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This is by far one of the worst cases I have ever read.  I am sharing it here so that James Tyler Michaux will not be forgotten!  

 

Legal Opinions regarding the case

IN THE MATTER OF: J.M., D.M. & K.M., Minor Children.

No. COA05-106

North Carolina Court of Appeals

Filed November 15, 2005

This case not for publication

Guilford County Nos. 03 J 297, 298 & 299.

Michael K. Newby for petitioner-appellee.

Joyce L. Terres for guardian ad litem.

Susan J. Hall for respondent-appellant.

McGEE, Judge.

J.F.M. (respondent) is the father of J.M., D.M., and K.M. (the children). Respondent is also the father of J.T.M., who died on 15 May 2003. The mother of all four children is not a party to this appeal.

The Guilford County Department of Social Services (DSS) filed a juvenile petition on 16 May 2003, alleging that the children were abused, neglected and dependent. Specifically, DSSalleged the children were abused because “a child sustained a serious physical injury by other than accidental means.” DSS alleged the children were neglected “in that they [were] less than 18 years of age and [had] been living in an injurious environment in the care of their mother and father and reside[d] in a home where another juvenile [had] died as a result of suspected abuse or neglect.” Finally, DSS alleged the children were dependent because they were minors and had “no parent, guardian or custodian willing or able to provide for their care and supervision and there [was] no known alternative plan.” The trial court entered an order for nonsecure custody on 16 May 2003, placing custody of the children with DSS.

In a pre-trial order, the parties stipulated to the following facts. Rockingham County Department of Social Services (RC DSS) previously had legal custody of all four children from 25 October 2002 until 15 May 2003. The Rockingham County trial court adjudicated all four children as neglected on 19 November 2002 and they were placed in foster care. J.M. and D.M. were moved from foster care to their grandparents’ home on 20 December 2002, but K.M. and J.T.M. remained in foster care.

The Rockingham County trial court allowed the parents to begin overnight visitation with all four children on 13 February 2003. The children initially visited their parents in groups of two. J.T.M. and K.M., who were twins, had regular overnight visitation with their parents from 14 February 2003 until 21 March 2003. The other two children, J.M. and D.M., also had regular overnight visitation with their parents during that period. J.T.M. and K.M. were placed in a full-time trial placement with their parents from 24 March 2003 until 15 May 2003, although J.T.M. was hospitalized from 8 April 2003 until 17 April 2003. There was a trial placement of J.M. and D.M. with their parents from 15 March 2003 until 15 May 2003. The Rockingham County trial court returned full custody of all four children to the parents on 15 May 2003.

At the adjudication hearing, Terry Pruitt (Mr. Pruitt) testified that he was the licensed foster parent of J.T.M. and K.M. from October 2002 until March 2003. Mr. Pruitt testified that on several occasions in February and March 2003, J.T.M. and K.M. had bruises and marks on them when they returned from visitation with their parents. Mr. Pruitt also testified that he informed social workers about the bruises and marks. He testified that K.M. had two dark bruises on the back of his thighs when K.M. returned to the foster home from visiting his parents on 21 February 2003. Mr. Pruitt also testified that on 6 March 2003, J.T.M. returned from visitation with his parents with bruises on his abdomen, on the back of his leg, and near his groin. Mr. Pruitt further testified that J.T.M. had scabs on his ear and elbow on 12 March 2003 when J.T.M. returned from visiting his parents. Mr. Pruitt testified that he visited J.T.M. in the hospital in April 2003 and that the child was very pale and thinner than he had been in March 2003 when J.T.M. left his foster home. He also testified that J.T.M. had a big scab on the end of his nose and multiple sores on his backside.

According to a 911 tape introduced into evidence at trial, the children’s mother called the 911 Center at 10:28 p.m. on 15 May 2003 to report that J.T.M. was not breathing. The children’s mother and respondent spoke with the 911 operator while respondent unsuccessfully attempted to administer CPR to J.T.M. The responding paramedic was unable to revive J.T.M. and he was takento the hospital. According to hospital records, J.T.M. arrived at High Point Regional Hospital at 11:11 p.m. Hospital staff members were also unable to revive J.T.M., who was pronounced dead at 11:24 p.m. on 15 May 2003.

Dr. John D. Butts (Dr. Butts), the Chief Medical Examiner for the State of North Carolina, testified that he conducted an autopsy on J.T.M. Dr. Butts testified that J.T.M. had multiple healing rib fractures, multiple bruises and a healing tear of his mesentery. Dr. Butts testified that the rib fractures occurred at least ten days to two weeks prior to 15 May 2003, the day J.T.M. died. Dr. Butts testified that the patterns of bruising and rib fractures were not consistent with the application of CPR. Dr. Butts further testified that “[J.T.M.] met the criteria for being diagnosed as being a battered child; that is, he had suffered injuries at multiple times; that these injuries were of a nature that they would not have been incurred, in [Dr. Butts’] opinion, in an unintentional or accidental fashion.”

Kimberly Madden, a counselor with the Moses Cone Health System assigned to the ChildEvaluation Clinic, testified that she conducted a child medical evaluation of J.M. on 29 May 2003. Kimberly Madden testified that, during the interview, J.M. said that “[respondent] made [J.T.M.] not breathe” and that respondent was mean to J.T.M. The trial court also received into evidence J.M.’s medical report and a video tape recording of J.M.’s child medical evaluation, both of which contained J.M.’s statements.

The children’s mother gave two statements to law enforcement, one on 1 October 2003 and the other on 27 October 2003. In the statements, the children’s mother implicated respondent in the physical abuse of J.T.M. and K.M. DSS offered, and the trial court received, the statements into evidence.

In support of its adjudication order, the trial court made twenty-five findings of fact, which are set forth below:

1. [J.M., D.M., J.T.M., and K.M.] were in [RC DSS] legal custody from October 25, 2002 to May 15, 2003 having been adjudicated dependent and neglected on November 19, 2002 in Went worth, North Carolina.

2. J.M. and D.M. were moved from foster care to their grandparents’ home on December 20, 2002, but the two younger children remained in foster care until March 24, 2003.

3. On February 13, 2003 at the initial post adjudication review, the Rockingham County [Trial] Court approved a consent order allowing overnight visitation for the [parents] with the above-named children with those children going to stay with their parents in groups of two with the oldest two alternating with the twins and the oldest two always visiting during the day on each Saturday.

4. There was a trial placement of J.M. and D.M. with [their parents] on March 15, 2003 until the case closed on May 15, 2003. From February 13, 2003 the [parents] had regular overnight unsupervised visitation with the twins, J.T.M. and K.M. on the following schedule:

             FROM                   TO

             2/14/03                2/21/03
             2/24/03                2/26/03
             3/04/03                3/07/03
             3/10/03                3/12/03
             3/14/03                3/17/03
             3/19/03                3/21/03

5. The twins were placed in a full-time trial placement with [their parents] on March 24, 2003 and remained there until the case closed in Rockingham County on May 15, 2003.

