Petition for Writ of Certiorari — Jonathan Douglas Richardson, Petitioner v. North Carolina
Supreme Court briefFeb 15, 2024
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APPENDIX A
132
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
work on the first milestone was completed. A
jury could also find the same is true for the
External Sales Milestone and that PRA did
not allow work on External Sales to begin
until after work on the first three Development Milestones was completed. Next, a reasonable jury could find that by unmanaging
the package, PRA diverted resources away
from the APA milestones and eliminated the
opportunity of licensing the software on AppExchange, thereby thwarting Parthasarathy’s efforts to meet the External Sales provision. Indeed, the emails sent by JonesHertzog could also lead a jury to believe that
PRA’s interference in the Vertex deal was
intentional. Lastly, under the terms of the
APA, a jury could also find that the Takeda
Deal meets the definition of an External Sale
and that PRA’s failure to credit it as such is
an express breach of the APA.
Thus, taking the evidence presented in the
light most favorable to VHS and drawing all
reasonable inferences in VHS’s favor, see
Cummings, 379 N.C. at 358, 866 S.E.2d 675,
I would hold that summary judgment is not
appropriate, and that the case should be
remanded to the trial court so that a jury can
decide whether PRA breached the External
Sales provision of the APA, and whether
PRA violated the implied covenant of good
faith and fair dealing through its post-closing
conduct.
III. Conclusion
In sum, I depart from the majority opinion
on three issues. First, whether Rule 8 or
Rule 9(b) of the North Carolina Rules of
Civil Procedure applies to pleading a claim
for negligent misrepresentation. Second,
whether under Delaware law the implied covenant of good faith and fair dealing applies to
plaintiffs’ breach of contract claims under
sections 2.6(a)(i) and (ii) of the APA. Third,
whether the implied covenant of good faith
and fair dealing applies to PRA’s post-closing
conduct. Therefore, on those issues I would
hold that (1) negligent misrepresentation is
properly pled under Rule 8; (2) the implied
covenant of good faith and fair dealing applies to VHS’s breach of contract claims under sections 2.6(a)(i) and (ii) of the APA and
accordingly summary judgment is not appropriate; and (3) the implied covenant of good
faith and fair dealing applies to PRA’s postclosing conduct and thus summary judgment
is not warranted.
Justice MORGAN joins in this concurring
in part and dissenting in part opinion.
,
385 N.C. 101
STATE of North Carolina
v.
Jonathan Douglas RICHARDSON
No. 272A14
Supreme Court of North Carolina.
Filed September 1, 2023
Background: Defendant was convicted in
the Superior Court, Johnston County,
Thomas H. Lock, Senior Resident Judge,
of capital murder by torture of child victim
and other offenses, and was sentenced to
death. Defendant appealed.
Holdings: The Supreme Court, Morgan,
J., held that:
(1) trial judge was not disqualified based
on his role as prosecutor in criminal
trial of defendant’s mother 20 years
earlier;
(2) trial judge’s failure to recuse himself
did not violate due process;
(3) use of 60-inch monitor to display 88
photographs of victim was not inflammatory or unfairly prejudicial;
(4) State did not engage in needless cumulative presentation of photographs;
(5) guilt-phase testimony about emotional
reactions from medical and law enforcement personnel to seeing victim
was relevant;
(6) child abuse experts’ testimony about
torture was admissible in guilt and
penalty phases;
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
(7) defendant failed to make a prima facie
case of race or gender-based discrimination in peremptory strikes;
(8) two prospective jurors were excusable
for cause based on views on capital
punishment or life experiences;
(9) death penalty was not disproportionate;
and
(10) as matter of first impression, Berger,
J., for a majority of the court, held
that defendant was not in custody for
Miranda purposes when he made
statements at hospital.
Affirmed.
Berger, J., filed concurring opinion in which
Newby, C.J., and Barringer, Dietz, and Allen, JJ., joined.
Earls, J., filed opinion concurring in part and
dissenting in part.
1. Judges O49(1)
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. N.C. Gen. Stat. Ann. § 15A1223(e); N.C. Code of Jud. Conduct, Canon
3(C).
2. Judges O47(1)
A defendant moving to disqualify trial
judge based on judge’s status as potential
witness or material witness in the defendant’s criminal trial must present substantial
evidence to establish that recusal is required.
N.C. Gen. Stat. Ann. § 15A-1223(e); N.C.
Code of Jud. Conduct, Canon 3(C).
N. C.
133
tial witness or material witness in a criminal
trial 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. N.C. Gen.
Stat. Ann. § 15A-1223(e); N.C. Code of Jud.
Conduct, Canon 3(C).
5. Judges O45
Trial judge who served as prosecutor for
criminal trial of defendant’s mother 20 years
earlier for shooting of defendant’s allegedly
abusive father was not disqualified from presiding over defendant’s capital murder case,
involving death of four-year-old child who
was in defendant’s care, based on judge’s
alleged status as potential witness or material witness in defendant’s trial, where judge
was not privy to any exculpatory or mitigating evidence relating to defendant, judge repeatedly stated that he did not have any
knowledge of evidence which would have
been pertinent to defendant’s case, and
judge’s surmised meaningful insight into any
of defendant’s family dynamics which might
have been relevant to guilt-phase defenses or
penalty-phase mitigation arguments was only
speculative conjecture. N.C. Gen. Stat. Ann.
§ 15A-1223(e); N.C. Code of Jud. Conduct,
Canon 3(C).
6. Sentencing and Punishment O1751,
1756
While the rules of evidence do not apply
in a capital sentencing proceeding, a trial
court may only permit the introduction of
evidence which is somehow relevant or pertinent to sentencing.
3. Judges O51(1)
If the allegations about a trial judge’s
potential disqualification due to judge’s status as potential witness or material witness
in a criminal trial are made with sufficient
force to require findings of fact, the motion
to recuse should be referred to another
judge. N.C. Gen. Stat. Ann. § 15A-1223(e);
N.C. Code of Jud. Conduct, Canon 3(C).
7. Judges O51(4)
Defendant, as party moving for disqualification of trial judge, had burden to demonstrate objectively that the grounds for
disqualification, that being judge’s status as
potential witness or material witness in defendant’s capital murder trial, actually existed and that such grounds existed through
the production of substantial evidence. N.C.
Gen. Stat. Ann. § 15A-1223(e); N.C. Code of
Jud. Conduct, Canon 3(C).
4. Judges O47(1)
Findings of fact on motion to disqualify
trial judge based on judge’s status as poten-
8. Judges O47(1)
Mere speculation or conjecture is not
sufficient to satisfy requirement of producing
134
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
substantial evidence that a trial judge is disqualified based on judge’s status as a potential witness or material witness in a criminal
trial. N.C. Gen. Stat. Ann. § 15A-1223(e);
N.C. Code of Jud. Conduct, Canon 3(C).
9. Judges O49(1)
Disqualification for risk of actual bias
was not required for trial judge who presided
over capital murder trial relating to death of
a four-year-old child who was in defendant’s
care 20 years after judge served as prosecutor in criminal trial of defendant’s mother for
shooting of defendant’s father when defendant was an infant or toddler, where defendant’s motion to disqualify explicitly stated
that the motion was not based on any claim
that judge would be biased against defendant, and defense counsel acknowledged in
hearing on the disqualification motion that
defendant was not claiming bias based on
judge’s role in a 20-year old prosecution that
did not directly involve him. N.C. Gen. Stat.
