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      "STATE OF NORTH CAROLINA v. JASON LYNN YOUNG"
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      {
        "text": "HUNTER, JR., Robert N., Judge.\nJason Lynn Young (\u201cDefendant\u201d) appeals a jury verdict finding him guilty of first-degree murder of his wife, Michelle Fisher Young (\u201cMichelle\u201d). Defendant argues that the trial court erred by admitting evidence of the entry of a default judgment in a wrongful death action and a child custody complaint against Defendant in his subsequent criminal trial. We agree, vacate the judgment, and remand for a new trial.\nI. Facts & Procedural History\nThe Wake County Grand Jury indicted Defendant for first-degree murder on 14 December 2009. Defendant\u2019s case was tried in Wake County Superior Court on 31 May 2011 with Judge Donald W. Stephens presiding. On 27 June 2011, a mistrial was declared when the jury deadlocked eight to four to acquit Defendant.\nDefendant\u2019s retrial began at the 17 January 2012 session of Wake County Superior. Court, with Judge Stephens again presiding. On 5 March 2012, the jury found Defendant guilty of first-degree murder and sentenced Defendant to life imprisonment without parole. Notice of appeal was given in open court. The testimony presented at trial tended to show the following facts.\nA. State\u2019s Evidence\nMichelle Young was found at her home by her sister, Meredith Fisher (\u201cMeredith\u201d), around 1:00 p.m. on 3 November 2006. Meredith found Michelle after Defendant called Meredith, asking her to retrieve some printouts of eBay searches for Coach purses. Defendant was out of town on a business trip and left a voicemail for Meredith stating his plan to purchase these purses as a belated anniversary present. Defendant did not want Michelle to find out beforehand.\nMeredith complied with Defendant\u2019s requests and entered the Youngs\u2019 home through the garage door, which was broken, and then through the unlocked kitchen door to the home\u2019s mudroom. Meredith noticed her sister\u2019s car was in the garage and that her keys and purse were visible near the kitchen counter. After entering, Meredith called out Michelle\u2019s name and heard no response. Meredith heard the Youngs\u2019 dog, \u201cMr. G.,\u201d whimpering, but she did not see him. The house was cold.\nAs Meredith ascended the home\u2019s stairs, she saw what she thought was dark red hair dye at the top of the staircase in the bathroom of the Youngs\u2019 two-and-a-half-year-old daughter, Emily. Meredith first .thought that Emily had smeared hair dye around the home and that Michelle would be angry about the mess. When Meredith reached the top of the stairs and looked to the left, she saw Michelle lying on the floor, surrounded by a large amount of blood.\nMeredith called 911, and as she did, Meredith said \u201c[Emily] lifted up the covers and just kind of stared at me and I just kind of stared back at her and then she just kind of got on me and clung to me as I called 911.\u201d During the call, Emily continually asked for band-aids and said that her mother \u201chas boo-boos everywhere.\u201d The 911 operator asked Meredith if Michelle had any personal problems, to which Meredith replied \u201c[u]m not really. You know her and her husband fight a little bit, but nothing too ridiculous.\u201d Meredith also told the 911 operator that her \u201cniece is very smart for her age\u201d and that she thought Emily was saying \u201cthere was somebody in the house.\u201d Paramedics and the Wake County Sheriffs Office responded to Meredith\u2019s call.\nEmily was not injured and appeared \u201cclean\u201d when Meredith arrived, except for some dried blood on Emily\u2019s toenails and on the bottom of her pajama pants. Meredith said she did not clean Emily. Emily was wearing fleece pajamas, was not wearing underpants or footwear, and did not urinate or defecate on herself or the bed. Emily clung to Meredith\u2019s hip until they both were taken away by emergency personnel. Later, Meredith called her mother Linda Fisher (\u201cLinda\u201d) in New York to tell her of Michelle\u2019s passing and later told Defendant\u2019s mother Pat Young (\u201cPat\u201d) of Michelle\u2019s death.\nSheriff\u2019s officers found Michelle with a large amount of coagulated, dried blood around her body and with blood splattering against the walls of her bedroom. Michelle\u2019s body was discolored, cold, and stiff. She was not wearing shoes and was dressed in sweatpants and a zip-up sweatshirt. Blood was observed on the opposite side of the bed from where Meredith found Emily. Defendant\u2019s DNA and fingerprints were present in the bedroom, although none of his fingerprints contained blood.\nMichelle was lying face-down just outside of a closet labeled \u201chis closet.\u201d A child\u2019s doll was near Michelle\u2019s head. Blood was also found on the exterior of this closet, and inside of the closet door. The only blood found outside of the second floor of the Youngs\u2019 home was found on the doorknob leading from the kitchen to the garage, and its DNA markers were consistent with Michelle\u2019s DNA. No blood was found in or on Defendant\u2019s vehicle, his clothes, or in the hotel room where he stayed on 2 November 2006.\nThe medical examiner who conducted the autopsy, Dr. Thomas Clark (\u201cDr. Clark\u201d), opined that Michelle experienced blunt force trauma to her head and body. The trauma included a broken jaw, skull fracturing, brain hemorrhaging, lacerations, abrasions, and dislodged teeth. Dr. Clark stated that there were likely at least thirty blows delivered to Michelle, and the medical examiner testified that he thought the blows were inflicted by \u201ca heavy blunt object\u201d with a rounded surface that produced crescent-shaped skull fractures. Dr. Clark said the autopsy did not produce evidence of a sexual assault against Michelle. Michelle was approximately twenty weeks pregnant when she passed away.\nSmall footprints in blood, consistent with a child\u2019s footprints, were found around the bedroom and at the top of the stairwell landing. Investigators testified that blood was smeared on the walls at a child\u2019s level in Emily\u2019s bathroom. Investigators said the blood smearing could indicate that Emily was in her bathroom with the door closed. Investigators did not find blood in the sink or bathtub of either the master bathroom or Emily\u2019s bathroom.\nSeveral other pieces of evidence were presented by federal, state, and county investigators. Michael Smith of the Federal Bureau of Investigation, Andy Parker of the Wake/Raleigh City and County Bureau of Investigation (\u201cCCBI\u201d), and Karen Morrow of the State Bureau of Investigation testified at trial. Smith, Parker, and Morrow testified that footwear impressions in blood were made by two distinct shoe types on pillows found near Michelle. These included impressions that corresponded with size 12 Hush Puppy Orbital, Sealy, and Belleville shoes which all had the same outsole design. Smith, Morrow, and Parker also testified that there were additional impressions made by a different shoe type, consistent with a size 10 Air Fit or Franklin athletic shoe. Karen Morrow and Greg Tart of the State Bureau of Investigation testified that Defendant at one time owned size 12 Hush Puppy Orbitals, which were purchased on 4 July 2005. The State never produced shoes matching either of the impressions. The State also never produced a murder weapon.\nA jewelry box in the master bedroom had two drawers removed, and DNA testing, showed four markers that did not include Defendant or Michelle\u2019s DNA. Meredith testified that Michelle \u201cdidn\u2019t really have a lot of fancy jewelry\u201d except her wedding and engagement rings, and that she \u201calways wore\u201d her wedding and engagement rings. Michelle\u2019s wedding and engagement rings were both missing from her body when she was found and the rings were not recovered. Additional unidentified fingerprints were found in the house. Investigators found no signs of forced entry.\nPrintouts from eBay concerning purses were found on an office printer with three fingerprints; one matched Defendant and two others remain unidentified. Forensic analyst Beth Whitney of the CCBI (\u201cMs. Whitney\u201d) also said Internet searches for purses were made between 7:05 p.m. and 7:23 p.m. on 2 November 2006. Ms. Whitney testified that MapQuest inquiries for directions between Raleigh and Clintwood, Virginia, were also made that evening, as well as e-mail logins to Defendant\u2019s personal email account. Ms. Whitney also found that, at an undetermined time, Internet searches were made on the Youngs\u2019 home computer for \u201canatomy of a knockout,\u201d \u201chead trauma blackout,\u201d \u201chead blow knockout,\u201d and \u201chead trauma.\u201d\ni. Evening of 2 November 2006\nMichelle\u2019s sorority sister and close friend, Ms. Shelly Schaad (\u201cMs. Schaad\u201d), arrived at the Youngs\u2019 home around 6:30 p.m. on 2 November 2006. Ms. Schaad arrived to have dinner and to watch Grey\u2019s Anatomy on television with Michelle. Ms. Schaad said she was surprised Defendant was still home. Ms. Schaad picked up dinner on the way to the Youngs\u2019 house and invited Defendant to eat. Defendant said he planned to stop at the Cracker Barrel in Greensboro to have dinner, drive three hours to Galax to spend the evening, and then drive two hours the next morning to a 10:30 meeting. As Defendant left for the evening, Ms. Schaad asked Defendant if he would return for the N.C. State football game on 4 November 2006. Defendant said it depended on whether his father-in-law, Alan Fisher, would come for the weekend. Defendant expected his father-in-law to visit, and Defendant had spent the afternoon cleaning the yard in anticipation of his arrival. Defendant\u2019s father-in-law called and cancelled his visit that evening. After he left, Defendant called the Young residence seven times that evening.