In this Buncombe County case, defendant appealed his convictions for driving while impaired, arguing error in denying his motion to exclude an Intoximeter chemical analysis as well as his subsequent objections to the admission of the analysis at trial. The Court of Appeals majority found error as the officer performing the analysis did not conduct an observation period after ordering defendant to remove gum from his mouth, but did not find that defendant was prejudiced by the error, upholding his conviction. 

In March of 2021, an Asheville police officer observed defendant roll through a stop sign. The officer pulled over defendant, and observed the smell of alcohol, glassy eyes, and slurred speech. The office conducted field sobriety tests, determining that defendant was likely intoxicated. After defendant was arrested and taken to the Buncombe County Jail, a certified chemical analyst conducted a 15-minute observation period of defendant, followed by an Intoximeter breath analysis. After this first breath test, the analyst noted that defendant had gum in his mouth and had him spit it out, then conducted a second breath test two minutes after the first. Both tests resulted in 0.11 BAC readings. Both parties offered expert testimony about the possible effects of the gum, but no studies were admitted using the type of Intoximeter in question, and no evidence established the type of gum defendant had in his mouth at the time of the test.  

Taking up defendant’s argument, the Court of Appeals first explained that G.S. 20-139.1(b)(1) makes breath tests admissible if they are “performed in accordance with the rules of the Department of Health and Human Services.” Slip Op. at 8. The applicable rules are found in 10A NCAC 41B.0101, which requires an observation period to ensure the person being tested does not ingest alcohol, vomit, or eat or drink other substances. The State argued that chewing gum did not represent “eating” for purposes of the rules, a position the court’s opinion rejected:

In sum, we believe the intent of both the legislature and DHHS in the provisions pertinent here is clear: to ensure that the chemical analysis of a subject’s breath is accurate in measuring BAC and not tainted by the presence of substances in the mouth during testing. And in our view, to adopt the State’s position that the observation period requirement is not violated when a subject “chews” something during the period would lead to absurd results and have bizarre consequences because it would mean, for example, that a subject could engage in the following activities not listed in 10A NCAC 41B.0106(6) moments before the taking of breath samples: chewing gum—presumably including nicotine gum—or tobacco or food that is spit out before swallowing, dipping snuff, sucking on a medicated throat lozenge or a hard candy, using an inhaler, and swallowing a pill.

Id. at 13. Despite finding that the test was improperly admitted, the court did not see prejudice for defendant, noting the overwhelming evidence of defendant’s performance on the field sobriety tests, his glassy eyes and slurred speech, and the smell of alcohol observed by the officer.  

Judge Arrowood concurred in the result only.

Judge Wood concurred in the result only by separate opinion, and also would have held that the admission of the breath test results was not error. Id. at 19. 

In the Philippines in 2012, crime lord Paul LeRoux believed a real-estate broker, Catherine Lee, had stolen money from him.  LeRoux hired three men to kill her: Adam Samia, Joseph Hunter, and Carl Stillwell.  Lee was later murdered, shot twice in the head.  The four men were eventually arrested.  LeRoux turned state’s evidence.  Stillwell admitted that he was in the van when Lee was killed, but he claimed he was only the driver and that Samia had done the shooting.

Samia, Hunter, and Stillwell were charged with various offenses, including murder-for-hire and conspiracy.  They were tried jointly in the Southern District of New York.  Hunter and Stillwell admitted participation in the murder while Samia maintained his innocence.  At trial, the trial court admitted evidence of Stillwell’s confession, redacted to omit any direct reference to Samia (“He described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving.”).  The trial court instructed the jury that this testimony was admissible only as to Stillwell and should not be considered as to Samia or Hunter.  All three men were convicted and Samia sentenced to life plus ten years.  On appeal, the Second circuit found no error in admitting Stillwell’s confession in its modified form.  The Supreme Court granted certiorari to determine whether the admission of Stillwell’s altered confession, subject to a limiting instruction, violated Samia’s confrontation clause rights.

The Sixth Amendment guarantees a criminal defendant the right to be confronted with the witnesses against him.  In Crawford v. Washington, the Supreme Court held the confrontation clause bars the admission of out-of-court testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him.  Crawford, 541 U.S. at 53-54.  Stillwell’s post-arrest confession to DEA agents was plainly testimonial.  In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held a defendant’s confrontation clause rights are violated when his nontestifying codefendant’s confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant.  In Richardson v. Marsh, 481 U.S. 200 (1987), however, it found no error in the use of a redacted confession, holding that the confrontation clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction, when the confession is redacted to eliminate any reference to the defendant.  Finally, in Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court held that certain obviously redacted confessions might be directly accusatory and so fall within Bruton’s rule, even if they did not explicitly name the defendant.

