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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The defendant was convicted of driving while impaired and appealed. He argued that the trial court erred by denying his motion to suppress evidence gathered following his arrest on the basis that his arrest was not supported by probable cause. The Court of Appeals found no error.

(1) The Highway Patrol trooper who arrested the defendant testified about his training in the administration of the horizontal gaze nystagmus test (HGN) for the detection of impairment and the interpretation of the results on the test.  He testified about performing the HGN test on the defendant and his observation of all six indications of impairment.

The defendant argued on appeal that the rules of evidence applied to the suppression hearing and the trial court erred by permitting the trooper to testify as an expert witness on HGN because he was not qualified under Rule 702. The Court of Appeals rejected the defendant’s argument, citing Rules 104(a) and 1101(b)(1), which explicitly state that the evidence rules do not apply to the determination of preliminary questions concerning the admissibility of evidence—the very issues presented in a hearing on a motion to suppress. The Court further held that the trooper’s testimony regarding the HGN test was relevant to the determination of probable cause and the trial court did not abuse its discretion by considering this evidence.

(2) The defendant argued that several findings of fact were not supported by the evidence.  The Court rejected the defendant’s argument, as to all but one objected-to finding. The trial court’s finding that the trooper noted a strong odor of alcohol on the defendant’s person was supported by the trooper’s testimony and the affidavit and revocation report he prepared. The finding that the defendant “deceptively denied” consuming alcohol was supported by the trooper’s testimony that the defendant denied having anything to drink as contrasted with the evidence that the defendant had consumed alcohol. The finding that the alcosensor was in proper working order and properly calibrated was supported by the trooper’s testimony. The finding that the trooper formed an opinion that the defendant was appreciably impaired was supported by the trooper’s testimony that the defendant was impaired; the trooper’s omission of the modifier “appreciably” was “a mere slip of the tongue.” (Slip op at ¶ 19.)  And the trial court’s findings regarding the HGN test were supported by competent evidence.

The Court did not find evidentiary support for the finding that no other field tests were performed as a result of potential dangers from traffic.

The Court determined that the findings supported the trial court’s conclusion that the trooper had probable cause to arrest the defendant. Specifically, the Court pointed to the strong odor of alcohol, the positive alcosensor tests, and the HGN test revealing all six indications of impairment.

Although the trial court erred by admitting evidence of the numerical result of an Alco-sensor test during a pretrial hearing on the defendant’s motion to suppress, a new trial was not warranted. The numerical results were admitted only in the pre-trial hearing, not at trial and even without the numerical result, the State presented sufficient evidence to defeat the suppression motion.

The trial court did not err by denying the defendant’s motion to suppress the results of the chemical analysis performed on the defendant’s breath with the Intoxilyzer 5000 on grounds that preventative maintenance was not performed on the machine at least every 4 months as required by the Department of Health and Human Services. Preventive maintenance was performed on July 14, 2006 and December 5, 2006. The court concluded that although the defendant’s argument might have had merit if the chemical analysis had occurred after November 14, 2006 (4 months after the July maintenance) and before December 5, 2006, it failed because the analysis at issue was done only 23 days after the December maintenance.

In this gang-related case involving charges of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, attempted first-degree murder, and discharging a weapon into an occupied dwelling, although the trial court erred by failing to instruct the jury on their limited use of hearsay statements for corroboration and impeachment only, the error was harmless. Here, at least twice during trial the defendant specifically requested Pattern Jury Instruction 105.20, which limits the jury’s permissible reliance on hearsay statements to corroboration and impeachment purposes only. During the charge conference, the parties and the trial court further agreed that the jury would be charged with this instruction. However, the trial court omitted the instruction from the final charge. By omitting this instruction from the final charge, the trial court erred. However, the defendant failed to demonstrate that there is a reasonable possibility that had the error not been committed a different result would have been reached. The trial court reiterated the instruction, or a close variation of it, six times to the jury throughout the trial. Although the trial court failed to provide the instruction during the final jury charge, the jury was sufficiently advised of the instruction during the trial. Moreover, even if the instructions had not been given during the trial, the defendant cannot show prejudice in light of the overwhelming evidence of guilt.

Although the trial court violated G.S. 15A-1221(b) by admitting an arrest warrant into evidence, the error did not constitute plain error.

The Rules of Evidence do not apply to DMV license revocation hearings pursuant to G.S. 20-16.2. 

The rules of evidence apply to proceedings related to post-conviction motions for DNA testing under G.S. 15A-269.

State v. Young, 368 N.C. 188 (Aug. 21, 2015)

In this murder case the court held that the court of appeals erred by concluding that the trial court committed reversible error in allowing into evidence certain materials from civil actions. The relevant materials included a default judgment and complaint in a wrongful death suit stating that the defendant killed the victim and a child custody complaint that included statements that the defendant had killed his wife. The court of appeals had held that admission of this evidence violated G.S. 1-149 (“[n]o pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it”) and Rule 403. The court held that the defendant did not preserve his challenge to the admission of the child custody complaint on any grounds. It further held that the defendant failed to preserve his G.S. 1-149 objection as to the wrongful death evidence and that his Rule 403 objection as to this evidence lacked merit. As to the G.S. 1-149 issue, the court found it dispositive that the defendant failed to object at trial to the admission of the challenged evidence on these grounds and concluded that the court of appeals erred by finding that the statutory language was mandatory and allowed for review absent an objection.

The trial court did not abuse its discretion by concluding that an audio recording of a booking-area phone call was properly authenticated under Rule 901 as having been made by the defendant. The State’s authentication evidence showed: (1) the call was made to the same phone number as later calls made using the defendant’s jail positive identification number; (2) the voice of the caller was similar to later calls placed from the jail using the defendant’s jail positive identification number; (3) a witness familiar with the defendant’s voice identified the defendant as the caller; (4) the caller identified himself as “Little Renny” and the defendant’s name is Renny Mobley; and (5) the caller discussed circumstances similar to those involved with the defendant’s arrest. 

State v. Snead, 368 N.C. 811 (Apr. 15, 2016)

Reversing a unanimous decision of the Court of Appeals, 239 N.C. App. 439 (2015), the court held, in this larceny case, that the State properly authenticated a surveillance video showing the defendant stealing shirts from a Belk department store. At trial Toby Steckler, a regional loss prevention manager for the store, was called by the State to authenticate the surveillance video. As to his testimony, the court noted:

Steckler established that the recording process was reliable by testifying that he was familiar with how Belk’s video surveillance system worked, that the recording equipment was “industry standard,” that the equipment was “in working order” on [the date in question], and that the videos produced by the surveillance system contain safeguards to prevent tampering. Moreover, Steckler established that the video introduced at trial was the same video produced by the recording process by stating that the State’s exhibit at trial contained exactly the same video that he saw on the digital video recorder. Because defendant made no argument that the video had been altered, the State was not required to offer further evidence of chain of custody. Steckler’s testimony, therefore, satisfied Rule 901, and the trial court did not err in admitting the video into evidence.

The court also held that the defendant failed to preserve for appellate review whether Steckler’s lay opinion testimony based on the video was admissible. 

Although admission of video evidence was error, it was not prejudicial error. An officer testified that the day after the incident in question he asked the manager of a convenience store for a copy of the surveillance video made by store cameras. The manager allowed the officer to review the video but was unable to copy it. The officer used the video camera function on his cell phone to make a copy of the surveillance footage, which was copied onto a computer. At trial, he testified that the copy of the cell phone video accurately showed the contents of the video that he had seen at the store. The store clerk also reviewed the video but was not asked any questions about the creation of the original video or whether it accurately depicted the events that he had observed on the day in question. The transcript reveals no testimony concerning the type of recording equipment used to make the video, its condition on the day in question, or its general reliability. No witness was asked whether the video accurately depicted events that he had observed, and no testimony was offered on the subject. As such, the State failed to offer a proper foundation for introduction of the video as either illustrative or substantive evidence. The court went on to find that introduction of the video was not prejudicial.

The trial court did not commit plain error by admitting store surveillance video in a safecracking case. Citing State v. Snead, 368 N.C. 811 (2016), the court held that the surveillance video was properly authenticated. The store manager testified that the surveillance system included 16 night vision cameras; he knew the cameras were working properly on the date in question because the time and date stamps were accurate; and a security company managed the system and routinely checked the network to make sure the cameras remained online. The store manager also testified that the video being offered into evidence at trial was the same video he viewed immediately following the incident and that it had not been edited or altered in any way. 

(1) The trial court properly admitted a videotape of a detective’s interview with the defendant for illustrative purposes. The detective testified that the video was a fair and accurate description of the interview. This met the requirements for authentication of a video used for illustrative purposes. (2) Citing the North Carolina Supreme Court’s recent decision in State v. Snead, the court held that a store surveillance video of a theft was properly authenticated. The State’s witness testified that the surveillance video system was functioning properly at the time and that the video introduced at trial was unedited.

State v. Cook, 218 N.C. App. 245 (Jan. 17, 2012)

For reasons discussed in the opinion, the court held that footage from a surveillance video was properly authenticated.

The trial court did not err by admitting a videotape of a controlled buy as substantive evidence where the State laid a proper foundation for the videotape. The court rejected the defendant’s argument that the State was required to proffer a witness to testify that the tape accurately depicted the events in question.

The trial court erred by allowing the State to introduce three photographs, which were part of a surveillance video, when the photographs were not properly authenticated. However, given the evidence of guilt, no plain error occurred.

In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The photographs were properly authenticated where the officer who took them testified about the procedure used and that they fairly and accurately depicted the defendant’s tattoo as it appeared when he was in custody.

In this drug case where the defendant denied being the perpetrator and suggested that the drugs were sold by one of his sons, the State failed to properly authenticate two photographs used in photographic lineups as being of the defendant’s sons. An informant involved in the drug buy testified that he had purchased drugs from the people depicted in the photos on previous occasions but not on the occasion in question. The State then offered an officer to establish that the photos depicted the defendant’s sons. However, the officer testified that he wasn’t sure that the photos depicted the defendant’s sons. Given this lack of authentication, the court also held that the photos were irrelevant and should not have been admitted.

The trial court erred by allowing the State to introduce three photographs, which were part of a surveillance video, when the photographs were not properly authenticated. However, given the evidence of guilt, no plain error occurred.

In this violation of a DVPO case, screenshots of Facebook posts were authenticated by sufficient circumstantial evidence showing that the screenshots in fact depicted Facebook posts and that the comments in the post were made by the defendant such that the screenshots were properly admitted into evidence.  Shortly before the defendant was scheduled to be released from prison, the victim renewed a DVPO prohibiting him from contacting her.  Soon after his release, the victim began receiving phone calls from a blocked number and Facebook comments from her daughter’s account that the victim believed were written by the defendant rather than her daughter.  These communications were the basis for the DVPO violation at issue. 

The court first reviewed precedent to determine that the question of whether evidence has been sufficiently authenticated is subject to de novo review on appeal.  The court then held that when screenshots of social media comments are used as they were here – to show both the fact of the communication and its purported author, the screenshots must be authenticated both as photographs and written statements.  The victim’s testimony that she took the screenshots of her Facebook account was sufficient to authenticate the images as photographs.  The victim’s testimony of receiving letters from the defendant while he was in prison and distinctive phone calls from a blocked number after his release, together with evidence of the defendant’s access to the daughter’s Facebook account was sufficient to authenticate the comments as written statements potentially made by the defendant such that admission of the screenshots into evidence was proper.

Judges Bryant and Berger concurred in result only, without separate opinions.

State v. Ford, 245 N.C. App. 510 (Feb. 16, 2016)

In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting as evidence screenshots from the defendant’s webpage over the defendant’s claim that the evidence was not properly authenticated. The State presented substantial evidence that the website was actually maintained by the defendant. Specifically, a detective found the MySpace page in question with the name “Flexugod/7.” The page contained photos of the defendant and of the dog allegedly involved in the incident. Additionally, the detective found a certificate awarded to the defendant on which the defendant is referred to as “Flex.” He also found a link to a YouTube video depicting the defendant’s dog. This evidence was sufficient to support a prima facie showing that the MySpace page was the defendant’s webpage. It noted: “While tracking the webpage directly to defendant through an appropriate electronic footprint or link would provide some technological evidence, such evidence is not required in a case such as this, where strong circumstantial evidence exists that this webpage and its unique content belong to defendant.”

The State adequately authenticated photographs of text messages sent between accomplices to an attempted robbery. A detective testified that he took pictures of text messages on an accomplice’s cell phone while searching the phone incident to arrest. The detective identified the photographs in the exhibit as screen shots of the cell phone and testified that they were in substantially the same condition as when he obtained them. Another accomplice, with whom the first accomplice was communicating in the text messages, also testified to the authenticity of the exhibit. The court rejected the defendant’s argument that to authenticate the text messages, the State had to call employees of the cell phone company.

In a felony larceny after a breaking or entering case, the trial court did not abuse its discretion by determining that a text message sent from the defendant’s phone was properly authenticated where substantial circumstantial evidence tended to show that the defendant sent the text message. The defendant’s car was seen driving up and down the victim’s street on the day of the crime in a manner such that an eyewitness found the car suspicious and called the police; the eyewitness provided a license plate number and a description of the car that matched the defendant’s car, and she testified that the driver appeared to be using a cell phone; the morning after the crime, the car was found parked at the defendant’s home with some of the stolen property in the trunk; the phone was found on the defendant’s person the following morning; around the time of the crime, multiple calls were made from and received by the defendant’s phone; the text message itself referenced a stolen item; and by referencing cell towers used to transmit the calls, expert witnesses established the time of the calls placed, the process employed, and a path of transit tracking the phone from the area of the defendant’s home to the area of the victim’s home and back.

Cell phone records introduced by the State were properly authenticated. At trial the State called Ryan Harger, a custodian of records for Sprint/Nextel, a telecommunications company that transmitted the electronically recorded cell phone records to the police department. The defendant argued that the cell phone records were not properly authenticated because Harger did not himself provide the records to the police and that he could not know for certain if a particular document was, in fact, from Sprint/Nextel. The court noted that Harger, a custodian of records for Sprint/Nextel for 10 years, testified that: he is familiar with Sprint/Nextel records; he has testified in other cases; Sprint/Nextel transmitted records to the police and that he believed that was done by e-mail; the records were kept in the normal course of business; the documents he saw were the same as those normally sent to law enforcement; and the relevant exhibit included a response letter from Sprint, a screen print of Sprint’s database, a directory of cell sites, and call detail records. Although Harger did not send the documents to the police, he testified that he believed them to be accurate and that he was familiar with each type of document. This was sufficient to show that the records were, as the State claimed, records from Sprint/Nextel, and any question as to the accuracy or reliability of such records is a jury question. The court went on to conclude that even if Harger’s testimony did not authenticate the records, any error was not prejudicial, because an officer sufficiently authenticated another exhibit, a map created by the officer based on the same phone records. The officer testified that he received the records from Sprint/Nextel pursuant to a court order and that they were the same records that Harger testified to. He then testified as to how he mapped out cell phone records to produce the exhibit.

An affidavit of indigency sworn to by the defendant before a court clerk was a self-authenticating document under Evidence Rule 902 and thus need not be authenticated under Rule 901.

In this felony breaking or entering and felony larceny case, a store Notice of Prohibited Entry was properly authenticated. After detaining the defendant for larceny, a Belk loss prevention associate entered the defendant’s name in a store database. The associate found an entry for the defendant at Belk Store #329, along with a photograph that resembled the defendant and an address and date of birth that matched those listed on his driver’s license. The database indicated that, as of 14 November 2015, the defendant had been banned from Belk stores for a period of 50 years pursuant to a Notice of Prohibited Entry following an encounter at store #329. The Notice included the defendant’s signature. The defendant was charged with felony breaking or entering and felony larceny. At trial the trial court admitted the Notice as a business record. On appeal, the defendant argued that the Notice was not properly authenticated. The court disagreed, concluding that business records need not be authenticated by the person who made them. Here, the State presented evidence that the Notice was completed and maintained by Belk in the regular course of business. The loss prevention associate testified that she was familiar with the store’s procedures for issuing Notices and with the computer system that maintains this information. She also established her familiarity with the Notice and that such forms were executed in the regular course of business. The court found it of “no legal moment” that the loss prevention officer did not herself make or execute the Notice in question, given her familiarity with the system under which it was made.

In this statutory rape case, the victim’s Honduran birth certificate was properly authenticated. To establish the victim’s age, the State introduced a copy of the victim’s Honduran birth certificate, obtained from her school file. That document showed her date of birth to be September 15, 2003 and established that she was 12 years old when the incidents occurred. The defendant’s objection that the birth certificate was not properly authenticated was overruled and the defendant was convicted. The defendant appealed. The document was properly authenticated. Here, although the birth certificate was not an original, nothing in the record indicates that it was forged or otherwise inauthentic. The document appears to bear the signature and seal of the Honduran Municipal Civil Registrar, and a witness testified that school personnel would not have made a copy of it unless the original had been produced. Additionally, a detective testified that the incident report had identified the victim as having a birthday of September 15, 2003. The combination of these circumstances sufficiently establish the requisite prima facie showing to allow the trial court to reasonably determine that the document was an authentic copy of the victim’s birth certificate.

The trial court properly allowed the jury to consider whether a signature on a pawn shop buy ticket matched the defendant’s signature of his affidavit of indigency. The court compared the signatures and found that there was enough similarity between them for the documents to have been submitted to the jury for comparison.

A rectal swab taken from the victim was properly authenticated. An officer processed evidence at the crime scene, was present for the victim’s autopsy, and obtained evidence from the doctor who performed the autopsy, including the rectal swabs, on 24 June 2004. The swabs were then placed in the custody of the Sheriff’s Office. They were submitted to the SBI for analysis and later returned to the Sheriff’s Office where they were kept until the time of trial. The court rejected the defendant’s argument that the chain of custody was insufficient because the swabs were taken on 19 June 2004, but were not picked up by the officer until 24 June 2004, concluding that there was no reason to believe that the evidence was altered and the possibility that it was tampered with is remote.

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.

Using a confidential informant to conduct a controlled buy, law enforcement officers purchased a small crack cocaine rock from the defendant. The rock field-tested positive for the presence of cocaine, and it was subsequently tested at the SBI and confirmed to be cocaine base. The defendant was indicted for sale and delivery of cocaine and possession with intent to sell and deliver cocaine, as well as having attained habitual felon status, and the case went to trial approximately two years later. At trial, the state offered the “rock” purchased from the defendant as State’s Exhibit #6, but the item inside the evidence bag was now a powder. The narcotics detective in the case testified that the substance had been “smashed” but it was otherwise “substantially the same” item he originally recovered from the informant and submitted to the SBI. The SBI analyst likewise testified that the substance in Exhibit #6 was a “rock” at the time she tested it and determined it was crack cocaine, and her lab results and report were admitted as Exhibit #7.

Following his conviction, the defendant argued on appeal that the trial court erred by admitting Exhibit #6 because it was not readily identifiable and had been altered, and therefore it could not be authenticated by the state’s witnesses. The appellate court disagreed for several reasons. First, citing case precedent, physical changes to drugs such as smashing or pressing them together “do not amount to material changes raising admissibility concerns.” Second, even if this were a material change, the state presented an adequate chain of custody to show that the substance contained in Exhibit #6 was the same one purchased from the defendant and ultimately tested by the SBI, and the witnesses’ testimony established that whatever caused the rock to be “smashed” must have occurred sometime after it was tested. Third, the defendant failed to demonstrate that any error in admitting Exhibit #6 would be prejudicial, since there was no objection to the introduction of Exhibit #7 or the analyst’s testimony about the testing she performed on that substance, meaning that the same information was before the jury through other evidence. As a result, there was no reasonable possibility that a different verdict would have been reached even if Exhibit #6 had been excluded.

After violating his probation, the defendant was indicted on charges of interfering with an electronic monitoring device and attaining the status of a habitual felon. The habitual felon indictment charged defendant with attaining habitual felon status based on three prior felony convictions in McDowell County: (1) a June 4, 2001 conviction for felonious breaking and entering; (2) a February 18, 2010 conviction for felonious breaking and entering; and (3) a July 22, 2014 conviction for safecracking. At trial, the State admitted into evidence certified copies of the judgments for the latter two convictions to prove their existence.

Although the State could not obtain the original judgment associated with the June 4, 2001 conviction, the State introduced as an exhibit a computer printout from the Automated Criminal/Infraction System (ACIS). The Clerk of Court for McDowell County testified that ACIS is a statewide computer system relied on by courts and law enforcement agencies for accessing information regarding a defendant’s criminal judgments, offense dates, and conviction dates, manually entered into the database by an employee in the Clerk of Court’s office. The ACIS printout offered by the State showed that the defendant had been convicted of felonious breaking and entering on June 4, 2001, and the Clerk testified that the printout was a “certified true copy of the ACIS system.” The trial court admitted the printout into evidence over the defendant’s objection, and the jury found that the defendant had attained the status of a habitual felon.

On appeal, the defendant unsuccessfully argues that the trial court improperly allowed the ACIS printout because G.S. 14-7.4 contained the exclusive methods for proving prior convictions in a proceeding to determine habitual felon status. The Court of Appeals concluded that the statute was permissive and did not exclude methods of proof not specifically delineated in the Habitual Felons Act. The Supreme Court affirmed. The Court relied on the presence of the word “may” in the statute, as well as its prior interpretation of the Fair Sentencing Act, which contained similar language.

The dissenting Court of Appeals judge concluded that the introduction of the printout violated the best evidence rule because the printout was introduced as evidence of the defendant’s prior convictions and was not the original judgment. The majority rejected this argument, noting that the best evidence rule applies only when the contents of a document are at issue. The Court reasoned that here, the issue was not the contents of the conviction but rather the existence of the conviction. However, in a concurring opinion, Chief Justice Beasley noted that the nature of the Habitual Felons Act requires that the State prove that the defendant did, in fact, commit three prior felony offenses, and to do so requires the court to consider the contents of the record to be introduced for the purpose of confirming “that said person has been convicted of former felony offenses.” While the Chief concluded that the best evidence rule did apply to the introduction of the printout, the Chief noted that the State complied with the rule through the printout coupled with the Clerk’s testimony.

In this habitual larceny case where the defendant was sentenced as a habitual felon, the use of an ACIS printout to prove one of the defendant’s prior convictions during the habitual felon phase of trial was competent evidence that did not violate the best evidence rule.  Citing State v. Waycaster, ___ N.C. App. ___, 818 S.E.2d 189 (2018), the court explained that G.S. 14-7.4 permits an original or certified copy of the court record of a prior conviction to be admitted into evidence to prove the prior conviction but does not mandate that manner of proof.  The same case held that a certified copy of an ACIS printout is sufficient evidence of a prior conviction under the habitual felon statute.  

Where an audio recording of a prior juvenile proceeding was available to all parties and the content of the recording was not in question, Rule 1002 was not violated by the admission of a written transcript of the proceeding.

No Bruton issue occurred when the trial court admitted a co-defendant’s admission to police that “I only hit that man twice.” A co-defendant’s statement which does not mention or refer to the defendant does not implicate the Confrontation Clause or Bruton. Here, the co-defendant’s statement did not mention the defendant and thus its admission did not implicate his constitutional rights. 

The trial court did not abuse its discretion in determining that a four-year-old child sexual assault victim was competent to testify. The child was 2½ years old at the time the incident occurred. At trial, the child was non-responsive to some questions and gave contradictory responses to others.

The trial court did not abuse its discretion by finding an elderly victim to be competent. The witness correctly testified to his full name and birth date and where he lived. He was able to correctly identify family members, the defendant, and his own signature. He understood that he was at the courthouse, that a trial was occurring, and his duty to tell the truth. His testimony also demonstrated his ability to tell the truth from a lie. Noting that some of his answers were ambiguous and vague and that he was unable to answer some questions, the court concluded that it would not be unusual for an elderly person to have some difficulty in responding coherently to all of the voir dire questions.

At the defendant’s trial for drug charges, a witness who purchased drugs from the defendant testified for the State. After the witness testified, the trial court expressed concern that the witness appeared to be impaired by drugs or alcohol. The court ordered the witness’s probation officer to drug-test the witness. The test was positive for amphetamines and methamphetamine. The probation officer testified before the jury about the testing of the witness and the positive results.

The defendant moved for a mistrial and to disqualify the witness under Rule of Evidence 601(b) and strike his testimony. The trial court denied both motions. The defendant was convicted of several drug charges and appealed.

The Court of Appeals found no error.

(1) Impairment by drugs does not render a witness incompetent if the witness is able to express himself well enough to be understood and is able to understand the obligation to testify truthfully. The Court of Appeals determined that the defendant failed to demonstrate that the witness did not meet this standard. The witness’s testimony was corroborated by other evidence, which, while not directly showing his competency, indicated that he was able to recall dates and events. The trial judge, who was in the best position to assess the competency of the witness, determined that he could understand the witness’s testimony and that the witness was generally understandable by the jurors. Given the trial court’s ample opportunity to observe the witness, it was not required to conduct a voir dire to assess the witness’s competency. Finally, the Court of Appeals noted that evidence of the witness’s impairment was presented to the jury, and jurors were free to determine whether they found the witness’s testimony credible. The Court of Appeals thus concluded that the trial judge did not abuse its discretion in denying the defendant’s motion to exclude and strike the witness’s testimony.

(2) A mistrial is a drastic remedy warranted only for serious improprieties that make it impossible to obtain a fair and impartial verdict. The Court of Appeals rejected the defendant’s argument that the giving of testimony by a key witness for the State who was impaired met this standard. The witness was competent to testify despite his impairment and the jury was informed of his impairment. Thus, the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. 

After the allegations in this case came to light, the defendant left the area and could not be located. The lead detective sought assistance from the U.S. Marshals, and the defendant was eventually located in and extradited from Puerto Rico. Defendant argued that the trial court erred by allowing the detective to testify about the extradition since he had no direct personal knowledge about what transpired, and argued that the court erred a second time by instructing the jury on flight. The defendant did not raise either objection at trial, so the issues were restricted to plain error review. The appellate court held that it was not plain error to allow testimony about extradition since the detective had personal knowledge based on his own attempts to locate the defendant, his act of soliciting help from the Marshals, and his oversight of the whole case as lead detective. Even if it was error, it was not prejudicial since the jury also heard testimony that the defendant escaped from jail pending trial and was recaptured hiding in a nearby home. The jury instruction on flight was likewise proper, since defendant altered his usual routine after the accusations by leaving and staying away until he was located and extradited, reasonably supporting the state’s position that he fled to avoid apprehension.

The defendant was convicted by a jury of seven sex crimes against a five-year-old victim, including statutory rape of a child by an adult, statutory sexual offense with a child by an adult, and indecent liberties with a child. At trial, the State presented a nurse practitioner who testified about the medical evaluation given to the victim. The nurse practitioner testified without objection that the victim gave “clear and concise statement[s] regarding child sexual abuse,” and that her own testimony was “based off a complete medical evaluation, not only [the victim’s] statements.” (1) On appeal, the defendant argued that the trial court committed plain error by impermissibly allowing the nurse practitioner to testify to the truth of the victim’s statements to the extent that she offered a conclusive diagnosis without physical evidence. The court rejected the argument, noting first that the witness never actually offered a conclusive diagnosis. To the contrary, she gave testimony relevant to helping the jury understand that a lack of physical evidence in a medical exam did not preclude sexual abuse. Moreover, any error related to the nurse practitioner’s detailed testimony about sexual abuse, including penetration, was deliberately elicited by the defendant on cross-examination. Regardless, the defendant did not demonstrate that the jury would have reached a different result in light of all the other unchallenged evidence. (2) The defendant also argued that the trial judge erred by excluding the testimony from two defense witnesses who allegedly asked the victim’s mother to stop talking about sex in front of children. The court of appeals disagreed, concluding that the proffered testimony—that the victim may have learned explicit language about sexual abuse from her mother and not from her personal experience with abuse—was too speculative and not within the witnesses’ personal knowledge. (3) Finally, the trial court did not err by failing to give a limiting instruction indicating that the nurse practitioner’s statistical testimony could be considered only for corroborative purposes. Reviewing the argument for plain error, the court concluded that the nurse practitioner’s testimony was proper, and that any error would not be prejudicial in any event in light of the collective evidence of guilt.

A hotel owner had personal knowledge and could testify to the responsibilities of the defendant, the hotel’s general manger, with respect to removing deposits from the hotel safe and other related matters.

In a murder and assault case involving a home invasion and two victims, the trial court did not err by admitting testimony from the surviving victim that touched on the deceased victim’s state of mind when he initially opened the door to the intruder. The surviving victim “merely gave his understanding and interpretation of what went on at the door based on his sitting in the next room and being able to hear the whole situation.” As such, the surviving victim properly testified regarding his own beliefs of the sequence of events that took place at the door.

In an armed robbery case, a store clerk’s testimony that he thought the defendant had a gun was not inadmissible speculation or conjecture. Based on his observations, the clerk believed that the defendant had a gun because the defendant was hiding his arm under his jacket. The clerk’s perception was rationally based on his firsthand observation of the defendant and was more than mere speculation or conjecture.

In an armed robbery prosecution, evidence of a break-in occurring hours after the incident in question was properly admitted under the “‘course of conduct’” or ‘complete story’ exception.” The evidence was necessary for the jury to understand how the defendant was identified as the perpetrator and how items stolen from the robbery victim and purchased with her credit card were recovered. The break-in evidence “was necessary for the jury to understand the complete story and timeline of the events that took place on the night in question, and therefore was properly admitted under the ‘course of conduct’ exception.” A footnote to the court’s opinion suggests that this basis for admission was separate from and independent of admissibility under Rule 404(b).

The defendant was convicted of first-degree murder in Person County. The victim was a neighbor with whom the defendant had long-running disputes. According to the defendant, he shot the neighbor in self-defense. The victim was shot 11 or 12 times, with the vast majority of the bullets having entered the victim from the back and side of his body. The State presented evidence from an experiment performed by a forensic firearms examiner attempting to replicate the production of the layout of bullet shell casings found at the scene in order to demonstrate the shooter’s location and to rebut the defendant’s self-defense claim. The expert only reported the results of the experiment and did not specifically opine about the shooter’s location. 

(1) Relying on cases pre-dating the adoption of the Rules of Evidence, the defendant argued this evidence was improperly admitted in violation of the “substantial similarity” test. These older cases imposed stricter requirements for the admission of “experimental evidence” – that is, evidence “about an experiment that is used to prove something about the actual events that occurred in the case.” Slip op. at 8. The defendant argued that these rules controlled, rather than Rule of Evidence 702. Under those cases, the standard of review on appeal of this issue would have been de novo, rather than the abuse of discretion standard applied to Rule 702 challenges. The defendant did not argue or cite to Rule 702 or to any cases applying the rule since the 2011 amendments adopting the Daubert standard for expert testimony. Rejecting this argument, the court found that later cases, even those pre-dating the 2011 amendment to Rule 702, had in fact adopted an abuse of discretion standard of review for experimental evidence. The court also rejected the notion that the substantial similarity test stood apart from Rule 702. “The notion of ‘substantial similarity’ for experimental evidence is one of the many ‘particular factors articulated in previous cases’ that is now baked into the third prong of Rule 702’s reliability test.” Id. at 10. Thus, pursuant to Rule 702, the standard of review is abuse of discretion. Even if the defendant’s argument that the evidence was erroneously admitted was not forfeited by his failure to argue Rule 702 or abuse of discretion, the trial court did not err in admitting the testimony. In the words of the court: “Here, the trial court’s determination that the experiment met the Rule 702 criteria was a reasoned one and not manifestly arbitrary. Thus, we cannot hold that the trial court abused its discretion.” Id. at 12.

(2) The defendant also argued that the trial court erred in qualifying the expert to give an opinion about shell ejection patterns. Voir dire of the expert revealed that he had not received training on ejection patterns of bullet shells, that no certification for this subject exists, and that he had not previously performed this type of experiment. According to the court, the trial court did not abuse its discretion in so qualifying the expert: “’[I]t is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist’ as long as ‘the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’” Id. at 14. Based on his extensive training and experience in the field of firearms, the trial court acted within its discretion and did not err in qualifying the expert.

The conviction was therefore unanimously affirmed with Judges Berger and Arrowood concurring.

In this armed robbery case, the trial court did not err by admitting a videotape showing a detective test firing the air pistol in question. The State was required to establish that the air pistol was a dangerous weapon for purposes of the armed robbery charge. The videotape showed a detective performing an experiment to test the air pistol’s shooting capabilities. Specifically, it showed him firing the air pistol four times into a plywood sheet from various distances. While experimental evidence requires substantial similarity, it does not require precise reproduction of the circumstances in question. Here, the detective use the weapon employed during the robbery and fired it at a target from several close-range positions comparable to the various distances from which the pistol had been pointed at the victim. The detective noted the possible dissimilarity between the amount of gas present in the air cartridge at the time of the robbery and the amount of gas contained within the new cartridge used for the experiment, acknowledging the effect the greater air pressure would have on the force of a projectile and its impact on a target.

The State laid a proper foundation to establish the relevancy of a demonstration by an expert witness who used a doll to illustrate how shaken baby syndrome occurs and the amount of force necessary to cause the victim’s injuries, where a demonstration of how the injuries were inflicted was relevant to defendant’s intent to harm the victim. The demonstration did not have to be substantially similar to the manner in which the crime occurred because that standard applies to experiments, not demonstrations. Finally the demonstration was not unduly prejudicial and would not cause the jury decide the case on emotion.

Use of a mannequin’s head and a newly-purchased couch to refute the defendant’s version of the events on the day she shot her husband was properly allowed as a demonstration. Because the evidence did not constitute an experiment, the State did not have to show that the circumstances were substantially similar to those at the time of the actual shooting. As a demonstration, the evidence was admissible because it was relevant (it was probative of premeditation) and not unfairly prejudicial.

In a bond forfeiture proceeding, the trial court did not err by taking judicial notice of the file as evidence that the defendant was served with the order of arrest. A trial court may take judicial notice of earlier proceedings in the same case, including matters in the file not offered into evidence. Here, the trial court took judicial notice of a fact beyond reasonable controversy. It is undisputed that the defendant was served with the order for arrest before the deadline for filing a notice to set aside the bond forfeiture expired and the trial court attached the order for arrest as an exhibit to its order.

