In this sex offense and indecent liberties case, the court held: (1) a sex offense indictment that identified the child victim as “Victim #1” was fatally defective; (2) the trial court’s erroneous failure to conduct a jury instruction conference prior to submitting the existence of a statutory aggravating factor to the jury did not “materially prejudice” the defendant.

(1) Following its decision in State v. White, 372 N.C. 248 (2019), the court held that an indictment charging the defendant with committing a sex offense with a child was fatally defective and facially invalid because it identified the victim as “Victim #1.”  As in White, the court found that identifying the victim as “Victim #1” did not satisfy the requirement in G.S. 15-144.2(b) that a short form sex offense with a child indictment “[name] the child.” 

(2) The court went on to determine that the trial court’s failure to conduct an instruction conference prior to submitting the existence of the “position of trust or confidence” statutory aggravating factor to the jury was error but that it did not “materially prejudice” the defendant.  After accepting the jury’s verdict in the guilt-innocence phase of the trial, the trial court convened a proceeding for the purpose of determining whether a properly noticed “position of trust or confidence” statutory aggravating factor existed.  The record clearly established that during this proceeding the trial court did not conduct a jury instruction conference or otherwise discuss the manner in which the jury should be instructed concerning the aggravating factor.  G.S. 15A-1231(b) requires trial courts to hold a recorded conference on jury instructions but states that a failure “to comply fully” with the statute does not constitute grounds for appeal unless it “materially prejudiced the case of the defendant.”  The Court of Appeals had held, relying on its own precedent, that the total failure to conduct a jury instruction conference necessitated a new proceeding on the aggravating factor regardless of whether the defendant made a showing of “material prejudice.”  The Supreme Court rejected this approach and its distinction between cases in which the trial judge entirely fails to comply with G.S. 15A-1231(b) and those where there is partial compliance.  Overruling any earlier decisions to the contrary, the Supreme Court explained:

[T]he reference in [G.S.] 15A-1231(b) to the necessity for the trial court to “comply fully” with the statutory requirement that a jury instruction conference be conducted, instead of distinguishing between a complete and a partial failure to comply with the applicable statutory requirement, is intended to require the making of a showing of “material prejudice” a prerequisite to an award of appellate relief regardless of the nature and extent of the trial court’s non-compliance with [G.S.] 15A-1231(b).

With this explanation of the statute, the court proceeded to analyze whether the defendant was materially prejudiced in this case and concluded that he was not, noting that there was undisputed overwhelming evidence that the victim was dependent on the defendant in various ways as his step-child and that the court previously had stated that evidence establishing a parent-child relationship tends to support the aggravating factor at issue.

In separate opinions, Justices Newby and Morgan dissented in part and concurred in result only in part.  Justice Newby dissented from the portion of the majority opinion dealing with the validity of the indictment, noting that the defendant was “fully aware of the identity of the victim” and expressing his view that the indictment was sufficient.  As for the instruction conference issue, Justice Newby interpreted G.S. 15A-1231(b) as not requiring a formal instruction conference at a sentencing proceeding to determine the existence of an aggravating factor.  In a footnote, the majority opinion rejected this interpretation of the statute. 

Justice Morgan also would have found the indictment valid because, scrutinizing the whole record, it sufficiently apprised the defendant of the charge against him.  Justice Morgan noted that the victim’s initials appeared on the arrest warrant that was issued for the defendant and on an indictment returned against him for indecent liberties involving the same victim.  Justice Morgan would have reached the same conclusion as the majority with regard to the instruction conference issue but would have done so by distinguishing rather than overruling the pertinent Court of Appeals opinions.

In a footnote, the court “urge[d]” the trial courts to define all relevant terms in its jury instructions and avoid the situation that occurred here, where the trial court declined to define the relevant term and allowed counsel to argue definitions of the term to the jury. 

Based on the circumstances of this felon in possession case, the trial court’s failure to further inquire into and answer the jury’s questions regarding constructive possession of the gun constituted plain error. The circumstances included the fact that the jury was instructed on actual possession even though the State had argued to the jury that there was no evidence of actual possession and that the jury was instructed on constructive possession when no evidence supported such an instruction.

In this Rockingham County case, the Supreme Court modified and affirmed the Court of Appeals decision that defendant had waived appellate review of the denial of his request for a self-defense instruction to the jury. 