In Samia, the Supreme Court recited the “general rule” that a witness whose testimony is introduced at a joint trial is not considered to be a witness against a defendant if the jury is instructed to consider that testimony only against a codefendant.  Samia, 2023 WL 4139001, at *5 (quoting Richardson, 481 U.S. at 206).  It reviewed the historical practice.  Id. at *6.  It discussed the doctrine that jurors are presumed to follow the trial judge’s instructions, and it acknowledged Bruton as “a narrow exception” to this rule.  Id. at *6-*7.  Reviewing Bruton, Richardson, and Gray, the Supreme Court found its precedents “distinguish between confessions that directly implicate a defendant and those that do so indirectly.”  Id. at *9.  Here, Stillwell’s confession was redacted to avoid naming Samia, “satisfying Bruton’s rule,” and it was not so obviously redacted as to resemble the confession in Gray.  Id. at *10.  Accordingly, the introduction of Stillwell’s confession coupled with a limiting instruction did not violate the confrontation clause.  Id. at *7.

Justice Barrett concurred in part and in the judgment.  She rejected the historical evidence described in Part II-A of the majority opinion as anachronistic (too late to inform the meaning of the confrontation clause at the time of the founding) and insubstantial (addressing hearsay rules rather than confrontation).

Justices Kagan dissented, joined by Justice Sotomayor and Justice Jackson.  Justice Kagan posited that “Bruton’s application has always turned on a confession’s inculpatory impact.”  Id. at *14 (Kagan, J., dissenting).  She said it would have been obvious to the jury that “the other person” referenced in the redacted confession was Samia, and “[t]hat fact makes Stillwell’s confession inadmissible” under Bruton.  Id. Justice Kagan accepted the majority’s dichotomy between confessions that implicate a defendant directly or indirectly, but she criticized the majority for finding Stillwell’s confession only indirectly implicated Samia.  Id. at *14-*15.  She accused the majority of undermining Bruton without formally overruling it: “Under this decision, prosecutors can always circumvent Bruton’s protections.”  Id. at *16.

Justice Jackson dissented separately.  Id. at *16 (Jackson, J., dissenting).  In her view, the default position under Crawford is that Stillwell’s confession was not admissible, and in seeking to introduce the confession the Government sought an exception from the confrontation clause’s exclusion mandate.  Id.  But under the majority’s approach, the default rule is that a nontestifying codefendant’s incriminating confession is admissible, so long as it is accompanied by a limiting instruction, and Bruton represents a narrow exception to this default rule.  Id.  The majority, Justice Jackson charged, turns Bruton on its head, setting “the stage for considerable erosion of the Confrontation Clause right that Bruton protects.”  Id. at *17.

In this Chatham County case, defendant appealed his convictions for first-degree forcible rape, first-degree kidnapping, sexual battery, and assault of a female, arguing the trial court abused its discretion by denying his motion for a mistrial. The Court of Appeals found no error. 

In April of 2019, defendant came to the victim’s house and offered her drugs and alcohol. The two consumed the drugs and defendant eventually forced himself upon the victim, forcibly raping her while punching her repeatedly. When defendant came to trial, the victim took the stand to testify about the events. During her testimony, defense counsel took issue with the victim’s “streamed sort of consciousness” testimony, and the State requested to be allowed more leading questions on direct examination. Slip Op. at 2. The trial court allowed voir dire to determine whether the victim’s mental health issues necessitated more leading questions, and during this voir dire it was revealed that the victim had either bipolar or borderline personality disorder, PTSD, and a substance use or abuse disorder, and the victim had recently relapsed and was released from rehab the week before her testimony. She was also on medication for certain medical conditions. On the fourth day of the trial, the State informed the trial court that the bailiffs believed the victim had consumed alcohol that morning, and the victim took a portable breathalyzer, which resulted in a 0.0 BAC reading. However, the victim admitted she had “a sip of vodka” because of her nerves. Id.at 3. Later on recross, “[the victim] disclosed to the jury that she took a shot of alcohol that was in her purse upon arriving to the courthouse.” Id. at 4. She also admitted to having a beer at lunch the day before. 