In this case dealing with when a sentence began to run on a defendant’s North Carolina charges, the court took judicial notice of certain documents relating to the defendant’s federal case. Those documents included: an indictment; an arrest warrant; an order of detention; a waiver of detention hearing; a superseding indictment; a plea agreement; and a motion and order continuing sentencing.

In this probation revocation case, the Court of Appeals took judicial notice of the date of the defendant’s release from incarceration. This fact was obtained from an offender search on the Department of Public Safety website.

In this drug trafficking case where an SBI agent testified as an expert for the State and identified the substance in question as oxycodone, the court declined the defendant’s request to take judicial notice of Version 4 and 7 of SBI Laboratory testing protocols. Among other things, the defendant did not present the protocols at trial, the State had no opportunity to test their veracity, and the defendant presented no information indicating that the protocols applied at the time of testing.

For purposes of determining whether there was sufficient evidence that a burglary occurred at nighttime, the court took judicial notice of the time of civil twilight and the driving distance between the victim’s residence and an apartment where the defendant appeared at 6 am after having been out all night.

The court took judicial notice of the clerk of superior court’s records showing that the defendant paid $1,758.50, the total amount due for court costs and fines pursuant to a criminal judgment. 

The trial court did not err by refusing to take judicial notice of provisions in the Federal Register when those provisions were irrelevant to the charged offense.

In a burglary case, the trial court properly took judicial notice of the time of sunset and of civil sunset as established by the Naval Observatory and instructed the jury that it “may, but is not required to, accept as conclusive any fact judicially noticed.”

In this drug case, the trial court did not err by admitting a forensic laboratory report after the defendant stipulated to its admission. The defendant argued that the trial court erred by failing to engage in a colloquy with her to ensure that she personally waived her sixth amendment right to confront the analyst whose testimony otherwise would be necessary to admit the report. State v. Perez, __ N.C. App. __, __, 817 S.E.2d 612, 615 (2018), establishes that a waiver of Confrontation Clause rights does not require the type of colloquy required to waive the right to counsel or to enter a guilty plea. In that case, the defendant argued that the trial court erred by allowing him to stipulate to the admission of forensic laboratory reports without engaging in a colloquy to ensure that he understood the consequences of that decision. The court rejected that argument, declining the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights through a stipulation. In Perez, the court noted that if the defendant did not understand the implications of the stipulation, his recourse is a motion for appropriate relief asserting ineffective assistance of counsel. The court rejected the defendant’s attempt to distinguish Perez on grounds that it involved a written stipulation personally signed by the defendant, while this case involves defense counsel’s oral stipulation made in the defendant’s presence. The court found this a “distinction without a difference.” Here, the stipulation did not amount to an admission of guilt and thus was not the equivalent of a guilty plea. The court continued:

[W]e . . . decline to impose on the trial courts a categorical obligation “to personally address a defendant” whose counsel stipulates to admission of a forensic report and corresponding waiver of Confrontation Clause rights. That advice is part of the role of the defendant’s counsel. The trial court’s obligation to engage in a separate, on-the-record colloquy is triggered only when the stipulation “has the same practical effect as a guilty plea.”

State v. Huey, 204 N.C. App. 513 (June 15, 2010)

The defendant moved to suppress on grounds that an officer stopped him without reasonable suspicion. At a hearing on the suppression motion, the State stipulated that the officer knew, at the time of the stop, that the robbery suspects the officer was looking for were approximately 18 years old. The defendant was 51 years old. However, at the hearing, the officer gave testimony contradicting this stipulation and indicating that he did not learn of the suspects’ age until after he had arrested the defendant. The court concluded that the stipulation was binding on the State, even though the defendant made no objection when the officer testified.

The Court reversed the Ninth Circuit, which had held that the defendant, who was convicted of rape and other crimes, was entitled to federal habeas relief because the Nevada Supreme Court unreasonably applied clearly established Supreme Court precedent regarding a criminal defendant’s constitutional right to present a defense. At his trial, the defendant unsuccessfully tried to introduce extrinsic evidence that the victim previously reported that the defendant had assaulted her but that the police had been unable to substantiate those allegations. The state supreme court held that this evidence was properly excluded. The Ninth Circuit granted habeas relief. The Court reversed, noting in part that it “has never held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes” (emphasis in original).

In this case involving convictions of felony murder, discharging a firearm into an occupied vehicle, and possession of marijuana with intent to sell, the trial court did not err by admitting certain photographs at trial. Two of the photographs (“Gun Photos”) were of firearms; the photos were found on the defendant’s cell phone. A third photograph (“Mustang Photo”) also was recovered from the defendant’s phone; it showed the defendant and another man leaning against the hood of a Silver Mustang with a black racing stripe on the street where the victim was shot. Both men were displaying the hand sign for the number “4” with their left hands, while the man on the right displayed a closed right hand with his middle finger extended.

     The defendant argued that the photos should have been excluded under Evidence Rule 404 because possession of a firearm and flashing gang signs show bad character and bad acts. The court found itself unable to conclude that possession of a firearm is indicative of bad acts or character given that gun ownership is protected by the Second Amendment and that the defendant’s own brief fails to identify any basis for such a conclusion. The court failed to see how the hand signals in the Mustang Photo indicate gang affiliation. Nothing in the record suggests that either gesture indicates gang affiliation, and the trial court instructed the prosecutor not to ask any questions about signs or gang affiliation based on the picture. Thus, neither photograph falls within the scope of Rule 404.

     The court rejected the defendant’s argument that the photographs were inadmissible under Rules 401 and 402. The court rejected the defendant’s argument that no evidence connected the gun at issue to the weapon used in the crime. There was an evidentiary connection between the photos, the crime, and the accused; specifically, the photos were obtained from the defendant’s phone, showed that he had access to firearms and to the vehicle in question, and depict him at almost the precise location where the shooting occurred. One of the gun photos shows the defendant in possession of a firearm resembling the one used in the shooting. The evidence was relevant and the trial court did not err by admitting the photographs.

     The trial court did not abuse its discretion in conducting the Rule 403 balancing test with respect to the photographs. The defendant’s brief assumes that the photographs are irrelevant but because the court concluded to the contrary it rejected this argument as well.

In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court erred by excluding evidence that one of the victims was biased. The defendant sought to introduce evidence showing that the victim had a motive to falsely accuse the defendant. The trial court found the evidence irrelevant because it did not fit within one of the exceptions of the Rape Shield Statute. The court concluded that this was error, noting that the case was “indistinguishable” “in any meaningful way” from State v. Martin, __ N.C. App. __, 774 S.E.2d 330 (2015) (trial court erred by concluding that evidence was per se it admissible because it did not fall within one of the Rape Shield Statute’s exceptions).

Although statements made by a law enforcement officer during a videotaped interrogation of the defendant were not relevant, the defendant failed to show prejudice warranting a new trial. The court distinguished cases holding that statements by a law enforcement officer during a videotaped interrogation of the defendant are relevant to provide context for the defendant’s answers, noting, among other things, that in this case the defendant never made any concessions or admissions during the interrogation; instead, he repeatedly denied involvement in the crime. For the same reason, the officer’s statements were not relevant to show his interrogation techniques. Finally, because the defendant never wavered from his denials, the officer’s statements were not relevant to show that the defendant conceded the truth or changed his story.

The trial court did not commit plain error by failing to redact portions of a transcript of the defendant’s interrogation where the challenged statements were relevant. The court rejected the defendant’s argument that the trial court should have redacted statements made by the detective, finding that they provided context for the defendant’s responses. The court also rejected the defendant’s argument that the detective’s statements during the interrogation that the defendant was lying constituted improper opinion testimony on the defendant’s credibility and that of the State’s witnesses. 

Evidence of events leading up to the assault in question was relevant to complete the story of the crime.

State v. Hembree, 368 N.C. 2 (Apr. 10, 2015)

In this capital murder case in which the State introduced 404(b) evidence regarding a murder of victim Saldana to show common scheme or plan, the trial court erred by allowing Saldana’s sister to testify about Saldana’s good character. Evidence regarding Saldana’s character was irrelevant to the charged crime. For this reason the trial court also abused its discretion by admitting this evidence over the defendant’s Rule 403 objection.

In this stalking case, the trial court did not abuse its discretion by admitting into evidence Domestic Violence Protective Orders (DVPOs) obtained by the victim against the defendant. The defendant asserted that the findings of fact in the DVPOs unfairly prejudiced him and confused the jury. The court found that the DVPOs were relevant to show the defendant’s course of conduct as well as his motive to commit the current offense. It noted that after reviewing the DVPOs, the trial court redacted those portions it found to be unfairly prejudicial to defendant, and only the redacted versions were admitted into evidence and published to the jury. The court rejected the defendant’s argument that the jury was highly likely to regard the findings contained in the DVPOs as true and binding simply because they had been handwritten by a district court judge, noting that the trial court redacted the DVPOs and properly instructed the jury regarding the State’s burden of proof as well as the jury’s duty to find the facts.

The defendant’s statement to an arresting officer that if the officer had come later the defendant “would have been gone and you would have never saw me again,” was relevant as an implicit admission of guilt.

In this felony-murder case, although the court was “uncertain of the relevance” of certain photos that the State introduced and questioned the defendant about regarding gang activity, the court found no plain error with respect to their introduction.

In this murder case, the trial court did not err by excluding the defendant’s proffered evidence about the victim’s gang membership. The defendant asserted that the evidence was relevant to self-defense. However, none of the proffered evidence pertained to anything that the defendant actually knew at the time of the incident.

In an attempted murder and assault case, the trial court committed plain error by allowing an officer to testify about gangs and gang-related activity where the evidence was not relevant to guilt or to the aggravating factor that the crimes were gang-related. The State’s theory was that the defendant attacked the victim because he was having a sexual relationship with the defendant’s aunt, not because of gang activity. Thus, gang evidence “was neither relevant to the alleged criminal act nor to the aggravating factor of which the State had given notice of its intent to show.” Additionally, the testimony carried the danger of unfair prejudice that substantially outweighed its non-existent probative value under Rule 403.

(1) The trial court erred by admitting evidence concerning the history of the Bloods gang and the activities of various Bloods subsets. The court noted that “[e]vidence of gang membership is generally inadmissible unless it is relevant to the issue of guilt.” Here, the court was unable to determine how the evidence was relevant and concluded that its effect “was to depict a ‘violent’ gang subculture of which [the defendant] was a part and to impermissibly portray [the defendant] as having acted in accordance with gang-related proclivities.” (2) The trial court did not err by allowing evidence about the hierarchy of gang structure when evidence regarding the defendant’s position in the gang was relevant to the extortion-related charges. The evidence helped explain why the defendant thought that he could induce a third party to confess to a robbery; placed into context his statements that the third party would be murdered if he did not turn himself in; and helped explain the third party’s decision to confess. (3) The trial court did not err by admitting photographs of the defendant’s tattoos and related testimony describing the relationship between some of these tattoos and Bloods symbols where that evidence also explained the defendant’s position in gang hierarchy (see discussion above). (4) Evidence of a telephone call between the defendant and his wife in which he described violent acts he would perform on her if she were a man was not relevant and had little purpose other than to show the defendant’s violent propensities.

The trial court did not err by joining for trial offenses that occurred on different dates. The first set of offenses occurred on May 15, 2015 and involved assaults and sexual assaults on B.A. The second set of charges arose from a breaking or entering that occurred approximately eight months later, when the defendant entered a neighbor’s home looking for B.A. The defendant argued that certain testimony offered by the neighbor was inadmissible character evidence as to the first set of charges but was essential testimony as to the second set of charges, to establish guilt of another. The court however found that the evidence would not have been admissible for that purpose; to be admissible, guilt of another evidence must do more than create mere conjecture of another’s guilt. Here, the evidence was mere speculation that another person committed the crime. Furthermore the testimony was not inconsistent with the defendant’s guilt.

Trial court did not err by excluding defense evidence of guilt of another where the evidence was “sheer conjecture” and was not inconsistent with the defendant’s guilt. 

State v. Miles, 222 N.C. App. 593 (Aug. 21, 2012) aff’d per curiam, 366 N.C. 503 (Apr 12 2013)

In a murder case, the trial court did not err by excluding evidence suggesting that the victim’s wife committed the crime. Distinguishing cases where alternate perpetrators were positively identified and both direct and circumstantial evidence demonstrated the third parties’ opportunity and means to murder, the defendant offered “merely conjecture” as to the wife’s possible actions. Additionally, the State contradicted these “speculations” with testimony by the couple’s daughters that they were with their mother on the night in question.

 

In this Rowan County case, two defendants, Sindy Abbitt and Daniel Albarran, were convicted of first-degree murder on the basis of premeditation and deliberation and felony murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon after they entered a victim’s apartment and shot her over a dispute about money. A witness to the shooting identified the defendants with certainty in photographic lineups, and cellular phone analysis conducted by the FBI showed the defendants were in locations near the victim on the night of the crime. 

(1) The defendants argued on appeal that the trial court erred by excluding their proffered evidence that another person committed the crime. To be relevant, evidence that another person committed a crime must not only implicate another person, but also exculpate the defendant. The Court of Appeals agreed with the trial court’s conclusion that the defendants’ evidence did support an inference that another person (Ashley Phillips) may have been involved in some way, but it was not inconsistent with the direct evidence of either defendant’s involvement in the actual shooting, and was therefore properly excluded.

(2) Defendant Albarran argued on appeal that the photographic array lineup used to identify him was unconstitutionally suggestive because the photograph of him was closer to his face than the other photos in the lineup, drawing attention to him. Albarran had filed a pretrial motion to suppress the lineup, but did not object to the witness’s in-court identification during trial. Reviewing the issue for plain error, the Court of Appeals concluded that in light of the unobjected-to in-court identification, any alleged error in the photo lineup would not have impacted the jury’s verdict. The defendant’s argument was therefore overruled.

(3) Albarran argued that the trial court erred by overruling his objection to the prosecutor’s statements during closing asking why the defendant Abbitt—who had filed a pretrial notice to assert an alibi defense—did not call certain witnesses to corroborate her whereabouts on the night of the crime. Albarran, who did not give notice of an alibi defense, claimed that the comment was an improper comment on his failure to present evidence. The Court of Appeals disagreed, concluding that the prosecutor’s comment on Abbitt’s failure to produce exculpatory evidence was not impermissible as applied to her and therefore were not improper. 

(4) Albarran argued that the trial court erred by sustaining the State’s objections to defense counsel’s statements during closing about Albarran’s tattoos. Defense counsel reminded the jury during closing that the witness’s description at the time of the offense made no mention of tattoos, and asked them to note the many tattoos they could see on him now. The Court of Appeals concluded that the trial court did not err in sustaining the objection where the defendant’s appearance at the time of trial—more than two years after the crime—had no bearing on the witness’s identification and description of the defendant on the night of the murder.

(5) Defendant Abbitt argued that her out-of-court statements to an officer that she had not been at the scene of the crime, that she had not seen the victim in years, and that she did not know Albarran were hearsay that was improperly placed into evidence as admissions. The Court of Appeals concluded that the statements were relevant and admissible under Rule 401, and that in any event admission of the statements did not give rise to a reasonable possibility that the jury would have reached a different result without the asserted error. 

(6) Finally, the Court of Appeals rejected defendant Abbitt’s argument that the short form murder indictment was insufficient to confer jurisdiction on the court, noting the Supreme Court of North Carolina’s longstanding and consistent jurisprudence on that issue.

State v. Young, 233 N.C. App. 207 (Apr. 1, 2014) rev’d on other grounds, 368 N.C. 188 (Aug 21 2015)

In this murder case where the defendant was charged with killing his wife, statements by the couple’s child to daycare workers were relevant to the identity of the assailant. The child’s daycare teacher testified that the child asked her for “the mommy doll.” When the teacher gave the child a bucket of dolls, the child picked two dolls, one female with long hair and one with short hair, and hit them together. The teacher testified that she saw the child strike a “mommy doll” against another doll and a dollhouse chair while saying, “[M]ommy has boo-boos all over” and “[M]ommy’s getting a spanking for biting. . . . [M]ommy has boo-boos all over,  mommy has red stuff all over.”

Although the trial court erred by admitting into evidence in this stalking case approximately 28 photographs of firearms, ammunition, and surveillance equipment found throughout the defendant’s home during the execution of a search warrant, the error did not amount to prejudicial error. Photographs of the defendant’s firearms, ammunition, and surveillance equipment - all of which the defendant legally possessed at the time the search warrant was executed - were wholly irrelevant to the issue of whether the defendant committed the offense of stalking. The court thus agreed with the defendant that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice, and that the trial court should have exercised its discretion to exclude this evidence. The court went on to conclude that in light of the overwhelming additional evidence presented at trial, the defendant failed to show that the admission of the photographs amounted to prejudicial error.

The court rejected the defendant’s argument that two photos from a photo line-up were irrelevant. The victims had identified the photographs during a photo lineup as depicting the perpetrator. The photographs were admitted as substantive evidence and published to the jury at trial without objection. The court rejected the defendant’s argument that the photos were irrelevant where no witness testified that the defendant was in fact the person depicted in them. The court found that the photographs were properly authenticated by testifying witnesses and the jury “was well able” to look at them and to look at the defendant in the courtroom and draw their own conclusions about whether he was the person depicted.

In this case involving second-degree murder arising out of a vehicle collision, the trial court did not err by admitting staged photographs into evidence. An expert in crash investigation and reconstruction explained to the jury, without objection, how the accident occurred. The photographs were relevant as visual aids to this testimony. Furthermore, the trial court gave a limiting instruction explaining that the photographs were only to be used for the purpose of illustrating the witness’s testimony.

In this felony-murder case, although the court was “uncertain of the relevance” of certain photos that the State introduced and questioned the defendant about regarding gang activity, the court found no plain error with respect to their introduction.

In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The photographs were relevant to identity where crime scene surveillance camera footage clearly showed the location and general dimensions of one of the robber’s tattoos, even though the specifics of it were not visible on the footage. 

In this multiple murder case the trial court properly admitted crime scene and autopsy photographs of the victims’ bodies. Forty-two crime scene photos were admitted to illustrate the testimony of the crime scene investigator who processed the scene. The trial court also admitted crime scene diagrams containing seven photographs. Additionally autopsy photos were admitted. The court easily concluded that the photos were relevant. Furthermore, the trial court did not abuse its discretion by finding the photographs admissible over the defendant’s Rule 403 objection.

(1) In a case involving murder and other charges, the trial court properly admitted a picture of the defendant with a silver revolver to illustrate a witness’s testimony that she saw the defendant at her apartment with a silver gun with a black handle. Before being received into evidence, the witness testified that the gun depicted appeared to be the same gun that the defendant had at her apartment. (2) The trial court did not abuse its discretion by concluding that the prejudice caused by the photograph did not substantially outweigh probative value.

The trial court did not commit plain error under Rules 401 or 403 by admitting photographs of the murder victim’s body. The trial court admitted 28 photographs and diagrams of the interior of the home where the victim was found, 12 of which depicted the victim’s body. The trial court also admitted 11 autopsy photographs. An officer used the first set of photos to illustrate the position and condition of the victim’s body and injuries sustained. A forensic pathology expert testified to his observations while performing the autopsy and the photographs illustrated the condition of the body as it was received and during the course of the autopsy. The photographs had probative value and that value, in conjunction with testimony by the officer and the expert was not substantially outweighed by their prejudicial effect.

In this sex case involving a six-year-old victim, the trial court committed prejudicial error by excluding evidence that the defendant found the victim watching a pornographic video. The evidence was relevant to explain an alternate source of the victim’s sexual knowledge, from which she could have fabricated the allegations in question.

In this case involving a gang-related home invasion and murder, the trial court did not commit plain error by admitting rap lyrics found in a notebook in the defendant’s room. The lyrics, which were written before the killing, described someone “kick[ing] in the door” and “spraying” bullets with an AK47 in a manner that resembled how the victims were killed. The court concluded that the defendant failed to show that, absent the alleged error, the jury probably would have returned a different verdict.

State v. Ford, 245 N.C. App. 510 (Feb. 16, 2016)

In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting a rap song recording into evidence. The defendant argued that the song was irrelevant and inadmissible under Rule 403, in that it contained profanity and racial epithets which offended and inflamed the jury’s passions. The song lyrics claimed that the victim was not killed by a dog and that the defendant and the dog were scapegoats for the victim’s death. The song was posted on social media and a witness identified the defendant as the singer. The State offered the song to prove that the webpage in question was the defendant’s page and that the defendant knew his dog was vicious and was proud of that characteristic (other items posted on that page declared the dog a “killa”). The trial court did not err by determining that the evidence was relevant for the purposes offered. Nor did it err in determining that probative value was not substantially outweighed by prejudice.

In this homicide case where the defendant was charged with murdering his wife, the trial court did not err by admitting into evidence lyrics of a song, “Man Killer,” allegedly authored by defendant and containing lyrics about a murder, including “I’ll take the keys to your car”, “I’m just the one to make you bleed” and “I’ll put my hands on your throat and squeeze.” In this case the evidence showed that the victim’s car had been moved, the victim had been stabbed, and that defendant said he strangled the victim. The court concluded: “In light of the similarities between the lyrics and the facts surrounding the charged offense, the lyrics were relevant to establish identity, motive, and intent, and their probative value substantially outweighed their prejudicial effect to defendant.”

In this homicide case, the trial court did not err by admitting evidence of four firearms found in the car when the defendant was arrested following a traffic stop. The State offered the evidence to show the circumstances surrounding defendant’s flight. Defendant argued that the evidence was irrelevant and inadmissible because nothing connected the firearms to the crime. The court disagreed:

Defendant ran away from the scene immediately after he stabbed [the victim]. Three days later, he was apprehended following a traffic stop in South Carolina. Defendant, who was riding as a passenger in another person’s car, possessed a passport bearing a fictitious name. Also found in the car was a piece of paper with directions to a mosque located in Laredo, Texas. Four firearms were found inside the passenger compartment of the car: a loaded assault rifle, two sawed-off shotguns, and a loaded pistol. The circumstances surrounding defendant’s apprehension in South Carolina, the passport, the paper containing directions to a specific place in Texas, and the firearms are relevant evidence of flight.

In a murder case, the trial court did not err by admitting testimony concerning nine-millimeter ammunition and a gun found at the defendant’s house. Evidence concerning the ammunition was relevant because it tended to link the defendant to the scene of the crime, where eleven shell casings of the same brand and caliber were found, thus allowing the jury to infer that the defendant was the perpetrator. The trial court had ruled that evidence of the gun—which was not the murder weapon—was inadmissible and the State complied with this ruling on direct. However, in order to dispel any suggestion that the defendant possessed the nine-millimeter gun used in the shooting, the defendant elicited testimony that a nine-millimeter gun found in his house, in which the nine-millimeter ammunition was found, was not the murder weapon. The court held that the defendant could not challenge the admission of testimony that he first elicited.

In this multiple murder case where the defendant killed the victims with a shotgun, evidence of firearms and ammunition found in the defendant’s residence, ammunition found in his truck, instructions for claymore mines found on his kitchen table, and unfruitful searches of two residences for such mines was relevant to show the defendant’s advanced planning and state of mind.

In a murder case, the trial court did not err by admitting a knife found four years after the crime at issue. The defendant objected on relevancy grounds. The defendant’s wife testified that he told her that he murdered the victim with a knife that matched the description of the one that was found, the defendant was seen on the day of the murder approximately 150 yards from where the knife was found, and the knife was consistent with the description of the likely murder weapon provided by the State’s pathologist. The court went on to find no abuse of discretion in admitting the knife under Rule 403.

In a drug trafficking and maintaining a dwelling case, evidence that a handgun and ammunition were found in the defendant’s home was relevant to both charges. 

In an armed robbery case, admission of evidence of two guns found in the defendant’s home was reversible error where “not a scintilla of evidence link[ed] either of the guns to the crimes charged.”

In a second-degree murder case based on impaired driving, the trial court did not commit plain error under Rule 403 by admitting the results of a chemical analysis of the defendant’s blood. The defendant had argued that because the blood sample was taken approximately three hours after the accident, it was not taken “at any relevant time after the driving” as required by G.S. 20-138.1(a)(2). The court noted that the evidence suggested that the defendant did not consume any alcohol between the time of the accident and when the blood sample was drawn and that he did not allege that the test was improperly administered. The time interval between the defendant’s operation of the vehicle and the taking of the sample goes to weight, not admissibility.

The court held that questions of relevance are reviewed de novo but with deference to the trial court’s ruling.

Following Houseright and holding that the court reviews “questions of relevance de novo although we give great deference to the trial court's relevancy determinations.”

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 from a neuropharmacologist and research scientist who studies the effects of drugs and alcohol on the brain, proffered by the defense as relevant to the jury’s determination of the reliability of the defendant’s confession. The expert would have testified concerning the defendant’s pattern of alcohol use and the potential consequences of alcohol withdrawal, including seizures. However, the expert repeatedly stated that he could not opine as to whether the confession was false or true or what the defendant’s condition was at the time of the confession. Evidence had been presented indicating that the defendant was not intoxicated at the time of the interrogation and that he was an alcoholic. Given this evidence, the jury could assess how alcohol withdrawal affected the reliability of the confession, if at all. As such, the expert’s testimony would not assist the jury in understanding the evidence or determining a fact in issue under Rule 702.

An officer initiated a voluntary encounter with the defendant sitting in the driver’s seat of a parked car. The officer detected a marijuana odor, and the defendant admitted he was smoking a blunt and handed it to the officer. Once backup arrived, the officer asked the defendant to step out of the car and searched him incident to arrest. Upon discovering a “wad of money” totaling thousands of dollars and asking defendant about it, the defendant fled on foot. During the resulting pursuit and takedown, the defendant attempted to take the officer’s firearm and also placed a bag of white powder in his mouth. Believing the defendant was destroying evidence and putting himself at risk, the officer forcibly removed the bag from the defendant’s mouth. The defendant resisted and bit the officer’s finger hard enough to break the skin. The powder later field-tested positive for cocaine. At the defendant’s subsequent trial for assault inflicting serious injury on an officer and attempted common law robbery, testimony about the bag of white powder and the positive field test was admitted. The defendant was convicted of lesser charges, and pleaded guilty to attaining habitual felon status. 

The appellate court held that admission of evidence about the field test result was error. The test result was irrelevant since the test was conducted after the assault and attempted robbery were over, and defendant was not charged with any controlled substance offenses. Testimony about the officer’s belief that the powder was cocaine was relevant to explain why the officer believed it was necessary to remove the bag from the defendant’s mouth, but the confirmatory test had no relevance to establishing any of the elements of the charged offenses. However, the error was not prejudicial in light of all the other evidence of defendant’s guilt as to the charged offenses.

Defendant’s remaining argument, alleging a fatal variance in the habitual felon indictment, was waived since the defendant pleaded guilty. The error, which incorrectly listed one of the defendant’s convictions as occurring in superior court rather than district court, did not constitute an exceptional circumstance that warranted allowing discretionary review under Rule 2.

In a case where the defendant was found guilty of obtaining property by false pretenses and insurance fraud involving a claim regarding a stolen truck, although the trial court erred by admitting evidence of a truck later found in a river, the error did not rise to the level of plain error. The defendant applied for a commercial automobile insurance policy for coverage for his Dodge Ram. The application asked in part whether the defendant had been convicted of or pleaded guilty to any felony during the last 10 years. A felony conviction would preclude issuance of a commercial insurance policy, per company regulations. The defendant reviewed and signed the application, falsely answering this question, “no”; the defendant had in fact pleaded guilty to a felony in 2006. The defendant was issued a commercial automobile insurance policy that included theft protection. Five days after obtaining coverage, the defendant reported the Ram stolen. National General Insurance sent the defendant an affidavit to complete, sign, and have notarized. The defendant filled in most of the requested information but left some spaces blank, including one inquiring about “major repairs since purchase.” The defendant did not disclose that the Ram had been in an accident, but it was discovered by the company during its investigation of the theft. Once confronted about it, the defendant disclosed the repairs done to the vehicle. North Carolina Department of Insurance investigator Tyler Braswell was contacted by the police department to assist with locating the Ram. After the investigation, National General issued the defendant two checks, each for $11,000 on the claim. However, it attempted to stop payment on both after they were mailed, when its underwriting department determined that the defendant’s omission to disclose his prior felony conviction required the insurance policy to be rescinded. After a year, Braswell asked the police department for help searching a river for the vehicle. They looked in the area near a bridge where the defendant was known to keep vehicles and where the repairs to the Ram had been made. A submerged Dodge Ram was located without a license plate, but with damage on the front end. Officials were however unable to tow the truck out of the water. Braswell later discovered that the Ram had been towed out of the river at the defendant’s request. The tower testified that it was a Dodge which appeared to have been in the river for “awhile.” No license plate or VIN number from the recovered vehicle was identified or noted. The defendant was charged with one count of obtaining property by false pretenses and one count of insurance fraud. The defendant moved to exclude all evidence related to the truck found in the river. The trial court agreed in part and allowed the evidence only for the limited purpose of proof of the defendant’s intent to commit insurance fraud. The defendant was found guilty of both charges. He appealed.

            On appeal the defendant argued that evidence regarding the truck found in the river was not relevant to the insurance fraud charge. The alleged false statement was the defendant’s failure to disclose on the affidavit of vehicle theft that the vehicle had major repairs since purchase. The court rejected the State’s argument that evidence of the submerged vehicle falls under the chain of circumstance rationale. It further concluded that evidence of the submerged truck does not have any tendency to make any fact of the charged insurance fraud of failing to disclose major repairs more or less probable. The trial court thus erred in admitting the evidence. The court found however that the error did not rise to the level of plain error.

(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.

In this first-degree murder case, the trial court did not err by admitting letters detailing the defendant’s outstanding debts. The defendant argued that the letters were not relevant. At the time of the victim’s death, she was considering calling off her engagement to the defendant because of his financial problems, and the day before her death she sent him a text message telling him to move out of their home and that, notwithstanding his financial problems, she would continue to seek child support from him. Whether the defendant had a motive to murder the victim was a strongly contested issue in this case. The State alleged that the defendant was facing financial difficulties and that those difficulties created a motive to kill the victim. The letters indicated that the defendant faced financial hardships, both with consumer and child-support debt. This, coupled with evidence that the victim had threatened to remove the defendant from the home and expressed that she would continue to request child-support, made the existence of a financial motive to murder the victim more probable. The letters thus were relevant. The court continued, finding that the trial court did not abuse its discretion by finding that the probative value of the letters was not outweighed by danger of unfair prejudice under Rule 403.

State v. Alonzo [Duplicated], ___ N.C. App. __, 819 S.E.2d 584 (Aug. 21, 2018) modified and affirmed on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Feb 28 2020)

In this child sexual assault case, the trial court did not err by finding that the defendant’s proffered testimony was not relevant. The defendant was charged with committing sexual acts on his daughter Sandy while home from the military on compassionate leave. At trial, the defendant attempted to testify that the reason for his compassionate leave was the rape of his other daughter by a neighbor. The defendant argued that his testimony constituted substantive evidence showing that he did not sexually assault the victim during his compassionate leave and would have allowed him to impeach his ex-wife, Ms. Alonzo, who testified that she witnessed the abuse. Specifically, he asserted that his testimony informing the jury of the sexual assault of his other daughter proves that he “would have been sufficiently deterred” from molesting Sandy during that same time period as “Ms. Alonzo [was] watching him like a hawk.” He further asserted that the testimony would “discredit[] Ms. Alonzo’s testimony” that she saw him sexually assault Sandy, making her explanation for not contacting the police after witnessing his acts “less convincing.” The trial court excluded the testimony under Rules 401 and 403.

     The court made swift work of the defendant’s Rule 401 argument, concluding that his proposed testimony does not have a logical tendency to prove that Defendant would not have sexually molested Sandy. The court went on to conclude that even if the testimony was relevant, the trial court did not abuse its discretion in excluding it under Rule 403. The court explained: “The testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”

     The court also rejected the defendant’s argument that his testimony could have been used to impeach Ms. Alonzo. Specifically, he argued that because Ms. Alonzo reported the sexual assault of their other daughter by a neighbor, she therefore would have reported any assault she witnessed him commit. Defendant further alleged that because Ms. Alonzo did not file any reports, the jury could have therefore determined there was no sexual assault. The court rejected this argument, concluding: “Ms. Alonzo turning in a neighbor for sexual assault is entirely different, psychologically and emotionally, than turning in her husband. Without an established correlation between turning in neighbors and husbands for sexual assault, Defendant’s proposed testimony does not ‘have a logical tendency to prove’ that Ms. Alonzo was incorrect or untruthful in her testimony.” Moreover, the trial court did not abuse its discretion in excluding this testimony under Rule 403. The court explained: “As previously stated, testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”

In this second-degree murder vehicle accident and felony speeding to elude case, the trial court did not err by excluding, under Rule 401, the defendant’s testimony regarding his medical diagnoses. At trial, the defendant attempted to testify to his cognitive impairments and behavioral problems. The State objected, arguing that the defendant had failed to provide notice of an insanity or diminished capacity defense, and failed to provide an expert witness or medical documentation for any of the conditions. On voir dire, the defendant testified that he suffered from several mental disorders including Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder, Pediatric Bipolar Disorder, and Oppositional Defiant Disorder. Defense counsel stated the testimony was not offered as a defense but rather so that “the jury would be aware of [the defendant’s] condition and state of mind.” The trial court determined that lay testimony from the defendant regarding his various mental disorders was not relevant under Rule 401. The court found no error, reasoning:

Defendant attempted to offer specific medical diagnoses through his own testimony to lessen his culpability or explain his conduct without any accompanying documentation, foundation, or expert testimony. Defendant’s testimony regarding the relationship between his medical diagnoses and his criminal conduct was not relevant without additional foundation or support. Such evidence would have required a tendered expert witness to put forth testimony that complies with the rules of evidence. Without a proper foundation from an expert witness and accompanying medical documentation, Defendant’s testimony would not make a fact of consequence more or less probable from its admittance.

The court went on to hold that even if error occurred, it was not prejudicial.

