Episode 21: Gilbert, Tadlock, and Wingate

[00:00:10.965] [SPEAKER_01] In cases involving the sexual abuse of children, it is error for the trial court to allow an expert witness to testify that sexual abuse actually occurred in the absence of physical evidence of abuse. Applying that rule, the Court of Appeals recently overturned a defendant's conviction for statutory sexual offense and indecent liberties, where two witnesses testified their findings were consistent with the victim's disclosure of sexual abuse. We'll be discussing that case, State v. Wingate, today. I'm Joseph Hyde with the University of North Carolina School of Government.
[00:00:41.566] [SPEAKER_00] And I'm Jonathan Holbrook with the North Carolina Conference of District Attorneys. And
[00:00:44.912] [SPEAKER_01] this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina.
[00:00:53.490] [SPEAKER_00] So, Joe, I think we all know the first rule of a defendant's right to remain silent is we don't talk about the defendant's right to remain silent. But there was a recent case dealing with that, about an improper closing argument from the prosecutor. Tell us about State v. Gilbert.
[00:01:06.391] [SPEAKER_01] State v. Gilbert. This was a case out of Guilford County. The facts were these. On December 8th of 2022, the defendant broke into a home in High Point and stole seven wristwatches, a container of loose coins, The next day, defendant showed his identification to the manager of a cash American pawn in High Point and sold two of the watches to the pawn shop. On December 12th, 2022, so a few days later, defendant attempted to sell additional watches to the pawn shop, but the pawn shop refused to purchase them. Defendant was charged with felony breaking and entering, felony larceny, obtaining property by false pretenses, and habitual felon status. The matter came on for trial by jury in March of 2024. And during closing arguments, the prosecutor told the jury, and this is a direct quote, you don't have any other evidence to say otherwise. Now he, that is defendant, doesn't have to testify, but there's no other evidence to say otherwise as to how he got those watches honestly. Defendant was convicted of the substantive charges and then pled guilty to habitual felon status. Defendant appealed, and then before the Court of Appeals, he raised one issue. The defendant argued the trial court erred by failing to intervene ex mara motu during the closing argument when the prosecutor referred to the defendant's failure to testify. Now under a U.S. Supreme Court case in 1965 called Griffin v. California, a prosecutor's reference to or comment on a defendant's decision not to testify violates the defendant's constitutional right to remain silent. The Court of Appeals recognized, however, that a comment implicating a defendant's right to remain silent is not invariably prejudicial. Here, it said the prosecutor's comment that the defendant doesn't have to testify was error, but the error was harmless in light of the, quote, overwhelming, uncontradicted evidence of guilt. So the Court of Appeals ultimately concluded that this comment on the defendant's failure to testify was error, but given the overwhelming evidence of the defendant's guilt, it did not rise to the level of a prejudicial error entitling the defendant to a new trial. There was a long concurrence from Judge Tyson, and his analysis basically followed the majority, although it was a little more nuanced in some places. He agreed that the state's, quote, unlawful comments on defendant's failure to testify violated the defendant's rights. And he said, despite, quote, clear prejudice, he concurred in the majority's conclusion, denying a new trial given the overwhelming evidence of the defendant's guilt. He said the defendant correctly argues that the prosecutor made impermissible comments during closing argument and that the prosecutor's statements were grossly improper and the trial court erred by failing to intervene. But because the state presented substantial uncontradicted evidence of the defendant's guilt, the defendant failed to show that the state's error while prejudicial was so grossly improper as to deny him a fair trial. So ultimately, Judge Tyson concurred in the majority opinion, denying relief on appeal.
[00:03:48.973] [SPEAKER_00] Joe, what was striking for me about this case is that this is not an instance where the prosecutor is standing up in closing argument and saying something along the lines of, ladies and gentlemen, if he's not guilty of this, all he had to do was get up and tell you so. But he just sat there stone silent. I mean, it wasn't really done in an accusatory way. I mean, the only thing the prosecutor is saying is reminding the jury in closing or acknowledging that he does not have have to testify, but there is no evidence essentially rebutting the state's case or disproving our allegations. And yet, I mean, even with just sort of that one passing kind of neutral reference, the court here is still saying, nevertheless, we're calling that error, right?
