Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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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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In this Buncombe County case, the Supreme Court reversed the decision of the Court of Appeals that the trial court committed prejudicial error in admitting an officer’s testimony that the defendant was driving his moped when it crashed. The Supreme Court noted that a warrant application for the defendant’s blood that was signed by the testifying officer was admitted without objection at the defendant’s trial on impaired driving charges. That application stated the officer’s conclusion, based on the circumstances he observed following the crash, that the defendant was operating the moped. In addition, the defendant’s cross-examination of the officer brought out much of the same information. Thus, the Supreme Court held that the defendant did not meet his burden to establish that a different result would have been reached had the objected-to testimony been excluded.
The defendant was convicted of first-degree murder based on felony murder, attempted first-degree murder, felonious discharge of a firearm into an occupied vehicle in operation, and two counts of conspiracy to commit first-degree murder. The defendant’s brother was the shooter and was convicted in a separate case. (1) On appeal the defendant argued that the trial judge committed plain error by admitting the following evidence. (A) A witness testified that the defendant knew that the defendant’s brother intended to shoot the victims. The Court found that the testimony was inadmissible because a witness may not testify to another person’s mind or purpose without personal knowledge of the person’s mind or purpose, a foundation not laid by the State. The Court concluded, however, that erroneous admission of the testimony did not have a probable impact on the jury’s finding that the defendant counseled and knowingly aided the shooting by assisting in luring the victims to the place where the defendant’s brother shot them. (B) Two witnesses who were not called as experts, one of whom was a detective, testified that the defendant concealed evidence about the planned shooting by using a smartphone texting app. Applying Rule 701 of the North Carolina Rules of Evidence, which requires that opinion testimony by lay witnesses be rationally based on a witness’s perception and helpful to the jury, the Court found that the State failed to lay a foundation showing that the witnesses were familiar with how the use of such apps affects cell phone records. The Court concluded that the erroneous admission of the testimony was not plain error because other evidence showed that the defendant was communicating with her brother via cellphone, that her brother destroyed his cellphone, and there were no records of their communications, which the jury could have viewed in a manner disadvantageous to the defendant. (C) A witness testified to the good character of one of the victims— that he was kind, protective, and nonviolent, among other qualities. The Court held that this testimony was inadmissible under Rule 404(a)(2) because it was not offered to rebut any evidence by the defendant that the victim was the first aggressor in the altercation. The Court concluded that the erroneous admission of the testimony was not plain error given other evidence consistent with the defendant’s guilt. (2) The defendant argued, the State conceded, and the Court found that the trial judge erred in allowing the jury to convict her of two counts of conspiracy because the evidence showed a single conspiracy to shoot two people. The Court therefore vacated one of the conspiracy convictions and remanded for resentencing. One judge concurred in the result only.
In a felony death by vehicle case, the trial court did not abuse its discretion by sustaining the State’s objection when defense counsel asked the defendant whether he would have been able to stop the vehicle if it had working brakes. Because a lay opinion must be rationally based on the witness’s perception, for the defendant’s opinion to be admissible, some foundational evidence was required to show that he had, at some point, perceived his ability, while highly intoxicated, to slow down the vehicle as it went through the curve at an excessive speed. However, there was no evidence that the defendant ever had perceived his ability to stop the car under the hypothetical circumstances.
The court, per curiam and without an opinion, reversed the ruling of the North Carolina Court of Appeals and held, for the reasons stated in the dissenting opinion below, that the trial judge erred in allowing a detective to offer a lay opinion that 55 grams of a white powder was cocaine. The officer’s identification of the powder as cocaine was based solely on the detective’s visual observations. There was no testimony why the officer believed that the white powder was cocaine other than his extensive experience in handling drug cases. There was no testimony about any distinguishing characteristics of the white powder, such as its taste or texture.
The court reversed a decision by the court of appeals in State v. Nabors, 207 N.C. App. 463 (Oct. 19, 2010) (the trial court erred by denying the defendant’s motion to dismiss drug charges when the evidence that the substance at issue was crack cocaine consisted of lay opinion testimony from the charging police officer and an undercover informant based on visual observation; the court held that State v. Ward, 364 N.C. 133 (2010) calls into question “the continuing viability” of State v. Freeman, 185 N.C. App. 408 (2007) (officer can give a lay opinion that substance was crack cocaine),and requires that in order to prove that a substance is a controlled substance, the State must present expert witness testimony based on a scientifically valid chemical analysis and not mere visual inspection). The supreme court declined to address whether the trial court erred in admitting lay testimony that the substance at issue was crack cocaine, instead concluding that the testimony by the defendant’s witness identifying the substance as cocaine was sufficient to withstand the motion to dismiss.
In this drug case, the court held that although the trial court erred by allowing lay opinion testimony identifying the substance at issue as crack cocaine based on a visual identification, the error was not prejudicial where the State presented expert testimony, based on a scientifically valid chemical analysis, that the substance was a controlled substance. The trial court allowed the arresting officer, a Special Agent Kluttz with the North Carolina Department of Alcohol Law Enforcement, to identify the substance as crack cocaine. Agent Kluttz based his identification on his training and experience and his perceptions of the substance and its packaging. He was not tendered as an expert. The State also introduced evidence in the form of a Lab report and expert testimony by a chemical analyst with the North Carolina State Crime Laboratory. This witness testified that the results of testing indicated that the substance was consistent with cocaine. North Carolina Supreme Court precedent establishes two rules in this area: First, the State is required to present either a scientifically valid chemical analysis of the substance in question or some other sufficiently reliable method of identification. And second, testimony identifying a controlled substance based on visual inspection—whether presented as an expert or lay opinion—is inadmissible. Applying this law, the court agreed with the defendant that Agent Kluttz’s identification of the substance as crack cocaine was inadmissible lay opinion testimony. However given the other admissible evidence that identified the substance as a controlled substance based on a chemical analysis, the defendant failed to demonstrate prejudice and therefore to establish plain error.
