State v. Borders

NO. COA13-1208

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

STATE OF NORTH CAROLINA
Plaintiff

v. Cleveland County
Nos. 09 CRS 57186
09 CRS 57187
10 CRS 285
DONALD EUGENE BORDERS
Defendant

Appeal by defendant from judgments entered 29 January 2013

by Judge Richard D. Boner in Cleveland County Superior Court.

Heard in the Court of Appeals 22 May 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Mary Carla Hollis, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr.,
for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Donald Eugene Borders (“Defendant”) appeals from a jury

verdict finding him guilty of raping and murdering Margaret

Tessneer (“Ms. Tessneer”). Defendant argues (i) that the trial

court erred by admitting DNA evidence obtained by officers after

effectuating an arrest based on an unrelated warrant at his

domicile; (ii) that the trial court erred by denying his motion
 -2-
for a change of venue because pretrial publicity made it

impossible to empanel an impartial jury; and (iii) that the

trial court abused its discretion in allowing the admission of

expert testimony that Ms. Tessneer died from asphyxiation

because the testimony was unreliable and lacked a proper

foundation. After careful review, we find no error in the trial

court’s judgments.

I. Facts & Procedural History

Defendant was indicted on 11 January 2010 for rape and

felonious breaking and entering in File Nos. 09 CRS 057186 and

09 CRS 05187. Defendant was also indicted on 8 March 2010 for

first-degree murder in File No. 10 CRS 00285. Defendant stood

trial in Cleveland County Superior Court, beginning on 13

November 2012 and ending on 29 January 2013. The record and

trial transcript below tended to show the following facts.

Immediately prior to Defendant’s trial, the trial court

held a suppression hearing concerning a DNA sample acquired from

a cigarette used by Defendant, the facts surrounding which are

discussed in Section III infra. After the hearing on

Defendant’s motion to suppress the DNA evidence, Defendant twice

moved for a change of venue; neither request was granted. The

jury was empaneled and the State called Amy Fredell (“Ms.
 -3-
Fredell”), a Service Division Supervisor with the Shelby Police

Department, as its first witness.

A. Events of 20 September 2003

Ms. Fredell testified that on 20 September 2003, the Shelby

Police Department received a 911 call requesting that an officer

be dispatched to 1024 Railroad Avenue, where a death had

occurred. Patrol Officer Victor Haynes (“Officer Haynes”) was

dispatched to the residence, where Officer Haynes saw Ms.

Tessneer, an elderly woman, lying on a bed in the home. Ms.

Tessneer’s feet were on the floor, she was clothed in a light-

colored nightgown, her eyes were fixed, and her mouth was open.

Officer Haynes observed false teeth next to her body on the bed.

Officer Haynes did not find a pulse or observe her breathing.

Officer Haynes stated that Ms. Tessneer felt cold. Officer

Haynes cleared the residence and then went outside to ensure

that emergency medical service personnel (“EMS”) came to the

residence.

Louie Ledford (“Mr. Ledford”) of EMS arrived at the scene.

Mr. Ledford entered with Officer Haynes, checked Ms. Tessneer’s

vital signs, and found that Ms. Tessneer had passed away.

Officer Haynes surveyed the home and found two cement blocks

stacked outside of Ms. Tessneer’s bedroom window as well as some
 -4-
phone lines that had been cut on the same side of the house.

Mr. Ledford testified Ms. Tessneer was not breathing when he

arrived at her home. After taking Ms. Tessneer’s pulse, Mr.

Ledford told Officer Haynes that she was dead, closed her eyes

with his gloved fingers, and covered her body with a sheet. Mr.

Ledford described the body as “morbid,” having bruising on the

wrists and arms, and stated that a pool of blood collected

around Ms. Tessneer’s body. Mr. Ledford did not notice any

signs of struggle.

Ms. Tessneer’s daughter, Libby Clark (“Ms. Clark”),

testified that on 20 September 2003, Ms. Clark took her husband

to the doctor’s office, stopped by Hardee’s to purchase a

biscuit, and purchased another biscuit to take to her mother.

Ms. Clark arrived at her mother’s home at around 11 A.M. Ms.

Clark stated that upon leaving her car, she noticed a cement

block underneath her mother’s bedroom window, which she thought

was unusual. Ms. Clark then walked up the home’s steps and

through the unlocked screen door, which her mother usually kept

locked. Ms. Clark then saw her mother laying on her bed. Ms.

Clark ran to Ms. Tessneer’s phone to dial 911, but found that

the phone did not work. Ms. Clark tried another phone, which

also did not work. Ms. Clark then ran to a neighbor’s home,
 -5-
asking the woman inside to dial 911 and then went to her uncle’s

home, which was near Ms. Tessneer’s residence.

Another of Ms. Tessneer’s daughters, Peggy Sparks (“Ms.

Sparks”), testified. Ms. Sparks spent her lunch break on 19

September 2003 with her mother. Ms. Sparks stated that her

mother was “in good spirts,” that Ms. Tessneer was laughing and

that Ms. Sparks enjoyed the visit. Ms. Sparks stated that her

mother was not dating anyone at the time and showed no signs of

injuries on 19 September 2003. Ms. Sparks described her

mother’s habit of locking both her screen door and main door at

her home. Ms. Sparks stated that both doors were locked when

she visited her mother on 19 September 2003 and that the screen

door did not appear damaged.

Crime Scene Investigator Todd Vickery (“Investigator

Vickery”) performed the crime scene walkthrough on 20 September

2003. Investigator Vickery observed that Ms. Tessneer’s false

teeth were lying next to her on the bed, that some pantyhose

were also on the bed, and that some blood was on the bed’s

mattress pad. Investigator Vickery also noticed a small tear on

the entry door to the screened-in front porch, near the door’s

latch. Investigator Vickery then dusted for fingerprints, took

photographs, and began collecting physical items. Investigator
 -6-
Vickery stated that “[o]ther than the area around Ms. Tessneer,

the house appeared to be neat and in order.”

Gaston Memorial Hospital pathologist Dr. Steven Tracy (“Dr.

Tracy”) testified at trial as an expert in forensic pathology,

over Defendant’s objection. Dr. Tracy performed an autopsy of

Ms. Tessneer on 22 September 2003. Dr. Tracy stated that Ms.

Tessneer had bruising to her arms, legs, one of her feet, left

shoulder, and abdomen. Dr. Tracy believed Ms. Tessneer’s

injuries occurred within twenty-four hours of her death. Ms.

Tessneer also had hemorrhaging over the surface of her arms.

Dr. Tracy noted that many elderly people have surface

hemorrhages. Dr. Tracy stated that without knowing Ms.

Tessneer, he did not know whether the hemorrhages were there

before or after the bruising occurred. Ms. Tessneer’s right

forearm also contained an abrasion near her hemorrhages.

Dr. Tracy described a tear to the outer portion of Ms.

Tessneer’s panties and a small amount of blood on the panties.

Dr. Tracy also stated that Ms. Tessneer had a small abrasion to

her vagina.

Dr. Tracy also used an SBI sexual assault evidence

collection kit (“sexual assault kit”) and took swabs from Ms.

Tessneer’s vagina, cheek, and rectum. In February 2004, the
 -7-
North Carolina State Bureau of Investigation Crime Laboratory

(“SBI”) reported that its testing showed the presence of sperm

on the vaginal swab taken from Ms. Tessneer’s sexual assault

kit. A DNA profile of the evidence was created from the vaginal

swab, but no DNA match was made at that time.

Immediately after the autopsy, Dr. Tracy withheld his

opinion as to the cause of death. Dr. Tracy stated that the

bruises on the body did not in and of themselves account for Ms.

Tessneer’s death, and no other anatomical findings apparent at

that point explained her cause of death. Dr. Tracy’s autopsy

report lists the cause of death as undetermined, but contained a

discussion stating that Dr. Tracy was “considering suffocation.”