In March of 2017, defendant and the mother of one of his sons had an altercation at a hotel in Reidsville. Defendant struck and choked the female victim; eventually the victim grabbed a pistol in the hotel room to defend herself. Testimony differed on whether the victim intentionally fired the pistol into the floor of the hotel or if it went off in a struggle, but defendant was struck in the calf by a bullet. After the altercation, the victim left the hotel room and filed a report with police. Defendant was indicted on several assault and firearm charges. At trial, defendant did not give notice that he planned to argue self-defense, and did not testify on his own behalf; during the jury instruction conference defendant’s counsel agreed with the proposed instructions, which did not include self-defense. However, on the morning after the jury instruction conference, defense counsel requested that the court include an instruction on self-defense, a request that the trial court denied. 

The Court of Appeals held that defendant failed to preserve his challenge to the denial of his requested instruction because he did not object during the jury instruction conference or after instructions were given to the jury, representing invited error. The Supreme Court disagreed with this conclusion, explaining that N.C. Rule of Appellate Procedure 10(a)(2) does not require objection specifically during the jury instruction conference, only an objection “before the jury retires to consider its verdict,” meaning defendant’s challenge was sufficient. Slip. Op. at 20-21. Because defendant made his request prior to the jury retiring, and the trial court denied defendant’s request, the court held that “defendant’s challenge . . . was properly preserved for purposes of appellate review even though defendant did not raise the self-defense issue at the jury instruction conference, expressed initial agreement with the trial court’s proposed instructions, and did not lodge any sort of objection to the instructions that the trial court actually gave . . . .” Id. at 21-22. The court also noted that defendant’s failure to provide notice of his intention to argue self-defense as required by G.S § 15A-905(c)(1) did not alter the result, as that requirement is a discovery-related obligation, and the record did not reflect imposition of a discovery sanction precluding the self-defense argument. Id. at 23-24. 

Moving to the substantive issue of whether the trial court erred by denying the self-defense instruction, the Supreme Court agreed with the Court of Appeals that the record did not support defendant’s argument of self-defense. Applying the self-defense standard from G.S. § 14-51.3(a), the court found that “the record contains no evidence tending to show that defendant assaulted [the victim] for the purpose of defending himself from the use of unlawful force on the part of [the victim].” Id. at 27. 

Chief Justice Newby, joined by Justices Berger and Barringer, concurred in part and dissented in part, disagreeing with the opinion regarding whether defendant preserved his request on appeal but agreeing with the majority that the trial court properly denied the instruction on self-defense. Id. at 30. 

Justice Earls concurred in part and dissented in part, agreeing with the opinion that defendant preserved the issue of his request for appellate review, but disagreeing with the majority regarding the trial court’s denial of defendant’s request for the self-defense instruction. Id. at 37. 

The defendant was convicted of voluntary manslaughter and sentenced to 73 to 100 months in prison for shooting her boyfriend, Timothy Lee Fry, with whom she had lived for approximately three years. The evidence showed that their relationship was good at first but started to deteriorate after about a year. Fry verbally and physically abused her. He would choke her, pull her hair, and push her face. A gun enthusiast who kept loaded guns around the house, Fry would point the laser sight at the defendant’s forehead and chest. The abuse also included repeated instances in which Fry would coerce her into having sex with him and other, older men. The defendant suffered from depression and had once attempted suicide. On the day of the shooting, the defendant returned home from work to find Fry in the basement of their home. He asked her to go with him to South Carolina to have sex with an older man. When she refused, Fry held a handgun to her chest, acted like he was pulling the trigger, and told her he would kill her if she didn’t go. The defendant went upstairs. When she returned to the basement, Fry repeated that he was going to kill her if she didn’t go and grabbed where the gun was and started towards her. The defendant grabbed a shotgun leaning against the bathroom wall and fired five rounds, hitting him four times. The defendant testified, “The closer he came, the more I would shoot because he wouldn’t stop, he just kept coming towards me.” After each shot, she had to load a new shell into the chamber, push the slide forward, and pull the trigger. Two shots entered Fry’s chest. Another two entered through his left arm and armpit, traveling through his left lung and fracturing five ribs. The State’s forensic pathologist testified that any one of the shots would have been enough to incapacitate and kill Fry. Three bullet holes from the shotgun’s slugs were found in the carpet beneath Fry’s body, suggesting that he was on the ground when shot; and each of the four bullet wounds had a downward trajectory. After shooting Fry, the defendant called 911 and told the operator that she had shot her boyfriend.

