(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.

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 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.

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.

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, 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.

(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.

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.

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.

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

In this 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.

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.”

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.

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.

In this Pitt County case, defendant appealed his convictions for statutory sexual offense with a child by an adult, sexual act by a substitute parent or custodian, and indecent liberties with a child, arguing plain error in admitting a detective’s testimony that she could not interview defendant during the investigation. The Court of Appeals found no plain error. 

Defendant came to trial for sexual offenses with his adopted daughter. During the trial, the detective who interviewed the victim/daughter testified about her investigation. During this testimony, the detective testified that she had spoken with defendant’s attorney “and was unable to get [defendant] to come in for an interview.” Slip Op. at 6. Defendant did not object to this testimony.  

The Court of Appeals rejected defendant’s argument that admitting the detective’s statement was plain error, noting that defense counsel elicited similar testimony on cross-examination. Because defense counsel inquired about the timeline of the investigation and prompted similar testimony from the detective, defendant could not establish plain error from the direct testimony admitted. 

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.

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 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.

(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.  

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.

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 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.