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					No. COA 05-847                         TWENTY-FIVE-B DISTRICT

                   NORTH CAROLINA COURT OF APPEALS

    ***********************************************

STATE OF NORTH CAROLINA          )
                                 )
          v.                     )
                                 )
JEREMY SCOTT STEELMON,           )
  Defendant.                     )
_________________________________)



   **************************************************
              APPELLANT-DEFENDANT’S BRIEF
   **************************************************
                        - i -

                        INDEX


Table of Authorities .........................ii

Question Presented ............................1

Statement of the Case .........................2

Statement of Grounds for Appellate Review .....3

Statement of the Facts ........................3

Argument ......................................7

 I.     The trial court erred by receiving
        Investigator Yoder as an expert in the
        field of death scene investigation when
        there was insufficient foundation to
        establish his qualification as an expert
        and by overruling Defendant’s objection to
        Investigator Yoder’s testimony regarding
        blood spatter and lividity when the
        testimony was an inadmissible opinion. .7

       A.   Standard of Review ..................7

       B.   Argument ............................8

 II.    Abandonment of Remaining Assignments of
        Error .................................12

Conclusion ...................................12

Certificate of Service .......................13
                        - ii -


                 TABLE OF AUTHORITIES



Cases


Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
  579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ........ 9

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597
  S.E.2d 674 (2004) .................................. 9

State v. Brackett, 55 N.C.App. 410, 285 S.E.2d 852,
  rev'd on other grounds, 306 N.C. 138, 291 S.E.2d 660
  (1982) ............................................. 9

State v. Brown, 314 N.C. 588, 336 S.E.2d 388 (1985)
  .................................................. 11

State v. Bullard, 312 N.C. 129, 322 S.E.2d 370 (1984)
  ................................................... 7

State v. East, 345 N.C. 535, 481 S.E.2d 652 (1997)
  .................................................. 11

State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995).. 9

State v. Israel, 353 N.C. 211, 539 S.E.2d 633 (2000) 11

State v. Ledford, 315 N.C. 599, 340 S.E.2d 309 (1986)
  .................................................. 11

State v. Mann, 355 N.C. 294, 560 S.E.2d 776 (2002).. 11

State v. Marecek, 152 N.C.App. 479, 568 S.E.2d 237
  (2002) ............................................ 11

State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976). 9


Statutes


N.C. Gen. Stat. § 7A-27(2004)........................ 3
                         -iii-

Rules


N.C. R. App. P. 28 (2004)........................... 12

N.C. R. Civ. P. 702 (2004)........................... 8
No. COA 05-847                            TWENTY-FIVE-B DISTRICT

                   NORTH CAROLINA COURT OF APPEALS

     ***********************************************

STATE OF NORTH CAROLINA          )
                                 )
          v.                     )
                                 )
JEREMY SCOTT STEELMON,           )
  Defendant.                     )
_________________________________)



                          QUESTION PRESENTED

I.     Whether the trial court erred by receiving Investigator
       Yoder as an expert in the field of death scene investiga-
       tion when there was insufficient foundation to establish
       his qualification as an expert and by overruling Defen-
       dant’s objection to Investigator Yoder’s testimony re-
       garding blood spatter and lividity when the testimony was
       an inadmissible opinion.
                              - 2 -



                      STATEMENT OF THE CASE

    During the Criminal Session of Catawba County Superior

Court, the Honorable David S. Cayer, Judge presiding, Defendant-

Appellant Jeremy Scott Steelmon was tried capitally by jury and

found guilty of First Degree Murder under the Felony Murder

Rule, Second Degree Burglary, and Entering a Vehicle with Intent

to Steal. (R. pp. 5-6.) At the beginning of the sentencing phase

of the trial, the State elected to forego the death penalty. (T.

Vol. 8, p. 3713, line 24-p. 3714, line 2.)

    Judge Cayer arrested judgment in the Second Degree Burglary

conviction, due to its being the felony underlying the First De-

gree Murder conviction. He found that Mr. Steelmon had a level

II prior record. Judge Cayer sentenced Mr. Steelmon to 45 days

on the charge of Entering a Vehicle with Intent to Steal and

life imprisonment on the charge of First Degree Murder. Mr.

Steelmon gave oral Notice of Appeal in open court immediately

after sentencing. (R. pp. 9-14.)

    The Clerk ordered the transcript on March 2, 2004. (R. p.

16.) The Court Reporter delivered the transcript to the attor-

neys of record on June 28, 2004. (R. p. 18.) The trial court and

the Court of Appeals extended the time to serve the Proposed

Record on Appeal until January 5, 2005. (R. pp. 23.) Counsel for

Defendant served the proposed Record on January 5, 2005. On Jan-
                              - 3 -


uary 24, 2005, she received a document from the State that the

parties agreed to include in the Record, which was then settled

by operation of law. (R. p. 24.)

