Episode 15: Fenner, Capps, and Ervin

[00:00:05.870] [UNKNOWN] Thank you.
[00:00:11.253] [SPEAKER_01] A defendant may be permitted to proceed in the trial of his case without the assistance of counsel only after the trial judge makes a thorough inquiry and advises the defendant of, among other things, the range of permissible punishments. The North Carolina Supreme Court has now held that if the trial court miscalculates the range of permissible punishments, but both the miscalculation and the actual range are tantamount to the remainder of the defendant's life, the trial court has complied with the statute. We'll be discussing that case state v. Fenner today. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of District Attorneys. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina.
[00:00:57.186] [SPEAKER_00] Joe, I think there have been a few Court of Appeals cases that have addressed this issue, but I believe this is the first Supreme Court case that we've had about a trial court's mistake in the range of punishments. Tell us about State v. Fenner. State v. Fenner.
[00:01:09.495] [SPEAKER_01] Yeah, this is a case from the North Carolina Supreme Court that construed the provisions of General Statute 15A This is a case out of Wake County. Both the North Carolina Supreme Court opinion and the Court of Appeals opinion don't have a lot of facts, but it looks like the facts are pretty grisly here. In 2021, defendant kidnapped, assaulted, and raped his own mother. That conduct resulted in a number of charges, and these appear in the Court of Appeals opinion. Two counts of first-degree forcible rape, one count of attempted forcible rape, three counts of first-degree forcible sex offense, one count of breaking and entering to terrorize or injure, one count of first-degree kidnapping, and one count of common law robbery. Of those, about five of them, and this becomes significant later on, are B1 felonies. At a pretrial hearing, defendant asked to represent himself. The trial court turned to the prosecutor and asked about the defendant's exposure. If he was convicted, the prosecutor said essentially defendant was facing a life sentence. The trial judge then conducted the colloquy that's required by General Statute 15A-1242, including advising the defendant of the range of permissible punishments. The judge advised the defendant that he faced 300 to 420 months in prison for each Class B1 felony, and that in total, defendant faced a possible punishment of 75 to 175 years in prison. Turns out that was incorrect. Defendant could have actually faced five consecutive life sentences. That's one life sentence corresponding to each one of those B1 felony charges. Defendant was convicted of all charges and the trial court sentenced the defendant to a minimum 121, maximum 178 years. So more than the trial court had said he was actually eligible for. Defendant appealed, arguing that the trial court failed to ensure that he understood the range of permissible punishments as required by that statute, 15A-1242. The Court of Appeals found no error based on its own precedent, holding that the colloquy was sufficient because the defendant understood that he faced a life sentence. Defendant sought discretionary review, and the North Carolina Supreme Court allowed that petition. The North Carolina Supreme Court began by observing that defendants have a constitutional right to represent themselves. That's as recognized by the U.S. Supreme Court in a case called Ferretta v. California. And Ferretta recognized that before permitting a defendant to proceed without counsel, the defendant should be made aware of the dangers and disadvantages of self-representation. In order to safeguard this right, the North Carolina Supreme Court recognized the General Assembly enacted the Statute 15A-1242. The statute permits a defendant to proceed without counsel after the trial court has engaged in a thorough inquiry and is satisfied that defendant understands a number of things, but including the range of permissible punishments. Now, there's North Carolina Supreme Court precedent that says if the trial court complies with that statute, it is satisfied the Sixth Amendment inquiry under Ferretta. In this case, the North Carolina Supreme Court adopted the analysis from a court of appeals case called State v. Gentry and ultimately held that if the trial court miscalculates the range of permissible punishment during the statutory colloquy, but both the miscalculation and the actual range are tantamount to the remainder of the defendant's life that the trial court has complied with the statute. In this case, the trial court advised the defendant that he faced 75 to 175 years, where the maximum sentence was actually five consecutive life sentences, plus 53 to 71 years. But because the defendant was nearly 30 years old at the time, all of those sentencing ranges were tantamount to the remainder of the defendant's natural life. The North Carolina Supreme Court concluded that though the range of punishments the trial court advised was inaccurate, the trial court nevertheless complied with the statute because that miscalculation wouldn't ultimately change the determination that it was for the remainder of his life. The Supreme Court pointed out that it wasn't adopting Gentry in its entirety, right? Because Gentry, that court of appeals case, also went on to find that if there was an actual violation of the statute, that that violation was subject to harmless error review, entailing a determination of whether the mistake would have affected the defendant's determination to proceed pro se. The North Carolina Supreme Court explicitly did not go so far as to hold that, but held that the statute is satisfied so long as the miscalculation and the actual range ultimately amount to a life sentence.
