State v. Bryant

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.

NO. COA13-1384

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

STATE OF NORTH CAROLINA

Brunswick County

v.

Nos. 08 CRS 52588, 3040, 11 CRS 1781

CREIG WIAND BRYANT

Appeal by defendant from judgments entered 17 September

2012 by Judge Thomas H. Lock in Brunswick County Superior Court.

Heard in the Court of Appeals 8 May 2014.

Attorney General Roy Cooper, by Special Deputy Attorney

General Jonathan P. Babb, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate

Defender Paul M. Green, for Defendant.

ERVIN, Judge.

Defendant Creig Wiand Bryant appeals from judgments

sentencing him to consecutive terms of imprisonment based upon

his convictions for robbery with a dangerous weapon, conspiracy

to commit murder, and first degree murder. On appeal, Defendant

argues that the trial court erred by refusing to admit certain

evidence on hearsay-related grounds and to allow Defendant to

have access to certain documents. In addition, Defendant argues

that we should either grant the motion for appropriate relief

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that he has filed on appeal or remand this case to the trial

court for an evidentiary hearing. After careful consideration

of Defendant’s challenges to the trial court’s judgments in

light of the record and the applicable law, we conclude that the

trial court’s judgments should remain undisturbed.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

On 30 May 2007, Delphia and Howard Bryant sold three acres

of real property located at 1820 Stone Chimney Road in Supply to

Defendant. Subsequently, Defendant, who owned a rifle with a

scope, developed financial problems, having borrowed money from

a “loan shark” in order to purchase a tractor-trailer truck.

After incurring that indebtedness, Defendant expressed an

interest in selling the Stone Chimney Road property to Adam

Bradshaw in order to obtain money to repay the “loan sharks,”

who were pressing him for payment. According to the proposed

arrangement between Defendant and Mr. Bradshaw, Mr. Bradshaw

would, after obtaining title, refrain from selling the property;

allow Defendant to repay the purchase price, with interest; and

return title to the property to Defendant at the completion of

the repayment process.

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Mr. Bradshaw worked as a real estate broker for Century 21

and was known for driving a royal blue Mustang convertible. Mr.

Bradshaw’s Mustang bore a license plate reading “C21King” and a

magnetic sign to which his name, telephone number, and the words

“Century 21” had been affixed. Prior to reaching final

agreement concerning the proposed transaction with Defendant,

Mr. Bradshaw informed Robert Schomp, a co-worker and real estate

broker, that Defendant was seeking to sell the Stone Chimney

Road property quickly and that it could be purchased “dirt

cheap.” Although Mr. Schomp was told that the purchase price

for the Stone Chimney Road property would be $29,000, he

declined to become involved in the proposed transaction out of

“great concern” stemming from the fact that the purchase price

was well below market value.

On 5 December 2007, Mr. Bradshaw purchased the Stone

Chimney Road property from Defendant. H. Mac Tyson, II, who had

an office across from Mr. Bradshaw’s, handled the transaction

for Defendant and Mr. Bradshaw. According to the agreement

between the parties, Defendant was to receive a sales price of

$22,500 and use the proceeds from the sale of the Stone Chimney

Road property to provide a down payment in connection with the

purchase of a separate tract of land. In addition, the parties

agreed that Defendant had the right to repurchase the property

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from Mr. Bradshaw for $17,500 if the related option was

exercised prior to midnight on 5 June 2008. The agreement

between the parties specifically stated that the sales price was

“well below [the] tax value” given Defendant’s need to make a

“quick cash sale.”

After purchasing the Stone Chimney Road property, Mr.

Bradshaw attempted to sell it. However, Mr. Bradshaw had

trouble selling the property. Mr. Bradshaw’s efforts to sell

the property were hampered by a number of factors, including the

repeated theft of the “for sale” signs posted on the property.

Although Defendant was initially pleased by his arrangement with

Mr. Bradshaw, he became dissatisfied upon learning that Mr.

Bradshaw had put the property on the market since he had agreed

to pay Mr. Bradshaw $1,500 bi-monthly as part of his effort to

repurchase the property.

Defendant’s entire family was upset by the fact that

Defendant had lost ownership of the property.1 Defendant was so

upset that he began stalking Mr. Bradshaw and told Lora

Moultrie, his girlfriend, that he was “going to kill the MF” and

enlisted her help to do so. As part of that process, Ms.

1

Howard and Delphia Bryant recorded a statement in the

office of the Brunswick County Register of Deeds on 31 January

2008, stating that the Stone Chimney Road property was not to be

sold but rather was to be transferred through the family down

the generations.

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Moultrie persuaded Robert Stanley to notarize a quitclaim deed

transferring the property from Mr. Bradshaw to Defendant, an act

that was effectuated without either party being present. This

deed was recorded on 1 February 2008.

