State v. Womble, COA23-642, ___ N.C. App. ___ (Dec. 31, 2024)

In this Richmond County case, defendant appealed his convictions for attempted first-degree murder, possession of a firearm by felon, and assault with a deadly weapon with intent to kill inflicting serious injury, arguing error in admitting an out-of-court statement from the victim under the residual hearsay exception and plain error in admitting a statement from the cashier of a convenience store. The Court of Appeals found no error.

In August of 2019, defendant and several friends visited a convenience store early in the morning. Defendant encountered the victim, and after a verbal exchange, defendant shot the victim in the neck and fled in his vehicle. Before trial, defendant or a third party acting on his behalf contacted several witnesses, including the victim, and attempted to bribe or threaten them not to testify. This led the State to file motions in limine to preclude defendant from confronting witnesses or admitting certain evidence, and to admit recordings of hearsay statements made by the victim and another witness. Hearing the motions, “[t]he trial court found that Defendant forfeited his right to confrontation of [the victim] and admitted the recording of [the victim’s] statement to Chief George Gillenwater under [Rules of Evidence] 803(24) and 804(b)(5).” Slip Op. at 6. The State also admitted body camera footage containing an identification of defendant by the cashier of the convenience store as a present sense impression. After being convicted, defendant filed many pro se motions on appeal, and appellate counsel moved to withdraw, all of which the Court of Appeals denied. The court found “no constitutional violation in appellate counsel’s refusal to submit arguments to us despite Defendant’s express desire and see no reason to allow counsel to withdraw or appoint substitute appointed counsel.” Id. at 9.

Reaching the substance of defendant’s arguments, the court explained that the trial court admitted the victim’s out-of-court identification of defendant as the person who shot him under the residual hearsay exception in Rule of Evidence 803(24). The court found the necessary indications of trustworthiness for admission and highlighted that the victim recanted this statement “only after he made the State aware that Defendant had begun threatening [him] and his family.” Id. at 14. The court also rejected a Confrontation Clause argument, as the victim was called as a witness by defendant, and defendant was free to question him about the statement.

The court then considered defendant’s argument that it was error to admit the out-of-court statement by the cashier on duty at the convenience store. Here the court noted that defendant did not object and the matter was not preserved, meaning defendant would have to meet the plain error standard from State v. Reber, 386 N.C. 153 (2024). Even assuming arguendo that it was error to admit the statement, the court held that defendant could not show the jury probably would have acquitted him but for the challenged evidence, as required by Reber.