State v. Brown , 258 N.C. App. 58 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-209
Filed: 20 February 2018
Durham County, Nos. 13 CRS 6222627
STATE OF NORTH CAROLINA
v.
MICHAEL TEON BROWN
Appeal by defendant from judgment entered 2 August 2016 by Judge Michael
O’Foghludha in Durham County Superior Court. Heard in the Court of Appeals 20
September 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Sonya
Calloway-Durham, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant.
ELMORE, Judge.
Michael Teon Brown (“defendant”) appeals from judgment entered upon jury
verdicts finding him guilty of two counts of first-degree murder. On appeal,
defendant challenges the admission of several out-of-court statements made by two
of the State’s witnesses. Specifically, defendant contends the trial court erred by
allowing two prior written statements to be read to the jury as substantive evidence,
and by allowing the jury to view one witness’s videotaped statement as illustrative
STATE V. BROWN
Opinion of the Court
evidence, because all three statements constituted inadmissible hearsay. After
careful review, we conclude that defendant received a fair trial, free from error.
I.
On 6 January 2014, a grand jury returned two indictments charging defendant
with the murders of his child’s mother, Jessica Liriano, as well as Jessica’s boyfriend,
Jerron McGirt. The evidence tended to show that the victims had been fatally shot
with a .45 caliber handgun outside of their Durham home at approximately 7:00 a.m.
on 16 December 2013. No physical evidence was found directly linking defendant to
the crime scene; thus, the State’s case relied primarily on the testimony of multiple
witnesses, including defendant’s two brothers, Reginald and Antonio Brown.
The murder charges against defendant were joined for trial, which began on
25 July 2016  nearly three years after the relevant events occurred. Defendant
elected not to testify or offer any evidence at trial, while the State called Reginald
and Antonio as witnesses on 27 July 2016.
Reginald’s Testimony
On direct examination, Reginald testified that defendant, who lived in
Hartsville, South Carolina, drove to Reginald’s home in Cheraw, South Carolina, on
the morning of 16 December 2013. Reginald testified defendant informed him upon
arrival that Jessica and her boyfriend had been murdered. The following exchange
then took place between Reginald and the State:
-2-
STATE V. BROWN
Opinion of the Court
Q. What did [defendant] tell you that morning?
A. He came and told me that he seen that, what
happened up here [in Durham], on the internet.

Q. The only thing that -- you’re telling us right now the
only thing that he said to you was something about
the murder that he saw on the internet?
A. Yes.

Q. Did you ask him if he knew anything about it?
A. Yes.
Q. And what did he say?
A. He told me that he did it. And he came out with a
beer bottle in his hand, with beer, and acted like he
was drinking all night.
Q. So when he told you -- when you asked him about it,
what did he tell you?
A. He told me he was the one that did it. But --

Q. What else did he tell you about it?
A. That was it.
Following this exchange, Reginald testified that either Antonio or the brothers’
mother called the police on the night of 16 December 2013; that Reginald, Antonio,
and their mother went to the Cheraw Police Department sometime after the phone
call was made; and that Reginald spoke with an investigator there and gave him a
detailed, handwritten statement regarding what defendant had told Reginald about
the murders. Reginald also confirmed that both audio and video from his interview
with the investigator had been recorded and stored in DVD format.
Reginald’s Out-of-Court Statements
-3-
STATE V. BROWN
Opinion of the Court
As to Reginald’s written statement, the State established that Reginald
recognized the document based on his handwriting and signature; that it was dated
17 December 2013; and that it did not appear to have been changed or manipulated
in any way since Reginald last saw it. The State then moved to admit Reginald’s
statement into evidence, prompting defendant to request that the court give a
limiting instruction that “the statement is admitted only to the extent it corroborates
or impeaches the witness’s testimony.” The court replied simply, “It’s his statement,”
with no further discussion on the matter. At the State’s request, Reginald proceeded
to read his written statement aloud to the jury.
