State v. Kelly

Page 1

STATE OF NORTH CAROLINA v. MICHAEL DUANE KELLY.

NO. COA02-541.

Court of Appeals of North Carolina.

Filed July 15, 2003.

Appeal by defendant from judgment entered 22 May 2001 by Judge Henry E. Frye, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 12 February 2003.

Guilford County, No. 98 CRS 19268.

Attorney General Roy Cooper, by Special Deputy Attorney General Steven M. Arbogast, for the State.

Lisa Miles for defendant appellant.

McCULLOUGH, Judge.

Defendant Michael Duane Kelly was indicted for first degree murder on 2 November 1998. Defendant was tried before a jury at the 1 May 2001 Criminal Session of Guilford County Superior Court. Defendant had been tried once before on the same charge, but that ended in mistrial.

At trial, the State's evidence tended to show that Lisa Kenly, the victim, and defendant had been in a relationship for approximately 14 years. Their relationship had produced two children, Vanessa and Michael Jr. On the weekend of 3 May 1997, Lisa had planned to go on vacation to the beach. According to all accounts, Lisa planned on leaving defendant and taking the children with her upon her return. Lisa worked for a catering service and had planned to work a wedding reception on 3 May 1997 before starting her vacation. Lisa, however, never showed up at the job site. Instead, her body was found on 5 May 1997 in a wooded area near a Motel 6.

When her body was found, Detective Mike Fain was called to the scene. Detective Fain had been in contact with defendant since defendant called police when he found out Lisa did not show up for work. There was no obvious trauma to the body, save a few ant bites. She had on no jewelry and had no identification. Her car was found at the nearby Motel 6. The driver's seat was apparently pushed back. Inside the car, the detective found a blue and a black bag. The blue bag contained clothes and some cigarettes. Several acquaintances of Lisa, including her daughter, testified that the clothes were not of the type that Lisa would take to the beach and that it was missing all of her toiletries. There was also testimony that Lisa always wore her rings which were not found on her person or at the scene.

On the same day, Detective Fain, along with Detective Kim Soban and Police Chaplain Brian Donnelly, went to defendant's residence to show defendant a picture and get an identification of the body. Detective Fain believed that the body was Lisa Kinley. According to Fain and Soban, it took two hours before defendant would look at the picture. He was crying and rolling around on the floor. Detective Soban described the lamenting as forced or acted out rather than natural. Defendant did eventually identify the body in the picture as Lisa. Initially, Detective Fain believedthat Lisa might have died of an overdose, as she was known to smoke marijuana and the Motel 6 was in a "heavily infested drug area."

Testimony revealed that during the weeks prior to Lisa's leaving for vacation, she and defendant had been having trouble with their relationship. A couple of heated exchanges took place in which defendant stated that he would kill her before he would let her leave with the kids. Yet, the couple was attempting to reconcile. The police, suspicious of defendant, came to the home of defendant on 8 September 1998. Defendant allowed the police to thoroughly search the house. The search revealed a sawed-off shotgun. Defendant informed the police that he kept the gun to kill snakes in the woods, but that they could take the gun if it was illegal. On 28 September 1998, defendant was arrested for possessing a weapon of mass destruction. While he was being held on this charge he talked to Larry Baker, a cell mate, about the investigation.

On 1 October 1998, Baker gave a statement to Detective Fain. According to the statement, Baker had asked defendant as to why he was in jail. Defendant gave Baker a couple of stories as to Lisa's death. First, he told Baker that he had hired some black individuals to place the body and the car where they were found. Second, defendant spoke later about how Lisa was going to leave him and take his kids away. They had tried to talk it out, but when it did not end well, defendant smothered her with a blanket. Then he said that he placed the body where it was found, and had removed all jewelry and money to make it look like a robbery.

Defendant was indicted for murder the following November in 1998. Another cell mate of defendant's, Albert Garrard, testified as to statements defendant made to him in May 1999 while in jail on the murder charge. According to Garrard, defendant told him that nobody would ever be able to prove that he had killed Lisa. He stated that he was not worried about Baker testifying because he would not live to do so. Defendant also drew him a map of the area in which the body was found and gave it to Garrard. Garrard turned the map into the authorities.

