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Crawley_ Shannon


  • pg 1
									No. COA11-93                                     FOURTEENTH DISTRICT


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

     v.                         )            From Durham

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


           * * * * * * * * * * * * * * * * * * * * * *
                               - ii -

                             I N D E X

TABLE OF CASES AND AUTHORITIES ................................ iii

STATEMENT OF THE CASE ........................................... 2


STATEMENT OF THE FACTS .......................................... 2

ARGUMENT ....................................................... 17

           AUTHENTICATED. ....................................... 17

           A.   Standard of Review. ............................ 19

           B.   Analysis. ....................................... 19

           IN CLOSING ARGUMENT. ................................. 23

           A.   Standard of Review. ............................ 25

           B.   Analysis. ....................................... 25

CONCLUSION ..................................................... 28

CERTIFICATE OF SERVICE ......................................... 29
                             - iii -


                           Cases Cited

State v. Bell,
  164 N.C. App. 83, 594 S.E.2d 824 (2004) ...................... 19

State v. Harding,
  263 N.C. 799, 140 S.E.2d 244 (1965) .......................... 25

State v. Riggans,
  321 N.C. 107, 361 S.E.2d 558 (1987) .......................... 25

State v. Thompson,
  19 N.C. App. 693, 200 S.E.2d 208 (1973) .............. 25, 26, 27

Wilson v. Bellamy,
  105 N.C. App. 446, 414 S.E.2d. 347(1992) ..................... 22

                          Statutes Cited

N.C.G.S. §15A-1226(b) ............................................

N.C.G.S. §15A-1443(a) ............................................

                           Rules Cited

Rule 901, N.C.R. Evid. ......................................... 19
No. COA11-93                                      FOURTEENTH DISTRICT


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

      v.                           )            From Durham

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


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

                          QUESTIONS PRESENTED


                                     - 2 -
                           STATEMENT OF THE CASE

      On 2 April 2007, the Durham County Grand Jury returned an

indictment charging Defendant Appellant Shannon Crawley with the

murder of Denita Monique Smith on 4 January 2007. (Rp. 11) The

charge was prosecuted non-capitally. (Rp. 15)

      The case came on for trial at the 8 April 2010 Criminal Term

of the Durham County Superior Court, the Honorable Ronald L.

Stephens, Superior Court Judge, presiding. (Rpp. 1, 4) On 22

February   2010,   the    jury    returned   a    verdict   finding    Defendant

Crawley guilty of first degree murder. (Rp. 89) Defendant Crawley

was sentenced to life imprisonment without parole. (Rpp. 90-91) On

23   February   2010,    Defendant    Crawley     served    and   filed   written

notice of appeal to this Court. (Rpp. 92-93)

      This is an appeal of right pursuant to the provisions of

N.C.G.S §§ 7A-27(b) and 15A-1444(a) and Rule 4(a), N.C.R. App. P.,

from a final judgment of conviction by a criminal defendant who

pled not guilty and was found guilty of a non-capital crime.
                          STATEMENT OF THE FACTS

      In January 2007, Denita Smith was living at the Campus

Crossings apartment complex, 1400 Cornwallis Road, Durham. Campus

Crossings was a complex of seventeen, three-story buildings that

provided   housing       for     students    at    North    Carolina      Central

University [NCCU]. Denita Smith was living in apartment 1133, a

two bedroom apartment on the third floor. Corey Smith was living

in an apartment on the second floor of the same building. When he
left his apartment to go to work on 4 January about 10:00 a.m.,
                                      - 3 -

he found Denita’s body at the bottom of the stairs. The contents

of her purse were scattered along the stairs. When he determined

that she was not breathing, he called 911. The paramedic, who was

dispatched at 10:03 a.m. and was the first to arrive at the

scene, determined that Denita Smith was dead. (Tpp. 669, 690-694,

699-700, 719-722, 735, 755-756, 1115)

    The evidence showed that the shooting took place just after

8:00 a.m., two hours before Denita Smith’s body was found on the

stairs. Campus Crossings residents had key cards which were used

to access the electronic lock on the outer door to the apartment

and the electronic lock for their individual bedroom door. The

security system collected data each time a key card was used.

Those records showed that the key card assigned to Denita Smith

was used on her bedroom door and the outer door to her apartment

at 8:10 a.m. on 4 January 2007. A 911 call, reporting shots

fired,    had   been    made   by    Michael      Hedgepeth,      the   maintenance

supervisor for the complex, at 8:18 a.m. When officers responding

to that call arrived five minutes later, Hedgepeth told them he
thought   the   sound    was   coming      from    behind   the     600    building,

nowhere near the 1100 building, and that he thought the noise

might    have   been   from    a    dump   truck    that    was    being    used   in

construction in that area. The officers that responded to that

call found nothing and filed no report. (Tpp. 761-765, 788-789,

792-794, 1162-1171, 1407, 1411-1413)

    Denita Smith’s death was caused by a single gun shot wound

to the back of her head. The only other injury found during the
autopsy was a small bruise under the nail of her left index
                                  - 4 -

finger. The bullet was recovered from the head wound at the

autopsy.   A   firearms   examiner   with     the    SBI   crime    laboratory

testified that it was copper, semi-jacketed .38 or .357 caliber

that had five lands and grooves with a right hand twist. From a

FBI data based, he provided a list of 8 gun manufacturers that

made weapons that could have fired that kind of bullet. (Tpp.

