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

The defendant Molly Corbett was the daughter of the co-defendant, Thomas Marten. The two were charged with second-degree murder and voluntary manslaughter following an altercation with Molly’s husband in Davidson County. The altercation occurred at the couple’s home while Molly’s mother and father were visiting overnight. The defendants were jointly tried, and both were convicted of second-degree murder. A divided Court of Appeals granted a new trial based on three evidentiary errors, as well as errors relating to the jury instructions (that decision is summarized here). Based on a partial dissent at the Court of Appeals, the State sought review at the North Carolina Supreme Court. A divided court affirmed.

(1) Following the incident, the children of the deceased husband (from an earlier marriage) made statements to a social worker at a child abuse advocacy and treatment center. They both indicated their father had been abusive towards Molly. One child provided an explanation for the presence of a brick paver (apparently used in the altercation) found in Molly’s room on the night of the incident. The other child explained that her father originally got angry that evening when she awakened her parents following a nightmare. The children were living out of the country at the time of trial and the defendants sought to admit the hearsay statements as statements made for purposes of medical diagnosis or treatment and under the residual exception (803(4) and 803(24), respectively). The trial court excluded the testimony.

Rule 803(4) objections are reviewed de novo, while Rule 803(24) objections are reviewed for abuse of discretion. The statements of the children to the social worker were made for purposes of treatment and were reasonably pertinent to their treatment, satisfying Rule 803(4). When determining whether a child had the requisite intent to make a statement for purposes of treatment, North Carolina courts look to the objective circumstances surrounding the statement, including:

(1) whether ‘some adult explained to the child the need for treatment and the importance of truthfulness’; (2) ‘with whom, and under what circumstances, the declarant was speaking’; and (3) ‘the surrounding circumstances, including the setting of the interview and the nature of the questioning’. Corbett Slip op. at 21 (citation omitted).

All of those factors “strongly supported” admission of the children’s statement on the facts of the case.

The statements were also admissible under the residual hearsay exception. The trial court excluded the statements as lacking trustworthiness. No evidence in the record supported this finding, and the evidence otherwise met the requirements for admission under the residual exception. The majority therefore agreed with the Court of Appeals that the children’s statements were improperly excluded and that the defendants’ self-defense claims were undermined as a result. This was prejudicial error requiring a new trial under both rules.

(2) At trial, the State presented expert testimony regarding blood splatter patterns on the defendants’ clothes. On voir dire, the witness acknowledged that the purported blood splatter at issue was not tested for the presence of blood. He further testified that failing to test the material for blood violated the procedures for blood splatter analysis laid out in his own treatise on the subject. The trial court allowed the testimony over objection. A majority of the Court of Appeals determined the evidence was inadmissible under Rule 702, as it was not based on sufficient data and therefore could not have been the product of reliable application of the method to the facts of the case. The dissenting judge at the Court of Appeals only challenged preservation of this claim and did not discuss the merits of the Rule 702 issue in her opinion. The State also did not seek discretionary review of the Rule 702 ruling on the merits. The Supreme Court therefore examined only the preservation argument.

The majority found that the defendants’ preserved the objection by immediately objecting when the evidence was presented (after having also objected during voir dire of the witness), and by renewing the objection the next day. Further, the court determined the issue was preserved by operation of the law. Under G.S. § 15A-1446(d)(10):

[N]otwithstanding a party’s failure to object to the admission of evidence at some point at trial, a party may challenge ‘[s]ubsequent admission of evidence involving a specified line of questioning when there has been an improperly overruled objection to the admission of evidence involving that line of questioning.’ Corbett Slip op. at 44-45 (citing the statute).

While some subsections of G.S. § 15A-1446 have been found to be unconstitutional, the court has never disavowed this one and found that it applied here. Because the Court of Appeals determined this evidence was improperly admitted and that finding was not at issue on appeal to the Supreme Court, the law of the case dictated that the evidence had been improperly admitted. Thus, the defendants’ objections at trial were improperly overruled and the issue was preserved as matter of law, in addition to the grounds relied upon by the Court of Appeals.

(3) Thomas Martens testified in his defense at trial that he heard his daughter yell, “don’t hurt my dad” during the altercation. The trial court sustained the objection as hearsay. The Supreme Court again agreed with the Court of Appeals that this was error. The statement was not hearsay, as it went the Thomas’s subjective belief of fear at the time and was not offered for the truth of the statement. It was alternatively admissible as an excited utterance under N.C. R. Evid. 803(2). In isolation, this error was not prejudicial because the defendant was otherwise given wide latitude to describe his state of mind at the time. It did however contribute to the cumulative prejudice:

[T]hese errors together imposed a significant constraint on defendants’ efforts to establish a crucial fact: namely, their state of mind at the time of the events in question based on all of the circumstances known to them. Corbett Slip op. at 53.

Because the majority agreed with the decision below regarding these evidentiary issues and their prejudicial impact, the court did not reach the other issues addressed by the Court of Appeals.

Justice Berger, joined by Justices Newby and Barringer, dissented. The dissenting justices believed that the majority improperly re-weighed the evidence on appeal and would have found that Rule 803(4) issues were subject to abuse of discretion review, rather than the de novo review applied by the majority. They also faulted the majority for raising G.S. 15A-1446 when no party argued the applicability of that statute.

State v. Phillips, 365 N.C. 103 (June 16, 2011)

Noting that it has not had occasion to consider whether statements by law enforcement officers acting as agents of the government and concerning a matter within the scope of their agency or employment constitute admissions of a party opponent under Rule 801(d) for the purpose of a criminal proceeding, the court declined to address the issue because even if error occurred, it did not constitute plain error.

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

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

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

The defendant stole fuel injectors from a salvage yard. Among other issues: (1) The defendant’s indictment for larceny of motor vehicle parts in violation of G.S. 14-72.8 was insufficient. The statute requires that “the cost of repairing the motor vehicle is one thousand dollars . . . or more,” but the indictment alleged only that the total value of all the injectors taken from an unspecified number of vehicles was $10,500. The court of appeals construed the statute to require at least $1,000 in damage to a single motor vehicle. (2) A detective testified that he contacted an auto parts company in Maryland and learned that the defendant had sold the company 147 fuel injectors for nearly $10,000. This testimony was not hearsay as it was admitted “to describe [the detective’s] investigation,” not to prove that the defendant stole anything.

State v. Mylett, ___ N.C. App. ___, 822 S.E.2d 518 (Dec. 4, 2018) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (May 1 2020)

In this case involving a conviction for conspiracy to harass a juror, the trial court did not err by allowing the juror-witnesses to testify, over objection, about a fraternity fight that formed the basis for the criminal trial in which the defendant was accused of harassing jurors. The criminal trial involved the defendant’s brother Dan and the charges against Dan arose out of the fraternity fight. The defendant’s charges of intimidating jurors arose out of his conduct with respect to those jurors after they rendered their verdict in Dan’s case. The court rejected the defendant’s argument that the jurors’ testimony regarding the fight constituted hearsay, concluding that it was offered for the legitimate, nonhearsay purpose of proving the jurors’ states of mind.

            At the same time the trial court properly denied the defendant an opportunity to testify about the fight because his testimony constituted inadmissible hearsay. Specifically, his statement describing the fight that “the officer admitted he didn’t try to spit on him” was proffered for the truth of the matter asserted and is inadmissible hearsay.

(1) The court rejected the defendant’s argument that the trial court considered inadmissible hearsay in finding him in criminal contempt, reasoning that the evidence was admitted not for the truth of the matter asserted but rather for corroboration. At the show cause hearing the trial court found that the defendant was seen by a testifying State’s witness to have made a hand gesture indicating a gun to his head and shaking his head. This interaction interrupted the State’s direct examination of the witness. At the hearing, the State introduced two transcripts into evidence. The first was a one-page excerpt of the witness’s trial testimony. The second reflected an additional interview with the witness taken after the witness’s trial testimony was completed. Over the defendant’s hearsay objection, the trial court admitted the transcripts. The State further called three witnesses to testify to the events in question, one of whom was the ADA who testified that he saw the defendant make the gesture. The trial court found the defendant to be in willful contempt of court and entered a civil judgment for attorney’s fees and costs. The defendant gave oral notice of appeal. He later filed a petition for a writ of certiorari seeking a belated appeal of the civil judgment. On appeal the defendant argued that he was found in criminal contempt based on inadmissible hearsay. The court rejected this argument, noting that the first transcript was used to illustrate the context in which the incident arose and to corroborate other testimony that the witness seemed agitated and distracted on the stand. The second transcript was used to corroborate the ADA’s testimony. The court concluded: “Because [the transcripts] were used to corroborate the testimony of the State’s witnesses, and were not offered into evidence to prove that Defendant was speaking and making a gun gesture, the trial court did not err when admitting them into evidence.”

(2) The trial court’s findings of fact support its conclusion that the defendant’s conduct was willful. The trial court found, in part, that the defendant’s willful behavior committed during court was intended to interrupt the proceedings and resulted in the witness ceasing testimony and challenging the defendant’s action on the stand in front of the jury. The court held that this finding of fact supported the trial court’s conclusion that the defendant willfully interrupted the proceedings.

(3) The court granted the defendant’s petition for certiorari with respect to review of the civil judgment and held that the trial court erred by entering the civil judgment against the defendant for attorney’s fees without first affording the defendant an opportunity to be heard. Before entering a civil judgment under G.S. 7A-455(b) the defendant must be given notice and an opportunity to be heard. Here, after the defendant was convicted of criminal contempt, the trial court asked defense counsel how much time she spent on the case. After counsel responded that she spent about 9½ hours, the court set a civil judgment in the amount of $570. Because the defendant was present in the courtroom when attorney’s fees were imposed, the defendant received notice. However he was not given an opportunity to be heard. The court vacated the judgment and remanded to the trial court for further proceedings.

