State v. Graham, 2022-NCCOA-297, ___ N.C. App. ___ (May. 3, 2022)

In this Gaston County first-degree murder case, the trial court (1) did not err in instructing the jury that there was sufficient evidence to infer that the defendant intentionally injured the victim; (2) erred by allowing the State to examine the defendant about privileged communications he had with defense counsel; (3) and did not err by denying the defendant’s motion to compel the State to disclose the theory on which it sought to convict him of first-degree murder.

(1) The court rejected the defendant’s argument that the trial court’s instruction to the jury that “[w]hen an adult has exclusive custody of a child for a period of time during which that child suffers injuries that are neither self-inflicted nor accidental, there is sufficient evidence to create an inference that the adult intentionally inflicted those injuries” impermissibly “created a ‘mandatory presumption’” that the defendant intentionally injured the victim. Viewing the challenged language “in light of the entire charge” and in the greater context of the law regarding intent and direct and circumstantial evidence, the Court of Appeals found no error in the instruction, explaining in part that the phrase “sufficient to create an inference” cannot reasonably be interpreted as meaning that the basic facts, if proven, “necessarily create an inference” of intent.

(2) The trial court erred by permitting the State to question the defendant on cross-examination about the substance of communications between him and defense counsel as those communications were subject to attorney-client privilege. Over an objection and in an effort to impeach the defendant’s credibility, the State was permitted to question the defendant about whether he discussed his law enforcement interrogation with his attorney. The Court of Appeals determined that the error was not prejudicial in light of the fact that the defendant’s credibility was already at issue at the time of the objectionable cross-examination and the defendant already had testified to being untruthful with police in the past.

(3) Given the well-stablished principle that “when first-degree murder is charged, the State is not required to elect between theories of prosecution prior to trial,” the court rejected the defendant’s argument that the trial court erred by denying his pretrial motion to compel the State to disclose the theory upon which it sought his conviction.