Dr. Tracy stated that he waited for microscopic slides and a

toxicology report to come back, and after ruling out “any other

reasonable cause of death to a reasonable degree of medical

certainty,” Dr. Tracy opined that Ms. Tessneer died of

asphyxiation secondary to suffocation. Dr. Tracy stated that

this may have occurred after Ms. Tessneer’s mouth was covered

with a soft object, “such as a pillow or cushion, a piece of

clothing or a hand.” Dr. Tracy also testified that markings or

injuries typically do not appear if the suffocation was
 -8-
effectuated by a soft object, and that injuries from suffocation

are often very difficult to detect.

Dr. Tracy testified that police contacted him in 2009 and

asked if he would consider changing his 2003 opinion about the

cause of death. Dr. Tracy stated that the police did not

suggest suffocation. Dr. Tracy also has not modified his

written autopsy report to reflect suffocation. Dr. Tracy stated

that he was willing to add an addendum to his report indicating

that Ms. Tessneer died of asphyxiation, secondary to

suffocation, but had not amended the autopsy report to reflect

that view. Dr. Tracy stated that he always believed “to a

reasonable degree of medical certainty that Ms. Tessneer died of

asphyxiation.” Dr. Tracy became even more confident in this

opinion after receiving information about the examination of the

sexual assault kit and lack of other findings as to Ms.

Tessneer’s cause of death.

Dr. John D. Butts (“Dr. Butts”), a retired chief medical

examiner for the State of North Carolina, testified at trial.

Defendant did not object to Dr. Butts being tendered as an

expert in the field of forensic pathology. Dr. Butts stated

that he had consulted with Dr. Tracy in December 2003 and that

the two had agreed the best designation for the cause and manner
 -9-
of Ms. Tessneer’s death was “undetermined” because “the evidence

was overwhelmingly [sic] that Ms. Tessneer’s death was not the

result of natural causes” but that there was not sufficient

evidence to state the cause of death.

Dr. Butts later learned about the sexual assault kit’s

contents in 2009 after being contacted by the local district

attorney. Dr. Butts prepared another report after learning of

the evidence derived from the sexual assault kit’s contents in

which he opined that Ms. Tessneer had died from “external forces

or causes rather than some natural process” at the hands of

another individual. Dr. Butts stated in this report that “the

environment and circumstances under which [Ms. Tessneer] was

found were highly suspicious. There was evidence of entry into

the house. Her telephone line had been cut or disabled.” Dr.

Butts also testified that her body was found in an unusual

position for a natural death, that there was injury to her body,

disturbances to her clothing, bruises on her body, and bruises

in the entrance to Ms. Tessneer’s vagina. Dr. Butts testified

the toxicological tests revealed the presence of the pain

medication Ms. Tessneer used, but that the amount was not

excessive. Dr. Butts also noted the lack of a catastrophic

natural event, findings consistent with an advanced disease
 -10-
process, or stroke, or any “evidence of a significant underlying

medical condition either in her history or in the autopsy report

upon examination that would explain her death.” Dr. Butts

testified that given the circumstances, the “most common

mechanism of death would be an asphyxiation.” Dr. Butts also

testified that the autopsy report was not amended and that no

one had coerced him into changing his opinion concerning the

cause of death.

B. 2009 Investigation of Ms. Tessneer’s Death

Agent John Kaiser (“Agent Kaiser”) testified that he was

contacted by Detective Rich Ivey (“Detective Ivey”) in April

2009 to assist in the investigation of Ms. Tessneer’s death.

Detective Ivey was working in the Shelby Police Department at

that time. Agent Kaiser and Detective Ivey worked through the

case file and devised an investigative strategy. The two

noticed that there was a suspect book in the case file as well

as a DNA profile from the sexual assault kit; they resolved to

work through the suspect book to clear individuals in the book

or to find a match. There were around thirty individuals listed

in the book, including Defendant.

On 4 May 2009, Detective Ivey and Agent Kaiser found

Defendant at his mother’s residence in Cherryville, where he
 -11-
lived. Defendant refused to comply with or submit to police

officers’ request for a DNA sample. Officers visited Defendant

on a total of four separate occasions at his home and requested

a DNA sample; officers visited on 4 May 2009, 6 May 2009, 8 May

2009, and once more after 8 May 2009 and prior to Defendant’s

arrest on 16 May 2009.

Agent Kaiser contacted Officer James Brienza (“Officer

Brienza”) on 13 May 2009 and asked Officer Brienza to serve an

active warrant for assault on a female on Defendant. Agent

Kaiser asked Officer Brienza to obtain DNA evidence from

Defendant, “either from a drink can or some abandoned material.”1

Officer Brienza verified that the assault on a female warrant

was still active and then served the warrant on Defendant on 16

May 2009 at his mother’s residence in Cherryville.

Officer Brienza arrived at the Cherryville residence

between 12:00 A.M. and 2:00 A.M. on 16 May 2009. Officer

Brienza knocked at the door and spoke with Defendant’s mother.

Defendant’s mother allowed Officer Brienza into her home, where

Officer Brienza found Defendant asleep. Officer Brienza woke

Defendant up and told Defendant to come with him so he could

1
Agent Kaiser stated that he purposefully left his instruction
to Officer Brienza vague so that Officer Brienza would obtain a
DNA sample off of a drink can, a cigarette, or another object.
 -12-
serve the arrest warrant. Defendant got dressed and was taken

outside in handcuffs. Defendant was handcuffed in the front of

his body.2

Officer Brienza noticed a pack of cigarettes on the

nightstand near where he found Defendant and “felt like there

was a good opportunity to take advantage of possible D.N.A.

gathering at that point from a cigarette butt.” Officer Brienza

“asked [Defendant] if he wanted to smoke a cigarette before we

left,” to which Defendant replied affirmatively.

Officer Brienza testified that Defendant smoked a cigarette

“[o]utside in the front porch area towards the driveway, next to

the car. We had walked from the front porch area and down to my

vehicle” where Defendant smoked the cigarette. Officer Brienza

testified that Defendant did not smoke the entire cigarette, but

that Defendant was allowed “enough time to take several hits off

of the cigarette – several drags.” After Defendant took these

cigarette drags, Officer Brienza “asked him if he would like me

[to] discard the cigarette and told him that we needed to
2
In his affidavit attached to the motion to suppress, Defendant
asserts that he was handcuffed with his hands behind his back.
Defendant also stated that one of the police officers pulled a
cigarette from his cigarette pack and placed it in his mouth so
he could smoke. During Officer Brienza’s testimony at trial,
Officer Brienza stated that he handcuffed Defendant in front of
his body and no other evidence was provided tending to show that
Defendant was handcuffed behind his back.
 -13-
leave.” Officer Brienza stated that Defendant responded

affirmatively to his offer to discard the cigarette.

Officer Brienza, who was wearing gloves, “took the

cigarette from his mouth and acted like [he] was going to get

rid of the cigarette.” Officer Brienza then “extinguished the

end of the cigarette on the ground and cupped it, put it in a

plastic bag[,] and took [Defendant] to jail.” Defendant

objected to the admission of this evidence under the Fourth

Amendment of the United States Constitution, under “Article 19 –

Article 1, Section 19, 20 and 23 of the North Carolina

Constitution and also under State versus Reed.” Defendant’s

objection was overruled by the trial court.

Officer Brienza stated that no part of the cigarette which

touched Defendant’s mouth had made contact with the ground.

Officer Brienza also testified that after processing Defendant

at the jail, he called Agent Kaiser to tell him about the

evidence he had gathered and released the cigarette into his

custody thereafter. Officer Brienza was the only officer to

serve the warrant and approach Defendant initially, although

other officers arrived later in a “support role.”

Officer Brienza testified that he had two goals that

evening: (i) to serve a warrant and (ii) to obtain a DNA sample.
 -14-
Officer Brienza stated that obtaining the DNA sample was the

primary goal of his visit. Officer Brienza recounted that

Defendant carried the cigarette outside and that Defendant was

in his custody when Defendant smoked the cigarette, as well as

when Defendant was asked whether he wanted Officer Brienza to

discard the cigarette.

