Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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Criminal Procedure > Sex Offenders > Satellite-Based Monitoring (SBM) > Highest Level of Supervision and Monitoring
In this Nash County case, defendant appealed the order imposing a 25-year term of satellite-based monitoring (SBM), arguing error as defendant was not at high risk to reoffend and did not require the highest level of supervision and monitoring. The Court of Appeals disagreed, finding no error.
In August of 2020, defendant pleaded guilty to one count of indecent liberties with a child and was sentenced; subsequently the trial court held a SBM hearing and determined defendant was subject to SBM. In State v. Belfield, 289 N.C. App. 720 (2023) (unpublished), defendant appealed the SBM order, pointing out that the trial court’s order was on form AOC-CR-615, with a box checked indicating the decision was based on additional findings from “the attached form 618.” Slip Op. at 4 (cleaned up). This was significant as defendant’s Static-99 score was a four, which alone was not “high risk” and did not justify SBM, so the trial court had to consider additional evidence to justify the order. However, the order did not contain the referenced form 618, so the court vacated and remanded for the trial court to make findings of fact regarding the imposition of SBM. In October of 2023, the trial court heard the matter, considering the evidence from the previous SBM hearing and entered new findings, again imposing SBM. Defendant appealed that order, leading to the current decision.
Taking up defendant’s appeal a second time, the Court of Appeals explained that when, as here, a defendant does not have a “high risk” Static-99 score, the State must offer additional evidence, and the trial court must make additional findings, to justify a SBM sentence. Defendant argued that the trial court’s additional findings in this case were based upon “the trial court’s consideration of improperly duplicative evidence of matters already addressed in Defendant’s Static-99 risk assessment.” Id. at 11. The court disagreed with defendant, noting that while “additional findings cannot be based solely on matters already addressed in the Static99 risk assessment,” four of the additional findings here were supported by “competent evidence other than that of a defendant’s risk assessment” and justified the imposition of SBM. Id.
In this Catawba County case, the defendant pled guilty to five counts of indecent liberties with a minor in lieu of other related charges, including possession of child pornography and other sexual assaults on children. The State argued for the imposition of satellite-based monitoring (“SBM”), pointing to the factual bases for the pleas and a STATIC-99R assessment finding the defendant to be “Average Risk.” The trial court ordered the defendant to enroll in SBM for a term of ten years following his release from prison. The defendant sought certiorari review, arguing the trial court erred by ordering SBM, that the State failed to demonstrate that SBM was reasonable under State v. Grady, 372 N.C. 509 (2019), and that his trial counsel was ineffective for failing to raise a constitutional challenge to the SBM order.
(1) In addition to the factual bases and the STATIC-99R, the trial court found that the defendant assaulted several children of both genders, that those children were between 6 and 14 years old, and that the defendant abused a position of trust to facilitate the assaults. These findings were supported by the evidence: “The unobjected to evidence, that Defendant admitted as part of his plea bargain, provides competent evidence to support [these] additional findings.” Blankenship Slip op. at 7. These findings and the STATIC-99R also supported a finding that the defendant “require[d] the highest possible level of supervision,” warranting imposition of SBM. Id. at 8. The trial court properly considered the context of the offenses, and the additional findings were related to the defendant’s likely recidivism and were not duplicative of the STATIC-99R. The trial court did not therefore err in ordering the defendant to enroll in SBM.
(2) The defendant did not object or raise any challenge to the imposition of SBM for a term at the time of the order. Any constitutional objection was therefore unpreserved: “The defendant did not raise a constitutional issue before the trial court, cannot raise it for the first time on appeal, and has waived this argument on appeal.” Id. at 13. The court declined to invoke Rule 2 of the Rules of Appellate Procedure to review the unpreserved issue and dismissed the claim.
(3) The court likewise rejected any alleged ineffective assistance of counsel claim in the SBM context: “Our Court has held ‘hearings on SBM eligibility are civil proceedings.’. . .[and ineffective assistance of counsel] claims are not available in civil appeals such as that form an SBM eligibility hearing.” Id. at 14. This claim was also dismissed, and the trial court’s judgments were unanimously affirmed.
In this Iredell County case, the defendant was convicted of multiple counts of indecent liberties with a minor. He was ordered to enroll in satellite-based monitoring (“SBM”) for life as a recidivist offender. The North Carolina Supreme Court later decided State v. Grady (“Grady III”), 372 N.C. 509, 831 S.E.2d 542 (2019) (holding SBM unconstitutional as applied to recidivist offenders). A “review hearing” of defendant’s SBM enrollment was conducted following that decision. No motion or other pleading was filed by the State for the hearing. The defendant appeared pro se. The State presented a Static-99 risk assessment and recounted the defendant’s criminal record. The trial court ordered that the defendant remain enrolled in the SBM program for life, and the defendant appealed.
No basis for SBM existed in this case other than the defendant’s status as a recidivist. Grady III squarely held that one’s status as a recidivist alone is insufficient to justify SBM. The State argued that the defendant had been provided an opportunity to seek removal from the program at the review hearing, and that the trial court’s order was supported by the evidence. According to the State, the review process rendered the defendant ineligible for relief under Grady III. The court disagreed:
The State did not invoke the jurisdiction of the trial court for the [review] hearing during which Defendant was ostensibly provided with the post hoc process that the State claims disqualifies him from relief under Grady III. The State cannot avoid Grady III . . . by devising a procedure that itself violates Defendant’s rights. Billings Slip op. at 9.
While G.S. 14-208.40A permits the trial court to consider SBM at sentencing, and G.S. 14-208.40B permits a “bring-back” hearing where there has been no prior determination of SBM eligibility, neither of these statutes applied to the defendant’s situation. Further, case law is clear that the State may not seek reconsideration of SBM once the issue has been decided. See State v. Clayton, 206 N.C. App. 301 (2010) (imposition of SBM at probation violation was improper when issue had already been decided against the State at SBM hearing). Without a new reportable conviction, there was no jurisdictional basis for the purported SBM review hearing. The lack of a written motion or pleading also acted to deprive the trial court of jurisdiction. The SBM order was therefore vacated without prejudice, allowing the State to properly seek a SBM order if it desires.
Judge Tyson wrote separately to concur in result only. He noted that any discussion in the majority opinion beyond its holding that the trial court lacked jurisdiction was dicta.
In this case involving the trial court’s imposition of lifetime satellite-based monitoring (SBM) following the defendant’s conviction for statutory rape of a child by an adult and other sex offenses, the North Carolina Supreme Court held that the Court of Appeals erred by allowing the defendant’s petition for writ of certiorari and invoking Rule 2 of the Rules of Appellate Procedure to review the defendant’s unpreserved challenge to the SBM orders.
The defendant was convicted of three counts of statutory rape of a child by an adult, two counts of statutory sex offense with a child, and three counts of taking indecent liberties with a child. The trial court held an SBM hearing and determined that all of the defendant’s offenses were sexually violent and involved the physical, mental, or sexual abuse of a minor. The trial court also found that the statutory rape and statutory sex offense convictions were aggravated offenses. For these convictions, the trial court ordered lifetime SBM pursuant to G.S. 14-208.40A(c). The defendant did not object to the imposition of SBM or file a written notice of appeal from the SBM orders; nevertheless, he later petitioned the Court of Appeals for certiorari review. A divided Court of Appeals granted certiorari and invoked Rule 2. It then held that the trial court failed to conduct a reasonableness hearing pursuant to State v. Grady, 372 N.C. 509 (2019), and vacated the SBM orders.
The State appealed, and the North Carolina Supreme Court reversed, concluding that the Court of Appeals abused its discretion in granting review as the defendant’s petition failed to demonstrate the merit required for certiorari review and the defendant failed to demonstrate manifest injustice sufficient to invoke Rule 2. As to the merits, the Court reasoned that the trial court appropriately followed G.S. 14-208.40A(c) by imposing lifetime SBM because of the defendant’s status as an aggravated offender and that “[a]bsent an objection, the trial court was under no constitutional requirement to inquire into the reasonableness of imposing SBM.” The Court further concluded that the defendant was no different from other defendants who failed to preserve constitutional arguments and that the Court of Appeals therefore should have declined to invoke Rule 2.
Justice Hudson, joined by Justices Ervin and Earls, dissented. Justice Hudson expressed her view that the Court of Appeals did not abuse its discretion in granting certiorari and invoking Rule 2, reasoning that at the time of the Court of Appeals’ decision the law arguably required that the State present evidence of reasonableness and that the trial court make findings of reasonableness to order lifetime SBM for defendants classified as aggravated offenders.
In this Columbus County case, defendant appealed the denial of his motion for relief from the order imposing lifetime Satellite-Based Monitoring (SBM) for his second-degree rape conviction. The Court of Appeals reversed the denial and remanded to the trial court.
In August of 2021, the trial court entered an order imposing lifetime SBM on defendant after he completed his sentence for second-degree rape; defendant subsequently appealed the order. In September of 2021, the General Assembly amended the SBM statutes to alter the findings required to impose SBM and to allow an offender to petition for termination or modification if they were sentenced to a term of SBM longer than 10 years before December 1, 2021. After this amendment, defendant filed a motion under Rule of Civil Procedure 60(b)(6) with the trial court to set aside the order imposing lifetime SBM, “arguing the change to the SBM law mere weeks after he was ordered to submit to a lifetime of SBM constituted an extraordinary circumstance warranting relief.” Slip Op. at 2. The trial court held a hearing on the motion, during which the judge expressed the opinion that the pending appeal removed jurisdiction from the trial court. However, in the written order denying the motion, the trial court included a conclusion of law that “Rule 60(b)(6) does not apply because extraordinary circumstances do not exist.” Id. at 4.
Taking up the Rule 60(b) issue, the Court of Appeals found error in the conclusion that an appeal removed the trial court’s jurisdiction. The court explained that normally, an appeal removes the jurisdiction of the trial court, but there is an exception under Bell v. Martin, 43 N.C. App. 134 (1979), for Rule 60(b) motions. The Bellexception procedure allows the trial court to consider the Rule 60(b) motion and indicate on the record how it would rule:
Should the trial court indicate it would be in favor of granting the motion, the appellant would “be in position to move the appellate court to remand to the trial court for judgment on the motion.” If, on the other hand, the trial court indicated it would deny the motion, that indication “would be considered binding on that court and [the] appellant could then request appellate court review of the lower court’s action.”
Id. at 7, quoting Bell at 142 (cleaned up). Here, the trial court’s statements and order were “at odds with each other,” as it appeared the trial court did not think it had jurisdiction, but subsequently concluded that extraordinary circumstances did not exist to grant the Rule 60(b) motion. Id. at 9. This led the court to reverse and remand for a new hearing consistent with the Bell procedure.
In this Catawba County case, the defendant pled guilty to five counts of indecent liberties with a minor in lieu of other related charges, including possession of child pornography and other sexual assaults on children. The State argued for the imposition of satellite-based monitoring (“SBM”), pointing to the factual bases for the pleas and a STATIC-99R assessment finding the defendant to be “Average Risk.” The trial court ordered the defendant to enroll in SBM for a term of ten years following his release from prison. The defendant sought certiorari review, arguing the trial court erred by ordering SBM, that the State failed to demonstrate that SBM was reasonable under State v. Grady, 372 N.C. 509 (2019), and that his trial counsel was ineffective for failing to raise a constitutional challenge to the SBM order.
(1) In addition to the factual bases and the STATIC-99R, the trial court found that the defendant assaulted several children of both genders, that those children were between 6 and 14 years old, and that the defendant abused a position of trust to facilitate the assaults. These findings were supported by the evidence: “The unobjected to evidence, that Defendant admitted as part of his plea bargain, provides competent evidence to support [these] additional findings.” Blankenship Slip op. at 7. These findings and the STATIC-99R also supported a finding that the defendant “require[d] the highest possible level of supervision,” warranting imposition of SBM. Id. at 8. The trial court properly considered the context of the offenses, and the additional findings were related to the defendant’s likely recidivism and were not duplicative of the STATIC-99R. The trial court did not therefore err in ordering the defendant to enroll in SBM.
(2) The defendant did not object or raise any challenge to the imposition of SBM for a term at the time of the order. Any constitutional objection was therefore unpreserved: “The defendant did not raise a constitutional issue before the trial court, cannot raise it for the first time on appeal, and has waived this argument on appeal.” Id. at 13. The court declined to invoke Rule 2 of the Rules of Appellate Procedure to review the unpreserved issue and dismissed the claim.
(3) The court likewise rejected any alleged ineffective assistance of counsel claim in the SBM context: “Our Court has held ‘hearings on SBM eligibility are civil proceedings.’. . .[and ineffective assistance of counsel] claims are not available in civil appeals such as that form an SBM eligibility hearing.” Id. at 14. This claim was also dismissed, and the trial court’s judgments were unanimously affirmed.
The defendant was convicted of first-degree rape, kidnapping, and sex offense in Alamance County and sentenced to a minimum 420 months. The trial court ordered lifetime satellite-based monitoring (“SBM”), but no Grady hearing was conducted. The defendant sought certiorari review after failing to give proper notice of appeal. The court granted the petition. The defendant further sought to suspend the rules of appellate procedure to allow review of the unpreserved claim. Noting other cases where Rule 2 of the Rules of Appellate Procedure had been invoked to review claims on similar facts, the Court of Appeals allowed review.
Despite ample guidance from case law regarding the requirements for imposition of SBM, the State did not offer any evidence and the trial court did not conduct any hearing on the issue. The order was therefore vacated. Although the State is prohibited from trying again following an unsuccessful attempt to prove the appropriateness of SBM, here, it had no such opportunity given the lack of a hearing on the issue. The order was therefore vacated without prejudice, allowing the State to seek an SBM order if it desires.
Judge Tyson dissented and would not have allowed review of the unpreserved claim, calling the defendant’s appellate argument “frivolous.” Barnes Slip op. at 17 (Tyson, J., dissenting).
In this case involving rape and other sex crimes where the defendant was ordered to enroll in lifetime SBM, the court of appeals vacated the order imposing SBM because of uncertainty surrounding the evidentiary basis of the trial court’s decision. With regard to the issue of efficacy of SBM, at the SBM hearing a DPS employee testified regarding a 2015 California study of GPS monitoring of sex offenders and that study was introduced into evidence. However, the trial court’s order imposing SBM referred to a 2012 California study of GPS monitoring of sex offenders. The court of appeals vacated the order and remanded for clarification as to which California study the trial court relied upon.
The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.
Immediately after sentencing, the state asked to proceed with an evidentiary hearing on subjecting defendant to satellite-based monitoring (SBM) after his release. Rather than conduct a hearing, the trial court took notice of the facts presented at trial, defendant’s prior conviction, and the nature of the underlying offense, and ordered defendant placed on lifetime SBM. On appeal, defendant argued it was error to enter that order without conduct a hearing; the state conceded it was error, and the Court of Appeals agreed. To support an SBM order, the state must prove at a hearing that the search imposed by monitoring is reasonable as applied to the defendant, under the totality of the circumstances, weighing the defendant’s privacy rights against the state’s legitimate interests. The trial court’s order was reversed and the matter was remanded to conduct the hearing.
Because no evidence was presented prior to or to support the trial court’s lifetime SBM order, the court vacated that order and remanded for proper analysis and determination under G.S. 14-208.40A.
The Supreme Court affirmed per curiam the order denying defendant’s petition for writ of certiorari issued by a Wake County Superior Court judge. The court allowed a petition for discretionary review prior to determination by the Court of Appeals and combined this matter with State v. Diaz-Tomas, 2022-NCSC-115, for oral argument. The court affirmed the order for the reasons stated in Diaz-Tomas.
On discretionary review of a unanimous opinion of the Court of Appeals, 274 N.C. App. 65 (2020), the Supreme Court held in this Rowan County case that the trial court plainly erred by admitting testimony that violated the defendant’s attorney-client privilege and consequently reversed the trial court’s order relying on that testimony in denying the defendant’s motion to dismiss on speedy trial grounds.
The defendant was represented by four different attorneys over the six-year period from his arrest in June 2012 to his trial in October 2018 on various charges, including second-degree murder and attaining violent habitual felon status, arising from his involvement in a fatal motor vehicle crash in 2012. At a September 2018 hearing on the defendant’s speedy trial motion to dismiss, the trial court admitted testimony without objection from one of the defendant’s former attorneys, Davis, concerning his representation of the defendant and their communications about Davis’s strategic decision to delay the defendant’s trial. The Supreme Court determined that it was plain error to admit this testimony as it violated attorney-client privilege and served as the sole basis for the trial court’s conclusion in a Barker inquiry that the presumption of prejudice from the six-year delay between arrest and trial was rebutted. The Court rejected the State’s argument that the defendant waived the privilege by filing a pro se IAC motion, explaining that the motion was a “legal nullity” given that the defendant was represented by counsel at the time and thus “was not allowed to file pro se motions.” The Court went on to explain that the trial court had misapplied the proper standard for evaluating prejudice to a defendant resulting from a delayed trial by (1) assessing the prejudice of the delay to the State’s case and (2) concluding that the defendant was not prejudiced because he did not prove actual prejudice. The Court remanded the case for the trial court to consider any competent non-privileged evidence while applying the balancing framework and proper prejudice standard from Barker v. Wingo.
Justice Berger, joined by Chief Justice Newby and Justice Barringer, dissented, expressing the view that the majority improperly shifted the burden of proof from the defendant to the State and eliminated the Barker requirement that a defendant demonstrate prejudice caused by the delay. The dissent also expressed the view that the defendant had waived his attorney-client privilege.
In this case involving charges of first-degree sex offense with a child and indecent liberties, the court found that the procedural circumstances were “unsettling” but did not constitute an infringement upon the defendant’s constitutional right to a speedy trial. In May 2012, the defendant was indicted for offenses that allegedly occurred in March 2012. The defendant’s trial was not calendared for approximately five years and, at a July 2017 hearing on the defendant’s speedy trial motion to dismiss, an assistant clerk of court testified that there had been no trial activity in the defendant’s case from the date of indictment in May 2012 to January 2017. Applying the four-part test from Barker v. Wingo, the court found: (1) the length of delay between indictment and trial in this case was “striking and clearly raises a presumption” that the defendant’s speedy trial right may have been breached; (2) an assessment of the reason for the delay, largely attributed to a crowded docket and limited prosecutorial resources, “modestly [favored]” the defendant; (3) the defendant’s belated assertion of his right to a speedy trial, occurring nearly five years after his indictment, “weigh[ed] significantly against” the defendant; and (4) that the defendant did not suffer prejudice because of the delay. Engaging in a “difficult and sensitive balancing process” of the four Barker factors, the court held that the defendant’s right to a speedy trial was not violated.
In this Cherokee County case, defendant appealed his conviction for second-degree murder, claiming speedy trial issues and introduction of prejudicial evidence to the jury. The Court of Appeals found no error.
Defendant was arrested in May of 2016 for murdering the victim. That defendant shot the victim was undisputed, so the only issue at trial was whether the shooting was intentional. Defendant finally went on trial for first-degree murder in January of 2023. Before trial, defendant moved to dismiss on speedy trial grounds, but the trial court denied the motion. During trial, the State offered a photograph showing a blood-stained area around the house where the shooting happened, but later admitted to the trial court that the photograph was from an unrelated 2007 incident and struck the exhibit from the record. The trial court provided a curative instruction to the jury regarding the photograph. Defendant was ultimately convicted of second-degree murder and appealed.
Taking up the speedy trial issues, the Court of Appeals noted the delay was more than a year, triggering the balancing test from Barker v. Wingo, 407 U.S. 514 (1972). The four factors for the Barker test are “(1) length of the delay, (2) reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant.” Slip Op. at 3. Here, the court walked through the period of delay, noting that both defendant and the State bore some responsibility for the lengthy delay in reaching trial. However, defendant failed to “show that his defense was impaired by the delay” and failed to assert his right to a speedy trial “until approximately one month before the trial was scheduled to start,” justifying denial of his motion. Id. at 14.
Moving to the photograph, the court noted defendant could not demonstrate prejudice as “the photograph did not suggest Defendant had previously been arrested, tried, or convicted of a previous crime, or even that Defendant had previously committed a violent act.” Id. at 16. The court also held that “the [trial] court’s curative instruction was sufficiently clear and cured the jury from any purported prejudice the photograph may have caused.” Id. at 18.
In this Guilford County case, Defendant appealed his convictions for trafficking in methamphetamine, arguing insufficient evidence to support his convictions and denial of his right to a speedy trial. The Court of Appeals found no error.
In February of 2016, defendant was a part of a group who were involved in a drug deal with a confidential informant working with the Greensboro Police Department. The deal involved transport of a large amount of methamphetamine from Alabama to Greensboro. After observing defendant and his associates transport methamphetamine to a storage unit, police arrested defendant, and he was indicted on the trafficking charges. Defendant was tried three separate times; the first two, in April of 2018 and August of 2019, resulted in deadlocked juries. Defendant was eventually convicted after a trial in May of 2021.
The court first considered defendant’s arguments regarding sufficiency of the evidence to support his convictions, noting that the State presented substantial evidence to support defendant possessed the methamphetamine under an “acting in concert” theory. Slip Op. at 9-10. The court then applied the same evidence to the transporting element of defendant’s convictions, again finding substantial evidence in the record. Id. at 11-12. Finally, examining the conspiracy elements, the court found ample evidence of communication and cooperation with co-conspirators supporting the conviction. Id. at 14.
The procedural history of defendant’s three trials is extensive and detailed on pages 17-18 of the slip opinion; notably the case began before COVID-19 delays but was also subject to delays during 2020. The court explained that North Carolina courts follow the four-factor analysis from Barker v. Wingo, 407 U.S. 514 (1972), when performing a speedy trial analysis. Id. at 19. To determine whether a violation occurred, the court examined all of defendant’s speedy-trial motions and walked through the four Barker factors, determining that: (1) the length of the delay was sufficient to trigger a speedy-trial analysis; (2) although the choices to prosecute one of defendant’s co-conspirators, and to perform transcription of the contact between co-defendants and of the trial proceedings contributed to the delay, they did not represent the State’s negligence or willful delay; (3) the defendant asserted his right to speedy trial repeatedly; and (4) the delay was not prejudicial to defendant’s ability to present a defense as he did present any witnesses or evidence. After walking through the Barker analysis, the court concluded that the balance favored the State.
The defendant appealed from his Alamance County convictions for attempted murder, discharging a weapon into an occupied vehicle, possession of firearm by felon, and assault with a deadly weapon with intent to kill. The offenses arose from an incident where the defendant and his romantic partner shot at a Child Protective Services worker while the worker was in her car. The partner later pled guilty to various offenses and agreed to testify against the defendant. (1) The defendant argued at trial that possession of firearm by felon requires actual possession and that a constructive possession instruction was improper. The trial court overruled the objection and gave the constructive possession instruction. On appeal, the defendant contended that the evidence did not support an instruction on constructive possession. Reviewing for plain error, the court determined the instructions on constructive possession and possession of firearm by felon were supported by the evidence and properly given. Any potential error from the constructive possession instruction did not impact the verdict, and this argument was rejected.
(2) The defendant also challenged the attempted first-degree murder instruction. Because no objection was made during the charge conference, the issue was again reviewed only for plain error. The instruction told jurors that if they found that the defendant intentionally inflicted harm upon the victim with a deadly weapon, the jurors could infer both an unlawful act and malice by the defendant. Here, the victim was not actually wounded during the shooting, and the defendant argued the instruction was therefore improper. The court again disagreed. The instructions as a whole properly placed the burden of proof on the State, and it was unlikely that any error here had an impact on the verdict. “As the State could not meet its burden of proving that the Defendant intentionally inflicted a wound on [the victim], the jury was not permitted to infer that Defendant acted unlawfully and with malice. We assume the jury followed the court’s instructions.” Neal Slip op. at 17. There was therefore no plain error in the attempted murder instructions.
(3) The defendant’s appeal was delayed for a year due to ten extensions of time for the court reporter to complete the trial transcript. Undue delay of a criminal appeal can create a due process violation. To determine whether a speedy appeal violation has occurred, the court examines the same factors it would in a speedy trial case. See Barker v. Wingo, 407 U.S. 514 (1972). Here, the delay of more than a year was sufficient to trigger the Barker inquiry. However, the court approved each request for extension of time to complete the transcript. The reason for the delay was therefore not attributable to the defendant or the State. The defendant did not assert a speedy appeal claim before filing his brief, and his alleged statements to appellate counsel to expedite the appeal did not count as a formal assertion of the right. Finally, the defendant claimed unique stresses from incarceration during COVID-19 and faded memory as prejudice. The court rejected this argument. The defendant failed to show that any significant and helpful evidence was lost due to his faded memory. Further, the defendant ultimately received the full transcript. This precluded a finding of prejudice. “Acknowledging Defendant’s allegation of stress caused by incarceration during the pandemic, Defendant has failed to show prejudice resulting from the delay.” Neal Slip op. at 21. There was therefore no due process violation, and the convictions were unanimously affirmed in full.
In this Guilford County case, the defendant was convicted by a jury of indecent liberties with a child in May 2019 for a 2011 incident involving his daughter’s 6-year-old friend. He was sentenced to 28-43 months in prison and ordered to enroll in satellite-based monitoring for life. (1) The defendant argued on appeal that his right to a speedy trial was violated by the seven-year delay between his arrest and trial. Applying the four-factor test from Barker v. Wingo, 407 U.S. 514 (1972) (the length of delay; the reason for the delay; the defendant’s assertion of his right; and prejudice to the defendant), the Court of Appeals concluded that there was no speedy trial violation. The seven-year delay undoubtedly triggered the need to continue the Barker inquiry. As to the second factor, however, the record showed that the vast majority of the delay was attributable to the defendant’s motions to remove counsel—he had four lawyers before eventually proceeding pro se—or to a good faith delay on the part of the State resulting from the serious illness of the lead investigator. As to the third factor, the defendant did repeatedly, albeit improperly, assert his right to a speedy trial, but that alone, the Court of Appeals said, did not entitle him to relief. As to the fourth factor, the defendant asserted two ways he was prejudiced by the delay in his trial: that he hadn’t seen his daughter since his arrest, and that it was difficult to contact witnesses. The Court rejected the defendant’s assertion regarding his daughter, because the defendant was also incarcerated on other charges during the pendency of the charges at issue in this case, and he would therefore have been unable to see his daughter regardless. The Court likewise rejected the defendant’s assertion regarding witness availability, concluding that the defendant had merely asserted that the witnesses were “hard to get up with,” but not shown that they were actually unavailable. Weighing all the factors, the Court found no speedy trial violation.
(2) The defendant also argued that the trial court erred by denying his motion for a mistrial based on a juror’s contact with his mother during jury deliberations. The Court rejected that argument, concluding that the trial court properly determined through a thorough examination of the juror that the juror had not been improperly influenced by his conversation with his mother.
(3) Finally, the defendant argued that the trial court erred in imposing lifetime SBM because the State failed to establish that SBM was a reasonable search under the Fourth Amendment. The Court of Appeals declined to invoke Rule 2 of the Rules of Appellate Procedure to consider the merits of the argument, which was not raised in the trial court. As to the defendant’s alternative argument that his lawyer provided ineffective assistance by failing to object to SBM in the trial court, the Court of Appeals concluded that a constitutional claim of ineffective assistance was unavailable under earlier precedent, but a statutory claim was available under G.S. 7A-451(a)(18), because the statutory right to counsel includes the right to effective counsel. Applying the requisite analytical framework, the Court held that the defendant’s lawyer’s performance was deficient, and that the deficiency prejudiced the defendant. The Court therefore reversed the SBM order and remanded the matter for a hearing on the reasonableness of SBM.
The plaintiff sued the State of North Carolina, City of Durham, various people who worked for the State Bureau of Investigation, the Durham Police Department, and the Durham County District Attorney’s office for a permanent injunction and money damages to redress harms allegedly suffered in connection with his pretrial detention, investigation, and prosecution. The plaintiff, then the criminal defendant, was arrested in 2002 for a home invasion involving an armed robbery and attempted sexual assault and was tried almost five years later. The Court of Appeals, in State v. Washington, 192 N.C. App. 277, vacated his conviction, finding a denial of his speedy trial rights under the United States and North Carolina Constitutions. The trial judge in this case granted the civil defendants’ motion for summary judgment against the plaintiff on his claim that the defendants violated his state constitutional right to a speedy trial. The Court of Appeals recognized that a victim of a constitutional violation may sue for some constitutional violations, such as a violation of the Fourth Amendment protection against unreasonable searches and seizures under the United States Constitution, but the right to sue for damages has not been extended to the deprivation of the Sixth Amendment right to a speedy trial. The Court declined to recognize a private cause of action for the deprivation of the right to a speedy trial under the North Carolina Constitution. Noting that the plaintiff did not appeal the trial judge’s decision about the causes of action alleged by the plaintiff other than his state constitutional claim, the Court declined to address the other causes of action.
In this child sexual assault case, the court remanded for further findings with respect to the defendant’s speedy trial motion. Although the trial court was not obligated to consider the defendant’s pro se speedy trial motion while he was represented, because it did so, it erred by failing to consider all of the Barker v. Wingo, 407 U.S. 514 (1972) factors and making appropriate findings. The court remanded for a proper Barker v. Wingo analysis and appropriate findings.
The court rejected the defendant’s argument that the trial court’s judgment finding him guilty of Class D discharging a firearm into an occupied dwelling is inconsistent with the jury verdict. Specifically, the defendant argued that the jury only found him guilty of the Class E version of the offense. The court found that the record showed otherwise, notwithstanding the fact that the trial court instructed the jury with respect to shooting into a specified “house.”
The Supreme Court reversed a Louisiana state court and held that the Sixth Amendment gives defendants a right to a unanimous jury verdict that applies to the states. The defendant was convicted of murder in 2016 based on a 10–2 jury verdict, which was a sufficient basis for conviction under then-existing Louisiana state law. (Oregon is the only other state that allows convictions based on nonunanimous verdicts.) Justice Gorsuch wrote a majority opinion joined in full by Justices Ginsburg and Breyer and in part by Justices Sotomayor and Kavanaugh, concluding based on the historical context in which the Sixth Amendment was adopted that the entitlement to an impartial jury included the right, applicable in both the federal courts and the state courts, to a unanimous jury to be convicted. The Court disclaimed the precedential value of Apodaca v. Oregon, 406 U.S. 404 (1972), a case in which a four-Justice plurality plus a lone Justice resolving the case on other grounds upheld an Oregon conviction that was based on a nonunanimous verdict. Justice Sotomayor wrote a concurring opinion saying that Apodaca must be overruled, not only because of its dubious reasoning, but also because of the racially discriminatory origins of the Louisiana and Oregon laws the case upheld. Justice Kavanaugh likewise wrote separately to concur and to share more extended thoughts on the application of stare decisis in this case. Justice Thomas concurred in the judgment, noting his agreement that the requirement for a unanimous jury verdict applies to the states, but under his own view that it applies through the Fourteenth Amendment Privileges or Immunities Clause, not the Due Process Clause. Justice Alito wrote a dissent, joined by Chief Justice Roberts and joined in part by Justice Kagan, arguing that the lower court should have been affirmed under Apodaca.
In this Alamance County case, defendant appealed his convictions for assault by pointing a gun and discharging a weapon into an occupied vehicle, challenging the juror substitution provision G.S. 15A-1215(a) as unconstitutional. The Court of Appeals agreed, vacating defendant’s convictions and remanding for a new trial.
In November of 2017, defendant was involved in a dispute after a near-collision with another driver. After exchanging words, defendant and his passenger pulled out guns, and eventually shots were fired at the other vehicle. Defendant came to trial in April of 2022. After the presentation of all evidence and when the jury had begun deliberations, one of the jurors went missing due to a foot injury. After learning the juror suffered an injury that required a trip to the emergency room, the trial court spoke to defense counsel and the prosecutor, and then appointed an alternate juror. The trial court followed the procedures required by G.S. 15A-1215(a), including an instruction to begin deliberations anew. Defendant was subsequently convicted.
Taking up defendant’s argument, the Court of Appeals explained that precedent from State v. Chambers, COA22-1063, ___ N.C. App. ___ (Feb. 20, 2024), controlled, and justified finding the substitution of a juror in this case as unconstitutional. The opinion of the court spent substantial time exploring the relevant caselaw, and pointing out the issues created by the Chambers holding, noting that “[t]he Chambers Court did not explain how or why a verdict delivered in open court by a properly constituted and instructed jury of twelve in compliance with [G.S.] 15A-1215(a) violates article I, Section 24 of the North Carolina Constitution.” Slip Op. at 10. After acknowledging that the Chambers case was subject to a stay and may be taken up by the North Carolina Supreme Court, the court concluded it was bound by the Chambers precedent to grant defendant a new trial.
Judge Arrowwood concurred only in the result by separate opinion, and wrote to express concern with the Chambers case itself and the possible violations of precedent in that case.
Judge Griffin concurred but wrote separately to disagree with the lead opinion’s tone and interpretation of the Chambers opinion.
In this Wake County case, defendant appealed his convictions for first-degree murder and assault with a deadly weapon, arguing his right to a properly constituted jury was violated when the trial court substituted an alternate juror after the jury began deliberations. The Court of Appeals agreed, vacating his convictions and remanding for a new trial.
Defendant came to trial in August of 2018 for a shooting at a Raleigh motel. After jury deliberations began, a juror informed the trial court that he had a doctor’s appointment and could not return the next day. The trial court replaced the juror with an alternate juror and ordered the jury to restart deliberations; defendant was not present in the courtroom when the substitution was made. Defendant subsequently appealed.
Turning to defendant’s arguments, the Court of Appeals concluded that the trial court’s substitution of an alternate juror was error. The court referenced State v. Bunning, 346 N.C. 253 (1997), and explained that the N.C. Supreme Court has interpreted the unanimous verdict requirement of the North Carolina Constitution in Article I, § 24 “to preclude juror substitution during a trial after the commencement of jury deliberations.” Slip Op. at 3. Because the substitution meant that thirteen jurors participated in the deliberations for defendant’s convictions, “[d]efendant’s constitutional right to a properly constituted jury of twelve was violated when the trial court substituted an original juror with an alternate juror after the commencement of jury deliberations.” Id. at 4. The court reached this conclusion despite the text of G.S. 15A-1215(a), noting that “where a statute conflicts with our state constitution, we must follow our state constitution.” Id. at 5.
In this first-degree rape and second-degree sexual offense case, the trial court did not err in accepting the jury’s verdicts finding the defendant guilty of both offenses despite the fact that first-degree rape requires a finding of infliction of serious personal injury while second-degree rape does not. Responding to the defendant’s argument that if the jury determined that he had inflicted serious injury on the victim it should have convicted him of first-degree forcible sexual offense rather than the lesser included offense of second-degree forcible sexual offense, the court explained that the verdicts were at most inconsistent rather than mutually exclusive and that there was sufficient evidence of each offense. The court went on to reason that it was possible that the jury could have determined that the defendant’s infliction of serious personal injury upon the victim was done to accomplish the forcible rape but not the forcible sex offense.
Guilty verdicts of breaking or entering and discharging a firearm into occupied property were not mutually exclusive. The defendant argued that he could not both be in the building and shooting into the building at the same time. The court rejected this argument noting that the offenses occurred in succession, the defendant would be guilty of the discharging offense regardless of whether or not he was standing on a screened-in porch at the time, and that in any event the defendant was not in the building when he was standing on the porch.
The trial court did not err in accepting seemingly inconsistent verdicts of guilty of misdemeanor assault with a deadly weapon and not guilty of possession of a firearm by a felon.
The court agreed with the court of appeals’ decision in State v. Sargeant, 206 N.C. App. 1 (Aug. 3, 2010), which had held, over a dissent, that the trial court erred by taking a partial verdict. However, because the court concluded that a new trial was warranted on account of a prejudicial ruling on an unrelated evidence issue, it did not analyze whether the verdict error was prejudicial. The court of appeals’ decision described the verdict issue as follows. The defendant was convicted of first-degree murder, first-degree kidnapping, robbery with a dangerous weapon, and burning of personal property. At the end of the first day of deliberations, the jury had not reached a unanimous decision as to each of the charges. The trial court asked the jury to submit verdict sheets for any of the charges for which it had unanimously found the defendant guilty. The trial court then received the jury’s verdicts finding the defendant guilty of first-degree kidnapping, robbery with a dangerous weapon, and burning of personal property, as well as first-degree murder on the bases of both felony murder and lying in wait. The only issue left for the jury to decide was whether the defendant was guilty of first-degree murder on the basis of premeditation and deliberation. The next morning, the court gave the jury a new verdict sheet asking only whether the defendant was guilty of first-degree murder on the basis of premeditation and deliberation. The jury returned a guilty verdict later that day. The court of appeals concluded that the trial court erred by taking a verdict as to lying in wait and felony murder when the jury had not yet agreed on premeditation and deliberation. It reasoned that premeditation and deliberation, felony murder, and lying in wait are not crimes, but rather theories of first-degree murder and the trial court cannot take a verdict on a theory. Therefore, the court of appeals concluded, the trial court erred by taking partial verdicts on theories of first-degree murder. As noted above, the supreme court agreed that error occurred but declined to assess whether it was prejudicial.
Based on the facts of the case, the clerk properly polled the jury in accordance with G.S. 15A-1238.
The clerk was not required to question the jurors separately about each of the two offenses; the polling was proper when the clerk posed one question about both offenses, to each juror individually.
The trial court did not err by examining the verdict sheet returned by the jury, rejecting the verdict, and instructing the jury to answer each question. The trial court acted before consulting with counsel but did consult with counsel after the jury was removed from the courtroom. The court noted that “While it would have been preferable for the trial court to have excused the jury from the courtroom, and allowed counsel to view the verdict sheet and to be heard prior to the court’s instructions to the jury, we can discern no prejudice to defendant based upon what [actually] happened.” The court noted that because the trial court instructed the jury to re-mark the verdict sheet next to their original markings, the original markings were preserved.
The due process clause of the 14th Amendment requires that an applicant be afforded an opportunity for an evidentiary hearing to contest the denial of his application for renewal of a Concealed Handgun Permit pursuant to G.S. 14-415.12(a)(3). Daniel DeBruhl, who had maintained a Concealed Handgun Permit for 10 years, submitted an application for the renewal of his permit to the county Sheriff’s Office. The Sheriff’s Office issued a perfunctory denial of the application, without notice of the nature of or basis for the denial or any opportunity for DeBruhl to be heard. DeBruhl appealed the Sheriff’s decision to the District Court, arguing that there was no way for him to know what facts to challenge on appeal because no detail was provided in the denial. The District Court denied the appeal, finding in part that the permit was denied because DeBruhl sought or received mental health and/or substance abuse treatment and that he suffers from a mental health disorder that affects his ability to safely handle a firearm. Without affording DeBruhl an opportunity to be heard, District Court affirmed the Sheriff’s decision. DeBruhl appealed. The Court of Appeals began by finding that the defendant had a protected property interest in the renewal of his Concealed Handgun Permit upon expiration of his prior permit. The court went on to find that he was deprived of his right to procedural due process by the manner in which the renewal application was denied. Here, although DeBruhl had an opportunity for review, he did not have an opportunity to be heard. The court determined that “appellate review without an opportunity to be heard does not satisfy the demands of due process” and that the procedures employed here were “wholly inadequate.” It held:
Where a local sheriff determines that an application for renewal of a Concealed Handgun Permit ought to be denied on the grounds that the applicant “suffer[s] from a . . . mental infirmity that prevents the safe handling of a handgun[,]” that applicant must be afforded an opportunity to dispute the allegations underlying the denial before it becomes final. The opportunity to appeal the denial to the district court as set forth in N.C. Gen. Stat. § 14-415.15(c) is procedurally sufficient only to the extent that it provides an opportunity for the applicant to be heard at that stage. At a minimum, an applicant denied the renewal of a permit pursuant to the provisions of this subsection must be provided notice of the precise grounds for the sheriff’s denial, together with the information alleged in support thereof. This process must be followed by an opportunity to contest the matter in a hearing in district court.
The facts of this case were previously summarized following the Court of Appeals decision in State v. Schalow, 269 N.C. App. 369 (2020) (“Schalow II“), available here. The defendant was initially charged with attempted murder and several counts of assault against his wife, but the state only proceeded to trial on attempted murder and dismissed the assault charges. After discovering the indictment for attempted murder failed to allege malice, the court granted the state a mistrial over the defendant’s objection. The defendant was subsequently tried for that charge on a new indictment and convicted. On appeal, the defendant argued in State v. Schalow, 251 N.C. App. 354 (2018) (“Schalow I”) that the mistrial was granted in error because it sufficiently alleged manslaughter as written, and therefore the second prosecution violated double jeopardy. The appellate court agreed and vacated the conviction. In addition to seeking discretionary review of the decision in Schalow I (which was ultimately denied), the state obtained several new indictments against the defendant for felony child abuse and the related assaults against his wife. The defendant’s pretrial motion to dismiss the new charges on the basis of vindictive prosecution, double jeopardy, and failure to join charges under G.S. 15A-926 was denied, and the defendant sought discretionary appellate review, which was granted. The Court of Appeals held that the trial court erred by denying the defendant’s motion to dismiss in Schalow II, finding that the defendant was entitled to a presumption of prosecutorial vindictiveness and also met his burden of showing that the state withheld the prior indictments to circumvent the joinder requirements of G.S. 15A-926, which required dismissal of the charges. Based on those holdings, the appellate court did not reach the double jeopardy issue.
The state sought discretionary review of the appellate court’s rulings in Schalow II, which was granted and resulted in the current decision. On review, the state Supreme Court court reversed the Court of Appeals on the two issues it decided, and remanded the case to the lower court to reconsider the remaining double jeopardy argument.
First, regarding vindictive prosecution, the higher court explained that North Carolina v. Pearce, 395 U.S. 711 (1969) and Blackledge v. Perry, 417 U.S. 21 (1974) establish a presumption of vindictiveness when a defendant receives a more serious sentence or faces more serious charges with significantly more severe penalties after a successful appeal, but noted that subsequent cases have declined to extend that presumption to other contexts. The filing of new or additional charges after an appeal, without more, “does not necessarily warrant a presumption of prosecutorial vindictiveness,” even when there is “evidence that repeated prosecution is motivated by the desire to punish the defendant for his offenses.” The Court of Appeals erred in concluding that the defendant faced a more severe sentence for substantially the same conduct under the new set of charges, since G.S. 15A-1335 independently prohibits imposing a more severe sentence in these circumstances, making that outcome a “legal impossibility” in this case. The court also rejected the defendant’s argument that under U.S. v. Goodwin, 457 U.S. 368 (1982), the presumption of vindictiveness applies whenever there has been a change in the charging decision after an initial trial is completed. The language in Goodwin regarding the lower likelihood of vindictiveness in pretrial charging decisions did not establish “that such a presumption was warranted for all post-trial charging decision changes,” and given the harshness of imposing such a presumption, the court was unwilling to find that it applied here. Additionally, although the prosecutor in this case made public statements about his intent to pursue other charges against the defendant if the ruling in Schalow I were upheld, those statements indicated an intent to punish the defendant for his underlying criminal conduct, not for exercising his right to appeal. Concluding that the presumption of vindictiveness did not apply and actual vindictiveness was not established, the state Supreme Court reversed the appellate court on this issue.
Second, the state Supreme Court also disagreed with the Court of Appeals’ conclusion that the defendant’s motion to dismiss should have been granted for failure to join offenses under G.S. 15A-926. The statute provides that after a defendant has been tried for one offense, his pretrial motion to dismiss another offense that could have been joined for trial with the first offense must be granted unless one of the enumerated exceptions applies. Pursuant to State v. Furr, 292 N.C. 711 (1977), this statute does not apply to charges that were not pending at the time of the earlier trial. However, under State v. Warren, 313 N.C. 254 (1985), the later-filed charges must nevertheless be dismissed if the prosecutor withheld those charges in order to circumvent the statutory requirement. If either or both of two circumstances are present — (i) during the first trial the prosecutor was aware of evidence that would support the later charges, or (ii) the state’s evidence at the second trial would be the same as the first trial — those factors will “support but not compel” a finding that the state did withhold the other charges to circumvent the statute. At the trial level, the defendant in this case only argued that dismissal was required by the statute, but did not argue that dismissal was required under Warren even though the charges were not pending at the time of the prior trial; therefore, the argument presented by the defendant on appeal was not properly preserved for review, and the appellate court erred by deciding the issue on those grounds. Additionally, the Court of Appeals erred by holding that the trial court was required to dismiss the charges upon finding that both Warren factors were present. Even if one or both Warren factors were found, that will “support” a dismissal by the trial court, but it does not “compel” it. The appellate court incorrectly converted “a showing of both Warren circumstances into a mandate requiring dismissal,” contrary to case precedent.
The case was remanded for reconsideration of the defendant’s remaining argument that prosecution for the assault charges would also violate double jeopardy, which the Court of Appeals declined to address.
The trial court did not abuse its discretion by granting the State’s motion to quash the subpoena of a prosecutor involved in an earlier hearing on the defendant’s guilty plea. The court rejected the defendant’s argument that the prosecutor’s recitation of the factual basis for the plea was a judicial admission. Thus, the court rejected the defendant’s argument that the trial court’s decision to quash the subpoena deprived him of the opportunity to elicit binding admissions on the State. Additionally, the defendant could have proffered the prosecutor’s statements through a transcript of the plea proceeding, which he introduced with respect to other matters.
In a sexual assault case involving the defendant’s stepdaughter, the trial court did not err by quashing a subpoena that would have required a district court judge to testify regarding statements made by the victim’s mother to the judge in a DVPO proceeding. At trial the defense questioned the mother about whether she told the district court judge that the defendant committed first-degree rape and first-degree sex offense. The mother denied doing this. The defendant wanted to use the district court judge to impeach this testimony. The district court judge filed an affidavit indicating that he had no independent recollection of the case. Even if the district court judge were to have testified as indicated, his testimony would have had no impact on the case; at most it would have established a lay person’s confusion with legal terms rather than an attempt to convey false information. Also, most of the evidence supporting the conviction came from the victim herself.
In this child sexual assault case, although the trial court violated the procedural requirements of G.S. 15A-1225.1 by authorizing the victim’s testimony to be offered remotely without holding a recorded evidentiary hearing on the matter or entering an appropriate order supporting its decision to allow the State’s motion, the defendant was not entitled to relief. The defendant did not challenge the trial court’s ultimate decision allowing the victim to testify remotely; he challenged only the procedure employed in authorizing her remote testimony. The court agreed that the trial court erred by failing to follow statutory procedure. However, for reasons detailed in the court’s opinion, it rejected the defendant’s challenge on the basis that he failed to demonstrate that he was prejudiced by these procedural errors.
In this Buncombe County case, defendant appealed his convictions for driving while impaired, arguing error in denying his motion to exclude an Intoximeter chemical analysis as well as his subsequent objections to the admission of the analysis at trial. The Court of Appeals majority found error as the officer performing the analysis did not conduct an observation period after ordering defendant to remove gum from his mouth, but did not find that defendant was prejudiced by the error, upholding his conviction.
In March of 2021, an Asheville police officer observed defendant roll through a stop sign. The officer pulled over defendant, and observed the smell of alcohol, glassy eyes, and slurred speech. The office conducted field sobriety tests, determining that defendant was likely intoxicated. After defendant was arrested and taken to the Buncombe County Jail, a certified chemical analyst conducted a 15-minute observation period of defendant, followed by an Intoximeter breath analysis. After this first breath test, the analyst noted that defendant had gum in his mouth and had him spit it out, then conducted a second breath test two minutes after the first. Both tests resulted in 0.11 BAC readings. Both parties offered expert testimony about the possible effects of the gum, but no studies were admitted using the type of Intoximeter in question, and no evidence established the type of gum defendant had in his mouth at the time of the test.
Taking up defendant’s argument, the Court of Appeals first explained that G.S. 20-139.1(b)(1) makes breath tests admissible if they are “performed in accordance with the rules of the Department of Health and Human Services.” Slip Op. at 8. The applicable rules are found in 10A NCAC 41B.0101, which requires an observation period to ensure the person being tested does not ingest alcohol, vomit, or eat or drink other substances. The State argued that chewing gum did not represent “eating” for purposes of the rules, a position the court’s opinion rejected:
In sum, we believe the intent of both the legislature and DHHS in the provisions pertinent here is clear: to ensure that the chemical analysis of a subject’s breath is accurate in measuring BAC and not tainted by the presence of substances in the mouth during testing. And in our view, to adopt the State’s position that the observation period requirement is not violated when a subject “chews” something during the period would lead to absurd results and have bizarre consequences because it would mean, for example, that a subject could engage in the following activities not listed in 10A NCAC 41B.0106(6) moments before the taking of breath samples: chewing gum—presumably including nicotine gum—or tobacco or food that is spit out before swallowing, dipping snuff, sucking on a medicated throat lozenge or a hard candy, using an inhaler, and swallowing a pill.
Id. at 13. Despite finding that the test was improperly admitted, the court did not see prejudice for defendant, noting the overwhelming evidence of defendant’s performance on the field sobriety tests, his glassy eyes and slurred speech, and the smell of alcohol observed by the officer.
Judge Arrowood concurred in the result only.
Judge Wood concurred in the result only by separate opinion, and also would have held that the admission of the breath test results was not error. Id. at 19.
The defendant was convicted of driving while impaired and appealed. He argued that the trial court erred by denying his motion to suppress evidence gathered following his arrest on the basis that his arrest was not supported by probable cause. The Court of Appeals found no error.
(1) The Highway Patrol trooper who arrested the defendant testified about his training in the administration of the horizontal gaze nystagmus test (HGN) for the detection of impairment and the interpretation of the results on the test. He testified about performing the HGN test on the defendant and his observation of all six indications of impairment.
The defendant argued on appeal that the rules of evidence applied to the suppression hearing and the trial court erred by permitting the trooper to testify as an expert witness on HGN because he was not qualified under Rule 702. The Court of Appeals rejected the defendant’s argument, citing Rules 104(a) and 1101(b)(1), which explicitly state that the evidence rules do not apply to the determination of preliminary questions concerning the admissibility of evidence—the very issues presented in a hearing on a motion to suppress. The Court further held that the trooper’s testimony regarding the HGN test was relevant to the determination of probable cause and the trial court did not abuse its discretion by considering this evidence.
(2) The defendant argued that several findings of fact were not supported by the evidence. The Court rejected the defendant’s argument, as to all but one objected-to finding. The trial court’s finding that the trooper noted a strong odor of alcohol on the defendant’s person was supported by the trooper’s testimony and the affidavit and revocation report he prepared. The finding that the defendant “deceptively denied” consuming alcohol was supported by the trooper’s testimony that the defendant denied having anything to drink as contrasted with the evidence that the defendant had consumed alcohol. The finding that the alcosensor was in proper working order and properly calibrated was supported by the trooper’s testimony. The finding that the trooper formed an opinion that the defendant was appreciably impaired was supported by the trooper’s testimony that the defendant was impaired; the trooper’s omission of the modifier “appreciably” was “a mere slip of the tongue.” (Slip op at ¶ 19.) And the trial court’s findings regarding the HGN test were supported by competent evidence.
The Court did not find evidentiary support for the finding that no other field tests were performed as a result of potential dangers from traffic.
The Court determined that the findings supported the trial court’s conclusion that the trooper had probable cause to arrest the defendant. Specifically, the Court pointed to the strong odor of alcohol, the positive alcosensor tests, and the HGN test revealing all six indications of impairment.
Although the trial court erred by admitting evidence of the numerical result of an Alco-sensor test during a pretrial hearing on the defendant’s motion to suppress, a new trial was not warranted. The numerical results were admitted only in the pre-trial hearing, not at trial and even without the numerical result, the State presented sufficient evidence to defeat the suppression motion.
The trial court did not err by denying the defendant’s motion to suppress the results of the chemical analysis performed on the defendant’s breath with the Intoxilyzer 5000 on grounds that preventative maintenance was not performed on the machine at least every 4 months as required by the Department of Health and Human Services. Preventive maintenance was performed on July 14, 2006 and December 5, 2006. The court concluded that although the defendant’s argument might have had merit if the chemical analysis had occurred after November 14, 2006 (4 months after the July maintenance) and before December 5, 2006, it failed because the analysis at issue was done only 23 days after the December maintenance.
In this gang-related case involving charges of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, attempted first-degree murder, and discharging a weapon into an occupied dwelling, although the trial court erred by failing to instruct the jury on their limited use of hearsay statements for corroboration and impeachment only, the error was harmless. Here, at least twice during trial the defendant specifically requested Pattern Jury Instruction 105.20, which limits the jury’s permissible reliance on hearsay statements to corroboration and impeachment purposes only. During the charge conference, the parties and the trial court further agreed that the jury would be charged with this instruction. However, the trial court omitted the instruction from the final charge. By omitting this instruction from the final charge, the trial court erred. However, the defendant failed to demonstrate that there is a reasonable possibility that had the error not been committed a different result would have been reached. The trial court reiterated the instruction, or a close variation of it, six times to the jury throughout the trial. Although the trial court failed to provide the instruction during the final jury charge, the jury was sufficiently advised of the instruction during the trial. Moreover, even if the instructions had not been given during the trial, the defendant cannot show prejudice in light of the overwhelming evidence of guilt.
Although the trial court violated G.S. 15A-1221(b) by admitting an arrest warrant into evidence, the error did not constitute plain error.
The Rules of Evidence do not apply to DMV license revocation hearings pursuant to G.S. 20-16.2.
The rules of evidence apply to proceedings related to post-conviction motions for DNA testing under G.S. 15A-269.
In this murder case the court held that the court of appeals erred by concluding that the trial court committed reversible error in allowing into evidence certain materials from civil actions. The relevant materials included a default judgment and complaint in a wrongful death suit stating that the defendant killed the victim and a child custody complaint that included statements that the defendant had killed his wife. The court of appeals had held that admission of this evidence violated G.S. 1-149 (“[n]o pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it”) and Rule 403. The court held that the defendant did not preserve his challenge to the admission of the child custody complaint on any grounds. It further held that the defendant failed to preserve his G.S. 1-149 objection as to the wrongful death evidence and that his Rule 403 objection as to this evidence lacked merit. As to the G.S. 1-149 issue, the court found it dispositive that the defendant failed to object at trial to the admission of the challenged evidence on these grounds and concluded that the court of appeals erred by finding that the statutory language was mandatory and allowed for review absent an objection.
In this Forsyth County case, defendant appealed his convictions for intimidating or interfering with witnesses and obtaining habitual felon status, arguing that the trial court erred by admitting a recording of his phone call. The Court of Appeals disagreed, finding no error.
Defendant was indicted for calling a witness while he was being held at the Forsyth County Detention Center and attempting to convince her not to testify, even though she had been subpoenaed. The State offered a disc containing a recording made by the detention center’s PayTel system of a call from defendant to the witness, and authenticated the disc through the testimony of a sergeant familiar with the operation of the system who created the disc. The system automatically recorded calls and matched them with a number assigned to each detainee. The State then offered the testimony of two other officers who were familiar with the voice of defendant to support that it was his voice on the recording.
Reviewing defendant’s argument, the court noted that the exhibit was admitted after being authenticated by the sergeant familiar with its creation. Defendant argued that the State had offered insufficient testimony to identify his voice. This was a confused argument, the court explained, as the recording was admitted, along with PayTel spreadsheet information regarding defendant’s ID number, before the testimony of the officer in question. Because the recording was admitted by the trial court before the testimony attempting to identify defendant’s voice, defendant’s basis for challenging the admission of the recording was irrelevant and had no bearing on the propriety of the trial court’s decision to admit the exhibit. Slip Op. at 10. As such, the trial court did not abuse its discretion admitting the recording, and committed no error.
Judge Tyson concurred in the result by separate opinion, noting defendant did not show “any basis or prejudice to reverse the trial court’s judgment.” Id. at 12.
The trial court did not abuse its discretion by concluding that an audio recording of a booking-area phone call was properly authenticated under Rule 901 as having been made by the defendant. The State’s authentication evidence showed: (1) the call was made to the same phone number as later calls made using the defendant’s jail positive identification number; (2) the voice of the caller was similar to later calls placed from the jail using the defendant’s jail positive identification number; (3) a witness familiar with the defendant’s voice identified the defendant as the caller; (4) the caller identified himself as “Little Renny” and the defendant’s name is Renny Mobley; and (5) the caller discussed circumstances similar to those involved with the defendant’s arrest.
Reversing a unanimous decision of the Court of Appeals, 239 N.C. App. 439 (2015), the court held, in this larceny case, that the State properly authenticated a surveillance video showing the defendant stealing shirts from a Belk department store. At trial Toby Steckler, a regional loss prevention manager for the store, was called by the State to authenticate the surveillance video. As to his testimony, the court noted:
Steckler established that the recording process was reliable by testifying that he was familiar with how Belk’s video surveillance system worked, that the recording equipment was “industry standard,” that the equipment was “in working order” on [the date in question], and that the videos produced by the surveillance system contain safeguards to prevent tampering. Moreover, Steckler established that the video introduced at trial was the same video produced by the recording process by stating that the State’s exhibit at trial contained exactly the same video that he saw on the digital video recorder. Because defendant made no argument that the video had been altered, the State was not required to offer further evidence of chain of custody. Steckler’s testimony, therefore, satisfied Rule 901, and the trial court did not err in admitting the video into evidence.
The court also held that the defendant failed to preserve for appellate review whether Steckler’s lay opinion testimony based on the video was admissible.
In this New Hanover County case, defendant appealed his convictions for possession of burglary tools and attempted breaking and entering, arguing error in admitting evidence of a 2018 breaking and entering incident. The Court of Appeals found no error.
In November of 2020, defendant entered the backyard of a Wilmington home and attempted to open the door of a storage shed. The homeowner’s security camera alerted the homeowner, who then called 911. Defendant was later found by police in a neighbor’s yard with bolt cutters and a box cutter with a screwdriver head. During the trial, the prosecution introduced evidence of a 2018 incident where defendant pleaded guilty to breaking and entering a residential shed using a small knife. Despite defendant’s objections, the trial court admitted evidence of defendant’s guilty plea to the 2018 incident, as well as testimony from the investigating officer and surveillance video from the 2018 incident.
On appeal, defendant first argued error by the trial court in admitting the testimony and video evidence of the 2018 incident. The Court of Appeals disagreed, finding that the testimony and evidence were relevant and admissible under Rule 404(b) and not unfairly prejudicial under Rule 403. The court first examined defendant’s argument that the 2018 incident was not sufficiently similar to the 2020 incident to justify admitting the evidence. Using State v. Martin, 191 N.C. App. 462 (2008) as a guiding example, the court noted that here the similarities of breaking into a shed, after midnight, using similar tools, clearly met the Rule 404(b) requirement of similarity. Slip Op. at 12-13. The court also found the other two elements of Rule 404(b) were satisfied by the 2018 incident, as the prior incident had probative value for defendant’s intent to break into the shed, and the gap in time between the two incidents was not unusually long based on applicable precedent. After establishing admissibility under Rule 404(b), the court performed the Rule 403 analysis, finding no abuse of discretion in the trial court’s weighing of the danger of unfair prejudice verses probative value, and noting that the trial court carefully handled the process.
Defendant’s second argument on appeal was that the 2018 video surveillance evidence was not properly authenticated. The court again disagreed, noting that under Rule of Evidence 901, tapes from surveillance cameras can be authenticated as “the accurate product of an automated process” as long as “[e]vidence that the recording process is reliable and that the video introduced at trial is the same video that was produced by the recording process” is admitted to support the video. Id. at 21, quoting State v. Snead, 368 N.C. 811, 814 (2016). Here the court found that the investigating officer’s testimony in support of the video satisfied the requirements for authentication. Additionally, the court noted that even if the video was not properly authenticated, defendant could not show prejudice due to the large amount of evidence supporting his conviction.
Although admission of video evidence was error, it was not prejudicial error. An officer testified that the day after the incident in question he asked the manager of a convenience store for a copy of the surveillance video made by store cameras. The manager allowed the officer to review the video but was unable to copy it. The officer used the video camera function on his cell phone to make a copy of the surveillance footage, which was copied onto a computer. At trial, he testified that the copy of the cell phone video accurately showed the contents of the video that he had seen at the store. The store clerk also reviewed the video but was not asked any questions about the creation of the original video or whether it accurately depicted the events that he had observed on the day in question. The transcript reveals no testimony concerning the type of recording equipment used to make the video, its condition on the day in question, or its general reliability. No witness was asked whether the video accurately depicted events that he had observed, and no testimony was offered on the subject. As such, the State failed to offer a proper foundation for introduction of the video as either illustrative or substantive evidence. The court went on to find that introduction of the video was not prejudicial.
