Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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

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

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

The defendant was convicted of two counts of sexual offense with a child by an adult, rape of a child, first-degree kidnapping, and two counts of taking indecent liberties with a child in Wake County, stemming from the assault of a six-year-old child at a church.

(1) In regard to one of the indecent liberties convictions, the defendant argued that the State did not present sufficient evidence that the defendant acted inappropriately when touching the victim’s chest and that such evidence was only offered for corroborative purposes. The victim’s testimony discussing the touching of her chest was only presented by way of her videotaped forensic interview and was not raised in the victim’s trial testimony. The Court of Appeals disagreed, finding that the videotaped forensic interview of the victim “was properly admitted under Rule 803(4) as her statements were made for the purposes of medical diagnosis or treatment, and the statements were reasonably pertinent to diagnosis or treatment.” Slip op. at 8. Additionally, the trial court instructed the jury to consider the video as substantive evidence. The Court of Appeals therefore determined that “[t]he evidence was sufficient to support denial of the motion to dismiss the challenged charge of taking indecent liberties with a child.” Id.

The defendant also argued that there was insufficient evidence to support a finding that the defendant forcibly removed the victim to facilitate the offense, an essential element of the crime of kidnapping. Specifically, the defendant argues the evidence does not show that he used actual force, fraud, or trickery to remove the victim. The Court of Appeals rejected this argument as well, finding that the defendant’s act of taking the victim to a secluded place to continue the sexual assault was sufficient to support removal for purposes of kidnapping.

(2) Concerning the defendant’s convictions of first-degree kidnapping and sexual offense with a child, the defendant argued “that the trial court erred by instructing on first-degree kidnapping and by failing to instruct on sexual offense with a child by an adult.” Id. at 10. The Court of Appeals found no prejudicial error in the instruction given on first-degree kidnapping because “[t]he evidence at trial was consistent with the allegations in the indictment,” even though the language of the jury instruction varied from the indictment. Id. at 11. The kidnapping indictment stated that “[D]efendant also sexually assaulted [Maya]” while the jury was instructed “that the person was not released by the defendant in a safe place.” Id. at 11-12. The Court of Appeals noted that such variance is usually prejudicial error but determined that the evidence here supported both the theory of the indictment and that of the jury instructions. On plain error review, the court rejected the defendant’s argument and concluded “it is not probable that the jury would have reached a different result if given the correct instruction.” Id. at 12.

The defendant also argued that the trial court erred by entering judgment on sexual offense with a child by an adult after instructing the jury on first-degree sex offense, a lesser offense. The Court of Appeals agreed. Because “[t]he jury instruction clearly outlined the lesser included offense of first-degree sexual offense . . . it was improper for the trial court to enter judgment for two counts of sexual offense with a child.” Id. at 17. The trial court did not instruct on the essential element of age as to the sexual offense with a child by an adult charge. The defendant was therefore impermissibly sentenced beyond the presumptive range for the lesser included offense of conviction. The Court of Appeals determined this was prejudicial error and vacated the defendant’s conviction of sexual offense with a child by an adult, remanding for resentencing on the first-degree sexual offense charge.

(3) The defendant argued that the trial court erred in certain evidentiary rulings. First, the defendant alleged that expert testimony regarding the DNA profile from the victim’s underwear (matching to the defendant) should not have been admitted because there was an insufficient foundation to satisfy the requirements of Rule 702(a)(3) of the North Carolina Rules of Evidence. The Court of Appeals disagreed, finding that the witness was “a qualified expert in the field of forensics and an employee at the North Carolina State Crime Lab, [who] testified to her qualifications in the area of DNA analysis as well as her training and experience in gathering evidence for DNA profiles.” Slip op. at 19. Further, the Court explained:

[The witness] thoroughly explained the methods and procedures of performing autosomal testing and analyzed defendant’s DNA sample following those procedures. That particular method of testing has been accepted as valid within the scientific community and is a standard practice within the state crime lab. Thus, her testimony was sufficient to satisfy Rule 702(a)(3). Id. at 21.

