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No. COA10-1227EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
***********************************************
STATE OF NORTH CAROLINA)
)
v.) FromGUILFORDCounty
) File Nos. 07-CRS-106006
DESMOND CHARLES BURCH,)
Defendant.)
)
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DEFENDANT-APPELLANT’S BRIEF
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TABLE OF CONTENTS
Table of Authorities
Issues Presented
Statement of the Case
Statement of Grounds for Appellate Review
Statement of the Facts
Argument
I.Burch was denied his statutory and constitutional rights when the trial court refused his requests to appoint an expert to examine the pump and direct the State to produce the pump and photographs of the ridge impressions lifted from the pump so the defendant could obtain an independent forensic opinion.
Standard of Review
Legal Analysis
1.Burch was denied his statutory right to an independent examination of the pump.
2.Burch was denied his due process rights under the North Carolina and federal constitutions when the trial court denied him the right to an independent examination of the pump.
Summary
II.Burch was denied his right to effective assistance of counsel under the North Carolina and federal constitutions when his attorney failed to clearly and unequivocally move for an independent examination of the pump, because Burch had statutory and constitutional rights to the examination.
Standard of Review
Legal Analysis
Conclusion
Certificate of Compliance
Index to Appendix
Certificate of Service
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Table of Authorities
Cases
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) 15, 17
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)), appeal dismissed, 479 U.S. 979, 107 S.Ct. 563, 93 L.Ed.2d 569 (1986) 14
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) 18
State v. Abbott, 320 N.C. 475, 358 S.E.2d 365 (1987)...... 13
State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991)...... 14, 20
State v. Ashe, 314 NC 28, 331 S.E.2d 652 (1985)...... 11
State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985)..18, 21
State v. Davis, 364 N.C. 297, 698 S.E.2d 65 (2010)...... 11
State v. Elliott, 360 N.C. 400, 628 S.E.2d 735, cert. denied, Elliott v. North Carolina, 549 U.S. 1000, 127 S.Ct. 505, 166 L.Ed.2d 378 (2006) 16
State v. Franklin, 714 S.W.2d 252 (Tenn. 1986)...... 14
State v. Montford, 137 N.C.App. 495, 529 S.E.2d 247 (2000)18
State v. Soyars, 332 N.C. 47, 418 S.E.2d 480 (1992)...... 15
State v. Tate, 187 N.C.App. 593, 653 S.E.2d 892 (2007).....11
State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982)...... 18
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 18, 21
United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) 15
Constitutional Provisions
N.C. Const. Art. I, § 19...... 11, 15, 18
N.C. Const. Art. I, § 23...... 11, 15
U.S. Const. amend. V...... 11, 15
U.S. Const. amend. VI...... 18
U.S. Const. amend. XIV...... 11, 15, 18
Statutes
N.C. Gen. Stat. § 15A-903...... 13, 15
N.C. Gen. Stat. § 7A–32...... 2
N.C. Gen. Stat. § 7A–450...... 13
Rules
N.C. R. App. P. 21...... 2
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No. COA10-1227EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
***********************************************
STATE OF NORTH CAROLINA)
)
v.) FromGUILFORDCounty
)
DESMOND CHARLES BURCH,)
Defendant.)
)
Issues Presented
- Burch was denied his statutory and constitutional rights when the trial court refused his requests to appoint an expert to examine the pump and direct the State to produce the pump and photographs of the ridge impressions lifted from the pump so the defendant could obtain an independent forensic opinion.
- Burch was denied his right to effective assistance of counselunder the North Carolina and federal constitutions when his attorney failed to clearly and unequivocally move for an independent examination of the pump, because Burch had statutory and constitutional rights to the examination.
Statement of the Case
During the 8 March 2010 criminal session of Guilford County Superior Court, a jury convicted Burch of voluntary manslaughter. (R p 31.) Following the jury verdict on 11 March, Presiding Judge Thomas H. Lock sentenced Burch to 120–153 months in the Department of Corrections. (R pp 34–35.) Burch gave oral notice of appeal in open court immediately after sentencing. (T. p. 555.) On 16 March, Burchalso filed written Notice of Appeal. (R p 36–37.)
