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holding that because “the jury had an ample basis upon which to evaluate the relative credibility of the witnesses whose testimony was critical to the outcome in this case” defendant was not prejudiced by reference to polygraph evidence
Summary of this case from State v. BiggsOpinion
No. COA12–366.
2013-02-19
STATE of North Carolina v. Christopher John HORTON.
Attorney General Roy Cooper, by Assistant Attorney General Sherri G. Horner, for the State. Michael E. Casterline for Defendant-appellant.
Appeal by defendant from judgments entered 8 August 2011 by Judge Jesse B. Caldwell, III, in Gaston County Superior Court. Heard in the Court of Appeals 27 September 2012. Attorney General Roy Cooper, by Assistant Attorney General Sherri G. Horner, for the State. Michael E. Casterline for Defendant-appellant.
ERVIN, Judge.
Defendant Christopher John Horton appeals from judgments stemming from his convictions of four counts of taking indecent liberties with a child, two counts of first degree sex offense, and two counts of statutory sex offense in violation of N.C. Gen.Stat. § 14–27.7A. On appeal, Defendant contends that his trial counsel provided him with ineffective assistance of counsel by failing to prevent the jury from hearing inadmissible evidence concerning polygraph testing and that the trial court erroneously instructed the jury concerning the effect of false, contradictory or conflicting statements made by Defendant. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that the trial court's judgments should remain undisturbed.
I. Factual Background
A. Substantive Facts
1. State's Evidence
a. Michael Young's Testimony
Michael Young testified that he was born in 1982 and that his parents separated in 1992, shortly after the birth of his younger brother, Matthew. After their parents' divorce, Michael and Matthew lived with their mother, Susan Young, in Iron Station, North Carolina. In 1994, Michael joined the Boy Scouts and met Defendant, who was then about twenty-two years old and served as an assistant scoutmaster of the troop to which Michael belonged.
In 1995, Defendant began taking Michael to various activities and events and “tr[ied] to be a father figure for [him.]” In 1996, Defendant began living with the Young family; Michael and Matthew shared a room, while Defendant and Ms. Young had individual bedrooms. At that time, Michael was about fourteen years old, while Matthew was three or four. Defendant required the boys to address him as “Dad” and became angry if they forgot to do so. Defendant bought clothing and shoes for Michael and took him on outings. Michael's mother sometimes left Defendant alone with her sons for several days.
Defendant assisted Michael in connection with his attempt to earn the Boy Scout photography merit badge. As part of that process, Defendant would pick Michael up and take him to Defendant's house, where he taught Michael about various aspects of photography. While they were working on the photography merit badge at Defendant's residence, Defendant began talking with Michael about sexual matters. Among other things, Defendant offered to show Michael how to masturbate; showed Michael pornographic videos; and, after Michael became aroused while watching these videos, offered to masturbate Michael. Defendant kissed Michael, performed oral sex on him, and got Michael to perform oral sex on him and to masturbate him. Although Defendant attempted to have anal sex with Michael, he stopped when Michael complained of pain. According to Michael, Defendant initially offered to “teach” him how to kiss, after which “it moved to the masturbation, then it moved to the oral sex, and then to the try of the anal sex.” Defendant “told [Michael] that this is how fathers taught their kids about sex.” During his testimony, Michael described a specific feature of Defendant's genitals.
After about a year of sexual activity, Michael told Defendant that he wanted to stop. At the time that Michael made this request, Defendant became angry and said he “was just teaching [him]” and that “this is what a father does for his son[.]” After Michael made this request of Defendant, the level of sexual activity between them diminished, with their last sexual encounter occurring when Michael was sixteen or seventeen. Because Defendant told him not to discuss the matter with his mother, Michael refrained from telling his mother or his father about Defendant's conduct.
When Michael was in college, he confronted Defendant about what had happened between them. Defendant asked if Michael was going to report his activities to the police, told Michael that “everything he did was to help [Michael] to learn,” and stated that, while he “never meant to hurt” Michael, “he [knew] now that he made a mistake.” Defendant was “crying [and] apologizing” during this conversation and said “that he would never do that to anyone else.” As a result, Michael agreed to refrain from contacting the police “if [Defendant] promised to never do that to anyone else again.”