6. Subsequently, J.T.M. was hospitalized in Eden at Morehead Memorial Hospital from April 8, 2003 until April 17, 2003 suffering from what was diagnosed as a rotovirus infection and a failure to thrive.

7. The Rockingham County [Trial] Court returned full custody of all four children to the [parents] on May 15, 2003.

8. At 10:28 p.m. on May 15, 2003, the Guilford County 911 Center received a call from the [parents] indicating that the child, J.T.M. was not breathing.

9. Both the second responding fireman and the later arriving paramedic testified that [respondent] was acting suspicious upon their arrival. They further testified that [respondent] indicated the child had stopped breathing while he was feeding him. Both indicated that upon examination the airway was clear.

10. From all the witnesses presented, none of the health care professionals indicated that they ever discovered anything obstructing the airway although an ambulance narrative report indicated: “. . . suction airway 10-20 cc of thick white fluid airway cleared[.]”

11. Melissa Edwards, Emergency Room Nurse, also testified that no one at the hospital found any obstruction in the child’s breathing airway or had to clear the airway. She also spoke of the extensive bruising on the child and [lacerated] rectum as illustrated by the photographs entered into evidence. She also testified to [respondent’s] violent behavior at the hospital in that [he] turned over a piece of furniture and had to be restrained by the chaplain upon learning of the death of his child. The court notes that respondent[‘s] father[] testified in direct contradiction to the nurse as he indicated that [respondent] did not turn over a chair but that it was slid back by the grandfather as he caught [respondent] when [respondent] fell into his arms upon hearing that the baby was dead.

12. State Medical Examiner, John D. Butts, M.D., testified that pursuant to the autopsy which he had performed on the infant, that he determined that the child had healing fractures of the 7th, 8th, 9th and 11th ribs. Further, the child had recent fractures of the 7th rib. Also, there were numerous scattered bruises of the abdominal wall, head, cheek, legs and trunk region. Also, there was an old healing tear of the small intestine as well as a recent trauma to the same region. Further, there was a laceration or wound of some kind on the child’s heel. Dr. Butts gave his opinion that the pattern of bruises and fractures were inconsistent with . . . respondent[‘s] . . . explanation that they occurred while he was attempting CPR. He also gave his analysis that the old fractures and lacerated portion of the small intestine could have been incurred prior to April 8th and that some of these old fractures were also over two weeks to a month old on April 8th. Although, from the physical evidence, Dr. Butts was not able to determine the immediate cause of death, he did conclude that as a result of the series of unexplained non-accidental injuries the child suffered from battered child syndrome.

13. Respondent’s expert witness, Doctor Richard Jason, M.D., also acknowledged the injuries as described above. However, he concluded that the child did not suffer from battered childsyndrome and, in fact, died from choking on formula. He also contended that the pattern of bruises in the abdominal region was a result of botched CPR. However, he was unable to explain the old injuries, old fractured ribs, torn small intestine or the bruises to the head, upper body and legs.

14. Ms. D’Jarkata Solomon, the . . . DSS worker who interviewed [respondent] the day after thechild’s death testified that [respondent] indicated that he was performing CPR on the baby and that he called 911. He stated that he panicked because the child was not breathing and hit the baby on his leg, side and back with his hand.

15. Testimony was also received [concerning] a child medical evaluation on the minor child, J.M. (J.T.M.’s sibling) in which [J.M.] said, “Daddy made J.T.M. stop breathing and Daddy was mean to J.T.M.” The Court notes that there was no specific time frame or explanation for [J.M.’s] statement offered with the evidence.

16. Evidence from two prior statements made by the [children’s] mother . . . while she was in police custody in which she described [respondent] as physically abusing J.T.M. as well as sometimes choking K.M. The [children’s] mother in those statements had said that on May 15th [respondent] had been choking J.T.M. prior to his request that she call 911.

17. Testimony was received from the deceased infant’s foster care foster parent who testified to a pattern of bruises and other injuries, which occurred while its parents were exercising unsupervised visitation.

18. In particular, the Court finds that on March 7, 2003 . . . K.M. had severe bruising on his thighs and . . . J.T.M. had a bruise on his forehead. On March 12th, J.T.M. had a scrape on the tip of his ear and a mark on his finger. On March 14th, J.T.M. had a mark on his elbow. On March 17th, J.T.M. had a bruise on the back of his head as well as severe diaper rash. On March 21st, J.T.M. had a large bruise in his groin area. On April 1st, J.T.M. had diaper rash, sunburned nose and a bruise on his chin.

19. Rockingham County Social Worker, Susan Irving, [corroborated] Mr. Pruitt’s . . . [testimony] concerning the bruising. This witness offered explanations for the various injuries as reflected in her DSS case notes also introduced into evidence.

20. Testimony from several witnesses indicated that prior to May 15th they had . . . seen the baby and handled the baby, J.T.M., and had not seen extensive bruising that was present at the hospital. In particular, Bobby Woods, the [parents’] neighbor, testified that she kept the children in the morning of May 15th and that she did not see any bruises on J.T.M. in the morning, nor the injury to his foot.

21. Therefore, the parents were the sole caretakers of the dead infant prior to the 911 call which led to his transportation to High Point Regional Hospital where the extensive bruising was observed and recorded.

22. From all the evidence presented the Court finds that from all this evidence that there were substantial injuries to the dead infant J.T.M. such as the older rib fractures and a perforated small intestine which was present as early as April 8th as well as more, fracturing and very fresh injuries including fractures, extensive bruising and more injury to the small intestine.

23. Further, the Court finds that these injuries were non-accidental [and] occurred during periods of time when the parents had supervision over the dead infant and over an extended period of time, consequently, they conformed to the recognized definition of battered childsyndrome and that therefore, the infant J.T.M. was an abused juvenile.

24. Since the infant J.T.M. suffered abuse, the other children who were residing in that home, J.M., D.M., and K.M., were neglected under the provisions of N.C.G.S. 7B-101(15).

25. The Court finds that [DSS] was unable to prevent the filing of the petition and the removal of the [children] or make reasonable efforts due to the imminent threat of harm as described in the reasonable efforts report filed in this cause.

The trial court adjudicated the children as neglected in an order signed 10 May 2004. The trial court ordered that the children “remain in the physical and legal custody of [DSS]” in a dispositional order signed 25 May 2004. Respondent appeals from both orders.

I.

