Smith's Criminal Case Compendium

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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E.g., 09/22/2021
E.g., 09/22/2021

Evidence withheld by the Government was not material under Brady. In 1985, a group of defendants were tried together in the Superior Court for the District of Columbia for the kidnaping, armed robbery, and murder of Catherine Fuller. Long after their convictions became final, it emerged that the Government possessed certain evidence that it failed to disclose to the defense. The only question before the Court was whether the withheld evidence was “material” under Brady. The Court held it was not, finding that the withheld evidence as “too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.” [Author’s note: For a more detailed discussion of the withheld evidence and the Court’s reasoning, see my colleague’s blog post here].

In this capital case, the prosecution’s failure to disclose material evidence violated the defendant’s due process rights. At trial the defendant unsuccessfully raised an alibi defense and was convicted. The case was before the Court after the defendant’s unsuccessful post-conviction Brady claim. Three pieces of evidence were at issue. First, regarding State’s witness Scott, the prosecution withheld police records showing that two of Scott’s fellow inmates had made statements that cast doubt on Scott’s credibility. One inmate reported hearing Scott say that he wanted to make sure the defendant got “the needle cause he jacked over me.” The other inmate told investigators that he had witnessed the murder. However, he recanted the next day, explaining that “Scott had told him what to say” and had suggested that lying about having witnessed the murder “would help him get out of jail.” Second, regarding State’s witness Brown, the prosecution failed to disclose that, contrary to its assertions at trial that Brown, who was serving a 15-year sentence, “hasn’t asked for a thing,” Brown had twice sought a deal to reduce his existing sentence in exchange for his testimony. And third, the prosecution failed to turn over medical records on Randy Hutchinson. According to Scott, on the night of the murder, Hutchinson had run into the street to flag down the victim, pulled the victim out of his car, shoved him into the cargo space, and crawled into the cargo space himself. But Hutchinson’s medical records revealed that, nine days before the murder, Hutchinson had undergone knee surgery to repair a ruptured patellar tendon. An expert witness testified at the state collateral-review hearing that Hutchinson’s surgically repaired knee could not have withstood running, bending, or lifting substantial weight. The State presented an expert witness who disagreed regarding Hutchinson’s physical fitness. Concluding that the state court erred by denying the defendant’s Brady claim, the Court stated: “Beyond doubt, the newly revealed evidence suffices to undermine confidence in [the defendant’s] conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than [the defendant’s] alibi.” It continued: “Even if the jury—armed with all of this new evidence—could have voted to convict [the defendant], we have no confidence that it would have done so.” (quotations omitted). It further found that in reaching the opposite conclusion, the state post-conviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively, emphasized reasons a juror might disregard new evidence while ignoring reasons she might not, and failed even to mention the statements of the two inmates impeaching Scott.

Smith v. Cain, 565 U.S. 73 (Jan. 10, 2012)

The Court reversed petitioner Smith’s conviction on grounds of a Brady violation. At Smith’s trial, a single witness, Larry Boatner, linked Smith to the crime. Boatner testified that Smith and two other gunmen entered a home, demanded money and drugs, and then began shooting, killing five people. At trial, Boatner identified Smith as the first gunman through the door and claimed that he had been face to face with Smith during the initial moments of the robbery. No other witnesses and no physical evidence implicated Smith. Smith was convicted of five counts of murder. After an unsuccessful direct review, Smith sought post-conviction relief in the state courts. In connection with this effort he obtained notes of the lead police investigator. These notes contained statements by Boatner that conflicted with his testimony identifying Smith as a perpetrator. Specifically, they state that Boatner “could not . . . supply a description of the perpetrators other then [sic] they were black males.” The investigator also made a handwritten account of a conversation he had with Boatner five days after the crime, in which Boatner said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The investigator’s typewritten report of that conversation states that Boatner told the officer he “could not identify any of the perpetrators of the murder.” Smith argued that the prosecution’s failure to disclose the notes violated Brady. The State did not dispute that Boatner’s statements were favorable to Smith and that they were not disclosed. The sole question for the Court thus was whether the statements were material. The Court noted that evidence impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. However, it concluded the State’s evidence was not sufficiently strong in this case. Boatner’s testimony was the only evidence linking Smith to the crime. Also, Boatner’s undisclosed statements directly contradicted his testimony. Boatner’s undisclosed statements, the Court concluded, were plainly material. The Court went on to reject various reasons advanced by the State and the dissent regarding why the jury might have discounted Boatner’s undisclosed statements. Justice Thomas dissented.

Defendant filed an MAR challenging his 1993 convictions and death sentence for burglary, rape, armed robbery, and two counts of first-degree murder. The MAR alleged that the state failed to disclose material and exculpatory evidence in violation of Brady. At his original trial, the state’s primary evidence against the defendant included his fingerprint on a knife found next to one victim’s body, a partial DNA match between the defendant and a semen sample recovered from one of the victims, and testimony from a witness that the defendant spent a large amount of money on drugs shortly after the victims were robbed and murdered. The defendant made several discovery requests prior to trial in 1993, but the evidence at issue in this MAR was not produced. Part of the additional evidence was voluntarily provided to postconviction counsel in 2011, while other evidence was located by defense counsel in the attic of Whiteville City Hall. The undisclosed evidence fell into four categories: (i) forensic testing on additional hair, fiber, fingerprint, and blood samples that were not a match to the defendant; (ii) a prior interview with the testifying witness in which she said the defendant had only a small amount of money on him around the time of the crimes; (iii) reports about glass particles found in the defendant’s shoes that did not match the broken window glass at the crime scene, and additional cash found in the victim’s purse; and (iv) investigative materials on two undisclosed alternate suspects.

The trial court denied the MAR, finding that the defendant failed to show prejudice, and the defendant appealed. On review, the state Supreme Court considered how the undisclosed evidence could have been used to either negate or cast doubt upon the principal evidence offered by the state, and was “sufficiently disturbed by the extent of the withheld evidence in this case, and by the materiality of that evidence, that it undermines our confidence in the jury’s verdict.” The trial court’s denial of the MAR was therefore reversed, and the case was remanded with instructions to grant the MAR and order a new trial.

Justice Newby dissented, and would have held that the defendant failed to demonstrate a reasonable probability that the jury would have reached a different result even if the additional evidence had been made available at trial.

The defendant was found guilty by a Cleveland County jury of impaired driving and resisting a public officer and was found responsible for possession of open container. He appealed, challenging the denial of his motion to dismiss, the denial of his mid-trial motion to suppress, an evidentiary ruling, and alleging constitutional violations for lost evidence. The Court of Appeals unanimously affirmed.