In June 2010, Matthew told Michael that Defendant had engaged in sexual acts with him, including masturbation and oral sex. On 26 June 2010, Michael confronted Defendant about his sexual abuse of Matthew, at which point Defendant asked if Matthew was going to report him, pointed out that he had “done so much for [Michael and Matthew,]” and said that he “d[id]n't deserve this.” The next week, Matthew contacted the police.
b. Matthew Young's Testimony
Matthew Young, who was born in November 1992, was about two years old when Defendant became involved with his family. Matthew thought of Defendant, who had spent time with Michael and Matthew as long as he could remember, as “[his] dad.” When Matthew was six or seven, he joined a Cub Scout troop. Defendant was “very supportive” of Matthew's progress through Cub Scouts. After completing the Cub Scout program when he was ten or eleven, Matthew joined the Boy Scout troop led by Defendant. Matthew continued to be a member of Defendant's Boy Scout troop until he was seventeen and a half years old. During that time, Defendant drove Matthew to and from scout meetings, spent time with him on other occasions, and was very involved in his life. Matthew's mother would leave Matthew alone with Defendant for periods lasting as long as an entire weekend.
When Matthew was around twelve years old, Defendant started discussing sexual subjects with him and showing him pornographic magazines at his office. In addition, Defendant showed Matthew pornographic videos, after which “things progressed to touching one another.” Defendant engaged in mutual masturbation and oral sex with Matthew and told Matthew that “everything was okay” because he was Matthew's father and was “teaching” him. After Defendant had been having oral sex with Matthew for several months, he began having anal sex with him, once again telling Matthew that he was “just teaching” him. Defendant engaged in various sexual activities with Matthew for over a year, with these activities having taken place in a variety of locations, including Matthew's home, Defendant's office, and on scouting trips. For example, when Defendant took Matthew on certain Boy Scout events, they would stay in a hotel and engage in sexual activities instead of camping with the other Scouts and Scout leaders.
The sexual activity between Defendant and Matthew stopped between Matthew's sixteenth and seventeenth birthdays. As best Matthew could remember, he had more than 100 sexual encounters with Defendant between 2004 and 2007. During the summer between his junior and senior years of high school, Matthew told Michael what had happened between him and Defendant. Although Matthew was reluctant to report Defendant to the authorities, Michael told Matthew that Defendant had promised ten years earlier to refrain from engaging in sexual acts with a young boy. As a result, Matthew decided that, unless he reported Defendant's conduct, Defendant might engage in similar activities with someone else. For that reason, Matthew reported Defendant's conduct to officers of the Lincoln County Sheriff's Department and told officers specific details about Defendant's genitals.
c. Susan Young's Testimony
Susan Young, Michael and Matthew's mother, corroborated Michael's and Matthew's account of Defendant's involvement with their family. Ms. Young became acquainted with Defendant in 1994 as a result of Michael's participation in scouting. In 1996, Defendant moved in with the Young family for a year or two. As a result of the fact that she trusted Defendant, Ms. Young did not object to her sons calling him “dad” or to the role that he played in her family. Although Michael and Matthew spent a great deal of time alone with Defendant, Ms. Young did not suspect that Defendant had directed any inappropriate conduct toward her sons. In June 2010, Matthew told her that Defendant had abused him. Having previously had a brief sexual relationship with Defendant, Ms. Young was able to describe the same physical feature exhibited by Defendant's genitals which Michael and Matthew had noticed.
d. Other Prosecution Witnesses
Sherri Lynn Smith–Martin, who had lived next door to the Young family beginning around 1984, knew Defendant as a friend of the Young family from and after 1994. Among other things, Ms. Smith–Martin heard Michael and Matthew calling Defendant “dad” and observed Defendant playing a parental role in the children's lives. On several occasions, Ms. Smith–Martin saw Defendant kiss Michael or Matthew on the lips. Ms. SmithMartin's son, Jeffrey Martin, recalled instances in which Defendant kissed Michael on the lips or grabbed his buttocks while playing outside. Similarly, Ms. Smith–Martin's daughter, Kristen Martin, remembered seeing Defendant kiss Michael and Matthew on their lips.