Considering defendant’s argument, the Court of Appeals noted “given the trial court’s knowledge and consideration of the result of the breathalyzer test, we cannot conclude the trial court abused its discretion.” Id. at 7. Instead, the trial court took “immediate and reasonable steps” to address the victim’s behavior, and the trial court’s decision to deny defendant’s motion for a mistrial was a reasonable decision. Id. at 8.

A hotel owner had personal knowledge and could testify to the responsibilities of the defendant, the hotel’s general manger, with respect to removing deposits from the hotel safe and other related matters.

The defendant was convicted of first-degree murder in Person County. The victim was a neighbor with whom the defendant had long-running disputes. According to the defendant, he shot the neighbor in self-defense. The victim was shot 11 or 12 times, with the vast majority of the bullets having entered the victim from the back and side of his body. The State presented evidence from an experiment performed by a forensic firearms examiner attempting to replicate the production of the layout of bullet shell casings found at the scene in order to demonstrate the shooter’s location and to rebut the defendant’s self-defense claim. The expert only reported the results of the experiment and did not specifically opine about the shooter’s location. 

(1) Relying on cases pre-dating the adoption of the Rules of Evidence, the defendant argued this evidence was improperly admitted in violation of the “substantial similarity” test. These older cases imposed stricter requirements for the admission of “experimental evidence” – that is, evidence “about an experiment that is used to prove something about the actual events that occurred in the case.” Slip op. at 8. The defendant argued that these rules controlled, rather than Rule of Evidence 702. Under those cases, the standard of review on appeal of this issue would have been de novo, rather than the abuse of discretion standard applied to Rule 702 challenges. The defendant did not argue or cite to Rule 702 or to any cases applying the rule since the 2011 amendments adopting the Daubert standard for expert testimony. Rejecting this argument, the court found that later cases, even those pre-dating the 2011 amendment to Rule 702, had in fact adopted an abuse of discretion standard of review for experimental evidence. The court also rejected the notion that the substantial similarity test stood apart from Rule 702. “The notion of ‘substantial similarity’ for experimental evidence is one of the many ‘particular factors articulated in previous cases’ that is now baked into the third prong of Rule 702’s reliability test.” Id. at 10. Thus, pursuant to Rule 702, the standard of review is abuse of discretion. Even if the defendant’s argument that the evidence was erroneously admitted was not forfeited by his failure to argue Rule 702 or abuse of discretion, the trial court did not err in admitting the testimony. In the words of the court: “Here, the trial court’s determination that the experiment met the Rule 702 criteria was a reasoned one and not manifestly arbitrary. Thus, we cannot hold that the trial court abused its discretion.” Id. at 12.

(2) The defendant also argued that the trial court erred in qualifying the expert to give an opinion about shell ejection patterns. Voir dire of the expert revealed that he had not received training on ejection patterns of bullet shells, that no certification for this subject exists, and that he had not previously performed this type of experiment. According to the court, the trial court did not abuse its discretion in so qualifying the expert: “’[I]t is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist’ as long as ‘the expert witness because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.’” Id. at 14. Based on his extensive training and experience in the field of firearms, the trial court acted within its discretion and did not err in qualifying the expert.

The conviction was therefore unanimously affirmed with Judges Berger and Arrowood concurring.

In a bond forfeiture proceeding, the trial court did not err by taking judicial notice of the file as evidence that the defendant was served with the order of arrest. A trial court may take judicial notice of earlier proceedings in the same case, including matters in the file not offered into evidence. Here, the trial court took judicial notice of a fact beyond reasonable controversy. It is undisputed that the defendant was served with the order for arrest before the deadline for filing a notice to set aside the bond forfeiture expired and the trial court attached the order for arrest as an exhibit to its order.

