                                   NO. COA13-1289

                        NORTH CAROLINA COURT OF APPEALS

                             Filed:    2 September 2014

STATE OF NORTH CAROLINA

      v.                                        Wilkes County
                                                Nos. 09 CRS 54801, 10 CRS 405
JAMES DOUGLAS TRIPLETT



      Appeal by defendant from judgment entered 18 February 2013

by   Judge    Edgar   B.    Gregory     in   Wilkes   County    Superior    Court.

Heard in the Court of Appeals 9 April 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General John H. Watters, for the State.

      Appellate  Defender          Staples S.  Hughes, by Assistant
      Appellate Defender           David W. Andrews, for defendant-
      appellant.


      McCULLOUGH, Judge.


      James     Douglas     Triplett     (“defendant”)     appeals       from   the

judgment entered upon his conviction for first degree felony

murder.      For the following reasons, we grant a new trial.

                                   I. Background

      On   19   April      2010,   a   Wilkes   County   Grand    Jury    indicted

defendant on charges of first degree murder, robbery with a

dangerous weapon, and first degree burglary.                   Following various

pretrial motions by defendant, defendant’s case came on for jury
                                   -2-
trial in Wilkes County Superior Court on 4 February 2013, the

Honorable Edgar B. Gregory, Judge presiding.

    The evidence at trial tended to show that after a day of

drinking and drug use, defendant, his brother Eddie Triplett,

and two other men, Ben Watson and Dillon Walsh, went to the

residence   of   Bruce   Barnes   (“victim”)   on   the   evening   of   9

December 2009 in search of drugs.          While present at victim’s

residence, the men got into a skirmish with victim, during which

defendant fatally stabbed victim.

    At trial, the State prosecuted the case on the theory that

defendant, Eddie, Ben, and Dillon had planned to rob victim of

his drugs and defendant killed victim in perpetration of the

robbery.    Defendant, on the other hand, maintained throughout

trial that he was ignorant of any plan to rob victim.          Defendant

testified that he agreed to go to victim’s house to get high and

passed out on the way to victim’s house.            Defendant did not

recall anything from the ride        to   victim’s house.      Defendant

testified he woke up and came to when he heard Dillon holler

“He’s got a gun.     He’s got a gun.”       At that point, defendant

realized Eddie and Dillon were in a fight with victim and he

entered the fight.       Defendant testified he did not intend to
                                        -3-
kill victim but stabbed victim to protect Eddie, Dillon, and

himself.

    On 18 February 2013, the jury returned verdicts finding

defendant    guilty    of     robbery   with    a   dangerous   weapon,   second

degree burglary, and first degree murder under the first degree

felony murder rule.           The trial court then arrested judgment on

defendant’s convictions for robbery with a dangerous weapon and

second   degree     burglary     and    entered     judgment    on   defendant’s

conviction    for     first    degree    felony     murder.      Defendant   was

sentenced to life imprisonment with the possibility of parole.

Defendant gave oral notice of appeal in open court following

sentencing.

                                 II. Discussion

    Now on appeal, defendant raises the following two issues:

whether the trial court erred by:              (1) preventing defendant from

cross-examining his sister, Teresa Ogle, with a recording of a

voicemail message she left for defendant’s other sister in order

to attack Ogle’s credibility; and (2) allowing the State to use

defendant’s silence against him.

                               Voicemail Message

    At trial, defendant’s sister Teresa Ogle testified as a

witness for the State.            During her testimony, Ogle explained
                                                   -4-
that defendant lived with her in a single wide mobile home on

family land at the time of the incident in early December 2009.

Although      Ogle    owned          the    mobile       home,    another    of    defendant’s

sisters, Connie Jennings, owned the land.

         In   response          to    questioning           by    the     State    on     direct

examination,         Ogle       described          what     happened      the     night    of    9

December       2009        when           defendant       returned        home     after        the

altercation.          On the whole, Ogle’s testimony was damaging to

defendant.

