State v. Reid

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-205

Filed: 20 October 2020

Lee County, Nos. 96 CRS 1672-73

STATE OF NORTH CAROLINA

v.

UTARIS MANDRELL REID, Defendant.

Appeal by the State from order entered 7 December 2018 by Judge C. Winston

Gilchrist in Lee County Superior Court. Heard in the Court of Appeals 15 October

2019.

Attorney General Joshua H. Stein, by Assistant Attorney General Mary Carla

Babb, for the State.

North Carolina Prisoner Legal Services, Inc., by Lauren E. Miller, for the

defendant.

BERGER, Judge.

On July 24, 1997, Utaris Mandrell Reid (“Defendant”) was found guilty of first-

degree murder and common law robbery. Defendant appealed his conviction and

argued that the trial court erred when it denied his motion to suppress his confession

to murdering and robbing John Graham. In an unpublished opinion filed on October

19, 1999, this Court upheld Defendant’s conviction and determined that the trial

court did not err when it denied Defendant’s motion to suppress. State v. Reid, No.

COA98-1392, 135 N.C. App. 385, 528 S.E.2d 75 (N.C. Ct. App. Oct. 19, 1999)

(unpublished).

STATE V. REID

Opinion of the Court

Defendant has since filed a series of post-conviction motions, including this

motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A-1415. On December

7, 2018, the trial court granted Defendant’s motion for appropriate relief and vacated

Defendant’s conviction on the grounds of newly discovered evidence pursuant to N.C.

Gen. Stat. § 15A-1415(c), and a violation of Defendant’s due process rights.

The State appeals, arguing that the trial court (1) erred when it determined

that Defendant’s confession was a “purported confession;” (2) abused its discretion

when it granted Defendant a new trial; and (3) erred when it determined that

Defendant’s due process rights would be violated if he were not allowed to present

the new evidence at a new trial. We agree and reverse the decision of the trial court.

Factual and Procedural Background

On September 30, 1996, the trial court made the following relevant findings of

fact related to Defendant’s motion to suppress:

1. On October 21,1995, Mr. John Graham, a 69 year old

black male, was operating a cab for Service Cab Company.

At approximately 7:15 p.m. on the above date, Officer Baca

of the Sanford Police Department received a call to Humber

Street in reference to an assault. He found Mr. Graham

lying on his back approximately 20 feet from his vehicle.

Mr. Graham had facial injuries that were visible to Officer

Baca. Mr. Graham told the officer that he had been

assaulted by young black males who had ridden in his cab.

Due to Mr. Graham’s physical condition, the officers were

not able to get very much information from him concerning

the identity of the black males who had assaulted him.

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Opinion of the Court

2. On December 17, 1995, Mr. Graham died as a result

of complications from the injuries he sustained during the

assault on October 21, 1995. He was never physically able

to assist in identifying his attackers.

3. Detective Jim Eads of the Sanford Police

Department was assigned to investigate the October 21,

1995 attack on Mr. Graham. Detective Eads at that time

had ten (10) years of experience as a detective with the

Sanford Police Department. On December 20, 1995,

Detective Eads went to the residence of the defendant’s

grandparents in order to speak with the defendant.

Detective Eads spoke with the defendant’s grandfather and

told him he needed to speak with the defendant at the

police department for 15 to 20 minutes. The defendant then

accompanied Detective Eads to the police department.

4. Upon arrival at the police department, Detective

Eads and the defendant went to one of the interrogation

rooms in the detective division. At approximately 4:19 p.m.,

Detective Eads advised the defendant of his Miranda

Rights using State’s Exhibit 1. Detective Eads read each

right of the Miranda Warning to the defendant. After

reading each right to the defendant, Detective Eads told

the defendant to place his initials by the right indicating

he understood that right. The defendant initialed each

right. Detective Eads then read the Waiver of Rights at the

bottom of State’s Exhibit 1 to the defendant and asked the

defendant to sign at the bottom of the waiver if he

understood the waiver and wanted to talk to Detective

Eads. The defendant signed the Waiver of Rights.

5. During the rights warning, the defendant and

Detective Eads were alone. Detective Eads had no

problems communicating with the defendant. The

defendant was very attentive during the process. He did

not stutter.

6. After the rights advisement and waiver, Detective

Eads told the defendant that he was investigating the

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STATE V. REID

Opinion of the Court

assault on Mr. Graham. He also told the defendant that

Mr. Graham had died. The defendant told Detective Eads

“I am not going down for this by myself.” The defendant

then proceeded to tell Detective Eads about his

involvement in the assault on Mr. Graham. This took the

defendant about 15 minutes. During this time, Detective

Eads did not write down any notes. The defendant did not

stutter during this time.

7. After the defendant admitted to Detective Eads that

he had been involved in the assault and robbery of Mr.

Graham, Detective Eads contacted a detective assigned to

juvenile matters, Harold Layton. Detective Eads’ asked

Detective Layton to come to the police department to assist

in making arrangements for placing the defendant in

secure custody.

8. After calling Detective Layton, Detective Eads went

back to the defendant and spoke with him about putting

his statement in writing. The defendant told Detective

Eads he could not write very well; however, he agreed to

allow Detective Eads to write the statement for him.

Detective Eads wrote a statement based on what the

defendant had told him. This statement is State’s Exhibit

2.

9. After writing the statement, Detective Eads went

back over it with the defendant. He placed the statement

in front of the defendant and read it to the defendant word

for word as it was written. The defendant initialed the

beginning and ending of each paragraph as well as two

corrections on the second page. Detective Eads asked the

defendant to sign the bottom of each page if he agreed that

the statement was true. The defendant then signed the

bottom of each page of the statement. The statement was

signed at 6:25 p.m. on December 20, 1995.

10. After signing the statement, the defendant was

allowed to call his grandmother. She came to the police

department and was told by the officers what had

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STATE V. REID

Opinion of the Court

happened. She was given an opportunity to speak with the

defendant. The defendant’s mother also came to the police

department and was told what happened. She also was

given an opportunity to speak with the defendant.

11. The defendant is a black male with a date of birth of

July 22, 1981. At the time of this incident, he lived

primarily with his grandparents. He was and still is

enrolled in the Lee County School System at Bragg Street

Academy and received the grades set out on Defendant’s

Exhibits 1 and 2.

12. Prior to this hearing, the defendant was tested and

examined by Dr. Stephen Hooper of the Clinical Center for

the study of Development and Learning at the University

of North Carolina at Chapel Hill. Dr. Hooper is an expert

on child neuropsychology. According to Dr. Hooper, the

defendant has an I.Q. of 66. The defendant tested as having

writing comprehension at the 5.2 grade level and a

listening comprehension of the 3.5 grade level. The

defendant can read at about the fourth grade level and

write at about the third grade level. The defendant also

reported to Dr. Hooper that he had used marijuana on

December 20, 1995, but did not tell Dr. Hooper how much

he had used. Dr. Hooper testified that the Miranda Rights

given to the defendant were at a 4.9 grade level. The

Waiver of Rights paragraph was at an 8.4 grade level and

the confession signed by the defendant was at a 5.6 grade

level. However, Dr. Hooper stated these figures were

variable depending on how the information was conveyed

to the listener. Dr. Hooper also stated that some 33 words

on the confession were not understood by him and not

factored into the calculations on the grade level of the

confession.

Detective Eads testified at trial and read Defendant’s confession to the jury.

Defendant’s signed confession was as follows:

We were on Goldsboro Avenue the night the cab driver got

beat up. It was me, Elliott McCormick, who they call L.L.,

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STATE V. REID

Opinion of the Court

and Anthony Reid, who they call Pop, and Duriel Shaw,

who they call Shaw Dog. Elliott McCormick called the cab

company for a ride and had the cab meet us at the new

apartments on Goldsboro Avenue that sit at the back fence

to Oakwood Avenue apartments.

While the cab was coming, we got to planning how

we were going to rob whoever the driver was. Duriel Shaw

and Elliott McCormick were planning it out. Duriel was to

snatch the money and Elliott was going to punch him. The

older man who use to sell ice cream to us was the driver

when the cab pulled up. All of us got in the back seat of the

cab. Me, Duriel Shaw, Anthony, and Elliott McCormick.