Respondent first argues “the trial court abused its discretion in concluding as a matter of law that the [children] were neglected as defined by [N.C. Gen. Stat. § 7B-101(15)] due to insufficiency of the evidence.” The appellate standard of review of a conclusion of law is limited to whether the conclusion is supported by the findings of fact. In re Helms, 127 N.C. App. 505, 511, 491 S.E.2d 672, 676 (1997). Findings of fact not excepted to are presumed to be supported by competent evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). Therefore, our only inquiry is whether the findings of fact support the conclusions of law. A neglected juvenile is defined as follows:

A juvenile who does not receive proper care, supervision, or discipline from the juvenile’s parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile’s welfare; or who has been placed for care or adoption in violation of law. In determining whether a juvenile is a neglected juvenile, it is relevant whether that juvenile lives in a home where another juvenile has died as a result of suspected abuse or neglect or lives in a home where another juvenile has been subjected to abuse or neglect by an adult who regularly lives in the home.

N.C. Gen. Stat. § 7B-101(15) (2003).

In the present case, findings of fact 1, 3, 4, 5, 7, 18, 21, 22, 23 and 24 support the trial court’s conclusion that the children were neglected juveniles. Pursuant to the definition of a neglected juvenile, evidence that J.T.M. was abused is relevant to a determination of whether the other children residing in the home were neglected. The findings clearly establish that the deceasedchild, J.T.M., had substantial, non-accidental injuries that occurred while J.T.M. and the other children were in their parents’ physical custody. The injuries indicated that J.T.M. suffered from battered child syndrome. The parents had abundant visitation with all four children in the months preceding J.T.M.’s death. All four children were in full-time trial placement with their parents from 24 March 2003 until 15 May 2003, the date J.T.M. died. Therefore, the findings of fact support the conclusion that the children were neglected juveniles.

II.

Respondent next argues the trial court abused its discretion by relying upon hearsay statements in concluding that the children were neglected. Specifically, respondent challenges the admission of (1) J.M.’s statements during a child medical evaluation and (2) statements of the children’s mother to law enforcement. The trial court incorporated the challenged statements into its order as purported findings of fact fifteen and sixteen. Respondent argues the trial court abused its discretion by relying upon those purported findings in concluding the children were neglected.

Pursuant to N.C. Gen. Stat. § 1A-1, Rule 52(a)(1) (2003), “In all actions tried upon the facts without a jury . . . the [trial] court shall find the facts specially and state separately its conclusions of law . . . .” However, a trial court need only make findings regarding the ultimate facts which are essential to support its conclusions of law. In re C.L.C., ___ N.C. App. ___, ___, 615 S.E.2d 704, 708 (2005) (citing Quick v. Quick, 305 N.C.446, 451-52, 290 S.E.2d 653, 657-58 (1982)). A trial court need not find make findings on the evidentiary facts. Id.“‘[R]ecitations of the testimony of each witness do not constitute findings of fact by the trial judge, because they do not reflect a conscious choice between the conflicting versions of the incident in question which emerged from all the evidence presented.'” Moore v. Moore, 160 N.C. App. 569, 571-72, 587 S.E.2d 74, 75 (2003) (quoting In re Green, 67 N.C. App. 501, 505 n.1, 313 S.E.2d 193, 195 n.1 (1984)) (emphasis in original).

In the case before us, the trial court began its adjudication order by finding the foundational facts in findings one through eight. The trial court then recited the testimony of the witnesses. In findings nine to seventeen, nineteen and twenty, the trial court illustrated the competing versions of events presented by respondent and DSS and the guardian ad litem. The trial court then complied with statutory mandates by resolving the factual discrepancies in making findings eighteen and twenty-one through twenty-four. The challenged findings, findings fifteen and sixteen, are merely recitations of trial testimony. They are not ultimate findings of fact necessary to support the trial court’s conclusion that the children were neglected. Therefore, the trial court did not abuse its discretion by including them in its order as recitations of trial testimony.

Assuming arguendo that the challenged evidence was inadmissible hearsay, “[t]he mere admission by the trial court of incompetent evidence over proper objection does not require reversal on appeal.” In re Huff, 140 N.C. App. 288, 301, 536 S.E.2d 838, 846 (2000), disc. review denied, 353 N.C. 374, 374, 547 S.E.2d 9, 9-10 (2001). An appellant must also show he was prejudiced by the admission of the incompetent evidence by demonstrating that the trial court relied on the incompetent evidence in making its findings. Id. Here, the trial court merely recited the challenged testimony. Furthermore, because the other findings adequately support the conclusion that respondent neglected the children, respondent has failed to demonstrate prejudicial error.

III.

Finally, respondent argues the trial court failed to make sufficient findings of fact pursuant to N.C. Gen. Stat. § 7B-507(a)(1) and (3) in its dispositional order. We disagree. N.C. Gen. Stat. § 7B-507(a) (2003) states:

An order placing or continuing the placement of a juvenile in the custody or placement responsibility of a county department of social services, whether an order for continued nonsecure custody, a dispositional order, or a review order:

(1) Shall contain a finding that the juvenile’s continuation in or return to the juvenile’s own home would be contrary to the juvenile’s best interest;

. . .

(3) Shall contain findings as to whether a county department of social services should continue to make reasonable efforts to prevent or eliminate the need for placement of the juvenile, unless the court has previously determined or determines under subsection (b) of this section that such efforts are not required or shall cease[.]

In the present case, the trial court complied with N.C.G.S. § 7B-507(a)(1). The trial court determined that “[i]t [was] contrary to the best interest of the [children] to be returned to the caretaker’s home at the present time[.]” Whether we label this a finding of fact or a conclusion of law, it is clear that the trial court made the requisite determination. We recognize that the better practice would have been for the trial court to have made this determination as both a finding and a conclusion. However, we need not remand the case for a restatement of the same determination.

The trial court also complied with N.C.G.S. § 7B-507(a)(3). A dispositional order need not contain a formal listing of the N.C.G.S. § 7B-507(a) criteria as long as the trial court makes findings regarding the relevant criteria. See In re M.R.D.C., 166 N.C. App. 693, 696, 603 S.E.2d 890, 892 (2004), disc. review denied, 359 N.C. 321, 611 S.E.2d 413 (2005). In its dispositional order, the trial court found:

[The parents] and their attorneys will co-operate with DSS reunification efforts and in particular the parties have agreed to DVIP counseling, supervised visitation; STAR participation parenting assessment and mental health assessment; supervised visitation and participation and co-operate with the UNC-CH School of Psychiatry Child Mal-Treatment Team evaluation and to sign all necessary information releases. The court notes the plan of reunification may be augmented pending the results of the UNC-CH School of Psychiatry Mal-Treatment Team’s recommendation.