The trial judge instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, self-defense, voluntary intoxication, and diminished capacity. In the final mandate on voluntary manslaughter, the offense for which the defendant was convicted, the trial judge instructed the jury as follows but without the underlined phrase:

If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally wounded the alleged victim with a deadly weapon and thereby proximately caused the alleged victim’s death, and that the defendant . . . used excessive force, it would be your duty to find the defendant guilty of voluntary manslaughter, even if the State has failed to prove that the defendant did not act in self-defense.

The Court of Appeals held that the defendant failed to preserve the erroneous omission of the underlined language for appellate review. The defendant did not object to the omission and, after the judge excused the jury to commence its deliberations, did not request any modifications to the instructions when asked by the judge. The Court distinguished decisions finding no waiver in which the trial judge agreed to give a specific instruction and failed to give it altogether rather than omitting a portion of the instruction as in this case. Reviewing the instruction for plain error, the Court found that the defendant failed to show reversible error because the trial judge in other portions of the jury instructions included the language omitted from the final mandate.

(1) Where the defendant was charged with two counts of felony assault on two separate victims, no error occurred where in its jury instruction the trial court referred to “the victim.” The defendant argued that the trial court erred by failing to instruct the jury to consider each offense individually. The court disagreed, noting that the charges were clearly separated on the verdict sheets and the trial court referred to the two victims by name and stated that they were separate victims of two different counts of assault. (2) The court came to the same conclusion with respect to two counts of conspiracy to commit murder.

In a case involving two defendants, no plain error occurred where the trial court’s instructions referred to the defendant and his accomplice collectively as “defendants.” The court noted that when two or more defendants are tried jointly for the same offense, a charge that is susceptible to the construction that the jury should convict all if it finds one guilty is reversible error. However, it noted, it is not necessary to give wholly separate instructions as to each defendant when the charges and the evidence as to each defendant are identical, provided that the trial court either gives a separate final mandate as to each defendant or otherwise clearly instructs the jury that the guilt or innocence of one defendant is not dependent upon the guilt or innocence of a codefendant. Noting that the trial court failed to give a separate mandate as to each defendant or a separate instruction clarifying that the guilt or innocence of one defendant is not dependent upon the guilt or innocence of a codefendant, the court held that even if error occurred, it did not rise to the level of plain error.

In this Moore County case, the defendant was convicted of first-degree rape and sex offense, crime against nature, possession of firearm by felon, communicating threats and various assaults stemming from attacks on his estranged then-wife. On appeal, the defendant argued that the trial court plainly erred by permitting multiple witnesses for the State to refer to the woman as the “victim,” that his trial counsel was ineffective for failing to object to those references, and that the trial court plainly erred by using “victim” to describe the woman in its jury instructions.

(1) A total of eight witnesses for the State used the term “victim” in reference to the woman, five of whom were law enforcement officers and four of whom were expert witnesses. The defendant contended this amounted to improper vouching for the accuser’s credibility and argued the trial court should have intervened ex mero motu. The court found that the defendant could not show prejudice and therefore could not establish plain error. “…[T]he strength of the State’s evidence against defendant . . . outweighed any potential subliminal effect of the witnesses’ occasional references to [the woman] as the victim.” Slip. op. at 13.

(2) For the same reasons, the defendant’s ineffective assistance of counsel claim failed. The defendant could not demonstrate a reasonable possibility of a different result at trial had his counsel objected to the uses of the word “victim” and therefore could not establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984). 

(3) According to the defendant, the trial court’s use of the word “victim” in its jury instruction violated the statutory mandate against expression of judicial opinion. Rejecting this argument, the court observed:

Our Supreme Court has consistently rejected a defendant’s attempt to couch the trial court’s use of the term “victim” in its jury instructions as an improper expression of judicial opinion in violation of N.C.G.S. §§ 15A-1222 and 1232. . . Likewise, our Supreme Court has rejected arguments that the trial court’s use of the term “victim” in its charge to the jury amounts to plain error . . . Id. at 17.

