1. Appeal and Error_invited error_request to publish exhibit to
jury_reference to polygraph
A first-degree murder defendant waived her right to object
to the failure to redact a reference to a polygraph from one of
the exhibits where defendant requested that the exhibit be
published to the jury even though the court warned that it was
not properly redacted. If admission of this evidence was error,
it was invited error.
2. Constitutional Law_State's failure to disclose exculpatory
evidence_prejudicial
The State violated a first-degree murders defendant's due
process rights by failing to disclose cellular telephone records
to defendant until after the trial where the trial court found
that the records merely corroborated other evidence, but the
records also lent crucial support to a witness whose credibility
was questioned by the State. Given the court's finding at the
motion for appropriate relief hearing that “very little
additional evidence” could have changed the verdict and the
jury's obvious difficulties in resolving the issues, it cannot be
said that the State's failure to disclose exculpatory evidence
did not create a reasonable probability of a different verdict.
Attorney General Roy Cooper, by Assistant Attorney General T.
Brooks Skinner, Jr., for the State.
Marjorie S. Canaday for defendant appellant.
TIMMONS-GOODSON, Judge.
On 23 November 1999, a jury found Cindy Hammer Stevenson
Barber ("defendant") guilty of first-degree murder in the death of
her husband, Tony Charles Stevenson ("decedent"). Evidence at
trial tended to show the following: On the evening of 31 January1996, defendant telephoned 911 emergency assistance and informed
the dispatcher that decedent had shot himself. Responding to the
call, Alexander County Sheriff's Sergeant Arthur Duncan ("Sergeant
Duncan") arrived at defendant's residence, where he discovered
decedent lying in a recliner in the living room. Decedent was
turned on his left side in the recliner, which was in a horizontal
position. Decedent held a .380 semi-automatic pistol loosely in
his left hand with the barrel pointing towards his head, which was
covered in blood on the right side. As Sergeant Duncan approached
him, decedent was gasping, looking at the gun, and jerking his
hand. Sergeant Duncan immediately seized decedent's wrist and
removed the weapon, which was loaded and in a cocked position.
Sergeant Duncan observed cupcakes on the floor of the living room,
and defendant explained that she had been frosting cupcakes for her
daughter's birthday when decedent shot himself. Upon further
inspection of the residence, Sergeant Duncan discovered the seven-
year-old son of defendant and decedent asleep in bed. No one else
was in the home. While Sergeant Duncan secured the residence,
defendant remained on the telephone with the emergency dispatcher.
Defendant was visibly upset and "doing a lot of yelling and
cussing." Emergency medical technicians soon arrived and removed
decedent's body.
Dr. John M. Bauer ("Dr. Bauer"), the pathologist who performed
decedent's autopsy, testified for the State. Dr. Bauer stated that
he found a close contact gunshot wound to decedent's right temple,
about an inch above and in front of the right ear. The track of
the bullet was from right to left, straight and slightly downwardat five degrees. According to Dr. Bauer, the wound was almost
immediately fatal, and decedent would have had no motor control of
his extremities or any bodily function after the bullet entered
decedent's brain.
Linda Cox ("Cox"), a friend of decedent and defendant,
testified that she hosted a party attended by defendant and
decedent approximately six months before decedent's death. Cox
stated that defendant and decedent arrived and departed from the
party separately, and that decedent appeared to be "pretty upset"
and "kind of mad." Cox also noted that defendant flirted with
several men at the party, and that decedent consumed an excessive
amount of alcohol.
Steve Fox ("Fox"), decedent's cousin, further testified on
behalf of the State. Fox stated that he was also present at Cox's
party, when defendant approached him and asked him whether he would
kill decedent for her. According to Fox, who was "shocked" and
declined defendant's request, defendant appeared to be "aggravated
and mad" at the time. Fox did not know whether or not defendant
was joking when she made her request. Fox later observed defendant
leaving the party with Ricky Speaks, who testified that he and
defendant engaged in sexual intercourse later that evening.
Several witnesses for the State testified as to decedent's
actions and general state of mind on the days leading up to his
death. Andrew Stevenson ("Stevenson"), decedent's brother,
recalled a telephone conversation he had with decedent on 28
January 1996, in which decedent told Stevenson he was considering
moving to Florida, where Stevenson resided. Stevenson testifiedthat he offered "to let [decedent] move down, bring [defendant]
down, bring [their children] and move in [Stevenson's] home and get
a job and start over from scratch, a whole new life." Decedent
also spoke with Stevenson of his frustration with defendant and her
drug addiction.
Amy Pennell ("Pennell"), a friend of defendant, testified that
on the evening of decedent's death, she telephoned decedent at his
residence several times and informed him that she planned to take
out a warrant for his arrest for communicating threats against her.
Pennell explained that she had been "drinking a lot" when she
called decedent. Pennell could not remember her exact words to
decedent, nor could she recall, beyond the fact that it was
nighttime, the times at which she called. Pennell stated that she
continued to call decedent, who responded by "hanging up on [her]."