2. Defendant's Evidence
a. Defendant's Testimony
Defendant grew up in Stanley. After becoming involved with Boy Scouts when he was about ten years old, Defendant eventually earned Eagle Scout rank. In 1994, Defendant returned to scouting, serving as assistant scoutmaster and then as scoutmaster of the troop to which Michael and Matthew belonged. Defendant met Michael because he was a scout in Defendant's troop and met Ms. Young at a Scouting-related parents' event.
In 1995, Defendant had a sexual relationship with Ms. Young and began to develop a “fatherly” relationship with Michael. Among other things, Defendant “coached [Michael's] team,” “went to his school activities” and “was his dad in every way,” with the two of them becoming sufficiently close that Michael even referred to Defendant as “dad.” After Michael finished high school, the two spoke on the phone frequently. Similarly, Defendant met Matthew when he was just a few years old, “became his dad in every way,” and attended Matthew's sporting and band events. Defendant testified that he had a close relationship with Michael and Matthew, that he had “been their dad for 15 years,” and that he had taken responsibility for “all the discipline.”
Defendant denied having helped Michael earn his photography merit badge, having had pornographic magazines at his home or office, or having had a “sexual relationship” with Michael. He did, however, admit having kissed Michael on the mouth, having spent time alone with Michael, and having driven him places. Similarly, Defendant denied having ever slept in the same tent with Matthew, having had pornography at his store, or having ever engaged in any sort of sexual activity with Matthew. Finally, Defendant denied that his genitalia had the specific characteristic that Matthew, Michael, and Ms. Young had described and supported his denial with photographic evidence.
In 2002, Defendant started dating a woman named Machelle Thomas, whom he later married. As a result of the fact that Machelle had two young children, Defendant “became their dad as well.” In 2001, Defendant started a new Boy Scout troop and served as head scoutmaster of that group until his arrest in 2010. Machelle's son, Shane, and Matthew were the same age and were both members of Defendant's troop.
On cross-examination, Defendant testified that, after being publicly accused of sexual misconduct, he had created a website named “innocent scouter.” In addition, Defendant conceded that he had provided the State with a day-planner which did not contain many entries relating to the time during which the State contended the alleged abuse had occurred despite containing numerous entries for the period of time specified in certain other indictments. Defendant admitted having kissed Matthew and Michael on the mouth until they were about 14 years old. Although Defendant represented himself as Matthew and Michael's “dad,” he never had any sort of legally recognized relationship with them. Finally, Defendant acknowledged that he had gone to a Scouting event with Matthew a few days early and had stayed in a hotel room with him.
b. Other Defense Testimony
Machelle Horton testified that she met Defendant in 2001 and married him in 2005. Ms. Horton, who had two young children, met Defendant through the Scouting program just after separating from her first husband. Ms. Horton never observed pornography at Defendant's store or saw any indications of a sexual relationship between Defendant and either Matthew or Michael.
Ms. Horton's son, Shane Campbell, testified that, on one of the trips during which Matthew claimed that sexual activity had occurred between Defendant and himself, Defendant and Matthew had slept in the same bed. However, Shane did not observe anything unusual happening during that trip. Although Defendant had answered Shane's questions about sex, taught him how to masturbate, and told him to discuss sexual matters with Defendant rather than with his mother, Defendant had never made any sexual advances toward Shane.
Mike Hudson, an assistant scoutmaster in Defendant's troop, had accompanied Defendant on a number of scouting trips. However, he never observed anything inappropriate about the relationship between Defendant and Matthew. In the same vein, Mike Hudson's son, Ryan, who had belonged to Defendant's Boy Scout troop, testified that he had not seen any indication that Defendant was engaging in sexual behavior with Matthew. Finally, several members of Defendant's Scout troop testified that Defendant never made advances toward them and that they had never observed any evidence that Defendant acted inappropriately toward Matthew.
3. State's Rebuttal Evidence
In rebuttal, Detective Seth Bailey of the Lincoln County Sheriff's Department testified that he and Detective Michael Sumner had interviewed Defendant concerning Matthew and Michael's accusations on 30 June 2010 and made an audio recording of that interview. A recording of this interview, which will be discussed in greater detail below, was played for the jury. In addition, Millard McGee, Jr., and Geraldine Smith testified that Michael and Matthew had good reputations for honesty and truthfulness.
