This post summarizes published criminal decisions from the North Carolina Supreme Court released on December 18, 2020. The summaries were prepared by Shea Denning, Chris Tyner, and Jonathan Holbrook. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
This is the final post for 2020. The blog will return after January 4, 2021.
(1) A defendant’s hands and arms may qualify as a deadly weapon for purposes of the felony-murder provision defining as a predicate felony any “other felony committed or attempted with the use of a deadly weapon”; (2) The trial court’s erroneous instruction that the jury could find that the defendant attempted to murder his mother using a garden hoe as a deadly weapon when the evidence did not support that theory was prejudicial error.
State v. Steen, ___ N.C. ___, ___ S.E.2d ___ (December 18, 2020). The defendant appealed from his conviction for the first-degree murder of his grandfather based on the felony murder rule using the attempted murder of his mother with a deadly weapon as the predicate felony. The trial court instructed the jury that it could find the defendant guilty of first-degree murder if it found that he killed his grandfather as part of a continuous transaction during which he also attempted to murder his mother using either his hands or arms or a garden hoe as a deadly weapon. The defendant appealed, arguing that his hands and arms were not properly considered a deadly weapon for purposes of the felony murder rule and that the trial court’s erroneous instruction that the jury could find that he attempted to murder his mother using a garden hoe was prejudicial error.
The defendant was at the home of his mother and grandfather on November 5, 2013. He owed money to both and they had recently told him that they would lend him no more. As his mother went outside the defendant followed behind her, saying he was leaving to go to work. His mother walked into a storage shed behind the house, where she remained for five or 10 minutes. She did not hear the defendant get into his car or hear the vehicle leave. While she was in the shed, she thought she heard raised voices. She came out to check on her father. As she walked toward the house, she felt someone put an arm around her neck. Her attacker put a hand over her nose and mouth and she lost consciousness. The next thing she remembered was someone opening her eyelid as she lay on the ground. She saw defendant’s face and thought he was there to help her.
The defendant worked from 11 p.m. to 7 a.m., returning home the following morning. When he got home he saw that his mother had been attacked and called for emergency assistance. The defendant’s grandfather was dead when the paramedics arrived. He was face down near the back door, covered in blood, with a large pool of blood around his head. A garden hoe covered in blood was next to his body. The grandfather’s wallet was near his body and did not contain the money usually kept there.
The defendant denied his involvement in the assault and murder. He gave different explanations for the presence of scratches on his arm. DNA evidence from the scene did not connect him to the crime. The defendant’s mother (who experienced a traumatic brain injury) initially told investigators that the defendant left the home before she was attacked and said the person who attacked her was shorter than the defendant and was wearing a ski mask. She testified differently at trial, stating that it was the defendant who had choked her and that there had been no ski mask.
The trial court instructed the jury on multiple theories of first-degree murder, including the felony-murder rule using the attempted murder of the defendant’s mother as the predicate felony. As to the deadly weapon requirement, the court told the jury that the “State contends and the defendant denies that the defendant used his hands and/or arms, and or a garden hoe as a deadly weapon.” The jury convicted the defendant of first-degree murder based on this theory, and the defendant appealed.
The supreme court relied upon a “virtually uninterrupted line of appellate decisions from this Court and the Court of Appeals interpreting the reference to a ‘deadly weapon’ in N.C.G.S. § 14-17(a) to encompass the use of a defendant’s hands, arms, feet, or other appendages” and the “fact that the General Assembly has not taken any action tending to suggest that N.C.G.S. § 14-17(a) should be interpreted in a manner that differs from the interpretation deemed appropriate in this line of decisions” to establish that the General Assembly intended for the term “deadly weapon” to include a defendant’s hands, arms, feet or other appendages. The court rejected the defendant’s invitation to overrule or limit to child victims its holding in State v. Pierce, 346 N.C. 471 (1997) that the offense of felony child abuse could serve as the predicate felony for felony-murder when the defendant used his hands as a deadly weapon in the course of committing the abuse. The court also rejected the defendant’s invitation to rely on State v. Hinton, 361 N.C. 207 (2007) for the proposition that the term “deadly weapon” has different meanings in different contexts and should have a felony-murder specific definition. The Hinton court held that the reference to “any firearms or other dangerous weapon, implement or means” as used in N.C.G.S. § 14-87(a) (defining robbery with a dangerous weapon) did not encompass the use of a defendant’s hands because the statute was intended to provide a “more severe punishment when the robbery is committed with the ‘use or threatened use of firearms or other dangerous weapons’” than when the defendant committed common law robbery, which did not involve the use of such implements. The court reasoned that the logic in Hinton had no application to its interpretation of the felony-murder statute as nothing in the language or legislative history of G.S. 14-17 suggested that its reference to “deadly weapon” should be defined in a way that differed from the traditional definition, which included the a person’s appendages.
