State v. Fernanders

901 S.E.2d 243

STATE of North Carolina

v.Kwame FERNANDERS, Defendant.

No. COA23-837

Court of Appeals of North Carolina.

Filed May 7, 2024

Appeal by defendant from judgment entered 8 September 2022 by Judge Martin B. McGee in Polk County Superior Court. Heard in the Court of Appeals 2 April 2024. Polk County, Nos. 16CRS50264, 16CRS50269

Attorney General Joshua H. Stein, by Special Deputy Attorney General Marc Bernstein, for the State-appellee.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for defendant-appellant.

GORE, Judge.

Defendant, Kwame Fernanders, appeals his conviction for first-degree murder and possession of a stolen vehicle. Defendant was sentenced to life imprisonment without possibility of parole for first-degree murder and the trial court arrested judgment for the conviction of possession of a stolen vehicle. Defendant seeks review of the trial court’s multiple evidentiary rulings and its denial of his motion to sever the charges. Upon review of the briefs, the record, and case law, we conclude the trial court did not err.

I.

Defendant, his girlfriend Kayla Black, and his friend Quintae Edwards met and began driving in defendant’s car from Greenville, South Carolina, late on 30 March 2016. Early in the morning on 31 March 2016, they stopped at a gas station. Defendant and Edwards left Black but soon returned driving a red Ford Mustang. They left defendant’s car and drove off in the red Ford Mustang headed toward North Carolina. Different angles of video footage and still shots of the footage, admitted during trial, revealed defendant and Edwards had broken into Reliable Rides and stolen the red Ford Mustang from the facility. In the videos, defendant and Edwards were wearing the same clothes they were later sighted in just prior to the shooting; defendant was also seen with a gun and wearing a pair of brown and yellow work gloves.

At approximately 5:00 a.m., they stopped at a BP gas station in Polk County, North Carolina. The gas station was not open at the time, so they waited for it to open. Prior to the gas attendant opening the station, Black testified, and the gas attendant testified, that defendant wanted to rob the attendant, but Black had held him back from doing so. After buying gas, Black drove the Ford Mustang towards the interstate with defendant seated in the front seat and Edwards seated in the back seat.

As they drove onto the ramp, they saw a "box truck" parked on the side of the ramp and stopped by it to get directions. Destry Home was the driver of the truck and had stopped while in the middle of making a furniture delivery. Black testified she was trying to fix her GPS while defendant pulled down his window and began talking to Home. Black testified Horne was polite and defendant was also talking politely, but defendant quickly became aggressive. Black heard Edwards say, "Do it, bro" from the back seat and defendant told Black to turn her head away.

Immediately after she turned her head, Black heard a gunshot and looked in time to see defendant pulling his arm with the gun in his hand back into the car. Black drove away quickly, and not long after, Horne was discovered unresponsive and bleeding in the truck. He was later pronounced dead from a gunshot wound. A police officer, who testified at trial, had seen the box truck and the Mustang parked around 5:40 a.m. as he drove by, but he did not investigate because it was common to see vehicles stopped at the on ramp. He was called to the scene approximately ten to fifteen minutes later. The police officer discovered a spent .40 caliber cartridge casing on the ground near the truck.

Police obtained the video footage from the BP gas station of the Mustang, defendant, Edwards, and Black, and issued images to the public to identify them. The police department’s surveillance camera caught the Mustang driving by just after the shooting, headed towards South Carolina. Defendant, Black, and Edwards were recognized in a couple different locations as they drove south, and they evaded arrest while in Landrum, South Carolina, and Gainesville, Florida. While in South Carolina, they abandoned the Mustang and were later seen driving in a maroon Subaru. Prior to the arrest, Black testified at trial that she, defendant, and Edwards had broken into a college apartment and robbed college students. According to Black’s testimony, one student was taken with her and defendant to an ATM to withdraw money. Black testified that defendant used the same gun during this break in and robbery that he used in the shooting.

Defendant, Edwards, and Black were later apprehended and arrested at a Best Western in Tallahassee, Florida on 4 April 2016. Police officers recovered a gun (located beside defendant nt the time of arrest), the keys to the maroon Subaru, and recovered yellow and brown work gloves and twenty-seven .40 caliber Smith & Wesson Aguila rounds in the Subaru.

