State v. Triplett

NO. COA13-1289

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

STATE OF NORTH CAROLINA

v. Wilkes County
Nos. 09 CRS 54801, 10 CRS 405
JAMES DOUGLAS TRIPLETT

Appeal by defendant from judgment entered 18 February 2013

by Judge Edgar B. Gregory in Wilkes County Superior Court.

Heard in the Court of Appeals 9 April 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General John H. Watters, for the State.

Appellate Defender Staples S. Hughes, by Assistant
Appellate Defender David W. Andrews, for defendant-
appellant.

McCULLOUGH, Judge.

James Douglas Triplett (“defendant”) appeals from the

judgment entered upon his conviction for first degree felony

murder. For the following reasons, we grant a new trial.

I. Background

On 19 April 2010, a Wilkes County Grand Jury indicted

defendant on charges of first degree murder, robbery with a

dangerous weapon, and first degree burglary. Following various

pretrial motions by defendant, defendant’s case came on for jury
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trial in Wilkes County Superior Court on 4 February 2013, the

Honorable Edgar B. Gregory, Judge presiding.

The evidence at trial tended to show that after a day of

drinking and drug use, defendant, his brother Eddie Triplett,

and two other men, Ben Watson and Dillon Walsh, went to the

residence of Bruce Barnes (“victim”) on the evening of 9

December 2009 in search of drugs. While present at victim’s

residence, the men got into a skirmish with victim, during which

defendant fatally stabbed victim.

At trial, the State prosecuted the case on the theory that

defendant, Eddie, Ben, and Dillon had planned to rob victim of

his drugs and defendant killed victim in perpetration of the

robbery. Defendant, on the other hand, maintained throughout

trial that he was ignorant of any plan to rob victim. Defendant

testified that he agreed to go to victim’s house to get high and

passed out on the way to victim’s house. Defendant did not

recall anything from the ride to victim’s house. Defendant

testified he woke up and came to when he heard Dillon holler

“He’s got a gun. He’s got a gun.” At that point, defendant

realized Eddie and Dillon were in a fight with victim and he

entered the fight. Defendant testified he did not intend to
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kill victim but stabbed victim to protect Eddie, Dillon, and

himself.

On 18 February 2013, the jury returned verdicts finding

defendant guilty of robbery with a dangerous weapon, second

degree burglary, and first degree murder under the first degree

felony murder rule. The trial court then arrested judgment on

defendant’s convictions for robbery with a dangerous weapon and

second degree burglary and entered judgment on defendant’s

conviction for first degree felony murder. Defendant was

sentenced to life imprisonment with the possibility of parole.

Defendant gave oral notice of appeal in open court following

sentencing.

II. Discussion

Now on appeal, defendant raises the following two issues:

whether the trial court erred by: (1) preventing defendant from

cross-examining his sister, Teresa Ogle, with a recording of a

voicemail message she left for defendant’s other sister in order

to attack Ogle’s credibility; and (2) allowing the State to use

defendant’s silence against him.

Voicemail Message

At trial, defendant’s sister Teresa Ogle testified as a

witness for the State. During her testimony, Ogle explained
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that defendant lived with her in a single wide mobile home on

family land at the time of the incident in early December 2009.

Although Ogle owned the mobile home, another of defendant’s

sisters, Connie Jennings, owned the land.

In response to questioning by the State on direct

examination, Ogle described what happened the night of 9

December 2009 when defendant returned home after the

altercation. On the whole, Ogle’s testimony was damaging to

defendant.

Specifically, Ogle testified that she worked third shift

security and was getting ready for work when defendant came home

on 9 December 2009 at approximately 10:40 p.m. Defendant

entered the mobile home alone, but Eddie, Ben, and Dillon

followed closely behind. Ogle recalled that Eddie had been

stabbed in the leg and defendant’s clothes were bloody. At

first, defendant claimed he shot a deer and, while trying to cut

the deer’s throat, had stabbed Eddie in the leg. Defendant,

however, quickly changed his story, admitting he killed a man

and stating he was no different than Jack Keller, defendant’s

grandfather who killed defendant’s grandmother. As the men

discussed what they should do with their clothes, Ogle overheard

defendant tell the other men they were going to burn their
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clothes in a barrel. Yet, Ogle did not see the men dispose of

their clothes because she left for work. Ogle testified that as

she was leaving, defendant gave her two intertwined pot holders.

