State v. Young

NO. COA13-586

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Wake County

No. 09 CRS 19207

JASON LYNN YOUNG

Appeal by Defendant from judgment entered 5 March 2012 by

Judge Donald W. Stephens in Wake County Superior Court. Heard

in the Court of Appeals 12 December 2013.

Attorney General Roy Cooper, by Special Deputy Attorney

General Robert C. Montgomery, Assistant Attorney General

Amy Kunstling Irene, and Assistant Attorney General Daniel

P. O’Brien, for the State.

Appellate Defender Staples S. Hughes, by Assistant

Appellate Defender Barbara S. Blackman, for defendant-

appellant.

HUNTER, JR., Robert N., Judge.

Jason Lynn Young (“Defendant”) appeals a jury verdict

finding him guilty of first-degree murder of his wife, Michelle

Fisher Young (“Michelle”). Defendant argues that the trial

court erred by admitting evidence of the entry of a default

judgment in a wrongful death action and a child custody

complaint against Defendant in his subsequent criminal trial.

We agree, vacate the judgment, and remand for a new trial.

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I. Facts & Procedural History

The Wake County Grand Jury indicted Defendant for first-

degree murder on 14 December 2009. Defendant’s case was tried

in Wake County Superior Court on 31 May 2011 with Judge Donald

W. Stephens presiding. On 27 June 2011, a mistrial was declared

when the jury deadlocked eight to four to acquit Defendant.

Defendant’s retrial began at the 17 January 2012 session of

Wake County Superior Court, with Judge Stephens again presiding.

On 5 March 2012, the jury found Defendant guilty of first-degree

murder and sentenced Defendant to life imprisonment without

parole. Notice of appeal was given in open court. The

testimony presented at trial tended to show the following facts.

A. State’s Evidence

Michelle Young was found at her home by her sister,

Meredith Fisher (“Meredith”), around 1:00 p.m. on 3 November

2006. Meredith found Michelle after Defendant called Meredith,

asking her to retrieve some printouts of eBay searches for Coach

purses. Defendant was out of town on a business trip and left a

voicemail for Meredith stating his plan to purchase these purses

as a belated anniversary present. Defendant did not want

Michelle to find out beforehand.

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Meredith complied with Defendant’s requests and entered the

Youngs’ home through the garage door, which was broken, and then

through the unlocked kitchen door to the home’s mudroom.

Meredith noticed her sister’s car was in the garage and that her

keys and purse were visible near the kitchen counter. After

entering, Meredith called out Michelle’s name and heard no

response. Meredith heard the Youngs’ dog, “Mr. G.,” whimpering,

but she did not see him. The house was cold.

As Meredith ascended the home’s stairs, she saw what she

thought was dark red hair dye at the top of the staircase in the

bathroom of the Youngs’ two-and-a-half-year-old daughter, Emily.1

Meredith first thought that Emily had smeared hair dye around

the home and that Michelle would be angry about the mess. When

Meredith reached the top of the stairs and looked to the left,

she saw Michelle lying on the floor, surrounded by a large

amount of blood.

Meredith called 911, and as she did, Meredith said “[Emily]

lifted up the covers and just kind of stared at me and I just

kind of stared back at her and then she just kind of got on me

and clung to me as I called 911.” During the call, Emily

continually asked for band-aids and said that her mother “has

1

The pseudonym “Emily” is used to protect the identity of the

child involved in this case.

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boo-boos everywhere.” The 911 operator asked Meredith if

Michelle had any personal problems, to which Meredith replied

“[u]m not really. You know her and her husband fight a little

bit, but nothing too ridiculous.” Meredith also told the 911

operator that her “niece is very smart for her age” and that she

thought Emily was saying “there was somebody in the house.”

Paramedics and the Wake County Sheriff’s Office responded to

Meredith’s call.

Emily was not injured and appeared “clean” when Meredith

arrived, except for some dried blood on Emily’s toenails and on

the bottom of her pajama pants. Meredith said she did not clean

Emily. Emily was wearing fleece pajamas, was not wearing

underpants or footwear, and did not urinate or defecate on

herself or the bed. Emily clung to Meredith’s hip until they

both were taken away by emergency personnel. Later, Meredith

called her mother Linda Fisher (“Linda”) in New York to tell her

of Michelle’s passing and later told Defendant’s mother Pat

Young (“Pat”) of Michelle’s death.

Sheriff’s officers found Michelle with a large amount of

coagulated, dried blood around her body and with blood

splattering against the walls of her bedroom. Michelle’s body

was discolored, cold, and stiff. She was not wearing shoes and

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was dressed in sweatpants and a zip-up sweatshirt. Blood was

observed on the opposite side of the bed from where Meredith

found Emily. Defendant’s DNA and fingerprints were present in

the bedroom, although none of his fingerprints contained blood.

Michelle was lying face-down just outside of a closet

labeled “his closet.” A child’s doll was near Michelle’s head.

Blood was also found on the exterior of this closet, and inside

of the closet door. The only blood found outside of the second

floor of the Youngs’ home was found on the doorknob leading from

the kitchen to the garage, and its DNA markers were consistent

with Michelle’s DNA. No blood was found in or on Defendant’s

vehicle, his clothes, or in the hotel room where he stayed on 2

November 2006.

The medical examiner who conducted the autopsy, Dr. Thomas

Clark (“Dr. Clark”), opined that Michelle experienced blunt

force trauma to her head and body. The trauma included a broken

jaw, skull fracturing, brain hemorrhaging, lacerations,

abrasions, and dislodged teeth. Dr. Clark stated that there

were likely at least thirty blows delivered to Michelle, and the

medical examiner testified that he thought the blows were

inflicted by “a heavy blunt object” with a rounded surface that

produced crescent-shaped skull fractures. Dr. Clark said the

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autopsy did not produce evidence of a sexual assault against

Michelle. Michelle was approximately twenty weeks pregnant when

she passed away.

Small footprints in blood, consistent with a child’s

footprints, were found around the bedroom and at the top of the

stairwell landing. Investigators testified that blood was

smeared on the walls at a child’s level in Emily’s bathroom.

Investigators said the blood smearing could indicate that Emily

was in her bathroom with the door closed. Investigators did not

find blood in the sink or bathtub of either the master bathroom

or Emily’s bathroom.

Several other pieces of evidence were presented by federal,

state, and county investigators. Michael Smith of the Federal

Bureau of Investigation, Andy Parker of the Wake/Raleigh City

and County Bureau of Investigation (“CCBI”), and Karen Morrow of

the State Bureau of Investigation testified at trial. Smith,

Parker, and Morrow testified that footwear impressions in blood

were made by two distinct shoe types on pillows found near

Michelle. These included impressions that corresponded with

size 12 Hush Puppy Orbital, Sealy, and Belleville shoes which

all had the same outsole design. Smith, Morrow, and Parker also

testified that there were additional impressions made by a

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different shoe type, consistent with a size 10 Air Fit or

Franklin athletic shoe. Karen Morrow and Greg Tart of the State

Bureau of Investigation testified that Defendant at one time

owned size 12 Hush Puppy Orbitals, which were purchased on 4

July 2005. The State never produced shoes matching either of

the impressions. The State also never produced a murder weapon.

A jewelry box in the master bedroom had two drawers

removed, and DNA testing showed four markers that did not

include Defendant or Michelle’s DNA. Meredith testified that

Michelle “didn’t really have a lot of fancy jewelry” except her

wedding and engagement rings, and that she “always wore” her

wedding and engagement rings. Michelle’s wedding and engagement

rings were both missing from her body when she was found and the

rings were not recovered. Additional unidentified fingerprints

were found in the house. Investigators found no signs of forced

entry.