         Specifically, Ogle testified that she worked third shift

security and was getting ready for work when defendant came home

on   9    December        2009       at     approximately        10:40    p.m.         Defendant

entered       the    mobile      home        alone,       but    Eddie,    Ben,    and    Dillon

followed closely            behind.           Ogle recalled that            Eddie had been

stabbed in the leg and defendant’s clothes were bloody.                                          At

first, defendant claimed he shot a deer and, while trying to cut

the deer’s throat, had stabbed Eddie in the leg.                                    Defendant,

however, quickly changed his story, admitting he killed a man

and stating he was no different than Jack Keller, defendant’s

grandfather         who    killed          defendant’s      grandmother.          As     the    men

discussed what they should do with their clothes, Ogle overheard

defendant      tell       the    other       men    they    were    going    to    burn    their
                                     -5-
clothes in a barrel.         Yet, Ogle did not see the men dispose of

their clothes because she left for work.            Ogle testified that as

she was leaving, defendant gave her two intertwined pot holders.

Ogle   claimed   she   did    not   know   what   was   inside   of   the   pot

holders, but admitted she disposed of them over the side of a

bridge on her way to work.

       Ogle testified that defendant later told her that he knew

Ben had planned to rob victim and that he took a knife from her

kitchen before they went to victim’s residence because he knew

victim had a gun.      Ogle confirmed that a large knife was in fact

missing from her kitchen knife set.

       Ogle additionally testified that sometime after defendant

was arrested and charged with victim’s murder, she received a

phone call from defendant.            Ogle recalled that during their

conversation, defendant indicated he did not want her to testify

against him.     When Ogle said she would tell the truth, defendant

began cussing, indicated that he wanted her to lie, and hung up.

       On cross-examination, the defense sought to attack Ogle’s

credibility with questions concerning statements made by Ogle to

family members that were inconsistent with her trial testimony.

The defense’s questions tended to suggest that Ogle played a

larger role in destroying evidence following victim’s death but
                                               -6-
that Ogle was lying on the witness stand to protect herself.

The defense also inquired into Ogle’s mental health, drug use,

and past sexual activity.                 When the defense asked Ogle if she

remembered engaging in risky sexual behavior, the State objected

and the jury was excused while voir dire was conducted.

    Prior     to    the      jury’s       return       following       voir    dire     and   a

morning    break,      the    defense      informed        the    court       that   it   also

intended to cross-examine Ogle with a recording of a voicemail

message    she     left      for    Shay       Waddell,       another     of    defendant’s

sisters.      With the jury still out, the court instructed the

defense to play the recording of the message.                            In the message,

Ogle made hostile statements toward Shay, calling her names,

denouncing her relationship with her family, and threatening to

call “the law” and the D.A.

    Upon     inquiry         by    the    court,       the    defense      explained       the

message was left on 5 December 2011, after the charges were

brought    against        defendant        and       around      the    time     Ogle     made

allegations      that     other      members         of    defendant’s         family     were

threatening      her    to    keep       her    from      testifying.          The    defense

contended the message suggested Ogle had something to hold over

the rest of defendant’s family’s head through her testimony in

defendant’s case and argued it should be able to cross-examine
                                            -7-
Ogle with the message               to demonstrate           Ogle’s animus and bias

towards defendant and their family.

       In response to the defense’s argument, the State explained

that    it    believed      the     message      was    left    in     response        to   the

family’s      eviction     of     Ogle    from    the    family       land      and   was   not

related to the charges against defendant.                             The State further

explained      that   as     a    result    of    the    eviction         and    surrounding

events, Connie Jennings, the sister who owned the land, had been

charged with interfering and intimidating a State’s witness for

her    actions   against          Ogle.     The     State      then    objected        to   the

introduction of the message, contending it was “unrelated to the

charges [in the present case] and more related to the charges of

intimidating      the      State’s        witness      as    well     as     the      eviction

process.”

