State v. Morrow

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2014
• Docket: 13-1282
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA13-1282 NORTH CAROLINA COURT OF APPEALS Filed: 15 July 2014

STATE OF NORTH CAROLINA

Haywood County v. No. 10 CRS 53914; 53922

MICHAEL DAVID MORROW

Appeal by defendant from judgments entered 28 March 2013 by

Judge Bradley B. Letts in Haywood County Superior Court. Heard

in the Court of Appeals 4 March 2014.

Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for Defendant.

ERVIN, Judge.

Defendant Michael David Morrow appeals from judgments

sentencing him to a term of life imprisonment without the

possibility of parole and a consecutive term of eight to ten

months imprisonment based upon his convictions for first degree

murder and possession of a firearm in violation of a domestic

violence protective order. On appeal, Defendant contends that

the trial court erred by permitting Sylvia Donahoe to testify -2- that Defendant was not impaired when she saw him on the evening

of the events underlying the charges that had been lodged

against Defendant. After careful consideration of Defendant’s

challenge to the trial court’s judgments in light of the record

and the applicable law, we conclude that the trial court’s

judgments should remain undisturbed.

I. Factual Background

A. Substantive Facts

Defendant and Amanda Smith Morrow were married on 5

December 2009. After the couple had lived together for a brief

period of time, Ms. Morrow obtained a restraining order against

Defendant in February 2010. After moving out of the marital

residence, Defendant stayed in a cinder block structure located

on his father’s property. In spite of the fact that Defendant

and Ms. Morrow lived separately from February 2010 through

October 2010, the two of them continued to see each other.

During this period, Ms. Morrow allowed the restraining order

that she had obtained against Defendant to lapse. Although Ms.

Morrow repeatedly asked Defendant to sign a separation

agreement, she never actually gave such an agreement to

Defendant for his signature.

On 15 October 2010, Defendant and Ms. Morrow planned to

attend a high school football game. In the period of time -3- leading up to the game, the two of them exchanged dozens of text

messages. After arriving at the stadium with her friend, Deanna

“Dedy” Wayman, at 5:15 p.m., Ms. Morrow and Ms. Wayman “just sat

and talked” until the game began at 7:30 p.m. At approximately

6:30 p.m., Defendant and Glenn Surrett purchased a pint of Crown

Royal, with Defendant having consumed the entire bottle by the

time the football game began. During the game, Defendant sat

behind Ms. Morrow while accusing her of texting other men. Ms.

Morrow denied Defendant’s accusations.

Following the game, Defendant argued with Ms. Morrow at her

car before returning to the location where Mr. Surrett; Mr.

Surrett’s sister, Ms. Donahoe; and Ms. Donahoe’s children were

waiting. Although Ms. Donahoe smelled alcohol on Mr. Surrett,

she did not make the same observation about Defendant.

According to Ms. Donahoe, Defendant, who appeared to be angry,

was able to walk up a grassy hill without assistance. After

taking Mr. Surrett home, Defendant drove to Ms. Morrow’s

residence.

In the meantime, Ms. Morrow had returned to her parents’

house and asked them for money for use in obtaining a divorce.

A few minutes after she left her parents’ home at approximately

12:00 a.m., Ms. Morrow called her mother to tell her that, when

she reached home, Defendant was blocking her driveway. However, -4- the call that Ms. Morrow had placed to her mother was

disconnected before the completion of their conversation due to

an apparent altercation with Defendant.

According to a statement that Defendant made to

investigating officers, Defendant and Ms. Morrow began arguing

after she reached home and discovered that Defendant was

present. As the argument progressed, Defendant struck Ms.

Morrow. Although Defendant began strangling Ms. Morrow, she

eventually broke free and ran to a nearby bridge. After chasing

Ms. Morrow to the bridge and struggling with her at that

location, Defendant returned to his car for the purpose of

leaving. As Ms. Morrow walked back towards her home, Defendant

grabbed his gun and confronted her on the front porch of her

neighbor, Robert Brown. After choking and shooting his wife,

Defendant left her body lying on Mr. Brown’s front porch.