(1) The trial court did not err by admitting the defendant’s brother’s videotaped statement to the police as illustrative evidence. The defendant asserted that the videotaped statement constituted inadmissible hearsay. However the trial court specifically instructed the jury that the videotape was being admitted for the limited, non-hearsay purpose of illustrating the brother’s testimony. Because the videotaped statement was not admitted for substantive purposes the defendant’s argument fails.

(2) The trial court properly allowed into evidence the defendant’s brother’s testimony that “[the defendant] told [him] that he did it” and "[the defendant] told [him] he was the one that did it.” These statements were properly allowed as admissions of a party opponent under Rule 801(d).

The trial court did not err by allowing a witness to testify that after the incident in question and while she was incarcerated, a jailer told her that the defendant was in an adjacent cell. The defendant argued that because the jailer did not testify at trial, this was inadmissible hearsay. The court disagreed, finding that the statement was not offered to prove its truth but rather to explain why the witness was afraid to testify.

State v. Rogers, ___ N.C. App. ___, 796 S.E.2d 91 (Feb. 7, 2017) rev’d in part on other grounds, ___ N.C. ___, 817 S.E.2d 150 (Aug 17 2018)

In this drug case, the trial court did not err by allowing an officer to testify about information collected from a non-testifying witness during an investigation. The statement was not offered for its truth but rather to explain the officer’s subsequent conduct and how the investigation of the defendant unfolded.

In this armed robbery case, the statement at issue was not hearsay because it was not offered for the truth of the matter asserted. At trial one issue was whether an air pistol used was a dangerous weapon. The State offered a detective who performed a test fire on the air pistol. He testified that he obtained the manual for the air pistol to understand its safety and operation before conducting the test. He testified that the owner’s manual indicated that the air pistol shot BBs at a velocity of 440 feet per second and had a danger distance of 325 yards. He noted that he used this information to conduct the test fire in a way that would avoid injury to himself. The defendant argued that this recitation from the manual was offered to prove that the gun was a dangerous weapon. The court concluded however that this statement was offered for a proper non-hearsay purpose: to explain the detective’s conduct when performing the test fire.

The defendant’s own statements were admissible under the hearsay rule. The statements were recorded by a police officer while transporting the defendant from Georgia to North Carolina. The court noted that “[a] defendant’s statement that is not purported to be a written confession is admissible under the exception to the hearsay rule for statements by a party-opponent and does not require the defendant’s acknowledgement or adoption.” 

The trial court did not err by denying the defendant’s request to redact certain statements from a transcript of the defendant’s interview with the police. In the statements at issue, an officer said that witnesses saw the defendant pick up a knife and stab the victim. The statements were not hearsay because they were not admitted for the truth of the matter asserted but rather to provide context for the defendants' answers and to explain the detectives' interviewing techniques. The court also noted that the trial court gave an appropriate limiting instruction.

When statements were offered to explain an officer’s subsequent action, they were not offered for the truth of the matter asserted and thus were not hearsay.

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 were permissible because they added new or additional information that strengthened and added credibility to the witness’s testimony.

An officer’s testimony as to a witness’ response when asked if she knew what had happened to the murder weapon was not hearsay. The statement was not offered for the truth of the matter asserted but rather to explain what actions the officer took next (contacting his supervisor and locating the gun). Although other hearsay evidence was erroneously admitted, no prejudice resulted.

Statements offered to explain a witness’s subsequent actions were not offered for the truth of the matter asserted and not hearsay.

(1) In a child sexual assault case, the trial court did not commit plain error by allowing a witness to testify about her step-granddaughter’s statements. The evidence was properly admitted for the non-hearsay purpose of explaining the witness’s subsequent conduct of relaying the information to the victim’s parents so that medical treatment could be obtained. Also, the victim’s statements corroborated her trial testimony. (2) The trial court did not commit plain error by allowing an expert in clinical social work to relate the victim’s statements to her when the statements corroborated the victim’s trial testimony. 

In this capital case, the court rejected the defendant’s argument that a law enforcement officer’s testimony that he received information about the location of the victim from the defendant’s attorneys was inadmissible hearsay. The trial court properly determined that these statements were admissible under Rule 801(d) as admissions by a party opponent.

In this drug case the trial court did not err by admitting a hearsay statement under the Rule 801(d)(E) co-conspirator exception. An undercover officer arranged a drug transaction with a target. When the officer arrived at the prearranged location, different individuals, including the defendant, pulled up behind the officer. While on the phone with the officer, the target instructed: “them are my boys, deal with them.” This statement was admitted at trial under the co-conspirator exception to the hearsay rule. The defendant was convicted and appealed. On appeal the defendant argued that the statement was inadmissible because the State failed to prove a conspiracy between the target and the defendant and the others in the car. The court disagreed. The officer testified that he had previously planned drug buys from the target. Two successful transactions occurred at a Bojangles restaurant in Warsaw, NC where the target had delivered the drugs to the officer. When the officer contacted the target for a third purchase, the target agreed to sell one ounce of cocaine for $1200; the transfer was to occur at the same Warsaw Bojangles. When the target was not at the location, the officer called the target by phone. During the conversation, three men parked behind the officer’s vehicle and waved him over to their car, and the target made the statement at issue. A man in the backseat displayed a plastic bag of white powder and mentioned that he knew the officer from prior transactions. The officer retrieved his scale and weighed the substance; it weighed one ounce. This was sufficient evidence of a conspiracy between the target and the men in the car. In so holding the court rejected the defendant’s argument that because the substance turned out to be counterfeit cocaine, there was no agreement and thus no conspiracy. Because both selling actual cocaine and selling counterfeit cocaine is illegal under state law, the evidence was sufficient to establish a prima facie case of conspiracy by way of an agreement between the target and the men to do an unlawful act.

State v. Blankenship [Duplicated], ___ N.C. App. ___, 814 S.E.2d 901 (Apr. 17, 2018) temp. stay granted, ___ N.C. ___, 812 S.E.2d 666 (May 3 2018)

In this child sexual assault case, the trial court did not err by admitting hearsay statements of the victim. At issue were several statements by the child victim. In all of them, the victim said some version of “daddy put his weiner in my coochie.”

First, the trial court admitted the victim’s statements to the defendant’s parents, Gabrielle and Keith, as a present sense impression and an excited utterance and under the residual exception to Rule 804. The court reviewed this matter for plain error. The court began by finding that the victim’s statements were inadmissible as excited utterances. Although it found that the delay between the defendant’s acts and the victim’s statements does not bar their admission as excited utterances, it concluded that the State presented insufficient evidence to establish that the victim was under the stress of the startling event at the time she made the statements. In fact, the State presented no evidence of the victim’s stress. Next, the court considered the present sense impression exception to the hearsay rule. Present sense impressions, it explained, are statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Here, the trial court erred by admitting the statements as present sense impressions because the record lacked evidence of exactly when the sexual misconduct occurred. However, the statements were properly admitted under the residual exception to Rule 804. There is a six-part test for admitting statements under the residual exception. Here, the trial court failed to make any conclusions regarding the second part of that test, whether the hearsay is covered by any of the exceptions listed in Rule 804(b)(1)-(4). Additionally, with respect to the third part of the test—whether the hearsay statement was trustworthy—the trial court failed to include in the record findings of fact and conclusions of law that the statements possess circumstantial guarantees of trustworthiness. Although the trial court determined that the statements possess a guarantee of trustworthiness, it found no facts to support that conclusion. This was error. However, the court went on to conclude that the record established the required guarantees of trustworthiness. Specifically: the victim had personal knowledge of the events; the victim had no motivation to fabricate the statements; the victim never recanted; and the victim was unavailable because of her lack of memory of the events. The court noted that in this case the parties had stipulated that the victim was unavailable due to lack of memory, not due to an inability to distinguish truth from fantasy. Additionally, the court concluded that the defendant suffered no prejudice from the trial court’s failure to explicitly state that none of the other Rule 804 exceptions applied. Having concluded that the statements had a sufficient guarantee of trustworthiness, the court found that the trial court did not err by admitting the statements under the Rule 804 residual exception.

Second, the trial court admitted statements by the victim to Adrienne Opdike, a former victim advocate at the Children’s Advocacy and Protection Center, under the residual exception of Rule 804. Referring to its analysis of the victim’s statements to Gabrielle and Keith, the court concluded that the statement to Opdike has sufficient guarantees of trustworthiness and that the trial court did not abuse its discretion by admitting it under the Rule 804 residual exception.

Third, the trial court admitted statements by the victim to a relative, Bobbi, as a present sense impression and under the Rule 804 residual exception. The court reviewed this issue for plain error. Relying on its analysis with respect to the victim’s statements to Gabrielle and Keith, the court held that the trial court erred by admitting the statement to Bobbi as a present sense impression. However, the trial court did not err, or abuse its discretion, in admitting the statement under the Rule 804 residual exception. The trial court adequately performed the six-part analysis that applies to the residual exception and the statement has sufficient guarantees of trustworthiness

Fourth, the trial court admitted statements by the victim to Amy Walker Mahaffey, a registered nurse in the emergency room, under the medical diagnosis and treatment exception. Although it found the issue a close one, the court determined that it need not decide whether the trial court erred by admitting the statement under this exception because even if error occurred, the defendant failed to show prejudice. Specifically, the trial court properly admitted substantially identical statements made by the victim to others.