(1) The defendant claimed there was insufficient evidence that he operated the vehicle while impaired. As to operation, the defendant was found asleep behind the wheel with the car running in the middle of the road and had a bottle of vodka between his legs. No passengers were present, and the defendant asked the officer if he could move the car, revving the engine several times. He also used the driver side door to exit the vehicle. This was sufficient to establish operation. “An individual who is asleep behind the wheel of a car with the engine running is in actual physical control of the car, thus driving the car within the meaning of the statute.”  As to impairment, while the defendant’s blood alcohol content was only 0.07, the defendant’s blood revealed the presence of marijuana, amphetamine and methamphetamine. In addition to the blood test, the defendant “failed” horizontal and vertical gaze nystagmus tests, refused a breath test, had a strong odor of alcohol, was “confused and disoriented,” and exhibited other signs of impairment. This was sufficient evidence of impairment.

The defendant also claimed there was insufficient evidence to support his conviction for resisting a public officer. Specifically, he argued that he was merely confused and in pain at the time of his interactions with the officers, and that this was the cause of his “negative interactions” with the officers. The court rejected this argument, noting: “The conduct proscribed under [N.C. Gen. Stat. §] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in discharge of his duties.” Here, the defendant committed multiple acts that obstructed the officer’s duties. The defendant would not roll down his window when asked by the officer, he repeatedly tried to start his car after being commanded to stop, he refused a breath test at least 10 times, and repeatedly put his hands in his pockets during the nystagmus testing after being instructed not to do so. He also refused to get into the patrol car once arrested and refused to voluntarily allow his blood to be drawn after a search warrant for it was obtained. In the court’s words:

Through these actions and his inactions, Defendant directly opposed the officers in their efforts to discharge their investigative duties of identifying him, speaking with him, and performing field sobriety tests. Thus, Defendant resisted the officers within the meaning of the statute.

The motion to dismiss for insufficient evidence of resisting a public officer was therefore properly denied.

The defendant also claimed his motion to dismiss for insufficiency as to the possession of open container of alcohol should have been granted. He pointed out that the bottle found in his car was not missing much alcohol and the officer admitted to emptying the bottle on the side of the road. Rejecting this argument, the court observed:

[T]he amount of alcohol missing from the container is irrelevant for purposes of this offense, because a contained is opened ‘[i]f the seal on [the] container of alcoholic beverages has been broken.’ Additionally, the fact that [the officer] poured out the contents of the container goes to the weight of the evidence, not its sufficiency.

The trial court therefore did not err in denying the motion for insufficient evidence for this offense.

(2) As to the suppression motion, the issue was preserved despite the motion being untimely because the court considered and ruled on the motion. The defendant argued that the forcible blood draw violated his rights to be free to unreasonable force. He did not challenge the validity of the search warrant authorizing the blood draw. Claims of excessive force are evaluated under the Fourth Amendment reasonableness standard. Graham v. Conner, 490 U.S. 386 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 22 (citations omitted). Here, the officer had a valid warrant (obtained after the defendant’s repeated refusals to provide a breath sample), and the blood draw was performed by medical professionals at a hospital. Any acts of force by police to obtain the blood sample were the result of the defendant’s own resistance. The court observed:

Defendant had no right to resist the execution of a search warrant, and in fact, his actions rose to the level of criminal conduct under N.C. Gen. Stat. § 14-223, for resisting a public officer. . . Defendant ‘cannot resist a lawful warrant and be rewarded with the exclusion of the evidence.’

The force used to effectuate the blood draw was reasonable under the circumstances and did not violate the Fourth Amendment.

The defendant also argued that his motion to suppress should have been granted for failure of the State to show that his blood was drawn by a qualified professional. G.S. 20-139.1(c) provides that doctor, registered nurse, EMT, or other qualified person shall take the blood sample. “An officer’s trial testimony regarding the qualifications of the person who withdrew the blood is sufficient evidence of the person’s qualifications.” Here, the officer testified that a nurse drew the blood, although he could not identify her by name and no other proof of her qualifications was admitted.  This was sufficient evidence that the blood was drawn by qualified person, and this argument was rejected.

(3) The trial court admitted into evidence the bottle found between the defendant’s legs at the time of arrest. According to the defendant, this was an abuse of discretion because the officers admitted to destroying the content of the bottle (by pouring it out) before trial. The defendant argued this was prejudicial and required a new trial. Because the defendant offered no authority that admission of the bottle into evidence was error, this argument was treated as abandoned and not considered.

(4) During the arrest, the stopping officer forgot to turn on his body camera and only began recording the investigation mid-way through. The officer also failed to record interactions with the defendant during processing after arrest in violation of department policy. The trial court found no constitutional violation. The defendant complained on appeal that the “intentional suppression” of this camera footage violated his Sixth and Fourteenth Amendment rights and sought dismissal or a new trial. However, the defendant only argued the Fourteenth Amendment Brady violation on appeal. His Sixth Amendment argument was therefore abandoned and waived.

As to the alleged Brady violation, the defendant did not seek dismissal in the trial court. “We are therefore precluded from reviewing the denial of any such motion, and Defendant’s request that this Court ‘dismiss the prosecution against him’ is itself dismissed.” However, the defendant’s argument at suppression that the failure to record the blood draw violated due process and warranted suppression was preserved. Under Brady v. Maryland, 373 U.S. 83 (1963), suppression of material evidence relevant to guilt or punishment violates due process, regardless of the government’s good or bad faith. Here though, there was no evidence that the State suppressed anything—the video footage was simply not created. Brady rights apply to materials within the possession of the State. “Defendant essentially asks this Court to extend Brady’s holding to include evidence not collected by an officer, which we decline to do.” There was also no indication that the video footage would have been helpful to the defendant. The court therefore rejected this claim. “Although the officers’ failure to record the interaction violated departmental policy, such violation did not amount to a denial of Defendant’s due process rights under Brady in this case.”

The defendant was cited for misdemeanor driving while impaired on November 27, 2016. His attorney requested discovery in July 2017, specifically asking for dash cam and body camera footage. The defendant was subsequently indicted for habitual impaired driving and other traffic offenses based on the November 27, 2016 incident. In January 2018, the defendant's attorney again requested dash cam footage. The defendant’s attorney was informed in February 2018 that the dash cam video had been deleted from the local server, and the Highway Patrol was attempting to locate it from other sources. In March 2018, defense counsel was informed that the video had been purged and was not available for release.

The defendant moved to dismiss the charges based on the destruction of the dash cam video. The trial court granted the motion, concluding that the destruction of the dash cam video footage violated the defendant’s right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and required dismissal of the charges. The State appealed.

The court of appeals noted that suppression of evidence favorable to an accused violates due process when the evidence is material to guilt or punishment, regardless of the good faith or bad faith of the prosecution. But when the evidence is only potentially useful, the State’s failure to preserve the evidence does not violate the defendant’s constitutional rights unless the defendant shows bad faith on the part of the State.

