No. COA 05-216 TWENTY-SIXTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)From Mecklenburg County
)
JHALMAR EMMANUEL MEDINA)Nos.03 CRS 211828-29
)
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DEFENDANT-APPELLANT’S BRIEF
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INDEX
TABLE OF CASES AND AUTHORITIES ...... ii
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 2
STATEMENT OF GROUNDS FOR APPELLATE REVIEW ...... 2
STATEMENT OF THE FACTS ...... 3
ARGUMENT:
I.THE ADMISSION OF JORGE SOTERO-SOSA’S ALLEGED STATEMENTS VIOLATED DEFENDANT’S RIGHT TO CONFRONT WITNESSES AGAINST HIM...... 16
A. The trial court erred in allowing Detective Henson to testify that he considered Jorge a ‘material witness against’ defendant...... 16
B. Defense counsel was ineffective in eliciting testimony about Jorge’s alleged statements to Rashard Little. . . . 21
II.THE ADMISSION OF EVIDENCE THAT J.R. WAS IN JAIL BEFORE THIS INCIDENT AND THAT HE ALLEGEDLY WAS A GANG MEMBER VIOLATED HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS OF LAW, AND EFFECTIVE COUNSEL...... 25
III.A SENTENCE OF LIFE WITHOUT PAROLE FOR A SIXTEEN-YEAR-OLD OFFENDER VIOLATES THE UNITED STATES AND NORTH CAROLINA CONSTITUTIONS...... 34
CONCLUSION ...... 36
CERTIFICATE OF SERVICE ...... 36
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TABLE OF CASES AND AUTHORITIES
CASES
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004) ...... 17
Roper v. Simmons, 125 S.Ct. 1183 (2005) ...... 34
Schaffer v. State, 777 S.W.2d 111 (Tex.Crim.App. 1989). . . . 18
State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981). . . . . 31
State v. Berry, 356 N.C. 490, 573 S.E.2d 132 (2002) . . . . . 30
State v. Blakeney, 352 N.C. 287, 531 S.E.2d 799 (2000). . . . 22
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). . . 21,22
State v. Clark. 165 N.C. App. 279, 598 S.E.2d 213 (2004). . . 19
State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (2001). . . . . 22,25
State v. Green, 348 N.C. 588, 502 S.E.2d 819 (1998) . . . . . 35
State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978) . . . . 21
State v. Lawson, 159 N.C. App. 534, 583 S.E.2d 354 (2003) . . 25
State v. Mann, 355 N.C. 294, 560 S.E.2d 776 (2002) . . . . . 30
State v. Moorman, 320 N.C. 387, 358 S.E.2d 502 (1987) . . . . 24
State v. Morton, ___ N.C. App. ___, 601 S.E.2d 873 (2004) . . 19
State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969) . . . . . 31 State v. Pullen, 163 N.C. App. 696, 592 S.E.2d 248 (2004) . . 19
State v. Richards, 294 N.C. 474, 242 S.E.2d 844 (1978) . . . 21
State v. Sutton, ___ N.C. App. ___, 609 S.E.2d 270 (2005) . . 17
State v. Tessnear, 265 N.C. 319, 144 S.E.2d 43 (1965) . . . . 30
State v Watkins, 89 N.C. App. 599, 366 S.E.2d 876 (1988). . . 22
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State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988) . . . . 23
Strickland v. Washington, 466 U.S. 668 (1984) ...... 24
STATUTES
N.C. Gen. Stat. § 8-C, Rule 801(c)...... 23
N.C. Gen. Stat. § 8-C, Rule 803 ...... 23
N.C. Gen. Stat. Section 15A-1443(b) ...... 20
CONSTITUTIONAL PROVISIONS
Amendment VI, U.S. Constitution ...... 17
OTHER SOURCES
McCormick on Evidence, Section 529, p. 104 (5th Ed. 1999) . . 18
No. COA 05-216 TWENTY-SIXTH DISTRICT
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NORTH CAROLINA COURT OF APPEALS
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
STATE OF NORTH CAROLINA)
)
v.)From Mecklenburg County
)
JHALMAR EMMANUEL MEDINA)Nos.03 CRS 211828-29
)
QUESTIONS PRESENTED
I.DID THE ADMISSION OF JORGE SOTERO-SOSA’S ALLEGED STATEMENTS VIOLATE DEFENDANT’S RIGHT TO CONFRONT WITNESSES AGAINST HIM?