Not mentioning Meadows and stating that notwithstanding Llamas-Hernandez, State v. Freeman, 185 N.C. App. 408 (2007), stands for the proposition that an officer may offer a lay opinion that a substance is crack cocaine.
Citing Ward, discussed above under expert opinions, the court held that the trial judge erred by allowing a police officer to testify that he “collected what [he] believe[d] to be crack cocaine.” Controlled substances defined in terms of their chemical composition only can be identified by the use of a chemical analysis rather than through the use of lay testimony based on visual inspection.
Evidence > Opinions > Lay Opinions > Drug Cases > Marijuana
In this Beaufort County case, defendant appealed his possession of marijuana and marijuana paraphernalia convictions, arguing the trial court erred by admitting hearsay testimony and denying his motion to dismiss for insufficient evidence. The Court of Appeals found harmless error in admitting the hearsay testimony and sufficient evidence to support the convictions.
Between February and March of 2019, the Beaufort County Sheriff’s Office used a confidential informant to conduct drug buys at a car wash owned by defendant’s father. Using audio and video transmitters, the officers heard and observed defendant discuss the price of drugs and handing drugs over for sale. Defendant was subsequently convicted based on the testimony of one of the officers who arranged the buys and observed the transmitters during the buys from defendant. This officer testified that he had known defendant since he was a little boy and would recognize his voice in a recording.
Defendant argued that the testimony of the officer was hearsay, as he read directly from the search warrant and affidavit; the court disagreed, noting that the officer offered extensive testimony from personal memory, and evidence in the record supported the conclusions outside of the hearsay statements. Additionally, the court noted defendant had ample opportunity for cross-examination on the substance of the officer’s testimony, meaning even if the portions of testimony that were hearsay were admitted erroneously, they did not rise to the level of prejudicial under the plain error standard. Slip Op. at 6-7, citing State v. Ridgeway, 137 N.C. App. 144 (2000). The court likewise held that admitting the search warrant and affidavit was harmless error, as the officer was present on the stand for cross-examination about the contents of the search warrant. Id. at 9-10, citing State v. Jackson, 24 N.C. App. 394 (1975).
The basis of defendant’s motion to dismiss was the State did not admit sufficient evidence to establish that the product seized was marijuana instead of hemp. The court noted extensive evidence in the record regarding (1) defendant referring to the substance for sale as “marijuana” and (2) the officer’s testimony about the substance and the paraphernalia present that supported the conclusion that defendant was selling marijuana. Id. at 13-14. Based on this evidence the court found no error with the denial of defendant’s motion.
The trial court did not err by allowing the two officers to identify the green vegetable matter as marijuana based on their observation, training, and experience.
In a case arising from a pharmacy break-in, the court rejected the defendant’s argument that the trial court erred by failing to dismiss trafficking in opium charges because the State did not present a chemical analysis of the pills. Citing State v. Ward, 364 N.C. 133 (2010), and State v. Llamas-Hernandez, 363 N.C. 8 (2009), the court determined that State is not required to conduct a chemical analysis on a controlled substance in order to sustain a conviction under G.S. 90-95(h)(4), provided it has established the identity of the controlled substance beyond a reasonable doubt by another method of identification. In the case at hand, the State’s evidence did that. The drug store’s pharmacist manager testified that 2,691 tablets of hydrocodone acetaminophen, an opium derivative, were stolen from the pharmacy. He testified that he kept “a perpetual inventory” of all drug items. Using that inventory, he could account for the type and quantity of every item in inventory throughout the day, every day. Accordingly, he was able to identify which pill bottles were stolen from the pharmacy by examining his inventory against the remaining bottles, because each bottle was labeled with a sticker identifying the item, the date it was purchased and a partial of the pharmacy’s account number. These stickers, which were on every pill bottle delivered to the pharmacy, aided the pharmacist in determining that 2,691 tablets of hydrocodone acetaminophen were stolen. He further testified, based on his experience and knowledge as a pharmacist, that the weight of the stolen 2,691 pill tablets was approximately 1,472 grams. Based on his 35 years of experience dispensing the same drugs that were stolen and his unchallenged and uncontroverted testimony regarding his detailed pharmacy inventory tracking process, the pharmacist’s identification of the stolen drugs as more than 28 grams of opium derivative hydrocodone acetaminophen was sufficient evidence to establish the identity and weight of the stolen drugs and was not analogous to the visual identifications found to be insufficient in Ward and Llamas–Hernandez.
The trial court did not err by admitting lay opinion testimony from an officer regarding whether, based on his experience in narcotics, he knew if it was common for a person selling drugs to have possession of both money and drugs. Officer also gave an opinion about whether a drug dealer would have a low amount of inventory and a high amount of money or vice versa. The testimony was based on the officer’s personal experience and was helpful to the determination of whether the juvenile was selling drugs.
The trial judge did not err by allowing officers to give lay opinion testimony that the cocaine at issue was packaged as if for sale and that the total amount of money and the number of twenty-dollar bills found on the defendant were indicative of drug sales. The officers’ testimony was based on their personal knowledge of drug practices, through training and experience.
In this Buncombe County case, defendant appealed his convictions for driving while impaired and reckless driving, arguing (1) there was insufficient evidence that he was driving the vehicle, and (2) error in denying his motion to suppress the results of a warrantless blood draw. The Court of Appeals majority found no error.
In November of 2014, a trooper responded to a single vehicle accident and found a heavily damaged pickup truck against a steel fence off the side of the road. Defendant was inside the vehicle, unconscious and seriously injured. The trooper noticed the smell of alcohol and open beer cans in the vehicle. Defendant was the owner of the wrecked vehicle and there were no other people at the scene of the accident. At the hospital, the trooper ordered a warrantless blood draw. The results of this blood draw were that defendant was intoxicated, and these results were admitted at trial. The jury subsequently convicted defendant of drunk driving solely on the grounds that his blood alcohol level was above the legal limit under G.S. 20-138.1(a)(2).
