State v. Abbitt

• Docket Number: 334A21
• Decision Date: 01 September 2023
• Parties: STATE OF NORTH CAROLINA v. SINDY LINA ABBITT and DANIEL ALBARRAN
• Court: North Carolina Supreme Court

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STATE OF NORTH CAROLINA
v.
SINDY LINA ABBITT and DANIEL ALBARRAN

No. 334A21

Supreme Court of North Carolina

September 1, 2023

Heard in the Supreme Court on 27 April 2023.

Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 278 N.C.App. 692 (2021), finding no prejudicial error in defendants' trial, resulting in judgments entered on 13 March 2019 by Judge Lori I. Hamilton in Superior Court, Rowan County.

Joshua H. Stein, Attorney General, by Laura H. McHenry, Special Deputy Attorney General, for the State.

Anne Bleyman for defendant-appellant Sindy Lina Abbitt.

M. Gordon Widenhouse, Jr. for defendant-appellant Daniel Albarran.

MORGAN, JUSTICE.

This appeal concerns the admissibility of defendants' proffered evidence which they asserted would tend to show that two other individuals-not defendants-had committed the crimes for which defendants were being tried and that defendants themselves were not involved. We agree with the trial court's determination that the evidence in question did not meet the pertinent relevancy requirements for the

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admissibility of such evidence. Accordingly, we affirm the portion of the decision of the Court of Appeals at issue before us which upheld the trial court's ruling that defendants' evidence which speculatively imputed blame for the charged offenses to other potential suspects could not be presented to the jury.

I. Background

A. Factual and trial history

In 2016, defendants were charged with first-degree murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon. The two were tried jointly in a non-capital proceeding. The charges brought against defendants arose from crimes that were committed in Salisbury on the night of 24 May 2016. The evidence at trial tended to show the following: Mary Gregory was in the living room of her apartment with her three-year-old grandson Meaco when Lacynda Feimster- Gregory's daughter and Meaco's mother-returned from work. When Feimster entered the apartment, she was accompanied by a Black woman and followed by a Hispanic^[1] man. The woman was carrying a black gun with a brown handle. At trial, Gregory testified that neither of the persons with Feimster was known to her. After telling Gregory, "I got this," Feimster entered her bedroom with the woman and closed the door. After Meaco began to cry, Feimster and the woman opened the bedroom door and allowed Meaco to go into the room to join his mother.

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As the man sat in the living room with Gregory, he refused to tell Gregory his name or where he lived when she attempted to engage him in conversation. The man took Gregory's cellular telephone away from her when Gregory attempted to call Feimster's teenage daughter to come take Meaco away from the apartment. Gregory described the man as tall, with wavy black hair that was combed or slicked back. She did not mention any facial hair or visible tattoos on the man. Gregory also stated that the man was wearing a long-sleeved jacket, a white T-shirt, and white low-top tennis shoes. He also had on "dirty looking" latex gloves.

Gregory testified at trial that during the time that the criminal perpetrators were in her home, the man opened the front door of the apartment several times, looking outside; he also made several telephone calls, including one in which Gregory heard the man say to an unknown person, "She wants to know how far you are. Where are you? How far away are you?" After the call, the man went to the bedroom in which his female accomplice, Feimster, and Meaco were located. The woman told Gregory to enter the bedroom. Feimster and Meaco were seated on Feimster's bed. The woman briefly left the bedroom. Upon her return, she struck Gregory in the face with the gun, knocking Gregory to the floor and ordering Gregory to "stay down." Gregory described the woman as short, stocky, and dark-skinned, having shoulder-length hair and wearing red tennis shoes. Gregory testified that the woman seemed to be in charge, continually telling the man what to do. The woman told the man to search the bedroom, but upon doing so, the man apparently did not discover the item or items

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being sought. The man then left the bedroom. Feimster then stated to the woman, "If I had it, I would give it to you. I don't have any money." Gregory also informed the woman that Feimster did not have any money. The woman forced Feimster to the floor. Feimster curled around Meaco "in a fetal position" with the female perpetrator using her knee and her hand to keep Feimster on the floor. The woman said to Feimster, "Bitch, you should have gave [sic] me the mother fucking money," shot Feimster in the head, and ran out of the apartment. Gregory used a telephone to call the emergency telephone number 911 for help, but Feimster died as a result of the gunshot wound. An autopsy showed that Feimster had also suffered blunt force trauma to the head before her death. Gregory received eight stitches to her face and suffered a broken nose. Meaco escaped the incident without sustaining physical injury.

