State v. Carvalho , 243 N.C. App. 394 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1251
Filed: 6 October 2015
Union County, Nos. 04 CRS 56522, 05 CRS 17
STATE OF NORTH CAROLINA
v.
JOHN JOSEPH CARVALHO, II
Appeal by defendant from judgment entered 7 April 2014 by Judge Christopher
W. Bragg in Union County Superior Court. Heard in the Court of Appeals 1 June
2015.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz,
for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M.
Gomez, for defendant-appellant.
TYSON, Judge.
John Joseph Carvalho, II (“Defendant”) appeals from judgment entered upon
jury verdicts finding him guilty of first-degree murder and of robbery with a
dangerous weapon. We find no error in Defendant’s conviction or judgment entered
thereon.
I. Factual Background
The evidence tended to show: On 28 April 2000, George N. Kastansis (“Mr.
Kastansis”) died of multiple gunshot wounds at his place of business, Avondale
STATE V. CARVALHO
Opinion of the Court
Grocery, located in Monroe, North Carolina. A warrant was issued for Defendant’s
arrest on 16 November 2004, over four and one-half years later, for the murder of Mr.
Kastansis. The grand jury indicted Defendant for first-degree murder and robbery
with a firearm on 3 January 2005. Defendant knew Mr. Kastansis through an illegal
gambling partnership they had run out of Avondale Grocery. The State’s theory of
guilt was that Defendant killed Mr. Kastansis, because he was preventing Defendant
from continuing his involvement in their gambling partnership, costing Defendant
“thousands of dollars.”
On the same date, the State also charged Defendant with the murder of Robert
Long (“Mr. Long”). The grand jury indicted him for the first-degree murder of Mr.
Long on 3 January 2005. The State initially filed an intention to seek the death
penalty for both murders, but later requested that the trial court try both cases as
non-capital. The trial court ordered both cases against Defendant be tried non-
capitally on 19 December 2008.
The State tried Defendant for the death of Mr. Long in 2009. The trial court
declared a mistrial after the jury deadlocked. The State tried Defendant for the
murder of Mr. Long a second time in 2010 and the trial court again declared a mistrial
because of a deadlocked jury.
The State’s primary evidence against Defendant in both murders of Mr. Long
and Mr. Kastansis was the testimony of an informant, William C. Anderson
-2-
STATE V. CARVALHO
Opinion of the Court
(“Anderson”). Anderson was incarcerated with Defendant in 2004. Anderson
testified that during his incarceration with Defendant, Defendant purportedly
confessed to killing both Mr. Long and Mr. Kastansis. Anderson testified at
Defendant’s first trial for the murder of Mr. Long. At Defendant’s second trial for the
murder of Mr. Long, Anderson invoked his Fifth Amendment right against self-
incrimination and refused to testify. Anderson said he believed that if he testified he
might say something incorrectly and perjure himself.
When Anderson testified at Defendant’s first trial for the murder of Mr. Long,
the State also entered into evidence an audiotaped conversation between Anderson
and Defendant (“the audiotape”). The audiotape did not contain an actual confession,
but rather a wide-ranging conversation, which touched on the murders of Mr. Long
and Mr. Kastansis, as well as other potentially criminal acts. The sound quality of
the audiotape was very poor and the State Bureau of Investigation (“SBI”) made
efforts to clarify the audiotape.
After Defendant’s two mistrials for the murder of Mr. Long, the State again
sought to secure the testimony of Anderson and to improve the quality of the
audiotape. The SBI first contacted the Federal Bureau of Investigation (“FBI”) for its
assistance to clarify the audiotape on 24 March 2011. On 26 April 2011, the FBI
stated it could not clarify the audiotape due to internal policies prohibiting such
action and relinquished custody of the audiotape on 6 July 2011. The FBI
-3-
STATE V. CARVALHO
Opinion of the Court
recommended the SBI hire the Target Forensic Services Laboratory (“Target
Forensic”). An SBI agent sent the audiotape to Target Forensic on 28 July 2011.
Target Forensic completed work on the audiotape and sent the SBI a clarified version
on 24 April 2012.
Some portions of the audiotape remained inaudible. Anderson made
handwritten notes transcribing the content of the conversation on a printed copy of
the transcript to supplement the inaudible portions of the audiotape. The SBI
prepared a transcript of the conversation that occurred between Anderson and
Defendant during their incarceration.
The conversation between Anderson and Defendant did not include a
confession to the murders of either Mr. Long or Mr. Kastansis. The conversation
contained details of the events surrounding Mr. Kastansis’s death, including the
following: (1) Defendant attended Mr. Kastansis’s funeral and blessed the body with
a “very . . . theatrical movement[;]” (2) Defendant mentioned investigators had
charged the wrong man in connection with Mr. Kastansis’s murder; (3) Defendant’s
knowledge of and involvement in an illegal poker scam that Defendant and Mr.
Kastansis ran out of Avondale Grocery; and, (4) Defendant’s comment after
investigators showed Defendant a picture of Mr. Kastansis’s children, in which
Defendant stated “he didn’t care about [Mr. Kastansis’s] kids.”
The remainder of the conversation covered a wide range of criminal activity,
-4-
STATE V. CARVALHO
Opinion of the Court
including stealing money, acting as hitmen, using firearms to kill, killing a “Gypsy,”
how to attain serial killer status, committing murder “with control,” and how to
dismember a body and feed it to catfish. The conversation ended soon after Defendant
suspected Anderson was wearing a wire, and said: “[I]t [sic] my life. The rest of my
life . . . you’re the only one in here I talk to . . . you’re the only one here I trust only
one I trust . . . you don’t think they know that?”