B. Procedural History
On 1 November 2010, the Gaston County grand jury returned bills of indictment charging Defendant with four counts of taking indecent liberties with a child and two counts of first degree sexual offense involving actions allegedly committed against Michael, and three counts of taking indecent liberties with a child, one count of first degree sexual offense, and two counts of statutory sex offense in violation of N.C. Gen.Stat. § 14–27.7A relating to actions allegedly committed against Matthew. On 11 August 2011, the State voluntarily dismissed three of the indecent liberties indictments and one of the first degree sexual offense indictments returned against Defendant relating to offenses alleged to have been committed against Michael on the grounds that the “victim's memory of initial date of meeting [Defendant] postdates [the] date of offense” alleged in the relevant indictments.
The remaining charges against Defendant came on for trial before the trial court and a jury at the 25 July 2011 criminal session of Gaston County Superior Court. On 5 August 2011, the jury returned verdicts convicting Defendant of four counts of taking indecent liberties with a minor, two counts of first degree sexual offense, and two counts of statutory sexual offense in violation of N.C. Gen.Stat. § 14–27.7A. As a result, after arresting judgment in one case in which Defendant had been convicted of first degree sexual offense, the trial court imposed judgments sentencing Defendant to a consolidated term of 250 to 309 months imprisonment based upon his convictions of first degree sexual offense and taking indecent liberties with a child, to a consecutive term of 240 to 297 months imprisonment based upon his conviction of statutory sexual offense in violation of N.C. Gen.Stat. § 14–27.7A, to a consecutive term of 16 to 20 months imprisonment based upon his conviction of taking indecent liberties with a child, to a consecutive term of 16 to 20 months imprisonment based upon his conviction of taking indecent liberties with a child, to a consecutive term of 20 to 24 months imprisonment based upon his conviction of taking indecent liberties with a child, and to a concurrent term of 240 to 297 months imprisonment based upon his conviction of statutory sexual offense in violation of N.C. Gen.Stat. § 14–27.7A. Defendant noted an appeal to this Court from the trial court's judgments.
II. Legal Analysis
A. Ineffective Assistance of Counsel
In his first challenge to the trial court's judgments, Defendant argues that his “[c]ounsel's failure to review the [CD] prior to trial and prevent that reference to the polygraph from going before the jury was ineffective assistance of counsel” and that Defendant was prejudiced by his counsel's “deficient performance.” Defendant is not entitled to appellate relief from the trial court's judgments on the basis of this claim.
As we have already noted, an audiotape of Detective Bailey's interview with Defendant was introduced into evidence and played for the jury during the presentation of the State's rebuttal evidence. Before the jury heard this recording, the prosecutor and Defendant's trial counsel informed the trial court that they had agreed that the jury should not hear a portion of the tape which made a reference to polygraph testing. During this discussion, the prosecutor and Defendant's trial counsel stated that the interview included only one instance in which polygraph testing was mentioned, so that the recording should be muted “from 43:37 ... to 43:55.”
After the presentation of the State's rebuttal testimony, the trial court and the parties' counsel discussed the fact that the jury had actually heard a second reference to polygraph testing.
[DEFENSE]: ... There was apparently an error in allowing the tape, because there's a statement on there from Detective Sumner saying, “I bet Matthew would take a polygraph,” he said it twice, and my client said, “I wish you would,” which is inappropriate, I think.
....
[PROSECUTOR]: I don't have anything to say about that, your Honor, other than I must have overlooked that, Mr. Carpenter and I.
THE COURT: Well, first of all, not only did the tape—we hear Detective Sumner say that Matthew was willing to take a polygraph, but we also heard Detective Sumner say, and now in the presence of the jury, and I'm paraphrasing it, and [”]it's funny that you won't take one.[”] So in addition to highlighting the fact that the alleged victim was willing to take one, he made an affirmative assertation (sic), which plainly put before the jury that this defendant would not take one....
[PROSECUTOR]: Well, your Honor, I would tell the Court that ... it simply slipped my mind that that was on there past the point that we talked about.
....
