State v. Oaks

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-701

NORTH CAROLINA COURT OF APPEALS

Filed: 4 February 2014

STATE OF NORTH CAROLINA

v. Cumberland County

Nos. 09 CRS 56531–32

ZACHARY LEE OAKS

Appeal by Defendant from judgments entered 29 November 2012

by Judge James F. Ammons Jr. in Cumberland County Superior

Court. Heard in the Court of Appeals 11 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General

Jess D. Mekeel, for the State.

Unti & Lumsden LLP, by Sharon L. Smith, for Defendant.

STEPHENS, Judge.

Background

This case arises from the death of James “Jimmy” Ali

McCullen1 (“the decedent”) and the stabbing of Linda Paige.

1

There is some discrepancy regarding the decedent’s last name.

The State refers to him as Jimmy McCullough, and he is listed as

such in the warrant for Defendant’s arrest. However, the

transcript and Defendant’s brief exclusively refer to him as

Jimmy McCullen. Relying on the transcript as authoritative, we

employ that spelling here.

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Around 9:00 p.m. on 14 April 2009, the decedent was seen walking

outside the Club Spectrum, near Bragg Boulevard in Fayetteville,

dressed in drag. The decedent was working as a prostitute. Later

that night, the decedent was found lying in a pool of blood with

five stab wounds. A gray shirt and footprints indicating a

struggle were discovered nearby. No one at the scene knew the

identity of the perpetrator.

A few weeks later, on 8 May 2009, Defendant hired a female

prostitute, Linda Paige, to perform oral sex. This occurred

behind a vacant house near Mickey’s, a nightclub. Once Paige

finished, Defendant “snapped” and attacked her, stabbing her

several times. While Paige was helpless, Defendant took back his

payment and left the scene of the attack. According to

Defendant, people then started to chase him, and he ran to

Mickey’s. There he approached the bouncer, Nathaniel Butler, and

claimed that he was being chased by someone who was trying to

kill him. Butler put Defendant in a cab and told him to leave.

When Butler learned that police were coming, however, he removed

Defendant from the cab. Butler then frisked Defendant and found

a large knife in his sock.

Paramedics and police arrived at the scene of the stabbing.

They discovered Paige on the ground, “hurting and kind of crying

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[hysterically],” and Officer Alexander Herrera was informed that

the perpetrator had gone to Mickey’s. Paige was taken to the

hospital and released later that night. She did not testify at

trial. Herrera proceeded to the nightclub and asked the crowd

standing outside “who stabbed the lady across the street.”

Defendant stood up and responded, “I stabbed her.” Defendant was

then taken into custody, and one of the bouncers gave the knife

to Herrera.

Defendant was questioned on 9 May 2009. During the

interrogation, Defendant agreed to speak to the investigators

and waived his right to an attorney. Defendant then admitted to

murdering the decedent and stabbing Paige. He explained that he

had previously solicited a prostitute for oral sex without

realizing that the person was biologically male. When he

discovered this fact, Defendant became angry and wanted revenge.

According to Defendant, the desire for revenge against male

prostitutes became so strong that he “went up [Bragg Boulevard]

and I got the first one I saw,” i.e., the decedent. Defendant

admitted that he wanted the decedent to die and stabbed the

decedent multiple times “[a]ll over his body[,] all over his

body. I wanted to make sure he was dead.” Defendant also

referenced voices in his head, suicidal thoughts, and the

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feeling that there were demons inside him trying to escape.

Defendant was charged with assault with a deadly weapon

with intent to kill inflicting serious injury and first-degree

murder. Those charges were joined for trial.2 On 7 February 2011,

Defendant’s attorney filed a motion for a competency evaluation.

No further documentation regarding the request for such an

evaluation exists in the record on appeal, and Defendant’s

appellate counsel states that she “was unable to locate either a

transcript of a pre-trial hearing regarding [Defendant’s]

capacity to proceed or a written order by the trial court

finding him capable of proceeding to trial.”

The trial began on 26 November 2012 in Cumberland County

Superior Court. During the trial, a laboratory analyst for the

State Bureau of Investigation (“SBI”) testified regarding the

deoxyribonucleic acid (“DNA”) test results from the blood on the

decedent’s clothes and the gray shirt found at the scene. The

blood from the shirt was consistent with the decedent’s DNA, and

samples obtained from under the armpits and neck were consistent

with Defendant’s DNA. Additionally, the videotape of the

interrogation of Defendant was shown to the jury, and the

2

The record contains a copy of the motion and order for joinder,

but lacks a transcript of the hearing on that motion.