A victim’s statement to his mother, made in the emergency room approximately 50 minutes after a shooting and identifying the defendant as the shooter, was a present sense impression under Rule 803(1). The time period between the shooting and the statement was sufficiently brief. The court noted that the focus of events during the gap in time was on saving the victim’s life, thereby reducing the likelihood of deliberate or conscious misrepresentation.

The victim in this Davie County murder case was a “neighborhood runner,” running errands for people in general, and allegedly running drugs for the defendant. One afternoon, a friend of the victim was walking home and discovered the victim laying near railroad tracks. The victim told his friend, “Red beat me up.” The defendant was known as “Red.” Around an hour and a half passed before law enforcement was alerted. The first responding officer asked the victim what happened, and the defendant named “Carlos Lowery” and “Red” as the person responsible. The victim again repeated this information to a detective. An additional officer and an EMT on the scene overheard the victim name the defendant as the perpetrator, and the victim named the defendant once more to a detective in the ambulance. The victim did not survive, and the defendant was charged with first-degree murder and common law robbery.

The defendant filed a motion in limine to exclude the victim’s statements to law enforcement and overheard by the EMT as hearsay and in violation of the defendant’s confrontation and due process rights. The trial court denied the motion. It found that the statements fell within the excited utterance exception or were offered in corroboration and did not address the motion’s constitutional grounds. At trial, the defendant made only general objections to the testimony regarding the victim’s statements. The State also presented evidence of a recorded jail call between the defendant and a woman through a detective. The detective testified to her familiarity with the defendant’s voice, as well as the jail phone system, and identified the voice on the call as the defendant’s. The phone call was played for the jury, but the audio was of low quality. The detective was permitted to testify that the defendant stated on the call that he “got the cigarettes and the change, but not the phone.” Lowery Slip op. at 6. Those specific items were among those listed as missing from the victim. The defendant was convicted of second-degree murder and appealed, arguing evidentiary and confrontation errors at trial.

(1) The defendant argued evidence of the victim’s statements to police and EMT identifying the defendant as his attacker was improperly admitted under the excited utterance exception. The exception provides that “statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” are admissible. G.S. 8C-1, Rule 803(2) (2019). The defendant maintained that, because the time of the attack was unknown, it was error to conclude the defendant was still under the influence of the event at the time. Rejecting this argument, the court noted that the unknown time frame cut against the defendant’s argument. In its words:

Defendant’s argument, however, rests on a speculative assessment of the facts precisely because the Record does not disclose how much time elapsed from the assault until the statements were made. Put another way, the assault may have occurred just minutes before [the friend] found [the victim] but no more than approximately 75-90 minutes before. Lowery Slip op. at 9.

 Further, there is not a firm rule regarding how soon after the startling event a statement may be made to be considered an excited utterance; the question turns on whether the declarant was still under the stress of the event at the time. The defendant pointed to evidence that the defendant’s friend initially perceived the victim to be “calm” but “in pain” when the victim was first discovered. This too was rejected. Given the severity of the victim’s injuries—internal injuries causing breathing difficulty and eventually death—the court declined to conclude that the victim’s statements were not made while under the stress of the event. The trial court therefore did not err in admitting the statements as excited utterances.

(2) The defendant argued that admission of the victim’s statements identifying him to police and the EMT violated his Confrontation Clause and Due Process rights under Sixth Amendment. This constitutional argument was raised in the defendant’s pretrial motion, but the court did not rule on that issue when admitting the statements. The defendant made no constitutional objections at trial, and the issue was consequently unpreserved for appellate review. See N.C.R. App. P. 10(a)(1) (2021). The defendant did not seek plain error review or suspension of the Rules of Appellate Procedure to allow review of the unpreserved claim, and the court declined to review it.

(3) The defendant argued that admission of the jail phone call testimony violated Rule 701 of the North Carolina Rules of Evidence as improper lay opinion. He pointed out that the call was played for the jury and argued that the detective’s testimony was not helpful to the jury. As a preliminary matter, the court observed that the defendant again only made a general objection at trial and possibly failed to preserve the issue for appellate review. Assuming the issue was preserved, the admission of this testimony was not an abuse of discretion. Under State v. Belk, 201 N.C. App. 412 (2009), a lay witness may identify a defendant when the testimony is helpful to the jury and does not improperly invade the jury’s role as finder of fact. Distinguishing the video identification at issue in Belk, as well as the strength of the evidence in the respective cases, the court rejected this argument:

Given [the detective’s] familiarity with both the telephone system and with Defendant . . . , we cannot say then that there was ‘no basis for the trial court to conclude that the officer was more likely than the jury to correctly identify’ the contents of the recording of the telephone call . . . Lowery Slip op. at 18.

Finally, the court concluded that even if this testimony was admitted in error, the defendant could not demonstrate prejudice on the facts. The trial court was therefore affirmed in all respects. Judge Dietz and Zachary concurred.

State v. Blankenship [Duplicated], ___ N.C. App. ___, 814 S.E.2d 901 (Apr. 17, 2018) temp. stay granted, ___ N.C. ___, 812 S.E.2d 666 (May 3 2018)

In this child sexual assault case, the trial court did not err by admitting hearsay statements of the victim. At issue were several statements by the child victim. In all of them, the victim said some version of “daddy put his weiner in my coochie.”

First, the trial court admitted the victim’s statements to the defendant’s parents, Gabrielle and Keith, as a present sense impression and an excited utterance and under the residual exception to Rule 804. The court reviewed this matter for plain error. The court began by finding that the victim’s statements were inadmissible as excited utterances. Although it found that the delay between the defendant’s acts and the victim’s statements does not bar their admission as excited utterances, it concluded that the State presented insufficient evidence to establish that the victim was under the stress of the startling event at the time she made the statements. In fact, the State presented no evidence of the victim’s stress. Next, the court considered the present sense impression exception to the hearsay rule. Present sense impressions, it explained, are statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Here, the trial court erred by admitting the statements as present sense impressions because the record lacked evidence of exactly when the sexual misconduct occurred. However, the statements were properly admitted under the residual exception to Rule 804. There is a six-part test for admitting statements under the residual exception. Here, the trial court failed to make any conclusions regarding the second part of that test, whether the hearsay is covered by any of the exceptions listed in Rule 804(b)(1)-(4). Additionally, with respect to the third part of the test—whether the hearsay statement was trustworthy—the trial court failed to include in the record findings of fact and conclusions of law that the statements possess circumstantial guarantees of trustworthiness. Although the trial court determined that the statements possess a guarantee of trustworthiness, it found no facts to support that conclusion. This was error. However, the court went on to conclude that the record established the required guarantees of trustworthiness. Specifically: the victim had personal knowledge of the events; the victim had no motivation to fabricate the statements; the victim never recanted; and the victim was unavailable because of her lack of memory of the events. The court noted that in this case the parties had stipulated that the victim was unavailable due to lack of memory, not due to an inability to distinguish truth from fantasy. Additionally, the court concluded that the defendant suffered no prejudice from the trial court’s failure to explicitly state that none of the other Rule 804 exceptions applied. Having concluded that the statements had a sufficient guarantee of trustworthiness, the court found that the trial court did not err by admitting the statements under the Rule 804 residual exception.

Second, the trial court admitted statements by the victim to Adrienne Opdike, a former victim advocate at the Children’s Advocacy and Protection Center, under the residual exception of Rule 804. Referring to its analysis of the victim’s statements to Gabrielle and Keith, the court concluded that the statement to Opdike has sufficient guarantees of trustworthiness and that the trial court did not abuse its discretion by admitting it under the Rule 804 residual exception.

Third, the trial court admitted statements by the victim to a relative, Bobbi, as a present sense impression and under the Rule 804 residual exception. The court reviewed this issue for plain error. Relying on its analysis with respect to the victim’s statements to Gabrielle and Keith, the court held that the trial court erred by admitting the statement to Bobbi as a present sense impression. However, the trial court did not err, or abuse its discretion, in admitting the statement under the Rule 804 residual exception. The trial court adequately performed the six-part analysis that applies to the residual exception and the statement has sufficient guarantees of trustworthiness

Fourth, the trial court admitted statements by the victim to Amy Walker Mahaffey, a registered nurse in the emergency room, under the medical diagnosis and treatment exception. Although it found the issue a close one, the court determined that it need not decide whether the trial court erred by admitting the statement under this exception because even if error occurred, the defendant failed to show prejudice. Specifically, the trial court properly admitted substantially identical statements made by the victim to others.

In this child sexual assault case, the trial court did not err by admitting the victim’s statements to his mother under the excited utterance exception. The court rejected the defendant’s argument that a 10-day gap between the last incident of sexual abuse and the victim’s statements to his mother put them outside the scope of this exception. The victim made the statements immediately upon returning home from a trip to Florida; his mother testified that when the victim arrived home with the defendant, he came into the house “frantically” and was “shaking” while telling her that she had to call the police. The court noted that greater leeway with respect to timing is afforded to young victims and that the victim in this case was 15 years old. However it concluded: “while this victim was fifteen rather than four or five years of age, he was nevertheless a minor and that fact should not be disregarded in the analysis.” The court also rejected the defendant’s argument that because the victim had first tried to communicate with his father by email about the abuse, his later statements to his mother should not be considered excited utterances. 

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 made six days after her mother was killed were admissible as excited utterances. 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.”

