This post summarizes opinions issued by the Court of Appeals of North Carolina on February 4, 2020.
(1) Trial court did not abuse its discretion by denying defendant’s Motion for Appropriate Relief alleging juror misconduct; (2) State presented substantial circumstantial evidence to rebut defendant Molly Corbett’s exculpatory handwritten statement that she and her co-defendant father acted in lawful self-defense and defense of others in killing her husband; (3) Defendants are entitled to a new trial based on a reasonable possibility that the jury might have reached a different result, based on (a) the erroneous exclusion of hearsay statements from the victim’s children; (b) the improper admission of expert testimony regarding the untested stains on defendant Tom Martens’ boxer shorts and Molly Corbett’s pajama pants, which failed to satisfy Rule 702’s reliability requirements; and (c) the trial court’s error in sustaining the State’s motion to strike Tom’s testimony that he heard Molly scream, “Don’t hurt my dad.”; (4) Trial court committed reversible error by delivering unsupported jury instructions on the aggressor doctrine.
State v. Corbett & Martens, ___ N.C. App. ___, ___ S.E.2d ___ (Feb. 4, 2019). Defendants Molly Martens Corbett (“Molly”) and Thomas Michael Martens (“Tom”), daughter and father, were convicted of second degree murder in the death of Molly’s husband, Jason Corbett (“Jason”). Evidence at trial established that Tom attempted to stop Jason from choking Molly by hitting Jason with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows and he died at the scene. Jason’s children from a previous marriage, Jack and Sarah Corbett, ages 11 and 8, were at home and sleeping at the time of the altercation. Jack and Sarah’s mother had died unexpectedly when they were very young, and they considered Molly to be their mother.
(1) Defendants argued that the trial court abused its discretion by denying their Motion for Appropriate Relief (MAR), as well as their request for an evidentiary hearing, because competent evidence demonstrated that certain jurors “committed gross and pervasive misconduct in their private discussions of the case”; jurors engaged in “private discussions” amongst themselves prior to deliberations; and several jurors’ statements during post-trial media interviews showed that they improperly considered and formed opinions about Molly’s mental health. The court rejected this argument, characterizing the defendants’ allegations as being, at best, general, speculative, and conclusory. Furthermore, the court concluded that even if the trial court were to hold an evidentiary hearing, which it was not required to do, precedent prohibiting verdict impeachment would bar the defendants from presenting any admissible evidence to prove the truth of their allegations.
(2) Defendants asserted that the State failed to present substantial evidence to rebut or contradict Molly’s exculpatory handwritten statement, which the State introduced, establishing that Molly and Tom acted in lawful self-defense and defense of others. The Court of Appeals disagreed.
The State was required to presented substantial evidence sufficient to convince a rational trier of fact that the defendants did not act in self-defense. The appellate court determined that the case was not entirely predicated on Molly’s statement that she and Tom acted in self-defense and defense of each other. Rather, the State presented substantial circumstantial evidence from which a rational juror could reach a contrary conclusion, including that: (1) Jason suffered at least twelve blows to the head; (2) Tom had no visible injuries and Molly had only a “light redness” on her neck; (3) Jason was unarmed when the altercation occurred; (4) Jason’s children remained asleep throughout the entire altercation; (5) EMS, paramedics, and law enforcement responders observed that some of the blood on Jason’s body had dried, and that Jason’s body felt cool; (6) Tom told a coworker that he hated Jason; and (7) Jason had a life insurance policy, of which Molly was the named beneficiary.
(3) The Court of Appeals concluded, over a dissent, that certain evidentiary errors were so prejudicial as to inhibit the defendants’ ability to present a full and meaningful defense.