Any constitutional challenge to the jury instructions on this point was not raised in the trial court and therefore waived on appeal. The convictions were thus unanimously affirmed.

Officers investigating complaints of drug activity at a home where the defendant lived with several others discovered methamphetamine, heroin, and cocaine in a small yellow tin in a dresser in the alcove near defendant’s bedroom, an area that the defendant claimed as his personal space. The defendant had allowed officers to search the area, acknowledging that he had used methamphetamine and prescription pills, and that his bedroom likely contained needles and pipes (which were in fact found by the officers), but telling the officers that he did not think they would find any illegal substances. Without the defendant’s knowledge, another resident of the home, Autumn Stepp, had placed the yellow tin, which she referred to as her “hard time stash,” in the dresser before leaving the home earlier that day.

The defendant was charged with possession with intent to sell and deliver methamphetamine, heroin, and cocaine and with maintaining a dwelling house for the sale of controlled substances. He also was indicted for having attained the status of an habitual felon. At the close of the State’s evidence, the trial court dismissed all charges except for simple possession of heroin, methamphetamine, and cocaine. The State requested, and the judge delivered over the defendant’s objection, a jury instruction on the theory of acting in concert in addition to constructive possession. The jury convicted the defendant of simple possession of heroin, methamphetamine, and cocaine and determined that he had attained the status of an habitual felon. The trial court imposed two consecutive sentences of 50 to 72 months of imprisonment. Defendant appealed. 

In a divided opinion, the court of appeals determined that the instruction was proper as it was supported by the evidence. The defendant appealed to the North Carolina Supreme Court.

The state supreme court noted that to support a jury instruction on the theory of acting in concert, the State must produce evidence that the defendant acted together with another who did the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. Mere presence at the scene of the crime is insufficient to support such an instruction. The supreme court agreed with the dissent below that there was no evidence that the defendant acted together with Stepp pursuant to a common plan or purpose; therefore, the supreme court concluded that the trial court erred by giving the instruction. The court reasoned that the discovery of the tin in the defendant’s personal area could indicate his capability to maintain dominion and control over it, thereby supporting a theory of constructive possession, but did not show a common plan or purpose in which the defendant acted in concert with Stepp to protect her “hard time stash.” Likewise, defendant’s admission that he had used illegal drugs on the day of the search and with Stepp in the past could support a theory of constructive possession, but did not demonstrate a common plan or purpose between defendant and Stepp as to the substances in the yellow tin.

Because the State’s evidence supporting the theory of constructive possession was controverted and not exceedingly strong and given the prospect of confusion presented by proceeding on a theory of possession by acting in concert and constructive possession, the court concluded there was a reasonable possibility that had the trial court not instructed on acting in concert a different result would have been reached. The state supreme court thus reversed the decision of the court of appeals, vacated the defendant’s convictions and ordered a new trial.

Justice Newby dissented based on his view that the majority failed to consider the evidence in the light most favorable to the State. Through that lens, he would have found sufficient evidence to support the theory of acting in concert.

In this Buncombe County case, the defendant was convicted of possession with intent to sell or deliver cocaine. The defendant sold two white rocks to an undercover officer in a parking lot. When the defendant gave the drugs to the officer, he placed them in the officer’s bare hands without any packaging. The rocks were later tested and found to contain cocaine. (1) At trial, the defendant moved to dismiss for insufficient evidence. He pointed out that the officer had handled other cocaine with his bare hands earlier in the day and had stored other cocaine in his car console where the cocaine obtained from the defendant was later stored. According to the defendant, this rendered the laboratory result unreliable and insufficient to prove possession of cocaine. The court rejected this argument, finding the handling and storing of the rocks was an issue going to the weight of the evidence and not its admissibility. While the jury was free to consider the contamination argument, there was sufficient evidence that the substance was cocaine when viewed in the light most favorable to the State.

(2) The defendant did not object to the authentication of the cocaine at trial but argued on appeal that the trial court plainly erred in admitting the evidence due to the potential contamination issue. The court again disagreed. “The possibility that physical evidence has been contaminated does not, by itself, bar that evidence from being authenticated and admitted.” Slip op. at 6. Just as with the sufficiency issue, the question of the authentication of the cocaine here went to the weight of the evidence and not admissibility.

