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 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 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.

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 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.

In this Wayne County case, defendant appealed his conviction for felony cruelty to an animal, arguing plain error in admitting a written hearsay statement under Rule of Evidence 803(5). The Court of Appeals agreed, ordering a new trial. 

In March of 2021, a Wayne County Sheriff’s Office deputy responded to the report of a dog being shot with a small caliber rifle. The primary witness to the shooting was a witness who “had memory issues, was legally blind, and was drunk at the time of the shooting.” Slip Op. at 7. This witness was unable to read or write, so he dictated a statement to his son in the presence of the deputy; after the witness’s son transcribed the statement, the witness signed it. No one read the statement back to the witness to confirm its accuracy. At trial, the prosecution published the witness’s written statement to the jury under Rule 803(5) after he testified he could not remember the events in question. The witness also testified that he was legally blind, drunk at the time he allegedly saw defendant shoot the dog, drunk at the time he was giving the statement to his son for transcription, and suffered from short-term memory issues. No other direct evidence was admitted tying defendant to the dog’s shooting.  

The Court of Appeals first explained that under the third prong of Rule 803(5), a recorded recollection like the transcribed statement here must be adopted by the witness while “the facts were fresh in his memory.” Id. at 10. The court then applied the analysis from State v. Spinks, 136 N.C. App. 153 (1999), explaining “[the witness’s] signature on the statement is inadequate to satisfy the third prong of Rule 803(5) when: (1) it was never read back to him for adoption; (2) his in-court testimony contradicted the statements contained therein; and (3) he could not recall the events described.” Slip Op. at 12. The court then established this error was prejudicial, as “[w]hen [the witness’s] hearsay statements are excised from consideration, we can identify no remaining direct evidence that tends to show or identifies [defendant] as [the dog’s] killer.” Id. at 14. This represented a probable impact on the jury’s verdict and justified a new trial. 

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 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.

(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.

In this Edgecombe County case, defendant appealed his convictions of obtaining property by false pretenses and exploitation of a disabled or elderly person in a business relationship. The Court of Appeals found no error and affirmed defendant’s convictions. 

Defendant approached an 88-year-old woman at her home and offered to assist her with home improvement work. After claiming to perform several tasks and having the homeowner agree to invoices, an investigation determined that defendant did not perform the work he claimed, and he was indicted for the charges in this matter. Before the criminal trial, the elderly homeowner filed for a civil no-contact order against defendant. Defendant did not appear at the hearing and did not cross-examine any witnesses; the no-contact order was entered against defendant at the conclusion of the hearing. Defendant subsequently filed motions attempting to inspect the property in question, and the trial court denied those motions. The homeowner died prior to the criminal trial and the trial court entered an order admitting her testimony from the no-contact civil hearing. 

Defendant’s appeal asserted two errors by the trial court: (1) admission of the testimony of the homeowner from the civil hearing, and (2) denial of his motion to inspect the property. The Court of Appeals first considered the admission of testimony and the confrontation clause issues involved, applying the three-prong test articulated in State v. Clark, 165 N.C. App. 279 (2004). The court determined that defendant did have a meaningful opportunity to cross-examine the homeowner in the civil hearing, but he did not take advantage of that opportunity. Because that hearing was on matters substantially similar to the criminal trial, defendant waived his opportunity by not cross-examining the homeowner. The similarity of matters also supported the court’s hearsay analysis, as it found that the testimony was admissible under the exception in North Carolina Rule of Evidence 804(b)(1). The court also found that the admission of the no-contact order did not represent plain error under N.C.G.S. § 1-149 and was not a violation of defendant’s due process rights. 

Considering defendant’s second issue, the court explained that there is no general right to discovery in a criminal case, and defendant identified no clear grounds for discovery to be required in this matter. AlthoughState v. Brown, 306 N.C. 151 (1982), provides criminal defendants may have a right to inspect a crime scene under limited circumstances, the court distinguished defendant’s situation from Brown. Specifically, defendant performed the work here himself and was not deprived of the ability to find exculpatory evidence, as he would have firsthand knowledge of the work and locations in question. The court found no right to inspect the property in this case and no error by the trial court in denying defendant’s request. 

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 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.