       In explaining his opinion that the evidence should not come

in    under   Rule    403,       the   trial     judge      indicated        that     evidence

regarding      what   the        family    has   done       would    be    prejudicial       to

defendant, who was not responsible for the eviction or message.

The court explained that introducing the message would invite

evidence of the eviction that is not relevant and could mislead

and confuse the jury.              The trial judge then issued the following

ruling:
                                  -8-
           I rule that this tape may not be played
           before the jury; that I really have problems
           with Rule 402 and whether it’s relevant.   I
           rule under 403 that the probative value is
           substantially outweighed by the confusion of
           the issues involving her eviction and the
           problems that she might have had with her
           sisters; that there is no -- it’s not fair
           to tie whatever problem she had with her
           sisters to the defendant; that may be
           prejudicial to the defendant.     He may be
           prejudiced   by   allowing  that   kind   of
           evidence.

           I think the same kind of things can be asked
           of her, whether she has hard feelings and
           all of that sort of thing.     But I rule --
           and I sustain the objection to the tape.
           And the tape will be made part of the
           record, if you would like for it be, but it
           may not be played before the jury.

      In response to the trial court’s ruling, the defense again

requested that it at least be able to play the last portion of

the message where Ogle threatened “to call the law and to go to

the District Attorney if they keep messing with her[.]”                The

defense reiterated its argument that this threat was relevant

for   impeachment   purposes   because   it   showed   Ogle’s   bias   and

Ogle’s willingness to do whatever it takes to hurt defendant and

his family.

      Yet, the trial court stood firm, stating:

           I decline that request for the same reasons,
           that I think it would open up an area that
           would be confusing to the jury; that you may
           ask her about any problems, if you desire,
           about her feelings about her family.     But
                                     -9-
           anything about an eviction, it seems to me
           that that are things that don’t relate to
           the defendant necessarily, and it’s possible
           that the jury could be prejudiced towards
           the defendant by something that his sisters
           did that he didn’t even know about.

           . . . .

           It opens up areas that are not necessary and
           are confusing.   And under Rule 403 and the
           balancing test, I’m going to keep it out as
           the gatekeeper of the evidence.

       Despite the court’s ruling, defendant made it clear that

“it [was his] wish that [the message] be played, notwithstanding

whatever prejudice may be possible, and that it is his request

that it be done and that he desires that it be played at his

murder trial.”

       Thereafter,   in   response   to    questions   concerning   Ogle’s

relationship with her family, Ogle testified that she had no

hard feelings towards defendant or her family for supporting

defendant.    Ogle stated she loved her family and they loved her

too.

       Now on appeal, defendant contends Ogle was a key witness

and the trial court erred in refusing to allow his defense to

cross-examine her with the message in order to show her bias and

attack her credibility.      Upon review, we agree with defendant.

       As our Supreme Court has explained,
                                       -10-
             North Carolina Rule of Evidence 611(b)
             provides that “[a] witness may be cross-
             examined on any matter relevant to any issue
             in the case, including credibility.”     Id.,
             Rule 611(b) (2005).    However, such evidence
             may nonetheless be excluded under Rule 403
             if the trial court determines “its probative
             value is substantially outweighed by the
             danger of unfair prejudice, confusion of the
             issues, or misleading the jury, or by
             considerations of undue delay, waste of
             time, or needless presentation of cumulative
             evidence.”    Id., Rule 403.     We review a
             trial court's decision to exclude evidence
             under Rule 403 for abuse of discretion.
             State v. Peterson, 361 N.C. 587, 602-03, 652
             S.E.2d 216, 227 (2007) (citing State v. Al-
             Bayyinah, 359 N.C. 741, 747-48, 616 S.E.2d
             500, 506-07 (2005), cert. denied, 547 U.S.
             1076, 126 S.Ct. 1784, 164 L.Ed.2d 528
             (2006)).    An abuse of discretion results
             when “the court's ruling is manifestly
             unsupported by reason or is so arbitrary
             that it could not have been the result of a
             reasoned decision.       In our review, we
             consider not whether we might disagree with
             the trial court, but whether the trial
             court's actions are fairly supported by the
             record.”      Id.  (citations   and  internal
             quotation marks omitted).