Ann. § 15A-1223; N.C. Code of Jud. Conduct,
Canon 3(C).
10. Judges O47(1)
Disqualification based on potential for
appearance of impropriety was not required
for trial judge who presided over capital
murder trial relating to death of a four-yearold child who was in defendant’s care 20
years after judge served as prosecutor in
criminal trial of defendant’s mother for
shooting of defendant’s father when defendant was an infant or toddler, where judge
had no previous connection to defendant’s
criminal case and had no input in the initiation of criminal charges against defendant
regarding death of child. N.C. Gen. Stat.
Ann. § 15A-1223; N.C. Code of Jud. Conduct,
Canon 3(C).
11. Constitutional Law O4622
Judges O51(4)
Trial judge did not violate due process
by not recusing himself, for actual bias, from
presiding over capital murder trial relating
to death of a four-year-old child who was in
defendant’s care 20 years after judge served
as prosecutor in criminal trial of defendant’s
mother for shooting of defendant’s father
when defendant was an infant or toddler,
where judge had no involvement as a prose-
cutor in defendant’s criminal case and had no
apparent involvement in any previous legal
proceeding directly involving defendant.
U.S. Const. Amend. 14.
12. Constitutional Law O3880
Due process guarantees an absence of
actual bias on the part of a judge. U.S.
Const. Amend. 14.
13. Constitutional Law O3880
An objective standard applies for detecting, under the due process clause, the existence of a trial judge’s inability to preside
over a case due to bias. U.S. Const. Amend.
14.
14. Criminal Law O1153.3
A trial court’s decision whether to exclude evidence on the basis that its probative
value is substantially outweighed by the danger of unfair prejudice is reviewed for abuse
of discretion. N.C. R. Evid. 403.
15. Criminal Law O1153.1
An abuse of discretion results from a
trial court’s evidentiary ruling where the ruling is manifestly unsupported by reason or is
so arbitrary that it could not have been the
result of a reasoned decision.
16. Criminal Law O1168(1)
A defendant challenging an evidentiary
ruling on appeal must demonstrate that any
abuse of discretion in the evidentiary ruling
prejudiced the defendant.
17. Criminal Law O438(6)
Photographs are allowed to prove the
character of the defendant’s attack on the
victim and to illustrate testimony regarding
the manner of a killing in order to prove
circumstantially the elements of first-degree
murder.
18. Criminal Law O438(7)
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.
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
19. Criminal Law O438(7)
When the use of photographs of a homicide victim that have inflammatory potential
is excessive or repetitious, the probative value of such evidence is eclipsed by its tendency to prejudice the jury. N.C. R. Evid. 403.
20. Criminal Law O438(7)
Number of photographs of homicide victim 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. N.C. R. Evid. 403.
21. Criminal Law O438(7)
Test for determining whether number of
crime scene or autopsy photographs is excessive is not formulaic; there is no bright line
indicating at what point the number of crime
scene or autopsy photographs becomes too
great.
22. Criminal Law O438(7)
Whether the use of photographs of a
homicide victim 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. N.C. R. Evid.
403.
23. Criminal Law O438(7)
Factors for determining whether photographs of a homicide victim should be excluded on the basis that their probative value is
substantially outweighed by the danger of
unfair prejudice include: (1) number of photographs; (2) whether photographs are unnecessarily duplicative of other testimony; (3)
whether purpose of photographs is aimed
solely at arousing the passions of jury; and
(4) circumstances surrounding presentation
of photographs. N.C. R. Evid. 403.
24. Criminal Law O438(7)
In determining the illustrative value of
photograph of homicide victim and in weighing its use by State against its tendency to
prejudice the jury, a trial court must examine
what the photograph depicts, its level of detail and scale, whether it is color or black and
white, whether it is a slide or a print, where
and how it is projected or presented, and the
N. C.
135
scope and clarity of the testimony it accompanies. N.C. R. Evid. 403.
25. Criminal Law O438(7)
When a photograph of a homicide victim
adds nothing to the State’s case, then its
probative value is nil, and nothing remains
but its tendency to prejudice. N.C. R. Evid.
403.
26. Criminal Law O438(8)
Manner of display of 88 color photographs of four-year-old victim’s body and her
injuries, via use of 60-inch monitor that allowed witnesses to use enlarged and close-up
views of photographs in conjunction with
their testimony, was not inflammatory or unfairly prejudicial in capital murder trial,
where placement of monitor in courtroom
permitted all jurors and alternates, as well as
lawyers and witnesses, to see it, monitor’s
location avoided having defendant be closely
and continually in jury’s visual field as jury
viewed graphic images of victim, and use of
60-inch monitor rather than using a smaller
monitor or having jurors pass around printed
8 x 10 photographs prevented the repetitive
display of photographs. N.C. R. Evid. 403.
27. Criminal Law O438(8)
A trial court may, in the exercise of
proper discretion, use technological advancements for viewing photographs during trial,
including use of monitors with high definition
and zooming capability, in an effort to
achieve justice.
28. Criminal Law O438(6), 675
State did not engage in needless cumulative presentation of a photograph of fouryear-old victim’s full body as it appeared in
hospital’s emergency room treatment area to
illustrate the testimony of three medical providers who treated victim, where first provider used photograph to confirm that medical
treatment did not cause injuries, second provider used photograph to give an idea of
extent of victim’s numerous injuries, and
third provider gave primarily corroborative
testimony as to victim’s identity, in capital
murder trial involving charge of murder by
torture. N.C. R. Evid. 403.
136
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
29. Criminal Law O438(6), 675
State’s use of two photographs depicting
four-year-old victim’s body from her head to
her hips and from her shoulders to knees,
along with a photograph of her head and
face, to help illustrate treating physician’s
testimony about victim’s numerous injuries
occurring over a number of days, was not the
needless presentation of cumulative evidence
in capital murder trial involving charge of
murder by torture, even though photographs
were among the 88 photographs of victim’s
body and her injuries that were admitted.
N.C. R. Evid. 403.
30. Criminal Law O438(6), 675
Five photographs of bite marks on fouryear-old victim’s body, taken by bite mark
expert and used to illustrate his opinions,
were not cumulative of testimony from other
medical professionals that they believed victim had suffered many bite marks across her
body, where no other witness used bite mark
photographs to illustrate the same testimony
as the bite mark expert presented, in capital
murder trial involving charge of murder by
torture. N.C. R. Evid. 403.
31. Criminal Law O438(7)
Probative value of 28 autopsy photographs that medical examiner used to illustrate his testimony was not substantially outweighed by the danger of unfair prejudice in
capital murder trial involving charge of murder by torture, even though different photographs of the same body parts were displayed to illustrate the testimony of other
witnesses, where autopsy photographs allowed medical examiner to provide detailed
testimony about nature and number of various types of injuries to different areas of
victim’s body, and a number of autopsy photographs were taken after medical examiner
had manipulated or cut into victim’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. N.C. R. Evid.
403.
32. Criminal Law O438(6), 675
Four photographs of four-year-old victim’s body and five close-up photographs of
her genitalia were not duplicative of the evi-
dence previously offered, and thus State expert could use photographs to illustrate her
testimony regarding whether the injuries defendant inflicted upon victim constituted torture, in capital murder trial involving charge
of murder by torture. N.C. R. Evid. 403.