My name is Reginald Brown. I’m here to tell that my
brother did a crime. He told me that he killed someone in
the North Carolina area on December 16 at that morning.
He told me that he used a .45 handgun. Also he told me
that -- that he waited -- waited till the kids got on the bus
to kill them. He was wearing a black hoodie, black pants,
black shoes. He also told me not to tell anyone. He was
driving a Chevy Caprice. He told me that he killed his baby
mama -- mother and her boyfriend. He told me that he was
waiting under some box.
After Reginald finished reading and again confirmed that he had written the
statement, the State immediately moved on to address Reginald’s videotaped
interview. The State established that Reginald recognized the DVD as a recording
he had previously watched in its entirety; that his initials appeared on the face of the
disk; that it contained his interview with the investigator; and that it fairly and
-4-
STATE V. BROWN
Opinion of the Court
accurately captured his conversation with the investigator. The following dialogue
then took place in the presence of the jury:
[THE STATE]: Your Honor, I move to introduce and
publish [the DVD].
THE COURT: [The DVD] is admitted for illustration.
[DEFENDANT]: Your Honor, I would again object under
the hearsay rule and I would object that this is being
offered to prove the truth of the matter asserted. I’d
ask [for] a limiting instruction.
THE COURT: All right. It is overruled. Ladies and
gentlemen, this [DVD] is being admitted for
illustrative purposes. That means it’s being
admitted for the limited purpose of illustrating the
defendant’s -- excuse me -- illustrating the witness’s
testimony under oath at this trial. If you believe
that this earlier matter for illustrative purposes was
made, you may consider it, but only for the limited
purpose of deciding whether it illustrates his
testimony at this trial and not for any other purpose.
Thank you, ladies and gentlemen.
[DEFENDANT]: Just for clarity, Your Honor. I believe
you’re denying it. I would ask [that] a limiting
instruction be given that they only be allowed to
consider this to the extent it corroborates or
impeaches his testimony.
THE COURT: I’ll stick with my instruction. Thank
you, sir.
The State proceeded to play the DVD for the jury. Consistent with his written
statement, Reginald stated in his recorded interview that defendant had told
Reginald he had killed Jessica and her boyfriend with a .45 caliber handgun, after
waiting under a box on her porch until her older children left for school, but he added
that defendant had left for Durham around 1:00 a.m. on 16 December 2013, and that
-5-
STATE V. BROWN
Opinion of the Court
defendant had actually shown Reginald the gun used in the murders. When the
investigator asked him about the gun, Reginald repeatedly claimed that the brothers’
cousin, Lorenzo Brown, now had the gun. As he had indicated in his testimony,
Reginald stated in his recorded interview that “[defendant] never really got down to
the details about why he did it. He just said he really did it.”
On cross-examination, Reginald testified that he never saw defendant with a
gun. Reginald’s testimony ended with the following exchange on redirect
examination by the State:
Q. When you talked to [the investigator] and when you
wrote your statement, you were trying to give him
all the information that you had?
A. That was all the information that I had that I wrote
down.
Q. And what you told him?
A. Yeah. No, the information I wrote down, that’s . . .
the information that my brother had told me.
Q. Okay.
A. The stuff I didn’t write down was not true.
Antonio’s Testimony
On direct examination, Antonio stated that he drove to Reginald’s home
around 10:00 a.m. on 16 December 2013, and that defendant was still there when he
arrived. Antonio testified that defendant told him that Jessica and her boyfriend had
been murdered, but that defendant did not “say anything about having a role in that.”
The following exchange then took place between Antonio and the State:
Q. Okay. Are you saying that your brother didn’t
-6-
STATE V. BROWN
Opinion of the Court
describe his role in [the murders] to you?
A. He -- he was saying -- he was saying it was stuff like
-- what happened down here, but he -- I wrote in my
statement, but what he saying -- that what he said,
I just -- I just telling y’all ‘cause I was scared. I didn’t
want to be an accessory or nothing.
