State v. Richardson

IN THE SUPREME COURT OF NORTH CAROLINA

No. 272A14

Filed 1 September 2023

STATE OF NORTH CAROLINA

v.

JONATHAN DOUGLAS RICHARDSON

Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing

a sentence of death entered by Judge Thomas H. Lock on 3 April 2014 in Superior

Court, Johnston County, upon a jury verdict finding defendant guilty of first-degree

murder. Heard in the Supreme Court on 8 February 2023.

Joshua H. Stein, Attorney General, by Teresa M. Postell and Kimberly N.

Callahan, Special Deputy Attorneys General, for the State-appellee.

Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg and James R.

Grant, Assistant Appellate Defenders, for defendant-appellant.

David S. Rudolf and Brandon L. Garrett for The Innocence Project, Inc. and

the Wilson Center for Science and Justice, amici curiae.

Justice MORGAN delivered the opinion of the Court.

Justice BERGER delivered the supplemental opinion of the Court as to Issue

F.

Justice EARLS concurred in part and dissented in part.

MORGAN, Justice.

While this appeal arising from the abuse and murder of a young child presents

this Court with a disturbing series of facts and circumstances, its resolution largely

STATE V. RICHARDSON

Opinion of the Court

requires the application of well-established legal principles to the issues raised by

defendant. We have carefully considered each issue and, being mindful of both the

extremity of the crimes committed by defendant and the resulting sentence imposed

upon him, we conclude that defendant’s trial was free from prejudicial error and that

his sentence of death must be upheld.

I. Factual and Procedural Background

A. Factual events leading up to and including Taylor’s death

This case involves profoundly significant abuses which were committed

against “Taylor,”1 ultimately leading to the youngster’s death at the hands of

defendant. The evidence in the record before this Court is extensive, and in this

introductory segment of the Court’s opinion, we present an overview of the matters

which culminated in Taylor’s death. Additional facts will be incorporated into various

portions of our analysis as they become relevant to each legal issue addressed.

The evidence in the record shows that Taylor was born on 6 July 2006 to Helen

Reyes and Jerry Skiba. Reyes and Skiba first met one another at work. Although they

never married, Reyes and Skiba lived together at the home of Skiba’s parents

beginning near the start of their relationship in 2003 and ending sometime in 2007.

Reyes described her relationship with Skiba as having “ups and downs,” including

incidents of physical, emotional, and verbal abuse committed by Skiba against Reyes.

1 The parties have stipulated pursuant to Rule 42 of the North Carolina Rules of

Appellate Procedure that the minor victim in this case will be identified as “Taylor,” a

pseudonym.

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Upon learning in 2005 that Reyes was pregnant, the couple attempted to improve

their relationship and remained together through the birth of Taylor on 6 July 2006.2

However, difficulties continued for Reyes and Skiba in their relationship. When

Taylor was about one year old, Reyes took the child and moved back into her mother’s

home in Raleigh where two of Reyes’s sisters also resided. Although Skiba’s contact

with Taylor was intermittent thereafter, Skiba’s parents had “a good relationship”

with their grandchild and Reyes took Taylor to the paternal grandparents’ home for

visits.

In September 2008, Reyes enlisted in the United States Army Reserve. Reyes

was required to establish a family care plan for Taylor. The family care plan

established that Reyes’s mother would provide care for Taylor during periods when

Reyes was involved in training or deployment obligations. Following an extended

period of basic training, Reyes’s Army Reserve commitments generally were to consist

of one weekend per month and, beginning in July 2010, an additional two-week

session each year. Although the official family care plan for Taylor called for Reyes’s

mother to care for Taylor, Reyes testified that on some occasions, Reyes’s sisters or

Skiba’s parents would keep Taylor. Other than her Army Reserve role, Reyes was not

working at this time, and Taylor was not enrolled in any preschool or childcare

programs, so Reyes spent the greater part of each day with her daughter.

2 At several places in the trial transcript, the year of Taylor’s birth is misstated, but

the testimony of Taylor’s mother, Reyes, confirmed 6 July 2006 as the correct date of the

child’s birth.

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In December 2009, Reyes went to a bar and nightclub in Smithfield with a

female friend when she noticed defendant whom Reyes described as “a tall,

handsome, southern guy, respectful.” Reyes and defendant talked and danced with

one another at the club that night, leaving separately. Both returned to the

establishment on the following night, where they conversed again and exchanged

telephone numbers. Thereafter, Reyes began a romantic relationship with defendant.

The tie between the twenty-seven-year-old Reyes and the twenty-year-old defendant

progressed quickly, becoming sexual and involving multiple dates with one another

each week by February 2010.

After Reyes and defendant had been dating for about two months, Reyes felt

that their relationship was proceeding sufficiently well for Reyes to introduce

defendant to Taylor. Reyes felt very positive about the rapport that developed

between Taylor and defendant, and the couple began to include the child in some of

their activities, including several trips to the beach. Reyes began to hope that she,

Taylor, and defendant could form a family, despite the fact that one of Reyes’s sisters

had told Reyes that the sister saw defendant physically shake Taylor “early on” in

the relationship between Reyes and defendant; Reyes did not believe her sister’s

report and never asked defendant about it.

When defendant and Reyes were dating, defendant was living with his

grandparents. Reyes often spent time at the home of defendant’s grandparents and

sometimes brought Taylor. Reyes described a “little house” located behind the home

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of defendant’s grandparents where Reyes and defendant would “hang out” and where

Reyes sometimes spent the night with defendant. The backyard outbuilding 3 had air-

conditioning and electricity, but it did not have a refrigerator, bathroom, or running

water, although there was running water available “outside near the outbuilding.”

At some point in March or April of 2010, Reyes began to be concerned about

her relationship with defendant, noticing that defendant did not want to see Reyes

as often and “appeared to want to break off the relationship.” Around the same time,

Reyes and her mother were not getting along as well as they had been, due in large

measure to the issue of Reyes’s contributions to the financial needs of their shared

household. In addition, there was also conflict among Reyes, her mother, and Reyes’s

sisters about Reyes’s relationship with defendant. By late May or early June of 2010,

Reyes’s mother announced that she did not want defendant at their home, which led

Reyes to consider taking Taylor and moving out of the residence. Ultimately, by 12

June 2010, Reyes and Taylor moved into defendant’s residence to live with him.

Reyes made the decision that she and Taylor would reside with defendant

despite her awareness of “incidents of . . . injuries or harm . . . to [Taylor]” when the

child was alone with defendant, including Taylor suffering a one-half inch cut to the

top of her head which defendant claimed had occurred when Taylor was jumping on

the bed in the outbuilding and struck her head on the corner of a stationary bicycle.

3 The building is described by various terms in the transcript and record of this case.

For consistency and ease of reading, we shall refer to it as “the outbuilding.”

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Although Reyes had wanted to take Taylor to the hospital on this occasion,

nonetheless defendant dissuaded Reyes from doing so. Reyes also knew of another

incident which occurred while Reyes, Taylor, and defendant were at the beach. While

Reyes remained on the beach, defendant took Taylor “surfing” in the ocean. When

Taylor and defendant came back onto the beach, Taylor had an eyelid injury which

resulted in a black eye. Defendant explained that Taylor’s injury occurred when a

large wave caused the “small surfboard” to strike Taylor. Before moving in with

defendant, Reyes had also witnessed the physical results of defendant’s discipline of

Taylor at least once, when Reyes returned from shopping to find Taylor with three or

four welts on her back which defendant said resulted when defendant whipped

Taylor. Reyes had actually seen defendant whip Taylor with his belt on multiple

occasions without leaving marks on the child.4 At trial, Reyes was also asked about

photographs taken of Taylor which showed the child with an unlit cigarette in her

mouth and other photographs which showed Taylor holding a beer bottle as if she

were drinking it. While Reyes admitted her awareness of defendant’s creation of the

situations shown in the photographs, Reyes stated that she had not approved of them.

Although defendant had been living in his grandparents’ home, once Reyes and

three-year-old Taylor moved in with defendant, the three resided solely in the

outbuilding. They shared a bed which consisted of an air mattress with a hole which

4 It is not entirely clear from the record whether these whippings occurred before or

after Reyes and Taylor resided with defendant, or both.

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had been repaired with duct tape. During the three or four weeks that Reyes and

Taylor resided with defendant in the outbuilding, Reyes saw defendant slap Taylor

in the face with enough force to cause Taylor to fall to the floor; the blow did not leave

a mark. Defendant slapped Taylor because the child refused to eat certain food that

defendant had given to her. Reyes testified that she had witnessed defendant

physically discipline Taylor four times.5

Defendant was working in a construction job during the time period when

Reyes and Taylor lived in the outbuilding with him. While defendant was at work

during the day, Reyes and Taylor remained in the outbuilding, watching television,

reading, and playing. They used the woods behind the outbuilding for toilet purposes

and bathed at a nearby outdoor water source. They kept perishable foodstuffs in a

cooler. Reyes and Taylor had little contact with defendant’s grandparents, although

“[t]here were times that [they] had gone in the house and showered[ ] and were able

to use the bathroom as well” late at night after defendant’s grandparents had gone to

bed or during the day when the grandparents were away from the home, and once

when defendant’s grandmother invited Reyes and Taylor inside. Reyes testified that

while defendant’s grandmother did not make her feel unwelcome, nonetheless Reyes

did not ask to use the bathroom inside the home of defendant’s grandparents on other

occasions.

5 Reyes’s testimony was inconclusive with regard to the residential circumstances of

Reyes, Taylor, and defendant when these “disciplinary” incidents transpired.

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On 2 July 2010,6 Reyes took Taylor to the home of Reyes’s mother to celebrate

the birthday of Reyes’s mother with family members. This was the first time that

Reyes and Taylor had seen Reyes’s family since moving out of the residence of Reyes’s

mother. Reyes knew that her two-week Army Reserve training obligation in New

Mexico was approaching, although the exact dates were still being determined. In

contemplating arrangements to be made for Taylor’s care during Reyes’s upcoming

military training, Reyes knew that she could leave Taylor with Reyes’s mother but

did not want to do so in light of the “strained relationship” between Reyes and Reyes’s

mother. Reyes also knew that Taylor’s paternal grandparents would be happy to care

for the child, but Reyes did not want to leave Taylor with them because Reyes believed

that the paternal grandparents were trying to obtain custody of the child.

Defendant offered to keep Taylor while Reyes was away for Reyes’s two weeks

of training, stating that his grandmother would take care of Taylor while defendant

was at work. Reyes did not talk to defendant’s grandmother about this plan, trusting

defendant’s statements. On 5 July 2010—the day before Reyes was to depart for New

Mexico—defendant drove to the home of Reyes’s mother with Reyes and Taylor. No

one was at the residence, and defendant left Reyes there at about 8:00 p.m. and then

departed with Taylor. Reyes testified that, at that point, Taylor had no injuries or

marks on her body other than those resulting from “her normal kid activities,

6 Reyes’s testimony indicates slightly different dates for this event, but the testimony

is consistent that it occurred on a Friday; therefore, it appears that this event occurred on 2

July 2010.

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scratches on her legs and arms” and “mild” eczema, which even when inflamed only

appeared as dry patches of skin around Taylor’s arms. Reyes also confirmed that

Taylor had not experienced bloody stools or any blood coming from her vaginal area.

When one of Reyes’s sisters returned to their mother’s house later that evening, the

sister was surprised to learn that Taylor was not going to be staying at the home of

Reyes’s mother during Reyes’s Army Reserve trip to New Mexico. Reyes traveled to

New Mexico on 6 July 2010. While she was in New Mexico, Reyes texted defendant

and tried to call by telephone regularly, sometimes being able to speak briefly with

Taylor.

Evidence tended to show the circumstances which existed for Taylor while she

was in the care of defendant after he dropped off Reyes at the home of Reyes’s mother

on the evening of 5 July 2010. At 8:28 p.m. on 5 July 2010, shortly after leaving Reyes

at her mother’s home, defendant purchased a hasp, padlock, and related items from

a home improvement store in Garner. At trial, Reyes viewed photographs which were

taken of the door to the outbuilding and testified that the photographs depicted a

hasp and padlock on the exterior of the door which had not been present when Reyes

departed the outbuilding for her Army Reserve training on 5 July 2010. The hasp and

padlock would have made it possible for someone to be sealed inside of the

outbuilding, as opposed to the deadlock which had been the sole lock on the door and

which could be opened from the inside of the outbuilding when Reyes exited the

outbuilding earlier that day.

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Defendant’s purchase of these items and the installation of the hasp and

padlock occurred in the face of defendant’s failure to discuss with his grandmother—

or anyone else—his need for help to care for Taylor while Reyes was out of town at

her Army Reserve training, despite defendant’s representation to Reyes that the

grandmother would provide care for Taylor while defendant was at work. Defendant’s

grandmother did not learn that Taylor was staying alone with defendant in the

outbuilding until Saturday, 10 July 2010. Investigation into defendant’s financial

transactions revealed that in the days following Reyes’s departure for New Mexico to

satisfy her Army Reserve training obligation, defendant was frequently away from

the outbuilding during periods of time and that he was apparently without Taylor

because the child was not seen by store clerks or on video surveillance footage during

any of defendant’s outings, errands, or work shifts during the succeeding ten days.

A video recording made at 2:31 a.m. on 10 July 2010 was recovered from

defendant’s cellular telephone; it showed Taylor inside the outbuilding, facing a wall

and a window with her arms held straight to her sides, repeatedly reciting, “If I have

to pee, I promise I will tell someone.” Reyes identified a voice that can be heard in the

video recording requiring Taylor to repeat the phrase and to speak more loudly as

defendant’s voice. Reyes testified that Taylor was fully potty-trained at the point

when Reyes and her daughter began to reside with defendant, although Reyes

recalled one “accident” when Taylor urinated in the bed in the outbuilding, which

lacked any toilet facilities.

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On the following day of 11 July 2010, defendant’s grandmother went to the

outbuilding to invite defendant and Taylor to have a meal with the grandmother and

defendant’s grandfather after church. As she approached the outbuilding, defendant’s

grandmother saw “poop on the doorsteps [of the outbuilding] like somebody had

diarrhea,” so she knocked on the side of the outbuilding, rather than on the door, and

called out to defendant. She heard defendant say “[Taylor], don’t go to that [expletive]

door” and also heard a “whine” or “whinnying” as if from “a child that . . . couldn’t get

her way.” Defendant did not respond to his grandmother’s knock, and the

grandmother returned to her house. Defendant subsequently entered his

grandparents’ house alone, claimed that the diarrhea had been his, and claimed that

he had removed it. Defendant then told his grandmother that Taylor was fine, and

from that point on the afternoon of Sunday, 11 July 2010, defendant’s grandmother

never went back to the outbuilding or asked defendant about Taylor. A psychiatrist

who testified at trial on defendant’s behalf stated that defendant had told the

psychiatrist that defendant’s grandfather had offered “to help” once the grandfather

learned that defendant alone was caring for Taylor, but the date of this offer does not

appear in the record, and the record does not show that defendant ever enlisted

anyone’s assistance in caring for Taylor during Reyes’s two-week training period in

New Mexico.