II.DID THE ADMISSION OF EVIDENCE THAT J.R. WAS IN JAIL BEFORE THIS INCIDENT AND THAT HE ALLEGEDLY WAS A GANG MEMBER VIOLATE HIS RIGHTS TO A FAIR TRIAL, DUE PROCESS OF LAW, AND EFFECTIVE COUNSEL?
III.DOES A SENTENCE OF LIFE WITHOUT PAROLE FOR A SIXTEEN-YEAR-OLD OFFENDER VIOLATE THE UNITED STATES AND NORTH CAROLINA CONSTITUTIONS?
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STATEMENT OF THE CASE
On March 24, 2003, Defendant was indicted by a grand jury for murder in 03 CRS 211828, and common law attempted murder in 03 CRS 211829. On July 19, 2004, the grand jury issued a superseding indictment in 03 CRS 211829 for attempted first degree murder. The trial was held in the General Court of Justice, Superior Court Division, Mecklenburg County, North Carolina, before the Honorable Nathaniel J. Poovey, at the August 23, 2004 Criminal Session, on charges of first-degree murder and attempted first-degree murder.
On September 1, 2004, a jury found Defendant guilty of all charges. Following the verdict, Judge Poovey sentenced Defendant to life without parole for murder, and 189-236 months for attempted murder, to run consecutively.
On September 9, 2004, Defendant filed written notice of appeal.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Defendant is appealing his conviction and active sentence following a trial upon his plea of not guilty. Appellate review is as a matter of right pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a).
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STATEMENT OF THE FACTS
STATE’S EVIDENCE
The Offense
On March 10, 2003, Omega “Buddy” Morris, age 15, and Emily Stitt, age 14, were dating. They both lived on Viola Drive in Charlotte. Buddy lived with his older sister Shay, age 20. Their mother, Kathy McVay, saw them every day, but at that time lived with her own mother for medical reasons.
Buddy routinely walked Emily home at about 9:00pm, accompanied by two friends of Shay. On March 10, 2003, they were out until 10:30pm at a family dinner. Buddy walked Emily home alone after 11:00. (Tpp 186-194; 223-227)
Emily Stitt testified that, as they were walking, she heard a noise in the woods, and then saw two people come out of the woods and start walking toward Buddy. One of the people said, “Where is my M.F.-ing” speakers?” She recognized that person’s voice as Buddy’s friend J.R. She kept walking. Then she heard some gunshots and started running. The person came up behind her and shot her in the face. She fell to the street. The person tried to shoot her again, but was out of bullets. He reloaded the gun and shot her in the back. Then Emily’s dad came outside and yelled, and the person ran away. (Tpp 227-231)
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Emily described the person with the gun as having a blue bandana around his face and a hooded sweatshirt, or “hoodie.” She could see part of his face and hair. He was wearing black Chuck Taylor hightop shoes. The other person also had on a bandana. (Tpp 231-234). Emily told detectives that the person she saw was bald-headed. What she meant by that term is that he had a short haircut. She was able to see about an inch of hairline under the hoodie. (Tpp 256-258) Emily told police that she had seen J.R. “over five times” during the month or two she had known him. (Tp 279)
Emily later identified a photograph of J.R. as her assailant when shown a photographic lineup of six people. (Tpp 268-69; 337)
Buddy Morris died of 8 gunshot wounds. Three bullets were recovered from the body. (Tpp 200-207)
There was no other eyewitness testimony, and very little physical evidence. No shell casings or weapons were found at the scene of the shooting. (Tp 441) Two bullets were found in the street. (Tpp 515-17) A forensics examiner testified that the three bullets retrieved from the autopsy and the two found at the crime scene were .38 caliber bullets. (Tpp 546, 549)
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Based on Emily’s statements, police located Jhalmar Medina, known as J.R., later that night. J.R. was sixteen years old at the time. (Rp 47) Detective Harold Henson of the Charlotte police performed a gun residue test on J.R.’s hands and found no residue. This was done in the early morning hours of March 11, 2003, outside of J.R.’s house in Charlotte. (Tp 453) Police searched J.R.’s room and found no evidence connecting him to the shooting. (Tp 454) They also searched the room in J.R.’s house where his cousin was staying. In that room, Detective Henson found a gray hooded sweatshirt. Wrapped inside the sweatshirt were a black pair of sweat pants, a pair of black Chuck Taylor shoes, a black toboggan, a bandana tied into a knot, and a pair of white gloves. (Tpp 455-56) The clothing was tested for the presence of blood and none was found. (Tpp 481, 487) The gloves were not tested for blood. (Tp 504) The shoes had fresh mud on the bottom. (Tp 492) The shoes were size 11, and J.R. wears size 10. (Tp 504)
Several teenaged friends of Buddy, Emily, and J.R. testified to statements made and actions taken by J.R. before and after the incident.
