State v. Williams

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A p p e l l a t e P r o c e d u r e .

NO. COA13-871

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Wake County
No. 11 CRS 206744
NORMAN TREVOR WILLIAMS,
Defendant.

Appeal by defendant from judgment entered 5 November 2012

by Judge Howard E. Manning, Jr., in Wake County Superior Court.

Heard in the Court of Appeals 22 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General Buren R. Shields, III, for the State.

James N. Freeman, Jr., for defendant-appellant.

BRYANT, Judge.

Where evidence is readily identifiable and not subject to

alteration, any weak links in the chain of custody affect the

weight, not the admissibility, of such evidence. A trial court

is not required to instruct the jury on a lesser-included
 -2-
offense where the evidence would not permit a jury to rationally

find defendant guilty of a lesser-included offense and acquit

defendant of the greater offense. A trial court properly admits

business records where the records were made at or near the time

of the transaction in question and are authenticated by a

witness familiar with the records and how they are made; the

person to whom the records relate need not be a witness at trial

in order for business records to be admissible.

On 12 July 2008, Jesse Brunner was found shot to death in

the parking lot of the Spanish Court Apartments in Raleigh.

Tabitha Milbourne, who was with Brunner at the time of the

shooting, testified that as Brunner parked his car and they were

about to exit, a man wearing a ski mask ran up to him and

exchanged profanities; Milbourne then heard several shots fired.

A witness who lived at the apartment complex testified that he

heard shots fired in the parking lot and saw a man wearing a

mask run across the parking lot, get into a white car, and drive

away.

When police arrived at the scene of the shooting, they

found Brunner’s body lying across the front center console of

his car. Portions of a roll of Rolaids were found on Brunner’s

pants and on the ground near his feet. Seven spent shell
 -3-
casings for a 40 caliber firearm were found at the scene, mostly

inside the car. Blood spatter was found on the side of Brunner’s

car and the car parked next to Brunner. The medical examiner

concluded that Brunner had been shot 7—9 times, likely at close

range, and died as a result of gunshot wounds to the chest. The

trajectory of the wounds indicated that the shots were fired

downwards towards Brunner, and all of the recovered shell

casings were determined to have been fired by the same handgun.

Based on several leads, Raleigh police interviewed

defendant Norman Trevor Williams (“defendant”) and defendant’s

girlfriend at that time, Jennifer Tu Taing (“Taing”): both

denied having any involvement with Brunner’s death. No murder

weapon was recovered, and no arrests were made at that time.

In March 2011, a witness came forward with information that

defendant admitted to her that he had shot Brunner. The witness

also stated defendant told her he had concealed the murder

weapon inside his sister’s car. Based on this information,

Raleigh police officers located the car and found a handgun

concealed in a dark cloth or sock inside the engine compartment.

Testing of the gun, a .40 caliber Glock, indicated all seven

shell casings recovered from the scene were fired from that
 -4-
weapon. Defendant and Taing were arrested for the murder of

Brunner.

After being jailed for seven months, Taing informed Raleigh

police that she was willing to testify about defendant’s

involvement with the Brunner murder in exchange for a more

lenient sentence. Taing told police that she was with defendant

the night Brunner was killed; defendant told her he needed to

get money and directed her to drive and park at the Spanish

Court Apartments. Taing stated that shortly after defendant

exited the car, she heard gunshots and saw defendant running

back to the car in a panic. Defendant was carrying a black

handgun, had crumpled-up money estimated to be “like, a thousand

dollars” hanging out of his pocket, and his pants were speckled

with blood. Taing testified that she then drove to her house

where defendant hid the gun in her room, and she and defendant

agreed to lie about their whereabouts to police if questioned

about Brunner’s murder. Taing also stated that she was in a

relationship with defendant from 2008 until 2010, and that she

believed defendant “had problems” with Brunner.

On 18 April 2011, defendant was indicted by a Wake County

grand jury for first-degree murder. On 5 November 2012, a jury

found defendant guilty of first-degree murder on the basis of
 -5-
malice, premeditation and deliberation, and based on felony

murder. Defendant was sentenced to life in prison without

parole. Defendant appeals.

_______________________________

On appeal, defendant raises five issues: whether the trial

court erred (I) in denying defendant’s motion to suppress; (II)

in failing to charge or submit to the jury the lesser-included

offense of second-degree murder; (III) in not granting

defendant’s motion to dismiss the charge of first-degree murder

under the felony murder rule; (IV) in allowing a witness to

testify about inadmissible hearsay statements; and (V) in

allowing a witness to testify regarding cell phone records of

Taing’s mother.