Q. What made you think that you would be an
accessory of something?
A. ‘Cause if I didn’t told, I probably would have been in
jail.
Antonio further testified that he then drove defendant, who Antonio thought was too
drunk to drive, to their cousin Lorenzo’s home in Hartsville so that defendant could
buy marijuana. When asked, “[Defendant] didn’t say he had to take something back
to Lorenzo?,” Antonio replied, “No. ‘Cause I spoke with Lorenzo . . . and I tried to see
what was the situation about the whole gun thing. He wouldn’t tell me nothing. All
he said was that [defendant] bought weed from him.”
Antonio’s Out-of-Court Statement
After Antonio denied that defendant had told him he was returning something
to Lorenzo, the following exchange took place between Antonio and the State:
Q. You mentioned -- you mentioned your [written]
statement before. If you said something different in
your statement that you wrote --
A. That was about three years ago. I really -- I really
can’t think of it back then.
Q. Well, do you think you would have remembered
things the day after they happened more clearly
than you do today?
A. Huh-uh. I be having a lot of stuff going on.
Q. Okay.
A. I can read what I said in that statement.
-7-
STATE V. BROWN
Opinion of the Court
Antonio then confirmed that his mother had called the police department on 16
December 2013; that he later went to the Cheraw Police Department, where he spoke
to an investigator; and that he had given the investigator a written statement.
Relevant excerpts from this portion of Antonio’s testimony include the following:
Q. And did you tell [the investigator] what you knew?
A. Yeah, I told him what -- yeah, what [defendant] told
me. [Defendant] be saying all kinds of stuff when he
drunk and stuff so I took it serious and went and told
‘cause I ain’t trying to be in trouble or nothing.
Q. Because you didn’t want to be in trouble, you were
trying to tell [the investigator] everything that you
knew?
A. Yeah. Everything that I knew that what he said on
the statement.
The State approached Antonio with an exhibit and established that Antonio
recognized it as his written statement based on his handwriting and signature; that
it was dated 17 December 2013; and that it did not appear to have been changed or
altered in any way. The State then moved to admit Antonio’s statement into
evidence, prompting defendant to again “object just to the extent it’s offered to prove
the truth of the matter asserted and ask for a limiting instruction.”
The trial court excused the jury following defendant’s objection. Outside of the
jury’s presence, defendant argued that both Reginald and Antonio’s written
statements were hearsay, because they were not made while the witnesses were
testifying at trial, and that the State had failed to lay a proper foundation for
-8-
STATE V. BROWN
Opinion of the Court
admission of the statements under the hearsay exception for recorded recollections.
Specifically, defendant asserted that the State had failed to establish that either
witness had an insufficient recollection of what defendant told him on 16 December
2013, as each witness had testified to what defendant told him that day, and neither
witness had claimed in his testimony to not remember what defendant said.
Defendant also argued that the State was improperly impeaching its own witness by
introducing a prior statement that the State knew to be inconsistent with the
witness’s testimony.
In response to defendant’s arguments, the court made the following oral
findings of fact and legal conclusions regarding the witnesses’ testimony and the
various out-of-court statements: (1) that defendant’s out-of-court statement to
Reginald  that “[defendant] told [Reginald] that he did it”  was admissible via
Reginald’s testimony as a statement of a party-opponent; (2) that defendant’s more
detailed out-of-court statements were recorded in Reginald and Antonio’s written
statements at a time when defendant’s statements were fresh in the witnesses’
memories; (3) that based on both witnesses’ testimonies  particularly Antonio’s
testimony that three years had passed and he has “a lot of stuff going on”  the
witnesses had an insufficient recollection of what they wrote down for the
investigator on 17 December 2013; (4) that the witnesses testified that they did, in
fact, write down for the investigator what defendant said on 16 December 2013; (5)
-9-
STATE V. BROWN
Opinion of the Court
that this was “a case of a witness who’s talking about events three years later,” not
of the State impeaching its own witness; and (6) that both written statements 
presuming they constitute hearsay, which the court questioned  fit within the
hearsay exception for recorded recollections under Rule 803(5) of the Rules of
Evidence. The court then overruled defendant’s objection, denied his request for a
limiting instruction, and allowed Antonio’s written statement to be read to the jury.
