{ "id": 9377955, "name": "STATE OF NORTH CAROLINA v. CINDY HAMMER STEVENSON BARBER", "name_abbreviation": "State v. Barber", "decision_date": "2001-11-06", "docket_number": "No. COA00-895", "first_page": "69", "last_page": "77", "citations": [ { "type": "official", "cite": "147 N.C. App. 69" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "539 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439841 ], "year": 2000, "pin_cites": [ { "page": "103-04" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0098-01" ] }, { "cite": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "473 U.S. 667", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205331 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "682" }, { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/us/473/0667-01" ] }, { "cite": "433 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "744" }, { "page": "744" } ], "opinion_index": 0 }, { "cite": "334 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532554 ], "year": 1993, "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0602-01" ] }, { "cite": "540 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "351 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155875, 1155604, 1155893, 1155862, 1155645 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/351/0111-01", "/nc/351/0111-04", "/nc/351/0111-03", "/nc/351/0111-05", "/nc/351/0111-02" ] }, { "cite": "515 S.E.2d 732", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220522 ], "year": 1999, "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0531-01" ] }, { "cite": "373 U.S. 83", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716714 ], "weight": 4, "year": 1963, "pin_cites": [ { "page": "87" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/us/373/0083-01" ] }, { "cite": "474 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "344 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867645 ], "year": 1996, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0364-01" ] } ], "analysis": { "cardinality": 882, "char_count": 18370, "ocr_confidence": 0.749, "pagerank": { "raw": 6.24392210876536e-07, "percentile": 0.9575081404359868 }, "sha256": "bfca5f956d1031cff9387013e56fb8d5e6f173dcd77d53509c82f2f65bd597a1", "simhash": "1:a37f2623ff48ac03", "word_count": 2904 }, "last_updated": "2023-07-14T20:07:10.251034+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CINDY HAMMER STEVENSON BARBER" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nOn 23 November 1999, a jury found Cindy Hammer Stevenson Barber (\u201cdefendant\u201d) guilty of first-degree murder in the death of her husband, Tony Charles Stevenson (\u201cdecedent\u201d). Evidence at trial tended to show the following: On the evening of 31 January 1996, defendant telephoned 911 emergency assistance and informed the dispatcher that decedent had shot himself. Responding to the call, Alexander County Sheriff\u2019s Sergeant Arthur Duncan (\u201cSergeant Duncan\u201d) arrived at defendant\u2019s residence, where he discovered decedent lying in a recliner in the living room. Decedent was turned on his left side in the recliner, which was in a horizontal position. Decedent held a .380 semi-automatic pistol loosely in his left hand with the barrel pointing towards his head, which was covered in blood on the right side. As Sergeant Duncan approached him, decedent was gasping, looking at the gun, and jerking his hand. Sergeant Duncan immediately seized decedent\u2019s wrist and removed the weapon, which was loaded and in a cocked position. Sergeant Duncan observed cupcakes on the floor of the living room, and defendant explained that she had been frosting cupcakes for her daughter\u2019s birthday when decedent shot himself. Upon further inspection of the residence, Sergeant Duncan discovered the seven-year-old son of defendant and decedent asleep in bed. No one else was in the home. While Sergeant Duncan secured the residence, defendant remained on the telephone with the emergency dispatcher. Defendant was visibly upset and \u201cdoing a lot of yelling and cussing.\u201d Emergency medical technicians soon arrived and removed decedent\u2019s body.\nDr. John M. Bauer (\u201cDr. Bauer\u201d), the pathologist who performed decedent\u2019s autopsy, testified for the State. Dr. Bauer stated that he found a close contact gunshot wound to decedent\u2019s right temple, about an inch above and in front of the right ear. The track of the bullet was from right to left, straight and slightly downward at five degrees. According to Dr. Bauer, the wound was almost immediately fatal, and decedent would have had no motor control of his extremities or any bodily function after the bullet entered decedent\u2019s brain.\nLinda Cox (\u201cCox\u201d), a friend of decedent and defendant, testified that she hosted a party attended by defendant and decedent approximately six months before decedent\u2019s death. Cox stated that defendant and decedent arrived and departed from the party separately, and that decedent appeared to be \u201cpretty upset\u201d and \u201ckind of mad.\u201d Cox also noted that defendant flirted with several men at the party, and that decedent consumed an excessive amount of alcohol.