State v. Nolasco, COA15-972

STATE OF NORTH CAROLINA, v. MIGUEL MELO NOLASCO, Defendant.

No. COA15-972

COURT OF APPEALS OF NORTH CAROLINA

April 19, 2016

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Guilford County, No. 12 CRS 79176, 14 CRS 24368

Appeal by defendant from judgment entered 23 January 2015 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 22 February 2016.

Roy Cooper, Attorney General, by Marc Bernstein, Special Deputy Attorney General, for the State.

Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.

ZACHARY, Judge.

Where the trial court instructed the jury to disregard any testimony from any witness concerning the results of a blood test, any error in introducing said testimony was rendered harmless. Where evidence other than said testimony connected defendant with the crime scene, the introduction of said testimony regarding blood test results was not prejudicial. Where evidence did not permit the jury to acquit defendant of first-degree murder and convict him of second-degree murder, the trial court did not err in declining to instruct the jury on second-degree murder.

I. Factual and Procedural Background

On the morning of 24 May 2012, utility line repairmen discovered the body of a woman in a blood-soaked silver Oldsmobile, at the intersection of Camp Burton Road and Huffine Mill Road. They called 911. Investigating officers determined that the body was that of Glenda Carolina Magana, and that the cause of death was incised wounds to the neck. She also suffered multiple stab wounds to the chest and neck, cuts on her jaw and fingers, and bruises on her face, hands, and arms.

Magana was an employee at Garibaldi's Family Restaurant in Greensboro. On the night of 23 May 2012, Magana was at work. Miguel Nolasco (defendant) was there that night, and had invited several women working there to drink with him. The DJ at the time, Victor Chaves Zepeda (Meme), observed numerous interactions between Magana and defendant, including an angry Magana taking defendant's medallion from his neck.

On 25 May 2012, defendant, while working at Greensboro Auto Auction, received a phone call that Magana was dead. Sixto Rodriguez, defendant's coworker, contacted corrections officers to inform them that defendant, who knew Magana and had pictures of her on his cell phone, might be a person of interest.

Rodriguez' report was passed on to George Moore, the head of the Major Crimes Unit for the Guilford County Sheriff's Office. Moore called defendant on 25 May 2012 and asked to speak with him about Magana. Defendant told Moore that he had been at Garibaldi's on the night of 23 May 2012, that he was with Magana and others, that Magana had been behaving oddly, and that when Magana left, she was followed by a dark colored car.

On 27 May 2012, Moore went to speak with defendant at defendant's residence. The interview, conducted in Spanish, was recorded, and a transcript translated into English was provided at trial. Defendant told Moore that he had spoken with Magana on 23 May 2012, and that she had said that she had a falling out with someone on Facebook, and that she would tell him about it that night at Garibaldi's. At Garibaldi's that night, she was angry with him, and left; nobody knew why. Defendant told Moore that he saw Magana leave Garibaldi's around 2:30 a.m., followed by a dark colored car. He called her several times and told her to wait for him, sending her a text as late as 4:00 a.m. Defendant claimed that he received no response.

At the end of the interview, Moore asked defendant if they could search his white Suburban SUV for blood. Defendant consented, and police searched the vehicle. The police found that the vehicle had not been cleaned in a while, and did not notice anything incriminating.

On 31 May 2012, police again interviewed defendant, this time at his place of work. Detective David Lyndrup, who was fluent in Spanish, conducted the interview, which was substantially the same as the first. Detective Lyndrup accused defendant of not telling the truth, and told defendant that police had forensic evidence that proved that defendant killed Magana. Detective Lyndrup asked why defendant would be following Magana, and told defendant that police had video showing defendant's Suburban SUV following Magana's car. Defendant admitted that he made up part of his story because he believed that, based on an argument he had with Magana at Garibaldi's, police would try to pin the murder on him. Defendant further admitted that he followed Magana, but asserted that he became annoyed when she turned in a different direction than he anticipated, and that he left and went home.

Defendant was arrested for Magana's murder. He was taken to a hospital where a nurse collected samples of head hair, pubic hair, and cheek swabbings pursuant to a warrant. Warrants to search his residence and Suburban SUV were also executed. Several items were seized from defendant's residence, including a pair of men's shoes and a belt. Preliminary tests revealed the presence of blood.

On 16 July 2012, the Guilford County Grand Jury indicted defendant for the first-degree murder of Magana. On 23 June 2014, the Grand Jury indicted defendantfor the felony murder of Magana's unborn child. This latter charge was subsequently dismissed.

At trial, Rodriguez testified for the State that he had a later conversation with defendant about Magana, in which defendant stated that Magana was a bit drunk, so he went looking for her, and found her slumped over her steering wheel. According to Rodriguez, when defendant pulled her head back, he saw the stab wounds and left the scene. Another witness, Wade Hampton Griffin, described Rodriguez as a person who embellishes stories.

Lamont Prysock was a delivery man who drove a route that included the location where Magana's body was found. Prysock testified that he had seen a large white SUV, like the vehicle that defendant drove, and a four-door sedan along that road. He saw the SUV, driven by a man, pull onto the road, but did not see the sedan, driven by a woman with long brown hair, move.

The jury was shown a surveillance video from a storefront, showing passing traffic between midnight and 5:00 a.m. on 24 May 2012. At 2:43 a.m., the video showed a car passing, and another following ten seconds later.

Latent prints were collected from Magana's vehicle. A fingerprint outside of the driver's door was identified as coming from defendant.

On 22 January 2015, the jury found defendant guilty of first-degree murder. On 23 January 2015, the trial court sentenced defendant to life imprisonment without parole.

Defendant appeals.

II. Blood Evidence

In his first argument, defendant argues that the trial court erred by admitting evidence of the presence of blood. We disagree.

A. Standard of Review

"[T]he trial judge is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony." State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). "The trial court's decision regarding what expert testimony to admit will be reversed only for an abuse of discretion." State v. Alderson, 173 N.C. App. 344, 350, 618 S.E.2d 844, 848 (2005).

B. Analysis

Defendant contends first that forensic examiners who testified concerning the blood found on his shoes and belt were not tendered as experts, and thus their testimony was lay, and second that the test itself was merely preliminary, did not identify the blood, and had the potential for false positives.

Assuming, arguendo, that this evidence was improper, either due to a failure to tender expert testimony or the lack of sufficient basis for the tests, this error wascured by the trial court's instruction to the jury. Pursuant to defendant's motion, the trial court instructed the jury that it may not consider any testimony regarding the results of blood testing, from any witness, in its deliberations. "Generally, when a trial court properly instructs jurors to disregard incompetent or objectionable evidence, any error in the admission of the evidence is cured." State v. Gayles, ___ N.C. App. ___, ___,756 S.E.2d 46, 53 (2014) (quoting State v. Diehl, 147 N.C. App. 646, 650, 557 S.E.2d 152, 155 (2001), cert. denied, 356 N.C. 170, 568 S.E.2d 624 (2002)). Because the trial court instructed the jury to disregard any testimony from any witness concerning the results of the blood tests, we hold that the admission of such evidence, if error, was harmless.

Further, this instruction was specifically requested and approved by defendant. Defendant now asserts that, with the exclusion of the results of the test, the trial court still committed error in permitting the jury to consider the fact that the test was performed at...