The trial court did not commit plain error by admitting store surveillance video in a safecracking case. Citing State v. Snead, 368 N.C. 811 (2016), the court held that the surveillance video was properly authenticated. The store manager testified that the surveillance system included 16 night vision cameras; he knew the cameras were working properly on the date in question because the time and date stamps were accurate; and a security company managed the system and routinely checked the network to make sure the cameras remained online. The store manager also testified that the video being offered into evidence at trial was the same video he viewed immediately following the incident and that it had not been edited or altered in any way.
(1) The trial court properly admitted a videotape of a detective’s interview with the defendant for illustrative purposes. The detective testified that the video was a fair and accurate description of the interview. This met the requirements for authentication of a video used for illustrative purposes. (2) Citing the North Carolina Supreme Court’s recent decision in State v. Snead, the court held that a store surveillance video of a theft was properly authenticated. The State’s witness testified that the surveillance video system was functioning properly at the time and that the video introduced at trial was unedited.
For reasons discussed in the opinion, the court held that footage from a surveillance video was properly authenticated.
The trial court did not err by admitting a videotape of a controlled buy as substantive evidence where the State laid a proper foundation for the videotape. The court rejected the defendant’s argument that the State was required to proffer a witness to testify that the tape accurately depicted the events in question.
The trial court erred by allowing the State to introduce three photographs, which were part of a surveillance video, when the photographs were not properly authenticated. However, given the evidence of guilt, no plain error occurred.
In this Scotland County case, defendant appealed his conviction for first-degree murder, arguing error in admitting (1) photos of Facebook messages allegedly sent by defendant, and (2) a CAD report of a 911 call. The Court of Appeals found no error.
In December of 2020, defendant and several family and friends were gathered at home, when a dispute broke out between defendant and his older brother. The dispute culminated with defendant pulling a gun and shooting his older brother on the porch. Family members called 911 and the sheriff’s office responded, finding the victim dead on the ground. At trial, the victim’s daughter testified that she communicated with defendant through Facebook Messenger because defendant did not have a phone with service, and she believed the victim also communicated with defendant that way. The State offered photographs showing a Facebook Messenger conversation between the victim and defendant, and the trial court overruled defense counsel’s objections to the authentication of the exhibit. The State also offered a one-page CAD report from a 911 call received two hours after the incident. The trial court allowed this exhibit solely for the purpose of establishing the call occurred, but did not allow discussion of the conversation.
Beginning with (1), the Court of Appeals noted that “the burden to authenticate under Rule 901 is not high—only a prima facie showing is required” and looked to the circumstantial evidence for support that the messages were actually sent to and from defendant. Slip Op. at 9 (quoting State v. Ford, 245 N.C. App. 510, 519 (2016)). The court found sufficient evidence in the testimony of the victim’s daughter, as “the use of Facebook Messenger was consistent with Defendant’s behavior,” and from a deputy who testified how he retrieved the messages from the victim’s phone and read several messages that “contained references and information corroborating their authenticity.” Id. at 11. This led the court to conclude it was not error to admit the Facebook Messenger comments.
Moving to (2), defendant argued “the trial court’s decisions to admit the CAD report showing a 911 call had been received approximately two hours after the incident and to exclude the content of the call were inconsistent.” Id. at 12. The court disagreed, explaining that defendant objected the CAD report was not relevant, and the standard for relevancy is “relatively lax.” Id. at 13 (quoting State v. McElrath, 322 N.C. 1, 13 (1988)). Here, the CAD report made the fact that an incident occurred in the early morning more likely, and the trial court concluded the actual substance of the call was unfairly prejudicial under Rule 403. The court explained that “these rulings are consistent and show an effort by the trial court to provide jurors with explanatory information . . . while protecting Defendant from undue prejudice.” Id. at 14.
In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The photographs were properly authenticated where the officer who took them testified about the procedure used and that they fairly and accurately depicted the defendant’s tattoo as it appeared when he was in custody.
In this drug case where the defendant denied being the perpetrator and suggested that the drugs were sold by one of his sons, the State failed to properly authenticate two photographs used in photographic lineups as being of the defendant’s sons. An informant involved in the drug buy testified that he had purchased drugs from the people depicted in the photos on previous occasions but not on the occasion in question. The State then offered an officer to establish that the photos depicted the defendant’s sons. However, the officer testified that he wasn’t sure that the photos depicted the defendant’s sons. Given this lack of authentication, the court also held that the photos were irrelevant and should not have been admitted.
The trial court erred by allowing the State to introduce three photographs, which were part of a surveillance video, when the photographs were not properly authenticated. However, given the evidence of guilt, no plain error occurred.
In this Scotland County case, defendant appealed his conviction for first-degree murder, arguing error in admitting (1) photos of Facebook messages allegedly sent by defendant, and (2) a CAD report of a 911 call. The Court of Appeals found no error.
In December of 2020, defendant and several family and friends were gathered at home, when a dispute broke out between defendant and his older brother. The dispute culminated with defendant pulling a gun and shooting his older brother on the porch. Family members called 911 and the sheriff’s office responded, finding the victim dead on the ground. At trial, the victim’s daughter testified that she communicated with defendant through Facebook Messenger because defendant did not have a phone with service, and she believed the victim also communicated with defendant that way. The State offered photographs showing a Facebook Messenger conversation between the victim and defendant, and the trial court overruled defense counsel’s objections to the authentication of the exhibit. The State also offered a one-page CAD report from a 911 call received two hours after the incident. The trial court allowed this exhibit solely for the purpose of establishing the call occurred, but did not allow discussion of the conversation.
Beginning with (1), the Court of Appeals noted that “the burden to authenticate under Rule 901 is not high—only a prima facie showing is required” and looked to the circumstantial evidence for support that the messages were actually sent to and from defendant. Slip Op. at 9 (quoting State v. Ford, 245 N.C. App. 510, 519 (2016)). The court found sufficient evidence in the testimony of the victim’s daughter, as “the use of Facebook Messenger was consistent with Defendant’s behavior,” and from a deputy who testified how he retrieved the messages from the victim’s phone and read several messages that “contained references and information corroborating their authenticity.” Id. at 11. This led the court to conclude it was not error to admit the Facebook Messenger comments.
Moving to (2), defendant argued “the trial court’s decisions to admit the CAD report showing a 911 call had been received approximately two hours after the incident and to exclude the content of the call were inconsistent.” Id. at 12. The court disagreed, explaining that defendant objected the CAD report was not relevant, and the standard for relevancy is “relatively lax.” Id. at 13 (quoting State v. McElrath, 322 N.C. 1, 13 (1988)). Here, the CAD report made the fact that an incident occurred in the early morning more likely, and the trial court concluded the actual substance of the call was unfairly prejudicial under Rule 403. The court explained that “these rulings are consistent and show an effort by the trial court to provide jurors with explanatory information . . . while protecting Defendant from undue prejudice.” Id. at 14.
In this violation of a DVPO case, screenshots of Facebook posts were authenticated by sufficient circumstantial evidence showing that the screenshots in fact depicted Facebook posts and that the comments in the post were made by the defendant such that the screenshots were properly admitted into evidence. Shortly before the defendant was scheduled to be released from prison, the victim renewed a DVPO prohibiting him from contacting her. Soon after his release, the victim began receiving phone calls from a blocked number and Facebook comments from her daughter’s account that the victim believed were written by the defendant rather than her daughter. These communications were the basis for the DVPO violation at issue.
The court first reviewed precedent to determine that the question of whether evidence has been sufficiently authenticated is subject to de novo review on appeal. The court then held that when screenshots of social media comments are used as they were here – to show both the fact of the communication and its purported author, the screenshots must be authenticated both as photographs and written statements. The victim’s testimony that she took the screenshots of her Facebook account was sufficient to authenticate the images as photographs. The victim’s testimony of receiving letters from the defendant while he was in prison and distinctive phone calls from a blocked number after his release, together with evidence of the defendant’s access to the daughter’s Facebook account was sufficient to authenticate the comments as written statements potentially made by the defendant such that admission of the screenshots into evidence was proper.
Judges Bryant and Berger concurred in result only, without separate opinions.
In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting as evidence screenshots from the defendant’s webpage over the defendant’s claim that the evidence was not properly authenticated. The State presented substantial evidence that the website was actually maintained by the defendant. Specifically, a detective found the MySpace page in question with the name “Flexugod/7.” The page contained photos of the defendant and of the dog allegedly involved in the incident. Additionally, the detective found a certificate awarded to the defendant on which the defendant is referred to as “Flex.” He also found a link to a YouTube video depicting the defendant’s dog. This evidence was sufficient to support a prima facie showing that the MySpace page was the defendant’s webpage. It noted: “While tracking the webpage directly to defendant through an appropriate electronic footprint or link would provide some technological evidence, such evidence is not required in a case such as this, where strong circumstantial evidence exists that this webpage and its unique content belong to defendant.”
The State adequately authenticated photographs of text messages sent between accomplices to an attempted robbery. A detective testified that he took pictures of text messages on an accomplice’s cell phone while searching the phone incident to arrest. The detective identified the photographs in the exhibit as screen shots of the cell phone and testified that they were in substantially the same condition as when he obtained them. Another accomplice, with whom the first accomplice was communicating in the text messages, also testified to the authenticity of the exhibit. The court rejected the defendant’s argument that to authenticate the text messages, the State had to call employees of the cell phone company.
In a felony larceny after a breaking or entering case, the trial court did not abuse its discretion by determining that a text message sent from the defendant’s phone was properly authenticated where substantial circumstantial evidence tended to show that the defendant sent the text message. The defendant’s car was seen driving up and down the victim’s street on the day of the crime in a manner such that an eyewitness found the car suspicious and called the police; the eyewitness provided a license plate number and a description of the car that matched the defendant’s car, and she testified that the driver appeared to be using a cell phone; the morning after the crime, the car was found parked at the defendant’s home with some of the stolen property in the trunk; the phone was found on the defendant’s person the following morning; around the time of the crime, multiple calls were made from and received by the defendant’s phone; the text message itself referenced a stolen item; and by referencing cell towers used to transmit the calls, expert witnesses established the time of the calls placed, the process employed, and a path of transit tracking the phone from the area of the defendant’s home to the area of the victim’s home and back.
Cell phone records introduced by the State were properly authenticated. At trial the State called Ryan Harger, a custodian of records for Sprint/Nextel, a telecommunications company that transmitted the electronically recorded cell phone records to the police department. The defendant argued that the cell phone records were not properly authenticated because Harger did not himself provide the records to the police and that he could not know for certain if a particular document was, in fact, from Sprint/Nextel. The court noted that Harger, a custodian of records for Sprint/Nextel for 10 years, testified that: he is familiar with Sprint/Nextel records; he has testified in other cases; Sprint/Nextel transmitted records to the police and that he believed that was done by e-mail; the records were kept in the normal course of business; the documents he saw were the same as those normally sent to law enforcement; and the relevant exhibit included a response letter from Sprint, a screen print of Sprint’s database, a directory of cell sites, and call detail records. Although Harger did not send the documents to the police, he testified that he believed them to be accurate and that he was familiar with each type of document. This was sufficient to show that the records were, as the State claimed, records from Sprint/Nextel, and any question as to the accuracy or reliability of such records is a jury question. The court went on to conclude that even if Harger’s testimony did not authenticate the records, any error was not prejudicial, because an officer sufficiently authenticated another exhibit, a map created by the officer based on the same phone records. The officer testified that he received the records from Sprint/Nextel pursuant to a court order and that they were the same records that Harger testified to. He then testified as to how he mapped out cell phone records to produce the exhibit.
An affidavit of indigency sworn to by the defendant before a court clerk was a self-authenticating document under Evidence Rule 902 and thus need not be authenticated under Rule 901.
In this felony breaking or entering and felony larceny case, a store Notice of Prohibited Entry was properly authenticated. After detaining the defendant for larceny, a Belk loss prevention associate entered the defendant’s name in a store database. The associate found an entry for the defendant at Belk Store #329, along with a photograph that resembled the defendant and an address and date of birth that matched those listed on his driver’s license. The database indicated that, as of 14 November 2015, the defendant had been banned from Belk stores for a period of 50 years pursuant to a Notice of Prohibited Entry following an encounter at store #329. The Notice included the defendant’s signature. The defendant was charged with felony breaking or entering and felony larceny. At trial the trial court admitted the Notice as a business record. On appeal, the defendant argued that the Notice was not properly authenticated. The court disagreed, concluding that business records need not be authenticated by the person who made them. Here, the State presented evidence that the Notice was completed and maintained by Belk in the regular course of business. The loss prevention associate testified that she was familiar with the store’s procedures for issuing Notices and with the computer system that maintains this information. She also established her familiarity with the Notice and that such forms were executed in the regular course of business. The court found it of “no legal moment” that the loss prevention officer did not herself make or execute the Notice in question, given her familiarity with the system under which it was made.
In this statutory rape case, the victim’s Honduran birth certificate was properly authenticated. To establish the victim’s age, the State introduced a copy of the victim’s Honduran birth certificate, obtained from her school file. That document showed her date of birth to be September 15, 2003 and established that she was 12 years old when the incidents occurred. The defendant’s objection that the birth certificate was not properly authenticated was overruled and the defendant was convicted. The defendant appealed. The document was properly authenticated. Here, although the birth certificate was not an original, nothing in the record indicates that it was forged or otherwise inauthentic. The document appears to bear the signature and seal of the Honduran Municipal Civil Registrar, and a witness testified that school personnel would not have made a copy of it unless the original had been produced. Additionally, a detective testified that the incident report had identified the victim as having a birthday of September 15, 2003. The combination of these circumstances sufficiently establish the requisite prima facie showing to allow the trial court to reasonably determine that the document was an authentic copy of the victim’s birth certificate.
The trial court properly allowed the jury to consider whether a signature on a pawn shop buy ticket matched the defendant’s signature of his affidavit of indigency. The court compared the signatures and found that there was enough similarity between them for the documents to have been submitted to the jury for comparison.
A rectal swab taken from the victim was properly authenticated. An officer processed evidence at the crime scene, was present for the victim’s autopsy, and obtained evidence from the doctor who performed the autopsy, including the rectal swabs, on 24 June 2004. The swabs were then placed in the custody of the Sheriff’s Office. They were submitted to the SBI for analysis and later returned to the Sheriff’s Office where they were kept until the time of trial. The court rejected the defendant’s argument that the chain of custody was insufficient because the swabs were taken on 19 June 2004, but were not picked up by the officer until 24 June 2004, concluding that there was no reason to believe that the evidence was altered and the possibility that it was tampered with is remote.
Using a confidential informant to conduct a controlled buy, law enforcement officers purchased a small crack cocaine rock from the defendant. The rock field-tested positive for the presence of cocaine, and it was subsequently tested at the SBI and confirmed to be cocaine base. The defendant was indicted for sale and delivery of cocaine and possession with intent to sell and deliver cocaine, as well as having attained habitual felon status, and the case went to trial approximately two years later. At trial, the state offered the “rock” purchased from the defendant as State’s Exhibit #6, but the item inside the evidence bag was now a powder. The narcotics detective in the case testified that the substance had been “smashed” but it was otherwise “substantially the same” item he originally recovered from the informant and submitted to the SBI. The SBI analyst likewise testified that the substance in Exhibit #6 was a “rock” at the time she tested it and determined it was crack cocaine, and her lab results and report were admitted as Exhibit #7.
Following his conviction, the defendant argued on appeal that the trial court erred by admitting Exhibit #6 because it was not readily identifiable and had been altered, and therefore it could not be authenticated by the state’s witnesses. The appellate court disagreed for several reasons. First, citing case precedent, physical changes to drugs such as smashing or pressing them together “do not amount to material changes raising admissibility concerns.” Second, even if this were a material change, the state presented an adequate chain of custody to show that the substance contained in Exhibit #6 was the same one purchased from the defendant and ultimately tested by the SBI, and the witnesses’ testimony established that whatever caused the rock to be “smashed” must have occurred sometime after it was tested. Third, the defendant failed to demonstrate that any error in admitting Exhibit #6 would be prejudicial, since there was no objection to the introduction of Exhibit #7 or the analyst’s testimony about the testing she performed on that substance, meaning that the same information was before the jury through other evidence. As a result, there was no reasonable possibility that a different verdict would have been reached even if Exhibit #6 had been excluded.
Where an audio recording of a prior juvenile proceeding was available to all parties and the content of the recording was not in question, Rule 1002 was not violated by the admission of a written transcript of the proceeding.
In the Philippines in 2012, crime lord Paul LeRoux believed a real-estate broker, Catherine Lee, had stolen money from him. LeRoux hired three men to kill her: Adam Samia, Joseph Hunter, and Carl Stillwell. Lee was later murdered, shot twice in the head. The four men were eventually arrested. LeRoux turned state’s evidence. Stillwell admitted that he was in the van when Lee was killed, but he claimed he was only the driver and that Samia had done the shooting.
Samia, Hunter, and Stillwell were charged with various offenses, including murder-for-hire and conspiracy. They were tried jointly in the Southern District of New York. Hunter and Stillwell admitted participation in the murder while Samia maintained his innocence. At trial, the trial court admitted evidence of Stillwell’s confession, redacted to omit any direct reference to Samia (“He described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving.”). The trial court instructed the jury that this testimony was admissible only as to Stillwell and should not be considered as to Samia or Hunter. All three men were convicted and Samia sentenced to life plus ten years. On appeal, the Second circuit found no error in admitting Stillwell’s confession in its modified form. The Supreme Court granted certiorari to determine whether the admission of Stillwell’s altered confession, subject to a limiting instruction, violated Samia’s confrontation clause rights.
The Sixth Amendment guarantees a criminal defendant the right to be confronted with the witnesses against him. In Crawford v. Washington, the Supreme Court held the confrontation clause bars the admission of out-of-court testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford, 541 U.S. at 53-54. Stillwell’s post-arrest confession to DEA agents was plainly testimonial. In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held a defendant’s confrontation clause rights are violated when his nontestifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. In Richardson v. Marsh, 481 U.S. 200 (1987), however, it found no error in the use of a redacted confession, holding that the confrontation clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction, when the confession is redacted to eliminate any reference to the defendant. Finally, in Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court held that certain obviously redacted confessions might be directly accusatory and so fall within Bruton’s rule, even if they did not explicitly name the defendant.
In Samia, the Supreme Court recited the “general rule” that a witness whose testimony is introduced at a joint trial is not considered to be a witness against a defendant if the jury is instructed to consider that testimony only against a codefendant. Samia, 2023 WL 4139001, at *5 (quoting Richardson, 481 U.S. at 206). It reviewed the historical practice. Id. at *6. It discussed the doctrine that jurors are presumed to follow the trial judge’s instructions, and it acknowledged Bruton as “a narrow exception” to this rule. Id. at *6-*7. Reviewing Bruton, Richardson, and Gray, the Supreme Court found its precedents “distinguish between confessions that directly implicate a defendant and those that do so indirectly.” Id. at *9. Here, Stillwell’s confession was redacted to avoid naming Samia, “satisfying Bruton’s rule,” and it was not so obviously redacted as to resemble the confession in Gray. Id. at *10. Accordingly, the introduction of Stillwell’s confession coupled with a limiting instruction did not violate the confrontation clause. Id. at *7.
Justice Barrett concurred in part and in the judgment. She rejected the historical evidence described in Part II-A of the majority opinion as anachronistic (too late to inform the meaning of the confrontation clause at the time of the founding) and insubstantial (addressing hearsay rules rather than confrontation).
Justices Kagan dissented, joined by Justice Sotomayor and Justice Jackson. Justice Kagan posited that “Bruton’s application has always turned on a confession’s inculpatory impact.” Id. at *14 (Kagan, J., dissenting). She said it would have been obvious to the jury that “the other person” referenced in the redacted confession was Samia, and “[t]hat fact makes Stillwell’s confession inadmissible” under Bruton. Id. Justice Kagan accepted the majority’s dichotomy between confessions that implicate a defendant directly or indirectly, but she criticized the majority for finding Stillwell’s confession only indirectly implicated Samia. Id. at *14-*15. She accused the majority of undermining Bruton without formally overruling it: “Under this decision, prosecutors can always circumvent Bruton’s protections.” Id. at *16.
Justice Jackson dissented separately. Id. at *16 (Jackson, J., dissenting). In her view, the default position under Crawford is that Stillwell’s confession was not admissible, and in seeking to introduce the confession the Government sought an exception from the confrontation clause’s exclusion mandate. Id. But under the majority’s approach, the default rule is that a nontestifying codefendant’s incriminating confession is admissible, so long as it is accompanied by a limiting instruction, and Bruton represents a narrow exception to this default rule. Id. The majority, Justice Jackson charged, turns Bruton on its head, setting “the stage for considerable erosion of the Confrontation Clause right that Bruton protects.” Id. at *17.
No Bruton issue occurred when the trial court admitted a co-defendant’s admission to police that “I only hit that man twice.” A co-defendant’s statement which does not mention or refer to the defendant does not implicate the Confrontation Clause or Bruton. Here, the co-defendant’s statement did not mention the defendant and thus its admission did not implicate his constitutional rights.
The trial court did not abuse its discretion in determining that a four-year-old child sexual assault victim was competent to testify. The child was 2½ years old at the time the incident occurred. At trial, the child was non-responsive to some questions and gave contradictory responses to others.
The trial court did not abuse its discretion by finding an elderly victim to be competent. The witness correctly testified to his full name and birth date and where he lived. He was able to correctly identify family members, the defendant, and his own signature. He understood that he was at the courthouse, that a trial was occurring, and his duty to tell the truth. His testimony also demonstrated his ability to tell the truth from a lie. Noting that some of his answers were ambiguous and vague and that he was unable to answer some questions, the court concluded that it would not be unusual for an elderly person to have some difficulty in responding coherently to all of the voir dire questions.
In this Chatham County case, defendant appealed his convictions for first-degree forcible rape, first-degree kidnapping, sexual battery, and assault of a female, arguing the trial court abused its discretion by denying his motion for a mistrial. The Court of Appeals found no error.
In April of 2019, defendant came to the victim’s house and offered her drugs and alcohol. The two consumed the drugs and defendant eventually forced himself upon the victim, forcibly raping her while punching her repeatedly. When defendant came to trial, the victim took the stand to testify about the events. During her testimony, defense counsel took issue with the victim’s “streamed sort of consciousness” testimony, and the State requested to be allowed more leading questions on direct examination. Slip Op. at 2. The trial court allowed voir dire to determine whether the victim’s mental health issues necessitated more leading questions, and during this voir dire it was revealed that the victim had either bipolar or borderline personality disorder, PTSD, and a substance use or abuse disorder, and the victim had recently relapsed and was released from rehab the week before her testimony. She was also on medication for certain medical conditions. On the fourth day of the trial, the State informed the trial court that the bailiffs believed the victim had consumed alcohol that morning, and the victim took a portable breathalyzer, which resulted in a 0.0 BAC reading. However, the victim admitted she had “a sip of vodka” because of her nerves. Id.at 3. Later on recross, “[the victim] disclosed to the jury that she took a shot of alcohol that was in her purse upon arriving to the courthouse.” Id. at 4. She also admitted to having a beer at lunch the day before.
Considering defendant’s argument, the Court of Appeals noted “given the trial court’s knowledge and consideration of the result of the breathalyzer test, we cannot conclude the trial court abused its discretion.” Id. at 7. Instead, the trial court took “immediate and reasonable steps” to address the victim’s behavior, and the trial court’s decision to deny defendant’s motion for a mistrial was a reasonable decision. Id. at 8.
At the defendant’s trial for drug charges, a witness who purchased drugs from the defendant testified for the State. After the witness testified, the trial court expressed concern that the witness appeared to be impaired by drugs or alcohol. The court ordered the witness’s probation officer to drug-test the witness. The test was positive for amphetamines and methamphetamine. The probation officer testified before the jury about the testing of the witness and the positive results.
The defendant moved for a mistrial and to disqualify the witness under Rule of Evidence 601(b) and strike his testimony. The trial court denied both motions. The defendant was convicted of several drug charges and appealed.
The Court of Appeals found no error.
(1) Impairment by drugs does not render a witness incompetent if the witness is able to express himself well enough to be understood and is able to understand the obligation to testify truthfully. The Court of Appeals determined that the defendant failed to demonstrate that the witness did not meet this standard. The witness’s testimony was corroborated by other evidence, which, while not directly showing his competency, indicated that he was able to recall dates and events. The trial judge, who was in the best position to assess the competency of the witness, determined that he could understand the witness’s testimony and that the witness was generally understandable by the jurors. Given the trial court’s ample opportunity to observe the witness, it was not required to conduct a voir dire to assess the witness’s competency. Finally, the Court of Appeals noted that evidence of the witness’s impairment was presented to the jury, and jurors were free to determine whether they found the witness’s testimony credible. The Court of Appeals thus concluded that the trial judge did not abuse its discretion in denying the defendant’s motion to exclude and strike the witness’s testimony.
(2) A mistrial is a drastic remedy warranted only for serious improprieties that make it impossible to obtain a fair and impartial verdict. The Court of Appeals rejected the defendant’s argument that the giving of testimony by a key witness for the State who was impaired met this standard. The witness was competent to testify despite his impairment and the jury was informed of his impairment. Thus, the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.
A hotel owner had personal knowledge and could testify to the responsibilities of the defendant, the hotel’s general manger, with respect to removing deposits from the hotel safe and other related matters.
In a murder and assault case involving a home invasion and two victims, the trial court did not err by admitting testimony from the surviving victim that touched on the deceased victim’s state of mind when he initially opened the door to the intruder. The surviving victim “merely gave his understanding and interpretation of what went on at the door based on his sitting in the next room and being able to hear the whole situation.” As such, the surviving victim properly testified regarding his own beliefs of the sequence of events that took place at the door.
In an armed robbery case, a store clerk’s testimony that he thought the defendant had a gun was not inadmissible speculation or conjecture. Based on his observations, the clerk believed that the defendant had a gun because the defendant was hiding his arm under his jacket. The clerk’s perception was rationally based on his firsthand observation of the defendant and was more than mere speculation or conjecture.
In an armed robbery prosecution, evidence of a break-in occurring hours after the incident in question was properly admitted under the “‘course of conduct’” or ‘complete story’ exception.” The evidence was necessary for the jury to understand how the defendant was identified as the perpetrator and how items stolen from the robbery victim and purchased with her credit card were recovered. The break-in evidence “was necessary for the jury to understand the complete story and timeline of the events that took place on the night in question, and therefore was properly admitted under the ‘course of conduct’ exception.” A footnote to the court’s opinion suggests that this basis for admission was separate from and independent of admissibility under Rule 404(b).
The defendant was convicted of first-degree murder in Person County. The victim was a neighbor with whom the defendant had long-running disputes. According to the defendant, he shot the neighbor in self-defense. The victim was shot 11 or 12 times, with the vast majority of the bullets having entered the victim from the back and side of his body. The State presented evidence from an experiment performed by a forensic firearms examiner attempting to replicate the production of the layout of bullet shell casings found at the scene in order to demonstrate the shooter’s location and to rebut the defendant’s self-defense claim. The expert only reported the results of the experiment and did not specifically opine about the shooter’s location.
(1) Relying on cases pre-dating the adoption of the Rules of Evidence, the defendant argued this evidence was improperly admitted in violation of the “substantial similarity” test. These older cases imposed stricter requirements for the admission of “experimental evidence” – that is, evidence “about an experiment that is used to prove something about the actual events that occurred in the case.” Slip op. at 8. The defendant argued that these rules controlled, rather than Rule of Evidence 702. Under those cases, the standard of review on appeal of this issue would have been de novo, rather than the abuse of discretion standard applied to Rule 702 challenges. The defendant did not argue or cite to Rule 702 or to any cases applying the rule since the 2011 amendments adopting the Daubert standard for expert testimony. Rejecting this argument, the court found that later cases, even those pre-dating the 2011 amendment to Rule 702, had in fact adopted an abuse of discretion standard of review for experimental evidence. The court also rejected the notion that the substantial similarity test stood apart from Rule 702. “The notion of ‘substantial similarity’ for experimental evidence is one of the many ‘particular factors articulated in previous cases’ that is now baked into the third prong of Rule 702’s reliability test.” Id. at 10. Thus, pursuant to Rule 702, the standard of review is abuse of discretion. Even if the defendant’s argument that the evidence was erroneously admitted was not forfeited by his failure to argue Rule 702 or abuse of discretion, the trial court did not err in admitting the testimony. In the words of the court: “Here, the trial court’s determination that the experiment met the Rule 702 criteria was a reasoned one and not manifestly arbitrary. Thus, we cannot hold that the trial court abused its discretion.” Id. at 12.
(2) The defendant also argued that the trial court erred in qualifying the expert to give an opinion about shell ejection patterns. Voir dire of the expert revealed that he had not received training on ejection patterns of bullet shells, that no certification for this subject exists, and that he had not previously performed this type of experiment. According to the court, the trial court did not abuse its discretion in so qualifying the expert: “’[I]t is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist’ as long as ‘the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’” Id. at 14. Based on his extensive training and experience in the field of firearms, the trial court acted within its discretion and did not err in qualifying the expert.
The conviction was therefore unanimously affirmed with Judges Berger and Arrowood concurring.
In this armed robbery case, the trial court did not err by admitting a videotape showing a detective test firing the air pistol in question. The State was required to establish that the air pistol was a dangerous weapon for purposes of the armed robbery charge. The videotape showed a detective performing an experiment to test the air pistol’s shooting capabilities. Specifically, it showed him firing the air pistol four times into a plywood sheet from various distances. While experimental evidence requires substantial similarity, it does not require precise reproduction of the circumstances in question. Here, the detective use the weapon employed during the robbery and fired it at a target from several close-range positions comparable to the various distances from which the pistol had been pointed at the victim. The detective noted the possible dissimilarity between the amount of gas present in the air cartridge at the time of the robbery and the amount of gas contained within the new cartridge used for the experiment, acknowledging the effect the greater air pressure would have on the force of a projectile and its impact on a target.
The State laid a proper foundation to establish the relevancy of a demonstration by an expert witness who used a doll to illustrate how shaken baby syndrome occurs and the amount of force necessary to cause the victim’s injuries, where a demonstration of how the injuries were inflicted was relevant to defendant’s intent to harm the victim. The demonstration did not have to be substantially similar to the manner in which the crime occurred because that standard applies to experiments, not demonstrations. Finally the demonstration was not unduly prejudicial and would not cause the jury decide the case on emotion.
Use of a mannequin’s head and a newly-purchased couch to refute the defendant’s version of the events on the day she shot her husband was properly allowed as a demonstration. Because the evidence did not constitute an experiment, the State did not have to show that the circumstances were substantially similar to those at the time of the actual shooting. As a demonstration, the evidence was admissible because it was relevant (it was probative of premeditation) and not unfairly prejudicial.
In a bond forfeiture proceeding, the trial court did not err by taking judicial notice of the file as evidence that the defendant was served with the order of arrest. A trial court may take judicial notice of earlier proceedings in the same case, including matters in the file not offered into evidence. Here, the trial court took judicial notice of a fact beyond reasonable controversy. It is undisputed that the defendant was served with the order for arrest before the deadline for filing a notice to set aside the bond forfeiture expired and the trial court attached the order for arrest as an exhibit to its order.
In this case dealing with when a sentence began to run on a defendant’s North Carolina charges, the court took judicial notice of certain documents relating to the defendant’s federal case. Those documents included: an indictment; an arrest warrant; an order of detention; a waiver of detention hearing; a superseding indictment; a plea agreement; and a motion and order continuing sentencing.
In this probation revocation case, the Court of Appeals took judicial notice of the date of the defendant’s release from incarceration. This fact was obtained from an offender search on the Department of Public Safety website.
In this drug trafficking case where an SBI agent testified as an expert for the State and identified the substance in question as oxycodone, the court declined the defendant’s request to take judicial notice of Version 4 and 7 of SBI Laboratory testing protocols. Among other things, the defendant did not present the protocols at trial, the State had no opportunity to test their veracity, and the defendant presented no information indicating that the protocols applied at the time of testing.
For purposes of determining whether there was sufficient evidence that a burglary occurred at nighttime, the court took judicial notice of the time of civil twilight and the driving distance between the victim’s residence and an apartment where the defendant appeared at 6 am after having been out all night.
The court took judicial notice of the clerk of superior court’s records showing that the defendant paid $1,758.50, the total amount due for court costs and fines pursuant to a criminal judgment.
The trial court did not err by refusing to take judicial notice of provisions in the Federal Register when those provisions were irrelevant to the charged offense.
In a burglary case, the trial court properly took judicial notice of the time of sunset and of civil sunset as established by the Naval Observatory and instructed the jury that it “may, but is not required to, accept as conclusive any fact judicially noticed.”
In this drug case, the trial court did not err by admitting a forensic laboratory report after the defendant stipulated to its admission. The defendant argued that the trial court erred by failing to engage in a colloquy with her to ensure that she personally waived her sixth amendment right to confront the analyst whose testimony otherwise would be necessary to admit the report. State v. Perez, __ N.C. App. __, __, 817 S.E.2d 612, 615 (2018), establishes that a waiver of Confrontation Clause rights does not require the type of colloquy required to waive the right to counsel or to enter a guilty plea. In that case, the defendant argued that the trial court erred by allowing him to stipulate to the admission of forensic laboratory reports without engaging in a colloquy to ensure that he understood the consequences of that decision. The court rejected that argument, declining the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights through a stipulation. In Perez, the court noted that if the defendant did not understand the implications of the stipulation, his recourse is a motion for appropriate relief asserting ineffective assistance of counsel. The court rejected the defendant’s attempt to distinguish Perez on grounds that it involved a written stipulation personally signed by the defendant, while this case involves defense counsel’s oral stipulation made in the defendant’s presence. The court found this a “distinction without a difference.” Here, the stipulation did not amount to an admission of guilt and thus was not the equivalent of a guilty plea. The court continued:
[W]e . . . decline to impose on the trial courts a categorical obligation “to personally address a defendant” whose counsel stipulates to admission of a forensic report and corresponding waiver of Confrontation Clause rights. That advice is part of the role of the defendant’s counsel. The trial court’s obligation to engage in a separate, on-the-record colloquy is triggered only when the stipulation “has the same practical effect as a guilty plea.”
The defendant moved to suppress on grounds that an officer stopped him without reasonable suspicion. At a hearing on the suppression motion, the State stipulated that the officer knew, at the time of the stop, that the robbery suspects the officer was looking for were approximately 18 years old. The defendant was 51 years old. However, at the hearing, the officer gave testimony contradicting this stipulation and indicating that he did not learn of the suspects’ age until after he had arrested the defendant. The court concluded that the stipulation was binding on the State, even though the defendant made no objection when the officer testified.
The Court reversed the Ninth Circuit, which had held that the defendant, who was convicted of rape and other crimes, was entitled to federal habeas relief because the Nevada Supreme Court unreasonably applied clearly established Supreme Court precedent regarding a criminal defendant’s constitutional right to present a defense. At his trial, the defendant unsuccessfully tried to introduce extrinsic evidence that the victim previously reported that the defendant had assaulted her but that the police had been unable to substantiate those allegations. The state supreme court held that this evidence was properly excluded. The Ninth Circuit granted habeas relief. The Court reversed, noting in part that it “has never held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes” (emphasis in original).
In this case involving convictions of felony murder, discharging a firearm into an occupied vehicle, and possession of marijuana with intent to sell, the trial court did not err by admitting certain photographs at trial. Two of the photographs (“Gun Photos”) were of firearms; the photos were found on the defendant’s cell phone. A third photograph (“Mustang Photo”) also was recovered from the defendant’s phone; it showed the defendant and another man leaning against the hood of a Silver Mustang with a black racing stripe on the street where the victim was shot. Both men were displaying the hand sign for the number “4” with their left hands, while the man on the right displayed a closed right hand with his middle finger extended.
The defendant argued that the photos should have been excluded under Evidence Rule 404 because possession of a firearm and flashing gang signs show bad character and bad acts. The court found itself unable to conclude that possession of a firearm is indicative of bad acts or character given that gun ownership is protected by the Second Amendment and that the defendant’s own brief fails to identify any basis for such a conclusion. The court failed to see how the hand signals in the Mustang Photo indicate gang affiliation. Nothing in the record suggests that either gesture indicates gang affiliation, and the trial court instructed the prosecutor not to ask any questions about signs or gang affiliation based on the picture. Thus, neither photograph falls within the scope of Rule 404.
The court rejected the defendant’s argument that the photographs were inadmissible under Rules 401 and 402. The court rejected the defendant’s argument that no evidence connected the gun at issue to the weapon used in the crime. There was an evidentiary connection between the photos, the crime, and the accused; specifically, the photos were obtained from the defendant’s phone, showed that he had access to firearms and to the vehicle in question, and depict him at almost the precise location where the shooting occurred. One of the gun photos shows the defendant in possession of a firearm resembling the one used in the shooting. The evidence was relevant and the trial court did not err by admitting the photographs.
The trial court did not abuse its discretion in conducting the Rule 403 balancing test with respect to the photographs. The defendant’s brief assumes that the photographs are irrelevant but because the court concluded to the contrary it rejected this argument as well.
In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court erred by excluding evidence that one of the victims was biased. The defendant sought to introduce evidence showing that the victim had a motive to falsely accuse the defendant. The trial court found the evidence irrelevant because it did not fit within one of the exceptions of the Rape Shield Statute. The court concluded that this was error, noting that the case was “indistinguishable” “in any meaningful way” from State v. Martin, __ N.C. App. __, 774 S.E.2d 330 (2015) (trial court erred by concluding that evidence was per se it admissible because it did not fall within one of the Rape Shield Statute’s exceptions).
Although statements made by a law enforcement officer during a videotaped interrogation of the defendant were not relevant, the defendant failed to show prejudice warranting a new trial. The court distinguished cases holding that statements by a law enforcement officer during a videotaped interrogation of the defendant are relevant to provide context for the defendant’s answers, noting, among other things, that in this case the defendant never made any concessions or admissions during the interrogation; instead, he repeatedly denied involvement in the crime. For the same reason, the officer’s statements were not relevant to show his interrogation techniques. Finally, because the defendant never wavered from his denials, the officer’s statements were not relevant to show that the defendant conceded the truth or changed his story.
The trial court did not commit plain error by failing to redact portions of a transcript of the defendant’s interrogation where the challenged statements were relevant. The court rejected the defendant’s argument that the trial court should have redacted statements made by the detective, finding that they provided context for the defendant’s responses. The court also rejected the defendant’s argument that the detective’s statements during the interrogation that the defendant was lying constituted improper opinion testimony on the defendant’s credibility and that of the State’s witnesses.
Evidence of events leading up to the assault in question was relevant to complete the story of the crime.
In this capital murder case in which the State introduced 404(b) evidence regarding a murder of victim Saldana to show common scheme or plan, the trial court erred by allowing Saldana’s sister to testify about Saldana’s good character. Evidence regarding Saldana’s character was irrelevant to the charged crime. For this reason the trial court also abused its discretion by admitting this evidence over the defendant’s Rule 403 objection.
In this stalking case, the trial court did not abuse its discretion by admitting into evidence Domestic Violence Protective Orders (DVPOs) obtained by the victim against the defendant. The defendant asserted that the findings of fact in the DVPOs unfairly prejudiced him and confused the jury. The court found that the DVPOs were relevant to show the defendant’s course of conduct as well as his motive to commit the current offense. It noted that after reviewing the DVPOs, the trial court redacted those portions it found to be unfairly prejudicial to defendant, and only the redacted versions were admitted into evidence and published to the jury. The court rejected the defendant’s argument that the jury was highly likely to regard the findings contained in the DVPOs as true and binding simply because they had been handwritten by a district court judge, noting that the trial court redacted the DVPOs and properly instructed the jury regarding the State’s burden of proof as well as the jury’s duty to find the facts.
The defendant’s statement to an arresting officer that if the officer had come later the defendant “would have been gone and you would have never saw me again,” was relevant as an implicit admission of guilt.
In this felony-murder case, although the court was “uncertain of the relevance” of certain photos that the State introduced and questioned the defendant about regarding gang activity, the court found no plain error with respect to their introduction.
In this murder case, the trial court did not err by excluding the defendant’s proffered evidence about the victim’s gang membership. The defendant asserted that the evidence was relevant to self-defense. However, none of the proffered evidence pertained to anything that the defendant actually knew at the time of the incident.
In an attempted murder and assault case, the trial court committed plain error by allowing an officer to testify about gangs and gang-related activity where the evidence was not relevant to guilt or to the aggravating factor that the crimes were gang-related. The State’s theory was that the defendant attacked the victim because he was having a sexual relationship with the defendant’s aunt, not because of gang activity. Thus, gang evidence “was neither relevant to the alleged criminal act nor to the aggravating factor of which the State had given notice of its intent to show.” Additionally, the testimony carried the danger of unfair prejudice that substantially outweighed its non-existent probative value under Rule 403.
(1) The trial court erred by admitting evidence concerning the history of the Bloods gang and the activities of various Bloods subsets. The court noted that “[e]vidence of gang membership is generally inadmissible unless it is relevant to the issue of guilt.” Here, the court was unable to determine how the evidence was relevant and concluded that its effect “was to depict a ‘violent’ gang subculture of which [the defendant] was a part and to impermissibly portray [the defendant] as having acted in accordance with gang-related proclivities.” (2) The trial court did not err by allowing evidence about the hierarchy of gang structure when evidence regarding the defendant’s position in the gang was relevant to the extortion-related charges. The evidence helped explain why the defendant thought that he could induce a third party to confess to a robbery; placed into context his statements that the third party would be murdered if he did not turn himself in; and helped explain the third party’s decision to confess. (3) The trial court did not err by admitting photographs of the defendant’s tattoos and related testimony describing the relationship between some of these tattoos and Bloods symbols where that evidence also explained the defendant’s position in gang hierarchy (see discussion above). (4) Evidence of a telephone call between the defendant and his wife in which he described violent acts he would perform on her if she were a man was not relevant and had little purpose other than to show the defendant’s violent propensities.
In this Rowan County case, the Supreme Court majority affirmed the Court of Appeals decision upholding the exclusion of evidence offered by defendants to show other individuals committed the crimes for which defendants were convicted. Defendants were jointly tried and convicted of first-degree murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon.
In May of 2016, defendants came to an apartment with the eventual murder victim, apparently searching for money owed by the woman to the defendants. The murder victim's mother and three-year-old son were also in the apartment. Defendants searched the bedroom, and after not finding the money, shot the woman in the head, killing her. The woman’s mother witnessed the events, and was at one point struck in the face by one of the defendants. The mother was able to identify defendants to the police and also testified identifying them at trial. During the trial, the State filed a motion in limine to exclude mention of the possible guilt of two other individuals that defendants argued were responsible for the crimes. Defendants’ evidence involved the identification of another woman who looked similar to one of the defendants, possessed a gun of the same caliber as the murder weapon, and drove a vehicle that matched a description from a confidential informant of a vehicle present at the scene. The trial court granted the motion in limine, ruling that the proffered evidence was not inconsistent with the guilt of the defendants. The trial court relied on the applicable test under State v. Cotton, 318 N.C. 663 (1987), where evidence implicating the guilt of others “‘must tend both to implicate another and be inconsistent with the guilt of the defendant.’” Slip Op. at 7.
The Supreme Court reviewed defendants’ appeal de novo, and noted that the parties agreed that the evidence in question was relevant, meaning the only consideration in front of the Court was whether the evidence was inconsistent with defendants’ guilt. The Court looked to State v. McNeill, 326 N.C. 712 (1990), for explanation of the relevant standard, emphasizing that the evidence must show another person actually committed the crimes instead of defendants, not just that another person had the opportunity to commit the crimes. Walking through the evidence, the Court concluded that “while defendants’ proffered evidence implicates other suspects which were suggested by defendants, such evidence does not exculpate defendants.” Slip Op. at 23. The Court explained that because the evidence did not tend to show the innocence of either defendant, it did not satisfy the applicable test and was inadmissible.
Justice Earls dissented by separate opinion and would have allowed the admission of the excluded evidence. Id. at 25.
The trial court did not err by joining for trial offenses that occurred on different dates. The first set of offenses occurred on May 15, 2015 and involved assaults and sexual assaults on B.A. The second set of charges arose from a breaking or entering that occurred approximately eight months later, when the defendant entered a neighbor’s home looking for B.A. The defendant argued that certain testimony offered by the neighbor was inadmissible character evidence as to the first set of charges but was essential testimony as to the second set of charges, to establish guilt of another. The court however found that the evidence would not have been admissible for that purpose; to be admissible, guilt of another evidence must do more than create mere conjecture of another’s guilt. Here, the evidence was mere speculation that another person committed the crime. Furthermore the testimony was not inconsistent with the defendant’s guilt.
Trial court did not err by excluding defense evidence of guilt of another where the evidence was “sheer conjecture” and was not inconsistent with the defendant’s guilt.
In a murder case, the trial court did not err by excluding evidence suggesting that the victim’s wife committed the crime. Distinguishing cases where alternate perpetrators were positively identified and both direct and circumstantial evidence demonstrated the third parties’ opportunity and means to murder, the defendant offered “merely conjecture” as to the wife’s possible actions. Additionally, the State contradicted these “speculations” with testimony by the couple’s daughters that they were with their mother on the night in question.
In this Rowan County case, two defendants, Sindy Abbitt and Daniel Albarran, were convicted of first-degree murder on the basis of premeditation and deliberation and felony murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon after they entered a victim’s apartment and shot her over a dispute about money. A witness to the shooting identified the defendants with certainty in photographic lineups, and cellular phone analysis conducted by the FBI showed the defendants were in locations near the victim on the night of the crime.
(1) The defendants argued on appeal that the trial court erred by excluding their proffered evidence that another person committed the crime. To be relevant, evidence that another person committed a crime must not only implicate another person, but also exculpate the defendant. The Court of Appeals agreed with the trial court’s conclusion that the defendants’ evidence did support an inference that another person (Ashley Phillips) may have been involved in some way, but it was not inconsistent with the direct evidence of either defendant’s involvement in the actual shooting, and was therefore properly excluded.
(2) Defendant Albarran argued on appeal that the photographic array lineup used to identify him was unconstitutionally suggestive because the photograph of him was closer to his face than the other photos in the lineup, drawing attention to him. Albarran had filed a pretrial motion to suppress the lineup, but did not object to the witness’s in-court identification during trial. Reviewing the issue for plain error, the Court of Appeals concluded that in light of the unobjected-to in-court identification, any alleged error in the photo lineup would not have impacted the jury’s verdict. The defendant’s argument was therefore overruled.
(3) Albarran argued that the trial court erred by overruling his objection to the prosecutor’s statements during closing asking why the defendant Abbitt—who had filed a pretrial notice to assert an alibi defense—did not call certain witnesses to corroborate her whereabouts on the night of the crime. Albarran, who did not give notice of an alibi defense, claimed that the comment was an improper comment on his failure to present evidence. The Court of Appeals disagreed, concluding that the prosecutor’s comment on Abbitt’s failure to produce exculpatory evidence was not impermissible as applied to her and therefore were not improper.
(4) Albarran argued that the trial court erred by sustaining the State’s objections to defense counsel’s statements during closing about Albarran’s tattoos. Defense counsel reminded the jury during closing that the witness’s description at the time of the offense made no mention of tattoos, and asked them to note the many tattoos they could see on him now. The Court of Appeals concluded that the trial court did not err in sustaining the objection where the defendant’s appearance at the time of trial—more than two years after the crime—had no bearing on the witness’s identification and description of the defendant on the night of the murder.
(5) Defendant Abbitt argued that her out-of-court statements to an officer that she had not been at the scene of the crime, that she had not seen the victim in years, and that she did not know Albarran were hearsay that was improperly placed into evidence as admissions. The Court of Appeals concluded that the statements were relevant and admissible under Rule 401, and that in any event admission of the statements did not give rise to a reasonable possibility that the jury would have reached a different result without the asserted error.
(6) Finally, the Court of Appeals rejected defendant Abbitt’s argument that the short form murder indictment was insufficient to confer jurisdiction on the court, noting the Supreme Court of North Carolina’s longstanding and consistent jurisprudence on that issue.
In this murder case where the defendant was charged with killing his wife, statements by the couple’s child to daycare workers were relevant to the identity of the assailant. The child’s daycare teacher testified that the child asked her for “the mommy doll.” When the teacher gave the child a bucket of dolls, the child picked two dolls, one female with long hair and one with short hair, and hit them together. The teacher testified that she saw the child strike a “mommy doll” against another doll and a dollhouse chair while saying, “[M]ommy has boo-boos all over” and “[M]ommy’s getting a spanking for biting. . . . [M]ommy has boo-boos all over, mommy has red stuff all over.”
Although the trial court erred by admitting into evidence in this stalking case approximately 28 photographs of firearms, ammunition, and surveillance equipment found throughout the defendant’s home during the execution of a search warrant, the error did not amount to prejudicial error. Photographs of the defendant’s firearms, ammunition, and surveillance equipment - all of which the defendant legally possessed at the time the search warrant was executed - were wholly irrelevant to the issue of whether the defendant committed the offense of stalking. The court thus agreed with the defendant that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice, and that the trial court should have exercised its discretion to exclude this evidence. The court went on to conclude that in light of the overwhelming additional evidence presented at trial, the defendant failed to show that the admission of the photographs amounted to prejudicial error.
The court rejected the defendant’s argument that two photos from a photo line-up were irrelevant. The victims had identified the photographs during a photo lineup as depicting the perpetrator. The photographs were admitted as substantive evidence and published to the jury at trial without objection. The court rejected the defendant’s argument that the photos were irrelevant where no witness testified that the defendant was in fact the person depicted in them. The court found that the photographs were properly authenticated by testifying witnesses and the jury “was well able” to look at them and to look at the defendant in the courtroom and draw their own conclusions about whether he was the person depicted.
In this case involving second-degree murder arising out of a vehicle collision, the trial court did not err by admitting staged photographs into evidence. An expert in crash investigation and reconstruction explained to the jury, without objection, how the accident occurred. The photographs were relevant as visual aids to this testimony. Furthermore, the trial court gave a limiting instruction explaining that the photographs were only to be used for the purpose of illustrating the witness’s testimony.
In this felony-murder case, although the court was “uncertain of the relevance” of certain photos that the State introduced and questioned the defendant about regarding gang activity, the court found no plain error with respect to their introduction.
In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The photographs were relevant to identity where crime scene surveillance camera footage clearly showed the location and general dimensions of one of the robber’s tattoos, even though the specifics of it were not visible on the footage.
In this multiple murder case the trial court properly admitted crime scene and autopsy photographs of the victims’ bodies. Forty-two crime scene photos were admitted to illustrate the testimony of the crime scene investigator who processed the scene. The trial court also admitted crime scene diagrams containing seven photographs. Additionally autopsy photos were admitted. The court easily concluded that the photos were relevant. Furthermore, the trial court did not abuse its discretion by finding the photographs admissible over the defendant’s Rule 403 objection.
(1) In a case involving murder and other charges, the trial court properly admitted a picture of the defendant with a silver revolver to illustrate a witness’s testimony that she saw the defendant at her apartment with a silver gun with a black handle. Before being received into evidence, the witness testified that the gun depicted appeared to be the same gun that the defendant had at her apartment. (2) The trial court did not abuse its discretion by concluding that the prejudice caused by the photograph did not substantially outweigh probative value.
The trial court did not commit plain error under Rules 401 or 403 by admitting photographs of the murder victim’s body. The trial court admitted 28 photographs and diagrams of the interior of the home where the victim was found, 12 of which depicted the victim’s body. The trial court also admitted 11 autopsy photographs. An officer used the first set of photos to illustrate the position and condition of the victim’s body and injuries sustained. A forensic pathology expert testified to his observations while performing the autopsy and the photographs illustrated the condition of the body as it was received and during the course of the autopsy. The photographs had probative value and that value, in conjunction with testimony by the officer and the expert was not substantially outweighed by their prejudicial effect.
In this sex case involving a six-year-old victim, the trial court committed prejudicial error by excluding evidence that the defendant found the victim watching a pornographic video. The evidence was relevant to explain an alternate source of the victim’s sexual knowledge, from which she could have fabricated the allegations in question.
In this case involving a gang-related home invasion and murder, the trial court did not commit plain error by admitting rap lyrics found in a notebook in the defendant’s room. The lyrics, which were written before the killing, described someone “kick[ing] in the door” and “spraying” bullets with an AK47 in a manner that resembled how the victims were killed. The court concluded that the defendant failed to show that, absent the alleged error, the jury probably would have returned a different verdict.
In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting a rap song recording into evidence. The defendant argued that the song was irrelevant and inadmissible under Rule 403, in that it contained profanity and racial epithets which offended and inflamed the jury’s passions. The song lyrics claimed that the victim was not killed by a dog and that the defendant and the dog were scapegoats for the victim’s death. The song was posted on social media and a witness identified the defendant as the singer. The State offered the song to prove that the webpage in question was the defendant’s page and that the defendant knew his dog was vicious and was proud of that characteristic (other items posted on that page declared the dog a “killa”). The trial court did not err by determining that the evidence was relevant for the purposes offered. Nor did it err in determining that probative value was not substantially outweighed by prejudice.
In this homicide case where the defendant was charged with murdering his wife, the trial court did not err by admitting into evidence lyrics of a song, “Man Killer,” allegedly authored by defendant and containing lyrics about a murder, including “I’ll take the keys to your car”, “I’m just the one to make you bleed” and “I’ll put my hands on your throat and squeeze.” In this case the evidence showed that the victim’s car had been moved, the victim had been stabbed, and that defendant said he strangled the victim. The court concluded: “In light of the similarities between the lyrics and the facts surrounding the charged offense, the lyrics were relevant to establish identity, motive, and intent, and their probative value substantially outweighed their prejudicial effect to defendant.”
In this homicide case, the trial court did not err by admitting evidence of four firearms found in the car when the defendant was arrested following a traffic stop. The State offered the evidence to show the circumstances surrounding defendant’s flight. Defendant argued that the evidence was irrelevant and inadmissible because nothing connected the firearms to the crime. The court disagreed:
Defendant ran away from the scene immediately after he stabbed [the victim]. Three days later, he was apprehended following a traffic stop in South Carolina. Defendant, who was riding as a passenger in another person’s car, possessed a passport bearing a fictitious name. Also found in the car was a piece of paper with directions to a mosque located in Laredo, Texas. Four firearms were found inside the passenger compartment of the car: a loaded assault rifle, two sawed-off shotguns, and a loaded pistol. The circumstances surrounding defendant’s apprehension in South Carolina, the passport, the paper containing directions to a specific place in Texas, and the firearms are relevant evidence of flight.
In a murder case, the trial court did not err by admitting testimony concerning nine-millimeter ammunition and a gun found at the defendant’s house. Evidence concerning the ammunition was relevant because it tended to link the defendant to the scene of the crime, where eleven shell casings of the same brand and caliber were found, thus allowing the jury to infer that the defendant was the perpetrator. The trial court had ruled that evidence of the gun—which was not the murder weapon—was inadmissible and the State complied with this ruling on direct. However, in order to dispel any suggestion that the defendant possessed the nine-millimeter gun used in the shooting, the defendant elicited testimony that a nine-millimeter gun found in his house, in which the nine-millimeter ammunition was found, was not the murder weapon. The court held that the defendant could not challenge the admission of testimony that he first elicited.
In this multiple murder case where the defendant killed the victims with a shotgun, evidence of firearms and ammunition found in the defendant’s residence, ammunition found in his truck, instructions for claymore mines found on his kitchen table, and unfruitful searches of two residences for such mines was relevant to show the defendant’s advanced planning and state of mind.
In a murder case, the trial court did not err by admitting a knife found four years after the crime at issue. The defendant objected on relevancy grounds. The defendant’s wife testified that he told her that he murdered the victim with a knife that matched the description of the one that was found, the defendant was seen on the day of the murder approximately 150 yards from where the knife was found, and the knife was consistent with the description of the likely murder weapon provided by the State’s pathologist. The court went on to find no abuse of discretion in admitting the knife under Rule 403.
In a drug trafficking and maintaining a dwelling case, evidence that a handgun and ammunition were found in the defendant’s home was relevant to both charges.
In an armed robbery case, admission of evidence of two guns found in the defendant’s home was reversible error where “not a scintilla of evidence link[ed] either of the guns to the crimes charged.”
In a second-degree murder case based on impaired driving, the trial court did not commit plain error under Rule 403 by admitting the results of a chemical analysis of the defendant’s blood. The defendant had argued that because the blood sample was taken approximately three hours after the accident, it was not taken “at any relevant time after the driving” as required by G.S. 20-138.1(a)(2). The court noted that the evidence suggested that the defendant did not consume any alcohol between the time of the accident and when the blood sample was drawn and that he did not allege that the test was improperly administered. The time interval between the defendant’s operation of the vehicle and the taking of the sample goes to weight, not admissibility.
The court held that questions of relevance are reviewed de novo but with deference to the trial court’s ruling.
Following Houseright and holding that the court reviews “questions of relevance de novo although we give great deference to the trial court's relevancy determinations.”
In a capital murder case, the trial court did not abuse its discretion by excluding expert testimony from a neuropharmacologist and research scientist who studies the effects of drugs and alcohol on the brain, proffered by the defense as relevant to the jury’s determination of the reliability of the defendant’s confession. The expert would have testified concerning the defendant’s pattern of alcohol use and the potential consequences of alcohol withdrawal, including seizures. However, the expert repeatedly stated that he could not opine as to whether the confession was false or true or what the defendant’s condition was at the time of the confession. Evidence had been presented indicating that the defendant was not intoxicated at the time of the interrogation and that he was an alcoholic. Given this evidence, the jury could assess how alcohol withdrawal affected the reliability of the confession, if at all. As such, the expert’s testimony would not assist the jury in understanding the evidence or determining a fact in issue under Rule 702.
In this Scotland County case, defendant appealed his conviction for first-degree murder, arguing error in admitting (1) photos of Facebook messages allegedly sent by defendant, and (2) a CAD report of a 911 call. The Court of Appeals found no error.
In December of 2020, defendant and several family and friends were gathered at home, when a dispute broke out between defendant and his older brother. The dispute culminated with defendant pulling a gun and shooting his older brother on the porch. Family members called 911 and the sheriff’s office responded, finding the victim dead on the ground. At trial, the victim’s daughter testified that she communicated with defendant through Facebook Messenger because defendant did not have a phone with service, and she believed the victim also communicated with defendant that way. The State offered photographs showing a Facebook Messenger conversation between the victim and defendant, and the trial court overruled defense counsel’s objections to the authentication of the exhibit. The State also offered a one-page CAD report from a 911 call received two hours after the incident. The trial court allowed this exhibit solely for the purpose of establishing the call occurred, but did not allow discussion of the conversation.
Beginning with (1), the Court of Appeals noted that “the burden to authenticate under Rule 901 is not high—only a prima facie showing is required” and looked to the circumstantial evidence for support that the messages were actually sent to and from defendant. Slip Op. at 9 (quoting State v. Ford, 245 N.C. App. 510, 519 (2016)). The court found sufficient evidence in the testimony of the victim’s daughter, as “the use of Facebook Messenger was consistent with Defendant’s behavior,” and from a deputy who testified how he retrieved the messages from the victim’s phone and read several messages that “contained references and information corroborating their authenticity.” Id. at 11. This led the court to conclude it was not error to admit the Facebook Messenger comments.
Moving to (2), defendant argued “the trial court’s decisions to admit the CAD report showing a 911 call had been received approximately two hours after the incident and to exclude the content of the call were inconsistent.” Id. at 12. The court disagreed, explaining that defendant objected the CAD report was not relevant, and the standard for relevancy is “relatively lax.” Id. at 13 (quoting State v. McElrath, 322 N.C. 1, 13 (1988)). Here, the CAD report made the fact that an incident occurred in the early morning more likely, and the trial court concluded the actual substance of the call was unfairly prejudicial under Rule 403. The court explained that “these rulings are consistent and show an effort by the trial court to provide jurors with explanatory information . . . while protecting Defendant from undue prejudice.” Id. at 14.
In this Scotland County case, defendant appealed his conviction for second-degree murder, arguing error in admitting several jailhouse phone calls, and appealed the denial of his motion for appropriate relief (MAR) based on prosecutorial misconduct in withholding exculpatory evidence. The Court of Appeals found no error with the conviction and denied defendant's MAR.