\nSteve Fox (\u201cFox\u201d), decedent\u2019s cousin, further testified on behalf of the State. Fox stated that he was also present at Cox\u2019s party, when defendant approached him and asked him whether he would kill decedent for her. According to Fox, who was \u201cshocked\u201d and declined defendant\u2019s request, defendant appeared to be \u201caggravated and mad\u201d at the time. Fox did not know whether or not defendant was joking when she made her request. Fox later observed defendant leaving the party with Ricky Speaks, who testified that he and defendant engaged in sexual intercourse later that evening.\nSeveral witnesses for the State testified as to decedent\u2019s actions and general state of mind on the days leading up to his death. Andrew Stevenson (\u201cStevenson\u201d), decedent\u2019s brother, recalled a telephone conversation he had with decedent on 28 January 1996, in which decedent told Stevenson he was considering moving to Florida, where Stevenson resided. Stevenson testified that he offered \u201cto let [decedent] move down, bring [defendant] down, bring [their children] and move in [Stevenson\u2019s] home and get a job and start over from scratch, a whole new life.\u201d Decedent also spoke with Stevenson of his frustration with defendant and her drug addiction.\nAmy Pennell (\u201cPennell\u201d), a friend of defendant, testified that on the evening of decedent\u2019s death, she telephoned decedent at his residence several times and informed him that she planned to take out a warrant for his arrest for communicating threats against her. Pennell explained that she had been \u201cdrinking a lot\u201d when she called decedent. Pennell could not remember her exact words to decedent, nor could she recall, beyond the fact that it was nighttime, the times at which she called. Pennell stated that she continued to call decedent, who responded by \u201changing up on [her].\u201d\nThe State presented further expert testimony by SBI Agent Peter Duane Deaver (\u201cAgent Deaver\u201d). Agent Deaver, an expert in blood stain pattern analysis and firearms, testified that, in order to restore a .380 semi-automatic pistol to a cocked position, one must maintain a strong grip on the weapon. Agent Deaver further stated that the type of blood spatter found on decedent\u2019s gun rarely occurs in cases of self-inflicted wounds. Finally, Agent Deaver testified that the bloodstains on decedent\u2019s recliner were inconsistent with the reported position of decedent\u2019s body in the chair.\nDefendant presented evidence at trial tending to show the following: On 23 January 1996, decedent visited his physician, Dr. Alan Forshey (\u201cDr. Forshey\u201d), in order to obtain a refill for Xanax, a prescribed medication decedent took in order to manage his substance abuse problems. Decedent had previously informed Dr. Forshey that \u201cas long as [decedent] took the Xanax he could stay off of alcohol and . . . be pleasant and less angry.\u201d Dr. Forshey testified that decedent had an \u201caddictive personality,\u201d with a history of depression, tendinitis and hypertension, and that during the consultation, decedent told Dr. Forshey \u201c[defendant] had left him approximately in November .... [and decedent] had four children to raise and that he was working two different jobs.\u201d Decedent further informed Dr. Forshey he had not taken his medication for a month, and that he was drinking alcohol in the evenings.\nDefendant presented testimony by William S. Best (\u201cBest\u201d), a firearms expert, who demonstrated several positions in which decedent could have shot himself in the right temple with his left hand without difficulty. Best also characterized defendant\u2019s theory that traces of blood may be found inside the barrel of a weapon due to the partial vacuum created whenever a gun is fired as \u201ca very reasonable explanation.\u201d\nDefendant also presented evidence by several witnesses of decedent\u2019s actions and demeanor before his death. Edward Jennings (\u201cJennings\u201d), decedent\u2019s attorney, testified that decedent and defendant consulted him at his office on 30 January 1996 regarding some traffic citations issued to decedent. According to Jennings, defendant was \u201cvery supportive\u201d of decedent, who appeared \u201cdepressed and somewhat despondent\u201d over the citations. Gary Harrington (\u201cHarrington\u201d), decedent\u2019s co-worker, testified that decedent was prone to \u201cdramatic mood swings\u201d and became \u201creally depressed\u201d when he consumed alcohol. On the day he died, decedent told Harrington that \u201che wasn\u2019t going back to jail for nobody [sic] and that he\u2019d shoot his self [sic] if he had to.\u201d Finally, decedent\u2019s friend Michael Caldwell (\u201cCaldwell\u201d), testified that he spoke with decedent on the night of his death. Decedent was upset and threatening suicide, telling Caldwell, \u201cI\u2019m not going back to prison. I\u2019ll blow my brains out, but I\u2019m not going back to prison.\u201d Caldwell also stated that decedent generally carried a gun. Defendant did not testify.