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transcript was admitted into evidence. After the evidence was

presented, the jury found Defendant guilty of first-degree

murder and assault with a deadly weapon inflicting serious

injury. Defendant was sentenced to life imprisonment without

parole for the murder and 25 to 39 months for the assault.

Defendant appeals.

Discussion

On appeal, counsel for Defendant states her opinion that

there are no meritorious issues for appellate review in this

case and files her brief pursuant to the procedure established

in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967)

and State v. Kinch, 314 N.C. 99, 331 S.E.2d 665 (1985).

Accordingly, counsel requests that this Court conduct an

independent examination of the record for any possible error and

properly appends a letter informing Defendant that she was

unable to identify any meritorious arguments on appeal. Counsel

also properly informed Defendant that he has the right to submit

his own written arguments in support of his appeal and provided

him with the necessary contact information to “request

additional time to prepare and submit [his] argument.” Counsel

included a copy of her brief and the record on appeal with her

letter to Defendant. She also indicated that she would provide a

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copy of the trial transcript if Defendant elected to file a

brief with this Court. This comports with the requirements set

forth in Anders and Kinch. See Kinch, 314 N.C. at 101–02, 331

S.E.2d at 667.

Defendant has failed to file any arguments with this Court.

Though counsel for Defendant believes there are no meritorious

arguments on appeal, she has directed our attention to two

possible issues: (1) whether the trial court abused its

discretion in allowing the State’s motion for joinder and (2)

whether the trial court erred in admitting the testimony of the

SBI analyst. After reviewing those issues and the entire record

on appeal, we find no error.

I. Joinder of Charges Against Defendant

The first possible issue suggested by defense counsel is

“[w]hether the trial court abused its discretion in joining the

two charges for trial, as joinder [may have] prejudiced Mr.

Oaks’[s] right to a fair trial.” We conclude that it did not.

“The motion to join is within the sound discretion of the

trial judge, and the trial judge’s ruling will not be disturbed

absent an abuse of discretion.” State v. Simmons, 167 N.C. App.

512, 516, 606 S.E.2d 133, 136 (2004), appeal dismissed and disc.

review denied, 359 N.C. 325, 611 S.E.2d 845 (2005). “Abuse of

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discretion results where the court’s ruling is manifestly

unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.” State v. Hennis, 323

N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

Two or more offenses may properly be joined

for trial if the offenses are “based on the

same act or transaction or on a series of

acts or transactions connected together or

constituting parts of a single scheme or

plan.” N.C. Gen. Stat. § 15A-926(a) (2003)

. . . . This Court has held that in ruling

upon a motion for joinder, a trial judge

must utilize a two-step analysis: (1) a

determination of whether the offenses have a

transactional connection and (2) if there is

a connection, a consideration of whether the

accused can receive a fair hearing on the

consolidated offenses at trial.

Simmons, 167 N.C. App. at 516, 606 S.E.2d at 136 (certain

citations omitted; emphasis in original). Joinder is generally

favored on public policy grounds because it “expedites the

administration of justice, reduces the congestion of trial

dockets, conserves judicial time, lessens the burden upon

citizens who must sacrifice both time and money to serve on

juries[,] and avoids the necessity of recalling witnesses who

would otherwise be called upon to testify only once.” State v.

Maness, 321 N.C. 454, 458, 364 S.E.2d 349, 351 (1988).

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As the State notes in its brief, the offenses in this case

were clearly connected by a series of acts as contemplated by

section 15A-926(a):

(1) [B]oth victims were prostitutes; (2) the

stabbings were committed in a span of mere

weeks and in roughly the same geographical

location; (3) the victims were stabbed

multiple times . . . ; and (4) [D]efendant’s

apprehension for and confession to the

second stabbing led directly to his

confession to the first stabbing.

We agree and, therefore, conclude that joining these offenses

did not deprive defendant of a fair trial. Accordingly, we hold

that the trial court did not abuse its discretion in allowing

the State’s motion for joinder.

II. The Testimony of the SBI Analyst

The second possible issue suggested by defense counsel is

whether the trial court erred in admitting the testimony of the

SBI analyst to show random match probability, where such

testimony may have relied on the “prosecutor’s fallacy” as

discussed in State v. Ragland, __ N.C. App. __, 739 S.E.2d 616

(2013). We conclude that the trial court did not err in allowing

the analyst’s testimony.

The North Carolina Supreme Court “has elected to review

unpreserved issues for plain error when they involve either (1)

errors in the judge’s instructions to the jury, or (2) rulings

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on the admissibility of evidence.” State v. Gregory, 342 N.C.