Investigators met with Anderson on 9 December 2011 to determine his
willingness to testify at Defendant’s trial for the murder of Mr. Kastansis. Anderson
told investigators he had refused to testify in Defendant’s second trial for Mr. Long’s
murder “because of the way he was treated” by Union County, while in its custody.
Anderson was concerned for his safety because Union County held him with other
inmates, who knew he was testifying against someone in a murder trial. Anderson
agreed to testify after investigators agreed to some of his stipulations. Anderson
reiterated everything he had said during Defendant’s trial for the murder of Mr.
Long.
The State initiated plea bargain discussions with Defendant in December
2012. The State and Defendant did not reach a plea agreement and discussions ended
on 9 April 2013. Defendant filed a motion to dismiss the charges based upon a speedy
trial violation on 3 December 2012, before the State began plea negotiations with
Defendant.
-5-
STATE V. CARVALHO
Opinion of the Court
In his motion, Defendant asserted he was denied his constitutional right to a
speedy trial due to the overall length of his imprisonment, as well as a lack of evidence
sufficient to obtain a conviction due to Anderson’s unwillingness to testify. Defendant
also alleged his lengthy imprisonment had “crushed” any ability to post his one
million dollar bond. Defendant stated defense counsel had “repeatedly” asked about
the State’s intentions regarding his cases, but Defendant had “received no definitive
answer.”
The State provided the following reasons for the potential delay at the hearing
on Defendant’s motion to dismiss:
(1) The complex nature of the cases. While factually
separate and distinct from one another the two cases are
intertwined in that Bill Anderson is the key witness in each
case.
(2) That with two separate murder charges significant
amounts of discovery were generated.
(3) Prior to both trials (Long and Kastansis) the State and
defense engaged in substantial plea negotiations in an
effort to find a resolution that was mutually satisfying to
each Party.
(4) The defendant was arraigned on the Long murder on
December 16, 2008; tried in this case on September 9, 2009
which resulted in a hung jury and a mistrial on September
15, 2009.
(5) The defendant was retried on the Long murder on
March 22, 2010 which resulted in a hung jury and a
mistrial on March 30, 2010.
-6-
STATE V. CARVALHO
Opinion of the Court
(6) Following the mistrial on March 30, 2010, the State
sought to enhance the quality of the audio tape
conversation between the defendant . . . and Bill Anderson.
(7) The efforts to clarify the audio recording began in
March 2011 and were completed in July 2012.
(8) Efforts to resolve issues with Bill Anderson to secure
his testimony in future trials.
On 6 June 2013, the trial court held a hearing on Defendant’s motion to dismiss
and entered an order denying Defendant’s motion on 2 January 2014. In its written
order, the trial court made the following conclusions of law:
2. The length of delay 4 years 10 months (November 16,
2004 to September 8, 2009) and 5 years 4 months
(November 16, 2004 to March 22, 2010) between the date
the defendant was charged and his two trials in Richard
Long’s murder cases and a period of 8 years 7 months
(November 16, 2004 to June 6, 2013) between the date the
defendant was charged and the hearing on defendant’s
Motion to Dismiss (Speedy Trial) is sufficient enough in
each case to trigger analysis of the speedy trial factors.
3. The defendant . . . has failed to offer any evidence to
establish that neglect or willfulness by the State is the
reason for delay in each case.
4. The State’s reasons for the delay in the trial of each
murder case . . . are reasonable and valid justifications for
the delay in each case.
5. The defendant . . . until his Motion to Dismiss filed on
December 3, 2012, never asserted his right to a speedy
trial.
6. The defendant . . . failed to establish that he suffered
actual, substantial prejudice as a result of the delay in the
-7-
STATE V. CARVALHO
Opinion of the Court
trial of his two murder cases.
7. The Court in its evaluation and balancing of the four
factors enumerated in Baker v. Wingo, concludes as a
matter of law that the defendant’s right to a speedy trial
has not been violated.
The State tried Defendant for the murder of Mr. Kastansis and robbery with a
firearm on 7 October 2013. The trial court declared a mistrial after the jury
deadlocked. Six months later, Defendant was tried a second time for the murder of
Mr. Kastansis and robbery with a firearm on 1 April 2014. Defendant moved to
dismiss the charges at the close of the State’s evidence, and again at the close of all
of the evidence. The trial court denied Defendant’s motions.
A jury found Defendant guilty of first-degree murder and robbery with a
firearm on 7 April 2014. The trial court arrested judgment on Defendant’s conviction
for robbery with a dangerous weapon and sentenced Defendant to life imprisonment
without parole on the first-degree murder conviction.
Defendant gave notice of appeal in open court.
II. Issues
Defendant asserts three arguments on appeal: (1) that the almost nine years
between his arrest in 2004 and his trial for the murder of Mr. Kastansis in 2013
violated his constitutional right under the Sixth Amendment to the United States
Constitution and Article I, Section 8 of the North Carolina Constitution; (2) that the
trial court should have denied admission of a jailhouse audiotape and corresponding
-8-
STATE V. CARVALHO
Opinion of the Court
transcript because of its irrelevancy and unfairly prejudicial effect; and (3) that the
trial court should have intervened in the State’s closing arguments because the State
used evidence, limited by the trial court to a narrow purpose, as substantive proof of
Defendant’s guilt.