[00:04:27.314] [SPEAKER_01] Yeah. I mean, this is an issue that has come up, not frequently, but a good number of times in North Carolina. And the appellate courts tend to be, they analyze this pretty nicely. I mean, any explicit reference to the defendant's failure to testify, even in the context as here, where the prosecutor reminds the jury of his constitutional right, now he doesn't have a right to, he doesn't have to testify, even that is going to rise to the level of a violation under that U.S. Supreme Court case. Now, distinguish that from that body of cases that have upheld closing arguments where the prosecutor is permitted to say something like, the state's evidence has been uncontradicted, right? The state's evidence is supported by the physical evidence at the scene. You've got experts testifying in the state's favor, and there's been no evidence to contradict the state's showing. Typically, I think a prosecutor can get away with that. But when you venture into the area of actually mentioning the defendant's failure to testify, even by saying that the defendant has a constitutional right not to testify, then you're going to run afoul of this rule in Griffin.
[00:05:22.255] [SPEAKER_00] And you know, Joe, the way you prefaced that was saying, distinguish that from this other situation. Candidly, conceptually, that's a little bit hard for me to do, right? I mean, you know, we know he's got a Fifth Amendment right to remain silent, and we don't talk about that at all. But But then again, I mean, Joe, he also has a Sixth Amendment right to a speedy and public trial, right? And at a public trial that it would be entirely the state's burden to prove his guilt beyond a reasonable doubt. But I mean, as you said, I think we could make comments in the closing to say something along the lines of there's been absolutely no evidence presented that would rebut the state's case or something. I mean, sort of commenting on the fact that the defendant has not put on evidence. And yet it seems like we're treating that very differently from this specific issue of commenting on his right to remain silent.
[00:06:02.692] [SPEAKER_01] That's right, Jonathan. I looked into this just a little bit and the treatises has pointed out that U.S. Supreme Court opinion from the 60s, Griffin v. California, has been criticized for precisely that reason. I mean, commentators point out that the Fifth Amendment right not to divulge information to the police or not to be forced to testify at trial, it's maybe a little bit difficult to reconcile that with the rule that the prosecutor can't say anything about the defendant's failure to testify at trial. Nevertheless, the US Supreme Court has consistently upheld that rule and there is a body of North Carolina case law applying that. So that's kind of, we're stuck with that rule. So moving forward, sort of the guidance for prosecutors is you can comment on the strength of the state's evidence, but it's probably a good idea not to mention anything about the defendant's right to testify or his failure to testify
[00:06:47.932] [SPEAKER_00] And, you know, Joe, this sort of follows in line with several cases we've seen over the last few sets of appellate opinions dealing with some of these prosecutor closing arguments. And I think we've got a few more cases coming up in the near future touching on that as well. So, yes, certainly a good reminder for prosecutors about being mindful of exactly how we're phrasing things, even when it maybe to us feels like we're just making a neutral or even a fair comment to the defendant about that.
[00:07:10.903] [SPEAKER_01] Right.