The Court of Appeals first considered (1), noting that admitting opinion testimony from the trooper that defendant was operating the vehicle was improper, as the trooper did not observe defendant actually drive the pickup truck. The court explained this was not reversible error because the trial court provided a curative instruction to the jury, directing them to disregard the trooper’s testimony that defendant was the driver. The court found that sufficient evidence beyond the trooper’s testimony supported finding that defendant was the driver, justifying denial of defendant’s motion to dismiss.
Considering (2), the court explained that exigent circumstances supporting a warrantless blood draw almost always exist where a defendant is unconscious and being taken to a hospital. In Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), the Supreme Court’s plurality held that normally law enforcement may order a warrantless blood draw when the suspect is unconscious and taken to a hospital for treatment, but that the defendant must have an opportunity to argue the lack of exigency and show an “unusual case” that would require a warrant. Slip Op. at 8. Here, the court found that defendant had such an opportunity, and found no error in admitting the results of the blood draw.
Judge Tyson concurred in the judgment on (1), but dissented by separate opinion regarding (2), disagreeing with the majority’s application of Mitchell and the admission of the results obtained through the warrantless blood draw.
The trial court did not err by allowing a lay witness to testify that the defendant was impaired. The witness formed the opinion that the defendant was impaired because of the strong smell of alcohol on him and because the defendant was unable to maintain balance and was incoherent, acting inebriated, and disoriented. The witness’s opinion was based on personal observation immediately after the collision.
In a DWI/homicide case, the trial court erred by allowing a state’s witness to testify about ingredients and effect of Narcan. Although the state proffered the testimony as lay opinion, it actually was expert testimony. When the state called the witness, it elicited extensive testimony regarding his training and experience and the witness testified that Narcan contains no alcohol and has no effect on blood-alcohol content. Because the witness offered expert testimony and because the state did not notify the defendant during discovery that it intended to offer this expert witness, the trial court erred by allowing him to testify as such. However, the error was not prejudicial.
The defendant was convicted of possession of a firearm by a felon, three counts of assault with a deadly weapon and seven counts of discharging a firearm into an occupied vehicle based on an incident in which he chased two women from his house and fired at the car of a Good Samaritan who stopped to assist the women on the highway.
(1) Though the defendant did not object to the testimony at trial, he argued on appeal that the Good Samaritan should not have been permitted to testify as a lay witness that the shots were not fired from an automatic weapon. The court of appeals found no error in the admission of the testimony, which was based on the witness’s first-hand knowledge of the incident and his familiarity with the distinction between automatic and semi-automatic rifle fire, gained through decades of military service.
(2) Defendant argued on appeal that the State failed to prove the six additional shots fired into the truck after the first shot were discharged willfully or wantonly within the meaning of G.S. 14-34.1(b). The court of appeals rejected the defendant’s argument. The court noted that the Good Samaritan’s testimony provided evidence that the defendant did not use an automatic weapon but instead used a weapon that required him to pull and release the trigger (and thus employ his thought process) each time he decided to shoot into the occupied truck. In addition, testimony from the Good Samaritan and one of the women established that the shooting continued over an identifiable period of time, as opposed to occurring in a rapid burst of gunfire.
Finally, the court of appeals dismissed the defendant’s argument that he had been sentenced in violation of his right to be free from double jeopardy on the basis that the defendant failed to preserve the argument by objecting a trial.
In a murder case involving a shooting, the trial court did not abuse its discretion by allowing a detective to give lay opinion testimony concerning the calibers of bullets recovered at the crime scene. The detective testified that as a result of officer training, he was able to recognize the calibers of weapons and ammunition. The detective’s testimony was based upon on his own personal experience and observations relating to various calibers of weapons, and was admissible under Rule 701.
In this felony death by vehicle case, the trial court committed reversible error by admitting lay opinion testimony identifying the defendant as the driver of the vehicle, where the expert accident reconstruction analyst was unable to form an expert opinion based upon the same information available to the lay witness. The defendant and Danielle Mitchell were in a car when it ran off the road and wrecked, killing Mitchell. The defendant was charged with felony death by vehicle and the primary issue at trial was whether the defendant was driving. At trial, Trooper Fox testified that he believed the defendant was driving because “the seating position was pushed back to a position where I did not feel that Ms. Mitchell would be able to operate that vehicle or reach the pedals.” Fox, however, acknowledged that he was not an expert in accident reconstruction. Trooper Souther, the accident reconstruction expert who analyzed the accident, could not reach a conclusive expert opinion about who was driving. The defendant was convicted and he appealed, arguing that the trial court erred by allowing Fox, who was not an expert, to testify to his opinion that the defendant was driving. The court noted that accident reconstruction analysis requires expert testimony and it found no instance of lay accident reconstruction analysis testimony in the case law. Here, Fox based his lay opinion on the very same information used by Souther but without the benefit of expert analysis. The court concluded: “the facts about the accident and measurements available were simply not sufficient to support an expert opinion — as Trooper Souther testified — and lay opinion testimony on this issue is not admissible under Rule 701.” Having found error, the court went on to conclude that it was prejudicial, requiring a new trial.
It was error to allow officers, who were not proffered as experts in accident reconstruction and who did not witness the car accident in question, to testify to their opinions that the defendant was at fault based on their examination of the accident scene. The court stated: “Accident reconstruction opinion testimony may only be admitted by experts, who have proven to the trial court's satisfaction that they have a superior ability to form conclusions based upon the evidence gathered from the scene of the accident than does the jury.” However, the court went on to find that the error did not rise to the level of plain error.
In this Nash County case, defendant appealed his convictions for discharging a weapon into occupied property inflicting serious injury and possession of a firearm by a felon, arguing that the trial court erred by (1) allowing lay opinion testimony by police officers, (2) denying defendant’s motion to dismiss the discharging a firearm charges, and (3) admitting testimony that defendant was not cooperative during the investigation. The Court of Appeals found no error.