Ms. Moultrie called Mr. Bradshaw on 16 April 2008 to

discuss selling an abandoned green home owned by her sister

located on Watts Road. Although Ms. Moultrie planned to meet

with Mr. Bradshaw on 24 April 2008 for the purpose of viewing

the property, Mr. Bradshaw canceled their appointment due to

illness. Subsequently, Ms. Moultrie called Mr. Bradshaw at

approximately 4:00 p.m. on 26 April 2008 for the purpose of

arranging a meeting with Mr. Bradshaw at the Watts Road home.

However, Ms. Moultrie did not plan to attend this meeting given

that it had been arranged to get Mr. Bradshaw to come to the

Watts Road home so that Defendant could kill him.

On 26 April 2008, Defendant drove a white pickup truck to

the residence of Christy Hughes, where he picked Ms. Hughes up.

At that time, Defendant told Ms. Hughes that he needed to go

somewhere to meet a friend. After Defendant and Ms. Hughes

arrived at the Watts Road property, Defendant gave Ms. Hughes

the keys to his truck and his telephone, told her to leave the

area, and informed her that he would notify her when it was time

for her to return and pick him up. Before leaving the Watts

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Road property, Ms. Hughes overheard Defendant speaking to Ms.

Moultrie on the phone for the purpose of asking when “he” was

going to show up.

Subsequently, Defendant called Ms. Moultrie to tell her

that Mr. Bradshaw had not arrived. As a result, Ms. Moultrie

called Mr. Bradshaw to find out why he had not kept the

scheduled appointment. During that conversation, Mr. Bradshaw

stated that, while he was going to be a little late, he still

intended to come to the Watts Road property. In light of that

fact, Ms. Moultrie called Defendant at 4:59 p.m. for the purpose

of informing him that Mr. Bradshaw was on his way.

As he traveled to Watts Road, Mr. Bradshaw spoke with Mr.

Schomp, who had called him at 5:11 p.m. after noticing that Mr.

Bradshaw was driving on Four Mile Road. During that

conversation, Mr. Bradshaw told Mr. Schomp that he had an

appointment on Watts Road. A number of other individuals saw

Mr. Bradshaw signaling for a turn from Four Mile Road onto Watts

Road or having parked his vehicle close to the Moultrie home on

Watts Road.

At least two hours after Ms. Hughes left him at the Watts

Road property, Defendant called Ms. Hughes and asked her to pick

him from a different location. After being retrieved by Ms.

Hughes, Defendant returned home to Ms. Moultrie, where he told

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her that he had killed Mr. Bradshaw. According to Defendant, he

went to the home of a man that Ms. Moutrie did not know named

Chuck, could not get a clean view of Mr. Bradshaw through the

scope of his rifle given that Mr. Bradshaw would not stay still,

and that Chuck had shot Mr. Bradshaw in the back of the head.

At that point, Defendant told Ms. Moultrie that he and Chuck had

dragged Mr. Bradshaw’s body to the end of the road and covered

it with leaves and straw.

Subsequently, Defendant and Ms. Moultrie went to the Watts

Road property, where Ms. Moultrie observed Defendant retrieving

a gun bag from a wooded area. After their visit to the Watts

Road area, Defendant and Ms. Moultrie went to South Carolina,

where they purchased gas using a credit card that belonged to

the Bradshaw family.

Mr. Bradshaw and his family were supposed to host his

father-in-law and his family for dinner at around 4:45 p.m. on

26 April 2008. Although everyone else had finished dinner by

approximately 7:00 p.m., Mr. Bradshaw’s wife became concerned

because Mr. Bradshaw had failed to come to the planned dinner,

refrained from answering her telephone calls, and did not come

home at all that night. As a result of the fact that no one had

heard anything from Mr. Bradshaw by the following day, his

family contacted the police and filed a missing person’s report.

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On 29 April 2008, investigating officers went to Watts Road

after determining that Mr. Bradshaw had been in that area on the

last occasion when anyone had seen him. As the investigating

officers drove down Watts Road, they smelled a pungent odor.

After noticing a pile of debris that appeared to be able to

contain a body, the investigating officers saw a shoe in front

of the debris pile and feet protruding from the rear. Upon

further examination of the debris pile, investigating officers

found Mr. Bradshaw’s body. A subsequent autopsy established

that Mr. Bradshaw died from a gunshot wound to the back of his

head that was probably inflicted by a high-powered rifle bullet.

On 1 May 2008, investigating officers went to the abandoned

home on Watts Road, where they found a pool of blood, what

appeared to be fragments of a human skull, and Defendant’s DNA

on hairs recovered from a mattress next to a broken window. Ms.