I.

Defendant first argues that the trial court erred in

denying his motion to suppress. We disagree.

A trial court's decision to admit physical, tangible items

into evidence is reviewed for abuse of discretion. See State v.

Campbell, 311 N.C. 386, 388—89, 317 S.E.2d 391, 392 (1984).

"Evidentiary errors are harmless unless a defendant proves that

absent the error a different result would have been reached at
 -6-
trial." State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d

889, 893 (2001) (citation omitted).

On appeal, defendant contends the trial court erred by

allowing into evidence a handgun found more than three years

after the murder of Brunner in a car that did not belong to

defendant and was not properly secured during that three year

period.

Before real evidence may be received
into evidence, the party offering the
evidence must first satisfy a two-pronged
test. "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."
Determining the standard of certainty
required to show that the item offered is
the same as the item involved in the
incident and that it is in an unchanged
condition lies within the trial court's
sound discretion. "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." Any weak links in the chain of
custody pertain only to the weight to be
given to the evidence and not to its
admissibility.

State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d 720, 736 (1999)

(citing Campbell, 311 N.C. at 388—89, 317 S.E.2d at 392).

Here, the State presented evidence that the murder weapon,

a .40 caliber Glock handgun, was recovered from the engine
 -7-
compartment of a black car that had, at the time of Brunner’s

murder, belonged to defendant’s sister. Police recovered the

weapon in 2011 after a witness told them that defendant told her

he had shot Brunner and hid the handgun in his sister’s car.

The weapon was found behind the car’s right front headlight,

wrapped in a dark cloth or sock. The police officer who found

the gun testified that the wrapped gun had debris, such as pine

needles and leaves, all around it, indicating that it had been

in the car for some time. After the gun was removed from the

vehicle, the State presented evidence that the gun was kept in a

secure evidence locker until trial; ballistics testing indicated

all seven spent shell casings recovered from the scene came from

this particular gun and that the weapon had not been altered in

any way to change this conclusion. Defendant presented evidence

showing that the car in question had sat for several years in a

junkyard, was broken into at least once while in the junkyard,

and underwent engine repairs twice during this time. Defendant

also presented evidence that the handgun was not properly

processed pursuant to CCBI protocol, attempting to establish a

weak link in the handgun’s chain of custody.

In denying defendant’s motion to suppress, the trial court

considered and weighed the evidence presented by both parties.
 -8-
The trial court properly exercised its discretion in finding

that a detailed chain of custody was not necessary because

sufficient evidence was presented from which a jury could find

that the gun was the weapon used at the crime scene and that it

had not been altered. Furthermore, although the CCBI agent

admitted to violating CCBI protocol by not promptly testing the

gun, the agent also testified that the gun remained in a secure

evidence locker during this time. As “[a]ny weak links in the

chain of custody pertain only to the weight to be given to the

evidence and not to its admissibility” where the evidence in

question was not altered, the trial court did not abuse its

discretion in admitting the handgun into evidence.

Defendant further argues that the trial court’s denial of

his motion to suppress the handgun resulted in prejudicial

error. Defendant’s argument lacks merit, as defendant has

failed to show that absent the admission of the handgun into

evidence, a different result would have been reached at

defendant’s trial. See State v. Lawrence, 365 N.C. 506, 507—08,

723 S.E.2d 326, 327—28 (2012).

The State presented several witnesses who testified that

defendant had confessed to killing Brunner and hiding the murder

weapon in his sister’s car. The State presented further
 -9-
evidence demonstrating that defendant had a long-running dispute

with Brunner, that defendant had repeatedly threatened to kill

Brunner, and that defendant was seen carrying a handgun, had

blood on his pants, and had a pocketful of crumpled money

immediately after Brunner was shot. As such, the State

presented ample evidence by which a jury could have found

defendant guilty of first-degree murder. Therefore, because

defendant is unable to show that admission of the murder weapon

was error, defendant’s first argument on appeal is overruled.

II.

In his second argument on appeal, defendant contends the

trial court erred in not instructing the jury on second-degree

murder. We disagree.

[A] trial judge must instruct the jury
on all lesser included offenses that are
supported by the evidence, even in the
absence of a special request for such an
instruction, and that the failure to do so
is reversible error which is not cured by a
verdict finding the defendant guilty of the
greater offense. Only when the "evidence is
clear and positive as to each element of the
offense charged" and there is no evidence
supporting a lesser included offense may the
judge refrain from submitting the lesser
offense to the jury.

