State v. TaylorÂ

NO. COA14-490
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2014
STATE OF NORTH CAROLINA
New Hanover County
v.
Nos. 10 CRS 61706, 62183
BO ANDERSON TAYLOR
Appeal by defendant from judgments entered 16 September
2011 by Judge Charles H. Henry in New Hanover County Superior
Court. Heard in the Court of Appeals 8 October 2014.
Attorney General Roy Cooper, by Associate Attorney General
Melody Hairston, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Nicholas C. Woomer-Deters, for Defendant.
ERVIN, Judge.
Defendant Bo Anderson Taylor appeals from judgments entered
based upon his convictions for misdemeanor larceny, felonious
breaking or entering a trailer, and five counts of obtaining
property by false pretenses. On appeal, Defendant contends that
the trial court erred by allowing the admission of evidence
affirming the truthfulness of the alleged victim and by allowing
the State to elicit extensive testimony that Defendant had
exercised his right to remain silent as part of its case in
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chief. After careful consideration of Defendant’s challenges to
the trial court’s judgments in light of the record and the
applicable law, we conclude that Defendant is entitled to a new
trial.
I. Factual Background
A. Substantive Facts
1. State’s Evidence
In October 2010, Defendant and his girlfriend, Gail
Lacroix, were living with Defendant’s sister, Crystal Medina.
In view of the fact that Ms. Lacroix was Defendant and Ms.
Medina’s step-mother, no one in the family was happy about the
relationship between Defendant and Ms. Lacroix.
Because she did not have any room in her house to
accommodate Defendant and Ms. Lacroix, Ms. Medina allowed them
to stay in a shop located in her backyard. At the time that
Defendant and Ms. Lacroix moved in, the Medinas were planning to
separate and Ms. Medina’s husband was in jail.
The Medinas had formerly owned and operated a residential
and commercial concrete business and had purchased several tools
for use in the business, including two lasers that had been
purchased for $1,495 each. The tools in question were stored in
locked trailers located in Ms. Medina’s backyard. Defendant had
access to the keys to these trailers. As part of the divorce
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settlement, Ms. Medina planned to let her husband keep the tools
while she would keep the house. In view of the fact that she
“didn’t trust [her husband’s] family,” Ms. Medina had
photographed all of the tools and recorded their serial numbers.
On 2 October 2010, Defendant pawned a hammer drill at
Picasso Pawn for $50. On 4 October 2010, Defendant pawned two
generators at Pawn USA for $300. Defendant returned to Picasso
Pawn on 13 October 2010 and pawned an air compressor for $35.
On 6 November 2010, Defendant pawned two lasers at National Pawn
for $200. On each of these occasions, Defendant signed a
statement indicating that he owned the items that were being
pawned.
In November 2010, Ms. Medina found a pawnshop ticket on the
floor of her truck indicating that Defendant had pawned the
lasers. Upon making this discovery, Ms. Medina called Defendant
to ask about the ticket. However, Defendant hung up on her.
Although Ms. Medina subsequently confronted Defendant at her
home, he denied knowing anything about the ticket. At that
point, Ms. Medina left to go to an appointment. Upon her
return, Defendant and Ms. Lacroix had packed up their belongings
and left. After Defendant and Ms. Lacroix departed, Ms. Medina
discovered another pawnshop ticket in the shop in which
Defendant and Ms. Lacroix had been staying.
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Ms. Medina did not immediately call the police because she
did not want Defendant to get in trouble. Instead, Ms. Medina
just wanted to recover the tools. After having failed to get
Defendant, who knew that he did not have permission to pawn the
tools, to return the items in question, Ms. Medina contacted the
New Hanover County Sheriff’s office and reported that Defendant
had stolen two lasers, three generators, an air compressor, and
a hammer drill from the trailers in her backyard.
The investigation into the allegations that Ms. Medina had
made against Defendant was conducted by Detective Angie Tindall
of the New Hanover County Sheriff’s Department. Although
Detective Tindall left messages for Defendant with numerous
family members, she never reached him. As part of her
investigation, Detective Tindall checked into the validity of
Ms. Medina’s claims after being told by a family member that
Defendant had been asked to pawn the items for Ms. Medina
because Ms. Medina had stolen $500 from her employer. However,
Detective Tindall was unable to find any support for this
accusation. As a result of the fact that Ms. Medina was in a
position to provide the serial numbers for the items that had
been pawned, Detective Tindall was able to locate the missing
tools and obtain the return of most of the missing property to
Ms. Medina. In spite of her recognition that this matter was
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replete with family drama, Detective Tindall proceeded with the
investigation because Ms. Medina “seemed to be telling [her] the
truth.”