Defendant was convicted for the 2017 shooting of a home in Rocky Mount that injured the homeowner. The homeowner and victim of the injuries provided police with surveillance video from the home that showed a man matching the appearance of defendant, as well as a vehicle police later found defendant driving. At trial, the state offered testimony from several police officers identifying defendant in the surveillance footage. Defendant objected but the trial court overruled these objections. Defendant did not object to the testimony from one officer that defendant did not answer questions from a detective.
The Court of Appeals reviewed issue (1) in light of Rule 701, using the rubric from State v. Belk, 201 N.C. App. 412 (2009), explaining that the testimony was admissible as the officers had encountered defendant before and the quality of the video was low, so the identifying features highlighted by the officers weighed in favor of admissibility. Slip Op. at 8-9. Turning to issue (2), defendant argued that the state failed to put forward evidence showing a bullet he fired struck the victim; the court disagreed, noting that surveillance footage showed a person identified by witnesses as defendant standing near the home and firing shots in the direction of the house. The only other person visible on the footage did not appear to fire a shot, meaning evidence supported the inference that defendant fired a bullet that hit the victim. Finally, considering (3), the court did not find plain error, as the prosecutor did not ask the witness to comment on defendant’s lack of answers, and did not rely on the testimony to establish any element of the crime or defendant’s ultimate guilt.
A man owned a trailer containing various catering equipment used for his business and stored the trailer on the business’s property adjacent to Sheetz. In the last week of August 2016, he drove past the property and saw that the trailer was gone. He contacted the police department, and a detective met him at the property. After reviewing footage recorded by Sheetz’s cameras, the detective sent a still image to a DMV agent who was able to identify the defendant as the person in the image. At trial, the man, the detective, the manager at Sheetz, and the DMV agent each identified the defendant as the person in the footage towing the trailer away. The defendant was found guilty of larceny of the trailer.
(1) On appeal, the defendant argued that the trial court plainly erred by permitting the State’s witnesses to give lay opinion testimony identifying the defendant as the individual pictured in the Sheetz footage. The Court of Appeals held that because the DMV agent testified that he was familiar with and had previous dealings with the defendant, the agent was qualified to give lay opinion testimony identifying the person in the Sheetz footage as the defendant and that the admission of the agent’s testimony was not error. The Court also held that because the other witnesses each had no familiarity with the defendant prior to seeing him in the Sheetz footage, admission of their testimony was error. However, the Court concluded that those admissions did not amount to plain error because the admission of the DMV agent’s identification was not erroneous, the Sheetz footage illustrated the agent’s identification and permitted the jury to assess its accuracy, and the jury had the opportunity to draw its own conclusions based on still images admitted into evidence.
(2) The defendant next argued that the trial court erred by denying his motion to dismiss because the evidence was insufficient to support his conviction for felony larceny. The defendant argued that the evidence admitted at trial established only that the defendant was in the Sheetz store and that there was insufficient evidence to support an inference that the person depicted in the Sheetz surveillance video is the person who stole the trailer. In rejecting this argument, the Court of Appeals determined that crediting the in-court identifications and giving the State the benefit of every reasonable inference, a rational juror could conclude that the defendant was the sole occupant and driver of the truck and, without consent, hitched the man’s trailer to the truck and drove away with the trailer in tow, intending to deprive the man of it permanently.
(3) The defendant argued that the trial court erred in ordering restitution because it failed to consider the defendant’s ability to pay. Prior to ordering restitution, the trial court was informed that the defendant was near the end of an active sentence and therefore unable to currently earn, the defendant has two children to support upon his release, and the defendant plans to go back to school and get a trade once he leaves from custody. The defendant also filed an affidavit of indigency reflecting that he was in custody and had zero assets and zero liabilities as of the date of the trial. The Court of Appeals held that the trial court did not fail to consider the defendant’s resources and thus did not abuse its discretion in ordering restitution.
(1) In this murder case, the trial court did not err by instructing the jury on the doctrine of acting in concert where there was evidence that the defendant and another man met together at a store, discussed with the defendant’s brother that the victim owed the brother money, received instructions from the brother to collect the money, traveled together to the scene of the murder, and fled together from the scene after the defendant shot the victim.
(2) The trial court erred in allowing the co-defendant’s aunt, who was present at the scene of the murder but did not witness it directly, to testify that she believed the defendant was holding a gun in surveillance video footage published to the jury. This lay opinion testimony, which was not based on any personal knowledge, invaded the role of the jury in violation of Rule 602 because the aunt was in no better position to know what the video showed than the jurors. The error did not prejudice the defendant.
In this felon in possession of a firearm case, the trial court did not abuse its discretion by allowing an officer to identify a person depicted in a surveillance video as being the defendant. The officer testified that while he had never had any direct contact with the defendant he knew who the defendant was. On appeal the defendant argued that the officer was in no better position than the jury to identify the defendant in the surveillance footage. Rejecting this argument, the court noted that the officer had seen the defendant in the area frequently and knew who he was. In one instance, the officer saw the defendant coming out of a house that the officer was surveilling; the officer could identify the defendant because he recognized the defendant’s face and the defendant was wearing a leg brace and limping. These encounters would have sufficiently allowed the officer to acquire the requisite familiarity with the defendant’s appearance so as to qualify him to testify to the defendant’s identity. Additionally, the defendant had altered his appearance significantly between the date in question and the date of trial. The length and style of the defendant’s hair was distinctive during the period that the officer became familiar with the defendant and matched that of the individual shown on the surveillance footage. However, the defendant had a shaved head at trial. Thus, by the time of trial the jury was unable to perceive the distinguishing nature of the defendant’s hair at the time of the shooting. Thus the officer was better qualified than the jury to identify the defendant in the videotape. Because the officer was familiar with the defendant’s appearance and because the defendant had altered his appearance by the time of trial, the trial court did not abuse its discretion by allowing the officer to testify to his opinion that the defendant was the individual depicted shooting a weapon in the surveillance video.