We were going to Kendale. Elliott McCormick and Duriel

Shaw were going to stay together that night and Anthony

Reid and I were going to stay together. Anthony is my

double first cousin. Elliott is related to me also. Elliott

McCormick is related to me through my father.

We directed the driver to the Kendale area on

Humber Street by Hallman Foundry. We had him stop

because we were going to rob him at that time. The meter

read about $4 and none of us had any money. The driver,

who we call Dad because he was so old, always drove real

slow which took more time on the meter and increased the

price. We had him stop in the roadway at the foundry and

were going to rob him in the car. Me and Duriel Shaw tried

to do so first in the car. We reached over the front where he

sat and I tried to grab under his leg where he kept some

money and Duriel Shaw was grabbing in his shirt.

The old cab driver got to grabbing our arms and

moving around, so we stopped and we all jumped out of the

cab and started returning. We all ran to the back of

O’Connell’s Supermarket and stopped. And Anthony Reid

. . . said, ‘[expletive deleted] that, we’re about ready to go

back and rob him.’

We walked back to the cab. The cab driver was still

in the car and sitting in the road on Humber Street and

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Opinion of the Court

talking on his microphone. As we approached him, he

jumped out of the cab, started cussing, saying, ‘I’m going to

kill all you all . . . [expletive deleted],’ and still walking

towards us. We began beating him and found some wood

sticks nearby and used them to hit him with also. The cab

driver fell to the ground on the pavement on the roadway.

Duriel Shaw, Anthony Reid, Elliott McCormick, and I

began going through his pockets. I found $5 in one dollar

bills in his left front shirt pocket and I took it. I don’t know

if the rest of them got any money or not, but they were

going through his pockets. We decided also, when we

walked back to the cab driver as he sat in the road, to take

his car, but we didn’t. We just left it in the road. Elliott

McCormick, Duriel Shaw, and Anthony Reid, and I all ran

away together to Windham’s Electronics and over to Crown

Cable, and then ran behind Kerr Drugs and split up

afterwards. Duriel and Elliott went to Elliott McCormick’s

house, and me and Anthony went to my house. We did not

go back over toward Dalrymple and Humber Street.

I don’t recollect anyone taking anything from the

car, at least I know I didn’t. The next day we all got

together on Shawnee Circle at the back fence and talked

about it. We talked about how we could have killed him and

how we could have taken the cab. We all promised not to

talk about it. I tried to call Central Carolina Hospital after

we beat him, but I didn’t know his name. I think he use to

go to New Zion Baptist Church with us. I also think he was

a friend of one of my mom’s friends. My grandmother had

even told me she knew his wife. I never said anything to

anyone about it until tonight.

I really would like to apologize for what I’ve done

and especially to an old man like him. I was never ever like

this until I got to hanging around with these other boys and

drinking and smoking marijuana. I usually drank beer and

not liquor. I had been drinking beer that night and had

drank a 22 ounce IceHouse Beer. The rest of us – the rest

had been drinking gin, Canadian Mist, white liquor and

beer. We were getting the beer and liquor from an Ann

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STATE V. REID

Opinion of the Court

Budes who stays nearby where we were staying – were

standing around at the new apartments on Goldsboro

Avenue. We all had also been smoking marijuana in blunts

by inserting marijuana in the cigar so the cigar would cover

the smell.

I’m truly sorry for what I’ve done and I tried to turn

a bad thing around that I have done by being truthful and

cooperative concerning this incident. I swear that all I’ve

told Detective J.M. Eads of the Sanford Police Department

is the truth, and it was Duriel Shaw, Elliott McCormick,

and Anthony Reid and myself who beat the cab driver and

that we also used sticks to do this because we intended to

rob him and did rob him after we beat him. I have further

allowed Detective Eads of the Sanford Police Department

to write this statement for me in order that I may

accurately reflect what happened that night and, again,

how truly sorry I am for what I’ve done.

On July 24, 1997, a Lee County jury found Defendant guilty of first-degree

murder and common law robbery. Defendant appealed, alleging the trial court erred

when it denied his motion to suppress his confession.

In an unpublished opinion filed on October 19, 1999, this Court upheld

Defendant’s conviction and determined that the trial court did not err when it denied

Defendant’s motion to suppress. In so holding, we considered information in the

record that Defendant was a slow learner, had an overall IQ of 66, read on a third-

grade level, and other circumstances surrounding his confession. We noted that

[w]hile a defendant’s subnormal mental capacity is a factor

to be considered in determining whether the defendant’s

waiver of rights is intelligent, knowing and voluntary, such

lack of intelligence, standing alone, is insufficient to render

a statement involuntary if the circumstances otherwise

indicate that the statement is voluntarily and intelligently

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STATE V. REID

Opinion of the Court

made. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).

Likewise, a defendant’s young age is a factor to be

considered, but his youth will not preclude a finding of

voluntariness in the absence of mistreatment or coercion

by the police. Id.

Despite the evidence cited by defendant of his below

average intelligence, comprehension, and verbal abilities,

there is substantial evidence in the record to support the

trial court’s determination. Detective Eads testified that he

asked defendant whether he understood each right and

whether he had any questions. Defendant responded that

he understood and that he did not have any questions.

Detective Eads further testified that he did not have any

difficulty communicating with defendant, and that he did

not have to repeat himself to make himself understood by

defendant, who was very attentive. He also testified that

defendant did not stutter during the interview.

None of the witnesses presented by defendant were

present in the interrogation room to observe defendant and

to determine whether he actually understood his rights at

the time. There is nothing in the record to indicate that

Detective Eads or any police officer coerced defendant into

giving a statement. To the contrary, Detective Eads’

testimony indicates that defendant voluntarily gave the

statement to not “go down for this alone.”

Because there is ample evidence to support the

court’s findings of fact, those findings are binding. State v.

Rook, 304 N.C. 201, 283 S.E.2d 732 (1981), cert. denied, 455

U.S. 1038, 72 L. Ed. 2d 155 (1982). We also find that the

court’s findings of fact support its conclusions of law and

its order denying the motion to suppress.

State v. Reid, No. COA98-1392, at *4-6 (N.C. Ct. App. Oct. 19, 1999) (unpublished).

Defendant subsequently filed post-conviction motions, including this motion

for appropriate relief pursuant to N.C. Gen. Stat. § 15A-1415(c). Specific to this

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STATE V. REID

Opinion of the Court

motion, Defendant alleged that William McCormick (“McCormick”) had provided

newly discovered evidence in an affidavit dated June 14, 2011. McCormick’s affidavit

contained the following assertions:

3. In 1995, I was sixteen years old, and I lived with my

mother and brother Elliott McCormick at 417 Judd St. in

Sanford, NC.

4. At the time, my mother worked the night shift and

was also a minister.

5. Utaris Reid often visited my home and spent time

with my brother and me.

6. Utaris Reid was younger than me, and he lived

about four houses away on Shawnee Circle.

7. Utaris came to our house often because his mother

and her boyfriend were drug-addicts, and he often had to

provide for himself.

8. Utaris would visit with his grandmother who lived

out in the country. She cared for Utaris and bought him

clothes and necessities.

9. Utaris was in special education classes in school,

and he was slow.

10. My brother Elliott and I would often use taxi cabs to

go to and from our home at night.

11. I knew cab driver John Graham by the nickname

“Pop.”

12. On the night that Mr. Graham was assaulted, I

remember staying at home.

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Opinion of the Court

13. My mother, a minister, anointed my head and my

brother Elliott’s head with oil, and she was moving about

the house speaking in tongues. She said that she had a

feeling that something bad was going to happen that night,

so she stayed home from work. She made my brother and I

stay home even though we wanted to go out.

14. At the time, my brother Elliott and I were involved

in selling crack cocaine on the street near the Goldsboro

apartments.

15. Since we were not allowed to leave the house that

night, our friends came to the house to get drugs.

16. Robert Shaw, Norman Cox, and T. Bristow came to

the house, and they were sweating and out of breath. I

learned from Shaw that they had left a cab without paying

the fare and ran to the house.

17. My mother made my friends leave the house that

night, and they did.

18. The next day, I had a conversation with Robert

Shaw. He told me that when he, Norman Cox, and T.

Bristow left my house, they got a cab to take them across

town. John Graham, or “Pop,” was the cab driver.