Though the trial court concluded that the destruction of the dash cam video footage was a Brady violation, it made no findings on what the dash cam video footage would have shown. Indeed, it could not have made such findings because there was no record of what the footage may have shown. The dash cam footage was not material exculpatory evidence; instead, it was only potentially useful. To establish a constitutional violation based on the destruction of potentially useful evidence, the defendant must show bad faith. The trial court erred by concluding that destruction of the footage warranted dismissal, regardless of bad faith on the part of the State. The court of appeals remanded the case to the trial court for a determination of whether the footage was destroyed in bad faith. A dissenting judge would have reversed the trial court on the basis that the evidence presented could not support a finding of bad faith.

In this assault on a government officer case, no Brady violation occurred when recordings from police body cameras were reviewed by the defendant’s original trial counsel and then destroyed pursuant to the police department’s evidence retention schedule. The defendant’s original trial counsel reviewed the video recordings but opted not to obtain copies or use the footage at the defendant’s district court trial. The defendant was convicted and appealed for trial de novo to superior court. In the meantime, the original recordings were destroyed in accordance with the police department’s evidence retention schedule. The defendant’s new trial counsel moved for a continuance to allow time for counsel to prepare a motion to dismiss, arguing that such a remedy was warranted because the recordings had been destroyed and thus were unavailable for use by the defense. The trial court denied the motion. The defendant was convicted and appealed. The court stated: “Defense counsel’s decision not to make or preserve copies of the videos — regardless of counsel’s reason for declining to do so — cannot serve as a basis for arguing a Brady violation was committed by the State.” 

Invoking Rule 2 of the NC Rules of Appellate Procedure, the court considered emails outside of the record and granted the defendants’ MAR, finding both a Brady violation and a Napue (failure to correct false testimony) violation. Specifically, the State failed to provide critical impeachment evidence regarding its star witness which would have supported the defendants’ assertion that the witness was a drug dealer. Likewise, the State failed to correct testimony by the witness that he was not a drug dealer. The emails in question related to an ongoing investigation of the witness revealing that he was in fact involved with drugs.

In this misdemeanor DWI case the trial court did not err by denying the defendant’s motions to examine the Intoximeter source code. The court rejected the defendant’s argument that the source code was Brady evidence, reasoning that he failed to show that it was favorable and material. The court noted that the jury found the defendant guilty under both prongs of the DWI statute. The court also rejected the defendant’s argument that under Crawford and the confrontation clause he was entitled to the source code. 

In a child sex case, the trial court erred by failing to require disclosure of material exculpatory information contained in privileged documents that were reviewed in camera by the trial court and pertained to the victim’s allegations. The documents contained “sufficient exculpatory material to impeach the State’s witnesses.” The court instructed the trial judge to “review the material de novo to determine, in his or her discretion, what material should be made available to Defendant.”

The trial court erred by dismissing charges after finding that the State violated the discovery statutes by failing to obtain and preserve a pawn shop surveillance video of the alleged transaction at issue. On 7 August 2012, defense counsel notified that State that there was reason to believe another person had been at the pawn shop on the date of the alleged offense and inquired if the State had obtained a surveillance video from the pawn shop. On 18 February 2013, trial counsel made another inquiry about the video. The prosecutor then spoke with an investigator who went to the pawn shop and learned that the video had been destroyed six months ago. Before the trial court, the defendant successfully argued that the State was “aware of evidence that could be exculpatory and acted with negligence to allow it to be destroyed.” On appeal, the court rejected this argument, noting that there was no evidence that the video was ever in the State’s possession and under the discovery statutes, the State need only disclose matters in its possession; it need not conduct an independent investigation to locate evidence favorable to a defendant. 

G.S. 15A-903 requires production of already existing documents; it imposes no duty on the State to create or continue to develop additional documentation regarding an investigation. To the extent the trial court concluded that the State violated statutory discovery provisions because it failed to document certain conversations, this was error. 

The trial court did not err by denying the defendant’s motion to dismiss the charges and her motion in limine, both of which asserted that the State violated the discovery rules by failing to provide her with the victim’s pretrial statement to the prosecutor. The victim made a statement to the police at the time of the crime. In a later statement to the prosecutor, the victim recounted the same details regarding the crime but said that he did not remember speaking to the police at the crime scene. The victim’s account of the incident, including his identification of the defendant as the perpetrator, remained consistent. Even though the victim told the prosecutor that he did not remember making a statement to the police at the scene, this was not significantly new or different information triggering a duty on the part of the State to disclose the statement.

State v. Flint, 199 N.C. App. 709 (Sept. 15, 2009)

The trial court did not abuse its discretion in denying the defendant’s motion to continue alleging that the defendant did not receive discovery at a reasonable time prior to trial where the defendant never made a motion for discovery and there was no written discovery agreement and thus the State was not required to provide discovery pursuant to G.S. 15A-903(a)(1). The trial court did not abuse its discretion in allowing a witness named Karen Holman to testify when her name allegedly was listed on the State’s witness list as Karen Holbrook where the defendant never made a motion for discovery and there was no written discovery agreement, even if such a motion had been made, the trial judge had discretion under the statute to permit any undisclosed witness to testify, and the witness’s testimony served only to authenticate a videotape. 

A witness testified at trial that the defendant made the following statement about the victim during the robbery: “I hope this spic is dead.” The court rejected the defendant’s argument that the evidence should have been excluded because of a discovery violation. The State provided information prior to trial that the witness had stated that “they hated Mexicans” and there was no unfair surprise.

The defendant’s first trial on charges of DWI, driving while license revoked, and driving without a valid registration or properly displayed license plate ended in a hung jury and mistrial. A retrial was scheduled for approximately two months later. One week before the retrial, defense counsel made a motion for production of the transcript of the prior trial for the purpose of impeaching and cross-examining the state’s witnesses, and moved for a continuance to allow time to receive the transcript. The trial court denied the defendant’s motions, and the retrial was held. Over the state’s objections, the defense called the defendant’s prior trial counsel to testify at the retrial and impeach the state’s witnesses’ testimony. The jury convicted the defendant of all charges and he appealed, arguing that the trial court committed reversible error by denying his motions for a transcript and continuance.

 The appellate court characterized the defendant’s arguments as “a puffer fish, attempting to ‘blow up’ Defendant’s lack of a transcript” into a constitutional error attributable to the state or the court, when it was “more accurately described as a desiccated sardine, consciously canned by his trial counsel.” Noting that any error or prejudice was invited by defense counsel’s delay in filing the motion for a transcript, as well as the failure to pursue other options such as issuing a subpoena to have the court reporter read back testimony at the retrial, the appellate court held that the defendant might have a basis to allege ineffective assistance of counsel, but he failed to demonstrate that the trial court committed prejudicial error by denying the pretrial motions.

Judge Murphy dissented and would have held that the trial court erred by denying defendant’s motions without making the necessary findings on whether the transcript was necessary to the preparation of an effective defense or there were adequate alternatives available.

