1
No. COA13-693 EIGHTEENTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
STATE OF NORTH CAROLINA)
)
v.)From Guilford
)
LUCIUS ELWOOD McLEAN)
***************************************
BRIEF OF DEFENDANT-APPELLANT
***************************************
1
SUBJECT INDEX
TABLE OF AUTHORITIES...... ii
ISSUE PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF GROUNDS FOR APPELLATE JURISDICTION 3
STATEMENT OF THE FACTS...... 3
STANDARD OF REVIEW...... 11
ARGUMENT...... 12
THE TRIAL COURT, WHICH ACTED WITH DISCRETION IT DID NOT POSSESS, ERRONEOUSLY DENIED MR. McLEAN’S MOTION FOR PRETRIAL DNA TESTING WHERE THE PROFFERED SHOWING —THAT DNA ON THE SHELL CASINGS ALLEGEDLY FIRED BY MR. McLEAN DID NOT MATCH HIM— WAS CLEARLY RELEVANT TO THE INVESTIGATION AND MATERIAL TO MR. McLEAN’S DEFENSES OF MISIDENTIFICATION AND ALIBI 12
CONCLUSION...... 21
CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(J)(2) 22
CERTIFICATE OF FILING AND SERVICE...... 22
APPENDIX
TABLE OF AUTHORITIES
Cases
Bruton v. United States,
391 U.S. 123, 20 L. Ed. 2d 476 (1968)...... 18
DA’s Office v. Osborne,
557 U.S. 52, 174 L. Ed. 2d 38 (2009)...... 20
Heath v. United States,
26 A.3d 266 (D.C. 2011)...... 17
In re Eades,
143 N.C. App. 712, 547 S.E.2d 146 (2001)...... 15
Maryland v. King,
___ U.S. ___, 186 L. Ed. 2d 1 (2013)...... 20
N.C. Department of Environment & Natural Resources v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004) 11
Smith v. State,
210 Ark. App. 216, 2010 Ark. App. LEXIS 204
(Ark. Ct. App. 2010)...... 17
State v. Beckwith,
973 N.E.2d 849 (Ohio Ct. App. 2012)...... 18, 19
State v. Gamez,
No. COA12-1488, slip op. (N.C. Ct. App.
July 2, 2013)...... 14
State v. Gillespie,
362 N.C. 150, 655 S.E.2d 355 (2008)...... 15
State v. Hanton,
175 N.C. App. 250, 623 S.E.2d 600 (2006)...... 11
State v. Hewson,
___ N.C. App. ___, 725 S.E.2d 53 (2012)...... 18
State v. Johnson,
298 N.C. 355, 259 S.E.2d 752 (1979)...... 15
State v. Mackey,
209 N.C. App. 116, 708 S.E.2d 719, disc. review
denied,365 N.C. 193, 707 S.E.2d 246 (2011)...... 11
State v. Pennington,
327 N.C. 89, 393 S.E.2d 847 (1990)...... 21
Summers v. State,
231 P.3d 125 (Okl. Crim. App. 2010)...... 19
Statutes
2001 N.C. Sess. Laws 282...... 13
2009 N.C. Sess. Laws 203...... 14
2011 N.C. Sess. Laws 283...... 14
N.C. Gen. Stat. §15A-267(c)...... 13
N.C. Gen. Stat. §15A-267(c) (2008)...... 13
N.C. Gen. Stat. §15A-267(c) (2012)...... 13
N.C. Gen. Stat. §15A-267(c)(1)...... 17
N.C. Gen. Stat. §15A-267(c)(3)...... 17
N.C. Gen. Stat. §15A-910...... 15
N.C. Gen. Stat. §15A-952...... 13
N.C. Gen. Stat. §15A-1444(a)...... 3
Other Authorities
Black’s Law Dictionary (7th ed. 1999)...... 18
Joel D. Lieberman, Terance D. Miethe, Courtney A. Carrell
