State v. HensleyÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-689
Filed: 20 June 2017
Burke County, Nos. 15 CRS 315–16
STATE OF NORTH CAROLINA
v.
SAMMY LEE HENSLEY, SR.
Appeal from judgment entered 28 October 2015 by Judge Nathaniel J. Poovey
in Burke County Superior Court. Heard in the Court of Appeals 18 April 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly
Randolph, for the State.
Cooley Law Office, by Craig M. Cooley, for defendant-appellant.
BRYANT, Judge.
Where the trial court did not violate Rule 106 or otherwise abuse its discretion
by admitting into evidence a detective’s handwritten notes after defendant opened
the door to this evidence during cross-examination, we find no error.
The State’s evidence tended to show that Danny Stanley purchased a .40-
caliber Glock handgun from defendant Sammy Lee Hensley Sr. in “roughly October
of [20]13.” The transaction occurred in a trailer belonging to defendant’s mother.
Defendant personally handed the gun to Stanley, and Stanley paid defendant
$300.00. During the exchange, defendant assured Stanley that “the gun was clean,
wasn’t stolen.” Later, however, defendant told Stanley that he “ ‘stole [the gun] out
STATE V. HENSLEY
Opinion of the Court
of a car in Louisiana.’ ” Stanley contacted a friend in the Burke County Sheriff’s
Office and “asked him if he would run that gun to see if it was stolen.” The friend
advised him that the gun was stolen and referred the matter to Detective Melanie
Robinson in the Criminal Investigations Division.
On 3 October 2014, Stanley met with Detective Robinson and surrendered the
handgun purchased from defendant. Detective Robinson traced the gun’s serial
number through the National Criminal Information Center database and confirmed
the gun had been reported stolen in Louisiana. Though “very reluctant” to reveal
how he had obtained the weapon, Stanley eventually told Detective Robinson that he
bought it from “Sammy Hensley, Sr.”
Detective Robinson interviewed defendant at the Sheriff’s Office on 17 October
2014 after he was arrested on unrelated charges. During the course of the interview,
defendant acknowledged having “ ‘sold a gun to Sam [Stanley] or his father, Dan.’ He
didn’t remember which one.” Defendant reviewed and signed a written statement
prepared by Detective Robinson on the afternoon of 17 October 2014, stating as
follows:
Back towards the middle of 2013, . . . Danny [Hall] came to
me & he had a couple of guns – a Glock & a .38 [c]aliber
pistol. Danny asked me to help him out & sell the gun cause
he needed money for morphine for his pain. I called up Sam
Stanley & he asked his Daddy. Then I sold the gun to them
for Danny & I didn’t keep any of the money. I don’t
remember what they paid for it. The reason I don’t
remember is it was so long ago. I also didn’t take a cut
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because Danny was my friend & would give me morphine
for my leg when I was out of my meds. . . .
After obtaining defendant’s statement, Detective Robinson contacted Stanley
and asked if he would be willing to give a written statement now that defendant had
admitted selling him the gun. Stanley met Detective Robinson at the Sheriff’s Office
on 23 October 2014 and signed a written statement describing the transaction.
At trial, the State presented two witnesses—Detective Robinson and Danny
Stanley. Detective Robinson’s direct examination was limited mainly to her
investigation of the case, including discussions with Stanley, and the fact that she
talked to defendant, but not the substance of her conversation with defendant. At
that point, the State noted that it had completed its questioning of Detective Robinson
“subject to being . . . allowed to recall her after Mr. Stanley’s testimony to corroborate
his statement, if in fact it [did corroborate his statement], and also to introduce what
the defendant told her . . . .” Defense counsel noted no objection to the State
proceeding in that manner.
Defense counsel then proceeded to conduct an extensive cross-examination of
Detective Robinson, including questions about three pages of handwritten notes she
had taken during her interview with defendant on 17 October 2014:
Q. The bottom of page 1, the last sentence, what’s
written in your notes?
A. (As read) “Denies all involvement with any guns.”
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Opinion of the Court
Q. And this is [defendant’s] statement to you,
correct?
A. This is his statement prior to me questioning him
about this case. I interviewed him on multiple cases that
day.