On Thursday, 15 July 2010 at 2:53 a.m., defendant purchased gauze pads,

bandages, Neosporin, and Flintstones vitamins from a Walmart store in Smithfield.

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Reyes testified that she was not able to speak to defendant by telephone on that day,7

but defendant and Reyes apparently exchanged a number of text messages later that

evening, including several in which defendant stated, and Reyes acknowledged, that

defendant “was high” and “high as hell” from smoking marijuana. Also on 15 July

2010, defendant ran several errands with no one accompanying him, including a 3:00

p.m. trip to an auto parts store to exchange truck brake pads that he had previously

purchased and another trip to the Walmart store in Smithfield to buy, among other

items, a queen-size air mattress.

On Friday, 16 July 2010, Reyes spoke to defendant by telephone at about 8:15

a.m.,8 and during the telephone call, defendant told Reyes that Taylor was fine and

asleep. Later that day around noon, however, Reyes’s telephone indicated that she

had missed three telephone calls from defendant. Reyes texted defendant that she

was in a training session and could not respond, and defendant texted the reply, “It’s

[Taylor]. Call me ASAP.”9 When Reyes called defendant via telephone, defendant told

Reyes “that something was wrong with [Taylor], and that he needed to take her to

the doctor.” Reyes agreed with defendant’s assessment. Reyes received an update on

7 Later in the direct examination of Reyes, she noted a “very brief” telephone

conversation with Taylor on 15 July 2010 but could not recall anything troubling about the

conversation. Testimony regarding the specific timing of some of the exchanges between

Reyes and defendant are inconsistent in the trial transcripts.

8 There was a time zone difference between Reyes and defendant due to their

respective locations. The times noted in the transcript appear to reflect Eastern Daylight

Time and we employ those times in this opinion.

9 An acronym meaning “as soon as possible.”

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Taylor’s condition through a telephone call from someone informing Reyes that

“something’s really wrong with [Taylor] and they had to airlift her to UNC-Chapel

Hill, and that [Reyes] needed to make [her] way back home.”

Also at about noon on 16 July 2010, defendant’s grandmother noticed

defendant outside of the outbuilding, speaking on his cellular telephone. Shortly

thereafter, defendant came inside his grandparents’ house and without any

conversation with his grandparents who were both present at the residence, “went to

his room . . . long enough maybe to change shirts” before departing. Defendant’s boxer

shorts, later found on the floor in his bedroom in his grandparents’ home, were

subsequently tested and found to contain a mixture of DNA.10 The mixture contained

a sperm fraction which predominantly matched defendant’s DNA and a non-sperm

fraction which matched Taylor’s DNA.

Shortly after defendant left his grandparents’ house on 16 July 2010,

defendant telephoned his grandmother to say that he was taking Taylor to the

hospital emergency room because “[s]he fell off the bed last night and when she got

up this morning she was dizzy.” At approximately 12:45 p.m., defendant carried

Taylor into the emergency room (ER) of Johnston Memorial Hospital11 in Smithfield,

10 Deoxyribonucleic acid.

11 This medical facility in Smithfield is currently known as UNC Health Johnston, but

we refer to it in this opinion as “Johnston Memorial Hospital” as that is the designation given

by certain witnesses. See UNC Health Johnston, Find a Location,

https://www.johnstonhealth.org/locations/ (last visited Aug. 17, 2023).

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“hollering, ‘[h]elp me, help me’ ” and “she fell off the bed.” Nurse Mary Butler noted

that Taylor was limp, barely breathing, and cold to the touch, and was not sure “if

[Taylor] was even alive at all.” Butler called for help. Eventually, at least seven

medical professionals were working on Taylor, cutting off her bloody and stained

clothing, preparing her to be put on a ventilator, and struggling to find a place on

Taylor’s body to insert an intravenous line due to the large number of injuries that

the child appeared to have sustained. Defendant told the medical personnel that

Taylor “fell yesterday and hit [her] head, was fine this morning and playing” and

claimed that “[f]ifteen minutes” prior to arrival at the hospital, Taylor was “conscious,

alert[,] . . . complaining of dizziness and on [the] way to the ER [her] eyes rolled back

in [her] head.”

Upon the removal of Taylor’s clothing, the hospital staff observed that Taylor

had suffered injuries “[t]oo numerous to count,” including lesions, abrasions, bruises,

scabs, deep avulsions where her “skin ha[d] been . . . ripped off” and “chunk[s]” were

missing, and obvious bite marks. The medical team could see multiple—maybe “fifty

or a hundred”—“whip injuries” and “overlapping, criss-crossing” marks which they

estimated to range in age from some that were “ten days, two weeks” old to others

that were “fresher.” Taylor’s treating physician documented “multiple bruises, linear

abrasions, bite marks and injuries” on all of the child’s extremities. While attempting

to insert a catheter into Taylor’s urethra, the medical professionals noted “obvious

signs of trauma” to Taylor’s labia and hymen; when they attempted to take Taylor’s

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temperature rectally, they saw signs of rectal injury, including bruising.

When asked about Taylor’s injuries while he was at the hospital, defendant

claimed that “those wounds were on her when he got her, when she was dropped off

with him,” represented that he needed to move his truck, and then ran toward an exit

of the hospital. Nurse Butler followed defendant, grabbed him from behind, pushed

him into a room, cursed at him, and told defendant that he could not leave. Defendant

did not struggle with or attempt to get past Butler, and instead he simply sat down

on a chair in the room. Eventually, law enforcement officers arrived at the hospital

in response to a 911 emergency telephone call from a member of the hospital medical

team that was working on Taylor, reporting suspected child abuse. After the officers

saw the child’s injuries, they went to speak with defendant. Defendant gave the

officers some basic information: his birthdate, Taylor’s birthdate, and the explanation

that Taylor’s mother Reyes had left Taylor with defendant while Reyes was away for

Army Reserve training. Defendant then stated that Taylor had fallen off of the bed

on the previous night and had hurt her head, that defendant had put an ice pack on

Taylor’s head “boo-boo” that night, and that when Taylor “woke up [that] morning

saying her head was hurting and dizzy . . . [defendant] fed her a granola bar and

Gatorade . . . [and] she rested most of the morning, until he brought her here.”

Defendant also acknowledged that “[the] past Wednesday, [Taylor] peed and

pooped on him while they were sleeping, and that he lost it and whipped her with a

drop cord”; the “marks on the butt and around the privates come from the cord”; “the

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power cord was brown”; and “when he found out how bad the marks it left [were], he

ripped [the cord] up and put it in a trash bag” inside the outbuilding. Defendant also

said that Taylor’s mother “does not know about the power cord incident.” Defendant

told the officers that he did “not know where the other whips c[a]me from . . . [and

that] the bite marks c[a]me from a [child] cousin.” Defendant also represented that

he had “never sexually assaulted” Taylor. One of the law enforcement officers drafted

a statement recounting defendant’s explanations. Defendant reviewed the statement

and after having the officers make corrections to it which did not alter the substance

of defendant’s representations, signed the document.

Meanwhile, it was determined that Taylor would be transferred to the

University of North Carolina Medical Center (UNCMC) in Chapel Hill.12 In addition

to her aforementioned injuries, Taylor had a head injury which resulted in severe

brain trauma. Taylor was also diagnosed as hypothermic and determined to have

suffered severe blood loss. Upon Taylor’s arrival at UNCMC, one of the doctors

treating the child examined her in an effort to diagnose the cause of Taylor’s

extremely low red blood cell count. After preliminarily assuming that Taylor was

suffering from uncontrolled bleeding but ultimately determining that there was no

such bleeding underway, the treating physician then ascertained that Taylor “clearly

had been suffering for some time” and that her “blood count was extremely low

12 This medical center is variously referred to in witness testimony and record

documents as “UNC Hospital,” “UNC Hospitals,” “UNC Children’s Hospital,” and other

similar terms, all plainly referring to the facility located on Manning Drive in Chapel Hill.

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because she had this pattern of injury to occur over a period of time and had lost blood

acutely over a period of time.” In addition to attempting to treat Taylor’s extensive

injuries, the medical team at UNCMC examined the child for signs of sexual abuse

and discovered “multiple scars at various stages of healing” on the outside of her

vaginal area on her mons pubis and her labia majora, along with “multiple scars” on

both of her buttocks that “extended . . . down into the vaginal area” “and the rectal

area.” All of the injuries appeared likely to have been inflicted in the previous twenty-

four to seventy-two hours. Taylor also had sustained an injury to her rectum that was

still bleeding and showed evidence of trauma—bruising, tears, and lacerations—as

well as cuts or tears to her hymen, all resulting from the penetration of her vagina.

The treating professionals noted that these types of rectal and vaginal injuries would

generally heal in twenty-four to forty-eight hours.

Despite treatment from a variety of medical experts, Taylor died on 19 July

2010. Taylor’s body indicated injuries to her scalp, cheeks, nose, lips, chin, ear, chest,

abdomen, arms, legs, wrists, hands, buttocks, vaginal area, feet, and toes, and there

were tiny pieces of copper embedded in her arms, legs, vaginal area, and buttocks.

An autopsy conducted on Taylor determined that her cause of death was

“[b]lunt force trauma of the head.” The autopsy noted many other physical harms,

including “multiple blunt force head injuries”; areas on the child’s “chest, back, thigh,

lower legs, arm and finger” where tissue had been torn from her body; deep

lacerations in multiple areas of Taylor’s body that had pieces of copper wire embedded

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in them; multiple injuries to her anus and vaginal area; and so many “healing shallow

lacerations and abrasions” that the medical examiner “couldn’t count them.”

When investigators entered the outbuilding after Taylor had been taken to the

hospital, it smelled of urine and feces, and the following items were discovered in it:

a wooden board with blood and Taylor’s DNA on it, propped behind the air mattress

where defendant and Taylor slept; a brown belt with blood and Taylor’s DNA on it;

pieces of a brown extension cord with exposed wire ends, with blood and Taylor’s DNA

on it; pieces of gray duct tape and white tape with Taylor’s hair and some of Taylor’s

hair roots stuck to the tape; and two pillow cases with defendant’s sperm on them,

one of which also had blood on it with a predominant DNA profile consistent with

Taylor’s DNA. Reyes testified at trial that photographs taken of the inside of the

outbuilding after Taylor was taken to the hospital on 16 July 2010 depicted conditions

which were very different from those conditions which were present when Reyes last

saw the outbuilding. The pictures showed trash, toys, and duct tape on the floor; a

rifle leaning in the corner; a different bed; and a shirt that belonged to Reyes,

although Reyes stated that the shirt was not in the same condition as it had been

when Reyes left for New Mexico. The photographs of the outbuilding’s entrance door

which featured a hasp and padlock which were not present on the door when Reyes

left for her military training on 5 July 2010 were pictures which were taken after

Taylor had been transported to the hospital on 16 July 2010.

B. Legal proceedings

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On 2 August 2010, defendant was indicted on charges related to Taylor’s death,

including first-degree murder, felony child abuse inflicting serious injury, first-degree

kidnapping, and the commission of a sex offense against a child under the age of

thirteen years. On 9 September 2013, a superseding indictment was returned on the

charge of the commission of a sex offense against a child under the age of thirteen

years. On 20 September 2010, the trial court entered an order noting that the State

intended to proceed capitally in defendant’s case. As a result, the trial court

ultimately determined that the trial would be conducted in, and jurors would be

drawn from, neighboring Harnett County.

Defendant filed numerous other pretrial motions, including requests to

prohibit the imposition of the death penalty as a potential sentence, to exclude certain

photographs from admission at trial, “to Restrict the Use of the Term ‘Torture’ by

Medical Professionals,” to suppress defendant’s statements which he made when he

was interviewed at Johnston Memorial Hospital, and to disqualify the superior court

judge who was assigned to preside over defendant’s trial, the Honorable Thomas H.

Lock. More specific details about the most pivotal motions and the trial court’s rulings

on them are discussed in the “Analysis” portion of this opinion as they become

pertinent to defendant’s appellate arguments.

Just before opening statements in defendant’s trial, defense counsel informed

the trial court outside of the presence of the jury:

I will say that during opening statements we will be saying

that [defendant] caused the injury that led to the death of

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[Taylor] . . . .

We are denying that he is—we’ll specifically deny

that he is guilty of first[-]degree murder, kidnapping, sex

offense. We are not going to concede that he’s guilty of any

crime specifically or any lesser form of homicide at this

point.

We are going to acknowledge that there was abuse

that took place before Helen Reyes left and afterwards and

that it was horrible.

During opening statements, the State told the jury that its theory of the case was

“about . . . defendant for ten days tormenting, torturing, and terrorizing” Taylor.

Defendant’s theory of the case, in keeping with the concessions that were

forecast by his trial counsel to be offered during the trial’s opening statement phase,

was that defendant

had been damaged by years of abuse, uncontrolled anger,

and untreated mental problems. And when he tried to take

care of [Taylor] over a ten-day period, the result was

unbelievably tragic.

[Defendant] never intended to kill [Taylor] and he

never sexually assaulted her, but out of anger he caused

injury that killed her. When [defendant] realized that

[Taylor] had been seriously injured, he rushed her to the

hospital. He was desperately trying to save her. Although

[defendant] inflicted the wound upon [Taylor]’s head that

eventually killed her, it was never his intent to kill her.

Defense counsel went on to suggest that defendant’s acts and omissions with regard

to Taylor were due, in significant part, to defendant’s difficult childhood during which

defendant’s father narrowly survived being shot three times by a stranger when

defendant was about one year old, with defendant’s mother subsequently being

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Opinion of the Court

criminally charged with hiring the shooter. She was acquitted of the alleged offense.

Defense counsel stated that defendant’s father, who obtained primary custody of

defendant, largely ignored defendant and also physically abused defendant.

Meanwhile, defendant’s mother neglected defendant during the periods that

defendant spent with her, as a result of her mental health struggles. Counsel for

defendant also conceded that defendant had left Taylor locked in the outbuilding

alone while he went shopping. Defendant’s trial attorney emphasized, however, that

Taylor’s fatal head injury was not intentional and was separate and distinct from the

child’s other injuries. Finally, counsel for defendant acknowledged during opening

statements that defendant had lied about what happened to Taylor but stated that

once defendant took “[Taylor] to the hospital, he made no effort to cover up or hide

anything that he had done to [Taylor].”