State v. Carter, 216 N.C. App. 453 (Nov. 1, 2011) rev’d on other grounds, 366 N.C. 496 (Apr 12 2013)

(1) In a child sexual assault case, the trial court did not err by declining to admit defense-proffered evidence offered under the hearsay exception for excited utterances. The evidence was the victim’s statement to a social worker made during “play therapy” sessions. Because the record contained no description of the victim’s behavior or mental state, the court could not discern whether she was excited, startled, or under the stress of excitement when the statement was made.

Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens (“Tom”), daughter and father, were convicted of second degree murder in the death of Molly’s husband, Jason Corbett (“Jason”). Evidence at trial established that Tom attempted to stop Jason from choking Molly by hitting Jason with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows and he died at the scene. Jason’s children from a previous marriage, Jack and Sarah Corbett, ages 11 and 8, were at home and sleeping at the time of the altercation. Jack and Sarah’s mother had died unexpectedly when they were very young, and they considered Molly to be their mother.

(1) Defendants argued that the trial court abused its discretion by denying their Motion for Appropriate Relief (MAR), as well as their request for an evidentiary hearing, because competent evidence demonstrated that certain jurors “committed gross and pervasive misconduct in their private discussions of the case”; jurors engaged in “private discussions” amongst themselves prior to deliberations; and several jurors’ statements during post-trial media interviews showed that they improperly considered and formed opinions about Molly’s mental health. The court rejected this argument, characterizing the defendants’ allegations as being, at best, general, speculative, and conclusory. Furthermore, the court concluded that even if the trial court were to hold an evidentiary hearing, which it was not required to do, precedent prohibiting verdict impeachment would bar the defendants from presenting any admissible evidence to prove the truth of their allegations.

(2) Defendants asserted that the State failed to present substantial evidence to rebut or contradict Molly’s exculpatory handwritten statement, which the State introduced, establishing that Molly and Tom acted in lawful self-defense and defense of others. The Court of Appeals disagreed.

The State was required to present substantial evidence sufficient to convince a rational trier of fact that the defendants did not act in self-defense. The appellate court determined that the case was not entirely predicated on Molly’s statement that she and Tom acted in self-defense and defense of each other. Rather, the State presented substantial circumstantial evidence from which a rational juror could reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on her neck; (3) Jason was unarmed when the altercation occurred; (4) Jason’s children remained asleep throughout the entire altercation; (5) EMS, paramedics, and law enforcement responders observed that some of the blood on Jason’s body had dried, and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7) Jason had a life insurance policy, of which Molly was the named beneficiary.

(3) The Court of Appeals concluded, over a dissent, that certain evidentiary errors were so prejudicial as to inhibit the defendants’ ability to present a full and meaningful defense.

(a) The Court of Appeals held that the trial court erroneously concluded that statements Jack and Sarah Corbett made to workers at a children’s advocacy center were inadmissible under the hearsay exception for medical diagnosis or treatment. At the time of trial, Jack and Sarah had been taken to Ireland to live with their aunt and uncle. The appellate court determined that their statements at the advocacy center satisfied the two-part test for admissibility established in State v. Hinnant, 351 N.C. 277 (2000):  (1) the children made the statements to obtain medical diagnosis or treatment; and (2) the statements were reasonably pertinent to medical diagnosis or treatment. The court explained that the child-friendly atmosphere and the separation of the examination rooms did not indicate that the children’s statements during the interviews were not intended for medical purposes. The children were informed before their interviews that they would be receiving medical interviews together with physical examinations as part of their full evaluations at the facility. The interviewers asked non-leading, open-ended questions, instructed the children that they should not “guess at anything” and emphasized the overall significance of the child medical evaluations that they would be receiving. In addition, the court concluded that the children’s statements were reasonably pertinent to medical treatment or diagnosis. Following their forensic medical interviews, Sarah and Jack were examined by a pediatrician who diagnosed both children as “victim[s] of child abuse based on exposure to domestic violence” and recommended that they “receive mental health services” as treatment.

Moreover, the court concluded that even if the children’s forensic medical interview statements were inadmissible under the medical diagnosis or treatment exception to the rule against hearsay, they (along with statements the children made to DSS workers) were admissible under the residual hearsay exception.

(b) Stuart James, the State’s expert witness in bloodstain pattern analysis, testified at trial about untested blood spatter on the underside hem of Tom’s boxer shorts and the bottom of Molly’s pajama pants. The defendants argued that this testimony was not the product of reliable principles and methods applied reliably to the facts of this case. The Court of Appeals agreed.

While James was “unquestionably qualified to provide expert testimony on the subject” of blood spatter, he did not follow the reliability protocol establish in a treatise he coauthored on the subject. First, these particular stains were not tested for the presence of blood. Second, though James said it was the “best practice” for an analyst to view a photograph of the person wearing the blood-spattered clothes, he never viewed a photograph of Tom “wearing just the boxer shorts.” James further testified that the State provided him with just one photograph of Molly wearing the pajama pants, and that it was not readily apparent from that photograph how the pants actually fit Molly on the night of the incident. The court found James’s failure to follow the reliability standards and protocol prescribed in his own treatise as inherently suspect. It concluded that James’s testimony was based upon insufficient facts and data, and, accordingly, could not have been the product of reliable principles and methods applied reliably to the facts of the case.

The court determined that James's testimony “had the powerful effect of bolstering the State’s claim that Jason was struck after and while he was down and defenseless.” But, given the flawed methodology, the  testimony could only serve to unduly influence the jury to reach a conclusion that it was fully capable of reaching on its own.

(c) The defendants argued that the trial court erred in striking Tom’s testimony that, during the altercation, he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The Court of Appeals agreed. The court reasoned that Molly’s statement was admissible for the non-hearsay purpose of illustrating Tom’s then-existing state of mind. This was “a particularly relevant issue” in light of the defendants’ claims of self-defense and defense of another.

(d) Tom argued that the trial court committed reversible error by instructing the jury that he would not be entitled to the benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with Jason. The Court of Appeals agreed.

First, the appellate court stated that the trial court could not have based its ruling on Tom’s decision to arm himself with the baseball bat before joining the altercation. The mere fact that a defendant was armed is not evidence that he was the aggressor if he did not unlawfully use his weapon.

Moreover, the court deemed it significant that Jason was the first to employ deadly force. Tom testified that from the moment he opened the bedroom door, “Jason had his hands around Molly’s neck,” and he said he was going to kill her. Jason subsequently put Molly in a “very tight chokehold” and Tom noticed that Molly “was no longer wiggling. She was just weight, being dragged back into the hallway.”

Because Tom did not aggressively and willingly enter into the fight without legal excuse or provocation, the Court of Appeals determined that the trial court erred by instructing the jury on the aggressor doctrine. The error, the court reasoned, very likely prejudiced Molly as well as Tom, since the jury was instructed that it could find her guilty under an acting-in-concert theory.

One judge concurred in part and dissented in part. The judge concurred that the trial court did not err by denying defendants’ request for an evidentiary hearing on their MAR and the MAR itself or by denying defendants’ motions to dismiss for insufficient evidence. The judge dissented from the remainder of the majority opinion leading to its conclusion that the defendants are entitled to a new trial.

In this first-degree murder case, the trial did not err by admitting, under Rule 803(3), a handwritten document made by the victim that contained a list of things that the victim was going to tell the defendant. The trial court properly determined that the document showed the victim’s state of mind.

State v. Cook, 246 N.C. App. 266 (Mar. 15, 2016)

In this murder case, the trial court did not err by admitting hearsay testimony under the Rule 803(3) state of mind hearsay exception. The victim’s statement that she “was scared of” the defendant unequivocally demonstrated her state of mind and was highly relevant to show the status of her relationship with the defendant on the night before she was killed. 

The trial court did not err by admitting a murder victim’s hearsay statement to her sister-in-law under the Rule 803(3) then existing mental, emotional or physical condition hearsay exception. The murder victim told her sister-in-law that the defendant was harassing her and had threatened her.

A murder victim’s statements to her mother were properly admitted under the Rule 803(3) exception for then-existing mental, emotional or physical condition. The victim told her mother that she wanted to leave the defendant because he was wanted in another jurisdiction for attempting to harm the mother of his child; the victim also told her mother that she previously had tried to leave the defendant but that he had stalked and physically attacked her. The statements indicate difficulties in the relationship prior to the murder and are admissible to show the victim’s state of mind.

The defendant Molly Corbett was the daughter of the co-defendant, Thomas Marten. The two were charged with second-degree murder and voluntary manslaughter following an altercation with Molly’s husband in Davidson County. The altercation occurred at the couple’s home while Molly’s mother and father were visiting overnight. The defendants were jointly tried, and both were convicted of second-degree murder. A divided Court of Appeals granted a new trial based on three evidentiary errors, as well as errors relating to the jury instructions (that decision is summarized here). Based on a partial dissent at the Court of Appeals, the State sought review at the North Carolina Supreme Court. A divided court affirmed.

(1) Following the incident, the children of the deceased husband (from an earlier marriage) made statements to a social worker at a child abuse advocacy and treatment center. They both indicated their father had been abusive towards Molly. One child provided an explanation for the presence of a brick paver (apparently used in the altercation) found in Molly’s room on the night of the incident. The other child explained that her father originally got angry that evening when she awakened her parents following a nightmare. The children were living out of the country at the time of trial and the defendants sought to admit the hearsay statements as statements made for purposes of medical diagnosis or treatment and under the residual exception (803(4) and 803(24), respectively). The trial court excluded the testimony.