Ogle claimed she did not know what was inside of the pot

holders, but admitted she disposed of them over the side of a

bridge on her way to work.

Ogle testified that defendant later told her that he knew

Ben had planned to rob victim and that he took a knife from her

kitchen before they went to victim’s residence because he knew

victim had a gun. Ogle confirmed that a large knife was in fact

missing from her kitchen knife set.

Ogle additionally testified that sometime after defendant

was arrested and charged with victim’s murder, she received a

phone call from defendant. Ogle recalled that during their

conversation, defendant indicated he did not want her to testify

against him. When Ogle said she would tell the truth, defendant

began cussing, indicated that he wanted her to lie, and hung up.

On cross-examination, the defense sought to attack Ogle’s

credibility with questions concerning statements made by Ogle to

family members that were inconsistent with her trial testimony.

The defense’s questions tended to suggest that Ogle played a

larger role in destroying evidence following victim’s death but
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that Ogle was lying on the witness stand to protect herself.

The defense also inquired into Ogle’s mental health, drug use,

and past sexual activity. When the defense asked Ogle if she

remembered engaging in risky sexual behavior, the State objected

and the jury was excused while voir dire was conducted.

Prior to the jury’s return following voir dire and a

morning break, the defense informed the court that it also

intended to cross-examine Ogle with a recording of a voicemail

message she left for Shay Waddell, another of defendant’s

sisters. With the jury still out, the court instructed the

defense to play the recording of the message. In the message,

Ogle made hostile statements toward Shay, calling her names,

denouncing her relationship with her family, and threatening to

call “the law” and the D.A.

Upon inquiry by the court, the defense explained the

message was left on 5 December 2011, after the charges were

brought against defendant and around the time Ogle made

allegations that other members of defendant’s family were

threatening her to keep her from testifying. The defense

contended the message suggested Ogle had something to hold over

the rest of defendant’s family’s head through her testimony in

defendant’s case and argued it should be able to cross-examine
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Ogle with the message to demonstrate Ogle’s animus and bias

towards defendant and their family.

In response to the defense’s argument, the State explained

that it believed the message was left in response to the

family’s eviction of Ogle from the family land and was not

related to the charges against defendant. The State further

explained that as a result of the eviction and surrounding

events, Connie Jennings, the sister who owned the land, had been

charged with interfering and intimidating a State’s witness for

her actions against Ogle. The State then objected to the

introduction of the message, contending it was “unrelated to the

charges [in the present case] and more related to the charges of

intimidating the State’s witness as well as the eviction

process.”

In explaining his opinion that the evidence should not come

in under Rule 403, the trial judge indicated that evidence

regarding what the family has done would be prejudicial to

defendant, who was not responsible for the eviction or message.

The court explained that introducing the message would invite

evidence of the eviction that is not relevant and could mislead

and confuse the jury. The trial judge then issued the following

ruling:
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I rule that this tape may not be played
before the jury; that I really have problems
with Rule 402 and whether it’s relevant. I
rule under 403 that the probative value is
substantially outweighed by the confusion of
the issues involving her eviction and the
problems that she might have had with her
sisters; that there is no -- it’s not fair
to tie whatever problem she had with her
sisters to the defendant; that may be
prejudicial to the defendant. He may be
prejudiced by allowing that kind of
evidence.

I think the same kind of things can be asked
of her, whether she has hard feelings and
all of that sort of thing. But I rule --
and I sustain the objection to the tape.
And the tape will be made part of the
record, if you would like for it be, but it
may not be played before the jury.

In response to the trial court’s ruling, the defense again

requested that it at least be able to play the last portion of

the message where Ogle threatened “to call the law and to go to

the District Attorney if they keep messing with her[.]” The

defense reiterated its argument that this threat was relevant

for impeachment purposes because it showed Ogle’s bias and

Ogle’s willingness to do whatever it takes to hurt defendant and

his family.

Yet, the trial court stood firm, stating:

I decline that request for the same reasons,
that I think it would open up an area that
would be confusing to the jury; that you may
ask her about any problems, if you desire,
about her feelings about her family. But
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anything about an eviction, it seems to me
that that are things that don’t relate to
the defendant necessarily, and it’s possible
that the jury could be prejudiced towards
the defendant by something that his sisters
did that he didn’t even know about.

