Episode 17: Meadows, Ducker, and Townsend

[00:00:11.067] [SPEAKER_01] Under the North Carolina Supreme Court's opinion in State v. Harbison from 1985, it is ineffective assistance of counsel per se, that is, without any additional showing of prejudice, if defense counsel admits the defendant's guilt to the jury without the defendant's consent. The Court of Appeals has now held that when the defense counsel admitted to the jury that the defendant was present at the scene of the crime, counsel committed a violation of Harbison that entitled the defendant to a new trial. We'll be discussing that case, State v. Meadows, 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 DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina.
[00:00:55.463] [SPEAKER_00] So, Joe, I thought we had a rule that the defendant's mere presence at the scene of the crime was not sufficient to establish his guilt. So tell us about what are the defense counsel's admissions to the jury in Meadows that caused this problem?
[00:01:08.358] [SPEAKER_01] Right, Safey Meadows. This is a case that came out of Duplin County. The facts were apparently in the summer of 2016, the defendant was in a gang known as the Eight Tray Crips with several other men that are mentioned in the opinion, somebody known as Duck, Chapo, and D. High. On July 8th in 2016, defendant and two other men went to a home in Duplin County where a man named Donde Hutcherson Sr. lived with his son, Donde Hutcherson Jr. They kicked in the front door. Somebody shot Jr. who died at the scene. The men stole marijuana and cash and defendant actually left a pair of shoes in the road. The men returned to the home that the defendant shared with his girlfriend, Nalja Burton, where they divided up the marijuana and the cash. Defendant admitted to Burton that he had killed the victim and that he had moved up in the gang as a result of that. On May 28th, 2018, defendant was indicted for first degree murder and possession of a firearm by a felon. At trial, defendant agreed to a stipulation that he had previously been convicted of a felony. The reason that's significant is the Court of Appeals discussed there was something of a Harbison inquiry here, right? The defendant agreed to allow counsel to stipulate that he had been previously convicted of a felony, but that was the extent of the inquiry and the extent of the concession that defendant was willing to allow counsel to make. During closing argument at trial, defense counsel admitted that defendant was at the scene of the crime. That argument included this statement. He said, evidence doesn't show anything about Deontay's state of mind, but what we do know is he went there under the order of these higher-ups. I submit to you that it is reasonable to suppose he was only concerned about himself, only concerned about carrying out orders of the higher-ups. He had no intent. whatsoever. Basically, defense counsel's argument there was that he was just following orders of his superiors and the gang, and he went there without volition. As he said, he had no intent whatsoever. Defendant was convicted of first-degree murder and gave notice of appeal. On appeal, defendant argued two different issues. First, he received ineffective assistance of counsel under Harbison when counsel conceded his guilt without his permission, claiming that his admission that defendant went to the scene of the crime was tantamount to saying that he participated in the offense. And then secondly, that the trial court erred by failing to intervene in the state's closing argument. The defendant argued the state's closing argument was improper because the state argued a theory of acting in concert where the trial court had specifically refused to instruct the jury on acting in concert. Ineffective assistance of counsel generally requires a defendant to show both deficient performance of counsel and resulting prejudice. Under State v. Harbison, however, that's that North Carolina Supreme Court opinion from 1985, it is per se ineffective assistance of counsel for counsel to admit the defendant's guilt to the jury without the defendant's consent. There's a more recent case from 2020 or something like that called State v. McAllister. where the North Carolina Supreme Court held that harvest and error occurs when counsel makes an implied concession of guilt. So it need not be defense counsel just coming out and saying, okay, we admit to certain elements of the offense, or we admit that he held the gun or something like that. An implied concession can be sufficient to show harvest and error. In this case, the court of appeals found no evidence that the defendant gave consent for counsel to discuss his presence at the crime scene or his involvement with the gang the evening of the murder. The Court of Appeals noted that the trial court declined to instruct the jury on acting in concert and accused the prosecutor of disregarding the trial court's ruling when it argued the defendant could be convicted based on a theory of acting in concert. This is where those two kind of issues in the case end up being blended together because at the end, because of its resolution of the Harbison claim, the Court of Appeals says it's not reaching the issue of whether the state's argument contained a misstatement of law. But during the analysis of the Harbison issue, it actually says the prosecutor erred. by arguing this theory to the jury where the trial court had refused to instruct the jury on that theory. The Court of Appeals said defense counsel made statements that amounted to an implied admission of guilt on the theory of acting in concert. He admitted that defendant was following orders from other gang members and went along with them, and that amounted to an implied admission that the defendant was a participant in the crime. And as a result of that, the Court of Appeals ordered that the defendant was entitled to a new
[00:05:22.786] [SPEAKER_00] trial. So, Joe, I'm just trying to wrap my head around this a little bit. Right. So the defendant's counsel, he's not admitting actually to any of the elements of the crime. Right. I mean, he's just admitting that, yes, he was there because he was ordered to go there by the other people in the gang. As I read some of the excerpts they have from the closing argument, it seems like he's saying over and over again, we don't know who actually pulled the trigger. We don't know any of this stuff. Not admitting that he did anything like that. Just that he's there. Just that he's there. That's right. And then the court is saying that's an error that is tantamount to an implied admission because of how it gets married up with what the prosecutor said about acting in concert.