[DEFENSE]: I made a mistake, Judge, it's as simple as that. I listened to the tape. I didn't know he was introducing the tape until yesterday. I hadn't reviewed the tape, I didn't review it last night. I listened to it probably six weeks ago ... [and] assumed [the prosecutor] had listened to it in preparation....
THE COURT: ... What I don't understand is how something this patently inadmissible can scoot past somebody. And, of course, I'm also concerned about if this defendant is convicted, about a motion for appropriate relief for ineffective assistance of counsel....
So what are we going to do? ... Do we draw attention to it? Am I required, ex mer[o] mot[u] or sua sponte, to tell the jury to strike that from their consideration, thereby highlighting it but at least removing improperly admitted evidence from their consideration, or do we gloss over it hoping nobody caught it, nobody understood the implications of it. I'll hear from you. What do you say, [Prosecutor]?
....
[PROSECUTOR]: ... I would ask the Court to instruct the jury that it be disregarded; any mention of any polygraphs, that that be stricken from their consideration.... [A]ppellate courts presume the jury will follow instructions of the Court....
THE COURT: ... What says the defendant, [DEFENSE]?
[DEFENSE]: Your Honor, ... if we instruct on it, we highlight it. And I don't care, you can instruct them all day long to disregard it, but it makes it an important point, and I think the best thing we could do is just leave it alone.
At the conclusion of this discussion, the trial court instructed the jury that:
.... Now, I need to tell you one more thing. Members of the jury, during the playing for you of ... the taped statement of the detectives with the defendant, ... there was a reference to polygraph. I will not recount what was said, what statement or statements were said about that because I don't have a verbatim transcript and I don't want to paraphrase it. Moreover, I don't want to draw any undue attention to it other than what I'm doing by this instruction. I am giving you an explicit instruction with regard to any statement or statements about polygraph. First of all, the Court is striking that evidence from the record. I'm striking from our court transcript any reference—any statement or statements made about a polygraph examination or test made by any individual in that audio tape, that compact disk.
That is now stricken from the record. I now instruct you, members of the jury, to strike that statement or statements or reference or references to a polygraph examination or polygraph test, to strike that from your consideration, and I emphasize this emphatically and in no uncertain terms. Under no circumstances are you to talk about that, are you to consider it in any way, shape, or form in your deliberations or your verdicts in any of these eight cases. This evidence was admitted through inadvertence on the part of the attorneys. It is inadmissible evidence. Evidence regarding polygraph is not admissible under North Carolina law. That has been the law for decades. The basis of the law relates to the lack of reliability of polygraph going back to when that rule was first espoused. Maybe one day that rule will be changed and the law will be changed, and if so, then that will be a different matter, but as of now that's the law. And so that's the basis for the law which I don't have to tell you but I am telling you.
Again, the admission of that evidence was done by honest mistake on the part of the attorneys who have reviewed it, and quite frankly they simply forgot about that, okay? So neither the state or the defendant did anything wrong or improper ... or anything intentional to prejudice either side, all right? ... [T]he reason I'm telling you this is because I otherwise would tell you to consider all the evidence. Unless I struck that as evidence, then that would be fair game if you remember it. You may not have even remembered it, but that would be—but I'm going to tell you to remember all the evidence, then that would be fair game for you to talk about, and you can't do that because the law says you can't do that. So I've spent a lot of time talking to you about that because it's very important. Under no circumstances should anybody on this jury mention that statement in your deliberations. And if anybody—first of all, I don't think anybody will, but if anybody does, I[ex]pect the other 11 of you to shout them down, okay, and say [”]whoa, whoa, whoa, the judge said we can't talk about that. That statement is off limits.[”] It is not to be considered in any way, shape, or form in any of your deliberations or any of your verdicts, all right? Okay.
According to well-established federal and state law:
In analyzing ineffective assistance of counsel claims, we utilize a two-part test, under which the “[d]efendant must show (1) that ‘counsel's performance was deficient,’ meaning it ‘fell below an objective standard of reasonableness,’ and (2) that ‘the deficient performance prejudiced the defense,’ meaning that ‘counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ “ ... In proving whether counsel's actions resulted in prejudice to the defendant, he or she must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[,]” with a “reasonable probability” being “a probability sufficient to undermine confidence in the outcome.”
