State v. Triplett ( 2014 )

NO. COA13-1289
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
STATE OF NORTH CAROLINA
v. Wilkes County
Nos. 09 CRS 54801, 10 CRS 405
JAMES DOUGLAS TRIPLETT
Appeal by defendant from judgment entered 18 February 2013
by Judge Edgar B. Gregory in Wilkes County Superior Court.
Heard in the Court of Appeals 9 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General John H. Watters, for the State.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender David W. Andrews, for defendant-
appellant.
McCULLOUGH, Judge.
James Douglas Triplett (“defendant”) appeals from the
judgment entered upon his conviction for first degree felony
murder. For the following reasons, we grant a new trial.
I. Background
On 19 April 2010, a Wilkes County Grand Jury indicted
defendant on charges of first degree murder, robbery with a
dangerous weapon, and first degree burglary. Following various
pretrial motions by defendant, defendant’s case came on for jury
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trial in Wilkes County Superior Court on 4 February 2013, the
Honorable Edgar B. Gregory, Judge presiding.
The evidence at trial tended to show that after a day of
drinking and drug use, defendant, his brother Eddie Triplett,
and two other men, Ben Watson and Dillon Walsh, went to the
residence of Bruce Barnes (“victim”) on the evening of 9
December 2009 in search of drugs. While present at victim’s
residence, the men got into a skirmish with victim, during which
defendant fatally stabbed victim.
At trial, the State prosecuted the case on the theory that
defendant, Eddie, Ben, and Dillon had planned to rob victim of
his drugs and defendant killed victim in perpetration of the
robbery. Defendant, on the other hand, maintained throughout
trial that he was ignorant of any plan to rob victim. Defendant
testified that he agreed to go to victim’s house to get high and
passed out on the way to victim’s house. Defendant did not
recall anything from the ride to victim’s house. Defendant
testified he woke up and came to when he heard Dillon holler
“He’s got a gun. He’s got a gun.” At that point, defendant
realized Eddie and Dillon were in a fight with victim and he
entered the fight. Defendant testified he did not intend to
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kill victim but stabbed victim to protect Eddie, Dillon, and
himself.
On 18 February 2013, the jury returned verdicts finding
defendant guilty of robbery with a dangerous weapon, second
degree burglary, and first degree murder under the first degree
felony murder rule. The trial court then arrested judgment on
defendant’s convictions for robbery with a dangerous weapon and
second degree burglary and entered judgment on defendant’s
conviction for first degree felony murder. Defendant was
sentenced to life imprisonment with the possibility of parole.
Defendant gave oral notice of appeal in open court following
sentencing.
II. Discussion
Now on appeal, defendant raises the following two issues:
whether the trial court erred by: (1) preventing defendant from
cross-examining his sister, Teresa Ogle, with a recording of a
voicemail message she left for defendant’s other sister in order
to attack Ogle’s credibility; and (2) allowing the State to use
defendant’s silence against him.
Voicemail Message
At trial, defendant’s sister Teresa Ogle testified as a
witness for the State. During her testimony, Ogle explained
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that defendant lived with her in a single wide mobile home on
family land at the time of the incident in early December 2009.
Although Ogle owned the mobile home, another of defendant’s
sisters, Connie Jennings, owned the land.
In response to questioning by the State on direct
examination, Ogle described what happened the night of 9
December 2009 when defendant returned home after the
altercation. On the whole, Ogle’s testimony was damaging to
defendant.
Specifically, Ogle testified that she worked third shift
security and was getting ready for work when defendant came home
on 9 December 2009 at approximately 10:40 p.m. Defendant
entered the mobile home alone, but Eddie, Ben, and Dillon
followed closely behind. Ogle recalled that Eddie had been
stabbed in the leg and defendant’s clothes were bloody. At
first, defendant claimed he shot a deer and, while trying to cut
the deer’s throat, had stabbed Eddie in the leg. Defendant,
however, quickly changed his story, admitting he killed a man
and stating he was no different than Jack Keller, defendant’s
grandfather who killed defendant’s grandmother. As the men
discussed what they should do with their clothes, Ogle overheard
defendant tell the other men they were going to burn their
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clothes in a barrel. Yet, Ogle did not see the men dispose of
their clothes because she left for work. Ogle testified that as
she was leaving, defendant gave her two intertwined pot holders.