Moultrie eventually led the investigating officers to a location

at which they discovered Mr. Bradshaw’s car.

On 8 May 2008, Athakus Bryant brought a slug gun with a

mounted scope to the investigating officers. According to

Athakus Bryant, Defendant had brought the slug gun to his

residence at or about the time that Mr. Bradshaw was murdered

with a request that Athakus Bryant hold the slug gun for a

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period of time. A few days later, Defendant returned and showed

Athakus Bryant a rifle with a scope.

2. Defense Evidence

Mr. Bradshaw had been seen in Longwood, an area that was

known to have drug-related problems. Mr. Bradshaw smoked

cocaine with and purchased cocaine from Patrick Taylor and

Tamara Kelly. On the Friday before his disappearance, Mr.

Bradshaw purchased cocaine and headed toward Tamara Kelly’s

residence. A witness saw Mr. Taylor and Ms. Kelly driving a

blue Mustang after Mr. Bradshaw’s disappearance had become

public knowledge. As a result of the fact that numerous blue

Mustangs had been seen in the area, the witness could do no more

than say that he thought, but could not confirm, that the

vehicle in which Mr. Taylor and Ms. Kelly were driving after Mr.

Bradshaw’s disappearance had signage referencing Century 21 on

the front bumper. A second witness saw Mr. Taylor and Ms. Kelly

in Mr. Bradshaw’s Mustang on either the Sunday or the Monday

after Mr. Bradshaw’s disappearance and indicated that it was not

unusual to see different people driving Mr. Bradshaw’s car.

Another witness testified that, at approximately 8:30 p.m. on

the Saturday prior to the date upon which Mr. Bradshaw’s body

was discovered, he saw Mr. Taylor and Ms. Kelly in Mr.

Bradshaw’s vehicle. Finally, after the date of Mr. Bradshaw’s

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disappearance and before the date upon which news coverage

concerning Mr. Bradshaw’s death began to appear, a member of the

Crips gang named Richard Antwan Brown appeared at his cousin’s

residence. Although Mr. Brown usually had a neat and clean

appearance and dressed well, he was excited, in a disheveled

condition, had blood on his left sock, and emitted a foul odor.

B. Procedural Facts

On 1 May 2008, a warrant for arrest charging Defendant with

murder was issued. On 2 June 2008, the Brunswick County grand

jury returned bills of indictment charging Defendant with first

degree murder and conspiracy to commit murder. On 18 April

2011, the Brunswick County grand jury returned a bill of

indictment charging Defendant with robbery with a dangerous

weapon. The charges against Defendant came on for trial at the

20 August 2012 criminal session of the Brunswick County Superior

Court. On 17 September 2012, the jury returned verdicts

convicting Defendant as charged. At the conclusion of the

ensuing sentencing hearing, the trial court entered judgments

sentencing Defendant to a term of life imprisonment without the

possibility of parole based upon his conviction for first degree

murder, to a consecutive term of 180 to 225 months imprisonment

based upon his conviction for conspiracy to commit murder, and

to a consecutive term of 72 to 96 months imprisonment based upon

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his conviction for robbery with a firearm. Defendant noted an

appeal to this Court from the trial court’s judgments.

II. Legal Analysis

A. Evidentiary Issues

1. Standard of Review

The admissibility of alleged hearsay evidence is a question

of law reviewable using a de novo standard of review. State v.

McLean, 205 N.C. App. 247, 249, 695 S.E.2d 813, 815 (2010).

Under a de novo standard of review, this Court “considers the

matter anew and freely substitutes its own judgment” for that of

the trial court. State v. Williams, 362 N.C. 628, 632-33, 669

S.E.2d 290, 294 (2008). “A defendant is prejudiced by errors

relating to rights arising other than under the Constitution of

the United States when there is a reasonable possibility that,

had the error in question not been committed, a different result

would have been reached at the trial out of which the appeal

arises.” N.C. Gen. Stat. § 15A-1443(a).2

2. Specific Evidentiary Issues

a. Mr. Brown’s Question

2

Although Defendant argues that the challenged evidentiary

rulings violated his federal and state constitutional rights,

that set of contentions is not properly before us given that

Defendant failed to advance these constitutional arguments

before the trial court. State v. Hunter, 305 N.C. 106, 112, 286

S.E.2d 535, 539 (1982) (stating that “a constitutional question

which is not raised and passed upon in the trial court will not

ordinarily be considered on appeal”).

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In his first challenge to the trial court’s judgments,

Defendant contends that the trial court erred by excluding

certain testimony on hearsay grounds. More specifically,

Defendant argues that the trial court should have allowed the

admission of evidence to the effect that Ms. Moultrie’s cousin,

Mr. Brown, had asked his cousin, Shamus Bland, if he had heard

anything about a murder. Defendant is not entitled to relief on

the basis of this contention.