In a case involving charges of obtaining property by false pretenses arising out of alleged insurance fraud, the trial court did not err by admitting testimony that the defendant did not appear for two scheduled examinations under oath as required by her insurance policy and failed to respond to the insurance company’s request to reschedule the examination. The court rejected the defendant’s argument that this evidence was not relevant, noting that to prove its case the State had to show that the defendant’s acts were done “knowingly and decidedly … with intent to cheat or defraud.” The evidence in question constituted circumstantial evidence that the defendant’s acts were done with the required state of mind. 

In this murder case, the defendant’s statements about his intent to shoot someone in order to retrieve the keys to his grandmother’s car, made immediately prior to the shooting of the victim, were relevant. The statements showed the defendant’s state of mind near the time of the shooting and were relevant to the State’s theory of premeditation and deliberation, even though both witnesses to the statements testified that they did not believe that the defendant was referring to shooting the victim.

In this homicide case where the defendant was charged with murdering his wife, the trial court properly allowed forensic psychologist Ginger Calloway to testify about a report she prepared in connection with a custody proceeding regarding the couple’s children. The report contained, among other things, Calloway’s observations of defendant’s drug use, possible mental illness, untruthfulness during the evaluation process and her opinion that defendant desired to “obliterate” the victim’s relationship with the children. Because the report was arguably unfavorable to defendant and was found in defendant’s car with handwritten markings throughout the document, the report and Calloway’s testimony were relevant for the State to argue the effect of the report on defendant’s state of mind—that it created some basis for defendant’s ill will, intent, or motive towards the victim. 

In a sexual assault case involving DNA evidence, the trial court did not err by excluding as irrelevant defense evidence that police department evidence room refrigerators were moldy and that evidence was kept in a disorganized and non-sterile environment where none of the material tested in the defendant’s case was stored in those refrigerators during the relevant time period.

In a case in which the defendant was charged with murdering his wife, the trial court did not abuse its discretion by admitting a letter the defendant wrote years before his wife’s death to an acquaintance detailing his financial hardships. Statements in the letter supported the State’s theory that the defendant had a financial motive to kill his wife. 

The trial court did not commit plain error by allowing the State to question two witnesses on rebuttal about whether they received money from the victim in exchange for making up statements when the defendant raised the issue of the victim’s veracity on his cross examination.

In the habitual felon phase of the defendant’s trial, questions and answers contained in the Transcript of Plea form for the predicate felony pertaining to whether, at the time of the plea, the defendant was under the influence of alcohol or drugs and his use of such substances were irrelevant. Although admission of this evidence did not result in prejudice, the court noted that “preferred method for proving a prior conviction includes the introduction of the judgment,” not the transcript of plea.

In a child sexual abuse case, evidence of the defendant’s prior violence towards the victims’ mother, with whom he lived, was relevant to show why the victims were afraid to report the sexual abuse and to refute the defendant’s assertion that the victims’ mother was pressuring the victims to make allegations in order to get the defendant out of the house. Evidence that the victims’ mother had been sexually abused as a child was relevant to explain why she delayed notifying authorities after the victims told her about the abuse and to rebut the defendant’s assertion that the victims were lying because their mother did not immediately report their allegations.

In this capital case, the trial court did not err by allowing the State to elicit testimony that defense counsel had previously hired the State’s expert to testify on behalf of another client. The defendant argued that this allowed the State to improperly vouch for its expert’s credibility. The State’s expert testified that he disagreed with a defense expert’s opinion that the defendant suffers from mild intellectual disability. In light of the differences between the experts’ opinions it was proper to elicit testimony regarding potential witness bias or lack thereof. The court noted:

Although the trial court might have been better advised to have exercised its discretionary authority pursuant to . . . Rule 403, to limit the scope of the prosecutor’s inquiry to whether [the State’s expert] had previously worked for counsel representing criminal defendants in general rather than specifically identifying one of defendant’s trial counsel as an attorney to whom [the expert] had provided expert assistance, we are unable to say, given the record before us in this case, that the challenged testimony constituted impermissible prosecutorial vouching for [the expert]’s credibility or that the trial court erred by refusing to preclude the admission of the challenged testimony.

In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court abused its discretion by excluding, under Rule 403, evidence that one of the victims was biased. The evidence in question had a direct relationship to the incident at issue. Here, the defendant did not seek to introduce evidence of completely unrelated sexual conduct at trial. Instead, the defendant sought to introduce evidence that the victim told “police and his wife that he was addicted to porn . . . [and had] an extramarital affair[,] . . . [in part] because of what [Defendant] did to him.” The defendant sought to use this evidence to show that the victim “had a reason to fabricate his allegations against Defendant – to mitigate things with his wife and protect his military career.” Thus, there was a direct link between the proffered evidence and the incident in question. The court went on to hold, however, that because of the strong evidence of guilt, no prejudice resulted from the trial court’s error.

State v. King, 366 N.C. 68 (June 14, 2012)

The court affirmed State v. King, 214 N.C. App. 114 (Aug. 2, 2011) (holding that the trial court did not abuse its discretion by excluding the State’s expert testimony regarding repressed memory under Rule 403). The trial court had concluded that although the expert’s testimony was “technically” admissible under Howerton and was relevant, it was inadmissible under Rule 403 because recovered memories are of “uncertain authenticity” and susceptible to alternative possible explanations. The trial court found that “the prejudicial effect [of the evidence] increases tremendously because of its likely potential to confuse or mislead the jury.” The supreme court held that the trial court did not abuse its discretion by excluding the repressed memory evidence under Rule 403. The court noted that its holding was case specific:

We promulgate here no general rule regarding the admissibility or reliability of repressed memory evidence under either Rule 403 or Rule 702. As the trial judge himself noted, scientific progress is “rapid and fluid.” Advances in the area of repressed memory are possible, if not likely, and even . . . [the] defendant’s expert, acknowledged that the theory of repressed memory could become established and that he would consider changing his position if confronted with a study conducted using reliable methodology that yielded evidence supporting the theory. Trial courts are fully capable of handling cases involving claims of repressed memory should new or different scientific evidence be presented.

In this murder case, the trial court committed reversible error by excluding, under Rule 403, testimony by a defense expert that certain incriminating computer files had been planted on the defendant’s computer. Temporary internet files recovered from the defendant’s computer showed that someone conducted a Google Map search on the laptop while it was at the defendant’s place of work the day before the victim was murdered. The Google Map search was initiated by someone who entered the zip code associated with the defendant's house, and then moved the map and zoomed in on the exact spot where the victim’s body later was found.

Even if a psychiatrist was not testifying as an expert, the trial court nevertheless acted within its discretion by excluding his testimony under Rule 403.

State v. Jacobs, 363 N.C. 815 (Mar. 12, 2010)

Holding that State v. Wilkerson, 148 N.C. App. 310, rev’d per curiam, 356 N.C. 418 (2002) (bare fact of the defendant’s conviction, even if offered for a proper Rule 404(b) purpose, must be excluded under Rule 403), did not require exclusion of certified copies of the victim’s convictions. Unlike evidence of the defendant’s conviction, evidence of the victim’s convictions does not encourage the jury to acquit or convict on an improper basis.

In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court did not abuse its discretion under Rule 403 by admitting 404(b) evidence that the defendant engaged in hazing techniques against his wrestlers. The evidence involved testimony from wrestlers that the defendant choked-out and gave extreme wedgies to his wrestlers, and engaged in a variety of hazing activity, including instructing upperclassmen to apply muscle cream to younger wrestlers’ genitals and buttocks. The evidence was “highly probative” of the defendant’s intent, plan, or scheme to carry out the charged offenses. The court noted however “that the State eventually could have run afoul of Rule 403 had it continued to spend more time at trial on the hazing testimony or had it elicited a similar amount of 404(b) testimony on ancillary, prejudicial matters that had little or no probative value regarding the Defendant’s guilt” (citing State v. Hembree, 367 N.C. 2 (2015) (new trial where in part because the trial court “allow[ed] the admission of an excessive amount” of 404(b) evidence regarding “a victim for whose murder the accused was not currently being tried”). However, the court concluded that did not occur here.

In this drug trafficking case, the court rejected the defendant’s argument that the trial court abused its discretion under Rule 403 by admitting statements made by a confidential informant about the defendant’s distribution of drugs to a law enforcement officer for the limited purpose of explaining the course of the investigation. The statements were relevant and explain the steps taken by officers during the investigation. Further, the limiting instruction demonstrated that the trial court thoughtfully considered the nature of the testimony and how it could potentially be used by the jury.

State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

In a capital murder case, the trial court did not abuse its discretion by allowing the State to introduce for illustrative purposes 18 autopsy photographs of the victim. Cynthia Gardner, M.D. testified regarding her autopsy findings, identified the autopsy photos, and said they accurately depicted the body, would help her explain the location of the injuries, and accurately depicted the injuries to which Dr. Gardner had testified. The photos were relevant and probative, not unnecessarily repetitive, not unduly gruesome or inflammatory, and illustrated both Gardner’s testimony and the defendant’s statement to the investigators. 

The defendant was convicted of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and attempted first-degree murder. The opinion describes in detail the beatings inflicted with a bat by the defendant and two others on the deceased and her fiancé, who was severely injured but survived. The sole issue on appeal was whether the trial judge erred in admitting roughly fifty photographs of the crime scene displaying the victims’ injuries and blood throughout the house. The defendant argued that the trial judge erred in allowing an excessive number of bloody and gruesome photographs that had little probative value and were unfairly prejudicial under Rule 403 of the North Carolina Rules of Evidence. The Court of Appeals held that the trial judge did not abuse its discretion in admitting the photographs. The Court stated, “‘Even gory or gruesome photographs are admissible so long as they are used for illustrative purposes and are not introduced solely to arouse the jurors’ passions’” (quoting State v. Hennis, 323 N.C. 279 (1988)). The Court ruled that the trial judge, having conducted an in camera review of the photographs and considered the defendant’s objections, completed its task of reviewing the content and manner in which the photographs were to be used and that the admission of the photographs reflected a thoroughly reasoned decision. The Court further ruled that the defendant was unable to show that the photographs were prejudicial because of other overwhelming evidence of the defendant’s guilt.

In this murder case, the trial court did not abuse its discretion by admitting photographs of the victim and crime scene. The trial court allowed the State to introduce approximately 20 photographs depicting various angles and details of the crime scene and the victim’s location and injuries. The photographs corroborated the defendant’s statement to officers that the victim was attacked at her kitchen, suffered a head injury, and was stabbed multiple times. The autopsy photographs illustrated the testimony of the medical examiner, who described the injuries as consistent with multiple particular weapons, the defensive characteristics of some injuries, and the deliberate and persistent nature of the attack.

In an armed robbery case, the trial court did not err by admitting three photographs of the defendant and his tattoos, taken at the jail after his arrest. The court rejected the defendant’s argument that the photographs should have been excluded under Rule 403 because they showed him in a jail setting. The court noted that the photographs did not clearly show the defendant in jail garb or in handcuffs; they only showed the defendant in a white t-shirt in a cinderblock room with large windows. Furthermore, the trial court specifically found that it was unable to determine from the pictures that they were taken in a jail.

In this multiple murder case the trial court properly admitted crime scene and autopsy photographs of the victims’ bodies. Forty-two crime scene photos were admitted to illustrate the testimony of the crime scene investigator who processed the scene. The trial court also admitted crime scene diagrams containing seven photographs. Additionally autopsy photos were admitted. The court easily concluded that the photos were relevant. Furthermore, the trial court did not abuse its discretion by finding the photographs admissible over the defendant’s Rule 403 objection.

 

The trial court did not commit plain error under Rules 401 or 403 by admitting photographs of the murder victim’s body. The trial court admitted 28 photographs and diagrams of the interior of the home where the victim was found, 12 of which depicted the victim’s body. The trial court also admitted 11 autopsy photographs. An officer used the first set of photos to illustrate the position and condition of the victim’s body and injuries sustained. A forensic pathology expert testified to his observations while performing the autopsy and the photographs illustrated the condition of the body as it was received and during the course of the autopsy. The photographs had probative value and that value, in conjunction with testimony by the officer and the expert was not substantially outweighed by their prejudicial effect.

The trial court did not err in admitting four objected-to photographs of the crime scene where the defendant did not did not object to 23 other crime scene photographs, the four objected-to photographs depicted different perspectives of the scene and focused on different pieces of evidence, the State used the photographs in conjunction with testimony for illustrative purposes only, and the photographs were not used to inflame the jury’s passions. 

In this first-degree murder case, the trial court did not abuse its discretion under Rule 403 by admitting the victim’s skeletal remains, specifically her skull, ribs, and femur. The court considered each set of bones, starting with the skull. It noted that admission of a homicide victim’s skull was an issue of first impression. Generally, however, evidence used to identify a victim is relevant and admissible at trial. Here, the State argued, in part, that it needed witness Curtis, who found the skull, to identify it so that other witnesses could identify other pertinent bones. Curtis positively identified the skull as the one he found in the woods, based on the front teeth. Here, the skull is relevant to the State’s case, illustrated Curtis’s testimony, and was properly admitted under Rule 403.

            As to the rib bones, the court noted that evidence showing the nature and number of the victim’s injuries is probative. Here, the State used the rib bones to illustrate the victim’s injuries, which the medical examiner concluded caused death. They thus were more probative than prejudicial and were properly admitted under Rule 403.

            Considering the femur, the court noted that biological items used in DNA testing generally are admissible. Here, the State used the femur to establish the identity of the victim through DNA testing and it was properly admitted under Rule 403.

In a first-degree murder trial, the trial court did not err by admitting a jail letter that the defendant wrote to an accomplice in “Crip” gang code. In the letter, the defendant asked the accomplice to kill a third accomplice because he was talking to police. Rejecting the defendant’s argument that the evidence should have been excluded under Rule 403, the court determined that the fact that the defendant solicited the murder of a State’s witness was highly relevant and that the defendant’s gang membership was necessary to understand the context and relevance of the letter, which had to be translated by an accomplice. Additionally, the trial court repeatedly instructed the jury that they were only to consider the gang evidence as an explanation for the note.

In a homicide case in which the defendant asserted self-defense, the trial court did not abuse its discretion by admitting evidence that the defendant had been selling drugs in the vicinity of the shooting and was affiliated with a gang. The evidence showed that both the defendant and the victim were gang members. The court held that gang affiliation and selling drugs were relevant to show that the defendant could have had a different objective in mind when the altercation took place and could refute the defendant’s claim of self-defense.

Following State v. Little, 191 N.C. App. 655 (2008), and State v. Jackson, 139 N.C. App. 721 (2000), and holding that the trial court did not abuse its discretion by allowing the State to introduce evidence of the defendant’s prior conviction in a felon in possession case where the defendant had offered to stipulate to the prior felony. The prior conviction, first-degree rape, was not substantially similar to the charged offenses so as to create a danger that the jury might generalize the defendant’s earlier bad act into a bad character and raise the odds that he perpetrated the charged offenses of drug possession, possession of a firearm by a felon, and carrying a concealed weapon.

Trial judge was not required to view a DVD before ruling on a Rule 403 objection to portions of an interview of the defendant contained on it. Trial judge did not abuse his discretion by refusing to redact portions of the DVD. However, the court “encourage[d] trial courts to review the content of recorded interviews before publishing them to the jury to ensure that all out-of-court statements contained therein are either admissible for a valid nonhearsay purpose or as an exception to the hearsay rule in order to safeguard against an end-run around the evidentiary and constitutional proscriptions against the admission of hearsay.” The court also “remind[ed] trial courts that the questions police pose during suspect interviews may contain false accusations, inherently unreliable, unconfirmed or false statements, and inflammatory remarks that constitute legitimate points of inquiry during a police investigation, but that would otherwise be inadmissible in open court.” It continued: “[A]s such, the wholesale publication of a recording of a police interview to the jury, especially law enforcement’s investigatory questions, might very well violate the proscriptions against admitting hearsay or Rule 403. In such instances, trial courts would need to redact or exclude the problematic portions of law enforcement's investigatory questions/statements.”

State v. Young, 368 N.C. 188 (Aug. 21, 2015)

In this murder case the court held that the court of appeals erred by concluding that the trial court committed reversible error in allowing into evidence certain materials from civil actions. The relevant materials included a default judgment and complaint in a wrongful death suit stating that the defendant killed the victim and a child custody complaint that included statements that the defendant had killed his wife. The court of appeals had held that admission of this evidence violated G.S. 1-149 (“[n]o pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it”) and Rule 403. The court held that the defendant did not preserve his challenge to the admission of the child custody complaint on any grounds. It further held that the defendant failed to preserve his G.S. 1-149 objection as to the wrongful death evidence and that his Rule 403 objection as to this evidence lacked merit. On the 403 issue as to the wrongful death evidence, the court rejected the court of appeals’ reasoning that substantial prejudice resulting from this evidence “irreparably diminished” defendant’s presumption of innocence and “vastly outweighed [its] probative value.” Instead, the court found that evidence concerning the defendant’s response to the wrongful death and declaratory judgment action had material probative value. Although the evidence posed a significant risk of unfair prejudice, the trial court “explicitly instructed the jury concerning the manner in which civil cases are heard and decided, the effect that a failure to respond has on the civil plaintiff’s ability to obtain the requested relief, and the fact that ‘[t]he entry of a civil judgment is not a determination of guilt by any court that the named defendant has committed any criminal offense.’”

State v. Ford, 245 N.C. App. 510 (Feb. 16, 2016)

In this voluntary manslaughter case, where the defendant’s pit bull attacked and killed the victim, the trial court did not err by admitting a rap song recording into evidence. The defendant argued that the song was irrelevant and inadmissible under Rule 403, in that it contained profanity and racial epithets which offended and inflamed the jury’s passions. The song lyrics claimed that the victim was not killed by a dog and that the defendant and the dog were scapegoats for the victim’s death. The song was posted on social media and a witness identified the defendant as the singer. The State offered the song to prove that the webpage in question was the defendant’s page and that the defendant knew his dog was vicious and was proud of that characteristic (other items posted on that page declared the dog a “killa”). The trial court did not err by determining that the evidence was relevant for the purposes offered. Nor did it err in determining that probative value was not substantially outweighed by prejudice.

State v. Triplett, 368 N.C. 172 (Aug. 21, 2015)

Reversing the court of appeals in this murder and robbery case, the court held that the trial court did not abuse its discretion by prohibiting the defendant from introducing a tape-recorded voice mail message by the defendant’s sister, a witness for the State, to show her bias and attack her credibility. Although the court found that the voice mail message was minimally relevant to show potential bias, the trial court did not abuse its discretion in its Rule 403 balancing. Because the sister was not a key witness for the State, any alleged bias on her part “becomes less probative.” The trial court properly weighed the evidence’s weak probative value against the confusion that could result by presenting the evidence, which related to a family feud that was tangential to the offenses being tried.

This Davidson County case involved the sexual abuse of a girl at ages 10 and 13. The defendant was the child’s grandfather. In addition to assaulting the child, the defendant also abused the child’s mother, his daughter. The child’s mother reportedly traded sex with her daughter for drugs from the defendant. The child’s mother cooperated with the investigation. She pled guilty pursuant to Alford to attempted felony child abuse on the condition that she truthfully testify against the defendant at his trial. Defense counsel thoroughly questioned the child’s mother regarding her plea arrangement, but the trial court sustained an objection to questions relating to the Alford aspect of the plea. It ruled that the evidence that the child’s mother took an Alford plea was not relevant and, if it was relevant, that it “did not survive the [Rule 403] balancing test.” Slip op. at 4. The defendant was convicted of all counts at trial and sentenced to a minimum term of 1200 months. The trial court also ordered lifetime sex offender registration and satellite-based monitoring without objection from the defendant. He appealed, challenging the trial court’s decision to exclude evidence of the Alford nature of the plea. He also sought certiorari review of the SBM order, as he failed to preserve his direct appeal of that issue.

(1) The defendant’s objection to the evidentiary ruling was preserved. While the defendant failed to make an offer of proof by conducting voir dire of the witness, the plea transcript with the agreement between the State and the child’s mother was made a part of the record. Trial counsel’s extensive questioning about the plea deal also made the objection obvious from context, thus preserving the issue for appellate review.

(2) The defendant claimed that the Alford plea was relevant to the credibility of the witness and that the trial court erred in sustaining the objection to that line of questioning, causing prejudicial error. The court assumed that the Alford nature of the plea was relevant evidence, but found no abuse of discretion in the trial court’s exclusion of the evidence under Rule 403 of the North Carolina Rules of Evidence as potentially confusing to the jury:

Under the circumstances of this case, we agree with the trial court that evidence [the] mother entered an Alford plea would serve to confuse the jury regarding the legal details of her plea. In particular, someone would have to explain the meaning of an Alford plea, and [the] mother’s own understanding of the exact meaning of an Alford plea may have been different that the technical legal meaning or the intent Defendant assumes she had. Slip. op. at 14.

(3) The defendant failed to object on any basis to the order imposing SBM at the time of its entry and failed to give written notice of appeal of the order (as required for civil matters such as SBM orders). He sought review via petition for writ of certiorari and asked the court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to reach the merits of his unpreserved argument. The court declined both requests and dismissed the argument, finding the circumstances did not warrant the “extraordinary steps” of both granting certiorari and invoking Rule 2.  

Judge Murphy wrote separately to concur. According to him, the trial court erred in finding the Alford plea evidence irrelevant. The trial court further erred in conducting a Rule 403 balancing test after it found the evidence irrelevant and excluding the evidence on the basis of Rule 403 was an abuse of discretion. However, these errors were not prejudicial under the circumstances of the case.

State v. Alonzo, ___ N.C. App. __, 819 S.E.2d 584 (Aug. 21, 2018) modified and affirmed on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Feb 28 2020)

In this child sexual assault case, the trial court did not err by finding that the defendant’s proffered testimony was not relevant. The defendant was charged with committing sexual acts on his daughter Sandy while home from the military on compassionate leave. At trial, the defendant attempted to testify that the reason for his compassionate leave was the rape of his other daughter by a neighbor. The defendant argued that his testimony constituted substantive evidence showing that he did not sexually assault the victim during his compassionate leave and would have allowed him to impeach his ex-wife, Ms. Alonzo, who testified that she witnessed the abuse. Specifically, he asserted that his testimony informing the jury of the sexual assault of his other daughter proves that he “would have been sufficiently deterred” from molesting Sandy during that same time period as “Ms. Alonzo [was] watching him like a hawk.” He further asserted that the testimony would “discredit[] Ms. Alonzo’s testimony” that she saw him sexually assault Sandy, making her explanation for not contacting the police after witnessing his acts “less convincing.” The trial court excluded the testimony under Rules 401 and 403.

     The court made swift work of the defendant’s Rule 401 argument, concluding that his proposed testimony does not have a logical tendency to prove that Defendant would not have sexually molested Sandy. The court went on to conclude that even if the testimony was relevant, the trial court did not abuse its discretion in excluding it under Rule 403. The court explained: “The testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”

     The court also rejected the defendant’s argument that his testimony could have been used to impeach Ms. Alonzo. Specifically, he argued that because Ms. Alonzo reported the sexual assault of their other daughter by a neighbor, she therefore would have reported any assault she witnessed him commit. Defendant further alleged that because Ms. Alonzo did not file any reports, the jury could have therefore determined there was no sexual assault. The court rejected this argument, concluding: “Ms. Alonzo turning in a neighbor for sexual assault is entirely different, psychologically and emotionally, than turning in her husband. Without an established correlation between turning in neighbors and husbands for sexual assault, Defendant’s proposed testimony does not ‘have a logical tendency to prove’ that Ms. Alonzo was incorrect or untruthful in her testimony.” Moreover, the trial court did not abuse its discretion in excluding this testimony under Rule 403. The court explained: “As previously stated, testimony concerning the sexual assault of another child by an unrelated, third-party had the potential to confuse the jury, outweighing any probative value.”

When a trial court properly determines, pursuant to Evidence Rule 403, that the probative value of evidence about a victim’s sexual history is substantially outweighed by its potential for unfair prejudice, the trial court does not err by excluding the evidence, regardless of whether it falls within the scope of the Rape Shield Rule. The defendant was convicted of second-degree sexual offense. On appeal he argued that the trial court erred by denying his ability to cross-examine the victim regarding the victim’s commission of sexual assault when he was a child. Specifically, the victim had told an officer that he had sexually assaulted his half-sister when he was eight or nine years old and thereafter was placed in a facility until he reached 18 years old. The defendant asserted that the victim’s statement about this assault was admissible for impeachment because it was inconsistent with the victim’s previous statements to law enforcement about how and when he was removed from his home as a child. The trial court found that the victim’s statement about sexually assaulting his sister was evidence of prior sexual behavior protected by the Rape Shield Law and also was inadmissible because any probative value is substantially outweighed by the likelihood of unfair prejudice and confusion to the jury. The court declined to address the defendant’s argument that a prior sexual assault committed by a victim is not protected under the Rape Shield law, concluding instead that the trial court properly excluded the evidence under Rule 403. The sexual behavior at issue occurred more than a decade earlier and involved no factual elements similar to the charges in question. The incident is disturbing and highly prejudicial and the circumstances of the victim’s removal from his family home as a child are of remote relevance to the offense charged. Moreover, other evidence, including testimony that the defendant’s DNA matched a swab taken from the victim shortly after the assault, render the victim’s inconsistent statements about facts less relevant to the contested factual issues at trial, namely the defendant’s denial that any sexual encounter occurred. The court also rejected the defendant’s argument that exclusion of this evidence impermissibly prevented the jury from hearing evidence that the victim was not a virgin of the time of the offense, contrary to his statement to the defendant that he was a virgin. 

State v. Bishop, 241 N.C. App. 545 (June 16, 2015) rev’d on other grounds, 368 N.C. 869 (Jun 10 2016)

In this cyberbullying case based on electronic messages, the court rejected the defendant’s argument that the trial court erred by admitting into evidence the defendant’s Facebook posts that, among other things, stated that “there’s no empirical evidence that your Jesus ever existed.” The comments were relevant to show the defendant’s intent to intimidate or torment the victim, as well as the chain of events causing the victim’s mother to contact the police. The court rejected the defendant’s argument that the posts were overly inflammatory.

In this murder case, the court rejected the defendant’s argument that the probative value of a recorded telephone call made by the defendant to his father was substantially outweighed by the danger of unfair prejudice. During the call, the defendant’s father asked: “Now who you done shot now?” and “That same gun, right?”

The trial court did not abuse its discretion under Rule 403 by admitting the defendant’s recorded interview with a police detective. Noting that the fact that evidence is prejudicial to the defendant does not make it unfairly so, the court concluded that the evidence’s probative value was not substantially outweighed by the danger of unfair prejudice.

In a first-degree murder trial, the trial court did not abuse its discretion by declining to exclude, under Rule 403, evidence of the defendant’s mid-trial escape attempt. The court reasoned: “[T]he jury may have inferred from the fact that defendant attempted to escape that defendant was guilty of the charges against him. That inference is precisely the inference that makes evidence of flight relevant and it is not an unfair inference to draw.”

State v. Jones, 223 N.C. App. 487 (Nov. 20, 2012) aff’d, 367 N.C. 299 (Mar 7 2014)

In an identity theft case where the defendant was alleged to have used credit card numbers belonging to several victims, the trial court did not abuse its discretion under Rule 403 by admitting evidence that the defendant also was in possession of debit and EBT cards belonging other persons to show intent.

The trial court did not abuse its discretion under Rule 403 by admitting a recording of phone calls between the defendant and other persons that were entirely in Spanish. The defendant argued that because there was one Spanish-speaking juror, the jurors should have been required to consider only the certified English translation of the recording. 

The trial court did not abuse its discretion under Rule 403 by admitting, for purposes of corroboration, a testifying witness’s prior consistent statement. The court noted that although the statement was prejudicial to the defendant’s case, mere prejudice is not the determining factor under Rule 403; rather, the issue is whether unfair prejudice substantially outweighs the probative value. 

The trial court did not abuse its discretion under Rule 403 by admitting the defendant’s statement to an arresting officer that if the officer had come later the defendant “would have been gone and you would have never saw me again.”

In a murder case involving a shooting, the trial court did not abuse its discretion by allowing a detective to give lay opinion testimony concerning the calibers of bullets recovered at the crime scene. Although the testimony was prejudicial, the trial judge correctly ruled that its probative value (helping the jury understand the physical evidence) was not substantially outweighed by the degree of prejudice.

The trial judge did not err under Rule 403 in excluding evidence of the victim’s alleged false accusation that another person had raped her. The circumstances surrounding that accusation were different from those at issue in the trial and the evidence could have caused confusion.

(1) In this sexual assault case, the trial court did not err by excluding the defendant’s evidence that the victim had previously been sexually active that her parents punished her for this activity. The defendant did not argue that the victim’s past sexual activity was admissible under one of the four exceptions to the Rape Shield statute. Rather, he argued that her past sexual activity and parental punishment for it was relevant to show that she had a motive to fabricate accusations against him. Here, the evidence showed that the victim had not engaged in sexual activity for several months prior to the incident at issue. The victim’s parents knew that she had been sexually active for several years prior to the incident and the victim testified that she was not worried about being punished for engaging in sexual conduct. No evidence tied her past sexual activity or parental punishment to the incident in question. Additionally, unlike other cases where evidence of sexual activity was deemed admissible, this case did not turn primarily on the victim’s testimony. Here, there was other “compelling physical evidence submitted by the State” including, among other things, DNA evidence and GPS records. (2) The trial court did not violate the defendant’s constitutional right to present a defense by excluding irrelevant evidence.

The trial court committed plain error during the habitual felon phase of a trial by admitting into evidence plea transcripts for the defendant’s prior felony convictions without redacting irrelevant information pertaining to the defendant's prior drug use, mental health counseling, and lenient sentencing. However, no prejudicial error occurred. The court expressly declined to determine whether admission of the transcripts violated G.S. 15A-1025.

Admission of the defendant’s statements did not violate Evidence Rule 410 where it did not appear that the defendant thought that he was negotiating a plea with the prosecuting attorney or with the prosecutor’s express authority when he made the statements at a court hearing. Instead, the statements were made in the course of the defendant’s various requests to the trial court.

G.S. 15A-1025 (the fact that the defendant or counsel and the prosecutor engaged in plea discussions or made a plea arrangement may not be received in evidence) was violated when the prosecutor asked the defendant whether he was charged with misdemeanor larceny as a result of a plea bargain.

State v. Jacobs, 370 N.C. 661 (Apr. 6, 2018)

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 798 S.E.2d 532 (2017), the court reversed, holding that at the trial court erred by excluding defense evidence of the victim’s history of STDs. The case involved allegations that the defendant had sexual relations with the victim over a period of several years. Evidence showed that the victim had contracted Trichomonas vaginalis and the Herpes simplex virus, Type II, but that testing of the defendant showed no evidence of those STDs. At trial the defense proffered as an expert witness a doctor who was a certified specialist in infectious diseases who opined, in part, that given this, it was unlikely that the victim and the defendant had engaged in unprotected sexual activity over a long period of time. The trial court determined that the defendant could not introduce any STD evidence unless the State open the door. The defendant was convicted and appealed. The Court of Appeals rejected the defendant’s argument that the trial court erred by excluding this evidence. The Supreme Court reversed and ordered a new trial. The Rule 412(b)(2) exception allows for admission of “evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant.” The court concluded:

The proposed expert’s conclusions regarding the presence of STDs in the victim and the absence of those same STDs in defendant affirmatively permit an inference that defendant did not commit the charged crime. Furthermore, such evidence diminishes the likelihood of a three-year period of sexual relations between defendant and [the victim]. Therefore, the trial court erred in excluding this evidence pursuant to Rule 412 and there is “a reasonable possibility that, had the error not been committed, a different result would have been reached at trial.”

When a trial court properly determines, pursuant to Evidence Rule 403, that the probative value of evidence about a victim’s sexual history is substantially outweighed by its potential for unfair prejudice, the trial court does not err by excluding the evidence, regardless of whether it falls within the scope of the Rape Shield Rule. The defendant was convicted of second-degree sexual offense. On appeal he argued that the trial court erred by denying his ability to cross-examine the victim regarding the victim’s commission of sexual assault when he was a child. Specifically, the victim had told an officer that he had sexually assaulted his half-sister when he was eight or nine years old and thereafter was placed in a facility until he reached 18 years old. The defendant asserted that the victim’s statement about this assault was admissible for impeachment because it was inconsistent with the victim’s previous statements to law enforcement about how and when he was removed from his home as a child. The trial court found that the victim’s statement about sexually assaulting his sister was evidence of prior sexual behavior protected by the Rape Shield Law and also was inadmissible because any probative value is substantially outweighed by the likelihood of unfair prejudice and confusion to the jury. The court declined to address the defendant’s argument that a prior sexual assault committed by a victim is not protected under the Rape Shield law, concluding instead that the trial court properly excluded the evidence under Rule 403. The sexual behavior at issue occurred more than a decade earlier and involved no factual elements similar to the charges in question. The incident is disturbing and highly prejudicial and the circumstances of the victim’s removal from his family home as a child are of remote relevance to the offense charged. Moreover, other evidence, including testimony that the defendant’s DNA matched a swab taken from the victim shortly after the assault, render the victim’s inconsistent statements about facts less relevant to the contested factual issues at trial, namely the defendant’s denial that any sexual encounter occurred. The court also rejected the defendant’s argument that exclusion of this evidence impermissibly prevented the jury from hearing evidence that the victim was not a virgin of the time of the offense, contrary to his statement to the defendant that he was a virgin. 

In this child sexual assault case, the trial court did not err by precluding the defendant from cross-examining the State’s expert witness about information in the treatment records regarding the child’s sexual activity with partners other than the defendant. The defendant unsuccessfully sought to cross-examine an expert who testified that the victim suffered from PTSD about information she learned regarding the victim’s sexual activity with other individuals. During voir dire the expert testified that any information about the victim’s consensual sexual activity with others did not play a role and was not relevant to her PTSD diagnosis. The trial court found the evidence to be irrelevant. The court noted that having so found, the trial court was not required to proceed under a Rule 403 balancing test.

In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court erred by excluding evidence that one of the victims was biased. The defendant sought to introduce evidence showing that the victim had a motive to falsely accuse the defendant. The trial court found the evidence irrelevant because it did not fit within one of the exceptions of the Rape Shield Statute. The court concluded that this was error, noting that the case was “indistinguishable” “in any meaningful way” from State v. Martin, __ N.C. App. __, 774 S.E.2d 330 (2015) (trial court erred by concluding that evidence was per se it admissible because it did not fall within one of the Rape Shield Statute’s exceptions). The court went on to hold, however, that because of the strong evidence of guilt, no prejudice resulted from the trial court’s errors.