In his written statement, Antonio indicated that defendant told Antonio, “I
killed both of them. . . . my baby mama and her boyfriend”; that defendant “showed
[Antonio] on the internet that he killed them”; that defendant said, “I was waiting on
the porch for three hours until she put her kids on the bus and I shot them”; and that
defendant “got [Antonio] to take to him to Hartsville to bring [their] cousin Lorenzo
Brown back the gun he killed the two people with.”
On cross-examination, Antonio testified that he never saw a gun. Antonio’s
testimony ended with the following exchange on redirect examination by the State:
Q. . . . [I]s is fair to say that you’d do what you could to
help your brother out?
A. You say I do what I -- yeah. I’m saying -- but this
stuff I wrote, though, he was drunk. I just telling
you what -- yeah, I wouldn’t -- I wouldn’t lie for him
or nothing, but yeah.
Q. So what you wrote in your statement is what you
heard [defendant] say on the 16th?
A. Yeah. When he was drunk and stuff, what he say.
Additional Evidence
- 10 -
STATE V. BROWN
Opinion of the Court
Additional evidence presented at trial tended to show the following:
Durham police officers responding to the crime scene on the morning of 16
December 2013 canvassed the neighborhood for witnesses. Several of Jessica’s
neighbors reported hearing gunshots around the time the high school bus came,
which was before 7:00 a.m.
Investigators recovered eight latent fingerprint lifts and collected swabs for
DNA testing from the crime scene. None of the fingerprints matched those of
defendant, Jessica, or her boyfriend, and none of the DNA profiles matched that of
defendant.
With the aid of a metal detector, investigators recovered seven spent .45 caliber
shell casings from Jessica’s front yard.
On 31 December 2013, Hartsville police officers apprehended defendant’s
cousin, Lorenzo Brown, and retrieved a .45 caliber handgun from his person.
A forensic firearms analyst compared the markings of test shell casings from
the handgun retrieved from Lorenzo to six of the seven spent shell casings collected
from the crime scene. In the analyst’s expert opinion, the markings matched.
Outcome at Trial
Before the State rested, defendant renewed his objection to Reginald and
Antonio’s written statements being admitted as substantive evidence, while the State
requested that Reginald’s videotaped statement be admitted for both illustrative and
- 11 -
STATE V. BROWN
Opinion of the Court
substantive purposes. The trial court reiterated that the two written statements
were admissible as recorded recollections under Rule 803(5) of the Rules of Evidence;
instructed the State that it could read the statements to the jury, but could not
provide the jury with physical copies of the statements; and denied defendant’s
request for a limiting instruction. As to Reginald’s videotaped statement, the court
again deemed the recorded interview to be illustrative evidence, and it denied the
State’s request that the statement also be admitted for substantive purposes.
During the charge conference, the court indicated that it would instruct the
jury on “photographs and videos as illustrative evidence” as well as “impeachment or
corroboration by prior statement.” The court subsequently instructed the jury that
“[p]hotographs and video, specifically the video of Reginald Brown, were introduced
into evidence in this case for the purpose of illustrating and explaining the testimony
of a witness or witnesses. These photographs and videos may not be considered by
you for any other purpose.” The court also instructed the jury that
Evidence has been received tending to show that at an
earlier time a witness made a statement which may conflict
with or be consistent with the testimony of the witness at
this trial. You must not consider such earlier statement as
evidence of the truth of what was said at that earlier time
because it was not made under oath at this trial. If you
believe the earlier statement was made, and that it
conflicts with or is consistent with the testimony of the
witness at this trial, you may consider this and all other
facts and circumstances bearing upon the witness’s
truthfulness in deciding whether to believe or disbelieve
the witness’s testimony.