& Daniel A. Krauss, Gold Versus Platinum: Do Jurors Recognize the Superiority and Limitations of DNA Evidence Compared to Other Types of Forensic Evidence?, 14 Psych. Pub. Pol. and L. 27 (February 2008) 21
Stina Norlin, Martina Nilsson, Per Heden & Marie Allen, Evaluation of the Impact of Different Visualization Techniques on DNA in Fingerprints, 63 J. Forensic Ident., Mar.-Apr. 2013 16
Strengthening Forensic Science in the United States: A Path Forward(The National Academies Press2009) 16
Todd W. Bille, Carter Cromartie & Matthew Farr, Effects of Cyanoacrylate Fuming, Time After Recovery, and Location of Biological Material on the Recovery and Analysis of DNA from Post-Blast Pipe Bomb Fragments, 54 J. Forensic Sci., September 2009 16
1
No. COA13-693 EIGHTEENTHJUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
***************************************
STATE OF NORTH CAROLINA)
)
v.)From Guilford
)
LUCIUS ELWOOD McLEAN)
***************************************
BRIEF OF DEFENDANT-APPELLANT
***************************************
ISSUE PRESENTED
WHETHERTHE TRIAL COURT, WHICH ACTED WITH DISCRETION IT DID NOT POSSESS, ERRONEOUSLY DENIED MR. McLEAN’S MOTION FOR PRETRIAL DNA TESTING WHERE THE PROFFERED SHOWING —THAT DNA ON THE SHELL CASINGS ALLEGEDLY FIRED BY MR. McLEAN DID NOT MATCH HIM— WAS CLEARLY RELEVANT TO THE INVESTIGATION AND MATERIAL TO MR. McLEAN’S DEFENSES OF MISIDENTIFICATION AND ALIBI.
STATEMENT OF THE CASE
On 8 December 2008, aGuilfordCounty Grand Jury returned indictments charging Mr. Lucius Elwood McLean with two counts of attempted first-degree murder, two counts of assault with a deadly weapon with intent to kill inflicting serious injury, one count of discharging a weaponinto occupied property, and one count of possession of a firearm by a felon. (R p 14-19)[1] The matter came on for a pretrial hearing on, inter alia, Mr. McLean’s motions for DNA and fingerprint testing during the 25 January 2010 Criminal Session of Guilford County Superior Court, the Honorable Ronald E. Spivey presiding, and Judge Spivey allowed the motion for fingerprint testing but denied the motion for DNA testing. (R p 22-24; DNA T p 25-27, 37) The case came on for trial during the 13 August 2012 Criminal Session of Guilford County Superior Court, the Honorable William Z. Wood presiding, and Mr. McLean was found guilty. (R p 61-66) Judge Wood sentenced Mr. McLean to consecutive terms of 251 to 311 months in prison for the two counts of attempted first-degree murder and to concurrent sentences for the remaining charges. (R p 69-80) Mr. McLean entered notice of appeal. (R p 85-86; Vol. IVT p 680-81)
STATEMENT OF GROUNDS FOR APPELLATE JURISDICTION
The ground for review is a final judgment of the Superior Court under N.C. Gen. Stat. §15A-1444(a).