580, 584, 467 S.E.2d 28, 31 (1996). The testimony of the SBI

analyst was admitted at trial without objection and, thus, is

reviewed for plain error. Plain error arises when the alleged

error is “so basic, so prejudicial, so lacking in its elements

that justice cannot have been done.” State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (citation and internal

quotation marks omitted). “Under the plain error rule, [the]

defendant must convince [the appellate court] not only that

there was error, but that absent the error, the jury probably

would have reached a different result.” State v. Jordan, 333

N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted).

According to the United States Supreme Court,

[t]he prosecutor’s fallacy is the assumption

that the random match probability is the

same as the probability that the defendant

was not the source of the DNA sample. In

other words, if a juror is told the

probability a member of the general

population would share the same DNA is 1 in

10,000 (random match probability), and he

takes that to mean there is only a 1 in

10,000 chance that someone other than the

defendant is the source of the DNA found at

the crime scene (source probability), then

he has succumbed to the prosecutor’s

fallacy. It is further error to equate

source probability with probability of

guilt, unless there is no explanation other

than guilt for a person to be the source of

crime-scene DNA. This faulty reasoning may

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result in an erroneous statement that, based

on a random match probability of 1 in

10,000, there is a .01% chance the defendant

is innocent or a 99.99% chance the defendant

is guilty.

McDaniel v. Brown, 558 U.S. 120, 128, 175 L. Ed. 2d 582, 588

(2010) (citation omitted; emphasis added). The critical element

of the prosecutor’s fallacy is not the existence of testimony

about random match probability. Rather, it is the act of

assuming that such evidence also constitutes source probability

or — at the very least — the failure to correct such an

assumption.

In McDaniel, the defendant did not challenge

the State’s expert’s random match

probability opinion that only 1 in 3,000,000

people would have the same DNA profile as

the rapist. However, the Court explained

that the State’s expert failed to properly

dispel the prosecutor’s fallacy when the

prosecutor asked the State’s expert, in a

classic example of erroneously equating

source probability with random match

probability, whether “it would be fair to

say that . . . the likelihood that [the DNA

was] not the defendant[’s] would be

.000033,” and the State’s expert ultimately

agreed that it was not inaccurate to state

it that way.

State v. Ragland, __ N.C. App. __, __, 739 S.E.2d 616, 624

(2013) (brackets, ellipses, and certain internal quotation marks

omitted; emphasis added) (citing McDaniel, 558 U.S. at 128–29,

175 L. Ed. 2d at 588). Similarly, in Ragland, we held that an

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investigator “properly testified” at trial when he stated that

“the probability of randomly selecting an unrelated individual

with the DNA profile that matches the DNA profile obtained [in

this case] is greater than 1 trillion, which is more than the

world’s population for North Carolina Caucasian, Black, Lumbee

Indian[,] and Hispanic populations.” Id. at __, 739 S.E.2d at

625. It was only when the analyst expanded on his testimony by

concluding that the random match probability meant, “if it’s

over the world’s population, . . . that there could be no one

else other than [the defendant] in the world” and opined that

the DNA evidence in that case could “be no one other than [the

defendant]” that he engaged in the logical fallacy. Id.

Like the investigator in Ragland, the SBI analyst in this

case testified that, as to both the decedent and Defendant, the

“probability of randomly selecting an unrelated individual with

a DNA profile that matches the DNA profile obtained from the

cutting of the shirt [(i.e., random match probability)] . . . is

one in greater than one trillion which is more than the world’s

population in the North Carolina Caucasian, [B]lack, Lumbee,

Indian[,] and Hispanic populations.” Following that statement,

the analyst explained that it is “scientifically unreasonable”

to believe that the DNA obtained from the shirt could have

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originated from anyone other than the decedent or Defendant

unless either had an identical twin. This conclusion does not

assume that the random match probability is the same as the

source probability (i.e., the likelihood that Defendant and the

decedent are the sources of the DNA). Rather, it offers an

opinion regarding whether Defendant and the decedent are the

sources of the DNA pursuant to the low random match probability.

This is not a logical fallacy. Therefore, we hold that the trial

court did not err — much less plainly err — in admitting the

analyst’s testimony.

After carefully reviewing the transcript and record, we are

unable to find any possible prejudicial error at trial. The

offenses in this case were clearly connected by a series of

acts, and the trial court did not commit plain error in

admitting the testimony of the SBI analyst. Accordingly, we find

no error in Defendant’s trial.

NO ERROR.

Judges STEELMAN and DAVIS concur.

Report per Rule 30(e).