State   v.   Whaley,   362    N.C.   156,     159-60,   655   S.E.2d     388,   390

(2008).      We are, however, mindful that “criminal defendants . .

. must be afforded wide latitude to cross-examine witnesses as

to   matters   related   to    their   credibility.”          Id.   at   161,   655

S.E.2d at 391.

      As detailed above, in this case the trial court indicated

it had serious doubts as to whether the message was relevant
                                        -11-
and, thus, admissible under Rule 402.                    The trial court then

excluded    the    evidence     under   Rule    403,    finding      the   probative

value of the message was substantially outweighed by confusion

of the issues and unfair prejudice to defendant.

    First, relevant evidence is defined as “evidence having any

tendency     to    make   the    existence      of     any    fact    that    is   of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”                      N.C. Gen.

Stat. § 8C-1, Rule 401 (2013).                 Upon review in this case, we

hold the message relevant to attack Ogle’s credibility and show

Ogle’s bias towards defendant and defendant’s family.

    As the parties explained, the message arose as a result of

the family’s efforts to persuade Ogle from testifying against

defendant,    including       Ogle’s    eviction       from   the    family    land.

Although the message would certainly be relevant in the case of

intimidating a State’s witness and the foreclosure proceedings,

as argued by the State, the message is also relevant in the

present action to show possible bias by Ogle against defendant.

Moreover,    the    message     is   clearly     relevant     to     attack   Ogle’s

credibility as it calls Ogle’s testimony that she held no hard

feelings against her family into doubt.
                                      -12-
       Second, Rule 403 requires the trial court to weigh the

probative value of the evidence against “the danger of unfair

prejudice, confusion of the issues, or misleading the jury[.]”

N.C. Gen. Stat. § 8C-1, Rule 403 (2013).              In this case, because

the trial court questioned the relevance of the message, the

trial court could not have properly weighed the probative value

of   the   message    against   the   dangers    of   unfair   prejudice     and

confusion.

       Moreover, defendant requested for a second and third time

that the message be allowed into evidence despite the potential

prejudice to his case.          We find it within defendant’s right to

bear   the   risk    of   prejudice   and    cross-examine     Ogle   with   the

message.     As our Supreme Court explained in State v. Lewis, 365

N.C. 488, 496, 724 S.E.2d 492, 498 (2012),

             [g]enerally, the trial court has broad
             discretion in determining whether to admit
             or exclude evidence, and we are sympathetic
             to the trial court's legitimate worry that
             the evidence could complicate the case to
             defendant's detriment . . . .     However, we
             have long held that “[c]ross-examination of
             an opposing witness for the purpose of
             showing . . . bias or interest is a
             substantial legal right, which the trial
             judge can neither abrogate nor abridge to
             the prejudice of the cross-examining party.”

Id. at 496, 724 S.E.2d at 498 (quoting State v. Hart, 239 N.C.

709, 711, 80 S.E.2d 901, 903 (1954) (citations omitted)).                Where
                                        -13-
the   defense     believes      the    risk    of     informing      the      jury   of

potentially prejudicial evidence is worth taking, any error that

results would be invited by defendant.                    Id. at 496, 724 S.E.2d

at 498-99 (citing N.C. Gen. Stat. § 15A-1443(c)).                     Thus, as our

Supreme Court held in Lewis, “[g]iven the importance this Court

places on a party’s right to cross-examine an opposing witness

for bias,” Id. at 496-97, 724 S.E.2d at 499, we hold it was the

defense’s decision to chance the risk of prejudice and the trial

court erred by excluding the evidence.

