULTRY
Opinion of the Court
had been another accident he believed might be related to the first “due to the time”
and proximity. When Officer Wilson arrived at the scene of the second accident he
saw a Ford and an Impala with damage consistent with Ms. Carpenter’s and the
witnesses’ descriptions of the hit and run. Defendant, the driver of the Impala, and
the driver of the Ford truck were taken to the hospital. Cocaine was found in
defendant’s car and, upon testing at the hospital, in his blood. The driver of the Ford
died from his injuries sustained in the collision. Defendant was indicted for reckless
driving, misdemeanor hit and run, murder, and possession of a Schedule II controlled
substance. A jury found defendant guilty of second degree murder, misdemeanor hit
and run, and possession of cocaine, and the trial court entered judgments.1
Defendant appeals.
II. Photographs
During defendant’s trial the State introduced five photographs for illustrative
purposes that showed the Impala behind the Ford lined up in the manner that Officer
Nicolas Bruining of the Huntersville Police Department believed the accident had
occurred. Defendant contends that
the trial court erred by admitting irrelevant and unfairly
prejudicial staged photographs of the Impala sedan and the
Ford truck that were taken in a gravel parking lot years
after the collision and under conditions that were not
substantially similar to those existing at the time of the
fatal automobile accident.
1 The trial court dismissed the charge of reckless driving at the close of the State’s evidence.
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(Original in all caps.) Defendant argues that
[b]ecause the vehicles were no longer at the scene of the
accident and the pictures were made in a gravel parking
lot over two years later, the attempt to replicate the
moment of impact was an improper demonstration or
experiment. [Defendant] . . . argued at trial that he did not
act with malice. . . . The trial court’s admission of the
photographs was prejudicial error because the pictures
were this evidence ([sic]) strengthened the state’s proof of
malice.
Evidence is relevant if 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). “Whether evidence is relevant is a question of law, thus we review the trial
court’s admission of the evidence de novo. Defendant bears the burden of showing
that the evidence was erroneously admitted and that he was prejudiced by the error.”
State v. Kirby, 206 N.C. App. 446, 456, 697 S.E.2d 496, 503 (2010) (citation omitted).
“Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” N.C. Gen. Stat. § 8C–1, Rule 403 (2013). “Whether or not
to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the
sound discretion of the trial court and its decision will not be disturbed on appeal
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Opinion of the Court
absent a showing of an abuse of discretion.” State v. McCray, 342 N.C. 123, 131, 463
S.E.2d 176, 181 (1995).
Officer Bruining testified as an expert witness of crash investigation and
reconstruction and explained to the jury, without objection, that the Impala had
struck the Ford from behind, and thus the photographs are relevant as they served
as a visual aid to Officer Bruining’s expert testimony regarding how the accident
occurred. See generally N.C. Gen. Stat. § 8C-1, Rule 401. Furthermore, the trial
court provided a limiting instruction to the jury explaining that the photographs
were only allowed for the purpose of illustrating Officer Bruining’s testimony, so
defendant has not shown any unfair prejudice from the jury’s viewing of the
photographs. See generally N.C. Gen. Stat. § 8C-1, Rule 403. Therefore, this
argument is overruled.
III. Officer’s Testimony
During defendant’s trial, Ms. Carpenter testified that the vehicle that struck
her vehicle was a silver four-door compact car; Mr. Frank Fusco, an eyewitness who
saw Ms. Carpenter’s vehicle get hit, described the offending vehicle as a sedan; and
Ms. Lisa Henderson, an eyewitness who saw a vehicle driving the wrong way on the
road at issue testified that the vehicle she saw was a light-colored sedan. Over
objection, Officer Wilson testified that by taking the eyewitness accounts he came up
with a description of the vehicle as a silver late 1990s car, “four-door and possibly a
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Opinion of the Court
Chevy Malibu or Toyota Camry.” Defendant contends that “the trial court erred by
allowing an officer to provide a composite description of the car that struck Marian
Carpenter’s truck, where that description was based on hearsay statements that did
not corroborate the testimony of any of the witnesses who saw the accident.”
