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An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
15 March 2011
STATE OF NORTH CAROLINA
Nos. 08 CRS
RICHARD C. LACY
Appeal by Defendant from judgments entered 26 January 2010 by
Judge Forrest D. Bridges in Mecklenburg County Superior Court.
Heard in the Court of Appeals 10 January 2011.
Roy Cooper, Attorney General, by L. Michael Dodd, Special
Deputy Attorney General, for the State.
Richard C. Lacy (“Defendant”) stabbed Janine Renee McCorey
(“Decedent”) twenty-three times after an argument and also stabbed
a second person seven times.
Defendant was convicted of first
degree deliberate and premeditated murder, felony murder1 and
Because Defendant’s appeal necessitates that we examine
whether certain pieces of evidence prejudiced Defendant’s trial, we
must first determine whether the trial court elected to enter
judgment against Defendant on a basis of deliberate and
premeditated murder or felony murder.
deliberation is a theory by which one may be convicted of first
degree murder; felony murder is another such theory[.]” State v.
Alford, 339 N.C. 562, 576, 453 S.E.2d 512, 519-20 (1995) (quotation
omitted). When the defendant is convicted of felony murder, the
-2attempted first degree murder.2
This case requires us to decide
whether Defendant’s trial was prejudiced by the admission of
evidence of a prior juvenile sex offense, the admission of evidence
that Defendant may have engaged in plea negotiations prior to
trial, and the exclusion of Decedent’s mental health records.
After careful review of the record, we find no reversible error.
The evidence of record tends to show that on 13 December 2007
in Charlotte, North Carolina, Defendant, driving a silver Malibu,
underlying felony merges with the murder, and the defendant cannot
receive a separate sentence for the underlying felony nor can it be
used as an aggravating circumstance. State v. Hurst, 360 N.C. 181,
203, 624 S.E.2d 309, 326, cert. denied, 549 U.S. 875, 127 S. Ct.
186, 166 L. Ed. 2d 131 (2006) (citation omitted). However, “if a
defendant is convicted of first-degree murder on the basis of both
premeditation and deliberation and felony murder, then premeditated
and deliberate murder alone supports the conviction; the underlying
felony for felony murder can be used as an aggravating circumstance
at sentencing, and the defendant can receive separate sentences for
both the first-degree murder conviction and the conviction, if any,
for the underlying felony supporting felony murder.”
Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770-71 (2002).
“[W]hen the jury’s verdict specifies both theories in its verdict
of murder in the first degree, it is the court’s decision, not that
of the jury, to select the theory on which the sentence for the
homicide is to be based[,] [a]nd where the sentence for homicide
rests upon the premeditated and deliberate murder conviction, the
merger rule does not apply.” State v. Fields, 315 N.C. 191, 20607, 337 S.E.2d 518, 527-28 (1985). In this case, the trial court
sentenced Defendant on both deliberate and premeditated murder and
the underlying felony supporting felony murder – the attempted
first degree murder offense. Because the trial court sentenced
Defendant for both the first-degree murder conviction and the
conviction for the underlying felony supporting felony murder, we
must conclude that the trial court decided to select the theory of
premeditation and deliberation upon which to base Defendant’s
The jury also found Defendant guilty of assault with a deadly
weapon with intent to kill inflicting serious injury. However, the
trial court entered an order arresting judgment on this offense.
The record shows that the trial court arrested judgment for reasons
other than the felony murder merger rule.
-3picked up Decedent and asked Decedent, who was a prostitute and
drug user, if “she was working.”
Decedent agreed to have sex with
Defendant for twenty dollars and suggested that she and Defendant
go to a nearby house where her friend Robert Mitchell Howard
When Defendant and Decedent arrived at Howard’s
home, Howard and Darlene Brooks (“Brooks”) were present.
cocaine for $40.00 for Defendant and Decedent’s consumption, and
Defendant gave half of the crack cocaine to Howard for use of a
Defendant and Decedent then went into a bedroom to have sex.
