An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1307
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 10CRS250187-89
ROGER DALE HONEYCUTT, 12CRS201338-39, 41
Defendant.
Appeal by defendant from judgments entered 22 February 2013
by Judge Jesse B. Caldwell in Superior Court, Mecklenburg
County. Heard in the Court of Appeals 24 April 2014.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General K. D. Sturgis, for the State.
Kimberly P. Hoppin, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgments for two counts of first degree
burglary, two counts of second degree rape, and two counts of
second degree sexual offense. For the following reasons, we
find no error.
I. Background
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The State’s evidence tended to show that in 1981 two rapes
occurred within a month of each other, both involving white
females in the same part of town sleeping on couches at night in
first floor apartments. Both women identified the perpetrator
as a Caucasian male and both believed he entered through a
sliding glass door. One woman, Cheryl,1 said that the man
performed cunnilingus on her and then had vaginal intercourse
with her. Cheryl called the police and had a sexual assault
examination at the hospital. The other woman, Lyla, was forced
to perform fellatio on the man, and then he had vaginal
intercourse with her. Lyla went to the hospital where she
received a sexual assault examination.
Many years later, Lyla’s sheet and both women’s rape kits
were tested for DNA. The DNA on Lyla’s sheet and rape kit
“matched” defendant’s DNA; Lyla’s sheet had a DNA match
probability with defendant of one in 730 billion Caucasians, and
her rape kit had a match probability with defendant of one in
36.2 billion Caucasians. Cheryl’s rape kit was consistent with
defendant with a match probability of one in 16.2 million
Caucasians. Defendant was tried by a jury and found guilty of
two counts of first degree burglary, two counts of second degree
1
Pseudonyms will be used to protect the identity of the
individuals involved.
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rape, and two counts of second degree sexual offense. The trial
court entered judgments on the convictions, and defendant
appeals.
II. Lyla’s Sheet and Rape Kit
Defendant makes a lengthy argument that the trial court
erred by admitting evidence of Lyla’s sheet and rape kit. Most
of defendant’s arguments are recitations of the facts or
statements of law without analysis as to how they affect his
case. For example, defendant notes that the doctor who collected
the rape kit from Lyla “did not have any independent
recollection of [Lyla] or of the events of February 21, 1981”
and that he based his testimony upon the documentation on the
rape kit which bore his signature, and the bag which held the
sheet “was now ‘tattered.’” Of course, the other witnesses
likewise lacked independent recollection of their handling and
testing of the DNA evidence back in 1981 and relied upon the
documentation. In the end, defendant essentially contends
Lyla’s sheet and rape kit were not “sufficiently identified or
authenticated” because the State failed to prove that the
evidence was not contaminated or materially changed.
As defendant failed to object at trial, we review the
admission of the evidence regarding the sheet and rape kit for
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plain error. See State v. Harding, 110 N.C. App. 155, 161, 429
S.E.2d 416, 420 (1993) (“Due to defendant’s failure to object at
trial, we must review this objection under the plain error
rule.”)
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice—that, after
examination of the entire record, the error
had a probable impact on the jury’s finding
that the defendant was guilty. Moreover,
because plain error is to be applied
cautiously and only in the exceptional case,
the error will often be one that seriously
affects the fairness, integrity or public
reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citations, quotation marks, and brackets omitted). Furthermore,
our Supreme Court has established that “[a] prerequisite to our
engaging in a plain error analysis is the determination that the
instruction complained of constitutes error at all.” State v.
Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (quotation marks
omitted), cert. denied, 479 U.S. 836, 93 L.Ed. 2d 77 (1986).
This Court has stated that a two-
pronged test must be satisfied before real
evidence is properly received into evidence.
The item offered must be identified as being
the same object involved in the incident and
it must be shown that the object has
undergone no material change. The trial
court possesses and must exercise sound
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discretion in determining the standard of
certainty that is required to show that an
object offered is the same as the object
involved in the incident and is in an
unchanged condition. A detailed chain of
custody need be established only when the
evidence offered is not readily identifiable
or is susceptible to alteration and there is
reason to believe that it may have been
altered. Further, any weak links in a chain
of custody relate only to the weight to be
given evidence and not to its admissibility.
State v. Zuniga, 320 N.C. 233, 255, 357 S.E.2d 898, 912-13
(1987) (citations omitted), cert. allowed, 330 N.C. 617, 412
S.E.2d 95 (1992).