Statement of Grounds for Appellate Review
This appeal arises from the trial court’s final judgment, resolving all matters at issue. Appellate review is authorized by N.C. Gen. Stat. § 7A–32 and N.C. R. App. P. 21.
Statement of the Facts
Discovery of Ham’s body and cause of death
The afternoon of5 November 2007, Greensboro police were called to an apartment complex on Spring Lake Court. A man’s body had been found at the edge of the woods bordering the apartments. (T. p. 418.) The deceased was ultimately identified as Charlie Ham, a 6’8”, 223 pound man. Appellant Burch, at approximately 5’9”, was nearly a foot shorter. (T. p. 444.) Ham and his wife had recently separated due to his “significant drug problem.” (T pp. 55–57, 357, and 442–443.)
North Carolina Chief Medical Examiner Deborah Radisch performed the autopsy on Ham. (T. p. 356.) She observed multiple head and body bruises or wounds, apparently from blunt force trauma from something striking Ham or his striking something. (T. pp. 358–371.)His skull, facial bones, and jaw were intact. (T. p. 406.) A scalp laceration and wounds around his eyes would have bled more than other wounds, which would not have bled extensively. (T. p. 382.) Dr. Radisch testified that a black air pump seized from the apartment was the type of object that could have caused the injuries. (T. p. 391.) Ham also had three scratches on his abdomen consistent with having climbed over a chain link fence of the type along the back of the apartments. (T. pp. 412–413.) A number of his other injuries were also consistent with having occurred on a chain link fence. (T. p. 413.) Hamapparently died as he lay outside overnight and was exposed to cold temperatures. (T. p. 376.) Despite the cold, his belt was unfastened and his jeans pulled down around his thighs. (T. p. 357.) Dr. Radisch testified that paradoxical undressing can occur when someone is dying of hypothermia and instead of covering up, they begin to undress. (T. p. 402.) Paradoxical undressing sometimes occurs with hypothermia associated with alcohol or controlled substance use. (T. pp. 402–403.) The medical examiner’s post-mortem tests on Ham showed cocaine metabolites (byproducts produced as cocaine breaks down even after death), valium (diazepam), drinking alcohol equal to .08 percent, nicotine, and pain killers (Tramadol). (T. pp. 279–380 and 411.) Dr. Radischtestified that it was “difficult to say” whether Ham showed signs that he died at least in part from hypothermia. (T. p. 377–378.) She concluded that he died of blunt trauma to the head, although she could not rule out hypothermia and cocaine use as contributing factors. (T. pp. 382–383 and 395.) She also concluded that he did not die from blood loss. (T. p. 400.)
Dr. Donald Jason testified for the defense as an expert in forensic pathology. (T. p. 452.) Dr. Jason is the ForsythCounty medical examiner, a forensic pathologist, associate professor at Wake Forest University School of Medicine, and a designated forensic pathologist for the State of North Carolina. (T. pp. 449–450.)In his opinion, the primary cause of Ham’s death was hypothermia. (T. p. 460.)After defense counsel retained him, Dr. Jason reviewed the death certificate, supplemental report of the cause of death, autopsy and crime scene photographs, prosecutor summary, medical examiner’s report, Dr. Radisch’s autopsy report, the state’s toxicology report, a second toxicology report that he requested, and a weather report for 4 and 5 November 2007. (T. pp. 453–454.) Dr. Jason found it significant that the autopsy showed no life-threatening injuries and that Ham lay outside in cold, wet grass overnight while temperatures dipped into the 40’s on a windy night. (T. pp. 456–457.) He requested the additional toxicology request on Ham’s urine, because some substances do not show in the blood tests performed by the State. The second toxicology reports showed a measurable level of cocaine, and alcohol content of .093 as opposed to the .02 found in the blood tests. (T. pp. 457–459.) Dr. Jason described this as a “moderately intoxicating level of alcohol.” (T. p. 459.) He testified that to a reasonable medical certainty, Ham died “from hypothermia, lying on the grass somewhat drunk. It’s an unfortunate accident.” (T. p. 462.)