33. Criminal Law O675
State did not engage in needless cumulative presentation of photographs of fouryear-old victim’s body and injuries by showing, during closing argument, eight photographs that had previously been published to
the jury, in capital murder trial involving
charge of murder by torture. N.C. R. Evid.
403.
34. Criminal Law O438(7)
Admission of 88 photographs of fouryear-old victim’s body and her injuries, to
illustrate testimony of medical providers, expert witnesses, and medical examiner, was
not excessive to the point of being prejudicial, where State was not only faced with a
case that involved horrible injuries including
66 bites marks and multiple injuries from
sexual assaults, but was also proceeding on
charges that included, inter alia, murder by
torture, felony murder, and felony child
abuse inflicting serious injury. N.C. R. Evid.
403.
35. Infants O1560
Conviction on a charge of felony intentional child abuse inflicting serious bodily
injury requires that the State prove serious
bodily injury. N.C. Gen. Stat. Ann. § 14318.4(a3).
36. Homicide O540
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.
37. Homicide O540
‘‘Torture,’’ as element of first-degree
murder by torture, is the course of conduct
by one or more persons which intentionally
inflicts grievous pain and suffering upon an-
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
other for the purpose of punishment, persuasion, or sadistic pleasure.
See publication Words and Phrases for
other judicial constructions and definitions.
38. Homicide O603
Felony murder on the basis of felonious
child abuse requires the State to prove that
the killing took place while the defendant
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. N.C.
Gen. Stat. Ann. § 14-17(a).
39. Criminal Law O328
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.
40. Homicide O935
Even a defendant’s stipulation as to the
cause of death does not preclude the State
from proving all essential elements of its
homicide case.
41. Criminal Law O338(7)
Any evidence probative of the State’s
case is always prejudicial to the defendant,
for purposes of rule providing for exclusion
of relevant evidence on the basis that its
probative value is substantially outweighed
by the danger of unfair prejudice. N.C. R.
Evid. 403.
42. Criminal Law O1153.3
A trial court’s ruling on the relevancy of
evidence is technically not discretionary, but
is accorded great deference on appeal. N.C.
R. Evid. 401, 402.
43. Criminal Law O1141(2), 1163(3)
When evidence is challenged on relevancy grounds, the burden is on the party who
asserts that evidence was improperly admitted to show both error and that he was
prejudiced by its admission. N.C. R. Evid.
401, 402.
44. Criminal Law O1169.1(1)
Admission of evidence that is technically
inadmissible will be treated as harmless unless prejudice is shown such that a different
N. C.
137
result likely would have ensued had the evidence been excluded.
45. Criminal Law O338(1)
Evidence which goes to any element of
an offense charged is relevant. N.C. R.
Evid. 401, 402.
46. Homicide O1013
Testimony about emotional reactions
from experienced medical and law enforcement personnel to seeing four-year-old victim’s injuries, including testimony about ‘‘losing it,’’ going crazy, chasing and tackling
defendant as he tried to leave hospital, trying
to rip out defendant’s esophagus, asking for
officer’s gun to shoot defendant, feeling like
vomiting, being shocked, and not being able
to look at victim’s injuries, was relevant to
show seriousness of victim’s injuries or to
shed light on extent of her pain and suffering
as element of the offense, in guilt phase of
capital murder trial that included charges of
murder by torture, felony murder, and felony
child abuse inflicting serious injury. N.C.
Gen. Stat. Ann. §§ 14-17, 14-318.4(d), 14318.4(a3); N.C. R. Evid. 401, 402.
47. Criminal Law O1169.1(3)
Any error in admission of allegedly irrelevant guilt-phase testimony about emotional
reactions from medical and law enforcement
personnel to seeing four-year-old victim’s injuries did not prejudice defendant, and thus
was not reversible error in capital murder
trial that included charges of murder by
torture, felony murder, and felony child
abuse inflicting serious injury, given the
overwhelming evidence of defendant’s guilt
and of victim’s severe, painful, and ultimately
fatal injuries inflicted over time. N.C. Gen.
Stat. Ann. §§ 14-17, 14-318.4(d), 14-318.4(a3),
15A-1443(a); N.C. R. Evid. 401, 402.
48. Criminal Law O338(7)
Probative value of guilt-phase testimony
about emotional reactions from medical and
law enforcement personnel to seeing fouryear-old victim’s injuries, to show seriousness
of injuries or to shed light on extent of
victim’s pain and suffering as element of the
offense, was not substantially outweighed by
danger of unfair prejudice in capital murder
trial that included charges of murder by
138
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
torture, felony murder, and felony child
abuse inflicting serious injury. N.C. Gen.
Stat. Ann. §§ 14-17, 14-318.4(d), 14-318.4(a3);
N.C. R. Evid. 401, 402, 403.
49. Criminal Law O1153.12(3)
Supreme Court reviews a trial court’s
ruling on the admission of expert testimony
for an abuse of discretion. N.C. R. Evid.
702.
50. Criminal Law O469
Courts should employ a three-step inquiry for evaluating admissibility of expert testimony, asking whether: (1) the expert’s proffered method of proof is sufficiently reliable
as an area for expert testimony; (2) the witness testifying at trial is qualified as an
expert in that area of testimony; (3) the
expert’s testimony is relevant. N.C. R. Evid.
401, 402, 702.
51. Criminal Law O480
Proponent of the offered expert opinion
has the burden to show its compliance with
the requirements of rule governing expert
testimony. N.C. R. Evid. 702(a).
52. Criminal Law O1036.6
Defendant failed to preserve for appeal
the issues of dentist’s explanations of methods used in field of forensic dentistry, how
dentist applied those methods to facts of
case, and dentist’s expert opinion that child
victim had adult bite marks on her body,
where defendant did not object to that testimony at trial, in capital murder prosecution.
N.C. R. App. P. 10(a)(1); N.C. R. Evid. 702.
53. Criminal Law O475.7
Trial court acted within its discretion in
allowing dentist’s expert testimony that bite
marks on four-year-old victim’s body were
consistent with defendant’s dentition, to the
extent that there was any question that defendant inflicted multiple bites on victim in
the ten days wherein he had sole access to
victim, in capital murder trial involving
charge of murder by torture. N.C. R. Evid.
702.
54. Criminal Law O1169.9
Dentist’s expert testimony, to which defendant did not object at trial, that four-year-
old victim suffered numerous bite marks by
an adult human, even if cumulative, did not
likely tip scales in defendant’s case either as
to his convictions or sentences, where defendant acknowledged that the defense did not
meaningfully contest that he inflicted victim’s
injuries that occurred during the ten days in
which he had sole access to her before he
brought her to hospital, in capital murder
prosecution that resulted in numerous convictions, including murder by torture and felony
child abuse, and that resulted in a death
sentence. N.C. R. App. P. 10(a)(1); N.C. R.
Evid. 403, 702.
55. Criminal Law O1036.6
Sentencing and Punishment O1789(3)
Dentist’s expert testimony, to which defendant did not object at trial, noting that
most bite marks on humans were caused by
animals like dogs or bears ‘‘tearing and using
their teeth as their tool or weapon’’ and that
certain adult human bite marks on four-yearold victim’s body evidenced ‘‘a lot of intention’’ and lasted a significant amount of time
did not make a difference in defendant’s case
either as to his convictions or sentences,
where defendant did not meaningfully contest that he inflicted numerous bite marks on
victim’s body and there was evidence of other
physical and sexual abuse inflicted upon victim, in capital murder prosecution that resulted in numerous convictions, including
murder by torture and felony child abuse,
and that resulted in a death sentence. N.C.