In this case involving breaking and entering, larceny and other charges, the trial court did not err by failing to exclude the testimony of two law enforcement officers who identified the defendant in a surveillance video. The officers were familiar with the defendant and recognized distinct features of his face, posture, and gait that would not have been evident to the jurors. Also, because the defendant’s appearance had changed between the time of the crimes and the date of trial, the officer’s testimony helped the jury understand his appearance at the time of the crime and its similarity to the person in the surveillance videos.
The trial court did not commit plain error by admitting an officer’s lay opinion testimony identifying the defendant as the person depicted in a videotape. The defendant argued that the officer was in no better position than the jury to identify the defendant in the videotape. However, the officer had contact with the defendant prior to the incident in question; because he was familiar with the defendant, the officer was in a better position than the jury to identify defendant in the videotape.
The trial court did not commit plain error by allowing a detective to identify the defendant as the person shown in a still photograph from a store’s surveillance tapes. The detective observed the defendant in custody on the morning that the photo was taken, affording him the opportunity to see the defendant when his appearance most closely matched that in the video. The detective also located the defendant’s clothes. As such, the detective had more familiarity with the defendant’s appearance at the time the photo was taken than the jury could have
In a sexual exploitation of a minor and indecent liberties case, the trial court did not err by allowing lay opinion testimony regarding photographs of a five-year-old child that formed the basis for the charges. None of the witnesses perceived the behavior depicted; instead they formed opinions based on their perceptions of the photographs. In one set of statements to which the defendant failed to object at trial, the witnesses stated that the photographs were “disturbing,” “graphic,” “of a sexual nature involving children,” “objectionable,” “concerning” to the witness, and that the defendant pulled away the minor’s pant leg to get a “shot into the vaginal area.” As to these statements, any error did not rise to the level of plain error. However the defendant did object to a statement in the Police Incident report stating that the photo “has the juvenile’s female private’s [sic] showing.” At to this statement, the court held that the trial court did not abuse its discretion by admitting this testimony as a shorthand statement of fact.
The trial court committed reversible error by allowing a police officer to give a lay opinion identifying the defendant as the person depicted in a surveillance video. The officer only saw the defendant a few times, all of which involved minimal contact. Although the officer may have been familiar with the defendant’s “distinctive” profile, there was no basis for the trial court to conclude that the officer was more likely than the jury correctly to identify the defendant as the person in the video. There was is no evidence that the defendant altered his appearance between the time of the incident and the trial or that the individual depicted in the footage was wearing a disguise and the video was of high quality.
The trial judge erred in allowing a detective to offer lay opinion testimony regarding whether what was depicted in crime scene surveillance videos was consistent with the victim’s testimony. For example, the detective was impermissibly allowed to testify that the videotapes showed a car door being opened, a car door being closed, and a vehicle driving away. The court found that the officer’s testimony was neither a shorthand statement of facts nor based on firsthand knowledge.
The trial court did not abuse its discretion by allowing an officer to give a lay opinion as to the value of a stolen Toyota truck in a felony possession trial. The officer had worked as a car salesman, was very familiar with Toyotas, and routinely valued vehicles as a police officer. He also spent approximately three hours taking inventory of the truck.
Evidence > Opinions > Lay Opinions > Blood
The trial court did not err by permitting detectives to offer lay opinions that a substance found on a lawn chair used to beat the victim was blood. One detective testified that there was blood in the driveway and that a lawn chair close by had blood on it. He based this conclusion on his 7 years of experience as an officer, during which he saw blood on objects other than a person several times and found that blood has a distinct smell and appearance. A second detective opined that there was blood on the lawn chair based on the “hundreds and maybe thousands” of times that he had seen blood in his life, both in the capacity as an officer and otherwise.
In a burglary and felony larceny case, an officer properly offered lay opinion testimony regarding a shoeprint found near the scene. The court found that the shoeprint evidence satisfied the Palmer “triple inference” test:
[E]vidence of shoeprints has no legitimate or logical tendency to identify an accused as the perpetrator of a crime unless the attendant circumstances support this triple inference: (1) that the shoeprints were found at or near the place of the crime; (2) that the shoeprints were made at the time of the crime; and (3) that the shoeprints correspond to shoes worn by the accused at the time of the crime.
In this capital case, the trial court did not commit plain error by admitting lay opinion testimony by an eyewitness. When the eyewitness was asked about the defendant’s demeanor, she stated: “He was fine. I mean it was -- he had -- he knew what he was doing. He had it planned out. It was a -- he -- he knew before he ever got there what was going to happen.” The defendant argued that the eyewitness had no personal knowledge of any plans the defendant might have had. The court noted that a lay witness may provide testimony based upon inference or opinion if the testimony is rationally based on the witness’s perception and helpful to a clear understanding of his or her testimony or the determination of a fact in issue. It further noted that this rule permits a witness to express “instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time. Such statements are usually referred to as shorthand statements of facts.” Immediately before the testimony at issue, the witness testified that the defendant had said that “[h]e was in debt with somebody who he needed money for and that’s why they came to [the] house,” that the debt was “with a drug dealer and they were going to kill him, if he did not come up with their money,” and that “his brother had been shot and he was dying and he had to get their money.” In context, the witness’s statements that the defendant “had it planned out” and “knew before he ever got there what was going to happen” were helpful to an understanding of her testimony and were rationally based on her perceptions upon seeing the defendant commit the multiple murders at issue.
(1) In this indecent liberties with a child case, the court rejected the defendant’s argument that the trial court committed plain error by allowing the victim’s mother to vouch for the victim’s credibility. An individual informed the victim’s mother that the victim said that the defendant had touched her inappropriately. The victim was still asleep at the time this exchange took place. The victim’s mother testified as follows:
I knew that my daughter would tell me the truth because that’s what I had instilled in her. So I was debating on whether to wake her up. I didn’t want to traumatize her. I didn’t want to scare her. I knew that when she would come to me at that moment when I asked her that she would tell me the truth.