812-828, 1335-1343)

    Denita Smith first started attending NCCU as a freshman in

the fall of 2000. That semester, she met and began dating Jermier

Stroud, who was then a junior. They were both in the marching

band.   Stroud   graduated   in   2002.   A   year    later,   he    moved   to

Greensboro and started working as an officer for the Greensboro

Police Department. He continued to date Denita Smith while living

in Greensboro. She graduated in 2004, with a degree in English.

She returned to NCCU in 2006 to start on a master’s degree. In

November 2006, Stroud and Denita got engaged to be married. (Tpp.

667-671, 687-688, 832-834)

    While in Greensboro, Stroud also engaged in an additional
relationship with Defendant Shannon Crawley. Shannon, a single

mother with two children, was a dispatcher for the Guilford Metro

911 center. She met Stroud when he was in the police academy and

she was there to help teach about use of police radios for

various kinds of calls. Their relationship became sexual in the

fall of 2004. Both were working twelve hour shifts, four days on

and four days off. On days when both were scheduled not to work,

they spent a great deal of time together. In November 2005,
Shannon learned she was pregnant, despite the fact that she was
                                        - 5 -

on birth control medication. The pregnancy was terminated by

abortion in January 2006. The dating and sexual relationship

between Shannon and Stroud ended at that point. (Tpp. 838-843,

906-912, 1363-1364, 1537-1542, 1551-1555)

       Stroud   was    careful    not    to     let    Denita      know    about     his

relationship with Shannon. He testified that there were only two

occasions when Shannon and Denita were in the same place at the

same   time,    both   at   the    church       he    and    Shannon      attended   in

Greensboro. The first was just after Shannon’s abortion in early

2006 when he brought Denita to a meeting at the church. He

testified that Shannon was there, but left shortly after they

arrived. The second was the Sunday before or after Christmas in

2006. He testified that he brought Denita to the church service

and noticed that Shannon was sitting two rows behind them. He was

clear that Shannon and Denita never actually ever met or talked

to each other. Shannon testified that she didn’t know anything

about Denita. Stroud told her when they first met that his last

relationship had ended a month prior. She didn’t ask him for the
name of that person. Shannon saw him at church after their dating

had ended when he arrived late and was seated between two women,

but she had no idea who they were. (Tpp. 847-851, 900-903, 1557-

1558, 1560-1563)

       Hedgepeth, the maintenance supervisor at Campus Crossings,

told   the   investigators,       and    testified,         that   he   saw   a   woman

crossing the lawn at the 1100 building, going                      from the rear to

the front, just after he heard the noise that led to the shots
fired call. He got in his truck and started in that direction. As
                                    - 6 -

he approached, he saw a burgundy Ford Explorer coming from the

1100 building. He stopped and talked to the woman driving the

Explorer, driver’s door to driver’s door, when they met up. She

was crying hysterically, and said she had heard the gun shot and

was afraid of gunshots. According to Hedgepeth, the woman said

she stayed in the 1200 building, and that he told her to meet him

back there until he called the police. Hedgepeth made a U-turn

and met up with the woman in the Explorer a second time at the

600 building. He asked if she wanted him to stay with her. She

said yes. He told her to meet him at the 1200 building. He drove

around to the 1200 building. He didn’t see the Explorer or the

woman again. (Tpp. 755-763, 765-766, 784-787, 791, 794-803, 806)

    The following day, 5 January 2007, Sergeant Jack Cates, the

supervisor of the Durham police homicide unit, got information

from Stroud identifying Shannon Crawley as a person who drove a

red Ford Explorer. Stroud and Cates gave differing accounts at

trial about their conversation that day. Stroud had spent the

prior night in Durham with members of his family and of Denita’s
family. Stroud testified that the following morning, they were

told that Denita had been shot and that her death was a homicide.

Stroud wanted to go home. Stroud testified that he and members of

his family were driving to his house in Greensboro when his

parents told him about hearing on the news that the police were

looking   for   a   person   of   interest,   a   woman   who   drove   a   red

Explorer; that he and the rest of his family members pulled to

the side of the road; that he called Cates, who immediately asked
if he had a crazy ex-girlfriend who would want to do something
                                    - 7 -

like this and he immediately said yes. Stroud went back to Durham

where he was interviewed by the lead investigator, Detective

Shawn Pate. (Tpp. 858-860, 863-868, 904)

      Cates testified that he had met Stroud and talked to him

briefly on 4 January at the Campus Crossings complex. He got

contact information from Stroud and family members, planning to

talk to them later because they were distraught. Stroud called

him mid-morning the next day. Stroud asked about the cause of

death. That information had not been publically released yet, and

Cates didn’t tell him. Instead, Cates asked Stroud if he had any

crazy ex-girlfriends. Stroud said no. Cates asked if he knew any

black female who drove a burgundy Ford Explorer. Stroud said it

was somebody he used to mess around with and that he was coming

back to Durham to talk to Cates. (Tpp. 933-936, 939-940)