(a) The Court of Appeals held that the trial court erroneously concluded that statements Jack and Sarah Corbett made to workers at a children’s advocacy center were inadmissible under the hearsay exception for medical diagnosis or treatment. At the time of trial, Jack and Sarah had been taken to Ireland to live with their aunt and uncle. The appellate court determined that their statements at the advocacy center satisfied the two-part test for admissibility established in State v. Hinnant, 351 N.C. 277 (2000): (1) the children made the statements to obtain medical diagnosis or treatment; and (2) the statements were reasonably pertinent to medical diagnosis or treatment. The court explained that the child-friendly atmosphere and the separation of the examination rooms did not indicate that the children’s statements during the interviews were not intended for medical purposes. The children were informed before their interviews that they would be receiving medical interviews together with physical examinations as part of their full evaluations at the facility. The interviewers asked non-leading, open-ended questions, instructed the children that they should not “guess at anything” and emphasized the overall significance of the child medical evaluations that they would be receiving. In addition, the court concluded that the children’s statements were reasonably pertinent to medical treatment or diagnosis. Following their forensic medical interviews, Sarah and Jack were examined by a pediatrician who diagnosed both children as “victim[s] of child abuse based on exposure to domestic violence” and recommended that they “receive mental health services” as treatment.
Moreover, the court concluded that even if the children’s forensic medical interview statements were inadmissible under the medical diagnosis or treatment exception to the rule against hearsay, they (along with statements the children made to DSS workers) were admissible under the residual hearsay exception.
(b) Stuart James, the State’s expert witness in bloodstain pattern analysis, testified at trial about untested blood spatter on the underside hem of Tom’s boxer shorts and the bottom of Molly’s pajama pants. The defendants argued that this testimony was not the product of reliable principles and methods applied reliably to the facts of this case. The Court of Appeals agreed.
While James was “unquestionably qualified to provide expert testimony on the subject” of blood spatter, he did not follow the reliability protocol establish in a treatise he coauthored on the subject. First, these particular stains were not tested for the presence of blood. Second, though James said it was the “best practice” for an analyst to view a photograph of the person wearing the blood-spattered clothes, he never viewed a photograph of Tom “wearing just the boxer shorts.” James further testified that the State provided him with just one photograph of Molly wearing the pajama pants, and that it was not readily apparent from that photograph how the pants actually fit Molly on the night of the incident. The court found James’s failure to follow the reliability standards and protocol prescribed in his own treatise as inherently suspect. It concluded that James’s testimony was based upon insufficient facts and data, and, accordingly, could not have been the product of reliable principles and methods applied reliably to the facts of the case.
The court determined that James’s testimony “had the powerful effect of bolstering the State’s claim that Jason was struck after and while he was down and defenseless.” But, given the flawed methodology, the testimony could only serve to unduly influence the jury to reach a conclusion that it was fully capable of reaching on its own.
(c) The defendants argued that the trial court erred in striking Tom’s testimony that, during the altercation, he “hear[d] Molly scream[,] ‘Don’t hurt my dad.’ ” The Court of Appeals agreed. The court reasoned that Molly’s statement was admissible for the non-hearsay purpose of illustrating Tom’s then-existing state of mind. This was “a particularly relevant issue” in light of the defendants’ claims of self-defense and defense of another.
(d) Tom argued that the trial court committed reversible error by instructing the jury that he would not be entitled to the benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with Jason. The Court of Appeals agreed.
First, the appellate court stated that the trial court could not have based its ruling on Tom’s decision to arm himself with the baseball bat before joining the altercation. The mere fact that a defendant was armed is not evidence that he was the aggressor if he did not unlawfully use his weapon.
Moreover, the court deemed it significant that Jason was the first to employ deadly force. Tom testified that from the moment he opened the bedroom door, “Jason had his hands around Molly’s neck,” and he said he was going to kill her. Jason subsequently put Molly in a “very tight chokehold” and Tom noticed that Molly “was no longer wiggling. She was just weight, being dragged back into the hallway.”
Because Tom did not aggressively and willingly enter into the fight without legal excuse or provocation, the Court of Appeals determined that the trial court erred by instructing the jury on the aggressor doctrine. The error, the court reasoned, very likely prejudiced Molly as well as Tom, since the jury was instructed that it could find her guilty under an acting-in-concert theory.