These findings comply with the requirements of N.C.G.S. § 7B-507(a)(3). The findings detail the reasonable efforts DSS was required to make in a continuing effort to prevent the need for placement of the children. The trial court even noted that the plan of reunification could be augmented pending the results of the UNC-CH School of Psychiatry Child Mal-Treatment Team evaluation.

Respondent fails to set forth arguments pertaining to his remaining assignments of error and we deem them abandoned pursuant to N.C.R. App. P. 28(b)(6).

Affirmed.

Judges McCULLOUGH and JACKSON concur.

Report per Rule 30(e).

STATE OF NORTH CAROLINA
v.
JAMES FRANKLIN MICHAUX, Defendant.

No. COA06-1040

Court of Appeals of North Carolina.

Filed August 7, 2007

This case not for publication

Attorney General Roy Cooper, by Special Deputy Attorney General James P. Longest, Jr., for the State.

Richard E. Jester for defendant-appellant.

GEER, Judge.

Defendant James Franklin Michaux appeals from his convictions for first degree murder of his seven-month-old son, J.T.M., and felony child abuse inflicting serious bodily injury. With respect to defendant’s contentions on appeal regarding the admissibility of various testimony, we hold that defendant either himself elicited that testimony or has failed to demonstrate that he was prejudiced by the testimony. We have further concluded that, contrary to defendant’s position, the trial court properly instructed the jury regarding admissions since statements made by defendant to his wife and to a social worker qualified as admissions. Accordingly, we hold defendant received a trial free of prejudicial error.

Facts

At trial, the State’s evidence tended to show the following facts. In 2002, the Rockingham County Department of Social Services (“DSS“) began providing treatment services to defendant; his wife, Serita Michaux; and their two young children. Later in 2002, Ms. Michaux gave birth to twins, one of whom was J.T.M. The social worker assigned to the family testified regarding defendant’s domination of Ms. Michaux and his hostility to receiving assistance from DSS.

On one occasion, after J.T.M.’s birth, a restaurant owner, who had known defendant since he was a young boy, observed defendant playing too roughly with the child. After she told defendant, “you’re going to hurt that baby,” defendant responded: “It’s my damn baby. I’ll do what I want to.” When defendant learned that an employee of the restaurant had urged Ms. Michaux to leave him, defendant threatened to slap the employee and said, “Bitch, . . . I’ll burn your house down with you in it.”

Following a DSS safety assessment during which defendant was “explosive,” DSS concluded that the environment for defendant’s children was “unsafe” and, on 25 October 2002, placed J.T.M. and his twin with a foster family. In mid-February 2003, defendant and Ms. Michaux were allowed to have the twins for intermittent trial placements. After one such trial placement, J.T.M. returned to the foster family with noticeable scabbing and bruise marks, including bruising on his abdomen, groin area, and the backs of his thighs. Nonetheless, on 24 March 2003, physical custody of the twins was restored to defendant and Ms. Michaux. Shortly thereafter, on 8 April 2003, J.T.M. was admitted to Morehead Memorial Hospital. Nurse Amy White and other hospital staff examined J.T.M. and observed that he suffered from critical dehydration, a rash on his bottom, and bloody tissue around his rectum. According to Nurse White, J.T.M. was not behaving like a six-month-old, but rather “more like two months” because “he wouldn’t lift his head up[,] he wouldn’t try to lift his arms[,] he wouldn’t put his eyes on you . . .[;] [h]e was just totally weak.” X-rays taken at that time showed fractures to J.T.M.’s ninth and eleventh ribs that could have been caused by squeezing or a blow.

On 15 May 2003, emergency personnel were dispatched to defendant’s residence at about 10:30 p.m. for a “cardiac respiratory emergency.” When Chief Frazier of the Colfax Fire Department arrived, Ms. Michaux directed him to the back room of the house where defendant was holding J.T.M. When Chief Frazier took the child, he found no pulse and began CPR. Paramedic David Wilkins of the Guilford County Emergency Medical Services attempted to intubate the child in order to provide a direct line of air into the child’s lungs. There was no obstruction in the airway prior to the intubation attempt. When J.T.M. could not be revived at the scene, he was transported to High Point Regional Hospital.

When the child arrived shortly after 11:00 p.m. at the hospital, Nurse Misty Hooper noticed that the baby had bruising on the left side of his head, down the left side of his abdomen, on his right lower back, on his leg, and around his diaper line. The child’s foot also appeared as if “several layers of skin . . . had been peeled back,” and his rectum “was macerated . . . very abnormal appearing . . . [r]aw, almost.” Defendant and Ms. Michaux were asked by hospital staff about J.T.M.’s medical history, but they refused to provide the hospital staff with any information. Emergency room physician Dr. David Fisher unsuccessfully tried to resuscitate J.T.M. and then pronounced the seven-month-old dead.

Defendant was subsequently interviewed at the hospital by Rhonda Oboh, a social worker with the Guilford County Department of Social Services. He told Ms. Oboh “that he was feeding thechild and playing with the child and then the child all of a sudden went limp.” Defendant claimed that “he went to stick the bottle in the baby’s mouth, and that the child would not take the bottle, and that at that point he knew that something was wrong.” Defendant stated that he panicked, attempted CPR, and began tapping the child on his stomach, legs, and chest in order to get the child to respond.

Dr. John D. Butts, Chief Medical Examiner for the State of North Carolina, performed an autopsy of the victim on 16 May 2003. Dr. Butts observed a number of injuries on the child’sbody: bruises on the chin, forehead, chest, lower abdomen, and legs; tissue loss on the heel; both fresh and healing fractures to several ribs; and bruising in the wall of the small bowel and mesentery. Dr. Butts believed that “these injuries are all blunt force injuries,” that “a child of this age isn’t capable of incurring these injuries by itself,” and that they “were caused by another party.” Based on his findings, Dr. Butts concluded that the victim exhibited signs of “battered child syndrome.”

In September 2004, defendant was indicted for felony child abuse inflicting serious bodily injury and first degree murder. A superseding indictment on the felony child abuse charge was filed in August 2005. The case proceeded to trial during the 31 October 2005 criminal session of Guilford County Superior Court.

Ms. Michaux, who was herself indicted on murder and child abuse charges, testified at defendant’s trial pursuant to a plea agreement. According to Ms. Michaux, on the morning of J.T.M.’s death, she and defendant went to court and regained legal custody of their four children. Later in the day, the family accompanied defendant to his workplace. When the family returned home around 10:00 p.m., Ms. Michaux saw defendant take J.T.M. into the bedroom. After putting food in the oven for the older two children, Ms. Michaux went back to the bedroom and saw defendant choking the victim with his left hand. Ms. Michaux testified that she told defendant to stop, but defendant replied “it was his kid[,] he could do what he wanted to.”