In sum, the court noted, the victim’s mother testified that she believed that her daughter was truthful in her accusations. Assuming arguendo admission of this testimony was improper, the defendant failed to show that the jury probably would have reached a different result absent the error.
(2) The court rejected the defendant’s argument that a detective’s testimony improperly vouched for the victim’s credibility. Here, the detective testified about his observation of the victim’s demeanor during his interview with her. The detective testified as follows:
Her responses seemed to be thoughtful. She paused several times while telling the story, just trying to recollect, and with each account she looked at the ground or looked downward several times, seemed to be genuinely affected by what had occurred.
The court rejected the notion that this testimony was the functional equivalent of vouching for the victim’s credibility, finding instead that it “contains precisely the type of ‘instantaneous conclusions’ that our Supreme Court considers to be admissible ‘shorthand statements of fact.’”
In this child sexual assault case the trial court did not abuse its discretion by allowing the victim’s mother to testify about changes she observed in her daughter that she believed were a direct result of the assault. The court rejected the defendant’s argument that this testimony was improper lay opinion testimony, finding that the testimony was proper as a shorthand statement of fact.
An officer’s testimony that a substance found on a vehicle looked like residue from a car wash explained the officer’s observations about spots on the vehicle and was not a lay opinion. The officer properly testified to a lay opinion that (1) the victims were not shot in the vehicle, when that opinion was rationally based on the officer’s observations regarding a lack of pooling blood in or around the vehicle, a lack of shell casings in or around the car, very little blood spatter in the vehicle, and no holes or projectiles found inside or outside the vehicle; (2) one of the victim was “winched in” the vehicle using rope found in the vehicle, when that opinion was based upon his perception of blood patterns, the location of the vehicle, and the positioning of and tension on the rope on the seat and the victim’s hands; and (3) the victims were dragged through the grass at the defendant’s residence, when that opinion was based on his observations at the defendant’s residence and his experience in luminol testing.
In this Cleveland County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and attempted robbery, arguing (1) error in denying his motion to dismiss for insufficient evidence based upon the impossibility of a witness’s testimony, and (2) inadequate Batson findings. The Court of Appeals majority found no error in (1), but remanded to the trial court in (2) for further findings under the guidance of State v. Hobbs, 374 N.C. 345 (2020).
In October of 2016, several people were gathered at a home drinking alcohol and taking drugs. Early in the morning, a hooded gunman entered the house, exchanging gunfire with one of the victims and killing two victims while leaving a third paralyzed. One of the witnesses present at the scene identified defendant as the gunman, and defendant came to trial for the charges in March of 2020. After defendant was convicted, he appealed, and the Court of Appeals held this case in abeyance pending the resolution of State v. Campbell, 384 N.C. 126 (2023).
In (1), defendant argued that the testimony of the witness identifying him as the gunman was physically impossible. The Court of Appeals first noted that to be “inherently incredible,” the testimony of the witness must be irreconcilable with “basic physical facts or laws of nature.” Slip Op. at 7. The court explained that “evidence is only inherently incredible where the alleged impossibility fundamentally undermines the reliability of the evidence as opposed to creating conflicts at the margins.” Id. at 10. Here, defendant pointed to three different issues with the witness’s testimony, but only one of those, the vantage point of the witness who saw the gunman shoot a victim in the living room, could have qualified as evidentiary impossibility. Defendant’s interpretation required the gunman to maintain a fixed location in the living room after speaking to the witness and subsequently shooting one of the victims. However, the witness’s testimony did not contain a statement that defendant stayed stationary, and nothing else ruled out the idea that the gunman stepped towards the victim before shooting her. Because nothing in the record fundamentally undermined the witness’s testimony, and a plausible explanation existed for the inconsistencies identified by defendant, the court did not find error in denying defendant’s motion.
Defendant’s Batson challenge in (2) was based upon the State using two peremptory challenges on black female prospective jurors. Under Hobbs, a trial court must conduct the three-step Batson analysis by first deciding whether the defendant has made a prima facie showing of racial discrimination, then proceeding to hear the State’s race-neutral reasons for striking the jurors, and finally ruling on the merits of the Batsonchallenge after weighing the circumstances around the stricken jurors. Here, the trial court immediately requested the State’s input after hearing defendant’s objection and issued a ruling deciding the entire Batsonchallenge, “issuing no preliminary ruling on whether Defendant had made a prima facie case [of racial discrimination],” and rendering the first Batson step moot. Id. at 21-22. The trial court ruled after hearing the State’s race-neutral reasons for striking the jurors, “ma[king] the ruling, in substance, a ruling on the third step of Batson.” Id. at 22. This ruling lacked the analysis required, as “’[T]he trial court did not explain how it weighed the totality of the circumstances surrounding the prosecution’s use of peremptory challenges,’ nor did it conduct a comparative analysis between the stricken African-American jurors and the other jurors alleged to have been similarly situated.” Id. at 24-25, quoting Hobbs at 358. Because defendant did not seek review of the trial court’s substantive ruling, the court did not attempt to perform a comparative-juror analysis, instead reversing and remanding the case for “further proceedings consistent with those set out in Hobbs.” Id. at 25.
Judge Dillon concurred by separate opinion, noting that the State may be heard during the first step of the Batson analysis and that the trial court could still make a ruling on the prima facie showing of discrimination, but that the court here proceeded to step two.
Judge Stading concurred to the holding in (1) and dissented to the holding in (2) by separate opinion, and would have held that the trial court committed no error as the step one Batson determination was not moot under the circumstances of the case.
In this first-degree murder and discharging a firearm into an occupied vehicle in operation case, the Court of Appeals determined that the trial court did not commit reversible error on evidentiary issues and that there was no cumulative error. Defendant was jealous of Demesha Warren’s relationship with the victim, Kenneth Covington, and fatally shot Covington while Covington was driving Warren’s car after visiting the store on an evening when he and Warren were watching TV together at her apartment.