      The investigators got a photograph of Shannon Crawley and

her Explorer. When shown the photographs, Hedgepeth could not

identify Shannon as the woman he saw, but did identify the photo

of   the   Explorer   as   the   truck   he   had   seen   at   the   apartment
complex. Hedgepeth testified that he didn’t see anyone else in

the Explorer, but it had tinted windows and he wasn’t looking in

the back seat. (Tpp. 768-770, 776-777, 797-798, 1038)

      Late that afternoon, Detective Pate and a host of other

Durham officers went to the 911 center in Greensboro. Pate talked

to Shannon Crawley there while other officers were involved with

her Explorer that was parked in the lot at the center. When asked

about involvement in the homicide, Shannon said that she didn’t
do it and didn’t know Denita Smith. She described the history of
                                  - 8 -

her relationship with Stroud. She said she got to work late on

January 4, around 10:00 a.m., because she had to take her child

to a doctor’s appointment. She said that she had driven through

Durham when on her way to see relatives in New Jersey, but had

never gone there for a particular purpose. She said that when she

learned that the investigators were coming to talk to her, she

thought Stroud had set her up and went to talk to the Internal

Affairs division in Greensboro about that. Pate never got any

information from the Greensboro Internal Affairs division about

Shannon’s report to them earlier that day. (Tpp. 1360-1368, 1421-


       Shannon Crawley did go to the Internal Affairs division of

the Greensboro Police Department earlier that day. A co-worker

told her that she learned from a call from the New York times

that Stroud’s fiancé had been killed and that the Durham police

were looking for a burgundy Explorer driven by black female.

Shannon talked to supervisors at the 911 center, telling them she

had information about what happened in Durham. When she started
to tell them about Stroud, a police officer, who she thought was

trying to set her up, one of the supervisors stopped her and took

her downtown to Internal Affairs. There, Shannon talked at some

length about her relationship with Stroud. When she started to

talk    about   what   happened   in   Durham,    the   internal   affairs

investigator     stopped   her,   telling   her     that   they    had   no

jurisdiction over matters that occurred in Durham. (Tpp. 1079-

1081, 1518-1523, 1581-1583, 1656-1657)
                                 - 9 -

    That night, investigators got warrants to search Shannon

Crawley’s   house   and   her   Explorer.   Shannon’s   residence   was

searched that night. Because it was raining in the parking lot,

the Explorer was towed to a secured building where it was stored

until it was searched some days later, on 8 January. Shannon was

arrested on a warrant charging her with murder on 9 January.

(Tpp. 1025-1029, 1031-1063, 1369)

    There was no dispute at trial that Shannon Crawley was the

person driving the burgundy Explorer that Hedgepeth talked to at

the Campus Crossings complex just after the time that Denita

Smith was shot. In the presence of her then attorneys, Shannon

gave the Durham investigators a lengthy, recorded statement on 30

May 2007, and testified at trial, giving her version of the

events, that she was with Stroud at the Campus Crossing complex

on both 3 and 4 January 2007 and that Stroud shot Denita Smith.

Stroud told the investigators, and testified, to a different

version, that he was in Greensboro, and not with Shannon, on 3

January and the morning of 4 January when Denita was shot.
    Stroud’s account of his activities, in his statements to the

investigators and his testimony at trial was as follows: He was

in Greensboro all day on 3 January, and was on duty, working

there from noon until 10:00 p.m. He was at home the next morning

when he got a call from Denita’s mother about 10:00 a.m. telling

him that Denita had fallen in her apartment building and was

unconscious. He got dressed and drove to Durham, talking to

several people in Durham during the drive. When he got to Campus
                             - 10 -

Crossing complex, he saw crime scene tape and lots of officers

and learned that Denita was dead. (Tpp. 852-858, 1406, 1419-1420)

    Shannon Crawley’s account, in her recorded statement and

testimony at trial, was as follows:

    During her relationship with Stroud, and even after, there

were occasions when Stroud’s behavior made her fearful of him.

She described constant phone calls and leaving nasty messages

when she did not answer her phone, stalking her, following her

when she didn’t want to see him, saying he just wanted to talk,

sitting in her driveway and showing up at the day care where her

children went when she didn’t answer his telephone calls. (Tpp.

1414, 1541-1544, 1554-1556, 1558-1560)

    Shannon went to the store early in the morning of 3 January

2007 to get orange juice. When she got back home, Stroud was in

her house, coming out of the bathroom. He lifted his shirt to

show her the gun in his waist band and put his finger to his

mouth to signal her to be quiet. Asked what he was doing there,

he said he just wanted to talk. He kept going on, for some period
of time, asking why she wouldn’t answer his calls and asking what

had happened between them. After several hours, he said he wanted

her to go somewhere with him. She didn’t want to go, didn’t want

to leave her children at the house. When he finally got angry and

insistent, she didn’t know what to do and said she would go with

him. They went to the garage and got into her car. Stroud drove.