19. Shaw told me that he told Pop that they did not have

enough money to pay the fare. Pop stopped the cab near the

foundry and told the boys to get out. Shaw was in the front

passenger seat, and Cox and Bristow were in the back seat.

Cox and Bristow got out of the cab. As Shaw was getting

out of the cab, Shaw grabbed Pop’s money bag. Pop grabbed

Shaw’s gold necklace, broke it, and pulled it off Shaw. Shaw

began to punch and hit Pop, trying to get his necklace back.

Cox and Bristow joined Shaw beating, kicking, and

stomping Pop. Shaw got his necklace away from Pop and

the three boys ran. There was only $5 in the money bag.

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Opinion of the Court

20. After Pop died, the police came to my house because

they were looking for teenage boys who used cabs with

Judd Street destinations.

21. The police picked up my brother Elliott and Utaris

Reid and took them to the police station.

22. My brother Elliott told me that he was placed in an

individual room. He said that the police were yelling and

throwing chairs around in the room trying to get him to

confess to murder. They asked him to sign a paper, but

Elliot[t] refused to sign.

23. Elliot[t] has since passed away.

24. I was not interviewed by the police or any attorneys

involved in Utaris Reid’s case.

25. After Utaris Reid was convicted and sentenced, I felt

bad because I knew that he did not commit the murder.

26. I went to the Sanford Police Department and spoke

to Detective Freeman Worthy. I told Detective Worthy that

Utaris Reid did not commit the crime he was convicted of.

I told him that Shaw, Cox, and Bristow committed the

crime.

27. In 2005, I saw Detective Worthy at the Piggly Wiggly

supermarket. I told him again that they convicted the

wrong man, and I told him that Shaw, Cox, and Bristow

committed the crime.

(Emphasis added).

At the hearing on the motion for appropriate relief, McCormick testified over

the State’s objection that Defendant was “slow.” McCormick also testified that he

and Defendant were friends when they were younger and “smoked weed together.”

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Opinion of the Court

McCormick testified, contrary to his affidavit, that on the night John Graham

was murdered, “[m]y mom worked the graveyard, and this particular night, my mom

was working graveyard.” According to McCormick, the graveyard shift was from

11:00 p.m. to 7:00 a.m. McCormick and his brother, Elliott, had planned to go across

town that night to sell drugs, but their mother made them stay home. According to

McCormick, he and Elliott invited Robert Shaw (“Shaw”), Antonio Bristow

(“Bristow”), and Norman Cox (“Cox”) over to their mother’s house. McCormick then

testified to the subsequent series of events:

When they finally got there and the doorbell rang, my mom

was like, who is at the door? She said, I told y’all, y’all not

going nowhere tonight. We went to the door. [ ] Shaw, [ ]

Bristow, [ ] Cox, and you know, they was – you know, we

looked outside. The cab wasn’t there, but they was there,

and then they was sweating and, you know, out of breath,

running from wherever they came from[.]

...

[Shaw] told us that they had just jumped out of the cab.

They jumped out of the cab because they didn’t have no

money, so they jumped out of the cab.

According to McCormick, Shaw, Bristow, and Cox were at his mother’s house

for no more than 10 minutes before his mother ran them off.

When asked if Shaw told him anything else the night Graham was murdered,

McCormick replied

That night? Not that night. It was already wee hours of the

morning. It was already late night anyway, so, but they,

you know, because my mama ran us off, the next day they

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Opinion of the Court

told me what – they told my brother and I what they had

done. They assaulted Mr. Johnny Graham.

(Emphasis added).

McCormick testified that Shaw told him that he, Norman, Bristow and Cox

killed Graham before they arrived at the McCormick house. Specifically, according

to McCormick, Shaw told him that:

Well, he told how he called a cab in the middle – well, when

he called the cab, he told them where he was coming, you

know, to [Judd] Street, you know, which is our address, and

said when they got by around the Hallman Foundry, they

just told him, they said, Pop, you know, we only got five

dollars. He was like, that’s all y’all got? And Pop, you had

to know him. Pop, he is an old guy. Cab driver. He talked

junk, you know. We talked junk to him. You know. And he

said – he told, said, Pop, we only got five dollars. He said,

look, y’all get y’all book, and he used profane language, told

them to get out of his cab, you know, if that’s all you got,

you know. And [Shaw] was sitting in the front seat. [Shaw]

told me once he went to jump out the cab, he grabbed the

money bag. And Mr. Pop had a money bag. He grabbed the

money bag. Pop still had his seatbelt on. He reached and

grabbed [ ] Shaw by the back of the shirt, and when he

grabbed the back of his shirt, he grabbed his necklace. And

when [ ] Shaw jumped out of the car, he kept his necklace

in his hand. So [ ] Shaw wanted to get his necklace back, so

[ ] Shaw told me Pop was trying to call in dispatch with the

CB thing they had in the car at the time. That’s when they

commenced to beating on him, trying to get his necklace

back. And they beat the man, and they told me they beat

him and they stomped him, but at the time, they didn’t

know they did, you know.

...

Once they beat him and stomped him, and [ ] Shaw’s

necklace was broke, and Mr. Johnny still had it in his own

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Opinion of the Court

hand. They had to end up prying it out of his hand to get

the necklace out. You know. He held on tight to it. And they

ran to our house as soon as they did. That’s why, when they

came to the door, they was sweating and out of breath.

Elliott was arrested along with Defendant for Graham’s murder and spent 19

months in custody awaiting trial before the charges against him were dismissed.

According to McCormick, he did not inform law enforcement about Shaw’s purported

confession because he lived by a street code, and Elliott told him not to say anything

because the police had no evidence.

McCormick was also permitted to testify, over the State’s objection, about

alleged police interrogation “tactics,” and that Defendant did not read his confession

before he signed it. There was no evidence provided that McCormick was in the

interrogation room when Defendant confessed. However, McCormick did testify that

he was in court during Defendant’s trial. After Defendant was convicted, but

sometime “before 2005,” McCormick purportedly told a detective that Defendant did

not kill Graham.

On December 7, 2018, the trial court granted Defendant’s motion for

appropriate relief and vacated Defendant’s conviction on the grounds of newly

discovered evidence pursuant to N.C. Gen. Stat. § 15A-1415(c), and a violation of

Defendant’s due process rights. The trial court made the following relevant findings

of fact:

1. . . . The principal State’s evidence against Defendant

was a statement taken from Defendant by the lead

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Opinion of the Court

detective. Defendant was 14 years old and had a combined

IQ of 66 when he signed the statement. No eyewitnesses

testified against Defendant at trial. . . .

2. At trial, Defendant challenged the credibility of the

written statement and offered an alibi defense. Trial

counsel hired an investigator for the specific purpose of

interviewing the McCormick brothers, William and Elliott,

potential witnesses in the case, but was unable to interview

them by the time of Defendant’s trial. In 2011, Defendant’s

MAR investigator located William McCormick, and he was

interviewed by the defense for the first time. Mr.

McCormick testified at the MAR hearing that another

teenager confessed to the assault and robbery the day after

it occurred. The teenager was with two others, who were

not Defendant. Trial counsel would have offered this

evidence if it was available at the time of Defendant’s trial

because it would exculpate Defendant and bolster his alibi

defense.

...

7. Defendant filed a motion to suppress his written

statement, and a hearing was held during the August 29,

1996 session of Lee County Criminal Superior Court before

the Honorable Wiley F. Bowen. Judge Bowen denied the

motion to suppress. On appeal, the denial of the motion to

suppress was upheld. For purposes of the MAR, the

Defendant’s statement has been treated as properly

admitted into evidence, with its weight and credibility for

the jury.

8. The case was heard for trial at the October 1, 1996

session of Lee County Criminal Superior Court before

Judge Bowen. A mistrial was declared because of a hung

jury.

9. The case came on for trial again at the July 21, 1997

session of Lee County Criminal Superior Court before the

Honorable Henry E. Frye.

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Opinion of the Court

10. On July 24, 1997, the jury found the defendant

guilty of first degree murder based on the felony murder

rule during the commission of a common law robbery.

11. Defendant was sentenced to a mandatory

punishment of life imprisonment without parole. The court

arrested judgment on the conviction for common law

robbery.

...

14. The victim in the case, John Graham, worked as a

cab driver on the date of offense, October 21, 1995. During

his shift, he radioed for help. Other cab drivers and

paramedics responded to his location within minutes,

around 7:19 p.m.