Q. So but if he denies any involvement with guns,
you didn’t put that in his statement, though, that you
wrote, right?
....
A. It -- No, I did not. It did not have any bearing on
this statement as I was writing it. He, he made -- Whenever
I made this note, everything’s chronological. When I take
my notes, I take them in chronological order. And as you
review them, you will be able to follow and see what case
we were discussing as I was writing it. And I had not yet
began [sic] to question him in reference to this firearm
when he made that comment.
Q. Well, let’s talk about when you started
questioning about this firearm. . . .
Later, on redirect, the State asked Detective Robinson about her reference to
defendant denying “all involvement with any guns” including the gun sold to Stanley:
Q. [Defense counsel] pointed you out to certain
segments of both . . . Stanley’s statement and [defendant’s]
statement.
A. Yes, sir.
Q. At one point he asked you to look at handwritten
notes that you took from . . . defendant. And he wanted you
to specifically read a segment where at the bottom of the
page he said he denied all involvement with any guns.
What was that specific question in ref -- or answer in
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Opinion of the Court
reference to?
A. When he made that statement to me, that was
right after he informed me that he was a convicted felon.
Q. Was it in reference, though, to this gun, this Glock
.40 caliber 20 -- Model 22 or another gun?
A. No, sir. It was not in reference to that. It was -- It
wasn’t in reference to any gun. It was just something that
came up in the conversation when he was basically telling
me some of his criminal past.
. . . When I asked him if he had any guns, he says,
“No, I don’t mess with” -- something along the lines of, “No,
I don’t mess with guns. I don’t have any guns.” He did make
that statement.
And that’s when I wrote, (as read) “Denies all
involvement with any guns.” But this was prior -- We
discussed two other cases before I questioned him about this
firearm. And this was a statement made early on in the
interview.
(Emphasis added).
After Stanley testified, Detective Robinson was recalled to testify and the trial
court admitted, inter alia, three documents into evidence: defendant’s written
statement signed on 17 October 2014, Detective Robinson’s handwritten notes taken
during her interview with defendant that same day, and Stanley’s written statement
signed on 23 October 2014. The documents were then published to the jury by being
read aloud by Detective Robinson.1 Defendant presented no direct evidence at trial.
1 Stanley’s statement was proffered to corroborate his trial testimony.
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Opinion of the Court
During its deliberations, the jury requested and received paper copies of defendant’s
and Stanley’s written statements, but not Detective Robinson’s notes.
The jury found defendant guilty of possession of a firearm by a convicted felon.
Upon his guilty plea to attaining habitual felon status, the trial court sentenced him
to an active term of 100 to 132 months. Defendant filed timely notice of appeal from
the judgment.
_____________________________________________________
On appeal, defendant claims the trial court abused its discretion by admitting
into evidence certain portions of Detective Robinson’s handwritten notes from his
interview on 17 October 2014. Specifically, defendant contends (I) the prosecutor’s
Rule 106 request was not made contemporaneously with defense counsel’s alleged
misleading or incomplete use of the handwritten notes and further, that those notes
were not relevant to the portion already admitted. Defendant also contends (II) the
probative value of the handwritten notes was substantially outweighed by their
undue prejudice, pursuant to Rule 403. We disagree.
I. Rule 106
In challenging the trial court’s decision to admit Detective Robinson’s notes
into evidence, defendant first contends the State’s proffer of the notes failed to satisfy
the contemporaneity requirement of the “rule of completeness” codified in N.C. Gen.
Stat. § 8C-1, Rule 106 (2015):
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Opinion of the Court
When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require him
at that time to introduce any other part or any other
writing or recorded statement which ought in fairness to be
considered contemporaneously with it.
Id. “The purpose of the ‘completeness’ rule codified in Rule 106 is merely to ensure
that a misleading impression created by taking matters out of context is corrected on
the spot, because of ‘the inadequacy of repair work when delayed to a point later in
the trial.’ ” State v. Thompson, 332 N.C. 204, 220, 420 S.E.2d 395, 403–04 (1992)
(quoting United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986)).
