State v. Hicks, COA20-665-2, ___ N.C. App. ___ (Dec. 31, 2024)

In this Randolph County case, defendant appealed her conviction for second-degree murder, arguing plain error in admitting two exhibits of defendant’s text message conversations. The Court of Appeals majority agreed, vacating the conviction and granting defendant a new trial.

In June of 2017, Defendant shot a man she had a sexual relationship with in the back inside her home. The relationship between defendant and the victim was rocky and involved the use of methamphetamine; both parties were also involved in sexual relationships with others. In 2019, defendant was convicted of second-degree murder, and appealed, arguing error in instructing the jury on the aggressor doctrine among other issues. The Court of Appeals agreed with the aggressor doctrine argument, granting a new trial in State v. Hicks, 283 N.C. App. 74 (2022). However, the Supreme Court reversed that holding in State v. Hicks, 385 N.C. 52 (2023), remanding to the Court of Appeals for consideration of defendant’s arguments regarding the text messages admitted as Exhibits 174 and 175 and leading to the current opinion.

Taking up the exhibits in question, the Court of Appeals first established there was no invited error. After the prosecutor explained to the trial court their intention to provide printed out copies of the text messages to the jury to read along during the testimony, defense counsel said, “I think that’s probably a pretty good idea” and indicated the defense might use the same method with their expert. Slip Op. at 12. The court explained that “[t]his conversation does not indicate that defense counsel affirmatively requested that the jurors hold copies of State’s Exhibits 174 and 175, that the entirety of Defendant’s texts be submitted to the jury unredacted, nor that certain graphic images be enlarged.” Id. at 12-13. The court also highlighted that defense counsel did not stipulate to admitting the two exhibits, meaning this exchange did not represent invited error. Next the court considered several examples of cross-examination by defense counsel, concluding “[d]efense counsel did not address the numerous irrelevant and prejudicial texts nor the enlarged graphic images that Defendant now challenges on appeal.” Id. at 18. Finally, the court concluded that defense counsel’s request for an additional extraction from defendant’s phone was not invited error, as defense counsel was not trying to introduce all of the contents of defendant’s phone, but instead was “seeking to uncover potentially exculpatory evidence.” Id. at 20.

Having concluded that invited error did not apply, the court turned to plain error in admitting the exhibits, noting that “the analysis is whether, without that evidence, the jury probably would have reached a different result.” Id. at 21 (quoting State v. Reber, 386 N.C. 153 (2024)). Exhibit 174 consisted of text messages from defendant’s phone in 2017 and Exhibit 175 was several blown-up photographs of sex acts taken from these text messages. The jury was given printed copies of both exhibits to review during the testimony of a detective, who read portions of the text messages aloud and described some of the photographs. The court noted that many of the text messages in Exhibit 174 were irrelevant and prejudicial, and “the State published text message exchanges to the jury that were grossly prejudicial and carried a high propensity to inflame the emotional reaction of the jurors.” Id. at 27. The court reached a similar conclusion with the images in Exhibit 175, explaining “[u]nless the jurors were accustomed to looking at pornography, the close-up images of Defendant engaging in sexual activity with a married man only served the purpose of shocking and disgusting the jury.” Id. at 34.

After determining the prejudicial and irrelevant nature of the text messages and images, and the prejudicial nature of allowing the jury to hold the printed exhibits without any limiting instruction, the court performed the Reber analysis by examining the state of the evidence absent the two exhibits. The court concluded “[t]he jurors probably would have acquitted Defendant if the exhibits did not cause them to reach their decision based on passion, namely, a personal revulsion toward Defendant.” Id. at 43. As a result, the court vacated the conviction and remanded for a new trial.

Judge Murphy dissented and would have held the conflicting evidence would make this a “close case” for the jury, meaning it did not qualify as plain error under Reber.