[00:05:25.887] [SPEAKER_00] And Joe, that's sort of the point I guess I wanted to stress or discuss for prosecutors is, I mean, it does seem like it's the idea that it's a life sentence that is the critical factor here, not just that it's a significant or insignificant miscalculation, right? I mean, I don't think we're taking this case to say if the judge got it wrong by a few months on a five-year maximum or something. It's not like we could point to this case and say, eh, close enough. It does seem like it's that fact that it's a life sentence either way seems to be kind of our critical point.
[00:05:54.608] [SPEAKER_01] Yeah, I think that's right. It kind of maxes out at the top, right? Because there's a point at which if it's going to be 200 years or 201 years, you're not getting out. That's the upshot. You're not going to get out. But I think you're right. If we're looking at a sentence that is less than that, where it could make a meaningful difference as to whether it's, you know, five years or six years, right. This case is dealing only with that situation where the miscalculation covers the span of the defendant's possible lifetime sentence.
[00:06:19.887] [SPEAKER_00] You know, it may be nitpicking, but as you pointed out, I mean, here in this case, this defendant is, I think, 29 years old, and he's told that he's facing a minimum of 75 years, 104 years old. They have no trouble apparently saying that's tantamount to a life sentence. Most people are not going to make it to 104. Maybe it's nitpicking, but it does kind of beg the question for me of, all right, so let's say he's 25 years old, and he's told that he's facing... 55 years, and that's not really right. So, okay, that's 80. Well, a lot of people live past 80. Where do you think we might draw the line on what is tantamount to a life sentence? Are we looking at actuarial tables for his age and seeing if he gets past it? That was a little, I don't know, uncertain or unresolved for
[00:07:00.245] [SPEAKER_01] me. Yeah, that's an interesting question. And it kind of leaves open that possibility. If you've got a defendant who's significantly younger than this defendant was, is he going to have some wiggle room to make an argument that what is a life sentence for one defendant might not be a life sentence for another? I think this case doesn't really answer that question, but leaves it for another day. One thing I did want to point out about this, as I said in the facts, the trial court actually asked the prosecutor what was the defendant's exposure, and the prosecutor accurately said he's facing a life sentence. And then down in the analysis part of the opinion, the North Carolina Supreme Court pointed out that really the statutory colloquies has to take place between the trial court and the defendant. But it said it is entirely appropriate to ask the state for the range of permissible punishments. The takeaway for prosecutors here is if you've got a situation like this where it is going to be a life sentence, where a life sentence is authorized by statute, it's a good idea to go into court with that information ready to present to the trial court so that that can inform the trial court's colloquy with the defendant. The Supreme Court also pointed out that it's the best practice for trial courts to use the checklist from State v. Moore which is a North Carolina Supreme Court case from 2008. And if you go back and look at Moore, Moore is actually adopting 14 different questions that had been promulgated by the School of Government in a publication that was suggested for compliance with this statute. So just to give a plug for our institution here, the North Carolina Supreme Court has kind of endorsed this checklist that comes sort of originally from the School of Government. And those questions can be found, like I said, in State v. Moore. There was finally, just to put a pin in it here, the defendant belatedly raised this question of whether the compliance with the statute was sufficient to comply with the Sixth Amendment. Remember that statute was enacted in part to effectuate the requirement of Ferreta v. California that the defendant be made aware of the dangers and disadvantages of self-representation. Other states have enacted similar statutes, but it looks like globally this inquiry doesn't actually have to include the range of permissible punishments. that dangers and disadvantage of self-representation might include advising a defendant of the range of permissible punishments. But it doesn't look to me like that's constitutionally required. The North Carolina Supreme Court in this case declined to address that Sixth Amendment issue, said defendant had raised this too late, tried to kind of slip it in as a last minute argument. So this case is not ruling on the constitutional question of whether that range of permissible punishments is a necessary component of the Ferreta inquiry. only that a miscalculation that amounts to a life sentence is satisfactory under the statute.
