Episode 6: Lancaster, Myers, and Teel

[00:00:05.870] [SPEAKER_01] The power to punish contemptuous behavior is said to arise from the inherent power of the court. But what is the unit of prosecution for criminal contempt? The Court of Appeals recently addressed that issue in a case called State v. Lancaster. The Court of Appeals there held that a defendant who used profanity twice during the course of a single rant could be adjudicated guilty of two counts of direct criminal contempt. We'll be discussing that case today along with two others. 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. By statute, a prosecutor may be appointed to, quote, represent the court, unquote, in a plenary proceeding for contempt. John, that's not what happened in Lancaster. Tell us about that case.
[00:01:01.496] [SPEAKER_00] No, that's not exactly what happened here, Joe. This was more of a direct criminal contempt situation. This is an opinion we got from the Court of Appeals on November 19th of 2024. It related to an episode that happened in the courtroom back in September of 2023 in Craven County. The defendant was there in court expressing dissatisfaction with his attorney, but ultimately deciding that he would go ahead and proceed with counsel, but then also asserting that he wanted to have his case heard on this date that had been discussed previously of October 9th and 2023. The trial judge there basically said that the defendant's counsel would remain in the case, but following a discussion about some discovery materials indicated that the defendant's case would be continued until November 28th of 2023. And the defendant, who was dissatisfied with both his lawyer and his new court date in the Court of Appeals' words, urged the trial court to reconsider, leading to this back and forth between the defendant and the judge in court. And ultimately, as you mentioned, Joe, there is some profanity that is happening there in the courtroom the defendant is using a number of swear words and the court is discussing or attempting to discuss with him about his attorney saying for example well if you want to fire him you can i'm not going to set the case for october 9th the defendant then says pardon the language fuck y'all anyway and the court says all right the defendant says fuck y'all and trumping all over my rights and the court then is trying to interrupt him wait a minute sir the defendant says i'm good man and the court says sir sir you're not good and then proceeds the defendant then proceeds to swear at him again and the judge is telling him that you just did that you're going to just say F him because just go sit man I'm good and the court is saying sir you've already used the F word you're not good this sort of back and forth is going on and on between the judge and the defendant And at the end of that exchange, the court then says, all right, the court finds the defendant's use of profanity in this courtroom has disrupted the proceedings. He's found to be in contempt of court. The defendant interrupts him. The judge says he'll do 30 days, gives him an opportunity to be heard. And then in response to that, the defendant is swearing again. The defendant says, I'll appeal that. Let's go, man. I don't want to hear this shit. I don't want to hear this shit. And then the court proceeds through the same discussion about he's used profanity again in the courtroom. That's also contempt, another 30 days, anything you wish to say, and so forth. So based on all of that, the trial court enters a written order for each contempt adjudication, being the two of them with a 30-day sentence for each one. And as he pledged, the defendant appeals. And that's what's before the North Carolina Court of Appeals. And the argument being raised on appeal here by the defense is that this term behavior in the general statute 5A-11A is— is ambiguous and their point is that it's a repeated use of profanity within a short period of time and could reasonably interpret it as one episode of contempt. Joe, I think in your introduction you even sort of characterized it as almost like a single rant, essentially, that he's using this profanity with the court, upset about his court date and the situation with his attorney. But the Court of Appeals doesn't see it that way. The Court of Appeals, they actually go back and quote from Merriam-Webster, and they say behavior is defined as the way in which someone conducts oneself or behaves or an instance of each behavior. And that, I think, is a critical distinction that the Court of Appeals is looking at here. In other words, as they explain, this really is two separate incidents of behavior by the defendant. And they point out that, I mean, if you look back at the transcript, He was adjudicated in contempt for his use of profanity in his first response to the trial court's refusal to give him the earlier court date that he wanted on the matter that they were there for. And then there is a second contempt adjudication based on his reaction to the first contempt adjudication. So, I mean, in a sense, it is all one larger thing. I don't know, incident or exchange going on with this sort of profanity and disrespect towards the court. But it is a separate incident happening after the first adjudication of contempt. And so the Court of Appeals here looks at that and says they could view that as essentially being two instances of behavior.