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Rashard Little is 18 and in prison. He knew J.R. and Buddy and Emily. On the morning of March 10, 2003, Rashard was in court in Mecklenburg County. He saw J.R. in the courtroom and they spoke briefly. (Tpp 589-591) J.R. said he was going to kill Buddy, and also said that he would come by Rashard’s house later to pick up his shoes. That afternoon, J.R. came to Rashard’s house and got his shoes. They were blue hightop Chuck Taylors. (Tp 592) Late that night, about 11:30, Rashard was in his room watching TV when J.R. and his cousin Jorge came by and threw rocks at his window. They were both wearing hoodies. Rashard testified that J.R. asked him to come along with them to murder Buddy. Rashard stepped away from the window to get dressed, then went back to the window and found they were gone. Rashard stayed in his room. About ten minutes later, he heard 8 or 10 gunshots, and then he heard running through the woods. (Tpp 593-600) The woods were across the street and down the block from his house. (Tp 617)
Rashard testified he did not know why he didn’t do anything or call anyone for help that night. (Tp 604) He had Buddy’s phone number and could have called to warn him. (Tp 608)
Rashard was convicted of attempted felony larceny and possession of a stolen car in October 2003. He was placed on probation. In November 2003, he was convicted of two more larceny charges, and again put on probation. In April 2004, his probation was revoked and he went to prison. He did not tell anyone except his mother about his knowledge of this case until the Wednesday before trial. (Tpp 605-607)
Tijuan Jenkins, known as “Shrek,” knew J.R. and Buddy. He was 18 at the time of trial. Tijuan was convicted of marijuana possession in April 2004, and was in jail for failure to appear when he testified at this trial. He smokes marijuana regularly, and used to smoke at Buddy’s house. (Tpp 403-405)
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Tijuan testified that about a week or two before Buddy was shot, J.R. told Tijuan that J.R. had left some stuff at Buddy’s house. J.R. said that he wanted to kill Buddy, because some of that stuff had gone missing. (Tpp 391-94) Specifically, J.R. said he wanted to go to Buddy’s house and turn up the music loud and start shooting. (Tp 394) In response to this, Tijuan went to Buddy’s house and told Buddy and his sister. He didn’t tell the police. He didn’t take it as a real threat. “People talk a lot;” he didn’t think it was “really for real.” (Tp 395)
The next day, Tijuan had another conversation with J.R. outside a friend’s house. J.R. said he’d heard that Tijuan had been running his mouth, and that if he found out Tijuan told Buddy and his family about the prior threat, J.R. would kill Tijuan too. J.R. had a gun with him that day. (Tpp 397-98)
Carly Ann Strand is 17 and dated J.R. for five years. They broke up the month before his trial started. She was mad at J.R. because she heard he had gotten another girl pregnant. She testified under grant of immunity. (Tpp 631-32, 690-92).