. . . .

It opens up areas that are not necessary and
are confusing. And under Rule 403 and the
balancing test, I’m going to keep it out as
the gatekeeper of the evidence.

Despite the court’s ruling, defendant made it clear that

“it [was his] wish that [the message] be played, notwithstanding

whatever prejudice may be possible, and that it is his request

that it be done and that he desires that it be played at his

murder trial.”

Thereafter, in response to questions concerning Ogle’s

relationship with her family, Ogle testified that she had no

hard feelings towards defendant or her family for supporting

defendant. Ogle stated she loved her family and they loved her

too.

Now on appeal, defendant contends Ogle was a key witness

and the trial court erred in refusing to allow his defense to

cross-examine her with the message in order to show her bias and

attack her credibility. Upon review, we agree with defendant.

As our Supreme Court has explained,
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North Carolina Rule of Evidence 611(b)
provides that “[a] witness may be cross-
examined on any matter relevant to any issue
in the case, including credibility.” Id.,
Rule 611(b) (2005). However, such evidence
may nonetheless be excluded under Rule 403
if the trial court determines “its probative
value is substantially outweighed by the
danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of cumulative
evidence.” Id., Rule 403. We review a
trial court's decision to exclude evidence
under Rule 403 for abuse of discretion.
State v. Peterson, 361 N.C. 587, 602-03, 652
S.E.2d 216, 227 (2007) (citing State v. Al-
Bayyinah, 359 N.C. 741, 747-48, 616 S.E.2d
500, 506-07 (2005), cert. denied, 547 U.S.
1076, 126 S.Ct. 1784, 164 L.Ed.2d 528
(2006)). An abuse of discretion results
when “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. In our review, we
consider not whether we might disagree with
the trial court, but whether the trial
court's actions are fairly supported by the
record.” Id. (citations and internal
quotation marks omitted).

State v. Whaley, 362 N.C. 156, 159-60, 655 S.E.2d 388, 390

(2008). We are, however, mindful that “criminal defendants . .

. must be afforded wide latitude to cross-examine witnesses as

to matters related to their credibility.” Id. at 161, 655

S.E.2d at 391.

As detailed above, in this case the trial court indicated

it had serious doubts as to whether the message was relevant
 -11-
and, thus, admissible under Rule 402. The trial court then

excluded the evidence under Rule 403, finding the probative

value of the message was substantially outweighed by confusion

of the issues and unfair prejudice to defendant.

First, relevant evidence is defined as “evidence having any

tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” N.C. Gen.

Stat. § 8C-1, Rule 401 (2013). Upon review in this case, we

hold the message relevant to attack Ogle’s credibility and show

Ogle’s bias towards defendant and defendant’s family.

As the parties explained, the message arose as a result of

the family’s efforts to persuade Ogle from testifying against

defendant, including Ogle’s eviction from the family land.

Although the message would certainly be relevant in the case of

intimidating a State’s witness and the foreclosure proceedings,

as argued by the State, the message is also relevant in the

present action to show possible bias by Ogle against defendant.

Moreover, the message is clearly relevant to attack Ogle’s

credibility as it calls Ogle’s testimony that she held no hard

feelings against her family into doubt.
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Second, Rule 403 requires the trial court to weigh the

probative value of the evidence against “the danger of unfair

prejudice, confusion of the issues, or misleading the jury[.]”

N.C. Gen. Stat. § 8C-1, Rule 403 (2013). In this case, because

the trial court questioned the relevance of the message, the

trial court could not have properly weighed the probative value

of the message against the dangers of unfair prejudice and

confusion.

Moreover, defendant requested for a second and third time

that the message be allowed into evidence despite the potential

prejudice to his case. We find it within defendant’s right to

bear the risk of prejudice and cross-examine Ogle with the

message. As our Supreme Court explained in State v. Lewis, 365

N.C. 488, 496, 724 S.E.2d 492, 498 (2012),

[g]enerally, the trial court has broad
discretion in determining whether to admit
or exclude evidence, and we are sympathetic
to the trial court's legitimate worry that
the evidence could complicate the case to
defendant's detriment . . . . However, we
have long held that “[c]ross-examination of
an opposing witness for the purpose of
showing . . . bias or interest is a
substantial legal right, which the trial
judge can neither abrogate nor abridge to
the prejudice of the cross-examining party.”