[00:09:33.562] [SPEAKER_00] Now, Joe, you mentioned that what we're talking about in this case is advising the defendant having that colloquy when he wants to represent himself. Is there a cross-application here to the colloquy that we do in a plea transcript?
[00:09:45.658] [SPEAKER_01] Yeah, well, that was the other question I had because the colloquy required by Boykin v. Alabama for a defendant who wishes to plead guilty, that actually does require a defendant to be advised any statutory minimum and maximum possible sentence. I would be really wary about trying to kind of use this case in a different context. the constitutional requirements for the inquiry are different. The constitutional requirements for a defendant to proceed pro se requires only that he be made aware of the dangers and disadvantages of self-representation and the minimum and maximum punishment provision comes from the statute. Whereas for a defendant who pled guilty, there is more clearly a constitutional requirement that he be advised of the direct consequences of his plea. So in both cases, you have a statute that says the defendant has to be told of the sentence But in the case of a defendant who wishes to represent himself, that requirement for the sentencing provision might not be, I think, quite as constitutionally required.
[00:10:38.716] [SPEAKER_00] You could see an argument for why it ought to be the same. If I mistakenly told you you face 500 years and in reality you face 700 years, either way, functionally, we're telling you it would be for the remainder of your natural life. You could see that argument. But to be clear, I guess we don't have that settled by this case. That's right. So the second case we had on for today is State v. Capps. This was decided back in the Court of Appeals on April 2nd of 2025. This was a case out of McDowell County. It begins on November 24th of 2021. The victim in the case had left her home to spend Thanksgiving out of town. And when she came back on November 29th, this Jayco J-Series pop-up camper that had been parked in her driveway was destroyed. no longer there. So she called the police to report it stolen. And it was found just a week or so later on December 7th of 2021, officers were responding to a fire on the defendant's property. And on that property, they discovered the stolen camper parked there. They describe the area where it's found as sort of an interesting location. They call it a fielded area, maybe 100 yards in length in front of what used to be the defendant's residence before there was another fire that had burned that down previously. But in this field is what the officers describe as an impromptu campground with campers, a tent, and some kind of a shack. But One of those items that's found there is this stolen trailer from the victim, and it's been repainted and put up on blocks, but they're able to identify it through the VIN number, along with a tip that is actually given to the victim that she then passes on to law enforcement. They end up speaking with the defendant and doing other investigation, and it appears that the sequence of events is that another person named Daniels was the one that had ultimately had stolen the trailer, and then Daniels had sold it to another individual known as Speedy, last name of Janes, and that it appeared, according to their conversation with the defendant, he finds this trailer, he sees it on this property that he owns when he gets out of jail and comes back to that location. But in speaking with him, He says he acknowledges that he knew at the point that he came home that this camper had been stolen. It was on his property when he got out of jail back on the 25th of November. He says it's his understanding that Daniels got the camper and then brought it to the property, evidently, I guess, selling it to Speedy to get money that he owed back to Daniels. And this defendant also tells the detective that He didn't know where the camper came from. He chose not to ask. And so after speaking with the defendant, the detectives leave the property, basically believing that the camper had been sold to Speedy essentially on defendant's behalf, you know, to get this money that Daniels had owed him. So the defendant is charged and is ultimately convicted for one count of felony possession of stolen property. And he moved to dismiss at the close of the state's evidence that was denied. So he is convicted and that's what's now on appeal So
[00:13:34.729] [SPEAKER_01] Jonathan, just to be clear, there's a camper that, so he didn't steal it.
