State v. Brown ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-525
Filed 15 August 2023
Guilford County, No. 15 CRS 84632
STATE OF NORTH CAROLINA
v.
RYAN PIERRE BROWN, Defendant.
Appeal by defendant from order entered 22 April 2022 by Judge Susan E. Bray
in Guilford County Superior Court. Heard in the Court of Appeals 24 January 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Kayla D.
Britt, for the State.
Dobson Law Firm, PLLC, by Miranda Dues, for the Defendant-Appellant.
STADING, Judge.
Ryan Pierre Brown (“defendant”) petitions for a writ of certiorari, claiming
the trial court erred in summarily denying his motion for appropriate relief (“MAR”).
Defendant asserts the trial court improperly denied his MAR because an evidentiary
hearing was not held to make the ultimate legal determination at issue in this matter.
For the reasons set forth below, we deny defendant’s petition for a writ of certiorari
and dismiss his appeal.
STATE V. BROWN
Opinion of the Court
I. Factual and Procedural History
On 11 August 2015, officers from the Greensboro Police Department responded
to a report of “shots being fired” at an apartment complex. Upon arrival, they
observed the victim, Jermaine Hayes, suffering from a gunshot wound. Mr. Hayes
later died at the hospital. Kelsey Bell, the tenant of the apartment and girlfriend of
the victim, sold Xanax to another woman named Brenda Goins. On her outing to buy
the drug, Ms. Goins was accompanied by defendant and Demario Danzy. While Ms.
Bell and Ms. Goins conducted the drug transaction inside the apartment, Mr. Hayes
walked outside of his girlfriend’s residence to where defendant and Mr. Danzy were
located. Subsequently, Ms. Goins exited the apartment while Ms. Bell remained
inside of her residence. Shortly thereafter, Ms. Bell heard gunshots and witnessed
Mr. Hayes hastily re-enter the apartment and subsequently collapse on the floor.
Ms. Bell was acquainted with Ms. Goins and identified her as well as the
vehicle at the crime scene. Police officers obtained a surveillance video showing
defendant, Mr. Danzy, and Ms. Goins together. Later, Mr. Danzy was arrested and
told investigators that he was the driver of the vehicle that transported defendant
and Ms. Goins to Ms. Bell’s apartment. Additionally, Mr. Danzy admitted that he
and defendant had a common gang association and Mr. Hayes was involved in a rival
gang. Mr. Danzy reported that after some discussion between the three males outside
of the apartment, Ms. Goins exited the apartment and Mr. Hayes turned to walk
away. Mr. Danzy recounted that defendant then pulled out a handgun and fired a
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Opinion of the Court
number of shots at Mr. Hayes. Mr. Danzy claims this action by defendant startled
him and he drove away with Ms. Goins and defendant in the vehicle.
Ms. Goins provided a statement to law enforcement that was “pretty similar to
Mr. Danzy’s [statement].” The information provided by Ms. Goins was different from
Mr. Danzy’s statement in that “[s]he did indicate that Mr. Danzy apparently was a
little bit more involved with . . . egging on [defendant].” When Ms. Goins returned to
the vehicle, she heard defendant say he would shoot Mr. Hayes, and Mr. Danzy
encouraged him to go ahead and do it. She then reported that defendant pulled out
a handgun and started firing, that it shocked everybody in the car, including Mr.
Danzy, and they drove off.
On 28 September 2015, defendant was indicted for one count of first-degree
murder and one count of robbery with a dangerous weapon.1 On 4 October 2017,
defendant pled guilty to second-degree murder and robbery with a dangerous weapon
pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). The trial
court judge entered a consolidated sentence of 192 to 243 months imprisonment.
On 11 April 2022, defendant filed a MAR pursuant to N.C.G.S. § 15A-1415(c),
purporting that Ms. Goins had “recant[ed] her previous testimony and identification
of Defendant as the shooter.” The basis for defendant’s motion was an affidavit signed
by Ms. Goins on 6 January 2022, claiming that her statement made in 2015 to law
1 This robbery charge is unrelated to the present case.
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Opinion of the Court
enforcement identifying defendant as the shooter was incorrect. She now maintains
that the co-defendant, Mr. Danzy, shot and killed Mr. Hayes.