The defendant also argued that it was plain error to allow prior bad acts evidence under Rule 404(b) of the North Carolina Rules of Evidence, claiming that the prior incident was unrelated to the current offense. The Court of Appeals determined that the trial court did not err because the facts in both cases were similar enough to be admitted for 404(b) purposes. The trial court’s findings that “both females were strangers to defendant; they were separated from a group and taken to a more secluded location; they were touched improperly beginning with the buttocks; and they were told to be quiet during the assault,” supported the admission of this evidence under Rule 404(b). Id. at 23.

(4) Finally, the defendant argued that the trial court erred by allowing cross-examination of his father and contends the State elicited irrelevant testimony from his father. Specifically, the defendant objected to the admission of questions and testimony about whether the defendant’s father warned members of the church about the defendant’s potential dangerousness. The Court of Appeals rejected this argument and determined “the questions on cross-examination elicited relevant testimony and were well within the scope of defendant’s father’s direct testimony that defendant needed frequent supervision for basic activities.” Id. at 27-28.

Judge Murphy authored a separate opinion concurring in part, concurring in result only in part, and dissenting in part. Concerning the sexual offense jury instruction, Judge Murphy believed “the trial court erred in instructing the jury, however, since the jury found beyond a reasonable doubt Defendant was at least 18 years old in another portion of its verdict and all the charges against Defendant occurred on the same date, there was no plain error.” Slip op. at 5 (Murphy, J., dissenting). Judge Murphy also pointed out that “[h]ad the jury been correctly instructed on the first-degree kidnapping indictment language and found Defendant guilty of first-degree kidnapping based on sexual assault the trial court could not have sentenced Defendant for all the sexual offenses and the first-degree kidnapping offense without violating double jeopardy.” Id. at 13. Following the guidance of State v. Stinson, 127 N.C. App. 252, Judge Murphy believed that the court should have arrested judgment on the first-degree kidnapping conviction and remanded for resentencing on second-degree kidnapping to avoid double jeopardy issues. Lastly, Judge Murphy did not believe the defendant preserved the issue of his father’s testimony for review and would have refused to consider that argument.

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. 

The defendant was indicted for attempted first-degree murder, robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and other offenses. The State alleged that the defendant shot a man and his wife, Bruce and Joanne Parker, as they were getting into their car in a darkened Charlotte parking lot. After shooting Mr. Parker, the defendant, who was accompanied by a male and female companion, took Mr. Parker’s wallet and cell phone.

Off-duty officers arrived on the scene shortly after the couple was shot and saw the defendant and his two companions leaving the scene in the defendant’s car. Mr. Parker identified the defendant as the person who shot him. The officers gave chase, and the defendant’s male companion, who was driving, crashed the car. The defendant and his companions ran from the car. The driver was apprehended. The defendant and his female companion ran into a parking garage, where they were captured on surveillance footage, but were not apprehended by officers. On the driver’s seat floorboard of the crashed car, officers found the gun used to shoot the couple, the husband’s cell phone and wallet, and a purse and driver’s license belonging to the defendant’s female companion. Forty-five minutes later, the defendant called law enforcement officers to report that he had been carjacked earlier in the evening.

A few days after the shooting, an officer came to Mr. Parker’s hospital room and showed him a photographic lineup. The defendant’s picture was in the lineup, but Mr. Parker identified another person as the shooter. During trial, Mr. Parker testified that he was able to make out the shooter’s face during the attack. He then, without objection, identified the defendant in the courtroom, stating that the defendant was “pretty much the same man as he was that night,” only that he “appeared a little bit thinner.”

(1) On appeal, the defendant argued that the trial court erred by denying his motion to dismiss because there was insufficient evidence both that he was the perpetrator of the offenses and that there was a conspiracy to commit robbery with a dangerous weapon. The Court of Appeals rejected this argument, noting that Mr. Parker identified the car and the defendant as the shooter at the scene; that the officers saw the defendant leaving the scene and the car he was in; that Mr. Parker gave a description of the defendant that same night; that the description matched a person seen on surveillance after the car crashed; that the defendant was the owner of the car; and that Mr. Parker identified the defendant as the shooter in court. The Court also rejected the defendant’s insufficiency of the evidence argument regarding the conspiracy. The Court relied on State v. Lamb, 342 N.C. 151 (1995), and State v. Miles, 267 N.C. App. 78 (2019), in concluding that there was sufficient evidence from which a reasonable juror could conclude that the defendant acted in coordination with the other occupants of the vehicle to rob the Parkers with a dangerous weapon.