State v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739

(1995) (citations omitted).
 -10-
An instruction on a lesser-included offense
must be given only if the evidence would
permit the jury rationally to find defendant
guilty of the lesser offense and to acquit
him of the greater. The trial court should
refrain from indiscriminately or
automatically instructing on lesser
included offenses. Such restraint ensures
that [t]he jury's discretion is . . .
channelled so that it may convict a
defendant of [only those] crime[s] fairly
supported by the evidence.

State v. Taylor, 362 N.C. 514, 530, 669 S.E.2d 239, 256 (2008)

(citations and quotations omitted).

The trial court announced during the charge conference that

it would not submit the lesser-included offense of second-degree

murder to the jury. In determining whether to instruct the jury

on the lesser-included offense of second-degree murder,

[i]f the evidence is sufficient to fully
satisfy the State's burden of proving each
and every element of the offense of murder
in the first degree, including premeditation
and deliberation, and there is no evidence
to negate these elements other than
defendant's denial that he committed the
offense, the trial judge should properly
exclude from jury consideration the
possibility of a conviction of second degree
murder.

State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 771 (2002)

(citation omitted).

Although defendant concedes that the jury found him guilty

of first-degree murder on the basis of malice, premeditation and
 -11-
deliberation and based on the felony murder rule, defendant

contends that the trial court erred in not submitting the charge

of second-degree murder to the jury because the testimony of

Milbourne and Taing negated the finding of malice, premeditation

and deliberation required for first-degree murder. Taing

testified defendant told her that he felt like he had to kill

Brunner because Brunner had swung at him. Milbourne, the only

eyewitness to the shooting, testified she saw Brunner raise his

arm towards defendant before shots were fired. Both testified

that there was “bad blood” between defendant and Brunner.

Defendant contends the trial court erred in not instructing

the jury on second-degree murder because the testimony of

Milbourne and Taing implied that defendant shot Brunner in self-

defense and without premeditation and deliberation. “First-

degree murder is the unlawful killing of a human being with

malice, premeditation and deliberation." State v. Nicholson,

355 N.C. 1, 37, 558 S.E.2d 109, 134 (2002) (citation omitted).

Premeditation and deliberation can be shown by:

(1) want of provocation on the part of the
deceased; (2) the conduct and statements of
the defendant before and after the killing;
(3) threats and declarations of the
defendant before and during the course of
the occurrence giving rise to the death of
the deceased; (4) ill-will or previous
difficulty between the parties; (5) the
 -12-
dealing of lethal blows after the deceased
has been felled and rendered helpless; [](6)
evidence that the killing was done in a
brutal manner[; . . . and (7)] the nature
and number of the victim's wounds[.]

State v. Gladden, 315 N.C. 398, 430—31, 340 S.E.2d 673, 693

(1986) (citations omitted).

Here, the State presented evidence which tended to show

that defendant acted with premeditation and deliberation in

killing Brunner: defendant, after saying he needed to get money,

directed Taing to drive to Brunner’s apartment complex parking

lot and park; wearing a ski mask and carrying a gun defendant

ran up to Brunner’s car as Brunner and Milbourne were about to

exit and fired at least seven shots at Brunner; the wound

trajectories all pointed downwards into Brunner’s body,

suggesting defendant continued to fire at Brunner even after

Brunner collapsed in his car; defendant brought a handgun with

him to confront Brunner; defendant had repeatedly threatened to

kill Brunner and had made hand gestures to simulate firing a gun

towards Brunner; no gun was found on or near Brunner’s body; and

defendant attempted to cover-up his involvement with the murder.

Defendant presented no credible argument or theory of defense

that could entitle him to a lesser-included offense instruction

on second-degree murder, as the evidence presented to support a
 -13-
charge of first-degree murder on the basis of malice,

premeditation and deliberation was such that a jury could not

rationally find defendant guilty of the lesser charge of second-

degree murder. See Taylor, 362 N.C. at 530, 669 S.E.2d at 256.

Accordingly, defendant’s second argument on appeal is overruled.

III.

In his third argument on appeal, defendant contends the

trial court erred in not granting his motion to dismiss the

charge of first-degree murder under the felony murder rule. We

disagree.

A motion to dismiss for insufficiency of the evidence must

be granted unless there is substantial evidence of the existence

of each essential element of those crimes charged and of

defendant's identity as the perpetrator of the crimes. State v.

Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).

Substantial evidence [to support denial of a dismissal motion]

is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." State v. Earnhardt, 307 N.C.