Rule 803(4) objections are reviewed de novo, while Rule 803(24) objections are reviewed for abuse of discretion. The statements of the children to the social worker were made for purposes of treatment and were reasonably pertinent to their treatment, satisfying Rule 803(4). When determining whether a child had the requisite intent to make a statement for purposes of treatment, North Carolina courts look to the objective circumstances surrounding the statement, including:

(1) whether ‘some adult explained to the child the need for treatment and the importance of truthfulness’; (2) ‘with whom, and under what circumstances, the declarant was speaking’; and (3) ‘the surrounding circumstances, including the setting of the interview and the nature of the questioning’. Corbett Slip op. at 21 (citation omitted).

All of those factors “strongly supported” admission of the children’s statement on the facts of the case.

The statements were also admissible under the residual hearsay exception. The trial court excluded the statements as lacking trustworthiness. No evidence in the record supported this finding, and the evidence otherwise met the requirements for admission under the residual exception. The majority therefore agreed with the Court of Appeals that the children’s statements were improperly excluded and that the defendants’ self-defense claims were undermined as a result. This was prejudicial error requiring a new trial under both rules.

(2) At trial, the State presented expert testimony regarding blood splatter patterns on the defendants’ clothes. On voir dire, the witness acknowledged that the purported blood splatter at issue was not tested for the presence of blood. He further testified that failing to test the material for blood violated the procedures for blood splatter analysis laid out in his own treatise on the subject. The trial court allowed the testimony over objection. A majority of the Court of Appeals determined the evidence was inadmissible under Rule 702, as it was not based on sufficient data and therefore could not have been the product of reliable application of the method to the facts of the case. The dissenting judge at the Court of Appeals only challenged preservation of this claim and did not discuss the merits of the Rule 702 issue in her opinion. The State also did not seek discretionary review of the Rule 702 ruling on the merits. The Supreme Court therefore examined only the preservation argument.

The majority found that the defendants’ preserved the objection by immediately objecting when the evidence was presented (after having also objected during voir dire of the witness), and by renewing the objection the next day. Further, the court determined the issue was preserved by operation of the law. Under G.S. § 15A-1446(d)(10):

[N]otwithstanding a party’s failure to object to the admission of evidence at some point at trial, a party may challenge ‘[s]ubsequent admission of evidence involving a specified line of questioning when there has been an improperly overruled objection to the admission of evidence involving that line of questioning.’ Corbett Slip op. at 44-45 (citing the statute).

While some subsections of G.S. § 15A-1446 have been found to be unconstitutional, the court has never disavowed this one and found that it applied here. Because the Court of Appeals determined this evidence was improperly admitted and that finding was not at issue on appeal to the Supreme Court, the law of the case dictated that the evidence had been improperly admitted. Thus, the defendants’ objections at trial were improperly overruled and the issue was preserved as matter of law, in addition to the grounds relied upon by the Court of Appeals.

(3) Thomas Martens testified in his defense at trial that he heard his daughter yell, “don’t hurt my dad” during the altercation. The trial court sustained the objection as hearsay. The Supreme Court again agreed with the Court of Appeals that this was error. The statement was not hearsay, as it went the Thomas’s subjective belief of fear at the time and was not offered for the truth of the statement. It was alternatively admissible as an excited utterance under N.C. R. Evid. 803(2). In isolation, this error was not prejudicial because the defendant was otherwise given wide latitude to describe his state of mind at the time. It did however contribute to the cumulative prejudice:

[T]hese errors together imposed a significant constraint on defendants’ efforts to establish a crucial fact: namely, their state of mind at the time of the events in question based on all of the circumstances known to them. Corbett Slip op. at 53.

Because the majority agreed with the decision below regarding these evidentiary issues and their prejudicial impact, the court did not reach the other issues addressed by the Court of Appeals.

Justice Berger, joined by Justices Newby and Barringer, dissented. The dissenting justices believed that the majority improperly re-weighed the evidence on appeal and would have found that Rule 803(4) issues were subject to abuse of discretion review, rather than the de novo review applied by the majority. They also faulted the majority for raising G.S. 15A-1446 when no party argued the applicability of that statute.

Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens (“Tom”), daughter and father, were convicted of second degree murder in the death of Molly’s husband, Jason Corbett (“Jason”). Evidence at trial established that Tom attempted to stop Jason from choking Molly by hitting Jason with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows and he died at the scene. Jason’s children from a previous marriage, Jack and Sarah Corbett, ages 11 and 8, were at home and sleeping at the time of the altercation. Jack and Sarah’s mother had died unexpectedly when they were very young, and they considered Molly to be their mother.

(1) Defendants argued that the trial court abused its discretion by denying their Motion for Appropriate Relief (MAR), as well as their request for an evidentiary hearing, because competent evidence demonstrated that certain jurors “committed gross and pervasive misconduct in their private discussions of the case”; jurors engaged in “private discussions” amongst themselves prior to deliberations; and several jurors’ statements during post-trial media interviews showed that they improperly considered and formed opinions about Molly’s mental health. The court rejected this argument, characterizing the defendants’ allegations as being, at best, general, speculative, and conclusory. Furthermore, the court concluded that even if the trial court were to hold an evidentiary hearing, which it was not required to do, precedent prohibiting verdict impeachment would bar the defendants from presenting any admissible evidence to prove the truth of their allegations.

(2) Defendants asserted that the State failed to present substantial evidence to rebut or contradict Molly’s exculpatory handwritten statement, which the State introduced, establishing that Molly and Tom acted in lawful self-defense and defense of others. The Court of Appeals disagreed.

The State was required to present substantial evidence sufficient to convince a rational trier of fact that the defendants did not act in self-defense. The appellate court determined that the case was not entirely predicated on Molly’s statement that she and Tom acted in self-defense and defense of each other. Rather, the State presented substantial circumstantial evidence from which a rational juror could reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on her neck; (3) Jason was unarmed when the altercation occurred; (4) Jason’s children remained asleep throughout the entire altercation; (5) EMS, paramedics, and law enforcement responders observed that some of the blood on Jason’s body had dried, and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7) Jason had a life insurance policy, of which Molly was the named beneficiary.

(3) The Court of Appeals concluded, over a dissent, that certain evidentiary errors were so prejudicial as to inhibit the defendants’ ability to present a full and meaningful defense.

(a) The Court of Appeals held that the trial court erroneously concluded that statements Jack and Sarah Corbett made to workers at a children’s advocacy center were inadmissible under the hearsay exception for medical diagnosis or treatment. At the time of trial, Jack and Sarah had been taken to Ireland to live with their aunt and uncle. The appellate court determined that their statements at the advocacy center satisfied the two-part test for admissibility established in State v. Hinnant, 351 N.C. 277 (2000):  (1) the children made the statements to obtain medical diagnosis or treatment; and (2) the statements were reasonably pertinent to medical diagnosis or treatment. The court explained that the child-friendly atmosphere and the separation of the examination rooms did not indicate that the children’s statements during the interviews were not intended for medical purposes. The children were informed before their interviews that they would be receiving medical interviews together with physical examinations as part of their full evaluations at the facility. The interviewers asked non-leading, open-ended questions, instructed the children that they should not “guess at anything” and emphasized the overall significance of the child medical evaluations that they would be receiving. In addition, the court concluded that the children’s statements were reasonably pertinent to medical treatment or diagnosis. Following their forensic medical interviews, Sarah and Jack were examined by a pediatrician who diagnosed both children as “victim[s] of child abuse based on exposure to domestic violence” and recommended that they “receive mental health services” as treatment.

Moreover, the court concluded that even if the children’s forensic medical interview statements were inadmissible under the medical diagnosis or treatment exception to the rule against hearsay, they (along with statements the children made to DSS workers) were admissible under the residual hearsay exception.

(b) Stuart James, the State’s expert witness in bloodstain pattern analysis, testified at trial about untested blood spatter on the underside hem of Tom’s boxer shorts and the bottom of Molly’s pajama pants. The defendants argued that this testimony was not the product of reliable principles and methods applied reliably to the facts of this case. The Court of Appeals agreed.

While James was “unquestionably qualified to provide expert testimony on the subject” of blood spatter, he did not follow the reliability protocol establish in a treatise he coauthored on the subject. First, these particular stains were not tested for the presence of blood. Second, though James said it was the “best practice” for an analyst to view a photograph of the person wearing the blood-spattered clothes, he never viewed a photograph of Tom “wearing just the boxer shorts.” James further testified that the State provided him with just one photograph of Molly wearing the pajama pants, and that it was not readily apparent from that photograph how the pants actually fit Molly on the night of the incident. The court found James’s failure to follow the reliability standards and protocol prescribed in his own treatise as inherently suspect. It concluded that James’s testimony was based upon insufficient facts and data, and, accordingly, could not have been the product of reliable principles and methods applied reliably to the facts of the case.

The court determined that James's testimony “had the powerful effect of bolstering the State’s claim that Jason was struck after and while he was down and defenseless.” But, given the flawed methodology, the  testimony could only serve to unduly influence the jury to reach a conclusion that it was fully capable of reaching on its own.

(c) The defendants argued that the trial court erred in striking Tom’s testimony that, during the altercation, he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The Court of Appeals agreed. The court reasoned that Molly’s statement was admissible for the non-hearsay purpose of illustrating Tom’s then-existing state of mind. This was “a particularly relevant issue” in light of the defendants’ claims of self-defense and defense of another.

(d) Tom argued that the trial court committed reversible error by instructing the jury that he would not be entitled to the benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with Jason. The Court of Appeals agreed.