R. App. P. 10(a)(1); N.C. R. Evid. 403, 702.
56. Sentencing and Punishment O1751,
1756
At the sentencing stage of a capital proceeding, the rules of evidence do not apply,
but the ultimate issue concerning the admissibility of evidence must still be decided by
the trial judge, and that decision is guided by
the usual rules which exclude repetitive or
unreliable evidence or that lacking an adequate foundation.
57. Sentencing and Punishment O1756
At a capital sentencing hearing, the balancing test of probity versus prejudice, under
rule providing for exclusion of relevant evidence if its probative value is substantially
outweighed by danger of unfair prejudice, is
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
not applied, although only competent, relevant evidence pertaining to the jury’s sentencing decision may be introduced by the
State.
N.C. Gen. Stat. Ann. § 15A2000(a)(3); N.C. R. Evid. 403.
58. Criminal Law O476
Child abuse expert’s guilt-phase testimony that four-year-old victim’s injuries while
she was in defendant’s sole care for ten days
‘‘were consistent with’’ torture was admissible in prosecution for capital murder by torture, even though expert had never previously diagnosed torture in her work in child
abuse cases, where expert explained that she
had never before witnessed the level of abuse
that was inflicted on victim, expert referred
to definition of torture contained in standard
well-known dictionary in forming her opinion,
expert also referenced two additional definitions of torture, and expert had spoken to
medical professionals who treated victim, to
victim’s mother, and to law enforcement officials. N.C. R. Evid. 702 (2010).
59. Criminal Law O476
Child abuse expert’s guilt-phase testimony that four-year-old victim’s injuries were
the result of intentionally inflicted trauma
was relevant to support State’s position that
defendant did not snap and lose control but
instead engaged in a deliberate, prolonged
process of severely beating and torturing
victim, in prosecution for capital murder by
torture. N.C. R. Evid. 401, 402; N.C. R.
Evid. 702 (2010).
60. Sentencing and Punishment O1769
Child abuse expert’s penalty-phase testimony in support of death penalty aggravator
that the murder was especially heinous, atrocious, or cruel, stating that torture included a
need for power and control, that torture involved a lack of empathy, and that torture
was done for sadistic pleasure or gratification, did not express impermissible opinion
about defendant’s state of mind; testimony
was background information about torture
and people who tortured generally, and testimony plainly did not refer to defendant’s
specific acts against four-year-old victim who
was in his care. N.C. Gen. Stat. Ann.
§§ 15A-2000(a)(3), 15A-2000(e)(9).
N. C.
139
61. Sentencing and Punishment O1769
Child abuse expert’s penalty-phase testimony in support of death penalty aggravator
that the murder was especially heinous, atrocious, or cruel, stating that ‘‘biting of children
is a science unto itself,’’ that duct tape across
the mouth and around the hair was usually
how children were duct taped in torture scenarios, and that the purpose for individuals
videotaping those kinds of scenes was because those individuals wanted to ‘‘come back
and look at it as part of sadistic gratification,’’ did not express impermissible opinion
about defendant’s state of mind, where expert did not make statements as part of any
diagnosis of defendant or regarding the specific injuries that four-year-old victim had
suffered while in his care, and testimony
provided context for expert’s testimony that
directly addressed victim’s injuries. N.C.
Gen. Stat. Ann. §§ 15A-2000(a)(3), 15A2000(e)(9).
62. Sentencing and Punishment O1769
Child abuse expert’s penalty-phase testimony in support of death penalty aggravator
that the murder was especially heinous, atrocious, or cruel, referring to ‘‘cat o’ nine tails,’’
a multi-tailed whip made of knotted cords, in
shorthand reference to a partially-stripped
electrical cord that defendant apparently
used to beat four-year-old victim who was in
his care, was not unfairly inflammatory, despite argument that the term ‘‘cat o’ nine
tails’’ was from torture literature, where expert clearly identified that she was using the
term to refer to the electrical cord as modified by defendant to whip victim over much
of her body, including her genital area and
buttocks, leaving some wounds embedded
with tiny slivers of copper filament. N.C.
Gen. Stat. Ann. §§ 15A-2000(a)(3), 15A2000(e)(9).
63. Sentencing and Punishment O1769
Child abuse expert’s penalty-phase testimony in support of death penalty aggravator
that the murder was especially heinous, atrocious, or cruel, stating that four-year-old victim’s injuries and imprisonment were ‘‘carefully calculated,’’ was part of permissible
opinion that injuries were not accidental or
the result of a sudden loss of control as
140
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
opposed to intentional child abuse, where
guilt-phase evidence showed that defendant
bought and installed a mechanism by which
he could lock victim, who was his girlfriend’s
daughter, inside outbuilding without victim’s
ability to escape almost immediately after he
gained sole control of victim while mother
was away for ten days, that victim was not
seen outside outbuilding during last days of
her life, and that defendant rejected an offer
of help in caring for victim from his grandmother. N.C. Gen. Stat. Ann. §§ 15A2000(a)(3), 15A-2000(e)(9).
64. Sentencing and Punishment O1769
Child abuse expert’s penalty-phase testimony in support of death penalty aggravator
that the murder was especially heinous, atrocious, or cruel, stating that four-year-old victim ‘‘sustained severe torture,’’ was helpful to
jury and thus admissible, despite argument
that existence of torture was well within
common knowledge, where expert was more
experienced than jurors in viewing a large
number and wide range of child abuse circumstances, including those of victim, who
encountered repeat whippings with a partially stripped electrical cord, severe sexual
abuse, at least 66 bites, and removal of a
fingernail before her fatal head injury while
being locked for ten days in outbuilding with
no toilet. N.C. Gen. Stat. Ann. §§ 15A2000(a)(3), 15A-2000(e)(9).
65. Criminal Law O469.1
Proper inquiry for admissibility of expert testimony is whether the witness, because of his or her expertise, is in a better
position to have an opinion on the subject
than is the trier of fact. N.C. R. Evid. 702.
66. Criminal Law O469
Although the trial court should avoid
unduly influencing the jury’s ability to draw
its own inferences, expert testimony is proper in most facets of human knowledge or
experience. N.C. R. Evid. 702.
67. Sentencing and Punishment O1684
At the penalty phase, what makes a
murder especially heinous, atrocious, or cruel
as a death penalty aggravator is the entire
set of circumstances surrounding the killing,
including evidence that supports both the
defendant’s motive as well as his depravity of
mind. N.C. Gen. Stat. Ann. § 15A-2000(e)(9).
68. Sentencing and Punishment O1684
A murder that may be deemed especially heinous, atrocious, or cruel as a death
penalty aggravator may include a murder
involving physical injury or torture inflicted
prior to death, a murder that is physically
agonizing or dehumanizing to the victim, a
murder that is less violent but which is conscienceless, pitiless, or unnecessarily torturous including a murder in which the victim
was aware yet helpless to prevent her death,
and a murder that demonstrates a defendant’s unusual depravity of mind even if that
fact is not an element in other first-degree
murders. N.C. Gen. Stat. Ann. § 15A2000(e)(9).
