State v. Miller

852 S.E.2d 704

STATE of North Carolina

v.Calvin Lee MILLER

No. COA19-1083

Court of Appeals of North Carolina.

Filed: December 31, 2020

Attorney General Joshua H. Stein, by Special Deputy Attorney General Steven Armstrong, for the State.

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

DIETZ, Judge.

Defendant Calvin Lee Miller appeals multiple felony convictions all related to his attempt to murder his wife with a rifle. Miller argues that the trial court committed plain error by admitting a video showing him kicking his dog. He also challenges the admission of testimony from the State's forensic firearms expert, arguing that the expert's ballistics comparison was unreliable under Rule 702. Finally, Miller challenges the trial court's decision to instruct the jury on flight.

As explained below, the trial court's admission of the challenged video, even if we were to assume it was error, does not rise to the level of plain error. The court's admission of the testimony of the State's expert was within the court's sound discretion. And the instruction on flight was supported by the evidence in the record. Accordingly, we find no plain error in part and no error in part in the trial court's judgments.

Facts and Procedural History

Defendant Calvin Lee Miller was married to his wife, Charlene, for 34 years. Miller and Charlene lived together until October 2017, when Charlene moved out due to Miller's drinking and abusive behavior.

After Charlene moved out, Miller repeatedly contacted her by phone, text message, and showing up at her workplace. He vacillated between asking her to return home, promising to quit drinking, and telling her that he hated her. Charlene told Miller not to come to the store where she worked if he had been drinking. On at least one occasion, Miller texted Charlene to warn her that her "day was coming." On another occasion, Miller told Charlene to pick up some of her possessions from their home and then sent pictures of her "stuff on fire."

On 3 December 2017, Miller and Charlene's adult daughter, Kortney, recorded video on her cell phone of Miller threatening to harm Charlene. Charlene was not present at the time. Miller also threatened Kortney, who was pregnant, with his .22 caliber rifle. Kortney's husband, Akia, grabbed Miller and the gun, telling Miller to never raise a gun to Kortney again. Kortney then heard Miller threaten to shoot his dog and heard several gunshots around the house. Akia also heard 13 loud noises that sounded like firecrackers and later saw the resulting bullet holes. After this incident, Akia and Kortney collected some of the shell casings left behind and placed them in a plastic baggie.

Kortney later told Charlene that Miller had a .22 caliber rifle and had threatened to harm Charlene nearly every day since he realized Charlene "wasn't coming home for sure." Based on the threats, Charlene obtained a domestic violence protective order against Miller.

On 5 December 2017, Charlene arrived at work around 6:15 a.m. She had the protective order with her but inadvertently left it in her car. Charlene did not know if Miller had been served with the order and went back out to her car to get it in case Miller showed up.

In the parking lot, Charlene was shot twice in the head with .22 caliber bullets, one hitting her in the jaw and the other hitting the top of her scalp. Charlene ran back inside the store and called 911. Police arrived and questioned Charlene about the shooting. She stated that she did not see the shooter but that it was Miller. EMS transported Charlene to the hospital where she was treated for her injuries for two weeks.

While investigating the shooting, officers searched the parking lot and recovered three spent shell casings and two live rounds of .22 caliber bullets. Around five hours after the shooting, a highway patrol officer saw Miller walking along a road not far from the scene of the shooting. The officer and Miller saw each other, and Miller raised and then lowered his hands before walking toward a wooded area. Miller entered the wood line, came back out again, and began walking toward the officer. But when Miller again saw the officer and made eye contact, he turned and went back into the woods. A few moments later, a K-9 unit joined the search and located Miller. Officers found Miller lying on the ground, "curled up in a ball, almost in the fetal position, laying down behind a large oak tree."

Miller was intoxicated, with extremely slurred speech, and said "something about not having a rifle" and "[y]’all know I wouldn't hurt my woman, my old lady." The officers had only directed Miller to "[s]urrender" and had not yet told Miller "why he had been stopped." Officers recovered .22 caliber live rounds when they searched Miller, but they did not recover a firearm in their investigation.