During the guilt–innocence phase of the trial proceedings, the State presented

evidence which was consistent with the aforementioned factual background. This

evidence included descriptions of Taylor’s injuries and death from fourteen medical

and law enforcement witnesses: medical doctors Edward Clark, Michael Evans, Keith

Kocis, Jefferson Williams, Kenya McNeal-Trice, Sharon Cooper, and Jonathan

Privette; dentist Richard Barbaro; registered nurses Kenneth Gooch and Mary

Butler; Johnston County Sheriff’s Department detectives Jamey Snipes and Don

Pate; Johnston County Sheriff’s Department deputy Matt DeSilva; State Bureau of

Investigation Special Agent Mike Smith; and Crime Scene Investigator Charlotte

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Opinion of the Court

Yeargin Fournier. Defendant did not testify, but he introduced evidence relevant to

his intent, state of mind, and mental condition, including testimony about the

shooting of his father and the subsequent trial and acquittal of his mother; a report

of physical abuse of defendant by his father when defendant was six years old;

defendant’s mother’s unsanitary living conditions at some times when defendant was

staying with her every other weekend; defendant’s drug and alcohol use, beginning

in his junior year of high school; defendant’s aggressive and irritable temperament

during his junior year of high school; an incident recounted by a friend of defendant

in which defendant was found with a gun and talking about suicide; and defendant

being put out of his parents’ homes at nineteen years of age after defendant was

charged with driving under the influence.

Defendant’s argument at this stage of the trial proceedings was that he

mistreated Taylor as a result of his traumatic life experiences, his mental health and

substance abuse issues, and his frustration in attempting to care for a preschool-aged

child without any help and in a difficult living situation; however, defendant’s actions

which caused Taylor’s ultimately fatal head injury were not intended to cause her

death and he tried to save the child’s life once he realized that her condition was

serious. Defendant asserted that there was a break in the chain of abusive acts which

he committed against Taylor when he traveled to the Walmart store on Thursday, 15

July 2010 at 2:53 a.m. to purchase first-aid supplies to treat Taylor’s wounds, which

he contended would sever any proximate causal link between the head trauma that

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Opinion of the Court

caused Taylor’s death and the infliction of any other previous injuries. Defendant’s

complementary legal argument represented that such an interruption in the

transaction of events would prevent this succession of acts from qualifying

defendant’s conviction for the offenses of first-degree kidnapping, sex offense against

a child under the age of thirteen, and felony child abuse inflicting serious injury to

invoke the felony murder rule, or to support the charge of murder by torture.

The jury returned verdicts in which it found defendant to be guilty of all

charges. The jury specifically determined that the State had established beyond a

reasonable doubt that defendant had murdered Taylor in the first degree expressly

premised upon the theories of murder by torture and the felony murder rule based

upon the felonies of first-degree kidnapping, sexual offense with a child, and felony

child abuse inflicting serious bodily injury. The jury also found defendant guilty of

the remaining charges of first-degree kidnapping, sexual offense with a child, and

felony child abuse inflicting serious bodily injury.

The matter then moved to the sentencing phase, during which defendant

offered considerable evidence about his chaotic family background. It included

accounts of the attempted killing of his father, which included the suggestion that

defendant’s mother had hired the shooter, even though she was acquitted of any

wrongdoing; childhood physical abuse of defendant by defendant’s father; substance

abuse and suicide attempts by defendant; unsanitary conditions in the home of

defendant’s mother, with whom defendant spent time during his youth; a history of

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Opinion of the Court

mental health issues throughout defendant’s family, including abuse and depression;

and defendant’s statements which he made to a clinical psychologist while

incarcerated in which he alleged that Reyes had imposed severe physical discipline

on Taylor before Reyes left for Army Reserve training which had caused a lot of the

child’s injuries which were still evident on 16 July 2010. However, the same

psychologist also testified that defendant had acknowledged leaving Taylor locked in

the outbuilding while defendant worked. The clinical psychologist also testified that

defendant admitted that defendant had shaken Taylor for picking at scabs on her

body and had hit Taylor’s head on “the metal door a couple of times” and then “la[id]

her down on the bed” without getting medical attention for her, which apparently

transpired on 15 July 2010. Only “a little after lunch” on the following day of 16 July

2010, after Taylor “wouldn’t wake up,” did defendant undertake any efforts to seek

help for the child. Defendant’s psychologist also recognized the extensive injuries to

Taylor and concluded that defendant “anticipates the consequences of his own

actions, he thinks logically and coherently” and “there is no obvious basis for inferring

[defendant] was unable to recognize the criminality of his alleged offense or to

appreciate the wrongfulness of his conduct at that time.”

On 3 April 2014, the jury found the existence of all three aggravating factors

which were submitted to it for consideration: (1) that defendant’s murder of Taylor

was committed in the commission of a sexual offense, (2) that defendant’s murder of

Taylor was committed in the commission of a kidnapping, and (3) that Taylor’s

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Opinion of the Court

murder was “especially heinous, atrocious, or cruel.” The jury found the existence of

three of the forty-six mitigating factors submitted to it: (1) that defendant “never

intended to kill [Taylor],” (2) that “Reyes was aware that [defendant] abused [Taylor]

and still left [Taylor] with him,” and (3) that “Reyes chose to leave [Taylor] with

[defendant] although he was only 21 years old and lived in a shed with no running

water.” The jury then unanimously found beyond a reasonable doubt that the

mitigating circumstances were “insufficient to outweigh the aggravating

circumstance[s]” and recommended a sentence of death as the appropriate

punishment for defendant. On the same date of 3 April 2014, the trial court entered

a judgment and commitment including the imposition of a death sentence.

Defendant gave notice of appeal in open court. On 22 October 2014, defendant

filed a “Motion for Stay of Appellate Proceedings in Light of Pending Racial Justice

Act Motion,” which this Court allowed on 18 December 2014. On 12 February 2021,

defendant moved to bypass the Court of Appeals for review of his non-capital

appellate issues, and the Court allowed this motion on 24 February 2021. The stay

was dissolved by order of the Court entered on 4 May 2022. Oral argument took place

in this Court on 8 February 2023.

II. Analysis

A. Denial of defendant’s motion to disqualify Judge Lock

Defendant’s first two appellate arguments concern the denial of defendant’s

motion to disqualify the Honorable Thomas H. Lock, the superior court judge who

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Opinion of the Court

was assigned to preside at defendant’s trial, from involvement in this case. Defendant

advances two bases for his contention that Judge Lock should have been removed.

First, defendant asserts that Judge Lock was a potential witness for the defense at

defendant’s trial as a result of Judge Lock’s involvement as the district attorney in

the trial of defendant’s mother which occurred in 1992 on charges related to the

aforementioned allegations that she hired someone to shoot and kill defendant’s

father. Second, defendant contends that Judge Lock’s role as the prosecutor of

defendant’s mother two decades before created an appearance and risk of bias in

defendant’s own murder trial. We conclude that defendant has failed to show any

error in the trial court’s denial of the motion to disqualify Judge Lock.

In 1992, when defendant was three years old, defendant’s mother Sandra

Richardson was tried and acquitted in the Superior Court, Johnston County on

charges of (1) conspiracy to commit murder and (2) assault with a deadly weapon

inflicting serious injury with intent to kill. The alleged victim was defendant’s father

Doug Richardson in January 1991, when defendant was approximately one year old.13

At the time of Sandra Richardson’s trial, Judge Lock was the elected district attorney

13In the motion to disqualify, defendant’s counsel asserted that in the attempted

contract killing, defendant’s father was shot three times by a man but survived, and that

after Sandra Richardson’s trial, defendant’s parents divorced and defendant’s father was

given primary custody of defendant, although defendant’s mother had visitation every other

weekend and at other specified times. In a hearing on defendant’s motion to disqualify Judge

Lock from presiding over defendant’s criminal trial for the abuse and murder of Taylor,

defense counsel noted that in a child custody matter, the trial court made a finding that

Sandra Richardson had sought to have someone hurt Doug Richardson.

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Opinion of the Court

in District 11,14 which is composed of Johnston, Harnett, and Lee Counties. He tried

the case against Sandra Richardson.

In May 2012, defendant’s trial counsel sent a letter to Judge Lock, notifying

the judge of the mother-son relationship between Sandra Richardson and defendant.

Defendant’s counsel requested that defendant’s trial team, the State’s trial team, and

Judge Lock have a meeting in order for defendant to have the opportunity to question

Judge Lock about his recall of Sandra Richardson’s case and his knowledge of any

dynamics in defendant’s family which the defense team could utilize in either the

guilt–innocence phase of defendant’s trial and/or potentially in mitigation arguments

at sentencing. On 6 August 2012, Judge Lock addressed defense counsel’s request in

open court, producing an email communication from the North Carolina Judicial

Standards Commission which was generated in response to an inquiry directed to the

Commission by Judge Lock about whether Judge Lock should disqualify himself from

defendant’s criminal trial. In the email, counsel for the North Carolina Judicial

Standards Commission opined that, based upon Judge Lock’s statement that Judge

Lock remembered Sandra Richardson’s case but had no recall from it that would be

pertinent to defendant’s case, Judge Lock did not need to recuse himself, based upon

the information which he provided to the Commission, from serving as the presiding

judge in defendant’s trial. Judge Lock did note, however, that he would comply with

14 The former District 11 has since been divided into two districts: 11A and 11B.

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Opinion of the Court

the recommendation of the Judicial Standards Commission to refer to another

superior court judge any motions related to his participation in defendant’s trial.

On 1 October 2012, defendant filed a motion to disqualify Judge Lock from

presiding over defendant’s criminal trial, asserting that Judge Lock was a potential

witness for the defense and projecting that defendant planned to focus at trial on the

trauma that defendant experienced as a result of growing up in a family which was

plagued by a dysfunctional parental dynamic. Defendant deemed this subject matter

to be highly relevant to the jury’s decisions in both the guilt–innocence and

sentencing phases of defendant’s trial on the charges arising from Taylor’s death. In

the motion to disqualify, defendant cited the Fifth, Sixth, and Eighth Amendments

to the United States Constitution and Article I, §§ 19, 23, and 27 of the North Carolina

Constitution, as well as N.C.G.S. § 15A-1223(e) and Canon 3(C)(1)(b) of the North

Carolina Code of Judicial Conduct.15

In the motion to disqualify, defendant specifically represented that Judge Lock

would have (1) “a lot of knowledge about the case against Sandra” including details

not otherwise available, (2) knowledge about the manner in which the shooting

affected defendant’s father, and (3) “observations” about Sandra during her trial

which would be “relevant to her stability and character.” Defendant’s trial team

15 Defendant’s motion to disqualify Judge Lock also discussed disqualifying Assistant

District Attorney Michael Beam, who was co-counsel for the prosecution in Sandra

Richardson’s trial. On appeal, defendant does not argue any error regarding Beam’s status

in defendant’s case, and thus we do not further address any portions of filings in the record

on appeal which pertain to Beam.

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Opinion of the Court

acknowledged that they had been able to review the existing record in defendant’s

mother’s criminal case. Defendant’s trial team also divulged, with regard to the

motion, that the team had interviewed defendant’s mother, defendant’s father, other

Richardson family members, and defense counsel from defendant’s mother’s trial, but

defense counsel suggested that “[t]hese witnesses are naturally going to lack the

prosecutors’ objectivity about Sandra[’s]” criminal trial. Finally, defendant

emphasized that the “motion is not based on any claim that Judge Lock would be

biased against [defendant] because twenty years ago he prosecuted [defendant’s]

mother,” but rather that if Judge Lock was not disqualified, “he cannot be called as a

material witness” and “it would create an appearance of impropriety for Judge Lock

to preside over [d]efendant’s trial.” On the same date of 1 October 2012, defendant

also filed a motion for disclosure of information from Judge Lock about the trial of

defendant’s mother and the facts surrounding her alleged crimes. The motion for

disclosure contained factual allegations and legal requests which are essentially the

same as those found in the motion to disqualify and in defendant’s original letter to

Judge Lock.

As Judge Lock had promised during the 6 August 2012 hearing, he requested

that another superior court judge determine both of the motions as they related to

Judge Lock’s participation as the assigned presiding judge in defendant’s trial.

Consequently, the motions were assigned to be heard by the Honorable James Floyd

Ammons Jr. See State v. Poole, 305 N.C. 308, 320 (1982) (discussing circumstances

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Opinion of the Court

where a presiding trial judge who is being challenged should refer motions to recuse

or to disqualify to another judge for consideration). On 9 November 2012, Judge

Ammons entered an order denying defendant’s motion for the disclosure of Judge

Lock’s knowledge of mitigation information while ordering “complete discovery” from

the State as required by statute or caselaw. Judge Ammons found as fact that while

Judge Lock remembered serving as the prosecutor in Sandra Richardson’s trial,

Judge Lock did not have any knowledge of “evidence which would be pertinent to . . .

defendant’s capital case.” Judge Ammons also noted that Judge Lock had an ethical

duty to disclose any exculpatory or mitigating evidence regarding defendant’s

criminal trial, and that Judge Lock had no knowledge of such evidence. Accordingly,

Judge Ammons concluded (1) that defendant had not sufficiently demonstrated that

“interviews or depositions of Judge Lock” were required here and (2) “that Judge Lock

is not a material witness” in defendant’s case.

Judge Ammons additionally found in an “Order on Judge’s Status” that

although Judge Lock had “played a major role” in the prosecution of Sandra

Richardson for the attempted murder of defendant’s father, Judge Lock did not “have

any information, exculpatory or otherwise, . . . that would be material to . . .

[d]efendant’s case” and further that defendant “ha[d] numerous other sources [from

whom] to attempt to obtain [the] information” which defendant sought from Judge

Lock.

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On 19 December 2012, defendant filed a petition for writ of certiorari which

sought review by this Court of Judge Ammons’s rulings that Judge Lock was not

required to recuse or disqualify himself from presiding over defendant’s trial and that

Judge Lock would not be required to disclose any information about his recollections

of the criminal trial of defendant’s mother. In his petition, defendant reiterated his

belief that Judge Lock would potentially be a material witness in defendant’s trial

and his contention that Judge Lock would create the appearance of impropriety in

the event that Judge Lock presided over defendant’s trial. This Court denied

defendant’s petition for writ of certiorari by order entered 11 April 2013.

Thereafter, Judge Lock presided over defendant’s trial at which, as noted

earlier, defendant was convicted on numerous charges arising out of the abuse and

murder of Taylor. Defendant received a sentence of death. Defendant contests the

orders entered by Judge Ammons regarding defendant’s request for Judge Lock to

have been disqualified from presiding over the trial.

1. Disqualification pursuant to N.C.G.S. § 15A-1223(e) and the Code of

Judicial Conduct of judges who may be a potential witness

The need for a judge to recuse himself or herself or to be disqualified where he or

she is a potential witness in the trial in question is obvious. In our judicial system, a

trial judge should be a neutral manager of an adversarial trial proceeding rather than

appearing as a witness for one side or the other. See, e.g., State v. Britt, 288 N.C. 699,

710 (1975) (holding that “[e]very person charged with a crime has an absolute right

to a fair trial . . . [including] a trial before an impartial judge”); see also State v.

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Williams, 362 N.C. 628, 638 (2008) (quoting Britt for the same proposition). These

fundamental legal principles comport with the provisions of North Carolina General

Statutes Section 15A-1223(e) that “[a] judge must disqualify himself from presiding

over a criminal trial or proceeding if he is a witness for or against one of the parties

in the case.” N.C.G.S. § 15A-1223(e) (2021). Likewise, Canon 3(C) of the North

Carolina Code of Judicial Conduct states that a judge should recuse himself or herself

whenever he or she has “personal knowledge of disputed evidentiary facts concerning

the [matter]” and/or he or she is “likely to be a material witness in the proceeding.”