In this drug case, the trial court did not err by admitting a forensic laboratory report after the defendant stipulated to its admission. The defendant argued that the trial court erred by failing to engage in a colloquy with her to ensure that she personally waived her sixth amendment right to confront the analyst whose testimony otherwise would be necessary to admit the report. State v. Perez, __ N.C. App. __, __, 817 S.E.2d 612, 615 (2018), establishes that a waiver of Confrontation Clause rights does not require the type of colloquy required to waive the right to counsel or to enter a guilty plea. In that case, the defendant argued that the trial court erred by allowing him to stipulate to the admission of forensic laboratory reports without engaging in a colloquy to ensure that he understood the consequences of that decision. The court rejected that argument, declining the defendant’s request to impose on trial courts an obligation to personally address a defendant whose attorney seeks to waive any of his constitutional rights through a stipulation. In Perez, the court noted that if the defendant did not understand the implications of the stipulation, his recourse is a motion for appropriate relief asserting ineffective assistance of counsel. The court rejected the defendant’s attempt to distinguish Perez on grounds that it involved a written stipulation personally signed by the defendant, while this case involves defense counsel’s oral stipulation made in the defendant’s presence. The court found this a “distinction without a difference.” Here, the stipulation did not amount to an admission of guilt and thus was not the equivalent of a guilty plea. The court continued:

[W]e . . . decline to impose on the trial courts a categorical obligation “to personally address a defendant” whose counsel stipulates to admission of a forensic report and corresponding waiver of Confrontation Clause rights. That advice is part of the role of the defendant’s counsel. The trial court’s obligation to engage in a separate, on-the-record colloquy is triggered only when the stipulation “has the same practical effect as a guilty plea.”

Although statements made by a law enforcement officer during a videotaped interrogation of the defendant were not relevant, the defendant failed to show prejudice warranting a new trial. The court distinguished cases holding that statements by a law enforcement officer during a videotaped interrogation of the defendant are relevant to provide context for the defendant’s answers, noting, among other things, that in this case the defendant never made any concessions or admissions during the interrogation; instead, he repeatedly denied involvement in the crime. For the same reason, the officer’s statements were not relevant to show his interrogation techniques. Finally, because the defendant never wavered from his denials, the officer’s statements were not relevant to show that the defendant conceded the truth or changed his story.

In this felony-murder case, although the court was “uncertain of the relevance” of certain photos that the State introduced and questioned the defendant about regarding gang activity, the court found no plain error with respect to their introduction.

In this Rowan County case, the Supreme Court majority affirmed the Court of Appeals decision upholding the exclusion of evidence offered by defendants to show other individuals committed the crimes for which defendants were convicted. Defendants were jointly tried and convicted of first-degree murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon. 

In May of 2016, defendants came to an apartment with the eventual murder victim, apparently searching for money owed by the woman to the defendants. The murder victim's mother and three-year-old son were also in the apartment. Defendants searched the bedroom, and after not finding the money, shot the woman in the head, killing her. The woman’s mother witnessed the events, and was at one point struck in the face by one of the defendants. The mother was able to identify defendants to the police and also testified identifying them at trial. During the trial, the State filed a motion in limine to exclude mention of the possible guilt of two other individuals that defendants argued were responsible for the crimes. Defendants’ evidence involved the identification of another woman who looked similar to one of the defendants, possessed a gun of the same caliber as the murder weapon, and drove a vehicle that matched a description from a confidential informant of a vehicle present at the scene. The trial court granted the motion in limine, ruling that the proffered evidence was not inconsistent with the guilt of the defendants. The trial court relied on the applicable test under State v. Cotton, 318 N.C. 663 (1987), where evidence implicating the guilt of others “‘must tend both to implicate another and be inconsistent with the guilt of the defendant.’” Slip Op. at 7. 

The Supreme Court reviewed defendants’ appeal de novo, and noted that the parties agreed that the evidence in question was relevant, meaning the only consideration in front of the Court was whether the evidence was inconsistent with defendants’ guilt. The Court looked to State v. McNeill, 326 N.C. 712 (1990), for explanation of the relevant standard, emphasizing that the evidence must show another person actually committed the crimes instead of defendants, not just that another person had the opportunity to commit the crimes. Walking through the evidence, the Court concluded that “while defendants’ proffered evidence implicates other suspects which were suggested by defendants, such evidence does not exculpate defendants.” Slip Op. at 23. The Court explained that because the evidence did not tend to show the innocence of either defendant, it did not satisfy the applicable test and was inadmissible. 

Justice Earls dissented by separate opinion and would have allowed the admission of the excluded evidence. Id. at 25. 

In this Rowan County case, two defendants, Sindy Abbitt and Daniel Albarran, were convicted of first-degree murder on the basis of premeditation and deliberation and felony murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon after they entered a victim’s apartment and shot her over a dispute about money. A witness to the shooting identified the defendants with certainty in photographic lineups, and cellular phone analysis conducted by the FBI showed the defendants were in locations near the victim on the night of the crime. 