Ogle claimed she did not know what was inside of the pot
holders, but admitted she disposed of them over the side of a
bridge on her way to work.
Ogle testified that defendant later told her that he knew
Ben had planned to rob victim and that he took a knife from her
kitchen before they went to victim’s residence because he knew
victim had a gun. Ogle confirmed that a large knife was in fact
missing from her kitchen knife set.
Ogle additionally testified that sometime after defendant
was arrested and charged with victim’s murder, she received a
phone call from defendant. Ogle recalled that during their
conversation, defendant indicated he did not want her to testify
against him. When Ogle said she would tell the truth, defendant
began cussing, indicated that he wanted her to lie, and hung up.
On cross-examination, the defense sought to attack Ogle’s
credibility with questions concerning statements made by Ogle to
family members that were inconsistent with her trial testimony.
The defense’s questions tended to suggest that Ogle played a
larger role in destroying evidence following victim’s death but
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that Ogle was lying on the witness stand to protect herself.
The defense also inquired into Ogle’s mental health, drug use,
and past sexual activity. When the defense asked Ogle if she
remembered engaging in risky sexual behavior, the State objected
and the jury was excused while voir dire was conducted.
Prior to the jury’s return following voir dire and a
morning break, the defense informed the court that it also
intended to cross-examine Ogle with a recording of a voicemail
message she left for Shay Waddell, another of defendant’s
sisters. With the jury still out, the court instructed the
defense to play the recording of the message. In the message,
Ogle made hostile statements toward Shay, calling her names,
denouncing her relationship with her family, and threatening to
call “the law” and the D.A.
Upon inquiry by the court, the defense explained the
message was left on 5 December 2011, after the charges were
brought against defendant and around the time Ogle made
allegations that other members of defendant’s family were
threatening her to keep her from testifying. The defense
contended the message suggested Ogle had something to hold over
the rest of defendant’s family’s head through her testimony in
defendant’s case and argued it should be able to cross-examine
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Ogle with the message to demonstrate Ogle’s animus and bias
towards defendant and their family.
In response to the defense’s argument, the State explained
that it believed the message was left in response to the
family’s eviction of Ogle from the family land and was not
related to the charges against defendant. The State further
explained that as a result of the eviction and surrounding
events, Connie Jennings, the sister who owned the land, had been
charged with interfering and intimidating a State’s witness for
her actions against Ogle. The State then objected to the
introduction of the message, contending it was “unrelated to the
charges [in the present case] and more related to the charges of
intimidating the State’s witness as well as the eviction
process.”
In explaining his opinion that the evidence should not come
in under Rule 403, the trial judge indicated that evidence
regarding what the family has done would be prejudicial to
defendant, who was not responsible for the eviction or message.
The court explained that introducing the message would invite
evidence of the eviction that is not relevant and could mislead
and confuse the jury. The trial judge then issued the following
ruling:
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I rule that this tape may not be played
before the jury; that I really have problems
with Rule 402 and whether it’s relevant. I
rule under 403 that the probative value is
substantially outweighed by the confusion of
the issues involving her eviction and the
problems that she might have had with her
sisters; that there is no -- it’s not fair
to tie whatever problem she had with her
sisters to the defendant; that may be
prejudicial to the defendant. He may be
prejudiced by allowing that kind of
evidence.
I think the same kind of things can be asked
of her, whether she has hard feelings and
all of that sort of thing. But I rule --
and I sustain the objection to the tape.
And the tape will be made part of the
record, if you would like for it be, but it
may not be played before the jury.
In response to the trial court’s ruling, the defense again
requested that it at least be able to play the last portion of
the message where Ogle threatened “to call the law and to go to
the District Attorney if they keep messing with her[.]” The
defense reiterated its argument that this threat was relevant
for impeachment purposes because it showed Ogle’s bias and
Ogle’s willingness to do whatever it takes to hurt defendant and
his family.
Yet, the trial court stood firm, stating:
I decline that request for the same reasons,
that I think it would open up an area that
would be confusing to the jury; that you may
ask her about any problems, if you desire,
about her feelings about her family. But
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anything about an eviction, it seems to me
that that are things that don’t relate to
the defendant necessarily, and it’s possible
that the jury could be prejudiced towards
the defendant by something that his sisters
did that he didn’t even know about.