(1) In this child sex case, evidence that the victim was discovered watching a pornographic video, offered by the defendant to show the victim’s sexual knowledge, is not evidence of sexual activity barred by the Rape Shield Statute. (2) Evidence offered by the defendant of the child victim’s prior allegations and inconsistent statements about sexual assaults committed by others who were living in the house were not barred by the Rape Shield Statute, and the trial court erred by excluding this evidence. False accusations do not fall within the scope of the Rape Shield Statute and may be admissible to attack the victim’s credibility. The court was careful however not to “hold the statements necessarily should have been admitted into evidence at trial;” it indicated that whether the victim’s “prior allegations and inconsistent statements come into the evidence at trial should be determined on retrial subject to a proper Rule 403 analysis.”

In this sexual offense with a student case, the trial court committed reversible error by concluding that the defendant’s evidence was per se inadmissible under the Rape Shield Rule. The case involved charges that the defendant, a substitute teacher, had the victim perform oral sex on him after he caught her in the boys’ locker room. At trial the defendant sought to introduce evidence that when he found the victim in the locker room, she was performing oral sex on football players. He sought to introduce this evidence to show that the victim had a motive to falsely accuse him of sexual assault. After an in camera hearing the trial court concluded that the evidence was per se inadmissible because it did not fit under the Rape Shield Rule’s four exceptions. Citing case law, the court determined that “that there may be circumstances where evidence which touches on the sexual behavior of the complainant may be admissible even though it does not fall within one of the categories in the Rape Shield Statute.” Here, the defendant’s defense was that he did not engage in any sexual behavior with the victim but that she fabricated the story to hide the fact that he caught her performing oral sex on the football players in the locker room. The court continued:

Where the State’s case in any criminal trial is based largely on the credibility of a prosecuting witness, evidence tending to show that the witness had a motive to falsely accuse the defendant is certainly relevant. The motive or bias of the prosecuting witness is an issue that is common to criminal prosecutions in general and is not specific to only those crimes involving a type of sexual assault.

       The trial court erred by concluding that the evidence was inadmissible per se because it did not fall within one of the four categories in the Rape Shield Statute. Here, the trial court should have looked beyond the four categories to determine whether the evidence was, in fact, relevant to show [the victim]’s motive to falsely accuse Defendant and, if so, conducted a balancing test of the probative and prejudicial value of the evidence under Rule 403 or was otherwise inadmissible on some other basis (e.g., hearsay). (footnote omitted).

In a rape case, the trial court erred by excluding defense evidence that the victim and her neighbor had a consensual sexual encounter the day before the rape occurred. This prior sexual encounter was relevant because it may have provided an alternative explanation for the existence of semen in her vagina; “because the trial court excluded relevant evidence under Rule 412(b)(2), it committed error.” However, the court went on to conclude that no prejudice occurred, in part because multiple DNA tests identified the defendant as the perpetrator.

In the context of an appeal from a contempt proceeding, the court held that by asking the victim at trial about a possible prior instance of rape between the victim and a cousin without first addressing the relevance and admissibility of the question during an in camera hearing, defense counsel violated the Rape Shield Statute.

The trial court did not err by sustaining the State’s objection under the Rape Shield Statute. After the victim had already testified that she was unsure whether her aborted child was fathered by the defendant or her boyfriend, the defense questioned a witness in order to show that the victim had sexual relations with a third man. Introducing such evidence would not have shown that the alleged acts were not committed by defendant given evidence that already had been admitted. Additional evidence would have only unnecessarily humiliated and embarrassed the victim while having little probative value. 

(1) In a child sex case, the trial judge did not err by limiting the defendant’s cross-examination of the prosecuting witness regarding inconsistent statements about her sexual history, made to the police and medical personnel. The evidence did not fit within any exception to Rule 412. The court went on to hold that any probative value of the evidence for impeachment purposes was outweighed by its prejudicial effect. (2) The trial court did not err by refusing to admit the victim’s unredacted medical records containing statements regarding her prior sexual history, given that the records had little if any probative value.

The trial judge did not err under Rule 412 in excluding evidence of the victim’s prior sexual activity with a boy named C.T. and with her boyfriend. As to the activity with C.T., the defendant failed to offer evidence that it occurred during the in camera hearing (when the victim denied having sex with C.T.), or at trial. Additionally, the defendant failed to establish the relevance of the sexual activity when it allegedly occurred shortly before the incidents at issue but the victim’s scarring indicated sexual activity that had occurred a month or more earlier. As to the sexual activity with the boyfriend, the defendant failed to present evidence during the in camera hearing that the activity could have caused the victim’s internal scarring.

In a child sex case, the defendant proffered evidence of a third person’s sexual abuse of the victim as an alternative explanation for the victim’s physical trauma. The trial judge properly excluded this evidence under Rule 412(b)(2) because it did not show that the third person’s abuse involved penetration and thus an alternative explanation for the trauma to the victim’s vaginal area.

In this case involving convictions for attempted first-degree murder, statutory sex offense with a child by an adult, assault with a deadly weapon inflicting serious injury, first-degree kidnapping, and taking indecent liberties with a child, although the trial court erred by preventing the defendant from cross-examining the State’s witnesses concerning the defendant’s admission and attempt to help investigators rescue the victim during his post-arrest interrogation, the error was harmless. The case involved the defendant’s abduction of a six-year-old girl and related conduct including binding the child to a tree with a chain around her neck. The defendant asserted that the trial court’s limitation on cross-examination violated his constitutional rights to due process, a fair trial and right to silence. The State elicited testimony from law enforcement officers about the defendant’s pre-arrest statements. It did not however elicit any testimony regarding the post-arrest interrogation of him, and sought to prevent the defendant from introducing any evidence from the State’s witnesses regarding the post-arrest interrogation during cross-examination. According to the State, the pre-arrest interview of the defendant was separate from the post-arrest interrogation that occurred the next day. The trial court agreed with the State and prevented the defendant from questioning the State’s witnesses, including Detective Sorg, regarding the defendant’s post-arrest interrogation. After the State rested, the issue of the defense presenting evidence regarding the post-arrest interrogation arose again, specifically with respect to calling Sorg as a defense witness. According to the State, the testimony would include self-serving statements by the defendant from a completely different interview that constituted hearsay. The State asserted that if the defense wanted to present evidence about what the defendant said during those interviews, he had to take the stand. The trial court agreed and ruled that the defense could not question Sorg on anything related to the post-arrest interrogation. The defendant took the stand and testified about that interrogation.

            The court rejected the defendant’s argument that the cross-examination should have been allowed under Rule 106, to prevent the jury from being misled or deceived by the evidence presented regarding the pre-arrest interview. The purpose of Rule 106’s completeness rule is to ensure that misleading impressions created by taking matters out of context are corrected. Here, there was no nexus between the interview and the post-arrest interrogation that would require evidence of the post-arrest interrogation to explain or add context to the earlier interview. Thus the trial court did not err by concluding that the two events were discrete. Moreover, Rule 106 is limited to writings and recorded statements. Here, the defense did not seek to introduce any such materials; rather, the defense simply wanted to question the State’s witnesses about that interrogation during cross-examination.

            Considering Rule 611, which addresses the proper scope of cross-examination, the court found that the trial court abused its discretion by disallowing the evidence. Rule 611 provides that a witness may be cross-examined on any relevant matter, and here the evidence that the defendant sought to elicit from the State’s witnesses was relevant. However, the court went on to conclude that the trial court’s error was harmless given the overwhelming evidence of guilt.

The trial court did not err with respect to the defendant’s request to cross-examine the State’s witness, Collins, regarding the victim’s reputation for violence. Although the State objected to the defendant’s attempt to so cross-examine the witness, it acknowledged that it would be appropriate to allow such testimony during the defendant’s case; the trial court agreed and noted that defense counsel could recall the witness during the defense case. Although the defendant presented other evidence of the victim’s reputation for violence, he did not recall Collins. The court noted that under Rule 611 trial courts have discretion to exercise reasonable control over the mode and order of interrogating witnesses. Here, the trial court did not abuse its discretion by requiring the defendant to wait until the defense case to examine Collins about the victim’s reputation for violence.

State v. Walston, 367 N.C. 721 (Dec. 19, 2014)

In a child sexual abuse case, although evidence of the defendant’s law abidingness was admissible under Rule 404(a)(1), evidence of his general good character and being respectful towards children was not admissible. On appeal, the defendant’s argument focused on the exclusion of character evidence that he was respectful towards children. The court found that this evidence did not relate to a pertinent character trait, stating: “Being respectful towards children does not bear a special relationship to the charges of child sexual abuse . . . nor is the proposed trait sufficiently tailored to those charges.” It continued:

Such evidence would only be relevant if defendant were accused in some way of being disrespectful towards children or if defendant had demonstrated further in his proffer that a person who is respectful is less likely to be a sexual predator. Defendant provided no evidence that there was a correlation between the two or that the trait of respectfulness has any bearing on a person’s tendency to sexually abuse children.

In this case involving convictions of felony murder, discharging a firearm into an occupied vehicle, and possession of marijuana with intent to sell, the trial court did not err by admitting certain photographs at trial. Two of the photographs (“Gun Photos”) were of firearms; the photos were found on the defendant’s cell phone. A third photograph (“Mustang Photo”) also was recovered from the defendant’s phone; it showed the defendant and another man leaning against the hood of a Silver Mustang with a black racing stripe on the street where the victim was shot. Both men were displaying the hand sign for the number “4” with their left hands, while the man on the right displayed a closed right hand with his middle finger extended.

     The defendant argued that the photos should have been excluded under Evidence Rule 404 because possession of a firearm and flashing gang signs show bad character and bad acts. The court found itself unable to conclude that possession of a firearm is indicative of bad acts or character given that gun ownership is protected by the Second Amendment and that the defendant’s own brief fails to identify any basis for such a conclusion. The court failed to see how the hand signals in the Mustang Photo indicate gang affiliation. Nothing in the record suggests that either gesture indicates gang affiliation, and the trial court instructed the prosecutor not to ask any questions about signs or gang affiliation based on the picture. Thus, neither photograph falls within the scope of Rule 404.

     The court rejected the defendant’s argument that the photographs were inadmissible under Rules 401 and 402. The court rejected the defendant’s argument that no evidence connected the gun at issue to the weapon used in the crime. There was an evidentiary connection between the photos, the crime, and the accused; specifically, the photos were obtained from the defendant’s phone, showed that he had access to firearms and to the vehicle in question, and depict him at almost the precise location where the shooting occurred. One of the gun photos shows the defendant in possession of a firearm resembling the one used in the shooting. The evidence was relevant and the trial court did not err by admitting the photographs.

     The trial court did not abuse its discretion in conducting the Rule 403 balancing test with respect to the photographs. The defendant’s brief assumes that the photographs are irrelevant but because the court concluded to the contrary it rejected this argument as well.

In this drug case, a new trial was required where character evidence was improperly admitted. When cross-examining the defendant’s witness, the prosecutor elicited testimony that the defendant had been incarcerated for a period of time. The court viewed this testimony as being equivalent to testimony regarding evidence of a prior conviction. Because the defendant did not testify at trial, the State could not attack his credibility with evidence of a prior conviction. The court rejected the State’s argument that the defendant opened the door to this testimony, finding that the defendant did not put his good character at issue. 

(1) In a child sexual assault case, the trial court did not err by refusing the defendant’s request to instruct the jury that it could consider evidence concerning his character for honesty and trustworthiness as substantive evidence of his guilt or innocence. At trial, five witnesses testified that the defendant was honest and trustworthy. The defendant requested an instruction in accordance with N.C.P.J.I. 105.60, informing the jury that a person having a particular character trait “may be less likely to commit the alleged crime(s) than one who lacks the character trait” and telling the jury that, if it “believe[d] from the evidence [that the defendant] possessed the character trait” in question, it “may consider this in [its] determination of [Defendant’s] guilt or innocence[.]” The trial court would have been required to deliver the requested instruction if the jury could reasonably find that an honest and trustworthy person was less likely to commit the crimes at issue in this case than a person who lacked those character traits. Although “an individual’s honesty and trustworthiness are certainly relevant to an individual’s credibility, we are unable to say that a person exhibiting those character traits is less likely than others to commit a sexual offense [such as the ones charged in this case].” (2) In a child sexual assault case, in which the defendant was charged with having sexual contact with student athletes who came to him for help with sports injuries, the trial court did not err by refusing to allow a defense witness to testify that the defendant possessed the character trait of working well with children and not having an unnatural lust or desire to have sexual relations with children. The defendant argued that the evidence should have been admitted since it related to a pertinent character trait that had a special relationship to the charged crimes. Citing State v. Wagoner, 131 N.C. App. 285, 293 (1998) (the trial court properly excluded evidence showing the defendant’s “psychological make-up,” including testimony that he was not a high-risk sexual offender, on the theory that such evidence, which amounted to proof of the defendant’s normality, did not tend to show the existence or non-existence of a pertinent character trait), the court concluded that the evidence in question “constituted nothing more than an attestation to Defendant’s normalcy” and was properly excluded.

In this tax evasion case, the trial court erred by excluding the defendant’s character evidence. The facts indicated that the defendant believed advice from others that by completing certain Sovereign Citizen papers, she would be exempt from having to pay taxes. The defendant’s witness was permitted to testify to the opinion that the defendant was a truthful, honest, and law-abiding citizen. However, the trial court excluded the witness’s testimony regarding the defendant’s trusting nature. The court agreed with the defendant that her character trait of being trusting of others was pertinent to whether she willfully attempted to evade paying taxes. The court found the error harmless.

In a murder case where a defense witness testified that the defendant was not a violent person, thereby placing a pertinent character trait at issue, no plain error occurred when the State cross-examined the witness about whether she knew of the defendant’s prior convictions or his pistol whipping of a person.

State v. Bass, 371 N.C. 535 (Oct. 26, 2018)

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 477 (2017), the Supreme Court reversed, holding that the trial court properly excluded specific instances of the victim’s violent conduct for the purpose of proving that he was the first aggressor. The charges arose from the defendant’s shooting of the victim. The defendant asserted self-defense. In his case in chief, the defendant sought to introduce testimony describing specific instances of violent conduct by the victim, specifically testimony from three witnesses about times when they had experienced or witnessed the victim’s violent behavior. The trial court excluded this evidence but allowed each witness to testify to his or her opinion of the victim’s character for violence and the victim’s reputation in the community. Construing the relevant evidence rules, the Supreme Court determined that character is not an essential element of self-defense. Therefore, with regard to a claim of self-defense, the victim’s character may not be proved by evidence of specific acts. Here, the excluded evidence consisted of specific incidents of violence committed by the victim. Because Rule 405 limits the use of specific instances of past conduct to cases in which character is an essential element of the charge, claim, or defense, the trial court properly excluded testimony regarding these specific prior acts of violence by the victim.

State v. Jacobs, 363 N.C. 815 (Mar. 12, 2010)

In a murder and attempted armed robbery trial, the trial court erred when it excluded the defendant’s proposed testimony that he knew of certain violent acts by the victim and of the victim’s time in prison. This evidence was relevant to the defendant’s claim of self-defense to the murder charge and to his contention that he did not form the requisite intent for attempted armed robbery because “there is a greater disincentive to rob someone who has been to prison or committed violent acts.” The evidence was admissible under Rule 404(b) because it related to the defendant’s state of mind. 

In this murder case, the trial court did not err by excluding the defendant’s proffered evidence about the victim’s gang membership. The defendant asserted that the evidence was relevant to self-defense. However, none of the proffered evidence pertained to anything that the defendant actually knew at the time of the incident.

State v. McGrady, 232 N.C. App. 95 (Jan. 21, 2014) review granted, 367 N.C. 505 (Jun 11 2014)

In murder case involving a claim of self-defense, the trial court did not err by excluding the defense expert testimony, characterized by the defendant as pertaining to the victim’s proclivity toward violence. The court noted that where self-defense is at issue, evidence of a victim’s violent or dangerous character may be admitted under Rule 404(a)(2) when such character was known to the accused or the State’s evidence is entirely circumstantial and the nature of the transaction is in doubt. The court concluded that the witness’s testimony did not constitute evidence of the victim’s character for violence. On voir dire, the witness testified only that that the victim was an angry person who had thoughts of violence; the witness admitted having no information that the victim actually had committed acts of violence. Additionally, the court noted, there was no indication that the defendant knew of the victim’s alleged violent nature and the State’s case was not entirely circumstantial. The court also rejected the defendant’s argument that the trial court’s ruling deprived him of a right to present a defense, noting that right is not absolute and defendants do not have a right to present evidence that the trial court, in its discretion, deems inadmissible under the evidence rules. 

The trial judge erred under Rule 404(a)(2) in allowing the state to offer evidence of the victim’s good character. The court concluded that the defense had not offered evidence of the victim’s bad character, even though defense counsel had forecast evidence of the victim’s bad character in an opening statement. 

State v. Lewis, 365 N.C. 488 (Apr. 13, 2012)

The court of appeals properly found that the trial court abused its discretion by excluding, at a retrial, evidence of remarks that the lead investigator, Detective Roberts, made to a juror at the defendant’s first trial. After the defendant’s conviction, he filed a motion for appropriate relief (MAR) alleging that his trial had been tainted because of improper communication between Roberts and a juror, Deputy Hughes. At a hearing on the MAR, the defendant presented evidence that when his case was called for trial Hughes was in the pool of prospective jurors. While in custody awaiting trial, Hughes had twice transported the defendant to Central Prison in Raleigh. On one of those trips, the defendant told Hughes that he had failed a polygraph examination. Also, Hughes had assisted Roberts in preparing a photographic lineup for the investigation. While undergoing voir dire, Hughes acknowledged that he knew the defendant and had discussed the case with him. While he had misgivings about being a juror, Hughes said that he believed he could be impartial. Because the defendant insisted that Hughes remain on the jury, his lawyer did not exercise a peremptory challenge to remove Hughes from the panel. The evidence at the MAR hearing further showed that during a break in the trial proceedings, Roberts made the following statement to Hughes: “if we have . . . a deputy sheriff for a juror, he would do the right thing. You know he flunked a polygraph test, right?” Hughes did not report this communication to the trial court. Although the trial court denied the MAR, the court of appeals reversed, ordering a new trial. Prior to the retrial, the State filed a motion in limine seeking to suppress all evidence raised in the MAR hearing. Defense counsel opposed the motion, arguing that Roberts’ earlier misconduct was directly relevant to his credibility. The trial court allowed the State’s motion. The defendant was again convicted and appealed. The court of appeals held that the trial court abused its discretion by granting the State’s motion. The supreme court affirmed, holding that the trial court should have allowed defense counsel to cross-examine Roberts regarding his statements to Hughes to show Roberts’ bias against the defendant and pursuant to Rule 608(b) to probe Roberts’ character for untruthfulness. The court went on to reject the State’s argument that the evidence was properly excluded under Rule 403, noting that defense counsel understood that the line of questioning would inform the jurors that the defendant had been convicted in a prior trial but believed the risk was worth taking. Finally, the court held that the trial court’s error prejudiced the defense given Roberts’ significant role in the case.

State v. Hembree, 368 N.C. 2 (Apr. 10, 2015)

In this capital murder case in which the State introduced 404(b) evidence regarding a murder of victim Saldana to show common scheme or plan, the trial court erred by allowing Saldana’s sister to testify about Saldana’s good character. Evidence regarding Saldana’s character was irrelevant to the charged crime. For this reason the trial court also abused its discretion by admitting this evidence over the defendant’s Rule 403 objection.

State v. Mylett, ___ N.C. App. ___, 822 S.E.2d 518 (Dec. 4, 2018) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Dec 11 2018)

In this case involving a conviction for conspiracy to harass a juror, the trial court did not err by allowing the juror-witnesses to testify, over objection, about a fraternity fight that formed the basis for the criminal trial in which the defendant was accused of harassing jurors. The criminal trial involved the defendant’s brother Dan and the charges against Dan arose out of the fraternity fight. The defendant’s charges of intimidating jurors arose out of his conduct with respect to the jurors after they rendered their verdict in Dan’s case. The court rejected the argument that evidence regarding the underlying fight was character evidence and not introduced for a proper purpose under Rule 404(b). The court noted that it would have been nearly impossible to exclude all of the evidence of the fight underlying Dan’s trial as it forms part of the history of the defendant’s interaction with the jurors.

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 818 S.E.2d 718 (2018), the Supreme Court held that the trial court violated the defendant’s Sixth Amendment right to confront witnesses against him. In this murder, robbery with a dangerous weapon, and possession of a firearm by a felon case, the trial judge erred by limiting the defendant’s ability to question the State’s principal witness about whether she expected to receive a favorable plea offer for drug trafficking charges pending in Guilford County in exchange for her testimony against the defendant in Forsyth County. In a voir dire hearing, the defendant showed that prosecutors in the two counties had been in touch by email and discussed a possible plea deal for the witness in Guilford based on her testimony at the defendant’s trial. By limiting the witness’s testimony about this possible deal, the trial court prohibited the jury from considering evidence that could have shown bias on the witness’s part, and thus violated the defendant’s confrontation rights. The court distinguished previous cases in which it had deemed similar errors harmless, reasoning that this involved a limit on the testimony of the State’s principal witness. Moreover there was no physical evidence linking the defendant to the crime and no other witness placing him at the scene. As a result, the court concluded that the trial judge’s error was not harmless beyond a reasonable doubt and affirmed the Court of Appeals’ decision to vacate the verdict and order a new trial.

Justice Ervin, joined by Justice Newby, dissented, writing that the trial judge allowed ample cross-examination of the witness about her pending charges in Guilford County, and that the limitations the court imposed were an appropriate exercise of its discretion to control the scope and extent of cross-examination to prevent confusion and eliminate undue repetition.

The court rejected the defendant’s argument that his confrontation clause rights were violated when the trial court released an out-of-state witness from subpoena. The State subpoenaed the witness from New York to testify at the trial. The witness testified at trial and the defendant had an opportunity to cross-examine him. After the witness stepped down from the witness stand, the State informed the trial court judge that the defense had attempted to serve a subpoena on the witness the day before. The State argued that the subpoena was invalid. The witness refused to speak with the defense outside of court and the trial court required the defense to decide whether to call the individual as a witness before 2:00 p.m. that day. When the appointed time arrived, the defense indicated it had not yet decided whether it would be calling the individual as a witness and the trial court judge released the witness from the summons. The defendant’s confrontation rights were not violated where the witness was available at trial and the defendant had the opportunity to cross-examine him. Additionally, under G.S. 15A-814, the defendant’s subpoena was invalid. 

The trial court did not violate the defendant’s confrontation rights by barring him from cross-examining two of the State's witnesses, Moore and Jarrell, about criminal charges pending against them in counties in different prosecutorial districts than the district in which defendant was tried. The court noted that the Sixth Amendment right to confrontation generally protects a defendant’s right to cross-examine a State's witness about pending charges in the same prosecutorial district as the trial to show bias in favor of the State, since the jury may understand that pending charges may be used by the State as a weapon to control the witness. However, the trial judge has wide latitude to impose reasonable limits on such cross-examination based on, for example, concern that such interrogation is only marginally relevant. Here, the defendant failed to provide any evidence of discussions between the district attorney's office in the trial county and district attorneys' offices in the other counties where the two had pending charges. Additionally, Jarrell testified on cross-examination and Moore testified on voir dire that each did not believe testifying in this case could help them in any way with proceedings in other counties. On these facts, the court concluded that testimony regarding the witnesses' pending charges in other counties was, at best, marginally relevant. Moreover, the court noted, both Jarrell and Moore were thoroughly impeached on a number of other bases separate from their pending charges in other counties.

The court rejected the defendant’s argument that his constitutional right to confront witnesses against him was violated when the trial court refused to permit defense counsel to cross examine the defendant’s accomplices about conversations they had with their attorneys regarding charge concessions the State would make to them if they testified against the defendant. The court held that the accomplices’ private conversations with their attorneys were protected by the attorney-client privilege and that the privilege was not waived when the accomplices took the stand to testify against the defendant.

State v. Chavez, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 7, 2020) rev’d in part on other grounds, ___ N.C. ___, 2021-NCSC-86 (Aug 13 2021)

This Mecklenburg County case involved charges of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. The defendant and two other men (one of whom was unidentified) entered the victim’s home and attacked him with a machete and hammer. The victim’s girlfriend escaped with an infant and called police. The defendant and his named co-conspirator apprehended the girlfriend outside of the home, where the defendant instructed the other man to kill her. He refused, and the defendant fled; the other man stayed with the woman until police arrived (and became the named co-conspirator in the indictment). The defendant was convicted of all charges at trial and sentenced to a minimum term of 336 months.

An officer was asked whether she received any conflicting information about the defendant’s identity from witnesses interviewed about the case. The officer testified at trial that she did not. The defendant did not object at trial but complained that admission of evidence was hearsay, violated his confrontation rights, and constituted plain error. Rejecting this argument, the court found that the officer’s testimony did not convey a statement from any of the interviewees and was capable of different interpretations. It was not therefore a statement offered for the truth of the matter asserted and violated neither hearsay rules nor the Confrontation Clause. Even if the admission of this evidence was error, it was not prejudicial and did not rise to plain error. The conviction for conspiracy to commit attempted murder was reversed, the remaining convictions affirmed, and the matter remanded.

In this drug trafficking case, the defendant’s Confrontation Clause rights were not violated when the trial court admitted statements made by a non-testifying confidential informant. The statements were not admitted for the truth of the matter asserted but rather to explain subsequent steps taken by officers in the investigation, and the trial court gave a limiting instruction to that effect.

In this case involving a larceny from a country club, the Confrontation Clause was not violated when the trial court admitted evidence that the owners of the country club received an anonymous phone call providing information about the perpetrator. The trial court admitted the statement with a limiting instruction that it was not to be considered for its truth but only to show the course of the officers’ investigation based on the information provided by the caller. Because the statement was admitted for a purpose other than the truth of the matter asserted, it falls outside of the protections afforded by the Confrontation Clause.

In this kidnapping and rape case, the defendant’s confrontation rights were not violated when the trial court admitted, for the purposes of corroboration, statements made by deceased victims to law enforcement personnel. The statements were admitted to corroborate statements made by the victims to medical personnel. The court rejected the defendant’s argument that because the statements contained additional information not included in the victims’ statements to medical personnel, they exceeded the proper scope of corroborative evidence and were admitted for substantive purposes. The court noted in part, “the mere fact that a corroborative statement contains additional facts not included in the statement that is being corroborated does not render the corroborative statement inadmissible.” 

In this homicide case where the defendant was charged with murdering his wife, the confrontation clause was not violated when the trial court allowed forensic psychologist Ginger Calloway to testify about a report she prepared in connection with a custody proceeding regarding the couple’s children. Defendant argued that Calloway’s report and testimony violated the confrontation clause because they contained third party statements from non-testifying witnesses who were not subject to cross-examination at trial. The court rejected this argument concluding that the report and testimony were not admitted for the truth of the matter asserted but to show “defendant’s state of mind.” In fact, the trial court gave a limiting instruction to that effect, noting that the evidence was relevant “only to the extent it may have been read by . . . defendant” and “had some bearing” on how he felt about the custody dispute with his wife.

Where no hearsay statements were admitted at trial, the confrontation clause was not implicated.

No violation of the defendant’s confrontation rights occurred when an officer testified to statements made to him by others where the statements were not introduced for their truth but rather to show the course of the investigation, specifically why officers searched a location for evidence.

The defendant’s confrontation rights were not violated when an officer testified to the victim’s statements made to him at the scene through the use of a telephonic translation service. The defendant argued that his confrontation rights were violated when the interpreter’s statements were admitted through the officer’s testimony. These statements were outside of the confrontation clause because they were not admitted for the truth of the matter asserted but rather for corroboration.

State v. Ross, 216 N.C. App. 337 (Oct. 18, 2011)

Because evidence admitted for purposes of corroboration is not admitted for the truth of the matter asserted, Crawford does not apply to such evidence.

 

Because the statements at issue were not admitted for the truth of the matter asserted and therefore were not hearsay, their admission did not implicate the confrontation clause. The statements at issue included statements of an officer during an interrogation of the defendant. In his statements, the officer repeated things the police had been told by others. The officer’s statements were not offered for their truth but rather to provide context for defendant’s answers.

Statements of a non-testifying informant to a police officer were non-testimonial when offered not for the truth of the matter asserted but rather to explain the officer’s actions in the course of the investigation.

In a plurality opinion the Court affirmed the holding below that the defendant’s confrontation clause rights were not violated when the State’s DNA expert testified to an opinion based on a report done by a non-testifying analyst. The defendant Sandy Williams was charged with, among things, sexual assault of L.J. After the incident in question L.J. was taken to the emergency room, where a doctor performed a vaginal exam and took vaginal swabs. The swabs and other evidence were sent to the Illinois State Police (ISP) Crime Lab for testing and analysis. An analyst confirmed the presence of semen in the swabs. About six months later, the defendant was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court order. An analyst extracted a DNA profile from the sample and entered it into ISP Crime Lab database. Meanwhile, L.J.’s swabs from the earlier incident were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs to the ISP Crime Lab, having derived a DNA profile for the person whose semen was recovered from L.J. At trial, ISP forensic biologist Sandra Lambatos testified as an expert for the State. Lambatos indicated that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work and that Cellmark’s testing and analysis methods were generally accepted in the scientific community. Over a defense objection, Lambatos then testified to the opinion that the DNA profile received from Cellmark matched the defendant’s DNA profile from the blood sample in the ISP database. Cellmark’s report was not introduced into evidence. Also, while Lambatos referenced documents she reviewed in forming her opinion, she did not read the contents of the Cellmark report into evidence. At the conclusion of Lambatos’ testimony, the defendant moved to strike the evidence of Cellmark’s testing based upon a violation of his confrontation clause rights. The motion was denied and the defendant was convicted. On appeal to the Illinois Supreme Court the defendant again argued that Lambatos’ testimony violated his rights under Crawford and Melendez-Diaz. The Illinois court disagreed, reasoning that because the Cellmark report supplied a basis for Lambatos’ opinion, it was not admitted for the truth of the matter asserted. The U.S. Supreme Court affirmed. Justice Alito wrote the plurality opinion, which was joined by the Chief Justice and Justices Kennedy and Breyer. The plurality determined that no confrontation clause violation occurred for two reasons. First, the Cellmark report fell outside of the scope of the confrontation clause because it was not introduced for the truth of the matter asserted. In this respect, the plurality was careful to distinguish the Court’s prior decisions in Bullcoming and Melendez-Diaz, which it characterized as involving forensic reports that were introduced for that purpose. Second, the plurality concluded that no confrontation clause violation occurred because the report was non-testimonial. Justice Thomas concurred in judgment only. He agreed that the report was non-testimonial, though he reached this conclusion through different reasoning. Thomas disagreed with that portion of the plurality opinion concluding that the report was not introduced for the truth for the matter asserted. Justices Kagan, Scalia, Ginsburg and Sotomayor dissented, noting among other things, the “significant confusion” created by the fractured opinion.

In a straightforward application of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (June 25, 2009) (holding that forensic laboratory reports are testimonial and thus subject to Crawford), the Court held that substitute analyst testimony in an impaired driving case violated Crawford. The defendant was arrested on charges of driving while intoxicated (DWI). Evidence against him included a forensic laboratory report certifying that his blood-alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on the defendant’s blood sample. The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony. Instead, New Mexico’s high court held, live testimony of another analyst satisfied the constitutional requirements. The Court reversed, holding that “surrogate testimony of that order does not meet the constitutional requirement.” 

Forensic laboratory reports are testimonial and thus subject to the rule of Crawford v. Washington, 541 U.S. 36 (2004). For a detailed analysis of this case, see the paper entitled “Melendez-Diaz & the Admissibility of Forensic Laboratory Reports & Chemical Analyst Affidavits in North Carolina Post-Crawford.

State v. Craven, 367 N.C. 51 (June 27, 2013)

 The court held that admission of lab reports through the testimony of a substitute analyst (Agent Schell) violated the defendant’ confrontation clause rights where the testifying analyst did not give her own independent opinion, but rather gave “surrogate testimony” that merely recited the opinion of non-testifying testing analysts that the substances at issue were cocaine. Distinguishing Ortiz-Zape, the court held that here the State’s expert did not testify to an independent opinion obtained from the expert’s own analysis but rather offered impermissible surrogate testimony repeating testimonial out-of-court statements made by non-testifying analysts. With regard to the two lab reports at issue, the testifying expert was asked whether she agreed with the non-testifying analysts’ conclusions. When she replied in the affirmative, she was asked what the non-testifying analysts’ conclusions were and the underlying reports were introduced into evidence. The court concluded: “It is clear . . . that Agent Schell did not offer—or even purport to offer—her own independent analysis or opinion [of the] . . . samples. Instead, Agent Schell merely parroted [the non-testifying analysts’] . . . conclusions from their lab reports.” Noting that the lab reports contained the analysts’ certification prepared in connection with a criminal investigation or prosecution, the court easily determined that they were testimonial. The court went on to find that this conclusion did not result in error with regard to the defendant’s conspiracy to sell or deliver cocaine conviction. As to the defendant’s conviction for sale or delivery of cocaine, the six participating Justices were equally divided on whether the error was harmless beyond a reasonable doubt. Consequently, as to that charge the Court of Appeals’ decision holding that the error was reversible remains undisturbed and stands without precedential value. However, the court found that the Court of Appeals erroneously vacated the conviction for sale or delivery and that the correct remedy was a new trial. 

State v. Hough, 367 N.C. 79 (June 27, 2013)

With one Justice not taking part in the decision and the others equally divided, the court, per curiam, left undisturbed the decision below, State v. Hough, 202 N.C. App. 674 (Mar. 2, 2010). In the decision below, the Court of Appeals held that no Crawford violation occurred when reports done by non-testifying analyst as to composition and weight of controlled substances were admitted as the basis of a testifying expert’s opinion on those matters. [Author’s note: Because the Justices were equally divided, the decision, although undisturbed, has no precedential value.]

