State v. Young

NO. COA13-586
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 09 CRS 19207
JASON LYNN YOUNG
Appeal by Defendant from judgment entered 5 March 2012 by
Judge Donald W. Stephens in Wake County Superior Court. Heard
in the Court of Appeals 12 December 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert C. Montgomery, Assistant Attorney General
Amy Kunstling Irene, and Assistant Attorney General Daniel
P. O’Brien, for the State.
Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender Barbara S. Blackman, for defendant-
appellant.
HUNTER, JR., Robert N., Judge.
Jason Lynn Young (“Defendant”) appeals a jury verdict
finding him guilty of first-degree murder of his wife, Michelle
Fisher Young (“Michelle”). Defendant argues that the trial
court erred by admitting evidence of the entry of a default
judgment in a wrongful death action and a child custody
complaint against Defendant in his subsequent criminal trial.
We agree, vacate the judgment, and remand for a new trial.
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I. Facts & Procedural History
The Wake County Grand Jury indicted Defendant for first-
degree murder on 14 December 2009. Defendant’s case was tried
in Wake County Superior Court on 31 May 2011 with Judge Donald
W. Stephens presiding. On 27 June 2011, a mistrial was declared
when the jury deadlocked eight to four to acquit Defendant.
Defendant’s retrial began at the 17 January 2012 session of
Wake County Superior Court, with Judge Stephens again presiding.
On 5 March 2012, the jury found Defendant guilty of first-degree
murder and sentenced Defendant to life imprisonment without
parole. Notice of appeal was given in open court. The
testimony presented at trial tended to show the following facts.
A. State’s Evidence
Michelle Young was found at her home by her sister,
Meredith Fisher (“Meredith”), around 1:00 p.m. on 3 November
2006. Meredith found Michelle after Defendant called Meredith,
asking her to retrieve some printouts of eBay searches for Coach
purses. Defendant was out of town on a business trip and left a
voicemail for Meredith stating his plan to purchase these purses
as a belated anniversary present. Defendant did not want
Michelle to find out beforehand.
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Meredith complied with Defendant’s requests and entered the
Youngs’ home through the garage door, which was broken, and then
through the unlocked kitchen door to the home’s mudroom.
Meredith noticed her sister’s car was in the garage and that her
keys and purse were visible near the kitchen counter. After
entering, Meredith called out Michelle’s name and heard no
response. Meredith heard the Youngs’ dog, “Mr. G.,” whimpering,
but she did not see him. The house was cold.
As Meredith ascended the home’s stairs, she saw what she
thought was dark red hair dye at the top of the staircase in the
bathroom of the Youngs’ two-and-a-half-year-old daughter, Emily.1
Meredith first thought that Emily had smeared hair dye around
the home and that Michelle would be angry about the mess. When
Meredith reached the top of the stairs and looked to the left,
she saw Michelle lying on the floor, surrounded by a large
amount of blood.
Meredith called 911, and as she did, Meredith said “[Emily]
lifted up the covers and just kind of stared at me and I just
kind of stared back at her and then she just kind of got on me
and clung to me as I called 911.” During the call, Emily
continually asked for band-aids and said that her mother “has
1
The pseudonym “Emily” is used to protect the identity of the
child involved in this case.
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boo-boos everywhere.” The 911 operator asked Meredith if
Michelle had any personal problems, to which Meredith replied
“[u]m not really. You know her and her husband fight a little
bit, but nothing too ridiculous.” Meredith also told the 911
operator that her “niece is very smart for her age” and that she
thought Emily was saying “there was somebody in the house.”
Paramedics and the Wake County Sheriff’s Office responded to
Meredith’s call.
Emily was not injured and appeared “clean” when Meredith
arrived, except for some dried blood on Emily’s toenails and on
the bottom of her pajama pants. Meredith said she did not clean
Emily. Emily was wearing fleece pajamas, was not wearing
underpants or footwear, and did not urinate or defecate on
herself or the bed. Emily clung to Meredith’s hip until they
both were taken away by emergency personnel. Later, Meredith
called her mother Linda Fisher (“Linda”) in New York to tell her
of Michelle’s passing and later told Defendant’s mother Pat
Young (“Pat”) of Michelle’s death.
Sheriff’s officers found Michelle with a large amount of
coagulated, dried blood around her body and with blood
splattering against the walls of her bedroom. Michelle’s body
was discolored, cold, and stiff. She was not wearing shoes and
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was dressed in sweatpants and a zip-up sweatshirt. Blood was
observed on the opposite side of the bed from where Meredith
found Emily. Defendant’s DNA and fingerprints were present in
the bedroom, although none of his fingerprints contained blood.
Michelle was lying face-down just outside of a closet
labeled “his closet.” A child’s doll was near Michelle’s head.
Blood was also found on the exterior of this closet, and inside
of the closet door. The only blood found outside of the second
floor of the Youngs’ home was found on the doorknob leading from
the kitchen to the garage, and its DNA markers were consistent
with Michelle’s DNA. No blood was found in or on Defendant’s
vehicle, his clothes, or in the hotel room where he stayed on 2
November 2006.
The medical examiner who conducted the autopsy, Dr. Thomas
Clark (“Dr. Clark”), opined that Michelle experienced blunt
force trauma to her head and body. The trauma included a broken
jaw, skull fracturing, brain hemorrhaging, lacerations,
abrasions, and dislodged teeth. Dr. Clark stated that there
were likely at least thirty blows delivered to Michelle, and the
medical examiner testified that he thought the blows were
inflicted by “a heavy blunt object” with a rounded surface that
produced crescent-shaped skull fractures. Dr. Clark said the
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autopsy did not produce evidence of a sexual assault against
Michelle. Michelle was approximately twenty weeks pregnant when
she passed away.
Small footprints in blood, consistent with a child’s
footprints, were found around the bedroom and at the top of the
stairwell landing. Investigators testified that blood was
smeared on the walls at a child’s level in Emily’s bathroom.
Investigators said the blood smearing could indicate that Emily
was in her bathroom with the door closed. Investigators did not
find blood in the sink or bathtub of either the master bathroom
or Emily’s bathroom.
Several other pieces of evidence were presented by federal,
state, and county investigators. Michael Smith of the Federal
Bureau of Investigation, Andy Parker of the Wake/Raleigh City
and County Bureau of Investigation (“CCBI”), and Karen Morrow of
the State Bureau of Investigation testified at trial. Smith,
Parker, and Morrow testified that footwear impressions in blood
were made by two distinct shoe types on pillows found near
Michelle. These included impressions that corresponded with
size 12 Hush Puppy Orbital, Sealy, and Belleville shoes which
all had the same outsole design. Smith, Morrow, and Parker also
testified that there were additional impressions made by a
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different shoe type, consistent with a size 10 Air Fit or
Franklin athletic shoe. Karen Morrow and Greg Tart of the State
Bureau of Investigation testified that Defendant at one time
owned size 12 Hush Puppy Orbitals, which were purchased on 4
July 2005. The State never produced shoes matching either of
the impressions. The State also never produced a murder weapon.
A jewelry box in the master bedroom had two drawers
removed, and DNA testing showed four markers that did not
include Defendant or Michelle’s DNA. Meredith testified that
Michelle “didn’t really have a lot of fancy jewelry” except her
wedding and engagement rings, and that she “always wore” her
wedding and engagement rings. Michelle’s wedding and engagement
rings were both missing from her body when she was found and the
rings were not recovered. Additional unidentified fingerprints
were found in the house. Investigators found no signs of forced
entry.