III. Analysis
A. Speedy Trial
Defendant first contends the State violated his state and federal constitutional
rights to a speedy trial because an almost nine-year delay occurred between his 2004
indictment for the murder of Mr. Kastansis and Defendant’s motion to dismiss in
2012.
1. Standard of Review
This Court applies a de novo standard of review for a constitutional issue on
appeal. See State v. Tate, 187 N.C. App. 593, 599, 653 S.E.2d 892, 897 (2007). It is a
defendant’s burden to demonstrate prejudicial and reversible error. If the appellate
court finds error, the State carries the burden to rebut by showing the error was
harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443 (2013).
2. Analysis
The Supreme Court of the United States established a four-factor balancing
test to assess a potential violation of a defendant’s right to a speedy trial, as cited by
the trial court. See Barker v. Wingo, 407 U.S. 514, 530–33, 33 L. Ed. 2d 101, 115–19
-9-
STATE V. CARVALHO
Opinion of the Court
(1972). These factors are: (1) the “[l]ength of delay;” (2) “the reason for the delay[;]”
(3) “the defendant’s assertion of his right[;]” and, (4) “prejudice to the defendant.” Id.
at 530, 33 L. Ed. 2d at 117.
“[N]one of the four factors identified [are] either a necessary or sufficient
condition to the finding of a deprivation of the right of speedy trial. Rather, they are
related factors and must be considered together with such other circumstances as
may be relevant.” Id. at 533, 33 L. Ed. 2d at 118. While the four factors guide the
process, “these factors have no talismanic qualities; courts must still engage in a
difficult and sensitive balancing process.” Id.
The right to a speedy trial is unique among other constitutional guarantees “in
that, among other things, deprivation of a speedy trial does not per se prejudice the
ability of the accused to defend himself[.]” State v. McKoy, 294 N.C. 134, 140, 240
S.E.2d 383, 388 (1978). “[I]t is impossible to determine precisely when the right has
been denied; . . . and dismissal of the charges is the only possible remedy for denial
of the right to a speedy trial.” Id.
(a) Length of Delay
In order to “trigger a speedy trial analysis, an accused must allege that the
interval between accusation and trial has crossed the threshold dividing ordinary
from presumptively prejudicial.” Doggett v. United States, 505 U.S. 647, 651–52,
120 L. Ed. 2d 520, 528 (1992) (internal quotation marks omitted). As time passes,
- 10 -
STATE V. CARVALHO
Opinion of the Court
“the presumption that pretrial delay has prejudiced the accused intensifies.” Id. at
652, 120 L. Ed. 2d at 528. “Depending on the nature of the charges, the lower courts
have generally found post-accusation delay ‘presumptively prejudicial’ at least as it
approaches one year.” Id. at 652 n.1, 120 L. Ed. 2d at 528 n.1.
Here, almost nine years elapsed between the time the State indicted Defendant
in 2004 and the time of the June 2013 hearing on his motion to dismiss. This delay
clearly passes the demarcation into presumptively prejudicial territory and triggers
the Barker analysis. See State v. Flowers, 347 N.C. 1, 27, 489 S.E.2d 391, 406 (1997)
(explaining “presumptive prejudice does not necessarily indicate a statistical
probability of prejudice; it simply marks the point at which courts deem the delay
unreasonable enough to trigger the Barker enquiry” (internal quotation marks
omitted)), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998); see, e.g., Doggett,
505 U.S. at 652, 120 L. Ed. 2d at 528 (calling an eight-and-one-half-year-long delay
“extraordinary”).
The almost nine-year delay, while also “extraordinary,” “is not per se
determinative of whether a speedy trial violation has occurred,” and requires careful
analysis of the remaining factors. Id. See State v. Webster, 337 N.C. 674, 678-79, 447
S.E.2d 349, 351 (1994) (deciding sixteen-month delay from arrest to trial did not
presumptively indicate a speedy trial violation had occurred, but was enough to
“trigger examination of the other factors”).
- 11 -
STATE V. CARVALHO
Opinion of the Court
(b) Reason for Delay
A defendant must demonstrate the delay stemmed from either negligence or
willfulness on the part of the State. State v. Marlow, 310 N.C. 507, 521, 313 S.E.2d
532, 541 (1984). Ordinary or reasonable delays do not create prejudice. State v.
Johnson, 275 N.C. 264, 273, 167 S.E.2d 274, 280 (1969). A speedy trial claim prevents
only those delays that were “purposeful or oppressive delays and those which the
prosecution could have avoided by reasonable effort.” Id.
“A defendant who has himself caused the delay, or acquiesced in it, will not be
allowed to convert the guarantee, designed for his protection, into a vehicle in which
to escape justice.” Id. at 269, 167 S.E.2d at 278. Once a defendant shows a prima
facie case for negligence or willfulness, the State bears the burden of showing there
were reasonable circumstances surrounding the delay. See McKoy, 294 N.C. at 143,
240 S.E.2d at 390.
Defendant has failed to show the delay stemmed from either negligence or
willfulness on the part of the State. Compare Webster, 337 N.C. at 679, 447 S.E.2d at
351 (finding a sixteen-month delay, where the district attorney calendared the trial
six different times, did not demonstrate negligence or willfulness), with McKoy,
294 N.C. at 141–42, 240 S.E.2d at 389 (finding delay factor in favor of defendant
because defendant presented evidence that the “failure to bring defendant to trial
during the next ten months . . . was due to the willful neglect of the prosecution and
- 12 -
STATE V. CARVALHO
Opinion of the Court
could have been avoided by reasonable effort”). Defendant presented no evidence of
negligence or willfulness by the State in his motion to dismiss, or at the hearing on
his motion.