State v. Womack, 211 N.C.App. 309, ––––, 712 S.E.2d 193, 196 (2011) (quoting State v. Mohamed, 205 N.C.App. 470, 480–81, 696 S.E.2d 724, 733 (2010) (quoting Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)), and 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.E.2d at 698). In other words, “[t]he fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel's errors, there would have been a different result in the proceedings,” with “[t]his determination [to] be based on the totality of the evidence before the finder of fact.” State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985) (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). Moreover, “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699–700. As a result, “if a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
“[I]t is commonly known that polygraph tests are not admissible under our law for any purpose.” State v. Alston, 80 N.C.App. 540, 542, 342 S.E.2d 573, 575 (citing State v. Grier, 307 N.C. 628, 645, 300 S.E.2d 351, 361 (1983) (holding that evidence concerning the result of a polygraph examination is inadmissible in any trial, even if the parties stipulate to the admissibility of the examination results), cert. denied, 317 N.C. 707, 347 S.E.2d 441 (1986). As a result, in the event that Defendant had requested that the second reference to polygraph testing be removed from the portion of the recording of Defendant's discussion with the investigating officers that was played for the benefit of the jury, the trial court would have been obligated to grant that request and clearly would have done so. This fact, however, does not end our inquiry. Instead, assuming, without in any way deciding, that the failure of Defendant's trial counsel to make such a request constituted deficient representation for purposes of the relevant provisions of the federal and state constitutions, we must determine whether, in light of the facts of this case, the failure of Defendant's trial counsel to make such a request sufficiently prejudiced Defendant to necessitate the award of a new trial.
As this Court has previously held, a brief, inadvertent reference to polygraph testing, followed by a curative instruction from the trial court, does not necessarily warrant reversal of a defendant's conviction. In State v. Hutchings, 139 N.C.App. 184, 190, 533 S.E.2d 258, 261,disc. review denied, 353 N.C. 273, 546 S.E.2d 381 (2000), a detective made a reference during his trial testimony to the fact that a polygraph examination had occurred. On appeal, this Court held that, in light of the surrounding circumstances, the trial court did not err by denying the defendant's motion for mistrial, stating that:
Defendant's counsel made a timely objection which was sustained. Defendant's motion to strike was allowed and the trial court instructed the jury: “The jury is to disregard the last comment of the witness and not to consider that at all.” ... Any possible prejudice was removed by the trial court's prompt and timely instruction[.]
Similarly, in State v. Sanders, 201 N.C.App. 631, 640, 687 S.E.2d 531, 537,disc. review denied,363 N.C. 858, 695 S.E.2d 106 (2010), the jury was permitted to hear a recorded interview during which reference was made to the fact that a polygraph examination had been conducted. Once again, we held that the trial court did not err by denying the defendant's motion for a mistrial, stating that, “[w]hile we disapprove of the State's actions in submitting to the jury unredacted exhibits containing references to a polygraph examination, such exhibits did not contain any evidence of the results of the polygraph examination.” Id. As a result, as a general proposition, a curative instruction by the trial court usually suffices to eliminate the harmful effect of an incidental reference to polygraph testing, a policy that militates against a finding that the reference to polygraph testing which occurred in this case resulted in sufficient prejudice to necessitate a decision to award Defendant a new trial.
In seeking to persuade us that any deficient representation that he received from his trial counsel was sufficiently prejudicial to require an award of appellate relief, Defendant cites State v. Moose, 115 N.C.App. 707, 709–10, 446 S.E.2d 112, 113 (1994), in which this Court reversed the defendant's conviction on the grounds that the trial court abused its discretion by failing to grant the defendant's request for a mistrial after a prosecutor had elicited evidence concerning polygraph testing. However, a careful review of Moose indicates that our holding rested upon the apparently intentional nature of the prosecutor's conduct rather than upon the prejudicial effect of the improperly admitted polygraph-related evidence.