Printouts from eBay concerning purses were found on an
office printer with three fingerprints; one matched Defendant
and two others remain unidentified. Forensic analyst Beth
Whitney of the CCBI (“Ms. Whitney”) also said Internet searches
for purses were made between 7:05 p.m. and 7:23 p.m. on 2
November 2006. Ms. Whitney testified that MapQuest inquiries
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for directions between Raleigh and Clintwood, Virginia, were
also made that evening, as well as e-mail logins to Defendant’s
personal email account. Ms. Whitney also found that, at an
undetermined time, Internet searches were made on the Youngs’
home computer for “anatomy of a knockout,” “head trauma
blackout,” “head blow knockout,” and “head trauma.”
i. Evening of 2 November 2006
Michelle’s sorority sister and close friend, Ms. Shelly
Schaad (“Ms. Schaad”), arrived at the Youngs’ home around 6:30
p.m. on 2 November 2006. Ms. Schaad arrived to have dinner and
to watch Grey’s Anatomy on television with Michelle. Ms. Schaad
said she was surprised Defendant was still home. Ms. Schaad
picked up dinner on the way to the Youngs’ house and invited
Defendant to eat. Defendant said he planned to stop at the
Cracker Barrel in Greensboro to have dinner, drive three hours
to Galax to spend the evening, and then drive two hours the next
morning to a 10:30 meeting. As Defendant left for the evening,
Ms. Schaad asked Defendant if he would return for the N.C. State
football game on 4 November 2006. Defendant said it depended on
whether his father-in-law, Alan Fisher, would come for the
weekend. Defendant expected his father-in-law to visit, and
Defendant had spent the afternoon cleaning the yard in
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anticipation of his arrival. Defendant’s father-in-law called
and cancelled his visit that evening. After he left, Defendant
called the Young residence seven times that evening.
Michelle and Ms. Schaad had dinner, bathed Emily, diapered
her, and dressed her in pajamas. Michelle and Ms. Schaad talked
about an argument between the Youngs over Defendant’s mother-in-
law, Linda, staying at their home for the majority of the time
between Thanksgiving and Christmas. Defendant was upset with
the length of her potential stay.
Ms. Schaad testified that she had an “eerie feeling” that
evening. Ms. Schaad asked Michelle if she was scared to be
alone. Ms. Schaad testified that Michelle
proceeded to say, you know, Jason’s heard a
lot of noises lately around the house, you
know, but her thoughts were, you know, if --
and her exact words to me, if someone’s
going to break in and their intention is to
kill you, then that’s what they’re going to
do, and it was very unsettling.
Ms. Schaad said she felt like the two were being watched and
asked Michelle to walk her to her vehicle before she left that
evening.
ii. Defendant’s Location on 2 and 3 November 2006
Defendant purchased gasoline in Raleigh at approximately
7:30 p.m. on 2 November 2006 and then went to a Cracker Barrel
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restaurant in Greensboro. Defendant called his mother Pat, who
lived in Brevard, while at the Raleigh gas station. Defendant
paid for his meal at the Cracker Barrel at 9:25 p.m. and checked
into a room at the Hampton Inn in Hillsville, Virginia at 10:54
p.m. Data from the keycards used to gain access to the hotel
rooms showed that Defendant entered his room at 10:56 p.m. and
did not use his keycard to re-enter his hotel room for the
remainder of his stay.
Security camera footage tended to show that Defendant wore
a light shirt, jeans, and brown slip-on shoes at the Cracker
Barrel and upon entering the Hampton Inn. Two pairs of brown
slip-on shoes were found in Defendant’s vehicle when police
later seized it on 3 November 2006.
Defendant was also captured on video at the hotel just
before midnight at the front desk and walking down a hallway
that lead to stairs and an exit door, wearing what appeared to
be a darker colored shirt with a light-colored horizontal stripe
across the chest. Defendant was not shown on surveillance
footage for the remainder of the evening.
The night-clerk at the Hampton Inn distributed check-out
receipts and hung copies of the USA Today on door handles
between 3:00 a.m. and 5:00 a.m. or later. Both the receipt for
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Defendant’s stay as well as a weekend edition of the USA Today
were found in Defendant’s Ford Explorer on 3 November 2006, when
police seized it.
Early in the morning on 3 November 2006, Hampton Inn Clerk
Mr. Keith Hicks (“Mr. Hicks”) noticed that the emergency door on
the first floor at the western end of the hotel was propped open
with a small red rock. Mr. Hicks removed the rock and shut the
door. Immediately next to the door was a glass door that could
only be accessed via keycard between 11:00 p.m. and 6:00 a.m. A
sign next to the door listed the hours the door was locked; at
all other times the glass door was unlocked.
When Mr. Hicks returned to the front desk and reviewed the
hotel’s surveillance cameras, he noticed that the camera was
malfunctioning in the same stairwell where the door was left
ajar. Mr. Hicks later determined that the camera was unplugged,
and Mr. Hicks asked a maintenance worker, Elmer Goad (“Mr.
Goad”), to plug the camera in again. Mr. Goad testified that if
someone were six feet tall, they would be able to easily reach
the camera’s plug. The last image from the camera was at
11:19:59 p.m. on 2 November 2006, and no images were recorded
until 5:50 a.m. on 3 November 2006, when Mr. Goad got a
stepladder and plugged the camera in again.
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The camera worked properly from 5:50 a.m. until 6:34 a.m.,
but at 6:35 a.m., the camera was pointed at the ceiling. Mr.
Goad put the camera back in position and focused it on the
bottom of the stairs at 6:38 a.m. The hotel said the camera was
never unplugged previously and that the only other time that
camera was tampered with was several years prior, when some
guests snuck in and out of the exit door. CCBI investigator
Andy Parker performed a fingerprint analysis on the camera and
testified that the State did not find Defendant’s fingerprints
on the security camera. Investigator Eddie McCormick
(“Investigator McCormick”) also testified that tests conducted
by the State did not show that any fibers were transferred from
the Hampton Inn where Defendant stayed on 2 November 2006 to the
Youngs’ home at 5108 Birchleaf Drive.
The hotel had no record of when Defendant left on 3
November 2006. The State’s first evidence showing his location
was from a call he made to his mother Pat around thirty miles
from the hotel near Wythville, Virginia at 7:40 a.m. Defendant
made several calls to his mother and others while driving to
Clintwood, with several lasting ten seconds or less.
Investigator McCormick testified it was possible the large
number of short calls could be from dropped phone calls, but he
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also said that “knowing what I know about telephonic
investigations,” the call frequency reflected a person who was
panicked.
Defendant was thirty minutes late to his 10:00 a.m. sales
call in Clintwood, Virginia. Defendant purchased gas in
Duffield at 12:06 p.m. and then left a voicemail for Meredith.
Detective Richard Spivey of the Wake County Sheriff’s
Office (“Detective Spivey”) testified that his deputy drove
between Raleigh and Hillsville, Virginia in two hours and
twenty-five minutes without traffic. Three gas receipts were
found in Defendant’s vehicle, one from Raleigh on 2 November
2006, Duffield on 3 November 2006, and Burlington at 8:32 p.m.
on 3 November 2006. Officers also canvassed gas stations
between Hillsville and Raleigh. Ms. Gracie Calhoun (“Ms.
Calhoun”), who worked at the Four Brothers BP in King, North
Carolina, said she saw a man drive to a pump and attempt to pump
gas in the early morning hours of 3 November 2006. The State’s
investigators said that the Four Brothers BP was along the most
direct route between Raleigh and Hillsville and was the only gas
station open at that particular exit.
Ms. Calhoun was shown a photograph of Defendant’s white
Ford Explorer on 5 November 2006 and asked if she saw the car on
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3 November 2006. When Ms. Calhoun was shown Defendant’s
photograph, she identified him as the vehicle’s driver. Ms.
Calhoun was not asked to provide a physical description prior to
seeing Defendant’s photo, and stated that the Defendant was
“just a little bit taller than me,” although Ms. Calhoun is five
feet tall and Defendant is six-foot-one. Ms. Calhoun stated
that she had not seen any news reports about the case when she
was asked about the vehicle. Ms. Calhoun said she remembered
Defendant specifically because he cursed at her, and that it
left an impression because only one other person had ever cursed
at her during her tenure at the Four Brothers BP. It is around
a forty to forty-five minute drive from the Hillsville Hampton
Inn to the Four Brothers BP.
Ms. Calhoun testified that Defendant came into the store
and cursed at her because the pumps were not on, threw $20 at
her, pumped $15 of gas and drove off without returning for
change. Store records showed several gas and in-store purchases
between 5:00 a.m. and 5:40 a.m., including a $15 gas purchase at
5:27 a.m. and a $20 gas purchase at 5:36 a.m.
After the first trial concluded, Defendant’s counsel
learned that Ms. Calhoun had received disability benefits since
she was a child. Ms. Calhoun stated that when she was six-
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years-old, she was hit by a truck. This accident caused her
brain to be dislodged from her skull and to fall onto the
street. Doctors reinserted her brain and Ms. Calhoun stated
that she has had memory problems her entire life as a result of
the accident.