(1) The defendants argued on appeal that the trial court erred by excluding their proffered evidence that another person committed the crime. To be relevant, evidence that another person committed a crime must not only implicate another person, but also exculpate the defendant. The Court of Appeals agreed with the trial court’s conclusion that the defendants’ evidence did support an inference that another person (Ashley Phillips) may have been involved in some way, but it was not inconsistent with the direct evidence of either defendant’s involvement in the actual shooting, and was therefore properly excluded.

(2) Defendant Albarran argued on appeal that the photographic array lineup used to identify him was unconstitutionally suggestive because the photograph of him was closer to his face than the other photos in the lineup, drawing attention to him. Albarran had filed a pretrial motion to suppress the lineup, but did not object to the witness’s in-court identification during trial. Reviewing the issue for plain error, the Court of Appeals concluded that in light of the unobjected-to in-court identification, any alleged error in the photo lineup would not have impacted the jury’s verdict. The defendant’s argument was therefore overruled.

(3) Albarran argued that the trial court erred by overruling his objection to the prosecutor’s statements during closing asking why the defendant Abbitt—who had filed a pretrial notice to assert an alibi defense—did not call certain witnesses to corroborate her whereabouts on the night of the crime. Albarran, who did not give notice of an alibi defense, claimed that the comment was an improper comment on his failure to present evidence. The Court of Appeals disagreed, concluding that the prosecutor’s comment on Abbitt’s failure to produce exculpatory evidence was not impermissible as applied to her and therefore were not improper. 

(4) Albarran argued that the trial court erred by sustaining the State’s objections to defense counsel’s statements during closing about Albarran’s tattoos. Defense counsel reminded the jury during closing that the witness’s description at the time of the offense made no mention of tattoos, and asked them to note the many tattoos they could see on him now. The Court of Appeals concluded that the trial court did not err in sustaining the objection where the defendant’s appearance at the time of trial—more than two years after the crime—had no bearing on the witness’s identification and description of the defendant on the night of the murder.

(5) Defendant Abbitt argued that her out-of-court statements to an officer that she had not been at the scene of the crime, that she had not seen the victim in years, and that she did not know Albarran were hearsay that was improperly placed into evidence as admissions. The Court of Appeals concluded that the statements were relevant and admissible under Rule 401, and that in any event admission of the statements did not give rise to a reasonable possibility that the jury would have reached a different result without the asserted error. 

(6) Finally, the Court of Appeals rejected defendant Abbitt’s argument that the short form murder indictment was insufficient to confer jurisdiction on the court, noting the Supreme Court of North Carolina’s longstanding and consistent jurisprudence on that issue.

Although the trial court erred by admitting into evidence in this stalking case approximately 28 photographs of firearms, ammunition, and surveillance equipment found throughout the defendant’s home during the execution of a search warrant, the error did not amount to prejudicial error. Photographs of the defendant’s firearms, ammunition, and surveillance equipment - all of which the defendant legally possessed at the time the search warrant was executed - were wholly irrelevant to the issue of whether the defendant committed the offense of stalking. The court thus agreed with the defendant that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice, and that the trial court should have exercised its discretion to exclude this evidence. The court went on to conclude that in light of the overwhelming additional evidence presented at trial, the defendant failed to show that the admission of the photographs amounted to prejudicial error.

In this case involving a gang-related home invasion and murder, the trial court did not commit plain error by admitting rap lyrics found in a notebook in the defendant’s room. The lyrics, which were written before the killing, described someone “kick[ing] in the door” and “spraying” bullets with an AK47 in a manner that resembled how the victims were killed. The court concluded that the defendant failed to show that, absent the alleged error, the jury probably would have returned a different verdict.

In this homicide case, the trial court did not err by admitting evidence of four firearms found in the car when the defendant was arrested following a traffic stop. The State offered the evidence to show the circumstances surrounding defendant’s flight. Defendant argued that the evidence was irrelevant and inadmissible because nothing connected the firearms to the crime. The court disagreed:

Defendant ran away from the scene immediately after he stabbed [the victim]. Three days later, he was apprehended following a traffic stop in South Carolina. Defendant, who was riding as a passenger in another person’s car, possessed a passport bearing a fictitious name. Also found in the car was a piece of paper with directions to a mosque located in Laredo, Texas. Four firearms were found inside the passenger compartment of the car: a loaded assault rifle, two sawed-off shotguns, and a loaded pistol. The circumstances surrounding defendant’s apprehension in South Carolina, the passport, the paper containing directions to a specific place in Texas, and the firearms are relevant evidence of flight.