[00:07:11.305] [SPEAKER_00] I think the second case we had on was State v. Tadlock. Jonathan, tell us about Tadlock. This is another case from the Court of Appeals on July 2nd of this year. This is a case out of Haywood County, and it all relates to an assault incident that happened on March 18th of 2022. The defendant, ultimately for everything that happened, was indicted for first-degree kidnapping, first-degree forcible rape, assault with a deadly weapon with intent to kill or inflict serious injury, two counts of assault by strangulation, and attempted first degree murder. The victim in the case is referred to by the initials K.S. K.S. and the defendant were married and living together with the victim's teenage daughter. There had been some conduct sort of leading up to this incident. The victim at trial talked about how the defendant had begun acting very distant and quiet, but it all ultimately came to a head on this day on March 18th. The victim picked the defendant up from work and the two got home at about 11 p.m. The child, T.S., had left earlier in the day to go stay with her biological father, but once the defendant and the victim got inside the house, the defendant began drinking. The victim, K.S., just went to bed as soon as they got home, essentially trying to stay away from all that, but woke up at about 1.30 in the morning when the defendant came into the bedroom, screaming at her. She tried to ignore him. He left for a while and went outside, but then came back a few minutes later with a loaded gun, pointing it at the victim while she lays in bed and says, get up or I'm going to make you get up. She complies. He holds the gun against her head, makes her do things like go into her daughter's bedroom to get a necklace that they had given to her for her birthday and essentially forcing the victim to smash it with a hammer. when she tries to resist the defendant is grabbing her by the hair dragging her around to go get the hammer ends up pinning her against the stove screaming at her to destroy the necklace and so this assault then sort of escalates to where the defendant at different points is wrapping his hands around her neck and starting to choke her and just wouldn't stop they fall down to the floor at some point he puts the gun down and she pushes it across the room but then he's choking her again using his arms and actually strangling her until she falls unconscious When she finally regains consciousness, he actually helps her up and apologizes and gets her pain medication and so forth and goes into the bedroom. He tells her that she needs to get some rest and he would sleep on the couch. But for her own safety, to keep an eye on him, and because she knows if he's laying on the couch, then she won't be able to get to the door to get away, she instead actually recommends that they both go into the bedroom. When that happens, he initiates a sexual activity with her. And she testifies that in the end, she sort of felt like she had to go along with that because she would live through what she thought was going to live through. So she just did whatever the defendant wanted and essentially submitted to that unwanted sexual activity. Finally, the defendant falls asleep. The victim is able to run out and go to the hospital. As I said, he was charged with a number of counts, and the jury ultimately is convicting him of the majority of those offenses. He ends up getting sentenced to 73 to 100 months on the kidnapping, 6 to 17 on assault by strangulation. The counts go on and on, all sentenced to run consecutively. And he's arguing about a number of issues now on appeal. And a couple of these in particular I thought were worth talking about. The first one of these is that he's arguing... against the fact that he should have been given a voluntary intoxication instruction to the jury at trial. And the appellate court looks at that and agrees that this did not warrant the voluntary intoxication instruction. They sort of lay that out in their analysis. They talk about how to get that instruction. The burden is on the defendant to produce substantial evidence that would support a conclusion by the judge. that he was so intoxicated he could not form the requisite intent. They go on to explain that evidence of mere intoxication, however, is not enough to meet the defendant's burden of production. Instead, they have to show that the defendant's mind and reason were so completely intoxicated and overthrown as to render them utterly incapable of forming specific intent. And we just don't have that here. There's undisputed evidence that the defendant was indeed drinking and that he may have even been intoxicated that night. But to get this jury instruction in terms of negating intent, We are far away from reaching that standard of showing that, you know, that his mind and reason were completely overthrown, rendering him incapable of forming specific intent. And they talk about some evidence that, you know, directly cuts against that, that, yes, he was engaging in this inexplicable behavior immediately before attacking the victim. And his demeanor and behavior has sort of been off for the week before that. But at the same time, you know, immediately after the assaults, he's doing things like helping her get up off the floor, cleaning her up, going to get her some pain medication, apologizing. And, you know, this apology, if nothing else, they point out indicates that he did appreciate the nature of his actions. You know, I mean, you can hardly say I was so out of my head, I didn't know what was going on. If you're then immediately afterwards apologizing for what you've just done, acknowledging that you knew that it was wrong. So they agree with the trial court that he was not entitled to a voluntary intoxication instruction in the case. But the next issue that we want to talk about is this question of the defendant's motion to dismiss
[00:12:12.710] [SPEAKER_01] Well, Jonathan, can I pause you just a minute? In terms of that voluntary intoxication, I feel like that's an issue that comes up every once in a while. I don't think I can recall a single case where that has worked. I feel like this is a pretty high bar to get that instruction for voluntary intoxication. Would you agree
[00:12:25.927] [SPEAKER_00] with that? I think it is, Joe. I mean, the cases, what was it, Meter, I think, a few years ago, something like that. I mean, same thing that... even indicating that the person was, I mean, like we would say, intoxicated. I mean, you know, it's not just were you or were you not intoxicated? And I think maybe that's sort of what you would immediately think. Hey, it's the voluntary intoxication defense, right? But I think the case law makes it clear that we're talking about something way beyond that. We're talking about somebody who is literally just out of their mind, right? I mean, that their mind and reason are completely overthrown. And that is not this, you know, when he's engaging in this specific course of conduct about, you know, get the hammer and ordering her to smash the necklace and apologize apologizing and helping her get off the floor, get cleaned up. I mean all that indicates that he's here in his mind. He's not acting as an
[00:13:08.437] [SPEAKER_01] automaton.