The trial court’s ex parte orders compelling the production of the defendant’s personnel files and educational records were void ab initio. While employed as a police officer the defendant was involved in a vehicle pursuit that resulted in the death of the pursued driver. Prior to charging the defendant with a crime, the State obtained two separate ex parte orders compelling the production of the defendant’s personnel records from four North Carolina police departments where he had been employed as well as his educational records related to a community college BLET class. After the defendant was indicted for involuntary manslaughter, he unsuccessfully moved to set aside the ex parte orders. On appeal, the court concluded that the orders were void ab initio. Citing In re Superior Court Order, 315 N.C. 378 (1986), and In re Brooks, 143 N.C. App. 601 (2001), both dealing with ex parte orders for records, the court concluded:

The State did not present affidavits or other comparable evidence in support of their motions for the release of [the defendant’s] personnel files and educational records sufficiently demonstrating their need for the documents being sought. Nor was a special proceeding, a civil action, or a criminal action ever initiated in connection with the ex parte motions and orders. For these reasons, the State never took the steps necessary to invoke the superior court’s jurisdiction.

In this misdemeanor DWI case the court held that the defendant had no statutory right to pretrial discovery and rejected the defendant’s argument that G.S. 15A-901 violated due process. The court noted, however, that the defendant did have discovery rights under Brady.

The trial court’s ex parte orders compelling the production of the defendant’s personnel files and educational records were void ab initio. While employed as a police officer the defendant was involved in a vehicle pursuit that resulted in the death of the pursued driver. Prior to charging the defendant with a crime, the State obtained two separate ex parte orders compelling the production of the defendant’s personnel records from four North Carolina police departments where he had been employed as well as his educational records related to a community college BLET class. After the defendant was indicted for involuntary manslaughter, he unsuccessfully moved to set aside the ex parte orders. On appeal, the court concluded that the orders were void ab initio. Citing In re Superior Court Order, 315 N.C. 378 (1986), and In re Brooks, 143 N.C. App. 601 (2001), both dealing with ex parte orders for records, the court concluded:

The State did not present affidavits or other comparable evidence in support of their motions for the release of [the defendant’s] personnel files and educational records sufficiently demonstrating their need for the documents being sought. Nor was a special proceeding, a civil action, or a criminal action ever initiated in connection with the ex parte motions and orders. For these reasons, the State never took the steps necessary to invoke the superior court’s jurisdiction.

Cone v. Bell, 556 U.S. 449 (Apr. 28, 2009)

Although exculpatory evidence suppressed by the state was immaterial to the jury’s finding of guilt, it might have affected the jury’s decision to recommend a death sentence. The defendant offered an insanity defense based on his habitual use of an excessive amount of drugs and their affect on his behavior during the commission of the offenses. After the defendant was convicted and sentenced to death, it was discovered that the state had suppressed exculpatory evidence concerning the defendant’s drug use. The Court remanded to the federal habeas trial court for a full review of the suppressed evidence and its effect on sentencing. 

State v. Davis, 368 N.C. 794 (Apr. 15, 2016)

Modifying and affirming the unanimous decision of the Court of Appeals below, 239 N.C. App. 522 (2015), in this child sexual assault case, the court held that expert testimony about general characteristics of child sexual assault victims and the possible reasons for delayed reporting of such allegations is expert opinion testimony subject to disclosure in discovery under G.S. 15A-903(a)(2). The court rejected the State’s argument that because its witnesses did not give expert opinion testimony and only testified to facts, the discovery requirements of G.S. 15A-903(a)(2) were not triggered. Recognizing “that determining what constitutes expert opinion testimony requires a case-by-case inquiry in which the trial court (or a reviewing court) must look at the testimony as a whole and in context,” the court concluded that the witnesses gave expert opinions that should have been disclosed in discovery. Specifically, both offered expert opinion testimony about the characteristics of sexual abuse victims. In this respect, their testimony went beyond the facts of the case and relied on inferences by the experts to reach the conclusion that certain characteristics are common among child sexual assault victims. Similarly, both offered expert opinion testimony explaining why a child victim might delay reporting abuse. Here again the experts drew inferences and gave opinions explaining that these and other unnamed patients had been abuse victims and delayed reporting the abuse for various reasons. The court continued: “These views presuppose (i.e, opine) that the other children the expert witnesses observed had actually been abused. These are not factual observations; they are expert opinions.” However, the court found that the defendant failed to show that the error was prejudicial.

The trial court did not err by refusing to provide defense counsel with an internal investigation report prepared by the police department’s Office of Professional Standards and Inspections regarding a lead detective in the investigation. During the trial prosecutors learned of an ongoing internal investigation of the detective. The State informed the trial court and defense counsel of this and decided not to call the detective as a witness. The trial court examined the report in camera and issued an oral ruling noting that the report detailed a problem in the detective’s life that could have affected his job performance. However, it found that there was no evidence that the detective was experiencing the problem at the time of the investigation in question. The trial court noted that the report suggests that the detective may not have been honest in his internal investigation disclosures but again found no connection to the case at hand. The court of appeals held that the trial court did not violate the defendant’s constitutional rights by refusing to disclose the contents of the report to counsel. The court found that it was unable to conclude that the report was material “when the State was able to prove its case through the testimony of other law enforcement officers and without [the] Detective . . . ever taking the stand.”

In this first-degree murder case, the trial court did not abuse its discretion by allowing the State to elicit testimony from a supplemental rebuttal expert, Dr. Wolfe, first disclosed by the State during trial. The defendant asserted a violation of G.S. 15A-903(a)(2)’s pretrial expert witness disclosure requirements. The State did not disclose Wolfe, her opinion or expert report before trial. The State offered Wolfe in response to its receipt, right before jury selection, of a primary defense expert’s final report, which differed from the expert’s previously supplied report. Wolfe was a supplemental rebuttal witness, not the State’s sole rebuttal witness, nor a primary expert introducing new evidence. The defendant was able to fully examine Wolfe and the basis for her opinion during a voir dire held eight days before her trial testimony. The trial court set parameters limiting Wolfe’s testimony, and the defendant received the required discovery eight days before she testified. No court was held on four of these days, providing the defense an opportunity to prepare for her testimony. Although the defense moved to continue its expert’s voir dire examination based on the timing of the State’s discovery disclosures (Wolfe initially was offered as a rebuttal witness on the Dabuert voir dire of the defendant’s expert; when the trial court found that the defendant’s expert satisfied Rule 702, Wolfe was offered as a rebuttal expert at trial), it never moved for a trial continuance or requested more time to prepare for Wolfe’s rebuttal. Thus, the defendant failed to show that the trial court abused its discretion in allowing Wolfe’s limited rebuttal testimony.