      We   further     hold    defendant      was    prejudiced      by    the   trial

court’s error.       Ogle was a key witness for the State and the

only witness that testified defendant was aware of the plan to

rob victim.       Without evidence that defendant was aware of the

plan to rob victim, it is likely the jury would not have found

defendant     guilty      of    robbery       and    burglary,       the      felonies

underlying      defendant’s      conviction         for    first     degree      felony

murder.

      In arguing the trial court did not err by excluding the

message,    the   State    cites      this   Court’s      decision    in    State    v.

Withers, 111 N.C. App. 340, 432 S.E.2d 692 (1993).                         This Court

described the situation in Withers as follows,

            [D]efendant[, who was charged with larceny
            and   possession   of   stolen   property,]
                                    -14-
               attempted to introduce a tape recording to
               impeach the testimony of Rita Jones and to
               show her motive to testify against him. On
               direct examination, Ms. Jones testified that
               she did not threaten her husband or anyone
               at the Stanley Rescue Squad.       Defendant,
               however,   offered  a   telephone   answering
               machine tape recording [from her husband’s
               voicemail] in which Ms. Jones profanely
               threatened to go to the authorities in
               Lincolnton and report her husband, who had
               been present when the property had been
               taken and when it had been divided.

Id. at 346-47, 432 S.E.2d at 696-97.            This Court then affirmed

the trial court’s decision to exclude the recording, explaining

that

               [w]hile   the   tape in   question   directly
               contradicts Ms. Jones' earlier testimony
               denying making threats to “get back” at her
               husband, the tape does not tend to prove or
               disprove any of the essential elements of
               either crime charged.       Furthermore, the
               threats made on the tape are not directed at
               defendant.        On   direct    examination,
               defendant's witness, Joyce Jones, testified
               to the threat which Ms. Jones made, so that
               the impeaching evidence was disclosed to the
               jury.    Considering these factors and the
               extreme profanity contained on the tape, we
               believe   the   tape  posed    a  danger   of
               misleading the jury, causing undue delay and
               being cumulative.

Id. at 348, 432 S.E.2d at 697.

       While    both   cases   involve   the   exclusion   of   a   recorded

message under Rule 403 that a defendant sought to introduce to

attack the credibility of a key witness, we find the present
                                      -15-
case distinguishable        in one key respect.            Among the factors

considered in Withers, this Court noted the exclusion of the

evidence was not error because the impeachment evidence came in

through the testimony of another witness.                   See id.         In the

present case, however, the evidence defendant sought to admit

was     never    introduced.       Although     the   State      is   correct   in

asserting the evidence tended to show that defendant’s family

was “mad” at Ogle, there was no evidence that Ogle reciprocated

those feelings.         In fact, Ogle testified she loved her family

and had no hard feelings towards them.

                           Right to Remain Silent

      During     the   State’s     cross-examination       of    defendant,     the

State    questioned     defendant    on   his   failure     to    mention    self-

defense to investigators early in the investigation.                   The State

then argued to the jury during closing that defendant “waited

till he heard the State’s case and then concocted his story to

try and navigate the waters to see if he could come up with some

story that [the jury] might buy and spare justice for him.”

      Now,      in   defendant’s    second    issue   on    appeal,     defendant

contends the trial court improperly allowed the State to use his

silence against him.           Having already determined defendant is

entitled to a new trial based on the trial court’s refusal to
                                        -16-
allow defendant to cross-examine Ogle with the recorded message,

we do not address the merits of this second issue as it is

unclear from the record before this Court whether the statements

were    made   before     or    after    defendant   was    in   custody     and

Mirandized.        We leave this issue for the trial court to resolve

in defendant’s retrial.

                                III. Conclusion

       For   the    reasons    discussed   above,    we   hold   defendant   is

entitled to a new trial.

       New trial.

       Judges ELMORE and DAVIS concur.