[00:05:59.603] [SPEAKER_01] Yeah, that's what's a little curious about this Harbison analysis. And it's something that the dissent, there was a dissent from Judge Stadding that picked up on this. Judge Stadding pointed out that there doesn't seem to be any precedent under Harbison and its progeny. for the proposition that the defense counsel's argument can be coupled with the state's argument to kind of produce this error. And what the Court of Appeals majority here said that defense counsel made a harbison violation in kind of agreeing to the state's theory that acting in concert could support a conviction here. But right, under this acting in concert theory, the defendant doesn't have to be actually the trigger man, doesn't have to have committed any of the elements so long as he was there and helping and participating at a common scheme or plan with those that actually did do all the elements of the offense. But what the Court of Appeals says was if you combine the defense counsel's argument that admitted that at least he was there with the state's argument that acting in concert allows a conviction if the other people did the elements of the offense, that gives rise to this implied admission of guilt.
[00:07:00.538] [SPEAKER_00] And then can we drill down a little more on the second part of this? Why is it in this case that the judge was not willing to give the acting in concert instruction that evidently sort of sets up a necessary component for this finding of error?
[00:07:12.651] [SPEAKER_01] Yeah, that's the really interesting thing here. There is enough in the Court of Appeals opinion to indicate that the trial judge apparently refused to give acting in concert instruction because the indictment failed to allege acting in concert. And the trial court was concerned with producing a variance or a discrepancy between the indictment and the instruction by giving an instruction that wasn't supported by the indictment. The reason that's curious is that there's case law going back that indicates acting in concert or aiding and abetting as a theory that does not have to be alleged in the indictment. In other words, you can give an instruction on acting in concert or aiding and abetting even when that theory does not appear in the indictment. So I think the trial court was just mistaken about that and declined to give the instruction on that basis. But the second problem kind of flows from that. The prosecutor then went on to argue to the jury, and I think this is kind of hard to get around. The prosecutor argued to the jury that the defendant could be convicted on this acting in concert theory, right? That he was there, had the same mens rea, was participating with these other gang members at the scene. The Court of Appeals, at least indicates, suggests strongly that the prosecutor erred by making that argument. I don't see anything in the language from the charge conference where the trial court told the prosecutor, not only am I refusing to give this instruction, but you are also precluded from making any argument on that basis. The general rule is that attorneys are permitted to argue the whole case to the jury, as well as the facts and the applicable law. And so the mere fact that the trial court refused to give this instruction doesn't necessarily mean that the prosecutor was barred from making that argument to the jury.
[00:08:44.054] [SPEAKER_00] Right. I mean, I think we would say that is a correct statement of law. I mean, that is how it works. It's just another theory of principal liability. So the prosecutor could make that argument, whether the jury is actually going to be specifically instructed on it or not. In fact, that might be why the prosecutor wants to explain it in some more detail, because they're not going to be getting that from the judge. So they want to talk to them about our theory of why he's nevertheless guilty. Precisely.
[00:09:06.405] [SPEAKER_01] The other curious thing that flows from that is had the trial court given that acting in concert instruction, it probably would have included the language from that instruction that mere presence at the scene is not sufficient to establish the defendant's guilt. That seems to be the root of the problem here. There was this suggestion that the defendants merely being present somehow made him a participant in this crime. As we talked about at the very beginning, That's generally not the case. The state has to show not only that the defendant was at the scene, but also that he shared the mens rea with the other participants in the offense in order to give rise to the defendant's culpability.