In a murder case, the trial court did not violate the defendant’s constitutional right to reasonable notice of evidence or his statutory right to discovery by allowing the State to present an expert toxicologist’s testimony. As part of his investigation, Dr. Jordan, a local medical examiner, sent a specimen of the victim’s blood to the Office of the Chief Medical Examiner for analysis. During trial, Jordan testified to the opinion that the cause of death was methadone toxicity and that this opinion was based upon the Chief Medical Examiner’s Office’s report. When defense counsel raised questions about the report, 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. The defendant objected to Brown’s testimony on grounds that he had not been notified that Brown would be a witness. With respect to the alleged statutory discovery violation, the trial court did not abuse its discretion by allowing Brown to testify. The court noted that the defendant had the toxicology report for four years, had it reviewed by two experts, was afforded the opportunity to meet privately with Brown for over an hour prior to a voir dire hearing, and was afforded cross-examination on voir dire. As to the constitutional issues, the court noted that although the defendant argued that he was not afforded adequate time to prepare, he failed to show how his case would have been better prepared if he had more time or that he was materially prejudiced by Brown’s testimony. Because the defendant had the report for four years, had two experts review it, was afforded an opportunity to confer with Brown prior to his testimony, and cross-examined Brown, the defendant failed to demonstrate that a constitutional error occurred.

The defendant was not entitled to a new trial on grounds that the SBI Crime Lab refused to test four hair and fiber lifts taken from an item of clothing. The defendant did not argue that the prosecutor failed to make the lifts available to him for testing. In fact, one of the defendant’s previous attorneys made a motion for independent testing of the clothing item and received the results of the testing. Because police do not have a constitutional duty to perform particular tests on crime scene evidence, no error occurred.

State v. Lane, 365 N.C. 7 (Mar. 11, 2011)

In a capital murder case, the trial court did not abuse its discretion by excluding expert testimony by 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 trial court barred the expert’s testimony on grounds that the expert’s report provided to the State was insufficient to satisfy the discovery rules; repeated requests were made by the State for the report and the trial court had ordered production. Relevant to the court’s finding of no abuse of discretion was its separate conclusion that the expert’s testimony was not relevant.

(1) In this murder case, the trial court did not err by excluding the testimony of a defense psychiatrist on the basis that the witness’s proffered testimony constituted expert opinion testimony that had not been disclosed pursuant to a reciprocal discovery order. The witness, Dr. Badri Hamra, was a psychiatrist with the North Carolina Department of Public Safety who treated the defendant fifteen months after his arrest. On appeal, the defendant argued that Hamra was proffered as a fact witness regarding the issue of premeditation and deliberation. Defendant further argued that as a fact witness, she was outside of the scope of the reciprocal discovery order, which applied only to expert witnesses. The court agreed with the trial court that Hamra intended to offer expert opinion testimony. Hamra testified that the defendant had a psychiatric condition for which the doctor had prescribed medication. He clarified that his decision to prescribe medication was based not merely on his review of the defendant’s medical history but on his own evaluation of the defendant. Finally he confirmed he would only have prescribed medication for a legitimate medical reason, dismissing the notion that he would write a prescription simply because the defendant asked him to do so. His testimony was tantamount to a diagnosis, which constitutes expert testimony. 

State v. Bacon, ___ N.C. App. ___, 803 S.E.2d 402 (July 18, 2017) temp. stay granted, ___ N.C. ___, 802 S.E.2d 460 (Aug 4 2017)

In this felony larceny case, the trial court did not abuse its discretion by excluding the defendant’s witness as a sanction for the defendant’s violation of discovery rules, specifically, the defendant’s failure to timely file notice that he intended to call the witness as an alibi witness under G.S. 15A-905(c)(1). A voir dire of the witness revealed that his testimony was vague and certain inconsistencies in it made it unreliable and thus of minimal value. The court concluded: “Considering the materiality of [the witness’s] proposed testimony, which we find minimal, and the totality of the circumstances surrounding Defendant’s failure to comply with his discovery obligations, we cannot find that the trial court abused its discretion in excluding this testimony.” The court went on to hold that even if it was error to exclude this testimony, the defendant failed to show prejudice.

(1) In this murder case, the trial court abused its discretion by excluding, as a discovery sanction, testimony by defense expert Masucci. The defendant offered Masucci after the trial court precluded the original defense expert, Ward, from testifying that incriminating computer files had been planted on the defendant’s computer. The State made no pretrial indication that it planned to challenge Ward’s testimony. At trial, the defendant called Ward to testify that based upon his analysis of the data recovered from the defendant's laptop, tampering had occurred with respect to the incriminating computer files. The State successfully moved to exclude this testimony on the basis that Ward was not an expert in computer forensic analysis. The defendant then quickly located Masucci, an expert in computer forensic analysis, to provide the testimony Ward was prevented from giving. The State then successfully moved to exclude Masucci as a sanction for violation of discovery rules. The only evidence directly linking the defendant to the murder was the computer files. Even if the defendant violated the discovery rules, the trial court abused its discretion with respect to the sanction imposed and violated the defendant’s constitutional right to present a defense. (2) The trial court erred by failing to conduct an in camera inspection of discovery sought by the defense regarding information related to FBI analysis of the computer files. The trial court found that the FBI information was used in counterterrorism and counterintelligence investigations and that disclosure would be contrary to the public interest. The court held that the trial court’s failure to do an in camera review constituted a violation of due process. It instructed that on remand, the trial court “must determine with a reasonable degree of specificity how national security or some other legitimate interest would be compromised by discovery of particular data or materials, and memorialize its ruling in some form allowing for informed appellate review.”

In a case in which the State conceded that a translator testified as an expert, the trial court erred by failing to recognize the State’s violation of the discovery rules in G.S. 15A-903(a)(2). However, on the facts presented, the trial court did not abuse its discretion by refusing to exclude the evidence. The translator had translated a conversation occurring in a van and pertaining to a drug transaction. Among other things, the translator testified to where a speaker was sitting based on “tonal quality of the voice.”

The trial court did not abuse its discretion by denying the defendant’s motion to bar the State from introducing forensic evidence related to his vehicle where the police impounded his vehicle during the investigation, but subsequently lost it. The State’s evidence suggested that soil from the defendant’s car matched soil where the victims were found. The State preserved the soil samples, the defendant had access to them and presented expert testimony that the soil was not a unique match, the defense informed the jury that the police lost the vehicle, and there was no evidence of bad faith by the police.