Printouts from eBay concerning purses were found on an

office printer with three fingerprints; one matched Defendant

and two others remain unidentified. Forensic analyst Beth

Whitney of the CCBI (“Ms. Whitney”) also said Internet searches

for purses were made between 7:05 p.m. and 7:23 p.m. on 2

November 2006. Ms. Whitney testified that MapQuest inquiries

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for directions between Raleigh and Clintwood, Virginia, were

also made that evening, as well as e-mail logins to Defendant’s

personal email account. Ms. Whitney also found that, at an

undetermined time, Internet searches were made on the Youngs’

home computer for “anatomy of a knockout,” “head trauma

blackout,” “head blow knockout,” and “head trauma.”

i. Evening of 2 November 2006

Michelle’s sorority sister and close friend, Ms. Shelly

Schaad (“Ms. Schaad”), arrived at the Youngs’ home around 6:30

p.m. on 2 November 2006. Ms. Schaad arrived to have dinner and

to watch Grey’s Anatomy on television with Michelle. Ms. Schaad

said she was surprised Defendant was still home. Ms. Schaad

picked up dinner on the way to the Youngs’ house and invited

Defendant to eat. Defendant said he planned to stop at the

Cracker Barrel in Greensboro to have dinner, drive three hours

to Galax to spend the evening, and then drive two hours the next

morning to a 10:30 meeting. As Defendant left for the evening,

Ms. Schaad asked Defendant if he would return for the N.C. State

football game on 4 November 2006. Defendant said it depended on

whether his father-in-law, Alan Fisher, would come for the

weekend. Defendant expected his father-in-law to visit, and

Defendant had spent the afternoon cleaning the yard in

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anticipation of his arrival. Defendant’s father-in-law called

and cancelled his visit that evening. After he left, Defendant

called the Young residence seven times that evening.

Michelle and Ms. Schaad had dinner, bathed Emily, diapered

her, and dressed her in pajamas. Michelle and Ms. Schaad talked

about an argument between the Youngs over Defendant’s mother-in-

law, Linda, staying at their home for the majority of the time

between Thanksgiving and Christmas. Defendant was upset with

the length of her potential stay.

Ms. Schaad testified that she had an “eerie feeling” that

evening. Ms. Schaad asked Michelle if she was scared to be

alone. Ms. Schaad testified that Michelle

proceeded to say, you know, Jason’s heard a

lot of noises lately around the house, you

know, but her thoughts were, you know, if --

and her exact words to me, if someone’s

going to break in and their intention is to

kill you, then that’s what they’re going to

do, and it was very unsettling.

Ms. Schaad said she felt like the two were being watched and

asked Michelle to walk her to her vehicle before she left that

evening.

ii. Defendant’s Location on 2 and 3 November 2006

Defendant purchased gasoline in Raleigh at approximately

7:30 p.m. on 2 November 2006 and then went to a Cracker Barrel

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restaurant in Greensboro. Defendant called his mother Pat, who

lived in Brevard, while at the Raleigh gas station. Defendant

paid for his meal at the Cracker Barrel at 9:25 p.m. and checked

into a room at the Hampton Inn in Hillsville, Virginia at 10:54

p.m. Data from the keycards used to gain access to the hotel

rooms showed that Defendant entered his room at 10:56 p.m. and

did not use his keycard to re-enter his hotel room for the

remainder of his stay.

Security camera footage tended to show that Defendant wore

a light shirt, jeans, and brown slip-on shoes at the Cracker

Barrel and upon entering the Hampton Inn. Two pairs of brown

slip-on shoes were found in Defendant’s vehicle when police

later seized it on 3 November 2006.

Defendant was also captured on video at the hotel just

before midnight at the front desk and walking down a hallway

that lead to stairs and an exit door, wearing what appeared to

be a darker colored shirt with a light-colored horizontal stripe

across the chest. Defendant was not shown on surveillance

footage for the remainder of the evening.

The night-clerk at the Hampton Inn distributed check-out

receipts and hung copies of the USA Today on door handles

between 3:00 a.m. and 5:00 a.m. or later. Both the receipt for

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Defendant’s stay as well as a weekend edition of the USA Today

were found in Defendant’s Ford Explorer on 3 November 2006, when

police seized it.

Early in the morning on 3 November 2006, Hampton Inn Clerk

Mr. Keith Hicks (“Mr. Hicks”) noticed that the emergency door on

the first floor at the western end of the hotel was propped open

with a small red rock. Mr. Hicks removed the rock and shut the

door. Immediately next to the door was a glass door that could

only be accessed via keycard between 11:00 p.m. and 6:00 a.m. A

sign next to the door listed the hours the door was locked; at

all other times the glass door was unlocked.

When Mr. Hicks returned to the front desk and reviewed the

hotel’s surveillance cameras, he noticed that the camera was

malfunctioning in the same stairwell where the door was left

ajar. Mr. Hicks later determined that the camera was unplugged,

and Mr. Hicks asked a maintenance worker, Elmer Goad (“Mr.

Goad”), to plug the camera in again. Mr. Goad testified that if

someone were six feet tall, they would be able to easily reach

the camera’s plug. The last image from the camera was at

11:19:59 p.m. on 2 November 2006, and no images were recorded

until 5:50 a.m. on 3 November 2006, when Mr. Goad got a

stepladder and plugged the camera in again.

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The camera worked properly from 5:50 a.m. until 6:34 a.m.,

but at 6:35 a.m., the camera was pointed at the ceiling. Mr.

Goad put the camera back in position and focused it on the

bottom of the stairs at 6:38 a.m. The hotel said the camera was

never unplugged previously and that the only other time that

camera was tampered with was several years prior, when some

guests snuck in and out of the exit door. CCBI investigator

Andy Parker performed a fingerprint analysis on the camera and

testified that the State did not find Defendant’s fingerprints

on the security camera. Investigator Eddie McCormick

(“Investigator McCormick”) also testified that tests conducted

by the State did not show that any fibers were transferred from

the Hampton Inn where Defendant stayed on 2 November 2006 to the

Youngs’ home at 5108 Birchleaf Drive.

The hotel had no record of when Defendant left on 3

November 2006. The State’s first evidence showing his location

was from a call he made to his mother Pat around thirty miles

from the hotel near Wythville, Virginia at 7:40 a.m. Defendant

made several calls to his mother and others while driving to

Clintwood, with several lasting ten seconds or less.

Investigator McCormick testified it was possible the large

number of short calls could be from dropped phone calls, but he

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also said that “knowing what I know about telephonic

investigations,” the call frequency reflected a person who was

panicked.

Defendant was thirty minutes late to his 10:00 a.m. sales

call in Clintwood, Virginia. Defendant purchased gas in

Duffield at 12:06 p.m. and then left a voicemail for Meredith.

Detective Richard Spivey of the Wake County Sheriff’s

Office (“Detective Spivey”) testified that his deputy drove

between Raleigh and Hillsville, Virginia in two hours and

twenty-five minutes without traffic. Three gas receipts were

found in Defendant’s vehicle, one from Raleigh on 2 November

2006, Duffield on 3 November 2006, and Burlington at 8:32 p.m.

on 3 November 2006. Officers also canvassed gas stations

between Hillsville and Raleigh. Ms. Gracie Calhoun (“Ms.

Calhoun”), who worked at the Four Brothers BP in King, North

Carolina, said she saw a man drive to a pump and attempt to pump

gas in the early morning hours of 3 November 2006. The State’s

investigators said that the Four Brothers BP was along the most

direct route between Raleigh and Hillsville and was the only gas

station open at that particular exit.

Ms. Calhoun was shown a photograph of Defendant’s white

Ford Explorer on 5 November 2006 and asked if she saw the car on

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3 November 2006. When Ms. Calhoun was shown Defendant’s

photograph, she identified him as the vehicle’s driver. Ms.

Calhoun was not asked to provide a physical description prior to

seeing Defendant’s photo, and stated that the Defendant was

“just a little bit taller than me,” although Ms. Calhoun is five

feet tall and Defendant is six-foot-one. Ms. Calhoun stated

that she had not seen any news reports about the case when she

was asked about the vehicle. Ms. Calhoun said she remembered

Defendant specifically because he cursed at her, and that it

left an impression because only one other person had ever cursed

at her during her tenure at the Four Brothers BP. It is around

a forty to forty-five minute drive from the Hillsville Hampton

Inn to the Four Brothers BP.

Ms. Calhoun testified that Defendant came into the store

and cursed at her because the pumps were not on, threw $20 at

her, pumped $15 of gas and drove off without returning for

change. Store records showed several gas and in-store purchases

between 5:00 a.m. and 5:40 a.m., including a $15 gas purchase at

5:27 a.m. and a $20 gas purchase at 5:36 a.m.

After the first trial concluded, Defendant’s counsel

learned that Ms. Calhoun had received disability benefits since

she was a child. Ms. Calhoun stated that when she was six-

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years-old, she was hit by a truck. This accident caused her

brain to be dislodged from her skull and to fall onto the

street. Doctors reinserted her brain and Ms. Calhoun stated

that she has had memory problems her entire life as a result of

the accident.