     Counsel timely shipped the Record to the Court of Appeals

via UPS. When the printed record was not received after a leng-

thy time lapse, she contacted the Clerk of the Court of Appeals

and was told neither the eight volume transcript nor the Record

could be found. She immediately re-sent the Record on Appeal,

which was filed on June 30, 2005. The transcript was subsequent-

ly discovered in the Clerk’s office while counsel was in the

process of having it recopied for the Court. By order of the

Court of Appeals, the Record was deemed timely filed. (R. pp. 1

and 28.) The Record was docketed on June 30, 2005. (R. p. 1.)

The Clerk mailed the printed Record on Appeal on July 26, 2005.


            STATEMENT OF GROUNDS FOR APPELLATE REVIEW

     This appeal arises from the final judgment of the Superior

Court in a criminal matter following trial by jury. N.C. Gen.

Stat. § 7A-27(b)(2004) confers grounds for appellate review.


                     STATEMENT OF THE FACTS

     Hickory Police Investigator Brett Porter was on patrol on

July 20, 2001 when he was dispatched to 825 18th Street N.E., the

home of Jean Wolff. (T. Vol. 5, p. 2045, lines 12-25; p. 2049,

lines 24-25; p. 2054, lines 9-11; and p. 2091, lines 9-10.) He
                              - 4 -


arrived on the scene at approximately 10:27 p.m. and was met by

two neighbors. (T. Vol. 5, p. 2050, lines 11-22.) Officer Por-

ter, the neighbors, and a ride-along for the night walked down

the driveway at 825 18th Street N.E. to the back, where a car was

parked in a carport. (T. Vol. 5, p. 2051, lines 14-17) Looking

into the car, Officer Porter saw keys hanging in the ignition.

(T. Vol. 5, p. 2052, lines 21-23.)

     While Officer Porter was looking in the car, one of the

neighbors, Ms. Trudeau, opened the home’s back door. (T. Vol. 5,

p. 2052, line 25-p. 2053, line 2.) The officer joined her and

looked in the house through the open door. Inside, he saw a

purse with its contents spilled. He instructed everyone to stay

outside while he entered the home, announcing that he was a po-

lice officer and calling “Miss Jean.” (T. Vol. 5, p. 2053, lines

17-20.) As he moved into the house, Officer Porter noted an

overturned kitchen trash can, and then came upon the body of

Mrs. Wolff, lying on her side. After failing to locate a pulse,

Officer Porter left the house and called for emergency services

personnel and additional police officers, who responded a short

time later. (T. Vol. 5, p. 3055, lines 6-16 and p. 2056, line 8-

p. 2057, line 9.)

     Earlier that evening, Mrs. Wolff had been at church choir

practice, according to Judith Rion, a fellow choir member. Prac-

tice ended at 9:15 or 9:30. The members talked for a five or ten
                                 - 5 -


minutes before Mrs. Rion left. (T. Vol. 5, p. 2386, lines 10-

25.)

       Hickory Police Officer Norris Yoder was the crime scene in-

vestigator in Mrs. Wolff’s death. (T. Vol. 5, p. 2088, line 17-

p. 2089, line 7.) Entering the home through the back door, Of-

ficer Yoder saw, photographed, and then picked up several per-

sonal items scattered on the floor near a lady’s purse. (T. Vol.

5, p. 2107, line 12-p. 2018, line 4; and p. 2111, lines 14-18.)

Officer Yoder also saw and photographed Mrs. Wolff’s body. (T.

Vol. 5, p. 2114, lines 10-18.) He testified that she lay on her

left side in the middle of the kitchen floor with her left arm

straight out. She had a cut on her left wrist and there was a

small amount of blood on the floor under her wrist. A pair of

glasses was on the floor near her head and there was a small

blood stain on the floor immediately in front of her body. (T.

vol. 5, p. 2115, lines 11-23.)

       Over defendant’s objections, Officer Yoder was permitted to

testify as an expert witness as an expert in the field of death

scene investigation, and to express opinions about the time of

death and Mrs. Wolff’s position when her wrist was injured. (T.

Vol. 5, p. 2147, lines 17-23.) Officer Yoder testified that in

his opinion, Mrs. Wolff was lying on the floor when her wrist

was cut. He also testified that she had died several hours be-
                               - 6 -


fore she was found. (T. Vol. 5, p. 2148, line 8-p. 2149, line

9.)

      When he first arrived on the scene around 11:20 that night,

Officer Yoder walked around the house with his flashlight. He

saw some papers lying under the window on the front porch, but

did not pick them up. (T. Vol. 5, p. 2097, lines 7-16 and p.