Ms. Michaux left the room to get laundry. She then heard defendant yell that the baby was not breathing. In response, Ms. Michaux called 911. According to Ms. Michaux, defendant instructed her to never tell anyone about what happened the night of J.T.M.’s death. Ms. Michaux testified further that she did not tell the emergency personnel about defendant’s choking J.T.M. because she was scared of her husband. She stated that her husband had, in the past, choked her, threatened her with a jigsaw, kicked her in the leg with steel-toed boots, broken a picture over her head, thrown a glass at her, and hit her in the stomach when she was pregnant with the twins.

During her testimony, Ms. Michaux also described various instances of defendant’s physical abuse of J.T.M. before the night of his death. Defendant gave J.T.M. blood blisters by smacking his feet with a remote control; burned the victim’s ear with a lit cigarette; held the child’s nose shut so he could not breathe; and taped the child to the rails of his crib with black tape in order to keep him still while he pushed on his stomach and smacked his face.

Dr. Butts testified at trial that he reached an initial conclusion, following his autopsy, regarding the cause of death:

My opinion — based on the constellation of injuries I saw and the lack of any obvious natural process, congenital disease or something that might explain the death, it was my opinion and feeling this child had died as a result of external forces or causes of some type. But I didn’t — I was unable to identify a specific mechanism by which the child had died or had been killed.

Dr. Butts testified that he subsequently received additional information that prompted him to reassess his initial opinion. Based on this new information, Dr. Butts revised his initial opinion to reflect that “the death was the result of asphyxiation or consistent with asphyxiation” secondary to neck compression. During cross-examination by defendant’s counsel, Dr. Butts explained that the information was from a written statement provided by Ms. Michaux to the police that indicated she saw defendant choke the victim in the bedroom on the night of 15 May 2003.

At trial, defendant offered evidence from several witnesses. Dr. Donald Jason, a professor in pathology who reviewed Dr. Butts’ autopsy records, disputed Dr. Butts’ diagnosis of batteredchild syndrome and testified that all the evidence was “perfectly consistent with the childchoking on formula.” He explained further that “[a]ny attempt at CPR . . . would be expected to leave some bruising, depending on how forceful it was. And I found some bruising . . . consistent with two fingers over the child’s abdomen.” Dr. Jason went on: “In any case, this is not a child that died of being beaten to death. This is a child that apparently asphyxiated to death in some manner, although not by strangulation . . . .”

In addition, defendant presented evidence that Ms. Michaux had stated, on the night of J.T.M.’s death, that defendant was innocently trying to feed the child when he stopped breathing. Other witnesses testified that defendant was gentle with the children and a good parent, with any bruising on the child coming from one of the older Michaux children playing roughly around thechild. The jury found defendant guilty of felony child abuse inflicting serious bodily injury and first degree murder. On 8 November 2005, the trial court sentenced defendant to life imprisonment without parole for the murder conviction and to a term of 100 to 129 months imprisonment for the felony child abuse conviction. Defendant timely appealed to this Court.

I

Defendant first argues that the trial court erred in allowing Dr. Butts to testify as to his revised opinion that the victim’s “death was the result of asphyxiation or consistent with asphyxiation” secondary to neck compression. Anticipating that the State would seek to introduce evidence of Dr. Butts’ revised opinion, defendant made a motion in limine to exclude it. After a voir dire examination of Dr. Butts, the trial judge ruled:

With respect to the defendant’s motion in limine about Dr. Butts’ testimony, I will allow him to testify about his revised cause-of-death conclusion. However, I will limit that testimony with respect to the information that he received that prompted him to make that revised conclusion.

He will not be allowed to testify on direct examination about the fact that that statement came from Serita Michaux or that the statement was that the defendant was the one who was “choking” the victim in this case.

Defendant contends that, despite the court’s narrowly-tailored ruling, the admission of Dr. Butts’ revised opinion had the effect of impermissibly bolstering the credibility of Ms. Michaux and suggests, moreover, it was “unfair for a medical expert to change his opinion with no other basis than a statement of an accused codefendant.”

Contrary to defendant, we discern no prejudicial error because defendant himself created the prejudice of which he now complains. Following its motion in limine ruling, the trial court remarked to defense counsel: “whether or not you want to get into the specifics of [the source of the information] on cross and use [Dr. Butts] as a vehicle to attack Serita Michaux’s credibility, that’s up to you.” This strategy is exactly what defendant’s counsel elected to do.

During the direct examination of Dr. Butts, the prosecution fully complied with the court’s ruling, and no mention was made that Ms. Michaux was the source of the information relied upon by Dr. Butts. On cross-examination, however, defense counsel elicited the following testimony:

Q. Specifically, is the information you used to change your opinion statements that were made by Serita Michaux?

A. That’s my understanding.

Q. The mother of the child?

A. Yes, sir.

Q. And is one of the statements that you used to change your opinion “When I got to the door, I never went inside the bedroom `cause I seen [defendant] choking [J.T.M.] with one of his hands. Not both hands. [Defendant] was lying on the bed next to [J.T.M.] and I got scared, because I seen [J.T.M.’s] tongue hanging out of his mouth”?

Is that one of the statements you used to change your opinion?

A. Yes, sir.

Had defendant chosen not to introduce Ms. Michaux’s name during cross-examination, the source of Dr. Butts’ “additional information” would have remained entirely unknown to the jury. Further, not only did defendant’s counsel introduce Ms. Michaux as the source of the information, but he even read directly from Ms. Michaux’s statement to the police.

Thus, any bolstering of Ms. Michaux’s credibility resulted from the cross-examination and not the direct examination. Under these circumstances, any prejudice suffered by defendant is not remediable on appeal because it resulted from his own trial tactics. See State v. Mitchell, 342 N.C. 797, 806, 467 S.E.2d 416, 421 (1996) (“[D]efendant contends that statements made by Detective Harris . . . were hearsay. However, while the statement made by Detective Harris was hearsay, it was elicited from Detective Harris by defense counsel. Defendant cannot assign error to hearsay testimony which he elicited.”); N.C. Gen. Stat. § 15A-1443(c) (2005) (“A defendant is not prejudiced . . . by error resulting from his own conduct.”). Moreover, defendant used Dr. Butts’ opinion regarding asphyxiation to anticipate the defense theory — later put forth by Dr. Jason _ that J.T.M. likely died from choking on baby formula. We, therefore, overrule this assignment of error.

We decline to address defendant’s separate contention that, aside from the credibility issue, it is somehow “unfair for a medical expert to change his opinion with no other basis than a statement of an accused codefendant.” Defendant cites no authority to support this proposition and, therefore, any such argument is abandoned. N.C.R. App. P. 28(b)(6) (“Assignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”).