The State presented evidence that a newspaper delivery

person passed by the Youngs’ home between 3:30 a.m. and 4 a.m.

and noticed that the interior, exterior, and driveway lights

were on, which she considered unusual at that hour. The

delivery person testified that she saw a light colored SUV in

front of the home and that a minivan was across the street.

After Defendant arrived and learned from his mother of

Michelle’s passing, he spoke with Meredith over the phone.

Meredith told Defendant to come to her home because the Youngs’

home was a crime scene. When speaking to Meredith, he asked

about Emily, what had happened, and seemed upset over the phone.

Officers began to question Meredith and friends of the

Youngs about possible marital problems. After the questioning,

Defendant’s friends Josh Dalton and Ryan Schaad suggested he not

speak to police until he retained counsel. On counsel’s advice,

Defendant never answered any questions from law enforcement or

spoke about Michelle’s death with friends or family.

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Defendant arrived at Meredith’s home along with his mother,

sister, and brother-in-law around 9 or 10 p.m. on 3 November

2006. Defendant hugged Meredith and went to see Emily.

Meredith said Defendant was wearing “dress pants, dress shoes, a

thermal cut crew neck shirt, a couple buttons here, and a dress

shirt over that open.” Police arrived at the home and Defendant

refused to speak with them. Later in the evening, Defendant and

Linda were alone in the home, watching Emily, and Linda said

Defendant told her that his lawyer said he could not talk to

anyone and that he was “going to take a hit on the house.”

iii. Marital Difficulties

The State produced several witnesses who testified that the

Youngs experienced difficulties in their marriage, including

Meredith, Ms. Schaad, and Defendant’s friend Josh Dalton. Ms.

Schaad described the Youngs’ relationship as “volatile.”

Meredith also noted marital problems between Michelle and

Defendant and suggested divorce to Defendant and Michelle.

Meredith said the Youngs “would get in screaming matches.

They’d fight in public.” Meredith testified that on 1 November

2006, Michelle told Meredith that she had fought with Defendant

and that he threw a remote at her. Meredith averred that before

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her death, Michelle became “withdrawn,” “depressed” and

“miserable.”

On 12 September 2006, Defendant sent an e-mail to the work

address of his former fiancée, Genevieve Cargol (“Ms. Cargol”)

professing his love for her. Defendant and Ms. Cargol did not

have contact for several years before this e-mail, which Ms.

Cargol did not receive at the time. Ms. Cargol testified that

Defendant was violent at several points during their

relationship, once punching and breaking Ms. Cargol’s car

windshield, punching a hole in a wall, and forcibly removing the

engagement ring from her finger.

Defendant had extra-marital affairs with two other women

while married to Michelle. Defendant communicated with one of

these women, Michelle Money (“Ms. Money”) regularly and engaged

in sexual intercourse in Orlando, Florida on 7 October 2006.

Defendant’s friend Josh Dalton stated that Defendant said “he

felt like he was in love with” Ms. Money. Defendant and Ms.

Money discussed meeting on 3 through 5 November 2006, although

Ms. Money said Defendant did not want to meet that weekend as he

had a business meeting as well as friends and family staying at

his home. Defendant and Ms. Money also contacted each other

several times by phone on 2–3 November 2006. Ms. Money said

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Defendant sounded normal during the calls and that he also

mentioned having left printouts in his office for a Coach purse

he planned to buy for Michelle. Defendant also had a sexual

relationship with a different woman in the Youngs’ home while

Michelle was out of town on another occasion.

On 27 October 2006, Michelle saw a counselor by herself,

Ms. Kimberly Sargent. Ms. Sargent testified that Michelle

“cried the entire session.” Ms. Sargent said her “assessment of

the situation was that [Michelle] was being verbally abused.”

iv. Emily’s Statements at Daycare

Emily returned to daycare the Monday after Michelle’s

death. The State introduced testimony of Emily’s daycare

teacher, Brooke Bass (“Ms. Bass”). Defendant objected to

admitting this testimony and was overruled.

Ms. Bass testified that Emily kept to herself more than

usual that week. Ms. Bass said Emily asked for a “mommy” doll

and was given a bucket of dolls to play with. Ms. Bass saw

Emily select a female doll with long brown hair that Emily

called the “mommy doll,” and a second female doll with short

hair. Ms. Bass stated that Emily began hitting the two dolls

together. Another daycare teacher, Ashley Palmatier (“Ms.

Palmatier”) asked Emily what she was doing and said Emily hit

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the dolls together and said “mommy’s getting a spanking for

biting.” Emily then laid the doll face-down on a dollhouse bed,

saying “mommy had boo-boos all over, mommy has red stuff all

over.” Emily’s teachers told police what she said at daycare.

Ms. Bass testified that Emily did not return to the daycare

after these statements were made. These statements were not

introduced at Defendant’s first trial.

v. Introduction of Civil Suits

Evidence of two separate civil suits was introduced at

Defendant’s second trial over Defendant’s objection. The State

introduced evidence showing Linda, on behalf of the estate,

filed a wrongful death action and a request for a slayer

declaration against Defendant on 29 October 2008. Defendant did

not respond to the suit, and on 5 December 2008, Judge Stephens

heard Plaintiff Linda’s motion for entry of a default judgment.

Judge Stephens reviewed the affidavits and entered a judgment

that Defendant “unlawfully killed” Michelle. Defendant was the

beneficiary of Michelle’s $4 million life insurance policy, but

did not make a claim on the policy. Defendant’s assets were

seized as a result of the $15 million judgment for Linda.

After Michelle’s death, Defendant took Emily to Brevard,

and the Fisher family was allowed to see Emily at several

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visits. Defendant later did not want the Fishers to have

contact with Emily. Defendant refused to agree to a visitation

schedule, and the Fishers filed suit.

The Fishers filed a child custody complaint against

Defendant on 17 December 2008. The complaint said Defendant

“brutally murdered Michelle Marie Fisher Young . . . at their

residence. Michelle was pregnant with [Defendant’s] son at the

time of her murder. Upon information and belief [Emily] was in

the residence at the time [Defendant] murdered her mother.” The

lawsuit requested a psychological evaluation of Defendant, and

would have required discovery and depositions. Defendant agreed

to a consent order and transferred primary physical custody of

Emily to Meredith. The consent order required that no discovery

or depositions be taken.

vi. Defendant’s Mistrial Testimony

Defendant testified at his first trial, and the State

introduced his testimony at the retrial. Defendant denied

killing his wife, denied being present when she was killed, and

denied having any knowledge of who killed Michelle. Defendant

said that he loved Michelle, that he did not plan to divorce

Michelle, and that he did not plan to leave Michelle for any of

the other women he had sexual relationships with. Defendant

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testified that after Emily was born, Michelle had a miscarriage.

Defendant said he and Michelle began trying to conceive another

child as soon as Michelle received medical clearance to bear

another child. Defendant said he was “ecstatic” that he would

soon have a son.

Defendant testified that he thought he and Michelle didn’t

fight much more than other couples, but that the couple “fought

more openly than other couples.” Defendant said he encouraged

his sister-in-law Meredith to mediate disputes between Michelle

and Defendant. Defendant testified that his disputes with

Michelle never turned physical. Defendant also testified that

he had “a lot of guilt” for spending his anniversary weekend

with Ms. Money, rather than his wife Michelle, and so he planned

to purchase a Coach handbag to “make up for a lot in a big way.”

Defendant called Meredith several times to retrieve the papers

from the family printer because he “really wanted it to be a

surprise.” Defendant thought that the gift had special

significance because it was a leather purse for his and

Michelle’s third anniversary, which is commonly known as the

“leather anniversary.”

Defendant said he had just begun a new job with an

electronic health records company, and a schedule was set for

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him to make a sales call in Clintwood, Virginia. Defendant’s

sales call was at 10:00 a.m. on 3 November 2006, so Defendant

said he planned to “break the trip up” by staying at a hotel

about half-way between Clintwood and Raleigh. Defendant said he

did not make a hotel reservation prior to staying at the Hampton

Inn in Hillsville. After checking into the hotel, Defendant

said he called Michelle and Ms. Money.