First, the appellate court stated that the trial court could not have based its ruling on Tom’s decision to arm himself with the baseball bat before joining the altercation. The mere fact that a defendant was armed is not evidence that he was the aggressor if he did not unlawfully use his weapon.

Moreover, the court deemed it significant that Jason was the first to employ deadly force. Tom testified that from the moment he opened the bedroom door, “Jason had his hands around Molly’s neck,” and he said he was going to kill her. Jason subsequently put Molly in a “very tight chokehold” and Tom noticed that Molly “was no longer wiggling. She was just weight, being dragged back into the hallway.”

Because Tom did not aggressively and willingly enter into the fight without legal excuse or provocation, the Court of Appeals determined that the trial court erred by instructing the jury on the aggressor doctrine. The error, the court reasoned, very likely prejudiced Molly as well as Tom, since the jury was instructed that it could find her guilty under an acting-in-concert theory.

One judge concurred in part and dissented in part. The judge concurred that the trial court did not err by denying defendants’ request for an evidentiary hearing on their MAR and the MAR itself or by denying defendants’ motions to dismiss for insufficient evidence. The judge dissented from the remainder of the majority opinion leading to its conclusion that the defendants are entitled to a new trial.

The trial court did not err by excluding the defendant’s statement to a doctor, offered under Rule 803(4) (hearsay exception for medical diagnosis and treatment). The defendant told the doctor that he only confessed to the murder because an officer told him he would receive the death penalty if he did not do so. Relying on appellate counsel’s admission that the defendant saw the doctor with the hope that any mental illness he may have had could be diagnosed and used as a defense at trial, the court concluded, “[e]ven though defendant may have wanted continued treatment if he did, in fact, have a mental illness, his primary objective was to present the diagnosis as a defense.” The court also noted that the defendant did not make any argument as to how his statement was relevant to medical diagnosis or treatment.

State v. Carter, 216 N.C. App. 453 (Nov. 1, 2011) rev’d on other grounds, 366 N.C. 496 (Apr 12 2013)

(1) In a child sexual assault case, the trial court did not err by declining to admit defense-proffered evidence offered under the hearsay exception for statements made purposes of medical diagnosis and treatment. The evidence was the victim’s statement to a social worker made during “play therapy” sessions. Nothing indicated that the victim understood that the sessions were for the purpose of providing medical diagnosis or treatment. They began more than two weeks after an initial examination and were conducted at a battered women’s shelter in a “very colorful” room filled with “board games, art supplies, Play-Doh, dolls, blocks, cars, [and] all [other types] of things for . . . children to engage in” rather than in a medical environment. Although the social worker emphasized that the victim should tell the truth, there was no evidence that she told her that the sessions served a medical purpose or that the victim understood that her statements might be used for such a purpose. (2) The trial court did not err by declining to admit the same statement as an excited utterance. Because the record contained no description of the victim’s behavior or mental state, the court could not discern whether she was excited, startled, or under the stress of excitement when the statement was made.

In this murder case, the trial court did not err by admitting into evidence prior written statements made to the police by the defendant’s brothers, Reginald and Antonio, pursuant to the Rule 803(5) recorded recollection exception to the hearsay rule. The statements at issue constitute hearsay. Even though Reginald and Antonio testified at trial, their written statements were not made while testifying; rather they were made to the police nearly 3 years prior to trial. Thus they were hearsay and inadmissible unless they fit within a hearsay exception. Here, and as discussed in detail in the court’s opinion, the statements meet all the requirements of the Rule 803(5) recorded recollection hearsay exception. 

The trial court did not err by allowing the introduction of a video recording of the State’s witness being interviewed by law enforcement as substantive evidence where the statement fell within the Rule 803(5) hearsay exception for past recollection recorded. The court rejected the notion that the video had been introduced to refresh the witness’s recollection.

An audio recording can be admitted under the Rule 803(5) exception for recorded recollection. However, the statement at issue was not admissible under this exception because the witness did not recall making the statement and when asked whether she fabricated it, the witness testified that because of her mental state she was “liable to say anything.” 

State v. Waycaster, ___ N.C. App. ___, 818 S.E.2d 189 (Aug. 7, 2018) aff'd on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Aug 14 2020)

In a case where the defendant was convicted of interfering with an electronic monitoring device, the court rejected the defendant’s argument that the trial court committed plain error by admitting hearsay evidence regarding the ankle monitor in question. The defendant was subjected to electronic monitoring as a condition of probation. The defendant’s electronic monitoring equipment was installed by BI Total Monitoring and included an ankle monitor, a beacon that uses a GPS system to track the monitor, and a charger. The ankle monitor and beacon have serial numbers specific to the probationer. BI Total Monitoring’s computer software, BI Total Access, keeps logs of which serial numbers are assigned to each probationer. When an ankle monitor is not in the beacon’s range, it transmits a GPS signal that enables the probation officer to log into a computer program and see where the probationer is located. When a probationer removes the ankle monitor, BI Total Monitoring notifies the probation office. On-call probation officer Ashe received an alert that the defendant’s ankle monitor strap had been tampered with. Ashe used the GPS to locate the monitor miles from the defendant’s residence, in a ditch off of the road. He took the monitor to his office, where he verified that it was assigned and installed on the defendant. On appeal the defendant argued that the trial court committed plain error when it allowed Ashe to provide testimony based on GPS tracking evidence and simultaneously prepared reports to establish that the ankle monitor that he found was the same monitor that had been installed on the defendant. The defendant argued that this testimony constituted inadmissible hearsay. The court disagreed, finding that the evidence in question fell within the Rule 803(6) exception for business records.

In this methamphetamine case, a report about the defendant’s pseudoephedrine purchases was properly admitted as a business record. The report was generated from the NPLEx database. The defendant argued that the State failed to lay a proper foundation, asserting that the State was required to present testimony from someone associated with the database, or the company responsible for maintaining it, regarding the methods used to collect, maintain and review the data in the database to ensure its accuracy. The court disagreed. Among other things, an officer testified about his knowledge and familiarity with the database and how it is used by pharmacy employees. This testimony provided a sufficient foundation for the admission of the report as a business record.

The trial court properly admitted data obtained from an electronic surveillance device worn by the defendant and placing him at the scene. The specific evidence included an exhibit showing an event log compiled from data retrieved from the defendant’s device and a video file plotting the defendant’s tracking data. The court began by holding that the tracking data was a data compilation and that the video file was merely an extraction of that data produced for trial. Thus, it concluded, the video file was properly admitted as a business record if the tracking data was recorded in the regular course of business near the time of the incident and a proper foundation was laid. The defendant did not dispute that the device’s data was recorded in the regular course of business near the time of the incident. Rather, he asserted that the State failed to establish a proper foundation to verify the authenticity and trustworthiness of the data. The court disagreed noting that the officer-witness established his familiarity with the GPS tracking system by testifying about his experience and training in electronic monitoring, concerning how the device transmits data to a secured server where the data was stored and routinely accessed in the normal course of business, and how, in this case, he accessed the tracking data for the defendant’s device and produced evidence introduced at trial. 

In this civil case the court held that an officer’s accident report, prepared near the time of the accident, using information from individuals who had personal knowledge of the accident was admissible under the Rule 803(6) hearsay exception.

In a case in which the defendant was charged with, among other things, armed robbery and possession of a stolen handgun, no plain error occurred when the trial court admitted, under Rule 803(6) (records of regularly conducted activity) testimony that the National Crime Information Center ("NCIC") database indicated a gun with the same serial number as the one possessed by the defendant had been reported stolen in South Miami, Florida. The court rejected the defendant’s argument that the State failed to lay the necessary foundation for admission of the evidence. The defendant had argued that the State was required to present testimony from a custodian of records for NCIC that the information was regularly kept in the course of NCIC's business and that NCIC routinely makes such records in the course of conducting its business. The proper foundation was laid through the testimony of a local police officer who used the database in his regular course of business.

In this statutory rape case, the court rejected the defendant’s argument that the trial court erred by admitting the victim’s Honduran birth certificate, asserted by the defendant to be inadmissible hearsay. To establish the victim’s age, the State introduced a copy of the victim’s Honduran birth certificate, obtained from her school file. The defendant argued that the document lacked sufficient trustworthiness to satisfy Evidence Rule 803(8) (public records and reports). The court disagreed. No circumstances suggest that the birth date on the certificate lacked trustworthiness. Moreover, there was additional evidence presented supporting the victim’s age, including photographs taken of her, and a detective’s testimony that the victim looked to be 10 or 11 years old at the time of her interview.

Information in a police department database linking the defendant’s name to her photograph fell within the Rule 803(8) public records hearsay exception. After an undercover officer engaged in a drug buy from the defendant, he selected the defendant’s photograph from an array presented to him by a fellow officer. The fellow officer then cross-referenced the photograph in the database and determined that the person identified was the defendant. This evidence was admitted at trial. The court noted that although the Rule 803(8) exception excludes matters observed by officers and other law enforcement personnel regarding a crime scene or apprehension of the accused, it allows for admission of public records of purely ministerial observations, such as fingerprinting and photographing a suspect, and cataloguing a judgment and sentence. The court concluded that the photographs in the police department’s database were taken and compiled as a routine procedure following an arrest and were not indicative of anything more than that the person photographed has been arrested. It concluded: “photographing an arrested suspect is a routine and unambiguous record that Rule 803(8) was designed to cover. Absent evidence to the contrary, there is no reason to suspect the reliability of these records, as they are not subject to the same potential subjectivity that may imbue the observations of a police officer in the course of an investigation.”