One judge concurred in part and dissented in part. The judge concurred that the trial court did not err by denying defendants’ request for an evidentiary hearing on their MAR and the MAR itself or by denying defendants’ motions to dismiss for insufficient evidence. The judge dissented from the remainder of the majority opinion leading to its conclusion that the defendants are entitled to a new trial.
Prosecutor’s statements in closing argument regarding the defendant’s decision to plead not guilty deprived the defendant of a fair trial.
State v. Goins, ___ N.C. App. ___, ___ S.E.2d ____ (Feb. 4, 2020). During closing argument at the defendant’s trial for attempted first-degree murder, assault with a deadly weapon on a law enforcement officer and possession of a firearm by a felon, the prosecutor repeatedly brought up the defendant’s failure to plead guilty. The prosecutor stated, “Might ask why would [Defendant] plead not guilty? I contend to you that the defendant is just continuing to do what he’s done all along, refuse to take responsibility for any of his actions. That’s what he does. He believes the rules do not apply to him.” Later, the prosecutor stated, “[Defendant’s] not taking responsibility today. There’s nothing magical about a not guilty plea to attempted murder. He’s got to admit to all the other charges. You see them all on video. The only thing that’s not on video is what’s in his head. He also knows that those other charges carry less time. There’s the magic.” The defendant did not object to these statements, and the trial court did not intervene. On appeal, the defendant argued that these references in the State’s closing argument violated his right to a fair trial. Over a dissent, the Court of Appeals agreed.
The court noted that criminal defendants have an absolute constitutional right to plead not guilty and be tried by a jury of their peers. This right encompasses the right to be free from condemnation in front of the jury for making that choice. The court held that the prosecutor’s statements in closing argument complaining about the defendant’s decision to plead not guilty violated his right to a fair trial and, as a result, ordered a new trial.
A dissenting judge would have held that the defendant waived any constitutional objection to the prosecutor’s closing argument by failing to raise it below and that, while the prosecutor’s references to the defendant’s failure to plead guilty were improper, the defendant could not show prejudicial error given the overwhelming evidence of his guilt.
(1) Circumstantial evidence was sufficient to establish that the defendant unlawfully possessed a firearm after having been convicted of a felony; (2) Prosecutor’s improper statements mischaracterizing evidence in closing argument were not so grossly improper as require the trial court to intervene without an objection from the defendant.
State v. Parker, ___ N.C. App. ___, ____ S.E.2d ____ (Feb. 4, 2020). Defendant was indicted for first-degree murder, possession of a firearm by a felon, two counts of assault with a deadly weapon with intent to kill, robbery with a deadly weapon, two counts of attempted robbery with a deadly weapon, and attaining habitual felon status. At trial, he was convicted solely of possession of firearm by a felon. The charges arose from a murder that occurred during a drug transaction. Three men, Michael Harbin, Carlos James, and Derrick Copeland approached a house in Garland, NC to purchase marijuana. There were three men at the house, Jafa McKoy, a man the three would-be drug purchasers did not know, identified only as “P,” and a third man they likewise did not know. “P” approached the car in which James was sitting holding a revolver. McKoy, accompanied by the other unknown man, shot at Harbin and Copeland who had gotten out of the car. They ran. James’s body was subsequently discovered in the driveway. He had been shot in the back of the head and was dead.
Four days later, Copeland identified defendant’s photograph as a suspect for “P” with 85 to 90 percent confidence. An SBI agent interviewed the defendant two weeks after the murder. He admitted that the men may have seen him at the house, but denied killing anyone or being present when someone was killed. Records from the defendant’s cell phone showed that it was being used in the area of the murder in the hours before James was killed, but defendant’s phone was not in use and no location could be identified during the time of the encounter with Hardin, Copeland, and James. Cell phone records showed defendant as being in the nearby area, but headed toward Clinton, shortly after Hardin and Copeland ran from the house.