Defendant was charged with first-degree murder and possession of a stolen motor vehicle. Defendant filed a pre-trial motion to sever the charges for trial. The trial court denied defendant’s motion and granted the State’s motion to join the charges. Defendant renewed his motion to sever the charges at the close of the State’s evidence and at the close of all the evidence. During trial, defendant made multiple specific objections: to the admission of video footage and still shots from the footage at Reliable Rides; to Black identifying defendant and his gun in the video footage and still shots from Reliable Rides; to Black’s testimony of the robbery in Gainesville, Florida; to the State’s tender of their expert, Coudriet, as a ballistics expert; and to Coudriet’s opinion that the .40 caliber cartridge casing recovered from the scene was fired from the gun retrieved at defendant’s arrest. The jury returned guilty verdicts for both charges. The trial court arrested judgment on the possession of a stolen motor vehicle conviction and sentenced defendant to life imprisonment without possibility of parole for the first-degree murder conviction. Defendant timely appealed the judgment.

II.

Defendant appeals of right pursuant to N.C.G.S §§ 7A-27(b) and 15A-1444(a). Defendant challenges multiple evidentiary rulings made by the trial court. Defendant argues the trial court erred with the following evidentiary rulings: (1) by admitting evidence of the Gainesville robbery through Kayla Black’s testimony; (2) by allowing Kayla Black to identify the gun displayed in the video footage and photographs of the break in at Reliable Rides; (3) by admitting ten videos and five photographs from the break in at Reliable Rides; (4) by denying defendant’s motion to sever the first-degree murder charge from the possession of a stolen motor vehicle charge; (5) by allowing the State’s expert witness to testify the used .40 caliber cartridge casing, retrieved by the truck, was fired from the gun seized in defendant's hotel room; and (6) through the cumulative errors committed by the trial court. Defense counsel objected to and preserved each issue for review.

A.

[1–3] Defendant first argues the trial court erred by allowing Kayla Black to testify about the Gainesville robbery and kidnapping under Rule 404(b). Specifically, defendant argues the trial court erred by allowing the testimony as proof of defendant’s identity and to show the chain of events that took place. "We review de novo the legal conclusion that the evidence is … within the coverage of Rule 404(b)." State v. Pabon, 380 N.C. 241, 257, 867 S.E.2d 632 (2022) (citation omitted). "[I]f an appellate court reviewing a trial court’s Rule 404(b) ruling determines … that the admission … was erroneous, it must then determine whether that error was prejudicial." Id. at 260, 867 S.E.2d 632.

[4] Rule 404(b) is a rule of inclusion that "lists numerous purposes for which evidence of prior acts may be admitted, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident." State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156 (2012) (quoting N.C. R. Evid. 404(b)) (internal quotation marks omitted). The list is broader than the specified purposes when the evidence "is relevant to any fact or issue other than the defendant’s propensity to commit the crime." Id. Courts constrain the inclusive nature of Rule 404(b) by balancing it with similarity and proximity. Id. at 131, 726 S.E.2d 156.

We presume, arguendo, the trial court erred by admitting the testimony about the robbery and kidnapping in Gainesville under Rule 404(b) and consider whether the error was prejudicial. Defendant has the burden to demonstrate "whether there is a reasonable possibility that, had the error not been committed, a different result would have been reached at trial." Pabon, 380 N.C. at 260, 867 S.E.2d 632 (quoting N.C.G.S. § 15A-1443(a) (2021)).

In the present case, defendant fails to demonstrate "there is a reasonable possibility … a different result would have been reached at trial." Id. In fact, defendant articulates there is other evidence available to "directly tie [defendant] to the weapon both in North Carolina and Florida." The other evidence properly admitted includes: Black’s testimony that defendant kept the gun on him and had the gun in his hand right after shooting Horne; the testimony of defendant’s agitation and aggression prior to shooting Horne; testimony defendant had attempted to rob the gas attendant at the gas station just prior to the shooting; testimony that defendant had told Black to turn her head prior to shooting Horne; Black’s testimony that they fled once they found out the shooting victim had died; the gun seized in the hotel where defendant was arrested; and Black’s testimony defendant stated, "if we get caught, it is going to be a shoot-out." Accordingly, this other overwhelming evidence altogether suggests a reasonable jury could still come to the same conclusion...