The State presented evidence that a newspaper delivery
person passed by the Youngs’ home between 3:30 a.m. and 4 a.m.
and noticed that the interior, exterior, and driveway lights
were on, which she considered unusual at that hour. The
delivery person testified that she saw a light colored SUV in
front of the home and that a minivan was across the street.
After Defendant arrived and learned from his mother of
Michelle’s passing, he spoke with Meredith over the phone.
Meredith told Defendant to come to her home because the Youngs’
home was a crime scene. When speaking to Meredith, he asked
about Emily, what had happened, and seemed upset over the phone.
Officers began to question Meredith and friends of the
Youngs about possible marital problems. After the questioning,
Defendant’s friends Josh Dalton and Ryan Schaad suggested he not
speak to police until he retained counsel. On counsel’s advice,
Defendant never answered any questions from law enforcement or
spoke about Michelle’s death with friends or family.
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Defendant arrived at Meredith’s home along with his mother,
sister, and brother-in-law around 9 or 10 p.m. on 3 November
2006. Defendant hugged Meredith and went to see Emily.
Meredith said Defendant was wearing “dress pants, dress shoes, a
thermal cut crew neck shirt, a couple buttons here, and a dress
shirt over that open.” Police arrived at the home and Defendant
refused to speak with them. Later in the evening, Defendant and
Linda were alone in the home, watching Emily, and Linda said
Defendant told her that his lawyer said he could not talk to
anyone and that he was “going to take a hit on the house.”
iii. Marital Difficulties
The State produced several witnesses who testified that the
Youngs experienced difficulties in their marriage, including
Meredith, Ms. Schaad, and Defendant’s friend Josh Dalton. Ms.
Schaad described the Youngs’ relationship as “volatile.”
Meredith also noted marital problems between Michelle and
Defendant and suggested divorce to Defendant and Michelle.
Meredith said the Youngs “would get in screaming matches.
They’d fight in public.” Meredith testified that on 1 November
2006, Michelle told Meredith that she had fought with Defendant
and that he threw a remote at her. Meredith averred that before
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her death, Michelle became “withdrawn,” “depressed” and
“miserable.”
On 12 September 2006, Defendant sent an e-mail to the work
address of his former fiancée, Genevieve Cargol (“Ms. Cargol”)
professing his love for her. Defendant and Ms. Cargol did not
have contact for several years before this e-mail, which Ms.
Cargol did not receive at the time. Ms. Cargol testified that
Defendant was violent at several points during their
relationship, once punching and breaking Ms. Cargol’s car
windshield, punching a hole in a wall, and forcibly removing the
engagement ring from her finger.
Defendant had extra-marital affairs with two other women
while married to Michelle. Defendant communicated with one of
these women, Michelle Money (“Ms. Money”) regularly and engaged
in sexual intercourse in Orlando, Florida on 7 October 2006.
Defendant’s friend Josh Dalton stated that Defendant said “he
felt like he was in love with” Ms. Money. Defendant and Ms.
Money discussed meeting on 3 through 5 November 2006, although
Ms. Money said Defendant did not want to meet that weekend as he
had a business meeting as well as friends and family staying at
his home. Defendant and Ms. Money also contacted each other
several times by phone on 2–3 November 2006. Ms. Money said
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Defendant sounded normal during the calls and that he also
mentioned having left printouts in his office for a Coach purse
he planned to buy for Michelle. Defendant also had a sexual
relationship with a different woman in the Youngs’ home while
Michelle was out of town on another occasion.
On 27 October 2006, Michelle saw a counselor by herself,
Ms. Kimberly Sargent. Ms. Sargent testified that Michelle
“cried the entire session.” Ms. Sargent said her “assessment of
the situation was that [Michelle] was being verbally abused.”
iv. Emily’s Statements at Daycare
Emily returned to daycare the Monday after Michelle’s
death. The State introduced testimony of Emily’s daycare
teacher, Brooke Bass (“Ms. Bass”). Defendant objected to
admitting this testimony and was overruled.
Ms. Bass testified that Emily kept to herself more than
usual that week. Ms. Bass said Emily asked for a “mommy” doll
and was given a bucket of dolls to play with. Ms. Bass saw
Emily select a female doll with long brown hair that Emily
called the “mommy doll,” and a second female doll with short
hair. Ms. Bass stated that Emily began hitting the two dolls
together. Another daycare teacher, Ashley Palmatier (“Ms.
Palmatier”) asked Emily what she was doing and said Emily hit
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the dolls together and said “mommy’s getting a spanking for
biting.” Emily then laid the doll face-down on a dollhouse bed,
saying “mommy had boo-boos all over, mommy has red stuff all
over.” Emily’s teachers told police what she said at daycare.
Ms. Bass testified that Emily did not return to the daycare
after these statements were made. These statements were not
introduced at Defendant’s first trial.
v. Introduction of Civil Suits
Evidence of two separate civil suits was introduced at
Defendant’s second trial over Defendant’s objection. The State
introduced evidence showing Linda, on behalf of the estate,
filed a wrongful death action and a request for a slayer
declaration against Defendant on 29 October 2008. Defendant did
not respond to the suit, and on 5 December 2008, Judge Stephens
heard Plaintiff Linda’s motion for entry of a default judgment.
Judge Stephens reviewed the affidavits and entered a judgment
that Defendant “unlawfully killed” Michelle. Defendant was the
beneficiary of Michelle’s $4 million life insurance policy, but
did not make a claim on the policy. Defendant’s assets were
seized as a result of the $15 million judgment for Linda.
After Michelle’s death, Defendant took Emily to Brevard,
and the Fisher family was allowed to see Emily at several
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visits. Defendant later did not want the Fishers to have
contact with Emily. Defendant refused to agree to a visitation
schedule, and the Fishers filed suit.
The Fishers filed a child custody complaint against
Defendant on 17 December 2008. The complaint said Defendant
“brutally murdered Michelle Marie Fisher Young . . . at their
residence. Michelle was pregnant with [Defendant’s] son at the
time of her murder. Upon information and belief [Emily] was in
the residence at the time [Defendant] murdered her mother.” The
lawsuit requested a psychological evaluation of Defendant, and
would have required discovery and depositions. Defendant agreed
to a consent order and transferred primary physical custody of
Emily to Meredith. The consent order required that no discovery
or depositions be taken.
vi. Defendant’s Mistrial Testimony
Defendant testified at his first trial, and the State
introduced his testimony at the retrial. Defendant denied
killing his wife, denied being present when she was killed, and
denied having any knowledge of who killed Michelle. Defendant
said that he loved Michelle, that he did not plan to divorce
Michelle, and that he did not plan to leave Michelle for any of
the other women he had sexual relationships with. Defendant
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testified that after Emily was born, Michelle had a miscarriage.
Defendant said he and Michelle began trying to conceive another
child as soon as Michelle received medical clearance to bear
another child. Defendant said he was “ecstatic” that he would
soon have a son.
Defendant testified that he thought he and Michelle didn’t
fight much more than other couples, but that the couple “fought
more openly than other couples.” Defendant said he encouraged
his sister-in-law Meredith to mediate disputes between Michelle
and Defendant. Defendant testified that his disputes with
Michelle never turned physical. Defendant also testified that
he had “a lot of guilt” for spending his anniversary weekend
with Ms. Money, rather than his wife Michelle, and so he planned
to purchase a Coach handbag to “make up for a lot in a big way.”
Defendant called Meredith several times to retrieve the papers
from the family printer because he “really wanted it to be a
surprise.” Defendant thought that the gift had special
significance because it was a leather purse for his and
Michelle’s third anniversary, which is commonly known as the
“leather anniversary.”
Defendant said he had just begun a new job with an
electronic health records company, and a schedule was set for
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him to make a sales call in Clintwood, Virginia. Defendant’s
sales call was at 10:00 a.m. on 3 November 2006, so Defendant
said he planned to “break the trip up” by staying at a hotel
about half-way between Clintwood and Raleigh. Defendant said he
did not make a hotel reservation prior to staying at the Hampton
Inn in Hillsville. After checking into the hotel, Defendant
said he called Michelle and Ms. Money.