According to N.C. Gen. Stat. § 8C-1, Rule 801(c), hearsay

consists of “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.” A “statement,” for

hearsay-related purposes, is defined as an “oral or written

assertion.” N.C. Gen. Stat. § 8C-1, Rule 801(a). “Out-of-court

statements offered for purposes other than to prove the truth of

the matter asserted are not considered hearsay.” State v.

Golphin, 352 N.C. 364, 440, 533 S.E.2d 168, 219 (2000) (citation

omitted), cert denied, 532 U.S. 931, 121 S. Ct. 1379, 149 L. Ed.

2d 305 (2001).

Although the State argues that, while the excluded comment

took “the form of a question,” it was, in actuality, “an implied

assertion,” the challenged evidence was nothing more or less

than an inquiry concerning the extent to which the other party

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to a conversation had heard about a murder. Instead of using

this statement for the truth of the matter asserted, Defendant

sought the admission of Mr. Brown’s question for the purpose of

showing that it had been made and arguing that the posing of the

question implied that Mr. Brown had had some involvement in the

commission of Mr. Bradshaw’s murder. However, although the

exclusion of the challenged evidence was error, we are unable to

see that “there is a reasonable possibility that . . . a

different result would have been reached at the trial,” N.C.

Gen. Stat. § 15A-1443(a), in the event that the trial court had

allowed the admission of the evidence in question. Simply put,

the excluded evidence consisted of a vague comment that did not

identify the murder in question, contained no admission of

culpability, and provided no indication that Defendant was not

involved in the death of Mr. Bradshaw. As a result, given the

limited probative value of the excluded evidence and the

strength of the State’s case against Defendant, we conclude that

the trial court’s decision to exclude the challenged evidence,

while erroneous, did not prejudice Defendant’s chances for a

more favorable outcome at trial.

b. Eric Bryant’s Statements

Secondly, Defendant argues that the trial court erred by

excluding evidence concerning statements made by his brother,

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Eric Bryant, in which, according to Defendant, Eric Bryant

implicated himself in Mr. Bradshaw’s murder. More specifically,

Defendant contends that the trial court should have allowed him

to elicit evidence during his cross-examination of Special Agent

Kelly Oaks of the State Bureau of Investigation concerning

statements that Ms. Moultrie told Special Agent Oaks that Eric

Bryant made to her. Defendant’s argument lacks merit.

At trial, Defendant sought to introduce notes made by

Special Agent Oaks concerning statements made by Ms. Moultrie

during a polygraph examination. During that interview, Ms.

Moultrie stated that Eric Bryant had said that he had “handled

[his] business” and had to “get the f*** out of here,” that Eric

Bryant had “overheard me talking to my sister about meeting

[Mr.] Bradshaw over at her house,” and that Mr. Bradshaw had

“screwed [the] family out of money [and] he was mad about it.”

According to Defendant, the trial court should have allowed the

admission of these statements on the grounds that these

statements were inconsistent with Ms. Moultrie’s trial

testimony; within the confines of the hearsay exceptions for

excited utterances, statement of a then-existing mental or

emotional condition, and statements against interest; or not

hearsay at all.

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The evidence that Defendant sought to elicit concerning

Eric Bryant’s statements consisted of Ms. Moultrie’s statements

to Special Agent Oaks concerning statements that Eric Bryant

made to her. In view of Defendant’s contention that these

statements tended to exculpate Defendant and inculpate Eric

Bryant, it is clear that Defendant sought to use most, if not

all, of Eric Bryant’s statements for the truth of the matter

asserted. As a result, in order to obtain the admission of

these statements, Defendant was required to show that “each part

of the combined statements conforms to an exception to the

hearsay rule.” N.C. Gen. Stat. § 8C-1, Rule 805.

Aside from the fact that Defendant has not, in his brief,

explained how the statements that Ms. Moultrie made to Special

Agent Oaks contradicted Ms. Moultrie’s trial testimony,3 we are

not, for the most part, satisfied that the statements attributed

to Eric Bryant either failed to constitute hearsay or fell

within the scope of any applicable hearsay exception. For

example, Defendant has not explained how any portion of Eric

Bryant’s statements, as recounted by Ms. Moultrie, constituted

“[a] statement describing or explaining an event or condition

3

In view of Defendant’s admission that Ms. Moultrie did not

testify concerning the extent to which Eric Bryant overheard her

conversation with her sister about meeting Mr. Bradshaw in her

trial testimony, we are unable to see how the portion of Ms.

Moultrie’s testimony concerning that subject would be relevant

for impeachment-related purposes.