[00:05:03.562] [SPEAKER_01] So, John, it's not based on the number of times he swears at the judge. Is that right? But the number of times that the judge was able to kind of interpose and have this sort of summary hearing, give the defendant an opportunity to be heard, held them in contempt, and he continues on with this profane rant.
[00:05:19.019] [SPEAKER_00] I think that's exactly right, Joe. And I mean, I'm not saying that it would be impossible, you know, that all of this could have been a single incident, but yeah, here, I mean, we really do have that exchange happening with the judge, you know, that he's just said, F this, F that, F you, and the judge has gone through this process of saying, that's profanity, you're disrupting court, I'm adjudicating you, 30 days, opportunity to respond. And then after that, there is the second episode where he uses profanity again, basically upset about the first contempt, and then the judge is finding him in contempt again. and the court of appeals there says each of defendants outbursts were separate episodes of behavior delineated by separate adjudications of contempt under general statute 5a 11a and separate notices of appeal so yeah i mean i don't think we're saying that if a defendant were to stand up and truly deliver as you said a single rant with 11 different instances of profanity i don't think a judge could say that's 11 counts of contempt i mean that would all be one rant But even though it's in a short period of time, when you look at what happened, it really is delineated into a couple of different
[00:06:20.915] [SPEAKER_01] instances. What do you make of the fact, it seems to me the disposition turns on this sort of statutory construction, that they're looking at the statute about direct criminal contempt. That's a little unusual, isn't it? Because there's older North Carolina Supreme Court authority that recognizes that a court's power to adjudicate contempt arises not from statute, but from the inherent power of a court.
[00:06:40.576] [SPEAKER_00] Yeah, you know, they mention a little bit about that in the opinion. There's a part in the opinion where the Court of Appeals says that the contempt statute was enacted to protect trial court's ability to keep peace in the courtroom and punish those who intentionally interfere with the administration of justice. I don't disagree with you that the courts, I think the idea behind contempt is, as you say, that inherent power to keep the peace and regulate and do the business we need to do. But at the same time, I think an acknowledgement that it is, to some extent, regulated by the statutes we have. For example, you couldn't adjudicate him of being held in contempt and then lock him up for 15 years. There's going to be statutorily prescribed punishments and so forth. I think here, they are. It is the court's inherent power, but at the same time, in essence, funneled or interpreted through these statutes and applying that interpretation of what behavior means here, they're saying that these are two different instances. And this is, I think, also sort of an interesting counterexample to a number of cases we've seen recently where this idea of if it's unclear the tie goes to the runner right the rule of lenity that if it's not totally clear whether this was one instance or two that the rule of lenity would say let's give the benefit of the doubt to the defendant that we would treat it all as one incident but i think this is a somewhat exceptional circumstance where we've literally gone through the whole adjudication you know finding him in contempt issuing that uh a 30-day sentence for it and then he's giving notice of appeal and so this was i think a little bit easier for them to say we can clearly see this as two separate occasions, despite the fact that it's all really just sort of this almost a single page of transcript where it's all happening in a fairly short period of time. So no, not a huge involvement for the state on this one when it's direct criminal contempt, rather than sort of being brought in to represent the interests of the court. But certainly an interesting one for prosecutors to keep in mind, especially if you're having those kinds of disruptions happening in the courtroom, that it might be worth prosecutors or let's just say the general public or dissatisfied defendants keeping in mind that these separate instances could each and every one be punished as criminal contempt.