After Officer Brienza delivered the cigarette butt to Agent

Kaiser, Agent Kaiser sent the cigarette butt to the SBI, which

performed DNA tests on the cigarette butt. After Agent Kaiser

learned that the DNA test results matched the DNA profile

derived from a swab in Ms. Tessneer’s sexual assault kit, Agent

Kaiser obtained a second arrest warrant charging Defendant for

murder, rape, and breaking and entering. Agent Kaiser and

Officer Brienza served Defendant with the warrants at his

mother’s home on 28 December 2009. Agent Kaiser and Officer

Brienza showed Defendant a picture of Ms. Tessneer and asked

whether he recognized her; Defendant said he did not recognize

her and denied ever having been in contact with her. Agent

Kaiser and Detective Ivey also obtained a search warrant

authorizing them to collect a suspect evidence collection kit

from Defendant, whereby Defendant was required to provide the

officers with a cheek swab. The DNA profile extracted from the
 -15-
cheek swab matched the DNA profile collected from the sperm

found in Ms. Tessneer’s sexual assault kit.

After the State rested its case at trial, Defendant moved

to dismiss the case, and his motion was denied by the trial

court. Defendant did not testify at trial, nor did Defendant

present evidence. The trial court denied Defendant’s renewed

motion to dismiss. On 28 January 2013, the jury returned

verdicts finding Defendant guilty of first-degree murder on a

felony murder theory; first-degree rape; and felonious breaking

and entering. The trial court arrested judgment with respect to

the first-degree rape conviction. The trial court then

sentenced Defendant to life in prison without the possibility of

parole based upon the first-degree murder conviction. The trial

court also sentenced Defendant to a concurrent term of ten to

twelve months imprisonment based upon the felonious breaking and

entering conviction. Defendant provided timely notice of appeal

on 29 January 2013.

II. Jurisdiction & Standard of Review

Defendant appeals as of right from a decision of the trial

court. N.C. Gen. Stat. §§ 7A–27(b), 15A–1444(a) (2013).

The first issue concerns whether the trial court erred in

denying a motion to suppress the DNA evidence. This Court
 -16-
reviews conclusions of law stemming from the denial of a motion

to suppress de novo. State v. Barnhill, 166 N.C. App. 228, 230,

601 S.E.2d 215, 217, disc. rev. denied, 359 N.C. 191, 607 S.E.2d

646 (2004).

“Under de novo review, we examine the case with new eyes.”

State v. Young, ___ N.C. App. ___, ___, 756 S.E.2d 768, 779,

cert. granted ___ N.C. ___ (2014). “[D]e novo means fresh or

anew; for a second time, and an appeal de novo is an appeal in

which the appellate court uses the trial court’s record but

reviews the evidence and law without deference to the trial

court’s rulings.” Parker v. Glosson, 182 N.C. App. 229, 231,

641 S.E.2d 735, 737 (2007) (quotation marks and citations

omitted). “Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment for that of

the lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ.,

363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks

and citation omitted).

The second issue on appeal concerns the trial court’s

denial of Defendant’s motions for a change of venue. The third

issue concerns Defendant’s objections to expert testimony

regarding the cause of death. Both the second and third issue

are reviewed under an abuse of discretion standard. State v.
 -17-
Ward, 364 N.C. 133, 139, 694 S.E.2d 738, 742 (2010) (reviewing

the admissibility of expert testimony under an abuse of

discretion standard); State v. Whitaker, 43 N.C. App. 600, 603,

259 S.E.2d 316, 318 (1979) (reviewing the denial of a change of

venue motion under an abuse of discretion standard).

“Abuse of discretion results where the court’s ruling is

manifestly unsupported by reason or is so arbitrary that it

could not have been the result of a reasoned decision.” State

v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

III. Analysis

A. Motion to Suppress DNA Evidence

Defendant makes three principal arguments concerning the

first issue. First, Defendant argues that he did not willfully

relinquish control of his cigarette butt to Officer Brienza.

Second, Defendant argues that because the cigarette butt was

given to Officer Brienza within the curtilage of his home,

Defendant had a reasonable expectation of privacy in the

cigarette butt and the DNA derived from it. Third, Defendant

argues that the ruse crafted by Officer Brienza and Agent Kaiser

to obtain his DNA violated the Fourth Amendment.

In this section, we first set forth the facts established

at the hearing concerning Defendant’s motion to suppress. We
 -18-
then discuss the fundamental principles that guide our inquiry,

including our binding precedents relating to searches within the

curtilage, trickery, and abandoned property. We then apply our

precedents to address Defendant’s arguments.

i. Pre-Trial Hearing and Order on Motion to Suppress

The trial court held a pretrial hearing concerning

Defendant’s motion to suppress the DNA evidence obtained as a

result of Officer Brienza’s seizure of a cigarette butt

containing Defendant’s DNA. At the hearing, Agent Kaiser noted

that Defendant had denied officers’ earlier requests to provide

a DNA sample on four separate occasions prior to Officer

Brienza’s arrest of Defendant on 16 May 2009.

Agent Kaiser and Detective Ivey initially approached

Defendant at his mother’s residence on 4 May 2009 and told

Defendant that they were investigating the death of three

elderly women in 2003. Defendant refused to consent to the

giving of a DNA sample. Defendant refused to provide a DNA

sample three additional times and told police that he had

retained an attorney after the fourth request. Agent Kaiser did

not believe the police had sufficient evidence to request the

issuance of a search warrant or an arrest warrant in connection

with Ms. Tessneer’s death at that time.
 -19-
After Defendant refused to voluntarily provide a DNA

sample, Agent Kaiser spoke with Vivian Borders, Defendant’s ex-

wife. Vivian Borders told police that she had sought two

warrants for Defendant’s arrest, one for damage to personal

property and another for assault on a female. Agent Kaiser

located the warrant for assault on a female, which was active

and held in the Gaston County Warrant Repository. Agent Kaiser

then contacted Officer Brienza and requested that he serve the

assault on a female warrant on Defendant.3 Agent Kaiser also

requested that Officer Brienza collect DNA from Defendant, and

made suggestions about collecting a soda can or a cigarette.

Agent Kaiser also wanted Officer Brienza to take the DNA sample

without Defendant’s knowledge. Agent Kaiser said he wasn’t sure

what he told Officer Brienza, but that he “had in [his] mind

[that] it could be at the jail. It could be in the car in

transit. It could be, you know, any different scenarios that

could have played out.”

Agent Kaiser described Defendant’s arrest at 2 A.M. on 16

May 2009 and Defendant’s smoking of a cigarette before leaving

his mother’s home that evening. Agent Kaiser said that Officer

Brienza offered Defendant a cigarette, which Defendant smoked

3
The assault on a female charge was eventually dismissed.
 -20-
prior to entering Officer Brienza’s patrol car. Officer Brienza

“asked [Defendant] if he — meaning [Defendant] — wanted Brienza

to discard the cigarette. [Defendant] told Brienza he did and

allowed Brienza to take the cigarette butt from his mouth.”

Agent Kaiser stated that if Officer Brienza was not

initially successful in obtaining a DNA sample upon arrest, the

purpose of serving the warrant in the late evening was to keep

Defendant in custody and develop another plan to capture his

DNA.

Officer Brienza recounted the same facts as Agent Kaiser,

saying that he offered Defendant a cigarette and “asked if he

would let me dispose of the cigarette.” On cross, Officer

Brienza was asked if he had said “you want me to take that and

throw it away,” and Officer Brienza responded affirmatively.

Officer Brienza said he took the cigarette from Defendant’s

mouth, extinguished it, cupped it in his hand, and placed the

cigarette into an evidence bag. Officer Brienza confirmed that

he was wearing latex gloves. Officer Brienza also said he would

not have allowed Defendant to bring the cigarette into the

police car.

The trial court entered an order denying Defendant’s motion

to suppress the DNA evidence collected from the cigarette butt.
 -21-
In its order, the trial court made these relevant findings of

fact:

8. When Officer Brienza said it was time to
leave the premises, the officer asked the
defendant if he wanted the officer to
dispose of the cigarette. The defendant
replied affirmatively. Officer Brienza
removed the cigarette from the defendant’s
lips. Unbeknownst to the defendant, the
officer kept the cigarette butt in his
cupped hand. The officer later placed the
cigarette butt in a plastic evidence bag.