He got on I-85. She kept asking where they were going and saying

she needed to get back to her children. He kept saying that he
just wanted to talk and they wouldn’t be gone long. He drove to
                                   - 11 -

Durham. Shannon was not familiar with any of the places. He went

to an apartment complex and stopped at a building. He got out and

went into the building, and came back a short time later. When

asked why they were there, he said they just had to make one more

stop. He drove down a few streets and went slowly through the

parking lot of an office building. When asked why they were

there,   he   said   that   they   were     leaving   and   going   back   to

Greensboro now. Stroud never answered her questions about why

they had gone there. When they got back to Greensboro, he parked

in her driveway, sat for a few minutes and left. (Tpp. 1370-1371,

1535-1537, 1571-1573)

    Stroud came to her house again shortly after midnight on 4

January. When asked what he was doing there, he said he just

wanted to talk. She said she didn’t want to talk. He started to

get loud. She told him to calm down and be quiet or he would wake

the children. He got insistent that she talk to him. She tried to

calm him down and agreed to talk to him, but that he had to leave

after that. They went upstairs. He was there throughout the
night. Sometimes they just talked about whatever he wanted to

talk about. Sometimes he would pace and get angry. Eventually,

she yelled at him that she didn’t want him there and he needed to

leave. He responded that she needed to go somewhere with him.

When she refused, he made a threat to harm her children. She

agreed to go with him. (Tpp. 1573-1575)

     They got into her car. This time, she drove. They went back

to Durham, to the same apartment complex he had stopped at the
day before. When they arrived, he took her keys out of the
                             - 12 -

ignition, took her cell phone from the cup holder got out and

went to the same stairwell he had gone to the prior day. While

sitting in the car, she heard him yell and then heard a woman’s

voice. They were arguing. She got out of the car. She heard a

gunshot. He came running back to the car, tucking his gun in his

waistband. He got in the driver’s seat of the car, telling her to

get in as he went past her, and started the engine. She tried to

get in the back seat, but the door was locked. Stroud jumped into

the back seat. She got into the driver’s seat to get control of

the car which was moving backward. Stroud was crouched down in

the back seat. She drove away from the building. (Tpp. 1372-1373,


    She saw Hedgepeth’s truck coming toward her. She stopped

when they were side to side. He asked if she heard the shot. She

said yes. He kept asking if she was all right. She kept saying

no. She was trying to signal him with her eyes to get him to look

in the back and see Stroud there. Hedgepeth said he was going to

drive around to see if he could see anything, and drove off. She
saw an exit sign and Stroud told her to turn there. When she got

to the gate for that exit, it was locked. She made a U-turn and

came back. She met up with Hedgepeth again. He said that he had

called the police and they would be there in a few minutes. He

told her to calm down and asked if she wanted him to wait with

her. She said yes. After sitting a few minutes, he drove off. She

followed him. He took a right turn to go back into the complex.

At Stroud’s direction, she turned left toward the main exit. She
drove back to Greensboro. When they got to her house, he asked
                                          - 13 -

where she was going now. She told him she had to go to work, that

she had called in to say she would be late, but they would come

looking for her if she didn’t show up. He left. She got to work

just after 10:00 a.m.. (Tpp. 1373-1374, 1577-1581)

    Based      on    cell    phone        records       supplied         to    him    by     other

investigators       showing       date,    time        of    commencement        of     a    call,

duration of the call, the cell towers through which a call was

relayed   at     the   beginning          and    the        end    of    the    call,       Durham

Detective Chris Chappell prepared a computer file which placed

cell tower locations for each call on a map for calls made by the

cell phones belonging to Shannon Crawley and Jermeir Stroud on 3

and 4 January 2007. (Tpp. 1218-1241)

    Chappell testified that all of the calls made to and from

Stroud’s cell phone on 3 January were relayed through cell towers

located in Guilford County. He did not detail the time of each

call. (Tp. 1242)

    With respect to calls made to and from Shannon’s cell phone

on 3 January, the first call was at 9:32 a.m. relayed through a
cell tower located in Greensboro. The next call was at 1:36 p.m.,

relayed through a cell located in Durham less than a mile from

Campus Crossing apartments. The next three calls, at 1:49, 1:49

and 1:57 p.m., each was relayed from a cell tower a little

further   west      than    the    prior        one.    The       last   call    to     or   from

Shannon’s phone that day was at 3:11 p.m., relayed through a cell

tower in Greensboro. (Tpp. 1243-1248)

    With respect to calls made to and from Stroud’s phone on 4
January, the first call was made at 9:34 a.m. That call, and the
                                      - 14 -

next five calls in order (made at 10:18, 10:37, 10:39, 10:43 and

10:46 a.m.) were all relayed through cell towers located in

Greensboro. Then, there was a series of calls (at 10:50, 11:03,

11:10, and 11:13 a.m.), each relayed through cell towers located

further east than the prior one, beginning east of Greensboro and

ending in Orange County, appearing as if he was traveling east on

I-85/40.   The    last    two    calls   (at   11:49    and     11:59    a.m.)      were

relayed through the cell tower that was less than a mile from

Campus Crossings apartments in Durham. (Tpp. 1248-1255, 1272-


       With respect to calls made to and from Shannon’s cell phone

on 4 January, the first call was at 5:50 a.m., relayed through a

cell tower located near her residence in Greensboro. The second

call was at 9:40 a.m., relayed through a cell tower southwest of

her residence in Greensboro. The next two calls (both at 10:03

a.m.)    were    relayed    through      towers       located     just      south     of