69. Criminal Law O1139, 1158.12
In reviewing a suppression order, an
appellate court must determine whether competent evidence supports the trial court’s
findings of fact, and whether those findings
of fact in turn support the trial court’s conclusions of law, which are reviewed de novo.
70. Criminal Law O411.4
Under Miranda, a criminal suspect
must be advised of his pertinent constitutional rights before being questioned while in
custody or otherwise deprived of his freedom
of action in any significant way.
71. Criminal Law O411.23
Relevant inquiry for determining whether a defendant was in custody for Miranda
purposes is more narrow than the broad
‘‘free to leave’’ test employed to determine
whether a person has been seized within the
meaning of the Fourth Amendment. U.S.
Const. Amend. 4.
72. Criminal Law O411.4
‘‘Custodial interrogation’’ under Miranda means questioning initiated by law
enforcement officers after a person has been
taken into custody.
See publication Words and Phrases for
other judicial constructions and definitions.
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
73. Criminal Law O411.23
When determining whether a defendant
was in custody for Miranda purposes, a
court must consider whether, based on the
totality of the circumstances, there was a
formal arrest or a restraint on freedom of
movement of the degree associated with a
formal arrest.
74. Criminal Law O411.23
When determining whether a defendant
was in custody for Miranda purposes, the
question for a court is not whether the defendant actually felt that he or she was being
restrained, but rather is an objective inquiry
asking whether a reasonable person would
have felt that he or she was not at liberty to
terminate the interrogation and leave.
75. Criminal Law O411.23
Circumstances which may be considered
in determining whether a defendant was in
custody for Miranda purposes include location of questioning, duration of questioning,
statements made during interview, presence
or absence of physical restraints during
questioning, defendant’s release at end of
questioning, guarding of door, locked door,
officer’s statements that defendant was not
under arrest, and raised voices, threats, or
promises by officers.
76. Criminal Law O410.76, 411.66
A defendant’s pre-Miranda statements
made to private individuals unconnected with
law enforcement are generally admissible so
long as they were made freely and voluntarily.
77. Criminal Law O1169.12
Any Miranda error in guilt-phase admission of defendant’s statement to police
officer at hospital was harmless beyond a
reasonable doubt in capital murder trial,
where all of the information which defendant
has identified as potentially prejudicial was
placed before jury by defendant’s own witness, and evidence of guilt was overwhelming. N.C. Gen. Stat. Ann. § 15A-1443(b).
78. Criminal Law O1186.1
Even where none of the trial court’s
errors, when considered in isolation, are necessarily sufficiently prejudicial to require a
N. C.
141
new trial, the cumulative effect of the errors
may create sufficient prejudice to deny a
defendant a fair trial.
79. Criminal Law O1186.1
Cumulative effect of actual or assumed
evidentiary errors, consisting of the erroneous repeated showing of a single photograph
of four-year-old victim’s body upon her arrival at hospital and the possibly improper testimony of medical and law enforcement personnel about their emotional reactions to
seeing victim’s extraordinarily numerous and
severe injuries, did not warrant new capital
murder trial in light of overwhelming evidence that defendant intentionally inflicted
all injuries on victim over an extended period
of time and caused victim great pain and
suffering, as well as being responsible for
her death.
80. Jury O33(5.15), 135
A prosecutor ordinarily is entitled to
exercise permitted peremptory challenges for
any reason at all, as long as that reason is
related to the prosecutor’s view concerning
the outcome of the case to be tried, subject
to constitutional restrictions.
81. Constitutional Law O3306
Jury O33(1.15)
Race-based exclusion of jurors violates
the Equal Protection Clause of the Federal
Constitution and the state constitutional provisions guaranteeing equal protection of the
laws and prohibiting exclusion from jury service on account of sex, race, color, religion, or
national origin. U.S. Const. Amend. 14; N.C.
Const. art. 1, §§ 19, 26.
82. Jury O33(5.15)
An objecting party will prevail on a Batson claim if the party can demonstrate that a
peremptory strike was motivated in substantial part by an improper factor.
83. Jury O33(5.15)
When a defendant raises a Batson challenge during jury selection, the trial court
must engage in a three-step inquiry: first,
the defendant must make a prima facie showing of intentional discrimination under the
totality of the relevant facts in the case;
second, if a prima facie case is established,
142
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
the burden shifts to the State to present a
race-neutral explanation for the challenge;
and finally, the trial court must then determine whether the defendant has met the
burden of proving purposeful discrimination.
84. Jury O33(5.15)
Step one of the Batson analysis, a prima
facie showing of racial discrimination, is not
intended to be a high hurdle for defendants
to cross.
85. Jury O33(5.15)
A defendant satisfies requirements of
first step of Batson analysis, a prima facie
showing of racial discrimination, by producing evidence sufficient to permit the trial
judge to draw an inference that discrimination has occurred.
86. Jury O33(5.15)
At first step of Batson analysis, a prima
facie showing of racial discrimination, the
question is not whether a prosecutor has
actually engaged in impermissible purposeful
discrimination.
87. Jury O33(5.15)
Burden on a defendant at first step of
Batson analysis, a prima facie showing of
racial discrimination, is one of production,
not of persuasion.
88. Jury O33(5.15)
Factors for determining whether a defendant has made a prima facie case of a
Batson violation include the defendant’s race,
victim’s race, race of key witnesses, prosecutor’s questions and statements which tend to
support or refute an inference of discrimination, repeated use of peremptory strikes
against Black prospective jurors such that it
tends to establish a pattern of strikes against
such jurors in the venire, prosecutor’s use of
a disproportionate number of peremptory
strikes against Black prospective jurors in a
single case, and the State’s acceptance rate
of Black prospective jurors.
89. Jury O33(5.15)
Statistical analyses of peremptory challenge patterns, while not necessarily dispositive of whether a defendant has made a
prima facie case of a Batson violation, show
that such evidence can be useful in helping
the trial court determine whether a prima
facie case has been established.
90. Jury O33(5.15)
To establish a prima facie case of a
Batson violation, a defendant must offer sufficient evidence which may be drawn from a
wide range of factors from which the trial
court can infer racial discrimination in jury
selection.
91. Jury O33(5.15)
A trial court has substantial discretion in
determining whether a defendant has established a prima facie case of a Batson violation.
92. Criminal Law O1158.17
When a trial court rules that a defendant has failed to establish a prima facie case
of a Batson violation, that ruling is accorded
deference upon appellate review and will not
be disturbed unless it is clearly erroneous.
93. Criminal Law O1158.17
In reviewing a trial court’s ruling on
whether a defendant has established a prima
facie case of a Batson violation, an appellate
court must be mindful that trial courts, given
their experience in supervising voir dire and
their ability to observe the prosecutor’s questions and demeanor firsthand, are well qualified to decide if the circumstances concerning
the prosecutor’s use of peremptory challenges creates a prima facie case.
94. Jury O33(5.15)
Trial court did not clearly err in framing
State’s objection to evidence of historical
strike patterns, consisting of an affidavit allegedly showing a multi-case pattern of racially disparate juror strike rates for one of
State’s two prosecutors, as being based on
hearsay and in not considering such evidence
at the prima facie stage of its Batson analysis in capital murder trial, where there was
no precedent that categorically prohibited
the rules of evidence from being employed in
a trial court’s discretion during the prima
facie stage of Batson analysis, and court
determined that State was not able to crossexamine affiants or authors of the research
from which the affidavit was drawn.