Code of Judicial Conduct, Canon 3(C)(1)(a) and (d)(iv). Defendant has not asserted

that Judge Lock has any knowledge of any evidentiary facts in defendant’s case.

Therefore, in the case at bar, the issue is whether Judge Lock was potentially “a

witness” or a “material witness” in defendant’s murder trial as a result of Judge

Lock’s participation in a different criminal trial which occurred twenty years prior

and which included parties that were different from those involved in defendant’s

trial.

When a ruling which resolves a motion to disqualify a judge under N.C.G.S. §

15A-1223 and Canon 3 of the Code of Judicial Conduct is at issue, this Court has

opined that “the burden is upon the party moving for disqualification to demonstrate

objectively that grounds for disqualification actually exist.” State v. Fie, 320 N.C. 626,

627 (1987) (emphasis added) (quoting State v. Fie, 80 N.C. App. 577, 584 (1986)

(Martin, J., concurring)). To satisfy such a demonstration, “substantial evidence”

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Opinion of the Court

must be presented by the moving party in order to establish that recusal is required.

State v. Scott, 343 N.C. 313, 325 (1996). If the allegations about the judge’s potential

disqualification are made with “sufficient force” to require findings of fact, the motion

to recuse should be referred to another judge. Id. at 326. In such a case, the findings

of fact must be supported by evidence and not solely based upon “inferred

perceptions,” and those factual findings must support the deciding court’s conclusions

of law. Lange v. Lange, 357 N.C. 645, 649 (2003).

On appeal to this Court, defendant argues that it was reversible error for Judge

Ammons to determine that Judge Lock did not need to be disqualified from presiding

over defendant’s criminal case based upon defendant’s assertions that Judge Lock

was a potential witness in defendant’s trial. First, defendant contends that due to

Judge Lock’s role as the prosecutor in the 1992 criminal trial of defendant’s mother,

Judge Lock “had personal knowledge, and made firsthand observations that were

relevant to the defense” in the criminal case of defendant and “had information about

the parties” in Sandra Richardson’s trial. The specific information that defendant

contends Judge Lock would possess about the parties was what defendant’s parents

“[were] like” in the early 1990s when defendant was an infant or a toddler at the time

of the shooting of defendant’s father and of his mother’s trial.

Defendant primarily focuses on the determination that Judge Ammons made

in his “Order on Judge’s Status” that, in order for a judge to be called as a witness,

“the judge must be a material witness or have personal knowledge of disputed

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Opinion of the Court

material facts” and that for Judge Lock to be called as a witness here, any evidence

he possessed “must be material and disputed,” while defendant emphasizes that

N.C.G.S. § 15A-1223(e) does not include a materiality requirement. Although

defendant is correct that the statute in question does not include a materiality

component, nonetheless the State correctly notes that defendant repeatedly

contended in his written motions and supporting oral arguments that Judge Lock

could offer “material mitigating evidence,” citing both N.C.G.S. § 15A-1223(e) (which

includes no materiality requirement) and Code of Judicial Conduct Canon 3(C)(1)(b)

(which explicitly does include a materiality requirement), along with various

provisions of the United States Constitution and the North Carolina Constitution.

Judge Ammons cited all of these legal resources in the following conclusion of law

which he rendered on the issue: “That Judge Lock’s presiding over [defendant’s] case

does not violate the Fifth, Sixth, and Eighth Amendments to the [U.S.] Constitution[;]

Article I, [§§] 19, 23, and 27 of the North Carolina Constitution, N.C.[G.S. §] 15A-

1223(e), and the North Carolina Code of Judicial Conduct Canon 3(C)(1)(b).”

In light of defendant’s presentation of arguments for Judge Lock’s recusal on

each of these various bases, we cannot infer that Judge Ammons misapprehended the

provisions of N.C.G.S. § 15A-1223(e) simply because Judge Ammons referenced

materiality in his orders. During the hearing on the motion to recuse, Judge Ammons

and defense counsel engaged in at least one exchange in which Judge Ammons

expressly observed and discussed that one of the questions under his consideration

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Opinion of the Court

was whether Judge Lock “is a witness for or against” defendant. Later during the

same hearing when the State referenced materiality, defense counsel agreed that “the

material witness [consideration] is . . . part of it.” Although during the hearing both

parties and Judge Ammons discussed whether Judge Lock would potentially be a

“witness” or a “material witness” in defendant’s trial, defense counsel never expressed

any concern that Judge Ammons misapprehended the legal questions before Judge

Ammons regarding defendant’s motion to disqualify.

It is also significant that in the two orders which he entered in his resolution

of defendant’s motion seeking disqualification of Judge Lock, Judge Ammons found

as fact that Judge Lock “is not privy to any exculpatory or mitigating evidence

relating to [defendant]” and that Judge Lock had repeatedly stated that he did not

have any knowledge of “evidence which would be pertinent to . . . defendant’s capital

case.” “Pertinent” means “relevant in the context of the crime charged.” State v. Bogle,

324 N.C. 190, 198 (1989) (quoting State v. Squire, 321 N.C. 541, 548 (1988)).

Defendant has not argued that Judge Lock was untruthful or dishonest in

representing that Judge Lock did not have any knowledge of any evidence that would

be exculpatory, mitigating, or otherwise pertinent to defendant’s trial or sentencing.

Only relevant evidence is admissible in the guilt–innocence phase of a trial, N.C.G.S.

§ 8C-1, Rule 402 (2021), and while the Rules of Evidence do not apply at capital

sentencing proceedings, nonetheless a trial court may only permit the introduction of

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Opinion of the Court

evidence which is somehow relevant or pertinent to sentencing. See State v. Warren,

347 N.C. 309, 325 (1997), cert. denied, 523 U.S. 1109 (1998).

As the party moving for disqualification of the presiding trial judge under the

governing law and the Code of Judicial Conduct, defendant had the burden “to

demonstrate objectively that grounds for disqualification actually exist,” Fie, 320 N.C.

at 627 (emphasis added) (quoting Fie, 80 N.C. App. at 584 (Martin, J., concurring)),

and that such grounds exist through the production of “substantial evidence,” Scott,

343 N.C. at 325. Where a “[d]efendant carries the burden to produce substantial

evidence . . . mere speculation or conjecture is not sufficient to satisfy this

requirement.” State v. Polke, 361 N.C. 65, 72 (2006) (citing State v. Anderson, 350

N.C. 152, 183, cert. denied, 528 U.S. 973 (1999)).

Although defendant speculated that Judge Lock “potentially has a lot of

knowledge about the case against Sandra”—including circumstances regarding “her

stability and character”—and “presumably” had sufficient familiarity with her

husband so as to have impressions about how defendant’s father was affected by

defendant’s mother’s alleged harm which was inflicted upon defendant’s father by his

shooter, defendant has not identified any particular knowledge that Judge Lock could

have that would be relevant to defendant or to the crimes for which defendant faced

trial. Moreover, even if Judge Lock had recollections of, or thoughts about,

defendant’s parents, such evidence would not be admissible even as mitigation

evidence in favor of defendant. “While a trial court should allow the jury to consider

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any mitigating evidence related to a defendant’s character and record or the

circumstances of the crime, the feelings, actions, and conduct of third parties have no

mitigating value as to defendant and are irrelevant in capital sentencing proceedings.”

State v. Smith, 359 N.C. 199, 214–15 (emphasis added), cert. denied, 546 U.S. 850

(2005).

Judge Lock’s surmised meaningful insight into any of defendant’s family

dynamics which may have been relevant to the accused’s trial defenses or mitigation

arguments upon sentencing on the basis of Judge Lock’s limited exposure to

defendant’s parents for only a narrow period of time some twenty years before

defendant’s crimes occurred, arising only out of the constrained circumstances of the

trial which Judge Lock prosecuted as the district attorney in which defendant’s

mother was the alleged wrongdoer and defendant’s father was the victim, is only

speculative conjecture and does not constitute the type of substantial evidence that a

defendant must produce to compel a trial judge’s disqualification from a proceeding.

These circumstances are particularly determinative where Judge Lock has

unequivocally represented that he does not have any evidence to offer which is

pertinent to defendant’s case and where defendant does not suggest that Judge Lock

was untruthful in this representation.

2. Appearance of impropriety

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Defendant also contends that Judge Lock should have been disqualified from

presiding over defendant’s trial because his prior role as a prosecutor of Sandra

Richardson created an appearance and a risk of actual bias at defendant’s trial.

As an initial matter, with regard to defendant’s assertion on this appeal

concerning any risk of Judge Lock’s actual bias, we note that in defendant’s motion

to disqualify which was filed on the trial court level, defendant candidly and explicitly

stated that “[t]his motion is not based on any claim Judge Lock would be biased

against [defendant] because twenty years ago he prosecuted [defendant’s] mother.”

In addition, during a pretrial hearing on the motions, defendant’s counsel reiterated:

[N]obody’s suggesting here that Judge Lock is — did

anything wrong either as a prosecutor or judge in this case.

And we’re not claiming that he’s biased as a result of

this. We realize this happened twenty years ago and it did

not directly involve this defendant.

What we are saying is this. Because he prosecuted

Sandra Richardson those many years ago at a critical time

in [defendant’s] life, he is a potential witness in this case.

And if he presides over the case, we’re going to lose the

right to call him as a witness.

(Emphasis added.) At the same hearing, defense counsel later reaffirmed that

defendant was not alleging that Judge Lock would be prejudiced against defendant

or for the prosecution, or that Judge Lock otherwise would be unable to preside at

defendant’s trial in an impartial manner, but that defendant’s challenge to Judge

Lock’s ability to properly preside was based upon “him being a witness.” Likewise,

defendant did not claim that Judge Lock harbored any actual bias in defendant’s

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petition for writ of certiorari filed in this Court on 19 December 2012 in Case No.

526P12. See State v. Benson, 323 N.C. 318, 322 (1988) (“Defendant may not swap

horses after trial in order to obtain a thoroughbred upon appeal.”). Accordingly,

defendant’s argument that Judge Lock possessed actual bias at defendant’s trial is

unpersuasive here.

We next address defendant’s contention that Judge Lock should have been

disqualified because there was a potential for the appearance of impropriety in the

event that Judge Lock presided over defendant’s trial in light of Judge Lock’s

participation in the prosecution of defendant’s mother on charges related to her

alleged hiring of an individual to kill defendant’s father. As discussed above, both

N.C.G.S. § 15A-1223 and Canon 3(C) of the Code of Judicial Conduct “control the

disqualification of a judge presiding over a criminal trial when partiality is claimed.”

Scott, 343 N.C. at 325. Prior to the year 2003, Canon 2 of the Code stated that “[a]

judge should avoid impropriety and the appearance of impropriety in all his

activities.” See Code of Judicial Conduct, Canon 2 (2002) (emphasis added). Under

this earlier version of the Code, a defendant who contended that a trial judge should

be disqualified from presiding over a case due to partiality was required to present

“substantial evidence of partiality or evidence that there was an appearance of

partiality” on the part of the trial judge. State v. Vick, 341 N.C. 569, 576 (1995)

(emphasis added); see also Scott, 343 N.C. at 326. However, under the current version

of the Code of Judicial Conduct which applies in defendant’s case, Canon 3(C)

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Opinion of the Court

provides that “a judge should disqualify himself/herself in a proceeding in which the

judge’s impartiality may reasonably be questioned, including but not limited to

instances where . . . [t]he judge has a personal bias or prejudice concerning a party[.]”

Code of Judicial Conduct, Canon 3(C)(1)(a). While defendant has expressly noted, and

we have expressly acknowledged, that defendant here does not assert that Judge

Lock maintained any actual bias or prejudice against defendant in this case,

nonetheless we are left to consider the remaining factor of the cited canon as to

whether, in presiding at defendant’s trial, Judge Lock’s “impartiality [might]

reasonably be questioned.” Id.

Defendant relies upon Fie as an illustration of the type of circumstances in

which, despite the lack of any actual bias on the part of a trial judge or any lack of

ability of the trial judge to preside impartially over a trial, nonetheless the

appearance of impartiality required disqualification of the trial judge in question. In

Fie, which was decided under the earlier version of Canon 3(C) of the Code of Judicial

Conduct, this Court analyzed a situation in which the trial judge “initiated the

criminal process against the two defendants” by writing a letter to the local district

attorney which requested that a grand jury consider numerous criminal charges

against the defendants after the trial judge had heard certain testimony in another

trial over which the trial judge had presided. 320 N.C. at 626–28. Upon this particular

background, this Court held that “a perception could be created in the mind of a

reasonable person that [the trial judge] thought the defendants were guilty of the

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Opinion of the Court

crimes with which they were charged and that it would be difficult for the defendants

to receive a fair and impartial trial before” the trial judge. Id. at 628. While we find

unassailable the assertion in Fie that a trial judge who recommends that criminal

charges be brought against a defendant should not then serve as the presiding judge

over the defendant’s trial in light of the appearance of the trial judge’s partiality due

to the trial judge’s recommendation of the very charges which are the subject of

defendant’s trial over which the same trial judge presides, the extraordinary

procedural facts presented in Fie are markedly distinguishable from the present case.

Here, Judge Lock had no previous connection to defendant’s criminal case and had

no input in the initiation of criminal charges against defendant regarding the death

of Taylor. Judge Lock’s role as the prosecutor of defendant’s mother in a criminal

matter involving defendant’s parents at a time period which was twenty years prior

to defendant’s trial, in a prosecution of defendant’s mother at a time when defendant

was two years of age, and in a prosecution of defendant’s mother in which there was

no issue of the trial’s outcome which was premised upon defendant, is so different

from the trial judge’s relationship to the defendants in Fie that there is no

consequential parallel to impact the current case.

Turning to defendant’s due process claims, defendant acknowledges that the

United States Constitution protects the guarantee of “an absence of actual bias” on

the part of a presiding judge. Williams v. Pennsylvania, 579 U.S. 1, 8 (2016). In

detecting the existence of a trial judge’s inability to preside over a case due to bias,

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Opinion of the Court

the United States Supreme Court authorizes “an objective standard” in order to

“avoid[ ] having to determine whether actual bias is present.” Id. (“The Court asks

not whether a judge harbors an actual, subjective bias, but instead whether, as an

objective matter, the average judge in his position is likely to be neutral, or whether

there is an unconstitutional potential for bias.” (extraneity omitted)). In Williams,

which defendant frequently cites in his argument, the United States Supreme Court

considered whether there was a due process violation in the form of “an impermissible

risk of actual bias when a judge earlier had significant, personal involvement as a

prosecutor in a critical decision regarding the defendant’s case.” Id. (emphasis added).