In October of 2017, a victim at a party in Laurinburg was shot from a car parked on the street. Eyewitness testimony put defendant in the car, and defendant was subsequently convicted of second-degree murder. After his conviction but prior to the current appeal, defendant filed an MAR arguing the prosecutor withheld evidence that a law enforcement officer who testified at defendant’s trial was under investigation for embezzlement at the time of the trial. The Court of Appeals remanded the case to the trial court for a hearing on the MAR, and the trial court conducted a hearing and made findings on the MAR. Both matters form the basis of the current case.
Considering defendant’s arguments regarding the jailhouse calls, the Court of Appeals explained that under Rule of Evidence 401, the calls were relevant because they showed defendant discussing the circumstances around the shooting and a possible motivation for defendant to kill the victim. The court also pointed out that “[defendant’s] silence when told by the female caller that others in the neighborhood were saying that he fired the fatal shot is some evidence of guilt.” Slip Op. at 4-5. Applying Rule of Evidence 403, the court did not see the calls as unfairly prejudicial, especially in light of the limiting instruction given by the trial court regarding hearsay statements in the calls. The court also dispensed with defendant’s constitutional arguments as his “silence was not in response to questions by State actors” and the jury was free to make reasonable inferences from defendant’s statements and silence. Id. at 7.
Moving to the MAR, the court explained that while a former district attorney in the office was aware of the investigation into the officer, those working on defendant’s case were not aware until after the trial. Although the court acknowledged U.S. Supreme Court precedent that knowledge from the former district attorney was likely imputed to those working the case, the court did not find any prejudicial effect from the failure to disclose the investigation. To support this conclusion the court pointed out the abundance of evidence supporting defendant’s guilt outside of the officer’s testimony, such as the jailhouse calls and eyewitness testimony. This led the court to deny defendant's MAR.
In this first-degree murder case, the trial court did not commit plain error under Rules 401 and 402 by admitting testimony from the victim’s brother and the brother’s wife concerning how the victim’s death affected the brother. With regard to the brother’s testimony, the Court of Appeals determined that the testimony satisfied the “low bar of logical relevance” because it rebutted evidence the defendant had elicited from another witness suggesting that the brother had spoken to that witness shortly after the murder and explained why that was unlikely. The testimony also had bearing on the brother’s credibility and allowed the jury to better understand his motives or biases. The testimony of the brother’s wife explaining how the victim’s death had affected him also was relevant because it explained the timeline of the brother’s communication with the other witness and corroborated the brother’s testimony. The Court went on to determine that the defendant failed to preserve certain victim-impact evidence arguments and had failed to show that she was prejudiced by the admission of any of the challenged evidence.
An officer initiated a voluntary encounter with the defendant sitting in the driver’s seat of a parked car. The officer detected a marijuana odor, and the defendant admitted he was smoking a blunt and handed it to the officer. Once backup arrived, the officer asked the defendant to step out of the car and searched him incident to arrest. Upon discovering a “wad of money” totaling thousands of dollars and asking defendant about it, the defendant fled on foot. During the resulting pursuit and takedown, the defendant attempted to take the officer’s firearm and also placed a bag of white powder in his mouth. Believing the defendant was destroying evidence and putting himself at risk, the officer forcibly removed the bag from the defendant’s mouth. The defendant resisted and bit the officer’s finger hard enough to break the skin. The powder later field-tested positive for cocaine. At the defendant’s subsequent trial for assault inflicting serious injury on an officer and attempted common law robbery, testimony about the bag of white powder and the positive field test was admitted. The defendant was convicted of lesser charges, and pleaded guilty to attaining habitual felon status.
The appellate court held that admission of evidence about the field test result was error. The test result was irrelevant since the test was conducted after the assault and attempted robbery were over, and defendant was not charged with any controlled substance offenses. Testimony about the officer’s belief that the powder was cocaine was relevant to explain why the officer believed it was necessary to remove the bag from the defendant’s mouth, but the confirmatory test had no relevance to establishing any of the elements of the charged offenses. However, the error was not prejudicial in light of all the other evidence of defendant’s guilt as to the charged offenses.
Defendant’s remaining argument, alleging a fatal variance in the habitual felon indictment, was waived since the defendant pleaded guilty. The error, which incorrectly listed one of the defendant’s convictions as occurring in superior court rather than district court, did not constitute an exceptional circumstance that warranted allowing discretionary review under Rule 2.
In a case where the defendant was found guilty of obtaining property by false pretenses and insurance fraud involving a claim regarding a stolen truck, although the trial court erred by admitting evidence of a truck later found in a river, the error did not rise to the level of plain error. The defendant applied for a commercial automobile insurance policy for coverage for his Dodge Ram. The application asked in part whether the defendant had been convicted of or pleaded guilty to any felony during the last 10 years. A felony conviction would preclude issuance of a commercial insurance policy, per company regulations. The defendant reviewed and signed the application, falsely answering this question, “no”; the defendant had in fact pleaded guilty to a felony in 2006. The defendant was issued a commercial automobile insurance policy that included theft protection. Five days after obtaining coverage, the defendant reported the Ram stolen. National General Insurance sent the defendant an affidavit to complete, sign, and have notarized. The defendant filled in most of the requested information but left some spaces blank, including one inquiring about “major repairs since purchase.” The defendant did not disclose that the Ram had been in an accident, but it was discovered by the company during its investigation of the theft. Once confronted about it, the defendant disclosed the repairs done to the vehicle. North Carolina Department of Insurance investigator Tyler Braswell was contacted by the police department to assist with locating the Ram. After the investigation, National General issued the defendant two checks, each for $11,000 on the claim. However, it attempted to stop payment on both after they were mailed, when its underwriting department determined that the defendant’s omission to disclose his prior felony conviction required the insurance policy to be rescinded. After a year, Braswell asked the police department for help searching a river for the vehicle. They looked in the area near a bridge where the defendant was known to keep vehicles and where the repairs to the Ram had been made. A submerged Dodge Ram was located without a license plate, but with damage on the front end. Officials were however unable to tow the truck out of the water. Braswell later discovered that the Ram had been towed out of the river at the defendant’s request. The tower testified that it was a Dodge which appeared to have been in the river for “awhile.” No license plate or VIN number from the recovered vehicle was identified or noted. The defendant was charged with one count of obtaining property by false pretenses and one count of insurance fraud. The defendant moved to exclude all evidence related to the truck found in the river. The trial court agreed in part and allowed the evidence only for the limited purpose of proof of the defendant’s intent to commit insurance fraud. The defendant was found guilty of both charges. He appealed.
On appeal the defendant argued that evidence regarding the truck found in the river was not relevant to the insurance fraud charge. The alleged false statement was the defendant’s failure to disclose on the affidavit of vehicle theft that the vehicle had major repairs since purchase. The court rejected the State’s argument that evidence of the submerged vehicle falls under the chain of circumstance rationale. It further concluded that evidence of the submerged truck does not have any tendency to make any fact of the charged insurance fraud of failing to disclose major repairs more or less probable. The trial court thus erred in admitting the evidence. The court found however that the error did not rise to the level of plain error.
In this first-degree murder case, the trial court did not err by admitting letters detailing the defendant’s outstanding debts. The defendant argued that the letters were not relevant. At the time of the victim’s death, she was considering calling off her engagement to the defendant because of his financial problems, and the day before her death she sent him a text message telling him to move out of their home and that, notwithstanding his financial problems, she would continue to seek child support from him. Whether the defendant had a motive to murder the victim was a strongly contested issue in this case. The State alleged that the defendant was facing financial difficulties and that those difficulties created a motive to kill the victim. The letters indicated that the defendant faced financial hardships, both with consumer and child-support debt. This, coupled with evidence that the victim had threatened to remove the defendant from the home and expressed that she would continue to request child-support, made the existence of a financial motive to murder the victim more probable. The letters thus were relevant. The court continued, finding that the trial court did not abuse its discretion by finding that the probative value of the letters was not outweighed by danger of unfair prejudice under Rule 403.
In this child sexual assault case, the trial court did not err by finding that the defendant’s proffered testimony was not relevant. The defendant was charged with committing sexual acts on his daughter Sandy while home from the military on compassionate leave. At trial, the defendant attempted to testify that the reason for his compassionate leave was the rape of his other daughter by a neighbor. The defendant argued that his testimony constituted substantive evidence showing that he did not sexually assault the victim during his compassionate leave and would have allowed him to impeach his ex-wife, Ms. Alonzo, who testified that she witnessed the abuse. Specifically, he asserted that his testimony informing the jury of the sexual assault of his other daughter proves that he “would have been sufficiently deterred” from molesting Sandy during that same time period as “Ms. Alonzo [was] watching him like a hawk.” He further asserted that the testimony would “discredit[] Ms. Alonzo’s testimony” that she saw him sexually assault Sandy, making her explanation for not contacting the police after witnessing his acts “less convincing.” The trial court excluded the testimony under Rules 401 and 403.
The court made swift work of the defendant’s Rule 401 argument, concluding that his proposed testimony does not have a logical tendency to prove that Defendant would not have sexually molested Sandy. The court went on to conclude that even if the testimony was relevant, the trial court did not abuse its discretion in excluding it under Rule 403. The court explained: “The testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”
The court also rejected the defendant’s argument that his testimony could have been used to impeach Ms. Alonzo. Specifically, he argued that because Ms. Alonzo reported the sexual assault of their other daughter by a neighbor, she therefore would have reported any assault she witnessed him commit. Defendant further alleged that because Ms. Alonzo did not file any reports, the jury could have therefore determined there was no sexual assault. The court rejected this argument, concluding: “Ms. Alonzo turning in a neighbor for sexual assault is entirely different, psychologically and emotionally, than turning in her husband. Without an established correlation between turning in neighbors and husbands for sexual assault, Defendant’s proposed testimony does not ‘have a logical tendency to prove’ that Ms. Alonzo was incorrect or untruthful in her testimony.” Moreover, the trial court did not abuse its discretion in excluding this testimony under Rule 403. The court explained: “As previously stated, testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”
In this second-degree murder vehicle accident and felony speeding to elude case, the trial court did not err by excluding, under Rule 401, the defendant’s testimony regarding his medical diagnoses. At trial, the defendant attempted to testify to his cognitive impairments and behavioral problems. The State objected, arguing that the defendant had failed to provide notice of an insanity or diminished capacity defense, and failed to provide an expert witness or medical documentation for any of the conditions. On voir dire, the defendant testified that he suffered from several mental disorders including Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder, Pediatric Bipolar Disorder, and Oppositional Defiant Disorder. Defense counsel stated the testimony was not offered as a defense but rather so that “the jury would be aware of [the defendant’s] condition and state of mind.” The trial court determined that lay testimony from the defendant regarding his various mental disorders was not relevant under Rule 401. The court found no error, reasoning:
Defendant attempted to offer specific medical diagnoses through his own testimony to lessen his culpability or explain his conduct without any accompanying documentation, foundation, or expert testimony. Defendant’s testimony regarding the relationship between his medical diagnoses and his criminal conduct was not relevant without additional foundation or support. Such evidence would have required a tendered expert witness to put forth testimony that complies with the rules of evidence. Without a proper foundation from an expert witness and accompanying medical documentation, Defendant’s testimony would not make a fact of consequence more or less probable from its admittance.
The court went on to hold that even if error occurred, it was not prejudicial.
In a case involving charges of obtaining property by false pretenses arising out of alleged insurance fraud, the trial court did not err by admitting testimony that the defendant did not appear for two scheduled examinations under oath as required by her insurance policy and failed to respond to the insurance company’s request to reschedule the examination. The court rejected the defendant’s argument that this evidence was not relevant, noting that to prove its case the State had to show that the defendant’s acts were done “knowingly and decidedly … with intent to cheat or defraud.” The evidence in question constituted circumstantial evidence that the defendant’s acts were done with the required state of mind.
In this murder case, the defendant’s statements about his intent to shoot someone in order to retrieve the keys to his grandmother’s car, made immediately prior to the shooting of the victim, were relevant. The statements showed the defendant’s state of mind near the time of the shooting and were relevant to the State’s theory of premeditation and deliberation, even though both witnesses to the statements testified that they did not believe that the defendant was referring to shooting the victim.
In this homicide case where the defendant was charged with murdering his wife, the trial court properly allowed forensic psychologist Ginger Calloway to testify about a report she prepared in connection with a custody proceeding regarding the couple’s children. The report contained, among other things, Calloway’s observations of defendant’s drug use, possible mental illness, untruthfulness during the evaluation process and her opinion that defendant desired to “obliterate” the victim’s relationship with the children. Because the report was arguably unfavorable to defendant and was found in defendant’s car with handwritten markings throughout the document, the report and Calloway’s testimony were relevant for the State to argue the effect of the report on defendant’s state of mind—that it created some basis for defendant’s ill will, intent, or motive towards the victim.
In a sexual assault case involving DNA evidence, the trial court did not err by excluding as irrelevant defense evidence that police department evidence room refrigerators were moldy and that evidence was kept in a disorganized and non-sterile environment where none of the material tested in the defendant’s case was stored in those refrigerators during the relevant time period.
In a case in which the defendant was charged with murdering his wife, the trial court did not abuse its discretion by admitting a letter the defendant wrote years before his wife’s death to an acquaintance detailing his financial hardships. Statements in the letter supported the State’s theory that the defendant had a financial motive to kill his wife.
The trial court did not commit plain error by allowing the State to question two witnesses on rebuttal about whether they received money from the victim in exchange for making up statements when the defendant raised the issue of the victim’s veracity on his cross examination.
In the habitual felon phase of the defendant’s trial, questions and answers contained in the Transcript of Plea form for the predicate felony pertaining to whether, at the time of the plea, the defendant was under the influence of alcohol or drugs and his use of such substances were irrelevant. Although admission of this evidence did not result in prejudice, the court noted that “preferred method for proving a prior conviction includes the introduction of the judgment,” not the transcript of plea.
In a child sexual abuse case, evidence of the defendant’s prior violence towards the victims’ mother, with whom he lived, was relevant to show why the victims were afraid to report the sexual abuse and to refute the defendant’s assertion that the victims’ mother was pressuring the victims to make allegations in order to get the defendant out of the house. Evidence that the victims’ mother had been sexually abused as a child was relevant to explain why she delayed notifying authorities after the victims told her about the abuse and to rebut the defendant’s assertion that the victims were lying because their mother did not immediately report their allegations.
In this capital case, the trial court did not err by allowing the State to elicit testimony that defense counsel had previously hired the State’s expert to testify on behalf of another client. The defendant argued that this allowed the State to improperly vouch for its expert’s credibility. The State’s expert testified that he disagreed with a defense expert’s opinion that the defendant suffers from mild intellectual disability. In light of the differences between the experts’ opinions it was proper to elicit testimony regarding potential witness bias or lack thereof. The court noted:
Although the trial court might have been better advised to have exercised its discretionary authority pursuant to . . . Rule 403, to limit the scope of the prosecutor’s inquiry to whether [the State’s expert] had previously worked for counsel representing criminal defendants in general rather than specifically identifying one of defendant’s trial counsel as an attorney to whom [the expert] had provided expert assistance, we are unable to say, given the record before us in this case, that the challenged testimony constituted impermissible prosecutorial vouching for [the expert]’s credibility or that the trial court erred by refusing to preclude the admission of the challenged testimony.
In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court abused its discretion by excluding, under Rule 403, evidence that one of the victims was biased. The evidence in question had a direct relationship to the incident at issue. Here, the defendant did not seek to introduce evidence of completely unrelated sexual conduct at trial. Instead, the defendant sought to introduce evidence that the victim told “police and his wife that he was addicted to porn . . . [and had] an extramarital affair[,] . . . [in part] because of what [Defendant] did to him.” The defendant sought to use this evidence to show that the victim “had a reason to fabricate his allegations against Defendant – to mitigate things with his wife and protect his military career.” Thus, there was a direct link between the proffered evidence and the incident in question. The court went on to hold, however, that because of the strong evidence of guilt, no prejudice resulted from the trial court’s error.
The court affirmed State v. King, 214 N.C. App. 114 (Aug. 2, 2011) (holding that the trial court did not abuse its discretion by excluding the State’s expert testimony regarding repressed memory under Rule 403). The trial court had concluded that although the expert’s testimony was “technically” admissible under Howerton and was relevant, it was inadmissible under Rule 403 because recovered memories are of “uncertain authenticity” and susceptible to alternative possible explanations. The trial court found that “the prejudicial effect [of the evidence] increases tremendously because of its likely potential to confuse or mislead the jury.” The supreme court held that the trial court did not abuse its discretion by excluding the repressed memory evidence under Rule 403. The court noted that its holding was case specific:
We promulgate here no general rule regarding the admissibility or reliability of repressed memory evidence under either Rule 403 or Rule 702. As the trial judge himself noted, scientific progress is “rapid and fluid.” Advances in the area of repressed memory are possible, if not likely, and even . . . [the] defendant’s expert, acknowledged that the theory of repressed memory could become established and that he would consider changing his position if confronted with a study conducted using reliable methodology that yielded evidence supporting the theory. Trial courts are fully capable of handling cases involving claims of repressed memory should new or different scientific evidence be presented.
In this murder case, the trial court committed reversible error by excluding, under Rule 403, testimony by a defense expert that certain incriminating computer files had been planted on the defendant’s computer. Temporary internet files recovered from the defendant’s computer showed that someone conducted a Google Map search on the laptop while it was at the defendant’s place of work the day before the victim was murdered. The Google Map search was initiated by someone who entered the zip code associated with the defendant's house, and then moved the map and zoomed in on the exact spot where the victim’s body later was found.
Even if a psychiatrist was not testifying as an expert, the trial court nevertheless acted within its discretion by excluding his testimony under Rule 403.
Holding that State v. Wilkerson, 148 N.C. App. 310, rev’d per curiam, 356 N.C. 418 (2002) (bare fact of the defendant’s conviction, even if offered for a proper Rule 404(b) purpose, must be excluded under Rule 403), did not require exclusion of certified copies of the victim’s convictions. Unlike evidence of the defendant’s conviction, evidence of the victim’s convictions does not encourage the jury to acquit or convict on an improper basis.
In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court did not abuse its discretion under Rule 403 by admitting 404(b) evidence that the defendant engaged in hazing techniques against his wrestlers. The evidence involved testimony from wrestlers that the defendant choked-out and gave extreme wedgies to his wrestlers, and engaged in a variety of hazing activity, including instructing upperclassmen to apply muscle cream to younger wrestlers’ genitals and buttocks. The evidence was “highly probative” of the defendant’s intent, plan, or scheme to carry out the charged offenses. The court noted however “that the State eventually could have run afoul of Rule 403 had it continued to spend more time at trial on the hazing testimony or had it elicited a similar amount of 404(b) testimony on ancillary, prejudicial matters that had little or no probative value regarding the Defendant’s guilt” (citing State v. Hembree, 367 N.C. 2 (2015) (new trial where in part because the trial court “allow[ed] the admission of an excessive amount” of 404(b) evidence regarding “a victim for whose murder the accused was not currently being tried”). However, the court concluded that did not occur here.
In this drug trafficking case, the court rejected the defendant’s argument that the trial court abused its discretion under Rule 403 by admitting statements made by a confidential informant about the defendant’s distribution of drugs to a law enforcement officer for the limited purpose of explaining the course of the investigation. The statements were relevant and explain the steps taken by officers during the investigation. Further, the limiting instruction demonstrated that the trial court thoughtfully considered the nature of the testimony and how it could potentially be used by the jury.
In a capital murder case, the trial court did not abuse its discretion by allowing the State to introduce for illustrative purposes 18 autopsy photographs of the victim. Cynthia Gardner, M.D. testified regarding her autopsy findings, identified the autopsy photos, and said they accurately depicted the body, would help her explain the location of the injuries, and accurately depicted the injuries to which Dr. Gardner had testified. The photos were relevant and probative, not unnecessarily repetitive, not unduly gruesome or inflammatory, and illustrated both Gardner’s testimony and the defendant’s statement to the investigators.
In this Cherokee County case, defendant appealed his conviction for second-degree murder, claiming speedy trial issues and introduction of prejudicial evidence to the jury. The Court of Appeals found no error.
Defendant was arrested in May of 2016 for murdering the victim. That defendant shot the victim was undisputed, so the only issue at trial was whether the shooting was intentional. Defendant finally went on trial for first-degree murder in January of 2023. Before trial, defendant moved to dismiss on speedy trial grounds, but the trial court denied the motion. During trial, the State offered a photograph showing a blood-stained area around the house where the shooting happened, but later admitted to the trial court that the photograph was from an unrelated 2007 incident and struck the exhibit from the record. The trial court provided a curative instruction to the jury regarding the photograph. Defendant was ultimately convicted of second-degree murder and appealed.
Taking up the speedy trial issues, the Court of Appeals noted the delay was more than a year, triggering the balancing test from Barker v. Wingo, 407 U.S. 514 (1972). The four factors for the Barker test are “(1) length of the delay, (2) reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant.” Slip Op. at 3. Here, the court walked through the period of delay, noting that both defendant and the State bore some responsibility for the lengthy delay in reaching trial. However, defendant failed to “show that his defense was impaired by the delay” and failed to assert his right to a speedy trial “until approximately one month before the trial was scheduled to start,” justifying denial of his motion. Id. at 14.
Moving to the photograph, the court noted defendant could not demonstrate prejudice as “the photograph did not suggest Defendant had previously been arrested, tried, or convicted of a previous crime, or even that Defendant had previously committed a violent act.” Id. at 16. The court also held that “the [trial] court’s curative instruction was sufficiently clear and cured the jury from any purported prejudice the photograph may have caused.” Id. at 18.
In this Randolph County case, defendant appealed her conviction for second-degree murder, arguing plain error in admitting two exhibits of defendant’s text message conversations. The Court of Appeals majority agreed, vacating the conviction and granting defendant a new trial.
In June of 2017, Defendant shot a man she had a sexual relationship with in the back inside her home. The relationship between defendant and the victim was rocky and involved the use of methamphetamine; both parties were also involved in sexual relationships with others. In 2019, defendant was convicted of second-degree murder, and appealed, arguing error in instructing the jury on the aggressor doctrine among other issues. The Court of Appeals agreed with the aggressor doctrine argument, granting a new trial in State v. Hicks, 283 N.C. App. 74 (2022). However, the Supreme Court reversed that holding in State v. Hicks, 385 N.C. 52 (2023), remanding to the Court of Appeals for consideration of defendant’s arguments regarding the text messages admitted as Exhibits 174 and 175 and leading to the current opinion.
Taking up the exhibits in question, the Court of Appeals first established there was no invited error. After the prosecutor explained to the trial court their intention to provide printed out copies of the text messages to the jury to read along during the testimony, defense counsel said, “I think that’s probably a pretty good idea” and indicated the defense might use the same method with their expert. Slip Op. at 12. The court explained that “[t]his conversation does not indicate that defense counsel affirmatively requested that the jurors hold copies of State’s Exhibits 174 and 175, that the entirety of Defendant’s texts be submitted to the jury unredacted, nor that certain graphic images be enlarged.” Id. at 12-13. The court also highlighted that defense counsel did not stipulate to admitting the two exhibits, meaning this exchange did not represent invited error. Next the court considered several examples of cross-examination by defense counsel, concluding “[d]efense counsel did not address the numerous irrelevant and prejudicial texts nor the enlarged graphic images that Defendant now challenges on appeal.” Id. at 18. Finally, the court concluded that defense counsel’s request for an additional extraction from defendant’s phone was not invited error, as defense counsel was not trying to introduce all of the contents of defendant’s phone, but instead was “seeking to uncover potentially exculpatory evidence.” Id. at 20.
Having concluded that invited error did not apply, the court turned to plain error in admitting the exhibits, noting that “the analysis is whether, without that evidence, the jury probably would have reached a different result.” Id. at 21 (quoting State v. Reber, 386 N.C. 153 (2024)). Exhibit 174 consisted of text messages from defendant’s phone in 2017 and Exhibit 175 was several blown-up photographs of sex acts taken from these text messages. The jury was given printed copies of both exhibits to review during the testimony of a detective, who read portions of the text messages aloud and described some of the photographs. The court noted that many of the text messages in Exhibit 174 were irrelevant and prejudicial, and “the State published text message exchanges to the jury that were grossly prejudicial and carried a high propensity to inflame the emotional reaction of the jurors.” Id. at 27. The court reached a similar conclusion with the images in Exhibit 175, explaining “[u]nless the jurors were accustomed to looking at pornography, the close-up images of Defendant engaging in sexual activity with a married man only served the purpose of shocking and disgusting the jury.” Id. at 34.
After determining the prejudicial and irrelevant nature of the text messages and images, and the prejudicial nature of allowing the jury to hold the printed exhibits without any limiting instruction, the court performed the Reber analysis by examining the state of the evidence absent the two exhibits. The court concluded “[t]he jurors probably would have acquitted Defendant if the exhibits did not cause them to reach their decision based on passion, namely, a personal revulsion toward Defendant.” Id. at 43. As a result, the court vacated the conviction and remanded for a new trial.
Judge Murphy dissented and would have held the conflicting evidence would make this a “close case” for the jury, meaning it did not qualify as plain error under Reber.
The defendant was convicted of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and attempted first-degree murder. The opinion describes in detail the beatings inflicted with a bat by the defendant and two others on the deceased and her fiancé, who was severely injured but survived. The sole issue on appeal was whether the trial judge erred in admitting roughly fifty photographs of the crime scene displaying the victims’ injuries and blood throughout the house. The defendant argued that the trial judge erred in allowing an excessive number of bloody and gruesome photographs that had little probative value and were unfairly prejudicial under Rule 403 of the North Carolina Rules of Evidence. The Court of Appeals held that the trial judge did not abuse its discretion in admitting the photographs. The Court stated, “‘Even gory or gruesome photographs are admissible so long as they are used for illustrative purposes and are not introduced solely to arouse the jurors’ passions’” (quoting State v. Hennis, 323 N.C. 279 (1988)). The Court ruled that the trial judge, having conducted an in camera review of the photographs and considered the defendant’s objections, completed its task of reviewing the content and manner in which the photographs were to be used and that the admission of the photographs reflected a thoroughly reasoned decision. The Court further ruled that the defendant was unable to show that the photographs were prejudicial because of other overwhelming evidence of the defendant’s guilt.
In this murder case, the trial court did not abuse its discretion by admitting photographs of the victim and crime scene. The trial court allowed the State to introduce approximately 20 photographs depicting various angles and details of the crime scene and the victim’s location and injuries. The photographs corroborated the defendant’s statement to officers that the victim was attacked at her kitchen, suffered a head injury, and was stabbed multiple times. The autopsy photographs illustrated the testimony of the medical examiner, who described the injuries as consistent with multiple particular weapons, the defensive characteristics of some injuries, and the deliberate and persistent nature of the attack.
In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The court rejected the defendant’s argument that the photographs should have been excluded under Rule 403 because they showed him in a jail setting. The court noted that the photographs did not clearly show the defendant in jail garb or in handcuffs; they only showed the defendant in a white t-shirt in a cinderblock room with large windows. Furthermore, the trial court specifically found that it was unable to determine from the pictures that they were taken in a jail.
In this multiple murder case the trial court properly admitted crime scene and autopsy photographs of the victims’ bodies. Forty-two crime scene photos were admitted to illustrate the testimony of the crime scene investigator who processed the scene. The trial court also admitted crime scene diagrams containing seven photographs. Additionally autopsy photos were admitted. The court easily concluded that the photos were relevant. Furthermore, the trial court did not abuse its discretion by finding the photographs admissible over the defendant’s Rule 403 objection.
The trial court did not commit plain error under Rules 401 or 403 by admitting photographs of the murder victim’s body. The trial court admitted 28 photographs and diagrams of the interior of the home where the victim was found, 12 of which depicted the victim’s body. The trial court also admitted 11 autopsy photographs. An officer used the first set of photos to illustrate the position and condition of the victim’s body and injuries sustained. A forensic pathology expert testified to his observations while performing the autopsy and the photographs illustrated the condition of the body as it was received and during the course of the autopsy. The photographs had probative value and that value, in conjunction with testimony by the officer and the expert was not substantially outweighed by their prejudicial effect.
The trial court did not err in admitting four objected-to photographs of the crime scene where the defendant did not did not object to 23 other crime scene photographs, the four objected-to photographs depicted different perspectives of the scene and focused on different pieces of evidence, the State used the photographs in conjunction with testimony for illustrative purposes only, and the photographs were not used to inflame the jury’s passions.
In this first-degree murder case, the trial court did not abuse its discretion under Rule 403 by admitting the victim’s skeletal remains, specifically her skull, ribs, and femur. The court considered each set of bones, starting with the skull. It noted that admission of a homicide victim’s skull was an issue of first impression. Generally, however, evidence used to identify a victim is relevant and admissible at trial. Here, the State argued, in part, that it needed witness Curtis, who found the skull, to identify it so that other witnesses could identify other pertinent bones. Curtis positively identified the skull as the one he found in the woods, based on the front teeth. Here, the skull is relevant to the State’s case, illustrated Curtis’s testimony, and was properly admitted under Rule 403.
As to the rib bones, the court noted that evidence showing the nature and number of the victim’s injuries is probative. Here, the State used the rib bones to illustrate the victim’s injuries, which the medical examiner concluded caused death. They thus were more probative than prejudicial and were properly admitted under Rule 403.
Considering the femur, the court noted that biological items used in DNA testing generally are admissible. Here, the State used the femur to establish the identity of the victim through DNA testing and it was properly admitted under Rule 403.
In a first-degree murder trial, the trial court did not err by admitting a jail letter that the defendant wrote to an accomplice in “Crip” gang code. In the letter, the defendant asked the accomplice to kill a third accomplice because he was talking to police. Rejecting the defendant’s argument that the evidence should have been excluded under Rule 403, the court determined that the fact that the defendant solicited the murder of a State’s witness was highly relevant and that the defendant’s gang membership was necessary to understand the context and relevance of the letter, which had to be translated by an accomplice. Additionally, the trial court repeatedly instructed the jury that they were only to consider the gang evidence as an explanation for the note.
In a homicide case in which the defendant asserted self-defense, the trial court did not abuse its discretion by admitting evidence that the defendant had been selling drugs in the vicinity of the shooting and was affiliated with a gang. The evidence showed that both the defendant and the victim were gang members. The court held that gang affiliation and selling drugs were relevant to show that the defendant could have had a different objective in mind when the altercation took place and could refute the defendant’s claim of self-defense.
Following State v. Little, 191 N.C. App. 655 (2008), and State v. Jackson, 139 N.C. App. 721 (2000), and holding that the trial court did not abuse its discretion by allowing the State to introduce evidence of the defendant’s prior conviction in a felon in possession case where the defendant had offered to stipulate to the prior felony. The prior conviction, first-degree rape, was not substantially similar to the charged offenses so as to create a danger that the jury might generalize the defendant’s earlier bad act into a bad character and raise the odds that he perpetrated the charged offenses of drug possession, possession of a firearm by a felon, and carrying a concealed weapon.
Trial judge was not required to view a DVD before ruling on a Rule 403 objection to portions of an interview of the defendant contained on it. Trial judge did not abuse his discretion by refusing to redact portions of the DVD. However, the court “encourage[d] trial courts to review the content of recorded interviews before publishing them to the jury to ensure that all out-of-court statements contained therein are either admissible for a valid nonhearsay purpose or as an exception to the hearsay rule in order to safeguard against an end-run around the evidentiary and constitutional proscriptions against the admission of hearsay.” The court also “remind[ed] trial courts that the questions police pose during suspect interviews may contain false accusations, inherently unreliable, unconfirmed or false statements, and inflammatory remarks that constitute legitimate points of inquiry during a police investigation, but that would otherwise be inadmissible in open court.” It continued: “[A]s such, the wholesale publication of a recording of a police interview to the jury, especially law enforcement’s investigatory questions, might very well violate the proscriptions against admitting hearsay or Rule 403. In such instances, trial courts would need to redact or exclude the problematic portions of law enforcement's investigatory questions/statements.”
In this murder case the court held that the court of appeals erred by concluding that the trial court committed reversible error in allowing into evidence certain materials from civil actions. The relevant materials included a default judgment and complaint in a wrongful death suit stating that the defendant killed the victim and a child custody complaint that included statements that the defendant had killed his wife. The court of appeals had held that admission of this evidence violated G.S. 1-149 (“[n]o pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it”) and Rule 403. The court held that the defendant did not preserve his challenge to the admission of the child custody complaint on any grounds. It further held that the defendant failed to preserve his G.S. 1-149 objection as to the wrongful death evidence and that his Rule 403 objection as to this evidence lacked merit. On the 403 issue as to the wrongful death evidence, the court rejected the court of appeals’ reasoning that substantial prejudice resulting from this evidence “irreparably diminished” defendant’s presumption of innocence and “vastly outweighed [its] probative value.” Instead, the court found that evidence concerning the defendant’s response to the wrongful death and declaratory judgment action had material probative value. Although the evidence posed a significant risk of unfair prejudice, the trial court “explicitly instructed the jury concerning the manner in which civil cases are heard and decided, the effect that a failure to respond has on the civil plaintiff’s ability to obtain the requested relief, and the fact that ‘[t]he entry of a civil judgment is not a determination of guilt by any court that the named defendant has committed any criminal offense.’”
In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting a rap song recording into evidence. The defendant argued that the song was irrelevant and inadmissible under Rule 403, in that it contained profanity and racial epithets which offended and inflamed the jury’s passions. The song lyrics claimed that the victim was not killed by a dog and that the defendant and the dog were scapegoats for the victim’s death. The song was posted on social media and a witness identified the defendant as the singer. The State offered the song to prove that the webpage in question was the defendant’s page and that the defendant knew his dog was vicious and was proud of that characteristic (other items posted on that page declared the dog a “killa”). The trial court did not err by determining that the evidence was relevant for the purposes offered. Nor did it err in determining that probative value was not substantially outweighed by prejudice.
In this Rowan County case, the Supreme Court majority affirmed the Court of Appeals decision upholding the exclusion of evidence offered by defendants to show other individuals committed the crimes for which defendants were convicted. Defendants were jointly tried and convicted of first-degree murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon.
In May of 2016, defendants came to an apartment with the eventual murder victim, apparently searching for money owed by the woman to the defendants. The murder victim's mother and three-year-old son were also in the apartment. Defendants searched the bedroom, and after not finding the money, shot the woman in the head, killing her. The woman’s mother witnessed the events, and was at one point struck in the face by one of the defendants. The mother was able to identify defendants to the police and also testified identifying them at trial. During the trial, the State filed a motion in limine to exclude mention of the possible guilt of two other individuals that defendants argued were responsible for the crimes. Defendants’ evidence involved the identification of another woman who looked similar to one of the defendants, possessed a gun of the same caliber as the murder weapon, and drove a vehicle that matched a description from a confidential informant of a vehicle present at the scene. The trial court granted the motion in limine, ruling that the proffered evidence was not inconsistent with the guilt of the defendants. The trial court relied on the applicable test under State v. Cotton, 318 N.C. 663 (1987), where evidence implicating the guilt of others “‘must tend both to implicate another and be inconsistent with the guilt of the defendant.’” Slip Op. at 7.
The Supreme Court reviewed defendants’ appeal de novo, and noted that the parties agreed that the evidence in question was relevant, meaning the only consideration in front of the Court was whether the evidence was inconsistent with defendants’ guilt. The Court looked to State v. McNeill, 326 N.C. 712 (1990), for explanation of the relevant standard, emphasizing that the evidence must show another person actually committed the crimes instead of defendants, not just that another person had the opportunity to commit the crimes. Walking through the evidence, the Court concluded that “while defendants’ proffered evidence implicates other suspects which were suggested by defendants, such evidence does not exculpate defendants.” Slip Op. at 23. The Court explained that because the evidence did not tend to show the innocence of either defendant, it did not satisfy the applicable test and was inadmissible.
Justice Earls dissented by separate opinion and would have allowed the admission of the excluded evidence. Id. at 25.
Reversing the court of appeals in this murder and robbery case, the court held that the trial court did not abuse its discretion by prohibiting the defendant from introducing a tape-recorded voice mail message by the defendant’s sister, a witness for the State, to show her bias and attack her credibility. Although the court found that the voice mail message was minimally relevant to show potential bias, the trial court did not abuse its discretion in its Rule 403 balancing. Because the sister was not a key witness for the State, any alleged bias on her part “becomes less probative.” The trial court properly weighed the evidence’s weak probative value against the confusion that could result by presenting the evidence, which related to a family feud that was tangential to the offenses being tried.
In this Scotland County case, defendant appealed his conviction for first-degree murder, arguing error in admitting (1) photos of Facebook messages allegedly sent by defendant, and (2) a CAD report of a 911 call. The Court of Appeals found no error.
In December of 2020, defendant and several family and friends were gathered at home, when a dispute broke out between defendant and his older brother. The dispute culminated with defendant pulling a gun and shooting his older brother on the porch. Family members called 911 and the sheriff’s office responded, finding the victim dead on the ground. At trial, the victim’s daughter testified that she communicated with defendant through Facebook Messenger because defendant did not have a phone with service, and she believed the victim also communicated with defendant that way. The State offered photographs showing a Facebook Messenger conversation between the victim and defendant, and the trial court overruled defense counsel’s objections to the authentication of the exhibit. The State also offered a one-page CAD report from a 911 call received two hours after the incident. The trial court allowed this exhibit solely for the purpose of establishing the call occurred, but did not allow discussion of the conversation.
Beginning with (1), the Court of Appeals noted that “the burden to authenticate under Rule 901 is not high—only a prima facie showing is required” and looked to the circumstantial evidence for support that the messages were actually sent to and from defendant. Slip Op. at 9 (quoting State v. Ford, 245 N.C. App. 510, 519 (2016)). The court found sufficient evidence in the testimony of the victim’s daughter, as “the use of Facebook Messenger was consistent with Defendant’s behavior,” and from a deputy who testified how he retrieved the messages from the victim’s phone and read several messages that “contained references and information corroborating their authenticity.” Id. at 11. This led the court to conclude it was not error to admit the Facebook Messenger comments.
Moving to (2), defendant argued “the trial court’s decisions to admit the CAD report showing a 911 call had been received approximately two hours after the incident and to exclude the content of the call were inconsistent.” Id. at 12. The court disagreed, explaining that defendant objected the CAD report was not relevant, and the standard for relevancy is “relatively lax.” Id. at 13 (quoting State v. McElrath, 322 N.C. 1, 13 (1988)). Here, the CAD report made the fact that an incident occurred in the early morning more likely, and the trial court concluded the actual substance of the call was unfairly prejudicial under Rule 403. The court explained that “these rulings are consistent and show an effort by the trial court to provide jurors with explanatory information . . . while protecting Defendant from undue prejudice.” Id. at 14.
In this Randolph County case, defendant appealed her conviction for second-degree murder, arguing plain error in admitting two exhibits of defendant’s text message conversations. The Court of Appeals majority agreed, vacating the conviction and granting defendant a new trial.
In June of 2017, Defendant shot a man she had a sexual relationship with in the back inside her home. The relationship between defendant and the victim was rocky and involved the use of methamphetamine; both parties were also involved in sexual relationships with others. In 2019, defendant was convicted of second-degree murder, and appealed, arguing error in instructing the jury on the aggressor doctrine among other issues. The Court of Appeals agreed with the aggressor doctrine argument, granting a new trial in State v. Hicks, 283 N.C. App. 74 (2022). However, the Supreme Court reversed that holding in State v. Hicks, 385 N.C. 52 (2023), remanding to the Court of Appeals for consideration of defendant’s arguments regarding the text messages admitted as Exhibits 174 and 175 and leading to the current opinion.
Taking up the exhibits in question, the Court of Appeals first established there was no invited error. After the prosecutor explained to the trial court their intention to provide printed out copies of the text messages to the jury to read along during the testimony, defense counsel said, “I think that’s probably a pretty good idea” and indicated the defense might use the same method with their expert. Slip Op. at 12. The court explained that “[t]his conversation does not indicate that defense counsel affirmatively requested that the jurors hold copies of State’s Exhibits 174 and 175, that the entirety of Defendant’s texts be submitted to the jury unredacted, nor that certain graphic images be enlarged.” Id. at 12-13. The court also highlighted that defense counsel did not stipulate to admitting the two exhibits, meaning this exchange did not represent invited error. Next the court considered several examples of cross-examination by defense counsel, concluding “[d]efense counsel did not address the numerous irrelevant and prejudicial texts nor the enlarged graphic images that Defendant now challenges on appeal.” Id. at 18. Finally, the court concluded that defense counsel’s request for an additional extraction from defendant’s phone was not invited error, as defense counsel was not trying to introduce all of the contents of defendant’s phone, but instead was “seeking to uncover potentially exculpatory evidence.” Id. at 20.
Having concluded that invited error did not apply, the court turned to plain error in admitting the exhibits, noting that “the analysis is whether, without that evidence, the jury probably would have reached a different result.” Id. at 21 (quoting State v. Reber, 386 N.C. 153 (2024)). Exhibit 174 consisted of text messages from defendant’s phone in 2017 and Exhibit 175 was several blown-up photographs of sex acts taken from these text messages. The jury was given printed copies of both exhibits to review during the testimony of a detective, who read portions of the text messages aloud and described some of the photographs. The court noted that many of the text messages in Exhibit 174 were irrelevant and prejudicial, and “the State published text message exchanges to the jury that were grossly prejudicial and carried a high propensity to inflame the emotional reaction of the jurors.” Id. at 27. The court reached a similar conclusion with the images in Exhibit 175, explaining “[u]nless the jurors were accustomed to looking at pornography, the close-up images of Defendant engaging in sexual activity with a married man only served the purpose of shocking and disgusting the jury.” Id. at 34.
After determining the prejudicial and irrelevant nature of the text messages and images, and the prejudicial nature of allowing the jury to hold the printed exhibits without any limiting instruction, the court performed the Reber analysis by examining the state of the evidence absent the two exhibits. The court concluded “[t]he jurors probably would have acquitted Defendant if the exhibits did not cause them to reach their decision based on passion, namely, a personal revulsion toward Defendant.” Id. at 43. As a result, the court vacated the conviction and remanded for a new trial.
Judge Murphy dissented and would have held the conflicting evidence would make this a “close case” for the jury, meaning it did not qualify as plain error under Reber.
In this Catawba County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and incest with a child, arguing error in excluding a handwritten note that defendant attempted to introduce to attack the alleged victim’s credibility. The Court of Appeals majority agreed with defendant, ordering a new trial.
In April of 2020, the alleged victim ran away from home, eventually telling police that she left because she was angry at defendant for cancelling a sleepover with her friends. She alleged several incidents of sexual abuse by defendant, and a forensic examination found evidence of past sexual trauma. At trial, defendant attempted to attack the victim’s credibility by introducing a handwritten note that she snuck out of her bedroom window one night to meet her boyfriend. Defendant argued the note showed (1) lack of credibility and (2) a possible perpetrator of the assaults, the boyfriend. After voir dire about the note and an extended discussion with the parties, the trial court held the note was inadmissible, noting it was more prejudicial than probative.
Taking up the defendant’s argument, the Court of Appeals majority first established that defendant adequately preserved the objection to the trial court’s ruling, despite a confusing exchange between defense counsel and the trial court regarding the objection. The court then explained the abuse of discretion, holding that “[t]he trial court applied the wrong legal standard because: (1) it failed to engage in the requisite [Rule] 403 balancing; and (2) it failed to find that the Note’s probative value was substantially outweighed by the possibility of unfair prejudice.” Slip Op. at 12 (cleaned up). Because the credibility of the alleged victim was the primary issue at trial, impeachment of her was central to defendant’s case, and “[t]he contradictions within the Note and created by the Note are highly probative of Complainant’s credibility.” Id. at 13. As a result of the trial court’s error, defendant was prejudiced and the court ordered a new trial.
Judge Tyson dissented, and would have applied the plain error standard to reviewing defendant’s argument as it was not properly preserved; the judge also would have held that the Rule 403 conclusion excluding the note was not an abuse of discretion had it been preserved. The lengthy dissent also discusses Rule 412 and defendant’s objections to certain expert testimony.
In this Rockingham County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and sex act by a substitute parent or guardian, arguing error in admitting expert testimony that the victim’s testimony was not coached, in granting a motion in limine preventing defendant from cross-examining the victim about her elementary school records, and in admitting a video of defendant’s interrogation showing equipment related to a polygraph examination. The Court of Appeals found no error.
In 2021, defendant was brought to trial for the statutory rape of his granddaughter in 2017, when she was 11 years old. At trial, a forensic interviewer testified, over defendant’s objection, that he saw no indication that the victim was coached. The trial court also granted a motion in limine to prevent defendant from cross-examining the victim regarding school records from when she was in kindergarten through second grade showing conduct allegedly reflecting her propensity for untruthfulness. The conduct was behavior such as cheating on a test and stealing a pen.
The Court of Appeals noted “[o]ur Supreme Court has held that ‘an expert may not testify that a prosecuting child-witness in a sexual abuse trial is believable [or] is not lying about the alleged sexual assault.’” Slip Op. at 2, quoting State v. Baymon, 336 N.C. 748, 754 (1994). However, the court could not point to a published case regarding a statement about coaching like the one in question here. Because there was no controlling opinion on the matter, the court engaged in a predictive exercise and held, “[b]ased upon our Supreme Court’s statement in Baymon, we conclude that it was not error for the trial court to allow expert testimony that [the victim] was not coached.” Id. at 3.
The court also found no error with the trial court’s conclusions regarding the admissibility of the victim’s childhood records under Rule of Evidence 403. The court explained that the evidence showed behavior that was too remote in time and only marginally probative regarding truthfulness. Finally, the court found no error with the interrogation video, explaining that while it is well established that polygraph evidence is not admissible, the video in question did not show a polygraph examination. Instead, the video merely showed “miscellaneous items on the table and not the actual polygraph evidence,” and all references to a polygraph examination were redacted before being shown to the jury. Id. at 5-6.
In this child sexual assault case, the trial court did not err by finding that the defendant’s proffered testimony was not relevant. The defendant was charged with committing sexual acts on his daughter Sandy while home from the military on compassionate leave. At trial, the defendant attempted to testify that the reason for his compassionate leave was the rape of his other daughter by a neighbor. The defendant argued that his testimony constituted substantive evidence showing that he did not sexually assault the victim during his compassionate leave and would have allowed him to impeach his ex-wife, Ms. Alonzo, who testified that she witnessed the abuse. Specifically, he asserted that his testimony informing the jury of the sexual assault of his other daughter proves that he “would have been sufficiently deterred” from molesting Sandy during that same time period as “Ms. Alonzo [was] watching him like a hawk.” He further asserted that the testimony would “discredit[] Ms. Alonzo’s testimony” that she saw him sexually assault Sandy, making her explanation for not contacting the police after witnessing his acts “less convincing.” The trial court excluded the testimony under Rules 401 and 403.
The court made swift work of the defendant’s Rule 401 argument, concluding that his proposed testimony does not have a logical tendency to prove that Defendant would not have sexually molested Sandy. The court went on to conclude that even if the testimony was relevant, the trial court did not abuse its discretion in excluding it under Rule 403. The court explained: “The testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”
The court also rejected the defendant’s argument that his testimony could have been used to impeach Ms. Alonzo. Specifically, he argued that because Ms. Alonzo reported the sexual assault of their other daughter by a neighbor, she therefore would have reported any assault she witnessed him commit. Defendant further alleged that because Ms. Alonzo did not file any reports, the jury could have therefore determined there was no sexual assault. The court rejected this argument, concluding: “Ms. Alonzo turning in a neighbor for sexual assault is entirely different, psychologically and emotionally, than turning in her husband. Without an established correlation between turning in neighbors and husbands for sexual assault, Defendant’s proposed testimony does not ‘have a logical tendency to prove’ that Ms. Alonzo was incorrect or untruthful in her testimony.” Moreover, the trial court did not abuse its discretion in excluding this testimony under Rule 403. The court explained: “As previously stated, testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”
When a trial court properly determines, pursuant to Evidence Rule 403, that the probative value of evidence about a victim’s sexual history is substantially outweighed by its potential for unfair prejudice, the trial court does not err by excluding the evidence, regardless of whether it falls within the scope of the Rape Shield Rule. The defendant was convicted of second-degree sexual offense. On appeal he argued that the trial court erred by denying his ability to cross-examine the victim regarding the victim’s commission of sexual assault when he was a child. Specifically, the victim had told an officer that he had sexually assaulted his half-sister when he was eight or nine years old and thereafter was placed in a facility until he reached 18 years old. The defendant asserted that the victim’s statement about this assault was admissible for impeachment because it was inconsistent with the victim’s previous statements to law enforcement about how and when he was removed from his home as a child. The trial court found that the victim’s statement about sexually assaulting his sister was evidence of prior sexual behavior protected by the Rape Shield Law and also was inadmissible because any probative value is substantially outweighed by the likelihood of unfair prejudice and confusion to the jury. The court declined to address the defendant’s argument that a prior sexual assault committed by a victim is not protected under the Rape Shield law, concluding instead that the trial court properly excluded the evidence under Rule 403. The sexual behavior at issue occurred more than a decade earlier and involved no factual elements similar to the charges in question. The incident is disturbing and highly prejudicial and the circumstances of the victim’s removal from his family home as a child are of remote relevance to the offense charged. Moreover, other evidence, including testimony that the defendant’s DNA matched a swab taken from the victim shortly after the assault, render the victim’s inconsistent statements about facts less relevant to the contested factual issues at trial, namely the defendant’s denial that any sexual encounter occurred. The court also rejected the defendant’s argument that exclusion of this evidence impermissibly prevented the jury from hearing evidence that the victim was not a virgin of the time of the offense, contrary to his statement to the defendant that he was a virgin.
In this cyberbullying case based on electronic messages, the court rejected the defendant’s argument that the trial court erred by admitting into evidence the defendant’s Facebook posts that, among other things, stated that “there’s no empirical evidence that your Jesus ever existed.” The comments were relevant to show the defendant’s intent to intimidate or torment the victim, as well as the chain of events causing the victim’s mother to contact the police. The court rejected the defendant’s argument that the posts were overly inflammatory.
The trial court did not abuse its discretion under Rule 403 by admitting the defendant’s recorded interview with a police detective. Noting that the fact that evidence is prejudicial to the defendant does not make it unfairly so, the court concluded that the evidence’s probative value was not substantially outweighed by the danger of unfair prejudice.
In this murder case, the court rejected the defendant’s argument that the probative value of a recorded telephone call made by the defendant to his father was substantially outweighed by the danger of unfair prejudice. During the call, the defendant’s father asked: “Now who you done shot now?” and “That same gun, right?”
In a first-degree murder trial, the trial court did not abuse its discretion by declining to exclude, under Rule 403, evidence of the defendant’s mid-trial escape attempt. The court reasoned: “[T]he jury may have inferred from the fact that defendant attempted to escape that defendant was guilty of the charges against him. That inference is precisely the inference that makes evidence of flight relevant and it is not an unfair inference to draw.”
In an identity theft case where the defendant was alleged to have used credit card numbers belonging to several victims, the trial court did not abuse its discretion under Rule 403 by admitting evidence that the defendant also was in possession of debit and EBT cards belonging other persons to show intent.
The trial court did not abuse its discretion under Rule 403 by admitting a recording of phone calls between the defendant and other persons that were entirely in Spanish. The defendant argued that because there was one Spanish-speaking juror, the jurors should have been required to consider only the certified English translation of the recording.
The trial court did not abuse its discretion under Rule 403 by admitting, for purposes of corroboration, a testifying witness’s prior consistent statement. The court noted that although the statement was prejudicial to the defendant’s case, mere prejudice is not the determining factor under Rule 403; rather, the issue is whether unfair prejudice substantially outweighs the probative value.
The trial court did not abuse its discretion under Rule 403 by admitting the defendant’s statement to an arresting officer that if the officer had come later the defendant “would have been gone and you would have never saw me again.”
In a murder case involving a shooting, the trial court did not abuse its discretion by allowing a detective to give lay opinion testimony concerning the calibers of bullets recovered at the crime scene. Although the testimony was prejudicial, the trial judge correctly ruled that its probative value (helping the jury understand the physical evidence) was not substantially outweighed by the degree of prejudice.
The trial judge did not err under Rule 403 in excluding evidence of the victim’s alleged false accusation that another person had raped her. The circumstances surrounding that accusation were different from those at issue in the trial and the evidence could have caused confusion.
(1) In this sexual assault case, the trial court did not err by excluding the defendant’s evidence that the victim had previously been sexually active that her parents punished her for this activity. The defendant did not argue that the victim’s past sexual activity was admissible under one of the four exceptions to the Rape Shield statute. Rather, he argued that her past sexual activity and parental punishment for it was relevant to show that she had a motive to fabricate accusations against him. Here, the evidence showed that the victim had not engaged in sexual activity for several months prior to the incident at issue. The victim’s parents knew that she had been sexually active for several years prior to the incident and the victim testified that she was not worried about being punished for engaging in sexual conduct. No evidence tied her past sexual activity or parental punishment to the incident in question. Additionally, unlike other cases where evidence of sexual activity was deemed admissible, this case did not turn primarily on the victim’s testimony. Here, there was other “compelling physical evidence submitted by the State” including, among other things, DNA evidence and GPS records. (2) The trial court did not violate the defendant’s constitutional right to present a defense by excluding irrelevant evidence.
The trial court committed plain error during the habitual felon phase of a trial by admitting into evidence plea transcripts for the defendant’s prior felony convictions without redacting irrelevant information pertaining to the defendant's prior drug use, mental health counseling, and lenient sentencing. However, no prejudicial error occurred. The court expressly declined to determine whether admission of the transcripts violated G.S. 15A-1025.
Admission of the defendant’s statements did not violate Evidence Rule 410 where it did not appear that the defendant thought that he was negotiating a plea with the prosecuting attorney or with the prosecutor’s express authority when he made the statements at a court hearing. Instead, the statements were made in the course of the defendant’s various requests to the trial court.
G.S. 15A-1025 (the fact that the defendant or counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence) was violated when the prosecutor asked the defendant whether he was charged with misdemeanor larceny as a result of a plea bargain.
In this Orange County case, the Supreme Court affirmed an unpublished Court of Appeals decision upholding defendant’s convictions for sexual offense and indecent liberties with a child. The Court determined that Rule of Evidence 412 bars admission of prior nonconsensual sexual activity.
In October of 2018, the victim told her mother that defendant, her stepfather, was sexually abusing her. During the investigation, the victim was interviewed by a SAFEChild social worker. In this SAFEChild interview, the victim recounted another incident where she was sexually abused by a teenager. At trial, defendant moved to admit the portion of the SAFEChild interview that referenced the teenager. The trial court denied this motion under Rule 412. At the Court of Appeals, defendant argued prejudicial error by excluding the interview as “sexual abuse does not fall within the definition of sexual behavior under Rule 412.” Slip Op. at 4 (cleaned up). The Court of Appeals disagreed, upholding the conviction in an unpublished decision.
Considering defendant’s argument, the Supreme Court noted that “[s]exual activity . . . is not defined in Rule 412 or elsewhere in the North Carolina Rules of Evidence.” Id. at 6. However, the Court concluded that when looking at the relevant definition of “sexual behavior” in Rule 412, it was clear the intent was to differentiate between the sex acts at issue and all other activity, and “the definition does not differentiate between consensual and nonconsensual sex acts, nor does it tend to exclude nonconsensual sex.” Id. This led the Court to determine that “generally, all evidence of a complainant’s sexual behavior, other than the sexual act at issue, is irrelevant regardless of whether that sexual behavior was consensual or nonconsensual.” Id. at 7.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 798 S.E.2d 532 (2017), the court reversed, holding that at the trial court erred by excluding defense evidence of the victim’s history of STDs. The case involved allegations that the defendant had sexual relations with the victim over a period of several years. Evidence showed that the victim had contracted Trichomonas vaginalis and the Herpes simplex virus, Type II, but that testing of the defendant showed no evidence of those STDs. At trial the defense proffered as an expert witness a doctor who was a certified specialist in infectious diseases who opined, in part, that given this, it was unlikely that the victim and the defendant had engaged in unprotected sexual activity over a long period of time. The trial court determined that the defendant could not introduce any STD evidence unless the State open the door. The defendant was convicted and appealed. The Court of Appeals rejected the defendant’s argument that the trial court erred by excluding this evidence. The Supreme Court reversed and ordered a new trial. The Rule 412(b)(2) exception allows for admission of “evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant.” The court concluded:
The proposed expert’s conclusions regarding the presence of STDs in the victim and the absence of those same STDs in defendant affirmatively permit an inference that defendant did not commit the charged crime. Furthermore, such evidence diminishes the likelihood of a three-year period of sexual relations between defendant and [the victim]. Therefore, the trial court erred in excluding this evidence pursuant to Rule 412 and there is “a reasonable possibility that, had the error not been committed, a different result would have been reached at trial.”
When a trial court properly determines, pursuant to Evidence Rule 403, that the probative value of evidence about a victim’s sexual history is substantially outweighed by its potential for unfair prejudice, the trial court does not err by excluding the evidence, regardless of whether it falls within the scope of the Rape Shield Rule. The defendant was convicted of second-degree sexual offense. On appeal he argued that the trial court erred by denying his ability to cross-examine the victim regarding the victim’s commission of sexual assault when he was a child. Specifically, the victim had told an officer that he had sexually assaulted his half-sister when he was eight or nine years old and thereafter was placed in a facility until he reached 18 years old. The defendant asserted that the victim’s statement about this assault was admissible for impeachment because it was inconsistent with the victim’s previous statements to law enforcement about how and when he was removed from his home as a child. The trial court found that the victim’s statement about sexually assaulting his sister was evidence of prior sexual behavior protected by the Rape Shield Law and also was inadmissible because any probative value is substantially outweighed by the likelihood of unfair prejudice and confusion to the jury. The court declined to address the defendant’s argument that a prior sexual assault committed by a victim is not protected under the Rape Shield law, concluding instead that the trial court properly excluded the evidence under Rule 403. The sexual behavior at issue occurred more than a decade earlier and involved no factual elements similar to the charges in question. The incident is disturbing and highly prejudicial and the circumstances of the victim’s removal from his family home as a child are of remote relevance to the offense charged. Moreover, other evidence, including testimony that the defendant’s DNA matched a swab taken from the victim shortly after the assault, render the victim’s inconsistent statements about facts less relevant to the contested factual issues at trial, namely the defendant’s denial that any sexual encounter occurred. The court also rejected the defendant’s argument that exclusion of this evidence impermissibly prevented the jury from hearing evidence that the victim was not a virgin of the time of the offense, contrary to his statement to the defendant that he was a virgin.
In this child sexual assault case, the trial court did not err by precluding the defendant from cross-examining the State’s expert witness about information in the treatment records regarding the child’s sexual activity with partners other than the defendant. The defendant unsuccessfully sought to cross-examine an expert who testified that the victim suffered from PTSD about information she learned regarding the victim’s sexual activity with other individuals. During voir dire the expert testified that any information about the victim’s consensual sexual activity with others did not play a role and was not relevant to her PTSD diagnosis. The trial court found the evidence to be irrelevant. The court noted that having so found, the trial court was not required to proceed under a Rule 403 balancing test.
In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court erred by excluding evidence that one of the victims was biased. The defendant sought to introduce evidence showing that the victim had a motive to falsely accuse the defendant. The trial court found the evidence irrelevant because it did not fit within one of the exceptions of the Rape Shield Statute. The court concluded that this was error, noting that the case was “indistinguishable” “in any meaningful way” from State v. Martin, __ N.C. App. __, 774 S.E.2d 330 (2015) (trial court erred by concluding that evidence was per se it admissible because it did not fall within one of the Rape Shield Statute’s exceptions). The court went on to hold, however, that because of the strong evidence of guilt, no prejudice resulted from the trial court’s errors.
(1) In this child sex case, evidence that the victim was discovered watching a pornographic video, offered by the defendant to show the victim’s sexual knowledge, is not evidence of sexual activity barred by the Rape Shield Statute. (2) Evidence offered by the defendant of the child victim’s prior allegations and inconsistent statements about sexual assaults committed by others who were living in the house were not barred by the Rape Shield Statute, and the trial court erred by excluding this evidence. False accusations do not fall within the scope of the Rape Shield Statute and may be admissible to attack the victim’s credibility. The court was careful however not to “hold the statements necessarily should have been admitted into evidence at trial;” it indicated that whether the victim’s “prior allegations and inconsistent statements come into the evidence at trial should be determined on retrial subject to a proper Rule 403 analysis.”