In this child sexual assault case, the court rejected the defendant’s argument that the trial court erred by permitting certain testimony by the State’s experts because of a discovery violation. The experts included Blair Cobb, a licensed clinical social worker and pediatric therapist who testified as an expert in child counseling, and Cynthia Stewart, a social worker who testified as an expert in interviewing children in cases of suspected abuse or neglect. The defendant argued that the State violated G.S. 15A-903(a)(2) by not timely providing Stewart’s report and Cobb’s records and that as a result, he was prejudiced by lack of time to adequately prepare for cross-examination. The State served notice of expert witnesses on November 24, 2014, listing Stewart and Cobb, and indicating that the State would make the expert’s reports available during discovery and that their CVs would be forthcoming. The State provided initial discovery on December 2, 2014, including Stewart’s report, prepared after her interview with the child and stating her impressions and recommendations as well as a 30-page report by Cobb regarding her visits with the child and comprehensive clinical assessment. On January 29, 2015, the defendant filed a motion for additional materials, requesting that each expert prepare a meaningful and detailed report. At a hearing on February 2, 2015, the trial court instructed the State to have Stewart and Cobb couch their diagnoses in the form of opinions. In mid-February 2015, the State provided further discovery, including additional therapy notes from Cobb and a revised letter from Cobb outlining the basis of her opinion, as well as a DVD recording of Stewart’s interview with the child. The defendant then asked the trial court to either exclude the expert opinions or give the defense additional time to prepare. The trial court continued the matter until April 13, 2015. On these facts, the court rejected the defendant’s argument that he did not have time to adequately prepare to effectively cross-examine the experts.

The trial court did not abuse its discretion by denying the defendant’s motion to continue because of the State’s alleged discovery violation. Although the State provided the defendant with a copy the robbery victim’s pre-trial written statement and a composite sketch of the perpetrator based on the victim’s description, the defendant argued that the State violated its continuing duty to disclose by failing to inform the defense of the victim’s statement, made on the morning of trial, that she recognized the defendant as the robber when he entered in the courtroom. After the victim identified the defendant as the perpetrator, the defense moved to continue to obtain an eyewitness identification expert. Finding no abuse of discretion, the court relied, in part, on the timing of the events and that the defendant could have anticipated that the victim would be able to identify the defendant.

The trial court did not abuse its discretion by denying the defendant’s motion for a mistrial on grounds that the State failed to provide the defendant with additional discovery after a meeting with co-defendant William Brown gleaned new information. After recognizing potential discovery violations by the State, the trial court instructed defense counsel to uncover any discrepancies in Brown’s testimony through cross-examination. After doing so, the defense renewed its mistrial motion. Although the trial court denied that motion, it granted the defense a recess “to delve into that particular matter” and ordered the State to memorialize all future discussions with Brown. All of the trial court’s remedies were permissible and were not an abuse of discretion. Additionally, the trial court did not err by denying the defendant’s mistrial motion; that remedy is appropriate only where the improprieties make it impossible to attain a fair and impartial verdict. 

The trial court did not abuse its discretion by granting a recess instead of dismissing the charges or barring admission of the defendant’s statement to the police, when that statement was not provided to the defense until the second day of trial in violation of the criminal discovery rules. When making its ruling, the trial court said that it would “consider anything else that may be requested,” short of dismissal or exclusion of the evidence, but the defense did not request other sanctions or remedies.

The defendant met his former girlfriend and new boyfriend, the victim in the case, at a bar. The defendant asked the victim to step outside to talk. During the exchange, the victim told the defendant to hit him. (According to the concurrence, the victim said, “If you want to hit me, hit me, but this is not the way we need to solve this issue.”). The defendant hit the victim and broke his jaw in two places, requiring surgery to repair the damage. (1) The defendant argued that the trial court erred in refusing to instruct the jury on consent concerning AISBI. The majority stated that consent is not a defense to assault in North Carolina and held that the trial court did not err in refusing to instruct on consent for AISBI. The concurring judge found it unnecessary to decide whether consent is an element of or defense to assault, finding that the trial judge did not err in refusing to instruct on consent because the evidence did not show the victim consented to an assault inflicting serious bodily injury and arguably did not consent to an assault all.


(2) At sentencing, the State advised the trial judge that it had failed to disclose the fee paid to an expert to testify about the victim’s injuries. The trial judge found the failure to disclose was an “honest mistake.” The Court stated that it was not clear whether the trial judge found that a discovery violation had occurred, but assuming a violation occurred, the defendant was not prejudiced.

In this Union County case, the defendant appealed convictions for methamphetamine trafficking and maintaining a vehicle for keeping or selling drugs (among others). An officer in Wadesboro observed the defendant’s car at a “known drug house” and alerted a county deputy about the suspect vehicle, who in turn notified an officer with the Town of Wingate. The Wingate officer stopped the defendant for minor traffic violations. The officer ultimately searched the vehicle and found meth in a tire-sealant can with a hidden cavity. The defendant argued at suppression that the Wingate officer failed to disclose the source of his tip in discovery. That deputy testified at suppression that the Wadesboro officer was the source of the tip to the Wingate officer, but acknowledged his failure to disclose this information in his report. The defendant complained to the trial court of this last-minute disclosure. The prosecutor acknowledged “difficulty” in obtaining complete information but pointed out that she had sought information from the deputy about the source of the tip, learned it was a Wadesboro officer, and requested a supplemental report. Further, the prosecutor informed defense counsel about these steps. The motion to suppress was denied and the defendant was convicted at trial.

The trial court did not err in declining to impose sanctions on the State for discovery violations. Where a party fails to comply with statutory discovery obligations, G.S. 15A-910 authorizes the court to sanction the offending party. “Whether a party has complied with discovery and what sanctions, if any, should be imposed are questions address to the sound discretion of the trial court.” Slip op. at 8 (citation omitted). Under that standard, the trial court will only be reversed if its decision was “manifestly unsupported by reason.” Id. at 9. While the defendant was not made aware of the Wadesboro officer’s identity until the suppression hearing, the State ultimately provided the deputy’s supplemental report and there was no record evidence that the defendant specifically sought the unknown officer’s identity. On these facts, the trial court did not err in declining to impose sanctions on the State for the alleged discovery violation.

The court rejected the defendant’s argument that the trial court erred by denying his motion for sanctions for failure to preserve and disclose a blank recording of an arranged call between an informant and the defendant. Under the discovery statutes, officer Moody should have documented his efforts to preserve the conversation by audio recording and provided the blank audio file to the District Attorney’s Office to be turned over to the defendant in discovery. The court noted that when human error occurs with respect to technology used in investigations “[th]e solution in these cases is to document the attempt and turn over the item with that documentation, even if it appears to the officer to lack any evidentiary value.” However, failure to do so does not always require dismissal or lesser sanctions. Here, the trial court considered the materiality of the blank file and the circumstances surrounding Moody’s failure to comply with his discovery obligations. In denying sanctions, it considered the evidence presented and the arguments of counsel concerning the recording. The trial court found Moody’s explanation of the events surrounding the recording to be credible. On this record, the trial court did not abuse its discretion in denying sanctions.

