State v Britt
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NO. COA11-311 NORTH CAROLINA COURT OF APPEALS Filed: 6 December 2011 STATE OF NORTH CAROLINA v. Robeson County No. 03 CRS 56540 MYRON KEITH BRITT, Defendant. Appeal by defendant from judgment entered 30 July 2009 by Judge Gregory A. Weeks in Robeson County Superior Court. Heard in the Court of Appeals 7 November 2011. Roy Cooper, Attorney General, by John G. Barnwell, Assistant Attorney General, and Robert C. Montgomery, Special Deputy Attorney General, for the State. David L. Neal, for defendant-appellant. MARTIN, Chief Judge. Defendant appeals from a judgment entered upon a jury verdict finding him guilty of the first-degree murder of his wife, Nancy Melton Britt, imprisonment without parole. and sentencing him to life We find no error in his trial. The evidence at trial tended to show that defendant and Nancy Britt were married in 1976, and lived in Lumberton until 1992 when they moved to Cary. Nancy Britt was a teacher and -2defendant was a licensed contractor who had his own business, Britt Home Builders. Lumberton, Judy Nancy Britt had two sisters who lived in Ivey and Donna Madrey. Donna Madrey was severely disabled, requiring full-time care, due to an aneurysm and stroke suffered at some time in the past; Judy Ivey was her caretaker. On the evening of 22 August 2003, Nancy Britt drove to Lumberton to care for Ms. Madrey while Ms. Ivey traveled out of town for the weekend. and Ms. Ivey left Nancy Britt arrived at about 6:50 p.m. shortly thereafter. Ms. Ivey spoke by telephone with Nancy Britt about 10:00 p.m. that evening. Sometime after 3:00 a.m. on 23 August 2003, Lumberton 911 received a call from Ms. Ivey s residence; the caller was unable to communicate. Lumberton Police officers responded and found the rear entrance open, heard Ms. Madrey inside saying help, hurt, help, hurt, and then discovered Nancy Britt s body lying in a hallway. abdomen. She had been shot one time in the upper right The officers found a single, spent .25 caliber shell casing on the floor of the bedroom in which Nancy Britt was staying. The officers found no evidence of forced entry and the contents of the house did not appear to have been disturbed. Nancy Britt was still wearing her jewelry; her pocketbook and cell phone were still in the bedroom. Ms. Madrey was unable to -3provide any information as to what had happened. At autopsy, a .25 caliber Winchester expanding metal point bullet and fragment were recovered from Nancy Britt s body. The State also produced evidence that defendant had borrowed a .25 caliber semi-automatic pistol from his brother, Dickie Britt, approximately death. After Nancy Britt s death, Dickie Britt called defendant and asked about the gun. five weeks before Nancy Britt s Defendant told Dickie that the gun was in a safe place and, when Dickie suggested he turn it over to law enforcement to exonerate would have to think about it. himself, defendant said he Dickie Britt then told law enforcement officers about the gun and related an incident which had occurred about two years previously when the gun had accidentally discharged at their mother s home and the bullet had lodged in a baseboard. The bullet, a .25 caliber Hornady, jacketed, hollow point bullet, was recovered from the baseboard by agents of the State Bureau of Investigation and Lumberton police officers. When officers he was shortly interviewed after Nancy initially Britt s by death, law enforcement defendant denied that either he or Nancy had a gun or had ever had a gun in their house; he also denied that he had any financial problems. After -4receiving the information about the gun from Dickie Britt, Agent Trent Bullard of the interviewed defendant. State Bureau of Investigation again Defendant again denied having a gun, but when confronted with his brother s statement, defendant admitted having gotten the gun from Dickie, but told Agent Bullard that he had thrown it in Jordan Lake the very next day after getting it from Dickie. Scuba divers searched the area of the lake in which said defendant firearms. metal point A he had live, unfired cartridge was thrown .25 the caliber found under gun, but found Winchester the no expanding driver s seat of defendant s automobile during a search by S.B.I. agents on 4 September 2003. S.B.I. Agents Theresa Tanner and Peter Ware, both of whom were permitted to testify as expert witnesses in forensic firearms identification, conducted independent examinations of the bullet taken from Nancy Britt s body and the bullet taken from the baseboard of defendant s mother s house. Based upon the lands and grooves in each bullet, as well as individual microscopic striations and marks present on both of them, both agents reached independent opinions that the bullets had been fired by the same firearm. -5The State also offered evidence tending to show that as early as 1998 difficulties or and, 1999, around defendant that time, experienced wrote a financial letter to an acquaintance regarding