[00:08:42.764] [SPEAKER_01] The judge gives you an opportunity to respond and issues a sentence. You've had your warning and you better not do it again. I think that would be wise. The second case we have on for today is State v. Myers. This was a case about a self-defense instruction. The facts are a little bit confusing. On December 14th, 2021, defendant and his friend, Zarius Miller, stopped at Monroe Discount Beverage, which the opinion calls Joe's Store, where they saw two other men, Devon Bird and Raquan Neal. Defendant was speaking with Bird. Miller and Neal approached. Miller pulled out a firearm and apparently pistol-whipped Bird. Defendant then pulled out his firearm. Neil ran to his car. Defendant followed Neil. Neil pulled out a gun from the car and defendant smacked his arm down. Defendant at this point apparently is trying to keep Neil from getting a firearm out of his car. Defendant walked to the rear of the vehicle. Miller then tried to grab Neil's gun. Miller and Neil are engaged in this fight with firearms. Neal ran into Joe's store and the defendant fired his gun at Neal. Defendant testified he was not trying to kill Neal, he was just scared. Defendant fired eight times at Neal. Neal was injured, retreated into Joe's store and called for EMS. Defendant then took Miller to the hospital but did not stay at the hospital. Defendant was later indicted for attempted murder, discharging a weapon into occupied property, injury to personal property, and assault with a deadly weapon inflicting serious injury. The state dismissed the charge of injury to personal property, and defendant was convicted by a jury of the remaining charges, that is, attempted first-degree murder, discharging a weapon into occupied property, and assault with a deadly weapon inflicting serious injury. On appeal, defendant raised two different issues, one, that the trial court erred by failing to instruct on self-defense, and then two, that the trial court erred by allowing the jury to view Neal's medical records when they had been introduced but not published to the jury during the evidentiary phase of the trial. With regard to the instruction on self-defense, defendant argued that the trial court erred by failing to instruct on self-defense as to attempted first-degree murder and assault with a deadly weapon inflicting serious injury. The Court of Appeals recited the rule that a defendant who presents evidence of self-defense at trial is entitled to a jury instruction on the issue. It recited General Statute 14-51.3, which is our defensive force statute, as well as the four-factor Norris test, including the one element that the defendant believed it was necessary to kill his adversary in order to save himself. That element, incidentally, is necessary for both perfect self-defense and imperfect self-defense. Here, and the Court of Appeals recited again the evidence, the defendant heard shots as Miller and Neal were fighting with one another. He saw that Neal had a weapon. He fired at Neal. As Neal went into the store, the defendant said he was scared and believed that Neal was going to shoot him. The trial court had explained during the course of the trial that defense counsel would be able to make an argument in closing about self-defense, but the trial court felt the defendant was not entitled to an instruction on self-defense under those facts. The Court of Appeals concluded that viewed in the light most favorable to the defendant, the evidence was sufficient to support an instruction on at least imperfect self-defense, if not perfect self-defense. Again, defendant presented competent evidence tending to show he was acting in self-defense and the trial court was required to instruct on self-defense. The trial court's failure, the Court of Appeals said, was error and prejudicial.
[00:11:54.620] [SPEAKER_00] Joe, let's talk a little bit about the trial court's decision not to include that. In the opinion here, they include some of what the court actually said at the trial level. And the judge there in discussing this issue said, based on the testimony in the case law, I think I'm precluded from giving the instruction on self-defense. That's my understanding of the law. Is it... It wasn't clear to me just from the opinion itself why it was that the trial judge felt this was not just unwarranted, but actually precluded.
[00:12:20.770] [SPEAKER_01] I suspect it was based on an argument that actually appears in the state's brief in front of the Court of Appeals, but did not make its way into the opinion. And that's the argument that there is a line of cases that holds where the defendant has affirmatively disclaimed the intent to shoot the victim, right? Where he says, I did not mean to kill the victim, that that defendant has effectively talked himself out of a self-defense instruction. As I said before, under that old common law test, I'm calling it the Norris test, one element of self-defense is that the defendant believed it was necessary to kill his adversary in order to save himself. So where you've got a defendant at trial who testifies, I wasn't trying to shoot the victim, I was not trying to kill the victim, then no reasonable jury could find that the defendant who had that belief reasonably believed it necessary to shoot the victim to save himself. The Court of Appeals didn't really grapple with that argument here. It found the evidence was sufficient that the defendant was scared, that he fired at Neal as he was running back into this door, and just concluded that the trial court erred by failing to give that self-defense instruction. The other kind of question I had arising from this case, you remember just a few years ago, the North Carolina Supreme Court, in a case called McLemore, held that the legislature had abrogated the common law rule of self-defense by enacting those new self-defense statutes, among them General Statute 14-51.3. In this opinion in Myers, you have the Court of Appeals reciting the statute, a few lines later, reciting that four-element Norris test as though there is no discrepancy between the two, as though both tests are equally valid. I have some question as to whether that remains true after McLemore said that now the only way you can get self-defense in North Carolina is via the statute.