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made while the declarant was perceiving the event or condition,

or immediately thereafter.” N.C. Gen. Stat. § 8C-1, Rule

803(1). Similarly, Defendant has failed to explain how any

portion of Eric Bryant’s statements “relat[ed] to a startling

event or condition made while the declarant was under the stress

of excitement caused by the event or condition.” N.C. Gen.

Stat. § 8C-1, Rule 803(2). Finally, while “[a] statement

tending to expose the declarant to criminal liability is . . .

admissible in a criminal case [if] corroborating circumstances

clearly indicate the trustworthiness of the statement,” N.C.

Gen. Stat. § 8C-1, Rule 804(b)(3), Defendant has failed to

demonstrate the existence of the required “corroborating

circumstances.” See, e.g., State v. Pickens, 346 N.C. 628, 642,

488 S.E.2d 162, 169-70 (1997). As a result, the trial court did

not err by excluding evidence concerning the statements that

Eric Bryant made to Ms. Moultrie.

c. Ms. Moultrie’s Suppression Motion

Thirdly, Defendant contends that the trial court erred by

failing to allow the admission of evidence concerning statements

contained in affidavits submitted in support of Ms. Moultrie’s

motion to suppress statements made during an interview conducted

by investigating officers for the purpose of impeaching her

testimony. More specifically, Defendant contends that the

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information contained in these affidavits, which were executed

by Ms. Moultrie’s defense counsel, was admissible for the

purpose of challenging the credibility of her trial testimony,

which was consistent with the statements made during this

interview. We do not find Defendant’s contention persuasive.

After being charged with involvement in Mr. Bradshaw’s

murder, Ms. Moultrie moved to suppress her statement to

investigating officers on the grounds that her statement had

resulted from unlawful police coercion. Ms. Moultrie’s

suppression motions, which were accompanied by affidavits

executed by her trial counsel on the basis of information and

belief, asserted that Ms. Moultrie had been threatened,

intimidated, subjected to sleep deprivation, deprived of the

ability to communicate with family members, and told that she

would go to jail in the event that she did not make a statement.

After the State introduced evidence concerning the statements

that Ms. Moultrie made during this interview at Defendant’s

trial for corroborative purposes, Defendant unsuccessfully

sought to cross-examine Ms. Moultrie about the statements

concerning the circumstances surrounding the making of her

original statement contained in her suppression motions and

supporting affidavits. In his brief, Defendant contends that,

since these statements were made in documents signed and filed

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by her authorized agents, he was entitled to use them for the

purpose of attacking the credibility of her trial testimony.

A careful review of the appellate decisions relating to

this issue establishes that the trial court’s ruling was

consistent with the Supreme Court’s decision in State v. Gell,

351 N.C. 192, 524 S.E.2d 332, cert. denied, 531 U.S. 867, 121 S.

Ct. 163, 148 L. Ed. 2d 110 (2000). In Gell, the defendant

sought to question two witnesses concerning allegations made in

connection with the litigation of suppression motions in which

the witnesses alleged that certain inculpatory statements that

they had previously made to investigating officers had been

obtained by coercion. Id. at 208, 524 S.E.2d at 343. In

rejecting this contention, the Supreme Court held that the

“motions to suppress and supporting affidavits were inadmissible

hearsay,” that the “trial court correctly prohibited defendant

from questioning [the witnesses] regarding the specific

documents filed on their behalf in their individual cases,” and

that “defendant was not prevented from impeaching the witnesses

by questioning them about the voluntariness of their

statements.” Id. at 209, 524 S.E.2d at 343. Although Defendant

attempts to distinguish Gell on the basis of a contention that

the Court’s holding conflicted with decisions made in prior

cases, we believe that the decisions upon which Defendant relies

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are factually distinguishable from Gell. In addition, even if a

conflict of the type that Defendant posits actually exists, we

are bound by the most recent authority from the Supreme Court

relevant to any particular issue, which Defendant, in this

instance, appears to concede to be Gell. State v. Whitaker, 201

N.C. App. 190, 201-02, 689 S.E.2d 395, 402 (2009) (holding that

“we do not have authority to overrule decisions of the Supreme

Court”), aff’d, 364 N.C. 404, 700 S.E.2d 215 (2010). As a

result, the trial court did not err by precluding Defendant from

cross-examining Ms. Moultrie concerning the contents of the

suppression motion and supporting affidavits that were signed

and filed by her trial counsel.

B. In Camera Review

Next, Defendant has requested that this Court review

certain documents that the trial court declined, after an in

camera review, to order be provided to Defendant for the purpose

of ascertaining if they contained exculpatory information that

should have been disclosed to Defendant prior to trial. We

conduct such reviews on a de novo basis, State v. Tadeja, 191

N.C. App. 439, 449, 664 S.E.2d 402, 410 (2008), with our

practice being to “examine the sealed records to determine if

they contain information that is ‘both favorable to the accused

and material [to either] his guilt or punishment.’” State v.