On 26 February 2018, Miller was indicted for attempted first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and possession of a firearm by a felon. The case went to trial. At trial, Charlene, Kortney, and Akia testified to the events described above.

The State also presented the videos Kortney made on her cell phone. The videos showed Miller threatening Charlene and Kortney and pointing the gun at Kortney. Kortney identified the item Miller was holding as a ".22 rifle." The videos also showed Miller kick and threaten his small dog. Miller did not object to the admission of the videos. Akia identified a photograph of himself and Miller, screenshotted from the video Kortney took in December 2017, showing Miller holding his .22 caliber rifle.

The State also presented the testimony of Kathleen Clardy, a scientist from the firearms unit of the State Crime Lab, as an expert in the field of firearm examination. Miller objected, and the trial court conducted voir dire. At the conclusion of the voir dire , the trial court ruled that Clardy's testimony was admissible under Rule 702 after finding that her testimony was "the product of reliable principles and method[s]" and that she "applied these principles and methods to the facts of this particular case."

Clardy then testified about her examination of the various shell casings collected during the investigation. Clardy described in detail how she examined the markings on the casings under a microscope and concluded that all of the casings she examined were fired from the same firearm based on a comparison of specific markings she observed on the casings. Clardy then had another examiner peer review her work, and that examiner reached the same conclusion.

On 31 October 2018, the jury convicted Miller of all charges. The trial court sentenced Miller to 207 to 261 months in prison for attempted first degree murder and a consecutive consolidated sentence of 96 to 128 months for assault with a deadly weapon with intent to kill inflicting serious injury and possession of a firearm by a felon. Miller appealed.

Analysis

I. Plain error challenge to admission of video

Miller first argues that the trial court committed plain error by admitting the video showing him kicking his dog. Miller contends that the video was irrelevant, was improper character evidence, and was unduly prejudicial.

Miller acknowledges that he did not object to the admission of the video, and therefore, we review these arguments solely for plain error. See N.C. R. App. P. 10(a)(4). "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). "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." Id. In other words, Miller must "show that, absent the error, the jury probably would have returned a different verdict." Id. at 519, 723 S.E.2d at 335.

Here, we need not address whether admitting the video was error because, even assuming that it was, Miller cannot satisfy the prejudice prong of the plain error test. State v. Blankenship , 259 N.C. App. 102, 122, 814 S.E.2d 901, 916 (2018). When viewed in the context of all the evidence at trial, the challenged portion of the video, showing Miller kicking his dog, was "of relative insignificance" in light of the other overwhelming evidence of guilt offered by the State. State v. Phillips , 268 N.C. App. 623, ––––, 836 S.E.2d 866, 875 (2019).

For example, the State presented evidence from several witnesses that, leading up to the shooting, Miller made repeated threats against Charlene's life and stated that he was going to kill her. Charlene testified that Miller was the only person who had threatened her and that, based on Miller's threats and actions, she had obtained a protective order against him. The State also presented evidence that Miller possessed and used a .22 caliber rifle several days before the shooting and that, at that time, he made threats directed at Charlene.

After the shooting, law enforcement found Miller near the scene. When officers followed Miller into a wooded area, they found him curled up behind a tree. Before the officers told Miller why they were approaching him, Miller told the officers about "not having a rifle" and that "I wouldn't hurt my woman." The officers found live rounds of ammunition when they searched Miller that matched the type of ammunition found at the crime scene. Likewise, shell casings that Miller fired from his .22 caliber rifle several days before the shooting matched the shell casings recovered from the scene of the crime.

Finally, during trial, several witnesses testified that Miller abused or threatened his dog, with one testifying that Miller was "mean to the dog, kicking it around" and another testifying that Miller threatened to shoot the dog. Miller does not challenge the admission of this testimony on appeal.

In light of all this...