2100, line 9-p. 2101, line 8.) When he returned to the items

later, he discovered they were bank receipts with the name “Je-

remy Steelmon” on them. Officer Yoder also found that the window

screen above the papers was cut on two sides and at the bottom.

(T. Vol. 5, p. 2152, lines 2-20.) Several days later, on July

26, Officer Yoder and four other officers went to a wooded area

near Mrs. Wolff’s home. In a clearing there, they found a key

ring with several keys and Allstate insurance papers. The papers

showed Jeremy Steelmon as the policy holder. (T. Vol. 5, p.

2165, line 24-p. 2171, line 2.)

      Christopher Ledford testified that he and defendant Jeremy

Steelmon were friends from 1999-2001. (T. vol. 5, p. 2289, lines

19-24.) Mr. Ledford was a supervisor at KFC in Catawba County at

the time of Mrs. Wolff’s death. (T. p. 2290, lines 15-25.) On

July 19, 2001, Mr. Steelmon came to KFC in the morning to eat.

He returned that afternoon to fill out a job application. Mr.

Ledford was there and saw him both times. The two young men also

spoke by phone around 10:30 or 11:00 that evening, when Mr.
                                  - 7 -


Steelmon phoned Mr. Ledford and asked if he could stay with him

that night. Mr. Ledford said no. (T. vol. 5, p. 2292, line 22–p.

2294, line 23.) In the early morning hours of July 20, Mr.

Steelmon again called Mr. Ledford, this time at his parents’

house. In the course of the forty-five minute conversation, Mr.

Ledford testified, Mr. Steelmon said that he had broken into an

old woman’s house and was going to rob it. (T. Vol. 5, p. 2295,

line 23–p. 2297, line 15.) A short time later, as Mr. Ledford

headed to his sister’s home in the early morning hours, Mr.

Steelmon called on his cell phone and said he had killed the old

woman by slitting her wrists. (T. Vol. 5, p. 2330, line 17-p.

2301, line 17.)




                                 ARGUMENT

I.   The trial court erred by receiving Investigator Yoder as an
     expert in the field of death scene investigation when there
     was insufficient foundation to establish his qualification
     as an expert and by overruling Defendant’s objection to In-
     vestigator Yoder’s testimony regarding blood spatter and
     lividity when the testimony was an inadmissible opinion.

          Assignment of Error No. 1
          T Vol. 5, p. 2146, line 14-17; p. 2147, line 17-23; p.
          2148, line 7-p. 2149, line 7.

     A.     Standard of Review

     A trial court’s decision to qualify a witness as an expert

is reviewed for abuse of discretion. State v. Bullard, 312 N.C.

129, 322 S.E.2d 370 (1984).
                              - 8 -


    B.   Argument

    Over the defendant’s objection, Officer Yoder was permitted

to testify as an expert in death scene investigation. In order

to establish the time of death, he testified that the lividity

of Mrs. Wolff’s body on the kitchen floor suggested that she had

been killed several hours earlier. The objectionable testimony

attempted to establish the time of Mrs. Wolff’s death and her

position when her left wrist was injured. (T Vol. 5, p. 2146,

line 14-17; p. 2147, line 17-23; p. 2148, line 7-p. 2149, line

7.) Officer Yoder was not properly qualified as an expert. Fur-

ther, the testimony went beyond the scope of the officer’s ex-

pertise and was therefore impermissible. The trial court abused

its discretion by qualifying Officer Yoder as an expert and per-

mitting him to offer an expert opinion regarding medical condi-

tions.

    The North Carolina Rules of Evidence provide:

    If scientific, technical or other specialized know-
    ledge will assist the trier of fact to understand the
    evidence or to determine a fact in issue, a witness
    qualified as an expert by knowledge, skill, expe-
    rience, training, or education, may testify thereto in
    the form of an opinion.

    N.C. R. Civ. P. 702(a) (2004).

The record in the present case shows that the officer’s opinion

testimony went beyond the bounds of his expertise. The matters
                              - 9 -


to which he testified were not within his area of specialized

knowledge, but medical matters.

    As a general rule, "[a]n expert witness is a person who is

better qualified than the jury to form an opinion from facts in

evidence." State v. Brackett, 55 N.C.App. 410, 416, 285 S.E.2d

852, 857, rev'd on other grounds, 306 N.C. 138, 291 S.E.2d 660

(1982). Our Supreme Court has declined to follow the federal

test regarding expert testimony, as set forth in Daubert v. Mer-

rell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,

125 L.Ed.2d 469 (1993). In Howerton v. Arai Helmet, Ltd., 358

N.C. 440, 463, 597 S.E.2d 674, 689 (2004), our Supreme Court

held that the admissibility of expert testimony under North Car-

olina's Rule 702 is governed by the two factors set out in State

v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995): (1) whether the

expert is proposing to testify to scientific, technical, or oth-

er specialized knowledge that will assist the trier of fact to

determine a fact in issue and (2) whether the witness testifying

at trial is qualified as an expert to apply this method to the

specific facts of the case. Our Supreme Court has said:

    The essential question determining the admissibility
    of opinion evidence is whether the witness, through
    study and experience, has acquired such skill that he
    is better qualified than the jury to form an opinion
    as to the subject matter to which his testimony ap-
    plies.

