State v. McIver, 2022-NCCOA-561, ___ N.C. App. ___ (Aug. 16, 2022)

In this Cumberland County case, defendant appealed his convictions for first degree murder and robbery based upon (1) the admission of expert testimony regarding cell phone locations and (2) a jury instruction on defendant’s flight from the scene. The Court of Appeals found no error by the trial court and affirmed defendant’s convictions.

Defendant and an accomplice were driven to the house of a woman known to sell marijuana in Fayetteville. After defendant and his accomplice were dropped off near the home, shots were fired, and witnesses saw men matching their descriptions leaving the home. In addition to the testimony of eyewitnesses, the State offered the testimony of an expert in cell phone analytics from the Fayetteville Police Department, and a GeoTime report plotting the location of cellphones associated with the victim and the driver of the vehicle that brought defendant to the scene.

The Court of Appeals first reviewed defendant’s objection to the cell phone expert, and noted that defendant did not object to the testimony in the presence of the jury. Counsel did file a motion in limine and objected to the expert after voir dire, but did not renew the objection when the testimony was offered in front of the jury later in the trial. The trial court noted defendant’s objection in front of the jury, but only after testimony and cross-examination had concluded. Applying State v. Ray, 364 N.C. 272 (2010), the court determined that defendant did not properly preserve the objection. Slip Op at ¶20. As a result, the court applied a plain error standard of review, and found sufficient evidence to support defendant's convictions.

Reviewing the jury instruction on flight, the court similarly found that defendant failed to preserve the objection, as counsel never objected to the jury instruction at all. To preserve the objection, the court explained, counsel should have objected prior to the jury retiring to consider the verdict. The court applied the same plain error standard of analysis, finding that the jury instruction did not have a probable impact on the jury’s finding of guilt and ample evidence supported defendant’s convictions.