II

Defendant next argues that the trial court erred in allowing Dr. James Hilkey, a psychologist who had evaluated Ms. Michaux, to testify in a manner that bolstered Ms. Michaux’s credibility. Defendant points to the following testimony, addressing whether Ms. Michaux would lie to protect her husband: “It does not surprise me that Ms. Michaux would lie. Again, this is a person who has many, many deficits, many, many inadequacies, and is extremely insecure. And if she believes that lying would get her what she believes she needs, I think that she would do it.” Defendant maintains that Dr. Hilkey’s testimony suggested “that Serita Michaux is now telling the truth, because she was lying before.”

Assuming arguendo that the admission of Dr. Hilkey’s testimony was error, we fail to perceive how defendant was prejudiced by it. During closing argument, defense counsel exploited this testimony in defendant’s favor:

And you know, the State, through their own evidence, told you exactly why Serita Michaux was not telling the truth.

Remember Dr. Hilkey? The last thing Dr. Hilkey said when he left the witness stand?

In my opinion, I have no doubt — in my opinion, I have no doubt that she believes that lying — I have no doubt if she believed that lying will get her what she needs, that there’s no doubt that she’d do it. She’d lie to get whatever she needs.

And that was their witness. Not mine. Last thing he said.

. . . .

So when do you first hear these stories? When she’s in jail. And when, I contend to you, she wants to get out of jail. Then you have these three or four, five stories that she tells Detective Rogers. That’s the first time you hear them.

Why do you hear those? Because she needed to get something. She needed to get out of jail. So here comes the stories.

Thus, defendant took full advantage of Dr. Hilkey’s disputed testimony to undermine Ms. Michaux’s credibility.

“A defendant is prejudiced by errors . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a). In light of the fact that defendant found much to be gained from the precise testimony of Dr. Hilkey now challenged on appeal, we hold that defendant has failed to demonstrate the prejudice required under N.C. Gen. Stat. § 15A-1443(a). See State v. Moses, 350 N.C. 741, 765, 517 S.E.2d 853, 868 (1999) (rejecting argument that defendant was prejudiced by inadmissible testimony of expert witness in part because “defense counsel actually turned [expert’s] statement to his advantage and impeached him on that statement” during closing argument), cert. denied, 528 U.S. 1124, 145 L. Ed. 2d 826, 120 S. Ct. 951 (2000). This assignment of error is overruled.

III

Defendant next argues that the court erred in allowing Amy White, a registered nurse, to testify on redirect examination as to possible causes of the various conditions afflicting J.T.M. when he was hospitalized in April 2003, the month prior to his death. Defendant contends that Nurse White’s statements were improper lay opinion testimony since she had not been qualified as an expert witness.

We need not decide whether Nurse White could properly give opinion testimony of the type offered here because defendant “opened the door” to testimony by her as to possible causes of the child’s condition. As our Supreme Court has explained:

[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.

State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981).

When Nurse White testified on direct examination, the prosecutor limited her testimony to the physical symptoms exhibited by the child. On cross-examination, however, defense counsel went beyond the observable conditions and inquired whether there might be innocent causes — unrelated to child abuse — that could explain the occurrence of those conditions. Then, on redirect examination, and over defendant’s objections, the prosecutor asked a series of questions concerning whether the child’s conditions might just as likely have been caused bychild abuse. This line of questioning was acceptable on redirect given that defendant himself opened the door by asking questions regarding possible causation. See State v. Baymon, 336 N.C. 748, 754, 446 S.E.2d 1, 4 (1994) (“The purpose of redirect examination is to clarify any questions raised on cross-examination concerning the subject matter of direct examination and to confront any new matters which arose during cross-examination.”). Accordingly, we overrule this assignment of error.

IV

Finally, defendant contends that the trial court erred in providing the following jury instruction on “admissions” modeled on N.C.P.I.—Crim. 104.60:

If you find from the evidence presented that the defendant has admitted a fact relating to the crime charged in this case, then you should consider all of the circumstances under which the admission was made in determining whether it was a truthful admission and in determining the weight you will give to it.

“A trial court must give a requested instruction that is a correct statement of the law and is supported by the evidence.” State v. Conner, 345 N.C. 319, 328, 480 S.E.2d 626, 629, cert. denied, 522 U.S. 876, 139 L. Ed. 2d 134, 118 S. Ct. 196 (1997). In addition, “[a]n admission is a statement of pertinent facts which, in light of other evidence, is incriminating.” State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 879-80 (1986).

The record in this case reveals the following exchange between the prosecutor and Ms. Michaux: Q. What did [defendant] say when you told him to stop choking [J.T.M.]?

A. He said it was his kid; he could do what he wanted to.

Ms. Michaux then testified that defendant later instructed her not to tell anyone what had happened. These incriminating statements attributed to defendant are sufficient to support an instruction on admissions. See State v. Cummings, 353 N.C. 281, 295, 543 S.E.2d 849, 858(admissions instruction was proper in trial for first degree murder where defendant had told a detective that “[a] man meant to kill the lady because all you would have had to do was to push her down”), cert. denied, 534 U.S. 965, 151 L. Ed. 2d 286, 122 S. Ct. 375 (2001).

Further, the instruction was appropriate in connection with defendant’s theory that J.T.M. likely died from choking on baby formula. On the night of his son’s death, defendant told social worker Rhonda Oboh that “he went to stick the bottle in the baby’s mouth, and that the childwould not take the bottle, and that at that point he knew that something was wrong.” Defendant’s statement to Ms. Oboh, which tends to show that the child refused the bottle and, therefore, would not have ingested any formula, was relevant to the jury’s determination whether the child died innocently from choking on the formula or whether he was strangled. We conclude, in short, that an instruction on admissions was supported in the evidence and was, therefore, appropriately given to the jury.

No error.

Judges TYSON and ELMORE concur.

Report per Rule 30(e).

JAMES FRANKLIN MICHAUX, Petitioner,
v.
THE SECRETARY OF THE NORTH CAROLINA DEPARTMENT OF CORRECTION, Respondent.

No. 1:09CV141.

United States District Court, M.D. North Carolina.

June 22, 2009.

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

DONALD P. DIETRICH, Magistrate Judge.

Petitioner, a prisoner of the State of North Carolina, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The pertinent facts of the case, as set out by the North Carolina Court of Appeals, are as follows:

At trial, the State’s evidence tended to show the following facts. In 2002, the Rockingham County Department of Social Services (“DSS”) began providing treatment services to defendant; his wife, Serita Michaux; and their two young children. Later in 2002, Ms. Michaux gave birth to twins, one of whom was J.T.M. The social worker assigned to the family testified regarding defendant’s domination of Ms. Michaux and his hostility to receiving assistance from DSS.