On 22 April 2022, “[u]pon a review of the motion, the court file, the applicable
statutory and case law,” the trial court denied defendant’s MAR without holding an
evidentiary hearing since “the claim alleged involves only legal issues.” The order
contained findings noting, among other things, that “[t]here was no testimony[,] the
case never went to trial[,] [and] defendant chose to plead guilty.” Moreover, the trial
court found there was “no recanted testimony[,]” as “Brenda Goins never gave any
testimony or any statement under oath.” Accordingly, the trial court concluded that
defendant “entered a voluntary plea,” and Ms. Goins’s proffer was not testimony as
anticipated by N.C.G.S. § 15A-1415(c). Defendant entered a notice of appeal with the
trial court on 4 May 2022 and petitioned this Court to issue a writ of certiorari on 21
July 2022.
II. Analysis
In this matter, defendant claims that there are meritorious issues for our
consideration such that we should grant his petition for writ of certiorari. Under N.C.
Gen. Stat. § 15A-1422, “the court’s ruling on a motion for appropriate relief pursuant
to G.S. 15A-1415 is subject to review . . . [i]f the time for appeal has expired and no
appeal is pending, by writ of certiorari.” N.C. Gen. Stat. § 15A-1422(c)(3) (2021). “The
writ of certiorari may be issued in appropriate circumstances by either appellate
court to permit . . . review pursuant to N.C.G.S. § 15A-1422(c)(3) of an order of the
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Opinion of the Court
trial court ruling on a motion for appropriate relief.” N.C. R. App. P. 21. “A petition
for the writ must show merit or that error was probably committed below. Certiorari
is a discretionary writ, to be issued only for good and sufficient cause shown.” State
v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (internal citations omitted).
For the reasons discussed below, defendant’s petition for the writ does not “show
merit or that error was probably committed below.” Id.First, defendant contests the trial court’s determination that “[t]here is no
recanted testimony.” N.C. Gen. Stat. § 15A-1415(c) provides in relevant part that “a
defendant at any time after verdict may by a motion for appropriate relief, raise the
ground that evidence is available which was unknown or unavailable . . . at the time
of trial, which could not with due diligence have been discovered or made available
at that time, including recanted testimony. . . .” N.C. Gen. Stat. § 15A-1415(c) (2021)
(emphasis added). Since we are presented with a question of statutory interpretation,
this inquiry is a question of law, subject to de novo review. State v. Largent, 197 N.C.
App. 614, 617, 677 S.E.2d 514, 517 (2009). Our “primary endeavor . . . in construing
a statute is to give effect to legislative intent. . . . If the statutory language is clear
and unambiguous, the court eschews statutory construction in favor of giving the
words their plain and definite meaning.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d
274, 276–77 (2005) (citations omitted).
As a preliminary matter, we note that our Supreme Court has analyzed the
word verdict in the context of a separate statute involving postconviction DNA
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Opinion of the Court
testing. See State v. Alexander, 380 N.C. 572, 587-89, 606, 869 S.E.2d 215, 227-28,
239 (2022) (Newby, C.J., concurring in the result). In any event, considering the
matter before us, the operative word at issue is testimony—which is defined as
“[e]vidence that a competent witness under oath or affirmation gives at a trial or in
an affidavit or deposition.” Testimony, Black’s Law Dictionary (7th ed. 1999).
Evident from the plain meaning of the text of the statute, as a precondition to prevail
pursuant to defendant’s claims made in his petition, this matter would have required
that a witness previously provided testimony in some form, which was subsequently
recanted. Comparatively, the unsworn statement given to law enforcement—upon
which defendant purports reliance for his guilty plea—does not properly align with
the definition of testimony. Consequently, defendant’s claims contained in his
petition fall outside of the parameters of N.C. Gen. Stat. § 15A-1415(c).
Defendant’s reliance upon State v. Nickerson, 320 N.C. 603, 359 S.E.2d 760(1987), and State v. Britt, 320 N.C. 705, 260 S.E.2d 660 (1987), is misplaced as the
logic of each case involves the subsequent recanting of sworn testimony provided by
a witness during a jury trial. Additionally, defendant and the dissent cite State v.
Howard, 247 N.C. App. 193, 783 S.E.2d 786 (2016), and State v. Brigman, 178 N.C.
App. 78, 632 S.E.2d 498 (2006), as a basis to grant defendant’s petition for writ of
certiorari and vacate the ruling of the trial court. Unlike the present matter, in State
v. Howard, a witness provided an affidavit repudiating a statement that defendant
alleged “rendered his trial testimony false”—after providing sworn testimony at trial.
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Opinion of the Court
247 N.C. App. at 210, 783 S.E.2d at 797. Furthermore, the effort to analogize State
v. Brigman fails for similar reasons—the witness testified at the defendant’s trial.