[00:13:37.673] [SPEAKER_00] Right.
[00:13:37.993] [SPEAKER_01] He didn't park it on his property.
[00:13:39.534] [SPEAKER_00] He did not. He was in jail, evidently, at the time.
[00:13:41.817] [SPEAKER_01] He just comes back from jail and finds this camper on his property. And that's the basis of this charge of possession of stolen
[00:13:46.823] [SPEAKER_00] property. Exactly. That this other person has stolen it, evidently sold it to another person who's now parked it and set it up on this field, but did that to get the money that that first person owed to the defendant. And so, you know, there are these incriminating statements he's making when he speaks to police along the lines of, I knew it was stolen or I didn't know where it came from. I didn't ask. But, you know, sort of has this idea that in all likelihood that's what's going on. But I think you're exactly right. I would speculate feels like I'm not involved, not my problem, but it is parked on his property. And so that's what he's convicted of is for this felony possession of stolen property. There's two issues on appeal. The first one is actually not about the possession. It's a hearsay issue that gets raised by the defendant, basically saying that There was a question that the defense counsel wanted to ask the detective, basically saying that the defendant told you that Daniels had lied to him. Did he not? And the state objected to that on hearsay grounds. It was excluded. And he's arguing that that was error. The Court of Appeals is saying, but that issue was not preserved. You know, we don't know what the answer to that question would have been. And there's sort of a novel argument here where the defense attorney is saying, we do have some case law that says... that it is preserved. There is sort of an offer of proof of what the testimony would have been if that's clear from the question itself, and is arguing that that's essentially what this is, and they cite to this...
[00:15:05.095] [SPEAKER_01] Presumably he wouldn't have asked his own witness a question he didn't know the answer to,
[00:15:08.480] [SPEAKER_00] right? Presumably. And that's sort of the idea behind this case, Everett, that they're citing to where it says an offer of proof is not necessary to preserve an issue for appellate review if the substance of the excluded testimony is apparent from the context within which the question was asked. But the Court of Appeals says that's not really what we're dealing with. I mean, even if Everett were the controlling case law for this, that's not what we have. We don't know what the answer would have been. They point out that for all we know, or actually they quote, I think, from the state's argument, it's quite possible the detective would have said the defendant did not tell him that Mr. Daniels had lied to him or that the unsubstantiated lie had nothing to do with any relevant subject matter. So it's an interesting argument, but they say that's not really, this question is not an example of that. That's not enough to preserve it. So that was the one issue. But obviously the bigger issue that we're going to talk about is this denial of his motion to dismiss. He's saying that I was not in possession of that stolen property. The defendant says that Daniel stole it and sold it to Speedy without the defendant ever having dominion or control over it. in actual possession of it. So then there's this question of does he have constructive possession of it, right? This is evidently his, whatever we're calling this, his campground in this field out in front of this burned house where he's letting these people live. And so the state says that means he has constructive possession of the stolen camper. And so that's what the Court of Appeals has to decide. They sort of quote some other case law, a case called State v. Chicanow or Chechanow, but they point out that when contraband is found on the premises under the control of an accused, this fact in and of itself gives rise to an inference of knowledge and possession, which may be sufficient to carry the case to the jury on a charge of unlawful possession, but where the defendant's possession is non-exclusive, constructive possession may not be inferred in the absence of other incriminating circumstances. So what would be these other incriminating circumstances we might look at? And they go through and talk about the factors we would look at to make that kind of decision. And they list them out again from that Chicanal case. And they're listing things like the ownership and occupation of the property, proximity to the contraband, indicia of control, suspicious behavior, other evidence linking the defendant. So then they walk through what we've got to say, do we have that here?