Id. at 496, 724 S.E.2d at 498 (quoting State v. Hart, 239 N.C.

709, 711, 80 S.E.2d 901, 903 (1954) (citations omitted)). Where
 -13-
the defense believes the risk of informing the jury of

potentially prejudicial evidence is worth taking, any error that

results would be invited by defendant. Id. at 496, 724 S.E.2d

at 498-99 (citing N.C. Gen. Stat. § 15A-1443(c)). Thus, as our

Supreme Court held in Lewis, “[g]iven the importance this Court

places on a party’s right to cross-examine an opposing witness

for bias,” Id. at 496-97, 724 S.E.2d at 499, we hold it was the

defense’s decision to chance the risk of prejudice and the trial

court erred by excluding the evidence.

We further hold defendant was prejudiced by the trial

court’s error. Ogle was a key witness for the State and the

only witness that testified defendant was aware of the plan to

rob victim. Without evidence that defendant was aware of the

plan to rob victim, it is likely the jury would not have found

defendant guilty of robbery and burglary, the felonies

underlying defendant’s conviction for first degree felony

murder.

In arguing the trial court did not err by excluding the

message, the State cites this Court’s decision in State v.

Withers, 111 N.C. App. 340, 432 S.E.2d 692 (1993). This Court

described the situation in Withers as follows,

[D]efendant[, who was charged with larceny
and possession of stolen property,]
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attempted to introduce a tape recording to
impeach the testimony of Rita Jones and to
show her motive to testify against him. On
direct examination, Ms. Jones testified that
she did not threaten her husband or anyone
at the Stanley Rescue Squad. Defendant,
however, offered a telephone answering
machine tape recording [from her husband’s
voicemail] in which Ms. Jones profanely
threatened to go to the authorities in
Lincolnton and report her husband, who had
been present when the property had been
taken and when it had been divided.

Id. at 346-47, 432 S.E.2d at 696-97. This Court then affirmed

the trial court’s decision to exclude the recording, explaining

that

[w]hile the tape in question directly
contradicts Ms. Jones' earlier testimony
denying making threats to “get back” at her
husband, the tape does not tend to prove or
disprove any of the essential elements of
either crime charged. Furthermore, the
threats made on the tape are not directed at
defendant. On direct examination,
defendant's witness, Joyce Jones, testified
to the threat which Ms. Jones made, so that
the impeaching evidence was disclosed to the
jury. Considering these factors and the
extreme profanity contained on the tape, we
believe the tape posed a danger of
misleading the jury, causing undue delay and
being cumulative.

Id. at 348, 432 S.E.2d at 697.

While both cases involve the exclusion of a recorded

message under Rule 403 that a defendant sought to introduce to

attack the credibility of a key witness, we find the present
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case distinguishable in one key respect. Among the factors

considered in Withers, this Court noted the exclusion of the

evidence was not error because the impeachment evidence came in

through the testimony of another witness. See id. In the

present case, however, the evidence defendant sought to admit

was never introduced. Although the State is correct in

asserting the evidence tended to show that defendant’s family

was “mad” at Ogle, there was no evidence that Ogle reciprocated

those feelings. In fact, Ogle testified she loved her family

and had no hard feelings towards them.

Right to Remain Silent

During the State’s cross-examination of defendant, the

State questioned defendant on his failure to mention self-

defense to investigators early in the investigation. The State

then argued to the jury during closing that defendant “waited

till he heard the State’s case and then concocted his story to

try and navigate the waters to see if he could come up with some

story that [the jury] might buy and spare justice for him.”

Now, in defendant’s second issue on appeal, defendant

contends the trial court improperly allowed the State to use his

silence against him. Having already determined defendant is

entitled to a new trial based on the trial court’s refusal to
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allow defendant to cross-examine Ogle with the recorded message,

we do not address the merits of this second issue as it is

unclear from the record before this Court whether the statements

were made before or after defendant was in custody and

Mirandized. We leave this issue for the trial court to resolve

in defendant’s retrial.

III. Conclusion

For the reasons discussed above, we hold defendant is

entitled to a new trial.

New trial.

Judges ELMORE and DAVIS concur.