Finally, the court rejected the notion that its interpretation meant that every killing perpetrated with the use of a the defendant’s hands, arm, legs, or other appendages could constitute felony murder, thus undermining the General Assembly’s attempt to limit the scope of the rule when it revised the statute in 1977. The court noted that the extent to which hands, arms, legs, and other appendages can be deemed deadly weapons depends upon the nature and circumstances of their use, including the extent to which there is a size and strength disparity between the perpetrator and his or her victim. Moreover, something more than a killing with hands, arms, legs, or other bodily appendages must be shown (a felony) to satisfy the rule.
The court then considered whether the trial court’s instructions to the jury that it could find that the defendant attempted to murder his mother using a garden hoe was prejudicial error, concluding that it was as there was a reasonable possibility that the jury would not have convicted the defendant of first-degree murder without the erroneous instruction. The court explained that to conclude otherwise, “[w]e would be required to hold that the State’s evidence that defendant killed his grandfather as part of a continuous transaction in which he also attempted to murder his mother using his hands and arms as a deadly weapon was so sufficiently strong that no reasonable possibility exists under which the jury would have done anything other than convict defendant of first-degree murder on the basis of that legal theory.” The sharply disputed evidence over whether the defendant was the perpetrator, including the lack of physical evidence, the defendant’s trial testimony, and the conflicting nature of the statements made by the defendant’s mother, prevented the court from concluding that the error was harmless. Even more central to the court’s analysis was the dispute over the extent to which the defendant’s hands and arms were a deadly weapon. The court noted that although the size and strength differential between defendant and his mother was sufficient to permit a determination that defendant’s hands and arms constituted a deadly weapon, the differences were not so stark as to preclude a reasonable jury from concluding that defendant’s hands and arms were not a deadly weapon. If the jury had reasonably concluded that the defendant’s hands and arms were not used as a deadly weapon, it could not have convicted the defendant of the first-degree murder of his grandfather on the basis of the felony-murder rule, contrary to the suggestion in the jury instruction. As a result, the Court held that the trial court’s instruction concerning the use of the garden hoe as a deadly weapon during defendant’s alleged attempt to murder his mother was prejudicial error necessitating a new trial for the murder of his grandfather.
Justice Newby, joined by Justice Morgan, concurred in part and dissented in part. He agreed with the majority that the defendant’s hands and arms were deadly weapons, but disagreed that the instruction regarding the garden hoe resulted in prejudicial error.
Justice Earls concurred in the result only in part and dissented in part. She agreed with the majority that the instruction regarding the garden hoe was error warranting a new trial. She dissented from the majority’s conclusion that a jury could properly consider a person’s hands, arms, feet, or other body parts to be deadly weapons for purposes of the felony murder statute, reasoning that the legislative history and spirit of the statute demonstrate that the deadly weapon requirement refers to an external instrument.
(1) Evidence was insufficient to support trial court’s instruction on theory of acting in concert on drug possession charges; (2) Given potential for confusion on the part of the jury between the theories of acting in concert and constructive possession as bases for the guilty verdicts on drug charges again the defendant, the erroneous instruction was not harmless.
State v. Glover, ___ N.C. ___, ___ S.E.2d ___ (December 18, 2020). Officers investigating complaints of drug activity at a home where the defendant lived with several others discovered methamphetamine, heroin, and cocaine in a small yellow tin in a dresser in the alcove near defendant’s bedroom, an area that the defendant claimed as his personal space. The defendant had allowed officers to search the area, acknowledging that he had used methamphetamine and prescription pills, and that his bedroom likely contained needles and pipes (which were in fact found by the officers), but telling the officers that he did not think they would find any illegal substances. Without the defendant’s knowledge, another resident of the home, Autumn Stepp, had placed the yellow tin, which she referred to as her “hard time stash,” in the dresser before leaving the home earlier that day.