[00:17:29.145] [SPEAKER_01] These are factors that usually come up when contraband is found inside a defendant's house, right? These are not factors that typically apply to something that just happens to be parked on your property.
[00:17:38.126] [SPEAKER_00] It is kind of a unique circumstance, this campground or field with these tents and campers and shacks. You're right. It's not like we're just finding it in somebody's closet that is shared with a roommate or spouse. It's not that kind of a situation. But using those factors that we have, they apply it to these circumstances to answer that question of, do we have enough? And they say here, We do. And they go through and look at a number of them. There's that statement from the defendant that he knew the camper was stolen, that he said that to the detective. He also said that he didn't know where it came from and he didn't choose to ask, which they sort of put under that factor of suspicious behavior in conjunction with the discovery of the contraband. He's not saying to them, I'm as shocked as you are to learn that there's a stolen camper in my field. He's sort of saying, yeah, I'd I specifically chose to, you know, I don't know, willful blindness, I guess. You know, I didn't know and I didn't want to know kind of statement. And they talk about him seeing the camper on the property. And so that's his continuing proximity to it. And then finally, there is the ownership of the premises on which the camper was found is, they say, strong evidence of control and thus should be considered as a weighty factor in the analysis. So weighing out those factors, you know, with the evidence that we do have, they say that is enough to at least survive that motion to dismiss, right? there's at least something here from which we could go to the jury and let them make up their minds. They're in a different position than we are, right, Joe? I mean, they're the ones who get to see the witnesses on the stand, view the body language, all of that, and that it was enough to convince them, and the Court of Appeals is saying as a matter of law, it was enough to go to the jury.
[00:19:10.273] [SPEAKER_01] So what should this defendant have done, right? He gets out of jail, he comes home, finds this camper parked on his field. Is it the defendant's responsibility to get somebody to tow it away, to find who the camper
[00:19:21.026] [SPEAKER_00] actually belongs to? He may not view it this way, but it does seem like he's kind of involved, right? I mean, it seems like he's aware that what was really going on here is that Daniels stole it, sold it to Speedy to get the money to pay the defendant. I mean, he seems to be aware of that. There's a
[00:19:35.977] [SPEAKER_01] transactional connection.
[00:19:36.939] [SPEAKER_00] Right, I mean, there's a connection. Exactly. So, I mean, I don't think it's just that the day you come home from jail, I don't know, there's a new television in the living room. You have absolutely no reason to think it might be stolen. And lo and behold, it is. You know, that might be a little bit of a bigger reach for us in terms of convincing a jury or getting past a motion to dismiss. But I guess the takeaway for me would be to do exactly what the court did in this case, which is, all right, you know, let's look at the factors and let's make our argument. Is there some suspicious behavior? Is there... indicia of control, as well as ownership and proximity. You know, it is this five factor test, and so we're going to look at it. We always try to look at what is the takeaway for the prosecutors. Folks listening to this podcast may never have a case involving a stolen camper parked in a field in front of a burned out house. But I mean, I could imagine things like this coming up. As you said, possession of stolen property that's inside of a house, but it's a shared house. That could be one of these tough, constructive possession cases. Or drugs, or child pornography found on a computer. And it's your computer, but other people use it. Okay, well, then let's walk through these factors. And is there something other than just ownership that we could kind of flesh out those other five factors? And I think here, some of these incriminating statements that the defendant made seem to be pretty compelling factors for the court to say it was proper to deny that motion to dismiss and let the jury decide.