\nMichelle and Ms. Schaad had dinner, bathed Emily, diapered her, and dressed her in pajamas. Michelle and Ms. Schaad talked about an argument between the Youngs over Defendant\u2019s mother-in-law, Linda, staying at their home for the majority of the time between Thanksgiving and Christmas. Defendant was upset with the length of her potential stay.\nMs. Schaad testified that she had an \u201ceerie feeling\u201d that evening. Ms. Schaad asked Michelle if she was scared to be alone. Ms. Schaad testified that Michelle\nproceeded to say, you know, Jason\u2019s heard a lot of noises lately around the house, you know, but her thoughts were, you know, if - and her exact words to me, if someone\u2019s going to break in and their intention is to kill you, then that\u2019s what they\u2019re going to do, and it was very unsettling.\nMs. Schaad said she felt like the two were being watched and asked Michelle to walk her to her vehicle before she left that evening.\nii. Defendant\u2019s Location on 2 and 3 November 2006\nDefendant purchased gasoline in Raleigh at approximately 7:30 p.m. on 2 November 2006 and then went to a Cracker Barrel restaurant in Greensboro. Defendant called his mother Pat, who lived in Brevard, while at the Raleigh gas station. Defendant paid for his meal at the Cracker Barrel at 9:25 p.m. and checked into a room at the Hampton Inn in Hillsvifle, Virginia at 10:54 p.m. Data from the keycards used to gain access to the hotel rooms showed that Defendant entered his room at 10:56 p.m. and did not use his keycard to re-enter his hotel room for the remainder of his stay.\nSecurity camera footage tended to show that Defendant wore a light shirt, jeans, and brown slip-on shoes at the Cracker Barrel and upon entering the Hampton Inn. Two pairs of brown slip-on shoes were found in Defendant\u2019s vehicle when police later seized it on 3 November 2006.\nDefendant was also captured on video at the hotel just before midnight at the front desk and walking down a hallway that lead to stairs and an exit door, wearing what appeared to be a darker colored shirt with a light-colored horizontal stripe across the chest. Defendant was not shown on surveillance footage for the remainder of the evening.\nThe night-clerk at the Hampton Inn distributed check-out receipts and hung copies of the USA Today on door handles between 3:00 a.m. and 5:00 a.m. or later. Both the receipt for Defendant\u2019s stay as well as a weekend edition of the USA Today were found in Defendant\u2019s Ford Explorer on 3 November 2006, when police seized it.\nEarly in the morning on 3 November 2006, Hampton Inn Clerk Mr. Keith Hicks (\u201cMr. Hicks\u201d) noticed that the emergency door on the first floor at the western end of the hotel was propped open with a small red rock. Mr. Hicks removed the rock and shut the door. Immediately next to the door was a glass door that could only be accessed via keycard between 11:00 p.m. and 6:00 a.m. A sign next to the door listed the hours the door was locked; at all other times the glass door was unlocked.\nWhen Mr. Hicks returned to the front desk and reviewed the hotel\u2019s surveillance cameras, he noticed that the camera was malfunctioning in the same stairwell where the door was left ajar. Mr. Hicks later determined that the camera was unplugged, and Mr. Hicks asked a maintenance worker, Elmer Goad (\u201cMr. Goad\u201d), to plug the camera in again. Mr. Goad testified that if someone were six feet tall, they would be able to easily reach the camera\u2019s plug. The last image from the camera was at 11:19:59 p.m. on 2 November 2006, and no images were recorded until 5:50 a.m. on 3 November 2006, when Mr. Goad got a stepladder and plugged the camera in again.\nThe camera worked properly from 5:50 a.m. until 6:34 a.m., but at 6:35 a.m., the camera was pointed at the ceiling. Mr. Goad put the camera back in position and focused it on the bottom of the stairs at 6:38 a.m. The hotel said the camera was never unplugged previously and that the only other time that camera was tampered with was several years prior, when some guests snuck in and out of the exit door. CCBI investigator Andy Parker performed a fingerprint analysis on the camera and testified that the State did not find Defendant\u2019s fingerprints on the security camera. Investigator Eddie McCormick (\u201cInvestigator McCormick\u201d) also testified that tests conducted by the State did not show that any fibers were transferred from the Hampton Inn where Defendant stayed on 2 November 2006 to the Youngs\u2019 home at 5108 Birchleaf Drive.\nThe hotel had no record of when Defendant left on 3 November 2006. The State\u2019s first evidence showing his location was from a call he made to his mother Pat around thirty miles from the hotel near Wythville, Virginia at 7:40 a.m. Defendant made several calls to his mother and others while driving to Clintwood, with several lasting ten seconds or less. Investigator McCormick testified it was possible the large number of short calls could be from dropped phone calls, but he also said that \u201cknowing what I know about telephonic investigations,\u201d the call frequency reflected a person who was panicked.\nDefendant was thirty minutes late to his 10:00 a.m. sales call in Clintwood, Virginia. Defendant purchased gas in Duffield at 12:06 p.m. and then left a voicemail for Meredith.\nDetective Richard Spivey of the Wake County Sheriff\u2019s Office (\u201cDetective Spivey\u201d) testified that his deputy drove between Raleigh and Hillsville, Virginia in two horns and twenty-five minutes without traffic. Three gas receipts were found in Defendant\u2019s vehicle, one from Raleigh on 2 November 2006, Duffield on 3 November 2006, and Burlington at 8:32 p.m. on 3 'November 2006. Officers also canvassed gas stations between Hillsville and Raleigh. Ms. Gracie Calhoun (\u201cMs. Calhoun\u201d), who worked at the Four Brothers BP in King, North Carolina, said she saw a man drive to a pump and attempt to pump gas in the early morning hours of 3 November 2006. The State\u2019s investigators said that the Four Brothers BP was along the most direct route between Raleigh and Hillsville and was the only gas station open at that particular exit.\nMs. Calhoun was shown a photograph of Defendant\u2019s white Ford Explorer on 5 November 2006 and asked if she saw the car on 3 November 2006. When Ms. Calhoun was shown Defendant\u2019s photograph, she identified him as the vehicle\u2019s driver. Ms. Calhoun was not asked to provide a physical description prior to seeing Defendant\u2019s photo, and stated that the Defendant was \u201cjust a little bit taller than me,\u201d although Ms. Calhoun is five feet tall and Defendant is six-foot-one. Ms. Calhoun stated that she had not seen any news reports about the case when she was asked about the vehicle. Ms. Calhoun said she remembered Defendant specifically because he cursed at her, and that it left an impression because only one other person had ever cursed at her during her tenure at the Four Brothers BP. It is around a forty to forty-five minute drive from the Hillsville Hampton Inn to the Four Brothers BP.\nMs. Calhoun testified that Defendant came into the store and cursed at her because the pumps were not on, threw $20 at her, pumped $15 of gas and drove off without returning for change. Store records showed several gas and in-store purchases between 5:00 a.m. and 5:40 a.m., including a $15 gas purchase at 5:27 a.m. and a $20 gas purchase at 5:36 a.m.\nAfter the first trial concluded, Defendant\u2019s counsel learned that Ms. Calhoun had received disability benefits since she was a child. Ms. Calhoun stated that when she was six-years-old, she was hit by a truck. This accident caused her brain to be dislodged from her skull and to fall onto the street. Doctors reinserted her brain and Ms. Calhoun stated that she has had memory problems her entire life as a result of the accident.\nThe State presented evidence that a newspaper delivery person passed by the Youngs\u2019 home between 3:30 a.m. and 4 a.m. and noticed that the interior, exterior, and driveway lights were on, which she considered unusual at that hour. The delivery person testified that she saw a light colored SUV in front of the home and that a minivan was across the street.\nAfter Defendant arrived and learned from his mother of Michelle\u2019s passing, he spoke with Meredith over the phone. Meredith told Defendant to come to her home because the Youngs\u2019 home was a crime scene. When speaking to Meredith, he asked about Emily, what had happened, and seemed upset over the phone.\nOfficers began to question Meredith and friends of the Youngs about possible marital problems. After the questioning, Defendant\u2019s friends Josh Dalton and Ryan Schaad suggested he not speak to police until he retained counsel. On counsel\u2019s advice, .Defendant never answered any questions from law enforcement or spoke about Michelle\u2019s death with friends or family.\nDefendant arrived at Meredith\u2019s home along with his mother, sister, and brother-in-law around 9 or 10 p.m. on 3 November 2006. Defendant hugged Meredith and went to see Emily. Meredith said Defendant was wearing \u201cdress pants, dress shoes, a thermal cut crew neck shirt, a couple buttons here, and a dress shirt over that open.\u201d Police arrived at the home and Defendant refused to speak with them. Later in the evening, Defendant and Linda were alone in the home, watching Emily, and Linda said Defendant told her that his lawyer said he could not talk to anyone and that he was \u201cgoing to take a hit on the house.