178 N.C. App. at 83–84, 623 S.E.2d at 502.
The dissent would have us employ the jurisprudence of Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), to resolve the issue before us. In
Crawford, the United States Supreme Court recounted an extensive historical basis,
including the trial of Sir Walter Raleigh, underpinning its analysis specific to the
Sixth Amendment’s Confrontation Clause. 541 U.S. at 43–50, 124 S. Ct. at 1359–63;
U.S. CONST. amend. VI. The Court’s detailed account aimed to highlight that “the
principal evil at which the Confrontation Clause was directed was the civil-law mode
of criminal procedure, and particularly its use of ex parte examinations as evidence
against the accused.” Crawford, 541 U.S. at 50, 124 S. Ct. at 1363.
In stark contrast, here, defendant was confronted with no such evil and could
have availed himself of rights afforded under the Constitution. The record shows that
defendant pled guilty pursuant to North Carolina v. Alford and swore to his
transcript of plea that contained an understanding that his decision forfeited his right
to trial in which he could “confront and cross examine witnesses against” him. Had
defendant’s case proceeded to trial and the same statement was admitted in
furtherance of a conviction, without an opportunity to confront the witness,
Crawford’s analysis and definitional application would be relevant. 541 U.S. at 68–
69, 124 S. Ct. at 1374. Moreover, had defendant’s case proceeded to trial and the
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Opinion of the Court
witnesses testified in conformity with this statement, but later recanted the
testimony that led to a conviction, an evidentiary hearing would be appropriate under
N.C. Gen. Stat. § 15A-1415(c). However, neither of these scenarios occurred here and
defendant was not deprived of his constitutional or statutory rights. Defendant was
provided those rights but elected to forego them in favor of a plea bargain to a lesser-
included offense consolidated with another unrelated felony offense for sentencing.
It would be a leap of logic for this Court to hold that the jurisprudence carefully
crafted to prevent deprivation of the constitutional right to confront witnesses—
fundamental to our system of justice—should be extended to the specific legal issue
presented in this matter. Thus, we decline to conflate the Supreme Court’s logic
applied to Confrontation Clause jurisprudence to the concerns sought to be addressed
by N.C. Gen. Stat. § 15A-1415(c) in determining the meaning of testimony.
Defendant’s final argument, that the trial court erred in failing to hold an
evidentiary hearing, points to the language in N.C. Gen. Stat. § 15A-1420, which
states that “[a]ny party is entitled to a hearing on questions of law or fact arising
from the motion and any supporting or opposing information presented unless the
court determines that the motion is without merit.” N.C. Gen. Stat. § 15A-1420(c)(1)
(2021). However, this subsection of the statute also requires that “[t]he court must
determine, on the basis of these materials and the requirements of this subsection,
whether an evidentiary hearing is required to resolve questions of fact.” Id.
Furthermore, N.C. Gen. Stat. § 15A-1420 requires that “[t]he court must determine
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Opinion of the Court
the motion without an evidentiary hearing when the motion and supporting and
opposing information present only questions of law.” N.C. Gen. Stat. § 15A-
1420(c)(3). As noted in defendant’s cited case, State v. Howard:
An evidentiary hearing is not automatically required
before a trial court grants a defendant’s MAR, but such a
hearing is the general procedure rather than the exception.
Indeed . . . an evidentiary hearing is mandatory unless
summary denial of an MAR is proper, or the motion
presents a pure question of law.
247 N.C. App. at 207, 783 S.E.2d at 796 (emphasis added). Indeed, here, the trial
court was faced with a determination of law rather than an issue of fact. Therefore,
in this matter, the trial court’s summary denial of the MAR was proper.
III. Conclusion
For these reasons, defendant’s petition for a writ of certiorari is denied and
his appeal is dismissed.
DISMISSED.
Judge GORE concurs.
Judge RIGGS dissents by separate opinion.
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STATE V. BROWN
Opinion of the Court
No. COA22-525 – State v. Brown
RIGGS, Judge, dissenting.
Mr. Brown entered an Alford plea to the murder of Mr. Hayes, meaning he
denied guilt but acknowledged “there [was] sufficient evidence to convince the judge
or jury of [his] guilt.” State v. Guinn, 281 N.C. App. 446, 447 n.1, 868 S.E.2d 672, 674
n.1 (2022) (emphasis added) (citations omitted). Among the evidence undergirding
Mr. Brown’s guilty plea were two statements that were the only indicia of his identity
as the murderer: (1) a written statement from Mr. Danzy that Mr. Brown was the
shooter; and (2) a proffer from Ms. Goins corroborating Mr. Danzy’s statement and
confirming, based on her eyewitness account, that Mr. Brown killed Mr. Hayes. Mr.