STATEMENT OF THE FACTS
Mark Stephens, Derry George, and Robert Willis worked at Club Touch in Greensboro, North Carolina in April 2008. Stephens and Willis provided security; George was a manager. (Vol. IIT p 101, 129, 235) Club Touch opened at 10:00 p.m. and closed around 2:00 a.m. (Vol. IIT p 136)
On Sunday morning, 20 April 2008, all of Club Touch’s patrons left by 2:45 a.m. After Club Touch closed, Stephens and Willis stood outside the front door. George stood just inside the front door. (Vol. IIT p 102, 138-39, 239) They testified that three to four cars drove to the back of the parking lot and then pulled up to the front door. (Vol. IIT p 102, 138-39, 240-41) George told an officer there was only one car. (Vol. IIT p 170, 290) Stephens told an officer there were only two cars. (Vol. IIT p 221) Stephens testified that a woman drove the first car, a beige or brown Jaguar. However, prior to trial, he told a responding officer the driver was a black male. A man got out of the passenger seat of the Jaguar and another man got out of a different car. They asked for the owner, George said the owner was not there, and a heated argument ensued. (Vol. IIT p 102-05, 222)
The man from the Jaguar went to the trunk and got a long rifle that appeared to be an SKS assault rifle. The other man brandished a handgun. (105, 115, 118, 140, 243, 262) George and Willis each told responding officers there was only one man with a gun. (Vol. IIT p 290; Vol. IIIT p 482; Vol. IVT p 494) George and Willis went inside the club and closed the door. George locked the door. At that point, George and Willis heard gunshots coming through the door. George was shot in the hand and the side. Willis was shot in the calf. (Vol. IIT p 141-42, 245-46, 257)
Stephens testified that he stayed outside andsaw the men shoot through the door. He further testified that the cars pulled out of the parking lot and stopped in the street and that more shots were fired at the club. (Vol. IIT p 108-109) No shell casings were found in the street. (Vol. IIT p 298; Vol. IIIT p 324) Stephens told a responding officer that he went inside the club and closed the door just before the shooting. (Vol. IIT p 206)
Willisgave responding officers a false name because there was an outstanding warrant for his arrest. He did not provide his real name until several days later when investigating officers discovered he had given a false name. (Vol. IIT p 235-36, 259-60, 263-65, 270-71) Willis testified that the man who got out of the Jaguar was not wearing glasses. He told a responding officer the man was wearing glasses. (Vol. IIT p 278, 280)
Stephens visited George and Willis in the hospital. They talked about the investigation. (Vol. IIT p 124) On 23 April 2008, George viewed a photographic lineup and picked out Lucius McLean as the person with the SKS assault rifle. (Vol. IIT p 147-48) On 24 April 2008, Stephensviewed a photographic lineup and picked out Mr. McLeanas the person with the SKS assault rifle. He was 90% sure. Stephens also picked out another man in the lineup as the man with the .45 caliber handgun. He was 80% sure. (Vol. IIT p 112-15) That identification was false. (Vol. IVT p 506) The other man identified by Stephens was not a suspect. A detective included his photograph as a “filler” because he had characteristics that were similar to the suspect, Mr. McLean. (Vol. IIIT p 425, 434-35) Willis also viewed a photographic lineup on 24 April 2008 and picked out Mr. McLean as the man with the SKS assault rifle. He was 80% sure. (Vol. IIT p 259-62)
Mr. McLean’s photograph was in the same position in all of the photographic lineups. The lead detective testified that the Eyewitness Identification Reform Act states that if there are multiple witnesses, the suspect should be in a different position in each lineup. (Vol.IVT p 500-501) Mr. McLean’s photograph also had a light background while the other five photographs had darker backgrounds. According to the lead detective, the Eyewitness Identification Reform Act states that the suspect’s photograph should not “unduly stand out from the fillers.” (Vol. IT p 65; Vol. IVT p 503-504; R p 30) Willis testified that the officer conducting the lineup gave him a sheet of paper containing all six photographs. (Vol. IIT p 274) The officerdenied that assertion, but admitted that under the Eyewitness Identification Reform Act, police must show the six individual photographs one at a time. (Vol. IIIT p 408) Mr. McLean sought to suppress the identifications. (R p 28-30) The trial court denied the motion on the ground that it was not accompanied by an affidavit. (Vol. IT p 20-21; Vol. IT p 103, 146, 241)