\u201d\niii. Marital Difficulties\nThe State produced several witnesses who testified that the Youngs experienced difficulties in their marriage, including Meredith, Ms. Schaad, and Defendant\u2019s friend Josh Dalton. Ms. Schaad described the Youngs\u2019 relationship as \u201cvolatile.\u201d\nMeredith also noted marital problems between Michelle and Defendant and suggested divorce to Defendant and Michelle. Meredith said the Youngs \u201cwould get in screaming matches. They\u2019d fight in public.\u201d Meredith testified that on 1 November 2006, Michelle told Meredith that she had fought with Defendant and that he threw a remote at her. Meredith averred that before her death, Michelle became \u201cwithdrawn,\u201d \u201cdepressed\u201d and \u201cmiserable.\u201d\nOn 12 September 2006, Defendant sent an e-mail to the work address of his former fianc\u00e9e, Genevieve Cargol (\u201cMs. Cargol\u201d) professing his love for her. Defendant and Ms. Cargol did not have contact for several years before this e-mail, which Ms. Cargol did not receive at the time. Ms. Cargol testified that Defendant was violent at several points during their relationship, once punching and breaking Ms. Cargol\u2019s car windshield, punching a hole in a wall, and forcibly removing the engagement ring from her finger.\nDefendant had extra-marital affairs with two other women while married to Michelle. Defendant communicated with one of these women, Michelle Money (\u201cMs. Money\u201d) regularly and engaged in sexual intercourse in Orlando, Florida on 7 October 2006. Defendant\u2019s friend Josh Dalton stated that Defendant said \u201che felt like he was in love with\u201d Ms. Money. Defendant and Ms. Money discussed meeting on 3 through 5 November 2006, although Ms. Money said Defendant did not want to meet that weekend as he had a business meeting as well as friends and family staying at his home. Defendant and Ms. Money also contacted each other several times by phone on 2-3 November 2006. Ms. Money said Defendant sounded normal during the calls and that he also mentioned having left printouts in his office for a Coach purse he planned to buy for Michelle. Defendant also had a sexual relationship with a different woman in the Youngs\u2019 home while Michelle was out of town on another occasion.\nOn 27 October 2006, Michelle saw a counselor by herself, Ms. Kimberly Sargent. Ms. Sargent testified that Michelle \u201ccried the entire session.\u201d Ms. Sargent said her \u201cassessment of the situation was that [Michelle] was being verbally abused.\u201d\niv. Emily\u2019s Statements at Daycare\nEmily returned to daycare the Monday after Michelle\u2019s death. The State introduced testimony of Emily\u2019s daycare teacher, Brooke Bass (\u201cMs. Bass\u201d). Defendant objected to admitting this testimony and was overruled.\nMs. Bass testified that Emily kept to herself more than usual that week. Ms. Bass said Emily asked for a \u201cmommy\u201d doll and was given a bucket of dolls to play with. Ms. Bass saw Emily select a female doll with long brown hair that Emily called the \u201cmommy doll,\u201d and a second female doll with short hair. Ms. Bass stated that Emily began hitting the two dolls together. Another daycare teacher, Ashley Palmatier (\u201cMs. Palmatier\u201d) asked Emily what she was doing and said Emily hit the dolls together and said \u201cmommy\u2019s getting a spanking for biting.\u201d Emily then laid the doll face-down on a dollhouse bed, saying \u201cmommy had booboos all over, mommy has red stuff all over.\u201d Emily\u2019s teachers told police what she said at daycare. Ms. Bass testified that Emily did not return to the daycare after these statements were made. These statements were not introduced at Defendant\u2019s first trial.\nv. Introduction of Civil Suits\nEvidence of two separate civil suits was introduced at Defendant\u2019s second trial over Defendant\u2019s objection. The State introduced evidence showing Linda, on behalf of the estate, filed a wrongful death action and a request for a slayer declaration against Defendant on 29 October 2008. Defendant did not respond to the suit, and on 5 December 2008, Judge Stephens heard Plaintiff Linda\u2019s motion for entry of a default judgment. Judge Stephens reviewed the affidavits and entered a judgment that Defendant \u201cunlawfully killed\u201d Michelle. Defendant was the beneficiary of Michelle\u2019s $4 million life insurance policy, but did not make a claim on the policy. Defendant\u2019s assets were seized as a result of the $15 million judgment for Linda.\nAfter Michelle\u2019s death, Defendant took Emily to Brevard, and the Fisher family was allowed to see Emily at several visits. Defendant later did not want the Fishers to have contact with Emily. Defendant refused to agree to a visitation schedule, and the Fishers filed suit.\nThe Fishers filed a child custody complaint against Defendant on 17 December 2008. The complaint said Defendant \u201cbrutally murdered Michelle Marie Fisher Young ... at their residence. Michelle was pregnant with [Defendant\u2019s] son at the time of her murder. Upon information and belief [Emily] was in the residence at the time [Defendant] murdered her mother.\u201d The lawsuit requested a psychological evaluation of Defendant, and would have required discovery and depositions. Defendant agreed to a consent order and transferred primary physical custody of Emily to Meredith. The consent order required that no discovery or depositions be taken.\nvi. Defendant\u2019s Mistrial Testimony\nDefendant testified at his first trial, and the State introduced his testimony at the retrial. Defendant denied killing his wife, denied being present when she was killed, and denied having any knowledge of who killed Michelle. Defendant said that he loved Michelle, that he did not plan to divorce Michelle, and that he did not plan to leave Michelle for any of the other women he had sexual relationships with. Defendant testified that after Emily was bom, Michelle had a miscarriage. Defendant said he and Michelle began trying to conceive another child as soon as Michelle received medical clearance to bear another child. Defendant said he was \u201cecstatic\u201d that he would soon have a son.\nDefendant testified that he thought he and Michelle didn\u2019t fight much more than other couples, but that the couple \u201cfought more openly than other couples.\u201d Defendant said he encouraged his sister-in-law Meredith to mediate disputes between Michelle and Defendant. Defendant testified that his disputes with Michelle never turned physical. Defendant also testified that he had \u201ca lot of guilt\u201d for spending his anniversary weekend with Ms. Money, rather than his wife Michelle, and so he planned to purchase a Coach handbag to \u201cmake up for a lot in a big way.\u201d Defendant called Meredith several times to retrieve the papers from the family printer because he \u201creally wanted it to be a surprise.\u201d Defendant thought that the gift had special significance because it was a leather purse for his and Michelle\u2019s third anniversary, which is commonly known as the \u201cleather anniversary.\u201d\nDefendant said he had just begun a new job with an electronic health records company, and a schedule was set for him to make a sales call in Clintwood, Virginia. Defendant\u2019s sales call was at 10:00 a.m. on 3 November 2006, so Defendant said he planned to \u201cbreak the trip up\u201d by staying at a hotel about half-way between Clintwood and Raleigh. Defendant said he did not make a hotel reservation prior to staying at the Hampton Inn in Hillsville. After checking into the hotel, Defendant said he called Michelle and Ms. Money.\nDefendant said he was nervous about the sales call, as it was his first solo sales call. Defendant said he wanted to review the software on his computer and forgot his charging cable for his computer in his car. Defendant said he left the hotel room door slightly ajar so he could re-enter without disturbing his neighbors. As he left to go to his vehicle, Defendant said he went out the exit door, noticed it was a type of door which would not allow re-entry, broke off a piece of shrubbery to prop the door, retrieved his charger and re-entered the room.\nDefendant said he finished on his computer around 11:53 p.m. and said he wanted to smoke a cigar and catch up on some sports news. Defendant said he then picked up a newspaper from the front desk, walked down the hallway, inserted a stick in the door, went outside and smoked. Defendant said he later re-entered and went to sleep. Defendant also said he arrived thirty minutes late for his appointment the next morning because he had gotten lost. Defendant said he tried to call his appointment to let them know he would be late, but that the cell phone service was \u201cnil to one bar.\u201d\nAfter his sales meeting, Defendant drove south toward Brevard, arrived at his mother\u2019s house, and his stepfather told him that Michelle was dead. Defendant said he \u201cjust broke\u201d and cried. Defendant said some , friends called and told him he needed \u201cto get a lawyer before\u201d talking to anyone. Defendant\u2019s sister left a message for an attorney she previously employed, and Defendant eventually met with a lawyer, who advised him to not speak with police.\nDefendant also said he purchased a pair of brown Hush Puppy Orbital shoes, and that they were donated to Goodwill by Michelle prior to 2 November 2006. Defendant also introduced a photograph of himself in 2007 at Emily\u2019s third birthday party, showing Defendant wearing a dark pullover with a stripe on it. Defendant also said he could not afford a lawyer for a custody fight between Defendant and Michelle\u2019s family. Defendant also made internet searches on his home computer for head trauma and anatomy of a knockout, which he said he made after being the \u201cfirst responder\u201d to a car accident where a person was knocked out.