his substantial financial losses in the stock market and his dire personal financial situation. was also evidence tending to show that defendant There submitted altered federal and state income tax returns for the Britts personal taxes and those of his company to BB&T in connection with an application for a loan in December 2002, which substantially increased the mortgage indebtedness on their home. Defendant also took out life insurance policies on Nancy s life totaling $815,000, including a $325,000 policy in 1998, and a $400,000 policy in May 2003, less than four months before her death. Defendant was the named beneficiary of each of the policies. Defendant offered evidence through a financial analyst that Britt Home Builders was a viable business which earned a profit in all but two years of its existence. Through Nancy s teaching income and defendant s draws from the business, the couple had sufficient income to meet their obligations, enjoyed good credit, and had $34,000 in the bank and $200,000 equity in their home. He also offered evidence tending to show that he and -6Nancy had a good marriage and seemed happy; no one who testified had noticed anything out of the ordinary during the summer of 2003. On the night of 22 August, the Britts daughter had driven defendant s automobile to babysit and returned home about 11:00 p.m. When she arrived, defendant was watching television; she went to bed and did not hear the garage door open or her father leave after that. The teenage daughter of the Britts next door neighbor was hosting a sleep-over that night; she and her guests were up most of the night in a room across from the Britt s garage. They did not hear the garage door open or close and did not see anyone come or go from the Britt residence. Defendant also offered the testimony of John Dillon, a former chief of the F.B.I. s firearms and toolmark unit, and William Conrad, a private consultant on firearms identification, both of whom were permitted to testify as experts in the field of firearms examination. Both witnesses testified that they examined the bullet removed from Nancy Britt s body, compared it to the bullet recovered from defendant s mother s home, and found there were insufficient microscopic points of comparison between the two bullets to conclude they had been fired from the same gun. -7Prior to trial, defendant moved in limine to exclude Agent Tanner and Ware s firearm identification testimony. After a pretrial hearing, the trial court denied the motion, but stated that, in its discretion, it would limit any testimony by the State s witnesses to statements that the bullets were consistent, rather than that they had been fired from the same weapon to the exclusion of all others. At trial, however, after defense counsel stated in his opening statement that defendant s experts would testify as to their opinion that you cannot make a match, that there [are] simply not enough points of comparison on the two bullets, the trial court reversed its earlier ruling in limine and permitted the State s experts to testify to their opinions that both bullets were fired from the same gun. _________________________ On appeal, defendant contends the trial court improperly admitted (I) the expert testimony of S.B.I. Agents Tanner and Ware, and (II) evidence of defendant s financial situation. We disagree. I. Defendant contends the trial court erred when he reversed his ruling on the motion in limine testimony of Agents Tanner and Ware. that limited the expert Defendant argues that the -8firearm identification unreliable and they procedures were used unqualified by agents testify to the as were expert witnesses. A motion in limine seeks pretrial determination admissibility of evidence to be introduced at trial. of the Hamilton v. Thomasville Med. Assocs., Inc., 187 N.C. App. 789, 792, 654 S.E.2d 708, 710 (2007). The decision of whether to grant [a motion in limine] rests in the sound discretion of the trial judge. State v. Hightower, 340 N.C. 735, 746-47, 459 S.E.2d 739, 745 (1995). A trial court has discretion to determine whether to exclude evidence that could confuse or mislead the jury, and the trial judge s ruling may be reversed for an abuse of discretion only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision. State v. Rupe, 109 N.C. App. 601, 612, 428 S.E.2d 480, 487 (1993). supported Before trial, the court made findings of fact which admitting, but Agents Tanner and Ware. limiting, the expert testimony of Although the court found the testimony sufficiently reliable and the experts qualified, it prohibited them from testifying the bullets were fired from the same weapon to the exclusion of all others. After defense counsel s opening statement, however, the court reversed its ruling, finding it -9would not be agents to weapon, unfairly prejudicial or misleading state in that light the of the bullets projected were fired testimony for the two from of the the same defense experts that there was insufficient evidence of a match. Reversing its ruling on the motion in limine was not an abuse of discretion because the court evaluated the evidence prior to trial and found the experts methodology sufficiently reliable and the experts qualified. expert testimony is admissible To determine if proffered under North Carolina Rule of Evidence 702, a trial court must conduct a three-step inquiry to ascertain whether: (1) the expert s method of proof is reliable; (2) the witness presenting the evidence qualifies as an expert; and (3) the evidence is relevant. 