State v. Gallion, ___ N.C .App. ___, 2022-NCCOA-164 (Mar. 15, 2022)

In this first-degree murder case, the defendant challenged (1) the validity of a search warrant for his home; (2) the trial court’s refusal to suppress electronic monitoring data from a GPS unit the defendant was wearing at the time of the offense; (3) the trial court’s refusal to allow him to cross examine a witness on a particular issue; (4) the admission of expert testimony concerning firearms identification and examination: (5) the trial court’s denial of his motion to dismiss the murder charge.  The Court of Appeals rejected each of the defendant’s arguments and upheld his conviction.

(1) The court rejected the defendant’s argument that a search warrant for his home address was defective because of an insufficient nexus between the murder, the evidence sought, and the defendant’s address.  The court noted, among other things, that the search warrant affidavit explained that officers looking through a window had seen bullets on a shelf inside a building at the defendant’s address, that firearms were found in the defendant’s truck when he was arrested, and that there were blood smears on the defendant’s truck and his hands when he was arrested.  The allegations in the warrant affidavit were sufficient for a magistrate to reasonably infer that the items sought under the warrant, such as weapons, ammunition, bloodstains, and DNA evidence, likely could be found at the defendant’s residence.  The court also determined that the trial court’s findings of fact related to the defendant’s motion to suppress supported the trial court’s conclusion that there was probable cause to support the issuance of the warrant.

(2) The Court of Appeals determined that no plain error occurred in connection with the trial court refusing to suppress electronic monitoring data from a GPS device the defendant was wearing at the time of the offense because was on post-release supervision.  Among other things, the court noted that the defendant moved to suppress the data under G.S. 15A-974(a)(2) as a substantial violation of Chapter 15A while alleging that the evidence was obtained in violation of G.S. 15-207.  The court explained that G.S. 15A-974(a)(2) “does not provide a mechanism by which [the defendant] could allege evidence was obtained as a result of a substantial violation of Chapter 15.” 

(3) The Court of Appeals rejected the defendant’s argument that he should have been allowed to cross-examine a witness a witness concerning a Facebook message that the victim sent his mother on the day of the murder suggesting that the victim, who was killed in his home, planned to go somewhere else to fight an unknown person.  The trial court properly excluded the testimony on hearsay grounds, and, given that the message did not point directly towards the guilt of another party, the Court of Appeals concluded that it was “too remote and speculative to be relevant.”

(4) The court next rejected the defendant’s challenge to expert firearm identification evidence, which it examined for plain error because of the defendant’s failure to object to the admission of the testimony at trial.  Conducting a detailed Rule 702 analysis and recounting significant portions of the expert’s testimony, which generally opined that casings and bullets collected from the crime scene were fired from a pistol seized from the defendant, the court determined that the testimony was based on sufficient facts or data and was the product of reliable principles and methods which the expert applied reliably to the facts of the case, as required under Rule 702.

(5) Finally, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the first-degree murder charge on the basis of insufficient evidence of malice, premeditation, and deliberation or that the defendant was the perpetrator.  The court found that the defendant had both the opportunity and the capability to commit the murder, as evidenced by GPS data placing him at the crime scene and witness testimony that on the day in question the defendant brandished a firearm matching the murder weapon.  Evidence tending to show that the defendant fired three shots into the victim’s head, two of which were from close range, was sufficient on the issues of malice and premeditation and deliberation.

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