In Williams, Ronald Castille, then-district attorney, approved the pursuit of the death

penalty in the defendant’s first-degree murder case. Id. at 5. Two and one-half

decades later, the defendant—who had been convicted of murder and sentenced to

death—sought post-conviction relief, receiving both a stay of execution and a new

sentencing hearing. Id. at 6. The Commonwealth of Pennsylvania then sought further

review in the Pennsylvania Supreme Court where Castille, who as the district

attorney had approved proceeding capitally against the defendant, was serving as its

chief justice. Id. After the defendant’s motion for the chief justice to recuse himself

from the defendant’s appellate case was denied, the lower court ruling which granted

post-conviction relief to the defendant was vacated. Id. at 7. Consequently, the

defendant’s death sentence was reinstated. Id. In determining that the Chief Justice

of the Pennsylvania Supreme Court should have been disqualified from considering

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Opinion of the Court

the defendant’s appeal, the United States Supreme Court opined that “[t]he due

process guarantee that ‘no man can be a judge in his own case’ would have little

substance if it did not disqualify a former prosecutor from sitting in judgment of a

prosecution in which he or she had made a critical decision.” Id. at 9.

Just as with the Fie case, we find Williams to be inapposite here to defendant’s

case because Judge Lock had no involvement as a prosecutor in defendant’s criminal

case and had no apparent involvement in any previous legal proceeding directly

involving defendant, much less “significant, personal involvement.” Id. at 8. Thus, we

believe that “the average judge in [Judge Lock’s] position is ‘likely’ to be neutral.” Id.

(quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009)).

In sum, we conclude that defendant has not established, at a minimum, the

existence of the appearance of impropriety in Judge Lock’s service as the presiding

judge over defendant’s trial due to Judge Lock’s prior position as a prosecutor of

defendant’s mother at a point in time when defendant was a young child. Accordingly,

we are unpersuaded by defendant’s argument.

B. Admissibility of photographic evidence

Defendant next argues that the trial court committed reversible error in its

admission of eighty-eight color photographs of Taylor’s body and her injuries which

were allowed into evidence through the testimony of eight of the State’s witnesses.

Defendant also contends that the trial court erred in permitting these photographs

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Opinion of the Court

to be displayed before the jury on a sixty-inch monitor,16 with the ability for witnesses

to utilize enlarged and close-up views of the photographs during the witnesses’

respective accounts. Although defendant acknowledges that the number and nature

of Taylor’s injuries were relevant to the factual determinations to be made by the

jury, he contends that “the manner and extent of the State’s photographic display

was excessive, inflammatory, and unfairly prejudicial[,] . . . because there was no

dispute about who caused the injuries and whether they were extreme and tragic.

Rather at both phases of trial, the primary issue was [defendant’s] state of mind.” We

do not determine any abuse of the trial court’s discretion with regard to the forum’s

admission of the challenged photographs.

“All relevant evidence is admissible” at trial unless the Constitution, the

legislature or the Rules of Evidence provide otherwise. N.C.G.S. § 8C-1, Rule 402

(2021). Relevant evidence includes all evidence that has “any tendency to make the

existence of any fact that is of consequence to the determination of the action” either

more or less probable. N.C.G.S. § 8C-1, Rule 401 (2021). A trial court may, however,

exclude evidence when that evidence is “substantially outweighed by the danger of

unfair prejudice, confus[es] the issues, . . . mislead[s] the jury,” or causes “undue

delay, waste of time, or needless presentation of cumulative evidence.” N.C.G.S. § 8C-

1, Rule 403 (2021). A trial court’s decision whether to admit or exclude evidence under

16 The monitor screen’s diagonal measurement was sixty inches. The apparatus was

twenty-nine inches high and fifty-three inches wide.

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Rule 403 is reviewed for abuse of discretion. State v. Roache, 358 N.C. 243, 284 (2004).

An 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. Hennis, 323 N.C. 279, 285 (1988). A defendant advancing such an argument

must also demonstrate that any abuse of discretion prejudiced the defendant. State

v. Temple, 302 N.C. 1, 14 (1981).

Photographs are allowed to prove “the character of the attack made by

defendant upon the deceased,” State v. Gardner, 228 N.C. 567, 573 (1948), and “to

illustrate testimony regarding the manner of a killing” in order “to prove

circumstantially the elements of murder in the first degree,” Hennis, 323 N.C. at 284.

“Photographs of a homicide victim may be introduced even if they are gory, gruesome,

horrible or revolting, so long as they are used for illustrative purposes and so long as

their excessive or repetitious use is not aimed solely at arousing the passions of the

jury.” Id. (citing State v. Murphy, 321 N.C. 738 (1988); State v. King, 299 N.C. 707

(1980)); see also State v. Williams, 334 N.C. 440, 460 (1993), remanded for

reconsideration on other grounds, 511 U.S. 1001 (1994). But “when the use of

photographs that have inflammatory potential is excessive or repetitious, the

probative value of such evidence is eclipsed by its tendency to prejudice the jury.”

Hennis, 323 N.C. at 284. “The number of photographs alone is an insufficient measure

of their capacity to prejudice and inflame the jury; instead, the court looks to their

probative value and the circumstances of their introduction into evidence.” State v.

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Phipps, 331 N.C. 427, 454 (1992); see also Hennis, 323 N.C. at 284.

“The test for excess is not formulaic: there is no bright line indicating at what

point the number of crime scene or autopsy photographs becomes too great.” Hennis,

323 N.C. at 285. Ultimately, “[w]hether the use of photographic evidence is more

probative than prejudicial and what constitutes an excessive number of photographs

in the light of the illustrative value of each likewise lies within the discretion of the

trial court.” Id. Factors that may be considered in determining whether photographs

should be excluded under Rule 403 include: (1) the number of photographs; (2)

whether the photographs are unnecessarily duplicative of other testimony; (3)

whether the purpose of the photographs is aimed solely at arousing the passions of

the jury; and (4) the circumstances surrounding their presentation. State v. Mlo, 335

N.C. 353, 374–75 (1994). In addition,

[w]hat a photograph depicts, its level of detail and scale,

whether it is color or black and white, a slide or a print,

where and how it is projected or presented, the scope and

clarity of the testimony it accompanies—these are all

factors the trial court must examine in determining the

illustrative value of photographic evidence and in weighing

its use by the [S]tate against its tendency to prejudice the

jury.

Hennis, 323 N.C. at 285. “When a photograph ‘add[s] nothing to the State’s case,’ then

its probative value is nil, and nothing remains but its tendency to prejudice.” Id. at

286 (alteration in original) (quoting Temple, 302 N.C. at 14).

Defendant relies heavily on Hennis, which defendant characterizes as “a triple

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murder case involving the brutal stabbing of a mother and her two children[17] where

the display of a total of thirty-five victim photographs was held to be so inflammatory

as to require a new trial.” In Hennis, slides of the thirty-five photographs approved

by the trial court for display were projected on “a screen large enough to project two

images 3 feet 10 inches by 5 feet 6 inches side-by-side on the courtroom wall opposite

the jury. This design permitted the jury to view the slides projected just above [the]

defendant’s head.” Id. at 282. In addition to nine pictures of the victims’ bodies which

were photographed at the crime scene, and “[d]espite the fact that [the] defendant

had signed stipulations as to the cause of the victims’ deaths that tracked the autopsy

reports, twenty-six slides of the bodies taken at the autopsy were used by forensic

pathologists to illustrate their testimony as to the nature and extent of the wounds.”

Id. at 283. Moreover, after the pathologists and other witnesses utilized the projected

enlarged slides to illustrate their respective testimonies, exhibition of the same

photographic evidence was repeated when

thirty-five 8-by-10-inch glossy photographs, the majority of

which were in color, were subsequently distributed, one at

a time, to the jury. This process took a full hour and was

unaccompanied by further testimony. The autopsy

photographs generally depicted the head and chest areas

of the victims and revealed in potent detail the severity of

their wounds, made all the more gruesome by the visible

protrusion of organs, caused by process of decomposition.

The trial court’s charge to the jury shortly before it retired

to consider its verdicts included the admonition that the

photographs and other illustrative evidence were to be

17 A third child, who was an infant, was discovered unharmed in a crib. State v.

Hennis, 323 N.C. 279, 281 (1988).

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used “for the purpose of illustrating and explaining the

testimony of the various witnesses. . . . [and that they were

not to] be considered . . . for any other purpose.”

Id. (alterations in original) (emphasis added).

In concluding that admission of this photographic evidence constituted

prejudicial error and in awarding the defendant a new trial in Hennis, this Court

observed:

In spite of the trial court’s appropriate

determination that many of the photographs initially

proffered by the [S]tate were repetitious and the court’s

consequential ruling that these could not be admitted into

evidence, many other photographs with repetitive content

were allowed. The record reflects such repetition even in

the testimony of one of the pathologists, who at one point

had nothing to say concerning a slide depicting a child’s

neck wound except to identify it and add, “This looks like

the one we saw before.” Likewise, the several color images

of the same victim’s neck wound taken at the autopsy

cannot be said to have added anything in the way of

probative value to the color images of that same wound

taken at the crime scene and projected before the jury in

illustration of the previous testimony, even when the

witness was testifying to different facts. Although this

Court has not disapproved the illustrative use of autopsy

photographs, the majority of the twenty-six photographs

taken at the victims’ autopsies here added nothing to the

[S]tate’s case as already delineated in the crime scene

slides and their accompanying testimony. Given this

absence of additional probative value, these photographs—

grotesque and macabre in and of themselves—had

potential only for inflaming the jurors.

In addition, the prejudicial effect of photographs

used repetitiously in this case was compounded by the

manner in which the photographs were presented. . . . [on]

an unusually large screen on a wall directly over

defendant’s head [and in addition] the thirty-five

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Opinion of the Court

duplicative photographs published to the jury one at a time

just before the [S]tate rested its case were excessive in both

their redundancy and in the slow, silent manner of their

presentation.

Id. at 286 (citations omitted). Defendant analogizes the facts of Hennis to the facts

existent in the present case to support his contention that the admission of eighty-

eight photographs of Taylor and her injuries here were likewise an abuse of discretion

which requires that defendant receive a new trial. We find defendant’s comparison of

the two cases to be unavailing.

Defendant suggests that the trial court here could have reduced the alleged

prejudicial effect of the photographs by altering, in various ways, the manner in

which the photographs were displayed. He posits that the photographs at issue could

have been displayed on a smaller monitor; the monitor could have been positioned

further away from the jury; the size of the photographs displayed on the monitor could

have been reduced; or printed copies of the photographs could have been distributed

individually to the jurors.

As an initial matter, we agree with defendant that the photographs in his trial

that were presented on the monitor were displayed with “high definition and zooming

capability” and in a manner “that did not exist in 1988,” when this Court’s Hennis

opinion was issued. Further, defendant’s trial took place in 2014—more than twenty-

eight years after defendant Hennis’s trial occurred—and advancements in

technological areas such as photographic reproductions and electronic presentations

have been acknowledged and accepted in society’s various institutions, including the

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Opinion of the Court

judicial system. As a result, trial courts are certainly eligible, in the exercise of proper

discretion, to utilize such advancements in an effort to maximize the effectiveness of

the judicial system’s ability to adapt such advancements in the evolution of

technology to the achievement of justice.

With regard to the size and location of the monitor which was used to display

the photographic evidence at issue, defendant asserts that as in “Hennis—where the

jurors viewed 3 x 5 foot photos [projected] on a wall, then sat in eerie silence viewing

and passing 8 x 10 photographs for an hour—the manner of presentation here was

unfairly prejudicial and inflammatory.” We recognize that there are numerous

significant distinctions between the manner of display of the photographic evidence

in Hennis and in the case at bar. First, the size of the photographic monitor here—a

device twenty-nine inches high and fifty-three inches wide—was notably smaller than

“a screen large enough to project two images 3 feet 10 inches by 5 feet 6 inches side-

by-side” utilized in Hennis. Id. at 282. While defendant postulates that “[f]rom the

jury’s perspective, the display here was probably as large or larger than in Hennis”—

noting that the monitor in defendant’s trial was placed “seven feet from the jury”—

he acknowledges that “[n]o measurement of the exact distance between the jurors

and the courtroom wall appears in the Hennis opinion, so it is not possible to make

an exact relative comparison.”

Secondly, as opposed to the monitor which displayed the photographs in

Hennis, the location of the projected images in the instant case did not “permit[ ] the

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jury to view the slides projected just above defendant’s head” in a way “that the jury

would continually have [defendant] in its vision as it viewed the slides[, which] was

a manner of presentation that in itself quite probably enhanced the prejudicial impact

of the” photographic evidence. Id. at 282, 286. Moreover, after hearing from the

parties about the placement of the monitor and the potential alternative of the

distribution of copies of the photographs among the jurors, the trial court here

determined that there was no better location in the courtroom than the selected one

for the monitor to be placed that would permit all of the jurors and alternates, as well

as the lawyers and witnesses, to see it; that placing the monitor in a courtroom

location suggested by defendant which was more distant from the jury box would

cause the courtroom to be too crowded; and that distributing smaller photographs of

the evidence in question to the jurors by hand would take more time. The trial court

also noted that employing the sixty-inch monitor rather than using a smaller one, or

alternatively circulating eight-inch by ten-inch photographs would prevent the

repetitive display of the pictures by making the evidence “visible to all jurors during

a witness’s testimony without the witness having to repeat the testimony, without

having the exhibit shown at multiple locations along the jury box as would be

required if a smaller monitor was being used or smaller photographs were being

used.”

The trial court’s extended discussion with the parties of the benefits and

drawbacks of potential methods for displaying the photographic evidence and the

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Opinion of the Court

trial court’s ultimate discretionary decision regarding the location and manner of

display of the pictures which (1) were not presented so as to have defendant closely

and continually in the same visual field as graphic images of the victim, (2) involved

a photographic monitor which was smaller than the display screen utilized in Hennis,

and (3) conserved time and prevented repetitive exhibitions of the evidence as

compared to the alternative option of the distribution of individual photographs

among the jurors all combine as factors to render defendant’s analogy to Hennis in

this arena as unpersuasive. Therefore, we do not identify any abuse of the trial court’s

discretion in its chosen manner of display of the challenged photographic evidence

which was shown during defendant’s trial.

Defendant also objected both to the total number of photographs introduced

into evidence and the multiple exhibitions of some of the photographs upon the State’s

occasional utilization of the same photographs to illustrate the respective testimonies

of different witnesses. Defendant again cites Hennis, emphasizing that a trial court

must engage in the “critical” determination of whether the proffered photographs

“unduly reiterate illustrative evidence already presented” before ruling on

admissibility where the number of disputed photographs is asserted to be excessive,

because “[w]hen a photograph ‘add[s] nothing to the State’s case,’ ” it lacks any

probative value, is solely prejudicial, and thus is inadmissible under the Rule of

Evidence 403 balancing test. Id. at 286 (second alteration in original) (quoting

Temple, 302 N.C. at 14).

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As previously noted, in Hennis, this Court held that the trial court abused its

discretion in admitting thirty-five color photographs because they were repetitious,

lacked probative value and served only to inflame the jurors. Id. at 286. In making

this determination, the Court perceived that multiple photographs of the same

wounds were gratuitously displayed; the State’s witnesses acknowledged that some

of the photographs showing the same wound did not add anything to the illustration

of their respective accounts; “the majority of the twenty-six photographs taken at the

victims’ autopsies . . . added nothing to the [S]tate’s case as already delineated in the

crime scene slides and their accompanying testimony”; and all of the thirty-five

pictures, which had already been displayed to illustrate testimony during the

presentation of the State’s case, were published to the jury for a second time—one at

a time—in a process that consumed a full hour and was “unaccompanied by further

testimony.” Id. at 283, 286 (emphasis added).