- 12 -
STATE V. BROWN
Opinion of the Court
On 2 August 2016, the jury returned verdicts finding defendant guilty of two
counts of first-degree murder, and he was sentenced to life imprisonment without
parole for each. Defendant entered notice of appeal in open court.
II.
On appeal, defendant contends that the trial court violated the evidentiary rule
against hearsay by admitting Reginald and Antonio’s prior written statements as
substantive evidence, and by admitting Reginald’s videotaped statement as
illustrative evidence.1 Defendant argues that these erroneously-admitted statements
served as the “linchpin” of the State’s case against him, and that a reasonable
possibility exists that the jury would have reached a different result had the
statements been excluded. For these reasons, defendant asserts that his convictions
must be reversed and his case remanded for a new trial.
Each assignment of error is addressed in turn.
Admission of Prior Written Statements
Defendant first contends that the two prior written statements should not have
been read to the jury because the State failed to lay a proper foundation for admission
1 Defendant also asserts that the trial court erred in denying his request for a limiting
instruction as to the evidence in question, and that such an error deprived defendant of his
constitutional rights to due process and a fair trial. Because defendant fails to address this issue in
his brief, it is deemed abandoned on appeal. See N.C. R. App. P. 28(b)(6).
- 13 -
STATE V. BROWN
Opinion of the Court
pursuant to the recorded recollections exception to the rule against hearsay under
Rule 803(5) of the Rules of Evidence. We disagree.
Hearsay is “a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted
[in that statement].” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2015) (emphasis added).
“Hearsay is not admissible except as provided by statute or by [the evidentiary]
rules.” N.C. Gen. Stat. § 8C-1, Rule 802 (2015). Rule 801(d), for example, provides
that a defendant’s own out-of-court statement is admissible when offered against him
at trial, while Rule 803 sets forth numerous exceptions to the rule against hearsay
when certain conditions are met. N.C. Gen. Stat. §§ 8C-1, Rules 801(d), 803 (2015).
Initially, we must note that defendant is correct in maintaining that the two
prior statements at issue here constituted hearsay. Regardless of the fact that the
declarants, Reginald and Antonio, were witnesses testifying at trial, their written
statements were not made while testifying at trial; rather, they were made at a police
department in South Carolina nearly three years prior to trial. Thus, the statements
were inadmissible as substantive evidence  that is, for their truth value  unless
they fit within an exception to the rule against hearsay.
Rule 803 of the Rules of Evidence provides that one type of out-of-court
statement, labeled a “recorded recollection,” is admissible as an exception to the rule
against hearsay. Specifically, Rule 803(5) allows a memorandum or record of an
- 14 -
STATE V. BROWN
Opinion of the Court
event to be read into evidence where (1) the witness once had knowledge about the
matters he recorded, (2) the witness now has insufficient recollection to enable him
to testify fully and accurately about those matters, and (3) the record was made or
adopted by the witness at a time when the matters were fresh in his memory and
reflected his knowledge correctly. N.C. Gen. Stat. § 8C-1, Rule 803(5). “The rule
applies in an instance where a witness is unable to remember the events which were
recorded, but the witness recalls having made the entry at a time when the fact was
fresh in her memory, and the witness knew she recorded it correctly.” State v. Spinks,
136 N.C. App. 153, 15859, 523 S.E.2d 129, 133 (1999) (holding that witness’s
recorded statement should not have been read into evidence where witness did not
write statement herself, and testified, “I didn’t even read it. I just signed this piece
of paper.”).