62, 66, 296 S.E.2d 649, 652 (1982) (citation omitted). In

making this determination, the evidence must be viewed "in the

light most favorable to the State, giving the State the benefit

of every reasonable inference." State v. Locklear, 322 N.C.
 -14-
349, 358, 368 S.E.2d 377, 382 (1998) (citation omitted). The

State's evidence need not exclude "every reasonable hypothesis

of innocence." Powell, 299 N.C. at 101, 261 S.E.2d at 118.

This Court reviews the denial of a motion to dismiss for

insufficiency of the evidence using a de novo standard of

review. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33

(2007). In conducting such a de novo review, we consider the

matter anew and freely substitute our judgment for that of the

trial court. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874,

878 (2011).

Defendant contends the trial court erred in denying his

motion to dismiss because the State failed to prove each element

of the crime of robbery with a dangerous weapon. Specifically,

defendant argues that the State failed to prove the first

element of an unlawful taking of personal property because Taing

and a second witness did not testify that defendant intended to

commit a robbery when he shot Brunner. Defendant’s argument

lacks merit, as the State met its burden of proving each element

of robbery with a dangerous weapon through both direct and

circumstantial evidence.

The elements of robbery with a
dangerous weapon are: (1) an unlawful taking
or an attempt to take personal property from
the person or in the presence of another;
 -15-
(2) by use or threatened use of a firearm or
other dangerous weapon; (3) whereby the life
of a person is endangered or threatened.

State v. Cole, 199 N.C. App. 151, 156, 681 S.E.2d 423, 427

(2009) (citation and quotation marks omitted). The elements of

a crime must be proven by substantial evidence, either “direct,

circumstantial, or both.” State v. Small, 328 N.C. 175, 180,

400 S.E.2d 413, 415—16 (1991).

To show that defendant intended to and indeed did rob

Brunner, the State presented evidence based on the testimony of

Taing that on the night of Brunner’s shooting defendant directed

her to drive to a particular apartment complex (Spanish Court

Apartments, where Brunner lived) because he needed money and was

going to “pull a jooks”1 to get some. After Taing heard “popping

sounds,” defendant ran back to the car and ordered her to drive

away. Taing further testified that when she and defendant

reached her parents’ house, she noticed defendant had blood on

his pants, money, “like, a thousand dollars,” crumpled up in his

pockets, and a handgun. When Brunner’s body was found, the body

was partially turned and laying across the center console of the

car. Near Brunner’s feet police recovered a partial roll of

Rolaids antacids and two condoms, while a second piece of a

1
Upon request by the trial court, Taing defined “pull a jooks”
as “a slang term for getting money in any way.”
 -16-
Rolaids wrapper was found on Brunner’s pants. Such evidence,

while circumstantial in nature, suggests that after Brunner was

shot, defendant searched Brunner’s pants pockets for money,

altering the position of Brunner’s body and dislodging the

Rolaids and condoms from his pockets in the process. The State

also presented evidence through witness testimony and forensic

analysis of the handgun and spent shell casings that linked

defendant to Brunner’s shooting. As such, the State met its

burden of showing each element of robbery with a dangerous

weapon such that a jury could find from the evidence presented

that defendant carried out his intent to commit an armed robbery

of Brunner. See Locklear, 322 N.C. at 358, 368 S.E.2d at 383

(“If there is substantial evidence — whether direct,

circumstantial, or both — to support a finding that the offense

charged has been committed and that the defendant committed it,

the case is for the jury and the motion to dismiss should be

denied.” (citation omitted)).

IV.

In his fourth argument on appeal, defendant contends the

trial court erred in allowing a witness to testify as to

inadmissible hearsay statements. We disagree.
 -17-
At the outset we note that defendant has failed to preserve

this issue for appeal. This Court reviews an unpreserved error

in a criminal case for plain error. See Lawrence, 365 N.C. at

512, 723 S.E.2d at 330.

The State proffered one of its witnesses to the trial court

outside of the jury’s presence, stating that the State would ask

this witness to testify about defendant robbing Brunner in 2007

and Brunner engaging in a fist fight with defendant in 2008.