. . . .
It opens up areas that are not necessary and
are confusing. And under Rule 403 and the
balancing test, I’m going to keep it out as
the gatekeeper of the evidence.
Despite the court’s ruling, defendant made it clear that
“it [was his] wish that [the message] be played, notwithstanding
whatever prejudice may be possible, and that it is his request
that it be done and that he desires that it be played at his
murder trial.”
Thereafter, in response to questions concerning Ogle’s
relationship with her family, Ogle testified that she had no
hard feelings towards defendant or her family for supporting
defendant. Ogle stated she loved her family and they loved her
too.
Now on appeal, defendant contends Ogle was a key witness
and the trial court erred in refusing to allow his defense to
cross-examine her with the message in order to show her bias and
attack her credibility. Upon review, we agree with defendant.
As our Supreme Court has explained,
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North Carolina Rule of Evidence 611(b)
provides that “[a] witness may be cross-
examined on any matter relevant to any issue
in the case, including credibility.” Id.,
Rule 611(b) (2005). However, such evidence
may nonetheless be excluded under Rule 403
if the trial court determines “its probative
value is substantially outweighed by the
danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of cumulative
evidence.” Id., Rule 403. We review a
trial court's decision to exclude evidence
under Rule 403 for abuse of discretion.
State v. Peterson, 361 N.C. 587, 602-03, 652
S.E.2d 216, 227 (2007) (citing State v. Al-
Bayyinah, 359 N.C. 741, 747-48, 616 S.E.2d
500, 506-07 (2005), cert. denied, 547 U.S.
1076, 126 S.Ct. 1784, 164 L.Ed.2d 528(2006)). An abuse of discretion results
when “the court's ruling is manifestly
unsupported by reason or is so arbitrary
that it could not have been the result of a
reasoned decision. In our review, we
consider not whether we might disagree with
the trial court, but whether the trial
court's actions are fairly supported by the
record.” Id. (citations and internal
quotation marks omitted).
State v. Whaley, 362 N.C. 156, 159-60, 655 S.E.2d 388, 390
(2008). We are, however, mindful that “criminal defendants . .
. must be afforded wide latitude to cross-examine witnesses as
to matters related to their credibility.” Id. at 161, 655
S.E.2d at 391.
As detailed above, in this case the trial court indicated
it had serious doubts as to whether the message was relevant
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and, thus, admissible under Rule 402. The trial court then
excluded the evidence under Rule 403, finding the probative
value of the message was substantially outweighed by confusion
of the issues and unfair prejudice to defendant.
First, relevant evidence is defined as “evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” N.C. Gen.
Stat. § 8C-1, Rule 401 (2013). Upon review in this case, we
hold the message relevant to attack Ogle’s credibility and show
Ogle’s bias towards defendant and defendant’s family.
As the parties explained, the message arose as a result of
the family’s efforts to persuade Ogle from testifying against
defendant, including Ogle’s eviction from the family land.
Although the message would certainly be relevant in the case of
intimidating a State’s witness and the foreclosure proceedings,
as argued by the State, the message is also relevant in the
present action to show possible bias by Ogle against defendant.
Moreover, the message is clearly relevant to attack Ogle’s
credibility as it calls Ogle’s testimony that she held no hard
feelings against her family into doubt.
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Second, Rule 403 requires the trial court to weigh the
probative value of the evidence against “the danger of unfair
prejudice, confusion of the issues, or misleading the jury[.]”
N.C. Gen. Stat. § 8C-1, Rule 403 (2013). In this case, because
the trial court questioned the relevance of the message, the
trial court could not have properly weighed the probative value
of the message against the dangers of unfair prejudice and
confusion.
Moreover, defendant requested for a second and third time
that the message be allowed into evidence despite the potential
prejudice to his case. We find it within defendant’s right to
bear the risk of prejudice and cross-examine Ogle with the
message. As our Supreme Court explained in State v. Lewis, 365
N.C. 488, 496, 724 S.E.2d 492, 498 (2012),
[g]enerally, the trial court has broad
discretion in determining whether to admit
or exclude evidence, and we are sympathetic
to the trial court's legitimate worry that
the evidence could complicate the case to
defendant's detriment . . . . However, we
have long held that “[c]ross-examination of
an opposing witness for the purpose of
showing . . . bias or interest is a
substantial legal right, which the trial
judge can neither abrogate nor abridge to
the prejudice of the cross-examining party.”