(1) Because certain prior statements made by Warren to an investigator correctly reflected her knowledge at the time she made them, the trial court did not err by admitting the statements as past recorded recollections under Rule 803(5). One statement was recorded by the investigator on the night of the murder and the other was an email Warren later provided to the investigator. At trial, Warren remembered speaking with the investigator on the night of the murder and giving him the email but could not remember the content of either communication because of trauma-induced memory loss. While Warren did not testify that the content of the recording correctly reflected her knowledge at the time, she did not disavow it and characterized the content as “what [she] had been through” and “just laying it all out.” This was sufficient for the Court to conclude that Warren was relaying information that reflected her knowledge correctly. As for the email, evidence suggesting that Warren dictated the email and signed and dated it when providing it to the investigator was sufficient to show that it correctly reflected her knowledge at the time.
(2) The trial court did not abuse its discretion in admitting testimony of the State’s expert on gunshot residue (GSR) because the expert followed the State Crime Lab’s procedures as required to meet the reliability requirement of Rule 702(a). The defendant argued that the expert did not follow Lab protocol because the expert analyzed a GSR sample taken from the defendant more than four hours after the shooting. The trial court found, and the Court of Appeals agreed, that the expert actually did follow Lab protocol which permits a sample to be tested beyond the four-hour time limit when the associated GSR information form indicates that collection was delayed because the person from whom the sample was collected was sleeping during the four-hour time window, as was the case here. The Court determined that the defendant failed to preserve another Rule 702(a) argument related to threshold amounts of GSR elements.
(3) The trial court did not abuse its discretion by allowing an investigator to provide lay opinion testimony identifying a car in a surveillance video as the defendant’s car based on its color and sunroof. The Court of Appeals explained that it was unnecessary for the investigator to have firsthand knowledge of the events depicted in the videos to provide the lay opinion identification. Rather, in order to offer an interpretation of the similarities between the depicted car and the defendant’s car, the investigator needed to have firsthand knowledge of the defendant’s car, which he did because he had viewed and examined the car following the shooting.
(4) The trial court erred by admitting testimony from a witness concerning statements Warren had made to the witness describing the defendant confronting Warren about her relationship with the victim and Warren’s belief that the defendant had killed the victim. The trial court admitted the testimony of those statements as non-hearsay corroboration of Warren’s testimony, but this was error because the statements were inconsistent with and contradicted Warren’s testimony. While error, admission of the statements was not prejudicial because the jury heard other admissible evidence that was consistent with the erroneously admitted statements.
(5) The trial court did not err by admitting a witness’s testimony recounting the victim’s statement to the witness that the victim was afraid of the defendant because the defendant had threatened to kill him as a statement of the victim’s then-existing state of mind under Rule 803(3). The fact of the threat explained the victim’s fear and, thus, the statement was “precisely the type of statement by a murder victim expressing fear of the defendant that our Supreme Court has long held admissible under Rule 803(3).”
(6) The trial court erred by admitting evidence that an investigator recovered a .45 caliber bullet from the defendant’s car because the bullet had no connection to the murder, which involved .40 caliber bullets, and therefore was irrelevant under Rules 401 and 402. However, this error did not amount to prejudicial plain error because it “did not draw any connection between Defendant and guns that had not already been drawn.”
(7) Finally, the Court rejected the defendant’s contention that the cumulative effect of the individual errors required a new trial, explaining that “the errors individually had, at most, a miniscule impact on the trial” because the facts underlying the erroneously admitted evidence came in through other means and there was extensive other evidence implicating the defendant in the murder.
In this Wilson County case, the defendant was convicted after a jury trial of first-degree murder related to a dispute arising out of a card game. Though the defendant told the victim he was going to kill him, and though multiple witnesses saw the defendant shoot the victim, the defendant claimed for the first time at trial that another man, William Saxton, actually shot the victim. During the trial, a witness testified over the defendant’s objection that the defendant had driven to Mr. Saxton’s house after the card game because he knew Mr. Saxton had guns. Another witness testified over the defendant’s objection that he thought the defendant had tried to have him killed. (1) The defendant argued on appeal that both witnesses gave impermissible lay-witness opinions and that the trial court erred by admitting them. The Court of Appeals agreed. A lay witness may not speculate about another person’s intentions on a particular occasion, and each of the witnesses here did (that the defendant drove to Mr. Sexton’s house to get a gun, and that the defendant had set up another witness to be killed, respectively). In both instances, the court concluded, the witness was in no better position than the jurors to deduce the defendant’s intentions based on the evidence. Nevertheless, the court concluded that neither witness’s testimony prejudiced the defendant in light of the ample evidence against him.
(2) The defendant also argued on appeal that his right to not incriminate himself was violated when the trial court allowed the State to elicit testimony from a detective that the defendant did not give the same explanation of events at trial (that another man shot the victim) at any time before trial. The defendant argued that asking the officer why the defendant did not mention the other man earlier impermissibly referenced his post-arrest silence. The Court of Appeals disagreed, noting that the right to remain silent did not apply when the defendant did not actually remain silent; instead, he spoke to the detective, claimed that he did not kill the victim, and that he did not know who did. The State’s questioning focused on the differences between the defendant’s statement during the investigation (that he did not know who killed the victim) and his explanation at trial (that Mr. Saxton killed the victim) and was therefore permissible.
The defendant was convicted after a jury trial of first-degree murder, attempted first-degree murder, and other serious felony charges after he shot and killed his former girlfriend and then pistol-whipped and fired a gun at another woman, a registered nurse. The defendant argued that the trial court erred by allowing lay testimony on the defendant’s mental capacity from his second victim, a registered nurse. She answered questions from the State on how the defendant compared to “psych patients” she had dealt with, on whether the defendant was able to process his thoughts, and on whether he was in touch with reality. Though a lay witness may not offer a specific psychiatric diagnosis, the Court of Appeals—reviewing the issue for abuse of discretion—concluded in light of the evidence against the defendant that there was no reasonable possibility that the result of his trial would have been different if the trial court had excluded the testimony.