“A trial court’s decision in determining whether an excluded portion ought to
be admitted under Rule 106 will not be reversed on appeal in the absence of a showing
of an abuse of discretion.” State v. Hall, 194 N.C. App. 42, 50, 669 S.E.2d 30, 36 (2008)
(citing Thompson, 332 N.C. at 220, 420 S.E.2d at 403). “Abuse of discretion results
where 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.” State v. Hennis, 323 N.C.
279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).
Citing State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001), defendant observes
that the prosecutor did not seek to introduce the full text of the notes at the time
Detective Robinson was cross-examined about her notation, “Denies all involvement
with any guns.” See id. at 96, 552 S.E.2d at 612–13 (addressing the defendant’s Rule
106 argument).
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In Lloyd, the trial court refused to allow the defendant to introduce previously-
excluded portions of his statement to police after “other parts of [his] police statement
had been introduced by the State.” Id. at 96, 552 S.E.2d at 613. Our Supreme Court
rejected the defendant’s claim that the exclusion of the additional portions of his
statement violated Rule 106, explaining that the “defendant’s argument fails, because
he did not seek to introduce the excluded parts of his police statement
contemporaneously as required by statute, but instead sought to introduce them on
rebuttal.” Id. (citation omitted).
The Lloyd Court upheld the trial court’s decision to exclude evidence based on
the contemporaneity requirement of Rule 106. It does not follow that a trial court
would lack the discretion to admit similar evidence under the same circumstances.
See N.C. Gen. Stat. § 15A-1226(b) (2015) (“The judge in his discretion may permit any
party to introduce additional evidence at any time prior to verdict.”); Thompson, 332
N.C. at 220, 420 S.E.2d at 403 (“The standard of review [under Rule 106] is whether
the trial court abused its discretion.” (citation omitted)).
In the instant case, the transcript shows defense counsel objected when the
prosecutor sought to admit the full text of the notes. On voir dire, defense counsel
acknowledged having cross-examined Detective Robinson about the phrase on the
first page of her notes, “Denies all involvement with any guns.” But when the court
asked for “the grounds of [his] objection,” defense counsel replied, “I would object to
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Opinion of the Court
the whole statement being admitted. I would argue that the probative value of those
-- that other information is outweighed by the extreme prejudice that would be caused
to the defendant.” Defense counsel made no specific Rule 106 objection at trial.
“Our Supreme Court ‘has long held that where a theory argued on appeal was
not raised before the trial court, the law does not permit parties to swap horses
between courts in order to get a better mount’ in the appellate courts.” State v.
Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (citations omitted)
(quoting State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5–6 (1996)). Accordingly,
this argument is waived by defendant. See id. at 124, 573 S.E.2d at 686. However,
even if defendant’s Rule 106 argument were properly before us, it would still fail.
Here, the prosecutor observed that it was defense counsel who first asked
Detective Robinson about her notes, “specifically with that one sentence from the
bottom of page 1.” In order to “put it all into context,” the prosecutor argued that “the
whole thing should be introduced.” The trial court addressed defendant’s objection
as follows:
THE COURT: . . . I agree with [the prosecutor], that
you, you opened the door to this, specifically by asking
[Detective Robinson] about something that was not related
to this incident on the bottom of page 1.
Knowing that this was taken in chronological order,
or should have known that this was taken in chronological
order, asking her about the specific statement of your client
“Denies all involvement with any guns,” which was
unrelated completely to this investigation, I think opens
the door to things unrelated to this investigation. You can’t
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Opinion of the Court
ask a question like that, raise the suspicion and the, the
confusion in the minds of the jury, and then step back and
hide behind it.
Defense counsel then argued that there were specific parts of the detective’s notes
which were more prejudicial than probative. But the trial court overruled each of
defense counsel’s objections to certain portions of the detective’s notes being read into
evidence.
After the jury returned to the courtroom, Detective Robinson read aloud the
full first page of her notes:
(As read) “I didn’t go to court, because I didn’t have
money. Ryan Willis bought flatscreen TV from me with
[two] fake hundred dollar bills. Got TV, traded 10 roxies for
it. Went to Kmart and used bill to try to buy Prilosec.
Cashier told me it was fake. I left. M.D.P.S. C. Daniels
came and interviewed me. I told him I got it from Ryan.