Afterwards, Decedent asked to use Defendant’s phone, and
Decedent took the phone outside of the bedroom.
left the room, Defendant believed that Decedent had taken his
Defendant confronted Decedent about his missing money, and
the two argued violently.
Defendant pulled out a knife and
attacked Decedent, stabbing her twenty-three times.
escaped Defendant’s attack and ran out of the house.
followed, but Howard stopped Defendant, asking him, “[W]hat’s going
Defendant stabbed Howard seven times, after which Defendant
ran out of the house.
Defendant got into the silver Malibu and
Decedent was found at the steps of a house down the street in
the same neighborhood, bleeding from a wound to her heart and
multiple other lacerations.
Police and medics were called.
being taken to Carolinas Medical Center, Decedent died as a result
of the wound to her heart.
-4Howard was found at his house, also bleeding from wounds to
his abdomen and groin.
Howard received medical treatment and
consented to be interviewed by police, and during the interview, he
admitted to his presence at Howard’s home on 13 December 2007.
Defendant also admitted to stabbing both Decedent and Howard
multiple times, and to fleeing the home afterwards.
On 5 January 2009, Defendant was indicted on counts of first
degree murder, attempted first degree murder, and assault with a
deadly weapon with intent to kill inflicting serious injury.
case was tried on 11 January 2010, and a jury found Defendant
guilty of all charges.
On 26 January 2010 the trial court entered
judgment on the assault with a deadly weapon with intent to kill
inflicting serious injury offense.
Evidence of Prior Bad Acts & Prior Conviction
In Defendant’s first argument on appeal, he contends the trial
court erred by allowing evidence of Defendant’s juvenile sex
offense, which was fourteen years old.
Although it was error to
admit this evidence, we hold it was not prejudicial to Defendant’s
“We review a trial court’s determination to admit evidence
under N.C. R. Evid. 404(b) and 403, for an abuse of discretion.”
State v. Summers, 177 N.C. App. 691, 697, 629 S.E.2d 902, 907,
app’l dismissed, disc. review denied, 360 N.C. 653, 637 S.E.2d 192
-5(2006) (citations omitted).
“To receive a new trial based upon a
violation of the Rules of Evidence, a defendant must show that the
trial court erred and that there is a ‘reasonable possibility’ that
without the error ‘a different result would have been reached at
State v. Ray, 364 N.C. 272, 278, 697 S.E.2d 319, 322
(2010) (citing N.C. Gen. Stat. § 15A-1443(a) (2009)).
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009), states that
“[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other
preparation, plan, knowledge, identity, or absence of mistake,
entrapment or accident.”
“[I]n order for evidence relating to the prior crime to be
admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b), it must have
some relevance to the issue of the defendant’s guilt of the crime
for which he or she is on trial.”
State v. Ward, __ N.C. App. __,
__, 681 S.E.2d 354, 361, aff’d, 364 N.C. 133, 694 S.E.2d 738 (2010)
(citing N.C. Gen. Stat. § 8C-1, Rule 401 (2009)).
The evidence in
question must be relevant to some issue other than the defendant’s
“propensity or disposition to commit an offense of the nature of
the crime charged.”
State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d
48, 54 (1990).
“[P]rior offenses are not admissible to prove that a person
acted in conformity therewith.”
State v. Emery, 91 N.C. App. 24,
33, 370 S.E.2d 456, 461, disc. review denied, 323 N.C. 627, 374
-6S.E.2d 594 (1988); see also State v. Smith, 152 N.C. App. 514, 521,
568 S.E.2d 289, 294, app’l dismissed, disc. review denied, 356 N.C.
623, 575 S.E.2d 757 (2002) (“As a general rule, evidence of a
defendant’s prior conduct . . . is not admissible to prove the
character of the defendant in order to show that the defendant
“[S]ubstantive evidence of a defendant’s past, and distinctly
separate, criminal activities or misconduct is generally excluded
propensity or predisposition to commit the type of offense with
which he is presently charged.”
State v. Maxwell, 96 N.C. App. 19,
25, 384 S.E.2d 553, 557 (1989), disc. review denied, 326 N.C. 53,
389 S.E.2d 83 (1990) (quotation omitted).
ultimately came into evidence through the cross-examination of
Defendant’s expert witness.