Once again, we find that aspects of Hennis upon which defendant heavily relies

are readily distinguishable from the circumstances to which defendant offers

parallels in his case. Here, any usage of a displayed photograph was in conjunction

with the illustration of a witness’s testimony. Also, the State in the current case did

not ever show a photograph to the jury at any time, “unaccompanied by . . .

testimony,” while in Hennis the State displayed every admitted photograph to the

jury one final time just prior to the jury’s deliberations and without accompanying

testimony. Having generally identified the salient distinctions between Hennis and

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Opinion of the Court

the present case with reference to defendant’s arguments about the analogous nature

of the presentation of photographic evidence, we now exercise a closer look at specific

photographs which defendant features in his contentions.

State’s Exhibit 26, which was a photograph of Taylor’s full body as it appeared

in the emergency room treatment area of Johnston Memorial Hospital, was used to

illustrate the respective testimonies of Dr. Evans and nurses Butler and Gooch. These

three medical providers all treated Taylor when defendant brought her to the facility.

Gooch used State’s Exhibit 26 in order to illustrate the “marks, lacerations, abrasions,

bruises,” and avulsions on the front side of Taylor’s torso, arms, and legs, along with

redness in Taylor’s vaginal area, that were visible upon the removal of Taylor’s

clothes and in order to confirm that none of the injuries to Taylor’s body were caused

by any of the treatment that the medical professionals were providing, such as the

insertion of a catheter into Taylor’s urethra or the insertion of a needle into Taylor’s

body. Evans then used the exhibit to “give an idea of the extent of the injuries”; to

illustrate his reason for making a notation on Taylor’s medical chart that her injuries

were “[t]oo numerous to count, bite marks, abrasions, and lesions”; and to

demonstrate that the injuries were not eczema, as defendant had suggested. Each of

these displays served to illustrate a different point and thus can be viewed to have

“added” a component to the State’s case. When the prosecution subsequently

displayed State’s Exhibit 26 during Butler’s testimony, however, the only two

questions posed by the State to Butler were whether Butler could identify the person

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Opinion of the Court

depicted in the photograph as Taylor. While the testimony elicited during this third

display of State’s Exhibit 26 was not probative, we view the presentation through this

third witness as primarily corroborative testimony of the other two witnesses as to

Taylor’s identity.

Defendant contends that Dr. Kocis of the pediatric intensive care unit at

UNCMC and Dr. Williams of the emergency room at UNCMC used some18 of the same

photographs to illustrate their testimony. Just before Williams testified, defendant

asked to be heard outside of the presence of the jury regarding Williams’s potential

testimony and any photographic evidence that the State intended to introduce.

Defendant expressed his apprehension that the evidence would be cumulative and

prejudicial, and in agreeing that there was reason for concern, the trial court

specifically inquired as to whether the State intended to show every photograph

during Williams’s testimony that had been displayed during Kocis’s testimony. The

State agreed to “cull them down” and the trial court then instituted a fifteen-minute

recess. When the trial court and the parties’ counsel discussed the matter of the

photographs after the recess, the State proposed to display only five photographs

18 Defendant represents to this Court that five photographs were displayed during

both doctors’ respective testimonies. Our review of the trial transcripts indicates, however,

that only three photographs were displayed to the jury during both Kocis’s and Williams’s

testimony: State’s Exhibits 578, 579, and 586. Two photographs which are noted in the trial

transcript as being received during Kocis’s testimony—State’s Exhibits 584 and 585—are

specifically denoted as not having been published to the jury during Kocis’s testimony, and at

no point in the transcript portions covering Kocis’s testimony did Kocis or the prosecutor

mention those exhibits. State’s Exhibits 584 and 585 were employed to illustrate Williams’s

testimony.

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Opinion of the Court

during Williams’s testimony. An express entry regarding the operation of Rule of

Evidence 403 was made thereafter in the record.

Kocis used State’s Exhibit 578, which depicted a frontal view of Taylor from

her head to her hips. The photograph apparently was taken while Taylor was waiting

to be moved into the pediatric intensive care unit. The exhibit illustrated Taylor’s

appearance at the time that Kocis first saw the child. It showed that Taylor had been

placed in a collar to prevent additional injury to the neck region of her body, that

Taylor was using a breathing tube, and that there were “few spared areas” on the

child’s skin which avoided black and blue discoloration along with scabbed wounds in

different shades of red. There were darker scabs indicating older wounds that had

started to heal and other scabs with “fresh red blood,” indicating that they had been

caused “within hours.” Kocis also noted an avulsion—“a pit” where layers of skin had

been removed—in the location on the body where one of Taylor’s nipples would have

been and nearby areas of skin that were healing but appeared infected. Kocis also

identified areas that were “scabbing, some healing, and pus down below,” as well as

“pink healthier skin,” bruising, and an older scar. He emphasized that in “the only

place [on Taylor’s body] that’s spared . . . from the redness, from the lacerations, from

the cuts, . . . you still see the bruising from underneath that. So it’s not normal skin,

it’s just not as abnormal as everything else.” Kocis related that he had observed

“injuries on top of injuries,” and stated, in describing the wounds depicted in State’s

Exhibit 578: “[T]his is within hours. This is within days. And then the more mature

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Opinion of the Court

scarring that I showed you a little earlier was closer to the seven-to-ten days.” When

Williams utilized this exhibit in his own testimony, he—like Kocis—also detected

Taylor’s missing right nipple and numerous other wounds, while also noting that the

injuries had occurred over “a ten-day time frame.” Williams then testified that

Taylor’s condition as revealed in the exhibit, in conjunction with medical tests, helped

the treating team which was diagnosing Taylor to determine the timing of her head

injury as compared to the other injuries she suffered:

I think the most profound thing to us in terms of this

happening over a period of days was all the evidence we

had, based on her clinical appearance and based on the

head CT scan, was that that injury had occurred several

hours ago maybe, at most maybe the night prior. And then

these obviously did not occur today. These, again, are

starting to scab over to some extent. You know, that would

happen over a period of time.

In light of defendant’s indicted charge of murder by torture, which connotes the

repeated infliction of suffering over time, see State v. Lee, 348 N.C. 474, 489 (1998),

we cannot opine that Williams’s use of this exhibit “add[ed] nothing” to the resolution

of the issues before the jury in this case. Hennis, 323 N.C. at 286.

Kocis also used State’s Exhibit 579 during the course of his testimony, which

depicted the front of Taylor’s body from shoulders to knees. Kocis identified “lots of

linear lesions . . . typical of a whipping type injury,” including on the child’s labia

majora, where Kocis noted a “deep pit” that appeared to be infected and that might

have been healing and scabbing. In discussing this photograph with the jury,

Williams noted “a retention sticker” used to keep a catheter in place and observed

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Opinion of the Court

that “the nurse or tech” who had placed the sticker had difficulty in applying it

“without it covering up a wound.” Williams then discussed “a deeper avulsion” which

was attempting to heal in a manner that suggested a “wound[ that hadn’t been] cared

for and closed within a period of 24 or 36 hours.” Williams’s use of the photograph to

explain to the jury that Taylor had suffered a deep wound, which was healing in a

manner that suggested no one had treated it, added relevant information to the

State’s case given defendant’s position at trial that he had undertaken some efforts

to aid Taylor following the abuse he inflicted prior to causing her head injury.

In displaying State’s Exhibit 586, a photograph of Taylor’s head and face, Kocis

again focused on illustrating that Taylor had received many varied types of injuries—

wounds to her nose and a black eye—and that the injuries appeared to have occurred

over a period of time—scabbing on the nose but a more recent black eye. Kocis also

noted that although Taylor’s eyes were open, she likely had minimal brain function

at this point and noted that she had a breathing tube placed. Later, Williams used

the same photograph to illustrate his testimony going into more detail about the

effects of Taylor’s head trauma on her brain function, stating that Taylor’s eyes were

fixed in an indication that “brain function at the time of this picture is essentially

devastated,” confirming the theory of Kocis’s testimony. Williams also explained to

the jury that the endotracheal tube that had been placed, distinct from the breathing

tube Kocis had described, was intended “to help alleviate secretions that will occur

under stress.”

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Defendant next identifies as cumulative five photographs taken by Barbaro,

who testified as a bite mark expert, to illustrate his opinions. Defendant

acknowledges that these photographs were not shown during the testimony of any

other witness, but emphasizes that they depicted injuries already shown; to wit, bite

marks on Taylor’s body. Barbaro used the photographs to explain: (1) the different

levels of bite marks Taylor sustained, (2) how Barbaro determined that the bites were

caused by an adult rather than a child, (3) how Barbaro determined that certain of

the bite marks were consistent with defendant’s dentition, (4) that the bite marks

had been inflicted “at different times” within a ten-day period, (5) that at least one

bite cut through Taylor’s skin and caused bleeding, and (6) that one injury to Taylor’s

cheek indicated an extended bite. While other medical professionals testified that

they believed Taylor had suffered many bite marks across her body, no other witness

used photos of the bite marks to illustrate the same testimony as Barbaro presented.

Therefore, we cannot conclude that this expert witness’s use of five photographs

taken as part of his specific consultation was cumulative and added nothing to the

State’s case.

Defendant also states that “the medical examiner used 28 photographs from

the autopsy, many showing the same injuries and body parts previously displayed.”

It does not appear that any of the photographs displayed during the medical

examiner’s testimony had previously been shown. Further, our review of the

testimony from this witness in conjunction with the photographic evidence concerned

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Opinion of the Court

his identification of repetitious “pattern” injuries in various areas of Taylor’s body;

multiple foreign bodies discovered in many areas of Taylor’s body (at least some of

which appeared to be metal wire fragments); and inter alia, specific injuries to

Taylor’s cheek, legs, arms, ears, hands, fingers, legs, feet, and toes; wounds in her

external and internal vaginal area; and multiple lacerations inside her mouth in

addition to a likely self-inflicted bite to her lip. While different photographs of the

same body parts were displayed to illustrate the testimony of other witnesses,

because Taylor was no longer being treated medically, the autopsy photographs

allowed the medical examiner to provide detailed testimony about the nature and

number of various types of injuries to different areas of her body. In addition, a

number of the photos in question were taken after the medical examiner had

manipulated or cut into Taylor’s body in a manner impossible before her death,

plainly revealing information about her condition and injuries which could not have

been evident to previous witnesses, each of whom testified about their opinions of

Taylor’s condition before her death and while they were providing urgent care to her.

The medical examiner was also able to opine about the ways in which an extension

cord with the metal interior strands exposed could have caused some of Taylor’s

injuries. We are unable to conclude that the autopsy photographs which the medical

examiner used to illustrate his testimony failed to add to the State’s case or that their

prejudicial impact substantially outweighed their probative value.

Defendant also notes that expert witness McNeal-Trice, who testified

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Opinion of the Court

regarding whether the injuries defendant inflicted upon Taylor constituted torture

“discussed four previously-used body photographs and five new close-up photographs

of genitalia to illustrate her testimony.” Defendant does not, however, explain how

these photographs were duplicative of the evidence previously offered. As with the

photographs used to illustrate Barbaro’s bite mark testimony, this expert was

testifying to a specific question—torture—not addressed by any previous witness, and

we see no excess in her usage of a relatively small number of photographs, even if

some may have been seen previously.

Finally, defendant notes that during its closing argument, the State showed

eight photographs of Taylor’s wounds, including bite marks and genital injuries,

which had previously been published to the jury. As with the manner of presentation

of the photographs, we find defendant’s reliance on Hennis to support his argument

that the repetition of the publication of some photographs of Taylor’s body was

cumulative and constituted prejudicial error to be unavailing. With the exception of

the third display of Exhibit 26 during Butler’s testimony, the purpose of the

republication of photographs here is more analogous to that in Williams. The

defendant in that case also relied on Hennis to support his argument “that the

republication of [certain gory] photographs was ‘unnecessarily repetitive’ and that it

was performed ‘for no other reason than to inflame the jurors’ anger towards

defendant.’ ” Williams, 334 N.C. at 461. In rejecting the defendant’s position and

finding his analogy to Hennis “inapposite,” the Court noted, inter alia, that the

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Opinion of the Court

repeated display of certain photographs during the State’s case was a result of their

use to illustrate both general testimony from one witness and then for more detailed

purposes with another witness. Id. at 461–62; see also State v. Dollar, 292 N.C. 344,

354 (1977) (declining to find error where “photographs were not merely repetitious,

each being useful to illustrate a portion of the testimony of the witness not illustrated

by other photographs”). The Court in Williams also emphasized that the republication

of photographs in that case did not involve presentation “in a fashion likely to

heighten the jury’s emotional reaction,” such as passing individual photographs

directly to each member of the jury separately, “one by one and in total silence,” as

occurred in Hennis. Williams, 334 N.C. at 461–62.

In addition to arguing that the trial court reversibly erred in admitting

cumulative evidence by allowing the repeated presentation of certain photographic

evidence, defendant characterizes the admission of eighty-eight photographs of

Taylor’s body as excessive to the point of prejudicial, suggesting that

[i]t was not necessary to magnify in grim detail every

square inch of Taylor’s body, over and over again. Her

injuries were horrible. No juror could have failed to grasp

that fact, which could have been conveyed in a brief period

of time, with a handful of photographs, through a few

witnesses.

Defendant reminds us that in Hennis, thirty-five photographs were found to be

excessive even though that case involved three victims, each of whom had several

wounds. Yet, standing alone, the number of photographs offered is not dispositive to

the question of their admissibility. See, e.g., Phipps, 331 N.C. at 454. For example, in

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State v. Pierce, the trial court admitted “twenty-six photographs of the [single]

victim’s body to illustrate the testimony describing [the child’s] injuries,” including

that she “had been severely beaten and . . . had bruises, grab marks, pinch marks,

scratches, nicks, bumps, and other injuries on almost every inch of her body.” 346

N.C. 471, 487 (1997). The Court concluded that, “[g]iven the number, nature, and

extent of the victim’s injuries, . . . the trial court did not abuse its discretion by

admitting twenty-six photographs of the victim’s body.” Id. at 488.

We are mindful that the severity of the crimes with which defendant was being

charged and the unusually extended time period over which those crimes were alleged

to have occurred, when combined with the youth and complete vulnerability of the

victim and the extraordinary number of injuries she sustained, created a situation

where the emotions of jurors would be easily inflamed. In contrast to defendant’s

suggestion, however, the State was not attempting to demonstrate to the jury merely

that Taylor’s “injuries were horrible,” a fact which was beyond dispute and could

likely have been “conveyed in a brief period of time, with a handful of photographs.”