At the close of the State’s evidence, the trial court found the State had presented insufficient evidence that defendant possessed the specific intent to kill under a theory of acting in concert and dismissed the counts of assault with a deadly weapon with intent to kill. The trial court denied Defendant’s motion to dismiss the remaining charges. Defendant did not testify or present any evidence at trial. The jury found Defendant guilty of possession of a firearm by a felon and found the defendant not guilty of the remaining charges. Defendant stipulated and pled guilty to attaining habitual felon status. The trial court sentenced the Defendant as a habitual felon, and the defendant appealed. On appeal, the defendant argued that (1) the trial court erred by denying his motion to dismiss the charge of possession of a firearm by a felon; and (2) the State misrepresented evidence before the trial court and made false and misleading statements to the jury during closing arguments, which deprived him of a fair trial. The Court of Appeals rejected those arguments.
(1) Even assuming that the State offered no direct evidence that the defendant possessed a firearm on the occasion in question, the court held that the State submitted sufficient circumstantial evidence to support a reasonable inference of the defendant’s guilt. The defendant admitted that he was present at house the morning of the incident and that Copeland, Harbin, and James may have seen him there. Defendant’s cell phone was located near the scene close to the time of the incident. Copeland identified the defendant from a photo array as the armed suspect present at the scene with “85 to 90 percent” confidence. Copeland testified “P” had a “beard, brown skin, [and a] tattoo on the upper cheek,” and estimated he was about 6’2” tall and weighed about 240 pounds. Harbin testified “P” was wearing a hat, had a beard, and “was like a burley dude, like a kind of bigger dude.” The State also presented testimony from Jane Peterson, defendant’s girlfriend at the time of the incident. She described the defendant at the time as having a close-cut beard and a tattoo on his arm and on his face. The court explained that “[a]lthough this evidence may not rule out every hypothesis of Defendant’s innocence, that is not the State’s burden on Defendant’s motion to dismiss.”
(2) The State argued to the jury on three occasions during closing arguments that eyewitness testimony described “P” as having a chest tattoo, when the only testimony at trial about a chest tattoo had been testimony from the defendant’s former girlfriend that the defendant had such a tattoo. Because the State’s case was based solely on Copeland’s and Harbin’s identifications of Defendant as “P,” the defendant argued that these misstatements rose to the level of prejudicial error to award a new trial. The court held, however, that the defendant did not establish that the prosecutor’s repeated, mistaken invocation of supposed eyewitness testimony that “P” had a chest tattoo was so grossly improper as to be likely to influence the verdict of the jury. The chest tattoo was not the sole characteristic the State relied on to identify the defendant as “P.” The eyewitness testimony describing “P” also was consistent with defendant’s height, frame, skin color, beard, and other tattoos. The court reasoned that while the State’s misstatements may have given the jury greater confidence in identifying Defendant as “P,” the defendant failed to show that the jury would have reached a different verdict without the three misstatements. While the remarks were improper, they were not so grossly or extremely improper that the trial judge was required to intervene on its own absent an objection from the defendant.
(1) Trial court erred by sentencing defendant in the aggravated range where there was insufficient evidence to support the finding of an aggravating factor; (2) Trial court erred in assessing attorney fees without first affording the defendant an opportunity to be heard.
State v. Patterson, ___ N.C. App. ___, ___ S.E.2d ___ (Feb. 4, 2020). The defendant was convicted of financial card theft and sentenced to a suspended sentence of 8 to 19 months imprisonment and 24 months supervised probation. Defendant’s sentence was based on the aggravating factor in G.S. 15A-1340.16(d)(12a), which requires the State to prove that within 10 years before the instant offense, the defendant had been found by a North Carolina court to have been in willful violation of the conditions of probation. G.S. 15A-1340.16(d)(12a).
Outside of Defendant’s presence, the trial court later entered a civil judgment of $2,250.00 against him as recoupment for fees for the attorney appointed to represent him.
The Court of Appeals granted certiorari review to consider the lawfulness of the sentence and the civil judgment entered against the defendant. As to the sentence, the State admitted on appeal that the prosecutor did not present evidence that the defendant violated conditions of probation at any time before he committed the offense of conviction. The court agreed there was insufficient evidence presented at trial to support this aggravating factor, vacated the sentence, and remanded the case to the trial court for resentencing.