Police investigation and Burch’s statements
Greensboro Police Officer S.T. Bond was on routine patrol when he responded to the call for officers to assist GuilfordCountyEMS regarding the discovery of Ham’s body. (T. p. 61.) He remained with the body while other responding officers taped off the area with crime scene tape and began to investigate. (T. pp. 61–62.) Trainee officer Timothy Ackerman canvassed the area and spoke with potential witnesses. After speaking with Katria Steele, Burch’s girlfriend, he took her to the police station to be interviewed by other officersand drove her back to the apartments afterward. (T. pp. 68–71.)
Detective Tony Hinson also responded to the apartment complex. He and Burch first spoke on the scene. Burch told the officer that he was coming home with Katria Steele’s mother when they saw Ham’s dead body and Steele’s mother called 911. Burch said he had never seen Ham before. He asked repeatedly about Steele, who had gone to the police station, and agreed to be taken down himself so he could check on her and answer more questions. (T. pp. 76–80.)
Detective Hinson met with Burch again in the station interview room. Burch was not under arrest and was free to leave. Initially, the detective did not consider Burch a suspect. Burch again said that he did not know Ham and that he wanted to cooperate. Hinson left the room briefly and spoke with the officers who interviewed Steele. He then returned and told Burch that he didn’t really believe his story. Burch began to shake and said that Ham had come to his house to buy crack. When Burch pulled a bag of crack out of his pocket, Ham tried to grab the whole bag and they struggled. As they found, Burch pushed Ham out the back door. After Burch told him what happened, Hinson told Burch he was no longer free to leave and read him his Miranda rights. (T. pp. 82–85.)
The interview continued. Burch recounted events out of chronological order while Hinson took notes.Then, Hinson reduced the notes to a statement, which Burch signed. The statement said he was in the parking lot at Smoketree Apartments when Ham and his uncle walked by. Ham indicated that he might want to buy drugs from Burch. A short time later, they walked by again and Ham’s uncle invited him into the apartment for a beer. A lady came home. Burch suspected she was the uncle’s mother and Ham’s grandmother. She did not approve of the beer drinking, so Burch returned to Steele’s apartment. A short time later, Ham came to the apartment and offered to swap some pills for crack. Burch declined and Ham left. Burch took some pills, drank some beer, and passed out. A short while later, Ham returned with $20 to buy crack. Burch pulled a bag with more than $20 worth of crack from his pocket. Ham rushed at him and tried to grab the bag. The two men fought. In the end, Burch pushed Ham out the back door.After Burch signed the statement, Hinson arrested him for Ham’s murder. He told lead detective Mike Matthews about the statement and Mathews obtained a search warrant for Steele’s apartment. (T. pp. 87–94 and 420–421.)
Greensboro crime scene investigator Jerry Reynolds responded to take photographs and process the scene. He found blood on the siding in front of apartment 12A (not Steele and Burch’s apartment) and on the chain-link fence behind the apartments, near where Ham’s body was found. He also observed a trail of blood drops from one apartment building to another. (T. pp. 120–129.)
Over defense objection, Reynolds testified about blood spatter and blood stains in Steele’s apartment, as “an expert in the field of blood stain pattern interpretation.” (T. p. 166.) Blood droplets were found in the bedroom, the hall, the bathroom, and around the back door. Reynolds testified about the height and location of the blood source based on the pattern of blood droplets. In the bedroom, he found several dreadlocks that had been ripped from Burch’s head. (T. pp. 167–282.) He also found located a black air pump, the type used to blow up air mattresses, in the bedroom. (T. pp. 224–225.)
DNA tests on the blood samples from the chain-link fence, the door of apartment 12A, and the black pump matched Ham’s DNA. (T. pp. 345–347.) DNA swabbings from Ham’s tennis shoes and jeans were mixtures, containingHam’s DNA as the predominant DNA and another individual’s DNA. Burch could not be excluded as a contributor to the mixture. (T. p. 348–349.)