[00:13:09.118] [SPEAKER_00] Exactly, exactly. But then that second issue that was raised was this question about how he was convicted of multiple different assaults. Was the evidence here sufficient to support the idea that there were indeed multiple different assaults? And this is something that was sort of developed in our case law over the last few years. Those cases like State v. Robinson, State v. Duke, And the court has sort of adopted this modified approach to deciding that. It's no longer something, you know, that we've abandoned State v. Rambert, for example, in the assault context. It's not like with Rambert for shooting a gun, every pull of the trigger. You know, we're not going to say every throw of a punch or every kick is a separate assault. Instead, under this sort of newer doctrine under Robinson and Dew, the court has to look beyond the number of physical contacts with the victim to determine whether more than one assault has occurred so that we could charge and convict him of that. And instead, what they're looking for now is what they say is substantial evidence that a distinct interruption occurred between the assaults. And for the state's sake, I'm glad to see it, but this is one you could imagine going different ways. Was this really multiple assaults that are happening sort of within the home in this one, you know, sort of extended episode. But the Court of Appeals here agrees with the state and with the jury at trial that the evidence as presented did provide sufficient evidence from which the jury could find that there was this distinct interruption in the events. And they said that the testimony tended to show not only a discernible sequence of events, but also evidence of a change in location. And That's, I think, what was so interesting and striking to me about this. When we talk about, in this case, a change of location, we're not talking about one assault happening in the car, in the driveway, and then we get inside the house and there's some other assault happening there. I mean, here, for example, when we're talking about the change in location, what they're talking about is going a change from across the kitchen and from standing to lying on the floor. And then they say, in addition to different methods of the attack. You know, for example, at one point, the defendant is using his hands to strangle the victim. And then on another portion or part of the assault, he's using his arm to strangle the victim. And so, you know, I think that is a really interesting case for prosecutors. I This, I think, is a fairly liberal interpretation of that distinct interruption. It's all that night. It's all in the home. But when we're just talking about standing versus lying or in the kitchen to another place or using your hands versus your arm, those are enough to justify what they call a distinct interruption warranting multiple different assault convictions.
[00:15:46.009] [SPEAKER_01] This is going to become a contest, right? The place that a prosecutor is going to have to fight this. I think the first way that it comes up in the Court of Appeals opinion is a sufficiency of the evidence challenge. Is that right, Jonathan? So this is going to be at the close of the state's evidence. The defendant stands up and says, Your Honor, we acknowledge there's sufficient evidence of an assault, but we don't think there's sufficient evidence of this break that would give rise to more than one charge.
[00:16:07.846] [SPEAKER_00] I think you're exactly right. I mean, the defense would be, I think, contesting this early and often, right? I mean, that they would be challenging it at the trial level and then, like in this instance, challenging it again on appeal.