On one occasion, after J.T.M.’s birth, a restaurant owner, who had known defendant since he was a young boy, observed defendant playing too roughly with the child. After she told defendant, “you’re going to hurt that baby,” defendant responded: “It’s my damn baby. I’ll do what I want to.” When defendant learned that an employee of the restaurant had urged Ms. Michaux to leave him, defendant threatened to slap the employee and said, “Bitch, … I’ll burn your house down with you in it.”

Following a DSS safety assessment during which defendant was “explosive,” DSS concluded that the environment for defendant’s children was “unsafe” and, on 25 October 2002, placed J.T.M. and his twin with a foster family. In mid-February 2003, defendant and Ms. Michaux were allowed to have the twins for intermittent trial placements. After one such trial placement, J.T.M. returned to the foster family with noticeable scabbing and bruise marks, including bruising on his abdomen, groin area, and the backs of his thighs. Nonetheless, on 24 March 2003, physical custody of the twins was restored to defendant and Ms. Michaux. Shortly thereafter, on 8 April 2003, J.T.M. was admitted to Morehead Memorial Hospital. Nurse Amy White and other hospital staff examined J.T.M. and observed that he suffered from critical dehydration, a rash on his bottom, and bloody tissue around his rectum. According to Nurse White, J.T.M. was not behaving like a six-month-old, but rather “more like two months” because “he wouldn’t lift his head up[,] he wouldn’t try to lift his arms[,] he wouldn’t put his eyes on you … [;][h]e was just totally weak.” X-rays taken at that time showed fractures to J.T.M.’s ninth and eleventh ribs that could have been caused by squeezing or a blow.

On 15 May 2003, emergency personnel were dispatched to defendant’s residence at about 10:30 p.m. for a “cardiac respiratory emergency.” When Chief Frazier of the Colfax Fire Department arrived, Ms. Michaux directed him to the back room of the house where defendant was holding J.T.M. When Chief Frazier took the child, he found no pulse and began CPR. Paramedic David Wilkins of the Guilford County Emergency Medical Services attempted to intubate the child in order to provide a direct line of air into the child’s lungs. There was no obstruction in the airway prior to the intubation attempt. When J.T.M. could not be revived at the scene, he was transported to High Point Regional Hospital.

When the child arrived shortly after 11:00 p.m. at the hospital, Nurse Misty Hooper noticed that the baby had bruising on the left side of his head, down the left side of his abdomen, on his right lower back, on his leg, and around his diaper line. The child’s foot also appeared as if “several layers of skin … had been peeled back,” and his rectum “was macerated … very abnormal appearing … [r]aw, almost.” Defendant and Ms. Michaux were asked by hospital staff about J.T.M.’s medical history, but they refused to provide the hospital staff with any information. Emergency room physician Dr. David Fisher unsuccessfully tried to resuscitate J.T.M. and then pronounced the seven-month-old dead.

Defendant was subsequently interviewed at the hospital by Rhonda Oboh, a social worker with the Guilford County Department of Social Services. He told Ms. Oboh “that he was feeding the child and playing with the child and then the child all of a sudden went limp.” Defendant claimed that “he went to stick the bottle in the baby’s mouth, and that the child would not take the bottle, and that at that point he knew that something was wrong.” Defendant stated that he panicked, attempted CPR, and began tapping the child on his stomach, legs, and chest in order to get the child to respond.

Dr. John D. Butts, Chief Medical Examiner for the State of North Carolina, performed an autopsy of the victim on 16 May 2003. Dr. Butts observed a number of injuries on the child’s body: bruises on the chin, forehead, chest, lower abdomen, and legs; tissue loss on the heel; both fresh and healing fractures to several ribs; and bruising in the wall of the small bowel and mesentery. Dr. Butts believed that “these injuries are all blunt force injuries,” that “a child of this age isn’t capable of incurring these injuries by itself,” and that they “were caused by another party.” Based on his findings, Dr. Butts concluded that the victim exhibited signs of “battered child syndrome.”

In September 2004, defendant was indicted for felony child abuse inflicting serious bodily injury and first degree murder. A superseding indictment on the felony child abuse charge was filed in August 2005. The case proceeded to trial during the 31 October 2005 criminal session of Guilford County Superior Court.

Ms. Michaux, who was herself indicted on murder and child abuse charges, testified at defendant’s trial pursuant to a plea agreement. According to Ms. Michaux, on the morning of J.T.M.’s death, she and defendant went to court and regained legal custody of their four children. Later in the day, the family accompanied defendant to his workplace. When the family returned home around 10:00 p.m., Ms. Michaux saw defendant take J.T.M. into the bedroom. After putting food in the oven for the older two children, Ms. Michaux went back to the bedroom and saw defendant choking the victim with his left hand. Ms. Michaux testified that she told defendant to stop, but defendant replied “it was his kid[,] he could do what he wanted to.”

Ms. Michaux left the room to get laundry. She then heard defendant yell that the baby was not breathing. In response, Ms. Michaux called 911. According to Ms. Michaux, defendant instructed her to never tell anyone about what happened the night of J.T.M.’s death. Ms. Michaux testified further that she did not tell the emergency personnel about defendant’s choking J.T.M. because she was scared of her husband. She stated that her husband had, in the past, choked her, threatened her with a jigsaw, kicked her in the leg with steel-toed boots, broken a picture over her head, thrown a glass at her, and hit her in the stomach when she was pregnant with the twins.

During her testimony, Ms. Michaux also described various instances of defendant’s physical abuse of J.T.M. before the night of his death. Defendant gave J.T.M. blood blisters by smacking his feet with a remote control; burned the victim’s ear with a lit cigarette; held the child’s nose shut so he could not breathe; and taped the child to the rails of his crib with black tape in order to keep him still while he pushed on his stomach and smacked his face.

Dr. Butts testified at trial that he reached an initial conclusion, following his autopsy, regarding the cause of death:

My opinion-based on the constellation of injuries I saw and the lack of any obvious natural process, congenital disease or something that might explain the death, it was my opinion and feeling this child had died as a result of external forces or causes of some type. But I didn’t-I was unable to identify a specific mechanism by which the child had died or had been killed.

Dr. Butts testified that he subsequently received additional information that prompted him to reassess his initial opinion. Based on this new information, Dr. Butts revised his initial opinion to reflect that “the death was the result of asphyxiation or consistent with asphyxiation” secondary to neck compression. During cross-examination by defendant’s counsel, Dr. Butts explained that the information was from a written statement provided by Ms. Michaux to the police that indicated she saw defendant choke the victim in the bedroom on the night of 15 May 2003.

At trial, defendant offered evidence from several witnesses. Dr. Donald Jason, a professor in pathology who reviewed Dr. Butts’ autopsy records, disputed Dr. Butts’ diagnosis of battered child syndrome and testified that all the evidence was “perfectly consistent with the child choking on formula.” He explained further that “[a]ny attempt at CPR … would be expected to leave some bruising, depending on how forceful it was. And I found some bruising … consistent with two fingers over the child’s abdomen.” Dr. Jason went on: “In any case, this is not a child that died of being beaten to death. This is a child that apparently asphyxiated to death in some manner, although not by strangulation….”