\nThe State offered several pieces of evidence to rebut Defendant\u2019s testimony. The State noted that prior to trial, Defendant received copies of all the State\u2019s investigative files, which included field and interview notes. The State\u2019s analysis of Defendant\u2019s computer activities did not show Defendant completed work-related activities on his computer that evening. The State produced testimony from Meredith and other friends of the Youngs that Defendant did not like smoking and that he disliked the smell of smoke. The State also introduced evidence showing that on 2 November 2006 at 11:40 p.m. it was cold and windy where Defendant said he smoked the cigar. Detective Spivey testified that no \u201csubstantial outerwear\u201d besides a suit jacket was found in Defendant\u2019s luggage.\nThe State rested its case on 24 February 2012. Defendant moved to dismiss the case at that time. The trial court denied Defendant\u2019s motion, and Defendant began presenting his case on 27 February 2012.\nB. Defendant\u2019s Evidence\nDefendant\u2019s mother Pat said Defendant called her the evening of 2 November 2006 and discussed bringing home a wash stand and an antique dresser when Defendant\u2019s family visited at Thanksgiving. Defendant said he would call Michelle to see if he could spend the evening at their home and pick the furniture up, as he was nearby in southern Virginia. Pat said Defendant noted that he would have to leave early on Saturday to get home for his guests who were attending the N.C. State football game.\nDefendant was thirty minutes late to his meeting at Dickinson Hospital with Jennifer Sproles; he said he was lost and was not able to call because of poor cell phone service. Defendant called Pat in the morning on 3 November 2006 to tell her he would pick up a wash stand at her home in Brevard. Defendant introduced testimony from an AT&T analyst who said the large number of short phone calls were consistent with dropped phone calls. Defendant later called Pat asking her to call Meredith about the eBay printouts, which Pat did.\n. Before Defendant arrived at her home on 3 November 2006, Pat received a call from Linda stating that Michelle was deceased. Pat decided not to tell Defendant over the phone. When Defendant arrived at her home, Defendant\u2019s stepfather told Defendant of Michelle\u2019s death, and Defendant fell to the ground and began crying.\nDefendant\u2019s sister Heather McCracken (\u201cHeather\u201d) and his brother-in-law, Joe McCracken (\u201cJoe\u201d), came to the home to see Defendant, who was pale, crying, and laying with a blanket draped over himself in a reclinen Joe drove Defendant, Pat, and Heather in his Ford Explorer to Meredith\u2019s home in Fuquay-Varina. During the ride, Defendant said he would lose his home and that there was no way he could afford the home. Defendant\u2019s luggage remained in his vehicle and Pat said nothing was removed between Ms arrival in Brevard and their arrival at Meredith\u2019s home in Fuquay-Varina.\nPat and Defendant\u2019s family later packed up the Youngs\u2019 home two months after Michelle\u2019s death and found a cigar humidor that said \u201cQuick Set\u201d on the exterior. Defendant previously sold Quick Set locks. A credit card purchase was made on a credit card in Michelle\u2019s name at a Tampa, Florida store called \u201cCigars by Antonio.\u201d\nDefendant introduced testimony of a newspaper deliveryman who drove by the Youngs\u2019 home at 5108 Birchleaf Drive around 3:50 a.m., noticed that nothing seemed unusual, and did not see a veMcle.\nA neighbor, CyntMa Beaver (\u201cMs. Beaver\u201d), testified that she passed by the Youngs\u2019 home between 5:20 and 5:30 a.m. and saw that the home\u2019s lights and driveway lights were on, 'and that there was a light-colored \u201csoccer-mom car\u201d with its lights on and placed at the edge of the driveway. Ms. Beaver said a wMte male was in the driver\u2019s seat and another person was in the passenger\u2019s seat, who may have been a female. Another neighbor, Fay Hinsley, said she saw an empty S.U.V. at the edge of the driveway between 6 and 6:30 a.m.\nUnlike the first trial, Defendant did not testify at Ms second trial. Defendant rested his case on 29 February 2012. The jury returned a unanimous verdict finding Defendant gmlty of first-degree murder of Michelle. The trial court then entered a life without parole sentence as required by law.\nII. Jurisdiction\nDefendant\u2019s appeal from the superior court\u2019s final judgment lies of right to tMs Court pursuant to N.C. Gen. Stat. \u00a7\u00a7 7A-27(b), 15A-1444(a) (2013).\nIII. Analysis\na. Introduction of Civil Judgment and Pleadings\nDefendant argues that introduction of a default judgment and complaint m a wrongful death suit, wMch stated that Defendant killed Michelle, is reversible error. We agree. Defendant also argues that introducmg the child custody complaint into evidence against Defendant was reversible error. We agree.\nIntroduction of the complaints and default judgment concern whether the trial court erred by violating N.C. Gen. Stat. \u00a7 1-149 (2013). Introduction of this evidence is reviewed de novo. State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) (holding that a violation of a statutory mandates is reviewable de novo without objection).\nThe State argues that State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985) precludes de novo review of these issues because Defendant cited only Rule 403 of the Rules of Civil Procedure when objecting to introduction of the default judgment and complaint. We disagree. Ashe recognizes that \u201cwhen a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court\u2019s action is preserved, notwithstanding defendant\u2019s failure to object at trial.\u201d Id. at 39, 331 S.E.2d at 659. Further, \u2018\u201cwhere evidence is rendered incompetent by statute, it is the duty of the trial judge to exclude it, and his failure to do so is reversible error, whether objection is interposed and exception noted or not.\u2019 \u201d Christensen v. Christensen, 101 N.C. App. 47, 54-55, 398 S.E.2d 634, 638 (1990) (quoting State v. McCall, 289 N.C. 570, 577, 223 S.E.2d 334, 338 (1976)) (emphasis added), superseded by statute as stated in Offerman v. Offerman, 137 N.C. App. 289, 527 S.E.2d 684 (2000).\nUnder de novo review, we examine the case with new eyes. \u201c[D]e novo means fresh or anew; for a second time, and an appeal de novo is an appeal in which the appellate court uses the trial court\u2019s record but reviews the evidence and law without deference to the trial court\u2019s rulings.\u201d Parker v. Glosson, 182 N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks and citations omitted). \u201cUnder a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.\u201d Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (quotation marks and citation omitted).\nThe first issue concerning admitting evidence of the default judgment may also be reviewed as an evidentiary matter de novo, for an abuse of discretion, and under plain error. State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986); State v. Martinez, 212 N.C. App. 661, 664, 711 S.E.2d 787, 789 (2011); State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d 790, 797 (2011).\n\u201cWhen discretionary rulings are made under a misapprehension of the law, this may constitute an abuse of discretion.\u201d Gailey v. Triangle Billiards & Blues Club, Inc., 179 N.C. App. 848, 851, 635 S.E.2d 482, 484 (2006).\n. Plain error is explained in State v. Lawrence, 365 N.C 506, 723 S.E.2d 326 (2012):\nFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury\u2019s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.\nId. at 518, 723 S.E.2d at 334 (quotation marks and citations omitted).\nN.C. Gen. Stat. \u00a7 1-149 provides that \u201c[n]o pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in it.\u201d Id. (emphasis added). Further:\n[A] judgment in a civil action is not admissible in a subsequent criminal prosecution although exactly the same questions are in dispute in both cases, for the reason that the parties are not the same, and different rules as to the weight of the evidence prevail.\nState v. Dula, 204 N.C. 535, 536, 168 S.E. 836, 836-37 (1933) (quotation marks and citation omitted).\nDula is a criminal embezzlement case where a civil complaint showing a contract for the sale of thirteen pianos was admitted by the defendant\u2019s answer. The defendant alleged in his answer that he had paid the full price of the pianos described in the complaint and had settled the contract with plaintiff\u2019s agent. Dula, 204 N.C. at 535, 168 S.E. at 836. At the defendant\u2019s criminal trial, evidence from the civil pleadings was introduced to show that the pianos involved in the civil dispute were the identical pianos at issue in the criminal dispute, thus seeking to prove a fact from the pleadings in a criminal case. Id. at 536, 168 S.E. at 836. The trial court was reversed for allowing this evidence at the defendant\u2019s criminal trial. Id. at 537, 168 S.E. at 837. Thus, Dula provides an example of N.C. Gen. Stat. \u00a7 1-149 as applied and illustrates the second portion of the statute, namely that civil judgments and/or pleadings may not be used to prove a fact contained therein at a subsequent criminal trial.