[00:16:17.057] [SPEAKER_01] Well, not just that, but I mean specifically at the motion to dismiss on the basis of sufficiency of the evidence stage, but also, and it comes up here as a sentencing issue, right? And those are kind of two different claims here arising out of the same problem of how you distinguish one assault from two assaults or three assaults, depending on a break in the sequence of events,
[00:16:36.383] [SPEAKER_00] right? That's exactly right. And, you know, Joe, we're talking about this case, Tadlock, but, you know, when you mentioned the sentencing, I think that's, I would sort of jump ahead. There's another case from the same set that we're not going to go into great detail about, but another case, State v. French from Onslow County, was decided sort of along the same lines as Tadlock. And this is another one where it's an assault that's happening sort of in the home, and the defendant, it's similar conduct, I guess you could say, where he's at one point shoving the victim up against the stove, and then another point pushing her into another place, and then there's an assault that's happening, sort of they say, in the kitchen and then you know another another portion of it is happening in this other area essentially between the kitchen and the living room but the court kind of gives a similar analysis in that french case to what we're looking at in tadlock where they're concluding that the evidence does support the state's contention that there's this distinct interruption uh and they in that case they talk about one of the distinct interruptions essentially being what they call this interruption in the momentum of the attack you know and and then also this change in location when the victim escaped from the defendant and ran from the kitchen stove area towards a different area between the kitchen and the living room. So it doesn't have to be far. Apparently. I mean, I think these are a couple of cases indicating that we're not talking about a great distance. But then in that case, they more specifically get into that sentencing issue that I think you were asking about in the French case, where exactly there, the defendant was convicted of three different kinds of assault. and then was making the argument on appeal of, but wait, you know, I mean, don't all these statutes say that, you know, you can be punished as a, you know, for, I don't know, a class H assault by strangulation or a class E assault with deadly weapon inflicting serious injury. But all, you know, those assault statutes have that language in them about unless the conduct is covered by another assault provision, you know, providing for a more serious punishment. And so the defendant in French was making that argument of, you sentenced me here for three different offenses. I'm getting three different sentences for what is essentially all one incident. Shouldn't that be precluded by that statutory language? And the court in that case is saying, no, that's not what we're talking about. Because we've just decided that it was correct that there were in fact three distinct assaults and therefore you can absolutely get these three consecutive sentences imposed for those three counts. This is not where if there were truly one assault, and maybe we are proceeding or asking the jury to find that it could be both or either, an assault with a deadly weapon inflicting serious injury, or an assault inflicting serious bodily injury, or perhaps both. And that's, I think, what those cases and statutes are addressing is that, I mean, strictly as a Blockburger double jeopardy issue, there might be an element in each that's not in the other. And so they are two different offenses. But then by statute, we've said, but I mean, at the end of the day, it's one assault. We're going to just impose the one judgment. But that is not where we are if we've made this finding that we really do have these three separate and distinct assaults. assaults.
[00:19:34.523] [SPEAKER_01] We've got a recent bulletin out about double jeopardy and that issue comes up with that language that comes up, like you said, in a lot of the assault statutes, except as provided by another statute providing greater punishment. And it's not limited to the assault statutes. It comes up quite a number of times. And that language, I think, has been interpreted to mean that if, like you said, Jonathan, you have a greater offense and a lesser included, that language will generally preclude sentencing for both because the double jeopardy analysis there involves a determination of legislative intent. But I think French is going to stand for the proposition that where you have what are for purposes of double jeopardy separate assaults, then that language about providing greater punishment is not going to preclude punishing the defendant for each separate instance of assault where there is sufficient evidence of that break in the sequence of events so that you've given rise to multiple charges.
[00:20:21.696] [SPEAKER_00] Joe, returning back to Tadlock, just to sort of close the book on this, there were a couple of other arguments. The defendant was making some arguments dealing with whether the verdict sheets or what's presented to the jury should have called for more explanation of what exactly were the physical injuries of these different assaults. And the court is finding there is sufficient evidence of the injury required to support the convictions. And then they felt like that there was a sufficient distinguishing between the different assaults in the way that it's charged and in the way that it's presented to the jury. For example, having that language in there saying, on this count, we're talking about the assault involving strangulation by the hands. And then on this count, we're talking about assault by strangulation with the arms. So it was sufficiently indicated to the jury, are we unanimous about this assault versus that assault? We can all know what we're talking about. So I think that's a good tip for prosecutors. Following up on the case that we were talking about to begin with about comments by the prosecutor in closing arguments, there was a comment sort of made by the prosecutor in here referencing the idea, I think sort of to that voluntary intoxication point where the prosecutor made a comment along the lines of that the defendant was an alcoholic, that a person who is an alcoholic could still sort of be conscious and aware and know what they're doing. And the defense is arguing that that was grossly improper and that the trial court should have intervened ex marimoto. But they disagree with that here, that even if that argument was improper. Well, the argument
[00:21:42.477] [SPEAKER_01] was this is relying on facts outside of the record, right? Because I think the prosecutor was making this kind of generalization about functional alcoholics. They continue to understand the consequences of their actions. And the defendant, I mean, points out, look, you didn't put on any testimony about the practices of functional alcoholics.