\nThe jury began deliberations on Friday afternoon. On Monday afternoon, the jury informed the court that it was deadlocked on a vote of nine to three, with no movement. The following morning, the Tuesday before the Thanksgiving holiday, two jury members reported deaths of immediate family members. The jury refused the court\u2019s offer of a morning break from deliberations, however, informing the court that it could reach a verdict if granted five more minutes. Shortly thereafter, the jury returned its verdict, finding defendant guilty of first-degree murder in the death of her husband. Accordingly, the trial court sentenced defendant to life imprisonment without parole. Thereafter, defendant filed a motion for appropriate relief, which the trial court denied. Defendant now appeals her conviction and the denial of her motion for appropriate relief to this Court.\nWhile presenting nine assignments of error for our review, the dispositive issues are whether the trial court committed reversible error in failing to redact a reference to defendant\u2019s polygraph examination contained in an exhibit tendered to the jury and denying defendant\u2019s motion for a mistrial.\nDefendant first argues the trial court erred in failing to redact a reference to a polygraph examination contained in one of the exhibits tendered to the jury. At the beginning of defendant\u2019s trial, the court granted the State\u2019s motion in limine to prohibit any reference to a polygraph test administered to defendant by law enforcement officers, the results of which were favorable to defendant. In publishing the typed report of defendant\u2019s 2 April 1996 statement to the jury, however, the State failed to redact the following sentence: \u201cDetails of the polygraph examination conducted by SA J. L. Jones will be dictated to this file by SA J. L. Jones.\u201d Defendant now contends that this sentence may have given the jury the false and prejudicial impression that defendant had failed a polygraph examination.\nWe note that defendant did not object to admission of the evidence at trial, nor to its submission to the jury. In fact, defendant requested that the exhibit be published to the jury, although the trial court warned that \u201cthere was a part of the defendant\u2019s statement that was not properly redacted.\u201d The trial court further advised both parties to \u201c[understand that once you\u2019ve sent these exhibits out, if later on you discover that there was something in them that wasn\u2019t supposed to come in . . . you each have waived that.\u201d\nNorth Carolina General Statutes section 15A-1443(c) states that \u201c[a] defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct.\u201d N.C. Gen. Stat. \u00a7 15A-1443 (c) (1999). Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review. See State v. Roseboro, 344 N.C. 364, 373, 474 S.E.2d 314, 318 (1996). In the instant case, defendant requested that the exhibit containing the polygraph evidence be submitted to the jury, despite explicit warnings by the trial court that defendant\u2019s statement had not been properly redacted. Thus, if the admission of such evidence to the jury was error, it was invited error, and defendant has therefore waived her right to appellate review of this issue. We overrule defendant\u2019s first assignment of error.\nDefendant next argues the trial court erred by denying defendant\u2019s motion for a mistrial based on evidence of cellular phone records first disclosed to defendant by the State after her trial. Citing Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963), defendant contends the State\u2019s failure to reveal the phone records violated defendant\u2019s due process rights and asserts that, had the phone records been introduced at trial, there is a reasonable probability that the result of the trial would have been different. See State v. Campbell, 133 N.C. App. 531, 541, 515 S.E.2d 732, 739, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). At the hearing on defendant\u2019s motion for appropriate relief, the trial court found that, although the phone records were exculpatory and unavailable to defendant, they were ultimately immaterial because they merely corroborated other evidence. The trial court therefore denied defendant\u2019s motion. We conclude that the State\u2019s failure to disclose the phone records was error which prejudiced defendant, thereby entitling her to a new trial.\nThe cellular phone records at issue reveal that, on the night of decedent\u2019s death, Amy Pennell repeatedly telephoned decedent\u2019s residence, making two calls at 9:54 p.m. and 9:55 p.m., and six more calls between 1:49 a.m. and 2:41 a.m following decedent\u2019s death. Defendant argues these phone records were exculpatory, in that they bolstered Pennell\u2019s testimony that she threatened decedent with arrest shortly before his death. Such evidence in turn supported defendant\u2019s assertions at trial that decedent killed himself because he was despondent and agitated at the thought of returning to prison. The State concedes it should have disclosed the cellular phone records to defendant, but nevertheless argues that the records merely corroborated other testimony and therefore did not prejudice defendant. We cannot agree.\n\u201c[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\u201d Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218. Prejudicial error is determined by examining the materiality of the evidence. See State v. Howard, 334 N.C. 602, 605, 433 S.E.2d 742, 744 (1993). Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defendant, the result of the proceeding would have been different. See id. at 605-06, 433 S.E.2d at 744. Reasonable probability is \u201ca probability sufficient to undermine confidence in the outcome.