(3) After one day of deliberations, the jury sent a note to the trial court indicating it was deadlocked. The trial court instructed the jury pursuant to G.S. 15A-1235 before dismissing the jury for the day. The next morning, the trial judge stated that the jury should resume deliberations “with a goal of reaching a unanimous decision as to each charge.” The defendant complained that this language improperly coerced the jury to render a unanimous verdict. The court disagreed:

The trial court properly gave the required Allen instructions to ensure that jurors understood they were not compelled to reach a unanimous verdict. In light of those instructions, the trial court’s decision, when deliberations resumed, to inform the jury that they should have the goal of reaching a unanimous verdict did not compel any juror to surrender his well-founded convictions or judgment to the views of the majority. It simply reinforced that the jury’s charge was to deliberate and reach a unanimous verdict if possible. Jackson Slip op. at 9.

The case was therefore affirmed in all respects.

(1) At his trial for habitual DWI, the defendant took the stand, denied driving, and admitted his prior DWI convictions in explaining why he did not drive on the night in question and why, based on his past interactions with law enforcement, he did not speak to the arresting officers. On cross-examination, the State asked the defendant about the offense, date, and place of each of those convictions. The defendant asked the trial judge to instruct the jury pursuant to North Carolina Pattern Jury Instruction 105.40, which instructs that the jury should not consider a defendant’s prior convictions as evidence of the defendant’s guilt in the current case. The trial judge refused to give the instruction. Relying on State v. Jackson, 161 N.C. App. 118 (2003), the Court of Appeals found no error. Per that opinion, a defendant is not entitled to a special instruction instructing the jury to consider a defendant’s testimony about prior convictions for purposes of the defendant’s credibility only, where the defendant initially offers the testimony on direct examination. The Court held that the State’s cross-examination of the defendant in this case was limited and did not constitute sufficient impeachment to require the instruction. The Court rejected the defendant’s argument that it should reconsider Jackson, finding that it was bound by the prior decision. (2) Before his first trial on the habitual DWI charge, the defendant moved for and the trial judge conducted an in camera review of the arresting officers’ personnel records. The trial judge denied release, finding no favorable and material evidence, and the Court of Appeals upheld the denial in an unpublished opinion. On appeal in this case, the defendant asked the Court of Appeals to review the records, which the trial judge had placed under seal at the first trial. The Court of Appeals held that the defendant failed to preserve the issue for appeal, having failed to make any motion asking the trial judge to review the records before his second trial. The Court stated that a mistrial has the legal effect of no trial. Therefore, the defendant could not rely on a motion made at his first trial to preserve issues for appeal at his later trial.

Two men attempted to rob the victim in a McDonald’s parking lot. One of the suspects fired a gun, and both suspects fled. The victim ran to a nearby parking lot, where he found a law enforcement officer. The victim told the officer what had occurred and described the suspects. Two suspects matching the description were located nearby a few minutes later. When officers approached, the defendant ran. He was apprehended a few minutes later. The victim was taken to the location where the defendant was apprehended, and the victim identified the defendant as the person with a gun who had tried to rob him earlier. The identification was recorded on one of the officer’s body cameras.

The defendant was indicted for attempted robbery with a dangerous weapon. He moved to suppress the victim’s show-up identification. The trial court denied the motion, and the defendant was convicted at trial. The defendant appealed, arguing that the trial court erred when it denied his motion to suppress evidence of the show-up identification and when it failed to instruct the jury about purported noncompliance with the North Carolina Eyewitness Identification Reform Act (“the Act”).

(1) G.S. 15A-284.52(c1) of the Act provides that

• A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness;
• A show-up may only be performed using a live suspect; and
• Investigators must photograph a suspect at the time and place of the show-up to preserve a record of the suspect’s appearance at the time of the show-up.

The Court of Appeals determined that the trial court made findings that supported each of these requirements. The defendant, who matched the victim’s description, was detained less than a half-mile from the site of the attempted robbery. He was suspected of a violent crime that involved the discharge of a firearm and he fled when officers first attempted to detain him. These circumstances required an immediate display of the defendant. An armed suspect who is not detained poses an imminent threat to the public. And had the victim determined that the defendant was not the perpetrator, officers could have released the defendant and continued their search. Finally, the show-up involved a live suspect and was recorded on camera.