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McGill, 141 N.C. App. 98, 101-02, 539 S.E.2d 351, 355 (2000)

(alteration in original) (quoting Pennsylvania v. Ritchie, 480

U.S. 39, 57, 107 S. Ct. 989, 1001, 94 L. Ed. 2d 40, 57 (1987)).

After carefully reviewing the sealed information, we conclude

that the trial court did not err by refusing to order that any

of the information contained in the documents in question be

disclosed to Defendant prior to trial.

C. Motion for Appropriate Relief

On 25 March 2014, Defendant filed a motion for appropriate

relief with this Court pursuant to N.C. Gen. Stat. § 15A-

1418(a). In his motion, Defendant alleges that the State

unlawfully failed to inform him of the existence of evidence

that he believes to have been in its possession at the time of

or prior to trial and requests that we either vacate his

convictions or remand this case to the trial court for an

evidentiary hearing. After carefully reviewing Defendant’s

motion and the attached supporting materials, we conclude that

Defendant’s motion for appropriate relief should be denied.

As we have already noted, Defendant presented evidence

tending to suggest that individuals other than Defendant

murdered Mr. Bradshaw. For example, Defendant elicited

evidence tending to show that Mr. Brown was seen after Mr.

Bradshaw’s death in a disheveled condition with blood on one of

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his socks. Similarly, Defendant elicited evidence tending to

show that Mr. Taylor and Ms. Kelly were seen in possession of

Mr. Bradshaw’s automobile on a number of occasions after the

murder. In response to this second defense contention,

investigating officers interviewed Mr. Taylor, who led them to a

second blue Mustang that was similar to the one that Mr.

Bradshaw had owned. More specifically, Mr. Bradshaw owned a

2007 Mustang with a black convertible top while the other

vehicle was a 2008 Mustang with a beige convertible top.4

In rebuttal, Mr. Taylor testified that, despite having

lived in Longwood for his entire life, he had never seen Mr.

Bradshaw or Mr. Bradshaw’s vehicle. According to Mr. Taylor,

Aleisha Faircloth owned the blue Mustang with a cream-colored

top. Mr. Taylor had been in the back of Ms. Faircloth’s Mustang

while it had been parked in his driveway on one or more

occasions.

Subsequently, Defendant sought to determine how the

investigating officers could have known that Ms. Faircloth’s

vehicle was a 2008, rather than a 2007, model. As the result of

a title and vehicle history information search performed by a

defense investigator, Defendant located documentation tending to

suggest that the certificate of origin associated with Ms.

4

Photographs of the 2008 blue Mustang were admitted into

evidence as State’s Exhibit Nos. 193 and 194.

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Faircloth’s vehicle had been issued in Dearborn, Michigan, on 25

April 2008; that the vehicle had been assigned to a dealership

in Oklahoma City, Oklahoma, at that time; that the vehicle had

been purchased by a rental car dealership in Charlotte on 29

April 2008; that the vehicle had been transferred to Ford Motor

Credit on 10 December 2008; that the vehicle had been

transferred to Quality Motor in Whiteville on 23 December 2008;

and that the vehicle was purchased by a couple residing in Ash

on 23 December 2008. Based upon this evidence, Defendant

contends that, since Ms. Faircloth’s Mustang could not have been

in Brunswick County during the time in which the murder

occurred, the State was or should have been aware of this fact;

and that he is entitled to relief from his convictions based

upon the State’s failure to disclose this evidence.

1. Statutory Grounds for Relief

As an initial matter, Defendant directs our attention to

N.C. Gen. Stat. § 15A-903(a)(1), which requires the State, upon

request, to “make available to the defendant the complete files

of all law enforcement agencies, investigatory agencies, and

prosecutors’ offices involved in the investigation of the crimes

committed or the prosecution of the defendant,” and N.C. Gen.

Stat. § 15A-907, which makes this disclosure obligation a

continuing one. However, statutory violations such as those

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alleged to have occurred in this instance are not cognizable in

a motion for appropriate relief made more than ten days after

the entry of judgment. N.C. Gen. Stat. § 15A-1415(b). As a

result, given that Defendant’s motion for appropriate relief was

filed more than ten days after the entry of judgment, he is not

entitled to relief from his convictions on the basis of alleged

violations of N.C. Gen. Stat. §§ 15A-903(a)(1) and 15A-907.