Defendant merely established the timeline showing how the two murder cases
had proceeded over time. As discussed supra, the length of delay alone does not prove
the State denied Defendant a speedy trial. See Webster, 337 N.C. at 678, 447 S.E.2d
at 351. Although Defendant asserted in his motion to dismiss that defense counsel
had asked “repeatedly” for information on the progression of the cases and had
received “no definitive answer,” no other motions were filed and Defendant did not
present any evidence regarding those inquiries.
Evidence described the timelines of all four trials and the actions the State
took to bring the two distinct murder cases to trial. The more significant elements
that contributed to the length of the proceedings were: (1) changing the trials for Mr.
Long’s and Mr. Kastansis’s murders from capital to non-capital; (2) plea discussions
between Defendant and the State; (3) clarification of the audiotape and generation of
a transcript, including seeking help from the SBI, the FBI and Target Forensic; (4)
securing the testimony of the State’s key witness, Anderson; and, (5) the
interconnectedness of the two murders. While we are concerned about the sixteen-
month delay from enhancing the audiotape previously used at Defendant’s trials for
the murder of Mr. Long, Defendant has failed to carry his burden of showing the
- 13 -
STATE V. CARVALHO
Opinion of the Court
reasons for the delays stemmed from either negligence or willfulness on the part of
the State.
(c) Assertion of the Right
Defendant’s failure to demand a speedy trial does not result in a waiver of the
speedy trial violation. See Barker, 407 U.S. at 528, 33 L. Ed. 2d at 115. While a
“[d]efendant’s failure to assert his right to a speedy trial sooner in the process does
not foreclose his speedy trial claim, [it] does weigh against his contention that he has
been denied his constitutional right to a speedy trial.” Flowers, 347 N.C. at 28, 489
S.E.2d at 407. Defendant first asserted his right to a speedy trial on 3 December
2012, some eight years after Defendant was first indicted in 2004. No evidence in the
record shows Defendant requested or moved for a speedy trial any earlier than in
2012.
(d) Prejudice Resulting from Delay
Prejudice “should be assessed in the light of the interests of defendants which
the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 33 L. Ed. 2d
at 118. The identified interests the constitutional right to a speedy trial protects are:
(1) avoiding prolonged imprisonment; (2) reducing anxiety of the accused; and (3)
creating the opportunity for the accused to assert and exercise their presumption of
innocence. See id. The last of these interests is the most important aspect to the
speedy trial right, “because the inability of a defendant adequately to prepare his case
- 14 -
STATE V. CARVALHO
Opinion of the Court
skews the fairness of the entire system.” Id.
Defendant has not shown any affirmative proof of prejudice. He asserts only
his lengthy incarceration “crushed” any financial ability to post his one million dollar
bond. Defendant does not argue he was either unduly anxious or that his case
preparation was impaired by the delay. Compare Flowers, 347 N.C. at 29, 489 S.E.2d
at 407 (finding that defendant failed to show prejudice when he was already
incarcerated, alleviating concerns over oppressive pretrial incarceration, and any
allegation of impairment to his defense was not supported by the record), with State
v. Chaplin, 122 N.C. App. 659, 665, 471 S.E.2d 653, 657 (1996) (finding prejudice
when the defendant could no longer find his key witness).
We have reviewed and considered each of the Barker factors. Defendant failed
to carry his burden to demonstrate a speedy trial violation. We affirm the trial court’s
ruling denying Defendant’s motion to dismiss. We hold the trial court did not err
after it determined the State did not violate Defendant’s state or federal
constitutional right to a speedy trial. Defendant’s argument is overruled.
B. Admission of Audiotape and Corresponding Transcript
Defendant argues the trial court erred in admitting, over his objection, portions
of the audiotape and corresponding transcript, which included a conversation
between Defendant and Anderson, while both men were incarcerated.
Defendant challenges portions of the audiotape and transcript in which
- 15 -
STATE V. CARVALHO
Opinion of the Court
Defendant discusses: (1) plans to commit a future armed robbery and murder;
(2) how many killings it takes to become a serial killer; (3) becoming a hitman; (4)
committing murder “with control;” and (5) dismembering a body and feeding it to
catfish. Defendant contends the evidence was irrelevant under Rules 401 and 404(b)
and unfairly prejudicial under Rule 403, and should have been excluded. We
disagree.
1. Standard of Review
Our Supreme Court held:
when analyzing rulings applying Rules 404(b) and 403, we
conduct distinct inquiries with different standards of
review. When the trial court has made findings of fact and
conclusions of law to support its 404(b) ruling . . . we look
to whether the evidence supports the findings and whether
the findings support the conclusions. We review de novo
the legal conclusion that the evidence is, or is not, within
the coverage of Rule 404(b). We then review the trial
court’s Rule 403 determination for abuse of discretion.
State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).
“A trial court may be reversed for an abuse of discretion only upon a showing
that its ruling was so arbitrary that it could not have been the result of a reasoned
decision.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985) (citation
omitted).
2. Analysis
(a) 404(b) Evidence
- 16 -
STATE V. CARVALHO
Opinion of the Court
“Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.” N.C.