In this methamphetamine case, the trial court did not abuse its discretion by denying the defendant’s motion for discovery sanctions after the State destroyed evidence seized from the defendant’s home, without an order authorizing destruction, and despite a court order that the evidence be preserved. In its order denying the motion, the trial court found that the SBI destroyed the evidence under the belief that a destruction order was in place, that the defendant’s preservation motion was filed some 30 days after the evidence had been destroyed, and that the item in question—an HCL generator used to manufacture meth—is not regularly preserved. The court concluded that the record contained “ample evidence” to support the trial court’s conclusion that law enforcement had a good faith belief that the items were to be destroyed and did not act in bad faith when they initiated destruction. 

State v. Williams, 362 N.C. 628 (Dec. 12, 2008)

The trial judge properly dismissed a charge of felony assault on a government officer under G.S. 15A-954(a)(4) where the defendant established that the state flagrantly violated his constitutional rights and irreparably prejudiced preparation of the defense. The state willfully destroyed material evidence favorable to the defense. The destroyed evidence consisted of two photographs of the defendant that were displayed in the prosecutor’s office, one taken of the defendant before the events in question, another taken after the events in question. The defendant was uninjured in the first photograph, which was captioned “Before he sued the D.A.’s office;” the defendant was injured in the second photograph, which was “After he sued the D.A.’s office.”

The defendant was cited for misdemeanor driving while impaired on November 27, 2016. His attorney requested discovery in July 2017, specifically asking for dash cam and body camera footage. The defendant was subsequently indicted for habitual impaired driving and other traffic offenses based on the November 27, 2016 incident. In January 2018, the defendant's attorney again requested dash cam footage. The defendant’s attorney was informed in February 2018 that the dash cam video had been deleted from the local server, and the Highway Patrol was attempting to locate it from other sources. In March 2018, defense counsel was informed that the video had been purged and was not available for release.

The defendant moved to dismiss the charges based on the destruction of the dash cam video. The trial court granted the motion, concluding that the destruction of the dash cam video footage violated the defendant’s right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and required dismissal of the charges. The State appealed.

The court of appeals noted that suppression of evidence favorable to an accused violates due process when the evidence is material to guilt or punishment, regardless of the good faith or bad faith of the prosecution. But when the evidence is only potentially useful, the State’s failure to preserve the evidence does not violate the defendant’s constitutional rights unless the defendant shows bad faith on the part of the State.

Though the trial court concluded that the destruction of the dash cam video footage was a Brady violation, it made no findings on what the dash cam video footage would have shown. Indeed, it could not have made such findings because there was no record of what the footage may have shown. The dash cam footage was not material exculpatory evidence; instead, it was only potentially useful. To establish a constitutional violation based on the destruction of potentially useful evidence, the defendant must show bad faith. The trial court erred by concluding that destruction of the footage warranted dismissal, regardless of bad faith on the part of the State. The court of appeals remanded the case to the trial court for a determination of whether the footage was destroyed in bad faith. A dissenting judge would have reversed the trial court on the basis that the evidence presented could not support a finding of bad faith.

In this drug trafficking case, the trial court did not err by denying the defendant’s motion to dismiss all charges due to the State’s failure to preserve and disclose a blank audio recording of a conversation between an accomplice and the defendant. After the accomplice Stanley was discovered with more than 2 pounds of methamphetamine in his vehicle, he told officers that the defendant paid him and a passenger to pick up the drugs in Atlanta. Stanley agreed to help officers establish that the defendant was involved by arranging a control delivery of artificial methamphetamine. With Lt. Moody present, Stanley used a cell phone to call the defendant to arrange a pick up at a specified location. The defendant’s associates were arrested when they arrived at the site and testified as witnesses for the State against the defendant. During trial, defense counsel asked Moody on cross-examination if he attempted to record the telephone conversations between Stanley and the defendant. Moody said that he tried to do so with appropriate equipment but realized later that he had failed to record the call. Defense counsel told the trial court that no information had been provided in discovery about Moody’s attempt to record the call. After questioning Moody outside of the presence of the jury, the defendant filed a motion for sanctions seeking dismissal of the charges for a willful violation of the discovery statutes and his constitutional rights. The trial court denied the motion. The defendant was convicted and appealed. The defendant argued that the State violated his Brady rights by not preserving and disclosing the blank audio recording of the conversation. The court disagreed. The defendant had the opportunity to question Stanley about the phone call, cross-examine Moody about destruction of the blank recording, and argue the significance of the blank recording to the jury. Although the blank recording could have been potentially useful, the defendant failed to show bad faith by Moody. Moreover, while the evidence may have had the potential to be favorable, the defendant failed to show that it was material. In this respect, the court rejected the notion that the blank recording implicated Stanley’s credibility.

The trial court erred by dismissing with prejudice murder charges as a sanction for discovery violations where the record did not reveal a basis for the determination that dismissal was an appropriate sanction. Additionally, because the defendant actually received before trial the evidence the State initially failed to disclose, any harm was either speculative or moot. 

(1) The trial court erred by entering a pretrial order dismissing, under G.S. 15A-954(a)(4), murder, child abuse, and sexual assault charges against the defendant. The statute allows a trial court to dismiss charges if it finds that the defendant's constitutional rights have been flagrantly violated causing irreparable prejudice so that there is no remedy but to dismiss the prosecution. The court held that the trial court erred by finding that the State violated the defendant’s Brady rights with respect to: a polygraph test of a woman connected to the incident; a SBI report regarding testing for the presence of blood on the victim’s underwear and sleepwear; and information about crime lab practices and procedures. It reasoned, in part, that the State was not constitutionally required to disclose the evidence prior to the defendant’s plea. Additionally, because the defendant’s guilty plea was subsequently vacated and the defendant had the evidence by the time of the pretrial motion, he received it in time to make use of it at trial. The court also found that the trial court erred by concluding that the prosecutor intentionally presented false evidence at the plea hearing by stating that there was blood on the victim’s underwear. The court determined that whether such blood existed was not material under the circumstances, which included, in part, substantial independent evidence that the victim was bleeding and the fact that no one else involved was so injured. Also, because the defendant’s guilty plea was vacated, he already received any relief that would be ordered in the event of a violation. Next, the court held that the trial court erred by concluding that the State improperly used a threat of the death penalty to coerce a plea while withholding critical information to which the defendant was entitled and thus flagrantly violating the defendant’s constitutional rights. The court reasoned that the State was entitled to pursue the case capitally and no Brady violation occurred. (2) The trial court erred by concluding that the State’s case should be dismissed because of statutory discovery violations. With regard to the trial court’s conclusion that the State’s disclosure was deficient with respect to the SBI lab report, the court rejected the notion that the law requires either an affirmative explanation of the extent and import of each test and test result. It reasoned: this “would amount to requiring the creation of an otherwise nonexistent narrative explaining the nature, extent, and import of what the analyst did.” Instead it concluded that the State need only provide information that the analyst generated during the course of his or her work, as was done in this case. With regard to polygraph evidence, the court concluded that it was not discoverable.