Rather, the State was not only faced with a case that involved “horrible” injuries—

for example, according to the medical examiner Taylor’s wounds encompassed

“shallow lacerations and abrasions” that were “just too much [sic] to count,” as well

as at least 144 separate injuries, including at least sixty-six bite marks, multiple

injuries from sexual assaults, and her fatal head injury—but was proceeding on

charges that included, inter alia, murder by torture, felony murder, and felony child

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Opinion of the Court

abuse inflicting serious injury.

The conviction of a defendant on a charge of felony intentional child abuse

inflicting serious bodily injury requires that the State prove “serious bodily injury,”

see N.C.G.S. § 14-318.4(a3) (2021), and “to sustain a conviction of first-degree murder

by torture, the State must prove that the defendant intentionally tortured the victim

and that such torture was a proximate cause of the victim’s death,” State v. Stroud,

345 N.C. 106, 112 (1996), cert. denied, 522 U.S. 826 (1997). “Torture is defined as the

course of conduct by one or more persons which intentionally inflicts grievous pain

and suffering upon another for the purpose of punishment, persuasion, or sadistic

pleasure,” and “[c]ourse of conduct has been defined as the pattern of the same or

similar acts, repeated over a period of time, however short, which established that

there existed in the mind of the defendant a plan, scheme, system or design to inflict

cruel suffering upon another.” Lee, 348 N.C. at 489 (extraneity omitted). “Felony

murder on the basis of felonious child abuse requires the State to prove that the

killing took place while the accused was perpetrating or attempting to perpetrate

felonious child abuse with the use of a deadly weapon,” which can include, inter alia,

“an attack by hands alone upon a small child.” Pierce, 346 N.C. at 493 (citing N.C.G.S.

§ 14-17(a)). Conviction of a defendant on a charge of felony intentional child abuse

inflicting serious bodily injury requires the State to prove “serious bodily injury,” see

N.C.G.S. § 14-318.4(a3) (2021), which is defined as “[b]odily injury that creates a

substantial risk of death or that causes serious permanent disfigurement, coma, a

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Opinion of the Court

permanent or protracted condition that causes extreme pain, or permanent or

protracted loss or impairment of the function of any bodily member or organ, or that

results in prolonged hospitalization,” id. § 14-318.4(d) (2021).

While defendant admitted to inflicting some of the injuries upon Taylor, he

pled not guilty to charges against him. The “prosecution’s burden to prove every

element of the crime is not relieved by a defendant’s tactical decision not to contest

an essential element of the offense.” Estelle v. McGuire, 502 U.S. 62, 69 (1991). Even

“a stipulation as to the cause of death does not preclude the State from proving all

essential elements of its case.” State v. Elkerson, 304 N.C. 658, 665 (1982). Defendant

also specifically denied sexually assaulting Taylor, argued that there was a legally

significant break between his prior abuse of the child and his infliction of her head

injury by shaking her, claimed that the head injury was accidental, and argued that

he lacked the intent to torture Taylor or otherwise cause her death. Defendant’s

theory of the case made both the number and severity of the injuries to Taylor and

the time frame over which they were inflicted central to numerous issues before the

jury, including: (1) the seriousness of Taylor’s injuries, (2) the level of pain and

suffering she endured as a result of defendant’s abuse, (3) defendant’s intention in

inflicting both the fatal head injury and the other abuse on Taylor, (4) whether there

was any break in defendant’s abuse of Taylor before he struck her head against the

wall or door of the outbuilding, (5) whether defendant had treated or attempted to

treat any of Taylor’s injuries, and (6) whether defendant should have known Taylor

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Opinion of the Court

needed medical attention when he refused the help offered by his grandmother. The

jury also needed to evaluate defendant’s credibility as it considered his accounts of

how Taylor’s injuries had occurred—from falling off an air mattress, scratching areas

of eczema, the bites of another child, or discipline by Reyes—and his denial that he

sexually assaulted Taylor.

“[A]ny evidence probative of the State’s case is always prejudicial to the

defendant.” State v. Stager, 329 N.C. 278, 310 (1991). Here, the challenged

photographs accurately reflected the reality of the crimes with which defendant was

being tried and were probative to the issues before the jury, and therefore they cannot

be said to have added “nothing to the State’s case,” Hennis, 323 N.C. at 286 (emphasis

added), or to have been offered for the sole purpose of inflaming the passions of the

jury, Mlo, 335 N.C. at 375. In light of this Court’s precedent and the totality of the

circumstances in this case, we conclude that the eighty-eight photographs admitted

to illustrate the testimony of the State’s witnesses were not excessive, repetitive, or

unduly prejudicial, and we see nothing in the trial court’s considered limitation of the

photographs permitted to illustrate the testimony of the State’s witnesses that would

suggest that the trial court’s decision was “manifestly unsupported by reason or [was]

so arbitrary that it could not have been the result of a reasoned decision.” Hennis,

323 N.C. at 285. Defendant’s argument to the contrary is overruled.

C. Evidence of emotional reactions from medical and law enforcement

personnel

Defendant next argues that the trial court erred by permitting various medical

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Opinion of the Court

personnel and law enforcement officers to testify during the guilt–innocence phase of

trial about their emotional reactions to initially seeing Taylor’s injuries. Defendant

characterizes this testimony as “a version of victim impact evidence” and contends

that it was both irrelevant and so highly prejudicial that its admission violated the

North Carolina Rules of Evidence and requires that defendant receive a new trial.

We are not persuaded.

As noted above, evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence,” N.C.G.S. § 8C-1,

Rule 401, and “relevant evidence is admissible” in most situations, id. § 8C-1, Rule

402. A trial court’s rulings on the relevancy of evidence “are technically not

discretionary,” but they are accorded great deference on appeal. State v. Lane, 365

N.C. 7, 27, cert. denied, 565 U.S. 1081 (2011). When evidence is challenged on

relevancy grounds,

[t]he burden is on the party who asserts that evidence was

improperly admitted to show both error and that he was

prejudiced by its admission. The admission of evidence

which is technically inadmissible will be treated as

harmless unless prejudice is shown such that a different

result likely would have ensued had the evidence been

excluded.

State v. Gappins, 320 N.C. 64, 68 (1987) (citations omitted).

Further, even relevant “evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

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Opinion of the Court

or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” N.C.G.S. § 8C-1, Rule 403 (2021). As this Court

has recognized, “most evidence tends to prejudice the party against whom it is offered.

However, to be excluded under Rule 403, the probative value of the evidence must

not only be outweighed by the danger of unfair prejudice, it must be substantially

outweighed.” State v. Lyons, 340 N.C. 646, 669 (1995). On appellate review, we will

reverse a trial court’s decision to admit evidence after undertaking the Rule 403

balancing determination only where an abuse of discretion is demonstrated. Hennis,

323 N.C. at 285. With these statutory definitions and standards of review in mind,

we turn to a consideration of the evidence defendant challenges.

Defendant filed a pretrial motion to prohibit the State’s witnesses from

describing their emotional reactions to seeing Taylor’s injuries, and following a

hearing, the trial court allowed the motion in limine, determining that it would rule

on the admissibility of such testimony on a witness-by-witness basis as each specific

challenge arose at trial. The trial court stated that it perceived an important

distinction between witnesses’ testimony about their immediate reactions to seeing

Taylor’s injuries and any later aftereffects those witnesses may have experienced as

a result, and thus informed the parties that the State would generally be permitted

to elicit testimony regarding the former but not the latter. Once the trial began,

defendant challenged the following portions of the testimony of five of the State’s

witnesses.

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Opinion of the Court

Registered nurse Gooch, who had ten years of medical experience, was on duty

at Johnston Memorial Hospital when Taylor was brought in by defendant. Defendant

objected when Gooch testified that Taylor’s injuries were “distracting” and “unusual,”

at which point the trial court sustained the objection and struck the testimony.

However, when the prosecutor asked Gooch about the effect of seeing Taylor’s

injuries, the trial court overruled defendant’s objection and allowed Gooch to testify:

I was kind of paralyzed for just a few moments. I really

didn’t know what to think or feel. I have been in the

emergency room for quite some time. . . . I remember telling

the dispatcher that I couldn’t explain to them what it was

that I was seeing, that I could not put it into words. And I

just asked them if they’d please send law enforcement over

here so they can see what it is that I’m seeing. . . . I just

was unable to even verbalize what I was seeing to try to get

them to send someone over there.

Similarly, Butler, a nurse with twenty years of experience who also treated

Taylor at Johnston Memorial Hospital, was allowed to testify, over defendant’s

objections, about seeing Taylor’s injuries generally, explaining, “It . . . was horrible. I

mean, we see a lot of stuff, but to see, you know, I mean—.” She then described her

reaction to seeing a bruise on Taylor’s rectum stating, “I just couldn’t take any more

. . . so I looked at him, . . . I said, ‘Oh, my God!’ . . . [and] it got kind of quiet. And then

one of the other nurses, because a lot of us have children, one of the other nurses said,

‘What have you done?’ ” Butler also explained why she chased and tackled defendant

when he attempted to leave the emergency room:

Well, after I had seen [Taylor] like that, I mean, I

was very, very upset. . . . [H]e was trying to leave, and so I

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Opinion of the Court

come around the corner and jumped on him. I grabbed him

by the throat, slung him around . . . .

....

I caught him from behind. I caught him by the

throat, and I slung him around, and I started pushing him

for everything I was worth. I was trying to get him back to

the E.R., you know.

....

[When I grabbed him by the throat] I was trying my

best — I tried to rip his esophagus out.

....

. . . I’m standing in the doorway. And by this point,

I’m crazy. I mean, I’ll be honest with you, I mean, after

you’ve seen something like that on a little child, with

wounds everywhere and everything else that happened,

and then he’s going to run, you have to chase him down,

and I got him in the room . . . . I just remember uniforms

showed up on my left side. . . . By this time, . . . I have just

lost it. I told them, I said, “Give me your gun—

....

—I’ll do what the hell needs to be done, right here,

right now.”

....

. . . I realized that I had totally lost it, and — and I

knew that [law enforcement officers] were there, and so I

went outside. I couldn’t take any more. That was it.

....

. . . [I]t broke my heart to see [Taylor] like that. I just

had had all I could take. That was it.

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....

[After the incident, it was] at least thirty minutes

before I could go back in and continue to work.

The trial court also overruled defendant’s objection to testimony from Keith

Kocis, an attending pediatric physician in the intensive care unit of the UNCMC with

over ten years of experience treating patients who had suffered “severe child abuse,”

describing Taylor’s condition as “deeply disturbing.” Kocis was also permitted to

testify that he had “a very visceral response where I felt I was going to vomit” upon

viewing Taylor’s injuries because, despite having been “exposed to serious and

traumatic” injuries in the course of his work, he had “never seen” such harm in his

career.

Matt DeSilva, a deputy with the Wake County Sheriff’s Office with more than

a decade of experience, including with child death investigations, was permitted to

testify that when a physician rolled Taylor onto her side, DeSilva told the doctor he

“just couldn’t bear to look at it anymore, I asked him to stop . . . . I told him that was

enough, I couldn’t look at it. I couldn’t bear to see that” and described viewing Taylor’s

body as “the most horrifying thing.” Defendant objected to this final comment and the

trial court sustained the objection. Citing Rule of Evidence 403 and noting that

DeSilva “became visibly upset in the presence of the jury while testifying” such that

“it’s already obvious to the jury the emotional effect of observing [Taylor’s injuries]

upon the witness,” the trial court prohibited the State from eliciting further testimony

from DeSilva about the emotional impact of his seeing Taylor’s injuries.

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Opinion of the Court

Finally, Jefferson Williams, an attending physician in the emergency room at

the UNCMC with experience treating child abuse and trauma victims, was permitted

to testify, over defendant’s objections, that he was “shocked” by the “huge display of

other injuries” on Taylor’s body beyond the head injury which eventually proved fatal

to the child. Williams was also allowed to testify about his initial reaction upon seeing

Taylor’s injuries:

So, I was immediately nauseated I think. We moved

beyond that, obviously you have to do your job. And I

became—I think probably the best way to describe it is I

became angry. Most of—when a person gets injured, when

we see an injured patient in a Level 1 trauma center, most

of the time that injury has happened in an instant. You

know, they’ve been in a car wreck or they’ve been shot or

been stabbed or, you know, obviously they had some pain

and we work on that, we treat that. That happens in an

instant and they bring them to us and we fix them up.

When they unwrapped the sheet [covering Taylor],

it became very clear that this person had been suffering for

a long period of time and I was not prepared for that.

We begin our analysis with the question of relevance as regards these

witnesses’ remarks about their reactions to seeing Taylor’s body and the injuries she

suffered at the hands of defendant. Defendant was charged with and convicted of,

inter alia, felony intentional child abuse inflicting serious bodily injury and first-

degree murder on theories of murder by torture and felony murder. Evidence which

goes to any element of an offense charged is plainly relevant since the State must

“prove every element of a crime beyond a reasonable doubt before an accused may be

convicted.” See, e.g., State v. Keel, 333 N.C. 52, 59 (1992). First-degree murder by

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Opinion of the Court

torture plainly requires the State to prove torture as an element, and while the

General Assembly did not define that term in its statutory enactment, see N.C.G.S. §

14-17 (2021), this Court has approved the following as a definition of the term: “the

course of conduct by one or more persons which intentionally inflicts grievous pain

and suffering upon another for the purpose of punishment, persuasion, or sadistic

pleasure.” State v. Crawford, 329 N.C. 466, 484 (1991) (emphasis added); see also

Stroud, 345 N.C. at 112 (“In order to sustain a conviction of first-degree murder by

torture, the State must prove that the defendant intentionally tortured the victim

and that such torture was a proximate cause of the victim’s death.”). Likewise,

conviction of a defendant on a charge of felony intentional child abuse inflicting

serious bodily injury requires the State to prove “serious bodily injury,” see N.C.G.S.

§ 14-318.4(a3) (2021), which is defined as “[b]odily injury that creates a substantial

risk of death or that causes serious permanent disfigurement, coma, a permanent or

protracted condition that causes extreme pain, or permanent or protracted loss or

impairment of the function of any bodily member or organ, or that results in

prolonged hospitalization,” id. § 14-318.4(d) (emphases added).

Defendant acknowledges precedent of this Court holding both that a jury may

consider the nature of a victim’s injuries to determine their seriousness, State v.

Hedgepeth, 330 N.C. 38, 53 (1991), in support of the felony child abuse charge, and

that the State was entitled to present evidence supporting its allegation that Taylor

experienced “grievous pain and suffering” as part of its case for murder by torture,

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State v. Anderson, 346 N.C. 158, 161 (1997). However, defendant contends that the

above-quoted testimony about certain witnesses’ emotional reactions was not

relevant—that it did not “satisf[y] the low bar of logical relevance”—to show the

seriousness of Taylor’s injuries or to shed light on the extent of her pain and suffering.

See State v. Hembree, 368 N.C. 2, 17 (2015). We disagree.