359 N.C. 131, 160, 604 S.E.2d 886, State v. Morgan, 903-04 (2004). Here, defendant challenges only the first two prongs of this inquiry. First, defendant argues forensic toolmark identification, in general, is unreliable. In assessing reliability of an offered method of proof, a trial court should review precedent for guidance technical reliable. in determining methodology whether underlying an the theoretical expert s opinion or is Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 459, 597 S.E.2d 674, 687 (2004). Once the trial court determines the -10expert s methods are sufficiently reliable, any doubt as to the quality of the expert s conclusions go to the weight of the testimony S.E.2d rather at 688. than its Courts admissibility. in North Id. Carolina at 597 upheld have 461, the admission of expert testimony on firearm toolmark identification for decades. See, e.g., State v. Felton, 330 N.C. 619, 638, 412 S.E.2d 344, 356 (1992); State v. Anderson, 175 N.C. App. 444, 450, 624 S.E.2d 393, 398 (2006). Court, a revisited federal and district closely Although not binding on this court examined in the Massachusetts reliability recently of toolmark identification in United States v. Monteiro, 407 F. Supp. 2d 351, 372 (2006), and found the methodology reliable. trial court s sufficiently ruling reliable that was toolmark consistent Thus, the identification with precedent is and not if the manifestly unsupported by reason. The court may deviate from precedent, however, defendant offers new evidence challenging the reliability of the methodology. Howerton, 358 N.C. at 460, 597 S.E.2d at 687. In the instant case, however, defendant did not introduce any new or compelling evidence to the trial court. pretrial hearing, attorney for the State Id. During the asserted, [t]hey haven t presented any evidence regarding the unreliability of -11the firearm identification, to which the court responded, I agree with you on that. The court noted that it had read a lot of material [regarding firearm identification] because [it] knew this issue was coming up. The court, therefore, correctly followed precedent and admitted the expert testimony regarding toolmark analysis of ballistics. Defendant further argues Agents Tanner and Ware were not qualified to testify as expert witnesses based on a lack of evidence verifying Agent Tanner s training and a shared lack of credentials. For an expert witness to offer opinion testimony, he must have acquired such skill through study or experience so as to make him better qualified than the jury to form an opinion on the subject matter. State v. Alston, 294 N.C. 577, 584, 243 S.E.2d 354, 360 (1978). It is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist, licensed, or even engaged in a specific profession. State v. Evangelista, 319 N.C. 152, 163-64, 353 S.E.2d 375, 383 (1987). The State presented evidence of the qualifications experience of S.B.I. Agents Tanner and Ware hearing. and at the pretrial Although the State did not present verification of Agent Tanner s training, and neither Agent Tanner or Agent Ware -12were members of a professional organization, Agents Tanner and Ware explained how firearm toolmark identification works and how they conducted their investigations such that they were better qualified than the jury to form an opinion in the instant case. The trial court assessed all the evidence regarding the credentials and methodology of Agents Tanner and Ware and found them competent to testify as experts. Thus, the ruling was not manifestly unsupported by reason, and the trial court did not abuse its discretion by allowing Agents Tanner and Ware to testify. Defendant next contends that his attorney s statements, which opened the door to the admission of the testimony of Agents Tanner and Ware that the two bullets were fired from the same gun, amounted to ineffective assistance of counsel. To succeed in an ineffective assistance of counsel claim, defendant must first show that counsel functioning Constitution. counsel s made as errors the performance was so that serious counsel deficient, guaranteed counsel by meaning was the not U.S. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984); State v. Braswell, 312 N.C. 553, 56263, 324 S.E.2d 241, 248 (1985). Second, the defendant must show -13the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. In this case, defense counsel s use of the word match was not an attempt to mischaracterize defendant s evidence; rather, his words, when spoken to the jury, simply created an impression that the bullets did not come from the same gun. assertion allowed introduced, more defense persuasive counsel expert conducted examination of the State s experts. amplified instruction to the While this testimony a zealous to be cross Moreover, the court gave an jury, directing the jurors to consider the witness training, qualifications, and experience or lack thereof, as well as the reasons given for their opinion and the facts that support their opinion, in determining how much weight, if any, to give to the expert s testimony. counsel s statement performance was deficient, not so depriving guaranteed by the Constitution. not shown counsel was egregious as defendant to of Thus, render his counsel as Because we find defendant has deficient, we need not determine if defendant was prejudiced by his actions. II. Defendant also assigns error to the court s admission of several pieces of evidence related to his financial hardships -14and misconduct in the years preceding his wife s murder. Defendant first contends evidence of the false information submitted in his 2002 mortgage application was inadmissible character evidence and, relying on State v. al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002), too far removed from Nancy s death in both character and temporal proximity to be relevant in this case. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive . . . . N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009). Rule 404(b) is a general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, [applicable unless] its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). Our Court has held [we] review a trial court s determination to admit evidence under [Rule 404(b)] . . . for an abuse of discretion. State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907, appeal dismissed and disc. review denied, 360 N.C. 653, 637 S.E.2d 192 (2006). -15The trial court carefully examined the evidence, finding that defendant s action in submitting false information in the loan application was relevant to show motive, and admitted the evidence under North Carolina Rule of Evidence 404(b). seemingly unrelated, evidence of the when viewed Although conjunction with financial hardships, defendant s Britts in other fraudulent conduct in altering his tax returns supported the State s theory that defendant had a financial motive to murder his wife which grew over a period of several years. The trial court gave a limiting instruction to the jury, instructing it to consider the evidence only for purpose of motive. the trial court suppressed evidence of Furthermore, defendant s previous conviction for unrelated larceny charges in 1999, concluding it was duplicative prejudicial than of evidence probative. already The admitted court, therefore, and more properly exercised its discretion in admitting some 404(b) evidence and excluding other such evidence. Defendant next contends that a letter he wrote years before his wife s death to an acquaintance which detailed his financial hardships was more prejudicial than probative, and therefore, should not have been admitted into evidence. The court admitted the letter under Rule 401 and 403, and thus, its ruling will be -16given great deference on appeal. State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991). that which has any tendency, however Relevant evidence is slight, to make the existence of any fact of consequence to the determination of the action more evidence. or less probable than it would be without the N.C. Gen. Stat. § 8C-1, Rule 401 (2009); State v. Freeman, 313 N.C. 539, 546, 330 S.E.2d 465, 472 (1985). In criminal cases, every circumstance that is calculated to throw any light on the supposed Hamilton, 264 N.C. 277, crime is admissible. State v. 286-87, 141 S.E.2d 506, 513 (1965). Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger prejudice . . . or misleading the jury . . . . § 8C-1, Rule 403 (2009). such evidence. of unfair N.C. Gen. Stat. The jury is to determine the weight of Hamilton, 264 N.C. at 287, 141 S.E.2d at 513. The trial court admitted as relevant to a contested issue in the case: whether defendant s precarious financial situation, as detailed in the letter, motivated him to murder his wife. from each The court made a reasoned decision based on arguments party that the probative value of the evidence exceeded the prejudice to the defendant under Rule 403. particular, the letter contained statements disclosing In that -17defendant s wife was not aware of their financial problems, that he had very little money left in his trading account and for his son s college tuition, and that his business was encountering difficulty competing with national builders. These statements, viewed in conjunction with other evidence, support the State s theory that defendant had a financial motive to kill his wife. Thus, admitting the letter was not an abuse of discretion. No Error. Judges STROUD and ERVIN concur.
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