The evidence in question was included
in Defendant’s 2006 mental health records, which stated “that
[Defendant] had sex offender treatment at Port Smith, Virginia, as
discovery, and Defendant filed a pretrial motion stating that
Defendant to the State that refer to this conviction” and seeking
Defendant argued in his pretrial motion that any reference to the
juvenile sex offense would be irrelevant and unfairly prejudicial.
The court provisionally granted Defendant’s pretrial motion:
-7[Defense Counsel]: . . .[M]y client has a
juvenile conviction for a rape sex offense and
statutory sex offense which we contend
wouldn’t come in as 404(b) and is too old even
if he would testify in this case,3 but we had
filed that as a motion. . . .
[Counsel for State]: [Defense Counsel] and I
had some discussions about that and when he
sent the report from the psychologist that he
contends may testify during the Defendant’s
case in chief, it seems to read that – or I
interpret it to read that the psychologist
reviewed or based his opinion in part on that
juvenile conviction. . . .
Defendant did, in fact, testify at trial, which arguably
implicated Rule 609, which in some circumstances allows evidence of
prior convictions to impeach a testifying defendant who takes the
stand and thereby places his credibility at issue. See State v.
Wilkerson 356 N.C. 418, 571 S.E.2d 583 (2002); State v.
Blankenship, 89 N.C. App. 465, 467, 366 S.E.2d 509, 510-11 (1988).
Assuming arguendo that Rule 609 was implicated in this case, we
agree with Defendant that the court erred by allowing the evidence
of the prior juvenile sex offense under Rule 609, given that the
conviction was more than ten years old and the court did not
determine that the probative value of the conviction substantially
outweighed its prejudicial effect, and given that “[e]vidence of
juvenile adjudications is generally not admissible[.]” N.C. Gen.
Stat. § 8C-1, Rule 609(d); see also State v. Muhammad, 186 N.C.
App. 355, 362-63, 651 S.E.2d 569, 575 (2007), app’l dismissed, 362
N.C. 242, 660 S.E.2d 537 (2008) (stating that “[w]hen more than ten
years have passed after a conviction, evidence of the conviction is
inadmissible ‘unless the court determines, in the interests of
justice, that the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its
prejudicial effect’”(quoting N.C. Gen. Stat. § 8C-1, Rule 609(b));
State v. Lynch, 337 N.C. 415, 420, 445 S.E.2d 581, 583 (1994).
However, for the same reasons the admission of the evidence under
Rule 404(b) did not prejudice the trial, the admission of the
evidence pursuant to Rule 609 was not prejudicial to the outcome of
the trial. See State v. Badgett, 361 N.C. 234, 247-48, 644 S.E.2d
206, 214, cert. denied, 552 U.S. 997, 128 S. Ct. 502, 169 L. Ed. 2d
351 (2007) (stating that “[t]he improper admission of a defendant’s
prior conviction is not reversible per se[,]” and the “[d]efendant
has the burden under N.C.G.S. § 15A-1443[a] of demonstrating that
but for the erroneous admission of this evidence . . . there is a
reasonable possibility that the jury would have reached a verdict
of not guilty”).
-8The Court: All right. Well, at this point I’m
going to assume that the matter will not come
into evidence, so the Motion in Limine is
provisionally granted at this point, unless
you all can convince me otherwise at some
point in time.
Defendant’s 2006 mental health records.
During the voir dire
examination of the expert witness by the State, the Court made the
The Court: What do you want to ask in front of
[Counsel for State]: That same line of
questions, your Honor, that Dr. Hilkey was
provided numerous reports, some of those
reports were from the Behavioral Health
Center, that the Defendant was seen on
September 30th of 2006, and at that time the
Defendant reported violence, or I can refrain
from saying violence towards children or I can
be as specific as indicated in the report.
The Court: I will let you pursue that line of
questioning . . . without saying violence
toward women or violence toward children or
inappropriate touching of female children[.]
questions in front of the jury:
And the Defendant has never been to a
mental hospital, has he?