On March 10, 2003, she was with J.R. at his house after school, but was home by 9:00. At about 11:00 that night, they talked on the phone, and J.R. said he was going to work out with Jorge and go to bed. The next day, J.R. called her from jail. She asked J.R. whether he killed Buddy, and he said yes. J.R. then asked her to go get the gun, in the woods behind a house in Holly Hills. (Tpp 634-641)
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A couple of days later, she and her friend Brandi Dease drove to Holly Hills to get the gun. They parked at Shrek’s house. Brandi got out of the car and returned in a few minutes with a gun. Then they went to Carly’s house for dinner. At about 7 or 8:00 that evening, they drove to a neighborhood called Farris Farms where Carly used to live. They threw the gun into a pond behind the neighborhood pool. They threw the bullets into another pond nearby, then drove home. (Tpp 641-652)
Brandi told Carly that Brandi told her boyfriend Derek about these activities. (Tp 653)
Carly had attended the beginning of this trial, along with several other of J.R.’s friends, including Derek Oakes. Derek told Carly and Brandi that he was going to tell the police what they had done with the gun. Derek was going to tell in hopes that he would not be charged and would get reduced sentences on felony charges pending against him. The girls were concerned, and wanted to get rid of the glove Brandi wore when she retrieved the gun from the woods. (Tpp 668-72, 694)
The afternoon of the first Tuesday of trial, Carly went to the house of another friend, Waylen, and gave him the glove. That afternoon, Waylen burned the glove. Later that day, discussions occurred between Carly, Brandi, J.R., Waylen, Waylen’s sister, and Derek, all culminating in the idea that Carly would lead Waylen and Waylen’s father to the pond, and try to retrieve the gun. At about 11:00 that night, Carly drove to the pond and Waylen and his father followed in another car. She showed them where she and Brandi stood when they threw the gun in. Then they all left. (Tpp 668-681; 693-94)
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Carly did not volunteer this information to police. On Thursday of the first week of trial, the day before this testimony, officers stopped Carly at the lunchtime break outside the courtroom. The officers began questioning her. They told her she would be arrested and could go to prison for the rest of her life if she did not cooperate with them. At first she did not tell them what happened, but they confronted her by saying that Brandi had already confessed. Carly had also learned the details of what Derek was going to tell police about their involvement with the gun. Carly showed the officers the pond and the spot where she was standing. (Tpp 633-34, 681-82; 687-88; 693-96)
Detective Harold Henson of the Charlotte police testified that after police learned of the possible location of the gun, the Charlotte Fire Department dive team searched the pond where Carly Strand said that she threw the it. They did not find a gun. (Tpp 792-93)
Improper Evidence of Jorge’s Alleged Statements
J.R.’s cousin, Jorge Sotera-Sosa, did not testify at trial. However, statements he allegedly made about the incident were admitted two different ways.
First, Rashard Little was asked by defense counsel on cross-examination, “Didn’t you hear from Jorge what happened?” Rashard responded “Yes.” (Tpp 611-12) On redirect, the prosecutor repeated the question, without objection, and Rashard said, “He told me that J.R. killed them.” (Tpp 618-19)
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Later in the trial, Detective Harold Henson of the Charlotte police testified that he interviewed Jorge on March 11, 2003. Over objection, the prosecutor was permitted to elicit the following testimony:
- As a result of that interview, please state whether or not you considered Jorge to be a material witness against the defendant,Medina, in this case?
AYes, sir, I did.
(Tpp 784, 789) He then testified that police had been unable to locate Mr. Sosa for his testimony in this trial. (Tpp 790-91)
Improper Evidence of J.R.’s Alleged Gang Membership, Criminal Record and Incarceration
Emily Stitt testified, over objection, that she told police detectives that J.R. was in a gang. (Tp 256) The police detective repeated this statement in his testimony, without objection. (Tp 332) On cross-examination of Emily, defense counsel questioned her further about the gang and the fact that its colors were blue. (Tpp 276-77)
The prosecutor elicited testimony from both Emily Stitt and Tijuan Jenkins, where each revealed, without being asked directly, that J.R. had been in jail not long before the shooting. (Tpp 263-64, 391-93) Defense counsel’s objections to this testimony were sustained, and motions to strike allowed. However, after Emily gave her testimony, defense counsel elicited further information about jail, asking:
QMy client never threatened you, did he? ...
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AYes, he did.
QWhen?
AHe was in jail, and he had called --
DEFENSE:OBJECTION.
COURT: OVERRULED.
(Tp 302)
Tijuan Jenkins testified on direct examination, without objection, that Defendant was a member of the Crips gang.
(Tp 402)
Finally, Chad Arnold of the Charlotte police testified that he rode with Emily in the ambulance and she told him J.R. shot her. He asked if she knew whether J.R. had been arrested. Defense counsel’s objection was overruled, and Officer Arnold said that Emily replied by saying that “he steals cars.” Defense counsel objected again and it was sustained, and his motion to strike was allowed. (Tpp 430-31)
Evidence of Flight
J.R. did not return to court after the lunch break on the fourth day of trial, August 26, 2004. (Tpp 366, 376) The State presented nearly a day’s worth of evidence that J.R. tried to run away that Thursday but was caught and arrested on Friday evening.
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Felicia Garland, age 16, testified that she is J.R.’s current girlfriend. On Thursday, August 26, she called J.R. and learned he had skipped court after the lunch break. He asked her to run away with him the next day, to Florida or Virginia. She went to school Friday and Waylen came to pick her up at 6:30am. They went to an apartment and met J.R. there. Waylen left to go to work. (Tpp 701-711)
J.R. told her that he had shot Buddy and Emily. (Tp 713) He also told her that he had asked Carly to hide the gun. (Tp 717)