Defendants were identified as suspects in the crimes, including Feimster's killing.^[2] Approximately three days after the commission of the offenses, Gregory identified both defendants as the perpetrators with one hundred percent certainty through the usage of photographic lineups. Gregory identified defendants again during the investigation by law enforcement as well as at trial. On cross-examination of Gregory at trial, counsel for defendant Abbitt asked Gregory if Gregory's

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granddaughter JaQuela Green had shown Gregory a picture of a woman named Ashley Phillips. Gregory responded that neither JaQuela nor anyone else had shown Gregory such a picture.

At a hearing conducted on 7 March 2019, outside of the presence of the jury, the State announced that it "had filed a motion in limine to [ex]clude the mention of possible guilt[ ] of another"^[3] in light of defendants' opening statements and some of the questions posed to Gregory upon cross-examination by defense counsel. The State's motion in limine was premised upon the State's position that for any evidence to be relevant and admissible with regard to the suggestion or insinuated culpability of someone other than defendants of criminal wrongdoing, the evidence of the guilt of another must both "point directly to the guilt of the other party and be inconsistent with the guilt of the defendant[s]." The State contended in its motion that defendants' proffered evidence did not satisfy the second prong of this relevancy test.

In divulging their proffered evidence to the trial court in response to the State's motion in limine, trial counsel for defendants explained that, in defendants' view, the police had failed to conduct a thorough investigation of two other people who should be considered as the perpetrators of the crimes at issue. Through their counsel, defendants represented that, during the investigation by the Salisbury Police

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Department (SPD) of Feimster's murder, a Black woman named Ashley Phillips was identified by a member of Feimster's family as a potential suspect. In appearing for her interview by officers at the police station, Phillips arrived in a car which matched the description provided by a confidential informant of a vehicle that was present at the apartment complex where Gregory resided on the day of Feimster's killing.^[4] In the car in which Phillips rode to her police station interview, officers discovered a .25 caliber gun-"the same caliber of gun that the shell casing at the scene came from"- and white latex gloves similar to the type of latex gloves that Gregory testified that the male perpetrator was wearing.^[5] Although police did not conduct a photographic lineup with Gregory that included a picture of Phillips, when Gregory ultimately was shown a photograph of Phillips, Gregory said, "Well, she does look like her," referring to the woman who had shot Feimster. Defense counsel reasoned that Gregory's identification of defendants could be called into question. Finally, trial counsel for defendant Albarran asserted that under the State's theory of the case, "if one [defendant] is guilty[,] the other [defendant] is guilty.... without one, there's not the other," such that "Albarran's defense . . . dovetails on [ ] Abbitt's defense."

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Defendants further theorized that the man who accompanied Phillips as the second individual who committed the criminal acts at issue was known as Tim Tim McCain. McCain and Phillips were commonly associated with one another according to defendants, and although the confidential informant did not place Phillips in the area where the crimes occurred at the same time that they were committed, nonetheless McCain could have been the male perpetrator because he was observed in the vicinity of Gregory's apartment with a woman who resembled Phillips near the time of the perpetration of the crimes. Hence, defendants argued that the woman and the man who performed the criminal acts at issue were not the two of them, but instead were the duo of Phillips and McCain.

In addition to its interpretation of the cited legal principles which govern this area of the law, the State relied upon its perceived certainty and consistency of Gregory's identification of defendants as the wrongdoers, contending that "Gregory is very clear about the two individuals she saw inside of her home when this incident occurred."

After listening to the arguments of the parties, reviewing the State's motion, and consulting the case citations on relevancy provided by defendants, the trial court cited State v. Cotton, 318 N.C. 663, 667 (1987) for the legal concept that evidence of the guilt of others must be relevant under Rule of Evidence 401 and "must tend both to implicate another and be inconsistent with the guilt of the defendant." "[T]aking the evidence in the light most...