[00:14:00.524] [SPEAKER_00] So, Joe, even post this case, I mean, if the testimony from the defendant were a little more clear about I was only firing a warning shot in the air or something along those lines, then we might still argue, yeah, you're precluded. But if it's a little bit murkier like this, like, for example, this defendant testifying that as apparently he was not trying to kill Neil, I was just scared. I just shot because I was scared. Perhaps that's sort of why we land back on the side of saying there was arguably at least some evidence that would warrant the self-defense?
[00:14:33.009] [SPEAKER_01] I think that's right, John. There's enough ambiguity in the case law here, and it's certainly true that the evidence is to be viewed in the light most favorable to the defendant. The advice for prosecutors, it is always safer for the trial court to give that self-defense instruction and then to make a successful argument to the jury of why this defendant doesn't meet those elements or hasn't satisfied his burden to show that this was, in fact, a valid, justifiable use of force. Because when the state makes an argument, when the trial court chooses not to instruct the jury on self-defense, you're going to get a case like this where, as you pointed out, the evidence is not so clear one way or the other, and the court of appeals can say the defendant was entitled to that instruction. He didn't get it, and so now the state has to go back and prosecute him again.
[00:15:13.524] [SPEAKER_00] And Joe, I think the final case we were going to cover out of this set was one called State v. Teal. This is also from that November 19th, 2024. This is a case that we got out of Wake County. And I'll just sort of start with the headline. The defendant is arguing on appeal that there were essentially two errors about failure to provide a not guilty mandate for voluntary manslaughter in the jury instructions. And then secondly, ruling that a hearsay statement that was excluded should have been admitted as an excited utterance. So those are sort of the two issues we're going to be digging into. And I say that first because the facts are a little bit murky and muddled as we get through all of this. But it began back on September 25th of 2021. Eddie Morrow and his girlfriend, Sinead Davenport... had plans to go out with a group of friends. They go to a place called the Rose Bar in Raleigh, where Morrow worked as a bouncer. They've got a group of people with them, including Davenport's brother, Marcus. So the group all goes to the bar that night. When they get there, Marcus remains out in the parked car while the rest of the group goes into the bar. However, they get a phone call shortly after that from Marcus reporting that he had been jumped out in the parking lot. And so most of the group goes outside. And as Davenport is approaching the car driven by Marcus, she testifies that she did not see him, but observed a lot of blood on the car. They call that back into their final member of their group. And after Morrow learned what had happened, he also exits this Rose Bar. He's coming out now at about 2 a.m., to meet up with the rest of the group in the parking lot. Shortly after that, as Morrow begins approaching this group out in the nearby parking lot, Davenport said that she saw him start tussling with someone. It's a person who's a little bit bigger than him, a little bit darker skin, she's able to describe. And she says that Morrow and the other combatant then begin fighting up against a car, at which point she hears a gunshot. She gets down on the ground and is crawling over between the car to where she finds Morrow laying on his back, as the witness testifies, bloodied and obviously hurt. Davenport says that she covers Morrow's body with her own and then sees one of the people from this other group standing over her with a gun, a person she's later able to identify as being the defendant. And so then the defendant and this other group of three people who were with him at the time all walk away, get in their cars and drive off. Law enforcement, of course, responds. They find some shell casings at the scene, a 9mm and a .40 caliber. They begin their investigation. Detective goes to the hospital, learns that Marcus is alive with a gunshot wound to the arm. However, Morrow had died. So law enforcement examines surveillance footage. They're able to identify all four occupants of the car. one of them being the defendant in this case, and the defendant then is charged with first-degree murder. At trial, the defendant does take the stand and testify in his own defense, gives sort of his version of what happened, that he had come to Raleigh with a group of friends to celebrate a birthday. Among that group was Dwayne Tabron, Tabron's girlfriend and the defendant's girlfriend. They had also gone to the Rose Bar, but what they describe is that as they are then leaving, as they are walking back to their car, a man, later identified as Morrow, attacked Tabron from the back. The pair began to fight. The defendant went over to those two who were fighting and ultimately fired at the victim. So, with the evidence presented, the jury ultimately does find the defendant guilty of voluntary manslaughter, and the defendant then stipulated to the existence of an aggravating factor, agreed to an active sentence of 68 to 94 months imprisonment. That is the conviction from which the defendant is appealing. The two issues that I sort of forecast for you in the beginning. So the Court of Appeals begins to analyze these two issues that are being concerned. And the first question that they have is, Regarding these jury instructions on the voluntary manslaughter, the fact that there was no mandate on voluntary manslaughter about finding the defendant not guilty, they first have to decide, was that invited error? And the reason they're looking at that is because of sort of the way the jury instructions were done in the case.
