State v. Wingate is a recently filed North Carolina Supreme Court decision from a case that arose out of Wake County. Here the Court reversed the decision of the North Carolina Court of Appeals. In this matter, there were two issues before the Court. First, the Court looked at whether or not the trial court committed plain error by admitting the testimony of two expert witnesses that was characterized as vouching. Second, the court addressed the issue of whether or not an indictment was fatally flawed based on a discrepancy in statutory references. The ruling of the Court is noteworthy as it may pose challenges for criminal practitioners particularly in a trial setting. We will begin our discussion of the decision by first looking at the issue of the statutory discrepancy and then we will conclude by directing our attention to the issue raised by the testimony of the expert witnesses.
Mr. Wingate was in his mid-50s when he was indicted for committing sex offenses against his then twelve year old son. Specifically, in addition to other charges, Mr. Wingate was indicted in November of 2019 on the charge of first degree statutory sex offense under N.C.G.S. §14-27.29. The actual language in the indictment stated that “at the time of the act the Defendant was at least eighteen years of age.” However, the statute actually requires that the accused be “at least 12 years old and is at least four years older than the victim.” Because the question of whether or not an indictment is sufficient is a jurisdictional issue, it may be raised at any time. This issue was first raised on appeal but nevertheless it was still ripe for review because it is a jurisdictional question. The Court relied on prior rulings in its conclusion that incorrectly listed statutes or errors in naming an offense in a bill of indictment are net necessarily fatal flaws. As long as a defendant has adequate notice of what is being charged, there is no fatal flaw in the indictment. Constructive notice can serve as adequate notice. Adequate notice has been given as long as the indictment substantially tracks the language of the statute. Mr. Wingate was indicted for first degree statutory sex offense under 14-27.29 but he was in fact sentenced under 14-27.28. 14-27.28 specifies that 14-27.29 is a lesser included offense. Both charges are Class B1 felonies. The Court concluded that during the course of the underlying proceedings, Mr. Wingate had been put on constructive notice of the crime for which he was ultimately sentenced. The evidence presented at trial supported the charge for which Mr. Wingate was sentenced. The jury had received instructions on the proper statute without objection from Mr. Wingate’s counsel. The Court ruled that viewing the indictment as whole leads to the proper conclusion that the incorrect statutory reference is merely a “scrivener’s error”
The Court does say that notwithstanding this decision, the State is still obligated to draft satisfactory indictments. The State must make sure that information in indictments, if true, will support each element of the charged offense. Furthermore, the Court points out that this opinion should not be construed to mean that the State has an open book on leading a defendant to believe that they are being charged for a lesser included offense only to find out at sentencing that it is the more serious crime that is actually being charged. The Court additionally implies in the opinion that not raising the issue of the statutory discrepancy may raise a question regarding the effectiveness of Mr. Wingate’s counsel. It is this aspect of the case that could prove problematic to criminal practitioners going forward. Not only are timely objections important, but carefully reviewing indictments throughout the proceedings, including during the course of a trial, is also a good habit to form.
In this opinion, the Court also looks at whether or not it was proper for the trial court to allow expert witness testimony that was characterized as vouching. The standard of review that the Court applied in analyzing this issue was plain error. The Court identified its precise task as determining whether or not the admission of the alleged vouching testimony, if it were improper, constituted plain error. At the core of this question is the testimony of two expert witnesses whose qualifications as experts was objected to by Mr. Wingate. In addition to these two expert witnesses, the victim testified, a lay witness testified, and another expert whose qualifications were not challenged by Mr. Wingate provided testimony. The Court points out the fundamental proposition that uncorroborated victim testimony, even standing alone, is sufficient for supporting a conviction as long as it demonstrates each element of the charged crime. Based on the record, the Court concluded that even without the testimony of the two experts in question, there is nothing to indicate that the jury probably would have reached a different verdict. There was no plain error because there was nothing in the record to indicate that the expert testimony in question probably changed the outcome of the case.
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