Greensboro. All of the rest of the calls to or from her phone on

that    date    were   relayed    through      cell    towers    located      in     the
Greensboro area. (Tpp. 1255-1259)

       All of the evidence collected at the crime scene and from

Denita   Smith’s       bedroom   at   Campus    Crossing        and   the    evidence

collected from Shannon Crawley’s residence, which included both

Denita’s computer and Shannon’s computer, were examined to look

for anything that might connect the two of them or to connect

Shannon to the crime scene inside building 1100. Nothing was

found. No blood was found on any of the clothing seized from
Shannon Crawley’s residence. Adhesive lifts were taken by a crime
                                  - 15 -

scene   investigator   to   be   examined    for   particles    of   gunshot

residue (GSR) from four specific surfaces in the driver’s area of

Shannon Crawley’s Explorer. GSR comes out in a plume from the

barrel and other openings in a firearm when it is fired, and will

settle on a person’s hands or clothing. It will readily fall off

and then transfer to surfaces touched. Two of the four adhesive

lifts were examined by a forensic chemist at the SBI laboratory.

He found GSR on one of them. He didn’t test the other two

adhesive   lifts.   (Tpp.   1030-1041,     1107,   1139-1143,   1146-1147,

1300-1320, 1423)

    By all accounts, Shannon Crawley was terrified of firearms.

She would not let Stroud bring his firearm around her. Despite

that fact, Ronnie Simpson, a fellow dispatcher at the 911 center,

convinced Shannon that she needed to have a gun. She had told him

about her fears that Stroud would do something to her or her

children. He was also aware that her residence had been broken

into a couple of times, including once when she was there. He

sold a five-shot, .38 caliber revolver to her in October 2006. He
also gave her five rounds of ammunition. He offered to show her

how to use the gun, but never did because she was afraid of guns.

Shannon testified that, after she got it, she didn’t know what to

do with it. She didn’t know where she put it in her residence so

that she could get to it if needed and still be out of reach of

the children. It stayed in the back of her vehicle until she

decided she didn’t want it there either and threw the gun and the

ammunition in separate dumpsters at a mall a day later. (Tpp.
907-908, 1086-1090, 1093-1098, 1515-1516, 1563-1567)
                                   - 16 -

    Following her arrest, Shannon eventually was released on

bond and moved to Charlotte where she lived with her mother. On

20 July 2008, police in Charlotte were notified by an alarm

company that the panic alarm had been triggered at her mother’s

house at 5:44 a.m. that day. The Charlotte detective assigned to

the matter found Shannon at the hospital where she was being

examined as the victim of a sexual assault. Shannon said she had

been raped at knife point and that Stroud had done it. There was

a great deal of conflicting testimony at the trial about the

nature and extent of her injuries, but there was no dispute that

she did have lacerations on her neck and thigh and injuries to

the outer labia. The State offered testimony from the assigned

Charlotte detective about the nature of the investigation that

led her to conclude that Stroud did not rape Shannon. Part of the

evidence including an analysis of records relating to the use of

Stroud’s cell phone on that date, which included an hour an hour

and fifteen minute phone call commencing at 12:58 a.m. and an 86

second phone call commencing at 6:32 a.m., both of which were
relayed   though   cell   towers     located    in   Greensboro.   Shannon

testified at trial that Stroud did rape her. (Tpp. 1196-1204,

1261-1266,   1278-1280,   1414-1415,        1432-1470,   1486-1493,   1497,

1529-1530, 1567-1570)

    Shannon reported to her attorneys that Stroud was continuing

to contact her by telephone after she was released on bond and

they instructed her to record the calls. Copies of the recordings

were given to the prosecutors by her attorneys. The State offered
its copies of the audio tapes in evidence during Shannon’s cross-
                                       - 17 -

examination and played some of the recorded calls for the jury to

hear. Shannon identified the female voice played to her from the

State’s recording as herself and the male voice on the recordings

played to her as Stroud. The male voice heard in the recordings

spoke in a high pitched, falsetto whisper. The first recording

was nothing but music, with no talking. Later recordings included

extensive    conversations,         including        statements   by   the     person

Shannon identified as Stroud admitting that he killed Denita

Smith after they got in an argument that was cause when she found

out about Shannon. (Tpp. 1626-1652, 1667-1668)


     An important part of the State’s evidence against Defendant

Shannon Crawley was an analysis of cell phone records relating to

Defendant Shannon Crawley and Jermeir Stroud by Detective Chris

Chappell. He started with records he got by e-mail from Linwood

Wilson,     the    District        Attorney’s        investigator,     which       were
purportedly       provided    to    Wilson      by    Sprint/Nextel     and    a     CD

containing    records       purportedly      provided     by   Sprint/Nextel         to