[00:21:57.934] [SPEAKER_00] Exactly. The prosecutor made these comments about alcoholism, saying that alcoholics can still function and know right from wrong, even with a high blood alcohol level. And that may well be true, but we don't have expert testimony establishing that or other witness testimony. So, I mean, I think the takeaway there would be to steer clear of those comments. But in this case, with all the other evidence, they could not agree that that was prejudicial. And then the final point, there's a lot to unpack in this case, but the final one is that as part of the sentencing in this case, the defendant also received a $25,000 fine and is making arguments on appeal that the judge did not properly exercise discretion in assessing that $25,000 fine. And I think it's sort of drawing parallels to how we would go about deciding how much a defendant's going to have to pay in restitution. So, you know, the defense is making references to these statutes like 15A, 1340.36 that talk about, you know, deciding how much can the defendant realistically pay and that we've got to factor that in. But The court distinguishes that and says, we're not talking about restitution, we're talking about a fine. That is left up to the court's discretion. Those statutory obligations under 1340.36 do not apply to the assessment of a fine. And so they say, ultimately, they're unable to identify any basis for saying that the trial court's imposition of that $25,000 fine against the defendant was an abuse of discretion or otherwise unlawful. So that stance. So I think that's an interesting thing for prosecutors to remember. You know, we don't necessarily always think of a fine as being a common punishment for something like an assault. But I think this is a good reminder that's in the court's discretion. And, you know, we're deciding that differently than something like restitution. Those are two separate issues.
[00:23:36.940] [SPEAKER_01] I think the last case we've got on for today is State v. Wingate. This was a case out of Wake County, and this is the one that I made reference to in the introduction to this episode. In September of 2017, the defendant forced his 12-year-old son, who's called James in the opinion, to pull on his, that is the defendant's penis, asked James to pull his own pants down, and the defendant inspected the defendant's penis. And then later, it's not exactly clear from the opinion when this happened, the defendant forcibly penetrated James' anus with his, the defendant's penis, about 12 times. After James revealed the abuse to a therapist, the defendant was charged with four counts of indecent liberties and one count of first-degree statutory sexual offense. The matter came on for trial by jury in July of 2023. James testified about the sexual abuse. And then at trial, the state put on two expert witnesses. One, Dr. Elizabeth Whitman, a pediatrician, conducted a physical examination of James. She testified that there was a lack of physical findings, but that that lack of physical findings was consistent with James' disclosure of sexual abuse. And then another expert witness, Mary Ann Portz, an expert in trauma therapy, diagnosed James with post-traumatic stress disorder, PTSD. She testified that James's symptoms were consistent with the trauma that he had reported. The defendant was convicted of all charges and appealed. Before the Court of Appeals, defendant raised basically five issues. The Court of Appeals ends up addressing only two of those. One was whether the indictment for first degree statutory sex offense provided sufficient notice of the offense charged. And then secondly, whether the trial court plainly erred by allowing two expert witnesses to vouch for the credibility of the victim. Addressing the second of those issues first, the Court of Appeals posited that the trial court errs in allowing an expert to testify that a prosecuting witness is believable, credible, or telling the truth. In child sex cases, that gives rise to the rule that an expert may not testify that sexual abuse actually occurred absent physical evidence of abuse. Here, witness Myriam Portz testified that James' symptoms of PTSD were consistent with the trauma he had reported, and the Court of Appeals said that the trial court erred by allowing that testimony. Dr. Whitman testified that the lack of physical findings was consistent with James' disclosure of sexual abuse. The Court of Appeals said the trial court erred by allowing that testimony as well. The Court of Appeals concluded that the impermissible vouching rose to the level of plain error requiring a new trial. It noted in support of that conclusion that there was no physical evidence and the state's evidence was primarily the testimony of the victim. Turning to the second issue, well, the first one raised, and this is a little funny because this couldn't happen before State v. Singleton, which was that case in 2024. where the North Carolina Supreme Court held that indictment defects are no longer jurisdictional. So the court of appeals here addressed the sufficiency of the indictment after addressing