The defendant was charged with possession with intent to sell and deliver methamphetamine, heroin, and cocaine and with maintaining a dwelling house for the sale of controlled substances. He also was indicted for having attained the status of an habitual felon. At the close of the State’s evidence, the trial court dismissed all charges except for simple possession of heroin, methamphetamine, and cocaine. The State requested, and the judge delivered over the defendant’s objection, a jury instruction on the theory of acting in concert in addition to constructive possession. The jury convicted the defendant of simple possession of heroin, methamphetamine, and cocaine and determined that he had attained the status of an habitual felon. The trial court imposed two consecutive sentences of 50 to 72 months of imprisonment. Defendant appealed.
In a divided opinion, the court of appeals determined that the instruction was proper as it was supported by the evidence. The defendant appealed to the North Carolina Supreme Court.
The state supreme court noted that to support a jury instruction on the theory of acting in concert, the State must produce evidence that the defendant acted together with another who did the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. Mere presence at the scene of the crime is insufficient to support such an instruction. The supreme court agreed with the dissent below that there was no evidence that the defendant acted together with Stepp pursuant to a common plan or purpose; therefore, the supreme court concluded that the trial court erred by giving the instruction. The court reasoned that the discovery of the tin in the defendant’s personal area could indicate his capability to maintain dominion and control over it, thereby supporting a theory of constructive possession, but did not show a common plan or purpose in which the defendant acted in concert with Stepp to protect her “hard time stash.” Likewise, defendant’s admission that he had used illegal drugs on the day of the search and with Stepp in the past could support a theory of constructive possession, but did not demonstrate a common plan or purpose between defendant and Stepp as to the substances in the yellow tin.
Because the State’s evidence supporting the theory of constructive possession was controverted and not exceedingly strong and given the prospect of confusion presented by proceeding on a theory of possession by acting in concert and constructive possession, the court concluded there was a reasonable possibility that had the trial court not instructed on acting in concert a different result would have been reached. The state supreme court thus reversed the decision of the court of appeals, vacated the defendant’s convictions and ordered a new trial.
Justice Newby dissented based on his view that the majority failed to consider the evidence in the light most favorable to the State. Through that lens, he would have found sufficient evidence to support the theory of acting in concert.
Under G.S. 15A-1023(c), a trial court does not have the discretion to reject a defendant’s guilty plea when the plea is the defendant’s informed choice, is supported by a factual basis, and is the product of an agreement where the prosecutor does not make any recommendations concerning sentence.
State v. Chandler, ___ N.C. ___, ___ S.E.2d ___ (Dec. 18, 2020). Under G.S. 15A-1023(c), a trial court does not have the discretion to reject a defendant’s guilty plea when the plea is the defendant’s informed choice, is supported by a factual basis, and is the product of an agreement where the prosecutor does not make any recommendations concerning sentence. In this case, the defendant negotiated a plea arrangement with the State where he would plead guilty to indecent liberties in exchange for the State’s dismissal of a first-degree sexual offense charge. During the plea colloquy, the defendant stated that he was pleading guilty to prevent the child victim “from being more traumatized” but that he “did not intentionally do what they say I’ve done.” The trial judge rejected the plea, explaining that his practice was not to accept pleas in situations where a defendant asserts factual innocence. The defendant’s case was continued to a later court date where he entered a plea of not guilty and was convicted by a jury of first-degree sex offense and indecent liberties. Construing language in G.S. 15A-1023(c) that a trial judge “must accept the plea” when it is the product of an informed choice and is supported by a factual basis as a statutory mandate, court first found that the defendant’s argument that the trial court erred by not accepting the plea automatically was preserved for appellate review notwithstanding the defendant’s failure to raise the argument at trial. The court then found that because there was a factual basis for the plea and evidence that it was the product of the defendant’s informed choice, the trial judge lacked discretion to reject the plea on grounds of the defendant’s refusal to admit factual guilt and plainly erred by doing so. The court explained: “Nothing in [G.S.] 15A-1022 or our case law announces a statutory or constitutional requirement that a defendant admit factual guilt in order to enter a guilty plea.” The court remanded the case to the trial court with instructions to the district attorney to renew the plea offer.