9. The defendant did not give consent to
the officer’s removal of the cigarette butt
from the premises of the residence, and he
was unaware that the cigarette butt had been
taken by the officer.

. . .

20. Officer Brienza obtained the cigarette
butt while the he [sic] and the defendant
were standing in the driveway of the
residence of the defendant’s mother. The
driveway was bounded on both sides by the
front yard of the residence.

The trial court then concluded as a matter of law that

1. The area where Officer Brienza obtained
the cigarette butt was located within the
curtilage of the residence, and it was an
area in which the defendant had a reasonable
expectation of privacy.

2. The defendant consented to the removal of
the cigarette from his lips, and he
authorized Officer Brienza to dispose of the
butt. By doing so the defendant
relinquished possession of the butt and any
reasonable expectation of privacy with
 -22-
regard to it. That he did so in a protected
area as a result of trickery is of no
consequence.

ii. Guiding Principles in Search and Seizure Jurisprudence

The guiding principles in this case are derived from the

Fourth Amendment to the United States Constitution and Section

20 of the North Carolina Constitution:

The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by
Oath or affirmation, and particularly
describing the place to be searched, and the
persons or things to be seized.

U.S. Const. amend. IV; N.C. Const. art. I, § 20 (“General

warrants, whereby any officer or other person may be commanded

to search suspected places without evidence of the act

committed, or to seize any person or persons not named, whose

offense is not particularly described and supported by evidence,

are dangerous to liberty and shall not be granted.”); see also

N.C. Const. art. I, § 19 (“No person shall be taken, imprisoned,

or disseized of his freehold, liberties, or privileges, or

outlawed, or exiled, or in any manner deprived of his life,

liberty, or property, but by the law of the land. No person

shall be denied the equal protection of the laws; nor shall any
 -23-
person be subjected to discrimination by the State because of

race, color, religion, or national origin.”).

“[T]he touchstone of [Fourth] Amendment analysis has been

. . . whether ‘a person has a constitutionally protected

reasonable expectation of privacy.’” Oliver v. United States,

466 U.S. 170, 177 (1984) (quoting Katz v. United States, 389

U.S. 347, 360 (1967) (Harlan, J., concurring). Further:

The Amendment does not protect the merely
subjective expectation of privacy, but only
those expectations that society is prepared
to recognize as reasonable. No single
factor determines whether an individual
legitimately may claim under the Fourth
Amendment that a place should be free of
government intrusion not authorized by
warrant. In assessing the degree to which a
search infringes upon individual privacy,
the Court has given great weight to such
factors as the intention of the Framers of
the Fourth Amendment, the uses to which the
individual has put a location, and our
societal understanding that certain areas
deserve the most scrupulous protection from
government invasion.

State v. Phillips, 132 N.C. App. 765, 770, 513 S.E.2d 568, 572

(1999) (citation, quotation marks, and alterations omitted).

An individual’s expectation of privacy is

“necessarily . . . of a diminished scope” when taken into police

custody. Maryland v. King, ___ U.S. ___, ___, 133 S. Ct. 1958,

1978 (2013) (citation, quotation marks, and alterations
 -24-
omitted). DNA evidence may also be obtained without consent of

a suspect after “officers make an arrest supported by probable

cause to hold for a serious offense . . . .” Id. at ___, 133 S.

Ct. at 1980. Our General Statutes allow for compulsory DNA

sample collection from a suspect arrested for any one of several

offenses. N.C. Gen. Stat. § 15A-266.3A(f) (2013). Defendant

was initially arrested pursuant to N.C. Gen. Stat. § 14-33(c)(2)

(2013), which is not one of the enumerated offenses for which

police officers may compel the collection of DNA evidence. See

N.C. Gen. Stat. § 15A-266.3A(f).

“Searches conducted without warrants have been held

unlawful ‘notwithstanding facts unquestionably showing probable

cause,’ for the Constitution requires that the deliberate,

impartial judgment of a judicial officer . . . be interposed

between the citizen and the police . . . .” Katz, 389 U.S. at

357 (citations and quotation marks omitted). “[S]earches

conducted outside the judicial process, without prior approval

by judge or magistrate, are per se unreasonable under the Fourth

Amendment—subject only to a few specifically established and

well-delineated exceptions.” Id.

One such exception allows police to conduct warrantless

searches of garbage left for regular curbside collection.
 -25-
California v. Greenwood, 486 U.S. 35, 38 (1988). Our Supreme

Court has recognized that “a reasonable expectation of privacy

is not retained in garbage simply by virtue of its location

within the curtilage of a defendant’s home.” State v. Hauser,

342 N.C. 382, 386, 464 S.E.2d 443, 446 (1995). However, Hauser

also held that “the defendant may have retained some expectation

of privacy in garbage placed in his backyard out of the public’s

view, so as to bar search and seizure by the police themselves

entering his property.” Id. at 388, 464 S.E.2d at 447 (emphasis

added). This Court identified three factors relevant to the

Hauser inquiry in State v. Reed, 182 N.C. App. 109, 112, 641

S.E.2d 320, 322, writ denied, review denied, appeal dismissed,

361 N.C. 701, 653 S.E.2d 155 (2007): “(1) the location of the

garbage; (2) the extent to which the garbage was exposed to the

public or out of the public’s view; and (3) ‘whether the garbage

was placed for pickup by a collection service and actually

picked up by the collection service before being turned over to

police.’” See id. (quoting Hauser, 342 N.C. at 386, 464 S.E.2d

at 446). This exception becomes relevant in conjunction with

the principles governing the seizure of abandoned property

discussed infra.
 -26-
The State may also not violate a constitutional right

indirectly if the State was not permitted to take that same

action directly. State v. Griffin, 154 N.C. 611, 615, 70 S.E.

292, 293 (1911) (“‘What the state may not do directly it may not

do indirectly.’” (quoting Bailey v. State of Alabama, 219 U.S.

219, 244 (1911))); see also Henderson v. Mayor of City of New

York, 92 U.S. 259, 263 (1875) (“That which cannot be done

directly will not be permitted to be done indirectly.”); State

v. Behrman, 114 N.C. 797, 807, 19 S.E. 220, 223 (1894) (“A

declaration excluded by the Constitution, as in violation of

individual right, will not be allowed to accomplish indirectly

what it is not permitted to do directly.”).

“Evidence obtained in violation of the Fourth Amendment’s

guarantee against unreasonable searches and seizures is

generally excluded at trial.” State v. Banner, 207 N.C. App.

729, 732, 701 S.E.2d 355, 358 (2010). The exclusionary rule

that has developed under Fourth Amendment jurisprudence is also

applicable to “evidence obtained in violation of the North

Carolina Constitution.” Id.; see also State v. Carter, 322 N.C.

709, 724, 370 S.E.2d 553, 562 (1988). “[O]ur constitution

demands the exclusion of illegally seized evidence. The courts

cannot condone or participate in the protection of those who
 -27-
violate the constitutional rights of others.” Carter, 322 N.C.

at 723, 370 S.E.2d at 561.

iii. Curtilage

“The Fourth Amendment ‘indicates with some precision the

places and things encompassed by its protections’: persons,

houses, papers, and effects.” Florida v. Jardines, ___ U.S.

___, ___, 133 S. Ct. 1409, 1414 (2013). However, “when it comes

to the Fourth Amendment, the home is first among equals.” Id.

At the core of the Fourth Amendment is the “‘right of a man to

retreat into his own home and there be free from unreasonable

governmental intrusion.’” Id. (quoting Silverman v. United

States, 365 U.S. 505, 511 (1961)). The area “immediately

surrounding and associated with the home” is known as the

curtilage, and is considered “part of the home itself” for

Fourth Amendment purposes. Id. (citation and quotation marks

omitted). “This area around the home is ‘intimately linked to

the home, both physically and psychologically,’ and is where

‘privacy expectations are most heightened.’” Id. at 1415

(quoting California v. Ciraolo, 476 U.S. 207, 213 (1986)).