Although Mr. Brown heard screams and a gunshot during the night,

he did not investigate the source of those noises. After

assaulting Ms. Morrow, Defendant drove to his father’s house,

where he switched vehicles, and then to a Walmart, where he

purchased Tylenol PM and Nyquil.

At approximately 12:45 a.m., deputies of the Haywood County

Sheriff’s Office responded to a 911 call that had been placed by

Ms. Morrow’s parents. Although the responding deputies saw that -5- Ms. Morrow’s car had been pulled partially into her driveway,

they did not see Defendant’s vehicle and could not locate anyone

else in the immediate area.1

At approximately 6:00 a.m., investigating officers arrived

at the residence of Defendant’s father. As they reached that

location, the investigating officers observed that Defendant’s

vehicle was parked in front of the cinder block building in

which he had been staying. After approaching the cinder block

building, the officers announced their presence and knocked on

the door for several minutes. As a result of the fact that

Defendant did not respond, his father offered to kick in the

door to the cinder block building for the purpose of allowing

the investigating officers to enter.

Upon entering the cinder block building, the investigating

officers found Defendant lying on a bed with a .32 revolver

adjacent to his left hand. The revolver, which contained four

bullets and one empty casing, was immediately seized by

investigating officers. In response to an inquiry concerning

Ms. Morrow’s whereabouts, Defendant said that he “done what [he]

done.” As a result of the fact that he appeared to be impaired,

although he did not smell of alcohol, the investigating officers 1 A number of other officers believed that they had seen a vehicle that resembled the one that Defendant had been driving travelling in the opposite direction as they approached Ms. Morrow’s residence. -6- had Defendant transported to the hospital. A blood sample taken

from Defendant at the hospital tested positive for Tylenol PM

and negative for alcohol.

At approximately 8:10 a.m., Ms. Morrow’s body was

discovered on Mr. Brown’s porch. An examination of Ms. Morrow’s

body revealed the presence of blunt force injuries and

lacerations and bruises to her face, neck, chest, left arm, and

back; a fractured hyoid bone; and a gunshot wound to her right

temple. Ms. Morrow died as the result of manual strangulation

and the gunshot wound that she had sustained to her head. The

gunshot wound to Ms. Morrow’s head resulted from the impact of a

bullet fired from the .32 revolver that had been seized from

Defendant.

After Defendant was taken to the hospital, investigating

officers searched the cinder block house and Defendant’s

vehicle. During the course of that search, investigating

officers found a box of .32 shells, a Walmart bag containing

Nyquil and Tylenol PM, and a domestic violence protective order

that was in effect from 1 October 2010 through 16 September

2011, which had been obtained by Defendant’s ex-wife, Lauren

Burress, and which prohibited Defendant from possessing any

firearms. -7- According to Dr. Wilkie Wilson, Jr., a neuropharmacologist,

Defendant would have had a blood alcohol content of .12 at the

time that he killed Ms. Morrow in the event that he had consumed

a pint of Crown Royal at the time described by Mr. Surrett. In

addition, Dr. George Corvin, an expert in forensic psychiatry,

opined that personality pathologies, stress, and “acute alcohol

intoxication”2 would have diminished Defendant’s ability “to act

with reasoned contemplation” and to refrain from acting on

impulse at the time of Ms. Morrow’s murder. On the other hand,

Dr. Nicole Wolfe, a forensic psychiatrist, testified that

Defendant was malingering, that he did not suffer from a severe

mental disease or defect, and that he was not “so intoxicated”

as to be unable to make or carry out plans at the time that he

killed Ms. Morrow.

B. Procedural Facts

On 16 October 2010, a warrant for arrest charging Defendant

with possessing a firearm in violation of a domestic violence

protective order was issued. On 17 October 2010, a warrant for

arrest charging Defendant with murdering Ms. Morrow was issued.