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
95. Jury O33(5.15)
Defendant failed to make a prima facie
case of Batson violation in State’s use of
peremptory strike on Black prospective juror
in capital murder trial, where defendant
lodged Batson objection relatively early in
jury selection process at a time when only
three Black prospective jurors had been individually questioned, there were no apparent
racial concerns raised by the racial and ethnic backgrounds of defendant, who was
white, of victim who was white and of El
Salvadoran background, or of any key witnesses who were white or from El Salvador,
and the only evidence before the court tending to suggest potential discrimination consisted of strike statistics showing disparate
strike rates of Black and non-Black potential
jurors.
96. Constitutional Law O3427
Jury O33(1.25)
Gender-based exclusion of jurors violates the Equal Protection Clause of the Federal Constitution and the state constitutional
provisions guaranteeing equal protection of
the laws and prohibiting exclusion from jury
service on account of sex, race, color, religion, or national origin. U.S. Const. Amend.
14; N.C. Const. art. 1, §§ 19, 26.
97. Jury O33(5.15)
Three-pronged Batson analysis for alleged racial discrimination in the use of peremptory strike applies to a claim of genderbased discrimination in the use of peremptory strike.
98. Jury O33(5.15)
A party lodging an objection to a juror
strike alleged to have been made based upon
gender must make a prima facie showing of
intentional discrimination before the party
exercising the challenge is required to explain the basis for the strike.
99. Criminal Law O1158.17
An appellate court reviews for clear error a trial court’s determination that a defendant has failed to establish a prima facie case
of gender-based discrimination in the State’s
use of a peremptory strike.
N. C.
143
100. Jury O33(5.15)
Factors for determining whether a defendant has made a prima facie case of gender-based discrimination in the State’s use of
a peremptory strike include the gender of
the defendant, the victim and any key witnesses; questions and comments made by the
prosecutor during jury selection which tend
to support or contradict an inference of gender discrimination; the frequent exercise of
peremptory strikes to prospective jurors of
one gender that tends to establish a pattern,
or the use of a disproportionate number of
peremptory challenges against venire members of one gender; whether the State exercised all of its peremptory challenges; and
ultimate gender makeup of the jury.
101. Jury O33(5.15)
Numerical disparity in State’s exercise
of peremptory strikes against female versus
male prospective jurors, consisting of strikes
on four of 12 female jurors and one of seven
male jurors at time of State’s strike on female juror, did not establish a prima facie
case of gender-based discrimination in the
use of peremptory strikes in capital murder
trial, where four female jurors and one male
juror had been seated at time of defendant’s
objection, and the 16 remaining prospective
jurors included 11 women and five men.
102. Jury O33(5.15)
Prosecutor’s voir dire remark that allegedly expressed a lack of familiarity with
precedent making clear that gender-based
peremptory strikes were prohibited did not
establish a prima facie case of gender-based
discrimination in the State’s use of peremptory strike on female prospective juror in capital murder trial; prosecutor’s alleged ignorance of the law did not itself indicate that he
was seeking to strike female juror in question or had struck other jurors based on
gender.
103. Jury O33(5.15)
Prosecutor’s voir dire remark that the
State would address gender-based discrimination ‘‘as appropriate’’ with respect to defendant’s exercise of peremptory strikes on
male prospective jurors if defendant was going to make an issue of gender in jury selection did not establish a prima facie case of
144
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
gender-based discrimination in the State’s
use of peremptory strike on female prospective juror in capital murder trial; prosecutor’s remark simply suggested that prosecutor might potentially make an objection
against defendant for gender-based discrimination in juror selection.
104. Criminal Law O304(1)
Supreme Court would decline to take
judicial notice of prosecutor’s statements
which were part of a different case, part of
which was pending in the Court, that allegedly were pertinent to prosecutor’s intent in
exercising peremptory strikes against female
prospective jurors in defendant’s capital murder trial, where, in defendant’s case, the
Court was reviewing the trial court’s ruling
that defendant failed to make a prima facie
case of gender-based strike of female juror
for clear error.
structions and his oath.
Ann. § 15A-1212(8).
N.C. Gen. Stat.
109. Jury O108
A for-cause excusal of a prospective capital juror may properly include a juror who
equivocates or who states that although the
juror believes generally in the death penalty,
the juror indicates that he or she personally
would be unable or would find it difficult to
vote for the death penalty. N.C. Gen. Stat.
Ann. § 15A-1212(8).
110. Criminal Law O1152.2(2)
Jury O85
A for-cause challenge in jury selection is
a matter in the trial court’s discretion and is
not reviewable on appeal except for abuse of
discretion.
111. Criminal Law O1158.17
105. Jury O83(1)
Standard for determining when a prospective juror may be excluded for cause is
whether the juror’s views would prevent or
substantially impair the performance of his
or her duties as a juror in accordance with
his or her instructions and oath. N.C. Gen.
Stat. Ann. § 15A-1212(8).
Because a prospective juror’s biases that
are subject of a for-cause challenge may not
always be provable with unmistakable clarity,
an appellate court must defer to the trial
court’s judgment concerning whether the juror would be able to follow the law impartially.
106. Jury O108
A prospective capital juror may not be
excused for cause simply for voicing general
objections to the death penalty or expressing
conscientious or religious scruples against its
infliction. N.C. Gen. Stat. Ann. § 15A1212(8).
A defendant has no absolute right to
question or to rehabilitate a prospective juror
before or after the trial court excuses the
juror for cause.
107. Jury O108
Even those prospective jurors who firmly believe that the death penalty is unjust
may nevertheless serve as jurors in capital
cases so long as they state clearly that they
are willing to temporarily set aside their own
beliefs in deference to the rule of law. N.C.
Gen. Stat. Ann. § 15A-1212(8).
108. Jury O108
A prospective capital juror may be excused for cause if the juror’s views on capital
punishment would serve to prevent or substantially impair the performance of his
duties as a juror in accordance with his in-
112. Jury O131(4)
113. Jury O131(2)
In capital cases, the trial court is vested
with discretion to regulate and supervise jury
selection.
114. Jury O131(4)
Where the record shows that a for-cause
challenge is supported by the prospective
juror’s answers to the prosecutor’s and the
trial court’s questions, absent a showing that
further questioning would have elicited different answers, the trial court does not err
by refusing to permit the defendant to propound questions about the same matter.
115. Jury O131(4)
Whether to allow a defendant an opportunity to rehabilitate a prospective juror who
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
N. C.
145
is challenged for cause lies within the trial
court’s discretion.
119. Privileged Communications and Confidentiality O320
116. Jury O108
Prospective capital juror was excusable
for cause pursuant to State’s challenge based
on his views on capital punishment being a
matter of conscience substantially impairing
his ability to return a death sentence, where
juror stated at least three times that his
religious convictions could or would substantially impair his ability to impose the death
penalty where it was warranted under law,
juror stated multiple times that it would be
‘‘difficult’’ or ‘‘very difficult’’ for him to vote
to impose death penalty, and juror also stated that he was struggling with the question
of the death penalty and that he would have
to follow ‘‘God’s law’’ if it was between ‘‘God’s
law and man’s law.’’ N.C. Gen. Stat. Ann.
§ 15A-1212(8).