“Jacob told Sam Stanley he and Natalie had stolen
some guy Rafe’s gun. Me, Jacob, and Sam hung out
together. Sam’s daddy likes guns. I never saw the gun,
don’t know what kind it was. Heard Rafe’s daddy was
pissed and was going to whip his ass.
“I’m a convicted felon since 1985. I really can’t tell
you nothing. I wished I could, you know. Thirteen days in
Albany, New York, for grand theft auto.[”] Stolen from here.
Caught at restaurant by New York. Boy stole from his
momma back in ‘85. Denies all involvement with any guns.
. . .”
(Emphasis added).
In essence, defendant argues it was error for the trial court to permit the State
to publish to the jury the entirety of Detective Robinson’s handwritten notes non-
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Opinion of the Court
contemporaneously with the portion testified to on cross-examination. Defendant’s
reliance on the contemporaneity requirement of Rule 106 is misplaced, particularly
where, as here, defense counsel opened the door to the detective’s notes during cross-
examination and then objected to the admission of the full statement being read to
the jury, arguing that specific portions of the notes were “more prejudicial than
probative.” It was only after defense counsel “opened the door” by taking a portion of
defendant’s statement out of context so as to be misleading that Detective Robinson’s
notes regarding criminal activity that might otherwise be inadmissible were allowed
by the trial court to correct the misleading impression created by defendant. The
trial court’s actions were entirely consistent with the purposes of Rule 106.
Unlike in Lloyd, a capital murder trial which appeared to span almost a month,
see 354 N.C. at 79–80, 552 S.E.2d at 603, where the Supreme Court rejected
defendant’s Rule 106 argument when he sought to introduce evidence in rebuttal, see
354 N.C. at 96, 552 S.E.2d at 612–13, here, defendant’s trial lasted only two days and
Detective Robinson’s notes were introduced during the State’s direct case. On these
facts, we reject defendant’s claim that the contemporaneity requirement of Rule 106
was violated. See State v. Melvin, No. COA-09-62-2, 2011 WL 2462570, at *3 (N.C.
Ct. App. June 21, 2011) (unpublished) (noting that where the defendant initially
introduced letters at trial to impeach a witness, the State was entitled to submit the
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Opinion of the Court
letters in their entirety pursuant to Rule 106, which the State did on redirect).2 The
trial court did not abuse its discretion. Defendant’s argument is overruled.
II. Rule 403
Defendant next claims the trial court erred in admitting the challenged
portions of Detective Robinson’s notes because they were not relevant to the charge
at issue. See N.C. Gen. Stat. § 8C-1, Rules 401–02 (2015). We hold that defendant
“opened the door” to the first page of Detective Robinson’s interview notes by eliciting
testimony about the notation “Denies all involvement with any guns” during her
cross-examination.
As our Supreme Court has explained,
“[t]he law wisely permits evidence not otherwise
admissible to be offered to explain or rebut evidence
elicited by the defendant himself. Where one party
introduces evidence as to a particular fact or transaction,
the other party is entitled to introduce evidence in
explanation or rebuttal thereof, even though such latter
evidence would be incompetent or irrelevant had it been
offered initially.”
State v. Anthony, 354 N.C. 372, 415, 555 S.E.2d 557, 585–86 (2001) (alteration in
original) (internal citations omitted) (quoting State v. McNeil, 350 N.C. 657, 682, 518
S.E.2d 486, 501 (1999)). The first page of Detective Robinson’s notes, which recounted
2We note with approval the concurring opinion setting forth the possible peril in courts citing
to unpublished opinions. We retain the cite to the above unpublished opinion as an example of the
importance of the role such opinions play as in the instant case, but also the possibility of unintended
consequences that may arise if non-precedential case law “bleeds over” into precedential case law.
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Opinion of the Court
defendant’s self-reported criminal history, was admissible to dispel the favorable
inference created by defendant’s selective introduction of a single phrase found at the
bottom of the page. See State v. Ratliff, 341 N.C. 610, 614–16, 461 S.E.2d 325, 327–
28 (1995). By contextualizing the phrase, “Denies all involvement with any guns,”
the remaining text tended to show that defendant’s seeming denial was unrelated to
his sale of the firearm to Stanley in 2013.