Defendant said he was nervous about the sales call, as it

was his first solo sales call. Defendant said he wanted to

review the software on his computer and forgot his charging

cable for his computer in his car. Defendant said he left the

hotel room door slightly ajar so he could re-enter without

disturbing his neighbors. As he left to go to his vehicle,

Defendant said he went out the exit door, noticed it was a type

of door which would not allow re-entry, broke off a piece of

shrubbery to prop the door, retrieved his charger and re-entered

the room.

Defendant said he finished on his computer around 11:53

p.m. and said he wanted to smoke a cigar and catch up on some

sports news. Defendant said he then picked up a newspaper from

the front desk, walked down the hallway, inserted a stick in the

door, went outside and smoked. Defendant said he later re-

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entered and went to sleep. Defendant also said he arrived

thirty minutes late for his appointment the next morning because

he had gotten lost. Defendant said he tried to call his

appointment to let them know he would be late, but that the cell

phone service was “nil to one bar.”

After his sales meeting, Defendant drove south toward

Brevard, arrived at his mother’s house, and his stepfather told

him that Michelle was dead. Defendant said he “just broke” and

cried. Defendant said some friends called and told him he

needed “to get a lawyer before” talking to anyone. Defendant’s

sister left a message for an attorney she previously employed,

and Defendant eventually met with a lawyer, who advised him to

not speak with police.

Defendant also said he purchased a pair of brown Hush Puppy

Orbital shoes, and that they were donated to Goodwill by

Michelle prior to 2 November 2006. Defendant also introduced a

photograph of himself in 2007 at Emily’s third birthday party,

showing Defendant wearing a dark pullover with a stripe on it.

Defendant also said he could not afford a lawyer for a custody

fight between Defendant and Michelle’s family. Defendant also

made internet searches on his home computer for head trauma and

anatomy of a knockout, which he said he made after being the

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“first responder” to a car accident where a person was knocked

out.

The State offered several pieces of evidence to rebut

Defendant’s testimony. The State noted that prior to trial,

Defendant received copies of all the State’s investigative

files, which included field and interview notes. The State’s

analysis of Defendant’s computer activities did not show

Defendant completed work-related activities on his computer that

evening. The State produced testimony from Meredith and other

friends of the Youngs that Defendant did not like smoking and

that he disliked the smell of smoke. The State also introduced

evidence showing that on 2 November 2006 at 11:40 p.m. it was

cold and windy where Defendant said he smoked the cigar.

Detective Spivey testified that no “substantial outerwear”

besides a suit jacket was found in Defendant’s luggage.

The State rested its case on 24 February 2012. Defendant

moved to dismiss the case at that time. The trial court denied

Defendant’s motion, and Defendant began presenting his case on

27 February 2012.

B. Defendant’s Evidence

Defendant’s mother Pat said Defendant called her the

evening of 2 November 2006 and discussed bringing home a wash

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stand and an antique dresser when Defendant’s family visited at

Thanksgiving. Defendant said he would call Michelle to see if

he could spend the evening at their home and pick the furniture

up, as he was nearby in southern Virginia. Pat said Defendant

noted that he would have to leave early on Saturday to get home

for his guests who were attending the N.C. State football game.

Defendant was thirty minutes late to his meeting at

Dickinson Hospital with Jennifer Sproles; he said he was lost

and was not able to call because of poor cell phone service.

Defendant called Pat in the morning on 3 November 2006 to tell

her he would pick up a wash stand at her home in Brevard.

Defendant introduced testimony from an AT&T analyst who said the

large number of short phone calls were consistent with dropped

phone calls. Defendant later called Pat asking her to call

Meredith about the eBay printouts, which Pat did.

Before Defendant arrived at her home on 3 November 2006,

Pat received a call from Linda stating that Michelle was

deceased. Pat decided not to tell Defendant over the phone.

When Defendant arrived at her home, Defendant’s stepfather told

Defendant of Michelle’s death, and Defendant fell to the ground

and began crying.

-26-

Defendant’s sister Heather McCracken (“Heather”) and his

brother-in-law, Joe McCracken (“Joe”), came to the home to see

Defendant, who was pale, crying, and laying with a blanket

draped over himself in a recliner. Joe drove Defendant, Pat,

and Heather in his Ford Explorer to Meredith’s home in Fuquay-

Varina. During the ride, Defendant said he would lose his home

and that there was no way he could afford the home. Defendant’s

luggage remained in his vehicle and Pat said nothing was removed

between his arrival in Brevard and their arrival at Meredith’s

home in Fuquay-Varina.

Pat and Defendant’s family later packed up the Youngs’ home

two months after Michelle’s death and found a cigar humidor that

said “Quick Set” on the exterior. Defendant previously sold

Quick Set locks. A credit card purchase was made on a credit

card in Michelle’s name at a Tampa, Florida store called “Cigars

by Antonio.”

Defendant introduced testimony of a newspaper deliveryman

who drove by the Youngs’ home at 5108 Birchleaf Drive around

3:50 a.m., noticed that nothing seemed unusual, and did not see

a vehicle.

A neighbor, Cynthia Beaver (“Ms. Beaver”), testified that

she passed by the Youngs’ home between 5:20 and 5:30 a.m. and

-27-

saw that the home’s lights and driveway lights were on, and that

there was a light-colored “soccer-mom car” with its lights on

and placed at the edge of the driveway. Ms. Beaver said a white

male was in the driver’s seat and another person was in the

passenger’s seat, who may have been a female. Another neighbor,

Fay Hinsley, said she saw an empty S.U.V. at the edge of the

driveway between 6 and 6:30 a.m.

Unlike the first trial, Defendant did not testify at his

second trial. Defendant rested his case on 29 February 2012.

The jury returned a unanimous verdict finding Defendant guilty

of first-degree murder of Michelle. The trial court then

entered a life without parole sentence as required by law.

II. Jurisdiction

Defendant’s appeal from the superior court’s final judgment

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A–

27(b), 15A–1444(a) (2013).

III. Analysis

a. Introduction of Civil Judgment and Pleadings

Defendant argues that introduction of a default judgment

and complaint in a wrongful death suit, which stated that

Defendant killed Michelle, is reversible error. We agree.

Defendant also argues that introducing the child custody

-28-

complaint into evidence against Defendant was reversible error.

We agree.2

Introduction of the complaints and default judgment concern

whether the trial court erred by violating N.C. Gen. Stat. § 1-

149 (2013). Introduction of this evidence is reviewed de novo.

State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989)

(holding that a violation of a statutory mandates is reviewable

de novo without objection).

The State argues that State v. Ashe, 314 N.C. 28, 331

S.E.2d 652 (1985) precludes de novo review of these issues

because Defendant cited only Rule 403 of the Rules of Civil

Procedure when objecting to introduction of the default judgment

and complaint. We disagree. Ashe recognizes that “when a trial

court acts contrary to a statutory mandate and a defendant is

prejudiced thereby, the right to appeal the court’s action is

preserved, notwithstanding defendant’s failure to object at

trial.” Id. at 39, 331 S.E.2d at 659. Further, “‘where

evidence is rendered incompetent by statute, it is the duty of

the trial judge to exclude it, and his failure to do so is

reversible error, whether objection is interposed and exception

2

Because we grant Defendant a new trial based on the trial

court’s improper admission of evidence under N.C. Gen. Stat. §

1-149, we do not address Defendant’s motion for appropriate

relief because it is moot.

-29-

noted or not.’” Christensen v. Christensen, 101 N.C. App. 47,

54–55, 398 S.E.2d 634, 638 (1990) (quoting State v. McCall, 289

N.C. 570, 577, 223 S.E.2d 334, 338 (1976)) (emphasis added),

superseded by statute as stated in Offerman v. Offerman, 137

N.C. App. 289, 527 S.E.2d 684 (2000).

Under de novo review, we examine the case with new eyes.

“[D]e novo means fresh or anew; for a second time, and an appeal

de novo is an appeal in which the appellate court uses the trial

court’s record but reviews the evidence and law without

deference to the trial court’s rulings.” Parker v. Glosson, 182

N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks

and citations omitted). “Under a de novo review, the court

considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.” Craig v. New Hanover

Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354

(2009) (quotation marks and citation omitted).

The first issue concerning admitting evidence of the

default judgment may also be reviewed as an evidentiary matter

de novo, for an abuse of discretion, and under plain error.