\u201d United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494 (1985).\nAt trial, Pennell could only recall that \u201cit was dark\u201d and \u201cnighttime\u201d when she telephoned decedent on the evening of his death. On cross-examination, Pennell agreed that she began telephoning decedent between 9:00 p.m. and 12:00 a.m., but could remember no further details of the calls. Defendant telephoned for emergency assistance at approximately 11:00 p.m. Although the State never directly contradicted Pennell\u2019s assertion that she spoke with decedent the night of his death, the State did cast general aspersions upon Pennell\u2019s credibility. Referring to Pennell in its closing argument, the State advised the jury to \u201cconsider who these folks are and what they\u2019re telling you,\u201d adding that, \u201c[i]t\u2019s your jobs to determine who\u2019s telling you the truth.\u201d Furthermore, Chief Deputy Bentley testified that he did not know whether or not his office had ever received the cellular phone records, but that he could \u201cnot recall\u201d having ever seen them. Thus, because the phone records show the exact times and duration of Pennell\u2019s calls, they were not merely corroborative, but lend crucial factual support to somewhat nebulous testimony by a witness whose credibility was questioned by the State.\nAt defendant\u2019s motion for appropriate relief hearing, the trial court found that \u201cthis case could have also resulted in a jury verdict of not guilty. It would have taken very little additional evidence to result in the jury returning a verdict of not guilty.\u201d Moreover, in her offer of proof, defendant submitted affidavits from two jurors confirming that, had the phone records been introduced at trial, it \u201cwould have\u201d and \u201ccould have\u201d affected the verdict. Given the court\u2019s finding that \u201cvery little additional evidence\u201d could have changed the verdict and the jury\u2019s obvious difficulties in resolving the issues, we cannot say that the State\u2019s failure to disclose exculpatory evidence did not create a reasonable probability of a different verdict. Accordingly, the evidence was material to defendant.\nThe State\u2019s failure to turn over evidence to defendant that was both favorable and material does not guarantee defendant a new trial, unless the failure was prejudicial to defendant. See State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). A violation of defendant\u2019s constitutional rights is prejudicial unless this Court \u201cfinds that it was harmless beyond a reasonable doubt.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (1999).\nWe have determined that cellular phone records held by the State were both favorable and material to defendant, thereby violating defendant\u2019s constitutional right to have the evidence. See State v. McGill, 141 N.C. App. 98, 103-04, 539 S.E.2d 351, 356 (2000). The State has the burden of showing the error was harmless beyond a reasonable doubt. Nee'N.C. Gen. Stat. \u00a7 15A-1443(b). The State has failed to meet such burden, and defendant is therefore entitled to a new trial.\nWe have carefully considered defendant\u2019s remaining assignments of error and find them to be without merit. Because of the State\u2019s failure to disclose exculpatory evidence to defendant, we hold defendant is entitled to a new trial.\nNew trial.\nChief Judge EAGLES and Judge THOMAS concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General T. Brooks Skinner, Jr., for the State.", "Marjorie S. Canadayfor defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CINDY HAMMER STEVENSON BARBER\nNo. COA00-895\n(Filed 6 November 2001)\n1. Appeal and Error\u2014 invited error \u2014 request to publish exhibit to jury \u2014 reference to polygraph\nA first-degree murder defendant waived her right to object to the failure to redact a reference to a polygraph from one of the exhibits where defendant requested that the exhibit be published to the jury even though the court warned that it was not properly redacted. If admission of this evidence was error, it was invited error.\n2. Constitutional Law\u2014 due process \u2014 State\u2019s failure to disclose exculpatory evidence \u2014 prejudicial\nThe State violated a first-degree murders defendant\u2019s due process rights by failing to disclose cellular telephone records to defendant until after the trial where the trial court found that the records merely corroborated other evidence, but the records also lent crucial support to a witness whose credibility was questioned by the State. Given the court\u2019s finding at the motion for appropriate relief hearing that \u201cvery little additional evidence\u201d could have changed the verdict and the jury\u2019s obvious difficulties in resolving the issues, it cannot be said that the State\u2019s failure to disclose exculpatory evidence did not create a reasonable probability of a different verdict.\nAppeal by defendant from judgment entered 23 November 1999 by Judge Melzer A. Morgan, Jr., in Alexander County Superior Court. Heard in the Court of Appeals 13 August 2001.\nAttorney General Roy Cooper, by Assistant Attorney General T. Brooks Skinner, Jr., for the State.\nMarjorie S. Canadayfor defendant appellant." }, "file_name": "0069-01", "first_page_order": 99, "last_page_order": 107 }