the evidentiary problem. The court of appeals posited that a sufficient indictment requires, among other things, that there is such certainty in the accusation as to enable the defendant to prepare for trial and the court to pronounce judgment. Here, there was some confusion between the prosecutor and the trial court as to precisely what the defendant was being charged with. First degree statutory sex offense under General Statute 14-27.29 is a lesser included offense of statutory sex offense with a child by an adult under General Statute 14-27.28. Here, the indictment alleged all the elements of statutory sex offense of a child by an adult, but identified the offense by name and citation as first degree statutory sex offense. The jury was instructed on the elements of the greater offense, but then the verdict sheet identified the offense as first degree statutory sex offense, the lesser included offense. Finally, defendant was sentenced for statutory sex offense of a child by an adult, but the judgment identified the offense as the lesser included. Given this confusion, the Court of Appeals concluded that the indictment, even though it alleged all the elements of the greater offense, failed to provide such certainty as to allow the defendant to prepare for trial and the court to pronounce judgment. It went on to say that under Singleton, again, that was that North Carolina Supreme Court case from 2024, the defendant has to show prejudice. Here, the defendant was prejudiced, the Court of Appeals said, by the insufficient indictment. Difference in length of the sentences he could receive under the two different offenses is significant, and at the very least, may well have played a role in his decision to plead not guilty. Therefore, it said, while we ultimately hold that the defendant is entitled to a new trial due to the error in the expert witness testimony, we also place the state and the trial court on notice that defendant's conviction would have been vacated if we were required to rule on the sufficiency of the indictment and urge them to ensure that any errors of notice are addressed. So basically, given the confusion at the trial between the trial court and the prosecutors to what precisely, which offense they were pursuing against this defendant, the Court of Appeals said there would have been a violation in this indictment. So told the prosecutor basically to fix this when it goes back for retrial.
[00:28:36.673] [SPEAKER_00] So, Joe, I'm just sort of trying to square this with what I thought was generally a pretty forgiving standard on, you know, correctly listing the statute in the pleadings, right? In that 15A, 924, I think it is, you know, where it says, yes, you should list, you know, cite to the statute of the offense we're saying that the defendant has violated, but Failure to correctly cite that is not going to be grounds for finding that the indictment is fatally defective. That seems like singleton to its core. I mean, it's got some typo in the statutory citation. You know what I meant. It's not the end of the world. I mean, is this upsetting that or do you think this is just bigger than that?
[00:29:13.461] [SPEAKER_01] That's the big question, Jonathan, and we are in this brave new world after State v. Singleton trying to navigate how are we going to address these indictment problems. Remember, Singleton left open the possibility. It says, okay, these indictment defects are not going to be jurisdictional anymore, but it leaves open the possibility of the defendant raising claims of, one, a statutory violation, which apparently this was, but we know under the statute just a mere violation. and the citation to the statute doesn't matter. But Singleton also recognized that there could be a constitutional problem in the failure to provide adequate notice of what the charges are. And that's, I think, where Wingate kind of hung its hat. It did seem to go a little bit beyond the four corners of the document because I'm not aware of any other case that has found an indictment failed to provide sufficient notice when it alleged all of the elements of the offense. But the Court of Appeals is looking to kind of the confusion surrounding this whole prosecution from the get-go, where the trial court and the prosecutor are referring kind of interchangeably to these two different offenses. And what it says was it was uncertain under the indictment which offense defendant had been charged, quote, as was made clear by the confusion of the trial court. So I think under the normal indictment rules as we understand them, it's kind of a hard sell that this indictment didn't provide sufficient notice where it provided all of the elements of the offense. But I think given the greater kind of confusion in this case as to are we going with a greater charge or the lesser included? What are we instructing the jury on? What are we sentencing the defendant for? The Court of Appeals said, look, we're not reversing on that basis because we've got this other evidence problem, but you need to kind of get your ducks in a row when this goes back down for retrial.