2. Defendant’s Evidence
Defendant traveled to South Carolina in order to turn
himself in on unrelated criminal charges on 1 October 2010. Ms.
Medina wired $200 to Defendant in order to enable him to post
bond. However, Ms. Medina told Defendant that she needed him to
repay the money that she had loaned him for the purpose of
making bond promptly because she had taken $500 from the safe at
Friendly Check Cashing, where she was employed, in order to
secure Defendant’s release and to pay for a party that she
planned to host. More specifically, Ms. Medina told Defendant
that she needed to replace all of the money that she had taken
from the safe before an audit that was going to be conducted on
the following Monday. As part of the repayment process, Ms.
Medina gave Defendant two broken generators and told him that he
could have them if he could get them running.
On 2 October 2010, Defendant, with Ms. Medina’s permission,
pawned a drill that he had received from Ms. Medina, gave half
of the money that he received as a result of this transaction to
Ms. Medina, and used the other half to purchase gas which he
used to drive to Leland as part of an attempt to get the broken
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generators running. Ms. Medina’s fiancé, Juan, helped Defendant
load the generators into a truck since they were too heavy for
Defendant to lift on his own.
At some point, Defendant was able to pawn the two
generators for $300 and handed the proceeds to Ms. Medina
outside Friendly Check Cashing. After the transfer had been
completed, Defendant and Ms. Medina entered Friendly Check
Cashing, where Ms. Medina put the cash in a rolled up newspaper,
slipped the newspaper to Defendant from behind the glass, and
told Defendant to give the cash to her manager, who was working
beside her. Upon receiving these instructions, Defendant took
$250 from the newspaper and gave it to the manager, who took the
cash and then swiped her ATM card for the apparent purpose of
replacing the remaining $250 that Ms. Medina had taken from the
store’s safe.
On 6 November 2011, Defendant pawned two lasers that he
had received from Ms. Medina at National Pawn for $200 and took
the proceeds directly to Picasso Pawn for the purpose of making
a payment relating to certain items of jewelry that Ms. Medina
had pawned there. While at Picasso Pawn, Defendant pawned an
air compressor that Ms. Medina had thrown away for $35.
Defendant left the pawn ticket for the lasers in Ms. Medina’s
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truck, along with the receipt for the payment that he had made
to assist in the process of redeeming her jewelry.
Defendant denied having stolen anything from Ms. Medina,
asserted that Ms. Medina was aware that he was pawning the
tools, and testified that “she was basically hand in hand with
everything I did.” Similarly, Ms. Lacroix testified that she
knew that Defendant was pawning certain items, that Defendant
and Ms. Medina had discussed the transactions in which Defendant
had engaged and the manner in which the resulting proceeds would
be used, and that she and Defendant had moved away from Ms.
Medina’s property because they were fighting about the pawn
tickets and Defendant’s relationship with Ms. Lacroix.
According to Defendant, the members of his family
frequently called the police about each other’s activities.
Although Ms. Medina denied that she was referring to Defendant,
Defendant pointed out that Ms. Medina had written a Facebook
message calling upon people to “Bring That White Trash Down” by
helping her get “dirt” on Defendant, who was known by the
nickname of “White Trash.”
B. Procedural History
On 7 November 2010, a warrant for arrest was issued
charging Defendant with obtaining property by false pretenses.
On 18 November 2010, a warrant for arrest was issued charging
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Defendant with felonious larceny and two additional counts of
obtaining property by false pretenses. On 21 February 2011, the
New Hanover County grand jury returned bills of indictment
charging Defendant with felonious larceny, felonious breaking or
entering into a trailer, and five counts of obtaining property
by false pretenses. The charges against Defendant came on for
trial before the trial court and a jury at the 12 September 2011
criminal session of New Hanover County Superior Court. On 15
September 2011, the jury returned verdicts finding Defendant
guilty of misdemeanor larceny, felonious breaking or entering a
trailer, and five counts of obtaining property by false
pretenses. At the conclusion of the ensuing sentencing hearing,
the trial court entered judgments sentencing Defendant to a term
of 8 to 10 months imprisonment based upon his consolidated
convictions for misdemeanor larceny and felonious breaking or
entering a trailer and to two consecutive terms of 11 to 14
months imprisonment based upon his consolidated convictions for
obtaining property by false pretenses. On 15 October 2013,
Defendant filed a petition seeking the issuance of a writ of
certiorari by this Court. This Court granted Defendant’s
certiorari petition on 31 October 2013.