State v. Williams, 367 N.C. 64 (June 27, 2013)

Reversing the Court of Appeals, the court held that any confrontation clause violation that occurred with regard to the use of substitute analyst testimony was harmless beyond a reasonable doubt where the defendant testified that the substance at issue was cocaine. When cocaine was discovered near the defendant, he admitted to the police that a man named Chris left it there for him to sell and that he had sold some that day. The substance was sent to the crime lab for analysis. Chemist DeeAnne Johnson performed the analysis of the substance. By the time of trial however, Johnson no longer worked for the crime lab. Thus, the State presented Ann Charlesworth of the crime lab as an expert in forensic chemistry to identify the substance at issue. Over objection, she identified the substance as cocaine. The trial court also admitted, for the purpose of illustrating Charlesworth’s testimony, Johnson’s lab reports. At trial, the defendant reiterated what he had told the police. The defendant was convicted and he appealed. The Court of Appeals reversed, finding that Charlesworth’s substitute analyst testimony violated the defendant’s confrontation rights. The NC Supreme Court held that even if admission of the testimony and exhibits was error, it was harmless beyond a reasonable doubt because the defendant himself testified that the seized substance was cocaine.

State v. Hurt, 367 N.C. 80 (June 27, 2013)

In a substitute analyst case, the court per curiam and for the reasons stated in Ortiz-Zape, reversed the Court of Appeals’ decision in State v. Hurt, 208 N.C. App. 1 (2010) (applying Crawford to a non-capital Blakely sentencing hearing in a murder case and holding that Melendez-Diaz prohibited the introduction of reports by non-testifying forensic analysts pertaining to DNA analysis).

State v. Brewington, 367 N.C. 29 (June 27, 2013)

Reversing the Court of Appeals, the Court held that no Crawford violation occurred when the State proved that the substance at issue was cocaine through the use of a substitute analyst. The seized evidence was analyzed at the SBI by Assistant Supervisor in Charge Nancy Gregory. At trial, however, the substance was identified as cocaine, over the defendant’s objection, by SBI Special Agent Kathleen Schell. Relying on Gregory’s report, Schell testified to the opinion that the substance was cocaine; Gregory’s report itself was not introduced into evidence. Relying on Ortiz-Zape, the court concluded that Schell presented an independent opinion formed as a result of her own analysis, not mere surrogate testimony.

State v. Ortiz-Zape, 367 N.C. 1 (June 27, 2013)

Reversing the Court of Appeals’ decision in an unpublished case, the court held that no confrontation clause violation occurred when an expert in forensic science testified to her opinion that the substance at issue was cocaine and that opinion was based upon the expert’s independent analysis of testing performed by another analyst in her laboratory. At trial the State sought to introduce Tracey Ray of the CMPD crime lab as an expert in forensic chemistry. During voir dire the defendant sought to exclude admission of a lab report created by a non-testifying analyst and any testimony by any lab analyst who did not perform the tests or write the lab report. The trial court rejected the defendant’s confrontation clause objection and ruled that Ray could testify about the practices and procedures of the crime lab, her review of the testing in this case, and her independent opinion concerning the testing. However, the trial court excluded the non-testifying analyst’s report under Rule 403. The defendant was convicted and appealed. The Court of Appeals reversed, finding that the Ray’s testimony violated the confrontation clause. The NC Supreme Court disagreed. The court viewed the US Supreme Court’s decision in Williams v. Illinois as “indicat[ing] that a qualified expert may provide an independent opinion based on otherwise inadmissible out-of-court statements in certain contexts.” Noting that when an expert gives an opinion, the expert opinion itself, not its underlying factual basis, constitutes substantive evidence, the court concluded:

Therefore, when an expert gives an opinion, the expert is the witness whom the defendant has the right to confront. In such cases, the Confrontation Clause is satisfied if the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, allowing the factfinder to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible. Accordingly, admission of an expert’s independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert. We emphasize that the expert must present an independent opinion obtained through his or her own analysis and not merely “surrogate testimony” parroting otherwise inadmissible statements (quotations and citations omitted).

Turning to the related issue of whether an expert who bases an opinion on otherwise inadmissible facts and data may, consistent with the Confrontation Clause, disclose those facts and data to the factfinder, the court stated:

Machine-generated raw data, typically produced in testing of illegal drugs, present a unique subgroup of . . . information. Justice Sotomayor has noted there is a difference between a lab report certifying a defendant’s blood-alcohol level and machine-generated results, such as a printout from a gas chromatograph. The former is the testimonial statement of a person, and the latter is the product of a machine. . . . Because machine-generated raw data, if truly machine-generated, are not statements by a person, they are neither hearsay nor testimonial. We note that representations[ ] relating to past events and human actions not revealed in raw, machine-produced data may not be admitted through “surrogate testimony.” Accordingly, consistent with the Confrontation Clause, if of a type reasonably relied upon by experts in the particular field, raw data generated by a machine may be admitted for the purpose of showing the basis of an expert’s opinion.

Turning to the case at hand, the court noted that here, the report of the non-testifying analyst was excluded under Rule 403; thus the only issue was with Ray’s expert opinion that the substance was cocaine. Applying the standard stated above, the court found that no confrontation violation occurred. Providing additional guidance for the State, the court offered the following in a footnote: “we suggest that prosecutors err on the side of laying a foundation that establishes compliance with Rule . . . 703, as well as the lab’s standard procedures, whether the testifying analyst observed or participated in the initial laboratory testing, what independent analysis the testifying analyst conducted to reach her opinion, and any assumptions upon which the testifying analyst’s testimony relies.” Finally, the court held that even if error occurred, it was harmless beyond a reasonable doubt given that the defendant himself had indicated that the substance was cocaine.

State v. Brent, 367 N.C. 73 (June 27, 2013)

Reversing the Court of Appeals, the court held that by failing to make a timely objection at trial and failing to argue plain error in the Court of Appeals, the defendant failed to preserve the question of whether substitute analyst testimony in a drug case violated his confrontation rights. The court noted that at trial the defendant objected to the testimony related to the composition of the substance only outside the presence of the jury; he did not object to admission of either the expert’s opinion or the raw data at the time they were offered into evidence. He thus failed to preserve the issue for review. Furthermore, the defendant failed to preserve his challenge to admission of the raw data by failing to raise it in his brief before the Court of Appeals. Moreover, the court concluded, even if the issues had been preserved, under Ortiz-Zape, the defendant would lose on the merits.

State v. Burrow, 366 N.C. 326 (Dec. 14, 2012)

The court vacated and remanded State v. Burrow, 218 N.C. App. 373 (Feb. 7, 2012), after allowing the State’s motion to amend the record to include a copy of the State’s notice under G.S. 90-95 indicating an intent to introduce into evidence a forensic report without testimony of the preparer. In the opinion below, the court of appeals had held that the trial court committed plain error by allowing the State to admit a SBI forensic report identifying the substance at issue as oxycodone when neither the preparer of the report nor a substitute analyst testified at trial.

State v. Locklear, 363 N.C. 438 (Aug. 28, 2009)

A Crawford violation occurred when the trial court admitted opinion testimony of two non-testifying experts regarding a victim’s cause of death and identity. The testimony was admitted through the Chief Medical Examiner, an expert in forensic pathology, who appeared to have read the reports of the non-testifying experts into evidence, rather than testifying to an independent opinion based on facts or data reasonable relied upon by experts in the field. For a more detailed discussion of this case, see my blog post.

In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.

(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.

(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.

(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):

Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).

 The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.

(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:

[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).

The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.

(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim.  He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed: 

[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.

Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]

(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects. 

(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.

(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.

A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.

Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.

The defendant was arrested for impaired driving. Because of his extreme intoxication, he was taken to a hospital for medical treatment. The defendant was belligerent and combative at the hospital, and was medicated in an effort to calm his behavior. After the defendant was medically subdued, a nurse withdrew his blood. She withdrew some blood for medical purposes and additional blood for law enforcement use. No warrant had been issued authorizing the blood draw. The defendant moved to suppress evidence resulting from the warrantless blood draw on constitutional grounds. The trial court granted the motion, suppressing evidence of the blood provided to law enforcement and the subsequent analysis of that blood. The State appealed from that interlocutory order, certifying that the evidence was essential to the prosecution of its case. The North Carolina Supreme Court, in State v. Romano, 369 N.C. 678 (2017), affirmed the trial court’s ruling suppressing the State’s blood analysis, and remanded the case for additional proceedings. 

While the case was pending before the state supreme court, the State filed a motion for disclosure of the defendant’s medical records on the date of his arrest, which included records of the hospital’s analysis of his blood. The motion was granted, and the medical records were disclosed.

After the case was remanded, the State proceeded to try the defendant on charges of habitual impaired driving and driving while license revoked for impaired driving. The defendant moved to dismiss the charges and to suppress the evidence of his medical records. The trial court denied the motions, and the defendant was convicted.

The defendant argued on appeal that the trial court erred when it denied his motion to suppress and admitted his medical records, which contained the results of a blood alcohol test performed by the hospital. A manager from the hospital’s records department testified regarding the management of hospital records, and a medical technologist testified about the hospital’s methods and procedures for conducting laboratory tests. In addition, an expert witness in blood testing testified for the State that he relied upon the medical records in forming a conclusion about the defendant’s blood alcohol level. The court determined that the records were properly admitted because (1) they were created for medical treatment purposes and kept in the ordinary course of business and thus were nontestimonial for purposes of the Confrontation Clause; (2) even if the records were testimonial, they were admissible as the basis of a testifying expert’s independent opinion; and (3) the admission of the records was not prejudicial in light of the substantial additional evidence that the defendant was driving while impaired.

In this murder and attempted murder case, the trial court did not err in allowing a substitute expert witness to testify to another expert’s conclusions on cell site location data connected to the defendant. The defendant complained that his rights to confront the witness were violated by the absence at trial of the expert that prepared the report. Rejecting this challenge, the court observed:  

Our courts have consistently held that an expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinion; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusions in this case.

Here, that standard was met—the substitute expert explained the process of cell site analysis and his review of the first expert’s report, and he gave an independent opinion about the defendant’s cell data. The defendant was able to cross-examine the substitute expert with the first expert’s report. He was also given notice ahead of trial of the State’s intention to rely on a substitute expert witness.  There was therefore no error in admitting the testimony, and the convictions were unanimously affirmed.

In this drug case, the court held—with one judge concurring in result only—that the trial court did not err by admitting evidence of the identification and weight of the controlled substances from a substitute analyst. Because Erica Lam, the forensic chemist who tested the substances was not available to testify at trial, the State presented Lam’s supervisor, Lori Knops, who independently reviewed Lam’s findings to testify instead. The defendant was convicted and he appealed, asserting a confrontation clause violation. The court found that no such violation occurred because Knops’s opinion resulted from her independent analysis of Lam’s data. As to the identity of the substances at issue, Knops analyzed the data and gave her own independent expert opinion that the substance was heroin and oxycodone. With respect to the weight of the substances, Knops’s opinion was based on her review of Lam’s “weights obtained on that balance tape.” Because weight is machine generated, it is non-testimonial.

In a drug case, the trial court did not err by allowing one analyst to testify to the results of an analysis done by another non-testifying analyst. The analysis at issue identified the pills as oxycodone. The defendant did not object to the analyst’s testimony at trial or to admission of the underlying report into evidence. Because the defendant and defense counsel stipulated that the pills were oxycodone, no plain error occurred.

In a murder case, the defendant’s right of confrontation was not violated when Dr. Jordan, an expert medical examiner, testified that in his opinion the cause of death was methadone toxicity. As part of his investigation, Jordan sent a specimen of the victim’s blood to the Office of the Chief Medical Examiner for analysis. During trial, Jordan testified that in his opinion the cause of death was methadone toxicity and that his opinion was based upon the blood toxicology report from the Chief Medical Examiner’s Office. When defense counsel raised questions about the test showing methadone toxicity, the trial court allowed the State to call as a witness Jarod Brown, the toxicologist at the State Medical Examiner’s Officer who analyzed the victim’s blood. Noting the evolving nature of the confrontation question presented, the court concluded that even assuming arguendo that Jordan’s testimony was erroneous, any error was cured by the subsequent testimony and cross-examination of Brown, who performed the analysis. 

(1) Admission of a forensic report identifying a substance as a controlled substance without testimony of the preparer violated the defendant’s confrontation clause rights. (2) The trial court erred by allowing a substitute analyst to testify that a substance was a controlled substance based on the same forensic report where the substitute analyst did not perform or witness the tests and merely summarized the conclusions of the non-testifying analyst.

(1) The defendant’s confrontation rights were not violated when the State’s expert testified about DNA testing on the victim’s rape kit done by a non-testifying trainee. The trainee worked under the testifying expert’s direct observation and supervision and the findings were his own. (2) The court rejected the defendant’s argument that his constitutional rights were violated when a second DNA expert testified that she matched a DNA extract on a specimen taken from the defendant to the profile obtained from the rape kit. Having found that the first expert properly testified about the rape kit profile, the court rejected this argument. (3) No violation of the defendant’s confrontation clause rights occurred when the second expert testified that the probability of an unrelated, randomly chosen person who could not be excluded from the DNA mixture taken from the rape kit was extremely low. The defendant argued that the population geneticists who made the probability determination were unavailable for cross-examination about the reliability of their statistical methodology. The court concluded that admission of the statistical information was not error where the second expert was available for cross-examination and gave her opinion that the DNA profile from the rape kit matched the defendant’s DNA profile and the statistical information on which she relied was of a type reasonably relied upon by experts in the field. Even assuming that unavailability of the purported population geneticists who prepared the statistical data violated the defendant’s rights, the error did not rise to the level of plain error.

Assuming arguendo that the defendant properly preserved the issue for appeal, no confrontation clause violation occurred when the State’s expert forensic pathologist, Dr. Deborah Radisch, testified about the victim’s autopsy and gave her own opinion concerning cause of death. Distinguishing State v. Locklear, 363 N.C. 438 (Aug. 28, 2009), and Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705 (June 23, 2011), and following State v. Blue, 207 N.C. App. 267 (Oct. 5, 2010), the court noted that Dr. Radisch was present for the autopsy and testified as to her own independent opinion as to cause of death.

(1) In a triple murder case, no confrontation clause violation occurred when the State’s expert medical examiner was allowed to testify in place of the pathologist who performed the autopsies. The medical examiner provided her own expert opinion and did not simply regurgitate the non-testifying examiner’s reports. The testifying expert made minimal references to the autopsy reports, which were never introduced into evidence, and her testimony primarily consisted of describing the victims’ injuries as depicted in 28 autopsy photographs. She described the type of wounds, the pain they would have inflicted, whether they would have been fatal, and testified to each victim’s cause of death. With regard to one victim who had been sexually assaulted, the expert explained, through use of photographs, that the victim had been asphyxiated, how long it would have taken for her to lose consciousness, and that the blood seen in her vagina could have been menstrual blood or the result of attempted penetration. The expert’s testimony as to the impact of the various trauma suffered by the victims was based primarily on her inspection of the photographs that were admitted into evidence and her independent experience as a pathologist. Although the expert referred to the non-testifying pathologist’s reports, she did not recite findings from them. To the extent that she did, no prejudice resulted given her extensive testimony based strictly on her own personal knowledge as a pathologist, including the effect of the victims’ various injuries and their cause of death. Finally, the court concluded, even if any error occurred, it was harmless beyond a reasonable doubt. (2) The court noted in a footnote that the autopsy photographs were properly admitted as the basis of the testifying expert’s opinion and therefore admission of them did not violate the defendant’s confrontation rights.

Holding, in a drug case, that although the trial court erred by allowing the State’s expert witness to testify as to the identity and weight of the “leafy green plant substance” where the expert’s testimony was based on analysis performed by a non-testifying forensic analyst, the error was not prejudicial in light of the overwhelming evidence of guilt. 

The trial court did not err by allowing the Chief Medical Examiner to testify regarding an autopsy of a murder victim when the Medical Examiner was one of three individuals who participated in the actual autopsy. The Medical Examiner testified to his own observations, provided information rationally based on his own perceptions, and did not testify regarding anyone else’s declarations or findings.

Even if the defendant’s confrontation clause rights were violated when the trial court allowed a substitute analyst to testify regarding DNA testing done by a non-testifying analyst, the error was harmless beyond a reasonable doubt.

Applying Locklear and Mobley, both discussed above, the court concluded that testimony of a substitute analyst identifying a substance as cocaine base violated the defendant’s confrontation clause rights. The court characterized the substitute analyst’s testimony as “merely reporting the results of [non-testifying] experts.” Rather than conduct her own independent review, the testifying analyst’s review “consisted entirely of testifying in accordance with what the underlying report indicated.” For more discussion of this case, see the blog post

No Crawford violation occurred when a substitute analyst testified to her own expert opinion, formed after reviewing data and reports prepared by non-testifying expert. For a more detailed discussion of this case, see my blog post

A Crawford violation occurred when the State’s expert gave an opinion, in a drug trafficking case, as to the weight of the cocaine at issue, based “solely” on a laboratory report by a non-testifying analyst. For a more detailed discussion of this case, see my blog post

State v. Phachoumphone [Duplicated], ___ N.C. App. ___, 810 S.E.2d 748 (Feb. 6, 2018) review granted, ___ N.C. ___, ___ S.E.2d ___ (Sep 20 2018)

In this child sexual assault case, although the trial court violated the procedural requirements of G.S. 15A-1225.1 by authorizing the victim’s testimony to be offered remotely without holding a recorded evidentiary hearing on the matter or entering an appropriate order supporting its decision to allow the State’s motion, the defendant was not entitled to relief. The defendant did not challenge the trial court’s ultimate decision allowing the victim to testify remotely; he challenged only the procedure employed in authorizing her remote testimony. The court agreed that the trial court erred by failing to follow statutory procedure. However, for reasons detailed in the court’s opinion, it rejected the defendant’s challenge on the basis that he failed to demonstrate that he was prejudiced by these procedural errors.

In a case in which the defendant was charged with obtaining property by false pretenses for selling products alleged to be gluten free but which in fact contained gluten, the trial court did not err by allowing an ill witness to testify by way of a two-way, live, closed-circuit web broadcast. The witness testified regarding the results of laboratory tests he performed on samples of the defendant's products. The trial court conducted a hearing and found that the witness had a history of panic attacks, had suffered a severe panic attack on the day he was scheduled to fly from Nebraska to North Carolina for trial, was hospitalized as a result, and was unable to travel to North Carolina because of his medical condition. Applying the test of Maryland v. Craig, the court found these findings sufficient to establish that allowing the witness to testify remotely was necessary to meet an important state interest of protecting the witness’s ill health. Turning to Craig’s second requirement, the court found that reliability of the witness’s testimony was otherwise assured, noting, among other things that the witness testified under oath and was subjected to cross-examination. [Author’s note: For an extensive discussion of the use of remote testimony at trial, see my paper here.]

The trial court did not err by allowing a child victim to testify out of the defendant’s presence by way of a closed circuit television. Following State v. Jackson, 216 N.C. App. 238 (Oct. 4, 2011) (in a child sexual assault case, the defendant’s confrontation rights were not violated when the trial court permitted the child victim to testify by way of a one-way closed circuit television system; Maryland v. Craig survived Crawford and the procedure satisfied Craig’s procedural requirements), the court held that no violation of the defendant’s confrontation rights occurred. The court also held that the trial court’s findings of fact about the trauma that the child would suffer and the impairment to his ability to communicate if required to face the defendant in open court were supported by the evidence.

(1) In a child sexual assault case, the defendant’s confrontation rights were not violated when the trial court permitted the child victim to testify by way of a one-way closed circuit television system. The court held that Maryland v. Craig survived Crawford and that the procedure satisfied Craig’s procedural requirements. (2) The court also held that the child’s remote testimony complied with the statutory requirements of G.S. 15A-1225.1.

(1) Melendez-Diaz did not impact the “continuing vitality” of the notice and demand statute in G.S. 90-95(g); when the State satisfies the requirements of the statute and the defendant fails to file a timely written objection, a valid waiver of the defendant’s constitutional right to confront the analyst occurs. (2) The State’s notice under the statute in this case was deficient in that it failed to provide the defendant a copy of the report and stated only that “[a] copy of report(s) will be delivered upon request.” However, the defendant did not preserve this issue for appeal. At trial he asserted only that the statute was unconstitutional under Melendez-Diaz; he did not challenge the State’s notice under the statute. Justice Hudson dissented, joined by Justice Beasley, arguing that the majority improperly shifts the burden of proving compliance with the notice and demand statute from the State to defendant.

In this drug trafficking case, notice was properly given under the G.S. 90-95(g) notice and demand statute even though it did not contain proof of service or a file stamp. The argued-for service and filing requirements were not required by Melendez-Diaz or the statute. The notice was stamped “a true copy”; it had a handwritten notation that saying “ORIGINAL FILED,” “COPY FAXED,” and “COPY PLACED IN ATTY’S BOX.” The defendant did not argue that he did not in fact receive the notice.

The court rejected the defendant’s argument that the State’s failure to comply with the requirements of the G.S. 90-95 notice and demand statute with respect to the analyst’s report created error. In addition to failing to object to admission of the report, both the defendant and defense counsel stipulated that the pills were oxycodone. The court also rejected the defendant’s argument that his stipulation was not a knowing, voluntary and intelligent waiver of his right to confront the non-testifying analyst, noting that such a stipulation does not require the formality of a guilty plea.

A SBI forensic report identifying a substance as cocaine was properly admitted when the State gave notice under the G.S. 90-95(g) notice and demand statute and the defendant lodged no objection to admission of the report without the testimony of the preparer.

The court ordered a new trial in a drug case in which the trial court admitted laboratory reports regarding the identity, nature, and quantity of the controlled substances where the State had not complied with the notice and demand provisions in G.S. 90-95(g) and (g1). Instead of sending notice directly to the defendant, who was pro se, the State sent notice to a lawyer who was not representing the defendant at the time.

The court upheld the constitutionality of G.S. 90-95(g)’s notice and demand statute for forensic laboratory reports in drug cases. Since the defendant failed to object after the State gave notice of its intent to introduce the report without the presence of the analyst, the defendant waived his Confrontation Clause rights.

In this drug case, the trial court did not err by admitting a forensic laboratory report after the defendant stipulated to its admission. The defendant argued that the trial court erred by failing to engage in a colloquy with her to ensure that she personally waived her sixth amendment right to confront the analyst whose testimony otherwise would be necessary to admit the report. State v. Perez, __ N.C. App. __, __, 817 S.E.2d 612, 615 (2018), establishes that a waiver of Confrontation Clause rights does not require the type of colloquy required to waive the right to counsel or to enter a guilty plea. In that case, the defendant argued that the trial court erred by allowing him to stipulate to the admission of forensic laboratory reports without engaging in a colloquy to ensure that he understood the consequences of that decision. The court rejected that argument, declining the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights through a stipulation. In Perez, the court noted that if the defendant did not understand the implications of the stipulation, his recourse is a motion for appropriate relief asserting ineffective assistance of counsel. The court rejected the defendant’s attempt to distinguish Perez on grounds that it involved a written stipulation personally signed by the defendant, while this case involves defense counsel’s oral stipulation made in the defendant’s presence. The court found this a “distinction without a difference.” Here, the stipulation did not amount to an admission of guilt and thus was not the equivalent of a guilty plea. The court continued:

[W]e . . . decline to impose on the trial courts a categorical obligation “to personally address a defendant” whose counsel stipulates to admission of a forensic report and corresponding waiver of Confrontation Clause rights. That advice is part of the role of the defendant’s counsel. The trial court’s obligation to engage in a separate, on-the-record colloquy is triggered only when the stipulation “has the same practical effect as a guilty plea.”

In this drug case, the court rejected the defendant’s argument that the trial court violated his Confrontation Clause rights when it permitted him to stipulate to the admission of forensic laboratory reports without first addressing him personally and ensuring that he understood the stipulation would waive those rights. At trial the prosecutor informed the trial court that the defendant intended to stipulate to the admission of forensic laboratory reports confirming that the substance seized was cocaine. Both defense counsel and the defendant signed the stipulations and the trial court admitted the stipulated evidence. On appeal, the defendant argued that the trial court erred by permitting him to stipulate to the admission of the reports without engaging in a colloquy to ensure he understood the consequences of that decision. The court rejected this argument. It began by acknowledging that the stipulation acted as a waiver of the defendant’s Confrontation Clause rights. The court held however that “the waiver of Confrontation Clause rights does not require the sort of extensive colloquy needed to waive the right to counsel or enter a guilty plea.” The court rejected the defendant’s argument that State v. English, 171 N.C. App. 277 (2005), requires such a colloquy. Here, both the defendant and counsel signed the stipulations, and there may have been strategic reasons to do so. The court found it notable that the defendant did not argue that his lawyer failed to discuss those strategic issues with him, or that defense counsel failed to explain that stipulating to admission of the lab reports would waive his Confrontation Clause rights. Instead, he argued that the trial court should have discussed these issues with him in open court. The court declined the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights via stipulation with the State. If the defendant did not understand the implications of stipulating, his recourse is to pursue an MAR asserting ineffective assistance of counsel.

In this child abuse case the Court held that statement by the victim, L.P., to his preschool teachers were non-testimonial. In the lunchroom, one of L.P.’s teachers, Ramona Whitley, observed that L.P.’s left eye was bloodshot. She asked him “[w]hat happened,” and he initially said nothing. Eventually, however, he told the teacher that he “fell.” When they moved into the brighter lights of a classroom, Whitley noticed “[r]ed marks, like whips of some sort,” on L.P.’s face. She notified the lead teacher, Debra Jones, who asked L.P., “Who did this? What happened to you?” According to Jones, L.P. “seemed kind of bewildered” and “said something like, Dee, Dee.” Jones asked L.P. whether Dee is “big or little;” L.P. responded that “Dee is big.” Jones then brought L.P. to her supervisor, who lifted the boy’s shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about the suspected abuse. The defendant, who went by the nickname Dee, was charged in connection with the incident. At trial, the State introduced L.P.’s statements to his teachers as evidence of the defendant’s guilt, but L.P. did not testify. The defendant was convicted and appealed. The Ohio Supreme Court held that L.P.’s statements were testimonial because the primary purpose of the teachers’ questioning was not to deal with an emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution. That court noted that Ohio has a “mandatory reporting” law that requires certain professionals, including preschool teachers, to report suspected child abuse to government authorities. In the Ohio court’s view, the teachers acted as agents of the State under the mandatory reporting law and obtained facts relevant to past criminal conduct. The Supreme Court granted review and reversed. It held:

In this case, we consider statements made to preschool teachers, not the police. We are therefore presented with the question we have repeatedly reserved: whether statements to persons other than law enforcement officers are subject to the Confrontation Clause. Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. And considering all the relevant circumstances here, L.P.’s statements clearly were not made with the primary purpose of creating evidence for [the defendant’s] prosecution. Thus, their introduction at trial did not violate the Confrontation Clause.

The Court reasoned that L.P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse. The Court continued, concluding that “[t]here is no indication that the primary purpose of the conversation was to gather evidence for [the defendant]’s prosecution. On the contrary, it is clear that the first objective was to protect L.P.” In the Court’s view, “L.P.’s age fortifies our conclusion that the statements in question were not testimonial.” It added: “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” The Court continued, noting that as a historical matter, there is strong evidence that statements made in similar circumstances were admissible at common law. The Court noted, “although we decline to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L.P. was speaking to his teachers remains highly relevant.” The Court rejected the defendant’s argument that Ohio’s mandatory reporting statutes made L.P.’s statements testimonial, concluding: “mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.”

Michigan v. Bryant, 562 U.S. 344 (Feb. 28, 2011)

Justice Sotomayor, writing for the Court, held that a mortally wounded shooting victim’s statements to first-responding officers were non-testimonial under Crawford. In the early morning, Detroit police officers responded to a radio dispatch that a man had been shot. When they arrived at the scene, the victim was lying on the ground at a gas station. He had a gunshot wound to his abdomen, appeared to be in great pain, and had difficulty speaking. The officers asked the victim what happened, who had shot him, and where the shooting occurred. The victim said that the defendant shot him about 25 minutes earlier at the defendant’s house. The officers’ 5-10 minute conversation with the victim ended when emergency medical personnel arrived. The victim died within hours. At trial, the victim’s statements to the responding officers were admitted and the defendant was found guilty of, among other things, murder.

          The Court held that because the statements were non-testimonial, no violation of confrontation rights occurred. The Court noted that unlike its previous decisions in Davis and Hammon, the present case involved a non-domestic dispute, a victim found in a public location suffering from a fatal gunshot wound, and a situation where the perpetrator’s location was unknown. Thus, it indicated, “we confront for the first time circumstances in which the ‘ongoing emergency’ . . . extends beyond an initial victim to a potential threat to the responding police and the public at large.” Slip Op. at 12. This new scenario, the Court noted, “requires us to provide additional clarification . . . to what Davis meant by ‘the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.’” Id. It concluded that when determining whether this is the primary purpose of an interrogation, a court must objectively evaluate the circumstances in which the encounter occurs and the parties’ statements and actions. Id. It explained that the existence of an ongoing emergency “is among the most important circumstances informing the ‘primary purpose’ of an interrogation.” Id. at 14. As to the statements and actions of those involved, the Court concluded that the inquiry must focus on both the declarant and the interrogator.

          Applying this analysis to the case at hand, the Court began by examining the circumstances of the interrogation to determine if an ongoing emergency existed. Relying on the fact that the victim said nothing to indicate that the shooting was purely a private dispute or that the threat from the shooter had ended, the Court found that the emergency was broader than those at issue in Davis and Hammon, encompassing a threat to the police and the public. Id. at 27. The Court also found it significant that a gun was involved. Id. “At bottom,” it concluded, “there was an ongoing emergency here where an armed shooter, whose motive for and location after the shooting were unknown, had mortally wounded [the victim] within a few blocks and a few minutes of the location where the police found [the victim].” Id. The Court continued, determining that given the circumstances of the emergency, it could not say that a person in the victim’s situation would have had the primary purpose of establishing past facts relevant to a criminal prosecution. Id. at 29. As to the motivations of the police, the Court concluded that they solicited information from the victim to meet the ongoing emergency. Id. at 30. Finally, it found that the informality of the situation and interrogation further supported the conclusion that the victim’s statements were non-testimonial.

          Justice Thomas concurred in the judgment, agreeing that the statements were non-testimonial but resting his conclusion on the lack of formality that attended them. Justices Scalia and Ginsburg dissented. Justice Kagan took no part in the consideration or decision of the case.

On discretionary of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 696 (2017), in this murder case the court reversed, holding that the Court of Appeals erred by concluding that certain evidence was admitted in violation of the defendant’s confrontation rights. The defendant was charged with murdering his estranged wife. Approximately 9 months before the murder, an officer responded to a call at the victim’s apartment regarding a domestic dispute. The officer made initial contact with the victim at a location outside of her apartment. The victim told the officer that the defendant entered her apartment through an unlocked door and kept her there against her will for two hours. The victim said that during this period she and the defendant argued and that a physical struggle occurred. Although the officer did not recall seeing any signs that the victim had sustained physical injury, he noticed a tear and stress marks on her shirt. The officer accompanied the victim to her apartment to check the premises to make sure the defendant was not still there. The defendant was later charged and convicted of domestic criminal trespass. At the defendant’s murder trial the trial court admitted, over the defendant’s confrontation clause objection, the officer’s testimony about the statements the victim made to him in the incident 9 months before the murder. The Court of Appeals found, among other things, that the victim’s statements were testimonial. The Supreme Court disagreed, finding that the victim’s statements were nontestimonial. The victim made the statements during an ongoing emergency caused by the defendant’s entry into her apartment and decision to both detain and physically assault her. The information she provided to the officer caused him to enter the apartment to ensure that the defendant, whose location was unknown, had departed and no longer posed a threat to the victim’s safety. The victim’s statements to the officer “served more than an information-gathering purpose.” Additionally, the conversation was informal and took place in an environment that cannot be described as tranquil.

State v. McKiver, 369 N.C. 652 (June 9, 2017)

Reversing the Court of Appeals, the Supreme Court held that the statements made by an anonymous 911 caller informing the police of a possible incident involving a firearm and describing the suspect were nontestimonial. The circumstances surrounding the caller’s statements objectively indicate that the primary purpose was to enable law enforcement to meet an ongoing emergency. The primary purpose of the call was to inform the police of a possible dispute involving an unidentified man brandishing a firearm outside the caller’s home on a public street in a residential subdivision. The caller reacted by going to her home and staying away from the window and an officer retrieved his patrol rifle before entering the scene. “As is evident from the precautions taken by both the caller and the officers on the scene, they believed the unidentified suspect was still roving subdivision with a firearm, posing a continuing threat to the public and law enforcement.” To address this threat, an officer requested that the dispatcher place a reverse call to the caller to get more information about the individual at issue and, once received, quickly relayed that information to other officers to locate and apprehend the suspect. [Author’s note: For more information about the Confrontation Clause, see my judges’ benchbook chapter here.]

The defendant was arrested for impaired driving. Because of his extreme intoxication, he was taken to a hospital for medical treatment. The defendant was belligerent and combative at the hospital, and was medicated in an effort to calm his behavior. After the defendant was medically subdued, a nurse withdrew his blood. She withdrew some blood for medical purposes and additional blood for law enforcement use. No warrant had been issued authorizing the blood draw. The defendant moved to suppress evidence resulting from the warrantless blood draw on constitutional grounds. The trial court granted the motion, suppressing evidence of the blood provided to law enforcement and the subsequent analysis of that blood. The State appealed from that interlocutory order, certifying that the evidence was essential to the prosecution of its case. The North Carolina Supreme Court, in State v. Romano, 369 N.C. 678 (2017), affirmed the trial court’s ruling suppressing the State’s blood analysis, and remanded the case for additional proceedings. 

While the case was pending before the state supreme court, the State filed a motion for disclosure of the defendant’s medical records on the date of his arrest, which included records of the hospital’s analysis of his blood. The motion was granted, and the medical records were disclosed.

After the case was remanded, the State proceeded to try the defendant on charges of habitual impaired driving and driving while license revoked for impaired driving. The defendant moved to dismiss the charges and to suppress the evidence of his medical records. The trial court denied the motions, and the defendant was convicted.