The Court of Appeals rejected the defendant’s argument that the Act requires law enforcement officers to obtain a confidence statement and information related to the victim’s vision. G.S. 15A-284.52(c2) requires the North Carolina Criminal Justice Education and Training Standards Commission to develop a policy regarding standard procedures for show-ups. The policy must address “[c]onfidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.” The court reasoned that because G.S. 15A-284.52 does not place additional statutory requirements on law enforcement, but instead requires the North Carolina Criminal Justice Education and Training Standards Commission to develop nonbinding guidelines, only G.S. 15A-284.52(c1) sets forth the requirements for show-up identification compliance.

The court further determined that the show-up did not violate the defendant’s due process rights as it was not impermissibly suggestive and did not create a substantial likelihood of misidentification.

(2) G.S. 15A-284.52(d)(3) provides that when evidence of compliance or noncompliance with “this section” of the Act is presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications. The defendant argued on appeal that he was entitled to a jury instruction on noncompliance with the Act because the officer did not obtain an eyewitness confidence level under G.S. 15A-284.52(c2)(2). The Court of Appeals rejected that argument on the basis that G.S. 15A-284.52(c2) concerns policies and guidelines established by the North Carolina Criminal Justice Education and Training Standards Commission, not the requirements for show-up identifications. Because the officers complied with the show-up procedures in G.S. 15A-284.52(c1), the defendant was not entitled to a jury instruction on noncompliance with the Act.

In this Brunswick County case, defendant appealed his conviction for habitual impaired driving. The Court of Appeals found no error after examining the trial court’s denial of defendant’s motion to suppress and motion to dismiss, and the jury instruction provided regarding defendant’s flight from the scene.

Evidence admitted at trial showed that a witness heard a crash and ran outside to see defendant with a bloody nose sitting behind the wheel of his truck, which was crashed into a ditch. After talking with the witness for several minutes, defendant walked off down the highway and up a dirt road into the woods. Law enforcement arrived, received a description from the witness, and conducted a search, finding defendant behind a bush in the woods 15 minutes later. After handcuffing defendant, the law enforcement officer conducted a “show-up” identification by taking defendant back to the witness and allowing the witness to identify defendant through the rolled-down window of the police vehicle.

The court first examined defendant’s motion to suppress the eyewitness “show-up” identification on due process and Eyewitness Identification Reform Act grounds (“EIRA”) (N.C.G.S § 15A-284.52(c1)-(c2)). Following State v. Malone, 373 N.C. 134 (2019), the court performed a two-part test, finding that although the “show-up” was impermissibly suggestive, the procedures used by law enforcement did not create a likelihood of irreparable misidentification when examined through the five reliability factors articulated in Malone. Applying EIRA, the court found that all three of the requirements in subsection (c1) were followed, as law enforcement provided a live suspect found nearby a short time after the incident and took photographs at the time of the identification. The court also held that subsection (c2) imposes no duty on law enforcement, and instead imposes a duty to develop guidelines on the North Carolina Criminal Justice Education and Training Standards Commission.

The court then reviewed defendant’s motion to dismiss for insufficient evidence showing that he was driving the vehicle. Applying State v. Burris, 253 N.C. App. 525 (2017), and State v. Clowers, 217 N.C. App. 520 (2011), the court determined that circumstantial evidence was sufficient to support a conclusion that defendant was driving the vehicle. Because the circumstantial evidence was substantial and supported the inference that defendant was driving, the lack of direct evidence did not support a motion to dismiss.

Finally, the court examined the jury instruction given regarding defendant’s flight from the scene, Pattern Jury Instruction 104.35. Defendant argued that the evidence showed only that he was leaving the scene of the accident and walking towards his home, actions that did not represent evidence of consciousness of guilt. The court applied the extensive caselaw finding no error in a flight jury instruction when evidence shows the defendant left the scene and took steps to avoid apprehension. Because evidence in the record showed that defendant fled and hid behind a bush, the court found sufficient evidence to support the use of the jury instruction, despite defendant’s alternate explanation of his conduct.

In this Gaston County first-degree murder case, the trial court (1) did not err in instructing the jury that there was sufficient evidence to infer that the defendant intentionally injured the victim; (2) erred by allowing the State to examine the defendant about privileged communications he had with defense counsel; (3) and did not err by denying the defendant’s motion to compel the State to disclose the theory on which it sought to convict him of first-degree murder.