[00:09:41.975] [SPEAKER_00] So then what would be our takeaway for prosecutors on this if they've got something like this where the defense attorney is at least admitting that he was there at the time, not an element, but admitting presence or something like that?
[00:09:52.610] [SPEAKER_01] Well, the The first takeaway I think at the charge conference, if you've got a situation where you want to request an instruction on aiding and abetting or acting in concert, it would be a good idea to go in armed with that case law that says, look, the fact that this was not alleged in the indictment does not preclude the instruction. So that's number one. And then number two, when you're making the argument to the jury, it's important not to make misstatements of law. And I don't think there's any allegation that there was a misstatement of law here, but also not to make arguments that are not supported by the evidence. The evidence here was that the defendant went to the scene with these other gang members and that together they committed this crime. I think the acting in concert argument, at least arguably, was supported by sufficient evidence. And then the final point that I would make for prosecutors going forward, when you do have a situation where the trial court makes a ruling at the charge conference, it would be a good idea to kind of explore the parameters of that argument. Is the trial court merely refusing to give the instruction or is he also precluding defense counsel prosecutor from discussing this theory of the offense at all? Because in this situation, the court of appeals treated it as though that ruling on the instruction was a bar moving forward of discussing this theory of the offense sort of globally. And I'm not sure that's necessarily the case every time
[00:11:04.046] [SPEAKER_00] you get a ruling on juries. But that would be a good thing to get clear on because, I mean, as I understand it, I think I'm recalling correctly that if we request an instruction and it is supported by the evidence in the case, it is a correct statement of the law, then the judge is required to give that. So it gets a little murky, I guess. If the judge is refusing to give it, is there sort of an implied ruling that that is not the law or that that is not supported by the evidence, then making it a little bit dicey for the prosecutor to be getting into it in the closing argument, to say the least?
[00:11:34.149] [SPEAKER_01] Yeah, exactly. So my kind of recommendation going forward, if you find yourself in that situation, is we need to kind of push back and explore the parameters of that ruling. What exactly is the trial court saying? Can we not mention this at all? Or are we still allowed to make that argument to the jury if it is a correct statement of law and supported by the evidence?
[00:11:51.120] [SPEAKER_00] But this may not be the last word on this Meadows case, correct?
[00:11:53.945] [SPEAKER_01] That's right. It looks like the state has filed a petition for a stay and the Supreme Court has allowed a stay, which typically means that the state is going to move forward with seeking review. I pointed out there was a dissent here. So it looks like we might get another opinion from the North Carolina Supreme Court on this case.
[00:12:09.317] [SPEAKER_00] And we've sort of got a similar situation in the second case we have up for today, which is State v. Ducker. This was decided by the Court of Appeals on May 7th, and there was also a stay granted in this one on the defendant's motion. That was granted on May 20th. But what we know for now on this case that came out of Buncombe County is that the defendant in this case had a prior conviction from back in 2009 for an attempted fleeing to elude arrest. with aggravating factors. So that was a Class I felony. And then this case came to light in October of 2022 when the Buncombe County Sheriff's Office got an anonymous tip that this defendant was out openly carrying a handgun despite that prior felony conviction. So the officers act on that tip. They have this encounter with him. They make a traffic stop with their blue lights, and the defendant promptly informs the officer that, yes, he's got a handgun and a holster on his right hip. So he's placed under arrest, and a grand jury indicted him for one count of possession of a firearm by a felon under 14-415.1. The defendant moved to dismiss pretrial. That was denied. He went to trial, and he was found guilty by a jury. And so now he's arguing on appeal something fairly similar to a case we discussed just a few months ago, State v. Naines, but he's making these sort of Second Amendment constitutional challenges to that felon in possession law that we have in North Carolina. So there's basically three sort of angles of attack that he's making. There's a facial constitutional challenge under the Second Amendment, essentially saying, There is no set of facts in which this law could ever be constitutional as applied to anyone. The second would be an as-applied challenge under the U.S. Constitution's Second Amendment that, as to me at least, it's unconstitutional for this law. And then finally, an as-applied challenge under the state constitution saying that he satisfies this five-factor test under that as-applied challenge and that it fails under the state constitution. The court walks through all three of those, ultimately rejecting all three and saying that his conviction here in this case was proper. The facial Second Amendment U.S. Constitution challenge is the one that they take up first. And again, that's the one where the defendant would have to show that no set of circumstances exists under which this act could possibly be valid. And the court here talks about how we've looked at felon in possession, 14-415.1. previously and found that it was not a violation of the state or the federal constitution. And then they talk about sort of the recent cases we've had, like New York State Rifle and Pistol v. Bruin, that modify the