In a larceny of motor vehicle case, the court held that the Kelley Blue Book and the NADA pricing guide fall within the Rule 803(17) hearsay exception for “[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.” Those items were use to establish the value of the motor vehicles stolen.

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

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

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

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

The trial court properly admitted an unavailable witness’s testimony at a proceeding in connection with the defendant’s Alford plea under the Rule 804(b)(1) hearsay exception for former testimony. The court rejected the defendant’s argument that the testimony was inadmissible because he had no motive to cross-examine the witness during the plea hearing.

In the defendant’s trial for sex offense, burglary, and other crimes, the trial court did not err by admitting the defendant’s statement, made to an officer upon the defendant’s arrest: “Man, I’m a B and E guy.” Given the charges, the statement was a statement against penal interest pursuant to Rule 804(b)(3).

The trial court did not abuse its discretion by sustaining the State’s objection to a defense proffer of a co-defendant’s hearsay statement indicating that he and the defendant acted in self-defense. The statement was not admissible under Rule 804(b)(3) (statement against interest exception). To be admissible under that rule (1) the statement must be against the declarant’s interest, and (2) corroborating circumstances must indicate its trustworthiness. As to the second prong, there must be an independent, non-hearsay indication of trustworthiness. There was no issue about whether the statement satisfied the first prong. However, as to the second, there was no corroborating evidence. Furthermore, the co-defendant had a motive to lie: he was he friends with the defendant, married to the defendant’s sister, and had an incentive to exculpate himself. Nor was the statement admissible under the Rule 804(b)(5) catchall exception. Applying the traditional six-part residual exception analysis, the court concluded that, for the reasons noted above, the statement lacked circumstantial guarantees of trustworthiness.

The defendant Molly Corbett was the daughter of the co-defendant, Thomas Marten. The two were charged with second-degree murder and voluntary manslaughter following an altercation with Molly’s husband in Davidson County. The altercation occurred at the couple’s home while Molly’s mother and father were visiting overnight. The defendants were jointly tried, and both were convicted of second-degree murder. A divided Court of Appeals granted a new trial based on three evidentiary errors, as well as errors relating to the jury instructions (that decision is summarized here). Based on a partial dissent at the Court of Appeals, the State sought review at the North Carolina Supreme Court. A divided court affirmed.

(1) Following the incident, the children of the deceased husband (from an earlier marriage) made statements to a social worker at a child abuse advocacy and treatment center. They both indicated their father had been abusive towards Molly. One child provided an explanation for the presence of a brick paver (apparently used in the altercation) found in Molly’s room on the night of the incident. The other child explained that her father originally got angry that evening when she awakened her parents following a nightmare. The children were living out of the country at the time of trial and the defendants sought to admit the hearsay statements as statements made for purposes of medical diagnosis or treatment and under the residual exception (803(4) and 803(24), respectively). The trial court excluded the testimony.

Rule 803(4) objections are reviewed de novo, while Rule 803(24) objections are reviewed for abuse of discretion. The statements of the children to the social worker were made for purposes of treatment and were reasonably pertinent to their treatment, satisfying Rule 803(4). When determining whether a child had the requisite intent to make a statement for purposes of treatment, North Carolina courts look to the objective circumstances surrounding the statement, including:

(1) whether ‘some adult explained to the child the need for treatment and the importance of truthfulness’; (2) ‘with whom, and under what circumstances, the declarant was speaking’; and (3) ‘the surrounding circumstances, including the setting of the interview and the nature of the questioning’. Corbett Slip op. at 21 (citation omitted).

All of those factors “strongly supported” admission of the children’s statement on the facts of the case.

The statements were also admissible under the residual hearsay exception. The trial court excluded the statements as lacking trustworthiness. No evidence in the record supported this finding, and the evidence otherwise met the requirements for admission under the residual exception. The majority therefore agreed with the Court of Appeals that the children’s statements were improperly excluded and that the defendants’ self-defense claims were undermined as a result. This was prejudicial error requiring a new trial under both rules.

(2) At trial, the State presented expert testimony regarding blood splatter patterns on the defendants’ clothes. On voir dire, the witness acknowledged that the purported blood splatter at issue was not tested for the presence of blood. He further testified that failing to test the material for blood violated the procedures for blood splatter analysis laid out in his own treatise on the subject. The trial court allowed the testimony over objection. A majority of the Court of Appeals determined the evidence was inadmissible under Rule 702, as it was not based on sufficient data and therefore could not have been the product of reliable application of the method to the facts of the case. The dissenting judge at the Court of Appeals only challenged preservation of this claim and did not discuss the merits of the Rule 702 issue in her opinion. The State also did not seek discretionary review of the Rule 702 ruling on the merits. The Supreme Court therefore examined only the preservation argument.

The majority found that the defendants’ preserved the objection by immediately objecting when the evidence was presented (after having also objected during voir dire of the witness), and by renewing the objection the next day. Further, the court determined the issue was preserved by operation of the law. Under G.S. § 15A-1446(d)(10):

[N]otwithstanding a party’s failure to object to the admission of evidence at some point at trial, a party may challenge ‘[s]ubsequent admission of evidence involving a specified line of questioning when there has been an improperly overruled objection to the admission of evidence involving that line of questioning.’ Corbett Slip op. at 44-45 (citing the statute).

While some subsections of G.S. § 15A-1446 have been found to be unconstitutional, the court has never disavowed this one and found that it applied here. Because the Court of Appeals determined this evidence was improperly admitted and that finding was not at issue on appeal to the Supreme Court, the law of the case dictated that the evidence had been improperly admitted. Thus, the defendants’ objections at trial were improperly overruled and the issue was preserved as matter of law, in addition to the grounds relied upon by the Court of Appeals.

(3) Thomas Martens testified in his defense at trial that he heard his daughter yell, “don’t hurt my dad” during the altercation. The trial court sustained the objection as hearsay. The Supreme Court again agreed with the Court of Appeals that this was error. The statement was not hearsay, as it went the Thomas’s subjective belief of fear at the time and was not offered for the truth of the statement. It was alternatively admissible as an excited utterance under N.C. R. Evid. 803(2). In isolation, this error was not prejudicial because the defendant was otherwise given wide latitude to describe his state of mind at the time. It did however contribute to the cumulative prejudice:

[T]hese errors together imposed a significant constraint on defendants’ efforts to establish a crucial fact: namely, their state of mind at the time of the events in question based on all of the circumstances known to them. Corbett Slip op. at 53.

Because the majority agreed with the decision below regarding these evidentiary issues and their prejudicial impact, the court did not reach the other issues addressed by the Court of Appeals.

Justice Berger, joined by Justices Newby and Barringer, dissented. The dissenting justices believed that the majority improperly re-weighed the evidence on appeal and would have found that Rule 803(4) issues were subject to abuse of discretion review, rather than the de novo review applied by the majority. They also faulted the majority for raising G.S. 15A-1446 when no party argued the applicability of that statute.

State v. Sargeantt, 365 N.C. 58 (Mar. 11, 2011)

Modifying and affirming State v. Sargeant, 206 N.C. App. 1 (Aug. 3, 2010), the court held that the trial court committed prejudicial error by excluding defense evidence of hearsay statements made by a participant in the murder, offered under the Rule 804(b)(5) residual exception. The court noted that the only factor in dispute under the six-factor residual exception test was circumstantial guarantees of trustworthiness. To evaluate that factor, a court must assess, among other things, (1) the declarant's personal knowledge of the event; (2) the declarant's motivation to speak the truth; (3) whether the declarant recanted; and (4) the reason for the declarant's unavailability. Because the record established that the declarant had personal knowledge and never recanted, the court focused it analysis on factors (2) and (4). The court found that the trial court’s conclusions that these considerations had not been satisfied were made on the basis of inaccurate and incomplete findings of fact used to reach unsupported conclusions of law.

Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens (“Tom”), daughter and father, were convicted of second degree murder in the death of Molly’s husband, Jason Corbett (“Jason”). Evidence at trial established that Tom attempted to stop Jason from choking Molly by hitting Jason with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows and he died at the scene. Jason’s children from a previous marriage, Jack and Sarah Corbett, ages 11 and 8, were at home and sleeping at the time of the altercation. Jack and Sarah’s mother had died unexpectedly when they were very young, and they considered Molly to be their mother.

(1) Defendants argued that the trial court abused its discretion by denying their Motion for Appropriate Relief (MAR), as well as their request for an evidentiary hearing, because competent evidence demonstrated that certain jurors “committed gross and pervasive misconduct in their private discussions of the case”; jurors engaged in “private discussions” amongst themselves prior to deliberations; and several jurors’ statements during post-trial media interviews showed that they improperly considered and formed opinions about Molly’s mental health. The court rejected this argument, characterizing the defendants’ allegations as being, at best, general, speculative, and conclusory. Furthermore, the court concluded that even if the trial court were to hold an evidentiary hearing, which it was not required to do, precedent prohibiting verdict impeachment would bar the defendants from presenting any admissible evidence to prove the truth of their allegations.

(2) Defendants asserted that the State failed to present substantial evidence to rebut or contradict Molly’s exculpatory handwritten statement, which the State introduced, establishing that Molly and Tom acted in lawful self-defense and defense of others. The Court of Appeals disagreed.