[00:30:44.636] [SPEAKER_00] And so, I mean, I know this is a challenge for a lot of prosecutors. Those, you know, the statutes, they've been recodified multiple times and there's sort of a lot of overlap. But I think if nothing else, a good cautionary note, right, that we just need to triple check that before we've walked into the courtroom and say that we've identified the right one.
[00:30:58.683] [SPEAKER_01] And for a statutory sex offense, you've got a kind of curious situation under the statutes where First degree statutory sex offense is not the greater offense. I'm not sure there's another example where first degree anything, there's even a greater offense than that. But for this offense in particular, statutory sex offense of a child by an adult is the greater offense and first degree statutory sex offense is the lesser included.
[00:31:21.491] [SPEAKER_00] And so then for prosecutors on that other issue, I mean, what is our takeaway then in terms of when we're meeting with these expert witnesses prior to trial and we're trying to explain to them what you can say in answer to my questions, what you can't say in answer to my questions, where are we landing on what we can tell them when we've got this kind of a situation, right? Where we think there's your opinion, it is consistent, it is not inconsistent, that there would be no abuse given what's been disclosed. Can you coalesce sort of a takeaway of recommended phrasing? The way the
[00:31:49.031] [SPEAKER_01] Court of Appeals frames that rule, right? absent physical evidence of abuse, an expert is not permitted to say sexual abuse actually occurred. I think the takeaway would be for these experts who are providing diagnosis and descriptions and explaining their findings with regard to what the victim has said or what the victim has shown, maybe let the findings speak for themselves and don't make the additional step of saying this is consistent with the allegations of sexual assault. I think that's really the problem that arose here. the expert can't testify that sexual abuse actually occurred absent physical evidence to support that conclusion. You can get pretty close to that line, but as soon as they start implicating that the victim is telling the truth, then you get into some dangerous territory.
[00:32:30.808] [SPEAKER_00] And, you know, I mean, Joe, even here, like where they're referencing back to that earlier case, State v. Davis, and, you know, they're talking about how the witness can't say yes, that the absence of physical evidence is consistent with sexual abuse. But then they go on to say, well, recognizing it may be permissible for the state to offer expert testimony that the lack of physical evidence does not necessarily rule out that sexual abuse may have occurred. And I know that's the fear prosecutors, I think, are dealing with, right, is a jury might be confused. I mean, well, if this happened, how can it be that there is no physical injury or physical evidence of the abuse? I think we could still address that. But until we get maybe some further guidance on this, addressing it with that more cautious or conservative phrasing, it seems like would be a safer way to go.
[00:33:12.766] [SPEAKER_01] And the other thing that's worth pointing out, there was a dissent in this case. I don't think that necessarily any longer gives the state a right to appeal. But as I pointed out at the very beginning, there was a stay allowed on this case, which means it looks like the state is going to seek review if they can't get review directly based on that dissent. So this might not be the last word on this.
[00:33:30.936] [SPEAKER_00] Well, we'll certainly stay tuned and see if there's other developments in sort of figuring out that phrasing.
[00:33:35.564] [SPEAKER_01] That's all for today. In this episode, we discussed State v. Gilbert, concluding the prosecutor's reference to the defendant's decision not to testify was error, but that the error was harmless. State v. Tadlock, upholding the defendant's conviction for two separate counts of assault by strangulation. And State v. Wingate, awarding the defendant a new trial where two expert witnesses testified that their findings were consistent with the victim's disclosure of sexual abuse. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We're 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 a later 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.
[00:34:34.880] [SPEAKER_00] And I'm Jonathan Holbrook, and 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. Thanks, Joe. Sounds good. Hope it helped.
[00:35:04.376] [UNKNOWN] Thank you.