Curtilage includes the “yard around the dwelling house as

well as the area occupied by barns, cribs, and other

outbuildings.” State v. Rhodes, 151 N.C. App. 208, 214, 565
 -28-
S.E.2d 266, 270, writ denied, review denied, 356 N.C. 173, 569

S.E.2d 273 (2002). Evidence obtained from a trash can located

within the curtilage may also be subject to the exclusionary

rule if not placed there for routine collection. Rhodes, 151

N.C. App. at 215, 565 S.E.2d at 271 (“[B]ecause the trash can

was within the curtilage of [the] defendant’s home and because

the contents of the trash can were not placed there for

collection in the usual and routine manner, [the] defendant

maintained an objectively reasonable expectation of privacy in

the contents of his trash can.”).

iv. Trickery

“The known official may engage in deception leading the

consenting party to conclude that the official’s objective is

other than criminal prosecution or that the official’s objective

relates to a form of criminal activity different from that which

actually prompted the official to seek consent.” Wayne R.

LaFave, 4 Search & Seizure § 8.2(n) 176 (5th ed. 2012).

However, “there is no common understanding as to what

constitutes permissible deception in enforcing the criminal

law.” Id. at 181.

Employing fraud or trickery in collecting evidence does

not, by itself, render evidence inadmissible. State v. Jackson,
 -29-
308 N.C. 549, 574, 304 S.E.2d 134, 148 (1983), overruled on

other grounds as stated in State v. Abbott, 320 N.C. 475, 481,

358 S.E.2d 365, 369 (1987).(“The use of trickery by police

officers in dealing with defendants is not illegal as a matter

of law. The general rule in the United States, which this Court

adopts, is that while deceptive methods or false statements by

police officers are not commendable practices, standing alone

they do not render a confession of guilt admissible. The

admissibility of the confession must be decided by viewing the

totality of the circumstances . . . .” (internal citations

omitted)); State v. Chambers, 92 N.C. App. 230, 233, 374 S.E.2d

158, 160 (1988) (holding that a police officer did not

unlawfully obtain a statement from a defendant by asking him

whether he would find “ass prints” on the hood of a vehicle in a

rape case). Further, “the state of mind of the police is

irrelevant to the question of the intelligence and voluntariness

of respondent’s election to abandon his rights.” Moran v.

Burbine, 475 U.S. 412, 423 (1986). While “police deception

might rise to a level of a due process violation,” it did not do

so in a case in which the police deliberately did not allow a

defendant to speak with his attorney absent the defendant’s

request for an attorney. Id. at 415, 432, 433–34.
 -30-
Other state courts have also allowed officers to use

trickery to obtain DNA evidence in connection with the service

of valid arrest warrants for unrelated crimes. See Com. v.

Ewing, 854 N.E.2d 993, 1001 (Mass. App. Ct. 2006), aff’d, 873

N.E.2d 1150 (Mass. 2007) (holding that “[t]he defendant had no

expectation of privacy in cigarette butts” and a drinking straw

that the defendant “voluntarily abandoned as trash” while being

interviewed at the police station house after law enforcement

served an arrest warrant for an unrelated crime); see also State

v. Athan, 158 P.3d 27, 31–33 (Wash. 2007) (upholding a ruse by

police against a challenge lodged under the Washington

Constitution where a defendant was sent a letter from a

fictitious law firm and his saliva was collected from an

envelope on the return letter).

v. Abandoned Property

“The protection of the Fourth Amendment does not extend to

abandoned property.” State v. Cromartie, 55 N.C. App. 221, 225,

284 S.E.2d 728, 730 (1981); see also Robert L. Farb, Arrest,

Search, and Investigation in North Carolina 175 (4th ed. 2011)

(“The Fourth Amendment does not apply to searching or seizing

abandoned property. The reason is fairly clear. A person

cannot assert a violation of a legitimate expectation of privacy
 -31-
if he or she has intentionally relinquished an interest in the

property.”). There is not a reasonable expectation of privacy

when a person “voluntarily puts property under the control of

another . . . [and] he must be viewed as having relinquished any

prior legitimate expectation of privacy with regard to that

property, as it becomes subject to public exposure upon the whim

of the other person.” State v. Jordan, 40 N.C. App. 412, 415,

252 S.E.2d 857, 859 (1979). If a party abandons property,

“[t]here can be nothing unlawful in the Government’s

appropriation of such abandoned property.” Abel v. United

States, 362 U.S. 217, 241 (1960); see also Phillips, 132 N.C.

App. at 771, 513 S.E.2d at 572 (upholding a trial court’s

decision to deny a motion to suppress because “defendant lost

any expectation of privacy he might have had” in property by

giving the property directly to a friend).

However, property may not be abandoned if it is done as a

direct result of a law enforcement officer’s illegal search or

seizure. See California v. Hodari D, 499 U.S. 621, 627–29

(1991) (holding that abandoned cocaine was not the “product of

an unlawful seizure” and was thus not excluded); Hester v.

United States, 265 U.S. 57, 58 (1924) (upholding officers’

examination of illegal whiskey bottles dropped by defendant and
 -32-
a companion); State v. Cooke, 54 N.C. App. 33, 44, 282 S.E.2d

800, 808 (1981), modified as aff’d, 306 N.C. 132, 291 S.E.2d 618

(1982) (holding that when one discards property as the product

of an illegal search, a reasonable expectation of privacy exists

and the property is not abandoned); State v. Williams, 71 N.C.

App. 136, 138, 321 S.E.2d 561, 563 (1984) (holding that a

dropped jacket in a public place was abandoned); Cromartie, 55

N.C. App. at 223–24, 284 S.E.2d at 730 (holding there was

abandonment when the defendant discarded the property into a

public street and abandoned the property).

This Court has also held that “for abandonment to occur,

the discarding of property must occur in a public place; one

simply cannot abandon property within the curtilage of one’s own

home.” Reed, 182 N.C. App. at 114, 641 S.E.2d at 323; see also

People v. Gallego, 117 Cal. Rptr. 3d 907, 911 (Cal. Ct. App.

2010) (holding that a defendant does not have a reasonable

expectation of privacy in a cigarette butt that was discarded on

a public sidewalk). In Reed, police arrived at the defendant’s

apartment seeking a DNA sample, where they met the defendant on

his patio. Reed, 182 N.C. App. at 110, 641 S.E.2d at 321. The

defendant did not agree to provide a DNA sample, and spoke with

police while he smoked two cigarettes on his patio. Id. The
 -33-
defendant took apart the first cigarette butt, removed the

filter’s wrapper and “shred[ed] the filter before placing the

remains in his pocket.” Id. The defendant flicked the second

cigarette butt at a trash pile in the corner of his patio. Id.

The butt “struck the pile of trash and rolled between defendant

and one of the detectives,” the detective kicked the butt into a

“grassy common area,” and the detective thereafter collected the

cigarette. Id. The State thereafter presented evidence showing

that the DNA on the cigarette butt matched a stain found on the

alleged victim’s shirt. Id. This Court held that the defendant

had a reasonable expectation of privacy on his patio and that

the trial erred by allowing the evidence to be admitted at

trial. Id. at 110–11, 641 S.E.2d at 321.

vi. Application

This is a close case that lies squarely at the intersection

of the foregoing principles of law. Officer Brienza’s search

was conducted as part of serving an unrelated arrest warrant.

The arrest was effectuated despite Defendant’s refusal on four

separate occasions to provide officers with a DNA sample. The

arrest was effectuated at his residence at 2:00 A.M. by a police

officer who was explicitly asked by another officer to collect a

DNA sample from Defendant. Defendant also relinquished the
 -34-
cigarette butt directly to a police officer, rather than

throwing the cigarette butt to the ground within the curtilage

or placing it in a trash receptacle in the home or its

curtilage.

We address first Defendant’s argument that he did not

relinquish control of the cigarette butt willingly. The record

tends to show that Defendant was cuffed in front of his body and

that Officer Brienza escorted him from his bedroom to the

carport. Officer Brienza gave Defendant the option to smoke a

cigarette in the carport area, which Defendant chose to do.

Officer Brienza then lit the cigarette for Defendant. Officer

Brienza then asked Defendant “[w]ould you like me to take that

cigarette from you and throw it away.” Defendant agreed to let

Officer Brienza take the cigarette, which Officer Brienza

removed from Defendant’s mouth and placed into an evidence bag.