“We review de novo the trial court’s determination of whether an out-of-court
statement is admissible pursuant to N.C. R. Evid. Rule 803.” State v. Wilson, 197
N.C. App. 154, 159, 676 S.E.2d 512, 515 (2009). Thus, whether a prior written
statement is admissible as substantive evidence under Rule 803(5)’s hearsay
exception for recorded recollections is a question of law that is reviewed by this Court
as if we were considering the issue for the first time. However, a trial court’s findings
of fact are binding on appeal when supported by any competent evidence. State v.
Ross, 329 N.C. 108, 123, 405 S.E.2d 158, 167 (1991).
- 15 -
STATE V. BROWN
Opinion of the Court
Here, although the trial court initially questioned whether the prior written
statements constituted hearsay, it concluded that the statements were nevertheless
admissible pursuant to the hearsay exception for recorded recollections under Rule
803(5). As to Rule 803(5)’s foundational requirements, the court found that on 17
December 2013, when the matters were still fresh in their memories, the witnesses
wrote down what defendant told them on 16 December 2013. The court also found
that based on their testimonies as well as the substantial amount of time that had
passed since they recorded their statements, the witnesses had insufficient
recollections as to the matters they recorded. Pursuant to the additional provisions
of Rule 803(5), the court allowed the statements to be read into evidence, but it denied
the State’s attempt to distribute physical copies of the statements to the jury.
In asserting that the trial court erred in admitting the statements as recorded
recollections under Rule 803(5), defendant contends for the first time on appeal that
the State failed to establish that the written statements correctly reflected the
witnesses’ prior knowledge of the matters recorded therein. Defendant maintains his
argument that the State also failed to establish that the witnesses had insufficient
recollections about the matters recorded, while he abandons his objection at trial to
the extent that it was based on improper impeachment by the State.
As to defendant’s argument regarding the accuracy of the prior written
statements, we first note that defendant did not lodge an objection at trial on that
- 16 -
STATE V. BROWN
Opinion of the Court
particular basis. See N.C. R. App. P. 10(a)(1); see also Weil v. Herring, 207 N.C. 6, 10,
175 S.E. 836, 838 (1934) (“[T]he law does not permit parties to swap horses between
courts in order to get a better mount . . . .”). Nevertheless, even a cursory review of
the record on appeal reveals that defendant’s contention is meritless.
Prior to reading his statement, each witness testified on direct examination
that he recalled giving a written statement to the investigator; that he recognized the
document presented by the State as being that statement; that he recognized his own
handwriting and signature on that statement; and that the statement, dated 17
December 2013, did not appear to have been changed or manipulated in any way.
Additionally, after Reginald read his statement, the State specifically asked him,
“Was that the statement you wrote?,” to which he responded, “Yes, sir.” Reginald
further testified, on redirect, that he wrote down all the information that he had at
that time, and that the information he wrote down was what defendant had told him.
Similarly, Antonio testified on direct examination that he tried to write down
everything that he knew defendant had said. After he read his statement, Antonio
confirmed on redirect that what he wrote in his statement was what he heard
defendant say on 16 December 2013.
Based on the foregoing testimony, we conclude that the State properly
established that the written statements correctly reflected the witnesses’ prior
- 17 -
STATE V. BROWN
Opinion of the Court
knowledge of the matters recorded therein, and defendant’s argument to the contrary
is overruled.
Defendant also contends that the State failed to establish that Reginald and
Antonio had insufficient recollections about the matters recorded in their prior
statements. He argues that neither witness testified to not remembering what
defendant told him on 16 December 2013, which defendant asserts is a necessary
component of Rule 803(5)’s foundational requirements. We disagree.
Rule 803(5) requires only that a witness’s recollection be insufficient “to enable
him to testify fully and accurately” about the matters he previously recorded. N.C.
Gen. Stat. § 8C-1, Rule 803(5) (emphasis added). In determining if a witness’s
recollection is sufficiently exhausted for purposes of Rule 803(5), the relevant inquiry
is “whether the witness is using the memorandum as a testimonial crutch for
something beyond his recall.” State v. York, 347 N.C. 79, 89, 489 S.E.2d 380, 386
(1997) (emphasis added).