15. Officers responded to the scene of the assault. The

victim’s cab was not secured, the police did not collect any

physical evidence, and there were no eyewitnesses. There

were no fingerprints, blood evidence, or any weapon.

16. The victim was unable to respond to paramedics

except for opening his eyes in response to his name. He

suffered an apparent head injury from an assault or fall.

His visible injuries were mostly minor puncture wounds,

lacerations and abrasions around his left eye. Medical

examination revealed a 3 centimeter by 3 centimeter

hemorrhage to the right side of the victim’s brain which,

according to medical testimony at trial, could have been

caused by Mr. Graham falling and hitting his head.

17. The victim was interviewed in the emergency room

by police. The lead detective, James Eads of the Sanford

Police Department, testified that the victim told police that

two black males age 16 to 19 years old were responsible for

the assault. During cross-examination at the first trial,

Detective Eads testified that the victim gave the

information to police and he recorded the information in

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Opinion of the Court

his report. He also testified at the first trial that the victim

told police that he had picked up the two black males before

and that they had not taken anything from him on the

night of the assault.

18. At the second trial, Eads changed his testimony and

testified that the victim was unable to communicate

verbally with him at all in the emergency room. Eads was

cross-examined by Attorney Webb with his testimony from

the first trial.

...

21. On December 20, 1995, James Eads, the same

detective who interviewed the victim, went to Defendant’s

grandfather’s house and picked up Defendant at about 4:15

p.m. to take him to the police station to interview him. The

detective told Defendant’s grandfather that he would bring

him back in 15-20 minutes. Defendant’s grandfather was

elderly and the detective could not tell whether the

grandfather was drinking.

22. Defendant was 14 years old and did not have a

parent or guardian present when he was interviewed.

23. The Sanford Police Department had two juvenile

detectives on their staff at the time. They would have left

the police station at 4:00 p.m. when their shifts ended.

Detective Eads did not use a juvenile detective when he

interviewed Defendant. Detective Eads shift started at

8:00 a.m., but he waited until after the juvenile detectives

left to pick up Defendant and interview him.

24. Juvenile detectives were available for the interview

as they were on call twenty-four hours.

25. Detective Eads conducted the interview with

Defendant in an interview room that was approximately 8

feet by 10 feet with a table and chairs and no windows.

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STATE V. REID

Opinion of the Court

26. Detective Eads did not record the interview with

Defendant. He said that he was not certified in the

operation of any tape recording equipment so he could not

use it.

27. Detective Eads testified that Defendant talked or

“rambled” uninterrupted for thirty minutes without having

to be prompted with questions to continue talking.

28. Detective Eads wrote the statement that Defendant

signed. The detective acknowledged that some of his own

writing was difficult to read and he read the statement

back to Defendant.

29. Detective Eads testified that he would have treated

Defendant differently if he knew he had trouble

comprehending, but he treated him as an ordinary 14-year-

old.

30. Attorney Webb hired Dr. Steven Hooper, a child and

adolescent neuropsychologist at the Child Development

Institute at the University of North Carolina at Chapel

Hill, as an expert witness. Dr. Hooper determined that

Defendant had a full scale IQ of 66, which was in the first

or second percentile for 14-year-olds. Dr. Hooper testified

that the test was reliable and Defendant was trying hard.

31. Defendant’s overall functioning was at a fourth-

grade level. His writing was at a mid-third grade level and

Defendant had disproportionately low deficits in visual

attention and expressive language.

32. Dr. Hooper did a readability analysis to determine

the grade level of the Miranda warnings given to

Defendant and the waiver of rights form. The Miranda

warnings were at a fifth grade level and the waiver of

rights form was at a mid-eighth grade level.

33. Dr. Hooper conservatively estimated the written

statement was at a mid-fifth grade level. There were thirty-

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STATE V. REID

Opinion of the Court

three words he could not read so he did not include those.

Had they been included, the grade level would likely have

been higher.

34. Dr. Hooper opined that it was highly unlikely

Defendant understood the Miranda rights or the waiver of

rights form. He also opined that he did not think Defendant

understood the written statement. Defendant’s listening

comprehension was his lowest area, at a mid-third grade

level and his overall reading, decoding, and sight words

were a 5.2 grade level.

35. According to the written statement, signed by

Defendant, there were four young males involved in the

victim’s assault: Duriel Shaw, Anthony Reid, Elliott

McCormick, and Defendant. This was a significant

difference from the information alleged to have been

provided by the victim in the emergency room immediately

following the assault, in which he was said to have

informed police he was attacked by two black males, 16-19

years old. According to the alleged statement of Defendant,

the youths were riding in a cab driven by the victim and

tried to reach into his shirt pocket and under his leg for

money. When the victim resisted, the youths began to run

away, but then returned. The victim got out of his car and

walked towards the youths, saying that he would “kill you”.

Some of the youths then hit the victim, using wood sticks

they picked up nearby. The victim fell on the pavement,

where money was taken from his pocket.

...

37. John Love, a co-worker and good friend of the victim,

testified at the second trial, but did not testify at the first

trial. Love heard the victim call for help over the radio and

went to the scene. He testified that he asked the victim who

did this and the victim replied with three words or names,

L.L., McCormick, and Reid. Love did not remember the

order in which the victim said the names. However, Love

did not provide this information to [ ] Detective Eads when

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STATE V. REID

Opinion of the Court

he met with him shortly after the incident. Love said he did

not “put together what he was talking about until later.”

Love did not know whether the victim was just mumbling.

Love did not claim the victim specified who “Reid” was,

whether the Defendant or Anthony Reid.

...

48. At the evidentiary hearings, Defendant produced

evidence through the testimony of William McCormick

(“Mr. McCormick”) and Attorney Fred Webb, additional

documentary exhibits, and the transcripts of both trials

and the hearing on Defendant’s motion to suppress. The

Court listened to the testimony and observed the demeanor

of these witnesses, and finds that each gave credible and

truthful testimony on every issue that was material to the

findings of fact and conclusions of law which are necessary

to reach a ruling on the issues raised in the instant matter.

William McCormick was emotional during his testimony.

His demeanor gave convincing force to his testimony.

49. Mr. McCormick was located by Defendant’s

investigator in 2011. He swore to an affidavit that was

submitted as an exhibit to the MAR.

...

55. On the night that the victim was assaulted, Mr.

McCormick and his brother, Elliott, were not allowed to

leave their house on Judd Street. William McCormick

expected three other juveniles, Robert Shaw, Antonio “T”

Bristow, and Norman Cox to come to the McCormick house

that night by cab. Robert Shaw, T Bristow and Norman Cox

showed up on the doorstep but there was no cab outside.

Defendant was not with them and was never mentioned at

any time. Shaw, Bristow and Cox were sweating and out of

breath from running. Robert Shaw said they jumped out of

the cab because they did not have any money. The evidence

indicated Shaw had jumped out of the cab only a short time

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STATE V. REID

Opinion of the Court

before this statement. Mr. McCormick’s mother made Shaw,

Bristow, and Cox leave.

56. The next day, Robert Shaw told Mr. McCormick that

he, Antonio Bristow, and Norman Cox assaulted the victim

John Graham. Shaw said that he took the victim’s money

bag and when he tried to jump out of the cab the victim

grabbed Shaw’s necklace, which broke. Shaw explained

that they beat the victim to get the necklace back. Shaw

did not say that Defendant was involved. Robert Shaw, T

Bristow, and Norman Cox were not the juveniles named in

the written statement introduced at Defendant’s trial.

Shaw told William McCormick that Shaw, Bristow and Cox

ran to McCormick’s house “as soon as they did” the robbery.

The victim was in fact assaulted near the Hallman

Foundry, located no more than a mile from William

McCormick’s house.

...

58. When he was 16 years old, Mr. McCormick sold

drugs and lived a different life than when he testified

before this Court. When he was a teenager, he did not get

along with police and did not talk to the police because he

followed a “street code.” Before Defendant’s trial, Mr.

McCormick did not tell police the information that he

testified to at the MAR hearing. He explained that the

street code meant not to talk to police or help them do their

job. Mr. McCormick explained that he no longer followed a

street code and he decided to turn his life around after his

brother was murdered in 2000.