\nIn State v. Wilson, 217 N.C. 123, 7 S.E.2d 11 (1940), our Supreme Court recognized that reading \u201ccertain allegations of fact contained in the complaint in a civil action against [the defendant]\u201d and asking the defendant \u201cif he had not failed to deny them by any answer\u201d would infringe upon the statutory'guarantee against using pleadings in \u201c\u2018a criminal prosecution against the party as proof of a fact admitted or alleged.\u2019 \u201d Id. at 126-27, 7 S.E.2d at 13 (quoting State v. Ray, 206 N.C. 736, 737, 175 S.E. 109, 110 (1934)).\nWilson was also a criminal embezzlement case where a civil court\u2019s order finding the defendant had \u201cmade loans to himself of his wards\u2019 funds [and] mismanaged the funds belonging to the estate of his wards.\u201d Id. at 126, 7 S.E.2d at 13. The court didn\u2019t question \u201c[t]he propriety of the action of Judge Sink in making the orders referred to,\u201d but did find it was \u201cprejudicial to the defendant on this trial, charged with a felony, to have the weighty effect of those statements, opinions and court orders, relative to the matter then being inquired into, laid before the impaneled jury.\u201d Id. at 126, 7 S.E.2d at 12. The Supreme Court said it would be proper to cross-examine the defendant at length about his transactions as administrator of the estate for impeachment purposes, \u201cbut it would not have been competent for the State to offer affirmative evidence of these collateral matters\u201d unless they were so connected with the indicted charge as to illuminate the question of \u201cfraudulent intent or to rebut special defenses.\u201d Id. at 127, 7 S.E.2d at 13.\nThe State cites several cases where civil pleadings and judgments were admitted in a subsequent criminal trial. State v. Rowell, 244 N.C. 280, 93 S.E.2d 201 (1956); State v. Phillips, 227 N.C. 277, 41 S.E.2d 766 (1947); State v. McNair, 226 N.C. 462, 38 S.E.2d 514 (1946); State v. Fred D. Wilson, 57 N.C. App. 444, 291 S.E.2d 830, disc. rev. denied, 306 N.C. 563, 294 S.E.2d 375 (1982). None of these cases involve default judgments against a defendant, wrongful death judgments against a defendant, or non-testifying defendants. Additionally, these cases involve admitting pleadings and/or judgments in a civil case at a subsequent criminal trial for a different purpose than as proof of a fact alleged in the criminal trial.\nIn Rowell, the defendant was charged criminally for involuntary manslaughter, as he caused his passenger\u2019s death after colliding with a large truck operated by Mr. Wiley Goins. 244 N.C. at 280, 93 S.E.2d at 201. The decedent\u2019s estate filed a wrongful death action against Mr. Goins, which was pending at the time of the defendant\u2019s trial. Id. Mr. Goins testified on behalf of the State, and on cross-examination, the defendant\u2019s counsel asked Mr. Goins whether he was facing a wrongful death suit from the decedent\u2019s estate. Id. The trial court refused to allow Mr. Goins to be cross-examined on the pending lawsuit. Id. The Supreme Court reversed the defendant\u2019s conviction, holding that cross-examination of the pending civil action would show the bias of the witness and that the witness had an interest in the outcome of the criminal prosecution of defendant. Id.\nIn Phillips, the defendant\u2019s relationship with his wife deteriorated when his first wife discovered that he had entered into a bigamous marriage with another woman from Raleigh (\u201csecond wife\u201d). 227 N.C. at 278-79, 41 S.E.2d at 767. The defendant was charged with murdering his first wife. Id. The second wife testified and the Court held that her testimony \u201cwas a proper link in the chain of circumstances tending to show motive.\u201d Id. at 279, 41 S.E.2d at 766. A complaint filed by the second wife to annul the bigamous marriage was also introduced, but the Court held that the complaint was only used to corroborate the testimony of the second wife and that the error was harmless. Id. Thus, the complaint showing a bigamous contract of marriage was not used to show \u201cproof of a fact alleged\u201d by the second wife, but was only used for corroborative purposes. Id.\nIn McNair, the defendant was prosecuted for larceny of an automobile. 226 N.C. at 462, 38 S.E.2d at 515. The defendant had filed a civil complaint concerning the ownership of a vehicle and then testified at his criminal trial in a contrary manner from his complaint. Id. at 463-64, 38 S.E.2d at 516. The State explicitly announced that they were introducing the complaint to impeach the defendant\u2019s contrary testimony at trial. Id. Thus, the court said \u201cno impingement upon the statute was intended or resulted from the cross-examination.\u201d Id. at 464, 28 S.E.2d at 516.\nIn Fred D. Wilson,\u25a0 the defendant was prosecuted for obtaining property via false pretenses in a real-estate scheme, and the State presented several outstanding civil judgments against the defendant. 57 N.C. App. at 449-50, 291 S.E.2d at 833. This Court distinguished the case from Dula, saying that in Dula \u201cpleadings and a civil judgment entered against defendant were erroneously admitted to prove the same facts necessary to obtain a criminal conviction against the defendant.\u201d Id. at 450, 291 S.E.2d at 834. This Court held that rather than attempting to prove the truth of the facts underlying the civil judgment, the State was attempting to show the defendant\u2019s financial motive for committing his crimes in Fred D. Wilson, as he had defaulted on several judgments due to insufficient funds. Id.\nThis Court addresses a different set of facts than Fred D. Wilson, McNair, Phillips, and Rowell. Before the re-trial, Defendant\u2019s counsel learned that the State planned to introduce evidence about the civil actions against Defendant. Defendant\u2019s counsel did not research whether this evidence was admissible, nor did counsel move prior to trial to exclude the evidence on any ground. Rather, Defendant\u2019s counsel requested discovery of the civil attorney\u2019s files. The State replied that it planned to produce all public records in the civil case, have a witness explain the documents, and cross-examine Defendant if he testified. The trial court held that the evidence could be inquired into at trial, if relevant.\nDuring the trial, Wake County Clerk Lorrin Freeman (\u201cMs. Freeman\u201d) testified that on 29 October 2008, Linda filed a wrongful death lawsuit against Defendant on behalf of the estate. Ms. Freeman introduced Linda\u2019s request for Defendant\u2019s disqualification under the slayer statute. Ms. Freeman explained that a wrongful death action is a monetary claim for relief filed against a party who is alleged to have directly caused a decedent\u2019s death. The prosecutor requested Ms. Freeman to read the sixth paragraph of the complaint aloud in court in front of the empaneled jury, which said \u201c[i]n the early morning hours of November 3rd, 2006 Jason Young brutally murdered Michelle Young.\u201d\nMs. Freeman testified that the file showed no attorney on Defendant\u2019s behalf, and she also stated that Defendant did not respond to the suit. Ms. Freeman explained that by failing to answer, Defendant\u2019s action had \u201cthe legal implication or the legal result of the defendant having admitted the allegations as set forth in the complaint.\u201d Ms. Freeman entered a default on 2 December 2008 and thereafter, Linda moved for a default judgment and slayer declaration.\nJudge Stephens heard the motion on 5 December 2008. Ms. Freeman testified, over Defendant\u2019s objection, that Judge Stephens reviewed the evidence and attachments to the motion and entered a judgment declaring that Defendant killed Michelle. Ms. Freeman also testified that Defendant could have presented evidence in the civil action, and Defendant levied a Rule 403 objection.\nIn sum, Ms. Freeman read aloud a civil judgment that declared Defendant had killed his wife. Ms. Freeman read aloud that Judge Stephens, the presiding judge in Defendant\u2019s criminal trial, entered judgment against Defendant after reviewing the evidence. Ms. Freeman read aloud that Defendant did not respond to the complaint and informed the jury that, his action was legally operative as an admission under a civil standard. Additionally, the trial court admitted a \u201cChild Custody Complaint Motion for Psychological Evaluation\u201d into evidence without any restrictions which also included statements that Defendant had killed his wife Michelle.\nThe State did not offer an explicit purpose at trial for offering evidence of the default judgment nor did the State offer a purpose for admitting the child custody complaint. The State now articulates an impeachment purpose on appeal, asserting that the civil pleadings and judgment were used to show Defendant\u2019s unusual reaction to civil suits and to show Defendant\u2019s silence in not responding to the lawsuits cast doubt on his subsequent testimony at his first trial. The State also argues the purpose of introducing the evidence contained in the civil filings was to \u201cshow that [Defendant] had great incentives to answer the civil matters and explain the evidence.\u201d This stated purpose demonstrates the State\u2019s intention of introducing these civil pleadings and judgments: to show proof of Defendant\u2019s guilt, in violation of N.C. Gen. Stat. \u00a7 1-149.\nFurther, the State\u2019s argument that the civil suits were used to cast doubt on Defendant\u2019s 22 June 2011 testimony concerns testimony that the State actually introduced at the second trial. This purpose was not stated at trial, and the impeachment value of introducing these civil suits remains unclear, as Defendant did not file a custody complaint, nor did he testify at the second trial. Essentially, the State is requesting to impeach evidence it offered.