Gen. Stat. § 8C-1, Rule 404(b) (2013). However, evidence of a defendant’s prior
crimes, statements, actions and conduct is admissible, if relevant to any fact or issue
other than the defendant’s character. Beckelheimer, 366 N.C. at 130-31, 726 S.E.2d
at 159.
North Carolina Rules of Evidence 404(b) is a rule of inclusion, not exclusion.
Id. at 131, 726 S.E.2d at 159. See also State v. Coffey, 326 N.C. 268, 278-79, 389
S.E.2d 48, 54 (1990).
The rule lists numerous purposes for which evidence of
prior acts may be admitted, including motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake, entrapment or accident. This list is not
exclusive, and such evidence is admissible as long as it is
relevant to any fact or issue [at trial] . . . .
Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159 (internal citations and quotation
marks omitted).
Our Supreme Court has ruled Rule 404(b) is “subject to but one exception
requiring the exclusion of evidence if its only probative value is to show that the
defendant has the propensity or disposition to commit an offense of the nature of the
crime charged.” State v. Lyons, 340 N.C. 646, 668, 459 S.E.2d 770, 782 (1995)
(emphasis in original)(citation omitted).
- 17 -
STATE V. CARVALHO
Opinion of the Court
The trial court found the audiotape and transcript of portions of Defendant’s
conversations with Anderson served a “proper purpose,” in that “these statements are
necessary to show the full context of the confidential relationship between Mr.
Anderson and [Defendant].”
Anderson’s credibility was crucial to the State’s case and this finding clearly
falls within the purview of admissible evidence under Rule 404(b). See State v. White,
340 N.C. 264, 285-86, 457 S.E.2d 841, 853 (1995) (holding “knowledge of the
relationship between [the witness] and defendant was necessary in order for the jury
to assess [the witness’s] credibility and determine what weight to give his
testimony”); State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174 (1990) (noting
404(b) evidence is admissible if it serves to enhance the natural sequence or
development of facts).
This evidence was properly admitted under the North Carolina Rules of
Evidence, Rule 404(b). Coffey, 326 N.C. at 278-79, 389 S.E.2d at 54 (holding Rule
404(b) is a rule of inclusion). The trial court also gave the jury a limiting instruction
regarding the purpose for which the jury could consider the evidence. The jury is
presumed to have followed these instructions. State v. Montgomery, 291 N.C. 235,
244, 229 S.E.2d 904, 909 (1976) (citation omitted) (“We assume, as our system for
administration of justice requires, that the jurors in this case were possessed of
- 18 -
STATE V. CARVALHO
Opinion of the Court
sufficient character and intelligence to understand and comply with th[e limiting]
instruction by the court.”).
Defendant’s conversation with Anderson was not admitted to show Defendant
had a propensity to commit crimes. Rather, the challenged portions of the
conversation were admitted for the limited purposes to show: (1) Defendant trusted
and confided in Anderson; (2) the nature of their relationship, in that Defendant was
willing to discuss the commission of murder and robbery with Anderson; and (3)
relevant factual information to Defendant’s murder charge for which he was on trial.
The challenged portions of the conversations bolstered Anderson’s credibility as a
witness. The trial court did not err in concluding that Rule 404(b) permitted
admission of these statements into evidence.
(b) Rule 403 – Unfair Prejudice
The trial court’s admission of portions of the audiotape and transcript also did
not violate Rule 403. “Evidence which is probative of the State’s case necessarily will
have a prejudicial effect upon the defendant; the question is one of degree.” Coffey,
326 N.C. at 281, 389, S.E.2d at 56 (citation omitted). The trial court determined the
probative value of this evidence was not substantially outweighed by any prejudicial
effect the admission of this evidence would have on Defendant “based on the State’s
purpose for offering this evidence.”
- 19 -
STATE V. CARVALHO
Opinion of the Court
The trial court also gave a specific limiting instruction to the jury, both at the
time the audiotape was played before the jury and during the instruction to the jury.
This limiting instruction stated:
Evidence has also been received tending to show that Bill
Anderson and the defendant . . . engaged in conversations
concerning the future commission of criminal acts, serial
killing, and the dismembering of a body. This evidence was
received solely for the purpose of showing the nature and
context of the relationship between Bill Anderson and . . .
[Defendant].
(emphasis supplied).
The trial court redacted some of the transcript, balanced the factors to allow
admission of the remaining portions, and found the admission of the audiotape and
transcript was for a permissible purpose under Rule 404(b). The trial court also
specifically limited its use in its instructions to the jury. Defendant has failed to show
the trial court’s process or admission of this evidence constitutes an abuse of
discretion.
Defendant argues any relevance of this evidence was outweighed by “danger of
unfair prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403 (2013). Under the applicable
standard of review, this Court cannot substitute its own judgment for that of the trial
court. Given the importance of the credibility of Anderson’s testimony to the State’s
case, we cannot conclude the trial court was manifestly unreasonable in determining
the relevance of the redacted version of the transcript, when combined with the
- 20 -
STATE V. CARVALHO
Opinion of the Court
limiting instruction, substantially outweighed any unfair prejudice to Defendant.
When combined with the trial court’s limiting jury instruction, the probative value
substantially outweighed any unfair prejudice to Defendant. Id. Defendant has failed
to show the admission of this evidence violated Rule 403. State v. Lanier, 165 N.C.
App. 337, 345, 598 S.E.2d 596, 602 (2004) (citation and internal quotation marks
omitted) (“In each case, the burden is on the defendant to show there was no proper
purpose for which the evidence could be admitted [under Rule 404(b)].”). Defendant’s
argument is overruled.