Brown was not alone in relying on this evidence in making his Alford plea; the State
agreed to the plea and premised its statement of the facts on this evidence at the plea
hearing, and the trial court likewise depended on that evidence2 in “first determining
that there is a factual basis for the plea” before accepting it. N.C. Gen. Stat. § 15A-
1022(c) (2021).
Almost five years later, Ms. Goins—by sworn affidavit—recanted her
2 That Ms. Goins’ proffer was considered evidentiary by the parties and the trial court is
disclosed by his transcript of plea “consent[ing] to the Court hearing a summary of the evidence” and
the proffer’s subsequent inclusion in the State’s recitation thereof.
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STATE V. BROWN
Opinion of the Court
evidentiary statements relied upon by Mr. Brown, the State, and the trial court in
the entry of his Alford plea. Ms. Goins’ affidavit calls into substantial doubt the only
two pieces of evidence establishing Mr. Brown as the shooter to the exclusion of all
others; it both impeaches Mr. Danzy’s testimony and serves as positive evidence that
he, and not Mr. Brown, committed the murder.3 Mr. Brown, justifiably relying on the
statutory scheme designed to afford defendants—even those who plead guilty—with
post-conviction relief, filed an MAR and requested an evidentiary hearing in light of
Ms. Goins’ recanting affidavit. The trial court denied the MAR without an
evidentiary hearing on the basis that Ms. Goins’ “affidavit is not recanted testimony
or newly discovered evidence.”
The majority dismisses Mr. Brown’s appeal at the certiorari stage for lack of
merit, reasoning that relief on the basis of newly discovered evidence is wholly
unavailable to defendants who plead guilty or enter Alford pleas when they are
convicted without receipt of sworn “testimony.”4 Because I believe the majority’s
3 The State’s recitation of the facts at the plea hearing expressly recognized that Ms. Goins’
statement was critical to its murder case and in shoring up Mr. Danzy’s credibility: “[T]hat is the
factual basis for the murder charge. . . . [I]f it had gone to trial, it would have been basically two
against one on that. And so, of course, none of the State’s witnesses would have been, you know,
saints, but then again we’ve got two folks whose proffers are very, very consistent[.]”
4 Notably, “[s]worn testimony” may provide the necessary factual basis for a trial court’s
acceptance of an Alford or guilty plea. N.C. Gen. Stat. § 15A-1022(c)(4) (2021). The majority’s
analysis does not appear to bar an MAR challenging an Alford plea entered on sworn testimony
should the testifying witness later recant those statements. Nor is it legally or logically apparent
why a defendant who entered an Alford plea on sworn testimony may pursue an MAR based on
recanted testimony while Mr. Brown may not; in both instances, the factual basis for the trial court’s
acceptance of the plea would be cast into doubt.
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Opinion of the Court
holding is premised on an inappropriately narrow reading of the relevant statute and
leads to outcomes contrary to the legislature’s intent both as to MARs and the basis
required for entry of Alford and guilty pleas, I would vacate and remand the trial
court’s order for an evidentiary hearing. I respectfully dissent.
I. ANALYSIS
Section 15A-1415(c) of our General Statutes provides that:
Notwithstanding the time limitations herein, a defendant
at any time after verdict may by a motion for appropriate
relief, raise the ground that evidence is available which
was unknown or unavailable to the defendant at the time
of trial, which could not with due diligence have been
discovered or made available at that time, including
recanted testimony, and which has a direct and material
bearing upon . . . the defendant’s guilt or innocence.