Officer Brienza said he would not have allowed Defendant to take

the cigarette into his vehicle.

Based upon the foregoing facts, the trial court concluded

that Defendant relinquished control of the cigarette willingly.

Officer Brienza asked Defendant first if he wanted to smoke a

cigarette, to which Defendant responded affirmatively. Officer

Brienza then asked Defendant if he could take the cigarette to
 -35-
throw it away, and Defendant agreed. Officer Brienza then took

the cigarette from Defendant’s mouth and placed it in the

evidence bag.

Defendant was handcuffed in the front of his body and took

several puffs of his cigarette, although it is unclear whether

he used his hands to smoke the cigarette. If Defendant had the

ability to move his hands, he had the ability to throw the

cigarette away himself and could have told Officer Brienza that

he did not wish to give him the cigarette. If Defendant did not

have the ability to move his hands, he then would have had the

ability to spit the cigarette from his mouth into the curtilage.

If Officer Brienza had collected the cigarette under any of

those scenarios, admission would be barred under Reed and

Rhodes. Reed, 182 N.C. App. at 110–11, 641 S.E.2d at 321;

Rhodes, 151 N.C. App. at 215, 565 S.E.2d at 271. In short,

there is evidence tending to indicate that Defendant voluntarily

accepted Officer Brienza’s offer to throw away the cigarette

butt and accordingly Defendant’s first argument fails.

Defendant next argues that the attendant circumstances

surrounding this case give rise to a reasonable expectation of

privacy that requires suppression of the cigarette butt as

evidence. The controlling inquiry is whether Defendant had a
 -36-
reasonable expectation of privacy in the cigarette butt that he

voluntarily provided to Officer Brienza. Based upon controlling

case law, we are bound to hold that he did not.

The location where Officer Brienza seized the cigarette

butt was clearly within the curtilage of the residence:

Defendant was standing in between the carport and the officer’s

police vehicle. The trial court properly held as much in its

order denying the motion to suppress. Under Reed, Rhodes, and

Hauser, Defendant could have spit the cigarette butt onto the

ground in the carport, placed the cigarette into a trash can

that was not intended to be collected, or left the cigarette

butt somewhere else in the curtilage and the cigarette butt

would have been subject to suppression. Hauser, 342 N.C. at

386, 464 S.E.2d at 446; Reed, 182 N.C. App. at 110–11, 641

S.E.2d at 321; Rhodes, 151 N.C. App. at 215, 565 S.E.2d at 271.

However, the cigarette was not placed within a trash can, on the

ground, or in any other container; the cigarette butt was placed

in the gloved palm of Officer Brienza. As such, the trial court

found that Defendant “relinquished possession of the butt and

any reasonable expectation of privacy with regard to it” and

that the location where Defendant relinquished control was “of

no consequence.” We agree with the trial court’s assessment.
 -37-
As in Phillips and Jordan, Defendant relinquished control

of property, here a cigarette butt, to another party. Phillips,

132 N.C. App. at 771, 513 S.E.2d at 572; Jordan, 40 N.C. App. at

415, 252 S.E.2d at 857. In Phillips, the defendant threw drugs

into a friend’s lap after seeing police and while both were

inside the defendant’s car. 132 N.C. App. at 767, 513 S.E.2d at

570. The defendant told the friend to bring the drugs to

defendant’s apartment. Id. The defendant’s friend left drugs

in the defendant’s mailbox, which was affixed to the front door

of his apartment. Id. at 767, 769–70, 513 S.E.2d at 569–70.

The defendant’s friend told officers where the drugs were

hidden, and officers seized the drugs from the mailbox. Id. at

766, 513 S.E.2d at 570. The defendant argued that he had a

reasonable expectation of privacy in the mailbox, but this Court

held that the defendant’s actions in throwing the drugs into his

friend’s lap removed “any expectation of privacy he might have

had in his property.” Id. at 771, 513 S.E.2d at 572.

Similarly, this Court held in Jordan that a defendant who put

drugs into his female passenger’s purse had relinquished his

expectation of privacy in that item by placing the property

under the control of another. 40 N.C. App. at 415, 252 S.E.2d

at 859. In both Phillips and Jordan, property was relinquished
 -38-
to another person inside a vehicle, an area which also creates a

higher expectation of privacy than a public area. See Phillips,

132 N.C. App. at 771, 513 S.E.2d at 572; Jordan, 40 N.C. App. at

415, 252 S.E.2d at 857. In both cases, this Court upheld

admission of the evidence.

Here, Defendant gave a cigarette butt to a police officer

while in handcuffs and while in the officer’s custody.

Certainly a reasonable person’s expectation of privacy would be

diminished while in custody and handcuffed. See, e.g.,

Williamson v. State, 993 A.2d 626, 635–36, 635–36 n.1 (Md.

2010), aff'd as stated in Corbin v. State, 52 A.3d 946, 952

(2012) (holding that the defendant did not have an expectation

of privacy in a cup he “voluntarily discarded” on the floor of

his jail cell, because he “could not reasonably expect that the

police would not collect, and potentially investigate, the trash

he discarded in his cell”), cert. denied, ___ U.S. ___, 131 S.

Ct. 419 (2010). Accordingly, as the trial court found, the fact

that Defendant placed the cigarette butt in Officer Brienza’s

control inside of the curtilage of his home is of no consequence

to the analysis because Defendant ceded control of the property

to Officer Brienza voluntarily after Officer Brienza’s request.

Thus, Defendant’s second argument on appeal fails.
 -39-
Defendant lastly argues that Agent Kaiser and Officer

Brienza’s use of trickery to obtain the cigarette butt requires

that the evidence be suppressed. We note initially that we are

troubled by the actions of Agent Kaiser and Officer Brienza in

serving the earlier warrant upon Defendant. The use of one

warrant for the intended purpose of conducting a search not

supported by probable cause may, under other circumstances,

violate the prohibition against general warrants in the North

Carolina Constitution. See N.C. Const. art. I, § 20. Secondly,

the officers’ actions in this case also very nearly run afoul of

the general prohibition that the State may not take actions

having the effect of violating an individual’s constitutional

rights indirectly if they could not take that same action

directly. See, e.g., Griffin, 154 N.C. 611, 70 S.E. 292, 293

(1911). However, because the police did not commit an illegal

act in effectuating the valid arrest warrant and because the

subjective motives of police do not affect the validity of

serving the underlying arrest warrant, we cannot agree with

Defendant’s final challenge to the trial court’s decision.

Defendant also did not argue that the police had used the

initial arrest warrant as a general warrant. There may be

circumstances in which an appellate court prohibits law
 -40-
enforcement officers from using an arrest warrant to effectuate

the ends sought to be achieved by a general warrant; however,

without such an argument, it is not this Court’s duty to decide

a doctrine of this constitutional scope affecting the

jurisdiction of the State.

When an individual “discards property as the product of

some illegal police activity, he will not be held to have

voluntarily abandoned the property or to have necessarily lost

his reasonable expectation of privacy with respect to it.”

Cromartie, 55 N.C. App. at 225, 284 S.E.2d at 731. However, as

stated supra, the underlying motivations for stopping a motorist

or effectuating an arrest are not relevant so long as the

underlying arrest was valid. See, e.g., State v. Parker, 183

N.C. App. 1, 8, 644 S.E.2d 235, 241 (2007) (“A law enforcement

officer’s subjective motivation for stopping a motorist is

irrelevant to the validity of a traffic stop if the stop is

supported by probable cause.”).

Standing alone, deception does not render a defendant’s

confession or relinquishment of evidence inadmissible. See

Jackson, 308 N.C. at 574, 304 S.E.2d at 148 (“[W]hile deceptive

methods or false statements by police officers are not

commendable practices, standing alone they do not render a
 -41-
confession of guilt inadmissible . . . .”); State v. Graham, ___

N.C. App. ___, ___, 733 S.E.2d 100, 105 (2012), review denied,

366 N.C. 432, 736 S.E.2d 492 (2013)(“[D]eception is not

dispositive where a confession is otherwise voluntary.”).