C. Closing Arguments
Defendant asserts the State’s closing arguments were “grossly improper,” and
warrant a new trial. We disagree.
1. Standard of Review
“The standard of review when a defendant fails to object at trial is whether the
closing argument complained of was so grossly improper that the trial court erred in
failing to intervene ex mero motu.” State v. McCollum, 177 N.C. App. 681, 685, 629
S.E.2d 859, 861-62 (2006) (citation and internal quotation marks omitted).
“In determining whether the prosecutor’s argument was . . . grossly improper,
this Court must examine the argument in the context in which it was given and in
the light of the overall factual circumstances to which it refers.” State v. Hipps, 348
N.C. 377, 411, 501 S.E.2d 625, 645 (1998). “[T]he impropriety of the argument must
- 21 -
STATE V. CARVALHO
Opinion of the Court
be gross indeed in order for this Court to hold that a trial judge abused his discretion
in not recognizing and correcting ex mero motu an argument which defense counsel
apparently did not believe was prejudicial when he heard it.” Id. (citation and internal
quotation marks omitted).
2. Analysis
The Supreme Court of the United States held for a new trial to be granted for
remarks made during closing arguments,
it is not enough that the prosecutor[’s] remarks were
undesirable or even universally condemned. The relevant
question is whether the prosecutor[’s] comments so
infected the trial court with unfairness as to make the
resulting conviction a denial of due process.
Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 157 (1986) (citations and
internal quotation marks omitted).
The State used evidence from the audiotape and transcript throughout its
closing argument. However, the State did not mention nor discuss Defendant’s
conversations with Anderson about: (1) the commission of criminal acts in the future;
(2) serial killing; (3) being a hitman; or, (4) dismembering a body and feeding it to the
catfish. These portions of Defendant’s and Anderson’s conversation were admitted
into evidence solely for the limited purposes stated above.
- 22 -
STATE V. CARVALHO
Opinion of the Court
The State did not ask the jury to use the challenged evidence to convict
Defendant of the crimes for which he was on trial, nor did the State ask the jury to
use the evidence admitted in any other improper manner.
To the extent Defendant’s remark that murder must be committed with
“control,” which occurred during his discussion of serial killers and hitmen, fell within
the scope of the trial court’s limiting instruction, we cannot conclude the State’s
references to this statement were so grossly improper that the trial court should have
intervened ex mero motu. See State v. Stokes, 357 N.C. 220, 227, 581 S.E.2d 51, 56
(2003) (prosecutor’s comments during closing argument to effect that inculpatory
statement murder defendant made to sheriff deputy, offered to impeach defendant,
should be considered as substantive testimony, was not so grossly improper that trial
court abused its discretion in failing to intervene ex mero motu; instruction given was
adequate to advise jury that defendant’s statement, which he denied making, was
being admitted for limited purpose of impeaching defendant’s truthfulness).
Defendant failed to object to the State’s closing arguments at trial. It is
difficult, now on appeal, to credit and accept his argument that the State’s closing
argument constituted “an extreme impropriety.” State v. Anthony, 354 N.C. 372, 427,
555 S.E.2d 557, 592 (2001).
Defendant has failed to establish any gross or plain error or impropriety in the
State’s closing arguments to warrant a new trial. The State’s closing arguments did
- 23 -
STATE V. CARVALHO
Opinion of the Court
not “so infect[] the trial with unfairness that they rendered the conviction
fundamentally unfair.” State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998)
(citation omitted), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999).
IV. Conclusion
Defendant failed to carry his burden of showing either any negligence or
willfulness by the State caused the length of delay in his trial. Even with a troubling
and “extraordinary” almost nine-year delay, Defendant’s state and federal
constitutional right to a speedy trial were not violated. Doggett, 505 U.S. at 652, 120
L. Ed. 2d at 528.
The challenged portions of the audiotaped conversation between Defendant
and Anderson were relevant and properly admitted into evidence under Rules 401,
403, and 404(b). Defendant has failed to demonstrate that the trial court abused its
discretion in determining the probative value of the audiotaped conversation
substantially outweighed any unfair prejudice.
Defendant has failed to carry his burden of showing any gross or plain error or
impropriety in the State’s use of the audiotaped conversation during closing
arguments.
Defendant received a fair trial free from prejudicial errors he preserved and
argued. We find no error in Defendant’s conviction or the judgment entered thereon.
NO ERROR.
- 24 -
STATE V. CARVALHO
Opinion of the Court
Judge GEER concurs.
Chief Judge McGEE concurs in part and dissents in part in a separate opinion.
-2-
No. COA14-1251 – State v. Carvalho
McGEE, Chief Judge, concurring in part, dissenting in part.
I concur in the majority’s opinion that Defendant failed to carry his burden to
demonstrate that the State violated his constitutional right to a speedy trial and that
Defendant failed to carry his burden of showing any gross or plain error or
impropriety in the State’s closing arguments. However, I respectfully dissent from
the majority’s determination that the challenged portions of the audiotape and
corresponding transcript were properly admitted as evidence under N.C. Gen. Stat.
§ 8C-1, Rule 404(b).
As the majority recognizes, the North Carolina Supreme Court recently held
that N.C. Gen. Stat. § 8C-1, Rules 404(b) and 403 require “distinct inquiries with
different standards of review.” State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d
156, 159 (2012). Specifically, “[w]e review de novo the legal conclusion that the
evidence is, or is not, within the coverage of Rule 404(b). We then review the trial
court’s Rule 403 determination for abuse of discretion.” Id.