Douglas     Gallant    in    Charlotte.      Those      records   included         data

relating to date, time and duration of calls to and from cell

phones and the location of cell towers through which those calls

were relayed. From the records, Chappell generated a computer

file which would show the map location of calls involving the
cell phones belonging to Shannon and Stroud on 3 and 4 January
                                               - 18 -

2007, and calls involving the cell phone belonging to Stroud on

20 June 2008. (Tpp. 1196-1204, 1219-1239)

      Because the records were in digital form and no paper copy

had been made, the State proposed that Chappell would use the

files on the hard drive of his computer to project images of

records on a large screen. Defense counsel had no objection to

that manner or presentation, with the understanding that the

State would first lay a foundation for admissibility of the

records. (Tpp. 1160-1162; App 1-3)

      Neither Wilson nor Gallant testified. Instead, the State

began presenting the cell phone records through the testimony of

Ryan Harger, a custodian of records for Sprint/Nextel. During his

testimony, images began to appear on the screen and Harger was

asked    to   explain             what    they      were    and    what       information         they

contained without anything being marked as an exhibit and without

any     motion        to    admit        the     records     in     evidence.          Defendant’s

objection        to        this     method       of    presentation            of    records       was

overruled. (Tpp. 1176-1177; App 5-6) When it appeared from the
image of a cover letter that Harger had nothing to do with the

gathering     and          transmission        of     records      to    the    State,       defense

counsel    objected           on    the    ground      that       Harger      had     no   personal

knowledge     of       how        the    records      appearing         on    the     screen      were

generated     and          transmitted         to     the   State.       The        objection      was

overruled. Defense counsel’s continuing objections during the

testimony of Harger and Chappell on the ground that no foundation

had   been    laid          for     the    admission        of     the       records       were   all
                                     - 19 -

overruled. (Tpp. 1206, 1220-1221, 1236, 1264-1265, 1292-1294; App


       The denial of the defense objections to the admission of the

cell phone records was error. It is clear from Harger’s testimony

that he had no knowledge of the gathering and transmission of

records from Sprint and did not actually know that the records he

saw projected on the screen actually came from Sprint/Nextel. The

error in the admission of these records requires that Defendant

Shannon Crawley be given a new trial.
       A.     Standard of Review.

       When   a   trial   court    admits    evidence    over      objection,   it

creates a question of law that is reviewable on appeal de novo.

State v. Bell, 164 N.C. App. 83, 87-88, 594 S.E.2d 824, 827

       B.     Analysis.

       Rule 901, N.C.R. Evid. , Requirement of authentication or

identification, provides in pertinent part:

       (a)    General     provision.--The    requirement    of
       authentication   or   identification  as   a  condition
       precedent to admissibility is satisfied by evidence
       sufficient to support a finding that the matter in
       question is what its proponent claims.

       In this case, the trial court allowed the State to present

images of cell phone records on a screen during the testimony of

Ryan     Harger   without    first       laying    a   foundation     for    their

authenticity      and   moving    them   into     evidence.   It    became   clear

during his testimony that he could not authenticate the records

that he testified about, and that served as the basis for the
later analysis by Detective Chappell.
                               - 20 -

    The lack of foundation to authenticate the records is most

clear from the following testimony given by Harger during cross-


         Q       How long have you been with Sprint/Nextel?

         A       Almost ten years

         Q    All right. And you’ve seen a lot of records
    like the ones you’ve described here today; is that fair
    to say?

         A       Yes, that’s fair.

         Q    And you know how to interpret the different
    kinds of information in all those different categories
    you have talked about; is that right?

         A       Yes, I do.

         Q    But you have nothing to do            with   the
    accumulation of that data; is that right?

         A       That’s correct. I do not.

         * * *

         Q    That’s done somewhere else by a whole bunch
    of other folks; is that right?

         A    Yes. There’s a billing system that – that
    take the – the information from a call, puts it in –
    basically puts it in our billing system so that the –
    the monthly bill you get from Sprint, that information.
         Q    All right. Now, you also had nothing to do
    with the – the sending of this – these particular data
    sets to law enforcement; is that right?

         A       All right. I did not.

         Q    You don’t know exactly what they asked for,
    is that right?

         A       That’s correct. I don’t.

         Q    And you don’t know if what they        actually
    asked for was sent to them; isn’t that right?
         A       That’s correct.
                                     - 21 -

            Q      You don’t know if they got what they asked

            A      I do not.

         Q    The – the – the information that they
    described as subscriber history where they would have a
    – a person’s name and billing address and that sort of
    thing, that looked like the format of that kind of
    information; isn’t that right?

            A      It does.

         Q    But you don’t know for sure if that
    particular document is really from Sprint, do you?

            A      I do not.

         Q    You don’t know if that particular document
    accurately reflects real information from Sprint?

            A.     I believe it does but I don’t know that for a

         Q    Right. It has the right format. It looks like
    information you’re used to – to looking at, right?

            A      That’s correct.

         Q    But you had nothing to do with the process of
    getting the information?