The trial court, after considering the arguments presented by

both parties, ruled that while testimony of the robbery would

not be permitted, testimony about the fist fight would be

permitted as both then-existing state of mind2 and Rule 404(b)

statements. When the State began questioning this witness as to

his recollection of the fight between Brunner and defendant,

defendant stated only that “I’ll renew my objection.” Defendant

did not object when the witness later testified that when

Brunner saw defendant at a gas station, Brunner “started to get

real crazy” and began shouting, "That's him. That's who robbed

2
Pursuant to N.C. Gen. Stat. § 8C-1, Rule 803(3) (2013),
statements concerning “the declarant's then existing state of
mind, emotion, sensation, or physical condition (such as intent,
plan, motive, design, mental feeling, pain, and bodily health),
but not including a statement of memory or belief to prove the
fact remembered or believed . . .” may be admitted by the trial
court as exceptions to the hearsay rule.
 -18-
me right there. That's him." As such, defendant’s failure to

object to the witness’s testimony concerning Brunner’s

statements was insufficient to preserve this argument on appeal.

See State v. Golphin, 352 N.C. 364, 439—40, 533 S.E.2d 168, 219

(2000) (“[A] general objection is "ineffective unless there is

no proper purpose for which the evidence is admissible.”

(citations omitted)).

Defendant also asks this Court to review the trial court’s

admission of the witness’s testimony for plain error. "Plain

errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court."

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).

“To have an alleged error reviewed under the plain error

standard, the defendant must "specifically and distinctly"

contend that the alleged error constitutes plain error.”

Lawrence, 365 N.C. at 516, 723 S.E.2d at 333 (citations

omitted). “[T]he plain error rule . . . is always to be applied

cautiously and only in the exceptional case where, after

reviewing the entire record, it can be said the claimed error is

a ‘fundamental error . . . .’” Odom, 307 N.C. at 660, 300

S.E.2d at 378 (citations omitted).
 -19-
Defendant argues that the trial court’s failure to issue a

curative instruction and strike the witness’s testimony as to

Brunner’s statements caused defendant “irreparable harm” and

“said testimony represented a fundamental error requiring a new

trial.” Specifically, defendant contends that the admission of

this testimony was prejudicial because this testimony could only

be admitted for the purpose of demonstrating a prior bad act by

defendant. Defendant’s argument is without merit, as it is

clear from the trial transcript that the witness’s testimony was

admitted not to demonstrate a prior bad act but rather to show

Brunner’s then-existing state of mind. Moreover, defendant has

failed to show how the admission of this testimony amounted to a

fundamental error requiring a new trial; given the evidence

presented by the State throughout defendant’s trial indicating

that defendant shot, killed and robbed Brunner, we find the

admission of this particular witness’s testimony to be without

error. Defendant’s fourth argument on appeal is overruled.

V.

Defendant’s final argument on appeal contends the trial

court erred in allowing a witness to testify regarding cell

phone records. We disagree.
 -20-
"'Relevant evidence' means evidence 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. Sloan, 316 N.C. 714, 724, 343 S.E.2d 527, 533 (1986)

(citation omitted). "[E]vidence tending to connect an accused

with the crime" is relevant. State v. Whiteside, 325 N.C. 389,

397, 383 S.E.2d 911, 915 (1989) (citation omitted).

The State sought to admit the cell phone records of Taing’s

mother to corroborate Taing’s testimony regarding cell phone

calls she received from her mother the night Brunner was

murdered. Defendant objected to the admission of these records

on grounds that because the records belonged to Taing’s mother,

and Taing’s mother did not testify as a witness at trial, the

records were irrelevant. This objection was overruled by the

trial court which admitted the records as business records.

Business records are made in the ordinary course of

business at or near the time of the transaction and are

admissible if authenticated by a witness familiar with them and

how they are made. State v. Wood, 306 N.C. 510, 515, 294 S.E.2d
 -21-
310, 313 (1982). The State sought to have the cell records

admitted into evidence after having them authenticated by a

witness who worked for Taing’s cell phone carrier. Defendant’s

argument that Taing’s mother needed to be a witness testifying

at trial in order for the records to be admissible is without

merit. The admission of business records into evidence does not

require the person to whom the records refer be a witness at

trial; rather, the exception requires that the records have been

made in the ordinary course of business at or near the time of

the transaction in question and be authenticated by a witness

familiar with them and how they are made. See id. Here, the

cell phone records were authenticated by a witness who worked

for Taing’s mother’s cell phone carrier; the witness testified

as to what data the records contained, including the times,

phone numbers, and caller locations for all phone numbers

associated with a particular cell phone account. As such,

Taing’s mother did not need to be a witness in order for these

records to be properly authenticated and admitted into evidence.

Accordingly, defendant’s final argument is overruled.

Affirmed; no error.

Judges CALABRIA and GEER concur.

Report per Rule 30(e).
-22-