State v. Abbitt, ___ N.C. App. ___, 2021-NCCOA-403 (Aug. 3, 2021)

In this Rowan County case, two defendants, Sindy Abbitt and Daniel Albarran, were convicted of first-degree murder on the basis of premeditation and deliberation and felony murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon after they entered a victim’s apartment and shot her over a dispute about money. A witness to the shooting identified the defendants with certainty in photographic lineups, and cellular phone analysis conducted by the FBI showed the defendants were in locations near the victim on the night of the crime. 

(1) The defendants argued on appeal that the trial court erred by excluding their proffered evidence that another person committed the crime. To be relevant, evidence that another person committed a crime must not only implicate another person, but also exculpate the defendant. The Court of Appeals agreed with the trial court’s conclusion that the defendants’ evidence did support an inference that another person (Ashley Phillips) may have been involved in some way, but it was not inconsistent with the direct evidence of either defendant’s involvement in the actual shooting, and was therefore properly excluded.

(2) Defendant Albarran argued on appeal that the photographic array lineup used to identify him was unconstitutionally suggestive because the photograph of him was closer to his face than the other photos in the lineup, drawing attention to him. Albarran had filed a pretrial motion to suppress the lineup, but did not object to the witness’s in-court identification during trial. Reviewing the issue for plain error, the Court of Appeals concluded that in light of the unobjected-to in-court identification, any alleged error in the photo lineup would not have impacted the jury’s verdict. The defendant’s argument was therefore overruled.

(3) Albarran argued that the trial court erred by overruling his objection to the prosecutor’s statements during closing asking why the defendant Abbitt—who had filed a pretrial notice to assert an alibi defense—did not call certain witnesses to corroborate her whereabouts on the night of the crime. Albarran, who did not give notice of an alibi defense, claimed that the comment was an improper comment on his failure to present evidence. The Court of Appeals disagreed, concluding that the prosecutor’s comment on Abbitt’s failure to produce exculpatory evidence was not impermissible as applied to her and therefore were not improper. 

(4) Albarran argued that the trial court erred by sustaining the State’s objections to defense counsel’s statements during closing about Albarran’s tattoos. Defense counsel reminded the jury during closing that the witness’s description at the time of the offense made no mention of tattoos, and asked them to note the many tattoos they could see on him now. The Court of Appeals concluded that the trial court did not err in sustaining the objection where the defendant’s appearance at the time of trial—more than two years after the crime—had no bearing on the witness’s identification and description of the defendant on the night of the murder.

(5) Defendant Abbitt argued that her out-of-court statements to an officer that she had not been at the scene of the crime, that she had not seen the victim in years, and that she did not know Albarran were hearsay that was improperly placed into evidence as admissions. The Court of Appeals concluded that the statements were relevant and admissible under Rule 401, and that in any event admission of the statements did not give rise to a reasonable possibility that the jury would have reached a different result without the asserted error. 

(6) Finally, the Court of Appeals rejected defendant Abbitt’s argument that the short form murder indictment was insufficient to confer jurisdiction on the court, noting the Supreme Court of North Carolina’s longstanding and consistent jurisprudence on that issue.