On the Wednesday before the shooting, Mr. McLean rented the building next door to Club Touch from Stuart Elium, the owner of both buildings. Mr. McLean drove a bronze Jaguar. Mr. McLean told Mr. Elium that he wanted to open an arcade. Elium testified thatMr. McLean gave him $5,000 for the first and last month’s rent. Prior to trial, Elium told an officer that Mr. McLean gave him $3,200. (Vol. IVT p 499) Mr. McLean testified that he gave Mr. Elium $3,200 for the first and last month’s rent. According to Mr. Elium, Mr. McLean was cordial and very nice. (Vol. IT p 46, 49; Vol. IVT p 541)
George testifiedthat he met Mr. McLean on the Thursday before the shooting. (Vol. IIT p 130) Mr. McLean was driving a motorcycle, but later returned in a gold Jaguar. Mr. McLean was cordial and told George he wanted to open a club next door to Club Touch. The new club would be open from 2:00 a.m. until 6:00 a.m. George was concerned that a new club might affect Club Touch’s liquor license and informed the owner of Club Touch. (Vol. IIT p 131-33, 137)
After Club Touch opened at 10:00 p.m. on Thursday night, men next door put up a sign saying, “The Party is Here,” put balloons on their mailbox, and played loud music. (Vol. IIT p 134) Mr. McLean testified that he did not put out any signs and did not play loud music because the electricity was not even turned on. (Vol. IVT p 555) According to Willis, Mr. McLean said, “It’s hood out here. Going to be real.” (Vol. IIT p 238) According to George, men yelled from the Jaguar, “We’re hood around here.” (Vol. IIT p 137) The owner of Club Touch became upset and called Mr. Elium. (Vol. IT p 50; Vol. IIT p 134-35) Mr. Elium met with Mr. McLean the next day and told him that the city would not allowthe two clubs to be located next door to one another. Mr. Elium returned Mr. McLean’s money and they shook hands. Mr. McLean was disappointed, but not angry. He was very cordial and showed no animosity. (Vol. IT p 51-52, 61)
Mr. Elium felt bad that he could not rent the building to Mr. McLean. He loaned a truck to Mr. McLean and had several of his employees help Mr. McLean move Mr. McLean’s belongings from the building. Mr. McLean was pleasant during the move and returned the keys to Mr. Elium. (Vol. IT p 52, 61, 78)
Mr. McLean, who stipulated he had been convicted of a felony, testified that he rented the building from Mr. Elium to set up a club for teens. (Vol. IT p 44; Vol. IVT p 540) He also testified that he spoke to the owners of Club Touch on Thursday and told them the concept for the club. (Vol. IVT p 542-43) Mr. McLean further testified that Mr. Elium called him, told him the zoning department did not approve the request to have two clubs in close proximity to one another, and returned Mr. McLean’s money. Mr. McLean moved his property out of the club on Friday. (Vol. IVT p 544-46)
Mr. McLean further testified that he then drove his sister’s Jaguar to Fort Washington, Maryland, because of a death in his family. He arrived in Maryland on Saturday, 19 April 2008, stayed through Sunday, 20 April 2008, and did not return to Greensboro until Monday, 21 April 2008. He was not at Club Touch on Sunday morning and did not shoot a gun. (Vol. IVT p 547-48, 550, 557)
Stephens, George,and Willis testified that they recognized Mr. McLean as the man with the SKS assault rifle. Stephens testified that the man with the handgun looked at him and said, “[H]e doesn’t know what’s going on” and “[h]e’s got nothing to do with it.” According to Stephens, Mr. McLean said, “No, time for talking is done.” (Vol. IIT p 105-107) Willis and George testified that after Mr. McLean asked for the owner of Club Touch, he said, “If I can’t open up my business, y’all are not going to open either.” (Vol. IIT p 140, 242) Willis laughed and Mr. McLean got angry. Willis testified that Mr. McLean retrieved the SKS assault rifle and said, “Man, it’s real out here. You think I’m playing?” Willis further testified that before the shots were fired, Mr. McLean said, “Oh, you’re really not going to run… You’ve got hard.” (Vol. IIT p 242-44) A man loading sound equipment into a van heard someone say, “Wait right here… Y’all done messed up.” (Vol. IIT p 96) Stephens heard Mr. McLean tell Willis and George to come back outside. (Vol. IIT p 107)