Justice Morgan, joined by Justice Newby, dissented and expressed the view that the defendant’s argument was not properly preserved for appellate review. In Justice Morgan’s view, the trial judge is “the determiner” of whether there is a factual basis for a plea and whether it is the product of informed choice. While G.S. 15A-1023(c) mandates that a plea be accepted when those conditions are satisfied, the majority erred by substituting its judgement on those conditions for the trial court’s and by considering the defendant’s argument on appeal when the defendant had failed to object in the trial court.
There was insufficient evidence of second-degree sexual exploitation of a minor under an acting in concert theory; there was insufficient evidence of penetration to support an adjudication for first-degree forcible sexual offense.
In re J.D., ___ N.C. ___, ___ S.E.2d ___ (Dec. 18, 2020). In this juvenile case, the trial court erred by denying the respondent’s motions to dismiss charges of second-degree sexual exploitation of a minor and first-degree forcible sexual offense but did not err by accepting his admission of attempted larceny in an incident unrelated to the alleged sex crimes.
The State relied on an acting in concert theory in proceeding against the respondent on the second-degree sexual exploitation of a minor charge because all testimony was that a person other than the respondent made a video recording of the respondent apparently engaging in non-consensual sexual contact with the victim. The court reviewed the evidence presented at trial and found it insufficient to show that the respondent and the person who recorded the video acted with a common plan or scheme to make the recording. The court stated that the evidence showed that the respondent “did not wish to be recorded and that [the other person’s] decision to record the incident was of his own volition.”
The evidence of penetration was insufficient to support the first-degree forcible sexual offense charge allegedly based on anal intercourse as the victim unambiguously and explicitly denied that anal penetration occurred and the State did not present sufficient other evidence corroborating the allegation of penetration. The court rejected the State’s argument that a witness’s description of the incident as the respondent and the victim “doing it” was sufficient evidence of penetration and noted that at the adjudicatory hearing the State had conceded “that there was not evidence of penetration.”
There was a sufficient factual basis to support the respondent’s admission to an unrelated charge of attempted misdemeanor larceny of a bicycle where the respondent was found near the crime scene with two people fitting a witness’s description of the suspects, had bolt cutters in his backpack, and denied committing but expressed some knowledge of the larceny to an investigating officer. Though the trial court did not err by accepting the respondent’s admission to attempted misdemeanor larceny, the court could not remand the matter for a new disposition hearing to account for its rulings related to the sufficiency of the evidence of the sex crimes because the trial court’s juvenile jurisdiction terminated when the respondent turned eighteen years old while the appeal was pending.
Justice Newby concurred in part and dissented in part, expressing the view that the evidence was sufficient to support the lesser included offense of attempted first-degree forcible sexual offense and that the matter should be remanded for entry of an amended adjudication for that offense.
The defendant’s right to a speedy trial was not violated by a five-year delay between indictment and trial.
State v. Farmer, ___ N.C. ___, ___ S.E.2d ___ (Dec. 18, 2020). In this case involving charges of first-degree sex offense with a child and indecent liberties, the court found that the procedural circumstances were “unsettling” but did not constitute an infringement upon the defendant’s constitutional right to a speedy trial. In May 2012, the defendant was indicted for offenses that allegedly occurred in March 2012. The defendant’s trial was not calendared for approximately five years and, at a July 2017 hearing on the defendant’s speedy trial motion to dismiss, an assistant clerk of court testified that there had been no trial activity in the defendant’s case from the date of indictment in May 2012 to January 2017. Applying the four-part test from Barker v. Wingo, the court found: (1) the length of delay between indictment and trial in this case was “striking and clearly raises a presumption” that the defendant’s speedy trial right may have been breached; (2) an assessment of the reason for the delay, largely attributed to a crowded docket and limited prosecutorial resources, “modestly [favored]” the defendant; (3) the defendant’s belated assertion of his right to a speedy trial, occurring nearly five years after his indictment, “weigh[ed] significantly against” the defendant; and (4) that the defendant did not suffer prejudice because of the delay. Engaging in a “difficult and sensitive balancing process” of the four Barker factors, the court held that the defendant’s right to a speedy trial was not violated.