In this sexual offense with a student case, the trial court committed reversible error by concluding that the defendant’s evidence was per se inadmissible under the Rape Shield Rule. The case involved charges that the defendant, a substitute teacher, had the victim perform oral sex on him after he caught her in the boys’ locker room. At trial the defendant sought to introduce evidence that when he found the victim in the locker room, she was performing oral sex on football players. He sought to introduce this evidence to show that the victim had a motive to falsely accuse him of sexual assault. After an in camera hearing the trial court concluded that the evidence was per se inadmissible because it did not fit under the Rape Shield Rule’s four exceptions. Citing case law, the court determined that “that there may be circumstances where evidence which touches on the sexual behavior of the complainant may be admissible even though it does not fall within one of the categories in the Rape Shield Statute.” Here, the defendant’s defense was that he did not engage in any sexual behavior with the victim but that she fabricated the story to hide the fact that he caught her performing oral sex on the football players in the locker room. The court continued:
Where the State’s case in any criminal trial is based largely on the credibility of a prosecuting witness, evidence tending to show that the witness had a motive to falsely accuse the defendant is certainly relevant. The motive or bias of the prosecuting witness is an issue that is common to criminal prosecutions in general and is not specific to only those crimes involving a type of sexual assault.
The trial court erred by concluding that the evidence was inadmissible per se because it did not fall within one of the four categories in the Rape Shield Statute. Here, the trial court should have looked beyond the four categories to determine whether the evidence was, in fact, relevant to show [the victim]’s motive to falsely accuse Defendant and, if so, conducted a balancing test of the probative and prejudicial value of the evidence under Rule 403 or was otherwise inadmissible on some other basis (e.g., hearsay). (footnote omitted).
In a rape case, the trial court erred by excluding defense evidence that the victim and her neighbor had a consensual sexual encounter the day before the rape occurred. This prior sexual encounter was relevant because it may have provided an alternative explanation for the existence of semen in her vagina; “because the trial court excluded relevant evidence under Rule 412(b)(2), it committed error.” However, the court went on to conclude that no prejudice occurred, in part because multiple DNA tests identified the defendant as the perpetrator.
In the context of an appeal from a contempt proceeding, the court held that by asking the victim at trial about a possible prior instance of rape between the victim and a cousin without first addressing the relevance and admissibility of the question during an in camera hearing, defense counsel violated the Rape Shield Statute.
The trial court did not err by sustaining the State’s objection under the Rape Shield Statute. After the victim had already testified that she was unsure whether her aborted child was fathered by the defendant or her boyfriend, the defense questioned a witness in order to show that the victim had sexual relations with a third man. Introducing such evidence would not have shown that the alleged acts were not committed by defendant given evidence that already had been admitted. Additional evidence would have only unnecessarily humiliated and embarrassed the victim while having little probative value.
(1) In a child sex case, the trial judge did not err by limiting the defendant’s cross-examination of the prosecuting witness regarding inconsistent statements about her sexual history, made to the police and medical personnel. The evidence did not fit within any exception to Rule 412. The court went on to hold that any probative value of the evidence for impeachment purposes was outweighed by its prejudicial effect. (2) The trial court did not err by refusing to admit the victim’s unredacted medical records containing statements regarding her prior sexual history, given that the records had little if any probative value.
The trial judge did not err under Rule 412 in excluding evidence of the victim’s prior sexual activity with a boy named C.T. and with her boyfriend. As to the activity with C.T., the defendant failed to offer evidence that it occurred during the in camera hearing (when the victim denied having sex with C.T.), or at trial. Additionally, the defendant failed to establish the relevance of the sexual activity when it allegedly occurred shortly before the incidents at issue but the victim’s scarring indicated sexual activity that had occurred a month or more earlier. As to the sexual activity with the boyfriend, the defendant failed to present evidence during the in camera hearing that the activity could have caused the victim’s internal scarring.
In a child sex case, the defendant proffered evidence of a third person’s sexual abuse of the victim as an alternative explanation for the victim’s physical trauma. The trial judge properly excluded this evidence under Rule 412(b)(2) because it did not show that the third person’s abuse involved penetration and thus an alternative explanation for the trauma to the victim’s vaginal area.
In this case involving convictions for attempted first-degree murder, statutory sex offense with a child by an adult, assault with a deadly weapon inflicting serious injury, first-degree kidnapping, and taking indecent liberties with a child, although the trial court erred by preventing the defendant from cross-examining the State’s witnesses concerning the defendant’s admission and attempt to help investigators rescue the victim during his post-arrest interrogation, the error was harmless. The case involved the defendant’s abduction of a six-year-old girl and related conduct including binding the child to a tree with a chain around her neck. The defendant asserted that the trial court’s limitation on cross-examination violated his constitutional rights to due process, a fair trial and right to silence. The State elicited testimony from law enforcement officers about the defendant’s pre-arrest statements. It did not however elicit any testimony regarding the post-arrest interrogation of him, and sought to prevent the defendant from introducing any evidence from the State’s witnesses regarding the post-arrest interrogation during cross-examination. According to the State, the pre-arrest interview of the defendant was separate from the post-arrest interrogation that occurred the next day. The trial court agreed with the State and prevented the defendant from questioning the State’s witnesses, including Detective Sorg, regarding the defendant’s post-arrest interrogation. After the State rested, the issue of the defense presenting evidence regarding the post-arrest interrogation arose again, specifically with respect to calling Sorg as a defense witness. According to the State, the testimony would include self-serving statements by the defendant from a completely different interview that constituted hearsay. The State asserted that if the defense wanted to present evidence about what the defendant said during those interviews, he had to take the stand. The trial court agreed and ruled that the defense could not question Sorg on anything related to the post-arrest interrogation. The defendant took the stand and testified about that interrogation.
The court rejected the defendant’s argument that the cross-examination should have been allowed under Rule 106, to prevent the jury from being misled or deceived by the evidence presented regarding the pre-arrest interview. The purpose of Rule 106’s completeness rule is to ensure that misleading impressions created by taking matters out of context are corrected. Here, there was no nexus between the interview and the post-arrest interrogation that would require evidence of the post-arrest interrogation to explain or add context to the earlier interview. Thus the trial court did not err by concluding that the two events were discrete. Moreover, Rule 106 is limited to writings and recorded statements. Here, the defense did not seek to introduce any such materials; rather, the defense simply wanted to question the State’s witnesses about that interrogation during cross-examination.
Considering Rule 611, which addresses the proper scope of cross-examination, the court found that the trial court abused its discretion by disallowing the evidence. Rule 611 provides that a witness may be cross-examined on any relevant matter, and here the evidence that the defendant sought to elicit from the State’s witnesses was relevant. However, the court went on to conclude that the trial court’s error was harmless given the overwhelming evidence of guilt.
The trial court did not err with respect to the defendant’s request to cross-examine the State’s witness, Collins, regarding the victim’s reputation for violence. Although the State objected to the defendant’s attempt to so cross-examine the witness, it acknowledged that it would be appropriate to allow such testimony during the defendant’s case; the trial court agreed and noted that defense counsel could recall the witness during the defense case. Although the defendant presented other evidence of the victim’s reputation for violence, he did not recall Collins. The court noted that under Rule 611 trial courts have discretion to exercise reasonable control over the mode and order of interrogating witnesses. Here, the trial court did not abuse its discretion by requiring the defendant to wait until the defense case to examine Collins about the victim’s reputation for violence.
In a child sexual abuse case, although evidence of the defendant’s law abidingness was admissible under Rule 404(a)(1), evidence of his general good character and being respectful towards children was not admissible. On appeal, the defendant’s argument focused on the exclusion of character evidence that he was respectful towards children. The court found that this evidence did not relate to a pertinent character trait, stating: “Being respectful towards children does not bear a special relationship to the charges of child sexual abuse . . . nor is the proposed trait sufficiently tailored to those charges.” It continued:
Such evidence would only be relevant if defendant were accused in some way of being disrespectful towards children or if defendant had demonstrated further in his proffer that a person who is respectful is less likely to be a sexual predator. Defendant provided no evidence that there was a correlation between the two or that the trait of respectfulness has any bearing on a person’s tendency to sexually abuse children.
In this Guilford County case, defendant appealed her conviction for trafficking methamphetamine, arguing (1) plain error in admitting testimony from an expert without a sufficient foundation for reliability under Rule of Evidence 702, and (2) error in failing to intervene ex mero motu when the prosecutor made improper remarks during closing argument about her past convictions. The Court of Appeals found no plain error in (1), and no error in (2).
In November of 2018, law enforcement officers set up an undercover investigation of a suspected drug dealer. At a meeting set up by an undercover officer to purchase methamphetamine, defendant was the driver of the vehicle with the drug dealer. After officers found methamphetamine in the vehicle, defendant was charged and ultimately convicted of trafficking methamphetamine by possession.
Looking to (1), the Court of Appeals found error in admitting the State’s expert testimony under Rule 702, as “the court failed to exercise its gatekeeping function” when admitting the expert’s testimony. Slip Op. at 7. Although the expert offered testimony about the type of analysis she performed to identify the methamphetamine, “she did not explain the methodology of that analysis.” Id. However, the court noted that this error did not rise to the level of plain error as the expert “identified the tests she performed and the result of those tests,” and she did not engage in “baseless speculation.” Id.
Turning to (2), the court noted that defendant testified on her own behalf and opened the door to character evidence about her past convictions, and that she did not object at trial to the improper argument. The court found the majority of the closing argument to be unobjectionable, but did agree that the prosecutor “improperly suggested that Defendant was more likely to be guilty of the charged offenses based on her past convictions.” Id. at 9. However, this improper suggestion was only “a few lines of the prosecutor’s eighteen-page closing argument” and “was not so grossly improper that it warranted judicial intervention.” Id.
In this Ashe County case, defendant appealed his convictions for rape and sex offense with a child, arguing plain error in the admission of two text message conversations with a woman that were improper character evidence. The Court of Appeals agreed, reversing and remanding for a new trial.
In August of 2021, defendant came to trial for four counts of rape and six counts of sex offense with a child based upon conduct that allegedly occurred between him and the daughter of a couple he knew well. At trial, defendant was questioned about his prior sexual relationships with adult women and several text message conversations during cross-examination. In particular, the prosecutor asked about a text message exchange where defendant’s adult girlfriend admitted to being too drunk to remember a sexual encounter. Defendant was also questioned about another exchange where defendant and his girlfriend were attempting to find a place to engage in sexual activity as defendant lived with his grandparents and could not have girlfriends spend the night. Defendant texted his girlfriend that he hoped his daughter (who was not the child allegedly abused) would not tell his grandparents, but that she had a big mouth.
On appeal, the Court of Appeals agreed with defendant’s argument that the admission of these text message exchanges was plain error. The court explained that this evidence showing defendant’s past sexual relationship was unrelated to his alleged abuse of the child in question, and inadmissible for any Rule of Evidence 404(b) purpose. The court noted there was no similarly in how the crimes and the Rule 404(b) offenses occurred other than they both involved sexual intercourse. The events took place in dissimilar locations, and the charges did not involve the consumption of alcohol or drugs with the child. The court also noted the exchange regarding defendant’s daughter was not sufficiently similar to defendant allegedly asking the victim not to reveal sexual abuse. The court explained:
Here, the evidence portraying Defendant as manipulative by (1) engaging in sexual intercourse with a woman who had been drinking alcohol, and (2) for contemplating asking his daughter to not share his plans to meet a girlfriend at a motel so they could engage in sexual intercourse is highly prejudicial and impermissibly attacked Defendant’s character.
Slip Op. at 18. Examining the other evidence in the case, the court concluded that due to the disputed nature of the allegations, the outcome depended on the perception of truthfulness for each witness, and the improperly admitted evidence had a probable impact on the jury’s finding of guilty. The court also found that closing argument remarks by the prosecutor regarding defendant’s sexual history were highly prejudicial and “the trial court erred by failing to intervene ex mero motu in response to the grossly improper and prejudicial statements.” Id. at 25.
Judge Dillon dissented by separate opinion, and would have held that defendant failed to show reversible error.
In this case involving convictions of felony murder, discharging a firearm into an occupied vehicle, and possession of marijuana with intent to sell, the trial court did not err by admitting certain photographs at trial. Two of the photographs (“Gun Photos”) were of firearms; the photos were found on the defendant’s cell phone. A third photograph (“Mustang Photo”) also was recovered from the defendant’s phone; it showed the defendant and another man leaning against the hood of a Silver Mustang with a black racing stripe on the street where the victim was shot. Both men were displaying the hand sign for the number “4” with their left hands, while the man on the right displayed a closed right hand with his middle finger extended.
The defendant argued that the photos should have been excluded under Evidence Rule 404 because possession of a firearm and flashing gang signs show bad character and bad acts. The court found itself unable to conclude that possession of a firearm is indicative of bad acts or character given that gun ownership is protected by the Second Amendment and that the defendant’s own brief fails to identify any basis for such a conclusion. The court failed to see how the hand signals in the Mustang Photo indicate gang affiliation. Nothing in the record suggests that either gesture indicates gang affiliation, and the trial court instructed the prosecutor not to ask any questions about signs or gang affiliation based on the picture. Thus, neither photograph falls within the scope of Rule 404.
The court rejected the defendant’s argument that the photographs were inadmissible under Rules 401 and 402. The court rejected the defendant’s argument that no evidence connected the gun at issue to the weapon used in the crime. There was an evidentiary connection between the photos, the crime, and the accused; specifically, the photos were obtained from the defendant’s phone, showed that he had access to firearms and to the vehicle in question, and depict him at almost the precise location where the shooting occurred. One of the gun photos shows the defendant in possession of a firearm resembling the one used in the shooting. The evidence was relevant and the trial court did not err by admitting the photographs.
The trial court did not abuse its discretion in conducting the Rule 403 balancing test with respect to the photographs. The defendant’s brief assumes that the photographs are irrelevant but because the court concluded to the contrary it rejected this argument as well.
In this drug case, a new trial was required where character evidence was improperly admitted. When cross-examining the defendant’s witness, the prosecutor elicited testimony that the defendant had been incarcerated for a period of time. The court viewed this testimony as being equivalent to testimony regarding evidence of a prior conviction. Because the defendant did not testify at trial, the State could not attack his credibility with evidence of a prior conviction. The court rejected the State’s argument that the defendant opened the door to this testimony, finding that the defendant did not put his good character at issue.
(1) In a child sexual assault case, the trial court did not err by refusing the defendant’s request to instruct the jury that it could consider evidence concerning his character for honesty and trustworthiness as substantive evidence of his guilt or innocence. At trial, five witnesses testified that the defendant was honest and trustworthy. The defendant requested an instruction in accordance with N.C.P.J.I. 105.60, informing the jury that a person having a particular character trait “may be less likely to commit the alleged crime(s) than one who lacks the character trait” and telling the jury that, if it “believe[d] from the evidence [that the defendant] possessed the character trait” in question, it “may consider this in [its] determination of [Defendant’s] guilt or innocence[.]” The trial court would have been required to deliver the requested instruction if the jury could reasonably find that an honest and trustworthy person was less likely to commit the crimes at issue in this case than a person who lacked those character traits. Although “an individual’s honesty and trustworthiness are certainly relevant to an individual’s credibility, we are unable to say that a person exhibiting those character traits is less likely than others to commit a sexual offense [such as the ones charged in this case].” (2) In a child sexual assault case, in which the defendant was charged with having sexual contact with student athletes who came to him for help with sports injuries, the trial court did not err by refusing to allow a defense witness to testify that the defendant possessed the character trait of working well with children and not having an unnatural lust or desire to have sexual relations with children. The defendant argued that the evidence should have been admitted since it related to a pertinent character trait that had a special relationship to the charged crimes. Citing State v. Wagoner, 131 N.C. App. 285, 293 (1998) (the trial court properly excluded evidence showing the defendant’s “psychological make-up,” including testimony that he was not a high-risk sexual offender, on the theory that such evidence, which amounted to proof of the defendant’s normality, did not tend to show the existence or non-existence of a pertinent character trait), the court concluded that the evidence in question “constituted nothing more than an attestation to Defendant’s normalcy” and was properly excluded.
In this tax evasion case, the trial court erred by excluding the defendant’s character evidence. The facts indicated that the defendant believed advice from others that by completing certain Sovereign Citizen papers, she would be exempt from having to pay taxes. The defendant’s witness was permitted to testify to the opinion that the defendant was a truthful, honest, and law-abiding citizen. However, the trial court excluded the witness’s testimony regarding the defendant’s trusting nature. The court agreed with the defendant that her character trait of being trusting of others was pertinent to whether she willfully attempted to evade paying taxes. The court found the error harmless.
In a murder case where a defense witness testified that the defendant was not a violent person, thereby placing a pertinent character trait at issue, no plain error occurred when the State cross-examined the witness about whether she knew of the defendant’s prior convictions or his pistol whipping of a person.
On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 477 (2017), the Supreme Court reversed, holding that the trial court properly excluded specific instances of the victim’s violent conduct for the purpose of proving that he was the first aggressor. The charges arose from the defendant’s shooting of the victim. The defendant asserted self-defense. In his case in chief, the defendant sought to introduce testimony describing specific instances of violent conduct by the victim, specifically testimony from three witnesses about times when they had experienced or witnessed the victim’s violent behavior. The trial court excluded this evidence but allowed each witness to testify to his or her opinion of the victim’s character for violence and the victim’s reputation in the community. Construing the relevant evidence rules, the Supreme Court determined that character is not an essential element of self-defense. Therefore, with regard to a claim of self-defense, the victim’s character may not be proved by evidence of specific acts. Here, the excluded evidence consisted of specific incidents of violence committed by the victim. Because Rule 405 limits the use of specific instances of past conduct to cases in which character is an essential element of the charge, claim, or defense, the trial court properly excluded testimony regarding these specific prior acts of violence by the victim.
In a murder and attempted armed robbery trial, the trial court erred when it excluded the defendant’s proposed testimony that he knew of certain violent acts by the victim and of the victim’s time in prison. This evidence was relevant to the defendant’s claim of self-defense to the murder charge and to his contention that he did not form the requisite intent for attempted armed robbery because “there is a greater disincentive to rob someone who has been to prison or committed violent acts.” The evidence was admissible under Rule 404(b) because it related to the defendant’s state of mind.
In this Durham County case, the defendant was found guilty by a jury of voluntary manslaughter. The charge arose out of the defendant’s shooting of Augustus Brandon, a long-time acquaintance that the defendant generally tried to avoid because of his perceived criminal and gang activity. In December 2016, the defendant was driving when he saw Brandon drive past him. Brandon turned his car around, followed the defendant, pulled in front of him, and then stopped his car in front of the defendant’s. When Brandon began approaching the defendant’s car, which had become stuck in a ditch, the defendant “just panicked” and fired his semi-automatic rifle three times, hitting Brandon once in the back and once in the back of the head, killing him. Mr. Brandon was unarmed. At trial, the jury was instructed on first-degree murder, second-degree murder, and voluntary manslaughter. The jury returned a verdict of voluntary manslaughter.
On appeal, the defendant argued that the trial court erred by granting the State’s motion in limine regarding text messages and photographs on the victim’s cell phone. The State had asserted that the evidence—which pertained to the victim’s past violent acts and ownership and use of guns—would be more prejudicial than probative because specific acts of conduct are impermissible to prove a victim’s propensity for violence. The defendant argued that the State had opened the door to admission of the cell-phone evidence by introducing testimony about Brandon’s personality through his parents’ testimony, and that the evidence was admissible to impeach the victim’s father’s testimony that he did not previously know his son had possessed a gun.
The Court of Appeals concluded over a dissent that even if the cell-phone evidence was excluded in error, any error would not be sufficiently prejudicial to warrant a new trial, because the defendant did not show a reasonable possibility that a different result would have been reached had the error not occurred. Other admissible evidence supported the defendant’s theory of self-defense, including the defendant’s own testimony about Brandon’s reputation for “gang bang[ing] and tot[ing] guns,” a previous incident in which Brandon showed the defendant a video of himself shooting a gun, and the fact that he was “terrified” at the time of the shooting. ¶ 23. Additionally, the evidence showed that even if the defendant was honestly in fear for his life, the degree of force he used was more than reasonably necessary—Brandon was unarmed and running away from the defendant when he was shot, and the defendant testified that he never saw Brandon holding a gun that day. In the absence of prejudicial error, the defendant’s conviction stood.
Judge Tyson dissented to say that he would have concluded that the State opened the door to the admission of the photos and texts from the victim’s phone when it introduced testimony from Brandon’s parents about his lack of guns and reputation for peacefulness and being a “happy guy.” The exclusion of that evidence, he argued, prejudiced the defendant’s right to present his defense by easing the State’s burden of proving that the defendant used unreasonable force.
In this murder case, the trial court did not err by excluding the defendant’s proffered evidence about the victim’s gang membership. The defendant asserted that the evidence was relevant to self-defense. However, none of the proffered evidence pertained to anything that the defendant actually knew at the time of the incident.
In murder case involving a claim of self-defense, the trial court did not err by excluding the defense expert testimony, characterized by the defendant as pertaining to the victim’s proclivity toward violence. The court noted that where self-defense is at issue, evidence of a victim’s violent or dangerous character may be admitted under Rule 404(a)(2) when such character was known to the accused or the State’s evidence is entirely circumstantial and the nature of the transaction is in doubt. The court concluded that the witness’s testimony did not constitute evidence of the victim’s character for violence. On voir dire, the witness testified only that that the victim was an angry person who had thoughts of violence; the witness admitted having no information that the victim actually had committed acts of violence. Additionally, the court noted, there was no indication that the defendant knew of the victim’s alleged violent nature and the State’s case was not entirely circumstantial. The court also rejected the defendant’s argument that the trial court’s ruling deprived him of a right to present a defense, noting that right is not absolute and defendants do not have a right to present evidence that the trial court, in its discretion, deems inadmissible under the evidence rules.
The trial judge erred under Rule 404(a)(2) in allowing the state to offer evidence of the victim’s good character. The court concluded that the defense had not offered evidence of the victim’s bad character, even though defense counsel had forecast evidence of the victim’s bad character in an opening statement.
The court of appeals properly found that the trial court abused its discretion by excluding, at a retrial, evidence of remarks that the lead investigator, Detective Roberts, made to a juror at the defendant’s first trial. After the defendant’s conviction, he filed a motion for appropriate relief (MAR) alleging that his trial had been tainted because of improper communication between Roberts and a juror, Deputy Hughes. At a hearing on the MAR, the defendant presented evidence that when his case was called for trial Hughes was in the pool of prospective jurors. While in custody awaiting trial, Hughes had twice transported the defendant to Central Prison in Raleigh. On one of those trips, the defendant told Hughes that he had failed a polygraph examination. Also, Hughes had assisted Roberts in preparing a photographic lineup for the investigation. While undergoing voir dire, Hughes acknowledged that he knew the defendant and had discussed the case with him. While he had misgivings about being a juror, Hughes said that he believed he could be impartial. Because the defendant insisted that Hughes remain on the jury, his lawyer did not exercise a peremptory challenge to remove Hughes from the panel. The evidence at the MAR hearing further showed that during a break in the trial proceedings, Roberts made the following statement to Hughes: “if we have . . . a deputy sheriff for a juror, he would do the right thing. You know he flunked a polygraph test, right?” Hughes did not report this communication to the trial court. Although the trial court denied the MAR, the court of appeals reversed, ordering a new trial. Prior to the retrial, the State filed a motion in limine seeking to suppress all evidence raised in the MAR hearing. Defense counsel opposed the motion, arguing that Roberts’ earlier misconduct was directly relevant to his credibility. The trial court allowed the State’s motion. The defendant was again convicted and appealed. The court of appeals held that the trial court abused its discretion by granting the State’s motion. The supreme court affirmed, holding that the trial court should have allowed defense counsel to cross-examine Roberts regarding his statements to Hughes to show Roberts’ bias against the defendant and pursuant to Rule 608(b) to probe Roberts’ character for untruthfulness. The court went on to reject the State’s argument that the evidence was properly excluded under Rule 403, noting that defense counsel understood that the line of questioning would inform the jurors that the defendant had been convicted in a prior trial but believed the risk was worth taking. Finally, the court held that the trial court’s error prejudiced the defense given Roberts’ significant role in the case.
In this capital murder case in which the State introduced 404(b) evidence regarding a murder of victim Saldana to show common scheme or plan, the trial court erred by allowing Saldana’s sister to testify about Saldana’s good character. Evidence regarding Saldana’s character was irrelevant to the charged crime. For this reason the trial court also abused its discretion by admitting this evidence over the defendant’s Rule 403 objection.
In this case involving a conviction for conspiracy to harass a juror, the trial court did not err by allowing the juror-witnesses to testify, over objection, about a fraternity fight that formed the basis for the criminal trial in which the defendant was accused of harassing jurors. The criminal trial involved the defendant’s brother Dan and the charges against Dan arose out of the fraternity fight. The defendant’s charges of intimidating jurors arose out of his conduct with respect to the jurors after they rendered their verdict in Dan’s case. The court rejected the argument that evidence regarding the underlying fight was character evidence and not introduced for a proper purpose under Rule 404(b). The court noted that it would have been nearly impossible to exclude all of the evidence of the fight underlying Dan’s trial as it forms part of the history of the defendant’s interaction with the jurors.
On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 818 S.E.2d 718 (2018), the Supreme Court held that the trial court violated the defendant’s Sixth Amendment right to confront witnesses against him. In this murder, robbery with a dangerous weapon, and possession of a firearm by a felon case, the trial judge erred by limiting the defendant’s ability to question the State’s principal witness about whether she expected to receive a favorable plea offer for drug trafficking charges pending in Guilford County in exchange for her testimony against the defendant in Forsyth County. In a voir dire hearing, the defendant showed that prosecutors in the two counties had been in touch by email and discussed a possible plea deal for the witness in Guilford based on her testimony at the defendant’s trial. By limiting the witness’s testimony about this possible deal, the trial court prohibited the jury from considering evidence that could have shown bias on the witness’s part, and thus violated the defendant’s confrontation rights. The court distinguished previous cases in which it had deemed similar errors harmless, reasoning that this involved a limit on the testimony of the State’s principal witness. Moreover there was no physical evidence linking the defendant to the crime and no other witness placing him at the scene. As a result, the court concluded that the trial judge’s error was not harmless beyond a reasonable doubt and affirmed the Court of Appeals’ decision to vacate the verdict and order a new trial.
Justice Ervin, joined by Justice Newby, dissented, writing that the trial judge allowed ample cross-examination of the witness about her pending charges in Guilford County, and that the limitations the court imposed were an appropriate exercise of its discretion to control the scope and extent of cross-examination to prevent confusion and eliminate undue repetition.
In this Wake County case, defendant appealed his convictions for first-degree murder, rape, kidnapping, robbery, and associated crimes, arguing error in (1) the limitation of his cross-examination of the State’s psychiatry expert, and (2) denial of his request for a special jury instruction on insanity. The Court of Appeals majority found no error.
During a violent period in August of 2015, defendant stole two vehicles, robbed and shot a man at a motel, robbed and shot another man at a pawn shop, kidnapped and raped a fifteen-year-old girl, and robbed a food store. Defendant was ultimately arrested in New York driving one of the stolen vehicles, and extradited back to North Carolina, where he was committed to Central Regional Hospital for an examination on his capacity to proceed to trial. Initially defendant was found incapable of proceeding, and he was involuntarily committed in February of 2018. In February of 2020, the State moved to have defendant forcibly medicated, and the trial court held a hearing under Sell v. United States, 539 U.S. 166 (2003). At the Sell hearing, the State’s expert testified about defendant’s mental illness and whether he should be forcibly medicated, but the hearing was continued, and defendant began voluntarily taking his medication again before the hearing was concluded. Defendant came to trial in July 2020 and presented the defense of insanity. Defense counsel sought to cross-examine the State’s expert on her testimony during the Sell hearing. The State objected under Rule of Evidence 403, and the trial court directed defense counsel to avoid any questions related to the Sell hearing or forcible medication. When the parties met for the charge conference, defense counsel requested an addition to N.C.P.I. – Crim. 304.10 (regarding insanity), referring to commitment procedure if he was found to be not guilty by reason of insanity. The State objected to this addition, and agreed to avoid misrepresenting how quickly defendant might be released during closing argument. Defense counsel went on to provide the same argument requested in the special jury instruction during closing argument. Defendant was found guilty of all charges, and appealed.
Taking up (1), the Court of Appeals noted that defendant’s argument was focused on “[the expert’s] testimony that defendant needed to be forcibly medicated to regain his capacity to proceed.” Slip Op. at 13. The State used this expert’s testimony to rebut defendant’s defense of insanity, and defense counsel had attempted to impeach the expert with her testimony from the Sell hearing that defendant needed forcible medication. The court rejected defendant’s argument that excluding this line of questioning violated defendant’s Confrontation Clause rights, pointing out the jury was aware of defendant’s mental illness and the expert’s history of evaluating defendant, and “defendant was not limited in attacking [the expert’s] credibility or asking about the differences between her previous testimony at the hearing and her subsequent testimony at trial.” Id. at 16. The court went further, explaining that even if the Sell hearing and forcible medication were relevant, the risk of unfair prejudice substantially outweighed its probative value.
Reviewing (2) defendant’s special jury instruction request, the court again disagreed, noting “[h]ere, the pattern jury instruction on commitment procedures, N.C.P.I. – Crim. 304.10, sufficiently encompasses the substance of the law.” Id. at 18. Holding that defendant’s situation did not justify altering the instruction, the court explained “[d]efendant’s case is neither so exceptional nor extraordinary such that the pattern jury instruction on commitment procedures fails to adequately encompass the law or risks misleading the jury.” Id.
Judge Hampson dissented and would have allowed cross-examination on the Sell hearing.
The court rejected the defendant’s argument that his confrontation clause rights were violated when the trial court released an out-of-state witness from subpoena. The State subpoenaed the witness from New York to testify at the trial. The witness testified at trial and the defendant had an opportunity to cross-examine him. After the witness stepped down from the witness stand, the State informed the trial court judge that the defense had attempted to serve a subpoena on the witness the day before. The State argued that the subpoena was invalid. The witness refused to speak with the defense outside of court and the trial court required the defense to decide whether to call the individual as a witness before 2:00 p.m. that day. When the appointed time arrived, the defense indicated it had not yet decided whether it would be calling the individual as a witness and the trial court judge released the witness from the summons. The defendant’s confrontation rights were not violated where the witness was available at trial and the defendant had the opportunity to cross-examine him. Additionally, under G.S. 15A-814, the defendant’s subpoena was invalid.
The trial court did not violate the defendant’s confrontation rights by barring him from cross-examining two of the State's witnesses, Moore and Jarrell, about criminal charges pending against them in counties in different prosecutorial districts than the district in which defendant was tried. The court noted that the Sixth Amendment right to confrontation generally protects a defendant’s right to cross-examine a State's witness about pending charges in the same prosecutorial district as the trial to show bias in favor of the State, since the jury may understand that pending charges may be used by the State as a weapon to control the witness. However, the trial judge has wide latitude to impose reasonable limits on such cross-examination based on, for example, concern that such interrogation is only marginally relevant. Here, the defendant failed to provide any evidence of discussions between the district attorney's office in the trial county and district attorneys' offices in the other counties where the two had pending charges. Additionally, Jarrell testified on cross-examination and Moore testified on voir dire that each did not believe testifying in this case could help them in any way with proceedings in other counties. On these facts, the court concluded that testimony regarding the witnesses' pending charges in other counties was, at best, marginally relevant. Moreover, the court noted, both Jarrell and Moore were thoroughly impeached on a number of other bases separate from their pending charges in other counties.
The court rejected the defendant’s argument that his constitutional right to confront witnesses against him was violated when the trial court refused to permit defense counsel to cross examine the defendant’s accomplices about conversations they had with their attorneys regarding charge concessions the State would make to them if they testified against the defendant. The court held that the accomplices’ private conversations with their attorneys were protected by the attorney-client privilege and that the privilege was not waived when the accomplices took the stand to testify against the defendant.
In this murder case, the Supreme Court determined that the defendant’s Sixth Amendment right to confront witnesses against him was violated when the trial court admitted into evidence a transcript of another person’s plea allocution. In 2006, a child in the Bronx was killed by a stray 9-millimeter bullet. Following an investigation that included officers discovering a 9-millimeter cartridge in his bedroom, Nicholas Morris was charged with the murder but resolved the case by accepting a deal where he pleaded guilty to criminal possession of a .357-magnum revolver in exchange for dismissal of the murder charge. Years later, the defendant Hemphill was charged with the murder. At trial, for which Morris was unavailable as a witness, Hemphill pursued a third-party culpability defense and elicited undisputed testimony from the State’s law enforcement officer witness indicating that a 9-millimeter cartridge was discovered in Morris’s bedroom. Over Hemphill’s Confrontation Clause objection, the trial court permitted the State to introduce Morris’s plea allocution for purposes of proving, as the State put it in closing argument, that possession of a .357 revolver, not murder, was “the crime [Morris] actually committed.” Relying on state case law, the trial court reasoned that Hemphill had opened the door to admission of the plea allocution by raising the issue of Morris’s apparent possession of the 9-millimeter cartridge.
After finding that Hemphill had preserved his argument by presenting it in state court and accepting without deciding that the plea allocution was testimonial, the Supreme Court determined that admission of Morris’s plea allocution violated Hemphill’s confrontation rights and rejected various arguments from the State advocating for an “opening the door” rule along the lines of that adopted by the trial court. Describing the “door-opening principle” as a “substantive principle of evidence that dictates what material is relevant and admissible in a case” the Court distinguished it from procedural rules, such as those described in Melendez-Diaz, that the Court has said properly may govern the exercise of the right to confrontation. The Court explained that it “has not held that defendants can ‘open the door’ to violations of constitutional requirements merely by making evidence relevant to contradict their defense.” Thus, the Court reversed the judgment of the New York Court of Appeals which had affirmed the trial court.
Justice Alito, joined by Justice Kavanaugh, concurred but wrote separately to address the conditions under which a defendant can be deemed to have validly waived the right to confront adverse witnesses. Justice Alito wrote that while it did not occur in this case, there are circumstances “under which a defendant’s introduction of evidence may be regarded as an implicit waiver of the right to object to the prosecution’s use of evidence that might otherwise be barred by the Confrontation Clause.” He identified such a situation as that where a defendant introduces a statement from an unavailable witness, saying that the rule of completeness dictates that a defendant should not be permitted to then lodge a confrontation objection to the introduction of additional related statements by the witness.
Justice Thomas dissented based on his view that the Court lacked jurisdiction to review the decision of the New York Court of Appeals because Hemphill did not adequately raise his Sixth Amendment claim there.
Evidence > Crawford Issues & Confrontation Clause > Non-Hearsay/Not For the Truth of the Matter Asserted
In this Wake County case, the Supreme Court reversed the Court of Appeals decision holding the State violated the Confrontation Clause and hearsay rules by admitting exhibits of Verizon phone records. The Supreme Court held that if the records were truly machine generated, they were not hearsay or testimonial in nature, and remanded the case for the consideration of defendant’s remaining issues.
In 2022, defendant came to trial for statutory rape of a child fifteen years or younger. During the State’s case, two detectives testified about their investigation into defendant, and they referenced exhibits of phone records provided by Verizon. The two exhibits in question were a list of “the time, date, and connecting phone number for all calls to and from [defendant’s] phone between May and July 2019” and a cover letter stating the records were “true and accurate copies of the records created from the information maintained by Verizon in the actual course of business.” Slip Op. at 6. Defendant objected to the exhibits, and the State argued the records were admissible under Rule of Evidence 803(6) as business records. The trial court did not admit the records under Rule 803(6), but instead under Rule 803(24), the residual exception, as the trial court felt the State did not lay a proper foundation for business records. In State v. Lester, 291 N.C. App. 480 (2023), the Court of Appeals reversed defendant’s conviction, holding that admitting the records was a violation of defendant’s Confrontation Clause rights and the error was prejudicial, justifying a new trial.
Taking up the arguments, the Court explained that the purpose of the Confrontation Clause was to protect against the unreliable nature of out-of-court testimonial statements made by humans, specifically “ex parte examinations” offered against the accused. Slip Op. at 11. Here, the evidence in question was computer-generated data, and the Court noted this was not the type of evidence contemplated by the Confrontation Clause. After explaining the unique nature of machine-generated data and why it was more reliable that a human witness’s out-of-court statement, the Court held that ‘machine-generated raw data, if truly machine-generated,’ are ‘neither hearsay nor testimonial’ under the Confrontation Clause.” Id. at 17 (quoting State v. Ortiz-Zape, 367 N.C. 1, 10 (2013)). The Court emphasized that “we focus here on data produced entirely by the internal operations of a computer or other machine, free from human input or intervention” in contrast to “(1) computer-stored evidence, and (2) human interpretations of computer-produced data.” Id. at 18. Because the machine-generated data did not implicate the Confrontation Clause in the same way that human interpretations of the data would, the Court determined the Court of Appeals improperly analyzed the admissibility of the exhibits in the current case.
This Mecklenburg County case involved charges of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. The defendant and two other men (one of whom was unidentified) entered the victim’s home and attacked him with a machete and hammer. The victim’s girlfriend escaped with an infant and called police. The defendant and his named co-conspirator apprehended the girlfriend outside of the home, where the defendant instructed the other man to kill her. He refused, and the defendant fled; the other man stayed with the woman until police arrived (and became the named co-conspirator in the indictment). The defendant was convicted of all charges at trial and sentenced to a minimum term of 336 months.
An officer was asked whether she received any conflicting information about the defendant’s identity from witnesses interviewed about the case. The officer testified at trial that she did not. The defendant did not object at trial but complained that admission of evidence was hearsay, violated his confrontation rights, and constituted plain error. Rejecting this argument, the court found that the officer’s testimony did not convey a statement from any of the interviewees and was capable of different interpretations. It was not therefore a statement offered for the truth of the matter asserted and violated neither hearsay rules nor the Confrontation Clause. Even if the admission of this evidence was error, it was not prejudicial and did not rise to plain error. The conviction for conspiracy to commit attempted murder was reversed, the remaining convictions affirmed, and the matter remanded.
In this drug trafficking case, the defendant’s Confrontation Clause rights were not violated when the trial court admitted statements made by a non-testifying confidential informant. The statements were not admitted for the truth of the matter asserted but rather to explain subsequent steps taken by officers in the investigation, and the trial court gave a limiting instruction to that effect.
In this case involving a larceny from a country club, the Confrontation Clause was not violated when the trial court admitted evidence that the owners of the country club received an anonymous phone call providing information about the perpetrator. The trial court admitted the statement with a limiting instruction that it was not to be considered for its truth but only to show the course of the officers’ investigation based on the information provided by the caller. Because the statement was admitted for a purpose other than the truth of the matter asserted, it falls outside of the protections afforded by the Confrontation Clause.
In this kidnapping and rape case, the defendant’s confrontation rights were not violated when the trial court admitted, for the purposes of corroboration, statements made by deceased victims to law enforcement personnel. The statements were admitted to corroborate statements made by the victims to medical personnel. The court rejected the defendant’s argument that because the statements contained additional information not included in the victims’ statements to medical personnel, they exceeded the proper scope of corroborative evidence and were admitted for substantive purposes. The court noted in part, “the mere fact that a corroborative statement contains additional facts not included in the statement that is being corroborated does not render the corroborative statement inadmissible.”
In this homicide case where the defendant was charged with murdering his wife, the confrontation clause was not violated when the trial court allowed forensic psychologist Ginger Calloway to testify about a report she prepared in connection with a custody proceeding regarding the couple’s children. Defendant argued that Calloway’s report and testimony violated the confrontation clause because they contained third party statements from non-testifying witnesses who were not subject to cross-examination at trial. The court rejected this argument concluding that the report and testimony were not admitted for the truth of the matter asserted but to show “defendant’s state of mind.” In fact, the trial court gave a limiting instruction to that effect, noting that the evidence was relevant “only to the extent it may have been read by . . . defendant” and “had some bearing” on how he felt about the custody dispute with his wife.
Where no hearsay statements were admitted at trial, the confrontation clause was not implicated.
No violation of the defendant’s confrontation rights occurred when an officer testified to statements made to him by others where the statements were not introduced for their truth but rather to show the course of the investigation, specifically why officers searched a location for evidence.
The defendant’s confrontation rights were not violated when an officer testified to the victim’s statements made to him at the scene through the use of a telephonic translation service. The defendant argued that his confrontation rights were violated when the interpreter’s statements were admitted through the officer’s testimony. These statements were outside of the confrontation clause because they were not admitted for the truth of the matter asserted but rather for corroboration.
Because evidence admitted for purposes of corroboration is not admitted for the truth of the matter asserted, Crawford does not apply to such evidence.
Because the statements at issue were not admitted for the truth of the matter asserted and therefore were not hearsay, their admission did not implicate the confrontation clause. The statements at issue included statements of an officer during an interrogation of the defendant. In his statements, the officer repeated things the police had been told by others. The officer’s statements were not offered for their truth but rather to provide context for defendant’s answers.
Statements of a non-testifying informant to a police officer were non-testimonial when offered not for the truth of the matter asserted but rather to explain the officer’s actions in the course of the investigation.
Mr. Smith was charged and tried for various drug offenses in Arizona state court. Suspected drugs seized from Smith’s property were sent to a state-run crime lab for testing. Analyst Rast performed the testing, producing notes and a final report on the identity of the substances. She concluded that the items tested were illegal controlled substances. For reasons not apparent from the record, Rast was not available to testify at trial, and state prosecutors called a substitute analyst, Longoni, to provide his independent expert opinion about the drugs. Longoni was not involved in the testing procedures performed by Rast, but he used Rast’s report and notes as the basis of his opinion at Smith’s trial. On appeal, the defendant argued that the use of a substitute analyst to present the conclusions of another, non-testifying analyst violated his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. The Arizona Court of Appeals affirmed the convictions, relying on state precedent permitting a substitute analyst to testify to an independent opinion by using the report of a non-testifying witness as the basis of opinion. Smith then sought review at the U.S. Supreme Court. The Court unanimously vacated the lower court’s decision, with five justices joining the Court’s opinion in full.
The Confrontation Clause bars the admission of testimonial hearsay statements unless the witness is unavailable, and the defendant previously had a motive and opportunity to cross-examine the witness (subject to certain narrow exceptions not relevant here). Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Testimonial forensic reports are subject to this general rule. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009). Arizona (like North Carolina) has permitted substitute analyst testimony under the theory that the use of a non-testifying expert’s report is not hearsay (and therefore not subject to the Confrontation Clause) when the report is used as the basis for the testifying expert’s opinion. According to the Court’s opinion: “Today, we reject that view. When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” Smith Slip op. at 1-2.
This question was argued but left open by a fractured plurality decision in Williams v. Illinois, 567 U.S. 50 (2012). There, five Justices rejected the “basis of opinion” logic, but there was no majority decision. The Williams opinion caused widespread confusion in lower courts about substitute analyst testimony and created a split of authority among jurisdictions. The Smith decision clarifies that the use of a non-testifying analyst’s testimonial report is offered for the truth of the matter asserted when used by a substitute analyst as the basis of their opinion. Because such use of the testimonial forensic report of another is offered for its truth, it is hearsay and implicates the Confrontation Clause. In the words of the Court:
. . . [T]ruth is everything when it comes to the kind of basis testimony presented here. If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise? The whole point of the prosecutor’s eliciting such a statement is ‘to establish—because of the statement’s truth—a basis for the jury to credit the testifying expert’s opinion. Id. at 14 (cleaned up) (emphasis in original).
Some courts have relied on Federal Rule of Evidence 703 or a comparable state evidentiary rule in support of the practice of substitute analyst testimony. Rule 703 permits an expert to offer an opinion based on facts and data that would not otherwise be admissible when the inadmissible information is used to form the basis of an opinion. According to the Court, Rule 703 did not control here. “[F]ederal constitutional rights are not typically defined—expanded or contracted—by reference to non-constitutional bodies of law like evidence rules.” Smith Slip op. at 12. The prosecution cannot circumvent confrontation rights by labeling the out of court statement (here, the forensic report) as the basis of the testifying expert’s opinion. The defendant must normally be afforded an opportunity to challenge the expert who performed the testing through cross-examination.
A substitute analyst may nonetheless be able to provide helpful testimony for the prosecution without violating the Confrontation Clause by offering evidence about typical lab practices and procedures, chains of custody, lab accreditation, standards, or by answering hypothetical questions. This kind of testimony “allow[s] forensic expertise to inform a criminal case without violating the defendant’s right of confrontation.” Id. at 18. The substitute analyst’s testimony in Smith went far beyond those kinds of permissible uses. According to the Court:
Here, the State used Longoni to relay what Rast wrote down about how she identified the seized substances. Longoni thus effectively became Rast’s mouthpiece. He testified to the precautions (she said) she took, the standards (she said) she followed, the tests (she said) she performed, and the results (she said) she obtained. The State offered up that evidence so the jury would believe it—in other words, for its truth. Id. at 18-19.
To the extent these statements were testimonial, their admission violated the Confrontation Clause and constituted error. Whether the statements from the forensic report are testimonial, however, is a separate question from whether they were offered for their truth. Generally, statements are testimonial when they are primarily made in anticipation of and for use in a criminal trial. Davis v. Washington, 547 U.S. 813, 822 (2006). Here, Arizona never raised the issue of whether the statements from the forensic report were testimonial, seemingly presuming that they were. The Court declined to decide the issue, instead remanding the case back to the state appellate division for that determination.
The Court nonetheless opined about ways the state appellate court might consider that issue. First, the state appellate court should determine what exact statements of Rast were used by Longoni at the trial. The parties disputed whether Longoni used only Rast’s notes, her report, or a mixture of the two. “Resolving that dispute might, or might then again not, affect the court’s ultimate disposition of Smith’s Confrontation Clause claim. We note only that before the court can decide the primary purpose of the out-of-court statements, it needs to determine exactly what those statements were.” Smith Slip op. at 20-21. Further, when determining the primary purpose of the statements, the Court reminded the lower state court that not all lab records will be testimonial. “. . .[L]ab records may come into being primarily to comply with laboratory accreditation requirements or to facilitate internal review and quality control. Or some analysts’ notes may be written simply as reminders to self. In those cases, the record would not count as testimonial.” Id. at 21.
The Court therefore vacated Smith’s conviction and remanded the case for additional proceedings.
Justice Thomas wrote separately to concur in part. He agreed that the non-testifying expert’s report was being offered for the truth of the matter asserted when used as the basis of a testifying expert’s opinion, but disagreed with the Court’s directive to consider the primary purpose of the challenged statement on remand when determining whether the statements were testimonial. In Justice Thomas’s view, the testimonial nature of a statement turns on whether it was made under sufficiently formal circumstances, and not whether its primary purpose was in anticipation of a criminal prosecution.
Justice Gorsuch also wrote separately to concur in part. He too agreed with the Court’s holding rejecting the logic of the “basis of opinion” theory by which Arizona and other states have justified substitute analyst testimony. He believed that the issue of whether the forensic report and notes were testimonial was not properly before the Court and declined to join that part of the opinion. He also expressed concerns about the primary purpose test used to determine whether a statement is testimonial.
Justice Alito, joined by Chief Justice Roberts, wrote separately to concur in judgment only. According to these Justices, Longoni’s testimony crossed the line between permissible basis of opinion testimony and inadmissible hearsay, thus raising a confrontation problem. They would have resolved the case on that narrow ground, without reaching the wider constitutional question of the use of substitute analysts generally.
Phil Dixon previously blogged about Smith v. Arizona and its potential implications for North Carolina criminal law, here.
In a plurality opinion the Court affirmed the holding below that the defendant’s confrontation clause rights were not violated when the State’s DNA expert testified to an opinion based on a report done by a non-testifying analyst. The defendant Sandy Williams was charged with, among things, sexual assault of L.J. After the incident in question L.J. was taken to the emergency room, where a doctor performed a vaginal exam and took vaginal swabs. The swabs and other evidence were sent to the Illinois State Police (ISP) Crime Lab for testing and analysis. An analyst confirmed the presence of semen in the swabs. About six months later, the defendant was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court order. An analyst extracted a DNA profile from the sample and entered it into ISP Crime Lab database. Meanwhile, L.J.’s swabs from the earlier incident were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs to the ISP Crime Lab, having derived a DNA profile for the person whose semen was recovered from L.J. At trial, ISP forensic biologist Sandra Lambatos testified as an expert for the State. Lambatos indicated that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work and that Cellmark’s testing and analysis methods were generally accepted in the scientific community. Over a defense objection, Lambatos then testified to the opinion that the DNA profile received from Cellmark matched the defendant’s DNA profile from the blood sample in the ISP database. Cellmark’s report was not introduced into evidence. Also, while Lambatos referenced documents she reviewed in forming her opinion, she did not read the contents of the Cellmark report into evidence. At the conclusion of Lambatos’ testimony, the defendant moved to strike the evidence of Cellmark’s testing based upon a violation of his confrontation clause rights. The motion was denied and the defendant was convicted. On appeal to the Illinois Supreme Court the defendant again argued that Lambatos’ testimony violated his rights under Crawford and Melendez-Diaz. The Illinois court disagreed, reasoning that because the Cellmark report supplied a basis for Lambatos’ opinion, it was not admitted for the truth of the matter asserted. The U.S. Supreme Court affirmed. Justice Alito wrote the plurality opinion, which was joined by the Chief Justice and Justices Kennedy and Breyer. The plurality determined that no confrontation clause violation occurred for two reasons. First, the Cellmark report fell outside of the scope of the confrontation clause because it was not introduced for the truth of the matter asserted. In this respect, the plurality was careful to distinguish the Court’s prior decisions in Bullcoming and Melendez-Diaz, which it characterized as involving forensic reports that were introduced for that purpose. Second, the plurality concluded that no confrontation clause violation occurred because the report was non-testimonial. Justice Thomas concurred in judgment only. He agreed that the report was non-testimonial, though he reached this conclusion through different reasoning. Thomas disagreed with that portion of the plurality opinion concluding that the report was not introduced for the truth for the matter asserted. Justices Kagan, Scalia, Ginsburg and Sotomayor dissented, noting among other things, the “significant confusion” created by the fractured opinion.
In a straightforward application of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (June 25, 2009) (holding that forensic laboratory reports are testimonial and thus subject to Crawford), the Court held that substitute analyst testimony in an impaired driving case violated Crawford. The defendant was arrested on charges of driving while intoxicated (DWI). Evidence against him included a forensic laboratory report certifying that his blood-alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on the defendant’s blood sample. The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony. Instead, New Mexico’s high court held, live testimony of another analyst satisfied the constitutional requirements. The Court reversed, holding that “surrogate testimony of that order does not meet the constitutional requirement.”
Forensic laboratory reports are testimonial and thus subject to the rule of Crawford v. Washington, 541 U.S. 36 (2004). For a detailed analysis of this case, see the paper entitled “Melendez-Diaz & the Admissibility of Forensic Laboratory Reports & Chemical Analyst Affidavits in North Carolina Post-Crawford.”
Reversing the Court of Appeals, the court held that by failing to make a timely objection at trial and failing to argue plain error in the Court of Appeals, the defendant failed to preserve the question of whether substitute analyst testimony in a drug case violated his confrontation rights. The court noted that at trial the defendant objected to the testimony related to the composition of the substance only outside the presence of the jury; he did not object to admission of either the expert’s opinion or the raw data at the time they were offered into evidence. He thus failed to preserve the issue for review. Furthermore, the defendant failed to preserve his challenge to admission of the raw data by failing to raise it in his brief before the Court of Appeals. Moreover, the court concluded, even if the issues had been preserved, under Ortiz-Zape, the defendant would lose on the merits.
Reversing the Court of Appeals’ decision in an unpublished case, the court held that no confrontation clause violation occurred when an expert in forensic science testified to her opinion that the substance at issue was cocaine and that opinion was based upon the expert’s independent analysis of testing performed by another analyst in her laboratory. At trial the State sought to introduce Tracey Ray of the CMPD crime lab as an expert in forensic chemistry. During voir dire the defendant sought to exclude admission of a lab report created by a non-testifying analyst and any testimony by any lab analyst who did not perform the tests or write the lab report. The trial court rejected the defendant’s confrontation clause objection and ruled that Ray could testify about the practices and procedures of the crime lab, her review of the testing in this case, and her independent opinion concerning the testing. However, the trial court excluded the non-testifying analyst’s report under Rule 403. The defendant was convicted and appealed. The Court of Appeals reversed, finding that the Ray’s testimony violated the confrontation clause. The NC Supreme Court disagreed. The court viewed the US Supreme Court’s decision in Williams v. Illinois as “indicat[ing] that a qualified expert may provide an independent opinion based on otherwise inadmissible out-of-court statements in certain contexts.” Noting that when an expert gives an opinion, the expert opinion itself, not its underlying factual basis, constitutes substantive evidence, the court concluded:
Therefore, when an expert gives an opinion, the expert is the witness whom the defendant has the right to confront. In such cases, the Confrontation Clause is satisfied if the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, allowing the factfinder to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible. Accordingly, admission of an expert’s independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert. We emphasize that the expert must present an independent opinion obtained through his or her own analysis and not merely “surrogate testimony” parroting otherwise inadmissible statements (quotations and citations omitted).
Turning to the related issue of whether an expert who bases an opinion on otherwise inadmissible facts and data may, consistent with the Confrontation Clause, disclose those facts and data to the factfinder, the court stated:
Machine-generated raw data, typically produced in testing of illegal drugs, present a unique subgroup of . . . information. Justice Sotomayor has noted there is a difference between a lab report certifying a defendant’s blood-alcohol level and machine-generated results, such as a printout from a gas chromatograph. The former is the testimonial statement of a person, and the latter is the product of a machine. . . . Because machine-generated raw data, if truly machine-generated, are not statements by a person, they are neither hearsay nor testimonial. We note that representations[ ] relating to past events and human actions not revealed in raw, machine-produced data may not be admitted through “surrogate testimony.” Accordingly, consistent with the Confrontation Clause, if of a type reasonably relied upon by experts in the particular field, raw data generated by a machine may be admitted for the purpose of showing the basis of an expert’s opinion.
Turning to the case at hand, the court noted that here, the report of the non-testifying analyst was excluded under Rule 403; thus the only issue was with Ray’s expert opinion that the substance was cocaine. Applying the standard stated above, the court found that no confrontation violation occurred. Providing additional guidance for the State, the court offered the following in a footnote: “we suggest that prosecutors err on the side of laying a foundation that establishes compliance with Rule . . . 703, as well as the lab’s standard procedures, whether the testifying analyst observed or participated in the initial laboratory testing, what independent analysis the testifying analyst conducted to reach her opinion, and any assumptions upon which the testifying analyst’s testimony relies.” Finally, the court held that even if error occurred, it was harmless beyond a reasonable doubt given that the defendant himself had indicated that the substance was cocaine.
Reversing the Court of Appeals, the Court held that no Crawford violation occurred when the State proved that the substance at issue was cocaine through the use of a substitute analyst. The seized evidence was analyzed at the SBI by Assistant Supervisor in Charge Nancy Gregory. At trial, however, the substance was identified as cocaine, over the defendant’s objection, by SBI Special Agent Kathleen Schell. Relying on Gregory’s report, Schell testified to the opinion that the substance was cocaine; Gregory’s report itself was not introduced into evidence. Relying on Ortiz-Zape, the court concluded that Schell presented an independent opinion formed as a result of her own analysis, not mere surrogate testimony.
With one Justice not taking part in the decision and the others equally divided, the court, per curiam, left undisturbed the decision below, State v. Hough, 202 N.C. App. 674 (Mar. 2, 2010). In the decision below, the Court of Appeals held that no Crawford violation occurred when reports done by non-testifying analyst as to composition and weight of controlled substances were admitted as the basis of a testifying expert’s opinion on those matters. [Author’s note: Because the Justices were equally divided, the decision, although undisturbed, has no precedential value.]
The court held that admission of lab reports through the testimony of a substitute analyst (Agent Schell) violated the defendant’ confrontation clause rights where the testifying analyst did not give her own independent opinion, but rather gave “surrogate testimony” that merely recited the opinion of non-testifying testing analysts that the substances at issue were cocaine. Distinguishing Ortiz-Zape, the court held that here the State’s expert did not testify to an independent opinion obtained from the expert’s own analysis but rather offered impermissible surrogate testimony repeating testimonial out-of-court statements made by non-testifying analysts. With regard to the two lab reports at issue, the testifying expert was asked whether she agreed with the non-testifying analysts’ conclusions. When she replied in the affirmative, she was asked what the non-testifying analysts’ conclusions were and the underlying reports were introduced into evidence. The court concluded: “It is clear . . . that Agent Schell did not offer—or even purport to offer—her own independent analysis or opinion [of the] . . . samples. Instead, Agent Schell merely parroted [the non-testifying analysts’] . . . conclusions from their lab reports.” Noting that the lab reports contained the analysts’ certification prepared in connection with a criminal investigation or prosecution, the court easily determined that they were testimonial. The court went on to find that this conclusion did not result in error with regard to the defendant’s conspiracy to sell or deliver cocaine conviction. As to the defendant’s conviction for sale or delivery of cocaine, the six participating Justices were equally divided on whether the error was harmless beyond a reasonable doubt. Consequently, as to that charge the Court of Appeals’ decision holding that the error was reversible remains undisturbed and stands without precedential value. However, the court found that the Court of Appeals erroneously vacated the conviction for sale or delivery and that the correct remedy was a new trial.
In a substitute analyst case, the court per curiam and for the reasons stated in Ortiz-Zape, reversed the Court of Appeals’ decision in State v. Hurt, 208 N.C. App. 1 (2010) (applying Crawford to a non-capital Blakely sentencing hearing in a murder case and holding that Melendez-Diaz prohibited the introduction of reports by non-testifying forensic analysts pertaining to DNA analysis).
Reversing the Court of Appeals, the court held that any confrontation clause violation that occurred with regard to the use of substitute analyst testimony was harmless beyond a reasonable doubt where the defendant testified that the substance at issue was cocaine. When cocaine was discovered near the defendant, he admitted to the police that a man named Chris left it there for him to sell and that he had sold some that day. The substance was sent to the crime lab for analysis. Chemist DeeAnne Johnson performed the analysis of the substance. By the time of trial however, Johnson no longer worked for the crime lab. Thus, the State presented Ann Charlesworth of the crime lab as an expert in forensic chemistry to identify the substance at issue. Over objection, she identified the substance as cocaine. The trial court also admitted, for the purpose of illustrating Charlesworth’s testimony, Johnson’s lab reports. At trial, the defendant reiterated what he had told the police. The defendant was convicted and he appealed. The Court of Appeals reversed, finding that Charlesworth’s substitute analyst testimony violated the defendant’s confrontation rights. The NC Supreme Court held that even if admission of the testimony and exhibits was error, it was harmless beyond a reasonable doubt because the defendant himself testified that the seized substance was cocaine.
The court vacated and remanded State v. Burrow, 218 N.C. App. 373 (Feb. 7, 2012), after allowing the State’s motion to amend the record to include a copy of the State’s notice under G.S. 90-95 indicating an intent to introduce into evidence a forensic report without testimony of the preparer. In the opinion below, the court of appeals had held that the trial court committed plain error by allowing the State to admit a SBI forensic report identifying the substance at issue as oxycodone when neither the preparer of the report nor a substitute analyst testified at trial.
A Crawford violation occurred when the trial court admitted opinion testimony of two non-testifying experts regarding a victim’s cause of death and identity. The testimony was admitted through the Chief Medical Examiner, an expert in forensic pathology, who appeared to have read the reports of the non-testifying experts into evidence, rather than testifying to an independent opinion based on facts or data reasonable relied upon by experts in the field. For a more detailed discussion of this case, see my blog post.
In this Avery County case, defendant appealed his conviction for possession with intent to sell and deliver methamphetamine, arguing his Confrontation Clause rights were implicated because a testifying expert relied on another analyst’s statements in a lab report when stating his opinions. The Court of Appeals concluded it was error to allow the opinion testimony, and vacated defendant’s judgment, remanding for a new trial.