In addition, defendant presented evidence that Ms. Michaux had stated, on the night of J.T.M.’s death, that defendant was innocently trying to feed the child when he stopped breathing. Other witnesses testified that defendant was gentle with the children and a good parent, with any bruising on the child coming from one of the older Michaux children playing roughly around the child. The jury found defendant guilty of felony child abuse inflicting serious bodily injury and first degree murder. On 8 November 2005, the trial court sentenced defendant to life imprisonment without parole for the murder conviction and to a term of 100 to 129 months imprisonment for the felony child abuse conviction. Defendant timely appealed to this Court.

State v. Michaux, No. COA06-1040, at *1-4, 185 N.C. App. 160, 647 S.E.2d 688 (Aug. 07, 2007)(unpublished), rev. denied, 361 N.C. 700, 654 S.E.2d 706 (2007). Following his unsuccessful appeal, Petitioner filed his habeas petition in this Court.

Claims In The Petition

Petitioner raises two interrelated claims for relief in his petition. First, he claims that Dr. Butts’ expert opinion that the victim died of asphyxiation secondary to neck compression should not have been admitted because there was no proper basis for the opinion. Butts testified that he based this conclusion on Ms. Michaux’s statement that she saw Petitioner choking the victim. Petitioner argues that this violates “Rule 702.” Petitioner’s second claim is that Butts’ testimony improperly bolstered Ms. Michaux’s testimony that Petitioner choked the victim.

Discussion

Respondent’s primary contention in response to both of Petitioner’s claims is that they are procedurally barred from review in this Court. Absent cause and prejudice or a miscarriage of justice, a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule. See Harris v. Reed, 489 U.S. 255, 262 (1989). A procedural rule under which the state court has declined to consider the merits of a petitioner’s claims is adequate if it is regularly or consistently applied by the state court, Johnson v. Mississippi, 486 U.S. 578, 587 (1988), and is independent if it does not “depend. . . on a federal constitutional ruling,” Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

Here, Petitioner raised both of his current claims on direct review and the North Carolina Court of Appeals declined to consider either of them. It did base its decision on state procedural rules. As to Petitioner’s claim that it was improper for Butts to testify that his opinion changed based on Ms. Michaux’s statement, the North Carolina Court of Appeals stated that “[Petitioner] cites no authority to support this proposition and, therefore, any such argument is abandoned. N.C.R. App. P. 28(b)(6) (`Assignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned.’)” Michaux, No. COA06-1040, at *4.

Regarding Petitioner’s contention that Butts’ testimony improperly bolstered Ms. Michaux’s testimony, the North Carolina Court of Appeals noted that it was not revealed on direct examination that Ms. Michaux’s statement was the source of Dr. Butt’s opinion that the victim died from neck compression. Instead, Dr. Butts testified as to the source of his changed opinion only when asked for the source by Petitioner’s attorney on cross-examination. The North Carolina Court of Appeals held that “[u]nder these circumstances, any prejudice suffered by defendant is not remediable on appeal because it resulted from his own trial tactics.” Id. In support of its holding, it cited prior North Carolina case law dealing with invited error and N.C. Gen. Stat. § 15A-1443(c), which reads “[a] defendant is not prejudiced by . .. error resulting from his own conduct.”

Certainly, the North Carolina Court of Appeals’ denial of Petitioner’s claims was “independent.” No federal constitutional grounds were discussed and only state procedural rules were relied upon. The only question then is whether the rules were “adequate” to support a procedural bar.

It has been noted that N.C.R. App. P. 28 “is a long standing, regularly and consistently applied procedural default rule under North Carolina law.” Willoughby v. Langley, No. 303CV342-3-MU, 2006 WL 753173, at *3 (W.D.N.C. March 21, 2006)(unpublished, citing examples of its application). Likewise, Respondent cites several cases showing that N.C. Gen. Stat. § 15A-1443(c) is regularly and consistently applied. See, e.g., State v. Raines, 362 N.C. 1, 11-12, 653 S.E.2d 126 (2007)State v. Duke, 360 N.C. 110, 121-22, 623 S.E.2d 11 (2005)State v. Braxton, 352 N.C. 158, 202, 531 S.E.2d 428 (2000). Therefore, the North Carolina Court of Appeals’ use of these rules in Petitioner’s case was sufficient to bar Petitioner’s claims from review in this Court absent a showing of cause and prejudice or a miscarriage of justice. Petitioner has not even argued that he can make such a showing. Both of his claims are barred from habeas review.

Petitioner’s claims would also fail even if considered on their merits. Both claims are based on state court evidentiary rulings at trial. “Normally, the admissibility of evidence, the sufficiency of evidence, and instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented.”Grundler v. State of North Carolina, 283 F.2d 798, 802 (4th Cir. 1960). This holding was later reaffirmed by the Fourth Circuit in Spencer v. Murray, 5 F.3d 758, 762 (4th Cir. 1993). A state procedural error does not qualify for habeas relief unless there is “`a fundamental defect which inherently results in a complete miscarriage of justice,'” or there are “`exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'” Short v. Garrison, 678 F.2d 364, 369 (4th Cir. 1982)(quoting Hailey v. Dorsey, 580 F.2d 112, 115 (4th Cir. 1978)).

Petitioner has not shown that his trial was fundamentally deficient or that there are any exceptional circumstances. Butts’ testimony of severe physical abuse, combined with Ms. Michaux’s testimony and other evidence, provided more than sufficient evidence of Petitioner’s guilt even if Butts’ revised opinion had not been stated in the record. Further, if anything, the fact that Butts relied on the statement of an interested party, rather than any scientific or medical evidence, to form his opinion likely weakened his testimony to the jury. In total, Petitioner’s trial was not fundamentally unfair or deficient. Respondent’s motion for summary judgment should be granted even if Petitioner’s claims are considered on their merits.

IT IS THEREFORE RECOMMENDED that Respondent’s motion for summary judgment (docket no. 4) be granted, that the habeas petition (docket no. 1) be denied, and that judgment be entered dismissing this action.

2 Comments

    • jason shupe
    • Posted July 23, 2013 at 4:58 pm
    • Permalink

    LAWDOLL,,,, how do i get ahold of you for questions i have for my federal case lol.

    • Lawdoll
    • Posted July 24, 2013 at 2:54 pm
    • Permalink

    Jason there is probably not too much I can do to help you. You have to get a good attorney, one DSS doesn’t own and fight. Record all your phone calls with them and document everything!! I can’t stress that enough. Document, Document, Document!


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