[00:19:11.664] [SPEAKER_01] And remind me, John, the mandate is just the final bit at the end where the judge says, these are your potential, your menu of options?
[00:19:19.034] [SPEAKER_00] That's exactly right. They're not, the defense is not contesting that they were instructed incorrectly on the law or that there was not a not guilty option on the verdict form, but just that in the mandate at the end of that particular charge, that it did not tell the jury, if you do not find these things, then you would find him not guilty. Although that was said for the other charges presented to the jury regarding first degree or second degree murder. But this issue about was it invited error, that's coming up because of the way that it was handled, which was that when they got to that stage in the trial, the judge had sort of a first set or draft of instructions that are then put up on a screen in the courtroom. You know, he's asking for feedback from the attorneys, for the prosecutor, as well as from the defense attorney. So they're making their comments, their suggestions, their objections. They break for the evening, and then when we come back the next morning to continue the trial, The judge actually recaps some further email exchanges that have been going on overnight with additional suggestions and comments and objections. And so it's sort of a collaborative or cooperative process, essentially, in drafting these jury instructions. And so the issue the Court of Appeals is struggling with is, If everybody was involved in working on this and there is something that was arguably error that was apparently left out, is that invited error by the defendant because you were a part of drafting these instructions? Their answer to that question based on case precedent is no, that it was not. But they do find that he did. impliedly consent to those jury instructions by being a part of it. In other words, it's not something the defendant specifically and individually asked for, but with all parties involved in drafting it, you're aware of it. You're participating in crafting these instructions. And so when, as they say, when defense counsel worked collaboratively with the state in crafting the voluntary manslaughter instruction, and as such, any deviation in the pattern instruction was one to which the defendant impliedly consented and then furthermore failed to object when it was actually read out to the jury. What all of that means, Joe, is sort of setting the stage of what kind of error are we reviewing for? What are we looking for here? What would the defendant have to show? And based on the fact that it's not invited error, but nevertheless it is impliedly consented to and failed to object, It means they are reviewing it for plain error, which means the defendant would have to show a fundamental error occurred at trial and would establish prejudice. And here, the court finds there was no prejudice. Yes, there was something missing from these jury instructions at the end of the voluntary manslaughter instruction, But they point out that the court did give the proper mandates, final mandates on first degree and second degree murder. It did set forth an option of not guilty in other parts of the instructions, specifically provided that one of the four possible verdicts the jury could reach was not guilty, said that the defendant would be not guilty of any murder or manslaughter if he was acting in self-defense and so forth. And so the court says that the presence of all these other factors demonstrates evidence This error, this failure to specify the not guilty mandate as to one of those charges, the voluntary manslaughter instruction, the court concludes had no probable impact on the jury's finding of guilt. Now,
[00:22:22.305] [SPEAKER_01] that might have been different if the defendant had objected, right? This is not going to be a good basis for a prosecutor to argue if off chance this comes up at trial and the defendant wants the jury to be re-instructed. This is a way of analyzing it under plain error for probable impact. Certainly the safer thing to do if the defendant objects at trial would be just to re-instruct the jury properly.