In August of 2020, defendant was searched as a condition of his probation, and officers seized a crystalline substance. The substance was tested by a forensic analyst who determined it was methamphetamine, and the analyst created a lab report for the State. When defendant came for trial, the original analyst was not available to testify, so the State offered a substitute analyst who based his opinions on the lab report. The substitute analyst did not perform any testing on the crystalline substance himself.
On appeal, defendant argued that his Confrontation Clause rights were violated because he was unable to cross-examine the original analyst whose lab report formed the foundation of the case against him. The Court of Appeals referenced the recent decision Smith v. Arizona, 602 U.S. 779 (2024), where the Supreme Court held that “opinion testimony of a surrogate expert who relies upon the ‘testimonial hearsay’ statements contained in a lab report or notes prepared by another analyst who tested the substance in question implicates a defendant’s right under the Confrontation Clause.” Slip Op. at 4. The court noted the applicability to the current case, as the substitute analyst relied on lab reports created solely for the trial that were testimonial in nature under State v. Craven, 367 N.C. 51 (2013). Slip Op. at 8. Because the substitute analyst did not independently test the substance and relied upon the lab report’s statements that were “hearsay and testimonial in nature,” defendant’s rights under the Confrontation Clause were implicated. Id. at 9.
In this Robeson County case, defendant appealed his conviction for driving while impaired, arguing the trial court erred by admitting a toxicology report without authentication and allowing the arresting officer to testify to defendant’s specific blood alcohol concentration. The Court of Appeals found no prejudicial error by the trial court.
In September of 2018, defendant was stopped by an officer due to a partially obstructed license plate; after stopping defendant, the officer noticed glassy eyes and slurred speech, leading to a horizontal gaze and nystagmus (“HGN”) test. Defendant performed poorly on the test, and a later toxicology blood test found that defendant’s blood alcohol concentration was 0.27. At trial, the arresting officer testified about the results of the HGN test, saying “[t]here’s a probability that he’s going to be a .08 or higher, 80% according to the test that was done.” Slip Op. at 3. Also during the trial, the SBI agent responsible for preparing the report on defendant’s toxicology test was not available to testify, so another agent performed an administrative and technical review of the report and was permitted to testify as an expert about the results. The report was admitted despite defendant’s objection.
Reviewing defendant’s appeal, the court first noted that Rule 703 of the North Carolina Rules of Evidence does not require the testifying expert to be the person who performed the test, explaining “[a]n expert may properly base his or her opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field.” Id. at 5, quoting State v. Fair, 354 N.C. 131, 162 (2001). Here the report was admitted as the basis of the testifying expert’s opinion, not as substantive evidence, within the scope of applicable precedent around Rule 703. The court also noted that defendant had ample opportunity to cross-examine the expert on the basis of her opinion and her credibility in front of the jury, avoiding any confrontation clause issues.
The court found that admitting the arresting officer’s testimony regarding defendant’s specific blood alcohol level after conducting an HGN test was error, but harmless error. There are two bases under G.S. § 20-138.1 to convict a defendant for impaired driving; subsection (a)(1) and (a)(2) are distinct and independent grounds for conviction of the same offense. Id. at 10, citing State v. Perry, 254 N.C. App. 202 (2017). The court noted that overwhelming evidence of both prongs was present in the record, and specifically the second prong, driving with an alcohol concentration of 0.08 or more, was supported by expert testimony unrelated to the officer’s testimony. Finding no reasonable possibility the jury could have reached a different conclusion, the court upheld the verdict.
The defendant was arrested for impaired driving. Because of his extreme intoxication, he was taken to a hospital for medical treatment. The defendant was belligerent and combative at the hospital, and was medicated in an effort to calm his behavior. After the defendant was medically subdued, a nurse withdrew his blood. She withdrew some blood for medical purposes and additional blood for law enforcement use. No warrant had been issued authorizing the blood draw. The defendant moved to suppress evidence resulting from the warrantless blood draw on constitutional grounds. The trial court granted the motion, suppressing evidence of the blood provided to law enforcement and the subsequent analysis of that blood. The State appealed from that interlocutory order, certifying that the evidence was essential to the prosecution of its case. The North Carolina Supreme Court, in State v. Romano, 369 N.C. 678 (2017), affirmed the trial court’s ruling suppressing the State’s blood analysis, and remanded the case for additional proceedings.
While the case was pending before the state supreme court, the State filed a motion for disclosure of the defendant’s medical records on the date of his arrest, which included records of the hospital’s analysis of his blood. The motion was granted, and the medical records were disclosed.
After the case was remanded, the State proceeded to try the defendant on charges of habitual impaired driving and driving while license revoked for impaired driving. The defendant moved to dismiss the charges and to suppress the evidence of his medical records. The trial court denied the motions, and the defendant was convicted.
The defendant argued on appeal that the trial court erred when it denied his motion to suppress and admitted his medical records, which contained the results of a blood alcohol test performed by the hospital. A manager from the hospital’s records department testified regarding the management of hospital records, and a medical technologist testified about the hospital’s methods and procedures for conducting laboratory tests. In addition, an expert witness in blood testing testified for the State that he relied upon the medical records in forming a conclusion about the defendant’s blood alcohol level. The court determined that the records were properly admitted because (1) they were created for medical treatment purposes and kept in the ordinary course of business and thus were nontestimonial for purposes of the Confrontation Clause; (2) even if the records were testimonial, they were admissible as the basis of a testifying expert’s independent opinion; and (3) the admission of the records was not prejudicial in light of the substantial additional evidence that the defendant was driving while impaired.
In this murder and attempted murder case, the trial court did not err in allowing a substitute expert witness to testify to another expert’s conclusions on cell site location data connected to the defendant. The defendant complained that his rights to confront the witness were violated by the absence at trial of the expert that prepared the report. Rejecting this challenge, the court observed:
Our courts have consistently held that an expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinion; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusions in this case.
Here, that standard was met—the substitute expert explained the process of cell site analysis and his review of the first expert’s report, and he gave an independent opinion about the defendant’s cell data. The defendant was able to cross-examine the substitute expert with the first expert’s report. He was also given notice ahead of trial of the State’s intention to rely on a substitute expert witness. There was therefore no error in admitting the testimony, and the convictions were unanimously affirmed.
In this drug case, the court held—with one judge concurring in result only—that the trial court did not err by admitting evidence of the identification and weight of the controlled substances from a substitute analyst. Because Erica Lam, the forensic chemist who tested the substances was not available to testify at trial, the State presented Lam’s supervisor, Lori Knops, who independently reviewed Lam’s findings to testify instead. The defendant was convicted and he appealed, asserting a confrontation clause violation. The court found that no such violation occurred because Knops’s opinion resulted from her independent analysis of Lam’s data. As to the identity of the substances at issue, Knops analyzed the data and gave her own independent expert opinion that the substance was heroin and oxycodone. With respect to the weight of the substances, Knops’s opinion was based on her review of Lam’s “weights obtained on that balance tape.” Because weight is machine generated, it is non-testimonial.
In a drug case, the trial court did not err by allowing one analyst to testify to the results of an analysis done by another non-testifying analyst. The analysis at issue identified the pills as oxycodone. The defendant did not object to the analyst’s testimony at trial or to admission of the underlying report into evidence. Because the defendant and defense counsel stipulated that the pills were oxycodone, no plain error occurred.
In a murder case, the defendant’s right of confrontation was not violated when Dr. Jordan, an expert medical examiner, testified that in his opinion the cause of death was methadone toxicity. As part of his investigation, Jordan sent a specimen of the victim’s blood to the Office of the Chief Medical Examiner for analysis. During trial, Jordan testified that in his opinion the cause of death was methadone toxicity and that his opinion was based upon the blood toxicology report from the Chief Medical Examiner’s Office. When defense counsel raised questions about the test showing methadone toxicity, the trial court allowed the State to call as a witness Jarod Brown, the toxicologist at the State Medical Examiner’s Officer who analyzed the victim’s blood. Noting the evolving nature of the confrontation question presented, the court concluded that even assuming arguendo that Jordan’s testimony was erroneous, any error was cured by the subsequent testimony and cross-examination of Brown, who performed the analysis.
(1) Admission of a forensic report identifying a substance as a controlled substance without testimony of the preparer violated the defendant’s confrontation clause rights. (2) The trial court erred by allowing a substitute analyst to testify that a substance was a controlled substance based on the same forensic report where the substitute analyst did not perform or witness the tests and merely summarized the conclusions of the non-testifying analyst.
(1) The defendant’s confrontation rights were not violated when the State’s expert testified about DNA testing on the victim’s rape kit done by a non-testifying trainee. The trainee worked under the testifying expert’s direct observation and supervision and the findings were his own. (2) The court rejected the defendant’s argument that his constitutional rights were violated when a second DNA expert testified that she matched a DNA extract on a specimen taken from the defendant to the profile obtained from the rape kit. Having found that the first expert properly testified about the rape kit profile, the court rejected this argument. (3) No violation of the defendant’s confrontation clause rights occurred when the second expert testified that the probability of an unrelated, randomly chosen person who could not be excluded from the DNA mixture taken from the rape kit was extremely low. The defendant argued that the population geneticists who made the probability determination were unavailable for cross-examination about the reliability of their statistical methodology. The court concluded that admission of the statistical information was not error where the second expert was available for cross-examination and gave her opinion that the DNA profile from the rape kit matched the defendant’s DNA profile and the statistical information on which she relied was of a type reasonably relied upon by experts in the field. Even assuming that unavailability of the purported population geneticists who prepared the statistical data violated the defendant’s rights, the error did not rise to the level of plain error.
Assuming arguendo that the defendant properly preserved the issue for appeal, no confrontation clause violation occurred when the State’s expert forensic pathologist, Dr. Deborah Radisch, testified about the victim’s autopsy and gave her own opinion concerning cause of death. Distinguishing State v. Locklear, 363 N.C. 438 (Aug. 28, 2009), and Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705 (June 23, 2011), and following State v. Blue, 207 N.C. App. 267 (Oct. 5, 2010), the court noted that Dr. Radisch was present for the autopsy and testified as to her own independent opinion as to cause of death.
(1) In a triple murder case, no confrontation clause violation occurred when the State’s expert medical examiner was allowed to testify in place of the pathologist who performed the autopsies. The medical examiner provided her own expert opinion and did not simply regurgitate the non-testifying examiner’s reports. The testifying expert made minimal references to the autopsy reports, which were never introduced into evidence, and her testimony primarily consisted of describing the victims’ injuries as depicted in 28 autopsy photographs. She described the type of wounds, the pain they would have inflicted, whether they would have been fatal, and testified to each victim’s cause of death. With regard to one victim who had been sexually assaulted, the expert explained, through use of photographs, that the victim had been asphyxiated, how long it would have taken for her to lose consciousness, and that the blood seen in her vagina could have been menstrual blood or the result of attempted penetration. The expert’s testimony as to the impact of the various trauma suffered by the victims was based primarily on her inspection of the photographs that were admitted into evidence and her independent experience as a pathologist. Although the expert referred to the non-testifying pathologist’s reports, she did not recite findings from them. To the extent that she did, no prejudice resulted given her extensive testimony based strictly on her own personal knowledge as a pathologist, including the effect of the victims’ various injuries and their cause of death. Finally, the court concluded, even if any error occurred, it was harmless beyond a reasonable doubt. (2) The court noted in a footnote that the autopsy photographs were properly admitted as the basis of the testifying expert’s opinion and therefore admission of them did not violate the defendant’s confrontation rights.
Holding, in a drug case, that although the trial court erred by allowing the State’s expert witness to testify as to the identity and weight of the “leafy green plant substance” where the expert’s testimony was based on analysis performed by a non-testifying forensic analyst, the error was not prejudicial in light of the overwhelming evidence of guilt.
The trial court did not err by allowing the Chief Medical Examiner to testify regarding an autopsy of a murder victim when the Medical Examiner was one of three individuals who participated in the actual autopsy. The Medical Examiner testified to his own observations, provided information rationally based on his own perceptions, and did not testify regarding anyone else’s declarations or findings.
Even if the defendant’s confrontation clause rights were violated when the trial court allowed a substitute analyst to testify regarding DNA testing done by a non-testifying analyst, the error was harmless beyond a reasonable doubt.
Applying Locklear and Mobley, both discussed above, the court concluded that testimony of a substitute analyst identifying a substance as cocaine base violated the defendant’s confrontation clause rights. The court characterized the substitute analyst’s testimony as “merely reporting the results of [non-testifying] experts.” Rather than conduct her own independent review, the testifying analyst’s review “consisted entirely of testifying in accordance with what the underlying report indicated.” For more discussion of this case, see the blog post.
No Crawford violation occurred when a substitute analyst testified to her own expert opinion, formed after reviewing data and reports prepared by non-testifying expert. For a more detailed discussion of this case, see my blog post.
A Crawford violation occurred when the State’s expert gave an opinion, in a drug trafficking case, as to the weight of the cocaine at issue, based “solely” on a laboratory report by a non-testifying analyst. For a more detailed discussion of this case, see my blog post.
In this child sexual assault case, although the trial court violated the procedural requirements of G.S. 15A-1225.1 by authorizing the victim’s testimony to be offered remotely without holding a recorded evidentiary hearing on the matter or entering an appropriate order supporting its decision to allow the State’s motion, the defendant was not entitled to relief. The defendant did not challenge the trial court’s ultimate decision allowing the victim to testify remotely; he challenged only the procedure employed in authorizing her remote testimony. The court agreed that the trial court erred by failing to follow statutory procedure. However, for reasons detailed in the court’s opinion, it rejected the defendant’s challenge on the basis that he failed to demonstrate that he was prejudiced by these procedural errors.
In a case in which the defendant was charged with obtaining property by false pretenses for selling products alleged to be gluten free but which in fact contained gluten, the trial court did not err by allowing an ill witness to testify by way of a two-way, live, closed-circuit web broadcast. The witness testified regarding the results of laboratory tests he performed on samples of the defendant's products. The trial court conducted a hearing and found that the witness had a history of panic attacks, had suffered a severe panic attack on the day he was scheduled to fly from Nebraska to North Carolina for trial, was hospitalized as a result, and was unable to travel to North Carolina because of his medical condition. Applying the test of Maryland v. Craig, the court found these findings sufficient to establish that allowing the witness to testify remotely was necessary to meet an important state interest of protecting the witness’s ill health. Turning to Craig’s second requirement, the court found that reliability of the witness’s testimony was otherwise assured, noting, among other things that the witness testified under oath and was subjected to cross-examination. [Author’s note: For an extensive discussion of the use of remote testimony at trial, see my paper here.]
The trial court did not err by allowing a child victim to testify out of the defendant’s presence by way of a closed circuit television. Following State v. Jackson, 216 N.C. App. 238 (Oct. 4, 2011) (in a child sexual assault case, the defendant’s confrontation rights were not violated when the trial court permitted the child victim to testify by way of a one-way closed circuit television system; Maryland v. Craig survived Crawford and the procedure satisfied Craig’s procedural requirements), the court held that no violation of the defendant’s confrontation rights occurred. The court also held that the trial court’s findings of fact about the trauma that the child would suffer and the impairment to his ability to communicate if required to face the defendant in open court were supported by the evidence.
(1) In a child sexual assault case, the defendant’s confrontation rights were not violated when the trial court permitted the child victim to testify by way of a one-way closed circuit television system. The court held that Maryland v. Craig survived Crawford and that the procedure satisfied Craig’s procedural requirements. (2) The court also held that the child’s remote testimony complied with the statutory requirements of G.S. 15A-1225.1.
(1) Melendez-Diaz did not impact the “continuing vitality” of the notice and demand statute in G.S. 90-95(g); when the State satisfies the requirements of the statute and the defendant fails to file a timely written objection, a valid waiver of the defendant’s constitutional right to confront the analyst occurs. (2) The State’s notice under the statute in this case was deficient in that it failed to provide the defendant a copy of the report and stated only that “[a] copy of report(s) will be delivered upon request.” However, the defendant did not preserve this issue for appeal. At trial he asserted only that the statute was unconstitutional under Melendez-Diaz; he did not challenge the State’s notice under the statute. Justice Hudson dissented, joined by Justice Beasley, arguing that the majority improperly shifts the burden of proving compliance with the notice and demand statute from the State to defendant.
In this drug trafficking case, notice was properly given under the G.S. 90-95(g) notice and demand statute even though it did not contain proof of service or a file stamp. The argued-for service and filing requirements were not required by Melendez-Diaz or the statute. The notice was stamped “a true copy”; it had a handwritten notation that saying “ORIGINAL FILED,” “COPY FAXED,” and “COPY PLACED IN ATTY’S BOX.” The defendant did not argue that he did not in fact receive the notice.
The court rejected the defendant’s argument that the State’s failure to comply with the requirements of the G.S. 90-95 notice and demand statute with respect to the analyst’s report created error. In addition to failing to object to admission of the report, both the defendant and defense counsel stipulated that the pills were oxycodone. The court also rejected the defendant’s argument that his stipulation was not a knowing, voluntary and intelligent waiver of his right to confront the non-testifying analyst, noting that such a stipulation does not require the formality of a guilty plea.
A SBI forensic report identifying a substance as cocaine was properly admitted when the State gave notice under the G.S. 90-95(g) notice and demand statute and the defendant lodged no objection to admission of the report without the testimony of the preparer.
The court ordered a new trial in a drug case in which the trial court admitted laboratory reports regarding the identity, nature, and quantity of the controlled substances where the State had not complied with the notice and demand provisions in G.S. 90-95(g) and (g1). Instead of sending notice directly to the defendant, who was pro se, the State sent notice to a lawyer who was not representing the defendant at the time.
The court upheld the constitutionality of G.S. 90-95(g)’s notice and demand statute for forensic laboratory reports in drug cases. Since the defendant failed to object after the State gave notice of its intent to introduce the report without the presence of the analyst, the defendant waived his Confrontation Clause rights.
In this drug case, the trial court did not err by admitting a forensic laboratory report after the defendant stipulated to its admission. The defendant argued that the trial court erred by failing to engage in a colloquy with her to ensure that she personally waived her sixth amendment right to confront the analyst whose testimony otherwise would be necessary to admit the report. State v. Perez, __ N.C. App. __, __, 817 S.E.2d 612, 615 (2018), establishes that a waiver of Confrontation Clause rights does not require the type of colloquy required to waive the right to counsel or to enter a guilty plea. In that case, the defendant argued that the trial court erred by allowing him to stipulate to the admission of forensic laboratory reports without engaging in a colloquy to ensure that he understood the consequences of that decision. The court rejected that argument, declining the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights through a stipulation. In Perez, the court noted that if the defendant did not understand the implications of the stipulation, his recourse is a motion for appropriate relief asserting ineffective assistance of counsel. The court rejected the defendant’s attempt to distinguish Perez on grounds that it involved a written stipulation personally signed by the defendant, while this case involves defense counsel’s oral stipulation made in the defendant’s presence. The court found this a “distinction without a difference.” Here, the stipulation did not amount to an admission of guilt and thus was not the equivalent of a guilty plea. The court continued:
[W]e . . . decline to impose on the trial courts a categorical obligation “to personally address a defendant” whose counsel stipulates to admission of a forensic report and corresponding waiver of Confrontation Clause rights. That advice is part of the role of the defendant’s counsel. The trial court’s obligation to engage in a separate, on-the-record colloquy is triggered only when the stipulation “has the same practical effect as a guilty plea.”
In this drug case, the court rejected the defendant’s argument that the trial court violated his Confrontation Clause rights when it permitted him to stipulate to the admission of forensic laboratory reports without first addressing him personally and ensuring that he understood the stipulation would waive those rights. At trial the prosecutor informed the trial court that the defendant intended to stipulate to the admission of forensic laboratory reports confirming that the substance seized was cocaine. Both defense counsel and the defendant signed the stipulations and the trial court admitted the stipulated evidence. On appeal, the defendant argued that the trial court erred by permitting him to stipulate to the admission of the reports without engaging in a colloquy to ensure he understood the consequences of that decision. The court rejected this argument. It began by acknowledging that the stipulation acted as a waiver of the defendant’s Confrontation Clause rights. The court held however that “the waiver of Confrontation Clause rights does not require the sort of extensive colloquy needed to waive the right to counsel or enter a guilty plea.” The court rejected the defendant’s argument that State v. English, 171 N.C. App. 277 (2005), requires such a colloquy. Here, both the defendant and counsel signed the stipulations, and there may have been strategic reasons to do so. The court found it notable that the defendant did not argue that his lawyer failed to discuss those strategic issues with him, or that defense counsel failed to explain that stipulating to admission of the lab reports would waive his Confrontation Clause rights. Instead, he argued that the trial court should have discussed these issues with him in open court. The court declined the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights via stipulation with the State. If the defendant did not understand the implications of stipulating, his recourse is to pursue an MAR asserting ineffective assistance of counsel.
In this child abuse case the Court held that statement by the victim, L.P., to his preschool teachers were non-testimonial. In the lunchroom, one of L.P.’s teachers, Ramona Whitley, observed that L.P.’s left eye was bloodshot. She asked him “[w]hat happened,” and he initially said nothing. Eventually, however, he told the teacher that he “fell.” When they moved into the brighter lights of a classroom, Whitley noticed “[r]ed marks, like whips of some sort,” on L.P.’s face. She notified the lead teacher, Debra Jones, who asked L.P., “Who did this? What happened to you?” According to Jones, L.P. “seemed kind of bewildered” and “said something like, Dee, Dee.” Jones asked L.P. whether Dee is “big or little;” L.P. responded that “Dee is big.” Jones then brought L.P. to her supervisor, who lifted the boy’s shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about the suspected abuse. The defendant, who went by the nickname Dee, was charged in connection with the incident. At trial, the State introduced L.P.’s statements to his teachers as evidence of the defendant’s guilt, but L.P. did not testify. The defendant was convicted and appealed. The Ohio Supreme Court held that L.P.’s statements were testimonial because the primary purpose of the teachers’ questioning was not to deal with an emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution. That court noted that Ohio has a “mandatory reporting” law that requires certain professionals, including preschool teachers, to report suspected child abuse to government authorities. In the Ohio court’s view, the teachers acted as agents of the State under the mandatory reporting law and obtained facts relevant to past criminal conduct. The Supreme Court granted review and reversed. It held:
In this case, we consider statements made to preschool teachers, not the police. We are therefore presented with the question we have repeatedly reserved: whether statements to persons other than law enforcement officers are subject to the Confrontation Clause. Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. And considering all the relevant circumstances here, L.P.’s statements clearly were not made with the primary purpose of creating evidence for [the defendant’s] prosecution. Thus, their introduction at trial did not violate the Confrontation Clause.
The Court reasoned that L.P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse. The Court continued, concluding that “[t]here is no indication that the primary purpose of the conversation was to gather evidence for [the defendant]’s prosecution. On the contrary, it is clear that the first objective was to protect L.P.” In the Court’s view, “L.P.’s age fortifies our conclusion that the statements in question were not testimonial.” It added: “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” The Court continued, noting that as a historical matter, there is strong evidence that statements made in similar circumstances were admissible at common law. The Court noted, “although we decline to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L.P. was speaking to his teachers remains highly relevant.” The Court rejected the defendant’s argument that Ohio’s mandatory reporting statutes made L.P.’s statements testimonial, concluding: “mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.”
Justice Sotomayor, writing for the Court, held that a mortally wounded shooting victim’s statements to first-responding officers were non-testimonial under Crawford. In the early morning, Detroit police officers responded to a radio dispatch that a man had been shot. When they arrived at the scene, the victim was lying on the ground at a gas station. He had a gunshot wound to his abdomen, appeared to be in great pain, and had difficulty speaking. The officers asked the victim what happened, who had shot him, and where the shooting occurred. The victim said that the defendant shot him about 25 minutes earlier at the defendant’s house. The officers’ 5-10 minute conversation with the victim ended when emergency medical personnel arrived. The victim died within hours. At trial, the victim’s statements to the responding officers were admitted and the defendant was found guilty of, among other things, murder.
The Court held that because the statements were non-testimonial, no violation of confrontation rights occurred. The Court noted that unlike its previous decisions in Davis and Hammon, the present case involved a non-domestic dispute, a victim found in a public location suffering from a fatal gunshot wound, and a situation where the perpetrator’s location was unknown. Thus, it indicated, “we confront for the first time circumstances in which the ‘ongoing emergency’ . . . extends beyond an initial victim to a potential threat to the responding police and the public at large.” Slip Op. at 12. This new scenario, the Court noted, “requires us to provide additional clarification . . . to what Davis meant by ‘the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.’” Id. It concluded that when determining whether this is the primary purpose of an interrogation, a court must objectively evaluate the circumstances in which the encounter occurs and the parties’ statements and actions. Id. It explained that the existence of an ongoing emergency “is among the most important circumstances informing the ‘primary purpose’ of an interrogation.” Id. at 14. As to the statements and actions of those involved, the Court concluded that the inquiry must focus on both the declarant and the interrogator.
Applying this analysis to the case at hand, the Court began by examining the circumstances of the interrogation to determine if an ongoing emergency existed. Relying on the fact that the victim said nothing to indicate that the shooting was purely a private dispute or that the threat from the shooter had ended, the Court found that the emergency was broader than those at issue in Davis and Hammon, encompassing a threat to the police and the public. Id. at 27. The Court also found it significant that a gun was involved. Id. “At bottom,” it concluded, “there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded [the victim] within a few blocks and a few minutes of the location where the police found [the victim].” Id. The Court continued, determining that given the circumstances of the emergency, it could not say that a person in the victim’s situation would have had the primary purpose of establishing past facts relevant to a criminal prosecution. Id. at 29. As to the motivations of the police, the Court concluded that they solicited information from the victim to meet the ongoing emergency. Id. at 30. Finally, it found that the informality of the situation and interrogation further supported the conclusion that the victim’s statements were non-testimonial.
Justice Thomas concurred in the judgment, agreeing that the statements were non-testimonial but resting his conclusion on the lack of formality that attended them. Justices Scalia and Ginsburg dissented. Justice Kagan took no part in the consideration or decision of the case.
In this Wake County case, the Supreme Court reversed the Court of Appeals decision holding the State violated the Confrontation Clause and hearsay rules by admitting exhibits of Verizon phone records. The Supreme Court held that if the records were truly machine generated, they were not hearsay or testimonial in nature, and remanded the case for the consideration of defendant’s remaining issues.
In 2022, defendant came to trial for statutory rape of a child fifteen years or younger. During the State’s case, two detectives testified about their investigation into defendant, and they referenced exhibits of phone records provided by Verizon. The two exhibits in question were a list of “the time, date, and connecting phone number for all calls to and from [defendant’s] phone between May and July 2019” and a cover letter stating the records were “true and accurate copies of the records created from the information maintained by Verizon in the actual course of business.” Slip Op. at 6. Defendant objected to the exhibits, and the State argued the records were admissible under Rule of Evidence 803(6) as business records. The trial court did not admit the records under Rule 803(6), but instead under Rule 803(24), the residual exception, as the trial court felt the State did not lay a proper foundation for business records. In State v. Lester, 291 N.C. App. 480 (2023), the Court of Appeals reversed defendant’s conviction, holding that admitting the records was a violation of defendant’s Confrontation Clause rights and the error was prejudicial, justifying a new trial.
Taking up the arguments, the Court explained that the purpose of the Confrontation Clause was to protect against the unreliable nature of out-of-court testimonial statements made by humans, specifically “ex parte examinations” offered against the accused. Slip Op. at 11. Here, the evidence in question was computer-generated data, and the Court noted this was not the type of evidence contemplated by the Confrontation Clause. After explaining the unique nature of machine-generated data and why it was more reliable that a human witness’s out-of-court statement, the Court held that ‘machine-generated raw data, if truly machine-generated,’ are ‘neither hearsay nor testimonial’ under the Confrontation Clause.” Id. at 17 (quoting State v. Ortiz-Zape, 367 N.C. 1, 10 (2013)). The Court emphasized that “we focus here on data produced entirely by the internal operations of a computer or other machine, free from human input or intervention” in contrast to “(1) computer-stored evidence, and (2) human interpretations of computer-produced data.” Id. at 18. Because the machine-generated data did not implicate the Confrontation Clause in the same way that human interpretations of the data would, the Court determined the Court of Appeals improperly analyzed the admissibility of the exhibits in the current case.
On discretionary of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 696 (2017), in this murder case the court reversed, holding that the Court of Appeals erred by concluding that certain evidence was admitted in violation of the defendant’s confrontation rights. The defendant was charged with murdering his estranged wife. Approximately 9 months before the murder, an officer responded to a call at the victim’s apartment regarding a domestic dispute. The officer made initial contact with the victim at a location outside of her apartment. The victim told the officer that the defendant entered her apartment through an unlocked door and kept her there against her will for two hours. The victim said that during this period she and the defendant argued and that a physical struggle occurred. Although the officer did not recall seeing any signs that the victim had sustained physical injury, he noticed a tear and stress marks on her shirt. The officer accompanied the victim to her apartment to check the premises to make sure the defendant was not still there. The defendant was later charged and convicted of domestic criminal trespass. At the defendant’s murder trial the trial court admitted, over the defendant’s confrontation clause objection, the officer’s testimony about the statements the victim made to him in the incident 9 months before the murder. The Court of Appeals found, among other things, that the victim’s statements were testimonial. The Supreme Court disagreed, finding that the victim’s statements were nontestimonial. The victim made the statements during an ongoing emergency caused by the defendant’s entry into her apartment and decision to both detain and physically assault her. The information she provided to the officer caused him to enter the apartment to ensure that the defendant, whose location was unknown, had departed and no longer posed a threat to the victim’s safety. The victim’s statements to the officer “served more than an information-gathering purpose.” Additionally, the conversation was informal and took place in an environment that cannot be described as tranquil.
Reversing the Court of Appeals, the Supreme Court held that the statements made by an anonymous 911 caller informing the police of a possible incident involving a firearm and describing the suspect were nontestimonial. The circumstances surrounding the caller’s statements objectively indicate that the primary purpose was to enable law enforcement to meet an ongoing emergency. The primary purpose of the call was to inform the police of a possible dispute involving an unidentified man brandishing a firearm outside the caller’s home on a public street in a residential subdivision. The caller reacted by going to her home and staying away from the window and an officer retrieved his patrol rifle before entering the scene. “As is evident from the precautions taken by both the caller and the officers on the scene, they believed the unidentified suspect was still roving subdivision with a firearm, posing a continuing threat to the public and law enforcement.” To address this threat, an officer requested that the dispatcher place a reverse call to the caller to get more information about the individual at issue and, once received, quickly relayed that information to other officers to locate and apprehend the suspect. [Author’s note: For more information about the Confrontation Clause, see my judges’ benchbook chapter here.]
In this Cabarrus County case, defendant appealed his conviction for first-degree murder, arguing error in admitting Facebook messages as business records without an affidavit sworn before a notary. The Court of Appeals found no error.
In April of 2021, the victim was shot outside a convenience store by someone in a red vehicle. At trial, the State presented evidence that tied defendant to the red vehicle and the convenience store. The State also presented evidence that defendant blamed his recent arrest on the victim and her sister, including Facebook messages saying the victim was responsible for the arrest. These Facebook messages were offered as business records with a “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity” signed by a “Custodian of Records,” but the certificate did not include a notarized signature. Slip Op. at 3. Instead, the certificate had a declaration signed by the custodian under penalty of perjury. Defense counsel objected to the admission of the messages without a sworn affidavit, but the trial court overruled all objections.
On appeal, defendant argued that the messages were hearsay not properly authenticated as business records, and that admitting the records violated his Confrontation Clause protections. The Court of Appeals walked through defendant’s objections, dismissing both in turn. Considering the hearsay argument, the court looked to State v. Hollis, COA 23-838, 905 S.E.2d 265 (N.C. App. 2024), for the proposition that “an affidavit is valid and authenticated when it is submitted under penalty of perjury” even when the affidavit is not sworn before a notary. Slip Op. at 9. The court explained that “[t]he certificate under penalty of perjury fulfills the purpose of authentication.” The court then considered the Confrontation Clause issue, holding that “[t]he trial court’s decision comports with the general rule that business records are nontestimonial in nature.” Id. at 13. Because the records were nontestimonial, “[t]he Confrontation Clause does not apply.” Id. at 14.
The defendant was arrested for impaired driving. Because of his extreme intoxication, he was taken to a hospital for medical treatment. The defendant was belligerent and combative at the hospital, and was medicated in an effort to calm his behavior. After the defendant was medically subdued, a nurse withdrew his blood. She withdrew some blood for medical purposes and additional blood for law enforcement use. No warrant had been issued authorizing the blood draw. The defendant moved to suppress evidence resulting from the warrantless blood draw on constitutional grounds. The trial court granted the motion, suppressing evidence of the blood provided to law enforcement and the subsequent analysis of that blood. The State appealed from that interlocutory order, certifying that the evidence was essential to the prosecution of its case. The North Carolina Supreme Court, in State v. Romano, 369 N.C. 678 (2017), affirmed the trial court’s ruling suppressing the State’s blood analysis, and remanded the case for additional proceedings.
While the case was pending before the state supreme court, the State filed a motion for disclosure of the defendant’s medical records on the date of his arrest, which included records of the hospital’s analysis of his blood. The motion was granted, and the medical records were disclosed.
After the case was remanded, the State proceeded to try the defendant on charges of habitual impaired driving and driving while license revoked for impaired driving. The defendant moved to dismiss the charges and to suppress the evidence of his medical records. The trial court denied the motions, and the defendant was convicted.
The defendant argued on appeal that the trial court erred when it denied his motion to suppress and admitted his medical records, which contained the results of a blood alcohol test performed by the hospital. A manager from the hospital’s records department testified regarding the management of hospital records, and a medical technologist testified about the hospital’s methods and procedures for conducting laboratory tests. In addition, an expert witness in blood testing testified for the State that he relied upon the medical records in forming a conclusion about the defendant’s blood alcohol level. The court determined that the records were properly admitted because (1) they were created for medical treatment purposes and kept in the ordinary course of business and thus were nontestimonial for purposes of the Confrontation Clause; (2) even if the records were testimonial, they were admissible as the basis of a testifying expert’s independent opinion; and (3) the admission of the records was not prejudicial in light of the substantial additional evidence that the defendant was driving while impaired.
In this case involving armed robbery and other charges, the victim’s statements to a responding officer were nontestimonial. When officer Rigsby arrived at the victim’s home to investigate the robbery call, the victim was shaken up, fumbling over his words, and speaking so fast that it sounded like he was speaking another language. Once the victim calmed down he told the officer that a group of black men robbed him, that one of them put a snubnosed revolver to the back of his head, one wore a clown mask, the suspects fled in a silver car, and one of the robbers was wearing red clothing. Shortly thereafter, another officer informed Rigsby that she had found a vehicle and suspects matching the description provided by 911 communications. Rigsby immediately left the victim to assist that officer. Although the suspects had fled the victim’s home, an ongoing emergency posing danger to the public existed. The victim’s statements to Rigsby were nontestimonial because they were provided to assist police in meeting an ongoing emergency and to aid in the apprehension of armed, fleeing suspects.
A witness’s pretrial deposition testimony, taken in preparation of the criminal case, was clearly testimonial for purposes of the Confrontation Clause.
In this child sexual assault case, no confrontation clause violation occurred where the victim’s statements were made for the primary purpose of obtaining a medical diagnosis. After the victim revealed the sexual conduct to his mother, he was taken for an appointment at a Children’s Advocacy Center where a registered nurse conducted an interview, which was videotaped. During the interview, the victim recounted, among other things, details of the sexual abuse. A medical doctor then conducted a physical exam. A DVD of the victim’s interview with the nurse was admitted at trial. The court held that the victim’s statements to the nurse were nontestimonial, concluding that the primary purpose of the interview was to safeguard the mental and physical health of the child, not to create a substitute for in-court testimony. Citing Clark, the court rejected the defendant’s argument that state law requiring all North Carolinians to report suspected child abuse transformed the interview into a testimonial one.
In this driving while license revoked case, the court held that DMV records were non-testimonial. The documents at issue included a copy of the defendant’s driving record certified by the DMV Commissioner; two orders indefinitely suspending his drivers’ license; and a document attached to the suspension orders and signed by a DMV employee and the DMV Commissioner. In this last document, the DMV employee certified that the suspension orders were mailed to the defendant on the dates as stated in the orders, and the DMV Commissioner certified that the orders were accurate copies of the records on file with DMV. The court held that the records, which were created by the DMV during the routine administration of its affairs and in compliance with its statutory obligations to maintain records of drivers’ license revocations and to provide notice to motorists whose driving privileges have been revoked, were non-testimonial.
In a sex offender residential restriction case, the court held that because GPS tracking reports were non-testimonial business records, their admission did not violate the defendant’s confrontation rights. The GPS records were generated in connection with electronic monitoring of the defendant, who was on post-release supervision for a prior conviction. The court reasoned:
[T]he GPS evidence admitted in this case was not generated purely for the purpose of establishing some fact at trial. Instead, it was generated to monitor defendant’s compliance with his post-release supervision conditions. The GPS evidence was only pertinent at trial because defendant was alleged to have violated his post-release conditions. We hold that the GPS report was non-testimonial and its admission did not violate defendant’s Confrontation Clause rights.
(1) In a larceny by merchant case, statements made by a deceased Wal-Mart assistant manager to the store’s loss prevention coordinator were non-testimonial. The loss prevention coordinator was allowed to testify that the assistant manager had informed him about the loss of property, triggering the loss prevention coordinator’s investigation of the matter. The court stated:
[The] statement was not made in direct response to police interrogation or at a formal proceeding while testifying. Rather, [the declarant] privately notified his colleague . . . about a loss of product at the Wal-Mart store. This statement was made outside the presence of police and before defendant was arrested and charged. Thus, the statement falls outside the purview of the Sixth Amendment. Furthermore, [the] statement was not aimed at defendant, and it is unreasonable to believe that his conversation with [the loss prevention coordinator] would be relevant two years later at trial since defendant was not a suspect at the time this statement was made.
(2) Any assertions by the assistant manager contained in a receipt for evidence form signed by him were non-testimonial. The receipt—a law enforcement document—established ownership of the baby formula that had been recovered by the police, as well as its quantity and type; its purpose was to release the property from the police department back to the store.
A non-testifying victim’s statement to a law enforcement officer was testimonial. In the defendant’s trial for kidnapping and other charges, the State introduced statements from a different victim (“the declarant”) who was deceased at the time of trial. The facts surrounding the declarant’s statements were as follows: An officer responding to a 911 call concerning a possible sexual assault at a Waffle House restaurant found the declarant crying and visibly upset. The declarant reported that while she was at a bus stop, a driver asked her for directions. When she leaned in to give directions, the driver grabbed her shirt and told her to get in the vehicle. The driver, who had a knife, drove to a parking lot where he raped and then released her. The declarant then got dressed and walked to the Waffle House. The trial court determined that because the purpose of the interrogation was to resolve an ongoing emergency, the declarant’s statements were nontestimonial. Distinguishing the U.S. Supreme Court’s decision in Michigan v. Bryant, the court of appeals disagreed. The court noted that when the officer arrived “there was no ongoing assault, the declarant had no signs of trauma, no suspect was present, and the officer did not search the area for the perpetrator or secure the scene. The officer asked the declarant if she wanted medical attention (she refused) and what happened. Thus, the court concluded, the officer “assessed the situation, determined there was no immediate threat and then gathered the information.” Furthermore, the declarant told the officer that the perpetrator voluntarily released her. The court concluded that even if the officer believed there was an ongoing emergency when he first arrived, he determined that no ongoing emergency existed when he took the statement. The court also determined that there was no ongoing threat to the victim, law enforcement or the public. It noted that the defendant voluntarily released the declarant and drove away and there was no indication that he would return to harm her further. As for danger to the officer, the court found no evidence that the defendant was ever in the Waffle House parking lot or close enough to harm the officer with his weapon, which was a knife not a gun. The court also concluded that because “the evidence suggested defendant’s motive was sexual and did not rise to the level of endangering the public at large.” Regarding the overall circumstances of the encounter, the court noted that because there was only one officer, “the circumstances of the questioning were more like an interview,” in which the officer asked what happened and the declarant narrated the events. It continued, noting that since the declarant “had no obvious injuries, and initially refused medical attention, the primary purpose of her statement could not have been to obtain medical attention.” Furthermore, she “seemed to have no difficulty in recalling the events, and gave [the officer] a detailed description of the events, implying that her primary purpose was to provide information necessary for defendant’s prosecution.” In fact, the court noted, she told the officer that she wanted to prosecute the suspect. The court concluded that the statement was “clearly” testimonial:
[T]here was no impending danger, because the driver released [the declarant] and [the declarant] was waiting at a restaurant in a presumably safe environment. In addition, [the officer] questioned her with the requisite degree of formality because the questioning was part of an investigation, outside the defendant’s presence. [The officer] wanted to determine “what happened” rather than “what is happening.” Furthermore, [the declarant’s] statement deliberately recounted how potentially criminal events from the past had progressed and the interrogation occurred after the described events ended. Finally, [the declarant] gave the officer a physical description of the driver, how he was dressed, his approximate age, and the type of vehicle he was driving. For a criminal case, this information would be “potentially relevant to later criminal prosecution.” (citations omitted).
Mr. Smith was charged and tried for various drug offenses in Arizona state court. Suspected drugs seized from Smith’s property were sent to a state-run crime lab for testing. Analyst Rast performed the testing, producing notes and a final report on the identity of the substances. She concluded that the items tested were illegal controlled substances. For reasons not apparent from the record, Rast was not available to testify at trial, and state prosecutors called a substitute analyst, Longoni, to provide his independent expert opinion about the drugs. Longoni was not involved in the testing procedures performed by Rast, but he used Rast’s report and notes as the basis of his opinion at Smith’s trial. On appeal, the defendant argued that the use of a substitute analyst to present the conclusions of another, non-testifying analyst violated his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. The Arizona Court of Appeals affirmed the convictions, relying on state precedent permitting a substitute analyst to testify to an independent opinion by using the report of a non-testifying witness as the basis of opinion. Smith then sought review at the U.S. Supreme Court. The Court unanimously vacated the lower court’s decision, with five justices joining the Court’s opinion in full.
The Confrontation Clause bars the admission of testimonial hearsay statements unless the witness is unavailable, and the defendant previously had a motive and opportunity to cross-examine the witness (subject to certain narrow exceptions not relevant here). Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Testimonial forensic reports are subject to this general rule. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009). Arizona (like North Carolina) has permitted substitute analyst testimony under the theory that the use of a non-testifying expert’s report is not hearsay (and therefore not subject to the Confrontation Clause) when the report is used as the basis for the testifying expert’s opinion. According to the Court’s opinion: “Today, we reject that view. When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” Smith Slip op. at 1-2.
This question was argued but left open by a fractured plurality decision in Williams v. Illinois, 567 U.S. 50 (2012). There, five Justices rejected the “basis of opinion” logic, but there was no majority decision. The Williams opinion caused widespread confusion in lower courts about substitute analyst testimony and created a split of authority among jurisdictions. The Smith decision clarifies that the use of a non-testifying analyst’s testimonial report is offered for the truth of the matter asserted when used by a substitute analyst as the basis of their opinion. Because such use of the testimonial forensic report of another is offered for its truth, it is hearsay and implicates the Confrontation Clause. In the words of the Court:
. . . [T]ruth is everything when it comes to the kind of basis testimony presented here. If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. How could it be otherwise? The whole point of the prosecutor’s eliciting such a statement is ‘to establish—because of the statement’s truth—a basis for the jury to credit the testifying expert’s opinion. Id. at 14 (cleaned up) (emphasis in original).
Some courts have relied on Federal Rule of Evidence 703 or a comparable state evidentiary rule in support of the practice of substitute analyst testimony. Rule 703 permits an expert to offer an opinion based on facts and data that would not otherwise be admissible when the inadmissible information is used to form the basis of an opinion. According to the Court, Rule 703 did not control here. “[F]ederal constitutional rights are not typically defined—expanded or contracted—by reference to non-constitutional bodies of law like evidence rules.” Smith Slip op. at 12. The prosecution cannot circumvent confrontation rights by labeling the out of court statement (here, the forensic report) as the basis of the testifying expert’s opinion. The defendant must normally be afforded an opportunity to challenge the expert who performed the testing through cross-examination.
A substitute analyst may nonetheless be able to provide helpful testimony for the prosecution without violating the Confrontation Clause by offering evidence about typical lab practices and procedures, chains of custody, lab accreditation, standards, or by answering hypothetical questions. This kind of testimony “allow[s] forensic expertise to inform a criminal case without violating the defendant’s right of confrontation.” Id. at 18. The substitute analyst’s testimony in Smith went far beyond those kinds of permissible uses. According to the Court:
Here, the State used Longoni to relay what Rast wrote down about how she identified the seized substances. Longoni thus effectively became Rast’s mouthpiece. He testified to the precautions (she said) she took, the standards (she said) she followed, the tests (she said) she performed, and the results (she said) she obtained. The State offered up that evidence so the jury would believe it—in other words, for its truth. Id. at 18-19.
To the extent these statements were testimonial, their admission violated the Confrontation Clause and constituted error. Whether the statements from the forensic report are testimonial, however, is a separate question from whether they were offered for their truth. Generally, statements are testimonial when they are primarily made in anticipation of and for use in a criminal trial. Davis v. Washington, 547 U.S. 813, 822 (2006). Here, Arizona never raised the issue of whether the statements from the forensic report were testimonial, seemingly presuming that they were. The Court declined to decide the issue, instead remanding the case back to the state appellate division for that determination.
The Court nonetheless opined about ways the state appellate court might consider that issue. First, the state appellate court should determine what exact statements of Rast were used by Longoni at the trial. The parties disputed whether Longoni used only Rast’s notes, her report, or a mixture of the two. “Resolving that dispute might, or might then again not, affect the court’s ultimate disposition of Smith’s Confrontation Clause claim. We note only that before the court can decide the primary purpose of the out-of-court statements, it needs to determine exactly what those statements were.” Smith Slip op. at 20-21. Further, when determining the primary purpose of the statements, the Court reminded the lower state court that not all lab records will be testimonial. “. . .[L]ab records may come into being primarily to comply with laboratory accreditation requirements or to facilitate internal review and quality control. Or some analysts’ notes may be written simply as reminders to self. In those cases, the record would not count as testimonial.” Id. at 21.
The Court therefore vacated Smith’s conviction and remanded the case for additional proceedings.
Justice Thomas wrote separately to concur in part. He agreed that the non-testifying expert’s report was being offered for the truth of the matter asserted when used as the basis of a testifying expert’s opinion, but disagreed with the Court’s directive to consider the primary purpose of the challenged statement on remand when determining whether the statements were testimonial. In Justice Thomas’s view, the testimonial nature of a statement turns on whether it was made under sufficiently formal circumstances, and not whether its primary purpose was in anticipation of a criminal prosecution.
Justice Gorsuch also wrote separately to concur in part. He too agreed with the Court’s holding rejecting the logic of the “basis of opinion” theory by which Arizona and other states have justified substitute analyst testimony. He believed that the issue of whether the forensic report and notes were testimonial was not properly before the Court and declined to join that part of the opinion. He also expressed concerns about the primary purpose test used to determine whether a statement is testimonial.
Justice Alito, joined by Chief Justice Roberts, wrote separately to concur in judgment only. According to these Justices, Longoni’s testimony crossed the line between permissible basis of opinion testimony and inadmissible hearsay, thus raising a confrontation problem. They would have resolved the case on that narrow ground, without reaching the wider constitutional question of the use of substitute analysts generally.
Phil Dixon previously blogged about Smith v. Arizona and its potential implications for North Carolina criminal law, here.
In the Philippines in 2012, crime lord Paul LeRoux believed a real-estate broker, Catherine Lee, had stolen money from him. LeRoux hired three men to kill her: Adam Samia, Joseph Hunter, and Carl Stillwell. Lee was later murdered, shot twice in the head. The four men were eventually arrested. LeRoux turned state’s evidence. Stillwell admitted that he was in the van when Lee was killed, but he claimed he was only the driver and that Samia had done the shooting.
Samia, Hunter, and Stillwell were charged with various offenses, including murder-for-hire and conspiracy. They were tried jointly in the Southern District of New York. Hunter and Stillwell admitted participation in the murder while Samia maintained his innocence. At trial, the trial court admitted evidence of Stillwell’s confession, redacted to omit any direct reference to Samia (“He described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving.”). The trial court instructed the jury that this testimony was admissible only as to Stillwell and should not be considered as to Samia or Hunter. All three men were convicted and Samia sentenced to life plus ten years. On appeal, the Second circuit found no error in admitting Stillwell’s confession in its modified form. The Supreme Court granted certiorari to determine whether the admission of Stillwell’s altered confession, subject to a limiting instruction, violated Samia’s confrontation clause rights.
The Sixth Amendment guarantees a criminal defendant the right to be confronted with the witnesses against him. In Crawford v. Washington, the Supreme Court held the confrontation clause bars the admission of out-of-court testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford, 541 U.S. at 53-54. Stillwell’s post-arrest confession to DEA agents was plainly testimonial. In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held a defendant’s confrontation clause rights are violated when his nontestifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. In Richardson v. Marsh, 481 U.S. 200 (1987), however, it found no error in the use of a redacted confession, holding that the confrontation clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction, when the confession is redacted to eliminate any reference to the defendant. Finally, in Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court held that certain obviously redacted confessions might be directly accusatory and so fall within Bruton’s rule, even if they did not explicitly name the defendant.
In Samia, the Supreme Court recited the “general rule” that a witness whose testimony is introduced at a joint trial is not considered to be a witness against a defendant if the jury is instructed to consider that testimony only against a codefendant. Samia, 2023 WL 4139001, at *5 (quoting Richardson, 481 U.S. at 206). It reviewed the historical practice. Id. at *6. It discussed the doctrine that jurors are presumed to follow the trial judge’s instructions, and it acknowledged Bruton as “a narrow exception” to this rule. Id. at *6-*7. Reviewing Bruton, Richardson, and Gray, the Supreme Court found its precedents “distinguish between confessions that directly implicate a defendant and those that do so indirectly.” Id. at *9. Here, Stillwell’s confession was redacted to avoid naming Samia, “satisfying Bruton’s rule,” and it was not so obviously redacted as to resemble the confession in Gray. Id. at *10. Accordingly, the introduction of Stillwell’s confession coupled with a limiting instruction did not violate the confrontation clause. Id. at *7.
Justice Barrett concurred in part and in the judgment. She rejected the historical evidence described in Part II-A of the majority opinion as anachronistic (too late to inform the meaning of the confrontation clause at the time of the founding) and insubstantial (addressing hearsay rules rather than confrontation).
Justices Kagan dissented, joined by Justice Sotomayor and Justice Jackson. Justice Kagan posited that “Bruton’s application has always turned on a confession’s inculpatory impact.” Id. at *14 (Kagan, J., dissenting). She said it would have been obvious to the jury that “the other person” referenced in the redacted confession was Samia, and “[t]hat fact makes Stillwell’s confession inadmissible” under Bruton. Id. Justice Kagan accepted the majority’s dichotomy between confessions that implicate a defendant directly or indirectly, but she criticized the majority for finding Stillwell’s confession only indirectly implicated Samia. Id. at *14-*15. She accused the majority of undermining Bruton without formally overruling it: “Under this decision, prosecutors can always circumvent Bruton’s protections.” Id. at *16.
Justice Jackson dissented separately. Id. at *16 (Jackson, J., dissenting). In her view, the default position under Crawford is that Stillwell’s confession was not admissible, and in seeking to introduce the confession the Government sought an exception from the confrontation clause’s exclusion mandate. Id. But under the majority’s approach, the default rule is that a nontestifying codefendant’s incriminating confession is admissible, so long as it is accompanied by a limiting instruction, and Bruton represents a narrow exception to this default rule. Id. The majority, Justice Jackson charged, turns Bruton on its head, setting “the stage for considerable erosion of the Confrontation Clause right that Bruton protects.” Id. at *17.
Reversing the Seventh Circuit, the Court held that the state court was not unreasonable in determining that the prosecution established the victim’s unavailability for purposes of the confrontation clause. In the defendant’s state court trial for kidnaping and sexual assault, the victim testified. After a mistrial, a retrial was scheduled for March 29, 2000. On March 20, the prosecutor informed the trial judge that the victim could not be located. On March 28, the State moved to have the victim declared unavailable and to introduce her prior testimony at the retrial. The State represented that it had remained in constant contact with the victim and her mother and that every indication had been that the victim, though very frightened, would testify. On March 3, however, the victim’s mother and brother told the State’s investigator that they did not know where the victim was; the mother also reported that the victim was “very fearful and very concerned” about testifying. About a week later, the investigator interviewed the victim’s father, who had no idea where she was. On March 10, the victim’s mother told the State that the victim had run away the day before. Thereafter, the prosecutor’s office and police attempted to find the victim. Their efforts included: constant visits her home, at all hours; visits to her father’s home; conversations with her family members; checks at, among other places, the Medical Examiner’s office, local hospitals, the Department of Corrections, the victim’s school, the Secretary of State’s Office, the Department of Public Aid, and with the family of an old boyfriend of the victim. On a lead that the victim might be with an ex-boyfriend 40 miles away, a police detective visited the address but the victim had not been there. The State’s efforts to find the victim continued until March 28, the day of the hearing on the State’s motion. That morning, the victim’s mother informed the detective that the victim had called approximately two weeks earlier saying that she did not want to testify and would not return. The victim’s mother said that she still did not know where the victim was or how to contact her. The trial court granted the State’s motion and admitted the victim’s earlier testimony. The defendant was found guilty of sexual assault. On appeal, the state appellate court agreed that the victim was unavailable and that the trial court had properly admitted her prior testimony. The defendant then filed a petition for a writ of habeas corpus arguing that the state court had unreasonably applied clearly established Supreme Court precedents holding that the confrontation clause precludes the admission of the prior testimony of an allegedly unavailable witness unless the prosecution made a good-faith effort to obtain the declarant’s presence at trial. The federal district court denied the petition; the Seventh Circuit reversed.
The Court began its analysis by noting that under Barber v. Page, 390 U. S. 719 (1968), “a witness is not ‘unavailable’ for purposes of the . . . confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Here, the state court holding that the prosecution conducted the requisite good-faith search for the victim was not an unreasonable application of its precedents. The Seventh Circuit found that the State’s efforts were inadequate for three main reasons. First, it faulted the State for failing to contact the victim’s current boyfriend or any of her other friends in the area. But, the Court noted, there was no evidence suggesting that these individuals had information about her whereabouts. Second, the Seventh Circuit criticized the State for not making inquiries at the cosmetology school where the victim had been enrolled. However, because the victim had not attended the school for some time, there is no reason to believe that anyone there had better information about her location than did her family. Finally, the Seventh Circuit found that the State’s efforts were insufficient because it failed to serve her with a subpoena after she expressed fear about testifying at the retrial. The Court noted: “We have never held that the prosecution must have issued a subpoena if it wishes to prove that a witness who goes into hiding is unavailable for Confrontation Clause purposes, and the issuance of a subpoena may do little good if a sexual assault witness is so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial.” It concluded: “when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence, but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.” (citation omitted).
(1) In this murder, robbery and assault case, the trial court properly found that a witness was unavailable to testify under Evidence Rule 804 and the Confrontation Clause. The witness, Montes, was arrested in connection with the crimes at issue. She cooperated with officers and gave a statement that incriminated the defendant. She agreed to appear in court and testify against the defendant, but failed to do so. Her whereabouts were unknown to her family, her bondsman and the State. The State successfully moved to allow her recorded statement into evidence on grounds that she was unavailable and that the defendant forfeited his constitutional right to confrontation due to his own wrongdoing. The defendant was convicted and appealed. Considering the issue, the court noted that the evidence rule requires that a finding of unavailability be supported by evidence of process or other reasonable means. To establish unavailability under the Confrontation Clause, there must be evidence that the State made a good-faith effort to obtain the witness’s presence at trial. Here, the State delivered a subpoena for Montes to her lawyer, and Montes agreed to appear in court to testify against the defendant. These findings support a conclusion both that the State used reasonable means and made a good-faith effort to obtain the witness’s presence at trial.
(2) The trial court properly found that the defendant forfeited his Confrontation Clause rights through wrongdoing. The relevant standard for determining forfeiture by wrongdoing is a preponderance of the evidence and the State met this burden. Here, the defendant made phone calls from jail showing an intent to intimidate Montes into not testifying, and threatened another testifying witness. Additionally, his mother and grandmother, who helped facilitate his threatening calls to Montes, showed up at Montes’ parents’ house before trial to engage in a conversation with her about her testimony. The trial court properly found that the net effect of the defendant’s conduct was to pressure and intimidate Montes into not appearing in court and not testifying.
In a case in which there was a dissenting opinion, the court held that the trial court erred by admitting a non-testifying witness’s pretrial deposition testimony. (1) The trial court’s finding were insufficient to establish that the witness was unavailable for purposes of the Rule 804(b)(1) hearsay exception and the Confrontation Clause. The entirety of the trial court’s findings on this issue were: “The [trial court] finds [the witness] is in the military and is stationed outside of the State of North Carolina currently. May be in Australia or whereabouts may be unknown as far as where she’s stationed.” The trial court made no findings that would support more than mere inference that the State was unable to procure her attendance; made no findings concerning the State’s efforts to procure the witness’s presence at trial; and made no findings demonstrating the necessity of proceeding to trial without the witness’s live testimony. The trial court did not address the option of continuing trial until the witness returned from deployment. It did not make any finding that the State made a good-faith effort to obtain her presence at trial, much less any findings demonstrating what actions taken by the State could constitute good-faith efforts. It thus was error for the trial court to grant the State’s motion to admit the witness’ deposition testimony in lieu of her live testimony at trial. (2) The court went on to find that even if the trial court’s findings of fact and conclusions had been sufficient to support its ruling, the evidence presented to the trial court was insufficient to support an ultimate finding of “unavailability” for purposes of Rule 804. It noted in part that the State’s efforts to “effectuate [the witness’s] appearance” were not “reasonable or made in good faith.” (3) A witness’s pretrial deposition testimony, taken in preparation of the criminal case, was clearly testimonial for purposes of the Confrontation Clause. (4) The court found that the facts of the case did not support a finding that the witness was unavailable under the Confrontation Clause. In this respect, the court noted that no compelling interest justified denying the defendant’s request to continue the trial to allow for the witness’s live testimony. It added: “The mere convenience of the State offers no such compelling interest.” It continued: “We hold that . . . in order for the State to show that a witness is unavailable for trial due to deployment, the deployment must, at a minimum, be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.” (quotation omitted).
In this Wake County case, defendant appealed his convictions for statutory rape, statutory sexual offense, and indecent liberties with a child, arguing the admission of hearsay cellphone records violated his rights under the Confrontation Clause of the Sixth Amendment. The Court of Appeals agreed, vacating the judgment and remanding for a new trial.
In 2022, defendant came to trial for having sex with a thirteen-year-old girl during the summer of 2019. At trial, the State offered cellphone records showing calls between a number associated with defendant and a number associated with the victim as Exhibits #2 and #3. Defendant was subsequently convicted of all charges, and defendant appealed. The Court of Appeals issued an opinion on October 17, 2023, which was subsequently withdrawn and replaced by the current opinion.
Considering defendant’s Sixth Amendment argument, the court quoted State v. Locklear, 363 N.C. 438 (2009), for the concept that the Confrontation Clause “bars admission of direct testimonial evidence, ‘unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant.’” Slip Op. at 7-8. When determining whether a defendant’s Confrontation Clause rights were violated, courts apply a three-part test: “(1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and, (3) whether defendant had an opportunity to cross-examine the declarant.” Id. at 8. Here, “[t]he trial court’s findings answered the first and second factors . . . in the affirmative and the third factor in the negative,” meaning “the evidence should have been excluded.” Id. at 9.
The court went on to explain why the admission of the two exhibits was improper under the residual exception in Rule of Evidence 803(24), noting that “[t]he primary purpose of the court-ordered production of and preparation of the data records retained and provided by Verizon was to prepare direct testimonial evidence for Defendant’s trial.” Id. at 13. Because defendant was “not given the prior opportunity or at trial to challenge or cross-examine officials from Verizon, who had purportedly accumulated this evidence . . . their admission as such violated Defendant’s rights under the Confrontation Clause.” Id.
After establishing that admission of the exhibits was error, the court explained that the State could not meet the burden of showing the error was “harmless beyond a reasonable doubt” as required for constitutional errors. Id. at 14. As a result, the court vacated the judgment and remanded for a new trial.
