State v. Brown, COA22-525, ___ N.C. App. ___ (Aug. 15, 2023)

In this Guilford County case, defendant petitioned for a writ of certiorari, arguing error in denial of his motion for appropriate relief (MAR) after a witness recanted her identification of defendant as the shooter in a homicide. The Court of Appeals majority denied the petition. 

In August of 2015, the victim was shot at a Greensboro apartment complex. Surveillance video showed defendant at the apartment complex, along with another man and a woman. Based upon statements from witnesses, the three were there to purchase Xanax from the girlfriend of the victim. Defendant and his male associate were in a gang that was rivals with the victim’s gang. After the shooting, both of defendant’s associates gave statements to the police identifying him as the shooter. In 2017, defendant entered an Alfordplea to second-degree murder and an unrelated robbery charge prior to reaching trial. Five years later, the woman who visited the apartment complex with defendant recanted her statement identifying defendant as the shooter, instead identifying defendant’s fellow gang member as the shooter. Defendant subsequently filed a MAR in April of 2022 based upon the recanted statement, which the trial court denied without an evidentiary hearing.

The Court of Appeals explained that the trial court was correct to deny the MAR without an evidentiary hearing, as defendant’s choice to enter an Alford plea meant that the witness did not offer “testimony” as that term is normally defined. The witness’s statement to police was unsworn, and because the matter did not go to trial, she was never called to testify and put under oath. Although G.S. 15A-1415(c) provides that a defendant may file an MAR for recanted testimony, “the unsworn statement given to law enforcement—upon which defendant purports reliance for his guilty plea—does not properly align with the definition of testimony.” Slip Op. at 6. The court concluded that declining to hold an evidentiary hearing was proper, as G.S. 15A-1420 only calls for an evidentiary hearing when the trial court is presented with questions of fact, and the issue here was purely a determination of law. 

Judge Riggs dissented by separate opinion, and would have remanded for an evidentiary hearing on the MAR, disputing the majority’s narrow interpretation of “testimony.” Id. at 17.