On 16 December 2010, the Haywood County grand jury returned

bills of indictment charging Defendant with possession of a

2 The acute alcohol intoxication determination upon which Dr. Corvin’s opinion was based stemmed, in part, from the .12 blood alcohol level determined by Dr. Wilson. -8- firearm in violation of a domestic violence protective order and

murder. The charges against Defendant came on for trial before

the trial court and a jury at the 4 March 2013 criminal session

of the Haywood County Superior Court. On 28 March 2013, the

jury returned verdicts convicting Defendant of possession of a

firearm in violation of a domestic violence protective order and

first degree murder. At the conclusion of the ensuing

sentencing hearing, the trial court entered judgments sentencing

Defendant to a term of life imprisonment without the possibility

of parole based upon Defendant’s conviction for first degree

murder and to a consecutive term of eight to ten months

imprisonment based upon Defendant’s conviction for possession of

a firearm in violation of a domestic violence protective order.

Defendant noted an appeal to this Court from the trial court’s

judgments.

II. Legal Analysis

In his sole challenge to the trial court’s judgments,

Defendant contends that the trial court erred by allowing Ms.

Donahoe to testify that Defendant did not appear to be impaired

when she saw him. More specifically, Defendant contends that

the State failed to lay a sufficient foundation to support the

admission of this testimony given Ms. Donahoe’s concession that

she had not been sufficiently close to Defendant to determine -9- whether there was an odor of alcohol about him and given that

the additional information available to Ms. Donahoe did not

suffice to provide her with an adequate basis for expressing an

opinion concerning Defendant’s level of sobriety. Defendant is

not entitled to relief from the trial court’s judgments on the

basis of this argument.

A. Standard of Review

Although both parties appear to agree that Defendant’s

challenge to the trial court’s judgments is subject to plain

error review, their agreement to that effect rests upon a

misunderstanding about the effect of the lodging of a general,

rather than a specific, objection. The testimony upon which

Defendant’s challenge to the trial court’s judgments rests was

given in response to a prosecutorial question posed to Ms.

Donahoe inquiring if, “[a]t any time[,] did [Defendant] seem

like he was impaired to you?” After the trial court overruled

Defendant’s objection, which did not include any reference to a

specific basis for excluding the challenged testimony, Ms.

Donahoe responded in the negative on the grounds that, “when I

was ever around him, he was always by himself” and “didn’t talk

much.” As a result, Defendant lodged a general, rather than a

specific, objection to the admission of Ms. Donahoe’s answer to

the prosecutor’s question. -10- According to well-established North Carolina law, “a

‘general objection, if overruled, is no good, unless, on the

face of the evidence, there is no purpose whatsoever for which

it could have been admissible[,]’” while “‘[a] specific

objection, if overruled, will be effective only to the extent of

the grounds specified.’” State v. Ward, 301 N.C. 469, 477, 272

S.E.2d 84, 89 (1980) (quoting 1 Stansbury’s North Carolina

Evidence § 26 (Brandis Rev. 1973)). In light of that basic

principle, Defendant is entitled to appellate relief from the

trial court’s decision to overrule his objection to the question

that elicited the challenged testimony in the event that there

was no purpose for which Ms. Donahoe’s answer to that question

could have been admitted into evidence. Moreover, given that

the essential argument advanced in Defendant’s brief rests upon

the assertion that the challenged portion of Ms. Donahoe’s

testimony constituted inadmissible lay opinion testimony and

given that there is no purpose for which inadequately supported

lay opinion testimony would be admissible, Defendant’s general

objection to the prosecutor’s question sufficed to preserve his

challenge to the admission of Ms. Donahoe’s testimony for

appellate review.