II. Substantive Legal Analysis
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In his initial challenge to the trial court’s judgments,
Defendant contends that the trial court committed plain error by
permitting Detective Tindall to testify that she moved forward
with her investigation into the allegations that Ms. Medina had
made against Defendant because she believed that Ms. Medina was
telling her the truth. More specifically, Defendant contends
that the challenged testimony constituted an impermissible
vouching for Ms. Medina’s credibility in a case in which the
only contested issue was the relative credibility of Ms. Medina
and Defendant. Defendant’s argument has merit.
A. Standard of Review
As he candidly concedes in his brief, Defendant did not
object to the admission of the challenged portion of Detective
Tindall’s testimony at trial. For that reason, our evaluation
of the validity of Defendant’s contention is limited to
determining whether the admission of the challenged portion of
Detective Tindall’s testimony constituted plain error. A plain
error is an error that is “so fundamental that it undermines the
fairness of the trial, or [has] a probable impact on the guilty
verdict.” State v. Floyd, 148 N.C. App. 290, 295, 558 S.E.2d
237, 240 (2002). In order to obtain relief on plain error
grounds, “[D]efendant must convince this Court not only that
there was error, but that absent the error, the jury probably
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would have reached a different result.” State v. Jordan, 333
N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
B. Relevant Legal Principles
“It is fundamental to a fair trial that the credibility of
the witnesses be determined by the jury.” State v. Hannon, 118
N.C. App. 448, 451, 455 S.E.2d 494, 496 (1995) (citing State v.
Holloway, 82 N.C. App. 586, 587, 347 S.E.2d 72, 73-74 (1986)).
“The jury is the lie detector in the courtroom and is the only
proper entity to perform the ultimate function of every trial—
determination of the truth.” State v. Kim, 318 N.C. 614, 621,
350 S.E.2d 347, 351 (1986). For that reason, it is well
established that “a witness may not vouch for the credibility of
a victim,” State v. Giddens, 199 N.C. App. 115, 121, 681 S.E.2d
504, 508 (2009), aff’d, 363 N.C. 826, 689 S.E.2d 858-59 (2010),
with this rule being applicable regardless of whether the
improper vouching for the credibility of another witness occurs
during the testimony of an expert, State v. Dixon, 150 N.C. App.
46, 52, 563 S.E.2d 594, 598 (2002) (stating that “[e]xpert
opinion testimony is not admissible to establish the credibility
of the victim as a witness”), aff’d 356 N.C. 428, 571 S.E.2d 584(2002), or a lay witness. State v. Freeland, 316 N.C. 13, 16-
17, 340 S.E.2d 35, 36-37 (1986) (holding that the trial court
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erred by allowing the alleged victim’s mother to testify that
her daughter tells the truth).
C. Plain Error Analysis
In the course of Detective Tindall’s testimony on direct
examination, the State and Detective Tindall engaged in the
following colloquy:
[Prosecutor]: At any point did you ever
question this case, this has a lot of family
drama?
[Det. Tindall]: Yes
[Prosecutor]: What made you go forward?
[Det. Tindall]: [Ms. Medina] seemed to be
telling me the truth, she gave me all the
information possible that she had and we are
required to investigate everything to the
fullest.
By testifying that Ms. Medina seemed to be telling her the
truth, Detective Tindall vouched for Ms. Medina’s credibility,1 a
result that is clearly forbidden by basic principles of North
Carolina evidence law. Giddens, 199 N.C. App. at 121, 681
S.E.2d at 508. As a result of the fact that testimony of the
type given by Detective Tindall is clearly inadmissible, the
1
Although our dissenting colleague argues that Detective
Tindall’s testimony did not vouch for the credibility of a
witness, the record reflects that Ms. Medina testified at trial
and that Detective Tindall’s explanation for her decision to
continue the investigation stemmed from her belief that Ms.
Medina was telling the truth. Under that set of circumstances,
we have no hesitation in concluding that Detective Tindall
vouched for Ms. Medina’s credibility.
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only remaining question for our consideration is whether the
jury would have probably reached a different outcome had it not
been allowed to hear the challenged portion of Detective
Tindall’s testimony.