[H]ere the Assistant District Attorney was twice clearly warned by the judge and instructed not to bring [polygraph testing] up without having first consulted the judge and he indicated that he understood. We find the district attorney's subsequent actions to be inexcusable. Certainly all would agree that such a deliberately offensive act would provide grounds for sanctions by the trial judge. Furthermore, immediately after their initial discussion of the polygraph, the court ruled that it would sustain defendant's motion “at this time.” Because the judge had sustained defendant's motion, we find that the district attorney's mention of the polygraph constituted reversible error. We conclude that the trial judge abused his discretion in denying the motion for a mistrial.
Id. Moose is not, however, controlling in this case, in which the jury was inadvertently exposed to a brief reference to polygraph testing by an investigating officer and in which the trial court carefully and thoroughly instructed the jury to refrain from considering this comment during their deliberations. “The law presumes that jurors follow the court's instructions.” State v. Tirado, 358 N.C. 551, 581, 599 S.E.2d 515, 535 (2004) (citation omitted), cert. denied sub nom Queen v. North Carolina, 544 U.S. 909, 125 S.Ct. 1600, 161 L.Ed.2d 285 (2005). As a result, given that Defendant has not identified any decision in which an appellate court in this jurisdiction has overturned a criminal conviction on the basis of a brief, inadvertent mention of polygraph testing that was followed by a clear and definitive curative instruction from the trial court and the fact that we have not identified any such decisions in the course of our own research, we have little basis in existing law for concluding that Defendant has made the necessary showing of prejudice in this case.
Our conclusion to this effect is reinforced by an examination of the factual record developed before the trial court, which leads us to conclude that it is not reasonably probable that Defendant would have been acquitted had the jury not heard the offending evidence. As Defendant correctly points out, the State did not offer independent eyewitness testimony confirming the descriptions of Defendant's conduct provided by Michael and Matthew or any forensic evidence tending to confirm their claims. For that reason, the crucial issue before the jury was the relative credibility of Michael and Matthew, on the one hand, and Defendant, on the other. All three of these witnesses testified at length and were subject to extensive cross-examination, including considerable discussion of apparently ancillary matters such as whether Defendant's genitalia had a particular appearance and whether there was a Denny's restaurant located near any motels in Shelby. Thus, the jury had an ample basis upon which to evaluate the relative credibility of the witnesses whose testimony was critical to the outcome in this case. Under that set of circumstances, particularly given that Defendant admitted that he kissed Michael and Matthew on the mouth until their early teenaged years, that Defendant admitted having provided sexually oriented instructions to Michael and Matthew, and that the pattern of entries in Defendant's day planner could be construed as indicating that Defendant had fabricated evidence in an effort to bolster the strength of his case, we conclude that there is no reasonable probability that the outcome at Defendant's trial would have been different had the jury not heard the brief reference to polygraph questioning that was inadvertently allowed to remain in Defendant's recorded statement. As a result, Defendant is not entitled to relief on appeal on the basis of his ineffective assistance of counsel claim.
B. Instruction Concerning False or Conflicting Statements
Secondly, Defendant argues that the trial court erroneously instructed the jury concerning false, contradictory, or conflicting statements allegedly made by Defendant on the grounds that “such instruction was not supported by the evidence.” We do not find Defendant's argument persuasive.
At trial, the prosecutor requested the trial court to deliver an instruction concerning false, contradictory, or conflicting statements allegedly made by Defendant. In response, the trial court discussed the language of the relevant pattern jury instruction, stating that:
THE COURT: All right. Well, for the record, this is instruction [N.C.P.I.] 105.21, false, contradictory, or conflicting statements of the defendant. There is a caveat which says: NOTE WELL, capital letters, underlined, this instruction is ONLY-capital letters, underlined-proper for the defendant's statements and/or trial testimony is contradictory to highly relevant facts proven at trial. HOWEVER—capital letters, underlined-this instruction should NOT—capital letters, underlined—be used if the statements are completely irrelevant and without substantial probative force intending to show a consciousness of guilt.