    State v. Phifer, 290 N.C. 203, 213, 225 S.E.2d 786,
    793 (1976).
                             - 10 -




    Officer Yoder testified that he had received training in

death scene investigation, including blood spatter and lividity,

at Appalachian State University, Western Piedmont Community Col-

lege, and the North Carolina Homicide Investigators Association.

While his testimony shows that he has been exposed to the topic

of death scene investigation and lividity in his training, this

exposure does not automatically qualify him as an expert under

Rule 702. Nor does it qualify him to express a medical opinion

about the time of death, as he did in this case. He did not pro-

vide sufficient information for the judge to reasonably conclude

that he was “better qualified than the jury to form an opinion

as to the subject matter to which his testimony applies.” Id.

    In the present case, Officer Yoder expressed a medical opi-

nion about two critical issues. The State offered evidence

through several witnesses trying to pinpoint the time of Mrs.

Wolff’s death, but only Officer Yoder testified with the weight

of authority granted an expert to confirm the puzzle the State

attempted to piece together through the testimony of other wit-

nesses. His opinion regarding the time of death and Mrs. Wolff’s

position when her wrist was wounded were critical to the State.

Because he was not properly qualified as an expert and because

the testimony went beyond the bounds of the area for which the

court qualified him, the trial court erred. Compare State v.
                             - 11 -


Taylor, 354 N.C. 28, 550 S.E.2d 141 (2001), in which the Supreme

Court affirmed the trial court’s refusal to qualify defense wit-

ness as expert on the grounds that his testimony was not in the

specific area of his expertise and was cumulative, and State v.

East, 345 N.C. 535, 481 S.E.2d 652 (1997), in which the Supreme

Court affirmed the trial court’s admission of blood spatter tes-

timony of officer-expert who relied on other physical evidence

to support her opinion.

     The interpretation of evidence to determine time of death

and position of a body when wounded is the province of a medical

expert, not a crime scene technician taking photographs. See,

e.g., State v. Mann, 355 N.C. 294, 560 S.E.2d 776 (2002); State

v. Israel, 353 N.C. 211, 539 S.E.2d 633 (2000); and State v. Ma-

recek, 152 N.C.App. 479, 568 S.E.2d 237 (2002). In each of these

cases, the time of death was determined by a medical expert. As

this opinion testimony was not in the province of Officer Yo-

der’s education, training, skills, or experience, it is inad-

missible under Rule 702. Compare State v. Ledford, 315 N.C. 599,

340 S.E.2d 309 (1986), in which the pathologist testified about

settling of the blood and other medical matters and State v.

Brown, 314 N.C. 588, 336 S.E.2d 388 (1985), in which a physician

testified as a medical expert about blood settling.

     The time of Mrs. Wolff’s death was a critical part of the

State’s evidence. Because Officer Yoder was wrongfully permitted
                              - 12 -


to offer medical testimony regarding the time of her death and

the body position when her wrist wound occurred, the defendant

was harmed by its improper admission.

II.   Abandonment of Remaining Assignments of Error

      Appellant does not argue his remaining assignments of error

herein and therefore, voluntarily abandons them. N.C. R. App. P.

28 (b)(6) (2004).




                            CONCLUSION

      Wherefore, Defendant-Appellant respectfully prays this

Court:

      1. Hold that the trial court abused its discretion by quali-

fying Officer Yoder as an expert in death scene investigation

and permitting him to testify to medical issues;

      2. Set aside the convictions and sentences in these matters;

and

      3. Grant Defendant-Appellant such other and further relief

as the Court deems just and proper.

      Respectfully submitted this the 26th day of September 2005.

                               ELECTRONICALLY SUBMITTED
                               Leslie C. Rawls
                               Attorney for Defendant-Appellant
                               PO Box 38325
                               Charlotte, NC 28278
                               LeslieRawls@carolina.rr.com
                               704-583-1279
                             - 13 -


                     CERTIFICATE OF SERVICE

    I hereby certify that I served the foregoing Appellant-

Defendant’s Brief on all parties to this action by depositing a

copy of the document in the United States Mail, properly wrapped

with postage attached, addressed to:

    David Roy Blackwell
    Special Deputy Attorney General
    NC Department of Justice ---Special Litigation
    9001 Mail Service Center
    Raleigh, NC 27699-9001

    This the 27th day of September 2005.


                              ELECTRONICALLY SUBMITTED

				
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