59. This Court finds Mr. McCormick’s testimony to be

credible. The court finds that McCormick in fact has no

motive to testify for Defendant other than to disclose the

true facts known to him.

60. Attorney Webb represented Defendant at both trials

and the direct appeal of his case. Attorney Webb had a

degree and training in special education and was

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Opinion of the Court

experienced working with adolescents. Defendant was 14

years old when Attorney Webb was appointed to his case

and 16 years old when he was convicted. Attorney Webb

recognized that Defendant was slow and had difficulty

communicating.

61. Attorney Webb filed a motion to suppress the

written statement and retained Dr. Steven Hooper.

Following a hearing, the motion to suppress was denied.

62. Attorney Webb challenged the credibility of the

police investigation and the written statement and raised

an alibi defense at trial.

63. Before trial, Attorney Webb spoke to contacts “in the

street” who had provided information that led him to

believe Defendant was not involved in the crime. The

names of the McCormick brothers, William and Elliott,

came up as witnesses who had information that could be

helpful to the defense. Attorney Webb moved for and

secured funds to retain Investigator Mel Palmer for the

specific purpose of locating and interviewing William

McCormick. In the motions and orders for investigator

funding, Attorney Webb specified that he was trying to

locate William McCormick.

64. Investigator Palmer attempted to interview William

McCormick, but was unable to locate him. Investigator

Palmer made attempts to serve William McCormick with a

subpoena but was unable to do so. McCormick’s mother

interfered with the investigator’s efforts to locate William

and would not allow him to be interviewed.

65. Attorney Webb was contacted by Defendant’s

counsel during the post-conviction investigation of

Defendant’s case. Attorney Webb reviewed the affidavit of

William McCormick. Had Attorney Webb been able to

locate and interview William McCormick at the time of

trial, Attorney Webb would have called him to testify to the

information contained in the affidavit.

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STATE V. REID

Opinion of the Court

66. Attorney Webb would have presented William

McCormick’s testimony because he found that it would

have exculpated Defendant and bolstered Defendant’s alibi

defense.

67. William McCormick’s testimony was evidence that

went to Defendant’s guilt or innocence, since it provided

the identity of the actual perpetrators and tended to

exonerate Defendant.

(Emphasis added).

The trial court then made the following relevant conclusions of law:

2. Defendant properly raised his newly discovered

evidence claim pursuant to N.C. Gen. Stat. § 15A-1415(c).

3. Defendant Reid met his burden of proving the

necessary facts by a preponderance of the evidence. N.C.

Gen. Stat. § 15A-1420(c)(5).

4. William McCormick’s testimony is newly discovered

evidence as defined by law. The details of his testimony

were unknown to Defendant at the time of trial, and

William McCormick was unavailable to Defendant at that

time. Defendant could not have discovered or made

available the new evidence from McCormick with due

diligence. The new evidence has a direct and material

bearing upon the Defendant’s guilt or innocence.

Defendant’s motion was filed within a reasonable time of

the discovery of the new evidence.

5. The newly discovered evidence is probably true.

6. The newly discovered evidence is competent, material

and relevant. It identifies the actual perpetrators of the

offense and exculpates the Defendant.

7. Evidence of William McCormick’s personal

observations of Robert Shaw, Antonio “T” Bristow and

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STATE V. REID

Opinion of the Court

Norman Cox on the night of the offense, including that

these three individuals were together, were sweating and

out of breath, that neither a cab nor the Defendant were

present, are admissible at trial.

8. Testimony from William McCormick regarding

statements made by Robert Shaw that he, Bristow and Cox

jumped out of a cab and ran because they did not have any

money are admissible as an excited utterance under North

Carolina Rule of Evidence 803(2). Shaw was under the

stress of a startling or unusual event at the time this

statement was made, sufficient to suspend reflective

thought, and causing a spontaneous reaction not resulting

from fabrication.

9. After careful scrutiny, the court concludes that the

testimony of William McCormick about Robert Shaw’s

statement regarding the details of Shaw, Bristow and Cox

assaulting the victim is admissible evidence under Rule

803(24). First, the State is on notice that Defendant would

offer such evidence at trial. Second, this hearsay evidence is

not specifically covered by any other exception in Rule 803.

Third, the evidence possesses circumstantial guarantees of

trustworthiness equivalent to other hearsay exceptions

because it constitutes an admission of criminal conduct by

Shaw, is consistent with events actually observed by

William McCormick the day before, when Shaw and the

other youths arrived at McCormick’s house out of breath

having jumped and run from a cab, and is consistent with

known circumstances of the case, including that the victim

was assaulted by more than one young male person. Fourth,

the evidence is material to the case. Fifth, the evidence is

more probative on the issue of whether Shaw, Bristow and

Cox, rather than Defendant, were the actual perpetrators of

these crimes than any other evidence procurable by

reasonable efforts. Defendant cannot reasonably be expected

to procure the in-court confession of Shaw that Shaw

himself is guilty of robbery and first degree murder. Sixth,

admission of the evidence of Shaw’s statements will best

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STATE V. REID

Opinion of the Court

serve the purposes of the Rules of Evidence and the interests

of justice. State v. Smith, 315 N.C. 76 (1985).

10. In addition to those circumstantial guarantees of

truthfulness set forth above, Shaw’s statements regarding

the murder of the victim have the following circumstantial

guarantees of truthfulness: (1) Shaw had personal

knowledge of the events described; (2) Shaw had a strong

motivation to confide the truth to his friend William

McCormick and no reason to claim false responsibility for

such serious acts which could expose him to criminal

liability; and (3) there is no evidence that Shaw ever

recanted his statement.

11. The evidence before the court does not support

conclusions as to the availability or unavailability of the

declarant Shaw for trial. Given the passage of more than

twenty years in silence, Shaw’s cooperation and

availability for trial may well be doubted, but his

unavailability cannot be assumed. If Shaw is unavailable,

his statements to McCormick would be admissible in any

case as statements against penal interest under Rule

804(b). However, taking Shaw’s unavailability not to have

been established, as the court must do given the Record

before it, his statements to McCormick are still admissible

under Rule 803(24) for the reasons set forth above.

12. Given the emotional impact and persuasive effect of

William McCormick’s testimony and the circumstantial

indications of the truthfulness of Shaw’s statements, it

would be a manifest injustice to deny Defendant the

opportunity to introduce McCormick’s evidence regarding

the statements of Robert Shaw that it was Shaw, Antonio

Bristow and Norman Cox who killed the victim in this case.

Admission of Shaw’s statements under Rule 803(24) will

best serve the interests of justice. It is consistent with the

general purposes of the Rules of Evidence.

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STATE V. REID

Opinion of the Court

13. Defendant used due diligence and proper means to

procure the testimony of William McCormick at

Defendant’s original trial.

14. The newly discovered evidence is not merely

cumulative.

15. The newly discovered evidence does not tend only to

contradict, impeach or discredit a former witness.

16. The newly discovered evidence is of such a nature as

to show that on another trial a different result will

probably be reached and that the right will prevail. This

was an extremely close case, tried once to a hung jury,

finally resulting in a conviction based largely on the

purported confession of the fourteen year old, mentally

disabled Defendant. No physical evidence connected

Defendant to the case, and alibi evidence was offered. The

addition of credible testimony from William McCormick

will probably result in a different outcome than that

reached in the original trial.

17. The testimony of William McCormick points directly

to the guilt of specific persons and is inconsistent with

Defendant’s guilt.

18. In addition, as an independent grounds for decision,

denying Defendant the opportunity to present all of the

newly discovered evidence to a trier of fact would, under

the circumstances of this case, violate Defendant’s federal

and state constitutional rights to due process of law.

(Emphasis added).

Based upon these findings of fact and conclusions of law, the trial court vacated

Defendant’s conviction and ordered a new trial.

The State appeals, arguing that the trial court (1) erred when it determined

that Defendant’s confession was a “purported confession;” (2) abused its discretion

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STATE V. REID

Opinion of the Court

when it granted Defendant a new trial; and (3) erred when it determined that

Defendant’s due process rights would be violated if he were not allowed to present

the new evidence at a new trial. At oral arguments before this Court, Defendant’s

attorney stated that Defendant was innocent of the crimes charged, but

acknowledged that Defendant had not filed an affidavit of innocence in this or any

other court.

We reverse the decision of the trial court.