He has been . . . treated in an inpatient
And what hospital was that?
It was a
For an incident that –
-9[Defense Counsel]: Your Honor, I think I have
I think we’re getting far
afield from what our agreement was.
The Court: Overruled.
And in Port Smith, Virginia, what was he
[Defense Counsel]: Objection.
The Court: Overruled.
The Court: Yes.
(A bench discussion was held)
Dr. Hilkey, what was the Defendant being
Do I need to answer that? He had been
involved with inappropriate touching of a
child and he was referred for treatment
Afterwards, the court instructed the jury to disregard and not
consider in its deliberations any evidence of Defendant’s prior
We agree that the questioned testimony was not admitted for
one of the proper purposes specified by Rule 404(b). The testimony
that fourteen years ago Defendant was “involved with inappropriate
touching of a child” and “was referred [to a mental health care
facility] for treatment for that” had no tendency to make any fact
of consequence in his first degree murder trial more or less
probable, nor was the evidence relevant to any material fact in
The only relevance of the evidence was to Defendant’s
character tending to show he had a propensity for bad acts and
-10acted in conformity therewith in killing Decedent.
Therefore, we conclude that the evidence
that fourteen years ago Defendant was “involved with inappropriate
touching of a child” and “was referred for treatment for that” was
inadmissible under N.C. Gen. Stat. § 8C-1, Rule 404(b), and the
trial court abused its discretion in allowing its admission.
We now must determine whether the admission of the foregoing
evidence prejudiced Defendant’s trial.
See Ray, 364 N.C. at 278,
697 S.E.2d at 322 (stating that “[t]o receive a new trial based
upon a violation of the Rules of Evidence, a defendant must show
possibility’ that without the error ‘a different result would have
been reached at the trial’”) (citing N.C. Gen. Stat. § 15A-1443(a)
Here, Defendant confessed the crimes to the police, and
Defendant admitted to being at Howard’s home on 13 December 2007;
to stabbing both Howard and Decedent; and to fleeing the home
Furthermore, the testimony of multiple witnesses at
trial, fingerprint evidence found on a beer bottle at Howard’s
We also find it telling that Decedent sustained
twenty-three stab wounds, and Howard sustained seven stab wounds,
one of which was “to [his] back,” and another which punctured his
Decedent’s numerous wounds were described in the following
way at trial:
Decedent had a cut “from one part of her scalp to
-11the other part”; a “gaping wound” on her “left shoulder”; wounds to
her “left chest,” “right thigh,” “abdomen”; “part of her ear was
missing”; one cut on Decedent’s head went “straight down . . . and
actually cut a groove into the underlying skull bone”; another
wound on Decedent’s head went “down to the bone but it d[id]n’t
actually make a cut in the bone”; another wound went “through the
chest wall and actually cut a piece of cartilage off of the fifth
rib,” went “down through the left lung and then [went] through the
left ventricle of the heart [before coming] out the back side of
See State v. Warren, 348 N.C. 80, 111, 499 S.E.2d 431,
448, cert. denied, 525 U.S. 915, 142 L. Ed. 2d 216, 119 S. Ct. 263
(1998) (stating that “[t]he condition of the victim’s body, the
nature of the wounds, and evidence that the murder was done in a
brutal fashion are circumstances from which premeditation and
deliberation can be inferred”).
In light of this ample evidence incriminating Defendant, and
considering the trial court’s instruction to the jury to disregard
Jennings, 333 N.C. 579, 618, 430 S.E.2d 188, 208, cert. denied, 510
U.S. 1028, 114 S. Ct. 644, 126 L. Ed. 2d 602 (1993) (stating that
“[w]e presume that jurors . . . attend closely the particular
language of the trial court’s instructions in a criminal case and
strive to understand, make sense of, and follow the instructions
given them”) (quotation omitted); State v. Boston, 165 N.C. App.