\nSecondly, the State cannot articulate a corroborative purpose for this evidence. These civil complaints would only be useful in corroborating the opinions of guilt made by Michelle\u2019s mother, Linda Fisher. Linda\u2019s opinions are themselves inadmissible, leaving no proper corroborative purpose. State v. Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986). No res judicata effect was applicable. Dula, 204 N.C. at 536, 168 S.E. at 837.\nThe jury instructions did not explicitly prohibit the jury from using the default judgment or the child custody complaint filed against Defendant as proof of Defendant\u2019s guilt in the criminal case. The trial court ruled that the civil matters \u201cmight be relevant to any number of matters that the jury has already heard and will hear.\u201d However, the transcript shows the trial court did not articulate a clear basis for admitting either item or the limited purposes for which the jury could use these judgments:\nIf a civil complaint is filed by plaintiff and the parties in a civil action are designated plaintiff, the person bringing the complaint, and the defendant, the person or entity being sued, if a civil complaint is filed by a plaintiff with the clerk of Superior Court, Lorrin Freeman and her office, and if a civil summons is issued by an officer of the court commanding the defendant named in the complaint to respond and otherwise answer to the allegations of the complaint within the time required by law and if the defendant named in the complaint is properly served with this complaint and this summons and if the defendant is an adult and is not otherwise incapacitated or in the military and if the defendant fails to file an answer to that civil complaint or otherwise respond to the allegations within the time required by law and if the plaintiff filing the complaint moves that the court to enter judgment in the plaintiffs favor by reason of that failure to respond or answer, then under the rules of civil law in civil cases and under the rules of the court a judgment can be entered in favor of the plaintiff bringing the lawsuit. Both failure for the defendant named to respond or otherwise answer the allegations, for purposes of the civil case that\u2019s been filed the allegations of the complaint under those circumstances, whether actually true or not, which have not been denied by the named defendant are deemed in the civil law to have been admitted for the purpose of allowing the plaintiff to have judgment entered in the plaintiffs favor. The entry of a civil judgment is not a determination of guilt by any court that the named defendant has committed any criminal offense.\nI further instruct you there is evidence that tends to show that a civil complaint was filed in the Civil Superior Court of Wake County against the defendant by Linda Fisher on behalf of the Estate of Michelle Young and that a civil summons was issued by the clerk of the court commanding the defendant to answer or otherwise respond to the allegations of that civil complaint within the time required by law. There is further evidence that tends to show that the defendant was timely served with these documents and that he did not file an answer or otherwise respond to the complaint and that a default judgment was entered against him by reason of that failure.\nAs I previously instructed you, when a defendant in a civil action has been properly served with the civil summons and the civil complaint and fails to timely respond, upon motion of the plaintiff the Court is authorized to enter a civil judgment against the defaulting defendant. For purpose of the civil law, the allegations of the complaint which have not been denied, whether actually true or not, are deemed to be admitted for the purpose of allowing the plaintiff to have a civil judgment entered against the defendant. The burden of proof in a civil case requires only that the plaintiff satisfy the Court or the jury by the greater weight of the evidence that the plaintiff\u2019s claims are valid. \u25a0This means that the plaintiff must prove that the facts are more likely than not to exist in the plaintiff\u2019s favor. When there is a default, that burden of proof is deemed in law to be met.\nThe entry of a civil default judgment is not a determination of guilt by the Court that the named defendant has committed any criminal offense.\nStill further, the State does not point to an instance where a trial court has attempted to gain admission of a default judgment and a slayer determination in a homicide prosecution. Defendant points our attention to In re J.S.B. 183 N.C. App. 192, 202, 644 S.E.2d 580, 586, writ denied, review denied, 361 N.C. 693, 652 S.E.2d 645 (2007), as an example where this Court held that a voluntary manslaughter finding from a termination of parental rights proceeding could not be used if the State commenced a subsequent criminal prosecution against that defendant.\nAdmitting the wrongful death judgment, the complaint in that case, and the complaint in the child custody case were also abuses of discretion. \u201cWhen the intrinsic nature of the evidence itself is such that its probative value is always necessarily outweighed by the danger of unfair prejudice, the evidence becomes inadmissible under [Rule 403] as a matter of law.\u201d State v. Scott, 331 N.C. 39, 43, 413 S.E.2d 787, 789 (1992). Defendant\u2019s presumption of innocence was irreparably diminished by the admission of these civil actions. This is similar to the prejudice that a jury has when it learns a defendant is previously convicted of a charged offense. State v. Lewis, 365 N.C. 488, 498, 724 S.E.2d 492, 499 (2012). Criminal judgments are clearly admissible in slayer actions. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 57, 213 S.E.2d 563, 569 (1975). However, as Defendant states, the converse is typically not true because admitting such evidence creates great prejudice against the Defendant\u2019s innocence and increases the chance that an unreliable guilty verdict may be rendered. Even greater still is the prejudice to Defendant when a juror is told that the presiding judge in the case reviewed the evidence before the jury and entered a default judgment against a defendant. The danger of unfair prejudice vastly outweighed the probative value in this case and admission of the evidence was abuse of discretion in Defendant\u2019s trial. It is also an abuse of discretion to make a ruling under a misapprehension of the law as occurred here, where the trial court conducted no inquiry concerning N.C. Gen. Stat. \u00a7 1-149.\nBecause the trial court disregarded a statute, we hold the trial court erred in admitting evidence of both the entry of default judgment against Defendant and the child custody complaint against Defendant, and because entry of both items was prejudicial to Defendant, we hold that Defendant must receive a new trial. Because we hold that the trial court violated \u00a7 1-149 in admitting these civil matters, we do not address Defendant\u2019s arguments concerning judicial opinions or Defendant\u2019s argument that insufficient evidence existed to deny a motion to dismiss. We continue to address the admissibility of Emily\u2019s statements and evidence of Defendant\u2019s silence. We address these issues because they are likely to recur at Defendant\u2019s re-trial.\nb. Admission of Emily\u2019s Statements at Daycare\nDefendant argues that statements made by Emily to daycare workers that were admitted via the workers\u2019 testimony were hearsay outside the scope of any exception and/or overwhelmingly prejudicial. Defendant objected to this evidence at trial. This issue is an evidentiary issue that is reviewed de novo. \u201cWhen the admissibility of evidence by the trial court is preserved for review by an objection, we review the trial court\u2019s decision de novo.\u201d Martinez, 212 N.C. App. at 664, 711 S.E.2d at 789. \u201cWhen preserved by an objection, a trial court\u2019s decision with regard to the admission of evidence alleged to be hearsay is reviewed de novo.\u201d Johnson, 209 N.C. App. at 692, 706 S.E.2d at 797.\nThe State argues that Defendant did not preserve this issue for appellate review. We disagree. After the prosecution advised the court outside the jury\u2019s presence that it would put forth two witnesses that would relate Emily\u2019s statements at daycare, the following dialogue occurred between Defendant\u2019s counsel and the trial court:\nTHE COURT: Okay. I know you\u2019ve objected to the testimony of the witness. We heard Ms. Palmatier Friday afternoon. I take it you object to this line of testimony and evidence in its entirety.\n[DEFENSE COUNSEL]: We would, your Honor, on grounds previously stated.\nTHE COURT: As I understand, your position is that the statement of the child is hearsay and not otherwise admissible, as well as it\u2019s not a foundation to show that the capacity of the child to fully understand and appreciate and relate her observations due to her age and that her conduct is also ambiguous.\n[DEFENSE COUNSEL]: That is correct, your Honor, as well as confrontation/cross-examination grounds and due process and 403.\nTHE COURT: And as I understand it, you object to any testimony with regard to the child herself because you contend the testimony with regard to the child is not relevant to any issue in these proceedings.\n[DEFENSE COUNSEL]: That is correct.\nTHE COURT: I mean, the learning and her schooling and observations about the folks at school and things like that.\n[DEFENSE COUNSEL]: That is correct, your Honor.\nTHE COURT: All right. Well, I do believe it is relevant and I have overruled your previous objections and your objections are preserved for the record and the objection goes to the testimony of every witness on this subject as I understand it.