[00:22:41.772] [SPEAKER_00] Would you agree with that? I would completely agree, absolutely. I think the judge could give a curative instruction. We've got some good case law on that. They'll be presumed to follow the instructions. If we needed to clarify one part that something was left out, I think that would certainly be a safer way to go. or if it were brought to your attention during this charge conference that evidently extended through the night with emails back and forth and so forth, if it comes to anybody's attention that we've left something out, then yes, for goodness sake, let's try to get it right. But here, in this instance, given all the other clear evidence that the jury was aware that they could find him not guilty of voluntary manslaughter, they're finding that he's failed to show any actual prejudice, any probable impact on the jury's finding of guilt. So That's sort of the first issue. The other issue that's really coming up is this question about an excited utterance. I know I threw a lot of names at you in that factual summary, but the defendant was arguing on appeal. He wanted to offer a hearsay statement from one of the people from his group, Tabron, that he allegedly made what the defense would characterize as an excited utterance, saying, I shot him. And back at trial, when the defense had wanted to offer this evidence, the judge had excluded it, but they did offer a proffer, taking the defendant on voir dire about what the statement would have been. And the defendant would have testified that this other person, Tabron, who shot allegedly the deceased victim, that Tabron, in the car, driving away from the parking lot, said, man, I shot him, I shot him. I ain't even mean to. I don't know what happened. He was like, I'm sorry. I'm sorry. He said he shot him. And then the defense attorney asked the defendant how this person was acting as he said it. And the defense said or would have said if allowed to testify in front of the jury, he was very hysterical. He was near tears. And so now the Court of Appeals is having to evaluate whether that should have been admitted as an excited utterance. And their determination is, yes, it should have been. You know, they review the rule of what is allowed as an excited utterance. They say that to qualify as an excited utterance, the statement must relate to a sufficiently startling experience, suspending reflective thought and a spontaneous reaction, not one resulting from reflection or fabrication. distinguished from circumstances where the facts indicate a lapse of time sufficient to manufacture a statement and the statement lacks spontaneity. In that case, the statement would be inadmissible under the excited utterance exception. Here, the defendant would have testified that this other person, Tabron, is still crying and hysterical or near tears at least and is making these statements about, I shot him, I shot him. And so the Court of Appeals first determines, yes, that should have been admitted as an excited utterance. So he gets a new trial, right? I mean, he's got evidence that somebody else shot the guy? He's got evidence he wanted to offer about another person admitting or apparently admitting that he shot the person. But, you know, again, that's only sort of the first step of the analysis, right? Yes, it was an error. This probably should have been allowed as an excited utterance. And the court cites back to some other cases that for prosecutors, you know, because normally I would imagine we're the ones looking to get a statement admitted as an excited utterance or a present sense impression or something like that. You know, they cite a couple of helpful cases on that. Allen and Pickens and Joe, we can talk about a few more when we get to the end. But yes, it probably should have been admitted as an excited utterance, given that this witness was evidently or according to the defendant, very hysterical and in or near tears. And statement was clearly spontaneous. But Yes, this other question is, was there any actual prejudice? So it was excluded. Do we see any reason that that would have been prejudicial to the defendant's case? And the court here says, no, they say we discern no prejudice. And what they are pointing out is the abundance of other evidence indicating that this defendant is nevertheless guilty of the crime that the jury convicted him of. You know, they talk about the state presented testimony from Davenport, you know, this other person in the victim's group who saw the defendant standing directly over Morrow, the decedent's body. There was medical testimony that the decedent was shot once from the front and once from the back with two firearms of different calibers, a 9mm and a 40 caliber. And didn't the medical experts say either one
[00:26:42.444] [SPEAKER_01] of
[00:26:42.525] [SPEAKER_00] those two shots could have been fatal? He absolutely did. It was Dr. Yell, as the witness testified, that the front wound and the back wound were each potentially lethal. And then finally, that the defendant himself admitted to shooting Morrow. So in other words, there's not really much of a dispute about whether this other person, Tabron, shot the victim when there's clear evidence that this defendant shot the victim and that that alone would have been a fatal wound. And so Ultimately, the court says, as such, there's not a reasonable probability that but for the trial court's exclusion of Tabron's hearsay statement, the outcome of the proceeding would have been different. And then finally, the defendant had presented an argument that he called cumulative error, you know, that even if neither of these alone would have been enough to cause prejudice, that, you know, taken together, the combined effect of the errors prejudiced the defendant. But the court, based on their determination of how each of those issues plays out, rejects that as well and finds that it doesn't add up to cumulative error. So, you know, Joe, I said it a moment ago. This is, in many ways, actually a good case for the state.
