Criminal Practice – Closing Argument – No Evidence Presented – New Trial – Evidence Preservation – Similar Break-In

State v. Matthews (Lawyers Weekly No. 12-07-0064, 16 pp.) (Linda M. McGee, J.) Appealed from Mecklenburg County Superior Court. (Eric L. Levinson, J.) N.C. App. Click here for the full-text opinion.

Holding: Even though, during his cross-examination of a prosecution witness, defendant elicited a confirmation that another person had initially been identified as a suspect, defendant did not present evidence within the meaning of Rule 10 of the General Rules of Practice for the Superior and District Courts. Therefore, defendant should have been allowed the final closing argument.

Defendant is entitled to a new trial.

Defendant learned about the original suspect from the prosecution witness’ written report, but defendant did not introduce the actual report into evidence, nor did defendant have the witness read the report to the jury. We cannot say the identification of other suspects by the police constituted new evidence that was not relevant to any issue in the case.

Moreover, while questioning a subsequent witness, the state also introduced evidence about the original suspect.

Defendant did not introduce evidence within the meaning of Rule 10; therefore, the trial court erred in denying defendant the final closing argument.

We address other issues because they might reoccur at a new trial.

Even though the police did not preserve cigarette cartons from which blood was collected at the scene of the break-in, the trial court correctly denied defendant’s motion to exclude DNA evidence. Defendant does not argue any bad faith on the part of law enforcement officers, nor does he identify any irregularities in the collection or analysis of the samples collected that would call into question the results of the analysis; therefore, defendant fails to demonstrate any exculpatory value attached to the cigarette cartons from which the blood samples were collected.

Even though defendant had not yet been tried with respect to a subsequent break-in, the trial court properly admitted evidence of the subsequent break-in. DNA evidence from the subsequent break-in was matched to defendant, and the circumstances of the two break-ins were sufficiently similar to show intent, identity, modus operandi, and a common scheme or plan. The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.

New trial.