Defendant said he was nervous about the sales call, as it
was his first solo sales call. Defendant said he wanted to
review the software on his computer and forgot his charging
cable for his computer in his car. Defendant said he left the
hotel room door slightly ajar so he could re-enter without
disturbing his neighbors. As he left to go to his vehicle,
Defendant said he went out the exit door, noticed it was a type
of door which would not allow re-entry, broke off a piece of
shrubbery to prop the door, retrieved his charger and re-entered
the room.
Defendant said he finished on his computer around 11:53
p.m. and said he wanted to smoke a cigar and catch up on some
sports news. Defendant said he then picked up a newspaper from
the front desk, walked down the hallway, inserted a stick in the
door, went outside and smoked. Defendant said he later re-
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entered and went to sleep. Defendant also said he arrived
thirty minutes late for his appointment the next morning because
he had gotten lost. Defendant said he tried to call his
appointment to let them know he would be late, but that the cell
phone service was “nil to one bar.”
After his sales meeting, Defendant drove south toward
Brevard, arrived at his mother’s house, and his stepfather told
him that Michelle was dead. Defendant said he “just broke” and
cried. Defendant said some friends called and told him he
needed “to get a lawyer before” talking to anyone. Defendant’s
sister left a message for an attorney she previously employed,
and Defendant eventually met with a lawyer, who advised him to
not speak with police.
Defendant also said he purchased a pair of brown Hush Puppy
Orbital shoes, and that they were donated to Goodwill by
Michelle prior to 2 November 2006. Defendant also introduced a
photograph of himself in 2007 at Emily’s third birthday party,
showing Defendant wearing a dark pullover with a stripe on it.
Defendant also said he could not afford a lawyer for a custody
fight between Defendant and Michelle’s family. Defendant also
made internet searches on his home computer for head trauma and
anatomy of a knockout, which he said he made after being the
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“first responder” to a car accident where a person was knocked
out.
The State offered several pieces of evidence to rebut
Defendant’s testimony. The State noted that prior to trial,
Defendant received copies of all the State’s investigative
files, which included field and interview notes. The State’s
analysis of Defendant’s computer activities did not show
Defendant completed work-related activities on his computer that
evening. The State produced testimony from Meredith and other
friends of the Youngs that Defendant did not like smoking and
that he disliked the smell of smoke. The State also introduced
evidence showing that on 2 November 2006 at 11:40 p.m. it was
cold and windy where Defendant said he smoked the cigar.
Detective Spivey testified that no “substantial outerwear”
besides a suit jacket was found in Defendant’s luggage.
The State rested its case on 24 February 2012. Defendant
moved to dismiss the case at that time. The trial court denied
Defendant’s motion, and Defendant began presenting his case on
27 February 2012.
B. Defendant’s Evidence
Defendant’s mother Pat said Defendant called her the
evening of 2 November 2006 and discussed bringing home a wash
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stand and an antique dresser when Defendant’s family visited at
Thanksgiving. Defendant said he would call Michelle to see if
he could spend the evening at their home and pick the furniture
up, as he was nearby in southern Virginia. Pat said Defendant
noted that he would have to leave early on Saturday to get home
for his guests who were attending the N.C. State football game.
Defendant was thirty minutes late to his meeting at
Dickinson Hospital with Jennifer Sproles; he said he was lost
and was not able to call because of poor cell phone service.
Defendant called Pat in the morning on 3 November 2006 to tell
her he would pick up a wash stand at her home in Brevard.
Defendant introduced testimony from an AT&T analyst who said the
large number of short phone calls were consistent with dropped
phone calls. Defendant later called Pat asking her to call
Meredith about the eBay printouts, which Pat did.
Before Defendant arrived at her home on 3 November 2006,
Pat received a call from Linda stating that Michelle was
deceased. Pat decided not to tell Defendant over the phone.
When Defendant arrived at her home, Defendant’s stepfather told
Defendant of Michelle’s death, and Defendant fell to the ground
and began crying.
-26-
Defendant’s sister Heather McCracken (“Heather”) and his
brother-in-law, Joe McCracken (“Joe”), came to the home to see
Defendant, who was pale, crying, and laying with a blanket
draped over himself in a recliner. Joe drove Defendant, Pat,
and Heather in his Ford Explorer to Meredith’s home in Fuquay-
Varina. During the ride, Defendant said he would lose his home
and that there was no way he could afford the home. Defendant’s
luggage remained in his vehicle and Pat said nothing was removed
between his arrival in Brevard and their arrival at Meredith’s
home in Fuquay-Varina.
Pat and Defendant’s family later packed up the Youngs’ home
two months after Michelle’s death and found a cigar humidor that
said “Quick Set” on the exterior. Defendant previously sold
Quick Set locks. A credit card purchase was made on a credit
card in Michelle’s name at a Tampa, Florida store called “Cigars
by Antonio.”
Defendant introduced testimony of a newspaper deliveryman
who drove by the Youngs’ home at 5108 Birchleaf Drive around
3:50 a.m., noticed that nothing seemed unusual, and did not see
a vehicle.
A neighbor, Cynthia Beaver (“Ms. Beaver”), testified that
she passed by the Youngs’ home between 5:20 and 5:30 a.m. and
-27-
saw that the home’s lights and driveway lights were on, and that
there was a light-colored “soccer-mom car” with its lights on
and placed at the edge of the driveway. Ms. Beaver said a white
male was in the driver’s seat and another person was in the
passenger’s seat, who may have been a female. Another neighbor,
Fay Hinsley, said she saw an empty S.U.V. at the edge of the
driveway between 6 and 6:30 a.m.
Unlike the first trial, Defendant did not testify at his
second trial. Defendant rested his case on 29 February 2012.
The jury returned a unanimous verdict finding Defendant guilty
of first-degree murder of Michelle. The trial court then
entered a life without parole sentence as required by law.
II. Jurisdiction
Defendant’s appeal from the superior court’s final judgment
lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A–
27(b), 15A–1444(a) (2013).
III. Analysis
a. Introduction of Civil Judgment and Pleadings
Defendant argues that introduction of a default judgment
and complaint in a wrongful death suit, which stated that
Defendant killed Michelle, is reversible error. We agree.
Defendant also argues that introducing the child custody
-28-
complaint into evidence against Defendant was reversible error.
We agree.2
Introduction of the complaints and default judgment concern
whether the trial court erred by violating N.C. Gen. Stat. § 1-
149 (2013). Introduction of this evidence is reviewed de novo.
State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989)
(holding that a violation of a statutory mandates is reviewable
de novo without objection).
The State argues that State v. Ashe, 314 N.C. 28, 331
S.E.2d 652 (1985) precludes de novo review of these issues
because Defendant cited only Rule 403 of the Rules of Civil
Procedure when objecting to introduction of the default judgment
and complaint. We disagree. Ashe recognizes that “when a trial
court acts contrary to a statutory mandate and a defendant is
prejudiced thereby, the right to appeal the court’s action is
preserved, notwithstanding defendant’s failure to object at
trial.” Id. at 39, 331 S.E.2d at 659. Further, “‘where
evidence is rendered incompetent by statute, it is the duty of
the trial judge to exclude it, and his failure to do so is
reversible error, whether objection is interposed and exception
2
Because we grant Defendant a new trial based on the trial
court’s improper admission of evidence under N.C. Gen. Stat. §
1-149, we do not address Defendant’s motion for appropriate
relief because it is moot.
-29-
noted or not.’” Christensen v. Christensen, 101 N.C. App. 47,
54–55, 398 S.E.2d 634, 638 (1990) (quoting State v. McCall, 289
N.C. 570, 577, 223 S.E.2d 334, 338 (1976)) (emphasis added),
superseded by statute as stated in Offerman v. Offerman, 137
N.C. App. 289, 527 S.E.2d 684 (2000).
Under de novo review, we examine the case with new eyes.
“[D]e novo means fresh or anew; for a second time, and an appeal
de novo is an appeal in which the appellate court uses the trial
court’s record but reviews the evidence and law without
deference to the trial court’s rulings.” Parker v. Glosson, 182
N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks
and citations omitted). “Under a de novo review, the court
considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” Craig v. New Hanover
Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354
(2009) (quotation marks and citation omitted).
The first issue concerning admitting evidence of the
default judgment may also be reviewed as an evidentiary matter
de novo, for an abuse of discretion, and under plain error.
State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986);
State v. Martinez, 212 N.C. App. 661, 664, 711 S.E.2d 787, 789
-30-
(2011); State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d
790, 797 (2011).
