Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/21/2021
E.g., 10/21/2021

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.

In this sex offense with a child case, the trial court did not err by prohibiting the defendant from introducing evidence of the immigration status of the victim’s mother, a testifying witness, on the basis that the evidence was irrelevant under Rule 401.  The mother’s immigration status did not have any tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable.  Further, the trial court did not err by overruling the defendant’s objection to the mother testifying that the defendant had refused to be tested for herpes after it was discovered that the child victim had herpes.  This testimony was not unfairly prejudicial under Rule 403.  Finally, the trial court did not err by denying the defendant’s motion to dismiss a charge of first degree statutory sexual offense for insufficient evidence.  The victim testified that the defendant touched her with his fingers “in the inside” in “the place where [she] go[es] pee,” and this testimony was sufficient evidence of a sexual act for purposes of the offense.

Judge Murphy concurred in the result only, writing a separate opinion to discuss when a witness’s immigration status and knowledge of U-Visas may be relevant for cross-examination, as well as other issues in the case.

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.

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