State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986);

State v. Martinez, 212 N.C. App. 661, 664, 711 S.E.2d 787, 789

-30-

(2011); State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d

790, 797 (2011).

“When discretionary rulings are made under a

misapprehension of the law, this may constitute an abuse of

discretion.” Gailey v. Triangle Billiards & Blues Club, Inc.,

179 N.C. App. 848, 851, 635 S.E.2d 482, 484 (2006).

Plain error is explained in State v. Lawrence, 365 N.C 506,

723 S.E.2d 326 (2012):

For error to constitute plain error, a

defendant must demonstrate that a

fundamental error occurred at trial. To show

that an error was fundamental, a defendant

must establish prejudice that, after

examination of the entire record, the error

had a probable impact on the jury’s finding

that the defendant was guilty. Moreover,

because plain error is to be applied

cautiously and only in the exceptional case,

the error will often be one that seriously

affects the fairness, integrity or public

reputation of judicial proceedings.

Id. at 518, 723 S.E.2d at 334 (quotation marks and citations

omitted).

N.C. Gen. Stat. § 1-149 provides that “[n]o pleading can be

used in a criminal prosecution against the party as proof of a

fact admitted or alleged in it.” Id. (emphasis added).3

Further:

3

We note that N.C. Gen. Stat. § 1-149 was not brought to the

-31-

[A] judgment in a civil action is not

admissible in a subsequent criminal

prosecution although exactly the same

questions are in dispute in both cases, for

the reason that the parties are not the

same, and different rules as to the weight

of the evidence prevail.

State v. Dula, 204 N.C. 535, 536, 168 S.E. 836, 836–37 (1933)

(quotation marks and citation omitted).

Dula is a criminal embezzlement case where a civil

complaint showing a contract for the sale of thirteen pianos was

admitted by the defendant’s answer. The defendant alleged in

his answer that he had paid the full price of the pianos

described in the complaint and had settled the contract with

plaintiff’s agent. Dula, 204 N.C. at 535, 168 S.E. at 836. At

the defendant’s criminal trial, evidence from the civil

pleadings was introduced to show that the pianos involved in the

civil dispute were the identical pianos at issue in the criminal

dispute, thus seeking to prove a fact from the pleadings in a

criminal case. Id. at 536, 168 S.E. at 836. The trial court

was reversed for allowing this evidence at the defendant’s

criminal trial. Id. at 537, 168 S.E. at 837. Thus, Dula

provides an example of N.C. Gen. Stat. § 1-149 as applied and

trial court’s attention by the State or Defendant’s counsel. In

our review, we did not uncover mention of N.C. Gen. Stat. § 1-

149 in common references, such as the Trial Judges’ Bench Book.

-32-

illustrates the second portion of the statute, namely that civil

judgments and/or pleadings may not be used to prove a fact

contained therein at a subsequent criminal trial.

In State v. Wilson, 217 N.C. 123, 7 S.E.2d 11 (1940), our

Supreme Court recognized that reading “certain allegations of

fact contained in the complaint in a civil action against [the

defendant]” and asking the defendant “if he had not failed to

deny them by any answer” would infringe upon the statutory

guarantee against using pleadings in “‘a criminal prosecution

against the party as proof of a fact admitted or alleged.’” Id.

at 126–27, 7 S.E.2d at 13 (quoting State v. Ray, 206 N.C. 736,

737, 175 S.E. 109, 110 (1934)).

Wilson was also a criminal embezzlement case where a civil

court’s order finding the defendant had “made loans to himself

of his wards’ funds [and] mismanaged the funds belonging to the

estate of his wards.” Id. at 126, 7 S.E.2d at 13. The court

didn’t question “[t]he propriety of the action of Judge Sink in

making the orders referred to,” but did find it was “prejudicial

to the defendant on this trial, charged with a felony, to have

the weighty effect of those statements, opinions and court

orders, relative to the matter then being inquired into, laid

before the impaneled jury.” Id. at 126, 7 S.E.2d at 12. The

-33-

Supreme Court said it would be proper to cross-examine the

defendant at length about his transactions as administrator of

the estate for impeachment purposes, “but it would not have been

competent for the State to offer affirmative evidence of these

collateral matters” unless they were so connected with the

indicted charge as to illuminate the question of “fraudulent

intent or to rebut special defenses.” Id. at 127, 7 S.E.2d at

13.

The State cites several cases where civil pleadings and

judgments were admitted in a subsequent criminal trial. State

v. Rowell, 244 N.C. 280, 93 S.E.2d 201 (1956); State v.

Phillips, 227 N.C. 277, 41 S.E.2d 766 (1947); State v. McNair,

226 N.C. 462, 38 S.E.2d 514 (1946); State v. Fred D. Wilson, 57

N.C. App. 444, 291 S.E.2d 830, disc. rev. denied, 306 N.C. 563,

294 S.E.2d 375 (1982). None of these cases involve default

judgments against a defendant, wrongful death judgments against

a defendant, or non-testifying defendants. Additionally, these

cases involve admitting pleadings and/or judgments in a civil

case at a subsequent criminal trial for a different purpose than

as proof of a fact alleged in the criminal trial.

In Rowell, the defendant was charged criminally for

involuntary manslaughter, as he caused his passenger’s death

-34-

after colliding with a large truck operated by Mr. Wiley Goins.

244 N.C. at 280, 93 S.E.2d at 201. The decedent’s estate filed

a wrongful death action against Mr. Goins, which was pending at

the time of the defendant’s trial. Id. Mr. Goins testified on

behalf of the State, and on cross-examination, the defendant’s

counsel asked Mr. Goins whether he was facing a wrongful death

suit from the decedent’s estate. Id. The trial court refused

to allow Mr. Goins to be cross-examined on the pending lawsuit.

Id. The Supreme Court reversed the defendant’s conviction,

holding that cross-examination of the pending civil action would

show the bias of the witness and that the witness had an

interest in the outcome of the criminal prosecution of

defendant. Id.

In Phillips, the defendant’s relationship with his wife

deteriorated when his first wife discovered that he had entered

into a bigamous marriage with another woman from Raleigh

(“second wife”). 227 N.C. at 278–79, 41 S.E.2d at 767. The

defendant was charged with murdering his first wife. Id. The

second wife testified and the Court held that her testimony “was

a proper link in the chain of circumstances tending to show

motive.” Id. at 279, 41 S.E.2d at 766. A complaint filed by

the second wife to annul the bigamous marriage was also

-35-

introduced, but the Court held that the complaint was only used

to corroborate the testimony of the second wife and that the

error was harmless. Id. Thus, the complaint showing a bigamous

contract of marriage was not used to show “proof of a fact

alleged” by the second wife, but was only used for corroborative

purposes. Id.

In McNair, the defendant was prosecuted for larceny of an

automobile. 226 N.C. at 462, 38 S.E.2d at 515. The defendant

had filed a civil complaint concerning the ownership of a

vehicle and then testified at his criminal trial in a contrary

manner from his complaint. Id. at 463–64, 38 S.E.2d at 516.

The State explicitly announced that they were introducing the

complaint to impeach the defendant’s contrary testimony at

trial. Id. Thus, the court said “no impingement upon the

statute was intended or resulted from the cross-examination.”

Id. at 464, 28 S.E.2d at 516.

In Fred D. Wilson, the defendant was prosecuted for

obtaining property via false pretenses in a real-estate scheme,

and the State presented several outstanding civil judgments

against the defendant. 57 N.C. App. at 449–50, 291 S.E.2d at

833. This Court distinguished the case from Dula, saying that

in Dula “pleadings and a civil judgment entered against

-36-

defendant were erroneously admitted to prove the same facts

necessary to obtain a criminal conviction against the

defendant.” Id. at 450, 291 S.E.2d at 834. This Court held

that rather than attempting to prove the truth of the facts

underlying the civil judgment, the State was attempting to show

the defendant’s financial motive for committing his crimes in

Fred D. Wilson, as he had defaulted on several judgments due to

insufficient funds. Id.

This Court addresses a different set of facts than Fred D.

Wilson, McNair, Phillips, and Rowell. Before the re-trial,

Defendant’s counsel learned that the State planned to introduce

evidence about the civil actions against Defendant. Defendant’s

counsel did not research whether this evidence was admissible,

nor did counsel move prior to trial to exclude the evidence on

any ground. Rather, Defendant’s counsel requested discovery of

the civil attorney’s files. The State replied that it planned

to produce all public records in the civil case, have a witness

explain the documents, and cross-examine Defendant if he

testified. The trial court held that the evidence could be

inquired into at trial, if relevant.