As to the civil judgment, the State admitted there was no evidence that the defendant was afforded an opportunity to be heard regarding the total amount of hours and fees claimed by his court-appointed attorney. It conceded that if the petition for certiorari was granted, the civil judgment for attorney fees had to be vacated, and the case had to be remanded to the trial court for further proceedings. The court agreed with the State’s concession, noting that the trial court never directly asked the defendant whether he wished to be heard on the issue and that there was no other evidence that the defendant received notice, was aware of the opportunity to be heard on this issue, and chose not to be heard. The trial court’s request that defendant’s counsel “guesstimate [the number of hours worked] so [Defendant] will have an idea as to what the legal fees will be” was insufficient to provide the requisite notice and opportunity to be heard. The court vacated the civil judgment for attorney fees and remanded the case to the trial court for further proceedings.
Jamie Markham wrote about the case here.
State’s evidence was sufficient to show that defendant intended to sell or deliver cocaine where defendant possessed a corner bag containing .34 grams of cocaine and another package containing 11.19 grams of cocaine.
State v. Wilson, ___ N.C. App. ___, ____ S.E.2d ____ (Feb. 4, 2020). The defendant was convicted of possession with intent to sell or deliver cocaine (PWISD-Cocaine), felony possession of cocaine and attaining habitual felon status. He argued on appeal that State failed to offer sufficient evidence of an intent to sell or deliver cocaine. The Court of Appeals rejected that argument, determining that there was sufficient evidence to support submission of the PWISD-Cocaine charge to the jury.
The State’s evidence showed that the defendant possessed cocaine contained in two packages: a corner bag containing .34 grams and a package containing 11.19 grams. Though this amount is less than half the amount that would support a trafficking charge and less than what courts have previously recognized as a substantial amount, the Court of Appeals reasoned that the amount was not insubstantial and that it well exceeded amounts previously deemed to support a PWISD-Cocaine conviction. Thus, the court deemed evidence that the defendant possessed more than 11 grams of cocaine an important circumstance. Moreover, the court stated that evidence of the packaging (one small corner bag indicative of personal use and a larger package containing the bulk of the cocaine) supported an inference of intent to sell or deliver. The defendant’s actions at the time he possessed the cocaine further supported an inference of an intent to sell and distribute. The defendant was driving (and thus transporting the cocaine) to his brother’s apartment complex when a law enforcement officer signaled for him to stop. The defendant did not immediately stop. Instead, he accelerated away from the officer, only stopping once he reached the apartment complex. Once there, the defendant got out of his car, refused to comply with the officer’s directions, and ducked behind a parked car where the larger bag of cocaine was later found. The court stated that this supported an inference that the defendant attempted to hide the larger amount of cocaine while leaving the smaller corner bag—associated with only personal use—in plain view.
The court acknowledged that there was no evidence of cash, paraphernalia or other tools of the drug trade. Nevertheless, it viewed the amount of cocaine, the packaging, and the defendant’s evasive behavior to be enough to establish, “at a minimum, a borderline case to support submission of the PWISD-Cocaine charge to the jury.”
Trial court’s findings were not sufficient to establish reasonableness of lifetime SBM.
State v. Dravis, ___ N.C. App. ____, ____ S.E.2d ____ (Feb. 4, 2020). This case was before the Court of Appeals for reconsideration in light of State v. Grady, ___ N.C. ___, 831 S.E.2d 542 (2019). The court’s prior opinion is State v. Dravis, ___ N.C. App. ___, 817 S.E.2d 796 (2018) (unpublished).
The Court of Appeals again concluded that the findings of the trial court were not sufficient to support a conclusion that lifetime satellite-based monitoring (SBM) was a reasonable warrantless search. The court explained that the State did not provide sufficient evidence to show how the efficacy of SBM helped solve sex offense crimes. Thus, it reversed the trial court’s order imposing lifetime SBM.