The trial court did not abuse its discretion by denying the defendant’s motion for a mistrial on grounds that the State failed to provide the defendant with additional discovery after a meeting with co-defendant William Brown gleaned new information. After recognizing potential discovery violations by the State, the trial court instructed defense counsel to uncover any discrepancies in Brown’s testimony through cross-examination. After doing so, the defense renewed its mistrial motion. Although the trial court denied that motion, it granted the defense a recess “to delve into that particular matter” and ordered the State to memorialize all future discussions with Brown. All of the trial court’s remedies were permissible and were not an abuse of discretion. Additionally, the trial court did not err by denying the defendant’s mistrial motion; that remedy is appropriate only where the improprieties make it impossible to attain a fair and impartial verdict. 

The trial court erred by ordering suppression as a sanction for the State’s failure to document and disclose various communications between agencies and individuals involved in the investigation. The court began by noting that G.S. 15A-903 requires production of already existing documents; it imposes no duty on the State to create or continue to develop additional documentation regarding an investigation. To the extent the trial court concluded that the State violated statutory discovery provisions because it failed to document the conversations, this was error. The trial court also erred by concluding that the State violated the discovery statutes by failing to provide other documented conversations. In addition to failing to make findings justifying the sanction on this basis, the defendant received the documentation prior to trial.

In a delivery of cocaine case the trial court abused its discretion by denying the defendant’s request for an entrapment instruction as a sanction under G.S. 15A-910(a) for failure to provide "specific information as to the nature and extent of the defense" as required by G.S. 15A-905(c)(1)(b). The trial court made no findings of fact to justify the sanction and the State did not show prejudice from the lack of detail in the notice filed eight months prior to trial. The court held:

[I]n considering the totality of the circumstances prior to imposing sanctions on a defendant, relevant factors for the trial court to consider include without limitation: (1) the defendant's explanation for the discovery violation including whether the discovery violation constituted willful misconduct on the part of the defendant or whether the defendant sought to gain a tactical advantage by committing the discovery violation, (2) the State's role, if any, in bringing about the violation, (3) the prejudice to the State resulting from the defendant's discovery violation, (4) the prejudice to the defendant resulting from the sanction, including whether the sanction could interfere with any fundamental rights of the defendant, and (5) the possibility of imposing a less severe sanction on the defendant.

Slip op. at pp. 29-30. The court continued, holding that assuming that the defendant’s notice constituted a discovery violation, the trial court abused its discretion by refusing to instruct on entrapment as a sanction.

(1) In this murder case, the trial court abused its discretion by excluding, as a discovery sanction, testimony by defense expert Masucci. The defendant offered Masucci after the trial court precluded the original defense expert, Ward, from testifying that incriminating computer files had been planted on the defendant’s computer. The State made no pretrial indication that it planned to challenge Ward’s testimony. At trial, the defendant called Ward to testify that based upon his analysis of the data recovered from the defendant's laptop, tampering had occurred with respect to the incriminating computer files. The State successfully moved to exclude this testimony on the basis that Ward was not an expert in computer forensic analysis. The defendant then quickly located Masucci, an expert in computer forensic analysis, to provide the testimony Ward was prevented from giving. The State then successfully moved to exclude Masucci as a sanction for violation of discovery rules. The only evidence directly linking the defendant to the murder was the computer files. Even if the defendant violated the discovery rules, the trial court abused its discretion with respect to the sanction imposed and violated the defendant’s constitutional right to present a defense. (2) The trial court erred by failing to conduct an in camera inspection of discovery sought by the defense regarding information related to FBI analysis of the computer files. The trial court found that the FBI information was used in counterterrorism and counterintelligence investigations and that disclosure would be contrary to the public interest. The court held that the trial court’s failure to do an in camera review constituted a violation of due process. It instructed that on remand, the trial court “must determine with a reasonable degree of specificity how national security or some other legitimate interest would be compromised by discovery of particular data or materials, and memorialize its ruling in some form allowing for informed appellate review.”

The trial court did not err by denying the defendant’s request for a jury instruction on voluntary manslaughter based on imperfect self-defense where, among other things, the State filed a motion requesting that the defendant provide voluntary discovery outlining the defenses he intended to assert at trial but the defendant failed to provide the State with the defenses or the requisite notice required to assert a theory of self-defense under G.S. 15A-905(c)(1).

The trial court did not err by failing to provide a jury instruction with respect to the audio recording. The court noted that in State v. Nance, 157 N.C. App. 434 (2003), it held that the trial court did not err by declining to give a special instruction requested by the defendant concerning lost evidence when the defendant failed to establish that the police destroyed the evidence in bad faith and that the missing evidence possessed an exculpatory value that was apparent before it was lost. As in this case, the defendant failed to make the requisite showing and the trial court did not err by declining to give the requested instruction.

The trial court did not err by failing to grant the defendant a new trial on his MAR where the State failed to disclose in discovery more than 1,800 pages of material to which the defendant was entitled. The court was unable to conclude that but for the nondisclosure a different result would have occurred at trial.

Van de Kamp v. Goldstein, 555 U.S. 335 (Jan. 26, 2009)

Supervisory prosecutors were entitled to absolute immunity in connection with the plaintiff’s claims that prosecutors failed to disclose impeachment material due to the failure to train prosecutors, failure to supervise prosecutors, or failure to establish an information system in the district attorney’s office containing potential impeachment material about informants. The plaintiff, whose murder conviction was later reversed, had sued prosecutors under § 1983 for the alleged suppression of potential impeachment information that could have been used against a state’s witness in the defendant’s murder trial. The conviction was allegedly based in critical part on the testimony of this witness, who was a jailhouse informant and had previously received reduced sentences for providing prosecutors with favorable testimony in other cases.

Although the State had a right to appeal the trial court’s order dismissing charges because of a discovery violation, it had no right to appeal the trial court’s order precluding testimony from two witnesses as a sanction for a discovery violation. 

In this drug trafficking case, the trial court did not err in quashing a subpoena the defendant issued to a North Carolina Department of Revenue employee to testify at trial and produce “[a]ll documents related to the Unauthorized Substance Tax action against [defendant].” In part because the relevant statute in effect at the time provided that information obtained by the Department cannot be used in evidence in a criminal prosecution, the trial court did not abuse its discretion in quashing the subpoena.

The trial court erred by ordering, under threat of contempt, that defense counsel’s legal assistant appear as a witness for the State. The State served the assistant with a subpoena directing her to appear to testify on the weeks of Friday, November 8, 2013, Monday, December 2, 2013, and Monday, January 13, 2014. However, the trial did not begin on any of the dates listed on the subpoena; rather, it began on Monday, November 18, 2013 and ended on Wednesday, November 20, 2013. Because the assistant had not been properly subpoenaed to appear on Tuesday, November 19th, the trial court erred by ordering, under threat of contempt, that she appear on that day as a witness for the State. The court went on to find the error prejudicial and ordered a new trial.

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