Trial court’s refusal to allow any questions during jury selection about issues of race, implicit bias, or police shootings of black men was prejudicial error.
State v. Crump, __ N.C. __, ___ S.E.2d ___ (Dec. 18, 2020). The defendant was indicted for multiple charges of armed robbery, kidnapping, possession of firearm by a felon, assault with a deadly weapon with intent to kill, and assaulting a law enforcement officer with a firearm. The charges arose out of the robbery of an illegal poker game and the intended robbery of a second game. The second game was a set-up by one of the victims from the first game, who called 911 when the robbers arrived. Officers responding to the 911 call encountered the defendant in a car parked outside the office complex where the fake game was to be held, and a shootout ensued. The defendant was apprehended after a low-speed chase involving several law-enforcement agencies, and went to trial on all charges. Three of the charges were dismissed at trial by the court, and the jury acquitted the defendant of two others, but he was convicted of the remaining charges and received thirteen consecutive judgments totaling 872 to 1,203 months incarceration. The defendant appealed his conviction. A more detailed summary of the facts of this case and a discussion of the Court of Appeals’ holding regarding the application of the statutory felony disqualification provisions to the defendant’s self-defense claims can be found here: John Rubin, “A Lose-Lose Situation for ‘Felonious’ Defendants Who Act in Self-Defense,” N.C. Criminal Law Blog, May 1, 2018.
The Court of Appeals unanimously affirmed the conviction, but the state Supreme Court granted discretionary review to consider whether the trial court erred by restricting the defendant’s voir dire of prospective jurors on issues of race, implicit bias, and police shootings of black men. Concluding that the “the trial court did abuse its discretion and that the trial court’s improper restrictions on defendant’s questioning during voir dire did prejudice defendant,” the higher court reversed the conviction.
During voir dire, the trial court sustained objections to the defendant’s attempts to ask prospective jurors about “the possibility that they harbored racial biases against African Americans” as well as “their awareness of a case that had recently occurred in Charlotte where a police officer shot and killed an unarmed black man.” On appeal, the defense argued that the questions were relevant to determine whether jurors could be unbiased and fair, while the state argued that the questions were an improper attempt to “stake out” the jurors and secure a forecast of how they would vote. The Supreme Court acknowledged that trial courts have broad discretion to restrict the manner and extent of questioning prospective jurors, but concluded that the trial court erred in this case when it “flatly prohibited” and “categorically denied” all questions about race, bias, and officer shootings of black men. The proposed questions were not an attempt to stake out the jurors, but rather an attempt to determine if any jurors had opinions or biases that would impact their ability to decide the facts of the case. Additionally, since the case involved a dispute over whether the defendant or the officers fired first, as well as what inferences to draw from the defendant’s refusal to immediately surrender after the shooting, the error was prejudicial because it impacted the defendant’s ability to identify and challenge any jurors who “might struggle to fairly and impartially determine whose testimony to credit, whose version of events to believe, and, ultimately, whether or not to find defendant guilty.” Because it held that the exclusion of these issues during voir dire was prejudicial error warranting reversal, the Supreme Court did not reach the remaining issue of whether there must be a causal nexus between the use of defensive force and the felonious conduct that would bar a self-defense claim under G.S. 14-51.4.
Justice Davis dissented, joined by Justices Newby and Morgan. The dissent would have held that the limited series of questions rejected by the trial court did not establish that all inquiry into issues of potential juror bias was prohibited, and also would have found that the only reason offered at trial for these questions was to gauge how jurors might assess the defendant’s state of mind while fleeing the scene, rather than for the purpose of identifying potential bias on the part of the jurors as argued on appeal. The majority responded that both issues were addressed by viewing the questions in context and considering the entire record of the voir dire.
Trial court erred by not conducting another competency evaluation during trial, based on defendant’s condition and history of mental illness.