(Original in all caps.) Defendant further argues that the admission of the description
was prejudicial as it “tended to link the two accidents, [and] supported the theory
that . . . [defendant] acted with malice and was guilty of murder as well as the hit-
and-run.”
“When a defendant objects to the admission of evidence, we consider, whether
the evidence was admissible as a matter of law, and if so, whether the trial court
abused its discretion in admitting the evidence.” State v. Blackwell, 207 N.C. App.
255, 257, 699 S.E.2d 474, 475 (2010) (citation, quotation marks, and brackets
omitted). While defendant focuses on hearsay, Officer Wilson’s testimony was not
offered “to prove the truth of the matter asserted” but merely, as explained to the
jury, for corroborative purposes, and thus any hearsay argument is inapplicable. See
generally N.C. Gen. Stat. § 8C-1, Rule 801 (2011). As to corroboration,
[t]his Court has long held that corroborative means to
strengthen; to add weight or credibility to a thing by
additional and confirming facts or evidence. It is not
necessary that evidence prove the precise facts brought out
in a witness’s testimony before that evidence may be
deemed corroborative of such testimony and properly
admissible.
The law does not require that Detective Grant’s
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Opinion of the Court
testimony about [the witness’] statements be in the exact
words used by [the witness]. His testimony need only have
tended to strengthen and confirm her testimony[.]
State v. Williamson, 146 N.C. App. 325, 338, 553 S.E.2d 54, 63 (2001) (citations,
quotation marks, and brackets omitted), disc. review denied, 355 N.C. 222, 560
S.E.2d 366 (2002).
Here, Officer Wilson explained to the jury that he came up with a description
of the offending vehicle after speaking with three different individuals, and the jury
was provided a limiting instruction explaining that Officer Wilson’s testimony was
to be used “only for the purpose of corroborating the testimony of those other
witnesses[.]” Indeed, Officer Wilson’s description did corroborate the other
witnesses’ testimonies as it added “weight” to their testimonies. Id. This argument
is overruled.
IV. Lay Opinion
Lieutenant Andrew Dempski of the Huntersville Police Department testified
over objection that the damage to the back of defendant’s vehicle was not caused
from the collision with the Ford truck; defendant argues this implies the damage
was caused by the earlier collision with Ms. Carpenter’s vehicle. Defendant contends
that
the trial court erred by admitting lay opinion testimony of
Lieutenant Andrew Dempski that damage to the rear
quarter panel of . . . [defendant’s] car was not caused by the
collision with [the Ford] truck, as Dempski was not
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Opinion of the Court
qualified to give an expert opinion and his testimony was
not helpful to the jury.
(Original in all caps.) Again, “[w]hen a defendant objects to the admission of
evidence, we consider, whether the evidence was admissible as a matter of law, and
if so, whether the trial court abused its discretion in admitting the evidence.”
Blackwell, 207 N.C. App. at 257, 699 S.E.2d at 475.
Even assuming arguendo, that it was error for Lieutenant Dempski to testify
that the collision with the Ford truck was not consistent with the damage on the rear
of defendant’s vehicle without first being accepted as an expert witness, Officer
Wilson testified to the exact same information without objection or argument on
appeal. In fact, Officer Wilson went a step further and testified that the damage to
the rear of defendant’s vehicle was consistent with the description he had been given
regarding the accident with Ms. Carpenter. Since another officer testified to the
same information without objection, we overrule defendant’s argument. See
generally State v. Hunt, 325 N.C. 187, 196, 381 S.E.2d 453, 459 (1989) (“This Court
frequently has held that when, as here, evidence is admitted over objection, but the
same or similar evidence has been previously admitted or is later admitted without
objection, the benefit of the objection is lost.”)
V. Cumulative Effect
Lastly, defendant contends that “the cumulative prejudice from the trial
court’s errors in admitting evidence requires a new trial.” (Original in all caps.)
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Since we have found no prejudicial error or no error in the evidence presented, there
cannot be any cumulative prejudicial effect, so this argument is without merit.
VI. Conclusion
For the reasons stated above, we find no error in the defendant’s trial and
convictions.
NO ERROR.
Judges CALABRIA and INMAN concur.
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