N.C. Gen. Stat. § 15A-1415(c) (2021). The majority seizes on the term “testimony” to
hold that where no sworn witness statements appear of record, newly discovered
evidence may not serve as a basis for post-conviction relief by MAR.5 But the
5 To the extent that the word “verdict” bears upon the applicability of the statute, I would
construe it consistent with our Supreme Court’s holding in State v. Alexander, 380 N.C. 572, 587-89,
869 S.E.2d 215, 227-28 (2022), which addressed the availability of post-conviction DNA testing to
defendants who were convicted following Alford or guilty pleas. As discussed in greater detail infra,
doing so is consistent with the remedial purposes of the MAR statutes, cf. id. at 587, 869 S.E.2d at
226-27, and avoids absurd results, cf. State v. Alexander, 271 N.C. App. 77, 80, 843 S.E.2d 294, 296
(2020) (noting that “to read ‘verdict’ in a strict, legal sense [in the post-conviction DNA testing
statute] would lead to an absurd result, clearly not intended by the General Assembly,” in that
defendants who were convicted after a bench trial would not benefit), aff’d, 380 N.C. 572, 869 S.E.2d
215 (2022). Relatedly, construing the statute to require a trial would run afoul of these same
concerns; a defendant who loses at a pretrial motion to suppress hearing based on perjured
testimony and subsequently enters a guilty plea could not have the conviction set aside under that
reading, as the perjured testimony and plea both occurred prior to any trial. This Court has
implicitly rejected such a reading in at least one decision addressing this precise scenario. State v.
Hulse, 214 N.C. App. 194, 714 S.E.2d 531, 2011 WL 3276757, at *2 (2011) (unpublished).
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Opinion of the Court
majority’s narrow reading of “testimony” is not in keeping with the term’s use in the
law, nor is it consistent with the remedial nature of the statute. See Nationwide Mut.
Ins. Co. v. Chantos, 293 N.C. 431, 440, 238 S.E.2d 597, 603 (1977) (“The Court will
not adopt an interpretation which results in injustice when the statute may
reasonably be otherwise consistently construed with the intent of the act.” (citation
omitted)); Burgess v. Joseph Schlitz Brewing Co., 298 N.C. 520, 524, 259 S.E.2d 248,
251 (1979) (“[T]his statute, being remedial, should be construed liberally, in a manner
which assures fulfillment of the beneficial goals, for which it is enacted and which
brings within it all cases fairly falling within its intended scope.” (citations omitted)).
The word “testimony” has a broader definition in the law than the majority
ascribes. For example, in the context of the Confrontation Clause of the Sixth
Amendment and related jurisprudence:
[T]estimonial evidence refers to statements that “were
made under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial.” Testimonial evidence
includes affidavits, depositions, or statements given to
police officers during an interrogation. “‘Testimony,’ in
turn, is typically ‘a solemn declaration or affirmation made
for the purpose of establishing or proving some fact.’”
State v. Ferebee, 177 N.C. App. 785, 788, 630 S.E.2d 460, 462-63 (2006) (emphasis
added) (cleaned up) (quoting Crawford v. Washington, 541 U.S. 36, 51-52, 158 L. Ed.
2d 177, 192-93 (2004)). As such, “testimony” is not strictly understood as an in-court
statement given under oath; instead, “[a]n accuser who makes a formal statement to
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Opinion of the Court
government officers bears testimony . . . . The constitutional text [of the Sixth
Amendment] . . . thus reflects an especially acute concern with a specific type of out-
of-court statement.” Crawford, 541 U.S. at 51, 158 L. Ed. 2d at 192-93 (emphasis
added).6 This broader understanding of the word “testimony,” particularly in the
context of unsworn statements given to law enforcement, is deeply rooted in history:
Statements taken by police officers in the course of
interrogations are also testimonial under even a narrow
standard. Police interrogations bear a striking
resemblance to examinations by justices of the peace in
England. The statements are not sworn testimony, but the
absence of oath was not dispositive.
Id. at 52, 158 L. Ed. 2d at 193. The criminal law of this State makes numerous
references to the clear concept of “unsworn testimony” outside the context of the Sixth
Amendment. See, e.g., State v. Gee, 92 N.C. 756, 762 (1885) (observing that when a
witness testifies at trial without taking an oath, “it is as much the duty of counsel to
see that no unsworn testimony is received against the client . . . .”); State v.
Hendricks, 138 N.C. App. 668, 671, 531 S.E.2d 896, 899 (2000) (holding that a
defendant waived his argument that the trial court impermissibly allowed a victim
to address the trial court during sentencing because “[d]efendant never objected at
the hearing to [the victim’s] unsworn testimony”).7
6 In Davis v. Washington, the Supreme Court quoted this language from Crawford as
“testimony . . . thus defined.” 547 U.S. 813, 824, 165 L. Ed. 2d 224, 238 (2006).
7 This concept of “unsworn testimony” also exists in Sixth Amendment jurisprudence. See
Davis, 547 U.S. at 826, 165 L. Ed. 2d at 239 (noting that the Sixth Amendment would prohibit
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Opinion of the Court
Reading N.C. Gen. Stat. § 15A-1415(c) together with the statutory
requirements of N.C. Gen. Stat. § 15A-1022(c) further leads me to conclude that Mr.