[00:20:52.409] [SPEAKER_01] And the other sort of practitioner takeaway, at least with regard to that other issue, is that if you've got a witness who is cut off before the witness is able to provide an answer, you're going to want to ask for a voir dire, take that witness outside of the jury and get that answer on the record, even if it's not evidence that comes in
[00:21:08.710] [SPEAKER_00] at trial. Absolutely. That Everett case they mentioned, it may be a different situation. Had the question been more along the lines of, didn't this person tell you X, Y, and Z? I mean, if that were the question that contained all those details, but if this was a little more vague, it was along the lines of, didn't he lie to you? Well, we don't know what the answer might've been. Maybe he didn't lie. Maybe it was about something completely different. We don't know that. But there's
[00:21:32.025] [SPEAKER_01] a mechanism to get that evidence on the record, even if it's not evidence that comes in at trial.
[00:21:36.672] [SPEAKER_00] That's right. That's right. You're absolutely right. If we've got something that we want to offer for the state and it's not being allowed, I think a case like this would be a good reminder to say we need that in the record one way or another. So, you know, let's let's take them on voir dire outside the presence of the jury. Let's make sure we get it documented if it's something we think might be important. Yeah.
[00:21:52.788] [SPEAKER_01] The last case we've got on for today is State v. Irvin. This is a case out of Durham County. This was a self-defense case involving the admission and exclusion of certain evidence. The facts were that the defendant lived in a three-story townhouse in Durham with several other people, including his girlfriend, Akira Jackson, their six-month-old child, and Akira's brother, Marcus. On March 18th, 2019, Marcus confronted defendant about a quarrel that he had had with Akira earlier in the day. The confrontation became physical. Akira ultimately found defendant on top of Marcus and was able to separate them. Akira and Marcus went outside and then while they were outside, Marcus is texting defendant, taunting him to come outside. Defendant is texting back, taunting Marcus to come back in the house. The defendant goes upstairs, gets his gun, and comes back downstairs. Marcus was apparently standing near the sliding doors at the back of the townhouse. Defendant walked toward the back, shooting at Marcus as he walked, and Marcus fell face down on the floor. Police found the defendant in the parking lot with his hands up. He told police that he had a gun in his pocket. Defendant was arrested at that time. And then later at trial, defendant claimed that he shot Marcus in self-defense. Marcus had three gunshot wounds, was declared dead shortly after being transported to the hospital. Two of those wounds had stippling, indicating defendant was less than three feet away at the time that he was shooting Marcus. Defendant was then charged with first degree murder. At trial, defendant testified Marcus had attacked him because he had disrespected Marcus's mother. And after their initial altercation, defendant went upstairs to get his gun because Marcus had threatened to kill him. Defendant said that he shot Marcus as Marcus was charging at him and lunging at him. So the defendant shot him in self-defense. The defendant was convicted by a jury of first-degree murder and sentenced to life without parole. And then on appeal, defendant raised a number of issues, two or three of them with regard to the evidence presented in the case. Defendant first argued that there was insufficient evidence of premeditation and deliberation. Court of Appeals made pretty short work of that argument, said that there was sufficient evidence of premeditation and deliberation in the fact that defendant left that initial altercation with Marcus to retrieve his gun and then came back to find Marcus and that he inflicted multiple gunshot wounds. Defendant also argued that the trial court erred by admitting evidence of his prior violent behavior toward Akira, that is, his girlfriend and the victim's sister. There was an instance where he had punched her in the leg. She had apparently called Marcus to save her from the defendant in that scenario. There was an instance where the defendant had threatened her with the gun, and there was another instance where he'd actually placed the gun to her head. The Court of Appeals first found no error in admitting that evidence under Rules 401 and 402. Those rules, remember, have to do with the relevance of the evidence. The evidence provided context, the Court of Appeals said, as to the circumstances surrounding the parties and the relationship between defendant Akira and Marcus. Defendant also raised a 404b objection. 404b, remember, is the rule that says prior bad acts can't come in if they're introduced only to show propensity. Here, the evidence was admissible to show motive. The court of appeal said motive and intent to kill Marcus. It was sufficiently similar and temporarily proximate to the crime charged. So there was no error in admitting that evidence under Rule 404B. And then defendant also raised a challenge under Rule 403. Rule 403 says evidence, even if relevant, can be excluded if it has an undue tendency to create undue prejudice or to mislead the jury, confusion of the issues. Here, the Court of Appeals found that the evidence was probative of the context, of the motive, of the intent, that the evidence was not unfairly prejudicial. The trial court conducted a proper balancing test, and so the Court of Appeals found no error in the admission of that evidence. The two issues that I found particularly interesting, the defendant argued that the state's closing argument contained a misstatement of law. The prosecutor was arguing about the reasonableness of the defendant's belief in the need to use deadly force. The prosecutor said it was unreasonable for the defendant to believe that by shooting Marcus multiple times, he was protecting himself. And then the prosecutor said, and here's the statement that was challenged on appeal, even if reasonable, the defendant never has the right to use excessive force. The Court of Appeals said that that statement was, quote, confusing at best, but then found that any impropriety in that statement was cured by a proper jury instruction on the rules of self-defense.