Nine days after Ham’s body was found, Burch’s girlfriend and sister told Greensboro Police Detective Mike Matthews that Burch wanted to speak with him. Detective Matthews went to Burch, who was still in custody. He advised Burch of his Miranda rights. (T. p. 424–425.) Burch then gave the detective a sheet of paper on which he had written what happened. The paper said that he did not kill Ham, that he’d first seen Ham with his uncle that afternoon, that they’d invited him into their apartment so Ham could buy crack, that they drank beer, that the uncle said he didn’t want Ham to buy crack, that Ham was offering to trade valium for crack, that a woman came in and was uncomfortable with their beer drinking, that Ham and Burch stepped outside where Ham traded valium for crack from Burch. Burch went back to his apartment, took two pills and drank some beer, then passed out. He woke when a friend knocked on the door. He told the friend to come back later because he didn’t feel well. Burch then opened a beer and sat on the bed to drink it. Ham knocked on the door. Burch let him into the bedroom. Ham offered to trade pills for crack. Burch said he wasn’t interested. Ham said he’d go get some money, left, and returned fifteen minutes later. He offered to buy crack, but when Burch took the bag out of his pocket, Ham tried to grab the bag and threw his weight against Burch. The men struggled over the bag. Every time they stopped, Ham was on top of Burch, but he never got up to leave. Burch heard a voice behind Ham, and saw a male, who pulled Ham off Burch. Burch got up and shoved Ham out the back door. (T. pp. 428–431.)
After reading the statement, Detective Matthews began to question Burch. Burch’s written and oral statements given to the detective were substantially similar to his earlier statement to Detective Hinson, except that he identified another individual involved in the scuffle and provided some additional details. (T. p. 442.) Burch said he’d know Ham a month or a-month-and-a-half. Ham had purchased crack from Burch in the past. Burch told substantially the same version of events as that contained in his written statement. He added that when the male pulled Ham off Burch, Ham grabbed a handful of his dreadlocks and ripped them out of his head. The male was hitting Ham, and Burch thought he was using his hands. The three tussled all the way down the hallway, and Burch pushed Ham out the back door. He last saw Ham as he struggled to go through the fence gate. Burch went back to bed. When Burch woke up, he noticed blood on his clothes. (T. pp. 431–438.)
Burch told Detective Matthews that Antonio Montgomery was the male who pulled Ham off him and beat Ham. He said Montgomery had disappeared and he could not give the detective any other information about his whereabouts. (T. p. 438.) Burch provided identifying information for Montgomery, which helped Detective Matthews locate him. (T. p. 439.) The detective interviewed Montgomery in January 2008;Montgomery said he was not involved. Matthews took Montgomery’s prints and a DNA sample. (T. p. 440.) Antonio Montgomery appeared in court and testified that he did not know Ham and that he had never been inside Burch’s apartment. (T. p. 415.)
Argument
I.Burch was denied his statutory and constitutional rights when the trial court refused his requests to appoint an expert to examine the pump and direct the State to produce the pump and photographs of the ridge impressions lifted from the pump so the defendant could obtain anindependent forensic opinion.
Standard of Review
Burch presents this issue for review under both his statutory rights and his constitutional rights. The trial court’s failure to abide by a statutory mandate is preserved for review without objection and reviewed de novo. State v. Ashe, 314 NC 28, 39-40, 331 S.E.2d 652, 659 (1985) andState v. Davis, 364 N.C. 297, 698 S.E.2d 65 (2010).
Through his attorney, Burch asked the court to allow an independent examination of the black air pump that the State contended was used to injure Ham. (T. pp. 106–108.) Trial counsel did not specifically cite constitutional grounds when he conveyed Burch’s request to the court. In addition to the applicable statute, Burch was constitutionally entitled to exculpatory evidence which could be disclosed upon the independent examination of the pump. U.S. Const. amend. V and XIV; N.C. Const. Art. I, §§ 19 and 23. A constitutional issue is subject to a de novo standard of review. State v. Tate, 187 N.C.App. 593, 599, 653 S.E.2d 892, 897 (2007).
Legal Analysis
1.Burch was denied his statutory right to an independent examination of the pump.
In processing the apartment, the police located a black air pump, the type used to blow up air mattresses. (T. pp. 224–225.) DNA swabbings from the pump matched Ham’s DNA. (T. p. 347.) The prosecution asserted that Ham was beaten with the pump. Although the closing arguments were not recorded, the prosecutor expressed to the court his intent to argue that the black pump was “the murder weapon.” (T. pp. 109 and 509.)