Standard of Review

“When considering rulings on motions for appropriate relief, we review the

trial court’s order to determine whether the findings of fact are supported by evidence,

whether the findings of fact support the conclusions of law, and whether the

conclusions of law support the order entered by the trial court.” State v. Frogge, 359

N.C. 228, 240, 607 S.E.2d 627, 634 (2005) (citation and quotation marks omitted).

“Findings of fact made by the trial court pursuant to hearings on motions for

appropriate relief are binding on appeal if they are supported by competent evidence.”

State v. Morganherring, 350 N.C. 701, 714, 517 S.E.2d 622, 630 (1999) (citation and

quotation marks omitted). A “trial court’s conclusions [of law] are fully reviewable on

appeal.” State v. Lutz, 177 N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006) (citation and

quotation marks omitted).

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STATE V. REID

Opinion of the Court

A trial court’s findings of fact “may be disturbed only upon a showing of

manifest abuse of discretion.” Id. at 142, 628 S.E.2d at 35 (citation and quotation

marks omitted). “Abuse of discretion results where the court’s ruling is manifestly

unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision.” State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (2006)

(citation and quotations omitted).

Analysis

On appeal, the State argues that the trial court (1) erred when it determined

that Defendant’s confession was a “purported confession;” (2) abused its discretion

when it granted Defendant a new trial; and (3) erred when it determined that

Defendant’s due process rights would be violated if he were not allowed to present

the new evidence at a new trial. We agree.

A defendant may file a motion for appropriate relief at any time following a

verdict on

the ground that evidence is available which was unknown

or unavailable to the defendant at the time of trial, which

could not with due diligence have been discovered or made

available at that time, including recanted testimony, and

which has a direct and material bearing upon the

defendant’s eligibility for the death penalty or the

defendant’s guilt or innocence.

N.C. Gen. Stat. § 15A-1415(c) (2019). The defendant “has the burden of proving by a

preponderance of the evidence every fact essential to support the motion.” N.C. Gen.

Stat. § 15A-1420(c)(5) (2019).

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STATE V. REID

Opinion of the Court

I. Determination that Defendant’s Confession was a “Purported Confession”

The State first argues the trial court erred when it determined that

Defendant’s confession to the murder of Graham was a “purported confession.”

Specifically, the State argues that the trial court abused its discretion because the

trial court was bound by this Court’s prior decision regarding the validity of

Defendant’s confession. However, because we reverse the trial court for the reasons

stated below, we decline to address this argument.

II. Newly Discovered Evidence

The State next contends that the trial court abused its discretion when it

granted Defendant a new trial. Specifically, the States argues that Defendant failed

to prove the purported newly discovered evidence by a preponderance of the evidence.

We agree.

In order for a new trial to be granted on the ground

of newly discovered evidence, it must appear by affidavit

that (1) the witness or witnesses will give newly discovered

evidence; (2) the newly discovered evidence is probably

true; (3) the evidence is material, competent and relevant;

(4) due diligence was used and proper means were

employed to procure the testimony at trial; (5) the newly

discovered evidence is not merely cumulative or

corroborative; (6) the new evidence does not merely tend to

contradict, impeach or discredit the testimony of a former

witness; and (7) the evidence is of such a nature that a

different result will probably be reached at a new trial.

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STATE V. REID

Opinion of the Court

State v. Beaver, 291 N.C. 137, 143, 229 S.E.2d 179, 183 (1976). It is the defendant’s

burden to “prov[e] by a preponderance of the evidence every fact essential to support

the motion.” N.C. Gen. Stat. § 15A-1420(c)(5).

[A] new trial for newly discovered evidence should

be granted with the utmost caution and only in a clear case,

lest the courts should thereby encourage negligence or

minister to the litigious passions of men. The defendant

has the laboring oar to rebut the presumption that the

verdict is correct and that he has not exercised due

diligence in preparing for trial. Under the rule as codified,

the defendant has the burden of proving that the new

evidence could not with due diligence have been discovered

or made available at the time of trial.

State v. Rhodes, 366 N.C. 532, 536-37, 743 S.E.2d 37, 40 (2013) (purgandum). We

address the pertinent factors below.

A. Probably True

The trial court determined in conclusion of law 5 that the purported “newly

discovered evidence was probably true” and that McCormick was a credible witness.

While “[t]he trial court is in the best position to judge the credibility of a witness,”

State v. Garner, 136 N.C. App. 1, 14, 523 S.E.2d 689, 698 (1999), McCormick’s

testimony was internally inconsistent and contrary to his sworn affidavit. Although

the trial court found McCormick’s testimony credible, it is so contrary to the

information contained in his affidavit that we cannot conclude that the information

is probably true.

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Opinion of the Court

McCormick’s sworn affidavit, which was admitted into evidence at the MAR

hearing, contradicted his testimony at the hearing. McCormick’s affidavit states that

Shaw, Cox, and Bristow came to McCormick’s house sweating and out of breath

because they fled from a cab without paying the fare. Just two paragraphs later,

McCormick’s affidavit states that Shaw told McCormick they robbed and murdered

Graham after they left McCormick’s home that night.

At the hearing, McCormick testified that when Shaw, Cox, and Bristow arrived

at his home, they were sweating and out of breath from “running from wherever they

came from.” Shaw, Cox, and Bristow allegedly ran from the murder scene “to [the

McCormick’s] house as soon as they did [the murder].” In addition, McCormick stated

that Shaw told him they had jumped from the cab without paying the fare. But no

explanation was provided concerning why Shaw, Cox, and Bristow did not pay

Graham when Elliott had agreed to pay the fare.

Moreover, McCormick testified that his mother “was working graveyard

[shift]” from 11:00 p.m. until 7:00 a.m., and that he remembered telling her to go to

work that night because they were waiting for her to leave to then sell drugs.

However, his affidavit indicates that his mother “stayed home from work” that

evening.

When asked how long Shaw, Cox, and Bristow stayed at his house that night,

McCormick responded, “[m]aybe five, ten minutes. My momma ran them off.”

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STATE V. REID

Opinion of the Court

McCormick then testified that Shaw did not tell him anything about Graham’s

murder that night because “[i]t was already the wee hours of the morning.” However,

finding of fact number 13 states that paramedics responded to the scene of Graham’s

murder at 7:19 p.m. According to McCormick’s testimony, Shaw, Cox, and Bristow

fled from Graham’s cab to his home. The three were then at McCormick’s home for

at most ten minutes before his mother ran them off in “the wee hours of the morning.”

However, if McCormick’s mother was working the graveyard shift as he testified, she

could not have been home in “the wee hours of the morning” to run Shaw, Cox, and

Bristow off. Accordingly, not only is McCormick’s testimony probably not true, but it

is entirely impossible to reconcile the discrepancies in the information provided by

McCormick.

In light of McCormick’s conflicting affidavit and inconsistent testimony,

Defendant failed to demonstrate by a preponderance of the evidence that the

information provided by McCormick is probably true.

B. Evidence in Existence at the Time of Trial and Due Diligence

“Newly discovered evidence is evidence which was in existence but not known

to a party at the time of trial.” State v. Nickerson, 320 N.C. 603, 609, 359 S.E.2d 760,

763 (1987). “Pursuant to N.C.G.S. § 15A–1415[(c)], newly discovered evidence must

be unknown or unavailable to the defendant at the time of trial in order to justify

relief.” State v. Wiggins, 334 N.C. 18, 38, 431 S.E.2d 755, 767 (1993) (citation and

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STATE V. REID

Opinion of the Court

quotation marks omitted). Thus, where “the purported newly discovered evidence

was known or available to the defendant at the time of trial, the evidence does not

meet the requirements of N.C.G.S. § 15A-1415(c).” Rhodes, 366 N.C. at 537, 743

S.E.2d at 40.

The trial court found that prior to the original trial, “Attorney Webb spoke to

contacts ‘in the street’ who had provided information that led him to believe

Defendant was not involved in the crime.” Knowing this, Webb hired Investigator

Palmer to speak with McCormick, however, McCormick never spoke with

Investigator Palmer. The trial court stated in finding of fact 64 that “Investigator

Palmer attempted to interview William McCormick but was unable to locate him.”

