State v. Malone-Bullock, ___ N.C. App. ___, 2021-NCCOA-406 (Aug. 3, 2021)

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.