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., 09/26/2021
E.g., 09/26/2021

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.

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