State v. Hollars, __ N.C. __, ___ S.E.2d ___ (Dec. 18, 2020). Defendant was charged in 2012 with several counts of second-degree sex offense and taking indecent liberties against his step-daughter, and went to trial in 2018. During the intervening six years, defendant received a total of seven mental health evaluations in which there were “fluctuating determinations” of his competency to stand trial. The defendant was initially found to be suffering from mental illness and unable to assist in his own defense, rendering him incompetent. Subsequent evaluations found him competent as long as he continued receiving treatment, but also subject to rapid decompensation if his treatment regimen or sleeping arrangements were disrupted. The last evaluation, finding defendant competent, was conducted four months prior to trial. On the third day of trial, defense counsel raised competency concerns with the court based on the defendant’s apparent confusion and vacant demeanor. During an inquiry the next morning, the trial judge concluded that the defendant’s confusion was likely due to the technical nature of an evidentiary issue being argued, and defense counsel expressed no further concerns, so the trial continued. The defendant was convicted by the jury, sentenced to 150 years in prison, and appealed.
On review from a dissent in the Court of Appeals, the state Supreme Court held that the trial judge erred by failing to conduct another competency hearing sua sponte when faced with substantial evidence that raised a bona fide doubt about defendant’s competency. That evidence included the lapse of time since defendant’s last evaluation, his long history of mental illness and tendency for rapid deterioration, and the concerns raised by counsel during trial. Competence to stand trial is a due process right, and “the trial court must remain on guard over a defendant’s competency” during trial, even in cases where the defendant was found competent at the start of the proceedings. In light of the defendant’s history, the possibility that his confusion at trial could have been caused by his unfamiliarity with a technical legal issue “must yield to the necessity of the criminal justice system to ensure that a defendant’s due-process rights are protected.” The ruling from the Court of Appeals, which remanded the case to the trial court for a hearing to determine defendant’s competency at the time of trial, was therefore affirmed.
Justice Newby dissented, and would have held that “one isolated incident” of confusion did not create a duty to conduct further inquiry; he would have affirmed the trial court’s actions based on the judge’s in-court observations of the defendant, defense counsel’s assurance that he had no further concerns, and the pretrial determinations of competency.
When defendant attempted suicide during trial and was involuntarily committed, trial court erred by declaring defendant voluntarily absent and continuing the trial without first determining whether defendant was competent.
State v. Sides, __ N.C. __, ___ S.E.2d ___ (Dec. 18, 2018). The defendant was on trial for four counts of embezzlement when she attempted to commit suicide by ingesting 60 Xanax tablets during an evening recess. The defendant was found unresponsive, taken to the hospital, and involuntarily committed for evaluation and treatment. The trial was postponed until the following week, at which time the trial judge reviewed medical records and conferred with counsel before ruling that the defendant was voluntarily absent by her own actions and the trial could continue without her. The defendant was convicted by the jury, sentenced when she returned to court at a later date, and appealed. On appeal, the defendant argued that the trial court erred by failing to conduct a competency hearing sua sponte before declaring her voluntarily absent. A divided Court of Appeals found no error, since the trial court is only required to examine competency sua sponte if there is substantial evidence before it that raises a bona fide doubt about the defendant’s competence. Based on a review of the record as a whole, the appellate court was not persuaded that the defendant’s suicide attempt was a result of mental illness rather than a voluntary act intended to avoid facing prison.
The state Supreme Court disagreed and reversed. The higher court concluded that by “skipping over the issue of competency and simply assuming that defendant’s suicide attempt was a voluntary act that constituted a waiver of her right to be present during her trial” the trial court and the Court of Appeals majority had “put the cart before the horse.” In non-capital trials, a defendant may waive his or her right to be present, but the defendant must be competent to do so. In this case, there was substantial evidence before the court that raised a bona fide doubt about the defendant’s competence. In addition to the suicide attempt itself, the court was aware that the defendant had been involuntarily committed due to a high risk of self-harm, and the court reviewed additional medical records regarding the defendant’s history of mood disorders and prescribed medications. The trial court began an inquiry into defendant’s competence by ordering the medical records and discussing the issue with counsel, but erred when it stopped short of conducting a formal competency hearing before declaring her voluntarily absent. Finally, due to the amount of time that has elapsed since the trial, a retrospective competency hearing was no longer feasible; therefore, the conviction was vacated and the case remanded for a new trial – if the defendant is found competent.