The importance of Ms. Medina’s testimony to the State’s
case against Defendant should be apparent from even a cursory
examination of the record. Simply put, the State’s case hinged
almost entirely on Ms. Medina’s credibility. As a result of the
fact that Defendant freely admitted that he had pawned the tools
that Ms. Medina accused him of converting to his own use, the
extent to which the jury convicted or acquitted Defendant
necessarily depended on whether the jury believed Defendant’s
claim to have been authorized to pawn the tools in question by
Ms. Medina or whether the jury believed the State’s assertion
that Defendant took the tools from the storage trailers and
pawned them without obtaining Ms. Medina’s permission.
The only evidence presented at trial to the effect that
Defendant lacked permission to pawn the Medinas’ tools consisted
of Ms. Medina’s testimony to that effect, which Defendant
directly disputed when he took the witness stand. As a result
of the fact that law enforcement officers have the
responsibility of conducting a fair investigation before
initiating criminal charges against anyone, the jury “most
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likely gave [Detective Tindall’s] opinion more weight than a lay
opinion.” Giddens, 199 N.C. App. at 122, 681 S.E.2d at 508. As
a result, given the importance that the jury probably gave to
Detective Tindall’s assessment of the relative credibility of
the positions taken by Ms. Medina and Defendant and the fact
that the outcome in this case depended largely on Ms. Medina’s
credibility, we have no hesitation in holding that the admission
of the challenged portion of Detective Tindall’s testimony
constituted plain error. Hannon, 118 N.C. App. 448, 451, 455
S.E.2d 494, 496 (stating that “the admission of such an opinion
is plain error when the State’s case depends largely on the
prosecuting witness’s credibility”); see also Giddens, 199 N.C.
App. at 122, 681 S.E.2d at 508 (holding that the trial court
committed plain error by allowing the admission of non-expert
testimony that the Department of Social Services had
substantiated a claim of sexual abuse given that the only
evidence to that effect in the record was the children’s
testimony and their prior consistent statements).
In attempting to persuade us to reach a different result,
the State relies upon our decision in State v. O’Hanlan, 153
N.C. App. 546, 570 S.E.2d 751 (2002), cert. denied, 358 N.C.
158, 593 S.E.2d 397-98 (2004), in which a law enforcement
officer testified that he had refrained from conducting a more
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thorough investigation of the available physical evidence in a
sexual assault case because the victim of the sexual assault was
able to positively identify her assailant. In upholding the
defendant’s conviction, we rejected the defendant’s argument
that the officer had impermissibly vouched for the witness’
credibility, holding that, instead of expressing an opinion that
the victim had, in fact, been assaulted, the officer had merely
explained why he did not request more thorough testing of the
physical evidence during the course of his investigation and
stated that the officer’s testimony was “helpful to the fact-
finder in presenting a clear understanding of his investigative
process.” O’Hanlan, 153 N.C. App. at 563, 570 S.E.2d at 762.
Although the State asserts that the challenged portion of
Detective Tindall’s testimony was admissible on the basis of the
same logic that we deemed persuasive in O’Hanlan, we do not
believe that O’Hanlan is controlling here given that, in
O’Hanlan, the defendant specifically challenged the officer’s
failure to conduct additional testing of the physical evidence
on cross-examination while Defendant never questioned Detective
Tindall’s decision to proceed to have charges taken out against
Defendant.2 In view of the fact that Defendant did not directly
2
Similarly, in an attempt to suggest that Detective
Tindall’s testimony was admissible, our dissenting colleague
relies upon our decision in State v. Westall, 116 N.C. App. 534,
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challenge Detective Tindall’s decision to proceed against him,
there was no need for the State to explain why she did so.3 As a
result, O’Hanlan provides no basis for a decision in the State’s
favor.4
III. Conclusion
546-47, 449 S.E.2d 24, 31-32 (1994), in which we held that the
trial court did not err by admitting the testimony of an
investigating officer to the effect that he had not taken notes
during the interview of a particular witness because he believed
that the witness was lying given that the officer had been
questioned on cross-examination about his failure to take notes
during his interview of the witness. We do not believe that
Westall is relevant to this case given that Detective Tindall
made the statement that is discussed in the text on direct
examination and had never been subject to cross-examination
concerning the reason that she decided to pursue the
investigation.
3
Admittedly, Defendant questioned Ms. Medina on cross-
examination in such a manner as to challenge her credibility.
Although the State argues that Defendant’s decision to question
Ms. Medina in this manner authorized the admission of the
challenged portion of Detective Tindall’s testimony pursuant to
N.C. Gen. Stat. § 8C-1, Rule 608(a) (providing that “[t]he
credibility of a witness may be attacked by evidence . . . in
the form of reputation or opinion as provided in [N.C. Gen.