standard a little bit for deciding if legislation violates the Second Amendment protections or not. That's a U.S. Supreme Court. I'm sorry, the U.S. Supreme Court, exactly. And, you know, that's the one where they sort of set forth this new test that we need to go look for these historical analogs that would justify the regulation, showing that it falls outside the scope of the right as originally understood. And here they say that we have these kinds of historical analogs that would support it to this facial challenge that, you know, we had looking back at the the Bruin case and then more recently in that Rahimi case where they talked about historical analogs like surety laws, against going armed to the terror of the public, or affray laws, these things that talked about being historically supported, the idea that we could disarm those kinds of dangerous people. And they refer to their other recent case names that was decided a little earlier this year, saying that our state law is consistent with that, what they call the emerging post-Bruin consensus among federal courts, that felon and possession statutes do not facially violate the Second Amendment. So they're done with that first challenge, and then they look at this federal Second Amendment as applied challenge, similar to what they analyzed in that recent case versus of State v. Nanes. His argument is that his situation is a little different. If you remember the State v. Naines, the felony that the defendant had in State v. Naines was a little more serious, a little more violent. It was a felony, cruelty to animals. But when you looked into the facts of that, it was pretty severe, involving decapitating the dog, a pretty disturbing and violent felony. And his argument is that, hey, this one's not that bad. This is felony fling to elude. I'm driving in a car, that this should be treated a little bit differently. And the court here, it's interesting. They say, we agree that this as applied challenge would not be controlled by their decision in Naines because that was limited to that defendant, the predicate felony that was at issue in that case. But then they go on a little and say a little bit further down. However, we need not perform this felony by felony analysis to determine the constitutionality of Section 14-415.1. They talk about how before the Supreme Court decision in Bruin, they pretty universally held that these challenges to our felon in possession law were unavailing because convicted felons fall outside the protections of the Second Amendment. And now they point out that revisiting the question following Bruin, the Fourth Circuit, other courts have reached the same conclusion as before, that Basically, the previous decisions rejecting as-applied challenges remain binding because they can be read harmoniously with Bruin and Rahimi and have not been rendered untenable by them. In other words, people who are convicted of a felony are deemed to fall outside the protection of the Second Amendment. So even in this as-applied context, we reach the same result. They
[00:17:36.355] [SPEAKER_01] Does that shut down going forward an as-applied challenge under the second amendment? I understand the Court of Appeals is going to be binding on later Court of Appeals panels, not on the North Carolina Supreme Court, obviously, but this seems to be attempting to put a lid on that kind of challenge moving forward.
[00:17:50.541] [SPEAKER_00] I would agree, Joe. I feel like that's how they're reading these Bruin and Rahimi type cases. In fact, they say that towards the end of this section. They talk about following Bruin in U.S. v. Rahimi, the court remarked, citing all the way back to Heller, reaffirmed that many such prohibitions, like those on the possession of firearms by felons and the mentally ill, are presumptively lawful. So I feel like they're saying even post-Bruin, even with this different way of conducting the analysis, we're reaching essentially the same result, that when a person's been convicted of a felony, that that does sort of bring them outside the intended protections of the Second Amendment. And they talk about, one final reference back to Bruin, saying that the right to bear arms has been interpreted as one that is for law-abiding citizens. And if you are a convicted felon, you are outside the scope of what the Second Amendment is trying to protect. And so then finally there is this state law, state constitution as applied challenge saying that our state law, 14-415.1, as applied to him, fails under the state constitution. And if you remember from our discussion in Naines, there's this five factor test that the court looks at to decide whether there is, the state action in this case is reasonable and not prohibitive. and bears a fair relation to the preservation of public peace and safety. That's citing back to that Britt case and the way that it's been interpreted in some subsequent ones like State versus Whitaker. And they lay out the five factors we look at, and that is the type of felony conviction, particularly whether it involved violence or the threat of violence, remoteness in time, how long ago was it, the person's history of law-abiding conduct since the crime. And number four is kind of interesting. It's the history of responsible, lawful firearm possession during a time period when the possession of firearms was not prohibited. And then finally, they reference the felons or the person's assiduous and proactive compliance with the law. In other words, when you were barred, you weren't out there trying to possess firearms. You know, you've attempted to have your rights restored, something like that. So anyway, applying those five factors to this defendant, they say that he does not satisfy that test, that it does not constitute improper or unconstitutional application of the law as to him. You know, they note that none of these one factors is particularly controlling. It really is a question of looking at all of them. But they point