“When discretionary rulings are made under a
misapprehension of the law, this may constitute an abuse of
discretion.” Gailey v. Triangle Billiards & Blues Club, Inc.,
179 N.C. App. 848, 851, 635 S.E.2d 482, 484 (2006).
Plain error is explained in State v. Lawrence, 365 N.C 506,
723 S.E.2d 326 (2012):
For error to constitute plain error, a
defendant must demonstrate that a
fundamental error occurred at trial. To show
that an error was fundamental, a defendant
must establish prejudice that, after
examination of the entire record, the error
had a probable impact on the jury’s finding
that the defendant was guilty. Moreover,
because plain error is to be applied
cautiously and only in the exceptional case,
the error will often be one that seriously
affects the fairness, integrity or public
reputation of judicial proceedings.
Id. at 518, 723 S.E.2d at 334 (quotation marks and citations
omitted).
N.C. Gen. Stat. § 1-149 provides that “[n]o pleading can be
used in a criminal prosecution against the party as proof of a
fact admitted or alleged in it.” Id. (emphasis added).3
Further:
3
We note that N.C. Gen. Stat. § 1-149 was not brought to the
-31-
[A] judgment in a civil action is not
admissible in a subsequent criminal
prosecution although exactly the same
questions are in dispute in both cases, for
the reason that the parties are not the
same, and different rules as to the weight
of the evidence prevail.
State v. Dula, 204 N.C. 535, 536, 168 S.E. 836, 836–37 (1933)
(quotation marks and citation omitted).
Dula is a criminal embezzlement case where a civil
complaint showing a contract for the sale of thirteen pianos was
admitted by the defendant’s answer. The defendant alleged in
his answer that he had paid the full price of the pianos
described in the complaint and had settled the contract with
plaintiff’s agent. Dula, 204 N.C. at 535, 168 S.E. at 836. At
the defendant’s criminal trial, evidence from the civil
pleadings was introduced to show that the pianos involved in the
civil dispute were the identical pianos at issue in the criminal
dispute, thus seeking to prove a fact from the pleadings in a
criminal case. Id. at 536, 168 S.E. at 836. The trial court
was reversed for allowing this evidence at the defendant’s
criminal trial. Id. at 537, 168 S.E. at 837. Thus, Dula
provides an example of N.C. Gen. Stat. § 1-149 as applied and
trial court’s attention by the State or Defendant’s counsel. In
our review, we did not uncover mention of N.C. Gen. Stat. § 1-
149 in common references, such as the Trial Judges’ Bench Book.
-32-
illustrates the second portion of the statute, namely that civil
judgments and/or pleadings may not be used to prove a fact
contained therein at a subsequent criminal trial.
In State v. Wilson, 217 N.C. 123, 7 S.E.2d 11 (1940), our
Supreme Court recognized that reading “certain allegations of
fact contained in the complaint in a civil action against [the
defendant]” and asking the defendant “if he had not failed to
deny them by any answer” would infringe upon the statutory
guarantee against using pleadings in “‘a criminal prosecution
against the party as proof of a fact admitted or alleged.’” Id.at 126–27, 7 S.E.2d at 13 (quoting State v. Ray, 206 N.C. 736,
737, 175 S.E. 109, 110 (1934)).
Wilson was also a criminal embezzlement case where a civil
court’s order finding the defendant had “made loans to himself
of his wards’ funds [and] mismanaged the funds belonging to the
estate of his wards.” Id. at 126, 7 S.E.2d at 13. The court
didn’t question “[t]he propriety of the action of Judge Sink in
making the orders referred to,” but did find it was “prejudicial
to the defendant on this trial, charged with a felony, to have
the weighty effect of those statements, opinions and court
orders, relative to the matter then being inquired into, laid
before the impaneled jury.” Id. at 126, 7 S.E.2d at 12. The
-33-
Supreme Court said it would be proper to cross-examine the
defendant at length about his transactions as administrator of
the estate for impeachment purposes, “but it would not have been
competent for the State to offer affirmative evidence of these
collateral matters” unless they were so connected with the
indicted charge as to illuminate the question of “fraudulent
intent or to rebut special defenses.” Id. at 127, 7 S.E.2d at
13.
The State cites several cases where civil pleadings and
judgments were admitted in a subsequent criminal trial. State
v. Rowell, 244 N.C. 280, 93 S.E.2d 201 (1956); State v.
Phillips, 227 N.C. 277, 41 S.E.2d 766 (1947); State v. McNair,
226 N.C. 462, 38 S.E.2d 514 (1946); State v. Fred D. Wilson, 57
N.C. App. 444, 291 S.E.2d 830, disc. rev. denied, 306 N.C. 563,
294 S.E.2d 375 (1982). None of these cases involve default
judgments against a defendant, wrongful death judgments against
a defendant, or non-testifying defendants. Additionally, these
cases involve admitting pleadings and/or judgments in a civil
case at a subsequent criminal trial for a different purpose than
as proof of a fact alleged in the criminal trial.
In Rowell, the defendant was charged criminally for
involuntary manslaughter, as he caused his passenger’s death
-34-
after colliding with a large truck operated by Mr. Wiley Goins.
244 N.C. at 280, 93 S.E.2d at 201. The decedent’s estate filed
a wrongful death action against Mr. Goins, which was pending at
the time of the defendant’s trial. Id. Mr. Goins testified on
behalf of the State, and on cross-examination, the defendant’s
counsel asked Mr. Goins whether he was facing a wrongful death
suit from the decedent’s estate. Id. The trial court refused
to allow Mr. Goins to be cross-examined on the pending lawsuit.
Id. The Supreme Court reversed the defendant’s conviction,
holding that cross-examination of the pending civil action would
show the bias of the witness and that the witness had an
interest in the outcome of the criminal prosecution of
defendant. Id.In Phillips, the defendant’s relationship with his wife
deteriorated when his first wife discovered that he had entered
into a bigamous marriage with another woman from Raleigh
(“second wife”). 227 N.C. at 278–79, 41 S.E.2d at 767. The
defendant was charged with murdering his first wife. Id. The
second wife testified and the Court held that her testimony “was
a proper link in the chain of circumstances tending to show
motive.” Id. at 279, 41 S.E.2d at 766. A complaint filed by
the second wife to annul the bigamous marriage was also
-35-
introduced, but the Court held that the complaint was only used
to corroborate the testimony of the second wife and that the
error was harmless. Id. Thus, the complaint showing a bigamous
contract of marriage was not used to show “proof of a fact
alleged” by the second wife, but was only used for corroborative
purposes. Id.In McNair, the defendant was prosecuted for larceny of an
automobile. 226 N.C. at 462, 38 S.E.2d at 515. The defendant
had filed a civil complaint concerning the ownership of a
vehicle and then testified at his criminal trial in a contrary
manner from his complaint. Id. at 463–64, 38 S.E.2d at 516.
The State explicitly announced that they were introducing the
complaint to impeach the defendant’s contrary testimony at
trial. Id. Thus, the court said “no impingement upon the
statute was intended or resulted from the cross-examination.”
Id. at 464, 28 S.E.2d at 516.
In Fred D. Wilson, the defendant was prosecuted for
obtaining property via false pretenses in a real-estate scheme,
and the State presented several outstanding civil judgments
against the defendant. 57 N.C. App. at 449–50, 291 S.E.2d at
833. This Court distinguished the case from Dula, saying that
in Dula “pleadings and a civil judgment entered against
-36-
defendant were erroneously admitted to prove the same facts
necessary to obtain a criminal conviction against the
defendant.” Id. at 450, 291 S.E.2d at 834. This Court held
that rather than attempting to prove the truth of the facts
underlying the civil judgment, the State was attempting to show
the defendant’s financial motive for committing his crimes in
Fred D. Wilson, as he had defaulted on several judgments due to
insufficient funds. Id.This Court addresses a different set of facts than Fred D.
Wilson, McNair, Phillips, and Rowell. Before the re-trial,
Defendant’s counsel learned that the State planned to introduce
evidence about the civil actions against Defendant. Defendant’s
counsel did not research whether this evidence was admissible,
nor did counsel move prior to trial to exclude the evidence on
any ground. Rather, Defendant’s counsel requested discovery of
the civil attorney’s files. The State replied that it planned
to produce all public records in the civil case, have a witness
explain the documents, and cross-examine Defendant if he
testified. The trial court held that the evidence could be
inquired into at trial, if relevant.