            A.     I did not.

(Tpp. 1207-1209)
    At various points during his direct examination, Ryan Harger

testified that the records he was looking at on the screen were,

or appeared to be, records that were kept at Sprint/Nextel in the

normal course of their business. (Tpp. 1196, 1206) But, at least

from the cross-examination, it is clear that he was making an

assumption      that   what   he   was   being   shown   on   the   screen   were

business records that someone from Sprint/Nextel had sent to the

State, a process he had nothing to do with and knew nothing
about. When it became clear that Harger could not provide the
                                        - 22 -

foundation   necessary      to    authenticate        the    cell    phone    records,

those   records    should        have    been    excluded       from    the    jury’s

consideration.     This   Court     dealt    with     a     similar    situation   in

Wilson v. Bellamy, 105 N.C. App. 446, 462-464, 414 S.E.2d. 347,

356-357 (1992).

    At issue in       Wilson      was a     telephone conversation that a

witness said he had with one of the defendants, Jeff Gordon.

During his direct examination, the witness testified that had

spoken to Gordon face to face on two prior occasions, but never

on the telephone. On cross-examination, he admitted that the only

basis for identifying the caller as Gordon was that the caller

identified himself as Gordon. Because evidence of what a person

said in a telephone conversation is inadmissible when the only

foundation to authenticate the identity of the speaker is his

statement of his name, this Court ruled that the trial court

correctly    struck   the    witness’       testimony       about     the    telephone

conversation as not properly authenticated. The same thing should

have happened in this case when it became clear that Harger could
not authenticate the cell phone records that were presented in

evidence to the jury.

    If the cell phone records had not been improperly admitted

in evidence, there is a “reasonable possibility that, had the

error in question not been committed, a different result would

have been reached at the trial.” N.C.G.S. § 15A-1443(a)

    The jury had one basic question to resolve, who shot Denita

Smith on 4 January 2007, Jermeir Stroud, as Defendant Crawley
testified,    or   Defendant      Crawley,       as   the    State     claimed.    The
                                    - 23 -

decision turned on a determination of the credibility of the two

of them. The State’s evidence relating to the cell phone records

was critical to support a number of the State’s claims, that

Shannon Crawley’s report that Stroud raped her in June 2008 was a

false accusation, that Stroud was not with Shannon at the Campus

Crossings apartments on 3 January 2007, and that he was not with

Shannon at the Campus Crossings apartments about 8:00 a.m. on 4

January 2007.

      The jury deliberated on the matter over the course of a day

and a half, sending out a slew of requests to review various

exhibits.   One   of   the   last   things    they    asked   to     see   during

deliberations was the cell phone records. Their verdict of guilty

was returned a half hour after the jury reviewed those records in

the courtroom. (Tpp. 1826-1866)

      Because the cell phone records were such a critical part of

the   State’s   evidence     in   this    closely    contested     case,     their

erroneous admission requires that Shannon Crawley’s first degree

murder conviction be reversed and the case remanded to the trial
court for a new trial.

      During its deliberations over the course of a day and a

half, the jury sent out a series of notes asking to review

various   items   of   evidence     and    were     brought   back    into     the
courtroom on a number of occasions to review various exhibits

that they asked to see. The last note the jury sent out asked to
                                      - 24 -

see, among other things, the audio tapes that Shannon made of

telephone conversations with Stroud while out on bail that her

prior attorneys had turned over to the State and cell phone

records. (Tpp. 1826-1846)

       With respect to the cell phone records, in addition to

renewing the objection that no foundation was laid by the State

to permit their admission, defense counsel pointed out that the

records, which were on computer disks and not in printed copy,

were not shown in their entirety to the jury during the trial.

Defense counsel asked that any review of cell phone records by

the jury be limited to those portions of the records which were

the subject of direct or cross-examination, because it would be

improper to permit the jury to review more evidence at that stage

in the trial. The trial court denied that motion. When the jury

was brought into the courtroom, requested photographs were passed

to the jury and, then, the prosecutor played each of the five

audio tapes of telephone conversations that had been marked as

exhibits.    When   the   last   of    those   tapes    was   played,   State’s
Exhibit 143, defense counsel objected, and, outside the presence

of the jury, pointed out that the prosecutor played only the

first phone call on that exhibit during the trial and objected

that   it   contained     additional     calls,   new   material,   that    the

defense did not      have the opportunity to address in rebuttal

testimony or in closing argument. The trial court overruled this

objection on the basis that the entire exhibit was admitted even

though the State chose to play only a portion of it to the jury
                                     - 25 -

during the presentation of the evidence. (Tpp. 1846-1849, 1855-

1858; App. 17-24)

       The entirety of the audio tapes were played for the jury.

After the lunch recess, cell phone records were projected on the

screen by the prosecutor, who scrolled down through the files

when the jury signaled that they were done with their review of

each page appearing on the screen. (Tpp. 1854-1855, 1858-1860)

       It was error for the trial court to permit the jury to see

and hear new evidence, not presented to them during the trial,

when the defense had no opportunity to address the new material

through rebuttal evidence or closing argument.
       A.    Standard of Review.