In this child sexual assault case, the trial court did not commit plain error by allowing the defendant’s wife to testify regarding “red flags” that she should have seen earlier regarding the defendant’s conduct with the victim. In context, the witness was not offering an opinion as to the defendant’s guilt but rather responding to a question whether she had ever observed unusual behavior to between the defendant and the victim.
In this murder and possession of a firearm by a felon case, the trial court did not commit plain error by allowing the admission of an investigator’s testimony concerning the defendant’s demeanor. At trial, the investigator, who had interviewed the defendant, was asked to clarify why he thought that the defendant’s earlier statement didn’t “add up.” The investigator noted the defendant’s demeanor testifying, among other things, that the defendant did not express emotion when talking about his wife’s alleged suicide. The court rejected the defendant’s argument that the statements constituted impermissible lay opinions under Rule 701. Rather, it concluded that in context, the investigator was simply explaining the steps he took in his ongoing investigation; his statements expressing skepticism over the defendant’s account served merely to provide context explaining his rationale for subjecting the defendant to further scrutiny. The court further rejected the defendant’s argument that the investigator’s testimony regarding certain text messages sent from the victim’s phone also constituted improper lay opinion testimony. The investigator examined these messages to determine whether the victim’s death was a suicide. Like the investigator’s other testimony, this testimony provided context for his decision-making regarding the investigation; his testimony explained why he conducted a homicide investigation rather than concluding that the victim’s death was a suicide. Regarding the investigator’s testimony that the defendant “was deceptive,” the court concluded that because the statements were elicited by the defense on cross examination the invited error doctrine applied.
In this cyberbullying case based on electronic messages, the trial court did not abuse its discretion by allowing the investigating detective to testify that while investigating the case, he took screen shots of anything that appeared to be evidence of cyberbullying. The defendant argued that the detective’s testimony was inadmissible opinion testimony regarding the defendant’s guilt. The detective testified about what he found on Facebook and about the course of his investigation. When asked how he searched for electronic comments concerning the victim, he explained that examined the suspects’ online pages and “[w]henever I found anything that appeared to have been to me cyber-bullying I took a screen shot of it.” He added that “[i]f it appeared evidentiary, I took a screen shot of it.” This testimony was not proffered as an opinion of the defendant’s guilt; it was rationally based on the detective’s perception and was helpful in presenting to the jury a clear understanding of his investigative process and thus admissible under Rule 701.
In this felony child abuse case, the trial court did not commit plain error by admitting testimony from an investigating detective that the existence of the victim’s hairs in a hole in the wall of the home where the incident occurred was inconsistent with defendant’s account of the incident, that he punched the wall when he had difficulty communicating with a 911 operator. The detective’s testimony did not invade the province of the jury by commenting on the truthfulness of defendant’s statements and subsequent testimony. Rather, the court reasoned, the detective was explaining the investigative process that led officers to return to the home and collect the hair sample (later determined to match the victim). Contrary to defendant’s arguments, testimony that the hair embedded in the wall was inconsistent with defendant’s version of the incident was not an impermissible statement that defendant was not telling the truth. The detective’s testimony served to provide the jury a clear understanding of why the officers returned to the home after their initial investigation and how officers came to discover the hair and request forensic testing of that evidence. It concluded: “these statements were rationally based on [the officer’s] experience as a detective and were helpful to the jury in understanding the investigative process in this case.”
An officer properly gave lay witness testimony. In a case where data from the defendant’s electronic monitoring device was used to place him at the crime scene, the officer-witness testified regarding the operation of the device and tracking data retrieved from the secured server. When questioned about specific tracking points in the sequence of mapped points, he identified the date, time, accuracy reading, and relative location of the tracking points.
In a murder case, the trial court did not err by excluding testimony of Susan Strain, a licensed social worker. Strain worked with the defendant’s step-father for several years and testified that she occasionally saw the defendant in the lobby of the facility where she worked. The State objected to Strain’s proffered testimony that on one occasion the defendant “appeared noticeably depressed with flat affect.” The trial court allowed Strain to testify to her observation of the defendant, but did not permit her to make a diagnosis of depression based upon her brief observations of the defendant some time ago. The defendant tendered Strain as a lay witness and made no attempt to qualify her as an expert; her opinion thus was limited to the defendant’s emotional state and she could not testify concerning a specific psychiatric diagnosis. The statement that the defendant “appeared noticeably depressed with flat affect” is more comparable to a specific psychiatric diagnosis than to a lay opinion of an emotional state. Furthermore Strain lacked personal knowledge because she only saw the defendant on occasion in the lobby, her observations occurred seven years before to the murder, she did not spend any appreciable amount of time with him, and the defendant did not present any evidence to indicate Strain had personal knowledge of his mental state at that time.
In an assault with a deadly weapon on a law enforcement officer case, the trial court did not err by allowing the officer to give lay opinion regarding the weight of a kitchen chair (the alleged deadly weapon) that the defendant threw at him. The officer’s observation of the chair and of the defendant use of it was sufficient to support his opinion as to its weight. Also, this testimony was helpful to the jury.
No plain error occurred when the trial court allowed a detective to give lay opinion testimony that items were purchased with a stolen credit card and it looked like someone had tried to hide them; subtotals on a store receipt indicated that the credit card was stolen; blood was present on clothing and in a car; and a broken wood panel piece matched a break at the entry site. Some testimony was proper on grounds that an officer may give lay opinion testimony based on investigative training. Other testimony was nothing more than an instantaneous conclusion reached by the detective. Finally, the Supreme Court of North Carolina has upheld lay opinion testimony identifying blood or bloodstains.
Although Rule 704 allows admission of lay opinion evidence on ultimate issues, the lay opinion offered was inadmissible under Rule 701 because it was not helpful to the jury. In this case, a detective was asked: After you received this information from the hospital, what were your next steps? Were you building a case at this point? He answered: “I felt like I was building a solid case. [The defendant] was, indeed, the offender in this case.” However, the error did not constitute plain error.