During the trial, Wake County Clerk Lorrin Freeman (“Ms.
Freeman”) testified that on 29 October 2008, Linda filed a
-37-
wrongful death lawsuit against Defendant on behalf of the
estate. Ms. Freeman introduced Linda’s request for Defendant’s
disqualification under the slayer statute. Ms. Freeman
explained that a wrongful death action is a monetary claim for
relief filed against a party who is alleged to have directly
caused a decedent’s death. The prosecutor requested Ms. Freeman
to read the sixth paragraph of the complaint aloud in court in
front of the empaneled jury, which said “[i]n the early morning
hours of November 3rd, 2006 Jason Young brutally murdered
Michelle Young.”
Ms. Freeman testified that the file showed no attorney on
Defendant’s behalf, and she also stated that Defendant did not
respond to the suit. Ms. Freeman explained that by failing to
answer, Defendant’s action had “the legal implication or the
legal result of the defendant having admitted the allegations as
set forth in the complaint.” Ms. Freeman entered a default on 2
December 2008 and thereafter, Linda moved for a default judgment
and slayer declaration.
Judge Stephens heard the motion on 5 December 2008. Ms.
Freeman testified, over Defendant’s objection, that Judge
Stephens reviewed the evidence and attachments to the motion and
entered a judgment declaring that Defendant killed Michelle.
-38-
Ms. Freeman also testified that Defendant could have presented
evidence in the civil action, and Defendant levied a Rule 403
objection.
In sum, Ms. Freeman read aloud a civil judgment that
declared Defendant had killed his wife. Ms. Freeman read aloud
that Judge Stephens, the presiding judge in Defendant’s criminal
trial, entered judgment against Defendant after reviewing the
evidence. Ms. Freeman read aloud that Defendant did not respond
to the complaint and informed the jury that his action was
legally operative as an admission under a civil standard.
Additionally, the trial court admitted a “Child Custody
Complaint Motion for Psychological Evaluation” into evidence
without any restrictions which also included statements that
Defendant had killed his wife Michelle.
The State did not offer an explicit purpose at trial for
offering evidence of the default judgment nor did the State
offer a purpose for admitting the child custody complaint. The
State now articulates an impeachment purpose on appeal,
asserting that the civil pleadings and judgment were used to
show Defendant’s unusual reaction to civil suits and to show
Defendant’s silence in not responding to the lawsuits cast doubt
on his subsequent testimony at his first trial. The State also
-39-
argues the purpose of introducing the evidence contained in the
civil filings was to “show that [Defendant] had great incentives
to answer the civil matters and explain the evidence.” This
stated purpose demonstrates the State’s intention of introducing
these civil pleadings and judgments: to show proof of
Defendant’s guilt, in violation of N.C. Gen. Stat. § 1-149.
Further, the State’s argument that the civil suits were
used to cast doubt on Defendant’s 22 June 2011 testimony
concerns testimony that the State actually introduced at the
second trial. This purpose was not stated at trial, and the
impeachment value of introducing these civil suits remains
unclear, as Defendant did not file a custody complaint, nor did
he testify at the second trial. Essentially, the State is
requesting to impeach evidence it offered.
Secondly, the State cannot articulate a corroborative
purpose for this evidence. These civil complaints would only be
useful in corroborating the opinions of guilt made by Michelle’s
mother, Linda Fisher. Linda’s opinions are themselves
inadmissible, leaving no proper corroborative purpose. State v.
Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986). No res
judicata effect was applicable. Dula, 204 N.C. at 536, 168 S.E.
at 837.
-40-
The jury instructions did not explicitly prohibit the jury
from using the default judgment or the child custody complaint
filed against Defendant as proof of Defendant’s guilt in the
criminal case. The trial court ruled that the civil matters
“might be relevant to any number of matters that the jury has
already heard and will hear.” However, the transcript shows the
trial court did not articulate a clear basis for admitting
either item or the limited purposes for which the jury could use
these judgments:
If a civil complaint is filed by plaintiff
and the parties in a civil action are
designated plaintiff, the person bringing
the complaint, and the defendant, the person
or entity being sued, if a civil complaint
is filed by a plaintiff with the clerk of
Superior Court, Lorrin Freeman and her
office, and if a civil summons is issued by
an officer of the court commanding the
defendant named in the complaint to respond
and otherwise answer to the allegations of
the complaint within the time required by
law and if the defendant named in the
complaint is properly served with this
complaint and this summons and if the
defendant is an adult and is not otherwise
incapacitated or in the military and if the
defendant fails to file an answer to that
civil complaint or otherwise respond to the
allegations within the time required by law
and if the plaintiff filing the complaint
moves that the court to enter judgment in
the plaintiff’s favor by reason of that
failure to respond or answer, then under the
rules of civil law in civil cases and under
the rules of the court a judgment can be
-41-
entered in favor of the plaintiff bringing
the lawsuit. Both failure for the defendant
named to respond or otherwise answer the
allegations, for purposes of the civil case
that’s been filed the allegations of the
complaint under those circumstances, whether
actually true or not, which have not been
denied by the named defendant are deemed in
the civil law to have been admitted for the
purpose of allowing the plaintiff to have
judgment entered in the plaintiff’s favor.
The entry of a civil judgment is not a
determination of guilt by any court that the
named defendant has committed any criminal
offense.
. . . .
I further instruct you there is evidence
that tends to show that a civil complaint
was filed in the Civil Superior Court of
Wake County against the defendant by Linda
Fisher on behalf of the Estate of Michelle
Young and that a civil summons was issued by
the clerk of the court commanding the
defendant to answer or otherwise respond to
the allegations of that civil complaint
within the time required by law. There is
further evidence that tends to show that the
defendant was timely served with these
documents and that he did not file an answer
or otherwise respond to the complaint and
that a default judgment was entered against
him by reason of that failure.
As I previously instructed you, when a
defendant in a civil action has been
properly served with the civil summons and
the civil complaint and fails to timely
respond, upon motion of the plaintiff the
Court is authorized to enter a civil
judgment against the defaulting defendant.
For purpose of the civil law, the
allegations of the complaint which have not
-42-
been denied, whether actually true or not,
are deemed to be admitted for the purpose of
allowing the plaintiff to have a civil
judgment entered against the defendant. The
burden of proof in a civil case requires
only that the plaintiff satisfy the Court or
the jury by the greater weight of the
evidence that the plaintiff’s claims are
valid. This means that the plaintiff must
prove that the facts are more likely than
not to exist in the plaintiff’s favor. When
there is a default, that burden of proof is
deemed in law to be met.
The entry of a civil default judgment is not
a determination of guilt by the Court that
the named defendant has committed any
criminal offense.
Still further, the State does not point to an instance where a
trial court has attempted to gain admission of a default
judgment and a slayer determination in a homicide prosecution.
Defendant points our attention to In re J.S.B., 183 N.C. App.
192, 202, 644 S.E.2d 580, 586, writ denied, review denied, 361
N.C. 693, 652 S.E.2d 645 (2007), as an example where this Court
held that a voluntary manslaughter finding from a termination of
parental rights proceeding could not be used if the State
commenced a subsequent criminal prosecution against that
defendant.
Admitting the wrongful death judgment, the complaint in
that case, and the complaint in the child custody case were also
abuses of discretion. “When the intrinsic nature of the
-43-
evidence itself is such that its probative value is always
necessarily outweighed by the danger of unfair prejudice, the
evidence becomes inadmissible under [Rule 403] as a matter of
law.” State v. Scott, 331 N.C. 39, 43, 413 S.E.2d 787, 789
(1992). Defendant’s presumption of innocence was irreparably
diminished by the admission of these civil actions. This is
similar to the prejudice that a jury has when it learns a
defendant is previously convicted of a charged offense. State
v. Lewis, 365 N.C. 488, 498, 724 S.E.2d 492, 499 (2012).
Criminal judgments are clearly admissible in slayer actions.
Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 57, 213
S.E.2d 563, 569 (1975). However, as Defendant states, the
converse is typically not true because admitting such evidence
creates great prejudice against the Defendant’s innocence and
increases the chance that an unreliable guilty verdict may be
rendered. Even greater still is the prejudice to Defendant when
a juror is told that the presiding judge in the case reviewed
the evidence before the jury and entered a default judgment
against a defendant. The danger of unfair prejudice vastly
outweighed the probative value in this case and admission of the
evidence was abuse of discretion in Defendant’s trial. It is
also an abuse of discretion to make a ruling under a
-44-
misapprehension of the law as occurred here, where the trial
court conducted no inquiry concerning N.C. Gen. Stat. § 1-149.
Because the trial court disregarded a statute, we hold the
trial court erred in admitting evidence of both the entry of
default judgment against Defendant and the child custody
complaint against Defendant, and because entry of both items was
prejudicial to Defendant, we hold that Defendant must receive a
new trial. Because we hold that the trial court violated § 1-
149 in admitting these civil matters, we do not address
Defendant’s arguments concerning judicial opinions or
Defendant’s argument that insufficient evidence existed to deny
a motion to dismiss. We continue to address the admissibility
of Emily’s statements and evidence of Defendant’s silence. We
address these issues because they are likely to recur at
Defendant’s re-trial.
b. Admission of Emily’s Statements at Daycare
Defendant argues that statements made by Emily to daycare
workers that were admitted via the workers’ testimony were
hearsay outside the scope of any exception and/or overwhelmingly
prejudicial. Defendant objected to this evidence at trial.
This issue is an evidentiary issue that is reviewed de novo.
“When the admissibility of evidence by the trial court is
-45-
preserved for review by an objection, we review the trial
court’s decision de novo.” Martinez, 212 N.C. App. at 664, 711
S.E.2d at 789. “When preserved by an objection, a trial court’s
decision with regard to the admission of evidence alleged to be
hearsay is reviewed de novo.” Johnson, 209 N.C. App. at 692,
706 S.E.2d at 797.
The State argues that Defendant did not preserve this issue
for appellate review. We disagree. After the prosecution
advised the court outside the jury’s presence that it would put
forth two witnesses that would relate Emily’s statements at
daycare, the following dialogue occurred between Defendant’s
counsel and the trial court:
THE COURT: Okay. I know you’ve objected to
the testimony of the witness. We heard Ms.
Palmatier Friday afternoon. I take it you
object to this line of testimony and
evidence in its entirety.
[DEFENSE COUNSEL]: We would, your Honor, on
grounds previously stated.
THE COURT: As I understand, your position is
that the statement of the child is hearsay
and not otherwise admissible, as well as
it’s not a foundation to show that the
capacity of the child to fully understand
and appreciate and relate her observations
due to her age and that her conduct is also
ambiguous.
[DEFENSE COUNSEL]: That is correct, your
Honor, as well as confrontation/cross-
-46-
examination grounds and due process and 403.
THE COURT: And as I understand it, you
object to any testimony with regard to the
child herself because you contend the
testimony with regard to the child is not
relevant to any issue in these proceedings.
[DEFENSE COUNSEL]: That is correct.
THE COURT: I mean, the learning and her
schooling and observations about the folks
at school and things like that.
[DEFENSE COUNSEL]: That is correct, your
Honor.
THE COURT: All right. Well, I do believe it
is relevant and I have overruled your
previous objections and your objections are
preserved for the record and the objection
goes to the testimony of every witness on
this subject as I understand it.
This portion of the trial transcript demonstrates the trial
court’s granting of a line or continuing objection pursuant to
N.C. Gen. Stat. § 15A-1446(d)(10) (2013); State v. Crawford, 344
N.C. 65, 76, 472 S.E.2d 920, 927 (1996). While Defendant’s
counsel objected to a question on redirect asking the first
daycare worker to compare the size of the dolls to Defendant and
Michelle, this was a properly lodged objection as it exceeded
the scope of the granted line objection, although the objection
was sustained. Defendant’s second objection when the second
daycare worker took the stand and began to relate hearsay
-47-
statements was a simple reaffirmation of the originally granted
line objection. Therefore de novo review of this issue is
appropriate.
The State presented the testimony of Emily’s daycare
worker, Ms. Palmatier. Ms. Palmatier testified during voir dire
that on 9 November 2006 she told a Wake County detective that
Emily hit two female dolls together with a dollhouse chair and
said, “[M]ommy’s getting a spanking for biting. . . . [M]ommy
has boo-boos all over.” Ms. Palmatier then testified that,
after a nap, Emily said “[Mommy] fell on the floor. Now she’s
on the bed with animals, animals were in the barn, they were
asleep. There was a cow. Daddy bought me new fruit snacks.”
The State argued that this was evidence Emily saw the murder,
and that it was probative of Defendant’s identity as she was
later found unharmed.
Defendant’s counsel objected to this evidence, citing
hearsay, due process, lack of competency, relevance, and undue
prejudice. The trial court ruled that (1) the statements met
the present sense impression, excited utterance, and residual
hearsay exceptions; (2) the evidence was relevant to determine
the killer’s identity; and (3) the evidence was more probative
than prejudicial.
-48-
The court sua sponte excluded Emily’s post-nap statements
and granted the defense a continuing objection to Emily’s
testimony. The trial court instructed the jury that evidence
was being introduced of Emily’s observations, made when she “may
have had some memory” of Michelle’s death. The trial court
instructed the jury that it could use Emily’s statements to
determine whether Emily witnessed a portion of the assault on
Michelle.
Emily’s daycare teacher then testified that on 9 November
2006, Emily asked her for “the mommy doll.” The teacher gave
Emily a bucket of dolls. Emily picked two dolls, one female
with long hair and one with short hair, and hit them together.
Ms. Palmatier testified that she saw Emily strike a “mommy doll”
against another doll and a dollhouse chair while saying,
“[M]ommy has boo-boos all over” and “[M]ommy’s getting a
spanking for biting. . . . [M]ommy has boo-boos all over, mommy
has red stuff all over.”
Defendant first argues that the evidence was not relevant.
Relevant evidence is evidence that has “any tendency to make the
existence of any fact that is of consequence to the
determination more probable or less probable than it would be
without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401. “A
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trial court’s rulings on relevancy are technically not
discretionary, though we accord them great deference on appeal.”
State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (2011). We
agree with the State that the evidence clearly related to the
identity of Michelle’s assailant. The evidence was probative
that Emily observed her mother’s assault, and that the assailant
cared for Emily in some way, as he or she left Emily unharmed
after the assault.
Secondly, Defendant argues that the statements made at
daycare were inadmissible hearsay and do not fit within any
hearsay exception. We hold the statements are hearsay, but that
they fit within the excited utterance exception pursuant to this
Court’s decisions in State v. Rogers, 109 N.C. App. 491, 501,
428 S.E.2d 220, 226, cert. denied, 334 N.C. 625, 435 S.E.2d 348(1993), cert. denied, 511 U.S. 1008 (1994), and State v. Thomas,
119 N.C. App. 708, 712–14, 460 S.E.2d 349, 352–53, disc. review
denied, 342 N.C. 196, 463 S.E.2d 248 (1995).
Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801(c). A “statement” is an oral or written
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assertion or “nonverbal conduct of a person . . . intended by
him as an assertion.” N.C. Gen. Stat. § 8C-1, Rule 801(a).
Emily’s statements consisted of striking the “mommy” doll
while saying, “[M]ommy’s getting a spanking for biting” and
“[M]ommy has boo-boos all over, mommy has red stuff all over.”
The trial court found that these were statements made by Emily,
and that they were offered for the truth of the matter asserted.
We agree, and note that the trial court also found that these
phrases spoken by Emily were to describe past events via the
words and actions of a two and a half year old child. The age
of Emily at the time of the statements likely meant she could
express herself in a limited way as to her observations. Fact-
finders may find that an alternate meaning exists when
considering the words of young children who lack the verbal
clarity often present in adults. See, e.g., State v. Smith, 315
N.C. 76, 80, 337 S.E.2d 833, 837 (1985) (considering statements
of a young child that used figurative language to describe a sex
act).