out, like for that fifth one I just mentioned, no, he has not assiduously and proactively complied with the law. I mean, he was, you know, he's here on a charge of being a felon in possession. He was in possession of a firearm, knowing he was a felon and he wasn't supposed to have it. And they stepped through those other factors, you know, like how serious or how violent or dangerous was the felony? Well, okay, this is not decapitating a dog, but nevertheless, you know, fleeing to elude is a danger. It poses a danger to the public. He could have run somebody over. And the remoteness in time. Well, yes, his original conviction was 13 years prior to this, but they point out we've had other challenges that have failed with convictions even older than that. They reference a case, Johnston v. State, involving a 31-year-old conviction that the defendant had and said that was enough. And then, you know, they point out under, for example, his history of law-abiding behavior. And he claims that he has that, and they say, well, yes, he does have some history of law-abiding conduct, but he does so, or he minimizes his 2017 conviction for violating a domestic violence protective order. So it's not like there was nothing there. So stepping through those five factors, they say, ultimately conclude that the court did not err by denying his motion to dismiss, and so that conviction is upheld. You know, I think it's, again, it's not dramatically different than what we saw in Naines, but I think it's interesting really for that second part where they say, you know what, we're not going to have to have 138 cases on this addressing each potential different felony. They're sort of saying, you know, we think for that second part, that as applied Second Amendment challenge, convicted felon, I think they're sort of embracing this emerging post-Bruin view of saying, If you're convicted of a felony, you're generally falling outside the scope of what the right is intended to protect. And so I think the next case involving a different prior felony, I would expect that to come out the same way Ducker did, the same way Naines did before that.
[00:21:59.946] [SPEAKER_01] Right. Naines, we had a defendant that was not a particularly sympathetic defendant. Maybe this defendant's prior felony, like you said, is a little more benign, but the Court of Appeals is going to reach the same conclusion
[00:22:09.599] [SPEAKER_00] here. That's right. And if the factors of the defendant are different, then we may get to a different result under that third prong, looking at that as-applied challenge under the state law. I mean, because we do have that Britt case, for example, where they're willing to look at that. If it's not an egregious felony, if it has been a long time, if they have been abiding by the law, they've not been carrying a gun when they were not allowed to. I mean, it's not inconceivable that there could be a case where they would find that that applies to this defendant. But I think as to at least those first two, I'd be a little surprised that the next case came out any differently than Ducker or Nain did.
[00:22:40.669] [SPEAKER_01] Right. And then the last case we've got on for today is State v. Townsend. This is a case out of Guilford County decided by the Court of Appeals on May 21st, 2025. In the fall of 2017, Brandon Fry shared an apartment with Nolan Clark in Greensboro. On October 3rd, 2017, defendant came to the apartment to buy marijuana from Fry. When he arrived, defendant asked if he could buy more than the one ounce that he had originally asked for. Fry went into the kitchen to prepare additional amounts of marijuana. And at that point, Clark took the dog out for a walk. The defendant left the apartment to get some more money. Clark left the apartment to walk the dog. And as he's outside of the apartment, Clark heard gunshots. He went inside and found Frye injured in the bathroom and called 911. Frye died at the scene from a gunshot wound to the chest. Greensboro Police Detective Jared Waddell investigated the scene. He used dowel rods placed in the bullet holes to determine the trajectory of the bullets. And then in January of 2018, defendant was indicted for first-degree murder and armed robbery. At trial, Detective Waddell testified over objection about his investigation and the trajectories of the bullets. Detective Waddell acknowledged that he's not an expert in ballistics, but the trial court overruled those objections and allowed Detective Waddell to testify about the trajectories of bullets based on those dowel rods that he put in the bullet holes. The trial court instructed the jury that self-defense is not available to a person who is committing a felony. It said the state had to prove a causal nexus between the use of force and the felony to disqualify the defendant from using defensive force. The trial court said attempted possession of two ounces of marijuana and attempted possession with intent to sell marijuana are felonies. On December 8th, defendant was convicted of second degree murder and he gave notice of appeal. And then on appeal, defendant argued three different things, but two of them amount to the same thing. In the first place, the trial court erred by instructing the jury on the causal nexus requirement. And then secondly, that the trial court erred by admitting Detective Waddell's testimony about bullet trajectory. And that fed into the third issue, that if Detective Waddell was testifying as an expert, that the trial court erred by allowing the state to proceed where Detective Waddell's expert opinion was not. turned over in discovery pursuant to General Statute 15A-903. With regard to the jury instruction argument, the defendant first argued that the trial court erred in its instructions on self-defense because felony possession of marijuana is not a disqualifying felony. It looks like in the jury instructions here that the trial court had said the state must prove beyond a reasonable doubt that