Sealed mental health records of fouryear-old victim’s mother contained no information, either exculpatory or impeaching,
that was pertinent, much less material, to
defendant’s guilt of capital murder or death
sentence, for purposes of discovery in prosecution arising from abuse of victim while she
was in defendant’s care for ten days.
117. Jury O97(1)
Prospective capital juror who stated that
he overcame a ten-year heroin addiction and
that he had a ‘‘soft spot in my heart for
people who get addicted’’ was excusable for
cause pursuant to State’s challenge based on
his life experiences substantially impairing
his ability be fair and impartial, where juror
stated several times that his life experiences
would impair his ability to be impartial, juror
became visibly upset and began softly weeping when describing his history of drug misuse, and alleged substance misuse was forecast to be presented in defendant’s case.
N.C. Gen. Stat. Ann. § 15A-1212(8).
118. Jury O131(6)
Trial court acted within its discretion in
not allowing defendant a chance to rehabilitate prospective capital juror who was subject of State’s for-cause challenge asserting
that juror’s life experiences, including prior
history of substance misuse, would substantially impair his ability be fair and impartial
in defendant’s case in which alleged substance misuse was forecast to be presented,
where State’s challenge was supported by
prospective juror’s answers to questions from
the court and the State, and there was no
showing that further questioning by defendant would have elicited different answers by
juror. N.C. Gen. Stat. Ann. § 15A-1212(8).
120. Criminal Law O627.8(4)
Where the trial court conducts an in
camera inspection of certain evidence and
denies the defendant’s request for its production, the evidence should be sealed and
placed in the record for appellate review.
121. Sentencing and Punishment O1684,
1727
Death penalty was not disproportionate
for defendant who was convicted of firstdegree murder by torture of four-year-old
victim who was locked in outbuilding without
a toilet for ten days and who received multiple horrific abusive injuries that included
over 66 bite marks, severe sexual abuse,
multiple whippings all over her body with a
make-shift ‘‘cat o’ nine tails’’ fashioned from
a partially stripped electrical cord, a removed
fingernail, and a fatal head injury, leaving
experienced medical and law enforcement
personnel enraged, ‘‘crazy,’’ nauseous, and
‘‘unable to look’’ when they encountered victim at hospital. N.C. Gen. Stat. Ann.
§§ 15A-2000(d)(2), 15A-2000(e)(9).
122. Sentencing and Punishment O1612
State’s capital sentencing scheme is not
cruel and/or unusual punishment in violation
of the Eighth Amendment and the State
Constitution. U.S. Const. Amend. 8; N.C.
Const. art. 1, § 27; N.C. Gen. Stat. Ann.
§ 15A-2000.
123. Criminal Law O411.23
A person is ‘‘in custody’’ for Miranda
purposes when it is apparent from the totality of the circumstances that there is a formal
arrest or restraint on freedom of movement
of the degree associated with a formal arrest.
146
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
(Per concurring opinion of Berger, J., for a
majority of the court.)
See publication Words and Phrases for
other judicial constructions and definitions.
124. Criminal Law O411.23
A private citizen acting on his or her
own authority cannot take a person into ‘‘custody’’ for Miranda purposes. (Per concurring
opinion of Berger, J., for a majority of the
court.)
See publication Words and Phrases for
other judicial constructions and definitions.
125. Criminal Law O411.23
A ‘‘free to leave’’ standard is not the
appropriate standard for determining whether a defendant was in custody for Miranda
purposes. (Per concurring opinion of Berger,
J., for a majority of the court.)
126. Criminal Law O411.24
Defendant was not ‘‘in custody’’ for Miranda purposes when he made statements to
law enforcement officers at hospital after
nurse tackled him as he attempted to leave
emergency room and placed him in exam
room until officers arrived to discuss the
horrifically injured child that defendant
brought to hospital, where defendant was not
placed under arrest, door to exam room was
open for portions of officers’ interaction with
defendant, both officers left exam room for a
time upon arrival leaving defendant alone
with door open, officers informed defendant
that he was not under arrest, officers did not
accuse defendant of anything or make promises or threats, and defendant was not handcuffed or restrained. (Per concurring opinion
of Berger, J., for a majority of the court.)
See publication Words and Phrases for
other judicial constructions and definitions.
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.
1.
The parties have stipulated pursuant to Rule 42
of the North Carolina Rules of Appellate Proce-
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, Charlotte, and Brandon
L. Garrett, for The Innocence Project, Inc.
and the Wilson Center for Science and Justice, amici curiae.
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 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
dure that the minor victim in this case will be
identified as ‘‘Taylor,’’ a pseudonym.
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
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. 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.
N. C.
147
ern 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 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.’’
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, south-
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
2.
3.
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.
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.’’
148
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891 SOUTH EASTERN REPORTER, 2d SERIES
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.
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 threeyear-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 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
Reyes made the decision that she and Taylor would reside with defendant despite her
awareness of ‘‘incidents of TTT injuries or
harm TTT 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. 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
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.
4.
5.
It is not entirely clear from the record whether
these whippings occurred before or after Reyes
and Taylor resided with defendant, or both.
Reyes’s testimony was inconclusive with regard
to the residential circumstances of Reyes, Taylor,
and defendant when these ‘‘disciplinary’’ incidents transpired.
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
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, 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
6.
Reyes’s testimony indicates slightly different
dates for this event, but the testimony is consis-
N. C.
149
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.
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,
tent that it occurred on a Friday; therefore, it
appears that this event occurred on 2 July 2010.
150
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891 SOUTH EASTERN REPORTER, 2d SERIES
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.
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 TTT 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 de7.
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.
fendant’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. 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 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
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.’’
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
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 TTT 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 Hospital 11 in
Smithfield, ‘‘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[,] TTT complaining of dizziness and on [the] way to the ER [her] eyes
rolled back in [her] head.’’
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 Hospi-
N. C.
151
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
TTT 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 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
tal’’ 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).
152
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
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 TTT
[defendant] fed her a granola bar and Gatorade TTT [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 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 TTT [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 because she
12. This medical center is variously referred to in
witness testimony and record documents as
‘‘UNC Hospital,’’ ‘‘UNC Hospitals,’’ ‘‘UNC Chil-
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 TTT 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 fortyeight 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 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 wooddren’s Hospital,’’ and other similar terms, all
plainly referring to the facility located on Manning Drive in Chapel Hill.
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
en 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
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
N. C.
153
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 [Taylor]
TTTT
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 TTT 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
154
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
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 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 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 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.
N. C.
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
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 firstdegree 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
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
155
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 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,
156
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891 SOUTH EASTERN REPORTER, 2d SERIES
the superior court judge who 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 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
13. In 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
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 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 Constitudisqualify 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.
14. The former District 11 has since been divided
into two districts: 11A and 11B.
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
tion 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 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
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 re-
N. C.
157
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, 289 S.E.2d 335
(1982) (discussing circumstances 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 TTT 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, TTT that would be
material to TTT [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.
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
garding 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.
158
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
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
[1] 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, 220 S.E.2d 283 (1975) (holding that
‘‘[e]very person charged with a crime has an
absolute right to a fair trial TTT [including] a
trial before an impartial judge’’); see also
State v. Williams, 362 N.C. 628, 638, 669
S.E.2d 290 (2008) (quoting Britt for the same
proposition). These fundamental legal principles comport with the provisions of North
Carolina General Statutes Section 15A1223(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.