Police never recovered the SKS assault rifle or the .45 caliber handgun that fired the shots. (Vol. IIIT p 480) None of the other people allegedly involved in the shooting were ever identified. (Vol. IIIT p 479; Vol. IVT p 493) On 24 April 2008, police stopped the Jaguar, which was registered to Mr. McLean’s sister,while she was driving. Mr. McLean was not in the car. (Vol. IIIT p 379, 472) Police recovered a live 7.62 x 39 millimeter rifle round on the floorboard under the front passenger seat. The round was consistent with casings found in the parking lot in front of Club Touch. (Vol. IIIT p 372, 375) Police did not recover any fingerprints from the live round. None of the fingerprints on the Jaguar matched Mr. McLean’s fingerprints. (Vol. IIIT p 474-75) The Jaguar was released to an auto dealership in May 2008, and on 10 July 2008, police stopped Mr. McLean while he was driving the Jaguar. There were no guns or bullets in the Jaguar or on Mr. McLean. (Vol. IIIT p 401, 474)
A deputy sheriff testified that he transported Mr. McLean and three other prisoners from the courthouse to the jail after a hearing in this case on 9 June 2011. (Vol. IVT p 514) The deputy testified that Mr. McLean had possibly been looking at police reports in the courtroom, was handcuffed to another prisoner, and the two were talking about their individual cases. According to the deputy, Mr. McLean said, “I can’t believe they have me over here for this. I shot the guy in the calf and there wasn’t even an exit would and they’ve had me sitting up here for 35 months for this? They’re just trying to see if I crack being up here so long.” (Vol. IVT p 515, 518-20) According to Mr. McLean, he had just received new discovery material and was looking through it. He talked to the other prisoner about his case, and the other prisoner asked, “[W]hat are they saying?” In response, Mr. McLean said, “They’re saying I shot a guy in the leg and he had no exit wound.” (Vol. IVT p 549)
Police recovered six 7.62 caliber shell casings and twelve .45 caliber shell casings from the parking lot in front of Club Touch. (Vol. IIIT p 310, 313-14) An SKS assault rifle uses 7.62 caliber ammunition. (Vol. IIIT p 430) Mr. McLean filed a motion for DNA testing and a motion for fingerprint testing of the shell casings found in the parking lot. (R p 20-21, 23) Defense counsel argued, “We’ve talked about a plea bargain in this case. There’s not going to be a plea bargain in this case. My client says he’s not guilty of this offense. In order to pursue all efforts to show that he’s not guilty, I’d like to have the opportunity to test these shell casings.” (DNA T p 21) The defense further argued that it wanted “the opportunity to test those shell casings to see if there’s any DNA evidence on there and have it compared to Mr. McLean’s.” (DNA T p 22) The State recognized that the shell casings had not been tested for DNA, but opposed the motion, arguing that the defense sought “to prove that somebody else’s DNA may be on there” and therefore sought “to prove a negative.” (DNA T p 22) The State further argued that testing an item for DNA would eliminate the possibility of testing the item for fingerprints. (DNA T p 23-24) In response, the defense argued that a representative from LabCorp indicated that “fingerprint analysis wouldn’t disturb their ability to find DNA on an item.” (DNA T p 25-26) The trial court allowed the motion for fingerprint testing of the shell casings, but denied the motion for DNA testing “in its discretion.” (R p 23; DNA T p 25, 26, 37)
STANDARD OF REVIEW
“Alleged statutory errors are questions of law, State v. Hanton, 175 N.C.App. 250, 255, 623 S.E.2d 600, 604 (2006), and as such, are reviewed de novo.” State v. Mackey, 209 N.C. App. 116, 120, 708 S.E.2d 719, 721, disc. review denied, 365 N.C. 193, 707 S.E.2d 246 (2011) (citation omitted). Under the de novo standard, this Court considers the matter anew and freely substitutes its own judgment for that of the lower court. N.C. Department of Environment & Natural Resources v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).