Vanessa Kelly, Lisa and defendant's daughter, testified that she knew that her mother was contemplating leaving defendant. She remembered her mother leaving that morning dressed for work and wearing her rings, which she always did.

Notably, Vanessa had testified for defendant at his first trial. However, a few months afterward, she found her mother's rings hidden in a jewelry box in their house. She had not seen the rings since the day her mother left. She took the rings to the correctional facility where defendant was being held, but did not reveal that she had found them. She asked him what happened to the rings. He replied that they had been stolen, to which she asked how they could have been stolen when she found them in the house. Defendant accused her of trying to put him on his "deathbed" and of being brainwashed.

Defendant testified in his own defense. He denied that he ever told anyone that he would kill Lisa rather than let her leave with the kids. On the Friday night of the weekend that Lisa was togo on her vacation, defendant testified that he and Lisa went on a drive to talk things out. According to him, they had patched things up. He denied that he killed Lisa or had her killed. He also denied telling his cell mates anything to that effect. He did acknowledge that he had drawn a diagram of where she was found for Garrard. This was apparently done just to inform Garrard of where she was found. As to the jewelry found by the daughter, defendant stated that they were on the dresser in his home when the police asked him what jewelry she was wearing the last time he saw her.

The jury found defendant guilty of first degree murder. The Honorable Henry E. Frye, Jr., sentenced defendant to life imprisonment without parole. Defendant appeals.

Defendant brings forth two questions on appeal: Did the trial court err in (I) admitting opinion testimony of Dr. Thomas Clark where Dr. Clark could not provide proper foundation for his opinion and the trial court did not hear evidence from the defense before allowing the testimony; and (II) allowing a hearsay declaration by decedent that defendant had previously beaten the victim?

I.

Defendant's first assignment of error is that the trial court erred by allowing Dr. Thomas Clark to testify as to the cause and mechanism of Lisa Kinley's death.

Dr. Clark testified for the State as an expert in the field of forensic pathology. Before Dr. Clark testified, the trial court allowed defendant to conduct a voir dire examination of Dr. Clark regarding the cause of Ms. Kinley's death. This hearing and Dr.Clark's trial testimony revealed that he performed the autopsy on Ms. Kinley. Other than three faint bruises on her right arm and ant bites, he found no other evidence of external trauma. The toxicology report came back negative for alcohol and/or drugs, ruling out an overdose. The doctor made note of certain interior trauma, specifically extensive intra-alveolar hemorrhage. Dr. Clark stated that this hemorrhaging could occur as a result of suffocation or asphyxiation. Yet, Dr. Clark noted in the autopsy report that the cause of death was undetermined.

While this is so, Dr. Clark was of the opinion that Ms. Kinley most likely did not die of natural causes. Specifically, Dr. Clark noted in the autopsy that "based on the circumstances and lack of anatomic findings, this death is considered a homicide." Dr. Clark felt that, based on additional information provided by the police, and as there was no other reasonable cause of death, she likely died of some form of asphyxiation or suffocation. Dr. Clark explained the lack of external physical findings by stating that "occlusion of the nose and mouth most often leaves [no physical evidence]" and that it is "commonly accepted by forensic pathologists that asphyxiation of the external airway would probably not leave injury." The information provided by the police was that defendant had possibly held a blanket over her airways (the occlusion), and that she was found in a wooded area where she would not have been expected to be.

While Dr. Clark believed that suffocation usually left no physical evidence, he admitted that there are no scientific studiesto support that opinion. He also said that he did not exclude all other possible causes of death, either because in his opinion they were unlikely or there was no available way to exclude them (such as anaphylactic shock from insect bites, allergic reactions, or lightning strike). He did not review her medical history to determine allergies, or apparently consider the facts to defendant's satisfaction that she was found near a golf course (where lightning strikes often occur), with a wrench and a crack pipe nearby. Dr. Clark justified his conclusion of suffocation without physical evidence from his experience gained by performing over 3,500 autopsies.

Defendant moved to have Dr. Paige Hudson testify before the trial court during voir dire to rebut Dr. Clark's assertion that it was commonly accepted that...