The challenged testimony can fairly be characterized as expressions by

witnesses, each of whom had regular exposure to traumatic physical injuries and/or

physical and sexual child abuse, that Taylor’s injuries were more severe and

extensive than those usually seen in their work and, in some cases, were the worst

injuries they had witnessed in their professional experience. That the number and

degree of Taylor’s physical injuries were far beyond what the experts expected to

encounter or typically see in their professional capacities would appear to provide

context for the jurors who were tasked with determining whether Taylor’s bodily

injuries were “serious” or would have caused her “grievous pain and suffering.”

Viewed in this light, the challenged testimony would certainly appear to have had at

least a “tendency to make the existence of any fact that is of consequence to the

determination of the action more probable . . . than it would be without the evidence.”

See N.C.G.S. § 8C-1, Rule 401 (emphasis added).19 Accordingly, we hold that the

19 We are also mindful that a trial court’s rulings on relevancy are reviewed with great

deference, State v. Lane, 365 N.C. 7, 27 (2011), and we observe that the trial court here

considered defendant’s motion to prohibit all such testimony, explained its general plan for

assessing relevancy before the trial began, and then evaluated the admissibility of emotional

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Opinion of the Court

challenged testimony was relevant and properly admitted to the extent that it

constituted expressions by the witnesses that Taylor’s injuries were much more

severe than those in a typical child abuse or trauma case and that the number and

degree of these injuries indicated that Taylor would have experienced grievous pain

and suffering.20

To the extent that any of the challenged portions of the five witnesses’

testimony discussed here were not relevant and thus were “technically inadmissible,”

defendant cannot meet his additional burden to obtain relief on this issue by

demonstrating that the erroneously admitted testimony prejudiced him “such that a

different result likely would have ensued had the evidence been excluded.” Gappins,

320 N.C. at 68. Regarding prejudice, defendant contends that “[b]ased on their

inadmissible emotional reactions, these witnesses appeared to find [defendant]

guilty, and among the worst of the worst offenders”; that this “dramatic testimony,

standing alone, was powerful enough to convince a jury to root all of its deliberations

reaction testimony from each witness as it was challenged by defendant, sustaining some

objections while overruling others.

20 We decline defendant’s suggestion that we analyze his challenges to this evidence

by viewing the witnesses’ testimony as akin to victim impact evidence, which is permissible

for a jury’s or court’s consideration at a sentencing proceeding. See N.C.G.S. § 15A-833(a)(1)

(2021) (defining such evidence as including “[a] description of the nature and extent of any

physical, psychological, or emotional injury suffered by the victim as a result of the offense

committed by the defendant”). The expert witnesses provided their testimony during the

guilt–innocence phase of defendant’s trial and were called by the State to meet its burden at

that stage of the proceedings of proving beyond a reasonable doubt every element of each

crime charged.

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Opinion of the Court

in improper prejudice and passion”; and that “[i]n the absence of that evidence, there

is a reasonable possibility [defendant] would not have been convicted and sentenced

to death.” See N.C.G.S. § 15A-1443(a) (2021). Given the totality of the evidence

introduced during defendant’s trial, we cannot agree with these assertions.

In determining defendant’s guilt and in recommending a sentence of death, the

jury had before it, inter alia, evidence that: defendant was for ten days the sole

caretaker for a four-year-old child upon whom he had previously used inappropriate

and/or abusive “discipline”; defendant’s first action upon obtaining sole control of the

child was to purchase materials to permit him to lock her inside of the outbuilding

where they were living; defendant took a video of the child being punished for toilet

accidents despite the fact that the outbuilding lacked a bathroom or running water;

defendant was aware of at least some injuries to the child during the ten days he

cared for her as suggested by his purchase of first-aid supplies; defendant admitted

causing the ultimately fatal injury to the child by causing her head to strike a wall in

the outbuilding; defendant only took the child to the hospital for medical assistance

after being directed to do so by the child’s mother; upon arrival at the hospital, the

child’s body showed, in addition to the head injury, many dozens of bite marks,

evidence of sexual abuse, and wounds from beatings with an electrical cord so severe

that pieces of metal were embedded in her body; and defendant tried to flee the

hospital once medical professionals saw the child’s condition. The evidence of Taylor’s

injuries came from numerous witnesses, including medical and forensic professionals

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Opinion of the Court

to law enforcement personnel, who were properly permitted to offer lengthy and

detailed testimony—beyond that challenged by defendant—regarding Taylor’s

condition, and in some cases, illustrated by photographs of her body and her injuries,

which as we explained above were admissible. Given the overwhelming evidence of

defendant’s guilt and of Taylor’s severe, painful, and ultimately fatal injuries inflicted

over time, we conclude that there is no reasonable possibility that defendant would

not have been convicted and sentenced to death but for the challenged testimony of

the five witnesses about their emotional reactions to seeing Taylor’s condition.

For the same reason, we see no abuse of discretion in the trial court’s decisions

to admit the challenged evidence after undertaking the required Rule 403 balancing

determination and holding that the probative value of the evidence did not

“substantially outweigh[ ]” the risk of unfair prejudice. See Lyons, 340 N.C. at 669.

Particularly given the trial court’s consideration of the parties’ pretrial arguments on

the relevancy and potential prejudice of the challenged testimony and its ongoing

assessment of both questions throughout the presentation of the testimony from the

State’s witnesses, including numerous instances where defendant’s objections were

sustained, we cannot say that the trial court’s “ruling[s were] manifestly unsupported

by reason or [were] so arbitrary that [they] could not have been the result of a

reasoned decision.” Hennis, 323 N.C. at 285. Defendant’s argument as to the

testimony of various witnesses about their emotional reactions to seeing Taylor’s

injuries is overruled.

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D. Testimony from Dr. Richard Barbaro regarding bite marks

Defendant next argues that the trial court abused its discretion by allowing

Dr. Richard Barbaro, a dentist, to testify as an expert in forensic dentistry about the

bite marks on Taylor’s body—testimony which defendant contends was unreliable,

inflammatory, prejudicial, and constituted “an outlandish sideshow,” citing Rules of

Evidence 702 and 403. We review a trial court’s ruling on the admission of expert

testimony under Rule of Evidence 702 only for an abuse of discretion. State v.

McGrady, 368 N.C. 880, 893 (2016). As previously noted, a trial court’s ruling on

admissibility under the balancing test of probative value versus prejudice under Rule

403 is also reviewed for abuse of discretion. Hennis, 323 N.C. at 285. We are not

persuaded that the trial court here abused its discretion in allowing Barbaro’s

testimony.

Rule of Evidence 702 provides that when “scientific, technical or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion.”

N.C.G.S. § 8C-1, Rule 702(a) (2009).21 Courts should employ a “three-step inquiry for

evaluating the admissibility of expert testimony: (1) Is the expert’s proffered method

21 Rule of Evidence 702 was amended in 2011, with that amendment applying to

actions “commenced on or after October 1, 2011.” Defendant was indicted in 2010, and thus

the earlier version of Rule 702 applies to his case. Other aspects of the amendment are

discussed in the following section of this decision. In any event, the trial court ruled that

Barbaro’s evidence was admissible under both versions of Rule of Evidence 702.

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of proof sufficiently reliable as an area for expert testimony? (2) Is the witness

testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s

testimony relevant?” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458 (2004)

(citations omitted). The proponent of the offered expert opinion has the burden to

show its compliance with the requirements of Rule 702(a). State v. Ward, 364 N.C.

133, 140 (2010). Under Rule 403, evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” N.C.G.S. § 8C-1, Rule 403. Both determinations

are reviewed under an abuse of discretion standard. McGrady, 368 N.C. at 893;

Hennis, 323 N.C. at 285.

As an initial matter, we must clarify the testimony that is properly before the

Court on appeal, as well as the bases for excluding such evidence that defendant has

preserved for our consideration. In a pretrial motion, defendant sought to exclude

Barbaro’s testimony as an expert in forensic dentistry, arguing that the prejudice of

his testimony would substantially outweigh any relevance it could provide under Rule

403 and that his data and methods were unreliable under Rule 702. Following a

hearing on the question, the trial court filed a written order concluding that North

Carolina precedent has previously allowed bite mark testimony; Barbaro was

qualified to testify as an expert in forensic dentistry; his method of proof was

sufficiently reliable under Rule 702; and the relevance of Barbaro’s testimony would

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not be outweighed by its prejudicial effect under Rule 403.

Once trial began, as the State emphasizes, defendant did not object to

significant portions of Barbaro’s testimony, such as his explanations of the methods

used in the field of forensic dentistry, how Barbaro applied those methods to the facts

of defendant’s case, and Barbaro’s opinion that Taylor had bite marks on her body

which were inflicted by an adult. As a result of defendant’s failure to object to this

testimony at trial, defendant has waived his right to any argument of error regarding

those issues on appeal. N.C. R. App. P. 10(a)(1). Thus, only Barbaro’s testimony that

the bite marks were consistent with defendant’s dentition is a topic of testimony that

could be challenged on appeal. However, in his brief, defendant concedes that “[t]he

State had . . . established through [defendant’s] statement to police that he was the

only one watching Taylor during that time [when the bites were inflicted]” and then

represents that “[t]he defense did not meaningfully contest that [defendant] had

inflicted the injuries that occurred during the ten days before he brought her to the

hospital.”22 (Emphasis added.) Thus, it appears that at trial the State’s evidence

showed that Taylor (1) suffered numerous bites (2) inflicted by defendant (3) during

the ten days before defendant brought her to the hospital and that this evidence was

22 Given defendant’s concession in his brief, we note the remark of defense counsel

that Barbaro “does have expertise to say that these are bite marks” just prior to his

clarification to the trial court that defendant’s position regarding Barbaro’s testimony: “I’m

more making a 403 argument on that, your Honor.” Both of defendant’s trial counsel

conferred with each other, and then affirmatively informed the trial court “[w]e’re not

disputing that he can say they are bite marks, we’re saying he can’t say who put them, and

give an opinion about who put them there.”

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not meaningfully contested. To the extent that there was any question that defendant

inflicted multiple bites on Taylor in the ten days wherein he had sole access to the

child, we conclude that in light of the precedent then existing, along with the findings

and conclusions included in the trial court’s order denying defendant’s motion to

exclude—in conjunction with the trial court’s decision, nonetheless, to sustain certain

of defendant’s objections to portions of the expert’s testimony—we cannot say that

the trial court’s allowance of other testimony by the expert witness was “manifestly

unsupported by reason or [was] so arbitrary that [it] could not have been the result

of a reasoned decision.” Hennis, 323 N.C. at 285.

We recognize that as to the question of the reliability of Barbaro’s testimony,

defendant cites several reports and studies from government and scientific sources

which address the increasing scientific skepticism regarding the validity of bite mark

identification, including those that cast doubt on the ability for a witness to

accurately identify a lesion on the skin as a human bite mark,23 notes that “[n]o recent

North Carolina [appellate decision] affirmatively accepts bite mark identification

testimony,” and urges that precedent from North Carolina’s appellate courts which

23 Defendant cites: (1) Committee on Identifying the Needs of the Forensic Sciences

Community National Research Council, Strengthening Forensic Science in the United States:

A Path Forward (2009), https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf; (2) President’s

Council of Advisors on Sci. and Tech., Forensic Science in Criminal Courts: Ensuring

Scientific Validity of Feature-Comparison Methods (2016),

https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_foren

sic_science_report_final.pdf; and (3) Am. Bd. Of Forensic Odontology, Standards and

Guidelines for Evaluating Bitemarks, http://abfo.org/wp-content/uploads/2012/08/ABFO-

Standards-Guidelines-for-Evaluating-Bitemarks-Feb-2018.pdf.

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accept bite mark testimony by an expert witness contested under Rule 702 should be

overruled. Whatever the merits of defendant’s assessment regarding the reliability of

testimony concerning the identification of bite marks and related matters, we need

not address any Rule 702 arguments regarding Barbaro’s testimony, given

defendant’s concessions to the truth of the bite mark facts relevant to the elements of

the offenses with which defendant was charged and to which Barbaro testified in this

case.

This leaves for our consideration only defendant’s argument that the trial

court’s decision to admit Barbaro’s testimony constituted an abuse of discretion and

likely altered the outcome of defendant’s trial and sentence where defendant contends

that Barbaro’s testimony was needlessly repetitive because three physicians had

already testified about the multiple marks and lesions on Taylor’s body which they

believed to be human bite marks inflicted within approximately three to ten days of

Taylor’s arrival at Johnston Memorial Hospital24 and was otherwise substantially

more prejudicial than probative of the issues before the jury, citing State v. Barton,

335 N.C. 696, 704–05 (1994).

As to repetition, in Barton, applying the abuse of discretion standard, we

upheld a trial court’s decision to exclude evidence from an expert witness as

24 Dr. Evans identified multiple bite marks which he estimated had been inflicted

between three and ten days prior to Taylor’s hospitalization, Dr. Kocis identified multiple

bite marks “mostly in the three- to seven-day range,” and Dr. Williams suggested that the

bite marks had occurred within a ten-day timeframe.

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cumulative pursuant to Rule 403. Id. at 704. Barton, therefore, simply demonstrates

the appropriate deference given to trial court rulings under Rule 403 on appeal. See

N.C.G.S. § 8C-1, Rule 403 (providing that relevant evidence “may be excluded if its

probative value is substantially outweighed . . . by considerations of . . . needless

presentation of cumulative evidence”). Barbaro’s testimony opining that Taylor

suffered numerous bite marks by an adult human during the time period when

defendant had sole access to the child, even if cumulative, did not likely tip the scales

in defendant’s case either as to his convictions or sentences given defendant’s

acknowledgment that “[t]he defense did not meaningfully contest that [defendant]

had inflicted the injuries that occurred during the ten days before he brought her to

the hospital.”25

Regarding the “inflammatory potential” of Barbaro’s testimony otherwise,

including its content and its manner of presentation, defendant contends that

Barbaro “inflamed the jury with a series of dramatic and baseless assertions and

gruesome commentary,” including Barbaro’s “comments that ‘most . . . bite mark

injuries are caused by animals — bears and dogs’ ‘tearing and using their teeth as

their tool or weapon to tear or maim their victim’ and that particular bite marks on

Taylor’s body evidenced ‘a lot of intention’ and lasted ‘for a significant amount of

time.’ ” While “[t]his Court does not condone comparisons between defendants and

animals,” Roache, 358 N.C. at 297, Barbaro’s comment that most bite injuries to

25 See footnote 22.

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Opinion of the Court

humans are caused by animals does not compare defendant to an animal but rather

makes a factual statement with which defendant does not disagree. Further,

defendant does not appear to have meaningfully contested that he inflicted the

numerous bite marks on Taylor’s body, and we also conclude that, in light of the facts

presented in this case, the intentionality of the biting is a reasonable inference for

any witness to draw. Finally, whether the bites inflicted upon Taylor were brief or

sustained, given their large number and when viewed in conjunction with the other

physical and sexual abuse inflicted upon the child, we cannot say that Barbaro’s

testimony made the difference in defendant’s conviction or sentence. Accordingly,

defendant’s arguments regarding Barbaro’s testimony are overruled.

E. Expert testimony about whether Taylor was tortured

Defendant argues that the trial court erred by allowing t

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