Case Summaries – N.C. Court of Appeals (April 4, 2023)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on April 4, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Defendant’s willful absence from proceedings represented waiver of right to be present at trial.

State v. Jefferson, COA22-450, ___ N.C. App. ___ (April 4, 2023). In this Rutherford County case, defendant appealed his convictions for assault by strangulation, habitual misdemeanor assault, and habitual felon status, arguing the trial court erred by proceeding in his absence during one day of the trial. The Court of Appeals found no error and affirmed the judgment.

On November 15, 2021, defendant’s charges came to trial; on the first day of proceedings defendant told the court he was not ready for his case to go to trial, and the trial court adjourned for the day. The next morning, defendant refused to leave his cell, despite the trial court addressing defendant via defense counsel’s cell phone. After two colloquies with defendant over the phone, the trial court made several findings on the record and announced the trial would go forward without defendant. The state called several witnesses and trial moved forward, although the trial court took a recess and again attempted to convince defendant to attend trial. After the last of the state’s witnesses were called, the court recessed again, and at this point, defendant decided to attend the proceedings. Defendant was present for the last day of proceedings, November 17, 2021, and the same day the jury returned guilty verdicts.

On appeal, defendant argued that he did not validly waive his right to be present and he was not made fully aware of his obligation to be present at trial. The Court of Appeals first turned to State v. Pope, 257 N.C. 326 (1962), to explain that the defendant has a right to be present in criminal prosecutions, and the power to waive that right. But to effectively waive that right, precedent requires that “’the defendant must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away.’” Slip Op. at 8-9, quoting State v. Sides, 376 N.C. 449, 458 (2020). Here, the court found that defendant’s behavior expressed a waiver of his right to be present.

The court also considered defendant’s argument, based on State v. Shaw, 218 N.C. App. 607 (2012), that there is no general right for a defendant to be absent from trial, and the trial court’s statements to defendant were misleading in that they suggested he could choose not to attend. The court disagreed with this interpretation, noting “Shaw recognized the long-standing rule that a defendant may waive his right to be present and the trial court may compel the defendant’s presence if the trial court deems it advisable to do so.” Slip Op. at 10. Here, the trial court correctly advised defendant that it was his choice to attend the trial, and defendant was not being misled or induced not to attend.

The court also found that the trial court’s procedures complied with G.S. 15A-1032, the statute which permits the trial court to remove a disruptive defendant. Even though the trial court was not ordering defendant’s removal in this case, the trial court entered into the record the reasons for proceeding without the defendant, and instructed the jury not to consider the defendant’s absence in determining his guilt. The trial court also made multiple attempts to communicate with defendant through defense counsel during breaks in the proceedings. The Court of Appeals found this was a separate ground to affirm the trial court.

Testimony by an expert that sexual assault victim “did not appear to be coached” was admissible; evidence from school records was properly excluded under Rule 403; video showing equipment related to a polygraph examination was admissible.

State v. Collins, COA22-488, ___ N.C. App. ___ (April 4, 2023). In this Rockingham County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and sex act by a substitute parent or guardian, arguing error in admitting expert testimony that the victim’s testimony was not coached, in granting a motion in limine preventing defendant from cross-examining the victim about her elementary school records, and in admitting a video of defendant’s interrogation showing equipment related to a polygraph examination. The Court of Appeals found no error.

In 2021, defendant was brought to trial for the statutory rape of his granddaughter in 2017, when she was 11 years old. At trial, a forensic interviewer testified, over defendant’s objection, that he saw no indication that the victim was coached. The trial court also granted a motion in limine to prevent defendant from cross-examining the victim regarding school records from when she was in kindergarten through second grade showing conduct allegedly reflecting her propensity for untruthfulness. The conduct was behavior such as cheating on a test and stealing a pen.

The Court of Appeals noted “[o]ur Supreme Court has held that ‘an expert may not testify that a prosecuting child-witness in a sexual abuse trial is believable [or] is not lying about the alleged sexual assault.’” Slip Op. at 2, quoting State v. Baymon, 336 N.C. 748, 754 (1994). However, the court could not point to a published case regarding a statement about coaching like the one in question here. Because there was no controlling opinion on the matter, the court engaged in a predictive exercise and held, “[b]ased upon our Supreme Court’s statement in Baymon, we conclude that it was not error for the trial court to allow expert testimony that [the victim] was not coached.” Id. at 3.

The court also found no error with the trial court’s conclusions regarding the admissibility of the victim’s childhood records under Rule of Evidence 403. The court explained that the evidence showed behavior that was too remote in time and only marginally probative regarding truthfulness. Finally, the court found no error with the interrogation video, explaining that while it is well established that polygraph evidence is not admissible, the video in question did not show a polygraph examination. Instead, the video merely showed “miscellaneous items on the table and not the actual polygraph evidence,” and all references to a polygraph examination were redacted before being shown to the jury. Id. at 5-6.