In finding of fact 65, the trial court found that “[h]ad Attorney Webb been able to

locate and interview William McCormick at the time of trial, Webb would have called

him to testify to the information contained in the affidavit.”1

Webb testified that he had made “contact through some of the people that [he]

knew in the street who brought up the names of other guys that they thought had

[assaulted Graham] . . . the McCormicks names popped up in those conversations.”

1 The trial court based its conclusion that the information from McCormick was newly

discovered evidence, in part, on a finding that “the details of [McCormick’s] testimony were not known

at the time of trial.” The trial court’s wording is troubling because this is generally true of all testimony

– practitioners and judges do not know what a witness’s testimony will be until the witness actually

testifies. Under the trial court’s interpretation of newly discovered evidence, virtually any information

not originally introduced at trial could qualify as newly discovered evidence, even though it could have

been discovered through other methods or witnesses.

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STATE V. REID

Opinion of the Court

Despite having this information, Webb failed to utilize available procedures to secure

McCormick’s statement or testimony. Specifically, Webb did not (1) issue a subpoena,

(2) request a material witness order, (3) request a recess, (4) make a motion to

continue, (5) alert the trial court to the existence of this information, or (6) otherwise

preserve this information in the record at trial. See State v. Smith, 130 N.C. App. 71,

77, 502 S.E.2d 390, 394 (1998) (dismissing defendant’s argument because the

defendant did not avail himself of the methods to procure a witness at trial).

Webb could have secured McCormick’s attendance to testify at trial by

subpoena. See N.C. Gen. Stat. § 15A-801. In addition, Webb failed to file a motion

for a material witness order. A material witness order is

an order assuring the attendance of a material witness at

a criminal proceeding. This material witness order may be

issued when there are reasonable grounds to believe that

the person whom the State or a defendant desires to call as

a witness in a pending criminal proceeding possesses

information material to the determination of the

proceeding and may not be amenable or responsive to a

subpoena at a time when his attendance will be sought.

N.C. Gen. Stat. § 15A-803(a). This method compels a witness to “attend the hearing

by subpoena, or if the court considers it necessary, by order for arrest.” N.C. Gen.

Stat. § 15A-803(g). Therefore, if Webb would have filed a motion for a material

witness order, McCormick could have been compelled to attend and testify at

Defendant’s original trial despite any interference from his mother.

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STATE V. REID

Opinion of the Court

Further, McCormick was actually present at Defendant’s trial. Knowing this,

Webb failed to speak with McCormick despite knowing that McCormick may have

information concerning Graham’s death. In addition, Webb failed to alert the trial

court to the existence of this information, failed to file a motion to continue, request

a recess, or otherwise take steps to procure the information.

In similar cases, we have rejected a defendant’s motion for a new trial on the

basis of newly discovered evidence when the defendant had an opportunity at trial to

present the evidence through other methods, or the defendant did not use the proper

procedures to preserve the evidence.

In State v. Beaver, the defendant was convicted of first-degree burglary and

sentenced to life imprisonment. Beaver, 291 N.C. at 138, 229 S.E.2d at 180. The

defendant filed a motion for a new trial on the basis of newly discovered evidence.

The defendant argued that he learned during jury deliberations that a witness was

located prior to trial, and that this witness would testify that defendant was living in

the house which was burglarized. Id. at 142, 229 S.E.2d at 182. Our Supreme Court

found that the witness’ testimony “would only have been cumulative and

corroborative[,]” the defendant “had ample opportunity to examine” the detectives

who located the witness, and the defendant should have filed an affidavit prior to

trial stating that the witness was important and material. Id. at 144, 229 S.E.2d at

183.

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Opinion of the Court

Furthermore, in State v. Rhodes, the defendant was convicted of possession

with intent to manufacture, sell, or deliver cocaine and possession of drug

paraphernalia. Rhodes, 366 N.C. at 534, 743 S.E.2d at 38. The defendant’s father

testified at trial but invoked his Fifth Amendment protections when asked whether

the contraband belonged to him. Id. at 537, 743 S.E.2d at 40. After trial, the

defendant’s father made an out-of-court statement that the drugs belonged to him.

Id. at 538, 743 S.E.2d at 40.

Our Supreme Court determined that this information was not newly

discovered evidence because it “was not evidence which was unknown or unavailable

to the defendant at the time of trial, which could not with due diligence have been

discovered or made available at that time.” Id. at 538, 743 S.E.2d at 40 (citation and

quotation marks omitted). In making this conclusion, our Supreme Court determined

that the evidence could have been presented at trial through a different line of

questioning or even through the examination of another witness. Id. at 538, 743

S.E.2d at 40.

Accordingly, McCormick’s testimony is not newly discovered evidence because

it was not “unknown or unavailable to the defendant at the time of trial.” Wiggins,

334 N.C. at 38, 431 S.E.2d at 767.

Closely related is the issue of due diligence. “Due diligence is defined as ‘[t]he

diligence reasonably expected from, and ordinarily exercised by, a person who seeks

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STATE V. REID

Opinion of the Court

to satisfy a legal requirement or to discharge an obligation.’ ” State v. Pezzuto, No.

COA02-569, 2003 WL 21037894, at *3 (N.C. Ct. App. May 6, 2003) (quoting Black's

Law Dictionary 468 (7th ed.1999)) (unpublished).

When the information presented by the purported

newly discovered evidence was known or available to the

defendant at the time of trial, the evidence does not meet

the requirements of N.C.G.S. § 15A-1415(c). Wiggins, 334

N.C. at 38, 431 S.E.2d at 767. In State v. Powell we found

no error in a trial court’s conclusion that a defendant failed

to exercise due diligence when “the defendant knew of the

statement of [the witness] during the trial” but failed to

procure her testimony. 321 N.C. at 371, 364 S.E.2d at 336.

We also agreed there was no newly discovered evidence

when a defendant learned after trial that his blood sample

had been destroyed before trial, yet he made no inquiry

about the blood sample before or during trial. State v.

Dixon, 259 N.C. 249, 250-51, 130 S.E.2d 333, 334 (1963)

(per curiam). In another case we agreed there was no newly

discovered evidence when the defendant learned during his

trial that two detectives had located his former roommate

before the trial began. Beaver, 291 N.C. at 144, 229 S.E.2d

at 183. We wrote: “Defendant had ample opportunity to

examine [the detectives] as to their knowledge of the

whereabouts of [his former roommate]. This he failed to

do.” Id. We further wrote: “[I]f [the] defendant considered

[the former roommate] an important and material witness,

he should have filed an affidavit before trial so stating and

moved for a continuance to enable him to locate this

witness. This he did not do.” Id.

Rhodes, 366 N.C. at 537, 743 S.E.2d at 40.

Conclusion of law 13 states that “Defendant used due diligence and proper

means to procure the testimony of William McCormick at Defendant’s original trial.”

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STATE V. REID

Opinion of the Court

For the reasons stated above concerning evidence unknown to Defendant, Defendant

failed to exercise due diligence in procuring McCormick’s testimony.

C. Material, Competent and Relevant Information

The State further argues that the trial court abused its discretion when it

concluded that McCormick’s testimony and affidavit was “competent, material and

relevant. [Because i]t identifies the actual perpetrators of the offense and exculpates

the Defendant.” We agree.

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) (2019). “Hearsay is not admissible except as

provided by statute or by the[] rules” of evidence. N.C. Gen. Stat. § 8C-1, Rule 802

(2019). McCormick’s testimony concerning Shaw’s purported statements are

inadmissible hearsay. Rule 803 of the North Carolina Rules of Evidence establishes

exceptions to the general exclusion of hearsay evidence. See N.C. Gen. Stat. § 8C-1,

Rule 803 (2019).

The trial court made the following conclusion of law concerning Shaw’s

statements:

9. After careful scrutiny, the court concludes that the

testimony of William McCormick about Robert Shaw’s

statement regarding the details of Shaw, Bristow and Cox

assaulting the victim is admissible evidence under Rule

803(24). First, the State is on notice that Defendant would

offer such evidence at trial. Second, this hearsay evidence

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STATE V. REID

Opinion of the Court

is not specifically covered by any other exception in Rule

803. Third, the evidence possesses circumstantial

guarantees of trustworthiness equivalent to other hearsay

exceptions because it constitutes an admission of criminal

conduct by Shaw, is consistent with events actually

observed by William McCormick the day before, when

Shaw and the other youths arrived at McCormick’s house

out of breath having jumped and run from a cab, and is

consistent with known circumstances of the case, including

that the victim was assaulted by more than one young male

person. Fourth, the evidence is material to the case. Fifth,

the evidence is more probative on the issue of whether

Shaw, Bristow and Cox, rather than Defendant, were the

actual perpetrators of these crimes than any other evidence

procurable by reasonable efforts. Defendant cannot

reasonably be expected to procure the in-court confession

of Shaw that Shaw himself is guilty of robber and first

degree murder. Sixth, admission of the evidence of Shaw’s

statements will best serve the purposes of the Rules of

Evidence and the interests of justice. State v. Smith, 315

N.C. 76 (1985).