In light of this caveat, the trial court agreed to instruct the jury concerning false, contradictory, or conflicting statements allegedly made by Defendant, based solely on the fact that Defendant told Detective Bailey that he had not spent time at the Young's house in 15 years. Although Defendant “argued that the statement in question had been made casually by [Defendant] in an initial conversation with detectives, at a time when he hadn't yet been charged with an offense, and he wasn't under oath,” the trial court declined to accept this argument and instructed the jury that:
Now, members of the jury, the state contends and the defendant denies that the defendant made a false, contradictory, or conflicting statement when the defendant told Detective Sumner and Detective Bailey that he had not been staying at the Young house in 15 years, that he had not spent the night there, and that he had not spent time at the Young house in 15 years. If you find that the defendant made such statement, members of the jury, the statement may be considered by you as a circumstance tending to reflect the mental process of a person possessed by guilty conscience seeking to divert suspicion or to exculpate himself, and you should consider that evidence along with all other believable evidence in the case. However, if you find that the defendant did make such statement, the statement does not create a presumption of guilt, and such evidence standing alone is not sufficient to establish guilt.
The trial court did not err by delivering the challenged instruction.
Our Supreme Court has held that false, contradictory, or conflicting statements made by an accused concerning the commission of a crime may be considered as a circumstance tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate himself. The probative force of such evidence is that it tends to show consciousness of guilt. The instruction is proper not only where defendant's own statements contradict each other but also where defendant's statements flatly contradict the relevant evidence....
State v. Scercy, 159 N.C.App. 344, 353, 583 S.E.2d 339, 344 (citing State v. Walker, 332 N.C. 520, 537–38, 422 S.E.2d 716, 726 (1992), cert. denied,508 U.S. 919, 113 S.Ct. 2364, 124 L.Ed.2d 271 (1993), and State v. Myers, 309 N.C. 78, 86, 305 S.E.2d 506, 511 (1983)), disc. review denied,357 N.C. 581, 589 S.E.2d 363 (2003). In other words, an instruction concerning the manner in which the jury should consider false statements allegedly made by a criminal defendant is appropriate in the event that the defendant makes contradictory statements about a relevant matter or makes a statement which conflicts with other relevant evidence.
As we read his brief, Defendant does not dispute the fact that he told Detective Bailey on 30 June 2010 that “he had not been staying at the Young house in 15 years, that he had not spent the night there, and that he had not spent time at the Young house in 15 years .” However, Defendant testified that he served as an assistant scoutmaster in Michael's troop starting in November, 1994; that he met Ms. Young in February, 1995; that he had a sexual relationship with Ms. Young “throughout 1995;” and that he lived in an apartment until November 1995, when he moved into Ms. Young's house and lived with the family for “over a year.” As a result, Defendant's statement concerning the length of time that it had been since he had spent time at the Young residence contradicted his trial testimony. Moreover, Defendant provided extensive testimony to the effect that he had acted as a surrogate father to Michael and Matthew throughout their childhood and continuing through adolescence. In addition, other State's witnesses testified that Defendant had been present at the Young residence on many occasions during the fifteen year period prior to the date upon which Defendant had his recorded conversation with Detective Bailey. As a result, Defendant's statement that he had not spent time at the Young's house during the last fifteen years could easily “be considered as a circumstance tending to reflect the mental processes of ‘a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [himself],’ “ Walker, 332 N.C. at 537, 422 S.E.2d at 726 (quoting Myers, 309 N.C. at 86, 305 S.E.2d at 511), sufficient to justify the delivery of the challenged instruction.
In seeking to persuade us to reach a different result, Defendant argues that his “statements and trial testimony did not contain the kind of substantial and significant inconsistencies which would have justified giving the 105.21 instruction.” However, we believe that the statement in question was more substantive than Defendant's argument tends to suggest. Simply put, Defendant's assertion that he had not spent time at the Young's house during the past fifteen years was clearly intended to buttress his denial of guilt by suggesting that he had not spent much time in Matthew's presence. As a result, we conclude that the trial court did not err by instructing the jury concerning the manner in which they should treat any determination that Defendant's statement to Detective Bailey with respect to the length of time that had elapsed since he last spent time at the Young's residence was false during its deliberations.
III. Conclusion
Thus, for the reasons set forth above, we conclude that none of Defendant's challenges to the trial court's judgments have merit. As a result, the trial court's judgments should, and hereby do, remain undisturbed.
NO ERROR. Judges ROBERT N. HUNTER, JR., and McCULLOUGH concur.
Report per Rule 30(e).