In this Edgecombe County case, defendant appealed his convictions of obtaining property by false pretenses and exploitation of a disabled or elderly person in a business relationship. The Court of Appeals found no error and affirmed defendant’s convictions.
Defendant approached an 88-year-old woman at her home and offered to assist her with home improvement work. After claiming to perform several tasks and having the homeowner agree to invoices, an investigation determined that defendant did not perform the work he claimed, and he was indicted for the charges in this matter. Before the criminal trial, the elderly homeowner filed for a civil no-contact order against defendant. Defendant did not appear at the hearing and did not cross-examine any witnesses; the no-contact order was entered against defendant at the conclusion of the hearing. Defendant subsequently filed motions attempting to inspect the property in question, and the trial court denied those motions. The homeowner died prior to the criminal trial and the trial court entered an order admitting her testimony from the no-contact civil hearing.
Defendant’s appeal asserted two errors by the trial court: (1) admission of the testimony of the homeowner from the civil hearing, and (2) denial of his motion to inspect the property. The Court of Appeals first considered the admission of testimony and the confrontation clause issues involved, applying the three-prong test articulated in State v. Clark, 165 N.C. App. 279 (2004). The court determined that defendant did have a meaningful opportunity to cross-examine the homeowner in the civil hearing, but he did not take advantage of that opportunity. Because that hearing was on matters substantially similar to the criminal trial, defendant waived his opportunity by not cross-examining the homeowner. The similarity of matters also supported the court’s hearsay analysis, as it found that the testimony was admissible under the exception in North Carolina Rule of Evidence 804(b)(1). The court also found that the admission of the no-contact order did not represent plain error under N.C.G.S. § 1-149 and was not a violation of defendant’s due process rights.
Considering defendant’s second issue, the court explained that there is no general right to discovery in a criminal case, and defendant identified no clear grounds for discovery to be required in this matter. AlthoughState v. Brown, 306 N.C. 151 (1982), provides criminal defendants may have a right to inspect a crime scene under limited circumstances, the court distinguished defendant’s situation from Brown. Specifically, defendant performed the work here himself and was not deprived of the ability to find exculpatory evidence, as he would have firsthand knowledge of the work and locations in question. The court found no right to inspect the property in this case and no error by the trial court in denying defendant’s request.
No violation of the defendant’s confrontation rights occurred when the trial court admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The witness was unavailable and the defendant had a prior opportunity to cross-examine her at the plea hearing.
Defense counsel’s cross-examination of a declarant at a probable cause hearing satisfied Crawford’s requirement of a prior opportunity for cross-examination.
Certiorari was granted in this case four days after the Court decided Melendez-Diaz. The case presented the following question: If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause by providing that the accused has a right to call the analyst as his or her own witness? The Court’s two-sentence per curiam decision vacated and remanded for “further proceedings not inconsistent with the opinion in Melendez-Diaz.”
In this federal death penalty case, the court relied on Williams v. New York, 337 U.S. 241 (1949), to hold that the confrontation clause does not apply in the sentence selection phase (where the jury exercises discretion in selecting a life sentence or the death penalty) of a federal capital trial. The court noted that under the Federal Death Penalty Act, the jury finds the facts necessary to support the imposition of the death penalty in the guilt and eligibility phases of trial and that “[i]t is only during th[o]se phases that the jury makes ‘constitutionally significant’ factual findings.” The court’s holding pertained only to the sentence selection phase.
In a substitute analyst case, the court per curiam and for the reasons stated in Ortiz-Zape (above, under substitute analysts), reversed the Court of Appeals’ decision in State v. Hurt, 208 N.C. App. 1 (2010) (applying Crawford to a non-capital Blakely sentencing hearing in a murder case and holding that Melendez-Diaz prohibited the introduction of reports by non-testifying forensic analysts pertaining to DNA analysis). Reversing on other grounds, the court did not indicate that Crawford was inapplicable to a non-capital sentencing proceeding.
The defendant was placed on 36 months of supervised probation after pleading guilty to one count of conspiracy to obtain property by false pretenses. The defendant’s probation officer subsequently filed a violation report alleging that the defendant had violated his probation by using illegal drugs, and an addendum alleging that the defendant had absconded from probation. At the violation hearing, the defendant admitted to using illegal drugs, but denied that he absconded. The state presented testimony at the violation hearing from a probation officer who was not involved in supervising the defendant, but read from another officer’s notes regarding the defendant’s alleged violations. The trial court found the defendant in violation, revoked his probation for absconding, and activated his suspended 10 to 21 month sentence. The defendant filed a pro se notice of appeal, which was defective, but the court granted his petition for writ of certiorari and addressed the merits.
On appeal, the defendant argued that his confrontation rights under G.S. 15A-1345(e) were violated when the trial court allowed another probation officer to testify from the supervising officer’s notes, over the defendant’s objection. However, at the hearing the defendant did not state that the objection was based on his statutory confrontation right, nor did he request that the supervising officer be present in court or subjected to cross-examination. The court held that, at most, it could be inferred that the defendant’s objection was based on hearsay grounds or lack of personal knowledge. The court rejected the defendant’s argument that the issue was preserved despite the absence of an objection because the trial court acted contrary to a statutory mandate, per State v. Lawrence, 352 N.C. 1 (2000). In this case, the trial court did not act contrary to the statute because the objection made at the hearing was insufficient to trigger the trial court’s obligation to either permit cross-examination of the supervising officer or find good cause for disallowing confrontation. Therefore, the officer’s testimony based on the notes in the file was permissible, and it established that the defendant left the probation office without authorization on the day he was to be tested for drugs, failed to report to his probation officer, did not respond to messages, was not found at his residence on more than one occasion, and could not be located for 22 days. Contrasting these facts with State v. Williams, 243 N.C. App. 198 (2015), in which the evidence only established that the probationer had committed the lesser violation of failing to allow his probation officer to visit him at reasonable times, the evidence here adequately showed that the defendant had absconded. The court therefore affirmed the revocation, but remanded the case for correction of a clerical error because the order erroneously indicated that both violations justified revocation, rather than only the absconding per G.S. 15A-1344(d2).
(1) In this murder, robbery and assault case, the trial court properly found that a witness was unavailable to testify under Evidence Rule 804 and the Confrontation Clause. The witness, Montes, was arrested in connection with the crimes at issue. She cooperated with officers and gave a statement that incriminated the defendant. She agreed to appear in court and testify against the defendant, but failed to do so. Her whereabouts were unknown to her family, her bondsman and the State. The State successfully moved to allow her recorded statement into evidence on grounds that she was unavailable and that the defendant forfeited his constitutional right to confrontation due to his own wrongdoing. The defendant was convicted and appealed. Considering the issue, the court noted that the evidence rule requires that a finding of unavailability be supported by evidence of process or other reasonable means. To establish unavailability under the Confrontation Clause, there must be evidence that the State made a good-faith effort to obtain the witness’s presence at trial. Here, the State delivered a subpoena for Montes to her lawyer, and Montes agreed to appear in court to testify against the defendant. These findings support a conclusion both that the State used reasonable means and made a good-faith effort to obtain the witness’s presence at trial.
(2) The trial court properly found that the defendant forfeited his Confrontation Clause rights through wrongdoing. The relevant standard for determining forfeiture by wrongdoing is a preponderance of the evidence and the State met this burden. Here, the defendant made phone calls from jail showing an intent to intimidate Montes into not testifying, and threatened another testifying witness. Additionally, his mother and grandmother, who helped facilitate his threatening calls to Montes, showed up at Montes’ parents’ house before trial to engage in a conversation with her about her testimony. The trial court properly found that the net effect of the defendant’s conduct was to pressure and intimidate Montes into not appearing in court and not testifying.
The trial court properly applied the forfeiture by wrongdoing exception to the Crawford rule. At the defendant’s trial for first-degree murder and kidnapping, an eyewitness named Wilson was excused from testifying further after becoming distraught on the stand. The trial court determined that Wilson’s testimony would remain on the record under the forfeiture by wrongdoing exception and denied the defendant’s motion for a mistrial. At a hearing on the issue Wilson disclosed that, as they were being transported to the courthouse for trial, the defendant threatened to kill Wilson and his family. A detention officer testified that she heard the threat. Also, in a taped interview with detectives and prosecutors, Wilson repeatedly expressed concern for his life and the lives of his family members. Finally, the defendant made several phone calls that showing an intent to intimidate Wilson. In one call to his grandmother, the defendant repeatedly referred to Wilson as “nigger” and said he would “straighten this nigger out”. During the phone calls, the defendant joked about the “slick moves” he used to prevent Wilson from testifying. In other calls, the defendant instructed acquaintances to come to court to intimidate Wilson while he was testifying. One of those acquaintances said he would be in court on the morning of 2 March 2011. On that date, Wilson, who already had been hesitant and fearful on the stand, became even more emotional and “broke down” upon seeing a young man dressed in street clothes indicative of gang attire enter the courtroom. These facts were sufficient to establish that the defendant intended to and did intimidate Wilson. The court rejected the defendant’s argument that application of the doctrine was improper because Wilson never testified that he chose to remain silent out of fear of the defendant. The court stated: “It would be nonsensical to require that a witness testify against a defendant in order to establish that the defendant has intimidated the witness into not testifying. Put simply, if a witness is afraid to testify against a defendant in regard to the crime charged, we believe that witness will surely be afraid to finger the defendant for having threatened the witness, itself a criminal offense.”
In a peeping case, the trial court did not abuse its discretion by allowing the prosecutor to ask leading questions of the victim; the questions were not leading because they did not suggest an answer.
(1) The trial court did not abuse its discretion by allowing the prosecution to use leading questions when examining a child sexual assault victim. The prosecutor was attempting to ask a 14-year-old victim questions about her father’s sexual conduct toward her. She was very reluctant to testify. The prosecutor repeatedly urged the victim to tell the truth, regardless of what her answer would be. The prosecutor attempted to refresh her recollection with her prior statements, but she still refused to specify what the defendant did. The court concluded: “Leading questions were clearly necessary here to develop the witness’s testimony.” (2) The trial court did not err by allowing the prosecutor to ask a 14-year-old child sexual assault victim to write down what the defendant did to her and then allowing the prosecutor to read the note to the jury. Although the child answered some questions, she was reluctant to verbally answer the prosecutor’s question about what the defendant did to her. The prosecutor then asked the victim to write down the answer to the question. The victim wrote that the defendant penetrated her vaginally.
The prosecutor did not impermissibly vouch for the credibility of a State’s witness by asking whether any promises were made to the witness in exchange for his testimony.
The trial judge erred by overruling defense counsel’s objection to a question posed by the prosecutor to a State’s witness alluding to the fact that a superior court judge had found that there was probable cause to search the defendant. The court reiterated the rule that a trial judge’s legal determination on evidence made in a hearing outside of the jury’s presence should not be disclosed to the jury.
The trial court erred when it allowed the State to question its witness on direct examination about whether she had told the truth.
Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Cross-Examination, Generally
(1) In the guilt phase of a capital trial, the trial court did not err by limiting the defendant’s re-cross-examination of law enforcement officers about whether an alleged accomplice cooperated with the police. The defendant failed to establish how the accomplice’s cooperation was relevant to the defendant’s guilt. Furthermore, the State’s questioning did not elicit responses that required explanation or rebuttal or otherwise opened the door for the defendant’s questions. (2) In the sentencing phase of a capital trial, the trial court did not abuse its discretion by overruling the defendant’s objection to the State’s cross-examination of a defense expert seeking to elicit a concession that other experts might disagree with his opinions regarding whether the defendant was malingering. (3) In the sentencing phase of a capital trial, the trial court did not err by failing to intervene ex mero motu when the prosecutor asked the defendant’s expert witness whether he was ethically obligated to record the defendant’s test results on a score sheet and about the defendant’s scores in the scale for violence potential.
In this impaired driving second-degree murder case, the trial court did not err by preventing the defendant from cross-examining witness Cooke regarding the contents of a verified complaint that Cooke had filed against the defendant and the estate of the deceased victim on behalf of himself and Cooke’s son, who was injured in the crash. The State filed a motion in limine to prevent the defendant from cross-examining Cooke regarding the contents of the verified civil complaint. The trial court granted the State’s motion and prohibited the defendant from cross-examining Cooke regarding the allegations in the complaint or about any bias that might result from Cooke’s financial interest in the defendant’s prosecution. Cooke was called by the State to testify about his family and the child’s injuries. The State did not elicit any testimony from him regarding cause of the crash and he did not offer any testimony that would tend to sway the jury in deciding the defendant’s guilt. The defendant failed to show that the trial court’s decision to limit the scope of cross-examination influenced the jury’s verdict.
In a felony assault and robbery case, no plain error occurred when the trial court ruled that the defendant could not question the victim about an unrelated first-degree murder charge pending against him in another county at the time of trial. Normally it is error for a trial court to bar a defendant from cross-examining a State’s witness regarding pending criminal charges, even if those charges are unrelated to those at issue. In such a situation, cross-examination can impeach the witness by showing a possible source of bias in his or her testimony, to wit, that the State may have some undue power over the witness by virtue of its ability to control future decisions related to the pending charges. However, in this case the plain error standard applied. Given that the victim’s “credibility was impeached on several fronts at trial” the court found that no plain error occurred. Moreover the court noted, the victim’s most important evidence—his identification of the defendant as the perpetrator—occurred before the murder allegedly committed by the victim took place. As such, the court reasoned, his identification could not have been influenced by the pending charge. For similar reasons the court rejected the defendant’s claim that counsel rendered ineffective assistance by failing to object to the State’s motion in limine to bar cross-examination of the victim about the charge.
In a child sexual assault case in which the victim was the defendant’s son, the trial court erred by allowing the State to cross-examine the defendant with questions summarizing the results of a psychological evaluation, not admitted into evidence, that described the defendant as a psychopathic deviant. The evaluation was done by Milton Kraft, apparently in connection with an investigation and custody case relating to the son. Kraft did not testify at trial and his report was not admitted into evidence. The court rejected the State’s argument that the defendant opened the door to the questioning. The noted testimony occurred on redirect and thus could not open the door to cross-examination. Through cross-examination the State placed before the jury expert evidence that was not otherwise admissible.
Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Cross-Examination of Expert Regarding Fees
In this homicide case, the trial court did not err by allowing the State to question the defendant’s expert witness on automatism regarding the amount of fees he received for testifying in other, unrelated criminal cases. The challenged evidence was relevant to “test partiality towards the party by whom the expert was called.” It explained: “From the large sums of money that [the defendant]’s expert earned by testifying solely on behalf of criminal defendants, a reasonable jury could infer that the expert had an incentive to render opinions favorable to the criminal defendants who employ him.”
The trial court erred by preventing the defendant from making any inquiry into the compensation paid to the State’s expert witness. “The source and amount of a fee paid to an expert witness is a permissible topic for cross-examination, as it allows the opposing party to probe the witnesses’ partiality, if any, towards the party by whom the expert was called.” However, the defendant failed to show “harmful prejudice.”
Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Impeachment, Extrinsic Evidence
The trial court did not abuse its discretion by sustaining the State’s objection to the introduction of an unauthenticated screenshot to impeach the victim’s credibility. Although it was permissible for counsel to ask the defendant questions about the screenshot, he could not impeach the victim’s credibility with extrinsic evidence to prove the contents of the screenshot where no foundation had been laid and the materiality of the post had not been demonstrated.
In this child sexual abuse case, the trial court did not impermissibly allow the State to use extrinsic evidence to impeach the defendant on a collateral matter. On cross-examination, the defendant denied that she had told anyone that the victim began masturbating at an early age, given the victim a vibrator, or taught the victim how to masturbate. In rebuttal, the State called a social worker to testify that the defendant told her that the victim started masturbating at age seven or eight and that she gave the victim a vibrator. The defendant’s prior statements were not used solely to impeach but as substantive evidence in the form of admissions.
The trial court did not err by admitting a witness’s out of court statements. When a State’s witness gave trial testimony inconsistent with his prior statements to the police, the State cross-examined him regarding his prior statements. After the witness denied making the statements, the trial court overruled a defense objection and admitted, for purposes of impeachment by the State, a transcript of the witness’s prior statements. The court rejected the argument that this constituted improper use of extrinsic evidence for impeachment. The rule against using extrinsic evidence to impeach a witness on collateral matters prohibits the introduction of the substance of a prior statement to impeach a witness’s denial that he or she made the prior statement because the truth or falsity of that denial was a collateral matter. However, when the witness not only denies making the prior statements but also testifies inconsistently with them, the rule does not prohibit impeaching a witness’s inconsistent testimony with the substance of the prior statements. Here, the substance of the witness’s prior statements properly was admitted to impeach his inconsistent testimony, not his denial.
Once a witness denies having made a prior inconsistent statement, a party may not introduce the prior statement in an attempt to discredit the witness because the prior statement concerns only a collateral matter, i.e., whether the statement was ever made. Here, the defendant cross-examined a witness named Morgan regarding statements Morgan supposedly made to a person named Daughtridge. Morgan admitted making some statements to Daughtridge but denied telling Daughtridge, among other things that the victim had a gun on the day of the shooting. The defendant argued that he should have been allowed to impeach Morgan by introducing a tape recording of a statement Daughtridge gave to the police in which she said that Morgan told her that the victim had a gun on the day of the shooting. Under Rule 608(b), the defendant was limited to Morgan’s answers on cross-examination.
Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Impeachment, Evidence of Bias
On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 818 S.E.2d 718 (2018), the Supreme Court held that the trial court violated the defendant’s Sixth Amendment right to confront witnesses against him. In this murder, robbery with a dangerous weapon, and possession of a firearm by a felon case, the trial judge erred by limiting the defendant’s ability to question the State’s principal witness about whether she expected to receive a favorable plea offer for drug trafficking charges pending in Guilford County in exchange for her testimony against the defendant in Forsyth County. In a voir dire hearing, the defendant showed that prosecutors in the two counties had been in touch by email and discussed a possible plea deal for the witness in Guilford based on her testimony at the defendant’s trial. By limiting the witness’s testimony about this possible deal, the trial court prohibited the jury from considering evidence that could have shown bias on the witness’s part, and thus violated the defendant’s confrontation rights. The court distinguished previous cases in which it had deemed similar errors harmless, reasoning that this involved a limit on the testimony of the State’s principal witness. Moreover there was no physical evidence linking the defendant to the crime and no other witness placing him at the scene. As a result, the court concluded that the trial judge’s error was not harmless beyond a reasonable doubt and affirmed the Court of Appeals’ decision to vacate the verdict and order a new trial.
Justice Ervin, joined by Justice Newby, dissented, writing that the trial judge allowed ample cross-examination of the witness about her pending charges in Guilford County, and that the limitations the court imposed were an appropriate exercise of its discretion to control the scope and extent of cross-examination to prevent confusion and eliminate undue repetition.
In this capital case, the trial court did not err by allowing the State to elicit testimony that defense counsel had previously hired the State’s expert to testify on behalf of another client. The defendant argued that this allowed the State to improperly vouch for its expert’s credibility. The State’s expert testified that he disagreed with a defense expert’s opinion that the defendant suffers from mild intellectual disability. In light of the differences between the experts’ opinions it was proper to elicit testimony regarding potential witness bias or lack thereof. The court noted:
Although the trial court might have been better advised to have exercised its discretionary authority pursuant to . . . Rule 403, to limit the scope of the prosecutor’s inquiry to whether [the State’s expert] had previously worked for counsel representing criminal defendants in general rather than specifically identifying one of defendant’s trial counsel as an attorney to whom [the expert] had provided expert assistance, we are unable to say, given the record before us in this case, that the challenged testimony constituted impermissible prosecutorial vouching for [the expert]’s credibility or that the trial court erred by refusing to preclude the admission of the challenged testimony.
The trial court abused its discretion by excluding, at a retrial, evidence of remarks that the lead investigator, Detective Roberts, made to a juror at the defendant’s first trial. After the defendant’s conviction, he filed a motion for appropriate relief (MAR) alleging that his trial had been tainted because of improper communication between Roberts and a juror, Deputy Hughes. At a hearing on the MAR, the defendant presented evidence that when his case was called for trial Hughes was in the pool of prospective jurors. While in custody awaiting trial, Hughes had twice transported the defendant to Central Prison in Raleigh. On one of those trips, the defendant told Hughes that he had failed a polygraph examination. Also, Hughes had assisted Roberts in preparing a photographic lineup for the investigation. While undergoing voir dire, Hughes acknowledged that he knew the defendant and had discussed the case with him. While he had misgivings about being a juror, Hughes said that he believed he could be impartial. Because the defendant insisted that Hughes remain on the jury, his lawyer did not exercise a peremptory challenge to remove Hughes from the panel. The evidence at the MAR hearing further showed that during a break in the trial proceedings, Roberts made the following statement to Hughes: “if we have . . . a deputy sheriff for a juror, he would do the right thing. You know he flunked a polygraph test, right?” Hughes did not report this communication to the trial court. Although the trial court denied the MAR, the court of appeals reversed, ordering a new trial. Prior to the retrial, the State filed a motion in limine seeking to suppress all evidence raised in the MAR hearing. Defense counsel opposed the motion, arguing that Roberts’ earlier misconduct was directly relevant to his credibility. The trial court allowed the State’s motion. The defendant was again convicted and appealed. The court of appeals held that the trial court abused its discretion by granting the State’s motion. The supreme court affirmed, holding that the trial court should have allowed defense counsel to cross-examine Roberts regarding his statements to Hughes to show Roberts’ bias against the defendant and pursuant to Rule 608(b) to probe Roberts’ character for untruthfulness. The court went on to reject the State’s argument that the evidence was properly excluded under Rule 403, noting that defense counsel understood that the line of questioning would inform the jurors that the defendant had been convicted in a prior trial but believed the risk was worth taking. Finally, the court held that the trial court’s error prejudiced the defense given Roberts’ significant role in the case.
In this child sexual assault case, the trial court erred by excluding evidence which tended to show the victim’s mother’s bias against the defendant. After concluding that the defendant failed to preserve his challenges with respect to three pieces of impeachment evidence, the court concluded that exclusion of impeachment evidence that the mother had previously accused the defendant of domestic abuse constituted error. The evidence at issue showed that the mother had accused the defendant of domestic violence, that the police declined to prosecute, that she subsequently took out a private warrant, and that she failed to prosecute those charges. The court agreed that exclusion of this evidence was error, explaining: “Evidence that Mother had accused Defendant of domestic violence could have indicated Mother’s bias against Defendant and may have influenced the jury’s assessment of her credibility as a witness.” However, considering the entire record, the court went on to conclude that there was no reasonable possibility that had the jury heard the evidence a different result would have been reached at trial.
In this child sexual assault case, even if the trial court erred by denying the defendant’s request to admit into evidence three letters to the editor written by the State’s expert witness and published in a newspaper 10 years before the expert’s interview with the child in question, the error was not prejudicial. The defendant contended that the letter showed possible bias or prejudice in child advocacy matters and that he should have been permitted to cross-examine the expert about their content. The court determined however that the defendant had failed to demonstrate a reasonable possibility that a different result at trial would have occurred if the letters have been admitted.
In a felony assault and robbery case, no plain error occurred when the trial court ruled that the defendant could not question the victim about an unrelated first-degree murder charge pending against him in another county at the time of trial. Normally it is error for a trial court to bar a defendant from cross-examining a State’s witness regarding pending criminal charges, even if those charges are unrelated to those at issue. In such a situation, cross-examination can impeach the witness by showing a possible source of bias in his or her testimony, to wit, that the State may have some undue power over the witness by virtue of its ability to control future decisions related to the pending charges. However, in this case the plain error standard applied. Given that the victim’s “credibility was impeached on several fronts at trial” the court found that no plain error occurred. Moreover the court noted, the victim’s most important evidence—his identification of the defendant as the perpetrator—occurred before the murder allegedly committed by the victim took place. As such, the court reasoned, his identification could not have been influenced by the pending charge. For similar reasons the court rejected the defendant’s claim that counsel rendered ineffective assistance by failing to object to the State’s motion in limine to bar cross-examination of the victim about the charge.
Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Impeachment, Prior Statement
In this Catawba County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and incest with a child, arguing error in excluding a handwritten note that defendant attempted to introduce to attack the alleged victim’s credibility. The Court of Appeals majority agreed with defendant, ordering a new trial.
In April of 2020, the alleged victim ran away from home, eventually telling police that she left because she was angry at defendant for cancelling a sleepover with her friends. She alleged several incidents of sexual abuse by defendant, and a forensic examination found evidence of past sexual trauma. At trial, defendant attempted to attack the victim’s credibility by introducing a handwritten note that she snuck out of her bedroom window one night to meet her boyfriend. Defendant argued the note showed (1) lack of credibility and (2) a possible perpetrator of the assaults, the boyfriend. After voir dire about the note and an extended discussion with the parties, the trial court held the note was inadmissible, noting it was more prejudicial than probative.
Taking up the defendant’s argument, the Court of Appeals majority first established that defendant adequately preserved the objection to the trial court’s ruling, despite a confusing exchange between defense counsel and the trial court regarding the objection. The court then explained the abuse of discretion, holding that “[t]he trial court applied the wrong legal standard because: (1) it failed to engage in the requisite [Rule] 403 balancing; and (2) it failed to find that the Note’s probative value was substantially outweighed by the possibility of unfair prejudice.” Slip Op. at 12 (cleaned up). Because the credibility of the alleged victim was the primary issue at trial, impeachment of her was central to defendant’s case, and “[t]he contradictions within the Note and created by the Note are highly probative of Complainant’s credibility.” Id. at 13. As a result of the trial court’s error, defendant was prejudiced and the court ordered a new trial.
Judge Tyson dissented, and would have applied the plain error standard to reviewing defendant’s argument as it was not properly preserved; the judge also would have held that the Rule 403 conclusion excluding the note was not an abuse of discretion had it been preserved. The lengthy dissent also discusses Rule 412 and defendant’s objections to certain expert testimony.
(1) The trial court did not abuse its discretion by admitting a recording of a witness’s interview with the police for corroboration and impeachment. The witness in question testified for the State. Although much of her testimony was consistent with her earlier interview, it diverged in some respects. The court rejected the defendant’s argument that the State had called the witness in pretext so as to be able to introduce her prior inconsistent statements as impeachment. In this respect it noted the trial court’s finding that her testimony was “90 percent consistent with what she said before.” Additionally the trial court gave appropriate limiting instructions. The court went on to reject the defendant’s argument that admitting the recording for both corroboration and impeachment is “logically contradictory and counterintuitive,” noting that the State did not introduce a single pretrial statement for both corroboration and impeachment; rather, it introduced a recording of the witness’s interview, which included many pretrial statements, some of which tended to corroborate her testimony and some of which tended to impeach her testimony. (2) The trial court did not abuse its discretion by allowing a detective to read portions of the transcript of the recording. The defendant argued that the trial court’s decision to allow the detective to read portions of the transcript that the State believed were not clearly audible from the recording intruded upon the province of the jury. The court concluded, however, that because the detective interviewed the witness, she had personal knowledge of the interview and could testify about it at trial. Additionally, the trial court gave a proper limiting instruction.
In a murder case, the trial court did not abuse its discretion by allowing the State to impeach two witnesses with their prior inconsistent statements to the police. Both witnesses testified that they were at the scene but did not see the defendant. The State then impeached them with their prior statements to the police putting the defendant at the scene, with one identifying the defendant as the shooter. Both of the witnesses’ statements to the police were material and both witnesses admitted having made them. Use of the inconsistent statements did not constitute subterfuge on the State’s part to present otherwise inadmissible evidence, where there was no evidence indicating that the State was not genuinely surprised by the witnesses’ testimony.
Because the witness admitted having made a prior statement to the police, it was not error to allow the State to impeach her with the prior inconsistent statement when she claimed not to remember what she had said and the trial court gave a limiting instruction. The court distinguished the case from one in which the witness denies having made the prior statement. Even if use of the prior inconsistent statement was error, no prejudice resulted.
The trial court did not err by admitting a witness’s out of court statements. When a State’s witness gave trial testimony inconsistent with his prior statements to the police, the State cross-examined him regarding his prior statements. After the witness denied making the statements, the trial court overruled a defense objection and admitted, for purposes of impeachment by the State, a transcript of the witness’s prior statements. The court rejected the argument that this constituted improper use of extrinsic evidence for impeachment. The rule against using extrinsic evidence to impeach a witness on collateral matters prohibits the introduction of the substance of a prior statement to impeach a witness’s denial that he or she made the prior statement because the truth or falsity of that denial was a collateral matter. However, when the witness not only denies making the prior statements but also testifies inconsistently with them, the rule does not prohibit impeaching a witness’s inconsistent testimony with the substance of the prior statements. Here, the substance of the witness’s prior statements properly was admitted to impeach his inconsistent testimony, not his denial.
The State properly impeached the defendant with prior inconsistent statements. In this murder case, the defendant claimed that the child victim drowned in a bathtub while the defendant met with a drug dealer. Although the defendant gave statements prior to trial, he never mentioned that meeting. At trial, the State attempted to impeach him with this fact. The court noted that to qualify as inconsistent, the prior statement must have eliminated “a material circumstance presently testified to which would have been natural to mention in the prior statement.” The court noted that the defendant voluntarily gave the police varying explanations for why the child stopped breathing (he threw up and then stopped breathing after falling asleep; he drowned in the tub). An alleged meeting while the child was in the tub would have been natural to include in these prior statements. Thus, the court concluded, his prior inconsistent statements were properly used for impeachment.
Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Impeachment, Own Witness
The trial court did not abuse its discretion by allowing the State to impeach its own witness where the impeachment was not mere subterfuge to introduce otherwise inadmissible evidence. The court held that it need not decide whether the record showed that the State was genuinely surprised by the witness’s reversal because the witness’s testimony was “vital” to the State’s case and the trial court gave a proper limiting instruction.
The trial court did not err by admitting a witness’s out of court statements. When a State’s witness gave trial testimony inconsistent with his prior statements to the police, the State cross-examined him regarding his prior statements. After the witness denied making the statements, the trial court overruled a defense objection and admitted, for purposes of impeachment by the State, a transcript of the witness’s prior statements. The court rejected the defendant’s argument that the State used the guise of impeaching its own witness as subterfuge for admitting otherwise inadmissible evidence. Distinguishing prior case law, the court noted that the trial judge gave an appropriate limiting instruction, the evidence was important to the State’s case, and nothing suggested that the State expected the witness’s testimony.
Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Corroboration, Statements
In this Cleveland County case, defendant appealed his convictions for statutory sexual offense with a child and indecent liberties with a child, arguing error in (1) admitting testimony containing hearsay from a pediatrician, (2) admitting testimony containing hearsay to “corroborate” a minor victim’s account of abuse, and (3) failing to intervene ex mero motu during the prosecutor’s closing argument. The Court of Appeals found no error in (1), and no prejudicial error in (2)-(3).
Defendant came to trial on the charges in January of 2023, after an investigation by the Cleveland County Department of Social Services into allegations that defendant sexually abused his two daughters. During the trial, defendant’s two daughters both testified about defendant’s actions. Additionally, a pediatrician who examined the two girls testified about statements they made during medical examinations. Defendant’s half-brother also testified, and explained that his step-sister had told him about sexual contact between defendant and the half-brother’s daughter. The daughter also testified about those events at trial, and a signed statement from defendant that was given in 2009 was admitted into evidence. During closing argument, the prosecutor attempted to describe “404(b) evidence” to the jury, and included the following statement: “The best predictor of future behavior is past behavior.” Slip Op. at 6.
Taking up (1), the Court of Appeals first noted the basis of the objection, as the pediatrician testified that the patient, one of defendant’s daughters, told her that defendant had touched her sister in a no-no spot. The prosecution responded to defendant’s objection by arguing that the statement could be admitted under Rule of Evidence 803(4), as a statement offered for medical diagnosis or treatment. Even though the statement referenced the patient’s sister, the court held that it was still offered for medical diagnosis or treatment. Here the pediatrician was conducting an exam that included “a patient’s mental health,” and the patient’s statement “concerned an eyewitness account of her sister’s sexual abuse, which undoubtedly affected [the patient’s] mental health.” Id. at 12.
Moving to (2), the court agreed with defendant that the trial court erred by admitting the hearsay statements, but held that defendant waived his objection. The testimony was framed as “corroborating” a witness’s former statement, but this witness did not testify at trial. Despite the error, the court held that defendant waived his objection because he did not object to other evidence that supported the out of court statements. Because the other evidence was “of a similar character,” including the written statement given by defendant himself, the court held that defendant waived his objection. Id. at 16.
Finally, the court considered (3), noting that the prosecutor’s statement was “the exact propensity purpose prohibited by [Rule of Evidence] 404(b).” Id. at 19. Although this statement was improper, the court did not see prejudice to the defendant, as there was ample evidence of guilt, and defendant did not rebut the presumption that the jury followed the trial court’s instructions.
The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse.
Testimony from one of the witnesses offered as corroboration of the victim’s testimony included details about additional abuse not testified to by the victim. Distinguishing an omission or silence on a subject from direct contradiction, and noting that the “vast majority” of the witness’s corroborating testimony did conform to the victim’s testimony, the court held that the other witness’s testimony was sufficiently similar to the victim’s and the trial court did not abuse its discretion by admitting it for corroborative purposes. Assuming arguendo that it was error, it was not prejudicial, since other witnesses also testified to corroboration that more closely tracked the victim’s trial testimony. Therefore, the defendant did not show there was a reasonable possibility the jury would have evaluated the victim’s credibility differently without this particular witness’s corroboration.
In this murder case, the trial court did not err by admitting a witness’s prior statement to the police to corroborate his in-court testimony. According to the defendant, the prior statement added “critical facts” that were not otherwise shown by the evidence. The court found that many of the critical facts noted by the defendant were actually present in the witness’s testimony. It found that other facts were not critical, noting that slight variations do not render prior statements inadmissible.
The trial court did not err by allowing the introduction of a video recording of the State’s witness being interviewed by law enforcement to corroborate the officer’s prior testimony about the interview.
In this kidnapping and rape case, the defendant’s confrontation rights were not violated when the trial court admitted, for the purposes of corroboration, statements made by deceased victims to law enforcement personnel. The statements were admitted to corroborate statements made by the victims to medical personnel. The court rejected the defendant’s argument that because the statements contained additional information not included in the victims’ statements to medical personnel, they exceeded the proper scope of corroborative evidence and were admitted for substantive purposes. The court noted in part, “the mere fact that a corroborative statement contains additional facts not included in the statement that is being corroborated does not render the corroborative statement inadmissible.”
(1) The trial court did not abuse its discretion by admitting a recording of a witness’s interview with the police for corroboration and impeachment. The witness in question testified for the State. Although much of her testimony was consistent with her earlier interview, it diverged in some respects. The court rejected the defendant’s argument that the State had called the witness in pretext so as to be able to introduce her prior inconsistent statements as impeachment. In this respect it noted the trial court’s finding that her testimony was “90 percent consistent with what she said before.” Additionally the trial court gave appropriate limiting instructions. The court went on to reject the defendant’s argument that admitting the recording for both corroboration and impeachment is “logically contradictory and counterintuitive,” noting that the State did not introduce a single pretrial statement for both corroboration and impeachment; rather, it introduced a recording of the witness’s interview, which included many pretrial statements, some of which tended to corroborate her testimony and some of which tended to impeach her testimony.
In this robbery case, the court held that no plain error occurred when the trial court admitted into evidence for purposes of corroboration a videotape of an interview with the defendant’s accomplice, when the accomplice testified at trial. The defendant asserted that the accomplice’s statements in the videotape contradicted rather than corroborated his trial testimony. The court disagreed noting that the accomplice’s statements during the interview established a timeline of the robberies, an account of how they were committed, and the parties’ roles in the crimes and that all of these topics were covered in his testimony at trial. While the accomplice did add the additional detail during the interview that he likely would not have committed the robberies absent the defendant’s involvement, this did not contradict his trial testimony.
The trial court did not abuse its discretion by allowing the State to admit, for purposes of corroboration, a prior consistent statement made by a State’s witness. The court rejected the defendant’s argument that the prior statement differed significantly from the witness’s trial testimony.
No plain error occurred when the trial court admitted the child victim’s prior statements to corroborate her trial testimony. Any differences between the statements and the victim’s trial testimony were “minor inconsistencies.”
In a case in which the defendant was charged with sexually assaulting his minor child, the court held that no plain error occurred when the trial judge admitted the victim’s prior statements that at the time in question the defendant sexually assaulted both her and her sister. The victim testified at trial that her sister was present when the assault occurred did not state that the sister was assaulted. Although the victim’s prior statements did not exactly mirror her in-court testimony, they did not contradict it and, in fact, the additional information strengthened and added credibility to her version of the events by explaining and expanding upon the sister’s presence during the incident.
A witness’s written statement, admitted to corroborate his trial testimony, was not hearsay. The statement was generally consistent with the witness’s trial testimony. Any points of difference were slight, only affecting credibility, or permissible because they added new or additional information that strengthened and added credibility to the witness’s testimony.
A witness’s out-of-court statement to an officer was properly admitted to corroborate her trial testimony. Although the witness’s out-of-court statement contained information not included in her in-court testimony, the out-of-court statement was generally consistent with her trial testimony and the trial court gave an appropriate limiting instruction.
In a child sexual assault case, prior statements of the victim made to an expert witness regarding “grooming” techniques employed by the defendant were properly admitted to corroborate the victim’s trial testimony. Although the prior statements provided new or additional information, they tended to strengthen the child’s testimony that she had been sexually abused by the defendant.
Officer’s testimony relating an incident of digital penetration described to him by the victim was properly admitted to corroborate victim’s testimony, even though the victim did not mention the incident in her testimony. The victim testified that the first time she remembered the defendant touching her was in the “summer time of 2002” and that he touched her other times including incidents in December 2003 and July 2004. The victim’s established a course of sexual misconduct by defendant and the officer testified to an incident within defendant’s course of conduct that did not directly contradict the victim’s testimony. The officer’s testimony sufficiently strengthened the victim’s testimony to warrant its admission as corroborative evidence.
Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Opening the Door & Related Issues
In this Durham County case, the Supreme Court affirmed the Court of Appeals majority decision upholding defendant’s voluntary manslaughter conviction.
In December of 2016, defendant was driving out of his neighborhood when he was followed by the victim. Defendant was familiar with the victim and felt that the victim was violent and posed a threat to his safety. After the victim cut defendant off and blocked his way forward, defendant backed up, but found himself stuck in a ditch. As the victim approached his car, defendant pulled out a gun and fired at the victim. Defendant hit the victim in the back of the head as he ran from the gunfire, killing him. At trial, defendant argued he was acting in self-defense, despite the fact that no gun was found on the victim. Defense counsel attempted to question the victim’s father about the contents of the victim’s phone, including photos of the victim and friends holding guns. The trial court did not permit this questioning, despite defense counsel’s argument that the State had opened the door to examining this issue after testimony regarding the victim’s happy, friendly nature. On appeal, the Court of Appeals majority found that the trial court properly applied the Rule of Evidence 403 balancing test and excluded the evidence, and that even if this was error, it was not prejudicial. The dissent would have found that the line of questioning opened the door to allowing the phone evidence and that defendant was entitled to a new trial.
The Supreme Court explained the issue on appeal as “whether, if the door was opened, defendant had the right to ask [the victim’s father] specific questions about the cell phone’s contents in front of the jury.” Slip Op. at 11. The Court explained that the concept of opening the door predated the modern rules of evidence, and that frequently the concept was no longer needed due to the structure of the modern rules. Despite the State’s opening the door on “otherwise irrelevant or inadmissible evidence,” the trial court retained the power to act as gatekeeper under Rule 403. Id. at 14. This gatekeeping function is reviewed for abuse of discretion on appeal, a standard that is “a steep uphill climb” for an appealing party. Id. at 15. Here, the trial court struck a balance that the Supreme Court found not an abuse of discretion.
The Court went beyond the abuse of discretion analysis to determine that, even if the trial court committed abuse of discretion, defendant was not prejudiced by the decision and was not entitled to a new trial. Explaining defendant’s conviction, the Court noted that the jury found defendant guilty of voluntary manslaughter, meaning that they found he was acting in self-defense but that he used excessive force when doing so. The Court explained that there was no reasonable way the evidence would have convinced the jury that defendant was acting appropriately, as defendant had never seen or heard about the contents of the victim’s phone prior to the shooting. Id. at 18. Likewise, the evidence would not have supported the jury finding that the victim had a gun or shot at defendant, and could not have rebutted the evidence showing the victim was fleeing from defendant when he was shot in the back. After making this determination, the Court concluded “[t]here is no reasonable possibility that a ruling in defendant’s favor [on the phone evidence] would have led to a different jury verdict.” Id. at 20.
In this Pitt County case, defendant appealed his convictions for statutory sexual offense with a child by an adult, sexual act by a substitute parent or custodian, and indecent liberties with a child, arguing plain error in admitting a detective’s testimony that she could not interview defendant during the investigation. The Court of Appeals found no plain error.
Defendant came to trial for sexual offenses with his adopted daughter. During the trial, the detective who interviewed the victim/daughter testified about her investigation. During this testimony, the detective testified that she had spoken with defendant’s attorney “and was unable to get [defendant] to come in for an interview.” Slip Op. at 6. Defendant did not object to this testimony.
The Court of Appeals rejected defendant’s argument that admitting the detective’s statement was plain error, noting that defense counsel elicited similar testimony on cross-examination. Because defense counsel inquired about the timeline of the investigation and prompted similar testimony from the detective, defendant could not establish plain error from the direct testimony admitted.
In this embezzlement case, the trial court did not commit plain error by allowing a detective to testify regarding the defendant’s post-arrest silence. The defendant opened the door to the testimony by pursuing a line of inquiry on cross-examination centering around the detective’s attempts to contact the defendant before and after her arrest.
In a case involving charges of assault on a law enforcement officer, the trial court did not err by allowing the State to present evidence that an internal police department investigation of the involved officers resulted in no disciplinary actions or demotions. The defendant asserted that this evidence constituted inadmissible hearsay. During a pretrial hearing on the defendant’s motion in limine to exclude this evidence, the defendant noted his intent to open the door during cross-examination and question the officers about their knowledge of the inner workings of such investigations and whether they had conferred with an attorney prior to making their official statements. The trial court noted that this proposed line of questioning would open the door to the State’s introduction of the results of the investigation. However, the defendant maintained his intent to proceed with his line of questioning, and the trial court denied the motion in limine. When the defendant cross-examined the officers about these matters at trial, he opened the door to the evidence at issue.
Because the defendant’s self-serving, exculpatory statement was separate and apart from inculpatory statements he made on other days and that were admitted at trial, the State did not open the door for its admission.
In a case where the defendant was charged with assaulting a court security officer, no error occurred when the State was allowed to cross-examine the defendant about another criminal proceeding in which he was the prosecuting witness and that he referenced in his direct examination. On direct, the defendant explained that he was at the courthouse on the day in question to find out why the prior case had been dismissed. The court concluded that by testifying about the earlier case on direct, he opened the door to cross-examination. The court rejected the defendant’s argument that the evidence detailing dismissal of the charge constituted a “judicial opinion” on his credibility, reasoning: “a charge may be dismissed for a variety of reasons; for example, a witness’s unimpeached and credible testimony may simply not establish the elements of a criminal offense.”
In a murder case, the trial court did not err by admitting testimony concerning nine-millimeter ammunition and a gun found at the defendant’s house. Evidence concerning the ammunition was relevant because it tended to link the defendant to the scene of the crime, where eleven shell casings of the same brand and caliber were found, thus allowing the jury to infer that the defendant was the perpetrator. The trial court had ruled that evidence of the gun—which was not the murder weapon—was inadmissible and the State complied with this ruling on direct. However, in order to dispel any suggestion that the defendant possessed the nine-millimeter gun used in the shooting, the defendant elicited testimony that a nine-millimeter gun found in his house, in which the nine-millimeter ammunition was found, was not the murder weapon. The court held that the defendant could not challenge the admission of testimony that he first elicited.
In this child sexual abuse case, the trial court did not err by allowing the State to ask a DSS social worker about a 2009 DSS petition alleging that the victim was neglected, sexually abused and dependent where the defendant opened the door to this testimony. Before the witness testified, the defendant had cross-examined two child witnesses about their testimony at the 2009 DSS hearing, pointing out inconsistencies. This cross-examination opened the door for the State to ask the DSS social worker about the 2009 hearing.
(1) In this child sexual abuse case, the trial court did not err by allowing an emergency room doctor who examined one of the children to testify to the child’s credibility where the defendant elicited this evidence during his own cross-examination. (2) The trial court did not err by allowing into evidence the defendant’s statement that he was investigated in Michigan for similar sexual misconduct decades prior to the current incident. On direct examination the defendant stated that he had “never been in trouble before” and that he had no interaction with the police in connection with a criminal case. These statements opened the door for the State to inquire as to the Michigan investigation.
In a child sexual assault case in which the victim was the defendant’s son, the trial court erred by allowing the State to cross-examine the defendant with questions summarizing the results of a psychological evaluation, not admitted into evidence, that described the defendant as a psychopathic deviant. The evaluation was done by Milton Kraft, apparently in connection with an investigation and custody case relating to the son. Kraft did not testify at trial and his report was not admitted into evidence. The court rejected the State’s argument that the defendant opened the door to the questioning. The noted testimony occurred on redirect and thus could not open the door to cross-examination. Through cross-examination the State placed before the jury expert evidence that was not otherwise admissible.
The court rejected the State’s argument that the defendant opened the door to admission of otherwise inadmissible hearsay evidence (a 911 call). Reversed and remanded for a new trial.
Any error in connection with the admission of statements elicited from a witness on cross-examination was invited. The defendant, having invited error, waived all right to appellate review, including plain error review.
Although some portion of a videotape of the defendant’s interrogation was inadmissible, the defendant opened the door to the evidence by, among other things, referencing the content of the interview in his own testimony.
The defendant could not complain of the victim’s hearsay statements related by an expert witness in the area of child mental health when the defendant elicited these statements on cross-examination.
The defendant opened the door to the State’s cross-examination of a defense expert regarding prior offenses. On direct examination, the defendant’s psychiatric expert reviewed the defendant’s history of mental illness, including mention of his time in prison in 1996 for robbery. Defense counsel presented evidence as to defendant’s time in prison, the year of the crime, the type of crime, defendant’s time on probation, and a probation violation which returned him to prison. On cross-examination, the State questioned the expert about the defendant’s time in prison, the defendant’s previous “pleas which ultimately sent [defendant] to prison[,]” and the exact dates and times of the incidents, one of which led to the defendant’s incarceration. The defendant raised no objection until the State presented police reports from the defendant’s prior robbery conviction. Because the expert had testified about the robbery, the State could inquire into his knowledge of the events which led to the conviction.
Because the State did not offer a portion of a co-defendant’s inadmissible hearsay statement into evidence, it did not open the door to admission of the statement. The only evidence in the State’s case pertaining to the statement was an officer’s testimony recounting the defendant’s response after being informed that the co-defendant had made a statement to the police.
In a sexual exploitation of a minor and indecent liberties case, the defendant opened the door to admission of hearsay statements by the child victim and her babysitter.
In this child sexual assault case, the trial court did not abuse its discretion by denying the defendant’s request to present a rebuttal witness. Because the trial court permitted other testimony that established the same facts that the defendant sought from the rebuttal witness, the defendant failed to show that the trial court abused its discretion.
In a drug trafficking case, the trial court did not abuse its discretion by allowing the State’s witness to identify the substance as an opium derivative on rebuttal. Under G.S. 15A-1226, a trial judge may, in his or her discretion, permit a party to introduce additional evidence prior to the verdict and offer new evidence which could have been offered in the party’s case in chief or during a previous rebuttal as long as the opposing party is permitted further rebuttal.
Remanding for other reasons, the court admonished the trial court to carefully determine the materiality of each purpose for which 404(b) evidence is offered. The trial court had remarked that the incidents could show motive, identity, and common plan or scheme. The court noted: “admission of this evidence was clearly problematic in at least one respect: the trial court failed to determine whether the purposes for which the evidence was offered were at issue.” The court clarified that the defendant’s identity is not at issue when the case hinges on whether the alleged crime occurred, but it may be at issue when the defendant contends someone else committed the alleged crime. Motive is at issue, it explained, when a defendant denies committing the crime charged.
The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed.
The trial court did not err in admitting evidence of a prior similar crime to prove the defendant’s identity under Rules of Evidence 401, 403, and 404. Evidence was presented at trial showing that the defendant committed crimes similar to those for which he was being tried (although he was not formally charged with these other bad acts). The defendant argued there was insufficient evidence that he committed the alleged acts and that the evidence violated the ban on propensity evidence in Rule 404(b). Rejecting this contention, the court found that the modus operandi of the prior crime was substantially similar to the current case and was admissible to show the defendant’s identity as the perpetrator. Specifically, the incidents shared the following characteristics:
(1) [T]he perpetrator wore a Jason-style white hockey mask with holes in it, similar to the one seized from defendant in Colorado; (2) the targets were all suspected drug dealers or living with suspected drug dealers; (3) the attacks all took place at night in the victims’ homes; (4) defendant had an accomplice; and (5) the incidents had both temporal and geographic proximity, most of them taking place within a month or two of each other, and within the same city.
Additionally, forensics from the incident recounted by the 404(b) witness matched the gun found on the defendant in Colorado. “All of this evidence supports a reasoned conclusion defendant was the perpetrator in this incident, and the common modus operandi helps establish his identity in the crimes he was charged with.” This was relevant evidence, and the court did not abuse its discretion in determining the evidence was more probative than prejudicial.
In this drug trafficking case in which the defendant was prosecuted for possessing and transporting drugs in his car, the trial court erred by admitting evidence of drug contraband found in a home. The defendant picked up two boxes from suspected drug trafficker Travion Stokes, put them in his car, was stopped by officers and was charged with drug crimes in connection with controlled substances found in the boxes. The defendant claimed that he did not know what was in the boxes and that he was simply doing a favor for Stokes by bringing them to a home on Shellburne Drive. The police got a warrant for the home at Shellburne Drive and found drug contraband there. The State successfully admitted this evidence over the defendant’s objection at trial under Rule 404(b) to show the defendant’s knowledge that the boxes he was transporting contained controlled substances. Relying on State v. Moctezuma, 141 N.C. App. 90 (2000), the court held this was error, finding that no evidence connected the defendant to the contraband found in the Shellburne Drive home.
In this child sexual assault case, the trial court did not err by admitting Rule 404(b) evidence regarding a sexual assault perpetrated by the defendant on another child, Katy. The case being tried involved vaginal intercourse and other acts with a child victim. The 404(b) evidence involved in anal intercourse with Katy. The State offered Katy’s testimony to establish that the defendant had a common scheme or plan to commit assaults on young females. The trial court allowed the evidence for that purpose. On appeal, the court rejected the defendant’s argument that the acts were too dissimilar, noting: both the victim and Katy are the same sex; the defendant allegedly had forcible intercourse with both victims; the assaults took place in the early morning; and in both incidents, the defendant was a guest in the homes where the children were staying, he entered their bedrooms after midnight, and later bribed them for their silence. The court went on to hold that the evidence was admissible under Rule 403, rejecting the defendant’s argument that testimony of anal intercourse of a child by an adult improperly inflamed the jury.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Sex Acts/Related Conduct With Another
Reversing State v. Beckelheimer, 211 N.C. App. 362 (Apr. 19, 2011), the court held that the trial judge did not err by admitting 404(b) evidence. The defendant was charged with sexual offense and indecent liberties. At the time of the alleged offense the defendant was 27. The victim was the defendant’s 11-year-old male cousin. The victim testified that after inviting him to the defendant’s bedroom to play video games, the defendant climbed on top of the victim and pretended to be asleep. He placed his hands in the victim’s pants, unzipped the victim’s pants, and performed oral sex on the victim while holding him down. The victim testified that on at least two prior occasions the defendant placed his hands on the victim’s genital area outside of his clothes while pretending to be asleep. At trial, witness Branson testified about sexual activity between himself and the defendant. Branson, then 24 years old, testified that when he was younger than 13 years old, the defendant, who was 4½ years older, performed various sexual acts on him. Branson and the defendant would play video games together and spend time in the defendant’s bedroom. Branson described a series of incidents during which the defendant first touched Branson’s genital area outside of his clothes while pretending to be asleep and then reached inside his pants to touch his genitals and performed oral sex on him. Branson also related an incident in which he performed oral sex on the defendant in an effort to stop the defendant from digital anal penetration. The court found that Branson’s testimony was properly admitted to show modus operandi. The conduct was sufficiently similar to the acts at issue given the victim’s ages, where they occurred, and how they were brought about. The court of appeals improperly focused on the differences between the acts rather than their similarities (among other things, the court of appeals viewed the acts with Branson as consensual and those with the victim as non-consensual and relied on the fact that the defendant was only 4½ years older than Branson but 16 years older than the victim). The court went on to conclude that given the similarities between the incidents, the remoteness in time was not so significant as to render the prior acts irrelevant and that the temporal proximity of the acts was a question of evidentiary weight. Finally, the court held that the trial court did not abuse its discretion by admitting the evidence under Rule 403.
In this Gaston County case, defendant appealed his conviction for taking indecent liberties with a child, arguing error in admitting testimony under Rule of Evidence 404(b) that was dissimilar to the crime charged and unfairly prejudicial. The Court of Appeals found no error.
In 2014, defendant fondled a youth member of his church during a worship practice. The minor victim initially reported the abuse to a youth leader at the church, and then learned that defendant had abused another minor in the church. At that point, the victim reported defendant to law enforcement. Before trial, the State moved to introduce evidence of the other youth member abused by defendant under Rule 404(b). The trial court granted the motion, reasoning that the previous abuse was sufficiently similar to the current case and the temporal proximity was “not so remote that it would render the evidence inadmissible in the present case.” Slip Op. at 3.
Taking up defendant’s argument, the Court of Appeals first looked to State v. Beckelheimer, 366 N.C. 127 (2012), for the similarity and temporal requirements applicable to Rule 404(b) evidence. The court concluded that the evidence here met those standards, as the two victims were both young boys of similar in age at the time of the acts, and defendant met and formed his relationships with both through the church. When considering proximity, the court noted “[h]ere, the modus operandi of the crime being tried is not only strikingly similar to [the other victim’s] testimony, but also occurred only two years earlier.” Slip Op. at 11. Having determined the evidence was admissible under Rule 404(b), the court then moved to the Rule of Evidence 403 balancing test, determining that the trial court conducted a fair evaluation of the possible prejudice and provided a limiting instruction to “curtail[] the risk of unfair prejudice.” Id. at 13.
In this Wake County case, the defendant was charged with incest and second-degree forcible rape for an offense committed against his niece. The defendant pled guilty to incest, but had a jury trial on the rape charge. At trial, the State offered testimony from a witness, Brittany Mack, who alleged that she had previously been forcibly raped by the defendant numerous times, including five days prior to the acts giving rise to the defendant’s current charge. The defendant filed a motion in limine seeking to exclude that testimony under Rule 404(b). The trial court heard arguments on that motion but reserved ruling on it until after the victim in the present case testified at trial. After the present victim testified that the defendant had intercourse with her while she was blacked out after drinking alcohol, the trial court ruled that the 404(b) evidence of the defendant’s sexual assault on Brittany Mack would be admissible for the limited purposes of showing the absence of mistake, lack of consent and intent. The trial court also conducted a Rule 403 balancing test and concluded that the proffered evidence was sufficiently similar and close in time to be more probative than prejudicial. After Mack testified, the trial court instructed the jury that her testimony could be considered solely for the purpose of showing an absence of mistake or that the defendant had the intent to commit the crime charged in this case. The defendant was convicted. On appeal, he argued that the trial court erred in allowing testimony regarding the prior alleged rapes because they were not relevant to any material element of the present charge of second-degree forcible rape, and that the trial court abused its discretion in weighing the testimony’s prejudicial effect.
(1) The Court of Appeals concluded that the trial court did not err when it deemed Mack’s testimony relevant under Rule 401. Though the type of force allegedly applied in the prior incident (Mack testified that the defendant “threw her on his bed” and forced her to have sex against her will) was different from the evidence of physical helplessness at issue in the present case, the Court of Appeals noted that physical helplessness still implies force and a lack of consent. Because force and consent are relevant issues in any second-degree forcible rape case, the Court held that the testimony about the prior alleged offense was relevant to prove that the defendant did not mistake the present victim’s actions and inactions as consent.
(2) The Court also concluded that the trial court did not abuse its discretion when weighing the probative value of Mack’s testimony against the danger of unfair prejudice. The trial judge heard testimony on voir dire, instructed the jury on the limited purpose of the testimony, and acknowledged that the prior alleged acts most recently occurred five days prior to the present offense. The Court of Appeals thus found no error and affirmed the defendant’s conviction.
In this child sexual assault case, the trial court did not err by admitting 404(b) evidence. In 2016, the victim reported to law enforcement that the defendant sexually assaulted her many times when she was a child, including a final incident on or about May 2004 when she was 12 years old. During the ensuing investigation, the victim recorded the defendant making incriminating statements. The defendant was indicted for first-degree sex offense with a child for the 2004 incident. At trial, the victim testified to the May 2004 incident, describing digital penetration. The victim also testified to an incident of digital penetration by the defendant that occurred a month or two prior to the May 2004 incident (“the bed incident”), and to another incident of digital penetration about two years earlier (the “Lick Mountain incident”). The victim also testified about watching pornography with the defendant on multiple occasions prior to the May 2004 incident during which the defendant would put her hand on his penis. Additionally the recorded conversation between the victim and the defendant was introduced at trial. In that recording the defendant asked the victim if she remembered “[t]he first hand [ride] you ever took” and admitted remembering watching pornography with the victim. The defendant was found guilty and he appealed.
The court found that evidence of the bed incident and the Lick Mountain incident were properly admitted under Rule 404(b). All three incidents involved the same victim, the same type of penetration, and all occurred while the victim was under the defendant’s supervision. Thus the incidents were sufficiently similar to the one in question to show a common scheme or plan to take advantage of the victim by digitally penetrating her while she was under his control.
The court rejected the defendant’s argument that the Lick Mountain incident was too remote in time to the May 2004 incident. Although that incident occurred 2 or 3 years prior, that period of time did not eliminate the probative value of the incident, particularly in light of its striking similarity to the May 2004 incident.
The court also rejected the argument that the trial court abused its discretion by allowing evidence of the bed incident and Lick Mountain incidents over a Rule 403 objection.
With respect to the portion of the recording regarding the “hand ride,” the defendant argued that this evidence was inadmissible because the date of the incident was not provided. The court concluded however that because of the similarity of this incident to the other events, the trial court did not err by admitting the statement on grounds of temporal proximity.
With respect to the evidence regarding watching pornography together, the court held that even assuming this evidence was erroneously admitted, the defendant failed to establish prejudice in light of the overwhelming evidence of guilt.
In this child abuse case, the trial court did not abuse its discretion by admitting evidence regarding consensual sexual activity between the defendant and his wife. Here, after the child described to the wife a sexual act performed by the defendant, the wife signed a statement indicating that she and the defendant had engaged in the same act. The act in question was to turn her over on her stomach and “hump” and ejaculate on her back. The wife’s testimony was admissible to show common scheme or plan, pattern and/or common modus operandi and was sufficiently similar to the child’s allegation of sexual abuse. The court distinguished this case from one involving “a categorical or easily-defined sexual act” such as anal sex. Here, the case involved “a more unique sexual act.”
In this felony indecent exposure case where the defendant exposed himself to a 14-year old boy, his mother and grandmother, the trial court did not err by admitting 404(b) evidence from two adult women who testified that the defendant exposed himself in public on other occasions. The court rejected the defendant’s argument that the other acts were insufficiently similar to the charged conduct and only “generic features of the charge of indecent exposure,” noting that the 404(b) testimony revealed that the defendant exposed himself to adult women, who were either alone or in pairs, in or in the vicinity of businesses near the courthouse in downtown Fayetteville, and each instance involved the defendant exposing his genitals with his hand on or under his penis. The court also rejected the defendant’s argument that because the current charge was elevated because the exposure occurred in the presence of a child under 16 and the prior incidents involved adult women, the were not sufficiently similar, noting that the defendant acknowledged in his brief that in this case he did in fact expose himself to an adult woman as well. The court also rejected the defendant’s argument that the evidence should have been excluded under the Rule 403 balancing test.