214, 221, 598 S.E.2d 163, 167 (2004) (holding that “[t]o the extent
-12inadmissible prior bad acts, . . . we hold that the trial court’s
limiting instructions to the jury were sufficient to cure any
argument that evidence of his juvenile sex offense materially
impacted the jury’s decision at trial must necessarily fail.
Defendant has failed to demonstrate any reasonable possibility that
the jury would have reached a different result had the evidence not
reached the jury.
See N.C. Gen. Stat. § 15A-1443(a).
we conclude the admission of Defendant’s juvenile sex offense
conviction was error, but the error did not prejudice Defendant’s
Inadmissibility of Plea Discussions
In Defendant’s second argument on appeal, he contends he must
elicited testimony from a defense expert that could arguably have
been construed to show that Defendant engaged in a pretrial plea
inadmissible pursuant to N.C. Gen. Stat. § 8C-1, Rule 410, and §
Rule 410 states in pertinent part the following:
Except as otherwise provided in this rule,
evidence of the following is not, in any civil
or criminal proceeding, admissible for or
against the defendant who made the plea or was
a participant in the plea discussions: . . .
Any statement made in the course of plea
discussions with an attorney for the
prosecuting authority which do not result
in a plea of guilty or which result in a
plea of guilty later withdrawn.
-13However, such a statement is admissible in any
proceeding wherein another statement made in
the course of the same plea or plea
discussions has been introduced and the
statement ought in fairness be considered
contemporaneously with it.
Furthermore, N.C. Gen. Stat. § 15A-1025, provides the following
with regard to the inadmissibility of plea negotiations:
The fact that the defendant or his counsel and
the prosecutor engaged in plea discussions or
made a plea arrangement may not be received in
evidence against or in favor of the defendant
In the case sub judice, Defendant failed to object to the
prepared documents for Defendant’s plea negotiation.
Defendant, objected to the evidence.
Counsel for Defendant asked
a defense expert the following questions, which revealed to the
negotiation prior to the trial:
. . . [P]rior to preparing your final
report you prepared a more informal
report, is that right?
I did. . . . It was my understanding I
was asked to summarize my findings
because there was a meeting with . . .
the district attorney[.] . . .
[Counsel for State]: Objection
The Court: Overruled.
And it was your understanding that that
letter, as well as the records would be
provided to the State?
The letter – yes, the letter was a
summary of my findings that was going to
be presented in terms of a negotiation
for plea bargain.
We conclude that because Defendant did not object and, in fact,
elicited the evidence during direct examination, Defendant has
waived his right to appellate review.
See State v. Thompson, 141
N.C. App. 698, 704, 543 S.E.2d 160, 164, disc. review denied, 353
N.C. 396, 548 S.E.2d 157 (2001) (concluding the defendant “waived
his right to appellate review by introducing evidence during his
own direct examination of plea discussions and subsequently failing
to object to the State’s eliciting of further evidence during
cross-examination”); see also N.C. Gen. Stat. § 15A-1443(c) (2009)
(“A defendant is not prejudiced by the granting of relief which he
has sought or by error resulting from his own conduct”); State v.
Wooten, 86 N.C. App. 481, 482, 358 S.E.2d 78, 79 (1987) (stating
that the admission of inadmissible plea negotiation testimony alone
Defendant did not argue in his brief on appeal that the admission
of the evidence in question was plain error, and accordantly,
Defendant has abandoned this argument. See Thompson, 141 N.C. App.
at 705, 543 S.E.2d at 165 (stating that the defendant “[did] not
therefore, the Court concluded, “[w]e . . . deem defendant to have
waived any assignment of plain error”); N.C.R. App. P., Rule 28(a)
(“Issues not presented and discussed in a party’s brief are deemed
-15However, assuming arguendo the issue were properly preserved
for appeal, any error in this case was not plain error.
incriminating Defendant, including Defendant’s own confession of
the crimes to the police, which was videotaped.
admitted to being at Howard’s home on 13 December 2007; to stabbing
both Howard and Decedent; and to fleeing the home afterwards.
testimony of multiple witnesses at trial, fingerprint evidence
discovered underneath Decedent’s fingernails, linked Defendant to
the crimes committed on 13 December 2007. The nature of Decedent’s
wounds and evidence that the murder was done in a brutal fashion
are “circumstances from which premeditation and deliberation can be
Warren, 348 N.C. at 111, 499 S.E.2d at 448.