The doctor who gathered Lisa’s rape kit testified as to
the condition of the property and as to Lisa’s name, the date,
and his signature on the kit, including his name, initials, and
date on the final police seal. Thereafter, the patrol officer
who took the kit from the doctor and the sheet, the criminalist
who later received the evidence and tested it for bodily fluids,
and the DNA technical leader who tested the evidence for DNA,
all testified as to the condition and the chain of custody of
the evidence; their testimonies were consistent with the
property sheet. Although the sheet packaging may have become
“tattered” over the years, defendant’s arguments relate mostly
to the credibility of the testimony of those who handled the
evidence. Defendant has not directed us to any evidence
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contradicting either the identification or authenticity of
Lisa’s sheet or rape kit. All of the testimony offered
regarding the rape kit and sheet establish that the rape kit and
sheet were “the same object[s] involved in the incident” and
“the object[s] ha[ve] undergone no material change.” Id. at
255, 357 S.E.2d at 912. Any change in the evidence would have
been only degradation of the sperm sample, which resulted in
development of only a partial DNA profile including eight of the
“polymorphic markers” instead of a full profile containing 15
markers. Yet this partial DNA profile from Lyla’s sheet was
still sufficient to show a match probability with defendant of
one in 730 billion Caucasians and the rape kit profile had a
match probability with defendant of one in 36.2 billion
Caucasians. We find no error in the trial court’s admission of
Lyla’s sheet and rape kit, and this argument is overruled.
III. Cheryl’s Rape Kit
Defendant next makes essentially the same type of argument
regarding Cheryl’s rape kit as he did regarding Lyla’s rape kit.
Cheryl’s rape kit included a tube for vaginal swabs, a broken
tube of “[d]ark, old blood[,]” and paper with a saliva sample.
But here, rather than the chain of custody, defendant focuses on
the fact that the victim’s blood may have comingled with the
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swabs in the rape kit from which the DNA was tested. There was
evidence that the tube of blood had broken and possibly stained
some other items in the package. Ms. Eva Rossi, the criminalist
who performed the DNA extraction and generated the DNA profile,
testified “there was no apparent blood on [the vaginal] swabs.
There does not appear to be any on the collection tube. So I do
not believe that the blood could have potentially contaminated
those swabs.” Again, defendant’s arguments related more to
credibility, and he raises only speculation that the samples
from Cheryl’s kit were contaminated. As to the swabs in the
rape kit, again, the testimony established that “the item
offered . . . [was] identified as being the same object involved
in the incident and . . . ha[d] undergone no material change.”
Id. We find no error in the admission of the evidence, and this
argument is overruled.
IV. State’s Closing Argument
Lastly, defendant contends that that the trial court erred
in failing to ex mero motu strike portions of the State’s
closing argument regarding “the ingenuity of [defendant’s]
counsel” in creating reasonable doubt in the juror’s minds and
the “inherent[] reliabl[ity]” of DNA. Defendant first contends
that the prosecutor’s argument about defense counsel’s ingenuity
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violated the Supreme Court’s admonition “that ‘a trial attorney
may not make uncomplimentary comments about opposing counsel,
and should “refrain from abusive, vituperative, and opprobrious
language, or from indulging in invectives.”’ State v.
Sanderson, 336 N.C. 1, 10, 442 S.E.2d 33, 39 (1994)[.]”
Specifically, defendant contends the State improperly argued as
follows:
Now, I also read to juries from an old
case called State versus Hammonds, a
definition from our State Supreme Court
about what reasonable doubt is not. If
you're talking about reasonable doubt, it's
important for you to know what it isn't as
well. 2 The Court said that [reasonable
doubt] is not a doubt suggested by the
ingenuity of counsel or by your own
ingenuity -- and that means things that the
lawyers think up or things that you think up
not legitimately warranted by the evidence
and the testimony . . .
So as I speak, as [defendant’s attorney]
speaks, you hold us accountable to that,
that we’re supposed to be talking about the
evidence and not just whimsical ideas to get
you distracted from what your duty ought to
be. . . .
So [defendant’s counsel]’s going to want you
–- and I go back to the ingenuity of
counsel. He’s going to want you to look at
those empty locus points and plug
information to make you believe or make you
2
Defendant did not note the italicized portions as part of the
argument subject to objection in his brief, but we have included
these portions simply to place the argument in context.
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think that there could be another person
involved in this that could be identified,
and we haven’t –- we haven’t done it. And
it’s not his client. That’s as to the
profile part. . . .
Another one of the potential ingenuities of
counsel is what happened this morning. Ms.
Rossi, by implication, is no longer a
scientist; she’s a hired gun because she
works for a crime lab that’s associated with
law enforcement, like that influences her
science ability, like that does anything to
make this case different. And I submit to
you that that’s ingenuity of counsel.
That’s not something you should even be
thinking about. You should be taking the
witness that testified before you as experts
and deciding if they did their job correctly
and not whether they are some sort of hired
gun.
We review this issue to determine if the State’s argument
was so “grossly improper” as to require the trial court to
intervene despite the defendant’s failure to object. State v.
Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).