During the trial, Wake County Clerk Lorrin Freeman (“Ms.

Freeman”) testified that on 29 October 2008, Linda filed a

-37-

wrongful death lawsuit against Defendant on behalf of the

estate. Ms. Freeman introduced Linda’s request for Defendant’s

disqualification under the slayer statute. Ms. Freeman

explained that a wrongful death action is a monetary claim for

relief filed against a party who is alleged to have directly

caused a decedent’s death. The prosecutor requested Ms. Freeman

to read the sixth paragraph of the complaint aloud in court in

front of the empaneled jury, which said “[i]n the early morning

hours of November 3rd, 2006 Jason Young brutally murdered

Michelle Young.”

Ms. Freeman testified that the file showed no attorney on

Defendant’s behalf, and she also stated that Defendant did not

respond to the suit. Ms. Freeman explained that by failing to

answer, Defendant’s action had “the legal implication or the

legal result of the defendant having admitted the allegations as

set forth in the complaint.” Ms. Freeman entered a default on 2

December 2008 and thereafter, Linda moved for a default judgment

and slayer declaration.

Judge Stephens heard the motion on 5 December 2008. Ms.

Freeman testified, over Defendant’s objection, that Judge

Stephens reviewed the evidence and attachments to the motion and

entered a judgment declaring that Defendant killed Michelle.

-38-

Ms. Freeman also testified that Defendant could have presented

evidence in the civil action, and Defendant levied a Rule 403

objection.

In sum, Ms. Freeman read aloud a civil judgment that

declared Defendant had killed his wife. Ms. Freeman read aloud

that Judge Stephens, the presiding judge in Defendant’s criminal

trial, entered judgment against Defendant after reviewing the

evidence. Ms. Freeman read aloud that Defendant did not respond

to the complaint and informed the jury that his action was

legally operative as an admission under a civil standard.

Additionally, the trial court admitted a “Child Custody

Complaint Motion for Psychological Evaluation” into evidence

without any restrictions which also included statements that

Defendant had killed his wife Michelle.

The State did not offer an explicit purpose at trial for

offering evidence of the default judgment nor did the State

offer a purpose for admitting the child custody complaint. The

State now articulates an impeachment purpose on appeal,

asserting that the civil pleadings and judgment were used to

show Defendant’s unusual reaction to civil suits and to show

Defendant’s silence in not responding to the lawsuits cast doubt

on his subsequent testimony at his first trial. The State also

-39-

argues the purpose of introducing the evidence contained in the

civil filings was to “show that [Defendant] had great incentives

to answer the civil matters and explain the evidence.” This

stated purpose demonstrates the State’s intention of introducing

these civil pleadings and judgments: to show proof of

Defendant’s guilt, in violation of N.C. Gen. Stat. § 1-149.

Further, the State’s argument that the civil suits were

used to cast doubt on Defendant’s 22 June 2011 testimony

concerns testimony that the State actually introduced at the

second trial. This purpose was not stated at trial, and the

impeachment value of introducing these civil suits remains

unclear, as Defendant did not file a custody complaint, nor did

he testify at the second trial. Essentially, the State is

requesting to impeach evidence it offered.

Secondly, the State cannot articulate a corroborative

purpose for this evidence. These civil complaints would only be

useful in corroborating the opinions of guilt made by Michelle’s

mother, Linda Fisher. Linda’s opinions are themselves

inadmissible, leaving no proper corroborative purpose. State v.

Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986). No res

judicata effect was applicable. Dula, 204 N.C. at 536, 168 S.E.

at 837.

-40-

The jury instructions did not explicitly prohibit the jury

from using the default judgment or the child custody complaint

filed against Defendant as proof of Defendant’s guilt in the

criminal case. The trial court ruled that the civil matters

“might be relevant to any number of matters that the jury has

already heard and will hear.” However, the transcript shows the

trial court did not articulate a clear basis for admitting

either item or the limited purposes for which the jury could use

these judgments:

If a civil complaint is filed by plaintiff

and the parties in a civil action are

designated plaintiff, the person bringing

the complaint, and the defendant, the person

or entity being sued, if a civil complaint

is filed by a plaintiff with the clerk of

Superior Court, Lorrin Freeman and her

office, and if a civil summons is issued by

an officer of the court commanding the

defendant named in the complaint to respond

and otherwise answer to the allegations of

the complaint within the time required by

law and if the defendant named in the

complaint is properly served with this

complaint and this summons and if the

defendant is an adult and is not otherwise

incapacitated or in the military and if the

defendant fails to file an answer to that

civil complaint or otherwise respond to the

allegations within the time required by law

and if the plaintiff filing the complaint

moves that the court to enter judgment in

the plaintiff’s favor by reason of that

failure to respond or answer, then under the

rules of civil law in civil cases and under

the rules of the court a judgment can be

-41-

entered in favor of the plaintiff bringing

the lawsuit. Both failure for the defendant

named to respond or otherwise answer the

allegations, for purposes of the civil case

that’s been filed the allegations of the

complaint under those circumstances, whether

actually true or not, which have not been

denied by the named defendant are deemed in

the civil law to have been admitted for the

purpose of allowing the plaintiff to have

judgment entered in the plaintiff’s favor.

The entry of a civil judgment is not a

determination of guilt by any court that the

named defendant has committed any criminal

offense.

. . . .

I further instruct you there is evidence

that tends to show that a civil complaint

was filed in the Civil Superior Court of

Wake County against the defendant by Linda

Fisher on behalf of the Estate of Michelle

Young and that a civil summons was issued by

the clerk of the court commanding the

defendant to answer or otherwise respond to

the allegations of that civil complaint

within the time required by law. There is

further evidence that tends to show that the

defendant was timely served with these

documents and that he did not file an answer

or otherwise respond to the complaint and

that a default judgment was entered against

him by reason of that failure.

As I previously instructed you, when a

defendant in a civil action has been

properly served with the civil summons and

the civil complaint and fails to timely

respond, upon motion of the plaintiff the

Court is authorized to enter a civil

judgment against the defaulting defendant.

For purpose of the civil law, the

allegations of the complaint which have not

-42-

been denied, whether actually true or not,

are deemed to be admitted for the purpose of

allowing the plaintiff to have a civil

judgment entered against the defendant. The

burden of proof in a civil case requires

only that the plaintiff satisfy the Court or

the jury by the greater weight of the

evidence that the plaintiff’s claims are

valid. This means that the plaintiff must

prove that the facts are more likely than

not to exist in the plaintiff’s favor. When

there is a default, that burden of proof is

deemed in law to be met.

The entry of a civil default judgment is not

a determination of guilt by the Court that

the named defendant has committed any

criminal offense.

Still further, the State does not point to an instance where a

trial court has attempted to gain admission of a default

judgment and a slayer determination in a homicide prosecution.

Defendant points our attention to In re J.S.B., 183 N.C. App.

192, 202, 644 S.E.2d 580, 586, writ denied, review denied, 361

N.C. 693, 652 S.E.2d 645 (2007), as an example where this Court

held that a voluntary manslaughter finding from a termination of

parental rights proceeding could not be used if the State

commenced a subsequent criminal prosecution against that

defendant.

Admitting the wrongful death judgment, the complaint in

that case, and the complaint in the child custody case were also

abuses of discretion. “When the intrinsic nature of the

-43-

evidence itself is such that its probative value is always

necessarily outweighed by the danger of unfair prejudice, the

evidence becomes inadmissible under [Rule 403] as a matter of

law.” State v. Scott, 331 N.C. 39, 43, 413 S.E.2d 787, 789

(1992). Defendant’s presumption of innocence was irreparably

diminished by the admission of these civil actions. This is

similar to the prejudice that a jury has when it learns a

defendant is previously convicted of a charged offense. State

v. Lewis, 365 N.C. 488, 498, 724 S.E.2d 492, 499 (2012).

Criminal judgments are clearly admissible in slayer actions.

Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 57, 213

S.E.2d 563, 569 (1975). However, as Defendant states, the

converse is typically not true because admitting such evidence

creates great prejudice against the Defendant’s innocence and

increases the chance that an unreliable guilty verdict may be

rendered. Even greater still is the prejudice to Defendant when

a juror is told that the presiding judge in the case reviewed

the evidence before the jury and entered a default judgment

against a defendant. The danger of unfair prejudice vastly

outweighed the probative value in this case and admission of the

evidence was abuse of discretion in Defendant’s trial. It is

also an abuse of discretion to make a ruling under a

-44-

misapprehension of the law as occurred here, where the trial

court conducted no inquiry concerning N.C. Gen. Stat. § 1-149.

Because the trial court disregarded a statute, we hold the

trial court erred in admitting evidence of both the entry of

default judgment against Defendant and the child custody

complaint against Defendant, and because entry of both items was

prejudicial to Defendant, we hold that Defendant must receive a

new trial. Because we hold that the trial court violated § 1-

149 in admitting these civil matters, we do not address

Defendant’s arguments concerning judicial opinions or

Defendant’s argument that insufficient evidence existed to deny

a motion to dismiss. We continue to address the admissibility

of Emily’s statements and evidence of Defendant’s silence. We

address these issues because they are likely to recur at

Defendant’s re-trial.

b. Admission of Emily’s Statements at Daycare

Defendant argues that statements made by Emily to daycare

workers that were admitted via the workers’ testimony were

hearsay outside the scope of any exception and/or overwhelmingly

prejudicial. Defendant objected to this evidence at trial.

This issue is an evidentiary issue that is reviewed de novo.

“When the admissibility of evidence by the trial court is

-45-

preserved for review by an objection, we review the trial

court’s decision de novo.” Martinez, 212 N.C. App. at 664, 711

S.E.2d at 789. “When preserved by an objection, a trial court’s

decision with regard to the admission of evidence alleged to be

hearsay is reviewed de novo.” Johnson, 209 N.C. App. at 692,

706 S.E.2d at 797.

The State argues that Defendant did not preserve this issue

for appellate review. We disagree. After the prosecution

advised the court outside the jury’s presence that it would put

forth two witnesses that would relate Emily’s statements at

daycare, the following dialogue occurred between Defendant’s

counsel and the trial court:

THE COURT: Okay. I know you’ve objected to

the testimony of the witness. We heard Ms.

Palmatier Friday afternoon. I take it you

object to this line of testimony and

evidence in its entirety.

[DEFENSE COUNSEL]: We would, your Honor, on

grounds previously stated.

THE COURT: As I understand, your position is

that the statement of the child is hearsay

and not otherwise admissible, as well as

it’s not a foundation to show that the

capacity of the child to fully understand

and appreciate and relate her observations

due to her age and that her conduct is also

ambiguous.

[DEFENSE COUNSEL]: That is correct, your

Honor, as well as confrontation/cross-

-46-

examination grounds and due process and 403.

THE COURT: And as I understand it, you

object to any testimony with regard to the

child herself because you contend the

testimony with regard to the child is not

relevant to any issue in these proceedings.

[DEFENSE COUNSEL]: That is correct.

THE COURT: I mean, the learning and her

schooling and observations about the folks

at school and things like that.

[DEFENSE COUNSEL]: That is correct, your

Honor.

THE COURT: All right. Well, I do believe it

is relevant and I have overruled your

previous objections and your objections are

preserved for the record and the objection

goes to the testimony of every witness on

this subject as I understand it.

This portion of the trial transcript demonstrates the trial

court’s granting of a line or continuing objection pursuant to

N.C. Gen. Stat. § 15A-1446(d)(10) (2013); State v. Crawford, 344

N.C. 65, 76, 472 S.E.2d 920, 927 (1996). While Defendant’s

counsel objected to a question on redirect asking the first

daycare worker to compare the size of the dolls to Defendant and

Michelle, this was a properly lodged objection as it exceeded

the scope of the granted line objection, although the objection

was sustained. Defendant’s second objection when the second

daycare worker took the stand and began to relate hearsay

-47-

statements was a simple reaffirmation of the originally granted

line objection. Therefore de novo review of this issue is

appropriate.

The State presented the testimony of Emily’s daycare

worker, Ms. Palmatier. Ms. Palmatier testified during voir dire

that on 9 November 2006 she told a Wake County detective that

Emily hit two female dolls together with a dollhouse chair and

said, “[M]ommy’s getting a spanking for biting. . . . [M]ommy

has boo-boos all over.” Ms. Palmatier then testified that,

after a nap, Emily said “[Mommy] fell on the floor. Now she’s

on the bed with animals, animals were in the barn, they were

asleep. There was a cow. Daddy bought me new fruit snacks.”

The State argued that this was evidence Emily saw the murder,

and that it was probative of Defendant’s identity as she was

later found unharmed.

Defendant’s counsel objected to this evidence, citing

hearsay, due process, lack of competency, relevance, and undue

prejudice. The trial court ruled that (1) the statements met

the present sense impression, excited utterance, and residual

hearsay exceptions; (2) the evidence was relevant to determine

the killer’s identity; and (3) the evidence was more probative

than prejudicial.

-48-

The court sua sponte excluded Emily’s post-nap statements

and granted the defense a continuing objection to Emily’s

testimony. The trial court instructed the jury that evidence

was being introduced of Emily’s observations, made when she “may

have had some memory” of Michelle’s death. The trial court

instructed the jury that it could use Emily’s statements to

determine whether Emily witnessed a portion of the assault on

Michelle.

Emily’s daycare teacher then testified that on 9 November

2006, Emily asked her for “the mommy doll.” The teacher gave

Emily a bucket of dolls. Emily picked two dolls, one female

with long hair and one with short hair, and hit them together.

Ms. Palmatier testified that she saw Emily strike a “mommy doll”

against another doll and a dollhouse chair while saying,

“[M]ommy has boo-boos all over” and “[M]ommy’s getting a

spanking for biting. . . . [M]ommy has boo-boos all over, mommy

has red stuff all over.”

Defendant first argues that the evidence was not relevant.

Relevant evidence is evidence that has “any tendency to make the

existence of any fact that is of consequence to the

determination more probable or less probable than it would be

without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401. “A

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trial court’s rulings on relevancy are technically not

discretionary, though we accord them great deference on appeal.”

State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (2011). We

agree with the State that the evidence clearly related to the

identity of Michelle’s assailant. The evidence was probative

that Emily observed her mother’s assault, and that the assailant

cared for Emily in some way, as he or she left Emily unharmed

after the assault.

Secondly, Defendant argues that the statements made at

daycare were inadmissible hearsay and do not fit within any

hearsay exception. We hold the statements are hearsay, but that

they fit within the excited utterance exception pursuant to this

Court’s decisions in State v. Rogers, 109 N.C. App. 491, 501,

428 S.E.2d 220, 226, cert. denied, 334 N.C. 625, 435 S.E.2d 348

(1993), cert. denied, 511 U.S. 1008 (1994), and State v. Thomas,

119 N.C. App. 708, 712–14, 460 S.E.2d 349, 352–53, disc. review

denied, 342 N.C. 196, 463 S.E.2d 248 (1995).

Hearsay is “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen.

Stat. § 8C-1, Rule 801(c). A “statement” is an oral or written

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assertion or “nonverbal conduct of a person . . . intended by

him as an assertion.” N.C. Gen. Stat. § 8C-1, Rule 801(a).

Emily’s statements consisted of striking the “mommy” doll

while saying, “[M]ommy’s getting a spanking for biting” and

“[M]ommy has boo-boos all over, mommy has red stuff all over.”

The trial court found that these were statements made by Emily,

and that they were offered for the truth of the matter asserted.

We agree, and note that the trial court also found that these

phrases spoken by Emily were to describe past events via the

words and actions of a two and a half year old child. The age

of Emily at the time of the statements likely meant she could

express herself in a limited way as to her observations. Fact-

finders may find that an alternate meaning exists when

considering the words of young children who lack the verbal

clarity often present in adults. See, e.g., State v. Smith, 315

N.C. 76, 80, 337 S.E.2d 833, 837 (1985) (considering statements

of a young child that used figurative language to describe a sex

act).