The testimonies of both Reginald and Antonio leading up to the introduction of
their prior written statements show that this evidence was necessary “as a
testimonial crutch for something beyond [their] recall.” Id. Each witness established
that he wrote his statement on 17 December 2013  nearly three years prior to trial.
On direct examination, Reginald could not recall numerous details surrounding the
events of that date, including what time defendant came to his home on the morning
- 18 -
STATE V. BROWN
Opinion of the Court
of 16 December 2013, which family member initially called the police, which police
department had been called, and exactly what day he spoke to an investigator at the
Cheraw Police Department. Although Reginald testified that “[defendant] told me
that he did it” and “[defendant] told me he was the one that did it,” it is apparent that
he was unable to testify fully and accurately regarding that conversation, while
Antonio explicitly testified that his statement was written “about three years ago”
and he “really can’t think of it back then.”
Based on the foregoing testimony, the trial court found that each witness had
an insufficient recollection of the matters recorded in his statement. The trial court’s
findings were based on competent evidence and support the conclusion that the prior
written statements fit within the hearsay exception for recorded recollections.
Accordingly, defendant’s argument that the State failed to lay a proper foundation
for admissibility under Rule 803(5) is overruled.
Admission of Videotaped Statement
Despite the fact that it was not admitted as substantive evidence, defendant
argues that the trial court erred by admitting Reginald’s videotaped statement as
illustrative evidence because  like the two prior written statements  the
videotaped statement constituted inadmissible hearsay. We disagree.
On appeal, defendant fails to distinguish his argument regarding the
videotaped statement from his argument regarding the written statements, ignoring
- 19 -
STATE V. BROWN
Opinion of the Court
the fact that the trial court twice issued a limiting instruction as to the former.
Specifically, the court instructed the jury during trial that the DVD was being
admitted for the limited, non-hearsay purpose of illustrating Reginald’s testimony.
At the end of trial, the court again instructed the jury that the videotaped statement
may not be considered for any purpose other than illustration, and that the prior
statements of witnesses in general should not be considered “as evidence of the truth
of what was said” in those statements. Thus, because the videotaped statement was
not admitted for substantive purposes, defendant cannot rely solely on his hearsay
argument as to the prior written statements in contending that the court likewise
erred in admitting Reginald’s videotaped statement.
“We have long held that a jury is presumed to follow the instructions given to
it by the trial court.” State v. Hyatt, 355 N.C. 642, 663, 566 S.E.2d 61, 75 (2002).
Further, “the ruling of the court below in the consideration of an appeal therefrom is
presumed to be correct.” Beaman v. Southern Ry. Co., 238 N.C. 418, 420, 78 S.E.2d
182, 184 (1953) (citations and quotation marks omitted). Because we presume that
the jury did not consider the videotaped statement as substantive evidence, and
because defendant has failed to submit a cohesive argument or to cite to any legal
authority for the proposition that the trial court erred in admitting the DVD for the
limited, non-hearsay purpose of illustrating Reginald’s testimony, defendant’s
assignment of error is overruled.
- 20 -
STATE V. BROWN
Opinion of the Court
III.
Because the two prior written statements were properly read to the jury
pursuant to the hearsay exception for recorded recollections under Rule 803(5), and
because defendant has failed to allege an independent argument regarding the
admissibility of the videotaped statement as illustrative evidence, we hold that the
trial court did not err in admitting the out-of-court statements into evidence. We also
note that defendant did not challenge Reginald’s testimony that “[defendant] told
[him] that he did it” and “[defendant] told [him] he was the one that did it,” which the
trial court properly allowed as an admission of a party opponent pursuant to N.C.
Gen. Stat. § 8C-1, Rule 801(d). For the reasons stated herein, we conclude that
defendant received a fair trial, free from error.
NO ERROR.
Judges STROUD and TYSON concur.
- 21 -