[00:27:43.571] [SPEAKER_01] Because the state's more often trying to get in this kind of statement, right? The more evidence that comes in, it's going to be from the state side.
[00:27:48.519] [SPEAKER_00] Absolutely. I think we could imagine any number of circumstances. You know, we've got bystanders to a crime, and maybe we don't even know who they are. Maybe we don't even know their names, but we know they said... The guy in the red shirt, the guy in the red shirt is the one who did it. You know, something along those lines. We would want that as an excited utterance. But this case also, I think, raises an issue that I know I've had a lot of questions from prosecutors about. I know you have as well. That question about the time. How far removed can something still be an excited utterance or some overlap? You know, oftentimes we talk about present sense impression as well. There's not a huge gap of time here, evidently, right? I mean, they're in the car, they're some distance away, but they are driving away from the scene. He's not standing right there while it's happening. But folks interested or fighting with this issue, I'd encourage them to go look at some of the cases we've got collected on NC Pro. You know, we've got a lot of good ones on excited utterance or present sense impression. You know, we've had cases like State v. Lowry was just one from back in 2021, where a victim's statement was deemed to be an excited utterance, even though it was 75 to 90 minutes after the assault, because the victim, they said, was still under the stress or excitement of the event. And we've had present-sense impression cases allowing statements as far as 50 minutes in a case called State v. Capers from 2010, because again, the victim in that circumstance was literally in the hospital, receiving life-saving treatment. And so when the person is still under the stress or excitement of the event, that gap in time could be a little bit longer than you might expect, even though the language in those rules is talking about things like during or immediately after. But I think the key behind those cases is, is the person still under that stress or excitement? They haven't had that opportunity to step back, calm down, think about it, and be able to fabricate something they'd rather say than whatever the actual truth is. If that opportunity hasn't arisen yet, then that's why we can find it to be something that's inherently reliable. So there's a couple of cases cited in this opinion that I think are helpful for the state on that. But some of these others, like State v. Lowry, State v. Capers, another one, State v. Cummings, from going all the way back to 1990 is one I've often referred people to. where the declarant was actually driving from Willow Springs to Raleigh before we get the statement, you know, which is some, I don't know, 20 or 25 miles. And yet at the tail end of that drive, when the person, when we can show is still under that stress or excitement, it may be something we can offer as an excited utterance or present sense impression. But that would be my tip for the prosecutors is to remember it's not just about the time, good or bad, right? It's about is the person still under that stress or excitement? So that's what we need to get in front of the judge or get put in the record. If this person is hysterical, screaming, crying, Whether it happened 30 seconds ago or 30 minutes ago, it's those kind of details we need to get in to support the admissibility of the statement. So even though
[00:30:39.040] [SPEAKER_01] in state futile it was error not to admit this evidence proffered by the defendant, that's certainly a rule that could help the state in appropriate circumstances.
[00:30:47.135] [SPEAKER_00] Yeah, absolutely, absolutely. A good one to keep in mind if we have to argue that issue.
[00:30:50.864] [SPEAKER_01] Well, that's all the time we have for today. Today, we discussed State v. Lancaster regarding several counts of criminal contempt, State v. Myers about a jury instruction on self-defense, and State v. Teal regarding the admissibility of an excited utterance. 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 beautiful 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, 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.
[00:31:38.451] [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. Thank you, John. That would be the showing for the state. Sounds good, Joe. Thanks. Hope it helped.