2. Presentation of False Evidence

Secondly, Defendant contends that the State’s conduct

amounted to the knowing presentation of misleading testimony in

violation of his federal and state constitutional right to due

process. Assuming, without deciding, that the non-disclosure of

the evidence described in Defendant’s motion for appropriate

relief constituted the knowing use of false evidence, we do not

believe that Defendant is entitled to relief from his

convictions on the basis of this contention.

In Napue v. Illinois, 360 U.S. 264, 265, 79 S. Ct. 1173,

1175, 3 L. Ed. 2d 1217, 1219 (1959), the United States Supreme

Court addressed the issue of whether “the failure of the

prosecutor to correct the testimony of the witness which he knew

to be false denied petitioner due process of law in violation of

the Fourteenth Amendment to the Constitution of the United

States” and held that “a conviction obtained through use of

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false evidence, known to be such by representatives of the

State, must fall under the Fourteenth Amendment” regardless of

whether the false evidence which the State knowingly presented

was relevant to the issue of the defendant’s guilt or “the

credibility of the witness.” Id. at 269, 79 S. Ct. at 1177, 3

L. Ed. 2d at 1221. Similarly, this Court has held that the

“[k]nowing use by the prosecution of materially false testimony

violates a defendant’s right to a fair trial.”5 State v. Morgan,

60 N.C. App. 614, 622, 299 S.E.2d 823, 828 (1983).

“The United States Supreme Court has established the

standard of materiality under which the knowing use of perjured

testimony requires a conviction to be set aside if there is any

reasonable likelihood that the false testimony could have

affected the judgment of the jury.” State v. Call, 349 N.C.

382, 405, 508 S.E.2d 496, 511 (1998) (quotation marks omitted)

(quoting State v. Sanders, 327 N.C. 319, 336, 395 S.E.2d 412,

424 (1990)).

In attempting to persuade us that the allegedly false

evidence that the State presented at trial was material,

Defendant argues that the evidence in question “deprived

5

In his motion for appropriate relief, Defendant does not

appear to allege that the State made knowing use of false

evidence. Instead, Defendant simply argues that he was

“deprived of his right to due process of law by the false

impression created at his trial.” Morgan, 60 N.C. App. at 623,

299 S.E.2d at 829.

-25-

[Defendant] of a strong jury argument that its witnesses saw

exactly what they believed they had seen – Adam Bradshaw’s

Mustang in Longwood, after the murder, under the control of

persons unrelated to the defendant.” We do not find Defendant’s

argument persuasive for a number of reasons.

As an initial matter, the State’s case against Defendant

was a strong one. Among other things, the State elicited

evidence tending to show that Defendant, unlike either Mr.

Taylor or Mr. Brown, had a strong motive for wanting to kill Mr.

Bradshaw. In addition, Ms. Moultrie testified that Defendant

had made statements about wanting to kill Mr. Bradshaw, had had

her arrange a meeting between himself and Mr. Bradshaw on the

evening on which Mr. Bradshaw was killed, and claimed to have

been involved in killing Mr. Bradshaw after the murder. A

number of witnesses without any apparent motive to testify

falsely stated that Defendant had been dropped off at the

location at which the meeting with Mr. Bradshaw was supposed to

occur, that Mr. Bradshaw had an appointment at the same time and

location specified in Ms. Moultrie’s testimony, and that Mr.

Bradshaw went to the location at which the meeting was scheduled

to occur at the time at which Defendant was shown to have been

present. In addition, the record evidence reflects that Mr.

Bradshaw was killed at the location at which he was supposed to

-26-

meet Defendant, that Defendant’s DNA was present in the vicinity

of the location at which Mr. Bradshaw was killed, that Mr.

Bradshaw’s body was disposed of in the manner described in his

admission to Ms. Moultrie, and that Defendant owned a weapon

that was capable of inflicting the wounds that caused Mr.

Bradshaw’s death. As a result, the State’s case against

Defendant was a strong one.

In addition, the fact that Mr. Taylor was seen driving Mr.

Bradshaw’s vehicle after the murder does not tend to exculpate

Defendant. The record is devoid of any evidence tending to show

how Mr. Taylor might have obtained possession of Mr. Bradshaw’s

car. In addition, the record contains evidence that Defendant

might not have been alone at the time that Mr. Bradshaw was

murdered. As a result, the record does not establish that any

involvement in Mr. Bradshaw’s murder that Mr. Taylor might have

had was exclusive of Defendant’s involvement in the commission

of that crime.

Finally, Mr. Taylor did not indicate a specific time in

which he rode in Ms. Faircloth’s Mustang. Although the evidence

offered on Defendant’s behalf tended to show that Mr. Taylor was

seen riding in Mr. Bradshaw’s vehicle after the date upon which

the murder occurred, the same cannot be said of Mr. Taylor’s

claim to have ridden in Ms. Faircloth’s Mustang. As a result,

-27-

any testimony by Mr. Taylor to the effect that he rode in Ms.

