State v. Miller, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020)

After the defendant’s wife left him due to his drinking and violence, the defendant committed a number of threatening and destructive acts towards her that culminated in the defendant shooting his estranged wife twice in the head outside her work. The victim survived and called 911, and the defendant was arrested in the woods nearby a few hours later. The defendant was indicted for attempted first degree murder, assault with a deadly weapon with intent to kill, and possession of a firearm by a felon. The defendant was convicted of all charges, sentenced to consecutive terms of 207-261 months and 96-128 months in prison, and raised three arguments on appeal.

First, the defendant argued that the trial court committed plain error by admitting a cell phone video of him kicking a dog, claiming it was irrelevant, prejudicial, and improper character evidence. Since the defendant did not object to the video at trial, the appellate court only considered whether admission of the video rose to the level of plain error. Viewed in context, the video was insignificant when compared to the other overwhelming evidence of defendant’s guilt, such as witness testimony about his prior threats against the victim, his prior possession and use of a firearm that matched the one used to shoot his wife, his arrest nearby shortly after the shooting, matching ammunition found on his person when he was arrested, and the statements he made during his arrest. Therefore, the court held that it was not plain error to admit the video, since the defendant could not show that he was prejudiced by its admission even if it was error.

Next, the defendant argued that the trial court erred by allowing opinion testimony from the state’s firearms and ballistic expert, contending that it was not based on reliable principles or methods applied to the facts of the case. At trial and again on appeal, the defendant cited to studies and cases from other jurisdictions disputing the reliability of ballistics identification. The appellate court affirmed the trial court’s decision, and held that the evidence was properly admitted under Rule 702 based on the extensive voir dire of the witness which showed that her testimony was based on sufficient facts and data, was the product of reliable principles and methods, and those principles and methods were applied to the facts of the particular case. The appellate court stressed that its role was only to review the trial court’s decision under an abuse of discretion standard, and the record demonstrated that the lower court’s decision on this issue was reasoned and not arbitrary. Moreover, as in the first argument, even if it was error, the defendant could not show prejudice due to the overwhelming evidence of his guilt even without the challenged testimony.

Finally, the defendant argued that it was error to give a jury instruction on flight under the facts of this case, but the appellate court again disagreed. The court acknowledged that mere evidence of leaving the scene is not enough to support the instruction; there must also be some evidence of taking steps to avoid apprehension, but that evidence was present in this case. After shooting his wife, the defendant did not go home but was instead found five hours later near a wooded area. When the defendant and officers saw each other, the defendant entered the woods twice and a K-9 unit had to search for the defendant, eventually finding him curled up in a ball behind a large tree. Viewed in the light most favorable to the state, there was at least some evidence reasonably supporting the theory that the defendant fled.

Judge Zachary concurred with two of the majority’s conclusions, but dissented as to the admission of the forensic firearms expert testimony based on the dispute regarding the error rate and reliability of the analysis.