The State presented further expert testimony by SBI Agent
Peter Duane Deaver ("Agent Deaver"). Agent Deaver, an expert in
blood stain pattern analysis and firearms, testified that, in order
to restore a .380 semi-automatic pistol to a cocked position, one
must maintain a strong grip on the weapon. Agent Deaver further
stated that the type of blood spatter found on decedent's gun
rarely occurs in cases of self-inflicted wounds. Finally, Agent
Deaver testified that the bloodstains on decedent's recliner were
inconsistent with the reported position of decedent's body in the
chair.
Defendant presented evidence at trial tending to show the
following: On 23 January 1996, decedent visited his physician, Dr.
Alan Forshey ("Dr. Forshey"), in order to obtain a refill forXanax, a prescribed medication decedent took in order to manage his
substance abuse problems. Decedent had previously informed Dr.
Forshey that "as long as [decedent] took the Xanax he could stay
off of alcohol and . . . be pleasant and less angry." Dr. Forshey
testified that decedent had an "addictive personality," with a
history of depression, tendinitis and hypertension, and that during
the consultation, decedent told Dr. Forshey "[defendant] had left
him approximately in November . . . . [and decedent] had four
children to raise and that he was working two different jobs."
Decedent further informed Dr. Forshey he had not taken his
medication for a month, and that he was drinking alcohol in the
evenings.
Defendant presented testimony by William S. Best ("Best"), a
firearms expert, who demonstrated several positions in which
decedent could have shot himself in the right temple with his left
hand without difficulty. Best also characterized defendant's
theory that traces of blood may be found inside the barrel of a
weapon due to the partial vacuum created whenever a gun is fired as
"a very reasonable explanation."
Defendant also presented evidence by several witnesses of
decedent's actions and demeanor before his death. Edward Jennings
("Jennings"), decedent's attorney, testified that decedent and
defendant consulted him at his office on 30 January 1996 regarding
some traffic citations issued to decedent. According to Jennings,
defendant was "very supportive" of decedent, who appeared
"depressed and somewhat despondent" over the citations. Gary
Harrington ("Harrington"), decedent's co-worker, testified thatdecedent was prone to "dramatic mood swings" and became
"really
depressed" when he consumed alcohol. On the day he died, decedent
told Harrington that "he wasn't going back to jail for nobody [sic]
and that he'd shoot his self [sic] if he had to." Finally,
decedent's friend Michael Caldwell ("Caldwell"), testified that he
spoke with decedent on the night of his death. Decedent was upset
and threatening suicide, telling Caldwell, "I'm not going back to
prison. I'll blow my brains out, but I'm not going back to
prison." Caldwell also stated that decedent generally carried a
gun. Defendant did not testify.
The jury began deliberations on Friday afternoon. On Monday
afternoon, the jury informed the court that it was deadlocked on a
vote of nine to three, with no movement. The following morning,
the Tuesday before the Thanksgiving holiday, two jury members
reported deaths of immediate family members. The jury refused the
court's offer of a morning break from deliberations, however,
informing the court that it could reach a verdict if granted five
more minutes. Shortly thereafter, the jury returned its verdict,
finding defendant guilty of first-degree murder in the death of her
husband. Accordingly, the trial court sentenced defendant to life
imprisonment without parole. Thereafter, defendant filed a motion
for appropriate relief, which the trial court denied. Defendant
now appeals her conviction and the denial of her motion for
appropriate relief to this Court.
_______________________________________________________
While presenting nine assignments of error for our review, the
dispositive issues are whether the trial court committed reversibleerror in failing to redact a reference to defendant's polygraph
examination contained in an exhibit tendered to the jury and
denying defendant's motion for a mistrial.
[1]Defendant first argues the trial court erred in failing to
redact a reference to a polygraph examination contained in one of
the exhibits tendered to the jury. At the beginning of defendant's
trial, the court granted the State's motion in limine to prohibit
any reference to a polygraph test administered to defendant by law
enforcement officers, the results of which were favorable to
defendant. In publishing the typed report of defendant's 2 April
1996 statement to the jury, however, the State failed to redact the
following sentence: "Details of the polygraph examination conducted
by SA J. L. Jones will be dictated to this file by SA J. L. Jones."
Defendant now contends that this sentence may have given the jury
the false and prejudicial impression that defendant had failed a
polygraph examination.
We note that defendant did not object to admission of the
evidence at trial, nor to its submission to the jury. In fact,
defendant requested that the exhibit be published to the jury,
although the trial court warned that "there was a part of the
defendant's statement that was not properly redacted." The trial
court further advised both parties to "[u]nderstand that once
you've sent these exhibits out, if later on you discover that there
was something in them that wasn't supposed to come in . . . you
each have waived that."
North Carolina General Statutes section 15A-1443(c) states
that "[a] defendant is not prejudiced by the granting of reliefwhich he has sought or by error resulting from his own conduct."
N.C. Gen. Stat. § 15A-1443 (c) (1999). Thus, a defendant who
invites error has waived his right to all appellate review
concerning the invited error, including plain error review. See
State v. Roseboro, 344 N.C. 364, 373, 474 S.E.2d 314, 318 (1996).