Faircloth’s vehicle did little to rebut Defendant’s claim that

he had been seen in Mr. Bradshaw’s vehicle after his death. As

a result, Mr. Taylor’s rebuttal testimony was not as conclusive

as Defendant tends to suggest.

As a general proposition, reviewing courts have found the

materiality necessary to support an award of relief in instances

in which the defendant’s conviction was based upon the testimony

of the witness who provided the knowingly false evidence. See

Napue, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217; Mooney v.

Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935);

Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed.

2d 104 (1972); Morgan, 60 N.C. App. 614, 299 S.E.2d 823. In

each of those cases, the State’s case against the defendant

hinged on the testimony of a witness whose credibility could not

be fully evaluated given the prosecution’s failure to fully

disclose reasons for questioning the witness’ veracity. In this

case, on the other hand, the undisclosed evidence related to the

credibility of a witness whose testimony did not have such a

direct bearing on the issue of Defendant’s guilt. As a result,

given that we are unable to determine that “there is any

reasonable likelihood that the [purportedly] false testimony

could have affected the judgment of the jury,” Call, 349 N.C. at

-28-

405, 508 S.E.2d at 511, we conclude that the Napue claim set out

in Defendant’s motion for appropriate relief lacks merit.

3. Brady Claim

Finally, Defendant asserts that the State violated his due

process rights by failing to disclose the existence of evidence

tending to show that Ms. Faircloth’s car was not in North

Carolina at the time of Mr. Bradshaw’s murder. Once again, we

conclude that Defendant is not entitled to relief based on this

claim.

As the Supreme Court held in Brady v. Maryland, 373 U.S.

83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963),

“the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” However, “the

United States Supreme Court [has] rejected the idea that every

nondisclosure automatically constitutes reversible error and

held that ‘prejudicial error must be determined by examining the

materiality of the evidence.’” State v. Tirado, 358 N.C. 551,

589, 599 S.E.2d 515, 540 (2004) (quoting State v. Howard, 334

N.C. 602, 605, 433 S.E.2d 742, 744 (1993)), cert. denied, 544

U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005). “‘The

evidence is material only if there is a reasonable probability

-29-

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different. A “reasonable

probability” is a probability sufficient to undermine confidence

in the outcome.’” Id. at 589, 599 S.E.2d at 540-41 (quoting

United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,

3383, 87 L. Ed. 2d 481, 494 (1985)). Assuming, without

deciding, that the State failed to disclose the information upon

which Defendant’s claim relies, we are unable to conclude that

the undisclosed evidence satisfies Brady’s materiality

requirement.

As we have previously indicated, Defendant contends that

his ability to present an effective defense was hampered by the

State’s suggestion on rebuttal that Mr. Taylor was driving Ms.

Faircloth’s Mustang, rather than Mr. Bradshaw’s Mustang,

immediately after Mr. Bradshaw’s death. In view of the fact

that the State’s case against Defendant was a strong one, the

fact that Mr. Taylor was seen in possession of Mr. Bradshaw’s

vehicle after the date of the murder does not tend to exculpate

Defendant, and the fact that Mr. Taylor never testified that he

had been a passenger in Ms. Faircloth’s vehicle around the time

of Mr. Bradshaw’s death, his testimony did little, if anything,

to rebut Defendant’s evidence. As a result, given that the

undisclosed evidence does little to undermine our confidence in

-30-

the outcome reached at Defendant’s trial, we conclude that

Defendant has failed to establish the materiality of the

undisclosed evidence. As a result, Defendant’s motion for

appropriate relief should be, and hereby is, denied.6

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgments

have merit and that Defendant’s motion for appropriate relief

should be denied. As a result, the trial court’s judgments

should, and hereby do, remain undisturbed.

NO ERROR.

Judge ROBERT N. HUNTER, Jr., concurred in this opinion

prior to 6 September 2014.

Judge DAVIS concurs.

Report per Rule 30(e).

6

According to N.C. Gen. Stat. § 15A-1418(b), “[w]hen a

motion for appropriate relief is made in the appellate division,

the appellate court must decide whether the motion may be

determined on the basis of the materials before it, [or] whether

it is necessary to remand the case to the trial division for

taking evidence or conducting other proceedings . . .. If the

appellate court does not remand the case for proceedings on the

motion, it may determine the motion in conjunction with the

appeal and enter its ruling on the motion with its determination

of the case.” As a result of our belief that we do not need to

have additional factual development in order to decide the

issues raised by Defendant’s motion for appropriate relief on

materiality grounds, we believe that we are in a position to

address the issues raised by Defendant’s motion for appropriate

relief on the merits without the necessity for conducting

further proceedings.