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Criminal Practice – Voir Dire – Hearsay – Corroborating Statement – Plain Error

Criminal Practice – Voir Dire – Hearsay – Corroborating Statement – Plain Error

State v. Johnson. (Lawyers Weekly No. 11-07-0226, 20 pp.) (Donna S. Stroud, J.) Appealed from Durham County Superior Court. (J.B. Allen, J.) N.C. App. Click here for the full text of the opinion.

Holding: The trial court did not err in the restrictions it placed upon the defendant’s voir dire or in the admission of a written statement of a witness that corroborated the witness’ testimony. There was no plain error in the trial court’s admission of a video interrogation.


Defendant, Marley, Flowers and Lee met at a liquor house. The four men left the liquor house in a gray Chevrolet Suburban and stopped at Lee’s house.

When they left Lee’s house, Flowers was driving. One AK-47 assault rifle was in the car and both Marley and defendant were armed with handguns. Defendant was seated in the back passenger’s side seat. Marley was in the front passenger’s side seat, and Lee was seated in the back driver’s side seat.

At some point in their drive, the men spotted Darriaes McClain and pulled up alongside his car; both Marley and defendant stuck their guns out of the window, and defendant fired at McClain’s car. McClain was hit by multiple bullets and died of his injuries.

Defendant was indicted on charges of first-degree murder and discharging a firearm into an occupied vehicle.

At trial, two other participants in the attack testified against defendant pursuant to plea agreements and in exchange for a reduction in their sentences, and a third contacted authorities seeking a reduction in his federal sentence on other charges.

Defendant was convicted of first-degree murder and sentenced to life in prison without parole for the first-degree murder conviction.

Voir Dire

Defendant argued that the trial court improperly limited questioning of potential jurors to questions that enabled his attorneys to assess the credibility of witnesses and, secondly, to assess jurors’ ability to follow the law on reasonable doubt.

In order for defendant to show reversible error, he must show that the trial court abused its discretion and that he was prejudiced thereby. Appellate review of voir dire questioning requires the appellate court to focus not just on isolated questions, but on the entire record of the voir dire.

The two purposes of voir dire are to allow the parties (1) to determine whether there exists a reason to challenge a prospective juror for cause; and (2) to intelligently exercise their limited number of peremptory challenges.

Defendant objected to four exchanges among his counsel, the court, the state and potential jurors.

In the first instance, defense counsel attempted to question the prospective juror regarding the “type of facts” that he would use to determine “if someone is telling [him] the truth.” Hypothetical questions that seek to indoctrinate jurors regarding potential issues before jurors have been instructed on applicable principles of law are impermissible. The jury had not been instructed on the legal standard for weighing a witness’s credibility. The trial court properly interrupted defense counsel’s attempt to “stake out” this juror as to the way he would assess credibility.

In the second instance, defense counsel did not merely seek to learn if the prospective juror could follow the law as given but, asked her to state the weight that she would give one factor in her analysis: “Would it be important to you that a person could actually observe or hear what they said they have from the witness stand?” With no evidence yet before the jury, this question seeks to prepare the way for a particular argument that there is some question about the ability of one or more of the witnesses to “observe or hear what they said they could have from the witness stand.” Seeking to indoctrinate jurors regarding a potential issue before the evidence had been introduced does not serve the proper purposes of voir dire; as such, the state’s objection was properly sustained.

In the third instance, after a restatement of the law by the trial court, defense counsel continued his questioning of a prospective juror regarding the effect on the prospective juror’s opinion of testimony obtained from a witness who was receiving a benefit from that testimony. The question of interested witness testimony is generally one that is ripe for consideration during voir dire. But here the possibility of interested witness testimony had not been mentioned by the state prior to defense counsel’s posing the inquiry in question, and jurors had been given no guidance as to the law for the assessment of the testimony of an interested witness.

Defense counsel sought, without the noticeable and exact preface of relevant law given in State v. Jones, 339 N.C. 114, 451 S.E.2d 826 (1994), to query a juror regarding the potential weight she would ascribe to interested witness testimony. The state’s objection in this case was properly sustained.

Defendant argued that he was improperly limited in his questioning of jurors regarding their ability to follow the law on reasonable doubt. Defense counsel sought to get a prospective juror to state what he would do if he didn’t find beyond a reasonable doubt on the fourth element. This question attempted to get a juror to pledge himself to a future course of action.

Attempting to elicit a prospective juror’s decision under a certain state of the evidence or upon a given state of facts has been prohibited by our Supreme Court and was properly prohibited in this case.

The limitations imposed by the trial court on defendant’s jury voir dire questions were not an abuse of discretion and may not, therefore, be overturned by this court.

Written Statement

Defendant argued that the statement of Flowers was improperly admitted over his objection because it was hearsay not subject to any exception.

Statements properly offered to corroborate former statements of a witness are not offered for their substantive truth and consequently are not hearsay. Corroborating statements are those statements that tend to strengthen; to add weight or credibility to a thing by additional and confirming facts or evidence.

It is evident from a review of the record that Flowers’s written statement is generally consistent with his testimony. Because Flowers’s written statement was properly admitted to corroborate his trial testimony, we find no error in its admission.

Recording of Marley

Defendant argued that the admission of Marley’s interrogation was in error in that the statement was hearsay not subject to any exception. He argued that it was plain error for the court to admit the recording of the interrogation.

In order for the appellate court to make a finding of plain error, the court must be convinced that, absent the proposed error, the jury would have reached a different verdict. Even without the recorded testimony of witness Marley, the jury was presented with substantial evidence of defendant’s guilt.

Given the strength and consistency of the evidence against defendant as to all the essential elements of each of the crimes charged, it is not likely that the jury would have reached a different verdict even absent the admission of witness Marley’s recorded interrogation; therefore, there is no plain error in its admission.

No error.


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