The court held that questions of relevance are reviewed de novo but with deference to the trial court’s ruling.

In a capital murder case, the trial court did not abuse its discretion by excluding expert testimony from a neuropharmacologist and research scientist who studies the effects of drugs and alcohol on the brain, proffered by the defense as relevant to the jury’s determination of the reliability of the defendant’s confession. The expert would have testified concerning the defendant’s pattern of alcohol use and the potential consequences of alcohol withdrawal, including seizures. However, the expert repeatedly stated that he could not opine as to whether the confession was false or true or what the defendant’s condition was at the time of the confession. Evidence had been presented indicating that the defendant was not intoxicated at the time of the interrogation and that he was an alcoholic. Given this evidence, the jury could assess how alcohol withdrawal affected the reliability of the confession, if at all. As such, the expert’s testimony would not assist the jury in understanding the evidence or determining a fact in issue under Rule 702.

In this capital case, the trial court did not err by allowing the State to elicit testimony that defense counsel had previously hired the State’s expert to testify on behalf of another client. The defendant argued that this allowed the State to improperly vouch for its expert’s credibility. The State’s expert testified that he disagreed with a defense expert’s opinion that the defendant suffers from mild intellectual disability. In light of the differences between the experts’ opinions it was proper to elicit testimony regarding potential witness bias or lack thereof. The court noted:

Although the trial court might have been better advised to have exercised its discretionary authority pursuant to . . . Rule 403, to limit the scope of the prosecutor’s inquiry to whether [the State’s expert] had previously worked for counsel representing criminal defendants in general rather than specifically identifying one of defendant’s trial counsel as an attorney to whom [the expert] had provided expert assistance, we are unable to say, given the record before us in this case, that the challenged testimony constituted impermissible prosecutorial vouching for [the expert]’s credibility or that the trial court erred by refusing to preclude the admission of the challenged testimony.

The court affirmed State v. King, 214 N.C. App. 114 (Aug. 2, 2011) (holding that the trial court did not abuse its discretion by excluding the State’s expert testimony regarding repressed memory under Rule 403). The trial court had concluded that although the expert’s testimony was “technically” admissible under Howerton and was relevant, it was inadmissible under Rule 403 because recovered memories are of “uncertain authenticity” and susceptible to alternative possible explanations. The trial court found that “the prejudicial effect [of the evidence] increases tremendously because of its likely potential to confuse or mislead the jury.” The supreme court held that the trial court did not abuse its discretion by excluding the repressed memory evidence under Rule 403. The court noted that its holding was case specific:

We promulgate here no general rule regarding the admissibility or reliability of repressed memory evidence under either Rule 403 or Rule 702. As the trial judge himself noted, scientific progress is “rapid and fluid.” Advances in the area of repressed memory are possible, if not likely, and even . . . [the] defendant’s expert, acknowledged that the theory of repressed memory could become established and that he would consider changing his position if confronted with a study conducted using reliable methodology that yielded evidence supporting the theory. Trial courts are fully capable of handling cases involving claims of repressed memory should new or different scientific evidence be presented.

Holding that State v. Wilkerson, 148 N.C. App. 310, rev’d per curiam, 356 N.C. 418 (2002) (bare fact of the defendant’s conviction, even if offered for a proper Rule 404(b) purpose, must be excluded under Rule 403), did not require exclusion of certified copies of the victim’s convictions. Unlike evidence of the defendant’s conviction, evidence of the victim’s convictions does not encourage the jury to acquit or convict on an improper basis.

In a capital murder case, the trial court did not abuse its discretion by allowing the State to introduce for illustrative purposes 18 autopsy photographs of the victim. Cynthia Gardner, M.D. testified regarding her autopsy findings, identified the autopsy photos, and said they accurately depicted the body, would help her explain the location of the injuries, and accurately depicted the injuries to which Dr. Gardner had testified. The photos were relevant and probative, not unnecessarily repetitive, not unduly gruesome or inflammatory, and illustrated both Gardner’s testimony and the defendant’s statement to the investigators.