Rule 803(24) of the North Carolina Rules of Evidence allows the admission of

statements that are

not specifically covered by any of the foregoing [hearsay]

exceptions but having equivalent circumstantial

guarantees of trustworthiness, if the court determines that

(A) the statement is offered as evidence of a material fact;

(B) the statement is more probative on the point for which

it is offered than any other evidence which the proponent

can procure through reasonable efforts; and (C) the general

purposes of these rules and the interests of justice will best

be served by admission of the statement into evidence.

N.C. Gen. Stat. § 8C-1, Rule 803(24). However, “Rule 803(24) is disfavored and should

be invoked very rarely and only in exceptional circumstances.” Strickland v. Doe, 156

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STATE V. REID

Opinion of the Court

N.C. App. 292, 299, 577 S.E.2d 124, 130 (2003) (citation and quotation marks

omitted).

Because of the residual nature of the Rule 803(24) hearsay

exception and the Commentary's warning that this

exception does not contemplate an unfettered exercise of

judicial discretion, evidence proffered for admission

pursuant to N.C.G.S. § 8C-1, Rule 803(24), must be

carefully scrutinized by the trial judge within the

framework of the rule’s requirements.

State v. Smith, 315 N.C. 76, 91-92, 337 S.E.2d 833, 844 (1985) (purgandum).

For evidence to be admissible under Rule 803(24), the trial court must find six

factors in the affirmative: (1) proper notice had been given; (2) the hearsay is not

specifically covered elsewhere; (3) the statement is trustworthy; (4) the statement is

material; (5) the statement is more probative on the issue than any other evidence

which the proponent can procure through reasonable efforts; and (6) the interests of

justice will be served by its admission. Id. at 92-96, 337 S.E.2d at 844-847. Defendant

failed to satisfy the notice requirement, and so we address only that factor in our

analysis below.

When hearsay testimony is sought to be admitted as

substantive evidence under Rule 803(24), the proponent

must first provide written notice to the adverse party

sufficiently in advance of offering the statement to provide

the adverse party with a fair opportunity to prepare to

meet the statement. The hearsay statement may not be

admitted unless this notice (a) is in writing; and (b) is

provided to the adverse party sufficiently in advance of

offering it to allow him to prepare to meet it; and (c)

contains (1) a statement of the proponent’s intention to

offer the hearsay testimony, (2) the particulars of the

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STATE V. REID

Opinion of the Court

hearsay testimony, and (3) the name and address of the

declarant. Thus, a trial judge must make the initial

determination that proper notice was duly given and must

include that determination in the record; detailed findings

of fact are not required. Should the trial judge determine

that notice was not given, was inadequate, or was untimely

provided, his inquiry must cease and the proffered hearsay

statement must be denied admission under Rule 803(24).

Id. at 92, 337 S.E.2d at 844 (emphasis added) (quotation marks omitted).

Here, the trial court found that “the State is on notice that Defendant would

offer such evidence at trial.” However, there is no evidence in the record that

Defendant filed a proper notice of intent to offer hearsay evidence pursuant to Rule

803(24) prior to hearing the motion for appropriate relief. Thus, Defendant failed to

satisfy the first requirement of Rule 803(24), and the trial court abused its discretion

when it concluded the written notice requirement had been satisfied. See id. at 92,

337 S.E.2d at 844 (“Should the trial judge determine that notice was not given, was

inadequate, or was untimely provided, his inquiry must cease and the proffered

hearsay statement must be denied admission under Rule 803(24).”).

III. Constitutional Violation

The State also argues that the trial court erred when it concluded that

Defendant’s due process rights would be violated if he were not allowed to present

McCormick’s testimony at a new trial. We agree.

“The standard of review for alleged violations of constitutional rights is de

novo. A violation of the defendant’s rights under the Constitution of the United

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STATE V. REID

Opinion of the Court

States is prejudicial unless we find that it was harmless beyond a reasonable doubt.

The burden is upon the State to demonstrate, beyond a reasonable doubt, that the

error was harmless.” State v. Guy, 262 N.C. App. 313, 317, 822 S.E.2d 66, 72 (2018)

(purgandum).

The Sixth Amendment to the United States Constitution, in pertinent part,

states, “[i]n criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI. The Sixth

Amendment applies to the State of North Carolina by way of the Fourteenth

Amendment to the United States Constitution, which states, in part,

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of

the laws.

U.S. Const. amend. XIV.

Rather than relying on traditional due process principles to determine whether

to grant a new trial for newly discovered evidence, this Court has previously applied

the seven factors required for a new trial as set forth in Beaver. See State v. Hoots,

76 N.C. App. 616, 618, 334 S.E.2d 74, 75-76 (1985) (“Defendant contends that due

process requires a new trial whenever newly discovered exculpatory evidence in the

form of sworn testimony by a confessed perpetrator of the offense is corroborated by

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STATE V. REID

Opinion of the Court

independent evidence. This contention is without merit. The standard for granting

a new trial is set out in [Beaver.]”).

Here, the trial court stated in conclusion of law 18, “In addition, as an

independent ground for decision, denying Defendant the opportunity to present all of

the newly discovered evidence to a trier of fact would, under the circumstances of this

case, violate Defendant’s federal and state constitutional rights to due process of law.”

However, Defendant has failed to satisfy the Beaver factors discussed above,

and Defendant is not entitled to a new trial. Thus, the trial court erred in concluding

that Defendant’s constitutional rights would be violated if he did not have the

opportunity to present the purported newly discovered evidence.

Conclusion

For the reasons stated herein, we reverse the trial court’s order granting a new

trial.

REVERSED.

Judge BRYANT concurs.

Judge DIETZ concurs by separate opinion.

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No. COA19-205 – State v. Reid

DIETZ, Judge, concurring.

This case arrived at our Court on the wrong legal ground for post-conviction

relief. When a defendant who already has been convicted of a crime claims that there

is evidence of his innocence, his postconviction options branch into two paths,

depending on the availability of that evidence at the time of trial.

If the evidence of innocence could not have been discovered in the exercise of

due diligence at the time of trial, the defendant can bring a claim under N.C. Gen.

Stat. § 15A-1415(c), which addresses newly discovered evidence.

By contrast, if the evidence could have been discovered in the exercise of due

diligence at the time of trial, but was not, the defendant may pursue a claim for

ineffective assistance of counsel under N.C. Gen. Stat. § 15A-1415(b)(3).

This case follows the second path. Reid’s trial counsel learned “from the street”

that William McCormick had information that implicated other people, but not Reid,

in the crime. Reid’s counsel even hired an investigator to speak to McCormick. But,

according to Reid’s counsel, “we couldn’t get to him.” This was so, Reid’s counsel

explained, because McCormick’s mother did not want him to get involved with the

investigation.

As the majority correctly observes, the law provides many options for a

defendant in this situation to secure the testimony of the evasive witness. Indeed,

McCormick was sitting in the courtroom during Reid’s trial, yet Reid’s counsel took

no steps to obtain his testimony despite knowing that it likely was exculpatory. As a

STATE V. REID

DIETZ, J., concurring

result, the jury never heard the testimony that McCormick ultimately provided years

later.

Still, that fact does not make McCormick’s testimony, when it finally came to

light, newly discovered evidence under our post-conviction jurisprudence. Rather, the

failure to secure this testimony at the time of trial implicates Reid’s constitutional

right to the effective assistance of counsel.

I therefore concur in the majority’s judgment but note that this Court’s holding

does not bar Reid from seeking post-conviction relief on other grounds. The

procedural bar on successive motions for appropriate relief should not apply if the

basis for one claim did not become apparent until the litigation of another.

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