(1) The court rejected the defendant’s argument that the trial court’s instruction to the jury that “[w]hen an adult has exclusive custody of a child for a period of time during which that child suffers injuries that are neither self-inflicted nor accidental, there is sufficient evidence to create an inference that the adult intentionally inflicted those injuries” impermissibly “created a ‘mandatory presumption’” that the defendant intentionally injured the victim. Viewing the challenged language “in light of the entire charge” and in the greater context of the law regarding intent and direct and circumstantial evidence, the Court of Appeals found no error in the instruction, explaining in part that the phrase “sufficient to create an inference” cannot reasonably be interpreted as meaning that the basic facts, if proven, “necessarily create an inference” of intent.

(2) The trial court erred by permitting the State to question the defendant on cross-examination about the substance of communications between him and defense counsel as those communications were subject to attorney-client privilege. Over an objection and in an effort to impeach the defendant’s credibility, the State was permitted to question the defendant about whether he discussed his law enforcement interrogation with his attorney. The Court of Appeals determined that the error was not prejudicial in light of the fact that the defendant’s credibility was already at issue at the time of the objectionable cross-examination and the defendant already had testified to being untruthful with police in the past.

(3) Given the well-stablished principle that “when first-degree murder is charged, the State is not required to elect between theories of prosecution prior to trial,” the court rejected the defendant’s argument that the trial court erred by denying his pretrial motion to compel the State to disclose the theory upon which it sought his conviction.

(1) In this first-degree murder case, the trial court did not err by declining to give the defendant’s requested special jury instruction regarding potential bias of a State’s witness. Because the issue involves the trial court’s choice of language in jury instructions, the standard of review was abuse of discretion. With respect to witness Brown, the defendant requested a special jury instruction stating: “There is evidence which tends to show that a witness testified with the hope that their testimony would convince the prosecutor to recommend a charge reduction. If you find that the witness testified for this reason, in whole or in part, you should examine this testimony with great care and caution. If, after doing so, you believe the testimony, in whole or in part, you should treat what you believe the same as any other believable evidence.” The trial court denied the requested special instruction and gave the pattern jury instruction on interested witnesses and informants, N.C.P.I. 104.20; 104.30, and the general pattern jury instruction concerning witness credibility, N.C.P.I. 101.15. Considering the facts of the case, the court found that the trial court’s charge to the jury, taken as a whole, was sufficient to address the concerns motivating the defendant’s requested instruction. The entire jury charge was sufficient to apprise the jury that they could consider whether Brown was interested, biased, or not credible; was supported by the evidence; and was in “substantial conformity” with the instruction requested by the defendant. The court further noted that the defendant’s requested instruction—that Brown testified with the hope that his testimony would convince the prosecutor to recommend a charge reduction—was not supported by the law or the evidence; there was no possibility that Brown could receive any charge reduction because he had no pending charges at the time of his testimony. Even if the trial court erred with respect to the jury instruction, the defendant could not demonstrate prejudice.

(2) In this murder case, the trial court did not err by allowing a State’s witness to testify, over objection, about a jailhouse attack. Witness Brown testified that he was transferred to the county courthouse to testify for the State at a pretrial hearing. When he arrived, the defendant—who was present inside a holding cell--threatened Brown and made a motion with his hands “like he was going to cut me. He was telling me I was dead.” After Brown testified at the pretrial hearing, he was taken back to the jail and placed in a pod across from the defendant, separated by a glass window. The defendant stared at Brown through the window and appeared to be “talking trash.” A few minutes later “somebody came to him and threatened him” for testifying against the defendant. Soon after Brown returned to his cell, the same person who had threatened him moments earlier came into the cell and assaulted Brown, asking him if he was telling on the defendant. On appeal the defendant argued that evidence of the jailhouse attack was both irrelevant and unduly prejudicial.

            The evidence regarding the jailhouse attack was relevant. The defendant’s primary argument on appeal was that there was no evidence that the defendant knew about, suggested, or encouraged the attack. The court disagreed noting, among other things that the defendant stared at Brown through the window immediately before the assailant approached and threatened Brown, and that the assailant asked Brown if he was telling on the defendant. This testimony “clearly suggests” that the defendant “was, at minimum, aware of the attack upon Brown or may have encouraged it.” Evidence of attempts to influence a witness by threats or intimidation is relevant. Additionally, Brown testified that he did not want to be at trial because of safety concerns. A witness’s testimony about his fear of the defendant and the reasons for this fear is relevant to the witness’s credibility. Thus the challenged testimony is clearly relevant in that it was both probative of the defendant’s guilt and of Brown’s credibility.