[2–4] 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, 359 S.E.2d 774 (1987) (emphasis added)
(quoting State v. Fie, 80 N.C. App. 577, 584,
343 S.E.2d 248 (1986) (Martin, J., concurring)). To satisfy such a demonstration, ‘‘substantial evidence’’ must be presented by the
moving party in order to establish that recusal is required. State v. Scott, 343 N.C. 313,
325, 471 S.E.2d 605 (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, 471
S.E.2d 605. 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, 588 S.E.2d 877
(2003).
[5] 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’’
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
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 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. §] 15A1223(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 ex-
N. C.
159
change in which Judge Ammons expressly
observed and discussed that one of the questions under his consideration 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 TTT 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.
[6] 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 TTT
defendant’s capital case.’’ ‘‘Pertinent’’ means
‘‘relevant in the context of the crime
charged.’’ State v. Bogle, 324 N.C. 190, 198,
376 S.E.2d 745 (1989) (quoting State v.
Squire, 321 N.C. 541, 548, 364 S.E.2d 354
(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 evidence which is
somehow relevant or pertinent to sentencing.
See State v. Warren, 347 N.C. 309, 325, 492
S.E.2d 609 (1997), cert. denied, 523 U.S. 1109,
118 S.Ct. 1681, 140 L.Ed.2d 818 (1998).
[7, 8] 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,
160
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
359 S.E.2d 774 (emphasis added) (quoting
Fie, 80 N.C. App. at 584, 343 S.E.2d 248
(Martin, J., concurring)), and that such
grounds exist through the production of
‘‘substantial evidence,’’ Scott, 343 N.C. at 325,
471 S.E.2d 605. Where a ‘‘[d]efendant carries
the burden to produce substantial evidence
TTT mere speculation or conjecture is not
sufficient to satisfy this requirement.’’ State
v. Polke, 361 N.C. 65, 72, 638 S.E.2d 189
(2006) (citing State v. Anderson, 350 N.C.
152, 183, 513 S.E.2d 296, cert. denied, 528
U.S. 973, 120 S.Ct. 417, 145 L.Ed.2d 326
(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 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, 607 S.E.2d 607 (emphasis
added), cert. denied, 546 U.S. 850, 126 S.Ct.
109, 163 L.Ed.2d 121 (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
[9] 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 pros-
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
ecution, 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 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, 372 S.E.2d 517 (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.
[10] 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, 471 S.E.2d
605. 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, 461 S.E.2d 655 (1995)
(emphasis added); see also Scott, 343 N.C. at
326, 471 S.E.2d 605. However, under the
current version of the Code of Judicial Conduct which applies in defendant’s case, Canon
3(C) 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 TTT [t]he judge has a personal bias or
prejudice concerning a party[.]’’ Code of Ju-
N. C.
161
dicial 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, 359 S.E.2d 774. 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
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, 359 S.E.2d 774.
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 defen-
162
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891 SOUTH EASTERN REPORTER, 2d SERIES
dant 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.
[11–13] 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, 136 S.Ct. 1899, 195
L.Ed.2d 132 (2016). In detecting the existence of a trial judge’s inability to preside
over a case due to bias, 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, 136 S.Ct. 1899. 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, 136 S.Ct. 1899.
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, 136 S.Ct. 1899. 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 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, 136 S.Ct. 1899.
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, 136 S.Ct.
1899. 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, 129 S.Ct.
2252, 173 L.Ed.2d 1208 (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
dence
of
photographic
evi-
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
STATE v. RICHARDSON
N. C.
Cite as 891 S.E.2d 132 (N.C. 2023)
these photographs to be displayed before the
jury on a sixty-inch monitor,16 with the ability for witnesses to utilize enlarged and closeup 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[,] TTT 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.
[14–16] ‘‘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, TTT 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 Rule 403 is reviewed
for abuse of discretion. State v. Roache, 358
N.C. 243, 284, 595 S.E.2d 381 (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, 372 S.E.2d 523
(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, 273 S.E.2d 273
(1981).
16. The monitor screen’s diagonal measurement
was sixty inches. The apparatus was twenty-nine
163
[17–20] Photographs are allowed to prove
‘‘the character of the attack made by defendant upon the deceased,’’ State v. Gardner,
228 N.C. 567, 573, 46 S.E.2d 824 (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, 372 S.E.2d
523. ‘‘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, 365 S.E.2d 615 (1988); State v. King, 299
N.C. 707, 264 S.E.2d 40 (1980)); see also
State v. Williams, 334 N.C. 440, 460, 434
S.E.2d 588 (1993), remanded for reconsideration on other grounds, 511 U.S. 1001, 114
S.Ct. 1365, 128 L.Ed.2d 42 (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, 372 S.E.2d 523. ‘‘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. Phipps, 331 N.C. 427, 454, 418
S.E.2d 178 (1992); see also Hennis, 323 N.C.
at 284, 372 S.E.2d 523.
[21–25] ‘‘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, 372 S.E.2d 523. 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 duplicainches high and fifty-three inches wide.
164
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
tive 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, 440
S.E.2d 98 (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, 372 S.E.2d 523.
‘‘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, 372 S.E.2d 523 (alteration
in original) (quoting Temple, 302 N.C. at 14,
273 S.E.2d 273).
Defendant relies heavily on Hennis, which
defendant characterizes as ‘‘a triple 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 thirtyfive 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, 372 S.E.2d 523. 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, 372 S.E.2d
523. Moreover, after the pathologists and
other witnesses utilized the projected en17. A third child, who was an infant, was discovered unharmed in a crib. State v. Hennis, 323
larged 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 used ‘‘for the purpose of illustrating and explaining the testimony of the
various witnessesTTTT [and that they were
not to] be considered TTT for any other
purpose.’’
Id. (alterations in original) (emphasis added).
[26] 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
N.C. 279, 281, 372 S.E.2d 523 (1988).
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
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 TTTT [on]
an unusually large screen on a wall directly over defendant’s head [and in addition]
the thirty-five 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, 372 S.E.2d 523 (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.
[27] 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
N. C.
165
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 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, 372 S.E.2d 523. 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 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 presenta-
166
N. C.
891 SOUTH EASTERN REPORTER, 2d SERIES
tion that in itself quite probably enhanced
the prejudicial impact of the’’ photographic
evidence. Id. at 282, 286, 372 S.E.2d 523.
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 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, 372 S.E.2d 523
(second alteration in original) (quoting Temple, 302 N.C. at 14, 273 S.E.2d 273).
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, 372 S.E.2d 523. 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
TTT 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, 372 S.E.2d 523
(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 illus-
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
tration 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 TTT 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 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.
[28] 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
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
N. C.
167
Exhibit 26 during Butler’s testimony, however, the only two questions posed by the State
to Butler were whether Butler could identify
the person 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 some 18 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 during Williams’s testimony. An
express entry regarding the operation of
Rule of Evidence 403 was made thereafter in
the record.
[29] 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
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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891 SOUTH EASTERN REPORTER, 2d SERIES
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 TTT from the
redness, from the lacerations, from the cuts,
TTT 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 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, 501 S.E.2d
334 (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, 372 S.E.2d
523.
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
TTT 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
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
STATE v. RICHARDSON
Cite as 891 S.E.2d 132 (N.C. 2023)
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.’’
[30] 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.
[31] 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 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
N. C.
169
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.
[32] Defendant also notes that expert
witness McNeal-Trice, who testified 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
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