       Both by statute, N.C.G.S. §15A-1226(b), and at common law, a

trial judge has discretion to permit a jury to hear additional

evidence at any time prior to the announcement of the verdict,

even   during     jury   deliberations.     However,   when   a   trial   judge

permits     the   jury   to   hear   new   evidence,   fundamental   fairness

requires that a defendant be given the opportunity for rebuttal
of the new material put before the jury. State v. Riggans, 321

N.C. 107, 361 S.E.2d 558 (1987); State v. Harding, 263 N.C. 799,

140 S.E.2d 244 (1965); State v. Thompson, 19 N.C. App. 693, 200

S.E.2d 208 (1973).
       B.    Analysis.

       Defense counsel’s complaint was that the jury was being

exposed to new evidence when cell phone records and audio tapes,

containing material that was not presented to the jury during the
testimony of witnesses before the close of the evidence, was
                                         - 26 -

unfair because the defendant did not have the opportunity to

address that additional material through further testimony or in

closing argument. The trial judge ruled that the material could

be presented to the jury because it was in exhibits that were

admitted in evidence during the trial in their entirety, although

not all of it was presented to the jury during the presentation

of the evidence during the trial.

       Clearly, by statute and common law, the trial judge had the

discretion to permit the jury to hear new material evidence

during jury deliberations. But the trial court’s ruling in denial

of    the    objections     by   defense      counsel    missed    the    fundamental

point.      The   issue    was   not    simply    whether    the   jury    should    be

permitted to see and hear the additional material, but rather

whether they could be permitted to do so when the defense had no

opportunity       to      respond      with   rebuttal      evidence      or   closing


       This Court addressed this issue in State v. Thompson, supra.

That was a DUI case where the issue for the jury was whether the
defendant or someone else was driving the vehicle when it was

stopped. The sole prosecution witness, a state trooper, testified

that the defendant was behind the wheel of the panel truck when

the vehicle was stopped. The sole defense witness, Steve Stancil,

who owned the truck, testified another person in the truck, James

Scott, was driving when the truck was pulled over and that Scott

and    the    defendant      then   changed      seats   because    Scott      had   no

driver’s license. At the end of the jury charge, one of the
jurors asked whether the truck was the kind that had the motor in
                                       - 27 -

the center, between the two front seats. The State recalled the

trooper who described the interior of the truck. Defense counsel

asked to recall Stancil so that he too could address the jury’s

question. That request was denied.

       This    Court   held   that     the    decision    to      permit     additional

testimony in response to the juror’s question was within the

trial court’s discretion, but that it was a denial of fundamental

fairness to refuse to allow the defendant an opportunity to rebut

by recalling Stancil. This Court also found that the error was

prejudicial, even though the record did not show what Stancil

might have said about the interior of his truck. Because the ease

with which it might be possible to change seats could have been

crucial to the decision of the juror posing the question, the

denial of an opportunity to rebut was reversible error because

additional      testimony     from     Stancil        might    have    affected       the

ultimate outcome of the trial.

       This case is similar to               Thompson. When the trial             court

addressed      defense     counsel’s    concern       with    a     ruling    that    the
Exhibits were admitted in evidence in their entirety, the issue

was treated as one where the defense had no right to address the

new material the jury was about to see and hear by rebuttal

testimony or argument. But the fundamental fairness problem that

arises when a jury is exposed to new material evidence during

deliberations is the same whether that new evidence takes the

form   of     additional    testimony    or     the    form    of    material    in   an

exhibit, which was technically in evidence in its entirety, that
the jury was not exposed to during the trial.
                                      - 28 -

     It   was    error   for    the   trial     court   to   deny   the   defense

objections to exposing the jury to new material in the exhibits

without addressing the concern about no opportunity to rebut with

additional      testimony      or   argument.     As    in   Thompson,    it   is

impossible to say what that rebuttal might have been, but the

issue related to matters that were of concern to the jury during

their deliberations and rebuttal could have affected the outcome.

For this reason as well, Defendant Shannon Crawley is entitled to

a reversal of her conviction and a remand for a new trial.

           For all of the above and foregoing reasons, Defendant-

Appellant Shannon Crawley respectfully requests that this Court

reverse her murder conviction and remand the case to the trial

court for a new trial.

     This the 4th day of August, 2011.

                                      Respectfully submitted,

                                      Ann B. Petersen
                                      Glover & Petersen, P.A.
                                      1506 E. Franklin Street, Suite 100
                                      Post Office Box 2868
                                      Chapel Hill, North Carolina
                                      (919) 942-6503

                                      ATTORNEY FOR DEFENDANT-APPELLANT
                                    - 29 -

     I hereby certify that the original of the above and foregoing

Defendant-Appellant's Brief has filed by mailing same to Mr. John

H. Connell, Clerk of North Carolina Court of Appeals, Post Office

Box 2779, Raleigh, North Carolina, 27602, by depositing same in

the United States Mail, first class postage prepaid. I further

certify    that   a   copy   of   the   above     and   foregoing   Defendant-

Appellant's   Brief    has   been   served   on    counsel   for    the   State,

Special Deputy Attorney General Buren R. Shields, III, Department

of Justice, Post Office Box 629, North Carolina 27602-0629, by

depositing same in the United States Mail, first class postage


     This the 4th day of August, 2011.

                                    Ann B. Petersen
                                    ATTORNEY FOR DEFENDANT-APPELLANT

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