In the instant case, defendant requested that the exhibit
containing the polygraph evidence be submitted to the jury, despite
explicit warnings by the trial court that defendant's statement had
not been properly redacted. Thus, if the admission of such
evidence to the jury was error, it was invited error, and defendant
has therefore waived her right to appellate review of this issue.
We overrule defendant's first assignment of error.
[2]Defendant next argues the trial court erred by denying
defendant's motion for a mistrial based on evidence of cellular
phone records first disclosed to defendant by the State after her
trial. Citing Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215
(1963), defendant contends the State's failure to reveal the phone
records violated defendant's due process rights and asserts that,
had the phone records been introduced at trial, there is a
reasonable probability that the result of the trial would have been
different. See State v. Campbell, 133 N.C. App. 531, 541, 515
S.E.2d 732, 739, disc. review denied, 351 N.C. 111, 540 S.E.2d 370
(1999). At the hearing on defendant's motion for appropriate
relief, the trial court found that, although the phone records were
exculpatory and unavailable to defendant, they were ultimately
immaterial because they merely corroborated other evidence. Thetrial court therefore denied defendant's motion. We conclude that
the State's failure to disclose the phone records was error which
prejudiced defendant, thereby entitling her to a new trial.
The cellular phone records at issue reveal that, on the night
of decedent's death, Amy Pennell repeatedly telephoned decedent's
residence, making two calls at 9:54 p.m. and 9:55 p.m., and six
more calls between 1:49 a.m. and 2:41 a.m following decedent's
death. Defendant argues these phone records were exculpatory, in
that they bolstered Pennell's testimony that she threatened
decedent with arrest shortly before his death. Such evidence in
turn supported defendant's assertions at trial that decedent killed
himself because he was despondent and agitated at the thought of
returning to prison. The State concedes it should have disclosed
the cellular phone records to defendant, but nevertheless argues
that the records merely corroborated other testimony and therefore
did not prejudice defendant. We cannot agree.
"[T]he suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution."
Brady,
373 U.S. at 87, 10
L. Ed. 2d at 218.
Prejudicial error is determined by examining the
materiality of the evidence. See
State v. Howard
, 334 N.C. 602,
605, 433 S.E.2d 742, 744 (1993). Evidence is material if there is
a reasonable probability that, had the evidence been disclosed to
the defendant, the result of the proceeding would have been
different. See id. at 605-06, 433 S.E.2d at 744. Reasonableprobability is "a probability sufficient to undermine confidence in
the outcome."
United States v. Bagley
, 473 U.S. 667, 682, 87 L.
Ed. 2d 481, 494 (1985).
At trial, Pennell could only recall that "it was dark" and
"nighttime" when she telephoned decedent on the evening of his
death. On cross-examination, Pennell agreed that she began
telephoning decedent between 9:00 p.m. and 12:00 a.m., but could
remember no further details of the calls. Defendant telephoned for
emergency assistance at approximately 11:00 p.m. Although the
State never directly contradicted Pennell's assertion that she
spoke with decedent the night of his death, the State did cast
general aspersions upon Pennell's credibility. Referring to
Pennell in its closing argument, the State advised the jury to
"consider who these folks are and what they're telling you," adding
that, "[i]t's your jobs to determine who's telling you the truth."
Furthermore, Chief Deputy Bentley testified that he did not know
whether or not his office had ever received the cellular phone
records, but that he could "not recall" having ever seen them.
Thus, because the phone records show the exact times and duration
of Pennell's calls, they were not merely corroborative, but lend
crucial factual support to somewhat nebulous testimony by a witness
whose credibility was questioned by the State.
At defendant's motion for appropriate relief hearing, the
trial court found that "this case could have also resulted in a
jury verdict of not guilty. It would have taken very little
additional evidence to result in the jury returning a verdict ofnot guilty." Moreover, in her offer of proof, defendant submitted
affidavits from two jurors confirming that, had the phone records
been introduced at trial, it "would have" and "could have"
affected the verdict. Given the court's finding that "very little
additional evidence" could have changed the verdict and the jury's
obvious difficulties in resolving the issues, we cannot say that
the State's failure to disclose exculpatory evidence did not create
a reasonable probability of a different verdict. Accordingly, the
evidence was material to defendant.
The State's failure to turn over evidence to defendant that
was both favorable and material does not guarantee defendant a new
trial, unless the failure was prejudicial to defendant. See State
v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). A
violation of defendant's constitutional rights is prejudicial
unless this Court "finds that it was harmless beyond a reasonable
doubt." N.C. Gen. Stat. § 15A-1443(b) (1999).
We have determined that cellular phone records held by the
State were both favorable and material to defendant, thereby
violating defendant's constitutional right to have the evidence.
See State v. McGill, 141 N.C. App. 98, 103-04, 539 S.E.2d 351, 356
(2000). The State has the burden of showing the error was harmless
beyond a reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b).
The State has failed to meet such burden, and defendant is
therefore entitled to a new trial.
We have carefully considered defendant's remaining assignmentsof error and find them to be without merit. Because
of the State's
failure to disclose exculpatory evidence to defendant, we hold
defendant is entitled to a new trial.
New trial.
Chief Judge EAGLES and Judge THOMAS concur.
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