[00:26:05.846] [SPEAKER_00] Joe, I have to be honest, I'm a little confused about what's confusing about that statement. I mean, you know, as you said, in this opinion, we just have a summary of the first part and then a quote of the latter part. But to the extent that the prosecutor is just saying a defendant even if they are in reasonable fear acting in self-defense, that they may not use excessive force in self-defense. I guess I'm confused about why that's confusing. Why is that a misstatement of the law?
[00:26:28.964] [SPEAKER_01] I agree with you, Jonathan, because we know under that four-factor common law test for self-defense that a defendant could have an actual and reasonable belief in the need to use deadly force and was not the aggressor and did not use excessive force, he's entitled to an acquittal. But our appellate courts have recognized where the defendant's belief is reasonable, but he was the initial aggressor in the affray or used excessive force, then the jury could find him guilty of voluntary manslaughter. It seems to me what the prosecutor was asking for here was first asking the jury just to reject the self-defense argument altogether, arguing that it was unreasonable for the defendant to believe that by shooting Marcus, he was protecting himself. But then as kind of a backstop, the prosecutor said, look, even if you find the defendant's belief was reasonable, this amount of force used was excessive. In other words, you could still find this defendant guilty of manslaughter. The Court of Appeals, it's a little frustrating, didn't really say whether that was a misstatement of law or not. It seems to me that that is a fair summary of the law of self-defense that would result in a conviction for manslaughter. The Court of Appeals just said that it's confusing and then ultimately held that any impropriety in the statement was was cured by the proper jury instruction i'm a bit confused as to what the court of appeals was confused about
[00:27:40.176] [SPEAKER_00] well because you know as you said they talk about it assuming it's improper or assuming it's confusing it's cured by the jury instruction that they read right after and then you know they print that portion of the jury instruction and re where it says a defendant does not have the right to use excessive force A defendant uses excessive force if the defendant uses more force than reasonably appeared to the defendant to be necessary at the time of the killing. And they say, this instruction is proper. So I have a little difficulty parsing that out. But nevertheless, they're saying that even if it was wrong, it was evidently
[00:28:08.932] [SPEAKER_01] cured. There was one other issue in this case. The defendant argued that the trial court erred by excluding evidence of Marcus's alleged gang involvement. The defendant attempted to introduce evidence that Marcus was involved with a gang through the testimony of defendant's psychiatrist and a video allegedly showing Marcus making hand signals consistent with gang membership. Defendant said that this evidence was relevant to show his state of mind during the altercation. The Court of Appeals agreed with the trial court, however, that any probative value of that evidence was substantially outweighed by the danger of unfair prejudice. The Court of Appeals said, and this is a quotation, "...evidence that defendant feared for his life because Marcus belonged to a gang does little to support his theory of self-defense, and such evidence would have had an undue tendency to suggest decision on an improper
[00:28:55.115] [SPEAKER_00] basis." What is the court telling us there then? Are they saying that evidence that the victim was in a gang, are they saying that is not standing alone evidence of the victim's reputation for violence or something like that? Did it need to be more specific? Is that the issue?