\nThis portion of the trial transcript demonstrates the trial court\u2019s granting of a line or continuing objection pursuant to N.C. Gen. Stat. \u00a7 15A-1446(d)(10) (2013); State v. Crawford, 344 N.C. 65, 76, 472 S.E.2d 920, 927 (1996). While Defendant\u2019s counsel objected to a question on redirect asking the first daycare worker to compare the size of the dolls to Defendant and Michelle, this was a properly lodged objection as it exceeded the scope of the granted line objection, although the objection was sustained. Defendant\u2019s second objection when the second daycare worker took the stand and began to relate hearsay statements was a simple reaffirmation of the originally granted line objection. Therefore de novo review of this issue is appropriate.\nThe State presented the testimony of Emily\u2019s daycare worker, Ms. Palmatier. Ms. Palmatier testified during voir dire that on 9 November 2006 she told a Wake County detective that Emily hit two female dolls together with a dollhouse chair and said, \u201c[MJommy\u2019s getting a spanking for biting.... [M]ommy has boo-boos all over.\u201d Ms. Palmatier then testified that, after a nap, Emily said \u201c[Mommy] fell on the floor. Now she\u2019s on the bed with animals, animals were in the bam, they were asleep. There was a cow. Daddy bought me new fruit snacks.\u201d The State argued that this was evidence Emily saw the murder, and that it was probative of Defendant\u2019s identity as she was later found unharmed.\nDefendant\u2019s counsel objected to this evidence, citing hearsay, due process, lack of competency, relevance, and undue prejudice. The trial court ruled that (1) the statements met the present sense impression, excited utterance, and residual hearsay exceptions; (2) the evidence was relevant to determine the killer\u2019s identity; and (3) the evidence was more probative than prejudicial.\nThe court sua sponte excluded Emily\u2019s post-nap statements and granted the defense a continuing objection to Emily\u2019s testimony. The trial court instmcted the jury that evidence was being introduced of Emily\u2019s observations, made when she \u201cmay have had some memory\u201d of Michelle\u2019s death. The trial court instmcted the jury that it could use Emily\u2019s statements to determine whether Emily witnessed a portion of the assault on Michelle.\nEmily\u2019s daycare teacher then testified that on 9 November 2006, Emily asked her for \u201cthe mommy doll.\u201d The teacher gave Emily a bucket of dolls. Emily picked two dolls, one female with long hair and one with short hair, and hit them together. Ms. Palmatier testified that she saw Emily strike a \u201cmommy doll\u201d against another doll and a dollhouse chair while saying, \u201c[MJommy has boo-boos all over\u201d and \u201c[M]ommy\u2019s getting a spanking for biting. . . . [MJommy has boo-boos all over, mommy has red stuff all over.\u201d\nDefendant first argues that the evidence was not relevant. Relevant evidence is evidence that has \u201cany tendency to make the existence of any fact that is of consequence to the determination more probable or less, probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401. \u201cA trial court\u2019s rulings on relevancy are technically not discretionary, though we accord them great deference on appeal.\u201d State v. Lane, 365 N.C. 7, 27, 707 S.E.2d 210, 223 (2011). We agree with the State that the evidence clearly related to the identity of Michelle\u2019s assailant. The evidence was probative that Emily observed her mother\u2019s assault, and that the assailant cared for Emily in some way, as he or she left Emily unharmed after the assault.\nSecondly, Defendant argues that the statements made at daycare were inadmissible hearsay and do not fit within any hearsay exception. We hold the statements are hearsay, but that they fit within the excited utterance exception pursuant to this Court\u2019s decisions in State v. Rogers, 109 N.C. App. 491, 501, 428 S.E.2d 220, 226, cert. denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. 1008 (1994), and State v. Thomas, 119 N.C. App. 708, 712-14, 460 S.E.2d 349, 352-53, disc. review denied, 342 N.C. 196, 463 S.E.2d 248 (1995).\nHearsay is \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c). A \u201cstatement\u201d is an oral or written assertion or \u201cnonverbal conduct of a person . . . intended by him as an assertion.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(a).\nEmily\u2019s statements consisted of striking the \u201cmommy\u201d doll while saying, \u201c[M]ommy\u2019s getting a spanking for biting\u201d and \u201c[MJommy has boo-boos all over, mommy has red stuff all over.\u201d The trial court found that these were statements made by Emily, and that they were offered for the truth of the matter asserted. We agree, and note that the trial court also found that these phrases spoken by Emily were to describe past events via the words and actions of a two and a half year old child. The age of Emily at the time of the statements likely meant she could express herself in a limited way as to her observations. Fact-finders may find that an alternate meaning exists when considering the words of young children who lack the verbal clarity often present in adults. See, e.g., State v. Smith, 315 N.C. 76, 80, 337 S.E.2d 833, 837 (1985) (considering statements of a young child that used figurative language to describe a sex act).\nHowever, if a statement is hearsay, it may still be admitted if it falls within one of the exceptions to the hearsay rule. The primary exception at issue in this case is the excited utterance exception. N.C. Gen. Stat. \u00a7 8C-1, Rule 803(2). For the excited utterance exception to apply, \u201cthere must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.\u201d Smith, 315 N.C. at 86, 337 S.E.2d at 841. \u201cThe rationale underlying the admissibility of an excited utterance is its inherent trustworthiness.\u201d State v. Guice, 141 N.C. App. 177, 200, 541 S.E.2d 474, 489 (2000), opinion adhered to as modified on reconsideration, 151 N.C. App. 293, 564 S.E.2d 925 (2002).\nExcited utterances are often made and admitted into evidence because they fall within a timeframe that is close in proximity to the startling event. See, e.g., id. at 201, 541 S.E.2d at 489 (finding a statement made to an officer within \u201cseveral minutes\u201d of the defendant dragging the victim from the home and while struggling to breathe fell within the requisite time frame). However, this Court has held that \u201cthe stress and spontaneity upon which the exception is based [axe] often present for longer periods of time in young children than in adults.\u201d Rogers, 109 N.C. App. at 501, 428 S.E.2d at 226 (quotation marks and citation omitted); see also Smith, 315 N.C. at 87-88, 337 S.E.2d at 841 (\u201cThis ascertainment of prolonged stress is bom of three observations. First, a child is apt to repress the incident. Second, it is often unlikely that a child will report this kind of incident to anyone but the mother. Third, the characteristics of young children work to produce declarations \u2018free of conscious fabrication\u2019 for a longer period after the incident than'with adults.\u201d (citation and quotation marks omitted)).\nOur State\u2019s appellate courts have thus extended the length of time that the excited utterance exception may apply. See Smith, 315 N.C. at 79, 86-90, 337 S.E.2d at 836, 841-43 (four and five-year-olds\u2019 statements made two to three days after being sexually abused were admissible); Thomas, 119 N.C. App. at 712-14, 460 S.E.2d at 352-53 (five-year-old\u2019s statements made four to five days after sexual abuse were admissible); Rogers, 109 N.C. App. at 501, 428 S.E.2d at 226 (five-year-old\u2019s statements made three days after sexual abuse admissible).\nThus, the outer time limit at present is four to five days from the event a child has made statements about. Emily was also younger than the other children discussed above in prior cases this Court has considered. Emily\u2019s statements were made six days after her mother was killed and were made while she played with dolls, without prompting or questioning from adults. We hold that the attendant circumstances in this case merit application of the excited utterance exception and that the trial court did not err in admitting Emily\u2019s statements. Because we hold Emily\u2019s statements were, admitted properly under the excited utterance exception to the hearsay rule, we do not address whether the present sense impression or residual exception apply to this case.\nc. Defendant\u2019s Silence as Substantive Evidence\nThe trial court offered the following jury instructions as they relate to Defendant\u2019s refusal to speak with police and his family members:\nLadies and gentlemen, the Fifth Amendment to the United States Constitution protects a citizen\u2019s right to refuse to answer questions of the police during a criminal investigation. The exercise of that Constitutional right may not be used as evidence against that citizen later at trial to create an inference of guilt. Therefore, the defendant\u2019s decision not to answer questions by law enforcement officers during the criminal investigation may not be considered against him as evidence of guilt to the pending charge. However, that same Fifth Amendment does permit the jury to consider the defendant\u2019s refusal to answer police questions to the extent that the evidence surrounding that refusal bears upon the defendant\u2019s truthfulness if the defendant elects to testify or made a statement at a later time. The evidence presented in this case tends to show that the defendant elected to testify at a prior trial.