The defendant argued on appeal that the trial court erred when it denied his motion to suppress and admitted his medical records, which contained the results of a blood alcohol test performed by the hospital. A manager from the hospital’s records department testified regarding the management of hospital records, and a medical technologist testified about the hospital’s methods and procedures for conducting laboratory tests. In addition, an expert witness in blood testing testified for the State that he relied upon the medical records in forming a conclusion about the defendant’s blood alcohol level. The court determined that the records were properly admitted because (1) they were created for medical treatment purposes and kept in the ordinary course of business and thus were nontestimonial for purposes of the Confrontation Clause; (2) even if the records were testimonial, they were admissible as the basis of a testifying expert’s independent opinion; and (3) the admission of the records was not prejudicial in light of the substantial additional evidence that the defendant was driving while impaired.

The defendant fired a gun from his car toward a park where over a dozen people were playing basketball and hanging out. He was later found asleep in his car in a ditch by a Highway Patrol officer, who arrested him for driving while impaired. He was convicted by a jury of second-degree murder and assault with a deadly weapon. The defendant argued that the trial court erred by admitting three phone calls the defendant made from the jail because they contained hearsay and violated the defendant’s confrontation rights. (1) As to the hearsay argument, the court of appeals concluded that any error was harmless in light of the overwhelming evidence of the defendant’s guilt. (2) As to the alleged violation of the Confrontation Clause, the court adopted the reasoning of a case from the Fourth Circuit, United States v. Jones, 716 F.3d 851 (4th Cir. 2013), and concluded that, despite automated warnings indicating that the calls were being recorded and monitored, the statements made by the woman the defendant was talking to on the jail phone were not intended to bear witness against him, and were therefore not testimonial. Because the statements were not testimonial, their admission did not violate the Confrontation Clause. (3) Next, the court declined to consider whether the trial court committed plain error by admitting, without objection, video interviews in which the defendant discussed prior assault and rape charges with the police. Again, in light of the overwhelming evidence of the defendant’s guilt, the defendant failed to show how the admission of the evidence resulted in a miscarriage of justice or an unfair trial. (4) At sentencing, the trial court did not err by sentencing the defendant as a Class B1 felon upon jury’s general verdict of guilty of second-degree murder when no evidence or jury instruction supported the depraved-heart malice that makes the crime a Class B2 felony. As in State v. Lail, 251 N.C. App. 463 (2017), it was readily apparent from the evidence here that the jury found the defendant guilty of a Class B1 second-degree murder. (5) Finally, the court of appeals rejected the defendant’s argument that his stipulation to a prior conviction identified as “M-PUBLIC DISTURBANCE” as a Class 1 misdemeanor was ambiguous in light of the multiple potential classifications of disorderly conduct. To the contrary, under State v. Arrington, 371 N.C. 518 (2018), when a defendant stipulates to a prior conviction of a particular offense classification, he or she also stipulates to the facts underlying that conviction. The trial court has no duty to enquire further in the absence of clear record evidence suggesting the defendant stipulated to an incorrect classification, and there was no such evidence here.

In this case involving armed robbery and other charges, the victim’s statements to a responding officer were nontestimonial. When officer Rigsby arrived at the victim’s home to investigate the robbery call, the victim was shaken up, fumbling over his words, and speaking so fast that it sounded like he was speaking another language. Once the victim calmed down he told the officer that a group of black men robbed him, that one of them put a snubnosed revolver to the back of his head, one wore a clown mask, the suspects fled in a silver car, and one of the robbers was wearing red clothing. Shortly thereafter, another officer informed Rigsby that she had found a vehicle and suspects matching the description provided by 911 communications. Rigsby immediately left the victim to assist that officer. Although the suspects had fled the victim’s home, an ongoing emergency posing danger to the public existed. The victim’s statements to Rigsby were nontestimonial because they were provided to assist police in meeting an ongoing emergency and to aid in the apprehension of armed, fleeing suspects.

State v. Clonts, ___ N.C. App. ____, 802 S.E.2d 531 (June 20, 2017) aff’d per curiam, ___ N.C. ___, 813 S.E.2d 796 (Jun 8 2018)

A witness’s pretrial deposition testimony, taken in preparation of the criminal case, was clearly testimonial for purposes of the Confrontation Clause. 

In this child sexual assault case, no confrontation clause violation occurred where the victim’s statements were made for the primary purpose of obtaining a medical diagnosis. After the victim revealed the sexual conduct to his mother, he was taken for an appointment at a Children’s Advocacy Center where a registered nurse conducted an interview, which was videotaped. During the interview, the victim recounted, among other things, details of the sexual abuse. A medical doctor then conducted a physical exam. A DVD of the victim’s interview with the nurse was admitted at trial. The court held that the victim’s statements to the nurse were nontestimonial, concluding that the primary purpose of the interview was to safeguard the mental and physical health of the child, not to create a substitute for in-court testimony. Citing Clark, the court rejected the defendant’s argument that state law requiring all North Carolinians to report suspected child abuse transformed the interview into a testimonial one. 

In this driving while license revoked case, the court held that DMV records were non-testimonial. The documents at issue included a copy of the defendant’s driving record certified by the DMV Commissioner; two orders indefinitely suspending his drivers’ license; and a document attached to the suspension orders and signed by a DMV employee and the DMV Commissioner. In this last document, the DMV employee certified that the suspension orders were mailed to the defendant on the dates as stated in the orders, and the DMV Commissioner certified that the orders were accurate copies of the records on file with DMV. The court held that the records, which were created by the DMV during the routine administration of its affairs and in compliance with its statutory obligations to maintain records of drivers’ license revocations and to provide notice to motorists whose driving privileges have been revoked, were non-testimonial.

In a sex offender residential restriction case, the court held that because GPS tracking reports were non-testimonial business records, their admission did not violate the defendant’s confrontation rights. The GPS records were generated in connection with electronic monitoring of the defendant, who was on post-release supervision for a prior conviction. The court reasoned:

[T]he GPS evidence admitted in this case was not generated purely for the purpose of establishing some fact at trial. Instead, it was generated to monitor defendant’s compliance with his post-release supervision conditions. The GPS evidence was only pertinent at trial because defendant was alleged to have violated his post-release conditions. We hold that the GPS report was non-testimonial and its admission did not violate defendant’s Confrontation Clause rights.

(1) In a larceny by merchant case, statements made by a deceased Wal-Mart assistant manager to the store’s loss prevention coordinator were non-testimonial. The loss prevention coordinator was allowed to testify that the assistant manager had informed him about the loss of property, triggering the loss prevention coordinator’s investigation of the matter. The court stated:

[The] statement was not made in direct response to police interrogation or at a formal proceeding while testifying. Rather, [the declarant] privately notified his colleague . . . about a loss of product at the Wal-Mart store. This statement was made outside the presence of police and before defendant was arrested and charged. Thus, the statement falls outside the purview of the Sixth Amendment. Furthermore, [the] statement was not aimed at defendant, and it is unreasonable to believe that his conversation with [the loss prevention coordinator] would be relevant two years later at trial since defendant was not a suspect at the time this statement was made.

(2) Any assertions by the assistant manager contained in a receipt for evidence form signed by him were non-testimonial. The receipt—a law enforcement document—established ownership of the baby formula that had been recovered by the police, as well as its quantity and type; its purpose was to release the property from the police department back to the store.

State v. Glenn, 220 N.C. App. 23 (Apr. 17, 2012)

A non-testifying victim’s statement to a law enforcement officer was testimonial. In the defendant’s trial for kidnapping and other charges, the State introduced statements from a different victim (“the declarant”) who was deceased at the time of trial. The facts surrounding the declarant’s statements were as follows: An officer responding to a 911 call concerning a possible sexual assault at a Waffle House restaurant found the declarant crying and visibly upset. The declarant reported that while she was at a bus stop, a driver asked her for directions. When she leaned in to give directions, the driver grabbed her shirt and told her to get in the vehicle. The driver, who had a knife, drove to a parking lot where he raped and then released her. The declarant then got dressed and walked to the Waffle House. The trial court determined that because the purpose of the interrogation was to resolve an ongoing emergency, the declarant’s statements were nontestimonial. Distinguishing the U.S. Supreme Court’s decision in Michigan v. Bryant, the court of appeals disagreed. The court noted that when the officer arrived “there was no ongoing assault, the declarant had no signs of trauma, no suspect was present, and the officer did not search the area for the perpetrator or secure the scene. The officer asked the declarant if she wanted medical attention (she refused) and what happened. Thus, the court concluded, the officer “assessed the situation, determined there was no immediate threat and then gathered the information.” Furthermore, the declarant told the officer that the perpetrator voluntarily released her. The court concluded that even if the officer believed there was an ongoing emergency when he first arrived, he determined that no ongoing emergency existed when he took the statement. The court also determined that there was no ongoing threat to the victim, law enforcement or the public. It noted that the defendant voluntarily released the declarant and drove away and there was no indication that he would return to harm her further. As for danger to the officer, the court found no evidence that the defendant was ever in the Waffle House parking lot or close enough to harm the officer with his weapon, which was a knife not a gun. The court also concluded that because “the evidence suggested defendant’s motive was sexual and did not rise to the level of endangering the public at large.” Regarding the overall circumstances of the encounter, the court noted that because there was only one officer, “the circumstances of the questioning were more like an interview,” in which the officer asked what happened and the declarant narrated the events. It continued, noting that since the declarant “had no obvious injuries, and initially refused medical attention, the primary purpose of her statement could not have been to obtain medical attention.” Furthermore, she “seemed to have no difficulty in recalling the events, and gave [the officer] a detailed description of the events, implying that her primary purpose was to provide information necessary for defendant’s prosecution.” In fact, the court noted, she told the officer that she wanted to prosecute the suspect. The court concluded that the statement was “clearly” testimonial:

[T]here was no impending danger, because the driver released [the declarant] and [the declarant] was waiting at a restaurant in a presumably safe environment. In addition, [the officer] questioned her with the requisite degree of formality because the questioning was part of an investigation, outside the defendant’s presence. [The officer] wanted to determine “what happened” rather than “what is happening.” Furthermore, [the declarant’s] statement deliberately recounted how potentially criminal events from the past had progressed and the interrogation occurred after the described events ended. Finally, [the declarant] gave the officer a physical description of the driver, how he was dressed, his approximate age, and the type of vehicle he was driving. For a criminal case, this information would be “potentially relevant to later criminal prosecution.” (citations omitted).

Hardy v. Cross, 565 U.S. 65 (Dec. 12, 2011)

Reversing the Seventh Circuit, the Court held that the state court was not unreasonable in determining that the prosecution established the victim’s unavailability for purposes of the confrontation clause. In the defendant’s state court trial for kidnaping and sexual assault, the victim testified. After a mistrial, a retrial was scheduled for March 29, 2000. On March 20, the prosecutor informed the trial judge that the victim could not be located. On March 28, the State moved to have the victim declared unavailable and to introduce her prior testimony at the retrial. The State represented that it had remained in constant contact with the victim and her mother and that every indication had been that the victim, though very frightened, would testify. On March 3, however, the victim’s mother and brother told the State’s investigator that they did not know where the victim was; the mother also reported that the victim was “very fearful and very concerned” about testifying. About a week later, the investigator interviewed the victim’s father, who had no idea where she was. On March 10, the victim’s mother told the State that the victim had run away the day before. Thereafter, the prosecutor’s office and police attempted to find the victim. Their efforts included: constant visits her home, at all hours; visits to her father’s home; conversations with her family members; checks at, among other places, the Medical Examiner’s office, local hospitals, the Department of Corrections, the victim’s school, the Secretary of State’s Office, the Department of Public Aid, and with the family of an old boyfriend of the victim. On a lead that the victim might be with an ex-boyfriend 40 miles away, a police detective visited the address but the victim had not been there. The State’s efforts to find the victim continued until March 28, the day of the hearing on the State’s motion. That morning, the victim’s mother informed the detective that the victim had called approximately two weeks earlier saying that she did not want to testify and would not return. The victim’s mother said that she still did not know where the victim was or how to contact her. The trial court granted the State’s motion and admitted the victim’s earlier testimony. The defendant was found guilty of sexual assault. On appeal, the state appellate court agreed that the victim was unavailable and that the trial court had properly admitted her prior testimony. The defendant then filed a petition for a writ of habeas corpus arguing that the state court had unreasonably applied clearly established Supreme Court precedents holding that the confrontation clause precludes the admission of the prior testimony of an allegedly unavailable witness unless the prosecution made a good-faith effort to obtain the declarant’s presence at trial. The federal district court denied the petition; the Seventh Circuit reversed.

            The Court began its analysis by noting that under Barber v. Page, 390 U. S. 719 (1968), “a witness is not ‘unavailable’ for purposes of the . . . confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Here, the state court holding that the prosecution conducted the requisite good-faith search for the victim was not an unreasonable application of its precedents. The Seventh Circuit found that the State’s efforts were inadequate for three main reasons. First, it faulted the State for failing to contact the victim’s current boyfriend or any of her other friends in the area. But, the Court noted, there was no evidence suggesting that these individuals had information about her whereabouts. Second, the Seventh Circuit criticized the State for not making inquiries at the cosmetology school where the victim had been enrolled. However, because the victim had not attended the school for some time, there is no reason to believe that anyone there had better information about her location than did her family. Finally, the Seventh Circuit found that the State’s efforts were insufficient because it failed to serve her with a subpoena after she expressed fear about testifying at the retrial. The Court noted: “We have never held that the prosecution must have issued a subpoena if it wishes to prove that a witness who goes into hiding is unavailable for Confrontation Clause purposes, and the issuance of a subpoena may do little good if a sexual assault witness is so fearful of an assailant that she is willing to risk his acquittal by failing to testify at trial.” It concluded: “when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence, but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.” (citation omitted). 

(1) In this murder, robbery and assault case, the trial court properly found that a witness was unavailable to testify under Evidence Rule 804 and the Confrontation Clause. The witness, Montes, was arrested in connection with the crimes at issue. She cooperated with officers and gave a statement that incriminated the defendant. She agreed to appear in court and testify against the defendant, but failed to do so. Her whereabouts were unknown to her family, her bondsman and the State. The State successfully moved to allow her recorded statement into evidence on grounds that she was unavailable and that the defendant forfeited his constitutional right to confrontation due to his own wrongdoing. The defendant was convicted and appealed. Considering the issue, the court noted that the evidence rule requires that a finding of unavailability be supported by evidence of process or other reasonable means. To establish unavailability under the Confrontation Clause, there must be evidence that the State made a good-faith effort to obtain the witness’s presence at trial. Here, the State delivered a subpoena for Montes to her lawyer, and Montes agreed to appear in court to testify against the defendant. These findings support a conclusion both that the State used reasonable means and made a good-faith effort to obtain the witness’s presence at trial. 

(2) The trial court properly found that the defendant forfeited his Confrontation Clause rights through wrongdoing. The relevant standard for determining forfeiture by wrongdoing is a preponderance of the evidence and the State met this burden. Here, the defendant made phone calls from jail showing an intent to intimidate Montes into not testifying, and threatened another testifying witness. Additionally, his mother and grandmother, who helped facilitate his threatening calls to Montes, showed up at Montes’ parents’ house before trial to engage in a conversation with her about her testimony. The trial court properly found that the net effect of the defendant’s conduct was to pressure and intimidate Montes into not appearing in court and not testifying.

State v. Clonts, ___ N.C. App. ____, 802 S.E.2d 531 (June 20, 2017) aff’d per curiam, ___ N.C. ___, 813 S.E.2d 796 (Jun 8 2018)

In a case in which there was a dissenting opinion, the court held that the trial court erred by admitting a non-testifying witness’s pretrial deposition testimony. (1) The trial court’s finding were insufficient to establish that the witness was unavailable for purposes of the Rule 804(b)(1) hearsay exception and the Confrontation Clause. The entirety of the trial court’s findings on this issue were: “The [trial court] finds [the witness] is in the military and is stationed outside of the State of North Carolina currently. May be in Australia or whereabouts may be unknown as far as where she’s stationed.” The trial court made no findings that would support more than mere inference that the State was unable to procure her attendance; made no findings concerning the State’s efforts to procure the witness’s presence at trial; and made no findings demonstrating the necessity of proceeding to trial without the witness’s live testimony. The trial court did not address the option of continuing trial until the witness returned from deployment. It did not make any finding that the State made a good-faith effort to obtain her presence at trial, much less any findings demonstrating what actions taken by the State could constitute good-faith efforts. It thus was error for the trial court to grant the State’s motion to admit the witness’ deposition testimony in lieu of her live testimony at trial. (2) The court went on to find that even if the trial court’s findings of fact and conclusions had been sufficient to support its ruling, the evidence presented to the trial court was insufficient to support an ultimate finding of “unavailability” for purposes of Rule 804. It noted in part that the State’s efforts to “effectuate [the witness’s] appearance” were not “reasonable or made in good faith.” (3) A witness’s pretrial deposition testimony, taken in preparation of the criminal case, was clearly testimonial for purposes of the Confrontation Clause. (4) The court found that the facts of the case did not support a finding that the witness was unavailable under the Confrontation Clause. In this respect, the court noted that no compelling interest justified denying the defendant’s request to continue the trial to allow for the witness’s live testimony. It added: “The mere convenience of the State offers no such compelling interest.” It continued: “We hold that . . . in order for the State to show that a witness is unavailable for trial due to deployment, the deployment must, at a minimum, be in probability long enough so that, with proper regard to the importance of the testimony, the trial cannot be postponed.” (quotation omitted).

No violation of the defendant’s confrontation rights occurred when the trial court admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The witness was unavailable and the defendant had a prior opportunity to cross-examine her at the plea hearing. 

State v. Ross, 216 N.C. App. 337 (Oct. 18, 2011)

Defense counsel’s cross-examination of a declarant at a probable cause hearing satisfied Crawford’s requirement of a prior opportunity for cross-examination. 

Certiorari was granted in this case four days after the Court decided Melendez-Diaz. The case presented the following question: If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause by providing that the accused has a right to call the analyst as his or her own witness? The Court’s two-sentence per curiam decision vacated and remanded for “further proceedings not inconsistent with the opinion in Melendez-Diaz.”

In this federal death penalty case, the court relied on Williams v. New York, 337 U.S. 241 (1949), to hold that the confrontation clause does not apply in the sentence selection phase (where the jury exercises discretion in selecting a life sentence or the death penalty) of a federal capital trial. The court noted that under the Federal Death Penalty Act, the jury finds the facts necessary to support the imposition of the death penalty in the guilt and eligibility phases of trial and that “[i]t is only during th[o]se phases that the jury makes ‘constitutionally significant’ factual findings.” The court’s holding pertained only to the sentence selection phase.

State v. Hurt, 367 N.C. 80 (June 27, 2013)

In a substitute analyst case, the court per curiam and for the reasons stated in Ortiz-Zape (above, under substitute analysts), reversed the Court of Appeals’ decision in State v. Hurt, 208 N.C. App. 1 (2010) (applying Crawford to a non-capital Blakely sentencing hearing in a murder case and holding that Melendez-Diaz prohibited the introduction of reports by non-testifying forensic analysts pertaining to DNA analysis). Reversing on other grounds, the court did not indicate that Crawford was inapplicable to a non-capital sentencing proceeding.

The defendant was placed on 36 months of supervised probation after pleading guilty to one count of conspiracy to obtain property by false pretenses. The defendant’s probation officer subsequently filed a violation report alleging that the defendant had violated his probation by using illegal drugs, and an addendum alleging that the defendant had absconded from probation. At the violation hearing, the defendant admitted to using illegal drugs, but denied that he absconded. The state presented testimony at the violation hearing from a probation officer who was not involved in supervising the defendant, but read from another officer’s notes regarding the defendant’s alleged violations. The trial court found the defendant in violation, revoked his probation for absconding, and activated his suspended 10 to 21 month sentence. The defendant filed a pro se notice of appeal, which was defective, but the court granted his petition for writ of certiorari and addressed the merits.

On appeal, the defendant argued that his confrontation rights under G.S. 15A-1345(e) were violated when the trial court allowed another probation officer to testify from the supervising officer’s notes, over the defendant’s objection. However, at the hearing the defendant did not state that the objection was based on his statutory confrontation right, nor did he request that the supervising officer be present in court or subjected to cross-examination. The court held that, at most, it could be inferred that the defendant’s objection was based on hearsay grounds or lack of personal knowledge. The court rejected the defendant’s argument that the issue was preserved despite the absence of an objection because the trial court acted contrary to a statutory mandate, per State v. Lawrence, 352 N.C. 1 (2000). In this case, the trial court did not act contrary to the statute because the objection made at the hearing was insufficient to trigger the trial court’s obligation to either permit cross-examination of the supervising officer or find good cause for disallowing confrontation. Therefore, the officer’s testimony based on the notes in the file was permissible, and it established that the defendant left the probation office without authorization on the day he was to be tested for drugs, failed to report to his probation officer, did not respond to messages, was not found at his residence on more than one occasion, and could not be located for 22 days. Contrasting these facts with State v. Williams, 243 N.C. App. 198 (2015), in which the evidence only established that the probationer had committed the lesser violation of failing to allow his probation officer to visit him at reasonable times, the evidence here adequately showed that the defendant had absconded. The court therefore affirmed the revocation, but remanded the case for correction of a clerical error because the order erroneously indicated that both violations justified revocation, rather than only the absconding per G.S. 15A-1344(d2).

The defendant was on supervised probation for a conviction of possession with intent to sell or deliver marijuana, and the state alleged that he violated his probation by testing positive for cocaine and committing a new criminal offense. At a hearing held on the violation, the defendant’s probation officer testified about the positive drug screen, and a police officer testified about the alleged new criminal activity. Officers used a confidential informant to conduct two controlled buys of a white powdery substance from the defendant, and then obtained a search warrant for his home where they discovered cash and additional drugs, resulting in new criminal charges against the defendant. The informant did not testify at the probation hearing. At the conclusion of the hearing, the trial court revoked the defendant’s probation and the defendant appealed.

The trial court’s oral pronouncement only indicated that the revocation was based on the commission of a new criminal offense, but the written findings indicated that the revocation was based on both allegations, so per case precedent the written order was deemed controlling on appeal. The appellate court agreed that pursuant to the Justice Reinvestment Act, the defendant’s probation could not be revoked for using cocaine; instead, the trial court was only authorized to modify his conditions of probation or impose a 90-day CRV, so the order of revocation based on this allegation was reversed. But the state presented sufficient evidence at the hearing that the defendant also committed a new criminal offense by possessing and selling crack cocaine, which would support revoking the defendant’s probation. 

However, rather than affirming the trial court’s order, the appellate court remanded the matter to determine whether the trial court properly exercised its discretion under G.S. 15A-1345(e), which provides that “the probationer may […] confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” (Since this was a probation revocation hearing, only the statutory confrontation right was at issue, rather than the confrontation rights under the Sixth Amendment.) The confidential informant did not testify at the hearing, and the defense objected to the admission of her hearsay statements. The trial court overruled those objections based on “the nature of these proceedings,” and the appellate court held that it was unclear whether that ruling reflected an exercise of discretion and finding of good cause. The court distinguished this case from State v. Jones, 269 N.C. App. 440 (2020), where it had previously held that a failure to find good cause was not reversible error, because in Jones the defendant did not challenge the testimony on this basis and did not request findings of good cause as to why confrontation should not be allowed, so no findings were required.

Judge Tyson concurred in part, finding that the defendant waived his statutory confrontation objection and failed to meet his burden of showing prejudice, and the trial court did not err in revoking the defendant’s probation.

The defendant was on felony probation. During a traffic stop, a law enforcement officer found a pistol in the defendant’s car, which resulted in criminal charges for possession of firearm by a felon and carrying a concealed weapon and the filing of a probation violation report for committing new criminal offenses. In the trial for the new criminal charges, the judge denied the defendant’s motion to suppress the pistol, but the case nonetheless resulted in a mistrial. At the subsequent probation violation hearing, the court found that the defendant committed the alleged criminal offenses and revoked probation. After granting the defendant’s petition for writ of certiorari, the Court of Appeals rejected his argument that he was deprived of the right to confront and cross-examine the law enforcement officer at his probation violation hearing. The right to confront and cross-examine witnesses at a probation violation hearing as provided in G.S. 15A-1345(e) is grounded in a probationer’s Fourteenth Amendment due process rights, which are more flexible than his or her confrontation rights at trial under the Sixth Amendment. As such, the court held that the law enforcement officer’s testimony at the prior motion to suppress was competent evidence of the alleged violations, and that the trial court did not err by finding the new criminal offense violations despite the earlier mistrial. The defendant did not request findings for good cause as to why confrontation should not be allowed, and therefore no such findings were required. The Court of Appeals affirmed the revocation of probation but remanded the case for correction of a clerical error.

(1) In this murder, robbery and assault case, the trial court properly found that a witness was unavailable to testify under Evidence Rule 804 and the Confrontation Clause. The witness, Montes, was arrested in connection with the crimes at issue. She cooperated with officers and gave a statement that incriminated the defendant. She agreed to appear in court and testify against the defendant, but failed to do so. Her whereabouts were unknown to her family, her bondsman and the State. The State successfully moved to allow her recorded statement into evidence on grounds that she was unavailable and that the defendant forfeited his constitutional right to confrontation due to his own wrongdoing. The defendant was convicted and appealed. Considering the issue, the court noted that the evidence rule requires that a finding of unavailability be supported by evidence of process or other reasonable means. To establish unavailability under the Confrontation Clause, there must be evidence that the State made a good-faith effort to obtain the witness’s presence at trial. Here, the State delivered a subpoena for Montes to her lawyer, and Montes agreed to appear in court to testify against the defendant. These findings support a conclusion both that the State used reasonable means and made a good-faith effort to obtain the witness’s presence at trial. 

(2) The trial court properly found that the defendant forfeited his Confrontation Clause rights through wrongdoing. The relevant standard for determining forfeiture by wrongdoing is a preponderance of the evidence and the State met this burden. Here, the defendant made phone calls from jail showing an intent to intimidate Montes into not testifying, and threatened another testifying witness. Additionally, his mother and grandmother, who helped facilitate his threatening calls to Montes, showed up at Montes’ parents’ house before trial to engage in a conversation with her about her testimony. The trial court properly found that the net effect of the defendant’s conduct was to pressure and intimidate Montes into not appearing in court and not testifying.

The trial court properly applied the forfeiture by wrongdoing exception to the Crawford rule. At the defendant’s trial for first-degree murder and kidnapping, an eyewitness named Wilson was excused from testifying further after becoming distraught on the stand. The trial court determined that Wilson’s testimony would remain on the record under the forfeiture by wrongdoing exception and denied the defendant’s motion for a mistrial. At a hearing on the issue Wilson disclosed that, as they were being transported to the courthouse for trial, the defendant threatened to kill Wilson and his family. A detention officer testified that she heard the threat. Also, in a taped interview with detectives and prosecutors, Wilson repeatedly expressed concern for his life and the lives of his family members. Finally, the defendant made several phone calls that showing an intent to intimidate Wilson. In one call to his grandmother, the defendant repeatedly referred to Wilson as “nigger” and said he would “straighten this nigger out”. During the phone calls, the defendant joked about the “slick moves” he used to prevent Wilson from testifying. In other calls, the defendant instructed acquaintances to come to court to intimidate Wilson while he was testifying. One of those acquaintances said he would be in court on the morning of 2 March 2011. On that date, Wilson, who already had been hesitant and fearful on the stand, became even more emotional and “broke down” upon seeing a young man dressed in street clothes indicative of gang attire enter the courtroom. These facts were sufficient to establish that the defendant intended to and did intimidate Wilson. The court rejected the defendant’s argument that application of the doctrine was improper because Wilson never testified that he chose to remain silent out of fear of the defendant. The court stated: “It would be nonsensical to require that a witness testify against a defendant in order to establish that the defendant has intimidated the witness into not testifying. Put simply, if a witness is afraid to testify against a defendant in regard to the crime charged, we believe that witness will surely be afraid to finger the defendant for having threatened the witness, itself a criminal offense.”

In a peeping case, the trial court did not abuse its discretion by allowing the prosecutor to ask leading questions of the victim; the questions were not leading because they did not suggest an answer.

(1) The trial court did not abuse its discretion by allowing the prosecution to use leading questions when examining a child sexual assault victim. The prosecutor was attempting to ask a 14-year-old victim questions about her father’s sexual conduct toward her. She was very reluctant to testify. The prosecutor repeatedly urged the victim to tell the truth, regardless of what her answer would be. The prosecutor attempted to refresh her recollection with her prior statements, but she still refused to specify what the defendant did. The court concluded: “Leading questions were clearly necessary here to develop the witness’s testimony.” (2) The trial court did not err by allowing the prosecutor to ask a 14-year-old child sexual assault victim to write down what the defendant did to her and then allowing the prosecutor to read the note to the jury. Although the child answered some questions, she was reluctant to verbally answer the prosecutor’s question about what the defendant did to her. The prosecutor then asked the victim to write down the answer to the question. The victim wrote that the defendant penetrated her vaginally. 

The prosecutor did not impermissibly vouch for the credibility of a State’s witness by asking whether any promises were made to the witness in exchange for his testimony.

State v. Wade, 198 N.C. App. 257 (July 21, 2009)

The trial judge erred by overruling defense counsel’s objection to a question posed by the prosecutor to a State’s witness alluding to the fact that a superior court judge had found that there was probable cause to search the defendant. The court reiterated the rule that a trial judge’s legal determination on evidence made in a hearing outside of the jury’s presence should not be disclosed to the jury.

The trial court erred when it allowed the State to question its witness on direct examination about whether she had told the truth.

State v. Waring, 364 N.C. 443 (Nov. 5, 2010)

(1) In the guilt phase of a capital trial, the trial court did not err by limiting the defendant’s re-cross-examination of law enforcement officers about whether an alleged accomplice cooperated with the police. The defendant failed to establish how the accomplice’s cooperation was relevant to the defendant’s guilt. Furthermore, the State’s questioning did not elicit responses that required explanation or rebuttal or otherwise opened the door for the defendant’s questions. (2) In the sentencing phase of a capital trial, the trial court did not abuse its discretion by overruling the defendant’s objection to the State’s cross-examination of a defense expert seeking to elicit a concession that other experts might disagree with his opinions regarding whether the defendant was malingering. (3) In the sentencing phase of a capital trial, the trial court did not err by failing to intervene ex mero motu when the prosecutor asked the defendant’s expert witness whether he was ethically obligated to record the defendant’s test results on a score sheet and about the defendant’s scores in the scale for violence potential.

During cross-examination of the complaining witness in a case involving a charge of assault on a female, the defendant began a line of questions to which the State objected. The trial judge excused the jury and conducted a voir dire, during which the defendant’s counsel demonstrated the proposed cross- examination of the witness, including questions about her mental health and treatment. The trial judge ruled that those questions were not relevant and that to the extent they were relevant they were more prejudicial than probative. When cross-examination resumed in front of the jury, the defendant did not attempt to elicit testimony about the witness’s mental health. (1) The Court of Appeals rejected the State’s argument that the defendant failed to preserve for appellate review the issue of the judge’s refusal to allow the testimony. The defendant was not required to elicit the testimony before the jury where, as here, the defendant elicited the testimony in voir dire and secured a ruling from the trial judge. The Court distinguished State v. Coffey, 326 N.C. 268 (1990), where the trial judge conducted a voir dire, ruled that most of the proposed testimony was inadmissible, but indicated that counsel could ask other questions, which the judge would rule on when the questions were asked. When the jurors returned, however, the defendant did not ask any questions, including questions not yet ruled on by the judge. (2) The Court recognized that North Carolina allows cross-examination of a key witness regarding the witness’s past mental problems or defects to challenge the witness’s credibility, citing State v. Williams, 330 N.C. 711 (1992). The Court found in this case that the excluded testimony concerned prior instances of the witness’s mental health and treatment and that one instance involved treatment the witness had sought for childhood trauma; however, the Court stated that the defendant did not ask or attempt to introduce evidence about a mental health diagnosis or mental state. The Court held that the defendant failed to show that the trial judge abused his discretion in finding that the excluded testimony was not relevant or to the extent it was relevant that it was more prejudicial than probative. (3) The defendant argued that the trial judge committed plain error by charging the jury that the alleged assault involved “grabbing, pushing, dragging, kicking, slapping, and/or punching” when the criminal summons alleged “striking her neck and ear.” The Court rejected the defendant’s variance argument because the defendant failed to object to the instruction at trial, did not request that the trial judge including the “striking” language from the summons, and contributed to the variance by proposing that the judge add the words slapping and punching to the instruction.

In this impaired driving second-degree murder case, the trial court did not err by preventing the defendant from cross-examining witness Cooke regarding the contents of a verified complaint that Cooke had filed against the defendant and the estate of the deceased victim on behalf of himself and Cooke’s son, who was injured in the crash. The State filed a motion in limine to prevent the defendant from cross-examining Cooke regarding the contents of the verified civil complaint. The trial court granted the State’s motion and prohibited the defendant from cross-examining Cooke regarding the allegations in the complaint or about any bias that might result from Cooke’s financial interest in the defendant’s prosecution. Cooke was called by the State to testify about his family and the child’s injuries. The State did not elicit any testimony from him regarding cause of the crash and he did not offer any testimony that would tend to sway the jury in deciding the defendant’s guilt. The defendant failed to show that the trial court’s decision to limit the scope of cross-examination influenced the jury’s verdict.

In a felony assault and robbery case, no plain error occurred when the trial court ruled that the defendant could not question the victim about an unrelated first-degree murder charge pending against him in another county at the time of trial. Normally it is error for a trial court to bar a defendant from cross-examining a State’s witness regarding pending criminal charges, even if those charges are unrelated to those at issue. In such a situation, cross-examination can impeach the witness by showing a possible source of bias in his or her testimony, to wit, that the State may have some undue power over the witness by virtue of its ability to control future decisions related to the pending charges. However, in this case the plain error standard applied. Given that the victim’s “credibility was impeached on several fronts at trial” the court found that no plain error occurred. Moreover the court noted, the victim’s most important evidence—his identification of the defendant as the perpetrator—occurred before the murder allegedly committed by the victim took place. As such, the court reasoned, his identification could not have been influenced by the pending charge. For similar reasons the court rejected the defendant’s claim that counsel rendered ineffective assistance by failing to object to the State’s motion in limine to bar cross-examination of the victim about the charge.