There is no indication that Defendant’s arrest for the two-

year-old charge of assault on a female was invalid. While it is

apparent that Officer Brienza and Agent Kaiser strategized to

use this arrest warrant for the purposes of obtaining a DNA

sample from Defendant, “the state of mind of the police is

irrelevant to the question of the intelligence and voluntariness

of respondent’s election to abandon his rights.” Moran, 475

U.S. at 423; see also Ewing, 854 N.E.2d at 1000 (upholding

arrest of a defendant on an unrelated warrant, which police used

to obtain a DNA sample). While we agree with Defendant that

abandonment of property resulting from illegal police conduct is

not abandonment, there was no such illegal activity here. Cf.

State v. Joe, ___ N.C. App. ___, ___, 730 S.E.2d 779, 783 (2012)

(holding that because officers only discovered a bag of cocaine

near where Defendant was unlawfully arrested and handcuffed, the

contraband was the product of an illegal arrest and was properly

suppressed). Without illegal activity by the police, the

abandoned property was properly seized, even though police did
 -42-
not have probable cause to obtain it in the absence of

abandonment. See State v. Johnson, 98 N.C. App. 290, 297, 390

S.E.2d 707, 711 (1990). Thus, Defendant’s third principal

argument for suppression fails.

Because Defendant voluntarily gave Officer Brienza his

cigarette butt after Officer Brienza offered to throw away the

cigarette butt, Defendant abandoned the cigarette butt and no

longer had a reasonable expectation of privacy in the property.

As the property was abandoned, the officers’ subjective intent

in effectuating the valid assault on a female warrant was

irrelevant. For the foregoing reasons, we affirm the trial

court’s denial of Defendant’s motion to suppress the DNA

evidence. We now turn to Defendant’s arguments concerning his

motion for change of venue and the admission of expert testimony

at trial.

B. Change of Venue

Defendant next argues that the trial court abused its

discretion by denying his motion to change venue. We disagree.

If a trial court determines that there is “so great a

prejudice against the defendant that he cannot obtain a fair and

impartial trial,” the trial court must transfer the proceeding

to another county in the prosecutorial district or order a
 -43-
special venire. N.C. Gen. Stat. § 15A-957 (2013). “To obtain a

change of venue, a defendant must show a specific and

identifiable prejudice against him as a result of pretrial

publicity.” State v. Rogers, 355 N.C. 420, 429, 562 S.E.2d 859,

866 (2002). In meeting this burden, “a defendant must show

inter alia that jurors with prior knowledge decided the case,

that defendant exhausted his peremptory challenges, and that a

juror objectionable to defendant sat on the jury.” State v.

Robinson, 355 N.C. 320, 327, 561 S.E.2d 245, 250–51 (2002)

(quotation marks, citation, and alterations omitted). Further,

“[t]he determination of whether a defendant has carried his

burden of showing that pre-trial publicity precluded him from

receiving a fair trial rests within the trial court’s sound

discretion.” State v. Yelverton, 334 N.C. 532, 540, 434 S.E.2d

183, 187 (1993).

Juror voir dire may present “persuasive evidence that the

pretrial publicity was not prejudicial or inflammatory” through

the jurors’ responses to questioning about their knowledge of

the case. State v. Richardson, 308 N.C. 470, 480, 302 S.E.2d

799, 805 (1983). In Richardson, nearly every juror “admitted to

having read about the case in the newspaper or having heard

about it on television.” Id. When the jurors were questioned
 -44-
further about the details of the particular incident, several of

the jurors apologized for not remembering details and all of the

jurors “unequivocally answered in the affirmative when asked if

they could set aside what they had previously heard about

defendant’s case and determine defendant’s guilt or innocence

based solely on the evidence introduced at trial.” Id.

Accordingly, our Supreme Court held that the trial court did not

abuse its discretion in Richardson. Id. at 481, 302 S.E.2d at

805; see also State v. Walters, 357 N.C. 68, 78, 588 S.E.2d 344,

351 (2003) (“[E]ach juror about whom defendant complains

indicated that he or she would be fair and impartial and decide

the case on the evidence that was presented. Also, the jurors

indicated that they would disregard any information they heard

or read prior to the trial.”); State v. Wallace, 351 N.C. 481,

513, 528 S.E.2d 326, 346 (2000).

Ultimately, “[i]f each juror states unequivocally that he

can set aside what he has heard previously about a defendant’s

guilt and arrive at a determination based solely on the evidence

presented at trial, the trial court does not err in refusing to

grant a change of venue.” State v. Moore, 335 N.C. 567, 586,

440 S.E.2d 797, 808 (1994).
 -45-
Here, potential jurors were questioned at length about

their knowledge of Defendant’s case and the pretrial publicity

concerning Defendant’s case. When prospective jurors indicated

that they had knowledge of the case and formed an opinion about

the case that they could not set aside, they were removed from

the jury.

Five of the twelve jurors (“Jurors A–E”) indicated that

they had not seen, heard, or read any information about the case

before jury selection. One juror (“Juror F”) did not have any

knowledge of the case prior to jury selection, but saw

Defendant’s photograph on the front page of a newspaper at

Walgreens in between the first and second day of the jury

selection process. Juror F did not read any information

contained in the article and said she would follow the judge’s

instructions concerning the presumption of Defendant’s

innocence.

Another juror (“Juror G”) said, during voir dire, that he

seemed to have “heard something about it years and years ago,”

that his memory was vague, that he had not read or heard any

information recently, and that he had not formed an opinion

about the case. One juror (“Juror H”) said she read headlines

in the local paper around a week and a half before jury
 -46-
selection and that she didn’t remember anything about the case

except that “it was an up and coming something.” Juror H also

said she understood that the newspaper was not evidence, that

the newspaper did not cause her to form an opinion, and that she

had no presumptions about Defendant’s guilt or innocence in the

case.

Two jurors (“Juror I” and “Juror J”) were familiar with

media accounts of the case. Juror I said she had read a

paragraph in a newspaper article in which she learned that the

case was a “cold case” reopened because of DNA, that the

underlying incident concerned occurred in 2003, and that the

incident was in Cleveland County. Juror I swore that she knew

the newspaper story was not evidence, that she should disregard

that information, and that she had not formed an opinion. Juror

J said he saw a television story two nights prior to jury

selection. Juror J said “[a]bout all I heard was that they was

[sic] looking for jurors for the case,” that he was using his

computer while watching it and that he did not know any other

facts prior to jury selection. Juror J also said “[a] man’s

innocent until he’s proven guilty” and that he would have no

problem returning a not guilty verdict if the State could not

prove its case. Juror J also said he saw a news report that “a
 -47-
man had raped this older woman and killed her” and that the

woman’s name was Tessneer.

“Juror K” had read a “small article on Yahoo” about the

case and said he had not formed any opinions about Defendant’s

guilt or innocence. Juror K said the article reported that

“jury selection was about to begin,” and that it caught his eye

because he had been summoned for jury duty. Juror K said the

article described the charges and that “[i]t did, though, talk

about that there were two other cases out there that, I’m not

sure who but somebody, they said related.”

“Juror L” had read in the Shelby Star newspaper that

Defendant was accused of “breaking in and killing a woman in

Cherryville, and there were two other murders that were

considered to be similar, although he has not been accused of

those.” Juror L also said she remembered that the victims lived

close together. Juror L said she had not formed an opinion

about the guilt or innocence of the defendant, but did read that

there was “some information about DNA evidence” and that she was

“a believer in DNA.” Juror L said she would have no hesitation

about returning a not guilty verdict if the State did not meet

its burden of proof. Juror L said she had discussions with

friends at work about the case. Juror L said the conversation
 -48-
was that the court would be looking for jurors, but the group

did not discuss the facts of the case. One gentleman who was

Juror L’s supervisor said “he went to church with the daughter

of one of the victims” but was unsure which person he was

referring to. Juror L said there were three crimes and that one

was linked to this case, but that she did not know that

Defendant had any relation to any of the victims in the case,

including Ms. Tessneer. Juror L also said that she would

presume Defendant to be innocent, put aside the article she

read, listen to the evidence, and begin with a “clean slate.”