Defendant further claims the trial court’s admission of the challenged evidence
amounted to an abuse of discretion under N.C.G.S. § 8C-1, Rule 403, because “the
probative value of challenged notes was substantially outweighed by their undue
prejudice.” By referring to defendant trading “roxies,” using counterfeit money, and
serving “13 days in Albany N.Y. for grand theft auto” in 1985, he contends the notes
created an “intolerable” risk that the jury based its verdict on impermissible factors
other than the substantive evidence of his guilt. Defendant also suggests the court
failed to undertake “a proper Rule 403 balancing analysis” by weighing the probative
value of the challenged notes against the risk they posed of unfair prejudice. We
disagree.
Rule 403 provides that otherwise relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice . . . .”
N.C.G.S. § 8C-1, Rules 403. “Whether to exclude evidence under Rule 403 is a matter
within the sound discretion of the trial court.” State v. Penley, 318 N.C. 30, 41, 347
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Opinion of the Court
S.E.2d 783, 789 (1986) (citation omitted). “A trial court may be reversed for abuse of
discretion only upon a showing that its ruling was manifestly unsupported by reason
and could not have been the result of a reasoned decision.” Id. (quoting State v.
Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)).
While the evidence defendant argues should have been excluded is certainly
prejudicial, we cannot say that the trial court abused its discretion in admitting the
evidence. And, while we are not conducting a plain error review, we note for the
record that significant evidence exists—from the direct witness testimony of Mr.
Stanley to defendant’s unchallenged admission to selling the gun—such that it is not
likely a different result would have been obtained at trial had the evidence been
excluded.
Further, this Court has held that, “[w]here . . . a party is responsible for
‘opening the door’ with respect to certain evidence, that party may not complain of
unfair prejudice resulting from its admission.” Everhart v. O’Charley’s Inc., 200 N.C.
App. 142, 148, 683 S.E.2d 728, 735 (2009) (citing State v. Wilson, 151 N.C. App. 219,
226, 565 S.E.2d 223, 228 (2002)). But cf. State v. Cotton, 329 N.C. 764, 765–69, 407
S.E.2d 514, 516–18 (1991) (addressing but rejecting defendant’s argument under Rule
403). Having created the impression that he “[d]enie[d] all involvement with any
guns” when questioned about the firearm sold to Stanley, defendant cannot complain
of unfair prejudice when the trial court allowed the State’s evidence that defendant’s
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Opinion of the Court
denial pertained to his criminal history prior to this incident. See Cotton, 329 N.C.
at 769, 407 S.E.2d at 518. We find no abuse of discretion by the trial court.
NO ERROR.
Judge STROUD concurs by separate opinion.
Judge DAVIS concurs in the result only.
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No. COA 16-689 – State v. Hensley
STROUD, Judge, concurring.
I concur in the majority opinion except as to any citation of unpublished cases
of this Court. In briefs filed in this Court, the Rule 30(e) of the Rules of Appellate
Procedure allows citation of unpublished cases only in very limited circumstances.
(e) Unpublished Opinions.
(1) In order to minimize the cost of publication and of
providing storage space for the published reports, the
Court of Appeals is not required to publish an opinion in
every decided case. If the panel that hears the case
determines that the appeal involves no new legal principles
and that an opinion, if published, would have no value as a
precedent, it may direct that no opinion be published.
....
(3) An unpublished decision of the North Carolina Court of
Appeals does not constitute controlling legal authority.
Accordingly, citation of unpublished opinions in briefs,
memoranda, and oral arguments in the trial and appellate
divisions is disfavored, except for the purpose of
establishing claim preclusion, issue preclusion, or the law
of the case. If a party believes, nevertheless, that an
unpublished opinion has precedential value to a material
issue in the case and that there is no published opinion that
would serve as well, the party may cite the unpublished
opinion if that party serves a copy thereof on all other
parties in the case and on the court to which the citation is
offered. This service may be accomplished by including the
copy of the unpublished opinion in an addendum to a brief
or memorandum. A party who cites an unpublished
opinion for the first time at a hearing or oral argument
must attach a copy of the unpublished opinion relied upon
pursuant to the requirements of Rule 28(g). When citing
an unpublished opinion, a party must indicate the opinion’s
unpublished status.