In this child sexual abuse case, the trial court properly admitted 404(b) evidence from several witnesses. As to two of the witnesses, the defendant argued that the incidents they described were too remote and insufficiently similar. The court concluded that although the sexual abuse of these witnesses occurred 10-20 years prior to trial, the lapses of time between the instances of sexual misconduct involving the witnesses and the victims can be explained by the defendant's incarceration and lack of access to a victim. Furthermore, there are several similarities between what happened to the witnesses and what happened to the victims: each victim was a minor female who was either the daughter or the niece of the defendant's spouse or live-in girlfriend; the abuse frequently occurred at the defendant's residence, at night, and while others slept nearby; and the defendant threatened each victim not to tell anyone. When considered as a whole, the testimony shows that the defendant engaged in a pattern of conduct of sexual abuse over a long period of time and the evidence meets Rule 404(b)’s requirements of similarity and temporal proximity. Testimony by a third witness was properly admitted under Rule 404(b) where it “involved substantially similar acts by defendant against the same victim and within the same time period.” The trial court also performed the proper Rule 403 balancing and gave a proper limiting instruction to the jury.
In a sexual exploitation of a minor case, the trial court did not commit plain error by admitting evidence that the defendant set up a webcam in a teenager’s room; videotaped her dancing in her pajamas; and inappropriately touched her while they rode four-wheelers. Although the court had an issue with the third piece of evidence, it concluded that any error did not rise to the level of plain error.
In a child sex case, the trial court did not err by allowing a child witness, A.L., to testify to sexual intercourse with the defendant. The court found the incidents sufficiently similar, noting among other things, that A.L. was assaulted in the same car as K.C. Although A.L. testified that the sex was consensual, she was fourteen years old at the time and thus could not legally consent to the sexual intercourse. The court found the seven-year gap between the incidents did not make the incident with A.L. too remote.
In a child sex case, the trial court did not err by admitting 404(b) evidence of the defendant’s prior sexual conduct. The court found the prior acts sufficiently similar and that the requirement of temporal proximity was met.
In an involuntary manslaughter case where the victim, who was under 21, died from alcohol poisoning and the defendant was alleged to have aided and abetted the victim in the possession or consumption of alcohol, the trial court did not err by admitting 404(b) evidence that the defendant provided her home as a place for underage individuals, including the victim, to possess and consume alcohol; that the defendant offered the victim and other underage persons alcohol at parties; that the defendant purchased alcohol at a grocery store while accompanied by the victim; and the defendant was cited for aiding and abetting the victim and other underage persons to possess or consume alcohol one week before the victim’s death. The evidence was relevant to prove plan, knowledge, and absence of mistake or accident.
In a child sex case involving a female victim, the trial court did not err by admitting 404(b) evidence in the form of testimony from another female child (E.S.) who recounted the defendant’s sexual activity with her. The evidence was relevant to show plan and intent. Because the defendant’s conduct with E.S. took place within the same time period as the charged offenses and with a young girl of similar age, it tends to make more probable the existence of a plan or intent to engage in sexual activity with young girls. Additionally, the defendant’s plan to engage in sexual activity with young girls was relevant to the charges being tried. Finally, there was no abuse of discretion under the Rule 403 balancing test. On the issue of similarity, the court focused on the fact both E.S. and the victim were the same age and that the defendant was an adult; there was no discussion of the similarity of the actual acts.
In sexual assault case involving a child victim, no error occurred when the trial court admitted 404(b) evidence that the defendant engaged in sexual contact with another child to show common plan or scheme. The court rejected the defendant’s argument that the acts were not sufficiently similar, concluding that both incidents occurred while the victims were in the care of the defendant, their grandfather; the victims were around the same age when the conduct began; for both victims, the conduct occurred more than once; and with both victims, the defendant initiated the conduct by talking to them about whether they were old enough for him to touch their private parts. The court also determined that the acts met the temporal proximity requirement.
In a case in which the defendant was charged with sexual offense, indecent liberties and crime against nature against a ten-year-old female victim, no plain error occurred when the trial court admitted evidence of the defendant’s prior bad acts against two other teenaged females. The evidence was introduced to show common scheme or plan, identity, lack of mistake, motive and intent. The defendant’s acts with respect to the victim and the first female were similar: the defendant had a strong personal relationship with one of their parents, used the threat of parental disbelief and disapproval to coerce submission and silence, initiated sexual conduct after wrestling or roughhousing, digitally penetrated her vagina, and forced her to masturbate him. Only two years separated the incidents and both involved a similar escalation of sexual acts. As to the evidence of the prior bad acts with the second female — that the defendant kissed her when she was thirteen — the court held that admission of that testimony was not plain error.
In a child sexual abuse case involving a female victim, the trial court did not err by allowing testimony from four individuals (three females and one male) that the defendant sexually abused them when they were children. The events occurred 14, 21, and 27 years prior to the abuse at issue. Citing State v. Jacob, 113 N.C. App. 605 (1994), and State v. Frazier, 121 N.C. App. 1 (1995), the court rejected the defendant’s argument that the evidence lacked sufficient temporal proximity to the events in question. The challenged testimony, showing common plan, established a strikingly similar pattern of sexually abusive behavior by the defendant over a period of 31 years in that: the defendant was married to each of the witnesses' mothers or aunt; the victims were prepubescent; the incidents occurred when the defendant's wife was at work and he was watching the children; and the abuse involved fondling, fellatio, or cunnilingus, mostly taking place in the defendant's wife's bed. Although there was a significant gap in time between the last abuse and the events in question, that gap was the result of defendant's not having access to children related to his wife and thus did not preclude admission under Rule 404(b). Finally, the court held that trial judge did not abuse his discretion by admitting this evidence under Rule 403.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Possession of Pornography
In a per curiam opinion, the court affirmed the decision below in State v. Brown, 211 N.C. App. 427 (May 3, 2011) (in a case in which the defendant was charged with sexually assaulting his minor child, the court rejected the defendant’s argument that the trial court erred by admitting evidence that he possessed pornographic materials (“Family Letters,” a publication purporting to contain letters regarding individuals’ sexual exploits with family members); the defendant argued that the evidence was inadmissible under Rule 404(b) absent a showing that he used the materials during the crimes or showed them to the victim at or near the time of the crimes; the court concluded that the evidence was properly admitted to show motive and intent; as to motive, it stated: “evidence of a defendant’s incestuous pornography collection sheds light on that defendant’s desire to engage in an incestuous relationship, and that desire serves as evidence of that defendant’s motive to commit the underlying act – engaging in sexual intercourse with the victim/defendant’s child – constituting the offense charged”; as to intent, it concluded that the defendant’s desire to engage in incestuous sexual relations may reasonably be inferred from his possession of the incestuous pornography, a fact relevant to the attempted rape charge; the court also found the evidence relevant to show a purpose of arousing or gratifying sexual desire in connection with an indecent liberties charge; finally, the court concluded that the evidence passed the Rule 403 balancing test, noting that it was admitted with a limiting instruction).
In a child sex case, the trial court did not err by admitting adult pornography found in the defendant’s home to establish motive or intent where the defendant showed the victim both child and adult pornography. Furthermore the trial court did not abuse its discretion by admitting this evidence under Rule 403. The trial court limited the number of magazines that were admitted and gave an appropriate limiting instruction.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Grooming Activity in Sex Case
(1) In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court did not err by admitting, under Rule 404(b), evidence that the defendant engaged in hazing techniques against his wrestlers. The evidence involved testimony from wrestlers that the defendant choked-out and gave extreme wedgies to his wrestlers, and engaged in a variety of hazing activity, including instructing upperclassmen to apply muscle cream to younger wrestlers’ genitals and buttocks. The evidence was properly admitted to show that the defendant engaged in “grooming behavior” to prepare his victims for sexual activity. The court so concluded even though the hazing techniques were not overtly sexual or pornographic, noting: “when a defendant is charged with a sex crime, 404(b) evidence … does not necessarily need to be limited to other instances of sexual misconduct.” It concluded: “the hazing testimony tended to show that Defendant exerted great physical and psychological power over his students, singled out smaller and younger wrestlers for particularly harsh treatment, and subjected them to degrading and often quasi-sexual situations. Whether sexual in nature or not, and regardless of whether some wrestlers allegedly were not victimized to the same extent as the complainants, the hazing testimony had probative value beyond the question of whether Defendant had a propensity for aberrant behavior (quotations and citations omitted).” (2) The trial court did not abuse its discretion by admitting the hazing testimony under Rule 403, given that the evidence was “highly probative” of the defendant’s intent, plan, or scheme to carry out the charged offenses. The court noted however “that the State eventually could have run afoul of Rule 403 had it continued to spend more time at trial on the hazing testimony or had it elicited a similar amount of 404(b) testimony on ancillary, prejudicial matters that had little or no probative value regarding the Defendant’s guilt” (citing State v. Hembree, 367 N.C. 2 (2015) (new trial where in part because the trial court “allow[ed] the admission of an excessive amount” of 404(b) evidence regarding “a victim for whose murder the accused was not currently being tried”)). However, the court concluded that did not occur here.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Possession of Substance/Drug Activity
In a counterfeit controlled substance case where the defendant was alleged to have sold tramadol hydrochloride, representing it to be Vicodin, evidence that he also possessed Epsom salt in a baggie was properly admitted under Rule 404(b). The salt bore a sufficient similarity to crack cocaine in appearance and packaging that it caused an officer to do a field test to determine if it was cocaine. Under these circumstances, evidence that the defendant possessed the salt was probative of intent, plan, scheme, and modus operandi.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Homicide, Assault, or Related Conduct
In this capital murder case, the trial court did not err in admitting evidence that the defendant committed another murder 32 months earlier. Evidence of the prior murder was admitted to show knowledge, plan, opportunity, modus operandi, and motive. The court found the two crimes sufficiently similar and rejected the defendant’s argument that because the trial court declined to join the offenses for trial, they lacked the necessary similarity. The court noted that remoteness is less significant when the prior bad act is used to show intent, motive, knowledge, or lack of accident and that it generally goes to weight not admissibility.
The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed.
The trial court did not err in admitting evidence of a prior similar crime to prove the defendant’s identity under Rules of Evidence 401, 403, and 404. Evidence was presented at trial showing that the defendant committed crimes similar to those for which he was being tried (although he was not formally charged with these other bad acts). The defendant argued there was insufficient evidence that he committed the alleged acts and that the evidence violated the ban on propensity evidence in Rule 404(b). Rejecting this contention, the court found that the modus operandi of the prior crime was substantially similar to the current case and was admissible to show the defendant’s identity as the perpetrator. Specifically, the incidents shared the following characteristics:
(1) [T]he perpetrator wore a Jason-style white hockey mask with holes in it, similar to the one seized from defendant in Colorado; (2) the targets were all suspected drug dealers or living with suspected drug dealers; (3) the attacks all took place at night in the victims’ homes; (4) defendant had an accomplice; and (5) the incidents had both temporal and geographic proximity, most of them taking place within a month or two of each other, and within the same city.
Additionally, forensics from the incident recounted by the 404(b) witness matched the gun found on the defendant in Colorado. “All of this evidence supports a reasoned conclusion defendant was the perpetrator in this incident, and the common modus operandi helps establish his identity in the crimes he was charged with.” This was relevant evidence, and the court did not abuse its discretion in determining the evidence was more probative than prejudicial.
(1) In this non-capital first-degree murder case where the defendant was convicted of murdering a former girlfriend Sellars, the trial court did not err by admitting 404(b) testimony from the defendant’s former girlfriend Crisp and former wife Lewis about assaults that the defendant committed on them. The evidence was admitted to show motive, intent, modus operandi, and identity. The requirement of similarity was satisfied. Among other things, the trial court’s findings of fact identified “location similarities between the incidents.” The defendant’s assaults of Crisp and Lewis occurred in isolated areas, and Sellars’ remains were found on one of the roads in an isolated area where the defendant assaulted Crisp. With respect to remoteness, the defendant’s assaults on Crisp occurred from 1990-1993; the assaults on Lewis occurred from 1996-1999; and Sellars’ death occurred in 2012, 13 years after the last assault. Subtracting 4 years that the defendant spent in prison, leaves a 9 year gap. The court concluded that assaults on multiple victims over time with relatively short gaps in between show a pattern of behavior, and that the evidence satisfied the temporal proximity requirement of the Rule 404(b) analysis. The court went on to find that the trial court did not abuse its discretion by finding that the 404 evidence satisfied Rule 403.
(2) The trial court did not err by instructing the jury that it could use of evidence of the defendant’s prior assaults on the victim to show identity. Multiple witnesses testified regarding the defendant’s abuse of the victim prior to her murder and the defendant’s prior assaults on her arose in the context of a relationship in which the defendant used violence to control her behavior. This evidence was properly admitted to show identity.
In this case where the defendant was convicted of stalking victim Lorrie, with whom the defendant had a dating relationship, the trial court did not commit plain error by introducing 404(b) evidence from Holly, the defendant’s ex-girlfriend. The defendant argued that the trial court erred in failing to exclude Holly’s testimony that the defendant had assaulted her in the past, that she was afraid of the defendant, and that the defendant told Holly “he would never be arrested again” and “he would not be taken alive.” The court disagreed, finding that Holly’s testimony established that Lorrie was in reasonable fear of the defendant. Holly testified to texting Lorrie about the assault and warning Lorrie to be careful, and that Holly herself was afraid of the defendant. This testimony demonstrates both that Lorrie had a legitimate basis for her fear of the defendant and that her fear was reasonable as required by the stalking statute. Similarly, the court noted, the defendant’s statements to Holly¾that “he would never be arrested again” and “he would not be taken alive”¾were made in reference to the assault and further illustrate a course of conduct that would cause a reasonable person to fear for her safety.
In this case where the defendant was convicted of second-degree murder for killing her boyfriend, the trial court did not err by introducing 404(b) evidence pertaining to an incident between the defendant and another boyfriend, Walker, which occurred 14 months before the events in question. The court found strong similarities between the incidents, noting that both involved the defendant and her current boyfriend; the escalation of an argument that led to the use of force; the defendant’s further escalation of the argument; and the defendant’s deliberate decision to obtain a knife from the kitchen. Given these similarities, the court found that the Walker evidence was probative of the defendant’s motive, intent, and plan. Next, the court found that the prior incident was not too remote.
In a rape case, the trial court did not err by admitting evidence that the defendant assaulted a male visiting the victim’s home and called the victim a whore and slut upon arriving at her house and finding a male visitor. Rejecting the defendant’s argument that these incidents bore no similarity to the rape at issue, the court noted that the victim was present for both incidents and that her state of mind was relevant to why she did not immediately report the rape.
In a case in which the defendant was found guilty of felonious child abuse inflicting serious bodily injury and first-degree murder, the trial court did not abuse its discretion by admitting 404(b) evidence showing that the defendant engaged in continual and systematic abuse of her other children to show a common plan, scheme, system or design to inflict cruel suffering for the purpose of punishment, persuasion, and sadistic pleasure; motive; malice; intent; and lack of accident.
In a murder case, evidence of an assault committed by the defendant two days before the murder was admissible to show identity when ballistics evidence showed that the same weapon was used in both the murder and the assault. The court rejected the defendant’s argument that the probative value of the prior assault was diminished because of the dissimilarity of the incidents.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Burglary or Related Crime
In this New Hanover County case, defendant appealed his convictions for possession of burglary tools and attempted breaking and entering, arguing error in admitting evidence of a 2018 breaking and entering incident. The Court of Appeals found no error.
In November of 2020, defendant entered the backyard of a Wilmington home and attempted to open the door of a storage shed. The homeowner’s security camera alerted the homeowner, who then called 911. Defendant was later found by police in a neighbor’s yard with bolt cutters and a box cutter with a screwdriver head. During the trial, the prosecution introduced evidence of a 2018 incident where defendant pleaded guilty to breaking and entering a residential shed using a small knife. Despite defendant’s objections, the trial court admitted evidence of defendant’s guilty plea to the 2018 incident, as well as testimony from the investigating officer and surveillance video from the 2018 incident.
On appeal, defendant first argued error by the trial court in admitting the testimony and video evidence of the 2018 incident. The Court of Appeals disagreed, finding that the testimony and evidence were relevant and admissible under Rule 404(b) and not unfairly prejudicial under Rule 403. The court first examined defendant’s argument that the 2018 incident was not sufficiently similar to the 2020 incident to justify admitting the evidence. Using State v. Martin, 191 N.C. App. 462 (2008) as a guiding example, the court noted that here the similarities of breaking into a shed, after midnight, using similar tools, clearly met the Rule 404(b) requirement of similarity. Slip Op. at 12-13. The court also found the other two elements of Rule 404(b) were satisfied by the 2018 incident, as the prior incident had probative value for defendant’s intent to break into the shed, and the gap in time between the two incidents was not unusually long based on applicable precedent. After establishing admissibility under Rule 404(b), the court performed the Rule 403 analysis, finding no abuse of discretion in the trial court’s weighing of the danger of unfair prejudice verses probative value, and noting that the trial court carefully handled the process.
Defendant’s second argument on appeal was that the 2018 video surveillance evidence was not properly authenticated. The court again disagreed, noting that under Rule of Evidence 901, tapes from surveillance cameras can be authenticated as “the accurate product of an automated process” as long as “[e]vidence that the recording process is reliable and that the video introduced at trial is the same video that was produced by the recording process” is admitted to support the video. Id. at 21, quoting State v. Snead, 368 N.C. 811, 814 (2016). Here the court found that the investigating officer’s testimony in support of the video satisfied the requirements for authentication. Additionally, the court noted that even if the video was not properly authenticated, defendant could not show prejudice due to the large amount of evidence supporting his conviction.
In this Mecklenburg County case, the defendant was convicted of first-degree murder and possession of a firearm by a felon for shooting and killing Oren Reed. Reed’s aunt found his body in a pool of blood inside the backdoor of his home around 5 p.m. on November 21, 2013. The doorframe for the backdoor was splintered, and glass and bullet shells were on the ground. The State introduced evidence at trial that the previous day someone had kicked in the side door to Chris Townsend’s house, breaking the door frame, and had stolen a revolver and bullets. Other evidence showed that the stolen gun, found in defendant’s possession when he was arrested, was used to fire 22 of the 23 spent cartridges at Reed’s residence. An expert testified that two of the bullets recovered from Reed’s body shared similar class and characteristics as bullets fired from this gun.
(1) On appeal, the defendant argued that the trial court committed plain error by admitting evidence of the break-in at the Townsend residence. The Court of Appeals rejected that argument, reasoning that the evidence was relevant because it tended to show how the defendant gained possession of the murder weapon. The evidence also was admissible under N.C. R. Evid. 404(b) as it showed the natural development of the facts and completed the story of the murder and because there were substantial similarities between the two incidents.
(2) The defendant also argued on appeal that the trial court committed plain error by instructing the jury on the doctrine of recent possession, which allows a jury to infer that the possessor of recently stolen property stole the property. The defendant argued that this inference was not relevant to whether he broke into Reed’s house and killed him and that it likely caused the jury to convict the defendant of felony-murder based on the break-in to Townsend’s home. The Court of Appeals determined that, even presuming the trial court erred in instructing the jury that it could consider the doctrine of recent possession in deciding whether the defendant was guilty of first-degree murder, the defendant failed to show the instruction had a probable impact on the verdict. The Court reasoned that even if the recent possession instruction could have caused the jury to improperly convict the defendant of felony-murder, the instruction did not have a probable impact on first-degree murder verdict because the jury also found the defendant guilty based on malice, premeditation and deliberation.
In this felony breaking and entering, larceny, and felon in possession case, evidence that the defendant committed a similar breaking and entering was properly admitted under Rule 404(b). In addition, certain statements made by the victim of the similar breaking and entering were admissible as a present sense impression, and there was sufficient evidence of the felon in possession offense. Regarding the 404(b) issue, the court determined that evidence of the other similar breaking and entering being committed by a person wearing a red and black hoody was properly admitted as circumstantially establishing that the defendant, who was wearing a red and black hoody when arrested on the same day as the break-ins, was the perpetrator in both incidents. An officer’s testimony about the statements made by the victim of the other break-in were admissible under the present sense impression exception to the hearsay rule because the statements were made within minutes of the victim perceiving the break-in and described or explained the event. Finally, the evidence of the felon in possession offense was sufficient to withstand a motion to dismiss as it showed that three guns were stolen during the break-in and that the defendant was the perpetrator.
In a case involving a breaking or entering of a church, counsel was not ineffective by failing to challenge the admissibility of evidence that the defendant broke into a home on the night in question. The court noted that because the issue pertains to the admission of evidence no further factual development was required and it could be addressed on appeal. It went on to hold that the evidence was admissible under Rule 404(b) to show that the defendant’s intent in entering the church was to commit a larceny therein and to contradict his testimony that he entered the church for sanctuary. The evidence also was admissible under Rule 403. As to the defendant’s argument that counsel should have requested a limiting instruction that the jury could not consider the evidence to show his character and propensity, the court agreed that a limiting instruction would have mitigated any potential unfair prejudice. But it held: “any resulting unfair prejudice did not substantially outweigh the evidence’s probative value, given the temporal proximity of the breaking or entering offenses and the evidence’s tendency to show that defendant’s intent in entering the church was to commit a larceny therein.” Because the defendant failed to show that admission of the evidence was error he could not prevail on his ineffective assistance claim.
In the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of an argument the defendant had with the victim and of a prior break-in at the victim’s Atlanta apartment for which the defendant was not investigated, charged, or convicted. The victim testified that in June 2008, while at her apartment in Raleigh, the defendant became angry and threw furniture and books, shoved a television, and broke a lamp. A few months later, the victim’s Atlanta apartment was burglarized and ransacked. Her couch was shredded, a lamp was broken, the floor was covered in an oily substance, her personal belongings were strewn about, and her laptop and car title were stolen. Police could not locate any fingerprints or DNA evidence tying the defendant to the crime; no eyewitnesses placed the defendant at the scene. In January 2009, the crime at issue occurred when the victim’s apartment in Raleigh was burglarized and ransacked. Her clothes and other personal belongings were strewn about and covered in liquid, her furniture was cut, her electronics destroyed, the floor was covered in liquid, her pictures were slashed, and a fire was lit in the fireplace, in which pictures of the defendant and the victim, books, shoes, picture frames, and photo albums had been burned. The only stolen item was a set of jewelry given to her by the defendant. As with the earlier break-in, the police could not locate any forensic evidence or eyewitnesses tying the defendant to the crime. The court found it clear from the record that the evidence established “a significant connection between defendant and the three incidents.” The court went on to find that the prior bad acts were properly admitted to show common plan or scheme, identity, and motive.
Evidence of a break-in by the defendant, occurring after the break-in in question, was properly admitted under Rule 404(b). DNA evidence sufficiently linked the defendant to the break-in and the evidence was probative of intent, identity, modus operandi, and common scheme or plan.
In a case involving charges arising out of a drug store break-in in which controlled substances were stolen, the trial court did not abuse its discretion by admitting 404(b) testimony from an accomplice that a few days before the break-in at issue, the same perpetrators broke into a different pharmacy but did not obtain any narcotics. The incidents were sufficiently similar, occurred only a few days apart, and involved the same accomplices.
In a murder and armed robbery case, the trial court did not commit plain error by admitting 404(b) evidence that the defendant broke into and stole from two houses near the time of the victim’s death. The evidence was relevant to illustrate the defendant’s motive for stealing from the victim—to support an addiction to prescription pain killers.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Theft, Robbery or Related Conduct
In this larceny by employee case, the trial court did not err by admitting 404(b) evidence. The charges arose out of a 2014 incident in which the defendant, a manager of an auto shop, kept for himself cash paid by a customer for auto repairs. At trial, an officer testified that in 2010 he investigated the defendant for embezzlement. The defendant, who was working as a restaurant manager, admitted stealing from the restaurant by voiding out cash transactions and keeping the cash for himself. The court found that evidence showing that the defendant embezzled from a previous employer four years prior was clearly relevant to show intent, plan, or absence of mistake or accident. In both cases, the defendant worked for the business, held a managerial position, took cash paid and intended for the business, kept the cash for himself, and manipulated accounting procedures to cover his tracks. The prior incident was sufficiently similar to the current one and was not too remote in time. Additionally, the trial court gave a proper limiting instruction.
In a case where the defendant was charged with embezzling from a school, trial court did not err by admitting evidence that the defendant misappropriated funds from a church to show absence of mistake, opportunity, motive, intent, and/or common plan or scheme. The record supported the trial court’s conclusion of similarity and temporal proximity.
In a residential robbery case, the trial court did not err by admitting 404(b) evidence of the defendant’s robbery at a Holiday Inn two days after the incident in question. As to similarity, the court noted that both incidents were armed robberies. Also, the perpetrators in both wore black hoodies and dark fabric covering part of their faces, immediately demanded money upon entering the buildings, used a black semi-automatic handgun by “pushing” it to the heads of the victims, restrained the victims in a similar manner, and moved the victims from place to place, searching for money.
In a robbery case involving a purse snatching, a purse-snatching by the defendant 6 weeks prior was properly admitted under Rule 404(b). The court found that the incidents were sufficiently in that they both occurred in Wal-Mart parking lots and involved a purse-snatching from a female victim who was alone. Also, the requirement of temporal proximity was satisfied.
In a second-degree murder case stemming from a vehicle accident during a high speed chase following a shoplifting incident, details of the shoplifting incident were properly admitted under Rule 404(b). Evidence is admissible under Rule 404(b) when it is part of the chain of circumstances leading to the event at issue or when necessary to provide a complete picture for the jury. Here, the shoplifting incident explained the manner of the defendant’s flight.
(1) In a case in which the defendant faced homicide charges in connection with the death of an officer in a vehicular accident while that officer responded to a call regarding the defendant’s flight from another officer’s lawful stop of the defendant’s vehicle, the trial court did not err by admitting 404(b) evidence that the defendant had been involved in a robbery. In the robbery the defendant and an accomplice fled from the police and the accomplice was shot and killed by police officers. This was admitted to show implied malice in that it showed the defendant’s knowledge that flight from the police was dangerous and could result in death. (2) The trial court did not err by admitting evidence that the defendant and two other occupants of his vehicle stole several pounds of marijuana just before the defendant fled from the officer. The evidence showed the defendant’s motive to flee and his “intent or implied malice.”
In an armed robbery case, evidence of the defendant’s involvement in another robbery was properly admitted under Rule 404(b). In both instances, the victims were robbed of their credit or debit cards by one or more handgun-wielding individuals with African accents, which were then used by the defendant to purchase gas at the same gas station within a very short period of time. The evidence was admissible to prove a common plan or scheme and identity. The court further held that the trial court did not abuse its discretion by failing to exclude the evidence under Rule 403.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Motor Vehicle Violations and Related Conduct
The defendant was convicted of second-degree murder involving impaired driving. No plain error occurred when the trial judge admitted, under Rule 404(b), the defendant’s prior traffic-related convictions that were more than sixteen years old. The court rejected the implication that it previously had adopted a bright line rule that it was plain error to admit traffic-related convictions that occurred more than sixteen years before the date of a second-degree vehicular murder. Of the defendant’s six previous DWI convictions, four occurred in the sixteen years before the events at issue, including one within six months of the event at issue. Those convictions “constitute part of a clear and consistent pattern of criminality highly probative of his mental state.” Although temporal proximity is relevant to the assessments of probative value under 404(b), remoteness generally affects the weight of the evidence, not its admissibility, especially when the prior conduct tends to show state of mind as opposed to common scheme or plan.
In this Vance County case, defendant appealed his convictions for second-degree murder, felony hit and run, DWI, reckless driving, failure to reduce speed, and failure to comply with license restrictions, arguing improperly admitted expert testimony and evidence of a prior DWI charge, a fatally defective indictment for the license restriction charge, and sentencing errors. The Court of Appeals found no error for the evidence issues but agreed that the indictment for the license restriction charge was defective and the sentencing issues were valid, remanding the matter for resentencing.
In May of 2018, highway patrol troopers responded to the scene of an accident in Henderson where an SUV ran into the back of a sedan and seriously injured the passengers. The SUV was found several yards away from the sedan, wrecked into a fence, with a cold six-pack in the front seat and no driver inside. After a canine search, defendant was found hiding under a boxcar nearby, with the keys to the SUV in his pocket. When defendant’s blood alcohol level was sampled it was 0.15. At trial, a state trooper who was not one of the investigating officers testified as an expert regarding the speed of the SUV and whether it exceeded the speed limit. The trial court also admitted evidence of a pending 2017 DWI charge against defendant under Rule of Evidence 404(b). Defendant’s objections to both were overruled.
The Court of Appeals first took up the expert testimony issue, turning to State v. McGrady, 368 N.C. 880 (2016), to explain the wide discretion granted to a trial court under Rule of Evidence 702(a) when determining whether to admit expert testimony. Slip Op. at 7-8. Here, the trooper was unable to use a scientific method for determining speed due to the circumstances of the crash, so he testified using his experience and specialized training. The Court found no issue with the testimony and noted defendant was able to fully cross-examine and challenge the expert testimony.
Turning to the Rule 404(b) issue, the court noted that evidence of the 2017 DWI charge was admitted “to show his intent, knowledge, or absence of mistake to support malice, an essential element of second-degree murder.” Id. at 11. Finding that the admission was not error, the court pointed to a N.C. Supreme Court decision, State v. Jones, 353 N.C. 159 (2000), where evidence of a previous DWI charge was admitted for just such a purpose.
For the license restriction charge, the court explained “[t]he State concedes the license restriction violation indictment was facially invalid,” and likewise conceded issues with prior record level and DWI level sentencing. Slip Op. at 13. As a result, the court found no error for all charges except the license restriction violation, which it vacated, and remanded the judgments for resentencing.
In a second-degree murder case arising after the defendant drove while impaired and hit and killed two bicyclists, the trial court did not err by admitting Rule 404(b) evidence. Specifically, Thelma Shumaker, a woman defendant dated, testified regarding an incident where the defendant drove while impaired on the same road two months before the collision in question. Shumaker also testified that the defendant habitually drank alcohol, drank alcohol while driving 20 times, and drove while impaired one or two additional times. The trial court found that Shumaker’s testimony regarding the specific incident was admissible to show malice. With regard to Shumaker’s other testimony, the court held that even if the evidence was inadmissible, the defendant could not establish the requisite prejudice, given the other evidence.
(1) The trial court did not err by admitting evidence that the defendant received two citations for driving without a license, including one only three days before the crash at issue. The fact that the defendant drove after having been repeatedly informed that driving without a license was unlawful was relevant to malice. The court rejected the defendant’s argument that admission of the “bare fact” of the citations violated the Wilkerson rule (bare fact of a conviction may not be admitted under Rule 404(b)). The court noted that Wilkerson recognized that conviction for a traffic-related offense may "show the malice necessary to support a second-degree murder conviction," because it was "the underlying evidence that showed the necessary malice, not the fact that a trial court convicted the defendant." Thus, the court concluded, Wilkerson does not apply. (3) The trial court did not err by admitting an officer’s testimony of the defendant’s conduct after the crash. The evidence suggested that the defendant was continuing to try to escape regardless of the collision and in callous disregard for the condition of his passengers and as such supports a finding of malice.
In this larceny by employee case, the trial court did not err by admitting 404(b) evidence. The charges arose out of a 2014 incident in which the defendant, a manager of an auto shop, kept for himself cash paid by a customer for auto repairs. At trial, an officer testified that in 2010 he investigated the defendant for embezzlement. The defendant, who was working as a restaurant manager, admitted stealing from the restaurant by voiding out cash transactions and keeping the cash for himself. The court found that evidence showing that the defendant embezzled from a previous employer four years prior was clearly relevant to show intent, plan, or absence of mistake or accident. In both cases, the defendant worked for the business, held a managerial position, took cash paid and intended for the business, kept the cash for himself, and manipulated accounting procedures to cover his tracks. The prior incident was sufficiently similar to the current one and was not too remote in time. Additionally, the trial court gave a proper limiting instruction.
In this obtaining property by false pretenses case, the trial court did not err by admitting Rule 404(b) evidence. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then performing shoddy work or not completing the job. At trial, three other witnesses testified to similar incidents. This evidence was “properly admitted under Rule 404(b) because it demonstrated that defendant specifically targeted his victims pursuant to his plan and intent to deceive, and with knowledge and absence of mistake as to his actions.”
In a case involving convictions for uttering a forged instrument and attempting to obtain property by false pretenses in connection with a fraudulent check, the trial court did not err by admitting evidence of a second fraudulent check. The second check was virtually identical to the first one, except that it was drawn on a different bank. The fact that the defendant possessed the second check undermined the defendant’s explanation for how he came into possession of the first check and proved intent to commit the charged crimes. Also, the evidence passed the Rule 403 balancing test.
In a case in which the defendant was charged with murdering his wife, the trial court did not abuse its discretion by admitting 404(b) evidence pertaining to the defendant’s submission of false information in a loan application. Evidence of the defendant’s financial hardship was relevant to show a financial motive for the killing.
In a case in which the defendant was charged with obtaining property by false pretenses by lying to church members about his situation, the trial court did not abuse its discretion by admitting 404(b) evidence of the defendant’s similar conduct with regard to other churches, occurring after the incident in question. The evidence was properly admitting to show common scheme or plan and was admissible even though it occurred after the incident in question.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Argument/Contact With/Assault on Victim
In a case in which the defendant was convicted of perpetrating a hoax on law enforcement officers by use of a false bomb, the trial court did not err by admitting evidence of the defendant’s prior acts against his estranged wife. The defendant’s wife had a domestic violence protective order against him. When she saw the defendant at her house, she called 911. After arresting the defendant, officers found weapons on his person and the device and other weapons in his vehicle. At trial his wife testified to her prior interactions with the defendant, including those where he threatened her. The evidence of the prior incidents showed the defendant's intent to perpetrate a hoax by use of a false bomb in that they showed his ongoing objective of scaring his wife with suggestions that he would physically harm her and others around her. Also, the prior acts were part of the chain of events leading up to the crime and thus completed the story of the crime for the jury. The court rejected the defendant’s argument that the prior acts were not sufficiently similar to the act charged on grounds that similarity was not pertinent to the 404(b) purpose for which the evidence was admitted. The court also concluded that the trial court did not abuse its discretion by admitting the evidence under Rule 403.
In a second-degree rape case, the trial court properly admitted 404(b) evidence of the defendant’s prior sexual conduct with the victim to show common scheme. The conduct leading to the charges occurred in 1985 when the victim was sixteen years old. After ingesting alcohol and other substances, the victim awoke to find the defendant, her uncle, having sex with her. At trial the victim testified that in 1977, the defendant touched her breasts several times; in 1978, he touched her breasts, put her hand on his penis, and made her rub his penis up and down; and in 1980 he twice masturbated in front of her. The court found the prior acts sufficient similar to the rape at issue, noting that they show “a progression from inappropriate touching in 1977 to sexual intercourse in 1985.” Also, the court noted, all of the incidents occurred where the defendant was living at the time. The incidents were not too remote. Although there was a five year gap between the last act and the rape, the defendant did not have access to the victim for three years. The court also found that the evidence was admissible under Rule 403.
In the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of an argument the defendant had with the victim and of a prior break-in at the victim’s Atlanta apartment for which the defendant was not investigated, charged, or convicted. The victim testified that in June 2008, while at her apartment in Raleigh, the defendant became angry and threw furniture and books, shoved a television, and broke a lamp. A few months later, the victim’s Atlanta apartment was burglarized and ransacked. Her couch was shredded, a lamp was broken, the floor was covered in an oily substance, her personal belongings were strewn about, and her laptop and car title were stolen. Police could not locate any fingerprints or DNA evidence tying the defendant to the crime; no eyewitnesses placed the defendant at the scene. In January 2009, the crime at issue occurred when the victim’s apartment in Raleigh was burglarized and ransacked. Her clothes and other personal belongings were strewn about and covered in liquid, her furniture was cut, her electronics destroyed, the floor was covered in liquid, her pictures were slashed, and a fire was lit in the fireplace, in which pictures of the defendant and the victim, books, shoes, picture frames, and photo albums had been burned. The only stolen item was a set of jewelry given to her by the defendant. As with the earlier break-in, the police could not locate any forensic evidence or eyewitnesses tying the defendant to the crime. The court found it clear from the record that the evidence established “a significant connection between defendant and the three incidents.” The court went on to find that the prior bad acts were properly admitted to show common plan or scheme, identity, and motive.
In a rape case, the trial court did not err by admitting evidence that the defendant assaulted a male visiting the victim’s home and called the victim a whore and slut upon arriving at her house and finding a male visitor. Rejecting the defendant’s argument that these incidents bore no similarity to the rape at issue, the court noted that the victim was present for both incidents and that her state of mind was relevant to why she did not immediately report the rape.
In a maiming case in which the defendant was accused of attacking the victim with a pickaxe and almost severing his finger, no plain error occurred when the trial judge admitted 404(b) evidence that the defendant had previously attacked the victim with a fork and stabbed his finger. The 404(b) evidence was admitted to show absence of accident or mistake. Although the defendant argued that she never intended to purposefully strike the victim’s finger with the pickaxe, the defendant knew from the fork incident that she could end up stabbing the victim’s hand or fingers if she swung at him with a weapon and he attempted to defend himself. The evidence was thus relevant to whether the defendant intended to disable the victim or whether she accidentally struck his finger and did not intend to maim it. The court also rejected the defendant’s argument that the 404(b) evidence was inadmissible because the State had previously dismissed charges arising from the fork incident, distinguishing cases in which the defendants had been tried and acquitted of the 404(b) conduct.
The trial court properly admitted evidence of the defendant’s prior assault on a murder victim when the evidence showed that the defendant wanted to prevent the victim from testifying against him in the assault trial; the prior bad act showed motive, malice, hatred, ill-will and intent. There was no abuse of discretion in the 403 balancing with respect to this highly probative evidence.
In a trial for assault on a law enforcement officer and resisting and obstructing, the trial court properly admitted evidence relating to the defendant’s earlier domestic disturbance arrest. The same officer involved in the present offenses handled the earlier arrest, and at the time had told the defendant’s mother to call him if there were additional problems. It was the defendant’s mother’s call that brought the officers to the residence on the date in question. Thus, the fact of the earlier arrest helped to provide a complete picture of the events for the jury. The court also held that the trial court did not abuse its discretion in admitting the defendant’s statement to the police after his arrest while he was being transported to the jail. The court found that the defendant’s argumentative statements showed both his intent to assault or resist officers as well as absence of mistake.
The trial court did not commit plain error by admitting certain testimony that may have suggested that the defendant engaged in witness intimidation. Specifically a detective testified that during a photo lineup a victim appeared to not want to identify the suspect. The detective added that the victim “has had personal dealings with a brother of his in the past that had been killed because he had snitched and didn’t want to become part of that as well.” Even if this testimony suggested that the defendant intimidated the victim, it was properly admitted as relevant to explain why the victim did not identify the shooter and did not testify at trial.
The trial court did not commit plain error by admitting certain testimony that may have suggested that the defendant engaged in witness intimidation. Specifically a detective testified that during a photo lineup a victim appeared to not want to identify the suspect. The detective added that the victim “has had personal dealings with a brother of his in the past that had been killed because he had snitched and didn’t want to become part of that as well.” Even if this testimony suggested that the defendant intimidated the victim, it was properly admitted as relevant to explain why the victim did not identify the shooter and did not testify at trial.
In this possession of a firearm by a felon case, the trial court did not err when it allowed an officer to testify that during an unrelated incident, the officer saw the defendant exiting a house that the officer was surveilling and to testify that the defendant had a reputation for causing problems in the area. This testimony was offered for a proper purpose: to establish the officer’s familiarity with the defendant’s appearance so that he could identify him as the person depicted in surveillance footage. Additionally, the trial court did not abuse its discretion in finding that the probative value of this testimony outweighed its prejudicial impact under the Rule 403 balancing test. However, the court went on to hold that the officer’s testimony that the surveillance operation in question was in response to “a drug complaint” did not add to the reliability of the officer’s ability to identify the defendant. But because no objection was made to this testimony at trial plain error review applied, and any error that occurred with respect to this testimony did not meet that high threshold.
In this arson case, the trial court properly admitted 404(b) evidence to show the defendant’s intent. The evidence in question pertained to another arson which was sufficiently similar to the incident in question. Both arsons occurred in the same town during nighttime hours and involved the same building location. In both instances the defendant was intoxicated, knew the buildings were occupied, and was angry about a perceived harm perpetrated against her by an occupant of the residence. Although the other incident occurred approximately four years earlier, there was a sufficient temporal proximity to the conduct at issue.
In a murder and attempted armed robbery trial, the trial court erred when it excluded the defendant’s proposed testimony that he knew of certain violent acts by the victim and that the victim had spent time in prison. This evidence was relevant to the defendant’s claim of self-defense to the murder charge and to his contention that he did not form the requisite intent for attempted armed robbery because “there is a greater disincentive to rob someone who has been to prison or committed violent acts.” The evidence was admissible under Rule 404(b) because it related to the defendant’s state of mind. The court also held that certified copies of the victim’s convictions were admissible under Rule 404(b) because they served the proper purpose of corroborating the defendant’s testimony that the victim was a violent person who had been incarcerated. State v. Wilkerson, 148 N.C. App. 310, rev’d per curiam, 356 N.C. 418 (2002) (bare fact of the defendant’s conviction, even if offered for a proper Rule 404(b) purpose, must be excluded under Rule 403), did not require exclusion of the certified copies of the victim’s convictions. Unlike evidence of the defendant’s conviction, evidence of certified copies of the victim’s convictions does not encourage the jury to acquit or convict on an improper basis.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Acts Occurring After Offense at Issue
The trial court did not abuse its discretion by admitting, to show identification, intent, and modus operandi, a bad act that occurred 2 ½ years after the crime at issue. Bad acts that occur subsequent to the offense being tried are admissible under Rule 404(b). When the evidence is admitted to show intent and modus operandi, remoteness becomes less important.
Evidence of that the defendant drove with a revoked license after his arrest for several crimes, including driving while license revoked, which lead to the prosecution at issue, was admissible under Rule 404(b) to show that he knowingly drove with a revoked license.
(per curiam). The court modified in part and affirmed the lower court’s decision in State v. Watts, ___ N.C. App. ___, 783 S.E.2d 266 (April 5, 2016). In this child sexual assault case, the Court of Appeals held, over a dissent, that the trial court committed reversible error by admitting 404(b) evidence. The charges at issue arose from the defendant’s alleged sexual assault on an eleven-year-old girl to whom defendant was like a “grandpa.” The State sought to introduce at trial 404(b) evidence. Specifically a witness to testify that the defendant had forced his way into her apartment and raped her in 2003. Those alleged events resulted in indictments for rape and breaking or entering against the defendant, but those charges were dismissed in 2005. The trial court allowed the 404(b) evidence to be admitted. After the witness testified, defense counsel moved to strike the testimony, for limiting instruction, or in the alternative a mistrial. The trial court denied the defendant’s motions. The Court of Appeals held that admission of this evidence was prejudicial error. It reasoned that the trial court erred by determining that the evidence was relevant to show opportunity and that the evidence was not sufficiently similar to show common plan or scheme. The Court of Appeals further concluded that “[a]dding to the prejudicial nature” of the testimony was the fact that the trial court did not instruct the jury to consider the evidence only for the 404(b) purpose for which it was admitted. The Supreme Court rejected the State’s argument that defense counsel’s motion did not constitute a request for a limiting instruction. It went on to hold:
Our General Statutes provide that “[w]hen evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” N.C.G.S. § 8C-1, Rule 105 (2015) (emphasis added). “Failure to give the requested instruction must be held prejudicial error for which [a] defendant is entitled to a new trial.” Accordingly, because defendant was prejudiced by the trial court’s failure to give the requested limiting instruction, we affirm, as modified herein, the opinion of the Court of Appeals that reversed defendant’s convictions and remanded the matter to the trial court for a new trial. (citations omitted).
In this capital murder case, the trial court erred by admitting an excessive amount of 404(b) evidence pertaining to the murder of another victim, Saldana. The court began by concluding that the trial court properly admitted evidence of the Saldana murder under Rule 404(b) to show common plan or design. However, the trial court abused its discretion under Rule 403 by admitting “so much” 404(b) evidence given the differences between the two deaths and the lack of connection between them, the uncertainty regarding the cause of the victim’s death, and the nature and extent of the 404(b) evidence (among other things, of the 8 days used by the State to present its case, 7 were spent on the 404(b) evidence; also, the jury viewed over a dozen photographs of Saldana’s burned remains). The court stated: “Our review has uncovered no North Carolina case in which it is clear that the State relied so extensively, both in its case-in-chief and in rebuttal, on Rule 404(b) evidence about a victim for whose murder the accused was not currently being tried.”
In this Ashe County case, defendant appealed his convictions for rape and sex offense with a child, arguing plain error in the admission of two text message conversations with a woman that were improper character evidence. The Court of Appeals agreed, reversing and remanding for a new trial.
In August of 2021, defendant came to trial for four counts of rape and six counts of sex offense with a child based upon conduct that allegedly occurred between him and the daughter of a couple he knew well. At trial, defendant was questioned about his prior sexual relationships with adult women and several text message conversations during cross-examination. In particular, the prosecutor asked about a text message exchange where defendant’s adult girlfriend admitted to being too drunk to remember a sexual encounter. Defendant was also questioned about another exchange where defendant and his girlfriend were attempting to find a place to engage in sexual activity as defendant lived with his grandparents and could not have girlfriends spend the night. Defendant texted his girlfriend that he hoped his daughter (who was not the child allegedly abused) would not tell his grandparents, but that she had a big mouth.
On appeal, the Court of Appeals agreed with defendant’s argument that the admission of these text message exchanges was plain error. The court explained that this evidence showing defendant’s past sexual relationship was unrelated to his alleged abuse of the child in question, and inadmissible for any Rule of Evidence 404(b) purpose. The court noted there was no similarly in how the crimes and the Rule 404(b) offenses occurred other than they both involved sexual intercourse. The events took place in dissimilar locations, and the charges did not involve the consumption of alcohol or drugs with the child. The court also noted the exchange regarding defendant’s daughter was not sufficiently similar to defendant allegedly asking the victim not to reveal sexual abuse. The court explained:
Here, the evidence portraying Defendant as manipulative by (1) engaging in sexual intercourse with a woman who had been drinking alcohol, and (2) for contemplating asking his daughter to not share his plans to meet a girlfriend at a motel so they could engage in sexual intercourse is highly prejudicial and impermissibly attacked Defendant’s character.
Slip Op. at 18. Examining the other evidence in the case, the court concluded that due to the disputed nature of the allegations, the outcome depended on the perception of truthfulness for each witness, and the improperly admitted evidence had a probable impact on the jury’s finding of guilty. The court also found that closing argument remarks by the prosecutor regarding defendant’s sexual history were highly prejudicial and “the trial court erred by failing to intervene ex mero motu in response to the grossly improper and prejudicial statements.” Id. at 25.
Judge Dillon dissented by separate opinion, and would have held that defendant failed to show reversible error.
In this assault and possession of a firearm by a felon case, although the trial court erred by allowing the State to present evidence that the defendant had a history of narcotics activity, the error did not rise to the level of plain error. The trial court allowed a detective to testify that he knew the defendant from when the detective was working “vice/narcotics, and it was a narcotic-related case.” Here, the detective’s overall testimony was relevant to establish his familiarity with the defendant’s appearance, providing the basis for his identification of the defendant in the surveillance video. However, it was error to allow him to testify that he encountered the defendant in connection with a narcotics case. The court went on to find that the error did not rise to the level of plain error.
In a child sexual assault case in which the defendant was charged with assaulting his son, the trial court erred by admitting under Rule 404(b) evidence of the defendant's writings in a composition book about forcible, non-consensual anal sex with an adult female acquaintance. The defendant contended that the composition book was fiction; the State argued that the described events were real. The trial court admitted the composition book on the grounds that it showed “a pattern." On appeal the court assumed the trial court meant that the book showed a common scheme or plan; the court noted that the trial court must have assumed that the entry described an actual event. The court found that the events described in the book were not sufficiently similar to the case at bar, finding the only overlapping fact to be anal intercourse. The court also noted that the actual force described in the book was “not analogous” to the constructive force that applies with sexual conduct between a parent and child. It added that aside from anal intercourse, “the acts bore no resemblance to each other, involving different genders, radically different ages, different relationships between the parties, and different types of force.” It concluded:
[T]he charged crime involves defendant's very young son, while the 404(b) evidence involved a grown woman friend. There was no evidence that the locations of the crimes were similar. Further, there was no similarity in how the crime came to occur other than that it involved anal intercourse. Even though the State argues that both crimes involved force, the State has not shown that defendant's writings about physically forcible, non-consensual anal sex with an adult woman friend give rise to any inference that defendant would be desirous of or obtain sexual gratification from anal intercourse with his four-year-old or six-year-old son. The 404(b) evidence simply does not "share 'some unusual facts' that go to a purpose other than propensity . . . ."
In a case involving a drug-related murder that occurred in 2007, the trial court committed reversible error by admitting evidence that the defendant was involved in a 1994 homicide in which he broke into an apartment, found his girlfriend in bed with the victim, and shot the victim. The facts of the 1994 shooting were not admissible to show intent or knowledge. The State argued that the 404(b) evidence showed that the defendant knew that the weapon was lethal and intent to kill. Because the victim in this case was killed by a gunshot to the back of his head, the person who committed that act clearly knew it was lethal and intended to kill. The court found that whatever slight relevance the 1994 shooting might have on these issues was outweighed by undue prejudice. Regarding the 404(b) purpose of identity, the court found that the acts were not sufficiently similar. The court discounted similarities noted by the trial court, such as the fact that both crime occurred with a gun.
In a murder case, the trial court did not err by excluding defense evidence of the victims’ military disciplinary infractions. Both the defendant and the victim were in the military. After several military infractions, the victim was referred to the defendant for counseling. The victim later alleged that the defendant raped her. She was subsequently killed. At trial, the defendant sought to question military personnel about the victim’s disciplinary infractions which led to the request that he counsel her. The defendant argued that this evidence established the victim’s motive for making a false rape allegation against him. The trial court excluded this evidence. The court of appeals concluded that the question of whether the victim’s accusation of rape was grounded in fact or falsehood was not before the jury. Moreover, her specific instances of conduct unrelated to the defendant shed no light upon the crimes charged. Therefore, it concluded, the specific instances of conduct resulting in minor disciplinary infractions were not relevant and were properly excluded.
In a kidnapping, assault and indecent exposure case, the trial court erred by admitting testimony from a witness about a sexual encounter with the defendant to show identity, modus operandi, intent, plan, scheme, system, or design. The encounter occurred nine years earlier. The witness testified that the partially clothed defendant approached her on foot while she was walking. He exposed his penis to her and grabbed at her breasts and buttocks. Although he followed her up a driveway, he did not try to restrain her. In the case at hand, however, the victim got in a man’s vehicle and discovered that he was partially clothed. The man called her a bitch and grabbed her hair and shirt as she attempted to exit the vehicle, but there was no evidence of a sexual touching. The court concluded: “Given the differences in the two instances, as well as the remoteness in time of the incident . . . admission of the evidence was error.
In a case in which the defendant was charged with committing a sexual offense and indecent liberties against a five-year-old female victim, the trial court committed prejudicial error by admitting evidence that the defendant had anal intercourse with a four-year-old male 18 years earlier. The evidence was admitted to show identity, intent, and common scheme or plan. Noting confusion in the N.C. cases, the court concluded that temporal proximity continues to be relevant to the issue of admissibility of 404(b) evidence; the court rejected the notion that temporal proximity goes only to weight of the evidence. Turning to admission of the evidence for purposes of identity, the court found the 18-year gap between the incidents significant. It rejected the State’s argument that the time period should be tolled during the defendant’s incarceration on grounds that the State failed to offer competent evidence as to the length of his incarceration. Although the incidents both involved very young children and occurred at a caretaker's house where the defendant was a frequent visitor, the nature of the alleged assaults was very different. In light of these differences and “the great length of time” between them, the State failed to show sufficient unusual facts present in both or particularly similar acts which would indicate that the same person committed both crimes. The court went on to reach similar conclusions as to admissibility for the purposes of intent and prior scheme or plan.
The trial court committed prejudicial error by admitting, under rule 404(b), the defendant’s prior impaired driving convictions to show malice for purposes of a second-degree murder charge. Three of the defendant’s four prior impaired driving convictions occurred eighteen or nineteen years prior to the accident at issue and one occurred two years prior. Given the sixteen-year gap between the older convictions and the more recent one, the court held that there was not a clear and consistent pattern of criminality and that the older convictions were too remote to be admissible under rule 404(b).
The trial court erred in admitting 404(b) evidence obtained as a result of an earlier arrest when the earlier charges were dismissed for insufficient evidence and the probative value of the evidence depended on the defendant’s having committed those offenses. The court distinguished cases where several items are seized from a defendant at one time but the defendant is tried separately for possession of the various items; in this context, evidence may be admissible even if there has been an earlier acquittal, if the evidence forms an integral and natural part of an account of the present crime.
In a child sexual abuse case, 404(b) evidence that the defendant abused two witnesses 21 and 31 years ago was improperly admitted. In light the fact that the prior incidents were decades old, more was required in terms of similarity than that the victims were young girls in the defendant’s care, the incidents happened in the defendant’s home, and the defendant told the victims not to report his behavior.
In this murder case, the Court of Appeals held, over a dissent, that the trial court did not err by admitting under Rule 404(b) portions of an audiotape and a corresponding transcript, which included a conversation between the defendant and an individual, Anderson, with whom the defendant was incarcerated. Anderson was a key witness for the State and his credibility was crucial. The 404(b) evidence was not admitted for propensity but rather to show: that the defendant trusted and confided in Anderson; the nature of their relationship, in that the defendant was willing to discuss commission of the crimes at issue with Anderson; and relevant factual information to the murder charge for which the defendant was on trial. These were proper purposes. Additionally, the trial court did not abuse its discretion in admitting this evidence under the Rule 403 balancing test.
In this Cleveland County case, defendant appealed his convictions for statutory sexual offense with a child and indecent liberties with a child, arguing error in (1) admitting testimony containing hearsay from a pediatrician, (2) admitting testimony containing hearsay to “corroborate” a minor victim’s account of abuse, and (3) failing to intervene ex mero motu during the prosecutor’s closing argument. The Court of Appeals found no error in (1), and no prejudicial error in (2)-(3).
Defendant came to trial on the charges in January of 2023, after an investigation by the Cleveland County Department of Social Services into allegations that defendant sexually abused his two daughters. During the trial, defendant’s two daughters both testified about defendant’s actions. Additionally, a pediatrician who examined the two girls testified about statements they made during medical examinations. Defendant’s half-brother also testified, and explained that his step-sister had told him about sexual contact between defendant and the half-brother’s daughter. The daughter also testified about those events at trial, and a signed statement from defendant that was given in 2009 was admitted into evidence. During closing argument, the prosecutor attempted to describe “404(b) evidence” to the jury, and included the following statement: “The best predictor of future behavior is past behavior.” Slip Op. at 6.
Taking up (1), the Court of Appeals first noted the basis of the objection, as the pediatrician testified that the patient, one of defendant’s daughters, told her that defendant had touched her sister in a no-no spot. The prosecution responded to defendant’s objection by arguing that the statement could be admitted under Rule of Evidence 803(4), as a statement offered for medical diagnosis or treatment. Even though the statement referenced the patient’s sister, the court held that it was still offered for medical diagnosis or treatment. Here the pediatrician was conducting an exam that included “a patient’s mental health,” and the patient’s statement “concerned an eyewitness account of her sister’s sexual abuse, which undoubtedly affected [the patient’s] mental health.” Id. at 12.
Moving to (2), the court agreed with defendant that the trial court erred by admitting the hearsay statements, but held that defendant waived his objection. The testimony was framed as “corroborating” a witness’s former statement, but this witness did not testify at trial. Despite the error, the court held that defendant waived his objection because he did not object to other evidence that supported the out of court statements. Because the other evidence was “of a similar character,” including the written statement given by defendant himself, the court held that defendant waived his objection. Id. at 16.
Finally, the court considered (3), noting that the prosecutor’s statement was “the exact propensity purpose prohibited by [Rule of Evidence] 404(b).” Id. at 19. Although this statement was improper, the court did not see prejudice to the defendant, as there was ample evidence of guilt, and defendant did not rebut the presumption that the jury followed the trial court’s instructions.
In this possession of a firearm by a felon case, the trial court did not err when it allowed an officer to testify that during an unrelated incident, the officer saw the defendant exiting a house that the officer was surveilling and to testify that the defendant had a reputation for causing problems in the area. This testimony was offered for a proper purpose: to establish the officer’s familiarity with the defendant’s appearance so that he could identify him as the person depicted in surveillance footage. Additionally, the trial court did not abuse its discretion in finding that the probative value of this testimony outweighed its prejudicial impact under the Rule 403 balancing test. However, the court went on to hold that the officer’s testimony that the surveillance operation in question was in response to “a drug complaint” did not add to the reliability of the officer’s ability to identify the defendant. But because no objection was made to this testimony at trial plain error review applied, and any error that occurred with respect to this testimony did not meet that high threshold.
In a child sexual assault case, even if an officer’s testimony that the police department had a record of defendant’s date of birth “[f]rom prior arrests” could be considered 404(b) evidence, it was admissible to show a fact other than the defendant’s character: the defendant’s age, an element of the charged offense. Furthermore, there was no reasonable possibility that any error with respect to this testimony could have affected the verdict.
In this drug case, a new trial was required where character evidence was improperly admitted. When cross-examining the defendant’s witness, the prosecutor elicited testimony that the defendant had been incarcerated for a period of time. The court viewed this testimony as being equivalent to testimony regarding evidence of a prior conviction. Because the defendant did not testify at trial, the State could not attack his credibility with evidence of a prior conviction. The court rejected the State’s argument that the defendant opened the door to this testimony, finding that the defendant did not put his good character at issue.
In this larceny trial, the trial court did err by allowing the State to cross-examine the defendant on his previous convictions for uttering a forged instrument, forgery, and obtaining property by false pretenses, all of which occurred more than 10 years ago. The court noted that it has held that under Rule 609 trial court must make findings as to the specific facts and circumstances demonstrating that the probative value of an older conviction outweighs its prejudicial effect and that a conclusory finding that the evidence would attack the defendant's credibility without prejudicial effect does not satisfy this requirement. It continued, however, stating that a trial court’s failure to follow this requirement “does not [necessarily constitute] reversible error.” (quotation omitted). It explained: “Where there is no material conflict in the evidence, findings and conclusions are not necessary.” (quotation omitted). Here, other than making a general objection, the defendant offered no evidence and made no attempt to rebut the State’s argument for admitting the prior convictions. Furthermore, a trial court’s failure to make the necessary findings is not error when the record demonstrates the probative value of prior conviction evidence to be obvious, and that principle applied in the case at hand. The court held: “although the trial court’s findings were conclusory and would normally be inadequate under Rule 609(b), the record contains facts and circumstances showing the probative value of the evidence.” Among other things, it noted that the defendant’s credibility was central to the case and that all of the prior crimes involved dishonesty.
(1) Under Rule 609, a party is not required to establish a prior conviction before cross-examining a witness about the offense. (2) Although cross-examination under Rule 609 is generally limited to the name of the crime, the time and place of the conviction, and the punishment imposed, broader cross-examination may be allowed when the defendant opens the door. Here that occurred when the defendant tried to minimize his criminal record. (3) The trial court did not err by allowing the State to impeach the defendant with prior convictions when the defendant had stipulated that he was a convicted felon for purposes of a felon in possession of a firearm charge. The court declined to apply Old Chief v. United States, 519 U.S. 172 (1997), to this case where the defendant testified at trial and was subject to impeachment under Rule 609.
The trial court erred by allowing the State to impeach a defense witness with a prior conviction that occurred outside of the ten-year “look-back” for Rule 609 when the trial court made no findings as to admissibility. However, no prejudice resulted.
Over a dissent, the court held that the trial court committed prejudicial error by denying defense counsel’s request to allow into evidence an exhibit showing the victim’s prior convictions for twelve felonies and two misdemeanors, offered under Rule 609. The court noted that Rule 609 is mandatory, leaving no room for discretion by the trial judge.
The Fifth Amendment does not prohibit the government from introducing evidence from a court-ordered mental evaluation of a criminal defendant to rebut that defendant’s presentation of expert testimony in support of a defense of voluntary intoxication. It explained:
[We hold] that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal. Any other rule would undermine the adversarial process, allowing a defendant to provide the jury, through an expert operating as proxy, with a one-sided and potentially inaccurate view of his mental state at the time of the alleged crime.
