State v. Thomas, ___ N.C. App. ___, 2021-NCCOA-700 (Dec. 21, 2021)

In this first-degree murder and discharging a firearm into an occupied vehicle in operation case, the Court of Appeals determined that the trial court did not commit reversible error on evidentiary issues and that there was no cumulative error.  Defendant was jealous of Demesha Warren’s relationship with the victim, Kenneth Covington, and fatally shot Covington while Covington was driving Warren’s car after visiting the store on an evening when he and Warren were watching TV together at her apartment.

(1) Because certain prior statements made by Warren to an investigator correctly reflected her knowledge at the time she made them, the trial court did not err by admitting the statements as past recorded recollections under Rule 803(5).  One statement was recorded by the investigator on the night of the murder and the other was an email Warren later provided to the investigator.  At trial, Warren remembered speaking with the investigator on the night of the murder and giving him the email but could not remember the content of either communication because of trauma-induced memory loss.  While Warren did not testify that the content of the recording correctly reflected her knowledge at the time, she did not disavow it and characterized the content as “what [she] had been through” and “just laying it all out.”  This was sufficient for the Court to conclude that Warren was relaying information that reflected her knowledge correctly.  As for the email, evidence suggesting that Warren dictated the email and signed and dated it when providing it to the investigator was sufficient to show that it correctly reflected her knowledge at the time.

(2) The trial court did not abuse its discretion in admitting testimony of the State’s expert on gunshot residue (GSR) because the expert followed the State Crime Lab’s procedures as required to meet the reliability requirement of Rule 702(a).  The defendant argued that the expert did not follow Lab protocol because the expert analyzed a GSR sample taken from the defendant more than four hours after the shooting.  The trial court found, and the Court of Appeals agreed, that the expert actually did follow Lab protocol which permits a sample to be tested beyond the four-hour time limit when the associated GSR information form indicates that collection was delayed because the person from whom the sample was collected was sleeping during the four-hour time window, as was the case here.  The Court determined that the defendant failed to preserve another Rule 702(a) argument related to threshold amounts of GSR elements. 

(3) The trial court did not abuse its discretion by allowing an investigator to provide lay opinion testimony identifying a car in a surveillance video as the defendant’s car based on its color and sunroof.  The Court of Appeals explained that it was unnecessary for the investigator to have firsthand knowledge of the events depicted in the videos to provide the lay opinion identification.  Rather, in order to offer an interpretation of the similarities between the depicted car and the defendant’s car, the investigator needed to have firsthand knowledge of the defendant’s car, which he did because he had viewed and examined the car following the shooting.

(4) The trial court erred by admitting testimony from a witness concerning statements Warren had made to the witness describing the defendant confronting Warren about her relationship with the victim and Warren’s belief that the defendant had killed the victim.  The trial court admitted the testimony of those statements as non-hearsay corroboration of Warren’s testimony, but this was error because the statements were inconsistent with and contradicted Warren’s testimony.  While error, admission of the statements was not prejudicial because the jury heard other admissible evidence that was consistent with the erroneously admitted statements.

(5) The trial court did not err by admitting a witness’s testimony recounting the victim’s statement to the witness that the victim was afraid of the defendant because the defendant had threatened to kill him as a statement of the victim’s then-existing state of mind under Rule 803(3).  The fact of the threat explained the victim’s fear and, thus, the statement was “precisely the type of statement by a murder victim expressing fear of the defendant that our Supreme Court has long held admissible under Rule 803(3).”

(6) The trial court erred by admitting evidence that an investigator recovered a .45 caliber bullet from the defendant’s car because the bullet had no connection to the murder, which involved .40 caliber bullets, and therefore was irrelevant under Rules 401 and 402.  However, this error did not amount to prejudicial plain error because it “did not draw any connection between Defendant and guns that had not already been drawn.”

(7) Finally, the Court rejected the defendant’s contention that the cumulative effect of the individual errors required a new trial, explaining that “the errors individually had, at most, a miniscule impact on the trial” because the facts underlying the erroneously admitted evidence came in through other means and there was extensive other evidence implicating the defendant in the murder.