The trial court also specifically gave a limiting instruction
to the jury that evidence of a plea bargain was not to be used as
evidence of defendant’s guilt.4
See State v. Riley, __ N.C. App.
prosecutor’s cross-examination of defendant concerning a prior
The trial court instructed the jury:
“Now, another area,
during the . . . testimony of Dr. Hilkey[,] there was some
reference by him in his testimony to something that he
characterized as a plea bargain. Now, again, I am striking that
portion of Dr. Hilkey’s testimony. Do not consider that term, do
not make any inferences, assumptions, conclusions, or speculations
as to whether or not there has been any offer extended by the State
or by the Defendant toward a potential compromise of any position
in this case. At this point certainly first of all there has been
no evidence whatsoever of any such actions having taken place, even
if there were any such evidence, that is not a matter that would be
properly for your consideration.”
-16criminal charge [and the defendant’s associated plea] was cured by
the trial court’s limiting instruction to the jury”).
properly preserved this issue for appellate review, we conclude
that any potential error was not plain error.5
Motion for Mistrial
In Defendant’s third argument on appeal, Defendant contends
that the trial court abused its discretion in denying Defendant’s
motion for mistrial based on the erroneous admission of evidence of
Defendant’s juvenile sex offense and on the erroneous admission of
statements regarding Defendant’s plea negotiations.
“A trial judge may declare a mistrial at any time during the
trial upon defendant’s motion or with defendant’s concurrence.”
State v. Maness, 363 N.C. 261, 288, 677 S.E.2d 796, 813 (2009),
cert. denied, __ U.S. __, 130 S. Ct. 2349, 176 L. Ed. 2d 568
“The judge must declare a mistrial upon the defendant’s
motion if there occurs during the trial an error or legal defect in
the proceedings, or conduct inside or outside the courtroom,
Although Defendant generally claims in his brief that he “was
severely prejudiced by his trial lawyer’s . . . deficient
performance,” and broadly states, with regard to a claim of
ineffective assistance of counsel, that our standard of review is
de novo, Defendant makes no legitimate showing “that the deficient
performance [of counsel] prejudiced the defense[,]” or that
“counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.” State v. Braswell,
312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). We have concluded
that the evidence did not prejudice Defendant’s trial, and we
further conclude that the elicitation of the evidence by the
counsel for Defendant was not so serious an error as to deprive
Defendant of a fair trial.
N.C. Gen. Stat. § 15A-1061 (2009).
“The decision to grant or deny a mistrial lies within the
sound discretion of the trial court and is ‘entitled to great
deference since [the trial court] is in a far better position than
an appellate court to determine the effect of any [misconduct] on
State v. Taylor, 362 N.C. 514, 538, 669 S.E.2d 239,
260 (2008), cert. denied, __ U.S. __, 175 L. Ed. 2d 84, 130 S. Ct.
129 (2009) (quoting State v. Thomas, 350 N.C. 315, 341, 514 S.E.2d
486, 502, cert. denied, 528 U.S. 1006, 145 L. Ed. 2d 388, 120 S.
Ct. 503 (1999)).
“The standard of review for denial of a mistrial
is whether the trial court abused its discretion.”
Hagans, 177 N.C. App. 17, 25, 628 S.E.2d 776, 782 (2006) (citation
‘manifestly unsupported by reason, which is to say it is so
arbitrary that it could not have been the result of a reasoned
Taylor, 362 N.C. at 538, 669 S.E.2d at 260 (quoting
State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998)).
We have already concluded in the foregoing sections for the
reasons discussed therein that the admission of Defendant’s prior
juvenile sex offense was error; however, we have also concluded,
because the uncontroverted evidence incriminating Defendant was
plenteous, the admission of evidence of the juvenile sex offense
and the alleged plea negotiation was not prejudicial to Defendant’s
The trial court properly determined that the foregoing
evidence did not result in substantial and irreparable prejudice to
-18the defendant’s case, and the trial court gave instructions to the
jury to disregard the evidence in question.