However, if a statement is hearsay, it may still be
admitted if it falls within one of the exceptions to the hearsay
rule. The primary exception at issue in this case is the
excited utterance exception. N.C. Gen. Stat. § 8C-1, Rule
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803(2). For the excited utterance exception to apply, “there
must be (1) a sufficiently startling experience suspending
reflective thought and (2) a spontaneous reaction, not one
resulting from reflection or fabrication.” Smith, 315 N.C. at
86, 337 S.E.2d at 841. “The rationale underlying the
admissibility of an excited utterance is its inherent
trustworthiness.” State v. Guice, 141 N.C. App. 177, 200, 541
S.E.2d 474, 489 (2000), opinion adhered to as modified on
reconsideration, 151 N.C. App. 293, 564 S.E.2d 925 (2002).
Excited utterances are often made and admitted into
evidence because they fall within a timeframe that is close in
proximity to the startling event. See, e.g., id. at 201, 541
S.E.2d at 489 (finding a statement made to an officer within
“several minutes” of the defendant dragging the victim from the
home and while struggling to breathe fell within the requisite
time frame). However, this Court has held that “the stress and
spontaneity upon which the exception is based [are] often
present for longer periods of time in young children than in
adults.” Rogers, 109 N.C. App. at 501, 428 S.E.2d at 226(quotation marks and citation omitted); see also Smith, 315 N.C.
at 87–88, 337 S.E.2d at 841 (“This ascertainment of prolonged
stress is born of three observations. First, a child is apt to
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repress the incident. Second, it is often unlikely that a child
will report this kind of incident to anyone but the mother.
Third, the characteristics of young children work to produce
declarations ‘free of conscious fabrication’ for a longer period
after the incident than with adults.” (citation and quotation
marks omitted)).
Our State’s appellate courts have thus extended the length
of time that the excited utterance exception may apply. See
Smith, 315 N.C. at 79, 86–90, 337 S.E.2d at 836, 841–43 (four
and five-year-olds’ statements made two to three days after
being sexually abused were admissible); Thomas, 119 N.C. App. at
712–14, 460 S.E.2d at 352–53 (five-year-old’s statements made
four to five days after sexual abuse were admissible); Rogers,
109 N.C. App. at 501, 428 S.E.2d at 226 (five-year-old’s
statements made three days after sexual abuse admissible).
Thus, the outer time limit at present is four to five days
from the event a child has made statements about. Emily was
also younger than the other children discussed above in prior
cases this Court has considered. Emily’s statements were made
six days after her mother was killed and were made while she
played with dolls, without prompting or questioning from adults.
We hold that the attendant circumstances in this case merit
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application of the excited utterance exception and that the
trial court did not err in admitting Emily’s statements.
Because we hold Emily’s statements were admitted properly under
the excited utterance exception to the hearsay rule, we do not
address whether the present sense impression or residual
exception apply to this case.
c. Defendant’s Silence as Substantive Evidence
The trial court offered the following jury instructions as
they relate to Defendant’s refusal to speak with police and his
family members:
Ladies and gentlemen, the Fifth Amendment to
the United States Constitution protects a
citizen’s right to refuse to answer
questions of the police during a criminal
investigation. The exercise of that
Constitutional right may not be used as
evidence against that citizen later at trial
to create an inference of guilt. Therefore,
the defendant’s decision not to answer
questions by law enforcement officers during
the criminal investigation may not be
considered against him as evidence of guilt
to the pending charge. However, that same
Fifth Amendment does permit the jury to
consider the defendant’s refusal to answer
police questions to the extent that the
evidence surrounding that refusal bears upon
the defendant’s truthfulness if the
defendant elects to testify or made a
statement at a later time. The evidence
presented in this case tends to show that
the defendant elected to testify at a prior
trial.
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Therefore, I instruct you that you may
consider evidence of the defendant’s refusal
to answer police questions during this
investigation for one purpose only. If, in
considering the nature of that evidence, you
believe that such evidence bears upon the
defendant’s truthfulness as a witness at his
prior trial, then you may consider it for
that purpose only. Except as it relates to
the defendant’s truthfulness, you may not
consider the defendant’s refusal to answer
police questions as evidence of guilt in
this case.
I also instruct you that this Fifth
Amendment protection applies only to police
questioning. It does not apply to questions
asked by civilians, including friends and
family of the defendant and friends and
family of the victim.
Defendant argues that the trial court committed plain error
by instructing the jury that it could consider Defendant’s
failure to speak with friends and family as substantive evidence
of guilt. We disagree and find that the instruction was proper.
The Fifth Amendment’s protection against self-incrimination
does not extend to questions asked by civilians. Oregon v.
Elstad, 470 U.S. 298, 304-05 (1985) (“The Fifth Amendment, of
course, is not concerned with nontestimonial evidence. Nor is
it concerned with moral and psychological pressures to confess
emanating from sources other than official coercion.” (citations
and quotation marks omitted) (emphasis added)).
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Defendant argues that Defendant’s silence in response to
questions from non-officers should be offered for impeachment
purposes only. Defendant cites State v. Mack, 282 N.C. 334,
339–40, 193 S.E.2d 71, 75–76 (1972), and State v. Hunt, 72 N.C.
App. 59, 61, 323 S.E.2d 490, 492 (1984), aff’d without
precedential value, 313 N.C. 593, 330 S.E.2d 205 (1985), for the
proposition that pre-arrest silence may only be used to impeach
a defendant’s pre-trial statement or trial testimony. Mack held
that “[p]rior statements of a witness which are inconsistent
with his present testimony are not admissible as substantive
evidence because of their hearsay nature.” 282 N.C. at 339, 193
S.E.2d at 75; see also State v. Black, ___ N.C. App. ___, ___,
735 S.E.2d 195, 202 (2012) (citing Mack, 282 N.C. at 339–40, 193
S.E.2d at 75)), appeal dismissed, review denied, ___ N.C. ___,
738 S.E.2d 391 (2013). However, Mack concerned the substantive
use of silence within the context of a testifying non-party
witness making statements to a police officer. 282 N.C. at 339,
193 S.E.2d at 75. Hunt was affirmed without precedential value
by the North Carolina Supreme Court, 313 N.C. at 593, 330 S.E.2d
at 205, but also involved silence with respect to police
questioning. 72 N.C. App. at 61–62, 323 S.E.2d at 492.
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Defendant’s friends and family asked him about Michelle’s
murder on several occasions and Defendant did not offer
statements to his friends and family about the evening’s events.
The State contends that Defendant’s later version of events
offered at his first trial were inconsistent with his earlier
silence and that the discrepancy “tend[s] to reflect the mental
processes of a person possessed of a guilty conscience seeking
to divert suspicion and to exculpate [himself].” State v.
Redfern, 246 N.C. 293, 298, 98 S.E.2d 322, 326 (1957) (holding
that conflicting statements amount to “substantive evidence of
substantial probative force, tending to show consciousness of
guilt”). Defendant’s silence to non-officers may provide
substantive evidence of guilt because statements or silence to
questioning from non-police officers are not granted the same
protections under the Fifth Amendment and are probative of
Defendant’s mental processes. Thus, the evidence was proper for
substantive consideration by the jury.
Defendant also argues that the trial court committed plain
error in offering its jury instruction. Defendant argues that
the trial court should have instructed the jury that the
evidence did not create a presumption of guilt, was insufficient
alone to establish guilt, and that the evidence could not be
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considered as to premeditation and deliberation. State v.
Myers, 309 N.C. 78, 88, 305 S.E.2d 506, 512 (1983). Defendant
argues that a new trial was required because the case was
“entirely circumstantial.” Id.In Myers, the defendant objected to the instruction, the
witnesses relied upon by the State had severe credibility
issues, and the trial court placed an “emphasis upon the
negative aspect of defendant’s statements.” Id. Here, there
was minimal mention by the State that Defendant was silent to
his friends and family. We hold that Defendant’s pre-arrest
silence coupled with evidence that whoever killed Michelle did
so with premeditation and deliberation and the limited referral
to Defendant’s silence about the murder to friends and family
did not rise to the level of plain error having a probable
impact on the verdict. See Lawrence, 365 N.C. at 518, 723
S.E.2d at 334.
IV. Conclusion
The introduction into evidence of the civil complaints and
judgment was in error and violated N.C. Gen. Stat. § 1-149, as
the evidence was used to prove a fact — namely, that Defendant
had killed Michelle — Defendant is deemed to have admitted in
the wrongful death civil action and which had been alleged in
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the child custody proceeding. This evidence also severely
impacted Defendant’s ability to receive a fair trial. As such,
we order a
NEW TRIAL.
Judges STROUD and DILLON concur.