but for the defendant attempting to commit or committing a felony, the confrontation resulting in the injury would not have occurred. There would be an immediate causal nexus between the felony of robbery with a dangerous weapon and the defendant's use of force. And therefore, the defendant would be disqualified from using defensive force if he was committing or attempting to commit robbery with a dangerous weapon. And then the trial court went on to say, attempting to possess two ounces of marijuana or attempting to possess any amount of marijuana with the intent to sell are all felonies. I understand the defendant's argument, I think, was that it was that last sentence, that suggestion that the possession of marijuana would be a felony that might disqualify him from the use of defensive force under 14-51.3, at least the argument was where the trial court aired in this instruction. The Court of Appeals recognized that under 14-51.3, a person is justified in the use of deadly force if that person reasonably believes such force is necessary to prevent death or great bodily harm. And then under 14-51.4, that justification is not available to a person who used defensive force and who was committing a felony at the time. That's the provision that was construed by the North Carolina Supreme Court in 2022 in a case called State v. McLemore. where the North Carolina Supreme Court held that this is not just any felony that the defendant might be committing at the time. It overruled a court of appeals case called State v. Crump that said any felony such as possession of a firearm by a felon, if the defendant was committing that, then he was statutorily disqualified from claiming self-defense. What McLemore said is it's not enough that the defendant was committing a felony, but the state must prove the existence of an immediate causal nexus between the disqualifying conduct and the use of force. So in a situation where the defendant was committing armed robbery, for example, it would not be too difficult to show that if the victim pushed back and used force in defense of his own person, and then the defendant pulled out a gun and tried to defend himself, he's not going to be able to say, I was lawfully using defensive force because he was committing armed robbery at the time. But the question of whether just the possession of marijuana would be a disqualifying felony is kind of an interesting one. What he wanted to argue is there are these certain felonies that are just sort of categorically barred from that statutory disqualification.
[00:27:31.576] [SPEAKER_00] You know, Joe, in the aftermath of McLemore, I feel like these are exactly the kinds of felonies that I know prosecutors were asking us about. You know, when McLemore came out, it was kind of like, Well, sure. Obviously, if it's an armed robbery or somebody's breaking into your home, a burglary, then, you know, it's easy to see how there's this, as they say, immediate causal nexus. And then I think you had mentioned earlier, I think when we were talking about it, the from Macklemore, I think, you know that. OK, but. tax evasion is a felony, right? Or, you know, simple drug possession, one pill in your pocket that nobody even knows about, you know, that those would also be felonies. But this kind of thing, you know, this sale and delivery of drugs or felon in possession, you know, these things that feel a little more could kind of go either way in a given case. It seems to depend on the facts. And there was a lot of sort of confusion and wondering about, are we going to be able to argue that or not? And I feel like this may be a window into an answer to that question.
[00:28:23.038] [SPEAKER_01] Yeah, and what the Court of Appeals held here is that the trial court properly instructed the jury. It rejected the defendant's argument, found that where the trial court said, look, the state has to prove beyond a reasonable doubt that there was this immediate causal necklace, which is the requirement under McLemore, that that instruction was sufficient to inform the jury of of the state's burden and the requirements and they rejected the defendant's challenge. Now, this doesn't necessarily foreclose a possible challenge in the future to the sufficiency of the evidence supporting that causal nexus instruction. You can imagine a scenario where the state wants to say, look, the defendant had this pill in his pocket and so he was statutorily disqualified from claiming self-defense and the defendant is going to say, look, nobody knew about that pill. The victim didn't know about that and so obviously wasn't responding to that as the predicate felony or something like that. That's not exactly what this opinion decides. I think what this defendant was trying to do, and I'm basing this on the way that the Court of Appeals articulated his challenge. Defendant contends the trial court erred in instructing the jury on the issue of self-defense because in his view, felony possession of marijuana could not serve as a disqualifying felony. They rejected the suggestion that there's any felony that sort of is categorically excluded But it does not preclude the possibility of a challenge to the sufficiency of the state's evidence of that causal nexus. It just doesn't look like that's the challenge this defendant was
[00:29:41.133] [SPEAKER_00] making. And, you know, I think a lot of prosecutors would be willing to live in that world, right? I mean, we have to make the showing. We have to offer evidence to establish that there really is this nexus. OK, you know, we'll meet that burden. We just wanted to know that there are not these things like simple felon in possession or just straight felony possession of drugs. There may be a difference between one oxycodone in your pocket and making a sale of a kilo of marijuana or whatever it is. Let us argue that difference. But if we can argue it, if we can articulate it, then maybe we can show that causal nexus and let us have that chance to do it.