The State was required to present substantial evidence sufficient to convince a rational trier of fact that the defendants did not act in self-defense. The appellate court determined that the case was not entirely predicated on Molly’s statement that she and Tom acted in self-defense and defense of each other. Rather, the State presented substantial circumstantial evidence from which a rational juror could reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on her neck; (3) Jason was unarmed when the altercation occurred; (4) Jason’s children remained asleep throughout the entire altercation; (5) EMS, paramedics, and law enforcement responders observed that some of the blood on Jason’s body had dried, and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7) Jason had a life insurance policy, of which Molly was the named beneficiary.

(3) The Court of Appeals concluded, over a dissent, that certain evidentiary errors were so prejudicial as to inhibit the defendants’ ability to present a full and meaningful defense.

(a) The Court of Appeals held that the trial court erroneously concluded that statements Jack and Sarah Corbett made to workers at a children’s advocacy center were inadmissible under the hearsay exception for medical diagnosis or treatment. At the time of trial, Jack and Sarah had been taken to Ireland to live with their aunt and uncle. The appellate court determined that their statements at the advocacy center satisfied the two-part test for admissibility established in State v. Hinnant, 351 N.C. 277 (2000):  (1) the children made the statements to obtain medical diagnosis or treatment; and (2) the statements were reasonably pertinent to medical diagnosis or treatment. The court explained that the child-friendly atmosphere and the separation of the examination rooms did not indicate that the children’s statements during the interviews were not intended for medical purposes. The children were informed before their interviews that they would be receiving medical interviews together with physical examinations as part of their full evaluations at the facility. The interviewers asked non-leading, open-ended questions, instructed the children that they should not “guess at anything” and emphasized the overall significance of the child medical evaluations that they would be receiving. In addition, the court concluded that the children’s statements were reasonably pertinent to medical treatment or diagnosis. Following their forensic medical interviews, Sarah and Jack were examined by a pediatrician who diagnosed both children as “victim[s] of child abuse based on exposure to domestic violence” and recommended that they “receive mental health services” as treatment.

Moreover, the court concluded that even if the children’s forensic medical interview statements were inadmissible under the medical diagnosis or treatment exception to the rule against hearsay, they (along with statements the children made to DSS workers) were admissible under the residual hearsay exception.

(b) Stuart James, the State’s expert witness in bloodstain pattern analysis, testified at trial about untested blood spatter on the underside hem of Tom’s boxer shorts and the bottom of Molly’s pajama pants. The defendants argued that this testimony was not the product of reliable principles and methods applied reliably to the facts of this case. The Court of Appeals agreed.

While James was “unquestionably qualified to provide expert testimony on the subject” of blood spatter, he did not follow the reliability protocol establish in a treatise he coauthored on the subject. First, these particular stains were not tested for the presence of blood. Second, though James said it was the “best practice” for an analyst to view a photograph of the person wearing the blood-spattered clothes, he never viewed a photograph of Tom “wearing just the boxer shorts.” James further testified that the State provided him with just one photograph of Molly wearing the pajama pants, and that it was not readily apparent from that photograph how the pants actually fit Molly on the night of the incident. The court found James’s failure to follow the reliability standards and protocol prescribed in his own treatise as inherently suspect. It concluded that James’s testimony was based upon insufficient facts and data, and, accordingly, could not have been the product of reliable principles and methods applied reliably to the facts of the case.

The court determined that James's testimony “had the powerful effect of bolstering the State’s claim that Jason was struck after and while he was down and defenseless.” But, given the flawed methodology, the  testimony could only serve to unduly influence the jury to reach a conclusion that it was fully capable of reaching on its own.

(c) The defendants argued that the trial court erred in striking Tom’s testimony that, during the altercation, he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The Court of Appeals agreed. The court reasoned that Molly’s statement was admissible for the non-hearsay purpose of illustrating Tom’s then-existing state of mind. This was “a particularly relevant issue” in light of the defendants’ claims of self-defense and defense of another.

(d) Tom argued that the trial court committed reversible error by instructing the jury that he would not be entitled to the benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with Jason. The Court of Appeals agreed.

First, the appellate court stated that the trial court could not have based its ruling on Tom’s decision to arm himself with the baseball bat before joining the altercation. The mere fact that a defendant was armed is not evidence that he was the aggressor if he did not unlawfully use his weapon.

Moreover, the court deemed it significant that Jason was the first to employ deadly force. Tom testified that from the moment he opened the bedroom door, “Jason had his hands around Molly’s neck,” and he said he was going to kill her. Jason subsequently put Molly in a “very tight chokehold” and Tom noticed that Molly “was no longer wiggling. She was just weight, being dragged back into the hallway.”

Because Tom did not aggressively and willingly enter into the fight without legal excuse or provocation, the Court of Appeals determined that the trial court erred by instructing the jury on the aggressor doctrine. The error, the court reasoned, very likely prejudiced Molly as well as Tom, since the jury was instructed that it could find her guilty under an acting-in-concert theory.

One judge concurred in part and dissented in part. The judge concurred that the trial court did not err by denying defendants’ request for an evidentiary hearing on their MAR and the MAR itself or by denying defendants’ motions to dismiss for insufficient evidence. The judge dissented from the remainder of the majority opinion leading to its conclusion that the defendants are entitled to a new trial.

State v. Blankenship, ___ N.C. App. ___, 814 S.E.2d 901 (Apr. 17, 2018) temp. stay granted, ___ N.C. ___, 812 S.E.2d 666 (May 3 2018)

In this child sexual assault case, the trial court did not err by admitting hearsay statements of the victim. At issue were several statements by the child victim. In all of them, the victim said some version of “daddy put his weiner in my coochie.”

First, the trial court admitted the victim’s statements to the defendant’s parents, Gabrielle and Keith, as a present sense impression and an excited utterance and under the residual exception to Rule 804. The court reviewed this matter for plain error. The court began by finding that the victim’s statements were inadmissible as excited utterances. Although it found that the delay between the defendant’s acts and the victim’s statements does not bar their admission as excited utterances, it concluded that the State presented insufficient evidence to establish that the victim was under the stress of the startling event at the time she made the statements. In fact, the State presented no evidence of the victim’s stress. Next, the court considered the present sense impression exception to the hearsay rule. Present sense impressions, it explained, are statements describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Here, the trial court erred by admitting the statements as present sense impressions because the record lacked evidence of exactly when the sexual misconduct occurred. However, the statements were properly admitted under the residual exception to Rule 804. There is a six-part test for admitting statements under the residual exception. Here, the trial court failed to make any conclusions regarding the second part of that test, whether the hearsay is covered by any of the exceptions listed in Rule 804(b)(1)-(4). Additionally, with respect to the third part of the test—whether the hearsay statement was trustworthy—the trial court failed to include in the record findings of fact and conclusions of law that the statements possess circumstantial guarantees of trustworthiness. Although the trial court determined that the statements possess a guarantee of trustworthiness, it found no facts to support that conclusion. This was error. However, the court went on to conclude that the record established the required guarantees of trustworthiness. Specifically: the victim had personal knowledge of the events; the victim had no motivation to fabricate the statements; the victim never recanted; and the victim was unavailable because of her lack of memory of the events. The court noted that in this case the parties had stipulated that the victim was unavailable due to lack of memory, not due to an inability to distinguish truth from fantasy. Additionally, the court concluded that the defendant suffered no prejudice from the trial court’s failure to explicitly state that none of the other Rule 804 exceptions applied. Having concluded that the statements had a sufficient guarantee of trustworthiness, the court found that the trial court did not err by admitting the statements under the Rule 804 residual exception.

Second, the trial court admitted statements by the victim to Adrienne Opdike, a former victim advocate at the Children’s Advocacy and Protection Center, under the residual exception of Rule 804. Referring to its analysis of the victim’s statements to Gabrielle and Keith, the court concluded that the statement to Opdike has sufficient guarantees of trustworthiness and that the trial court did not abuse its discretion by admitting it under the Rule 804 residual exception.

Third, the trial court admitted statements by the victim to a relative, Bobbi, as a present sense impression and under the Rule 804 residual exception. The court reviewed this issue for plain error. Relying on its analysis with respect to the victim’s statements to Gabrielle and Keith, the court held that the trial court erred by admitting the statement to Bobbi as a present sense impression. However, the trial court did not err, or abuse its discretion, in admitting the statement under the Rule 804 residual exception. The trial court adequately performed the six-part analysis that applies to the residual exception and the statement has sufficient guarantees of trustworthiness

Fourth, the trial court admitted statements by the victim to Amy Walker Mahaffey, a registered nurse in the emergency room, under the medical diagnosis and treatment exception. Although it found the issue a close one, the court determined that it need not decide whether the trial court erred by admitting the statement under this exception because even if error occurred, the defendant failed to show prejudice. Specifically, the trial court properly admitted substantially identical statements made by the victim to others.

The trial court did not abuse its discretion by sustaining the State’s objection to a defense proffer of a co-defendant’s hearsay statement indicating that he and the defendant acted in self-defense. The statement was not admissible under Rule 804(b)(3) (statement against interest exception). To be admissible under that rule, (1) the statement must be against the declarant’s interest, and (2) corroborating circumstances must indicate its trustworthiness. As to the second prong, there must be an independent, non-hearsay indication of trustworthiness. There was no issue about whether the statement satisfied the first prong. However, as to the second, there was no corroborating evidence. Furthermore, the co-defendant had a motive to lie: he was he friends with the defendant, married to the defendant’s sister, and had an incentive to exculpate himself. Nor was the statement admissible under the Rule 804(b)(5) catchall exception. Applying the traditional six-part residual exception analysis, the court concluded that, for the reasons noted above, the statement lacked circumstantial guarantees of trustworthiness.

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