Id. at 496, 724 S.E.2d at 498 (quoting State v. Hart, 239 N.C.
709, 711, 80 S.E.2d 901, 903 (1954) (citations omitted)). Where
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the defense believes the risk of informing the jury of
potentially prejudicial evidence is worth taking, any error that
results would be invited by defendant. Id. at 496, 724 S.E.2d
at 498-99 (citing N.C. Gen. Stat. § 15A-1443(c)). Thus, as our
Supreme Court held in Lewis, “[g]iven the importance this Court
places on a party’s right to cross-examine an opposing witness
for bias,” Id. at 496-97, 724 S.E.2d at 499, we hold it was the
defense’s decision to chance the risk of prejudice and the trial
court erred by excluding the evidence.
We further hold defendant was prejudiced by the trial
court’s error. Ogle was a key witness for the State and the
only witness that testified defendant was aware of the plan to
rob victim. Without evidence that defendant was aware of the
plan to rob victim, it is likely the jury would not have found
defendant guilty of robbery and burglary, the felonies
underlying defendant’s conviction for first degree felony
murder.
In arguing the trial court did not err by excluding the
message, the State cites this Court’s decision in State v.
Withers, 111 N.C. App. 340, 432 S.E.2d 692 (1993). This Court
described the situation in Withers as follows,
[D]efendant[, who was charged with larceny
and possession of stolen property,]
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attempted to introduce a tape recording to
impeach the testimony of Rita Jones and to
show her motive to testify against him. On
direct examination, Ms. Jones testified that
she did not threaten her husband or anyone
at the Stanley Rescue Squad. Defendant,
however, offered a telephone answering
machine tape recording [from her husband’s
voicemail] in which Ms. Jones profanely
threatened to go to the authorities in
Lincolnton and report her husband, who had
been present when the property had been
taken and when it had been divided.
Id. at 346-47, 432 S.E.2d at 696-97. This Court then affirmed
the trial court’s decision to exclude the recording, explaining
that
[w]hile the tape in question directly
contradicts Ms. Jones' earlier testimony
denying making threats to “get back” at her
husband, the tape does not tend to prove or
disprove any of the essential elements of
either crime charged. Furthermore, the
threats made on the tape are not directed at
defendant. On direct examination,
defendant's witness, Joyce Jones, testified
to the threat which Ms. Jones made, so that
the impeaching evidence was disclosed to the
jury. Considering these factors and the
extreme profanity contained on the tape, we
believe the tape posed a danger of
misleading the jury, causing undue delay and
being cumulative.
Id. at 348, 432 S.E.2d at 697.
While both cases involve the exclusion of a recorded
message under Rule 403 that a defendant sought to introduce to
attack the credibility of a key witness, we find the present
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case distinguishable in one key respect. Among the factors
considered in Withers, this Court noted the exclusion of the
evidence was not error because the impeachment evidence came in
through the testimony of another witness. See id. In the
present case, however, the evidence defendant sought to admit
was never introduced. Although the State is correct in
asserting the evidence tended to show that defendant’s family
was “mad” at Ogle, there was no evidence that Ogle reciprocated
those feelings. In fact, Ogle testified she loved her family
and had no hard feelings towards them.
Right to Remain Silent
During the State’s cross-examination of defendant, the
State questioned defendant on his failure to mention self-
defense to investigators early in the investigation. The State
then argued to the jury during closing that defendant “waited
till he heard the State’s case and then concocted his story to
try and navigate the waters to see if he could come up with some
story that [the jury] might buy and spare justice for him.”
Now, in defendant’s second issue on appeal, defendant
contends the trial court improperly allowed the State to use his
silence against him. Having already determined defendant is
entitled to a new trial based on the trial court’s refusal to
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allow defendant to cross-examine Ogle with the recorded message,
we do not address the merits of this second issue as it is
unclear from the record before this Court whether the statements
were made before or after defendant was in custody and
Mirandized. We leave this issue for the trial court to resolve
in defendant’s retrial.
III. Conclusion
For the reasons discussed above, we hold defendant is
entitled to a new trial.
New trial.
Judges ELMORE and DAVIS concur.