[00:30:12.055] [SPEAKER_01] And if you put on that evidence, then you get this instruction and the defendant, at least based on this case, should not be able to argue that that's not a felony that qualifies for the statutory disqualification. The second issue here was that detective's testimony about using the dowel rods to calculate bullet trajectory. The defendant's argument was that the trial court erred by admitting that testimony because the witness was never qualified as an expert, that his opinion constituted expert testimony, and that that expert testimony did not satisfy the requirements of evidence rule 702. The Court of Appeals looked at that. They found no North Carolina precedent addressing the question of whether dowel rods and bullet trajectory was something that could be testified to by a lay witness or whether you had to have an expert qualification for that. They discussed cases from Pennsylvania, from Colorado, and from Maryland, and ultimately concluded that this trajectory evidence using the dowel rods is admissible as lay testimony. They found that this detective's testimony was based on his own observation at the scene, said he wasn't conducting any experiments or any attempts at reconstruction, was not conveying information that required a specialized or scientific knowledge to understand. And so the trial court did not err in admitting this testimony as lay opinion testimony. And then the resolution of that claim really resolves the third issue. Because this was not an expert opinion, it was not subject to the discovery requirements under
[00:31:36.011] [SPEAKER_00] 15.8903. You know, Joe, that in some ways to me seems similar to the last issue, that we're not setting exactly a hard and fast rule for every case. We're just saying it may depend. You know, it's one thing for a detective, I think in this case, for example, to put a dowel rod through the bullet hole in the door and take a photograph of it, you know, to give you some rough idea of the trajectory. That's one thing. That's different than reconstructions and experiments, right? This is not... Shooting a pig carcass and, you know, calculating on a computer. I mean, there are things we might do that would go beyond this, that would certainly not saying all trajectory or ballistics evidence is heretofore lay opinion. Right. It's just that there could be some examples like this one where it's relatively straightforward and that's going to be permissible.
[00:32:17.028] [SPEAKER_01] Yeah, I think that's right. I mean, it certainly helped that it was this officer that conducted it with his own, apparently his own dowel rods and observed the results himself. I don't know. I have a little question about this statement that the Court of Appeals said that this was not an experiment or an attempt at reconstruction. I mean, it looks
[00:32:32.769] [SPEAKER_00] to
[00:32:32.911] [SPEAKER_01] me like it's sort of an attempt at reconstructing the path of the bullet. But suffice it to say, this was within the officer's experience and training. It's something he did himself at the crime scene. And so he was able to testify to it as a lay witness.
[00:32:45.749] [SPEAKER_00] You know, and I thought that final comment they made was kind of interesting. I mean, they say, if you think about it, this is what we're doing when we allow officers to say, it looked and smelled like marijuana to me, right? They referenced that State v. Garnett case. It's the same idea. It's just that based on your training and experience, you got something you could offer that's a little outside the realm of what the average juror would know, but falls short of being expert testimony. Yeah, that's
[00:33:06.449] [SPEAKER_01] right. And they concluded that the testimony was properly considered lay opinion testimony, and therefore the trial court did not err in admitting the testimony under Rule 701. Well, that's all for today. In this episode, we discussed State v. Meadows, that was about the Harbison error and admitting the defendant's presence at the scene of the crime. State v. Ducker, about whether possession of a firearm by a felon is facially or unconstitutional as applied to a particular defendant. And State v. Townsend, permitting a lay witness to testify about bullet trajectory. 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 Holz 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, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at
[00:34:07.429] [SPEAKER_00] sog.unc.edu. 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. Thank you, John. That would be the showing for the state. Sounds good, Joe. Thanks. Hope it helped.
[00:34:41.376] [UNKNOWN] . . .