We conclude that the
trial court did not abuse its discretion in denying Defendant’s
motion for mistrial.
Evidence of Mental Illness
In Defendant’s final argument on appeal, he contends the trial
court erred in sustaining the State’s objection to the introduction
of Decedent’s mental health records into evidence.
“‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.”
N.C. Gen. Stat. § 8C-1, Rule 401
“Evidence which is not relevant is not admissible.”
Gen. Stat. § 8C-1, Rule 402 (2009).
“If the proffered evidence has
no tendency to prove a fact in issue in the case, the evidence is
irrelevant and must be excluded.”
State v. Coen, 78 N.C. App. 778,
780-81, 338 S.E.2d 784, 786, disc. rev. denied, dismissal allowed,
317 N.C. 709, 347 S.E.2d 444 (1986) (citing State v. Perry, 298
N.C. 502, 259 S.E.2d 496 (1979)); see also State v. Adams, 103 N.C.
App. 158, 404 S.E.2d 708 (1991) (concluding that a trial court did
cross-examination of the State’s witness regarding her mental and
emotional condition and treatment).
At trial, the court concluded that the evidence of Decedent’s
mental health records was irrelevant.
Defendant, in his argument
on appeal, attempts to bolster his argument for relevancy through
-19a theory of self-defense.
Defendant states, because of Decedent’s
mental illnesses, she may have “contribut[ed]” to the “violent
struggle[.]” However, there was no theory of self-defense at trial
and no evidence that Defendant was aware of Decedent’s alleged
mental illnesses before picking her up as a prostitute on 13
In fact, when asked, “You just met [Decedent] that
day (13 December 2007), right?” Defendant replied, “I did.”
Defendant also acknowledged that he did not know Decedent from
Defendant does not argue that Decedent’s
mental illnesses affected Defendant’s state of mind during the
Furthermore, the trial court did not instruct the
jury on self-defense, and Defendant does not argue on appeal that
the trial court erred by failing to instruct on self-defense. Even
assuming that evidence of Decedent’s mental health were relevant to
Defendant knew of Decedent’s alleged violent propensities, such
[defendant’s] belief as to the apparent necessity to defend himself
from an attack more or less probable than it would be without the
Smith, 337 N.C. at 666, 447 S.E.2d at 380.
makes no other argument for the relevancy of the evidence of
See State v. Smith, 337 N.C. 658, 666, 447 S.E.2d 376, 380
(1994) (reasoning that “no showing was made that defendant was
aware of [the victim’s] criminal past; hence, the fact that [the
victim] had assaulted a man nine years earlier or had committed
burglary four years earlier has no tendency . . . to make the
existence of [defendant’s] belief as to the apparent necessity to
defend himself from an attack more or less probable than it would
be without the evidence”) (quotation omitted).
-20Decedent’s mental health and fails to explain how the evidence of
Decedent’s mental health has any tendency to prove a fact in issue
in the case.
prejudiced by the exclusion of the evidence of Decedent’s mental
Pursuant to N.C. Gen. Stat. § 15A-1443(a), Defendant must
show that “there is a reasonable possibility that, had the error in
question not been committed, a different result would have been
reached at the trial[.]”7
For the foregoing reasons, we conclude that the trial court
did not err by sustaining the State’s motion to exclude evidence of
Decedent’s alleged mental illnesses, because the evidence was not
relevant, and we further conclude that assuming arguendo the trial
court erred, such error did not prejudice Defendant’s trial.
Chief Judge MARTIN and Judge ROBERT C. HUNTER concur.
Report per Rule 30(e).
Although Defendant makes a general constitutional argument in
his brief on appeal, this issue was not raised at the trial, and
therefore, we will not review it. See State v. Elam, 302 N.C. 157,
160-61, 273 S.E.2d 661, 664 (1981) (stating that the Court will not
review constitutional questions “not raised or passed upon in the