[00:29:13.461] [SPEAKER_01] Yeah, it's a little bit unfortunate that there's not a more thorough discussion of this issue because we know from the other self-defense cases, this rule that allows a defendant to introduce prior bad acts of the victim that are known to the defendant is actually outside of the character evidence rules. That evidence is introduced not to show the victim's propensity for violence, but to show the reasonableness of the defendant's fear, precisely what this defendant argued in Irvin, that my knowing that the victim was involved in these gangs gave me some basis for reasonable fear, and that's why I was permitted to use deadly force here. Those other cases allowing that kind of evidence typically involve prior bad acts, right? The defendant is aware that the victim committed certain acts of violence against other people, or was known to carry a gun, or has a certain number of convictions for violent crimes. The Court of Appeals doesn't say why this particular evidence, evidence of Marcus's alleged gang involvement, somehow doesn't fit into that category. But as you point out, perhaps it's because it's not a specific instance of violence, perhaps merely association with a gang doesn't mean he's necessarily a violent person on any particular occasion. But insofar as it goes to the defendant's state of mind, I don't see why that wouldn't be relevant anyway, because a defendant typically is permitted to introduce evidence to show why he had a reasonable fear of this victim. It goes directly to those four elements he has to show in order to support a claim of self-defense. And like I said, the Court of Appeals opinion here just doesn't really... say very much to explain why this kind of evidence doesn't fall within that general rule.
[00:30:50.868] [SPEAKER_00] Yeah, I mean, I think we could imagine an explanation, right? I mean, even if the person's in a gang, for all we know, what he does in that gang is, I don't know, stealing things or selling drugs or, you know, things that are not violent, things that wouldn't really have a direct bearing on your reason to be afraid of him during this encounter. That may be, but we just don't really have a thorough discussion of that here.
[00:31:10.642] [SPEAKER_01] The other thing to keep in mind with this particular issue, right, is that this was one where the trial court excluded the evidence under Rule 403. So the defendant on appeal had a pretty high bar to clear to show that this was error because that's typically going to be an abuse of discretion standard. I think if the trial court had allowed this evidence in, that maybe also would have been supported on appeal just because it's difficult to show that that's error under the deferential abuse of discretion standard that a reviewing court is going to apply.
[00:31:35.751] [SPEAKER_00] Now, Joe, that's a great point for prosecutors, because we may be on the other side of this, right? We want to offer evidence of somebody's gang involvement or things they did with the gang as 404B evidence against a defendant. So I think that's a really important point for prosecutors to take home. I don't think you can point to this case as sort of laying out a rule, right, that being in a gang is not admissible as, you know, evidence of, I don't know, 404B, whatever acts the person has done. I think you're exactly right. That abuse of discretion standard is what they're looking at here. In this case, they're saying it wasn't necessarily error to keep it out. That doesn't necessarily mean either, though, that we could not offer evidence of gang activity if we think it's independently relevant as 404B in a state's case in chief, something like that.
[00:32:19.913] [SPEAKER_01] Yeah, precisely. And even with regard to that line of cases about what the defendant can introduce in order to show his state of mind, I think Irvin is a little bit of an outlier. There's simply not enough explanation in the Court of Appeals opinion here for some kind of grand principle upon it to say the defendant is never permitted to introduce this kind of evidence. Well, that's all for today. In this episode, we discussed State v. Fenner regarding the trial court's mistake in the range of permissible punishments for a defendant who wishes to represent himself at trial, State v. Capps regarding the sufficiency of evidence for constructive possession of that stolen camper, and State v. Irvin having to do with evidence in a self-defense case. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holtz for our music. If you liked what you heard today, if you have questions, comments, concerns, if there's a topic you'd like for us to cover in another episode, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at sog.unc.edu.
[00:33:32.999] [SPEAKER_00] And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot o-r-g.
[00:33:51.602] [SPEAKER_01] Thank you, John. That would be the showing for the state. Thanks, Joe. Hope it helped.