In a child sexual assault case in which the victim was the defendant’s son, the trial court erred by allowing the State to cross-examine the defendant with questions summarizing the results of a psychological evaluation, not admitted into evidence, that described the defendant as a psychopathic deviant. The evaluation was done by Milton Kraft, apparently in connection with an investigation and custody case relating to the son. Kraft did not testify at trial and his report was not admitted into evidence. The court rejected the State’s argument that the defendant opened the door to the questioning. The noted testimony occurred on redirect and thus could not open the door to cross-examination. Through cross-examination the State placed before the jury expert evidence that was not otherwise admissible.

In this homicide case, the trial court did not err by allowing the State to question the defendant’s expert witness on automatism regarding the amount of fees he received for testifying in other, unrelated criminal cases. The challenged evidence was relevant to “test partiality towards the party by whom the expert was called.” It explained: “From the large sums of money that [the defendant]’s expert earned by testifying solely on behalf of criminal defendants, a reasonable jury could infer that the expert had an incentive to render opinions favorable to the criminal defendants who employ him.”

The trial court erred by preventing the defendant from making any inquiry into the compensation paid to the State’s expert witness. “The source and amount of a fee paid to an expert witness is a permissible topic for cross-examination, as it allows the opposing party to probe the witnesses’ partiality, if any, towards the party by whom the expert was called.” However, the defendant failed to show “harmful prejudice.”

The trial court did not abuse its discretion by sustaining the State’s objection to the introduction of an unauthenticated screenshot to impeach the victim’s credibility. Although it was permissible for counsel to ask the defendant questions about the screenshot, he could not impeach the victim’s credibility with extrinsic evidence to prove the contents of the screenshot where no foundation had been laid and the materiality of the post had not been demonstrated.

In this child sexual abuse case, the trial court did not impermissibly allow the State to use extrinsic evidence to impeach the defendant on a collateral matter. On cross-examination, the defendant denied that she had told anyone that the victim began masturbating at an early age, given the victim a vibrator, or taught the victim how to masturbate. In rebuttal, the State called a social worker to testify that the defendant told her that the victim started masturbating at age seven or eight and that she gave the victim a vibrator. The defendant’s prior statements were not used solely to impeach but as substantive evidence in the form of admissions.

The trial court did not err by admitting a witness’s out of court statements. When a State’s witness gave trial testimony inconsistent with his prior statements to the police, the State cross-examined him regarding his prior statements. After the witness denied making the statements, the trial court overruled a defense objection and admitted, for purposes of impeachment by the State, a transcript of the witness’s prior statements. The court rejected the argument that this constituted improper use of extrinsic evidence for impeachment. The rule against using extrinsic evidence to impeach a witness on collateral matters prohibits the introduction of the substance of a prior statement to impeach a witness’s denial that he or she made the prior statement because the truth or falsity of that denial was a collateral matter. However, when the witness not only denies making the prior statements but also testifies inconsistently with them, the rule does not prohibit impeaching a witness’s inconsistent testimony with the substance of the prior statements. Here, the substance of the witness’s prior statements properly was admitted to impeach his inconsistent testimony, not his denial.

Once a witness denies having made a prior inconsistent statement, a party may not introduce the prior statement in an attempt to discredit the witness because the prior statement concerns only a collateral matter, i.e., whether the statement was ever made. Here, the defendant cross-examined a witness named Morgan regarding statements Morgan supposedly made to a person named Daughtridge. Morgan admitted making some statements to Daughtridge but denied telling Daughtridge, among other things that the victim had a gun on the day of the shooting. The defendant argued that he should have been allowed to impeach Morgan by introducing a tape recording of a statement Daughtridge gave to the police in which she said that Morgan told her that the victim had a gun on the day of the shooting. Under Rule 608(b), the defendant was limited to Morgan’s answers on cross-examination.

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 818 S.E.2d 718 (2018), the Supreme Court held that the trial court violated the defendant’s Sixth Amendment right to confront witnesses against him. In this murder, robbery with a dangerous weapon, and possession of a firearm by a felon case, the trial judge erred by limiting the defendant’s ability to question the State’s principal witness about whether she expected to receive a favorable plea offer for drug trafficking charges pending in Guilford County in exchange for her testimony against the defendant in Forsyth County. In a voir dire hearing, the defendant showed that prosecutors in the two counties had been in touch by email and discussed a possible plea deal for the witness in Guilford based on her testimony at the defendant’s trial. By limiting the witness’s testimony about this possible deal, the trial court prohibited the jury from considering evidence that could have shown bias on the witness’s part, and thus violated the defendant’s confrontation rights. The court distinguished previous cases in which it had deemed similar errors harmless, reasoning that this involved a limit on the testimony of the State’s principal witness. Moreover there was no physical evidence linking the defendant to the crime and no other witness placing him at the scene. As a result, the court concluded that the trial judge’s error was not harmless beyond a reasonable doubt and affirmed the Court of Appeals’ decision to vacate the verdict and order a new trial.

Justice Ervin, joined by Justice Newby, dissented, writing that the trial judge allowed ample cross-examination of the witness about her pending charges in Guilford County, and that the limitations the court imposed were an appropriate exercise of its discretion to control the scope and extent of cross-examination to prevent confusion and eliminate undue repetition.

In this capital case, the trial court did not err by allowing the State to elicit testimony that defense counsel had previously hired the State’s expert to testify on behalf of another client. The defendant argued that this allowed the State to improperly vouch for its expert’s credibility. The State’s expert testified that he disagreed with a defense expert’s opinion that the defendant suffers from mild intellectual disability. In light of the differences between the experts’ opinions it was proper to elicit testimony regarding potential witness bias or lack thereof. The court noted:

Although the trial court might have been better advised to have exercised its discretionary authority pursuant to . . . Rule 403, to limit the scope of the prosecutor’s inquiry to whether [the State’s expert] had previously worked for counsel representing criminal defendants in general rather than specifically identifying one of defendant’s trial counsel as an attorney to whom [the expert] had provided expert assistance, we are unable to say, given the record before us in this case, that the challenged testimony constituted impermissible prosecutorial vouching for [the expert]’s credibility or that the trial court erred by refusing to preclude the admission of the challenged testimony.

State v. Lewis, 365 N.C. 488 (Apr. 13, 2012)

The trial court abused its discretion by excluding, at a retrial, evidence of remarks that the lead investigator, Detective Roberts, made to a juror at the defendant’s first trial. After the defendant’s conviction, he filed a motion for appropriate relief (MAR) alleging that his trial had been tainted because of improper communication between Roberts and a juror, Deputy Hughes. At a hearing on the MAR, the defendant presented evidence that when his case was called for trial Hughes was in the pool of prospective jurors. While in custody awaiting trial, Hughes had twice transported the defendant to Central Prison in Raleigh. On one of those trips, the defendant told Hughes that he had failed a polygraph examination. Also, Hughes had assisted Roberts in preparing a photographic lineup for the investigation. While undergoing voir dire, Hughes acknowledged that he knew the defendant and had discussed the case with him. While he had misgivings about being a juror, Hughes said that he believed he could be impartial. Because the defendant insisted that Hughes remain on the jury, his lawyer did not exercise a peremptory challenge to remove Hughes from the panel. The evidence at the MAR hearing further showed that during a break in the trial proceedings, Roberts made the following statement to Hughes: “if we have . . . a deputy sheriff for a juror, he would do the right thing. You know he flunked a polygraph test, right?” Hughes did not report this communication to the trial court. Although the trial court denied the MAR, the court of appeals reversed, ordering a new trial. Prior to the retrial, the State filed a motion in limine seeking to suppress all evidence raised in the MAR hearing. Defense counsel opposed the motion, arguing that Roberts’ earlier misconduct was directly relevant to his credibility. The trial court allowed the State’s motion. The defendant was again convicted and appealed. The court of appeals held that the trial court abused its discretion by granting the State’s motion. The supreme court affirmed, holding that the trial court should have allowed defense counsel to cross-examine Roberts regarding his statements to Hughes to show Roberts’ bias against the defendant and pursuant to Rule 608(b) to probe Roberts’ character for untruthfulness. The court went on to reject the State’s argument that the evidence was properly excluded under Rule 403, noting that defense counsel understood that the line of questioning would inform the jurors that the defendant had been convicted in a prior trial but believed the risk was worth taking. Finally, the court held that the trial court’s error prejudiced the defense given Roberts’ significant role in the case. 

In this child sexual assault case, the trial court erred by excluding evidence which tended to show the victim’s mother’s bias against the defendant. After concluding that the defendant failed to preserve his challenges with respect to three pieces of impeachment evidence, the court concluded that exclusion of impeachment evidence that the mother had previously accused the defendant of domestic abuse constituted error. The evidence at issue showed that the mother had accused the defendant of domestic violence, that the police declined to prosecute, that she subsequently took out a private warrant, and that she failed to prosecute those charges. The court agreed that exclusion of this evidence was error, explaining: “Evidence that Mother had accused Defendant of domestic violence could have indicated Mother’s bias against Defendant and may have influenced the jury’s assessment of her credibility as a witness.” However, considering the entire record, the court went on to conclude that there was no reasonable possibility that had the jury heard the evidence a different result would have been reached at trial.

In this child sexual assault case, even if the trial court erred by denying the defendant’s request to admit into evidence three letters to the editor written by the State’s expert witness and published in a newspaper 10 years before the expert’s interview with the child in question, the error was not prejudicial. The defendant contended that the letter showed possible bias or prejudice in child advocacy matters and that he should have been permitted to cross-examine the expert about their content. The court determined however that the defendant had failed to demonstrate a reasonable possibility that a different result at trial would have occurred if the letters have been admitted.

In a felony assault and robbery case, no plain error occurred when the trial court ruled that the defendant could not question the victim about an unrelated first-degree murder charge pending against him in another county at the time of trial. Normally it is error for a trial court to bar a defendant from cross-examining a State’s witness regarding pending criminal charges, even if those charges are unrelated to those at issue. In such a situation, cross-examination can impeach the witness by showing a possible source of bias in his or her testimony, to wit, that the State may have some undue power over the witness by virtue of its ability to control future decisions related to the pending charges. However, in this case the plain error standard applied. Given that the victim’s “credibility was impeached on several fronts at trial” the court found that no plain error occurred. Moreover the court noted, the victim’s most important evidence—his identification of the defendant as the perpetrator—occurred before the murder allegedly committed by the victim took place. As such, the court reasoned, his identification could not have been influenced by the pending charge. For similar reasons the court rejected the defendant’s claim that counsel rendered ineffective assistance by failing to object to the State’s motion in limine to bar cross-examination of the victim about the charge.

(1) The trial court did not abuse its discretion by admitting a recording of a witness’s interview with the police for corroboration and impeachment. The witness in question testified for the State. Although much of her testimony was consistent with her earlier interview, it diverged in some respects. The court rejected the defendant’s argument that the State had called the witness in pretext so as to be able to introduce her prior inconsistent statements as impeachment. In this respect it noted the trial court’s finding that her testimony was “90 percent consistent with what she said before.” Additionally the trial court gave appropriate limiting instructions. The court went on to reject the defendant’s argument that admitting the recording for both corroboration and impeachment is “logically contradictory and counterintuitive,” noting that the State did not introduce a single pretrial statement for both corroboration and impeachment; rather, it introduced a recording of the witness’s interview, which included many pretrial statements, some of which tended to corroborate her testimony and some of which tended to impeach her testimony. (2) The trial court did not abuse its discretion by allowing a detective to read portions of the transcript of the recording. The defendant argued that the trial court’s decision to allow the detective to read portions of the transcript that the State believed were not clearly audible from the recording intruded upon the province of the jury. The court concluded, however, that because the detective interviewed the witness, she had personal knowledge of the interview and could testify about it at trial. Additionally, the trial court gave a proper limiting instruction.

In a murder case, the trial court did not abuse its discretion by allowing the State to impeach two witnesses with their prior inconsistent statements to the police. Both witnesses testified that they were at the scene but did not see the defendant. The State then impeached them with their prior statements to the police putting the defendant at the scene, with one identifying the defendant as the shooter. Both of the witnesses’ statements to the police were material and both witnesses admitted having made them. Use of the inconsistent statements did not constitute subterfuge on the State’s part to present otherwise inadmissible evidence, where there was no evidence indicating that the State was not genuinely surprised by the witnesses’ testimony.

Because the witness admitted having made a prior statement to the police, it was not error to allow the State to impeach her with the prior inconsistent statement when she claimed not to remember what she had said and the trial court gave a limiting instruction. The court distinguished the case from one in which the witness denies having made the prior statement. Even if use of the prior inconsistent statement was error, no prejudice resulted.

The trial court did not err by admitting a witness’s out of court statements. When a State’s witness gave trial testimony inconsistent with his prior statements to the police, the State cross-examined him regarding his prior statements. After the witness denied making the statements, the trial court overruled a defense objection and admitted, for purposes of impeachment by the State, a transcript of the witness’s prior statements. The court rejected the argument that this constituted improper use of extrinsic evidence for impeachment. The rule against using extrinsic evidence to impeach a witness on collateral matters prohibits the introduction of the substance of a prior statement to impeach a witness’s denial that he or she made the prior statement because the truth or falsity of that denial was a collateral matter. However, when the witness not only denies making the prior statements but also testifies inconsistently with them, the rule does not prohibit impeaching a witness’s inconsistent testimony with the substance of the prior statements. Here, the substance of the witness’s prior statements properly was admitted to impeach his inconsistent testimony, not his denial. 

The State properly impeached the defendant with prior inconsistent statements. In this murder case, the defendant claimed that the child victim drowned in a bathtub while the defendant met with a drug dealer. Although the defendant gave statements prior to trial, he never mentioned that meeting. At trial, the State attempted to impeach him with this fact. The court noted that to qualify as inconsistent, the prior statement must have eliminated “a material circumstance presently testified to which would have been natural to mention in the prior statement.” The court noted that the defendant voluntarily gave the police varying explanations for why the child stopped breathing (he threw up and then stopped breathing after falling asleep; he drowned in the tub). An alleged meeting while the child was in the tub would have been natural to include in these prior statements. Thus, the court concluded, his prior inconsistent statements were properly used for impeachment.

The trial court did not abuse its discretion by allowing the State to impeach its own witness where the impeachment was not mere subterfuge to introduce otherwise inadmissible evidence. The court held that it need not decide whether the record showed that the State was genuinely surprised by the witness’s reversal because the witness’s testimony was “vital” to the State’s case and the trial court gave a proper limiting instruction.

The trial court did not err by admitting a witness’s out of court statements. When a State’s witness gave trial testimony inconsistent with his prior statements to the police, the State cross-examined him regarding his prior statements. After the witness denied making the statements, the trial court overruled a defense objection and admitted, for purposes of impeachment by the State, a transcript of the witness’s prior statements. The court rejected the defendant’s argument that the State used the guise of impeaching its own witness as subterfuge for admitting otherwise inadmissible evidence. Distinguishing prior case law, the court noted that the trial judge gave an appropriate limiting instruction, the evidence was important to the State’s case, and nothing suggested that the State expected the witness’s testimony.

The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. 

Testimony from one of the witnesses offered as corroboration of the victim’s testimony included details about additional abuse not testified to by the victim. Distinguishing an omission or silence on a subject from direct contradiction, and noting that the “vast majority” of the witness’s corroborating testimony did conform to the victim’s testimony, the court held that the other witness’s testimony was sufficiently similar to the victim’s and the trial court did not abuse its discretion by admitting it for corroborative purposes. Assuming arguendo that it was error, it was not prejudicial, since other witnesses also testified to corroboration that more closely tracked the victim’s trial testimony. Therefore, the defendant did not show there was a reasonable possibility the jury would have evaluated the victim’s credibility differently without this particular witness’s corroboration.

In this murder case, the trial court did not err by admitting a witness’s prior statement to the police to corroborate his in-court testimony. According to the defendant, the prior statement added “critical facts” that were not otherwise shown by the evidence. The court found that many of the critical facts noted by the defendant were actually present in the witness’s testimony. It found that other facts were not critical, noting that slight variations do not render prior statements inadmissible.

 

The trial court did not err by allowing the introduction of a video recording of the State’s witness being interviewed by law enforcement to corroborate the officer’s prior testimony about the interview.

In this kidnapping and rape case, the defendant’s confrontation rights were not violated when the trial court admitted, for the purposes of corroboration, statements made by deceased victims to law enforcement personnel. The statements were admitted to corroborate statements made by the victims to medical personnel. The court rejected the defendant’s argument that because the statements contained additional information not included in the victims’ statements to medical personnel, they exceeded the proper scope of corroborative evidence and were admitted for substantive purposes. The court noted in part, “the mere fact that a corroborative statement contains additional facts not included in the statement that is being corroborated does not render the corroborative statement inadmissible.” 

(1) The trial court did not abuse its discretion by admitting a recording of a witness’s interview with the police for corroboration and impeachment. The witness in question testified for the State. Although much of her testimony was consistent with her earlier interview, it diverged in some respects. The court rejected the defendant’s argument that the State had called the witness in pretext so as to be able to introduce her prior inconsistent statements as impeachment. In this respect it noted the trial court’s finding that her testimony was “90 percent consistent with what she said before.” Additionally the trial court gave appropriate limiting instructions. The court went on to reject the defendant’s argument that admitting the recording for both corroboration and impeachment is “logically contradictory and counterintuitive,” noting that the State did not introduce a single pretrial statement for both corroboration and impeachment; rather, it introduced a recording of the witness’s interview, which included many pretrial statements, some of which tended to corroborate her testimony and some of which tended to impeach her testimony. 

In this robbery case, the court held that no plain error occurred when the trial court admitted into evidence for purposes of corroboration a videotape of an interview with the defendant’s accomplice, when the accomplice testified at trial. The defendant asserted that the accomplice’s statements in the videotape contradicted rather than corroborated his trial testimony. The court disagreed noting that the accomplice’s statements during the interview established a timeline of the robberies, an account of how they were committed, and the parties’ roles in the crimes and that all of these topics were covered in his testimony at trial. While the accomplice did add the additional detail during the interview that he likely would not have committed the robberies absent the defendant’s involvement, this did not contradict his trial testimony.

The trial court did not abuse its discretion by allowing the State to admit, for purposes of corroboration, a prior consistent statement made by a State’s witness. The court rejected the defendant’s argument that the prior statement differed significantly from the witness’s trial testimony. 

No plain error occurred when the trial court admitted the child victim’s prior statements to corroborate her trial testimony. Any differences between the statements and the victim’s trial testimony were “minor inconsistencies.”

State v. Brown, 211 N.C. App. 427 (May. 3, 2011) aff’d, 365 N.C. 465 (Mar 9 2012)

In a case in which the defendant was charged with sexually assaulting his minor child, the court held that no plain error occurred when the trial judge admitted the victim’s prior statements that at the time in question the defendant sexually assaulted both her and her sister. The victim testified at trial that her sister was present when the assault occurred did not state that the sister was assaulted. Although the victim’s prior statements did not exactly mirror her in-court testimony, they did not contradict it and, in fact, the additional information strengthened and added credibility to her version of the events by explaining and expanding upon the sister’s presence during the incident.

 

A witness’s written statement, admitted to corroborate his trial testimony, was not hearsay. The statement was generally consistent with the witness’s trial testimony. Any points of difference were slight, only affecting credibility, or permissible because they added new or additional information that strengthened and added credibility to the witness’s testimony.

A witness’s out-of-court statement to an officer was properly admitted to corroborate her trial testimony. Although the witness’s out-of-court statement contained information not included in her in-court testimony, the out-of-court statement was generally consistent with her trial testimony and the trial court gave an appropriate limiting instruction. 

State v. Horton, 200 N.C. App. 74 (Sept. 15, 2009)

In a child sexual assault case, prior statements of the victim made to an expert witness regarding “grooming” techniques employed by the defendant were properly admitted to corroborate the victim’s trial testimony. Although the prior statements provided new or additional information, they tended to strengthen the child’s testimony that she had been sexually abused by the defendant.

Officer’s testimony relating an incident of digital penetration described to him by the victim was properly admitted to corroborate victim’s testimony, even though the victim did not mention the incident in her testimony. The victim testified that the first time she remembered the defendant touching her was in the “summer time of 2002” and that he touched her other times including incidents in December 2003 and July 2004. The victim’s established a course of sexual misconduct by defendant and the officer testified to an incident within defendant’s course of conduct that did not directly contradict the victim’s testimony. The officer’s testimony sufficiently strengthened the victim’s testimony to warrant its admission as corroborative evidence. 

In this embezzlement case, the trial court did not commit plain error by allowing a detective to testify regarding the defendant’s post-arrest silence. The defendant opened the door to the testimony by pursuing a line of inquiry on cross-examination centering around the detective’s attempts to contact the defendant before and after her arrest.

State v. Crump, ___ N.C. App. ___, 815 S.E.2d 415 (Apr. 17, 2018) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Dec 18 2020)

In a case involving charges of assault on a law enforcement officer, the trial court did not err by allowing the State to present evidence that an internal police department investigation of the involved officers resulted in no disciplinary actions or demotions. The defendant asserted that this evidence constituted inadmissible hearsay. During a pretrial hearing on the defendant’s motion in limine to exclude this evidence, the defendant noted his intent to open the door during cross-examination and question the officers about their knowledge of the inner workings of such investigations and whether they had conferred with an attorney prior to making their official statements. The trial court noted that this proposed line of questioning would open the door to the State’s introduction of the results of the investigation. However, the defendant maintained his intent to proceed with his line of questioning, and the trial court denied the motion in limine. When the defendant cross-examined the officers about these matters at trial, he opened the door to the evidence at issue.

Because the defendant’s self-serving, exculpatory statement was separate and apart from inculpatory statements he made on other days and that were admitted at trial, the State did not open the door for its admission. 

In a case where the defendant was charged with assaulting a court security officer, no error occurred when the State was allowed to cross-examine the defendant about another criminal proceeding in which he was the prosecuting witness and that he referenced in his direct examination. On direct, the defendant explained that he was at the courthouse on the day in question to find out why the prior case had been dismissed. The court concluded that by testifying about the earlier case on direct, he opened the door to cross-examination. The court rejected the defendant’s argument that the evidence detailing dismissal of the charge constituted a “judicial opinion” on his credibility, reasoning: “a charge may be dismissed for a variety of reasons; for example, a witness’s unimpeached and credible testimony may simply not establish the elements of a criminal offense.”

In a murder case, the trial court did not err by admitting testimony concerning nine-millimeter ammunition and a gun found at the defendant’s house. Evidence concerning the ammunition was relevant because it tended to link the defendant to the scene of the crime, where eleven shell casings of the same brand and caliber were found, thus allowing the jury to infer that the defendant was the perpetrator. The trial court had ruled that evidence of the gun—which was not the murder weapon—was inadmissible and the State complied with this ruling on direct. However, in order to dispel any suggestion that the defendant possessed the nine-millimeter gun used in the shooting, the defendant elicited testimony that a nine-millimeter gun found in his house, in which the nine-millimeter ammunition was found, was not the murder weapon. The court held that the defendant could not challenge the admission of testimony that he first elicited.

In this child sexual abuse case, the trial court did not err by allowing the State to ask a DSS social worker about a 2009 DSS petition alleging that the victim was neglected, sexually abused and dependent where the defendant opened the door to this testimony. Before the witness testified, the defendant had cross-examined two child witnesses about their testimony at the 2009 DSS hearing, pointing out inconsistencies. This cross-examination opened the door for the State to ask the DSS social worker about the 2009 hearing. 

(1) In this child sexual abuse case, the trial court did not err by allowing an emergency room doctor who examined one of the children to testify to the child’s credibility where the defendant elicited this evidence during his own cross-examination. (2) The trial court did not err by allowing into evidence the defendant’s statement that he was investigated in Michigan for similar sexual misconduct decades prior to the current incident. On direct examination the defendant stated that he had “never been in trouble before” and that he had no interaction with the police in connection with a criminal case. These statements opened the door for the State to inquire as to the Michigan investigation.  

In a child sexual assault case in which the victim was the defendant’s son, the trial court erred by allowing the State to cross-examine the defendant with questions summarizing the results of a psychological evaluation, not admitted into evidence, that described the defendant as a psychopathic deviant. The evaluation was done by Milton Kraft, apparently in connection with an investigation and custody case relating to the son. Kraft did not testify at trial and his report was not admitted into evidence. The court rejected the State’s argument that the defendant opened the door to the questioning. The noted testimony occurred on redirect and thus could not open the door to cross-examination. Through cross-examination the State placed before the jury expert evidence that was not otherwise admissible.

The court rejected the State’s argument that the defendant opened the door to admission of otherwise inadmissible hearsay evidence (a 911 call). Reversed and remanded for a new trial.

Any error in connection with the admission of statements elicited from a witness on cross-examination was invited. The defendant, having invited error, waived all right to appellate review, including plain error review.

Although some portion of a videotape of the defendant’s interrogation was inadmissible, the defendant opened the door to the evidence by, among other things, referencing the content of the interview in his own testimony.

The defendant could not complain of the victim’s hearsay statements related by an expert witness in the area of child mental health when the defendant elicited these statements on cross-examination.

The defendant opened the door to the State’s cross-examination of a defense expert regarding prior offenses. On direct examination, the defendant’s psychiatric expert reviewed the defendant’s history of mental illness, including mention of his time in prison in 1996 for robbery. Defense counsel presented evidence as to defendant’s time in prison, the year of the crime, the type of crime, defendant’s time on probation, and a probation violation which returned him to prison. On cross-examination, the State questioned the expert about the defendant’s time in prison, the defendant’s previous “pleas which ultimately sent [defendant] to prison[,]” and the exact dates and times of the incidents, one of which led to the defendant’s incarceration. The defendant raised no objection until the State presented police reports from the defendant’s prior robbery conviction. Because the expert had testified about the robbery, the State could inquire into his knowledge of the events which led to the conviction.

Because the State did not offer a portion of a co-defendant’s inadmissible hearsay statement into evidence, it did not open the door to admission of the statement. The only evidence in the State’s case pertaining to the statement was an officer’s testimony recounting the defendant’s response after being informed that the co-defendant had made a statement to the police.

In a sexual exploitation of a minor and indecent liberties case, the defendant opened the door to admission of hearsay statements by the child victim and her babysitter.

In this child sexual assault case, the trial court did not abuse its discretion by denying the defendant’s request to present a rebuttal witness. Because the trial court permitted other testimony that established the same facts that the defendant sought from the rebuttal witness, the defendant failed to show that the trial court abused its discretion.

State v. Ellison, 213 N.C. App. 300 (July 19, 2011) aff'd on other grounds, 366 N.C. 439 ()

In a drug trafficking case, the trial court did not abuse its discretion by allowing the State’s witness to identify the substance as an opium derivative on rebuttal. Under G.S. 15A-1226, a trial judge may, in his or her discretion, permit a party to introduce additional evidence prior to the verdict and offer new evidence which could have been offered in the party’s case in chief or during a previous rebuttal as long as the opposing party is permitted further rebuttal.

State v. Towe, 210 N.C. App. 430 (Mar. 15, 2011) aff'd on other grounds, 366 N.C. 56 (Jun 14 2012)

Remanding for other reasons, the court admonished the trial court to carefully determine the materiality of each purpose for which 404(b) evidence is offered. The trial court had remarked that the incidents could show motive, identity, and common plan or scheme. The court noted: “admission of this evidence was clearly problematic in at least one respect: the trial court failed to determine whether the purposes for which the evidence was offered were at issue.” The court clarified that the defendant’s identity is not at issue when the case hinges on whether the alleged crime occurred, but it may be at issue when the defendant contends someone else committed the alleged crime. Motive is at issue, it explained, when a defendant denies committing the crime charged.

The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed. 

The trial court did not err in admitting evidence of a prior similar crime to prove the defendant’s identity under Rules of Evidence 401, 403, and 404. Evidence was presented at trial showing that the defendant committed crimes similar to those for which he was being tried (although he was not formally charged with these other bad acts). The defendant argued there was insufficient evidence that he committed the alleged acts and that the evidence violated the ban on propensity evidence in Rule 404(b). Rejecting this contention, the court found that the modus operandi of the prior crime was substantially similar to the current case and was admissible to show the defendant’s identity as the perpetrator. Specifically, the incidents shared the following characteristics:

(1) [T]he perpetrator wore a Jason-style white hockey mask with holes in it, similar to the one seized from defendant in Colorado; (2) the targets were all suspected drug dealers or living with suspected drug dealers; (3) the attacks all took place at night in the victims’ homes; (4) defendant had an accomplice; and (5) the incidents had both temporal and geographic proximity, most of them taking place within a month or two of each other, and within the same city.

Additionally, forensics from the incident recounted by the 404(b) witness matched the gun found on the defendant in Colorado. “All of this evidence supports a reasoned conclusion defendant was the perpetrator in this incident, and the common modus operandi helps establish his identity in the crimes he was charged with.” This was relevant evidence, and the court did not abuse its discretion in determining the evidence was more probative than prejudicial.

In this drug trafficking case in which the defendant was prosecuted for possessing and transporting drugs in his car, the trial court erred by admitting evidence of drug contraband found in a home. The defendant picked up two boxes from suspected drug trafficker Travion Stokes, put them in his car, was stopped by officers and was charged with drug crimes in connection with controlled substances found in the boxes. The defendant claimed that he did not know what was in the boxes and that he was simply doing a favor for Stokes by bringing them to a home on Shellburne Drive. The police got a warrant for the home at Shellburne Drive and found drug contraband there. The State successfully admitted this evidence over the defendant’s objection at trial under Rule 404(b) to show the defendant’s knowledge that the boxes he was transporting contained controlled substances. Relying on State v. Moctezuma, 141 N.C. App. 90 (2000), the court held this was error, finding that no evidence connected the defendant to the contraband found in the Shellburne Drive home. 

In this child sexual assault case, the trial court did not err by admitting Rule 404(b) evidence regarding a sexual assault perpetrated by the defendant on another child, Katy. The case being tried involved vaginal intercourse and other acts with a child victim. The 404(b) evidence involved in anal intercourse with Katy. The State offered Katy’s testimony to establish that the defendant had a common scheme or plan to commit assaults on young females. The trial court allowed the evidence for that purpose. On appeal, the court rejected the defendant’s argument that the acts were too dissimilar, noting: both the victim and Katy are the same sex; the defendant allegedly had forcible intercourse with both victims; the assaults took place in the early morning; and in both incidents, the defendant was a guest in the homes where the children were staying, he entered their bedrooms after midnight, and later bribed them for their silence. The court went on to hold that the evidence was admissible under Rule 403, rejecting the defendant’s argument that testimony of anal intercourse of a child by an adult improperly inflamed the jury.

 

Reversing State v. Beckelheimer, 211 N.C. App. 362 (Apr. 19, 2011), the court held that the trial judge did not err by admitting 404(b) evidence. The defendant was charged with sexual offense and indecent liberties. At the time of the alleged offense the defendant was 27. The victim was the defendant’s 11-year-old male cousin. The victim testified that after inviting him to the defendant’s bedroom to play video games, the defendant climbed on top of the victim and pretended to be asleep. He placed his hands in the victim’s pants, unzipped the victim’s pants, and performed oral sex on the victim while holding him down. The victim testified that on at least two prior occasions the defendant placed his hands on the victim’s genital area outside of his clothes while pretending to be asleep. At trial, witness Branson testified about sexual activity between himself and the defendant. Branson, then 24 years old, testified that when he was younger than 13 years old, the defendant, who was 4½ years older, performed various sexual acts on him. Branson and the defendant would play video games together and spend time in the defendant’s bedroom. Branson described a series of incidents during which the defendant first touched Branson’s genital area outside of his clothes while pretending to be asleep and then reached inside his pants to touch his genitals and performed oral sex on him. Branson also related an incident in which he performed oral sex on the defendant in an effort to stop the defendant from digital anal penetration. The court found that Branson’s testimony was properly admitted to show modus operandi. The conduct was sufficiently similar to the acts at issue given the victim’s ages, where they occurred, and how they were brought about. The court of appeals improperly focused on the differences between the acts rather than their similarities (among other things, the court of appeals viewed the acts with Branson as consensual and those with the victim as non-consensual and relied on the fact that the defendant was only 4½ years older than Branson but 16 years older than the victim). The court went on to conclude that given the similarities between the incidents, the remoteness in time was not so significant as to render the prior acts irrelevant and that the temporal proximity of the acts was a question of evidentiary weight. Finally, the court held that the trial court did not abuse its discretion by admitting the evidence under Rule 403.

In this Cabarrus County case, the defendant was convicted of first-degree kidnapping and second-degree rape. After developing a friendship with the victim, he drugged her without her knowledge, took her to a friend’s house and raped her. The defendant appealed, raising numerous challenges.

(1) The defendant argued there was insufficient evidence to support his convictions and that his motion to dismiss should have been granted. He did not raise an argument about the rape conviction on appeal. Any argument as to the sufficiency of evidence for that offense was therefore deemed abandoned and waived. As to the kidnapping conviction, the defendant argued he could not be sentenced for both kidnapping and the rape as a matter of double jeopardy, since the rape was used to elevate the kidnapping to first degree. “The proper remedy in the event of conviction of first-degree kidnapping and the sexual assault that constitutes an element of first-degree kidnapping is to arrest judgement on the first-degree kidnapping and resentence the defendant for second-degree kidnapping.” Slip op. at 10-11 (citation omitted). While the defendant correctly noted this rule, the court found it inapplicable to the defendant’s case. The State’s evidence showed at least two distinct sexual assaults. In addition to the rape, the defendant also committed a separate sexual battery, and that offense was used to elevate the kidnapping offense to first-degree (and not the rape). Following the sexual battery in one room, the defendant moved the victim to another room to commit the rape. This showed separate and distinct offenses. The trial court also correctly instructed the jury on these principles and its instructions required the jury to find a separate and distinct sexual battery in support of the first-degree kidnapping. Because the defendant was not convicted of the underlying sexual battery used to support the first-degree kidnapping, double jeopardy did not preclude separate punishments for the distinct rape and kidnapping.