STATE V. HENSLEY
STROUD, J., concurring
N.C. R. App. P. 30(e).
Our Court has discussed the limited circumstances in which citation to
unpublished opinions is appropriate many times. For example, in Long v. Harris,
this Court stressed the importance of compliance with Rule 30(e):
An unpublished opinion establishes no precedent and is not
binding authority[.]
Compliance with the Rules is mandatory and
violation thereof subjects a party to sanctions. See N.C. R.
App. P. 25(b) (Court may “impose a sanction against a
party or attorney or both when the court determines that
such party or attorney or both substantially failed to
comply with” the Rules). Notwithstanding, we have elected
in our discretion pursuant to N.C. R. App. P. 2 to review
defendant’s contentions herein, but without consideration
of the unpublished decision cited in his appellate brief.
Nonetheless, we remind counsel of the explicit provisions
of N.C. R. App. P. 30(e), prohibiting citation of unpublished
opinions and use thereof as precedent.
Long v. Harris, 137 N.C. App. 461, 470-71, 528 S.E.2d 633, 639 (2000) (citations,
quotation marks, and brackets omitted).
More recently, this Court noted:
Citation to unpublished authority is expressly disfavored
by our appellate rules but permitted if a party, in pertinent
part, believes there is no published opinion that would
serve as well as the unpublished opinion. Neither of the
principles propounded by the surety justify citation to the
[unpublished opinion cited by a party in its brief] in this
matter, and we reiterate that citation to unpublished
opinions is intended solely in those instances where the
persuasive value of a case is manifestly superior to any
2
STATE V. HENSLEY
STROUD, J., concurring
published opinion.
State ex rel. Moore Cnty. Bd. of Educ. v. Pelletier, 168 N.C. App. 218, 222, 606 S.E.2d
907, 909 (2005) (citation, quotation marks, and ellipses omitted).
Although the Rules of Appellate Procedure do not address this Court’s own
citation to unpublished opinions, I believe that there are very good reasons for the
Court to follow the same rule which we require parties filing briefs in our Court to
follow. In this particular case, neither party’s brief citied to the unpublished case
cited in the majority opinion, so we need not address it for that reason. I also believe
that citation to an unpublished opinion is not necessary for the majority’s opinion.
Although I admit I have not done any formal analysis of the frequency of
citation of unpublished opinions in opinions of this Court or in appellate briefs, it
appears to me that these citations are increasing in frequency. This is not surprising,
given the large numbers of unpublished opinions. But there are still many excellent
reasons courts generally discourage reliance upon unpublished opinions, which have
been specifically designated as being non-precedential. The panel which issues each
opinion decides when it is written whether the opinion will have precedential value,
and there are many different reasons judges decide not to publish opinions. See
Donna S. Stroud, The Bottom of the Iceberg: Unpublished Opinions, 37 Campbell L.
Rev. 333 (2015). We cannot know the reasons the judges on a particular case decided
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STATE V. HENSLEY
STROUD, J., concurring
to issue an opinion as unpublished, but if we did, those reasons may demonstrate
exactly why we should not rely upon it.
One of my more practical concerns regarding citation to unpublished opinions
in this Court’s opinions is that it will encourage litigants to do more of the same.
Another more serious concern is that the law which is developed in the unpublished,
non-precedential opinions has a tendency to bleed over into other cases and
eventually to end up in precedential opinions, even though it may not be cited as such.
This tendency has been studied in some limited areas of law, but I see no reason to
believe that it cannot happen in any area of law. See e.g., Brian Soucek, Copy-Paste
Precedent, 13 J. App. Prac. & Process 153, 154 (2012). In his article, Soucek describes
how portions of text from unpublished opinions regarding different interpretations of
“social visibility” in asylum cases in the Second Circuit have been copied and pasted
without acknowledgement in later published opinions, leading to error in the court’s
analysis of this issue. Id. at 158-71 (discussing Romero v. Mukasey, 262 F. App’x 328
(2d Cir. 2008) and noting subsequent decisions that cited Romero). We should err on
the side of caution in the development of our jurisprudence by not relying upon or
citing unpublished opinions if it can possibly be avoided.
4