However, if a statement is hearsay, it may still be

admitted if it falls within one of the exceptions to the hearsay

rule. The primary exception at issue in this case is the

excited utterance exception. N.C. Gen. Stat. § 8C-1, Rule

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803(2). For the excited utterance exception to apply, “there

must be (1) a sufficiently startling experience suspending

reflective thought and (2) a spontaneous reaction, not one

resulting from reflection or fabrication.” Smith, 315 N.C. at

86, 337 S.E.2d at 841. “The rationale underlying the

admissibility of an excited utterance is its inherent

trustworthiness.” State v. Guice, 141 N.C. App. 177, 200, 541

S.E.2d 474, 489 (2000), opinion adhered to as modified on

reconsideration, 151 N.C. App. 293, 564 S.E.2d 925 (2002).

Excited utterances are often made and admitted into

evidence because they fall within a timeframe that is close in

proximity to the startling event. See, e.g., id. at 201, 541

S.E.2d at 489 (finding a statement made to an officer within

“several minutes” of the defendant dragging the victim from the

home and while struggling to breathe fell within the requisite

time frame). However, this Court has held that “the stress and

spontaneity upon which the exception is based [are] often

present for longer periods of time in young children than in

adults.” Rogers, 109 N.C. App. at 501, 428 S.E.2d at 226

(quotation marks and citation omitted); see also Smith, 315 N.C.

at 87–88, 337 S.E.2d at 841 (“This ascertainment of prolonged

stress is born of three observations. First, a child is apt to

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repress the incident. Second, it is often unlikely that a child

will report this kind of incident to anyone but the mother.

Third, the characteristics of young children work to produce

declarations ‘free of conscious fabrication’ for a longer period

after the incident than with adults.” (citation and quotation

marks omitted)).

Our State’s appellate courts have thus extended the length

of time that the excited utterance exception may apply. See

Smith, 315 N.C. at 79, 86–90, 337 S.E.2d at 836, 841–43 (four

and five-year-olds’ statements made two to three days after

being sexually abused were admissible); Thomas, 119 N.C. App. at

712–14, 460 S.E.2d at 352–53 (five-year-old’s statements made

four to five days after sexual abuse were admissible); Rogers,

109 N.C. App. at 501, 428 S.E.2d at 226 (five-year-old’s

statements made three days after sexual abuse admissible).

Thus, the outer time limit at present is four to five days

from the event a child has made statements about. Emily was

also younger than the other children discussed above in prior

cases this Court has considered. Emily’s statements were made

six days after her mother was killed and were made while she

played with dolls, without prompting or questioning from adults.

We hold that the attendant circumstances in this case merit

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application of the excited utterance exception and that the

trial court did not err in admitting Emily’s statements.

Because we hold Emily’s statements were admitted properly under

the excited utterance exception to the hearsay rule, we do not

address whether the present sense impression or residual

exception apply to this case.

c. Defendant’s Silence as Substantive Evidence

The trial court offered the following jury instructions as

they relate to Defendant’s refusal to speak with police and his

family members:

Ladies and gentlemen, the Fifth Amendment to

the United States Constitution protects a

citizen’s right to refuse to answer

questions of the police during a criminal

investigation. The exercise of that

Constitutional right may not be used as

evidence against that citizen later at trial

to create an inference of guilt. Therefore,

the defendant’s decision not to answer

questions by law enforcement officers during

the criminal investigation may not be

considered against him as evidence of guilt

to the pending charge. However, that same

Fifth Amendment does permit the jury to

consider the defendant’s refusal to answer

police questions to the extent that the

evidence surrounding that refusal bears upon

the defendant’s truthfulness if the

defendant elects to testify or made a

statement at a later time. The evidence

presented in this case tends to show that

the defendant elected to testify at a prior

trial.

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Therefore, I instruct you that you may

consider evidence of the defendant’s refusal

to answer police questions during this

investigation for one purpose only. If, in

considering the nature of that evidence, you

believe that such evidence bears upon the

defendant’s truthfulness as a witness at his

prior trial, then you may consider it for

that purpose only. Except as it relates to

the defendant’s truthfulness, you may not

consider the defendant’s refusal to answer

police questions as evidence of guilt in

this case.

I also instruct you that this Fifth

Amendment protection applies only to police

questioning. It does not apply to questions

asked by civilians, including friends and

family of the defendant and friends and

family of the victim.

Defendant argues that the trial court committed plain error

by instructing the jury that it could consider Defendant’s

failure to speak with friends and family as substantive evidence

of guilt. We disagree and find that the instruction was proper.

The Fifth Amendment’s protection against self-incrimination

does not extend to questions asked by civilians. Oregon v.

Elstad, 470 U.S. 298, 304-05 (1985) (“The Fifth Amendment, of

course, is not concerned with nontestimonial evidence. Nor is

it concerned with moral and psychological pressures to confess

emanating from sources other than official coercion.” (citations

and quotation marks omitted) (emphasis added)).

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Defendant argues that Defendant’s silence in response to

questions from non-officers should be offered for impeachment

purposes only. Defendant cites State v. Mack, 282 N.C. 334,

339–40, 193 S.E.2d 71, 75–76 (1972), and State v. Hunt, 72 N.C.

App. 59, 61, 323 S.E.2d 490, 492 (1984), aff’d without

precedential value, 313 N.C. 593, 330 S.E.2d 205 (1985), for the

proposition that pre-arrest silence may only be used to impeach

a defendant’s pre-trial statement or trial testimony. Mack held

that “[p]rior statements of a witness which are inconsistent

with his present testimony are not admissible as substantive

evidence because of their hearsay nature.” 282 N.C. at 339, 193

S.E.2d at 75; see also State v. Black, ___ N.C. App. ___, ___,

735 S.E.2d 195, 202 (2012) (citing Mack, 282 N.C. at 339–40, 193

S.E.2d at 75)), appeal dismissed, review denied, ___ N.C. ___,

738 S.E.2d 391 (2013). However, Mack concerned the substantive

use of silence within the context of a testifying non-party

witness making statements to a police officer. 282 N.C. at 339,

193 S.E.2d at 75. Hunt was affirmed without precedential value

by the North Carolina Supreme Court, 313 N.C. at 593, 330 S.E.2d

at 205, but also involved silence with respect to police

questioning. 72 N.C. App. at 61–62, 323 S.E.2d at 492.

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Defendant’s friends and family asked him about Michelle’s

murder on several occasions and Defendant did not offer

statements to his friends and family about the evening’s events.

The State contends that Defendant’s later version of events

offered at his first trial were inconsistent with his earlier

silence and that the discrepancy “tend[s] to reflect the mental

processes of a person possessed of a guilty conscience seeking

to divert suspicion and to exculpate [himself].” State v.

Redfern, 246 N.C. 293, 298, 98 S.E.2d 322, 326 (1957) (holding

that conflicting statements amount to “substantive evidence of

substantial probative force, tending to show consciousness of

guilt”). Defendant’s silence to non-officers may provide

substantive evidence of guilt because statements or silence to

questioning from non-police officers are not granted the same

protections under the Fifth Amendment and are probative of

Defendant’s mental processes. Thus, the evidence was proper for

substantive consideration by the jury.

Defendant also argues that the trial court committed plain

error in offering its jury instruction. Defendant argues that

the trial court should have instructed the jury that the

evidence did not create a presumption of guilt, was insufficient

alone to establish guilt, and that the evidence could not be

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considered as to premeditation and deliberation. State v.

Myers, 309 N.C. 78, 88, 305 S.E.2d 506, 512 (1983). Defendant

argues that a new trial was required because the case was

“entirely circumstantial.” Id.

In Myers, the defendant objected to the instruction, the

witnesses relied upon by the State had severe credibility

issues, and the trial court placed an “emphasis upon the

negative aspect of defendant’s statements.” Id. Here, there

was minimal mention by the State that Defendant was silent to

his friends and family. We hold that Defendant’s pre-arrest

silence coupled with evidence that whoever killed Michelle did

so with premeditation and deliberation and the limited referral

to Defendant’s silence about the murder to friends and family

did not rise to the level of plain error having a probable

impact on the verdict. See Lawrence, 365 N.C. at 518, 723

S.E.2d at 334.

IV. Conclusion

The introduction into evidence of the civil complaints and

judgment was in error and violated N.C. Gen. Stat. § 1-149, as

the evidence was used to prove a fact — namely, that Defendant

had killed Michelle — Defendant is deemed to have admitted in

the wrongful death civil action and which had been alleged in

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the child custody proceeding. This evidence also severely

impacted Defendant’s ability to receive a fair trial. As such,

we order a

NEW TRIAL.

Judges STROUD and DILLON concur.