(2) The was also sufficient evidence to support the aggravating factor that the defendant took advantage of a position of trust to accomplish the crimes. The Court of Appeals noted it “has upheld a finding of the ‘trust or confidence’ factor in very limited factual circumstances.” Id. at 18 (citation omitted). Here, the State presented sufficient evidence of the factor in aggravation. The defendant was a family friend and was close with the victim. Evidence showed the defendant gave the victim’s family Christmas gifts, checked on family members, frequently spent time with the victim and advised her on various matters, among other connections. This was sufficient to demonstrate a position of trust over the victim which the defendant exploited in order to commit the crimes.

(3) The two sisters of the victim testified to prior instances of sexual assault by the defendant towards each of them. The trial court admitted this evidence pursuant to Rule 404(b) of the Rules of Evidence as proof of a common plan or scheme by the defendant. The defendant raped one of the sisters in a nearly identical manner as the victim and committed sexual battery upon the other sister “in a manner indicating an intent to go further.” Id. at 21. Like with the victim, the defendant developed a position of trust with each of the sisters before committing sexual assaults on them. The trial court therefore correctly determined the prior bad acts were substantially similar to the circumstances of the current offense. The assaults occurred 10 and 8 years before the events of the current case. The court agreed with the trial judge that this evidence was not too remote in time to satisfy the requirements of Rule 404(b):

Our Supreme Court has held that ‘[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than disprove, the existence of a plan’ rendering the prior bad acts ‘not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually.’ Id. at 22 (citation omitted) (emphasis in original).

 The evidence showed the defendant’s acts were continuous over the course of time and therefore not too remote in time to be admitted under Rule 404(b). The trial court also conducted the necessary balancing under Rule 403 of the Rules of Evidence to determine the testimony was not more prejudicial than probative and instructed the jury about the limited purpose of the evidence. The admission of this evidence was therefore not error or an abuse of discretion.

(4) The defendant argued that the admission of toxicology results by way of a substitute analyst violated his Sixth Amendment rights to confrontation. The court disagreed, noting the rule on substitute analyst testimony:

[A]n expert witness may testify as to the testing or analysis conducted by another expert if: (i) that information is reasonably relied on by experts in the field in forming their opinions; and (ii) the testifying expert witness independently reviewed the information and reached his or her own conclusion in this case. Id. at 26 (citation omitted).

The evidence showed that the substitute analyst reviewed the results of the testing done by the non-testifying analysts and formed his own opinion about the results. “Thus, [the analyst’s] opinion was based on his own analysis and not merely surrogate testimony for an otherwise inadmissible lab report . . .” Id. at 31. Under these circumstances, the defendant was not entitled to cross-examine the analysts who actually performed the testing. According to the court, "when an expert gives an opinion, the opinion is the substantive evidence, and the expert is the witness whom the defendant has the right to confront.” Id. Because the expert opinion was properly admitted and the defendant was able to cross-examine that expert, there was no violation of the defendant’s confrontation rights.

(5a) The indictment for second-degree rape identified the victim only by reference to her initials, and the defendant argued this constituted a fatal indictment defect for failure to identify the victim.  He pointed to a recent case holding that “Victim #1” was insufficient to identify the victim. State v. McKoy, 196 N.C. App. 650, 654 (2009), foreclosed this argument. Citing from that case, the court observed: 

[W]here the statutes defining second-degree rape and second-degree sexual offense require the offenses to be against ‘another person,’ the indictments charging these offenses do not need to state the victim’s full name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Id.

Unlike the situation where the indictment names only a “victim,” the use of initials sufficed to identify the victim and did not constitute a fatal defect. [Jeff Welty blogged about the use of initials in charging documents here.]

(5b) The first-degree kidnapping indictment was also not defective. The defendant claimed a fatal flaw based on the indictment’s failure to identify the specific crime constituting the sexual assault for purposes of first-degree kidnapping. There is no requirement that an indictment for first-degree kidnapping identify the felony used to enhance the offense to first-degree. The indictment was otherwise sufficient to put the defendant on notice and was valid in all respects. 

(6) The trial court’s instructions to the jury on the existence of the aggravating factor violated G.S. § 15A-1340.16(d). That statute provides in pertinent part that evidence used at trial to support the existence of an element of the offense may not thereafter be used to prove a factor in aggravation. The jury instructions permitted the jury to consider “all of the evidence,” rather than limiting its consideration to evidence not used to support the intent requirements for the two crimes. The defendant did not object to the instructions at the time and alleged plain error on appeal. Plain error requires that the defendant demonstrate “a reasonable possibility that, had the instruction been given, the jury would have failed to find the existence of the aggravating factor.” Id. at 36. The court noted that occupying a position of trust is not an element of either of the crimes at issue and rejected the contention that the same evidence was used to prove both the intent to commit the crimes and the aggravating factor. The defendant could not demonstrate the possibility of a different result absent the instructions on the aggravating factor, and accordingly could not demonstrate prejudice for plain error.

(7) The defendant’s argument that his objections to an order requiring him to enroll in satellite-based monitoring (“SBM”) were improperly overruled were abandoned on appeal, because the defendant failed to raise any argument for this issue.

A majority of the court determined there were no reversible error in the trial and the convictions were affirmed.

Judge Murphy dissented in part. He wrote separately to note his disagreement with the majority’s analysis of the Confrontation Clause issue. Judge Murphy would have granted a new trial based on the Sixth Amendment violation and would have held the plain error jury instruction issue in (5) above, as well as the SBM issue in (6), were therefore moot. He otherwise concurred in the majority’s judgment.

In this child sexual assault case, the trial court did not err by admitting 404(b) evidence. In 2016, the victim reported to law enforcement that the defendant sexually assaulted her many times when she was a child, including a final incident on or about May 2004 when she was 12 years old. During the ensuing investigation, the victim recorded the defendant making incriminating statements. The defendant was indicted for first-degree sex offense with a child for the 2004 incident. At trial, the victim testified to the May 2004 incident, describing digital penetration. The victim also testified to an incident of digital penetration by the defendant that occurred a month or two prior to the May 2004 incident (“the bed incident”), and to another incident of digital penetration about two years earlier (the “Lick Mountain incident”). The victim also testified about watching pornography with the defendant on multiple occasions prior to the May 2004 incident during which the defendant would put her hand on his penis. Additionally the recorded conversation between the victim and the defendant was introduced at trial. In that recording the defendant asked the victim if she remembered “[t]he first hand [ride] you ever took” and admitted remembering watching pornography with the victim. The defendant was found guilty and he appealed.

          The court found that evidence of the bed incident and the Lick Mountain incident were properly admitted under Rule 404(b). All three incidents involved the same victim, the same type of penetration, and all occurred while the victim was under the defendant’s supervision. Thus the incidents were sufficiently similar to the one in question to show a common scheme or plan to take advantage of the victim by digitally penetrating her while she was under his control.

          The court rejected the defendant’s argument that the Lick Mountain incident was too remote in time to the May 2004 incident. Although that incident occurred 2 or 3 years prior, that period of time did not eliminate the probative value of the incident, particularly in light of its striking similarity to the May 2004 incident.

         The court also rejected the argument that the trial court abused its discretion by allowing evidence of the bed incident and Lick Mountain incidents over a Rule 403 objection.

         With respect to the portion of the recording regarding the “hand ride,” the defendant argued that this evidence was inadmissible because the date of the incident was not provided. The court concluded however that because of the similarity of this incident to the other events, the trial court did not err by admitting the statement on grounds of temporal proximity.

         With respect to the evidence regarding watching pornography together, the court held that even assuming this evidence was erroneously admitted, the defendant failed to establish prejudice in light of the overwhelming evidence of guilt.

In this child abuse case, the trial court did not abuse its discretion by admitting evidence regarding consensual sexual activity between the defendant and his wife. Here, after the child described to the wife a sexual act performed by the defendant, the wife signed a statement indicating that she and the defendant had engaged in the same act. The act in question was to turn her over on her stomach and “hump” and ejaculate on her back. The wife’s testimony was admissible to show common scheme or plan, pattern and/or common modus operandi and was sufficiently similar to the child’s allegation of sexual abuse. The court distinguished this case from one involving “a categorical or easily-defined sexual act” such as anal sex. Here, the case involved “a more unique sexual act.” 

In this felony indecent exposure case where the defendant exposed himself to a 14-year old boy, his mother and grandmother, the trial court did not err by admitting 404(b) evidence from two adult women who testified that the defendant exposed himself in public on other occasions. The court rejected the defendant’s argument that the other acts were insufficiently similar to the charged conduct and only “generic features of the charge of indecent exposure,” noting that the 404(b) testimony revealed that the defendant exposed himself to adult women, who were either alone or in pairs, in or in the vicinity of businesses near the courthouse in downtown Fayetteville, and each instance involved the defendant exposing his genitals with his hand on or under his penis. The court also rejected the defendant’s argument that because the current charge was elevated because the exposure occurred in the presence of a child under 16 and the prior incidents involved adult women, the were not sufficiently similar, noting that the defendant acknowledged in his brief that in this case he did in fact expose himself to an adult woman as well. The court also rejected the defendant’s argument that the evidence should have been excluded under the Rule 403 balancing test.

In this child sexual abuse case, the trial court properly admitted 404(b) evidence from several witnesses. As to two of the witnesses, the defendant argued that the incidents they described were too remote and insufficiently similar. The court concluded that although the sexual abuse of these witnesses occurred 10-20 years prior to trial, the lapses of time between the instances of sexual misconduct involving the witnesses and the victims can be explained by the defendant's incarceration and lack of access to a victim. Furthermore, there are several similarities between what happened to the witnesses and what happened to the victims: each victim was a minor female who was either the daughter or the niece of the defendant's spouse or live-in girlfriend; the abuse frequently occurred at the defendant's residence, at night, and while others slept nearby; and the defendant threatened each victim not to tell anyone. When considered as a whole, the testimony shows that the defendant engaged in a pattern of conduct of sexual abuse over a long period of time and the evidence meets Rule 404(b)’s requirements of similarity and temporal proximity. Testimony by a third witness was properly admitted under Rule 404(b) where it “involved substantially similar acts by defendant against the same victim and within the same time period.” The trial court also performed the proper Rule 403 balancing and gave a proper limiting instruction to the jury.

In a sexual exploitation of a minor case, the trial court did not commit plain error by admitting evidence that the defendant set up a webcam in a teenager’s room; videotaped her dancing in her pajamas; and inappropriately touched her while they rode four-wheelers. Although the court had an issue with the third piece of evidence, it concluded that any error did not rise to the level of plain error.

In a child sex case, the trial court did not err by allowing a child witness, A.L., to testify to sexual intercourse with the defendant. The court found the incidents sufficiently similar, noting among other things, that A.L. was assaulted in the same car as K.C. Although A.L. testified that the sex was consensual, she was fourteen years old at the time and thus could not legally consent to the sexual intercourse. The court found the seven-year gap between the incidents did not make the incident with A.L. too remote.

State v. Walston, 229 N.C. App. 141 (Aug. 30, 2013) rev’d on other grounds, 367 N.C. 721 (Dec 19 2014)

In a child sex case, the trial court did not err by admitting 404(b) evidence of the defendant’s prior sexual conduct. The court found the prior acts sufficiently similar and that the requirement of temporal proximity was met. 

In an involuntary manslaughter case where the victim, who was under 21, died from alcohol poisoning and the defendant was alleged to have aided and abetted the victim in the possession or consumption of alcohol, the trial court did not err by admitting 404(b) evidence that the defendant provided her home as a place for underage individuals, including the victim, to possess and consume alcohol; that the defendant offered the victim and other underage persons alcohol at parties; that the defendant purchased alcohol at a grocery store while accompanied by the victim; and the defendant was cited for aiding and abetting the victim and other underage persons to possess or consume alcohol one week before the victim’s death. The evidence was relevant to prove plan, knowledge, and absence of mistake or accident.

In a child sex case involving a female victim, the trial court did not err by admitting 404(b) evidence in the form of testimony from another female child (E.S.) who recounted the defendant’s sexual activity with her. The evidence was relevant to show plan and intent. Because the defendant’s conduct with E.S. took place within the same time period as the charged offenses and with a young girl of similar age, it tends to make more probable the existence of a plan or intent to engage in sexual activity with young girls. Additionally, the defendant’s plan to engage in sexual activity with young girls was relevant to the charges being tried. Finally, there was no abuse of discretion under the Rule 403 balancing test. On the issue of similarity, the court focused on the fact both E.S. and the victim were the same age and that the defendant was an adult; there was no discussion of the similarity of the actual acts.

In sexual assault case involving a child victim, no error occurred when the trial court admitted 404(b) evidence that the defendant engaged in sexual contact with another child to show common plan or scheme. The court rejected the defendant’s argument that the acts were not sufficiently similar, concluding that both incidents occurred while the victims were in the care of the defendant, their grandfather; the victims were around the same age when the conduct began; for both victims, the conduct occurred more than once; and with both victims, the defendant initiated the conduct by talking to them about whether they were old enough for him to touch their private parts. The court also determined that the acts met the temporal proximity requirement.

In a case in which the defendant was charged with sexual offense, indecent liberties and crime against nature against a ten-year-old female victim, no plain error occurred when the trial court admitted evidence of the defendant’s prior bad acts against two other teenaged females. The evidence was introduced to show common scheme or plan, identity, lack of mistake, motive and intent. The defendant’s acts with respect to the victim and the first female were similar: the defendant had a strong personal relationship with one of their parents, used the threat of parental disbelief and disapproval to coerce submission and silence, initiated sexual conduct after wrestling or roughhousing, digitally penetrated her vagina, and forced her to masturbate him. Only two years separated the incidents and both involved a similar escalation of sexual acts. As to the evidence of the prior bad acts with the second female — that the defendant kissed her when she was thirteen — the court held that admission of that testimony was not plain error. 

In a child sexual abuse case involving a female victim, the trial court did not err by allowing testimony from four individuals (three females and one male) that the defendant sexually abused them when they were children. The events occurred 14, 21, and 27 years prior to the abuse at issue. Citing State v. Jacob, 113 N.C. App. 605 (1994), and State v. Frazier, 121 N.C. App. 1 (1995), the court rejected the defendant’s argument that the evidence lacked sufficient temporal proximity to the events in question. The challenged testimony, showing common plan, established a strikingly similar pattern of sexually abusive behavior by the defendant over a period of 31 years in that: the defendant was married to each of the witnesses' mothers or aunt; the victims were prepubescent; the incidents occurred when the defendant's wife was at work and he was watching the children; and the abuse involved fondling, fellatio, or cunnilingus, mostly taking place in the defendant's wife's bed. Although there was a significant gap in time between the last abuse and the events in question, that gap was the result of defendant's not having access to children related to his wife and thus did not preclude admission under Rule 404(b). Finally, the court held that trial judge did not abuse his discretion by admitting this evidence under Rule 403.

State v. Brown, 365 N.C. 465 (Mar. 9, 2012)

In a per curiam opinion, the court affirmed the decision below in State v. Brown, 211 N.C. App. 427 (May 3, 2011) (in a case in which the defendant was charged with sexually assaulting his minor child, the court rejected the defendant’s argument that the trial court erred by admitting evidence that he possessed pornographic materials (“Family Letters,” a publication purporting to contain letters regarding individuals’ sexual exploits with family members); the defendant argued that the evidence was inadmissible under Rule 404(b) absent a showing that he used the materials during the crimes or showed them to the victim at or near the time of the crimes; the court concluded that the evidence was properly admitted to show motive and intent; as to motive, it stated: “evidence of a defendant’s incestuous pornography collection sheds light on that defendant’s desire to engage in an incestuous relationship, and that desire serves as evidence of that defendant’s motive to commit the underlying act – engaging in sexual intercourse with the victim/defendant’s child – constituting the offense charged”; as to intent, it concluded that the defendant’s desire to engage in incestuous sexual relations may reasonably be inferred from his possession of the incestuous pornography, a fact relevant to the attempted rape charge; the court also found the evidence relevant to show a purpose of arousing or gratifying sexual desire in connection with an indecent liberties charge; finally, the court concluded that the evidence passed the Rule 403 balancing test, noting that it was admitted with a limiting instruction).

In a child sex case, the trial court did not err by admitting adult pornography found in the defendant’s home to establish motive or intent where the defendant showed the victim both child and adult pornography. Furthermore the trial court did not abuse its discretion by admitting this evidence under Rule 403. The trial court limited the number of magazines that were admitted and gave an appropriate limiting instruction. 

(1) In this sexual assault case involving allegations that the defendant, a high school wrestling coach, sexually assaulted wrestlers, the trial court did not err by admitting, under Rule 404(b), evidence that the defendant engaged in hazing techniques against his wrestlers. The evidence involved testimony from wrestlers that the defendant choked-out and gave extreme wedgies to his wrestlers, and engaged in a variety of hazing activity, including instructing upperclassmen to apply muscle cream to younger wrestlers’ genitals and buttocks. The evidence was properly admitted to show that the defendant engaged in “grooming behavior” to prepare his victims for sexual activity. The court so concluded even though the hazing techniques were not overtly sexual or pornographic, noting: “when a defendant is charged with a sex crime, 404(b) evidence … does not necessarily need to be limited to other instances of sexual misconduct.” It concluded: “the hazing testimony tended to show that Defendant exerted great physical and psychological power over his students, singled out smaller and younger wrestlers for particularly harsh treatment, and subjected them to degrading and often quasi-sexual situations. Whether sexual in nature or not, and regardless of whether some wrestlers allegedly were not victimized to the same extent as the complainants, the hazing testimony had probative value beyond the question of whether Defendant had a propensity for aberrant behavior (quotations and citations omitted).” (2) The trial court did not abuse its discretion by admitting the hazing testimony under Rule 403, given that the evidence was “highly probative” of the defendant’s intent, plan, or scheme to carry out the charged offenses. The court noted however “that the State eventually could have run afoul of Rule 403 had it continued to spend more time at trial on the hazing testimony or had it elicited a similar amount of 404(b) testimony on ancillary, prejudicial matters that had little or no probative value regarding the Defendant’s guilt” (citing State v. Hembree, 367 N.C. 2 (2015) (new trial where in part because the trial court “allow[ed] the admission of an excessive amount” of 404(b) evidence regarding “a victim for whose murder the accused was not currently being tried”)). However, the court concluded that did not occur here.

In a counterfeit controlled substance case where the defendant was alleged to have sold tramadol hydrochloride, representing it to be Vicodin, evidence that he also possessed Epsom salt in a baggie was properly admitted under Rule 404(b). The salt bore a sufficient similarity to crack cocaine in appearance and packaging that it caused an officer to do a field test to determine if it was cocaine. Under these circumstances, evidence that the defendant possessed the salt was probative of intent, plan, scheme, and modus operandi.

State v. Locklear, 363 N.C. 438 (Aug. 28, 2009)

In this capital murder case, the trial court did not err in admitting evidence that the defendant committed another murder 32 months earlier. Evidence of the prior murder was admitted to show knowledge, plan, opportunity, modus operandi, and motive. The court found the two crimes sufficiently similar and rejected the defendant’s argument that because the trial court declined to join the offenses for trial, they lacked the necessary similarity. The court noted that remoteness is less significant when the prior bad act is used to show intent, motive, knowledge, or lack of accident and that it generally goes to weight not admissibility.

The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed. 

The trial court did not err in admitting evidence of a prior similar crime to prove the defendant’s identity under Rules of Evidence 401, 403, and 404. Evidence was presented at trial showing that the defendant committed crimes similar to those for which he was being tried (although he was not formally charged with these other bad acts). The defendant argued there was insufficient evidence that he committed the alleged acts and that the evidence violated the ban on propensity evidence in Rule 404(b). Rejecting this contention, the court found that the modus operandi of the prior crime was substantially similar to the current case and was admissible to show the defendant’s identity as the perpetrator. Specifically, the incidents shared the following characteristics:

(1) [T]he perpetrator wore a Jason-style white hockey mask with holes in it, similar to the one seized from defendant in Colorado; (2) the targets were all suspected drug dealers or living with suspected drug dealers; (3) the attacks all took place at night in the victims’ homes; (4) defendant had an accomplice; and (5) the incidents had both temporal and geographic proximity, most of them taking place within a month or two of each other, and within the same city.

Additionally, forensics from the incident recounted by the 404(b) witness matched the gun found on the defendant in Colorado. “All of this evidence supports a reasoned conclusion defendant was the perpetrator in this incident, and the common modus operandi helps establish his identity in the crimes he was charged with.” This was relevant evidence, and the court did not abuse its discretion in determining the evidence was more probative than prejudicial.

(1) In this non-capital first-degree murder case where the defendant was convicted of murdering a former girlfriend Sellars, the trial court did not err by admitting 404(b) testimony from the defendant’s former girlfriend Crisp and former wife Lewis about assaults that the defendant committed on them. The evidence was admitted to show motive, intent, modus operandi, and identity. The requirement of similarity was satisfied. Among other things, the trial court’s findings of fact identified “location similarities between the incidents.” The defendant’s assaults of Crisp and Lewis occurred in isolated areas, and Sellars’ remains were found on one of the roads in an isolated area where the defendant assaulted Crisp. With respect to remoteness, the defendant’s assaults on Crisp occurred from 1990-1993; the assaults on Lewis occurred from 1996-1999; and Sellars’ death occurred in 2012, 13 years after the last assault. Subtracting 4 years that the defendant spent in prison, leaves a 9 year gap. The court concluded that assaults on multiple victims over time with relatively short gaps in between show a pattern of behavior, and that the evidence satisfied the temporal proximity requirement of the Rule 404(b) analysis. The court went on to find that the trial court did not abuse its discretion by finding that the 404 evidence satisfied Rule 403.

(2) The trial court did not err by instructing the jury that it could use of evidence of the defendant’s prior assaults on the victim to show identity. Multiple witnesses testified regarding the defendant’s abuse of the victim prior to her murder and the defendant’s prior assaults on her arose in the context of a relationship in which the defendant used violence to control her behavior. This evidence was properly admitted to show identity.

In this case where the defendant was convicted of stalking victim Lorrie, with whom the defendant had a dating relationship, the trial court did not commit plain error by introducing 404(b) evidence from Holly, the defendant’s ex-girlfriend. The defendant argued that the trial court erred in failing to exclude Holly’s testimony that the defendant had assaulted her in the past, that she was afraid of the defendant, and that the defendant told Holly “he would never be arrested again” and “he would not be taken alive.” The court disagreed, finding that Holly’s testimony established that Lorrie was in reasonable fear of the defendant. Holly testified to texting Lorrie about the assault and warning Lorrie to be careful, and that Holly herself was afraid of the defendant. This testimony demonstrates both that Lorrie had a legitimate basis for her fear of the defendant and that her fear was reasonable as required by the stalking statute. Similarly, the court noted, the defendant’s statements to Holly¾that “he would never be arrested again” and “he would not be taken alive”¾were made in reference to the assault and further illustrate a course of conduct that would cause a reasonable person to fear for her safety.

In this case where the defendant was convicted of second-degree murder for killing her boyfriend, the trial court did not err by introducing 404(b) evidence pertaining to an incident between the defendant and another boyfriend, Walker, which occurred 14 months before the events in question. The court found strong similarities between the incidents, noting that both involved the defendant and her current boyfriend; the escalation of an argument that led to the use of force; the defendant’s further escalation of the argument; and the defendant’s deliberate decision to obtain a knife from the kitchen. Given these similarities, the court found that the Walker evidence was probative of the defendant’s motive, intent, and plan. Next, the court found that the prior incident was not too remote.

State v. Foust, 220 N.C. App. 63 (Apr. 17, 2012)

In a rape case, the trial court did not err by admitting evidence that the defendant assaulted a male visiting the victim’s home and called the victim a whore and slut upon arriving at her house and finding a male visitor. Rejecting the defendant’s argument that these incidents bore no similarity to the rape at issue, the court noted that the victim was present for both incidents and that her state of mind was relevant to why she did not immediately report the rape.

In a case in which the defendant was found guilty of felonious child abuse inflicting serious bodily injury and first-degree murder, the trial court did not abuse its discretion by admitting 404(b) evidence showing that the defendant engaged in continual and systematic abuse of her other children to show a common plan, scheme, system or design to inflict cruel suffering for the purpose of punishment, persuasion, and sadistic pleasure; motive; malice; intent; and lack of accident.

In a murder case, evidence of an assault committed by the defendant two days before the murder was admissible to show identity when ballistics evidence showed that the same weapon was used in both the murder and the assault. The court rejected the defendant’s argument that the probative value of the prior assault was diminished because of the dissimilarity of the incidents.

In this Mecklenburg County case, the defendant was convicted of first-degree murder and possession of a firearm by a felon for shooting and killing Oren Reed. Reed’s aunt found his body in a pool of blood inside the backdoor of his home around 5 p.m. on November 21, 2013. The doorframe for the backdoor was splintered, and glass and bullet shells were on the ground. The State introduced evidence at trial that the previous day someone had kicked in the side door to Chris Townsend’s house, breaking the door frame, and had stolen a revolver and bullets. Other evidence showed that the stolen gun, found in defendant’s possession when he was arrested, was used to fire 22 of the 23 spent cartridges at Reed’s residence. An expert testified that two of the bullets recovered from Reed’s body shared similar class and characteristics as bullets fired from this gun. 

(1) On appeal, the defendant argued that the trial court committed plain error by admitting evidence of the break-in at the Townsend residence. The Court of Appeals rejected that argument, reasoning that the evidence was relevant because it tended to show how the defendant gained possession of the murder weapon. The evidence also was admissible under N.C. R. Evid. 404(b) as it showed the natural development of the facts and completed the story of the murder and because there were substantial similarities between the two incidents.

(2) The defendant also argued on appeal that the trial court committed plain error by instructing the jury on the doctrine of recent possession, which allows a jury to infer that the possessor of recently stolen property stole the property. The defendant argued that this inference was not relevant to whether he broke into Reed’s house and killed him and that it likely caused the jury to convict the defendant of felony-murder based on the break-in to Townsend’s home. The Court of Appeals determined that, even presuming the trial court erred in instructing the jury that it could consider the doctrine of recent possession in deciding whether the defendant was guilty of first-degree murder, the defendant failed to show the instruction had a probable impact on the verdict. The Court reasoned that even if the recent possession instruction could have caused the jury to improperly convict the defendant of felony-murder, the instruction did not have a probable impact on first-degree murder verdict because the jury also found the defendant guilty based on malice, premeditation and deliberation.

In this felony breaking and entering, larceny, and felon in possession case, evidence that the defendant committed a similar breaking and entering was properly admitted under Rule 404(b).  In addition, certain statements made by the victim of the similar breaking and entering were admissible as a present sense impression, and there was sufficient evidence of the felon in possession offense.  Regarding the 404(b) issue, the court determined that evidence of the other similar breaking and entering being committed by a person wearing a red and black hoody was properly admitted as circumstantially establishing that the defendant, who was wearing a red and black hoody when arrested on the same day as the break-ins, was the perpetrator in both incidents.  An officer’s testimony about the statements made by the victim of the other break-in were admissible under the present sense impression exception to the hearsay rule because the statements were made within minutes of the victim perceiving the break-in and described or explained the event.  Finally, the evidence of the felon in possession offense was sufficient to withstand a motion to dismiss as it showed that three guns were stolen during the break-in and that the defendant was the perpetrator.

State v. Campbell, 243 N.C. App. 563 (Oct. 20, 2015) rev’d on other grounds, 369 N.C. 599 (Jun 9 2017)

In a case involving a breaking or entering of a church, counsel was not ineffective by failing to challenge the admissibility of evidence that the defendant broke into a home on the night in question. The court noted that because the issue pertains to the admission of evidence no further factual development was required and it could be addressed on appeal. It went on to hold that the evidence was admissible under Rule 404(b) to show that the defendant’s intent in entering the church was to commit a larceny therein and to contradict his testimony that he entered the church for sanctuary. The evidence also was admissible under Rule 403. As to the defendant’s argument that counsel should have requested a limiting instruction that the jury could not consider the evidence to show his character and propensity, the court agreed that a limiting instruction would have mitigated any potential unfair prejudice. But it held: “any resulting unfair prejudice did not substantially outweigh the evidence’s probative value, given the temporal proximity of the breaking or entering offenses and the evidence’s tendency to show that defendant’s intent in entering the church was to commit a larceny therein.” Because the defendant failed to show that admission of the evidence was error he could not prevail on his ineffective assistance claim.

In the defendant’s trial for breaking and entering into his ex-wife’s Raleigh residence and for burning her personal property, the trial court did not abuse its discretion by admitting 404(b) evidence of an argument the defendant had with the victim and of a prior break-in at the victim’s Atlanta apartment for which the defendant was not investigated, charged, or convicted. The victim testified that in June 2008, while at her apartment in Raleigh, the defendant became angry and threw furniture and books, shoved a television, and broke a lamp. A few months later, the victim’s Atlanta apartment was burglarized and ransacked. Her couch was shredded, a lamp was broken, the floor was covered in an oily substance, her personal belongings were strewn about, and her laptop and car title were stolen. Police could not locate any fingerprints or DNA evidence tying the defendant to the crime; no eyewitnesses placed the defendant at the scene. In January 2009, the crime at issue occurred when the victim’s apartment in Raleigh was burglarized and ransacked. Her clothes and other personal belongings were strewn about and covered in liquid, her furniture was cut, her electronics destroyed, the floor was covered in liquid, her pictures were slashed, and a fire was lit in the fireplace, in which pictures of the defendant and the victim, books, shoes, picture frames, and photo albums had been burned. The only stolen item was a set of jewelry given to her by the defendant. As with the earlier break-in, the police could not locate any forensic evidence or eyewitnesses tying the defendant to the crime. The court found it clear from the record that the evidence established “a significant connection between defendant and the three incidents.” The court went on to find that the prior bad acts were properly admitted to show common plan or scheme, identity, and motive.

Evidence of a break-in by the defendant, occurring after the break-in in question, was properly admitted under Rule 404(b). DNA evidence sufficiently linked the defendant to the break-in and the evidence was probative of  intent, identity, modus operandi, and common scheme or plan. 

In a case involving charges arising out of a drug store break-in in which controlled substances were stolen, the trial court did not abuse its discretion by admitting 404(b) testimony from an accomplice that a few days before the break-in at issue, the same perpetrators broke into a different pharmacy but did not obtain any narcotics. The incidents were sufficiently similar, occurred only a few days apart, and involved the same accomplices.

In a murder and armed robbery case, the trial court did not commit plain error by admitting 404(b) evidence that the defendant broke into and stole from two houses near the time of the victim’s death. The evidence was relevant to illustrate the defendant’s motive for stealing from the victim—to support an addiction to prescription pain killers.

In this larceny by employee case, the trial court did not err by admitting 404(b) evidence. The charges arose out of a 2014 incident in which the defendant, a manager of an auto shop, kept for himself cash paid by a customer for auto repairs. At trial, an officer testified that in 2010 he investigated the defendant for embezzlement. The defendant, who was working as a restaurant manager, admitted stealing from the restaurant by voiding out cash transactions and keeping the cash for himself. The court found that evidence showing that the defendant embezzled from a previous employer four years prior was clearly relevant to show intent, plan, or absence of mistake or accident. In both cases, the defendant worked for the business, held a managerial position, took cash paid and intended for the business, kept the cash for himself, and manipulated accounting procedures to cover his tracks. The prior incident was sufficiently similar to the current one and was not too remote in time. Additionally, the trial court gave a proper limiting instruction.

In a case where the defendant was charged with embezzling from a school, trial court did not err by admitting evidence that the defendant misappropriated funds from a church to show absence of mistake, opportunity, motive, intent, and/or common plan or scheme. The record supported the trial court’s conclusion of similarity and temporal proximity.

In a residential robbery case, the trial court did not err by admitting 404(b) evidence of the defendant’s robbery at a Holiday Inn two days after the incident in question. As to similarity, the court noted that both incidents were armed robberies. Also, the perpetrators in both wore black hoodies and dark fabric covering part of their faces, immediately demanded money upon entering the buildings, used a black semi-automatic handgun by “pushing” it to the heads of the victims, restrained the victims in a similar manner, and moved the victims from place to place, searching for money.

In a robbery case involving a purse snatching, a purse-snatching by the defendant 6 weeks prior was properly admitted under Rule 404(b). The court found that the incidents were sufficiently in that they both occurred in Wal-Mart parking lots and involved a purse-snatching from a female victim who was alone. Also, the requirement of temporal proximity was satisfied. 

In a second-degree murder case stemming from a vehicle accident during a high speed chase following a shoplifting incident, details of the shoplifting incident were properly admitted under Rule 404(b). Evidence is admissible under Rule 404(b) when it is part of the chain of circumstances leading to the event at issue or when necessary to provide a complete picture for the jury. Here, the shoplifting incident explained the manner of the defendant’s flight.

(1) In a case in which the defendant faced homicide charges in connection with the death of an officer in a vehicular accident while that officer responded to a call regarding the defendant’s flight from another officer’s lawful stop of the defendant’s vehicle, the trial court did not err by admitting 404(b) evidence that the defendant had been involved in a robbery. In the robbery the defendant and an accomplice fled from the police and the accomplice was shot and killed by police officers. This was admitted to show implied malice in that it showed the defendant’s knowledge that flight from the police was dangerous and could result in death. (2) The trial court did not err by admitting evidence that the defendant and two other occupants of his vehicle stole several pounds of marijuana just before the defendant fled from the officer. The evidence showed the defendant’s motive to flee and his “intent or implied malice.” 

In an armed robbery case, evidence of the defendant’s involvement in another robbery was properly admitted under Rule 404(b). In both instances, the victims were robbed of their credit or debit cards by one or more handgun-wielding individuals with African accents, which were then used by the defendant to purchase gas at the same gas station within a very short period of time. The evidence was admissible to prove a common plan or scheme and identity. The court further held that the trial court did not abuse its discretion by failing to exclude the evidence under Rule 403.

State v. Maready, 362 N.C. 614 (Dec. 12, 2008)

The defendant was convicted of second-degree murder involving impaired driving. No plain error occurred when the trial judge admitted, under Rule 404(b), the defendant’s prior traffic-related convictions that were more than sixteen years old. The court rejected the implication that it previously had adopted a bright