            The court went on to find that the trial court did not abuse its discretion by admitting the challenged testimony under Rule 403, finding that the defendant failed to demonstrate how the challenged testimony was unfairly prejudicial or how its prejudicial effect outweighed its probative value.

(1) In this impaired driving second-degree murder case, the court rejected the defendant’s argument that the trial court’s instruction on proximate cause was erroneous and that the trial court committed plain error by failing to instruct the jury on intervening negligence. The trial court instructed the jury that it had to find that “[T]he death of the victim was proximately caused by the unlawful act of the defendant” and that “[T]he State must prove beyond a reasonable doubt only that the defendant’s negligence was a proximate cause.” The court rejected the notion that the jury probably would have reached a different result if an instruction on intervening negligence was given. Overwhelming evidence showed that the defendant drove through a red light while grossly impaired and caused the crash. The only evidence hinting that the victim may have been negligent in causing the crash was the defendant’s offhand question to an officer who arrived on the scene about whether the officer had tested “the person that ran the red light.” Even if the victim had somehow been negligent, her negligent would most be a concurring proximate cause of her own death. (2) The trial court did not err in instructing the jury with respect to proximate cause as to the charge of felonious serious injury by vehicle. The defendant argued that the language of the statute “forecloses the possibility of the state proving proximate cause in conjunction with some other concurrent cause.” The court disagreed, citing prior case law rejecting this argument.

No plain error occurred when the trial court in its preliminary instructions before jury selection referred to reasonable doubt as “fair doubt” but correctly defined that term in its final instructions to the jury.

In this Randolph County case, the Supreme Court majority reversed the Court of Appeals decision overturning defendant’s conviction for second-degree murder, finding no error by the trial court.

In June of 2017, after a tumultuous affair involving the use of methamphetamine, defendant shot the victim while he was in her home. Defendant called 911 to report her shooting of the victim, who was in her bedroom at the time he was killed. An investigation found that the victim was shot in the back and evidence suggested that the shots were fired from more than six inches away. Defendant was indicted for second-degree murder; during trial the court instructed the jury on the aggressor doctrine over defendant’s objection. After defendant was convicted, she appealed, arguing the trial court erred by providing instruction on the aggressor doctrine. The Court of Appeals agreed, ordering a new trial. 

The Supreme Court noted that the appropriate inquiry was whether evidence in the record, when interpreted in the light most favorable to the State, supported the conclusion that defendant was the aggressor, and determined that the Court of Appeals failed to properly apply the standard in the current case. The self-defense “castle doctrine” provisions of G.S. §§ 14-51.2 and 14-51.3 allow a person to use deadly force to defend themselves in their home; the “aggressor doctrine” in G.S. 14-51.4 removes this defense if the jury finds that the defendant initially provoked the confrontation and no exceptions apply. When determining whether an instruction on the aggressor doctrine is appropriate, “a trial court must consider whether a jury could reasonably infer from the evidence that the defendant acted as an aggressor.” Slip Op. at 15. When making this determination, “the court must view the record in the light most favorable to the State, drawing all reasonable inferences in its favor.” Id. Here, defendant’s testimony at trial contradicted her previous statements, and contained new details not previously disclosed. The Supreme Court pointed out that physical evidence also seemed to contradict defendant’s version of events. Because “there was significant evidence from which a jury reasonably could conclude that [defendant] was the aggressor,” the trial court provided the proper instruction on the aggressor doctrine, and the Court of Appeals incorrectly ordered a new trial. Id. at 21. 

Justice Dietz, joined by Justice Berger, concurred by separate opinion to draw a distinction between common law aggressor doctrine and G.S. 14-51.4. Id. at 22. 

Justice Morgan, joined by Justice Barringer, dissented by separate opinion, and would have found that the aggressor doctrine instruction was inappropriate in this case. Id. at 25. 

Justice Barringer, joined by Justice Morgan, dissented by separate opinion, and would have held that the speculative evidence in the current case was insufficient to support the conclusion that defendant was the aggressor. Id. at 28.