Stat. § 8C-1,] Rule 405(a),” subject to the limitation that “(1)
such evidence may refer only to character for truthfulness or
untruthfulness” and that “(2) evidence of truthful character is
admissible only after the character of the witness has been
attacked by opinion or reputation evidence or otherwise”), we do
not find this argument persuasive given that Detective Tindall’s
testimony was not focused on Ms. Medina’s “character for
truthfulness or untruthfulness” and given that Ms. Medina’s
character, as compared to her credibility, had not been
attacked.
4
As a result of our determination that Defendant is entitled
to a new trial for the reason discussed in the text, we need not
address Defendant’s remaining challenge to the trial court’s
judgments.
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Thus, for the reasons set forth above, we conclude that the
trial court committed plain error by permitting Detective
Tindall to improperly vouch for Ms. Medina’s credibility. As a
result, Defendant is entitled to a new trial.
NEW TRIAL.
Judges ELMORE concurs.
Judge BRYANT dissents in separate opinion.
NO. COA14-490
NORTH CAROLINA COURT OF APPEALS
Filed: 16 December 2014
STATE OF NORTH CAROLINA
New Hanover County
v.
Nos. 10 CRS 61706, 62183
BO ANDERSON TAYLOR
BRYANT, Judge, dissenting.
The majority remands for a new trial based on their
determination that the trial court committed plain error in
allowing Detective Tindall’s testimony that “[Ms. Medina] seemed
to be telling me the truth[.]” Because I do not believe the
admission of that testimony meets the threshold needed for plain
error, I respectfully dissent.
As acknowledged in the majority opinion, “[i]t is
fundamental to a fair trial that the credibility of the
witnesses be determined by the jury.” Hannon, 118 N.C. App. at
451, 455 S.E.2d at 496 (citation omitted). And, I would hold
that in this case, the jury’s ability to make such a credibility
determination about Ms. Medina—a woman thirty-one years old and
mother of four—who testified before them, was unimpeded.
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Detective Tindall testified that she investigated the
claims made by Ms. Medina, and the detective was aware of the
“family drama” surrounding defendant and Ms. Medina.
A family member advised me that [defendant]
was asked to pawn the items for [Ms.
Medina], that [Ms. Medina] had stolen Five
Hundred Dollars from her employer. I
investigated that and learned that there was
no evidence of this occurring so, therefore,
[Ms. Medina] was never charged and I had no
evidence.
When asked what made her move forward, Detective Tindall
testified, “[Ms. Medina] seemed to be telling me the truth, she
gave me all the information possible that she had and we are
required to investigate everything to the fullest.” Detective
Tindall expressed a lay opinion in response to a proper question
regarding why she moved forward with her investigation and
charges.5 Furthermore, Detective Tindall provided the basis for
her opinion: “she gave me all the information possible that she
had . . . .” See State v. Westall, 116 N.C. App. 534, 546—47,
449 S.E.2d 24, 31—32 (1994) (holding no error where the
detective expressed his lay opinion that the defendant was not
5
N.C. Gen. Stat. § 8C-1, Rule 701 (2013) (“If the witness is
not testifying as an expert, [her] testimony in the form of
opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of
the witness and (b) helpful to a clear understanding of his
testimony or the determination of a fact in issue.”).
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being truthful during an interview as a basis for the
detective’s failure to take any notes during the interview).
For error to rise to the level that it requires a new
trial, when no objection was made at trial and the alleged error
is brought forth for the first time on appeal, such error must
be
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done, or where the
error is grave error which amounts to a
denial of a fundamental right of the
accused, or the error has resulted in a
miscarriage of justice or in the denial to
appellant of a fair trial . . . .
Lawrence, 365 N.C. at 516—17, 723 S.E.2d at 333 (citation
omitted). We apply the plain error rule cautiously and only in
exceptional cases where the defendant can show extreme
prejudice. Such is not the case on this record. Defendant
challenges the detective’s response to a question regarding the
investigation. The response was not one in which the detective
was vouching for the credibility of a trial witness. Such a
response cannot be deemed a fundamental error resulting in the
denial of a fair trial to defendant. Therefore, because
defendant cannot meet his burden and show plain error, defendant
is not entitled to a new trial. Accordingly, I would overrule
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defendant’s argument, acknowledge the verdict of the jury, and
affirm the judgment of the trial court.