Slip Op. at 5-6 (citation omitted). The Court went on to note that “admission of this rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination.” Id. at 6.
Use at trial of the defendant’s silence during a non-custodial interview did not violate the Fifth Amendment. Without being placed in custody or receiving Miranda warnings, the defendant voluntarily answered an officer’s questions about a murder. But when asked whether his shotgun would match shells recovered at the murder scene, the defendant declined to answer. Instead, he looked at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began “to tighten up.” After a few moments, the officer asked additional questions, which the defendant answered. The defendant was charged with murder and at trial prosecutors argued that his reaction to the officer’s question suggested that he was guilty. The defendant was convicted and on appeal asserted that this argument violated the Fifth Amendment. The Court took the case to resolve a lower court split over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a non-custodial police interview as part of its case in chief. In a 5-to-4 decision, the Court held that the defendant’s Fifth Amendment claim failed. Justice Alito, joined by the Chief Justice and Justice Kennedy found it unnecessary to reach the primary issue, concluding instead that the defendant’s claim failed because he did not expressly invoke the privilege in response to the officer’s question and no exception applied to excuse his failure to invoke the privilege. Justice Thomas filed an opinion concurring in the judgment, to which Justice Scalia joined. In Thomas’s view the defendant’s claim would fail even if he had invoked the privilege because the prosecutor’s comments regarding his pre-custodial silence did not compel him to give self-incriminating testimony.
Reversing the Court of Appeals, the court held that the trial court did not violate the defendant’s Fifth Amendment rights in connection with a civil domestic violence protective order hearing. During the defendant’s case-in-chief, but before the defendant took the stand, the trial court asked defense counsel whether the defendant intended to invoke the Fifth Amendment, to which counsel twice responded in the negative. While the defendant was on the stand, the trial court posed questions to her. The court noted that at no point during direct examination or the trial court’s questioning did the defendant, a voluntary witness, give any indication that answering any question posed to her would tend to incriminate her. “Put simply,” the court held, the “defendant never attempted to invoke the privilege against self-incrimination.” The court continued: “We are not aware of, and the parties do not cite to, any case holding that a trial court infringes upon a witness’s Fifth Amendment rights when the witness does not invoke the privilege.” The court further noted that in questioning the defendant, the trial court inquired into matters within the scope of issues that were put into dispute on direct examination by the defendant. Therefore, even if the defendant had attempted to invoke the Fifth Amendment, the privilege was not available during the trial court’s inquiry.
Affirming an unpublished court of appeals’ decision, the court held that no plain error occurred when a State’s witness testified that the defendant exercised his right to remain silent. On direct examination an officer testified that after he read the defendant his Miranda rights, the defendant “refused to talk about the case.” Because this testimony referred to the defendant’s exercise of his right to silence, its admission was error. The court rejected the State’s argument that no error occurred because the comments were neither made by the prosecutor nor the result of a question by the prosecutor designed to elicit a comment on the defendant’s exercise of his right to silence. It stated: “An improper adverse inference of guilt from a defendant’s exercise of his right to remain silent cannot be made, regardless of who comments on it.” The court went on to conclude that the error did not rise to the level of plain error. Finally, the court rejected the defendant’s argument that other testimony by the officer referred to the defendant’s pre-arrest silence.
In this embezzlement case, the trial court did not commit plain error by allowing a detective to testify regarding the defendant’s post-arrest silence. The defendant opened the door to the testimony by pursuing a line of inquiry on cross-examination centering around the detective’s attempts to contact the defendant before and after her arrest.
The trial court did not err by allowing the State to use the defendant’s post-arrest exercise of his right to remain silent against him. Here, there is no evidence in the record that the defendant was given Miranda warnings or that he ever invoked his right to remain silent. In fact, the evidence indicates that the defendant voluntarily spoke with officers after his arrest. Thus, he cannot demonstrate that his Fifth Amendment right to remain silent was improperly used against him at trial.
In this sexual assault case, the court rejected the defendant’s argument that the State’s impeachment of the defendant with his post-Miranda silence violated the defendant’s constitutional rights. After the defendant was arrested and read his Miranda rights, he signed a waiver of his rights and gave a statement indicating that he did not recall the details of the night in question. He was later connected to the crimes and brought to trial. At trial the defendant testified to specific details of the incident. He recounted driving an unknown man home from a nightclub to an apartment complex, meeting two young women in the complex’s parking lot, and having a consensual sexual encounter with the women. The defendant testified that the women offered him “white liquor,” marijuana, and invited him to their apartment. However, the defendant had failed to mention these details when questioned by law enforcement after his arrest, stating instead that he did not remember the details of the night. On cross-examination, the prosecutor asked the defendant why he had not disclosed this detailed account to law enforcement during that interview. The defendant stated that he was unable to recall the account because he was medicated due to a recent series of operations, and that the medication affected his memory during the interview. The court determined that the prosecutor’s cross-examination “was directly related to the subject matter and details raised in Defendant’s own direct testimony, including the nature of the sexual encounter itself, the police interrogation, and his prior convictions.” “Further,” the court explained, “the inquiry by the prosecutor was not in an effort to proffer substantive evidence to the jury, but rather to impeach Defendant with his inconsistent statements.” It concluded:
Defendant failed to mention his story of a consensual sexual encounter to the detective which he later recalled with a high level of particularity during direct examination. Such a “memorable” encounter would have been natural for Defendant to recall at the time [the officer] was conducting his investigation; thus, his prior statement was an “indirect inconsistency.” Further, the prosecutor did not exploit Defendant’s right to remain silent, but instead merely inquired as to why he did not remain consistent between testifying on direct examination and in his interview with the detective two years prior.
In this child sexual assault case, the court rejected the defendant’s argument that the defendant’s wife improperly testified as to the defendant’s exercise of his constitutional right to remain silent after arrest. The defendant pointed to the witness’s answer to a question about whether she ever talked to him about the allegations at issue. She responded: “I want to say that I did ask him what had happened, and he said that he couldn’t talk over the phone because it was being recorded.” Because the testimony at issue was from the defendant’s wife, not a law enforcement officer, and was given by her to explain whether she had ever discussed the allegations with the defendant, her statement that he had declined to discuss them over the phone due to a concern that the call was being recorded “cannot properly be characterized as a violation of his privilege against self-incrimination.”
In this larceny and obtaining property by false pretenses case, the court held: “[t]estimony that the investigating detective was unable to reach defendant to question him during her investigation was admissible to describe the course of her investigation, and was not improper testimony of defendant’s pre-arrest silence.” The testimony at issue involved the State’s questioning of the detective about her repeated unsuccessful efforts to contact the defendant and his lack of participation in the investigation. Noting that pre-arrest silence may not be used as substantive evidence of guilt, the court noted that none of the relevant cases involve a situation where “there has been no direct contact between the defendant and a law enforcement officer.” It continued: “Pre-arrest silence has no significance if there is no indication that a defendant was questioned by a law enforcement officer and refused to answer.” Here, the detective never made contact with the defendant, never confronted him in person, and never requested that he submit to questioning. Additionally, the court noted there was no indication that the defendant knew the detective was trying to talk to him and that he refused to speak to her. Thus, the court concluded “it cannot be inferred that defendant’s lack of response to indirect attempts to speak to him about an ongoing investigation was evidence of pre-arrest silence.”
The trial court did not err by instructing the jury that “[e]xcept as it relates to the defendant’s truthfulness, you may not consider the defendant’s refusal to answer police questions as evidence of guilt in this case” but that “this Fifth Amendment protection applies only to police questioning. It does not apply to questions asked by civilians, including friends and family of the defendant and friends and family of the victim.” The court rejected the defendant’s argument that the trial court committed plain error by instructing the jury that it could consider his failure to speak with friends and family as substantive evidence of guilt, noting that the Fifth Amendment’s protection against self-incrimination does not extend to questions asked by civilians.
By commenting in closing statements that the defendant failed to produce witnesses or evidence to contradict the State’s evidence, the prosecutor did not impermissibly comment on the defendant’s right to remain silent.
The State did not impermissibly present evidence of the defendant’s post-Miranda silence. After being advised of his Miranda rights, the defendant did not remain silent but rather made statements to the police. Thus, no error occurred when an officer indicated that after his arrest the defendant never asked to speak with the officer or anyone else in the officer’s office.
The trial court committed plain error by allowing the State to cross-examine the defendant about his failure to make a post-arrest statement to officers and to comment in closing argument on the defendant’s decision to refrain from giving such a statement. The following factors, none of which is determinative, must be considered in ascertaining whether a prosecutorial comment concerning a defendant’s post-arrest silence constitutes plain error: whether the prosecutor directly elicited the improper testimony or explicitly made an improper comment; whether there was substantial evidence of the defendant’s guilt; whether the defendant’s credibility was successfully attacked in other ways; and the extent to which the prosecutor emphasized or capitalized on the improper testimony. After concluding that the State improperly cross-examined the defendant about his post-arrest silence and commented on that silence in closing argument, the court applied the factors noted above and concluded that the trial court’s failure to preclude these comments constituted plain error.
The trial court committed error by allowing the State to use the defendant’s pre- and post-arrest silence as substantive evidence of guilt. When explaining the circumstances of the defendant’s initial interview, an officer testifying for the State stated: “He provided me – he denied any involvement, wished to give me no statement, written or verbal.” Also, when the State asked the officer whether the defendant had made any statements after arrest, the officer responded, “After he was mirandized [sic], he waived his rights and provided no further verbal or written statements.” The court noted that a defendant’s pre- arrest silence and post-arrest, pre-Miranda warnings silence may not be used as substantive evidence of guilt, but may be used to impeach the defendant by suggesting that his or her prior silence is inconsistent with present statements at trial. A defendant’s post-arrest, post-Miranda warnings silence, however, may not be used for any purpose. Here, the defendant testified after the officer, so the State could not use the officer’s statement for impeachment. Also, the officer’s testimony was admitted as substantive evidence during the State’s case in chief. However, the errors did not rise to the level of plain error.
The trial court did not improperly allow use of the defendant’s post-arrest silence when it allowed the State to impeach him with his failure to provide information about an alleged meeting with a drug dealer. In this murder case, the defendant claimed that the child victim drowned in a bathtub while the defendant met with the dealer. The defendant’s pre-trial statements to the police never mentioned the meeting. The court held that because the defendant waived his rights and made pre-trial statements to the police, the case did not involve the use of post-arrest silence for impeachment. Rather, it involved only the evidentiary issue of impeachment with a prior inconsistent statement.
The trial court erred by allowing the State to introduce evidence, during its case in chief, of the defendant's pre-arrest and post-arrest, pre-Miranda warnings silence. The only permissible purpose for such evidence is impeachment; since the defendant had not yet testified when the State presented the evidence, the testimony could not have been used for that purpose. Also, the State’s use of the defendant's post-arrest, post-Miranda warnings silence was forbidden for any purpose. However, the court concluded that there was no plain error given the substantial evidence pointing to guilt.
The trial court erred in allowing the state to question the defendant about his failure to make a statement to law enforcement and to reference the defendant’s silence in closing argument.
Under the circumstances, no error occurred when the trial court allowed an officer to testify that a substance was crack cocaine based on visual examination and on the results of a narcotics field test kit (NIK). After officers observed the substance, the defendant ate it, in an attempt to conceal evidence. As to the visual identification, the court noted that “[u]nder normal circumstances” the testimony would be inadmissible under State v. Ward, 364 N.C. 133 (2010) (testimony identifying a controlled substance must be based on a scientifically valid chemical analysis and not mere visual inspection). It also noted that testimony regarding the NIK typically would be inadmissible because the State did not sufficiently establish the reliability of that test. However, the court concluded that “[u]nder the unique circumstances of this case . . . Defendant forfeited his right to challenge the admission of this otherwise inadmissible testimony.” It reasoned that “[j]ust as a defendant can lose the benefit of a constitutional right established for his or her benefit, we hold a defendant can lose the benefit of a statutory or common law legal principle established for his or her benefit in the event that he or she engages in conduct of a sufficiently egregious nature to justify a forfeiture determination.” It concluded: “[H]aving prevented the State from conducting additional chemical analysis by eating the crack cocaine, Defendant has little grounds to complain about the trial court’s decision to admit the police officers’ testimony identifying the substance as crack cocaine based on visual inspection and the NIK test results.”
Noting that it has not had occasion to consider whether statements by law enforcement officers acting as agents of the government and concerning a matter within the scope of their agency or employment constitute admissions of a party opponent under Rule 801(d) for the purpose of a criminal proceeding, the court declined to address the issue because even if error occurred, it did not constitute plain error.
This Mecklenburg County case involved charges of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. The defendant and two other men (one of whom was unidentified) entered the victim’s home and attacked him with a machete and hammer. The victim’s girlfriend escaped with an infant and called police. The defendant and his named co-conspirator apprehended the girlfriend outside of the home, where the defendant instructed the other man to kill her. He refused, and the defendant fled; the other man stayed with the woman until police arrived (and became the named co-conspirator in the indictment). The defendant was convicted of all charges at trial and sentenced to a minimum term of 336 months.
An officer was asked whether she received any conflicting information about the defendant’s identity from witnesses interviewed about the case. The officer testified at trial that she did not. The defendant did not object at trial but complained that admission of evidence was hearsay, violated his confrontation rights, and constituted plain error. Rejecting this argument, the court found that the officer’s testimony did not convey a statement from any of the interviewees and was capable of different interpretations. It was not therefore a statement offered for the truth of the matter asserted and violated neither hearsay rules nor the Confrontation Clause. Even if the admission of this evidence was error, it was not prejudicial and did not rise to plain error. The conviction for conspiracy to commit attempted murder was reversed, the remaining convictions affirmed, and the matter remanded.
(1) The trial court did not err by admitting the defendant’s brother’s videotaped statement to the police as illustrative evidence. The defendant asserted that the videotaped statement constituted inadmissible hearsay. However the trial court specifically instructed the jury that the videotape was being admitted for the limited, non-hearsay purpose of illustrating the brother’s testimony. Because the videotaped statement was not admitted for substantive purposes the defendant’s argument fails.
(2) The trial court properly allowed into evidence the defendant’s brother’s testimony that “[the defendant] told [him] that he did it” and "[the defendant] told [him] he was the one that did it.” These statements were properly allowed as admissions of a party opponent under Rule 801(d).
The trial court did not err by allowing a witness to testify that after the incident in question and while she was incarcerated, a jailer told her that the defendant was in an adjacent cell. The defendant argued that because the jailer did not testify at trial, this was inadmissible hearsay. The court disagreed, finding that the statement was not offered to prove its truth but rather to explain why the witness was afraid to testify.
In this drug case, the trial court did not err by allowing an officer to testify about information collected from a non-testifying witness during an investigation. The statement was not offered for its truth but rather to explain the officer’s subsequent conduct and how the investigation of the defendant unfolded.
In this armed robbery case, the statement at issue was not hearsay because it was not offered for the truth of the matter asserted. At trial one issue was whether an air pistol used was a dangerous weapon. The State offered a detective who performed a test fire on the air pistol. He testified that he obtained the manual for the air pistol to understand its safety and operation before conducting the test. He testified that the owner’s manual indicated that the air pistol shot BBs at a velocity of 440 feet per second and had a danger distance of 325 yards. He noted that he used this information to conduct the test fire in a way that would avoid injury to himself. The defendant argued that this recitation from the manual was offered to prove that the gun was a dangerous weapon. The court concluded however that this statement was offered for a proper non-hearsay purpose: to explain the detective’s conduct when performing the test fire.
The defendant’s own statements were admissible under the hearsay rule. The statements were recorded by a police officer while transporting the defendant from Georgia to North Carolina. The court noted that “[a] defendant’s statement that is not purported to be a written confession is admissible under the exception to the hearsay rule for statements by a party-opponent and does not require the defendant’s acknowledgement or adoption.”
The trial court did not err by denying the defendant’s request to redact certain statements from a transcript of the defendant’s interview with the police. In the statements at issue, an officer said that witnesses saw the defendant pick up a knife and stab the victim. The statements were not hearsay because they were not admitted for the truth of the matter asserted but rather to provide context for the defendants' answers and to explain the detectives' interviewing techniques. The court also noted that the trial court gave an appropriate limiting instruction.
When statements were offered to explain an officer’s subsequent action, they were not offered for the truth of the matter asserted and thus were not hearsay.
An officer’s testimony as to a witness’ response when asked if she knew what had happened to the murder weapon was not hearsay. The statement was not offered for the truth of the matter asserted but rather to explain what actions the officer took next (contacting his supervisor and locating the gun). Although other hearsay evidence was erroneously admitted, no prejudice resulted.
Statements offered to explain a witness’s subsequent actions were not offered for the truth of the matter asserted and not hearsay.
A witness’s written statement, admitted to corroborate his trial testimony, was not hearsay. The statement was generally consistent with the witness’s trial testimony. Any points of difference were slight, only affecting credibility, or were permissible because they added new or additional information that strengthened and added credibility to the witness’s testimony.
(1) In a child sexual assault case, the trial court did not commit plain error by allowing a witness to testify about her step-granddaughter’s statements. The evidence was properly admitted for the non-hearsay purpose of explaining the witness’s subsequent conduct of relaying the information to the victim’s parents so that medical treatment could be obtained. Also, the victim’s statements corroborated her trial testimony. (2) The trial court did not commit plain error by allowing an expert in clinical social work to relate the victim’s statements to her when the statements corroborated the victim’s trial testimony.
A victim’s statement to his mother, made in the emergency room approximately 50 minutes after a shooting and identifying the defendant as the shooter, was a present sense impression under Rule 803(1). The time period between the shooting and the statement was sufficiently brief. The court noted that the focus of events during the gap in time was on saving the victim’s life, thereby reducing the likelihood of deliberate or conscious misrepresentation.
In this child sexual assault case, the trial court did not err by admitting the victim’s statements to his mother under the excited utterance exception. The court rejected the defendant’s argument that a 10-day gap between the last incident of sexual abuse and the victim’s statements to his mother put them outside the scope of this exception. The victim made the statements immediately upon returning home from a trip to Florida; his mother testified that when the victim arrived home with the defendant, he came into the house “frantically” and was “shaking” while telling her that she had to call the police. The court noted that greater leeway with respect to timing is afforded to young victims and that the victim in this case was 15 years old. However it concluded: “while this victim was fifteen rather than four or five years of age, he was nevertheless a minor and that fact should not be disregarded in the analysis.” The court also rejected the defendant’s argument that because the victim had first tried to communicate with his father by email about the abuse, his later statements to his mother should not be considered excited utterances.
In this murder case where the defendant was charged with killing his wife, statements by the couple’s child to daycare workers made six days after her mother was killed were admissible as excited utterances. The child’s daycare teacher testified that the child asked her for “the mommy doll.” When the teacher gave the child a bucket of dolls, the child picked two dolls, one female with long hair and one with short hair, and hit them together. The teacher testified that she saw the child strike a “mommy doll” against another doll and a dollhouse chair while saying, “[M]ommy has boo-boos all over” and “[M]ommy’s getting a spanking for biting. . . . [M]ommy has boo-boos all over, mommy has red stuff all over.”
(1) In a child sexual assault case, the trial court did not err by declining to admit defense-proffered evidence offered under the hearsay exception for excited utterances. The evidence was the victim’s statement to a social worker made during “play therapy” sessions. Because the record contained no description of the victim’s behavior or mental state, the court could not discern whether she was excited, startled, or under the stress of excitement when the statement was made.
Evidence > Hearsay > Hearsay Exceptions > Rule 803(3) -- Then-Existing Mental, Emotional or Physical condition
In this murder case, the trial court did not err by admitting hearsay testimony under the Rule 803(3) state of mind hearsay exception. The victim’s statement that she “was scared of” the defendant unequivocally demonstrated her state of mind and was highly relevant to show the status of her relationship with the defendant on the night before she was killed.
The trial court did not err by admitting a murder victim’s hearsay statement to her sister-in-law under the Rule 803(3) then existing mental, emotional or physical condition hearsay exception. The murder victim told her sister-in-law that the defendant was harassing her and had threatened her.
A murder victim’s statements to her mother were properly admitted under the Rule 803(3) exception for then-existing mental, emotional or physical condition. The victim told her mother that she wanted to leave the defendant because he was wanted in another jurisdiction for attempting to harm the mother of his child; the victim also told her mother that she previously had tried to leave the defendant but that he had stalked and physically attacked her. The statements indicate difficulties in the relationship prior to the murder and are admissible to show the victim’s state of mind.
Evidence > Hearsay > Hearsay Exceptions > Rule 803(4) – Statements for Medical Diagnosis and Treatment
In this Cleveland County case, defendant appealed his convictions for statutory sexual offense with a child and indecent liberties with a child, arguing error in (1) admitting testimony containing hearsay from a pediatrician, (2) admitting testimony containing hearsay to “corroborate” a minor victim’s account of abuse, and (3) failing to intervene ex mero motu during the prosecutor’s closing argument. The Court of Appeals found no error in (1), and no prejudicial error in (2)-(3).
Defendant came to trial on the charges in January of 2023, after an investigation by the Cleveland County Department of Social Services into allegations that defendant sexually abused his two daughters. During the trial, defendant’s two daughters both testified about defendant’s actions. Additionally, a pediatrician who examined the two girls testified about statements they made during medical examinations. Defendant’s half-brother also testified, and explained that his step-sister had told him about sexual contact between defendant and the half-brother’s daughter. The daughter also testified about those events at trial, and a signed statement from defendant that was given in 2009 was admitted into evidence. During closing argument, the prosecutor attempted to describe “404(b) evidence” to the jury, and included the following statement: “The best predictor of future behavior is past behavior.” Slip Op. at 6.
Taking up (1), the Court of Appeals first noted the basis of the objection, as the pediatrician testified that the patient, one of defendant’s daughters, told her that defendant had touched her sister in a no-no spot. The prosecution responded to defendant’s objection by arguing that the statement could be admitted under Rule of Evidence 803(4), as a statement offered for medical diagnosis or treatment. Even though the statement referenced the patient’s sister, the court held that it was still offered for medical diagnosis or treatment. Here the pediatrician was conducting an exam that included “a patient’s mental health,” and the patient’s statement “concerned an eyewitness account of her sister’s sexual abuse, which undoubtedly affected [the patient’s] mental health.” Id. at 12.
Moving to (2), the court agreed with defendant that the trial court erred by admitting the hearsay statements, but held that defendant waived his objection. The testimony was framed as “corroborating” a witness’s former statement, but this witness did not testify at trial. Despite the error, the court held that defendant waived his objection because he did not object to other evidence that supported the out of court statements. Because the other evidence was “of a similar character,” including the written statement given by defendant himself, the court held that defendant waived his objection. Id. at 16.
Finally, the court considered (3), noting that the prosecutor’s statement was “the exact propensity purpose prohibited by [Rule of Evidence] 404(b).” Id. at 19. Although this statement was improper, the court did not see prejudice to the defendant, as there was ample evidence of guilt, and defendant did not rebut the presumption that the jury followed the trial court’s instructions.
The trial court did not err by excluding the defendant’s statement to a doctor, offered under Rule 803(4) (hearsay exception for medical diagnosis and treatment). The defendant told the doctor that he only confessed to the murder because an officer told him he would receive the death penalty if he did not do so. Relying on appellate counsel’s admission that the defendant saw the doctor with the hope that any mental illness he may have had could be diagnosed and used as a defense at trial, the court concluded, “[e]ven though defendant may have wanted continued treatment if he did, in fact, have a mental illness, his primary objective was to present the diagnosis as a defense.” The court also noted that the defendant did not make any argument as to how his statement was relevant to medical diagnosis or treatment.
(1) In a child sexual assault case, the trial court did not err by declining to admit defense-proffered evidence offered under the hearsay exception for statements made purposes of medical diagnosis and treatment. The evidence was the victim’s statement to a social worker made during “play therapy” sessions. Nothing indicated that the victim understood that the sessions were for the purpose of providing medical diagnosis or treatment. They began more than two weeks after an initial examination and were conducted at a battered women’s shelter in a “very colorful” room filled with “board games, art supplies, Play-Doh, dolls, blocks, cars, [and] all [other types] of things for . . . children to engage in” rather than in a medical environment. Although the social worker emphasized that the victim should tell the truth, there was no evidence that she told her that the sessions served a medical purpose or that the victim understood that her statements might be used for such a purpose. (2) The trial court did not err by declining to admit the same statement as an excited utterance. Because the record contained no description of the victim’s behavior or mental state, the court could not discern whether she was excited, startled, or under the stress of excitement when the statement was made.
In this murder case, the trial court did not err by admitting into evidence prior written statements made to the police by the defendant’s brothers, Reginald and Antonio, pursuant to the Rule 803(5) recorded recollection exception to the hearsay rule. The statements at issue constitute hearsay. Even though Reginald and Antonio testified at trial, their written statements were not made while testifying; rather they were made to the police nearly 3 years prior to trial. Thus they were hearsay and inadmissible unless they fit within a hearsay exception. Here, and as discussed in detail in the court’s opinion, the statements meet all the requirements of the Rule 803(5) recorded recollection hearsay exception.
The trial court did not err by allowing the introduction of a video recording of the State’s witness being interviewed by law enforcement as substantive evidence where the statement fell within the Rule 803(5) hearsay exception for past recollection recorded. The court rejected the notion that the video had been introduced to refresh the witness’s recollection.
An audio recording can be admitted under the Rule 803(5) exception for recorded recollection. However, the statement at issue was not admissible under this exception because the witness did not recall making the statement and when asked whether she fabricated it, the witness testified that because of her mental state she was “liable to say anything.”
In this Cabarrus County case, defendant appealed his conviction for first-degree murder, arguing error in admitting Facebook messages as business records without an affidavit sworn before a notary. The Court of Appeals found no error.
In April of 2021, the victim was shot outside a convenience store by someone in a red vehicle. At trial, the State presented evidence that tied defendant to the red vehicle and the convenience store. The State also presented evidence that defendant blamed his recent arrest on the victim and her sister, including Facebook messages saying the victim was responsible for the arrest. These Facebook messages were offered as business records with a “Certificate of Authenticity of Domestic Records of Regularly Conducted Activity” signed by a “Custodian of Records,” but the certificate did not include a notarized signature. Slip Op. at 3. Instead, the certificate had a declaration signed by the custodian under penalty of perjury. Defense counsel objected to the admission of the messages without a sworn affidavit, but the trial court overruled all objections.
On appeal, defendant argued that the messages were hearsay not properly authenticated as business records, and that admitting the records violated his Confrontation Clause protections. The Court of Appeals walked through defendant’s objections, dismissing both in turn. Considering the hearsay argument, the court looked to State v. Hollis, COA 23-838, 905 S.E.2d 265 (N.C. App. 2024), for the proposition that “an affidavit is valid and authenticated when it is submitted under penalty of perjury” even when the affidavit is not sworn before a notary. Slip Op. at 9. The court explained that “[t]he certificate under penalty of perjury fulfills the purpose of authentication.” The court then considered the Confrontation Clause issue, holding that “[t]he trial court’s decision comports with the general rule that business records are nontestimonial in nature.” Id. at 13. Because the records were nontestimonial, “[t]he Confrontation Clause does not apply.” Id. at 14.
In this methamphetamine case, a report about the defendant’s pseudoephedrine purchases was properly admitted as a business record. The report was generated from the NPLEx database. The defendant argued that the State failed to lay a proper foundation, asserting that the State was required to present testimony from someone associated with the database, or the company responsible for maintaining it, regarding the methods used to collect, maintain and review the data in the database to ensure its accuracy. The court disagreed. Among other things, an officer testified about his knowledge and familiarity with the database and how it is used by pharmacy employees. This testimony provided a sufficient foundation for the admission of the report as a business record.
The trial court properly admitted data obtained from an electronic surveillance device worn by the defendant and placing him at the scene. The specific evidence included an exhibit showing an event log compiled from data retrieved from the defendant’s device and a video file plotting the defendant’s tracking data. The court began by holding that the tracking data was a data compilation and that the video file was merely an extraction of that data produced for trial. Thus, it concluded, the video file was properly admitted as a business record if the tracking data was recorded in the regular course of business near the time of the incident and a proper foundation was laid. The defendant did not dispute that the device’s data was recorded in the regular course of business near the time of the incident. Rather, he asserted that the State failed to establish a proper foundation to verify the authenticity and trustworthiness of the data. The court disagreed noting that the officer-witness established his familiarity with the GPS tracking system by testifying about his experience and training in electronic monitoring, concerning how the device transmits data to a secured server where the data was stored and routinely accessed in the normal course of business, and how, in this case, he accessed the tracking data for the defendant’s device and produced evidence introduced at trial.
In this civil case the court held that an officer’s accident report, prepared near the time of the accident, using information from individuals who had personal knowledge of the accident was admissible under the Rule 803(6) hearsay exception.
In a case in which the defendant was charged with, among other things, armed robbery and possession of a stolen handgun, no plain error occurred when the trial court admitted, under Rule 803(6) (records of regularly conducted activity) testimony that the National Crime Information Center ("NCIC") database indicated a gun with the same serial number as the one possessed by the defendant had been reported stolen in South Miami, Florida. The court rejected the defendant’s argument that the State failed to lay the necessary foundation for admission of the evidence. The defendant had argued that the State was required to present testimony from a custodian of records for NCIC that the information was regularly kept in the course of NCIC's business and that NCIC routinely makes such records in the course of conducting its business. The proper foundation was laid through the testimony of a local police officer who used the database in his regular course of business.
Information in a police department database linking the defendant’s name to her photograph fell within the Rule 803(8) public records hearsay exception. After an undercover officer engaged in a drug buy from the defendant, he selected the defendant’s photograph from an array presented to him by a fellow officer. The fellow officer then cross-referenced the photograph in the database and determined that the person identified was the defendant. This evidence was admitted at trial. The court noted that although the Rule 803(8) exception excludes matters observed by officers and other law enforcement personnel regarding a crime scene or apprehension of the accused, it allows for admission of public records of purely ministerial observations, such as fingerprinting and photographing a suspect, and cataloguing a judgment and sentence. The court concluded that the photographs in the police department’s database were taken and compiled as a routine procedure following an arrest and were not indicative of anything more than that the person photographed has been arrested. It concluded: “photographing an arrested suspect is a routine and unambiguous record that Rule 803(8) was designed to cover. Absent evidence to the contrary, there is no reason to suspect the reliability of these records, as they are not subject to the same potential subjectivity that may imbue the observations of a police officer in the course of an investigation.”
In a larceny of motor vehicle case, the court held that the Kelley Blue Book and the NADA pricing guide fall within the Rule 803(17) hearsay exception for “[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” Those items were use to establish the value of the motor vehicles stolen.
(1) In this murder, robbery and assault case, the trial court properly found that a witness was unavailable to testify under Evidence Rule 804 and the Confrontation Clause. The witness, Montes, was arrested in connection with the crimes at issue. She cooperated with officers and gave a statement that incriminated the defendant. She agreed to appear in court and testify against the defendant, but failed to do so. Her whereabouts were unknown to her family, her bondsman and the State. The State successfully moved to allow her recorded statement into evidence on grounds that she was unavailable and that the defendant forfeited his constitutional right to confrontation due to his own wrongdoing. The defendant was convicted and appealed. Considering the issue, the court noted that the evidence rule requires that a finding of unavailability be supported by evidence of process or other reasonable means. To establish unavailability under the Confrontation Clause, there must be evidence that the State made a good-faith effort to obtain the witness’s presence at trial. Here, the State delivered a subpoena for Montes to her lawyer, and Montes agreed to appear in court to testify against the defendant. These findings support a conclusion both that the State used reasonable means and made a good-faith effort to obtain the witness’s presence at trial.
(2) The trial court properly found that the defendant forfeited his Confrontation Clause rights through wrongdoing. The relevant standard for determining forfeiture by wrongdoing is a preponderance of the evidence and the State met this burden. Here, the defendant made phone calls from jail showing an intent to intimidate Montes into not testifying, and threatened another testifying witness. Additionally, his mother and grandmother, who helped facilitate his threatening calls to Montes, showed up at Montes’ parents’ house before trial to engage in a conversation with her about her testimony. The trial court properly found that the net effect of the defendant’s conduct was to pressure and intimidate Montes into not appearing in court and not testifying.
In a case in which there was a dissenting opinion, the court held that the trial court erred by admitting a non-testifying witness’s pretrial deposition testimony. (1) The trial court’s finding were insufficient to establish that the witness was unavailable for purposes of the Rule 804(b)(1) hearsay exception and the Confrontation Clause. The entirety of the trial court’s findings on this issue were: “The [trial court] finds [the witness] is in the military and is stationed outside of the State of North Carolina currently. May be in Australia or whereabouts may be unknown as far as where she’s stationed.” The trial court made no findings that would support more than mere inference that the State was unable to procure her attendance; made no findings concerning the State’s efforts to procure the witness’s presence at trial; and made no findings demonstrating the necessity of proceeding to trial without the witness’s live testimony. The trial court did not address the option of continuing trial until the witness returned from deployment. It did not make any finding that the State made a good-faith effort to obtain her presence at trial, much less any findings demonstrating what actions taken by the State could constitute good-faith efforts. It thus was error for the trial court to grant the State’s motion to admit the witness’ deposition testimony in lieu of her live testimony at trial. (2) The court went on to find that even if the trial court’s findings of fact and conclusions had been sufficient to support its ruling, the evidence presented to the trial court was insufficient to support an ultimate finding of “unavailability” for purposes of Rule 804. It noted in part that the State’s efforts to “effectuate [the witness’s] appearance” were not “reasonable or made in good faith.” (3) A witness’s pretrial deposition testimony, taken in preparation of the criminal case, was clearly testimonial for purposes of the Confrontation Clause. (4) The court found that the facts of the case did not support a finding that the witness was unavailable under the Confrontation Clause. In this respect, the court noted that no compelling interest justified denying the defendant’s request to continue the trial to allow for the witness’s live testimony. It added: “The mere convenience of the State offers no such compelling interest.” It continued: “We hold that . . . in order for the State to show that a witness is unavailable for trial due to deployment, the deployment must, at a minimum, be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.” (quotation omitted).
In this Edgecombe County case, defendant appealed his convictions of obtaining property by false pretenses and exploitation of a disabled or elderly person in a business relationship. The Court of Appeals found no error and affirmed defendant’s convictions.
Defendant approached an 88-year-old woman at her home and offered to assist her with home improvement work. After claiming to perform several tasks and having the homeowner agree to invoices, an investigation determined that defendant did not perform the work he claimed, and he was indicted for the charges in this matter. Before the criminal trial, the elderly homeowner filed for a civil no-contact order against defendant. Defendant did not appear at the hearing and did not cross-examine any witnesses; the no-contact order was entered against defendant at the conclusion of the hearing. Defendant subsequently filed motions attempting to inspect the property in question, and the trial court denied those motions. The homeowner died prior to the criminal trial and the trial court entered an order admitting her testimony from the no-contact civil hearing.
Defendant’s appeal asserted two errors by the trial court: (1) admission of the testimony of the homeowner from the civil hearing, and (2) denial of his motion to inspect the property. The Court of Appeals first considered the admission of testimony and the confrontation clause issues involved, applying the three-prong test articulated in State v. Clark, 165 N.C. App. 279 (2004). The court determined that defendant did have a meaningful opportunity to cross-examine the homeowner in the civil hearing, but he did not take advantage of that opportunity. Because that hearing was on matters substantially similar to the criminal trial, defendant waived his opportunity by not cross-examining the homeowner. The similarity of matters also supported the court’s hearsay analysis, as it found that the testimony was admissible under the exception in North Carolina Rule of Evidence 804(b)(1). The court also found that the admission of the no-contact order did not represent plain error under N.C.G.S. § 1-149 and was not a violation of defendant’s due process rights.
Considering defendant’s second issue, the court explained that there is no general right to discovery in a criminal case, and defendant identified no clear grounds for discovery to be required in this matter. AlthoughState v. Brown, 306 N.C. 151 (1982), provides criminal defendants may have a right to inspect a crime scene under limited circumstances, the court distinguished defendant’s situation from Brown. Specifically, defendant performed the work here himself and was not deprived of the ability to find exculpatory evidence, as he would have firsthand knowledge of the work and locations in question. The court found no right to inspect the property in this case and no error by the trial court in denying defendant’s request.
The trial court properly admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The court rejected the defendant’s argument that the testimony was inadmissible because he had no motive to cross-examine the witness during the plea hearing.
In the defendant’s trial for sex offense, burglary, and other crimes, the trial court did not err by admitting the defendant’s statement, made to an officer upon the defendant’s arrest: “Man, I’m a B and E guy.” Given the charges, the statement was a statement against penal interest pursuant to Rule 804(b)(3).
The trial court did not abuse its discretion by sustaining the State’s objection to a defense proffer of a co-defendant’s hearsay statement indicating that he and the defendant acted in self-defense. The statement was not admissible under Rule 804(b)(3) (statement against interest exception). To be admissible under that rule (1) the statement must be against the declarant’s interest, and (2) corroborating circumstances must indicate its trustworthiness. As to the second prong, there must be an independent, non-hearsay indication of trustworthiness. There was no issue about whether the statement satisfied the first prong. However, as to the second, there was no corroborating evidence. Furthermore, the co-defendant had a motive to lie: he was he friends with the defendant, married to the defendant’s sister, and had an incentive to exculpate himself. Nor was the statement admissible under the Rule 804(b)(5) catchall exception. Applying the traditional six-part residual exception analysis, the court concluded that, for the reasons noted above, the statement lacked circumstantial guarantees of trustworthiness.
Modifying and affirming State v. Sargeant, 206 N.C. App. 1 (Aug. 3, 2010), the court held that the trial court committed prejudicial error by excluding defense evidence of hearsay statements made by a participant in the murder, offered under the Rule 804(b)(5) residual exception. The court noted that the only factor in dispute under the six-factor residual exception test was circumstantial guarantees of trustworthiness. To evaluate that factor, a court must assess, among other things, (1) the declarant's personal knowledge of the event; (2) the declarant's motivation to speak the truth; (3) whether the declarant recanted; and (4) the reason for the declarant's unavailability. Because the record established that the declarant had personal knowledge and never recanted, the court focused it analysis on factors (2) and (4). The court found that the trial court’s conclusions that these considerations had not been satisfied were made on the basis of inaccurate and incomplete findings of fact used to reach unsupported conclusions of law.
In this Wake County case, defendant appealed his convictions for statutory rape, statutory sexual offense, and indecent liberties with a child, arguing the admission of hearsay cellphone records violated his rights under the Confrontation Clause of the Sixth Amendment. The Court of Appeals agreed, vacating the judgment and remanding for a new trial.
In 2022, defendant came to trial for having sex with a thirteen-year-old girl during the summer of 2019. At trial, the State offered cellphone records showing calls between a number associated with defendant and a number associated with the victim as Exhibits #2 and #3. Defendant was subsequently convicted of all charges, and defendant appealed. The Court of Appeals issued an opinion on October 17, 2023, which was subsequently withdrawn and replaced by the current opinion.
Considering defendant’s Sixth Amendment argument, the court quoted State v. Locklear, 363 N.C. 438 (2009), for the concept that the Confrontation Clause “bars admission of direct testimonial evidence, ‘unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant.’” Slip Op. at 7-8. When determining whether a defendant’s Confrontation Clause rights were violated, courts apply a three-part test: “(1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and, (3) whether defendant had an opportunity to cross-examine the declarant.” Id. at 8. Here, “[t]he trial court’s findings answered the first and second factors . . . in the affirmative and the third factor in the negative,” meaning “the evidence should have been excluded.” Id. at 9.
The court went on to explain why the admission of the two exhibits was improper under the residual exception in Rule of Evidence 803(24), noting that “[t]he primary purpose of the court-ordered production of and preparation of the data records retained and provided by Verizon was to prepare direct testimonial evidence for Defendant’s trial.” Id. at 13. Because defendant was “not given the prior opportunity or at trial to challenge or cross-examine officials from Verizon, who had purportedly accumulated this evidence . . . their admission as such violated Defendant’s rights under the Confrontation Clause.” Id.
After establishing that admission of the exhibits was error, the court explained that the State could not meet the burden of showing the error was “harmless beyond a reasonable doubt” as required for constitutional errors. Id. at 14. As a result, the court vacated the judgment and remanded for a new trial.
In this Guilford County case, defendant appealed her conviction for trafficking methamphetamine, arguing (1) plain error in admitting testimony from an expert without a sufficient foundation for reliability under Rule of Evidence 702, and (2) error in failing to intervene ex mero motu when the prosecutor made improper remarks during closing argument about her past convictions. The Court of Appeals found no plain error in (1), and no error in (2).
In November of 2018, law enforcement officers set up an undercover investigation of a suspected drug dealer. At a meeting set up by an undercover officer to purchase methamphetamine, defendant was the driver of the vehicle with the drug dealer. After officers found methamphetamine in the vehicle, defendant was charged and ultimately convicted of trafficking methamphetamine by possession.
Looking to (1), the Court of Appeals found error in admitting the State’s expert testimony under Rule 702, as “the court failed to exercise its gatekeeping function” when admitting the expert’s testimony. Slip Op. at 7. Although the expert offered testimony about the type of analysis she performed to identify the methamphetamine, “she did not explain the methodology of that analysis.” Id. However, the court noted that this error did not rise to the level of plain error as the expert “identified the tests she performed and the result of those tests,” and she did not engage in “baseless speculation.” Id.
Turning to (2), the court noted that defendant testified on her own behalf and opened the door to character evidence about her past convictions, and that she did not object at trial to the improper argument. The court found the majority of the closing argument to be unobjectionable, but did agree that the prosecutor “improperly suggested that Defendant was more likely to be guilty of the charged offenses based on her past convictions.” Id. at 9. However, this improper suggestion was only “a few lines of the prosecutor’s eighteen-page closing argument” and “was not so grossly improper that it warranted judicial intervention.” Id.
The defendant was convicted of first-degree murder in Person County. The victim was a neighbor with whom the defendant had long-running disputes. According to the defendant, he shot the neighbor in self-defense. The victim was shot 11 or 12 times, with the vast majority of the bullets having entered the victim from the back and side of his body. The State presented evidence from an experiment performed by a forensic firearms examiner attempting to replicate the production of the layout of bullet shell casings found at the scene in order to demonstrate the shooter’s location and to rebut the defendant’s self-defense claim. The expert only reported the results of the experiment and did not specifically opine about the shooter’s location.
(1) Relying on cases pre-dating the adoption of the Rules of Evidence, the defendant argued this evidence was improperly admitted in violation of the “substantial similarity” test. These older cases imposed stricter requirements for the admission of “experimental evidence” – that is, evidence “about an experiment that is used to prove something about the actual events that occurred in the case.” Slip op. at 8. The defendant argued that these rules controlled, rather than Rule of Evidence 702. Under those cases, the standard of review on appeal of this issue would have been de novo, rather than the abuse of discretion standard applied to Rule 702 challenges. The defendant did not argue or cite to Rule 702 or to any cases applying the rule since the 2011 amendments adopting the Daubert standard for expert testimony. Rejecting this argument, the court found that later cases, even those pre-dating the 2011 amendment to Rule 702, had in fact adopted an abuse of discretion standard of review for experimental evidence. The court also rejected the notion that the substantial similarity test stood apart from Rule 702. “The notion of ‘substantial similarity’ for experimental evidence is one of the many ‘particular factors articulated in previous cases’ that is now baked into the third prong of Rule 702’s reliability test.” Id. at 10. Thus, pursuant to Rule 702, the standard of review is abuse of discretion. Even if the defendant’s argument that the evidence was erroneously admitted was not forfeited by his failure to argue Rule 702 or abuse of discretion, the trial court did not err in admitting the testimony. In the words of the court: “Here, the trial court’s determination that the experiment met the Rule 702 criteria was a reasoned one and not manifestly arbitrary. Thus, we cannot hold that the trial court abused its discretion.” Id. at 12.
(2) The defendant also argued that the trial court erred in qualifying the expert to give an opinion about shell ejection patterns. Voir dire of the expert revealed that he had not received training on ejection patterns of bullet shells, that no certification for this subject exists, and that he had not previously performed this type of experiment. According to the court, the trial court did not abuse its discretion in so qualifying the expert: “’[I]t is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist’ as long as ‘the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’” Id. at 14. Based on his extensive training and experience in the field of firearms, the trial court acted within its discretion and did not err in qualifying the expert.
The conviction was therefore unanimously affirmed with Judges Berger and Arrowood concurring.
The defendant was convicted of first-degree murder in Person County. The victim was a neighbor with whom the defendant had long-running disputes. According to the defendant, he shot the neighbor in self-defense. The victim was shot 11 or 12 times, with the vast majority of the bullets having entered the victim from the back and side of his body. The State presented evidence from an experiment performed by a forensic firearms examiner attempting to replicate the production of the layout of bullet shell casings found at the scene in order to demonstrate the shooter’s location and to rebut the defendant’s self-defense claim. The expert only reported the results of the experiment and did not specifically opine about the shooter’s location.
(1) Relying on cases pre-dating the adoption of the Rules of Evidence, the defendant argued this evidence was improperly admitted in violation of the “substantial similarity” test. These older cases imposed stricter requirements for the admission of “experimental evidence” – that is, evidence “about an experiment that is used to prove something about the actual events that occurred in the case.” Slip op. at 8. The defendant argued that these rules controlled, rather than Rule of Evidence 702. Under those cases, the standard of review on appeal of this issue would have been de novo, rather than the abuse of discretion standard applied to Rule 702 challenges. The defendant did not argue or cite to Rule 702 or to any cases applying the rule since the 2011 amendments adopting the Daubert standard for expert testimony. Rejecting this argument, the court found that later cases, even those pre-dating the 2011 amendment to Rule 702, had in fact adopted an abuse of discretion standard of review for experimental evidence. The court also rejected the notion that the substantial similarity test stood apart from Rule 702. “The notion of ‘substantial similarity’ for experimental evidence is one of the many ‘particular factors articulated in previous cases’ that is now baked into the third prong of Rule 702’s reliability test.” Id. at 10. Thus, pursuant to Rule 702, the standard of review is abuse of discretion. Even if the defendant’s argument that the evidence was erroneously admitted was not forfeited by his failure to argue Rule 702 or abuse of discretion, the trial court did not err in admitting the testimony. In the words of the court: “Here, the trial court’s determination that the experiment met the Rule 702 criteria was a reasoned one and not manifestly arbitrary. Thus, we cannot hold that the trial court abused its discretion.” Id. at 12.
(2) The defendant also argued that the trial court erred in qualifying the expert to give an opinion about shell ejection patterns. Voir dire of the expert revealed that he had not received training on ejection patterns of bullet shells, that no certification for this subject exists, and that he had not previously performed this type of experiment. According to the court, the trial court did not abuse its discretion in so qualifying the expert: “’[I]t is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist’ as long as ‘the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’” Id. at 14. Based on his extensive training and experience in the field of firearms, the trial court acted within its discretion and did not err in qualifying the expert.
The conviction was therefore unanimously affirmed with Judges Berger and Arrowood concurring.
In this Rockingham County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and sex act by a substitute parent or guardian, arguing error in admitting expert testimony that the victim’s testimony was not coached, in granting a motion in limine preventing defendant from cross-examining the victim about her elementary school records, and in admitting a video of defendant’s interrogation showing equipment related to a polygraph examination. The Court of Appeals found no error.
In 2021, defendant was brought to trial for the statutory rape of his granddaughter in 2017, when she was 11 years old. At trial, a forensic interviewer testified, over defendant’s objection, that he saw no indication that the victim was coached. The trial court also granted a motion in limine to prevent defendant from cross-examining the victim regarding school records from when she was in kindergarten through second grade showing conduct allegedly reflecting her propensity for untruthfulness. The conduct was behavior such as cheating on a test and stealing a pen.
The Court of Appeals noted “[o]ur Supreme Court has held that ‘an expert may not testify that a prosecuting child-witness in a sexual abuse trial is believable [or] is not lying about the alleged sexual assault.’” Slip Op. at 2, quoting State v. Baymon, 336 N.C. 748, 754 (1994). However, the court could not point to a published case regarding a statement about coaching like the one in question here. Because there was no controlling opinion on the matter, the court engaged in a predictive exercise and held, “[b]ased upon our Supreme Court’s statement in Baymon, we conclude that it was not error for the trial court to allow expert testimony that [the victim] was not coached.” Id. at 3.
The court also found no error with the trial court’s conclusions regarding the admissibility of the victim’s childhood records under Rule of Evidence 403. The court explained that the evidence showed behavior that was too remote in time and only marginally probative regarding truthfulness. Finally, the court found no error with the interrogation video, explaining that while it is well established that polygraph evidence is not admissible, the video in question did not show a polygraph examination. Instead, the video merely showed “miscellaneous items on the table and not the actual polygraph evidence,” and all references to a polygraph examination were redacted before being shown to the jury. Id. at 5-6.
In this Robeson County case, defendant appealed his conviction for driving while impaired, arguing the trial court erred by admitting a toxicology report without authentication and allowing the arresting officer to testify to defendant’s specific blood alcohol concentration. The Court of Appeals found no prejudicial error by the trial court.
In September of 2018, defendant was stopped by an officer due to a partially obstructed license plate; after stopping defendant, the officer noticed glassy eyes and slurred speech, leading to a horizontal gaze and nystagmus (“HGN”) test. Defendant performed poorly on the test, and a later toxicology blood test found that defendant’s blood alcohol concentration was 0.27. At trial, the arresting officer testified about the results of the HGN test, saying “[t]here’s a probability that he’s going to be a .08 or higher, 80% according to the test that was done.” Slip Op. at 3. Also during the trial, the SBI agent responsible for preparing the report on defendant’s toxicology test was not available to testify, so another agent performed an administrative and technical review of the report and was permitted to testify as an expert about the results. The report was admitted despite defendant’s objection.
Reviewing defendant’s appeal, the court first noted that Rule 703 of the North Carolina Rules of Evidence does not require the testifying expert to be the person who performed the test, explaining “[a]n expert may properly base his or her opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field.” Id. at 5, quoting State v. Fair, 354 N.C. 131, 162 (2001). Here the report was admitted as the basis of the testifying expert’s opinion, not as substantive evidence, within the scope of applicable precedent around Rule 703. The court also noted that defendant had ample opportunity to cross-examine the expert on the basis of her opinion and her credibility in front of the jury, avoiding any confrontation clause issues.
The court found that admitting the arresting officer’s testimony regarding defendant’s specific blood alcohol level after conducting an HGN test was error, but harmless error. There are two bases under G.S. § 20-138.1 to convict a defendant for impaired driving; subsection (a)(1) and (a)(2) are distinct and independent grounds for conviction of the same offense. Id. at 10, citing State v. Perry, 254 N.C. App. 202 (2017). The court noted that overwhelming evidence of both prongs was present in the record, and specifically the second prong, driving with an alcohol concentration of 0.08 or more, was supported by expert testimony unrelated to the officer’s testimony. Finding no reasonable possibility the jury could have reached a different conclusion, the court upheld the verdict.
In this Wake County case, defendant appealed his convictions for first-degree murder, rape, kidnapping, robbery, and associated crimes, arguing error in (1) the limitation of his cross-examination of the State’s psychiatry expert, and (2) denial of his request for a special jury instruction on insanity. The Court of Appeals majority found no error.
During a violent period in August of 2015, defendant stole two vehicles, robbed and shot a man at a motel, robbed and shot another man at a pawn shop, kidnapped and raped a fifteen-year-old girl, and robbed a food store. Defendant was ultimately arrested in New York driving one of the stolen vehicles, and extradited back to North Carolina, where he was committed to Central Regional Hospital for an examination on his capacity to proceed to trial. Initially defendant was found incapable of proceeding, and he was involuntarily committed in February of 2018. In February of 2020, the State moved to have defendant forcibly medicated, and the trial court held a hearing under Sell v. United States, 539 U.S. 166 (2003). At the Sell hearing, the State’s expert testified about defendant’s mental illness and whether he should be forcibly medicated, but the hearing was continued, and defendant began voluntarily taking his medication again before the hearing was concluded. Defendant came to trial in July 2020 and presented the defense of insanity. Defense counsel sought to cross-examine the State’s expert on her testimony during the Sell hearing. The State objected under Rule of Evidence 403, and the trial court directed defense counsel to avoid any questions related to the Sell hearing or forcible medication. When the parties met for the charge conference, defense counsel requested an addition to N.C.P.I. – Crim. 304.10 (regarding insanity), referring to commitment procedure if he was found to be not guilty by reason of insanity. The State objected to this addition, and agreed to avoid misrepresenting how quickly defendant might be released during closing argument. Defense counsel went on to provide the same argument requested in the special jury instruction during closing argument. Defendant was found guilty of all charges, and appealed.
Taking up (1), the Court of Appeals noted that defendant’s argument was focused on “[the expert’s] testimony that defendant needed to be forcibly medicated to regain his capacity to proceed.” Slip Op. at 13. The State used this expert’s testimony to rebut defendant’s defense of insanity, and defense counsel had attempted to impeach the expert with her testimony from the Sell hearing that defendant needed forcible medication. The court rejected defendant’s argument that excluding this line of questioning violated defendant’s Confrontation Clause rights, pointing out the jury was aware of defendant’s mental illness and the expert’s history of evaluating defendant, and “defendant was not limited in attacking [the expert’s] credibility or asking about the differences between her previous testimony at the hearing and her subsequent testimony at trial.” Id. at 16. The court went further, explaining that even if the Sell hearing and forcible medication were relevant, the risk of unfair prejudice substantially outweighed its probative value.
Reviewing (2) defendant’s special jury instruction request, the court again disagreed, noting “[h]ere, the pattern jury instruction on commitment procedures, N.C.P.I. – Crim. 304.10, sufficiently encompasses the substance of the law.” Id. at 18. Holding that defendant’s situation did not justify altering the instruction, the court explained “[d]efendant’s case is neither so exceptional nor extraordinary such that the pattern jury instruction on commitment procedures fails to adequately encompass the law or risks misleading the jury.” Id.
Judge Hampson dissented and would have allowed cross-examination on the Sell hearing.
In this case involving convictions for attempted first-degree murder, statutory sex offense with a child by an adult, assault with a deadly weapon inflicting serious injury, first-degree kidnapping, and taking indecent liberties with a child, although the trial court erred by preventing the defendant from cross-examining the State’s witnesses concerning the defendant’s admission and attempt to help investigators rescue the victim during his post-arrest interrogation, the error was harmless. The case involved the defendant’s abduction of a six-year-old girl and related conduct including binding the child to a tree with a chain around her neck. The defendant asserted that the trial court’s limitation on cross-examination violated his constitutional rights to due process, a fair trial and right to silence. The State elicited testimony from law enforcement officers about the defendant’s pre-arrest statements. It did not however elicit any testimony regarding the post-arrest interrogation of him, and sought to prevent the defendant from introducing any evidence from the State’s witnesses regarding the post-arrest interrogation during cross-examination. According to the State, the pre-arrest interview of the defendant was separate from the post-arrest interrogation that occurred the next day. The trial court agreed with the State and prevented the defendant from questioning the State’s witnesses, including Detective Sorg, regarding the defendant’s post-arrest interrogation. After the State rested, the issue of the defense presenting evidence regarding the post-arrest interrogation arose again, specifically with respect to calling Sorg as a defense witness. According to the State, the testimony would include self-serving statements by the defendant from a completely different interview that constituted hearsay. The State asserted that if the defense wanted to present evidence about what the defendant said during those interviews, he had to take the stand. The trial court agreed and ruled that the defense could not question Sorg on anything related to the post-arrest interrogation. The defendant took the stand and testified about that interrogation.
The court rejected the defendant’s argument that the cross-examination should have been allowed under Rule 106, to prevent the jury from being misled or deceived by the evidence presented regarding the pre-arrest interview. The purpose of Rule 106’s completeness rule is to ensure that misleading impressions created by taking matters out of context are corrected. Here, there was no nexus between the interview and the post-arrest interrogation that would require evidence of the post-arrest interrogation to explain or add context to the earlier interview. Thus the trial court did not err by concluding that the two events were discrete. Moreover, Rule 106 is limited to writings and recorded statements. Here, the defense did not seek to introduce any such materials; rather, the defense simply wanted to question the State’s witnesses about that interrogation during cross-examination.
Considering Rule 611, which addresses the proper scope of cross-examination, the court found that the trial court abused its discretion by disallowing the evidence. Rule 611 provides that a witness may be cross-examined on any relevant matter, and here the evidence that the defendant sought to elicit from the State’s witnesses was relevant. However, the court went on to conclude that the trial court’s error was harmless given the overwhelming evidence of guilt.
In this Rockingham County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and sex act by a substitute parent or guardian, arguing error in admitting expert testimony that the victim’s testimony was not coached, in granting a motion in limine preventing defendant from cross-examining the victim about her elementary school records, and in admitting a video of defendant’s interrogation showing equipment related to a polygraph examination. The Court of Appeals found no error.
In 2021, defendant was brought to trial for the statutory rape of his granddaughter in 2017, when she was 11 years old. At trial, a forensic interviewer testified, over defendant’s objection, that he saw no indication that the victim was coached. The trial court also granted a motion in limine to prevent defendant from cross-examining the victim regarding school records from when she was in kindergarten through second grade showing conduct allegedly reflecting her propensity for untruthfulness. The conduct was behavior such as cheating on a test and stealing a pen.
The Court of Appeals noted “[o]ur Supreme Court has held that ‘an expert may not testify that a prosecuting child-witness in a sexual abuse trial is believable [or] is not lying about the alleged sexual assault.’” Slip Op. at 2, quoting State v. Baymon, 336 N.C. 748, 754 (1994). However, the court could not point to a published case regarding a statement about coaching like the one in question here. Because there was no controlling opinion on the matter, the court engaged in a predictive exercise and held, “[b]ased upon our Supreme Court’s statement in Baymon, we conclude that it was not error for the trial court to allow expert testimony that [the victim] was not coached.” Id. at 3.
The court also found no error with the trial court’s conclusions regarding the admissibility of the victim’s childhood records under Rule of Evidence 403. The court explained that the evidence showed behavior that was too remote in time and only marginally probative regarding truthfulness. Finally, the court found no error with the interrogation video, explaining that while it is well established that polygraph evidence is not admissible, the video in question did not show a polygraph examination. Instead, the video merely showed “miscellaneous items on the table and not the actual polygraph evidence,” and all references to a polygraph examination were redacted before being shown to the jury. Id. at 5-6.
In this Scotland County case, defendant appealed his conviction for second-degree murder, arguing error in admitting several jailhouse phone calls, and appealed the denial of his motion for appropriate relief (MAR) based on prosecutorial misconduct in withholding exculpatory evidence. The Court of Appeals found no error with the conviction and denied defendant's MAR.
In October of 2017, a victim at a party in Laurinburg was shot from a car parked on the street. Eyewitness testimony put defendant in the car, and defendant was subsequently convicted of second-degree murder. After his conviction but prior to the current appeal, defendant filed an MAR arguing the prosecutor withheld evidence that a law enforcement officer who testified at defendant’s trial was under investigation for embezzlement at the time of the trial. The Court of Appeals remanded the case to the trial court for a hearing on the MAR, and the trial court conducted a hearing and made findings on the MAR. Both matters form the basis of the current case.
Considering defendant’s arguments regarding the jailhouse calls, the Court of Appeals explained that under Rule of Evidence 401, the calls were relevant because they showed defendant discussing the circumstances around the shooting and a possible motivation for defendant to kill the victim. The court also pointed out that “[defendant’s] silence when told by the female caller that others in the neighborhood were saying that he fired the fatal shot is some evidence of guilt.” Slip Op. at 4-5. Applying Rule of Evidence 403, the court did not see the calls as unfairly prejudicial, especially in light of the limiting instruction given by the trial court regarding hearsay statements in the calls. The court also dispensed with defendant’s constitutional arguments as his “silence was not in response to questions by State actors” and the jury was free to make reasonable inferences from defendant’s statements and silence. Id. at 7.
Moving to the MAR, the court explained that while a former district attorney in the office was aware of the investigation into the officer, those working on defendant’s case were not aware until after the trial. Although the court acknowledged U.S. Supreme Court precedent that knowledge from the former district attorney was likely imputed to those working the case, the court did not find any prejudicial effect from the failure to disclose the investigation. To support this conclusion the court pointed out the abundance of evidence supporting defendant’s guilt outside of the officer’s testimony, such as the jailhouse calls and eyewitness testimony. This led the court to deny defendant's MAR.