The standard of review for assessing
alleged improper closing arguments that fail
to provoke timely objection from opposing
counsel is whether the remarks were so
grossly improper that the trial court
committed reversible error by failing to
intervene ex mero motu. In other words, the
reviewing court must determine whether the
argument in question strayed far enough from
the parameters of propriety that the trial
court, in order to protect the rights of the
parties and the sanctity of the proceedings,
should have intervened on its own accord
and: (1) precluded other similar remarks
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from the offending attorney; and/or (2)
instructed the jury to disregard the
improper comments already made.
Id. (citation omitted).
When making reference to “the ingenuity of [defendant’s]
counsel[,]” the State was paraphrasing and quoting State v.
Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954) which had quoted
the “ingenuity” language from State v. Steele, 190 N.C. 506, 130
S.E. 308 (1925).3 Hammonds, 241 N.C. at 232, 85 S.E.2d at 138.
In Steele, the language in question was suggested by the Supreme
Court in instructing the jury on the definition of reasonable
doubt. Steele, 190 N.C. at 512, 130 S.E. at 312. We do not see
how this reference is in the least “abusive, vituperative, and
opprobrious[,]” State v. Sanderson, 336 N.C. 1, 10, 442 S.E.2d
33, 39 (1994) (citation and quotation marks omitted), toward
3
“Varser, J., in speaking for this Court in S. v. Steele, supra,
said: ‘We suggest, in addition to the definitions heretofore
approved, for its practical terms, the following: “A reasonable
doubt, as that term is employed in the administration of
criminal law, is an honest, substantial misgiving, generated by
the insufficiency of the proof; an insufficiency which fails to
convince your judgment and conscience, and satisfy your reason
as to the guilt of the accused.” It is not “a doubt suggested by
the ingenuity of counsel, or by your own ingenuity, not
legitimately warranted by the testimony, or one born of a
merciful inclination or disposition to permit the defendant to
escape the penalty of the law, or one prompted by sympathy for
him or those connected with him.” Jackson, J., in U.S. v.
Harper, 33 Fed., 471.’” Hammonds, 241 N.C. at 232, 85 S.E.2d at
138.
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defense counsel and do not find this phrase to be improper at
all, much less “grossly improper[.]” Jones, 355 N.C. at 133, 558
S.E.2d at 107. We also note that to the extent that this was an
argument about the law, defendant does not argue that the
prosecutor misstated the law regarding reasonable doubt. In
addition, the trial court instructed the jury on the State’s
burden of proof beyond a reasonable doubt without objection from
the defendant, and defendant does not challenge the instructions
to the jury on appeal. This argument is without merit.
The other statement in the argument which defendant argues
merited the trial court’s ex mero motu intervention was the
reference to the prosecutor’s personal opinion of the
“inherent[] reliab[ility]” of DNA evidence. Defendant notes the
various portions of the prosecutor’s arguments about the DNA
evidence he contends were improper:
You have to believe the DNA science that was
presented to you. It’s just that simple. If
you don’t believe in the science, then
you’re going to be voting not guilty. But
we’re going to ask you to look real closely
at why you don’t believe the science. But it
is about the numbers. You’re talking about a
new science that has been accepted in the
scientific community and the court
community. If it wasn’t accepted science, we
wouldn’t even be talking to each other right
now. You wouldn’t have ever heard about it.
It’s accepted science. It has validity. It
has trustworthiness. It’s reliable. . . .
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But you’ve got a scientifically-accepted
product. You’ve got qualified technicians
that continuously get trained. . . .
I’m submitting to you that I think the DNA
evidence in inherently reliable. . . .
Now, going on the reliability of this
statistical information, I’m submitting to
you that it is reliable.... And the
reliability that I’m talking about is
showing the connectedness of each of these
samples to the locus points involved.
Although it is true that counsel should not argue personal
opinion or belief, N.C. Gen. Stat. § 15A-1230 (2013) (“During a
closing argument to the jury an attorney may not become abusive,
inject his personal experiences, express his personal belief as
to the truth or falsity of the evidence[.]”), taken in context
of the entire argument, these statements are not “so grossly
improper” as to require the trial court’s intervention. Jones,
355 N.C. at 133, 558 S.E.2d at 107. The portions of argument
quoted above regarding the reliability of DNA evidence were
scattered through the prosecutor’s summary of the various pieces
of the evidence related to the DNA samples tested from the two
women; he came to the overall conclusion that the scientific
evidence and statistical probabilities pointed only to
defendant:
They weren’t tested at the same time.
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They were in the lab at different times. You
had different analysts looking at some of
it. But the result is the same. The result
is Roger Honeycutt.
I’m submitting to you that I think the
DNA evidence is inherently reliable.
Although it would have been preferable to omit the words “I
think” from the foregoing sentence, this minor change would not
substantively change the State’s overall argument, which was a
proper argument. The State simply argued that DNA is a
scientifically recognized form of evidence identifying an
individual and pointed out the statistical improbability that
the two DNA tests identifying defendant were in error. This
argument is overruled.
V. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges HUNTER, JR., Robert N. and DILLON concur.
Report per Rule 30(e).