\nTherefore, I instruct you that you may consider evidence of the defendant\u2019s refusal to answer police questions' during this investigation for one purpose only. If, in considering the nature of that evidence, you believe that such evidence bears upon the defendant\u2019s truthfulness as a witness at his prior trial, then you may consider it for that purpose only. Except as it relates to the defendant\u2019s truthfulness, you may not consider the defendant\u2019s refusal to answer police questions as evidence of guilt in this case.\nI also instruct you that this Fifth Amendment protection applies only to police questioning. It does not apply to questions asked by civilians, including friends and family of the defendant and friends and family of the victim.\nDefendant argues that the trial court committed plain error by instructing the jury that it could consider Defendant\u2019s failure to speak with friends and family as substantive evidence of guilt. We disagree and find that the instruction was proper.\nThe Fifth Amendment\u2019s protection against self-incrimination does not extend to questions asked by civilians. Oregon v. Elstad, 470 U.S. 298, 304-05 (1985) (\u201cThe Fifth Amendment, of course, is not concerned with nontestimonial evidence. Nor is it concerned with moral and psychological pressures to confess emanating from sources other than official coercion.\u201d (citations and quotation marks omitted) (emphasis added)).\nDefendant argues that Defendant\u2019s silence in response to questions from non-officers should be offered for impeachment purposes only. Defendant cites State v. Mack, 282 N.C. 334, 339-40, 193 S.E.2d 71, 75-76 (1972), and State v. Hunt, 72 N.C. App. 59, 61, 323 S.E.2d 490, 492 (1984), aff\u2019d without precedential value, 313 N.C. 593, 330 S.E.2d 205 (1985), for the proposition that pre-arrest silence may only be used to impeach a defendant\u2019s pre-trial statement or trial testimony. Mack held that \u201c[p]rior statements of a witness which are inconsistent with his present testimony are not admissible as substantive evidence because of their hearsay nature.\u201d 282 N.C. at 339, 193 S.E.2d at 75; see also State v. Black, _N.C. App._,_, 735 S.E.2d 195, 202 (2012) (citing Mack, 282 N.C. at 339-40, 193 S.E.2d at 75)), appeal dismissed, review denied, __ N.C._, 738 S.E.2d 391 (2013). However, Mack concerned the substantive use of silence within the context of a testifying non-party witness making statements to a police officer. 282 N.C. at 339, 193 S.E.2d at 75. Hunt was affirmed without precedential value by the North Carolina Supreme Court, 313 N.C. at 593, 330 S.E.2d at 205, but also involved silence with respect to police questioning. 72 N.C. App. at 61-62, 323 S.E.2d at 492.\nDefendant\u2019s friends and family asked him about Michelle\u2019s murder on several occasions and Defendant did not offer statements to his friends and family about the evening\u2019s events. The State contends that Defendant\u2019s later version of events offered at his first trial were inconsistent with his earlier silence and that the discrepancy \u201ctend[s] to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [himself].\u201d State v. Redfern, 246 N.C. 293, 298, 98 S.E.2d 322, 326 (1957) (holding that conflicting statements amount to \u201csubstantive evidence of substantial probative force, tending to show consciousness of guilt\u201d). Defendant\u2019s silence to non-officers may provide substantive evidence of guilt because statements or silence to questioning from non-police officers are not granted the same protections under the Fifth Amendment and are probative of Defendant\u2019s mental processes. Thus, the evidence was proper for substantive consideration by the jury.\nDefendant also argues that the trial court committed plain error in offering its jury instruction. Defendant argues that the trial court should have instructed the jury that the evidence did not create a presumption of guilt, was insufficient alone to establish guilt, and that the evidence could not be considered as to premeditation and deliberation. State v. Myers, 309 N.C. 78, 88, 305 S.E.2d 506, 512 (1983). Defendant argues that anew trial was required because the case was \u201centirely circumstantial.\u201d Id.\nIn Myers, the defendant objected to the instruction, the witnesses relied upon by the State had severe credibility issues, and the trial court placed an \u201cemphasis upon the negative aspect of defendant\u2019s statements.\u201d Id. Here, there was minimal mention by the State that Defendant was silent to his friends and family. We hold that Defendant\u2019s pre-arrest silence coupled with evidence that whoever killed Michelle did so with premeditation and deliberation and the limited referral to Defendant\u2019s silence about the murder to friends and family did not rise to the level of plain error having a probable impact on the verdict. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.\nIV. Conclusion\nThe introduction into evidence of the civil complaints and judgment was in error and violated N.C. Gen. Stat. \u00a7 1-149, as the evidence was used to prove a fact \u2014 namely, that Defendant had killed Michelle \u2014 Defendant is deemed to have admitted in the wrongful death civil action and which had been alleged in the child custody proceeding. This evidence also severely impacted Defendant\u2019s ability to receive a fair trial. As such, we order a\nNEW TRIAL.\nJudges STROUD and DILLON concur.\n. The pseudonym \u201cEmily\u201d is used to protect the identity of the child involved in this case.\n. Because we grant Defendant a new trial based on the trial court\u2019s improper admission of evidence under N.C. Gen. Stat. \u00a7 1-149, we do not address Defendant\u2019s motion for appropriate relief because it is moot.\n. We note that N.C. Gen. Stat. \u00a7 1-149 was not brought to the trial court\u2019s attention by the State or Defendant\u2019s counsel. In our review, we did not uncover mention of N.C. Gen. Stat. \u00a7 1-149 in common references, such as the Trial Judges\u2019 Bench Book.",
        "type": "majority",
        "author": "HUNTER, JR., Robert N., Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery, Assistant Attorney General Amy Kunstling Irene, and Assistant Attorney General Daniel P. O\u2019Brien, for the State.",
      "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JASON LYNN YOUNG\nNo. COA13-586\nFiled 1 April 2014\n1. Evidence \u2014 first-degree murder \u2014 civil pleadings and judgment \u2014 proof of fact alleged \u2014 danger of unfair prejudice\u2014 outweighed probative value\nThe trial court violated N.C.G.S. \u00a7 1-149, abused its discretion, and committed plain error in a first-degree murder trial by admitting into evidence a default judgment in a wrongful death suit, the complaint in that suit, and a complaint in a child custody suit which stated that defendant killed the victim. The evidence was incompetent under N.C.G.S. \u00a7 1-149 because it was used against defendant as proof of a fact alleged in it; specifically, that defendant killed the victim. It was the duty of the trial court to exclude the evidence, regardless of whether defendant objected to it on that basis at trial. Furthermore, admitting the evidence was an abuse of discretion because defendant\u2019s presumption of innocence was irreparably diminished by the evidence from the civil actions, especially when the presiding judge in the murder trial was the presiding judge in the wrongful death suit, and the danger of unfair prejudice vastly outweighed the probative value in this case. Additionally, the trial court abused its discretion by admitting the evidence under a misapprehension of the law where the trial court failed to conduct an inquiry concerning N.C.G.S. \u00a7 1-149.1.\n2. Evidence \u2014 hearsay statements \u2014 child\u2014six days after event\u2014 excited utterance\nThe trial court did not err in a first-degree murder trial by allowing into evidence statements made by a two-and-a-half-year old child to daycare workers that were admitted via the workers\u2019 testimony. The statements were relevant to show that the child may have witnessed the murder of her mother. Furthermore, even though the statements were made six days after the incident, the statements merited the application of the excited utterance exception to the hearsay rule.\n3. Constitutional Law \u2014 right to remain silent \u2014 pre-arrest silence \u2014 does not extend to failure to speak with non-officers\nThe trial court did not commit plain error in a first-degree murder case by instructing the jury that it could consider defendant\u2019s failure to speak with friends and family about his wife\u2019s murder as substantive evidence of his guilt. A defendant\u2019s silence to non-officers may provide substantive evidence of guilt because statements or silence to questioning from non-police officers are not granted the same protections under the Fifth Amendment and are probative of a defendant\u2019s mental processes. Furthermore, defendant\u2019s pre-arrest silence coupled with evidence that whoever killed the victim did so with premeditation and deliberation and the limited referral to defendant\u2019s silence about the murder to friends and family did not rise to the level of plain error having a probable impact on the verdict.\nAppeal by Defendant from judgment entered 5 March 2012 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 12 December 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery, Assistant Attorney General Amy Kunstling Irene, and Assistant Attorney General Daniel P. O\u2019Brien, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant."
  },
  "file_name": "0207-01",
  "first_page_order": 217,
  "last_page_order": 247
}