Rule 404(b) generally is a “rule of inclusion” and “evidence of other offenses is
admissible so long as it is relevant to any fact or issue other than the character of the
accused.” State v. Coffey, 326 N.C. 268, 278, 389 S.E.2d 48, 54 (1990) (internal
quotation marks omitted). While evidence is not admissible to prove the character of
the accused, it ordinarily is admissible for purposes such as “to show motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
entrapment, or accident,” as well as for other purposes not enumerated in the rule.
STATE V. CARVALHO
McGEE, C.J., concurring in part, dissenting in part
State v. Cashwell, 322 N.C. 574, 578, 369 S.E.2d 566, 568 (1988). For instance, our
Supreme Court has concluded that a defendant’s inculpatory statements to another
may be properly admitted under Rule 404(b) where such testimony is necessary to
“show a confidential relationship between th[at] witness and the defendant,” when
knowledge of such a relationship “was necessary in order for the jury to assess [the
testifying witness’s] credibility and determine what weight to give his testimony
concerning [the] defendant’s confession to th[e] crime.” State v. White, 340 N.C. 264,
285–86, 457 S.E.2d 841, 853, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995).
In support of Defendant’s assertion that the trial court erred by admitting the
challenged portions of the audiotape and transcript in which Defendant and
Anderson discussed plans to commit a future armed robbery and murder, how many
killings it takes to become a serial killer, becoming a hitman, committing murder
“with control,” and dismembering a body and feeding it to catfish, Defendant directs
this Court’s attention to State v. Cashwell, 322 N.C. 574, 369 S.E.2d 566 (1988), and
State v. White, 340 N.C. 264, 457 S.E.2d 841 (1995).
In Cashwell, the defendant was charged with two counts of first-degree
murder. Cashwell, 322 N.C. at 574, 369 S.E.2d at 566. While the defendant was in
jail for an unrelated charge of the attempted murder of his girlfriend, the defendant
told a fellow inmate about the charge for which he was then presently in jail and,
about a month later, made incriminating statements to the same inmate concerning
2
STATE V. CARVALHO
McGEE, C.J., concurring in part, dissenting in part
the details of the first-degree murder charges. See id. at 575–76, 369 S.E.2d at 567.
At trial, the State introduced evidence from the inmate and from a detective
corroborating the inmate’s testimony that the defendant said he was in jail for the
attempted murder of his girlfriend. See id. at 576, 369 S.E.2d at 567. The State
argued that the inmate’s testimony and the detective’s corroborating testimony about
the attempted murder charge “were competent for the purpose of showing the
relationship between [the inmate] and [the] defendant that led up to [the] defendant’s
inculpatory statements a month later” concerning the first-degree murder charges.
Id. at 577, 369 S.E.2d at 568.
However, the Cashwell Court determined that, in accordance with the
definition of “relevant evidence” under N.C. Gen. Stat. § 8C-1, Rule 401, “the
testimony of these two witnesses that [the defendant] was in jail on a charge of
attempted murder of his girlfriend [wa]s not relevant,” because this statement by the
defendant “[did] not go to prove the existence of any fact that [wa]s of consequence in
the determination of the two charges of murder on which defendant was found guilty.”
Id. The Cashwell Court further determined that such evidence “was not relevant to
any fact or issue other than the character of the accused[,]” contrary to the
proscription of N.C. Gen. Stat. § 8C-1, Rule 404. Id. at 578, 369 S.E.2d at 568.
Because the Court concluded “[t]he challenged testimony in no way was necessary to
show the full context of [the] defendant’s confession, nor was it required in order to
3
STATE V. CARVALHO
McGEE, C.J., concurring in part, dissenting in part
show any confidential relationship between [the] defendant and [the testifying
inmate,]” id., the Court found this testimony to be “irrelevant and immaterial to the
later inculpatory statements made by [the] defendant to [the inmate about the first-
degree murder charges.]” Id. Accordingly, after determining that the admission of
such testimony constituted prejudicial error, the Cashwell Court held that the
defendant was entitled to a new trial. Id. at 580, 369 S.E.2d at 569.
In White, the defendant was tried in 1993 for the first-degree murder of her
four-year-old stepson. White, 340 N.C. at 270–71, 457 S.E.2d at 845. After the child’s
death in 1973, which was originally determined to be accidental, the medical
examiner “extracted a large piece of a plastic laundry bag from the child’s throat,”
which “was tightly wadded up,” “came out in one piece,” and “was large enough to
cover [an adult’s] hand and three-fourths of [an adult’s] arm.” Id. at 271–72,
457 S.E.2d at 845. Almost twenty years later, the defendant was alleged to have
conspired to kill her husband. Id. at 272, 457 S.E.2d at 846. During one of the six
meetings the defendant had with her co-conspirators to allegedly discuss her
husband’s murder, one of the co-conspirators “expressed hesitation about taking
someone’s life, and [the] defendant encouraged [him] to murder her husband” by
telling him: “‘[I]t’s not that hard to do. I had a step-child. I put a bag over it until it
stopped breathing. It was better off.’” Id.