Neither of the alternate jurors had read or heard anything

about the case prior to jury selection. The foregoing tends to

show that all jurors either indicated that they had no prior

knowledge or that if they had read any information, they could

put it aside at trial.

Defendant argues that his case resembles State v. Jerrett,

309 N.C. 239, 307 S.E.2d 339 (1983). However, this case is

distinguishable from Jerrett. In Jerrett, ten of the twelve

jurors, as well as both alternate jurors, “had heard about the

case.” Id. at 257, 307 S.E.2d at 349. Four jurors knew the

defendant’s family or relatives. Id. The jury’s foreman said

he had personally heard one of the victim’s family members
 -49-
“emotionally discussing the case.” Id. Six of the jurors knew

or were familiar with the State’s witnesses. Id. The jury was

examined collectively, rather than individually. Id. at 257–58,

307 S.E.2d at 349. The crime occurred in Alleghany County,

which had a population of 9,587 at that time. Id. at 252 n.1,

307 S.E.2d at 346 n.1.

Here, six of the jurors had no knowledge of the case prior

to the jury selection process. Neither of the alternate jurors

had knowledge of the case prior to jury selection. The jury was

selected using individual voir dire. None of the jurors

selected knew any of the State’s witnesses. The population of

Cleveland County was 97,489 according to Defendant, a population

87,902 larger than the population of Allegheny County considered

in Jerrett. Accordingly, we do not believe the situation

presented here is similar to Jerrett and hold that Defendant did

not meet his burden of showing that the trial court improperly

denied his motion for a change of venue.

C. Expert Testimony

Defendant next argues that the expert opinion testimony of

Dr. Tracy and Dr. Butts was unreliable and should not have been

admitted at trial under the rules of evidence. We disagree.

North Carolina Rule of Evidence 702(a) controls the
 -50-
admission of expert opinion testimony:

If scientific, technical or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion.

N.C. Gen. Stat. § 8C-1, Rule 702 (2009).4 The admissibility of

the expert testimony in the present case is evaluated under the

three-step inquiry, outlined by our Supreme Court in Howerton v.

Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686

(2004): “(1) Is the expert’s proffered method of proof

sufficiently reliable as an area for expert testimony? (2) Is

the witness testifying at trial qualified as an expert in that

area of testimony? (3) Is the expert’s testimony relevant?” Id.

(citations omitted).

As far as the first portion of the Howerton inquiry is

concerned, reliability is a “preliminary, foundational inquiry

into the basic methodological adequacy of an area of expert

4
Rule 702 was amended by the General Assembly in 2011, but that
change does not apply to Defendant’s case since he was indicted
on 11 January 2010. See 2011 Sess. Laws 1048, 1049, ch. 283, §
1.3 (stating that the amendment applies to defendants indicted
after 1 October 2011). The federal standard announced in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) now applies in North Carolina under this Court’s ruling
in State v. McGrady, ___ N.C. App. ___, ___, 753 S.E.2d 361, 367
(2014), review allowed, ___ N.C. ___, 758 S.E.2d 864 (2014).
 -51-
testimony.” Id. at 460–61, 597 S.E.2d at 687–88. The expert’s

opinion does not have to be conclusively proven or conclusively

reliable to be admitted into evidence. Id. Any questions that

remain about the “quality of the expert’s conclusions” go to the

weight that the trier of fact may give the testimony, rather

than the testimony’s admissibility. Id. Further, “the trial

court should look to precedent for guidance in determining

whether the theoretical or technical methodology underlying an

expert’s opinion is reliable.” Id. at 459, 597 S.E.2d at 687.

State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991)

provides an example in which our Supreme Court allowed an expert

in forensic pathology to opine about the victim’s cause of death

when no physical evidence existed to show the cause of death.

Id. at 573, 406 S.E.2d at 842. In Annadale, the forensic

pathologist listed the cause of death as an “incision of the

throat,” which the pathologist admitted was based on information

provided by law enforcement officers. Id. at 573, 406 S.E.2d at

847. In Annadale, our Supreme Court also noted that the

forensic pathologist was the Chief Medical Examiner, was

accepted as an expert in forensic pathology, and was well-

qualified to provide an opinion that was helpful to the jurors.

Id. The forensic pathologist was also subjected to cross-
 -52-
examination by the defendant’s counsel. Id. Our Supreme Court

held under these circumstances, the trial court did not err in

allowing the forensic pathologist to provide his opinion

concerning the cause of the victim’s death, even without

physical evidence showing the cause of death. Id.

We face a similar situation in this case. Here, the

forensic pathologists examined the body and eliminated other

causes of death while drawing upon their experience, education,

knowledge, skill, and training. Both doctors knew from the

criminal investigation into her death that Ms. Tessneer’s home

was broken into, that she had been badly bruised, that she had

abrasions on her arm and vagina, that her panties were torn, and

that DNA obtained from a vaginal swab containing sperm matched

Defendant’s DNA samples. The doctors’ physical examination did

not show a cause of death, but both doctors drew upon their

experience performing such autopsies in stating that suffocation

victims often do not show physical signs of asphyxiation. The

doctors also eliminated all other causes of death before

arriving at asphyxiation, which Defendant contends is not a

scientifically established technique. However, the reliability

criterion at issue here is nothing more than a preliminary

inquiry into the adequacy of the expert’s testimony. Howerton,
 -53-
358 N.C. at 460–61, 597 S.E.2d at 687–88. Accordingly, the

doctors’ testimony met the first prong of Howerton so that “any

lingering questions or controversy concerning the quality of the

expert’s conclusions go to the weight of the testimony rather

than its admissibility.” Id. at 461, 597 S.E.2d at 688

(emphasis added).

Concerning the second portion of the Howerton inquiry, “the

trial court must determine whether the witness is qualified as

an expert in the subject area about which that individual

intends to testify.” Howerton, 358 N.C. at 461, 597 S.E.2d at

688. “Whether a witness has the requisite skill to qualify as

an expert in a given area is chiefly a question of fact, the

determination of which is ordinarily within the exclusive

province of the trial court.” State v. Goodwin, 320 N.C. 147,

150, 357 S.E.2d 639, 641 (1987) (emphasis added). “[A] jury may

be enlightened by the opinion of an experienced cellar-digger,

or factory worker, or shoe merchant, or a person experienced in

any other line of human activity. Such a person, when

performing such a function, is as truly an ‘expert’ as is a

learned specialist . . . .” 2 Kenneth S. Broun, Brandis & Broun

on North Carolina Evidence § 184 at 701–02 (7th ed. 2011)

(footnotes omitted).
 -54-
Here, the trial court accepted both Dr. Tracy and Dr. Butts

as experts in forensic pathology. Defendant did not object to

Dr. Butts being qualified as an expert in the field of forensic

pathology, but did unsuccessfully object to Dr. Tracy being

qualified as an expert in forensic pathology. Dr. Butts had

performed around 6,700 to 6,800 forensic autopsies. Both Dr.

Butts and Dr. Tracy were cross-examined by Defendant. The trial

court conducted voir dire prior to allowing their testimony.

Under these facts, it is clear that the trial court did not

abuse its discretion.

The third component in the Howerton test is whether the

testimony is relevant. Relevant evidence is defined as “having

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). “Evidence is relevant if it has

any logical tendency, however slight, to prove a fact in issue

in the case.” State v. Tadeja, 191 N.C. App. 439, 444, 664

S.E.2d 402, 407 (2008) (quotation marks, citation, and

alterations omitted).

Defendant argues that “[t]his evidence was extremely

prejudicial,” although Defendant also argues that “[t]he cause
 -55-
of death was important,” noting that a different result might

have been reached had the jury not heard the doctors’ opinions

as to the cause of death. Defendant essentially argues that the

evidence was important and relevant, but makes an additional

argument that the evidence was prejudicial. We find Defendant’s

argument concerning relevancy without merit. Accordingly, we

hold that the trial court did not abuse its discretion in

allowing the expert testimony of Dr. Tracy and Dr. Butts.

IV. Conclusion

For the reasons stated above, we find no error in the trial

court’s judgments.

NO ERROR.

Judges ERVIN and DAVIS concur.