“[W]hether a lay witness may testify as to an opinion is

reviewed for abuse of discretion.” State v. Washington, 141 -11- N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review

denied, 353 N.C. 396, 547 S.E.2d 427 (2001). An “[a]buse of

discretion results where the court’s ruling is manifestly

unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.” State v. Hennis, 323

N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Thus, the ultimate

issue raised by Defendant’s challenge to the trial court’s

judgments is whether the trial court abused its discretion by

overruling Defendant’s objection to the question that sought to

elicit Ms. Donahoe’s testimony concerning the extent of

Defendant’s impairment on the night of Ms. Morrow’s murder.

B. Admissibility of Ms. Donahoe’s Testimony

If the witness is not testifying as an expert his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

N.C. Gen. Stat. Ann. § 8C-1, Rule 701. In light of that basic

principle, “a lay person may give his opinion as to whether a

person is intoxicated so long as that opinion is based on the

witness’s personal observation.” State v. Rich, 351 N.C. 386,

398, 527 S.E.2d 299, 306 (2000). Thus, in order for the trial

court to have properly admitted Ms. Donahoe’s opinion concerning

the extent, if any, to which Defendant was impaired on the night -12- of the murder, the record was required to have contained

sufficient evidence to permit a determination that Ms. Donahoe

had an adequate basis for expressing an opinion concerning that

issue. State v. Norman, 213 N.C. App 114, 119-20, 711 S.E.2d

849, 854-55, disc. review denied, 365 N.C. 360, 718 S.E.2d 401

(2011).

The initial problem with Defendant’s argument is that, when

read in context, Ms. Donahoe does not appear to have actually

expressed an opinion about the extent of Defendant’s impairment.

The specific question that the prosecutor posed to Ms. Donahoe

allowed for the possibility that Ms. Donahoe did not have an

opinion about the issue. In light of the fact that Ms. Donahoe

explained her negative response to the prosecutor’s question by

stating that, “when I was ever around him, he was always by

himself” and “didn’t talk much;” the fact that Ms. Donahoe’s

statement makes little sense when treated as an explanation for

an opinion about the extent of Defendant’s impairment; and the

fact that Ms. Donahoe’s statement makes perfect sense as an

explanation for the fact that she had no opinion concerning that

issue, we are inclined to believe that, rather than expressing

an opinion concerning the extent of Defendant’s impairment, Ms.

Donahoe was actually saying that she did not have an opinion

concerning that subject. Assuming that Ms. Donahoe did not -13- express an opinion about the level of Defendant’s impairment on

the night of Ms. Morrow’s murder, we are unable to see how the

admission of the challenged portion of her testimony had any

prejudicial effect. N.C. Gen. Stat. § 15A-1443(a) (providing

that “[a] defendant is prejudiced by errors relating to rights

arising other than under the Constitution of the United States

when there is a reasonable possibility that, had the error in

question not been committed, a different result would have been

reached at the trial out of which the appeal arises”).

Moreover, to the extent that the challenged portion of Ms.

Donahoe’s testimony does, in fact, embody the expression of an

opinion concerning the level of Defendant’s impairment, we

believe that the trial court would not have abused its

discretion by allowing the admission of that testimony. The

undisputed record evidence reflects that Ms. Donahoe knew

Defendant and had interacted with him in the past in connection

with their joint involvement with a dance team. On the night of

Ms. Morrow’s murder, Ms. Donahoe observed Defendant walking in

an unassisted manner up a grassy hill without slipping or

falling. Although she had a brief conversation with Defendant,

Ms. Donahoe did not indicate that his speech was slurred or that

he spoke in an incoherent manner. Simply put, given the level

of contact between Ms. Donahoe and Defendant on the night in -14- question, we are unable to say that the trial court abused its

discretion by allowing Ms. Donahoe to express an opinion

concerning the level of Defendant’s impairment. As a result,

Defendant is not entitled to relief from the trial court’s

judgments as the result of the admission of the challenged

portion of Ms. Donahoe’s testimony.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgments

have merit. As a result, the trial court’s judgments should,

and hereby do, remain undisturbed.

NO ERROR.

Judges MCGEE and STEELMAN concur.

Report per Rule 30(e).