Brown may seek relief by MAR following his tender—and the State and trial court’s
acceptance—of an Alford plea. Under that latter statute, “[t]he judge may not accept
a plea of guilty or no contest without first determining that there is a factual basis
for the plea.” N.C. Gen. Stat. § 15A-1022(c).
While it is true that “[t]he statute does not require the trial judge to elicit
evidence from each, any or all of the [statutorily] enumerated sources . . . [and] may
consider any information properly brought to his attention,” State v. Sinclair, 301
N.C. 193, 198, 270 S.E.2d 418, 421 (1980) (cleaned up), our Supreme Court has also
observed that, “in enumerating these five sources, the statute contemplates that some
substantive material independent of the plea itself appear of record which tends to
show that defendant is, in fact, guilty.” State v. Agnew, 361 N.C. 333, 336, 643 S.E.2d
581, 583 (2007) (emphasis added) (cleaned up). Thus, while a guilty plea absolves the
State of establishing the defendant’s guilt beyond a reasonable doubt, State v. Hart,
287 N.C. 76, 83, 213 S.E.2d 291, 296 (1975), the statute requires the trial court to
accept the plea on an independent factual basis to try and ensure that the pleading
defendant is actually guilty. Agnew, 361 N.C. at 336, 643 S.E.2d at 583. And while
“having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of
having the declarant sign a deposition.”). But as the above North Carolina caselaw demonstrates,
the idea of “unsworn testimony” is not unique to that context.
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Opinion of the Court
the factual summary by the prosecutor may sometimes support this independent
factual basis for the plea, that summary must nonetheless contain information of
evidentiary value. See State v. Robinson, 381 N.C. 207, 219, 872 S.E.2d 28, 37 (2022)
(“Without evidence of a distinct interruption in the assault, the trial court did not
have a sufficient factual basis upon which to sentence defendant to separate and
consecutive assault sentences [pursuant to the guilty plea].” (emphasis added)).
In short, the independent factual basis required by N.C. Gen. Stat. § 15A-
1022(c) serves to satisfy the trial court’s, the State’s, and the wider public’s interest
in convicting the person that actually committed the crime as disclosed by some
evidentiary information indicating the defendant’s guilt. The MAR statute, in turn,
likewise seeks to ensure that only guilty parties are punished by allowing defendants
to challenge their convictions based on newly discovered evidence, “including
recanted testimony, and which has a direct and material bearing upon . . . the
defendant’s guilt or innocence.” N.C. Gen. Stat. § 15A-1415(c). These aligned
purposes, considered in pari materia, lead me to disagree with the majority (and by
extension the trial court) that Mr. Brown is not entitled to an evidentiary hearing by
MAR based upon a sworn affidavit from an eyewitness recanting a testimonial
statement that established the independent factual basis for the plea. Cf. State v.
Brigman, 178 N.C. App. 78, 94-95, 632 S.E.2d 498, 508-09 (2006) (holding an MAR
premised on a witness’s recanted testimony required resolution by evidentiary
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Opinion of the Court
hearing); State v. Howard, 247 N.C. App. 193, 211, 783 S.E.2d 786, 798 (2016)
(vacating and remanding an MAR order under that same rationale).
Of course, none of this is to say that Mr. Brown is truly guilty or innocent, that
Ms. Goins’ recanting affidavit is true or false, or that Mr. Danzy was or was not the
shooter. We are not a fact-finding court, and those are factual questions for resolution
by a finder of fact through the weighing of evidence and determinations of credibility.
But the MAR statute, through N.C. Gen. Stat. § 15A-1415(c), affords Mr. Brown just
such a procedure in the trial court, and I respectfully dissent from my colleagues’
determination to the contrary.
II. CONCLUSION
Consistent with the above, I do not believe that N.C. Gen. Stat. § 15A-1415(c)’s
reference to “testimony,” as a remedial statute with intentions that fairly encompass
Mr. Brown’s circumstance, necessarily precludes him from raising an MAR in this
context. The word is not exclusively subject to the narrow definition provided by the
majority, and in keeping with the clear intent of the General Assembly in enacting
the MAR statute and N.C. Gen. Stat. § 15A-1022(c), I would allow Mr. Brown’s
petition for writ of certioriari, deny the State’s motion to dismiss, and vacate and
remand the trial court’s order with instructions to conduct an evidentiary hearing
concerning Ms. Goins’ recanted testimonial statements.
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