(2) The defendant next argued that the trial court erred by sustaining the State’s objection to the defendant’s question concerning a civil lawsuit filed by the Parkers against the owner of the parking lot alleging inadequate security. The defendant contended that the civil lawsuit was relevant because it showed that the Parkers had an interest in the outcome of the criminal prosecution. The Court has previously held that “where a witness for the prosecution has filed a civil suit for damages against the criminal defendant himself, the pendency of the suit is admissible to impeach the witness by showing the witness’s interest in the outcome of the criminal prosecution.” State v. Dixon, 77 N.C. App. 27, 31– 32 (1985); State v. Grant, 57 N.C. App. 589, 591 (1982). The Court concluded that because the civil suit was not filed against the defendant and because it was not necessary for the Parkers to prove in the civil suit that the defendant was the assailant, the pendency of the civil suit did not show Mr. Parker’s interest in the outcome of the criminal prosecution and was therefore not admissible to impeach the witness.

(3) The defendant’s final argument was that the trial court plainly erred by failing to exclude Mr. Parker’s in-court identification, which the defendant did not object to at trial. The defendant contended that the in-court identification was tainted by Mr. Parker’s exposure to media coverage of the case, his filing of a civil lawsuit that named the defendant as the assailant, the lapse of time, and his identification of someone other than the defendant in the photo lineup. The Court of Appeals concluded that these factors alone did not trigger due process concerns and that the alleged defects of the in-court identification were issues of credibility for the jury to resolve. The Court explained that absent any indication that the in-court identification was tainted by an impermissibly suggestive pre-trial identification procedure, there was no error, let alone plain error, in admitting Mr. Parker’s in-court identification.

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.

The basic facts of this case are as follows: Marvin Price closed his account at the Mountain Credit Union, withdrawing $25,000 in cash. He put $300 to $400 in his wallet and the remainder in an envelope. When he arrived home and got out of his car, he was robbed at gunpoint by Michael Angram, who asked Price, “Where is the $25,000?” Price claimed that he deposited it at another bank, although he had not actually done so, and Michael Angram took the wallet only. In a separate case, Michael Angram was convicted of robbery with a dangerous weapon. The defendant in this case is Michael Angram’s brother. He was tried jointly with Ms. Robinson, who worked at the credit union and with whom the defendant had a child, on charges of conspiracy to commit robbery with a dangerous weapon and aiding and abetting robbery with a dangerous weapon. They were acquitted of conspiracy and found guilty of aiding and abetting. This appeal concerned the defendant only.

The question addressed by the Court of Appeals was whether the State offered sufficient evidence to withstand the defendant’s motion to dismiss, which the trial judge had denied. At trial, the State called Michael Angram, who testified that he did not remember the robbery and did not know why he had been convicted. He did not testify to anything incriminating about the defendant. The State then called a detective to impeach Michael Angram. The detective testified that Michael Angram said that the defendant told him about the $25,000 bank withdrawal and drove him to Price’s home. The Court of Appeals recognized that the detective’s testimony was limited to impeaching Michael Angram’s credibility. The only substantive evidence offered by the State was that Ms. Robinson had a relationship with the defendant, that she was working at the credit union along with three other employees when Price withdrew the $25,000, and that she talked on the phone with the defendant while Price was at the credit union. The State argued that the jury could infer from this evidence that Ms. Robinson told the defendant of the withdrawal and that the defendant then arranged with his brother to rob Price. The Court found that while circumstantial evidence may support conviction of a crime, the State’s argument was speculative. The Court concluded that without the information from the detective’s testimony, which was not admitted for substantive purposes, there was not substantial evidence to withstand the defendant’s motion to dismiss. The Court concluded that the trial judge should have granted the defendant’s motion and reversed the judgment. [Note: The Court found it unnecessary to address the defendant’s other issue on appeal—that the trial judge erred in permitting the detective to testify about Michael Angram’s statements because the State was aware that Michael Angram would not be forthcoming as a witness; the real purpose of the detective’s testimony was to get otherwise inadmissible hearsay before the jury in violation of State v. Hunt, 324 N.C. 343 (1989); and the testimony was unduly prejudicial and not cured by the trial judge’s limiting instruction.]

(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.

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