At the defendant’s trial in White for the murder of her stepson, the defendant
4
STATE V. CARVALHO
McGEE, C.J., concurring in part, dissenting in part
moved to exclude the evidence of her alleged involvement in her husband’s murder
on the grounds that the admission of this evidence would violate Rules 404(b)
and 403, which motion was denied. Id. at 281, 457 S.E.2d at 851. The defendant
argued that “the only probative value of this evidence was to show that she had the
propensity to commit murder and that because she had conspired to murder her
husband, she must also have murdered her stepson twenty years before.” Id. at 283,
457 S.E.2d at 852.
However, in White, the trial court found that the evidence of the defendant’s
“involvement in the conspiracy” to murder her husband “was necessary for the
natural development of the facts and to complete the story of this murder for the jury,
in particular, to explain the context of [the] defendant’s confession to [the
co-conspirator] that she murdered her stepchild by smothering him with a plastic
bag.” Id. at 284, 457 S.E.2d at 853. Our Supreme Court agreed that the defendant’s
confession to her co-conspirator “would have been difficult to understand without the
historical details and context giving rise to the statement,” id., and determined that,
“[a]bsent evidence of [the] defendant’s relationship with [the co-conspirator], the jury
would have been unable to determine [the witness’s] credibility or what weight to
give his testimony.” Id. Thus, the Court concluded that, “[e]ven though the two
incidents were separated by nineteen years, they were inextricably intertwined, and
it would have been impossible to develop this relationship for the jury without
5
STATE V. CARVALHO
McGEE, C.J., concurring in part, dissenting in part
revealing [the] defendant’s participation in the conspiracy to murder her husband.”
Id. at 284–85, 457 S.E.2d at 853. Accordingly, the Court held that this evidence “was
not merely probative of [the] defendant’s propensity to commit murder and was
properly admitted under Rule 404(b).” Id. at 285, 457 S.E.2d at 853.
In White, the Court distinguished Cashwell by recognizing that, in Cashwell,
in order to show a confidential relationship between the witness and the defendant,
the defendant’s “inculpatory statement to his cellmate about the attempted murder
of the defendant’s girlfriend” was “not necessary to show the context” in which the
“additional inculpatory statements to his cellmate about a different crime, a double
murder, for which he was eventually tried,” were made, because the first statement
was “irrelevant and immaterial to the subsequent inculpatory statement.” White,
340 N.C. at 285, 457 S.E.2d at 853. However, the Court determined that, in White,
“knowledge of the relationship between [the co-conspirator] and [the] defendant was
necessary in order for the jury to assess [the witness’s] credibility and determine what
weight to give his testimony concerning [the] defendant’s confession to th[e] crime.”
Id. at 285–86, 457 S.E.2d at 853. The Court further determined that the defendant’s
statement was “inextricably intertwined with the evidence of [the] defendant’s
alleged involvement in her husband’s murder and could not be meaningfully
isolated.” Id. at 286, 457 S.E.2d at 853–54. Thus, the White Court concluded that
the challenged testimony was properly admitted under Rule 404(b), and that the trial
6
STATE V. CARVALHO
McGEE, C.J., concurring in part, dissenting in part
court did not abuse its discretion under Rule 403 “by concluding that the probative
value of the interwoven evidence of [the] defendant’s confession and involvement in
her husband’s murder outweighed any prejudicial effect such evidence might have
had against her.” Id. at 286, 457 S.E.2d at 854 (emphasis added).
In the present case, Defendant objected to portions of the transcript that dealt
with plans to commit a future armed robbery and murder, how many killings it takes
to become a serial killer, becoming a hitman, committing murder “with control,” and
dismembering a body and feeding it to catfish. As the majority recognizes, “[t]he trial
court found the audiotape and transcript of portions of Defendant’s conversations
with Anderson served a ‘proper purpose,’ in that ‘these statements [we]re necessary
to show the full context of the confidential relationship between [Anderson] and
[Defendant].’” However, I disagree with the majority’s conclusion that “this finding
clearly falls within the purview of admissible evidence under Rule 404(b).” Without
the challenged portions of the audiotape and transcript, the remaining conversation
between Defendant and Anderson would have been sufficient to demonstrate the
confidential nature of their relationship. In the unchallenged portions of the
audiotape and transcript, Defendant and Anderson openly discussed elements
surrounding Mr. Kastansis’s death, including Defendant’s “theatrical” blessing of Mr.
Kastansis’s body, Defendant’s attempt to implicate a man who sold cigarettes at
Avondale Grocery as Mr. Kastansis’s murderer, Defendant’s knowledge and
7
STATE V. CARVALHO
McGEE, C.J., concurring in part, dissenting in part
involvement in the illegal poker scam run out of Avondale Grocery, and Defendant’s
lack of empathy towards Mr. Kastansis’s children. Furthermore, additional
testimony at trial established that Anderson and Defendant knew each other before
their incarceration through family connections and by Defendant’s habit of
frequenting Avondale Grocery. Thus, unlike White, the challenged portions of the
audiotape and transcript in the present case were not so “inextricably intertwined”
as to require their admission, nor were they “necessary in order for the jury to assess
[Anderson’s] credibility and determine what weight to give his testimony[.]” See
White, 340 N.C. at 285–86, 457 S.E.2d at 853. Instead, as in Cashwell, “[t]he
challenged testimony in no way was necessary . . . in order to show any confidential
relationship between [D]efendant and [Anderson.]” See Cashwell, 322 N.C. at 578,
369 S.E.2d at 568.
Therefore, while I agree with the majority that “Anderson’s credibility was
crucial to the State’s case,” because I believe the challenged evidence was irrelevant
and immaterial and not admitted for a proper purpose under N.C. Gen. Stat. § 8C-1,
Rule 404(b), I must respectfully dissent.
8