Justice Morgan dissented, joined by Justices Newby and Ervin, and would have held that the evidence before the trial court did not raise the same doubts about the defendant’s competence as those that were present in the case precedent cited by the majority, and therefore the trial court did not err by declaring her voluntarily absent.
State’s failure to disclose material and exculpatory evidence before defendant’s trial was a Brady violation warranting reversal of defendant’s conviction.
State v. Best, __ N.C. __, ___ S.E.2d ___ (Dec. 18, 2020). Defendant filed an MAR challenging his 1993 convictions and death sentence for burglary, rape, armed robbery, and two counts of first-degree murder. The MAR alleged that the state failed to disclose material and exculpatory evidence in violation of Brady. At his original trial, the state’s primary evidence against the defendant included his fingerprint on a knife found next to one victim’s body, a partial DNA match between the defendant and a semen sample recovered from one of the victims, and testimony from a witness that the defendant spent a large amount of money on drugs shortly after the victims were robbed and murdered. The defendant made several discovery requests prior to trial in 1993, but the evidence at issue in this MAR was not produced. Part of the additional evidence was voluntarily provided to postconviction counsel in 2011, while other evidence was located by defense counsel in the attic of Whiteville City Hall. The undisclosed evidence fell into four categories: (i) forensic testing on additional hair, fiber, fingerprint, and blood samples that were not a match to the defendant; (ii) a prior interview with the testifying witness in which she said the defendant had only a small amount of money on him around the time of the crimes; (iii) reports about glass particles found in the defendant’s shoes that did not match the broken window glass at the crime scene, and additional cash found in the victim’s purse; and (iv) investigative materials on two undisclosed alternate suspects.
The trial court denied the MAR, finding that the defendant failed to show prejudice, and the defendant appealed. On review, the state Supreme Court considered how the undisclosed evidence could have been used to either negate or cast doubt upon the principal evidence offered by the state, and was “sufficiently disturbed by the extent of the withheld evidence in this case, and by the materiality of that evidence, that it undermines our confidence in the jury’s verdict.” The trial court’s denial of the MAR was therefore reversed, and the case was remanded with instructions to grant the MAR and order a new trial.
Justice Newby dissented, and would have held that the defendant failed to demonstrate a reasonable probability that the jury would have reached a different result even if the additional evidence had been made available at trial.
In the absence of any supporting physical evidence, testimony of DSS investigator that alleged sexual abuse had been substantiated was impermissible vouching and constituted plain error.
State v. Warden, __ N.C. __, ___ S.E.2d ___ (Dec. 18, 2020). The defendant was indicted for three incidents of sexual abuse against his step-daughter and went to trial. The victim testified at trial about the abuse, and eight other witnesses testified regarding the investigation and corroboration of the victim’s testimony. One of the state’s witnesses was a DSS investigator who interviewed the victim and testified without objection that her agency had “substantiated sexual abuse naming [defendant] as the perpetrator,” meaning that the agency believed the allegations of abuse to be true. The defendant was convicted and appealed. A majority in the Court of Appeals held that the testimony was plain error requiring a new trial.
The Supreme Court agreed and affirmed the appellate court’s ruling. Pursuant to State v. Stancil, 355 N.C. 266 (2002), the state conceded on appeal that it was error to admit expert opinion testimony that the abuse had “in fact” occurred without physical evidence to support the diagnosis. The only question before the state Supreme Court was whether this testimony rose to the level of plain error, since there was no objection made at trial. Here, because there was no direct evidence of abuse and the other witnesses’ testimony only served to corroborate the victim’s account, “the jury’s decision to find the complainant more credible than the defendant clearly formed the basis of its ultimate verdict.” Therefore, consistent with its prior ruling on similar facts in State v. Towe, 366 N.C. 56 (2012), the majority held that “the trial court commits a fundamental error when it allows testimony which vouches for the complainant’s credibility in a case where the verdict entirely depends upon the jurors’ comparative assessment of the complainant’s and the defendant’s credibility.”
Writing in dissent, Justice Newby would have held that the other evidence presented by the state distinguished this case from Towe, and the defendant did not meet his burden under the plain error standard of demonstrating that the outcome of trial likely would have been different without the improper testimony.