State v. McLeanÂ, 251 N.C. App. 850

Background

On 25–26 April 2014 four armed intruders (three masked, one unmasked) entered a cinder-block building where several people were playing cards; the unmasked intruder fired shots and one victim, Acey Braddy, was shot in the chest. Braddy and another witness identified James McLean as the unmasked shooter.
The intruders ordered victims to lie face down, remove clothing, and give money/cell phones; multiple victims had property taken.
McInnis later testified she heard a male voice in a holding cell threaten her and, after asking a jailer, was told "James McLean" was in the adjacent cell; she said this made her afraid to testify.
McLean was indicted for attempted first-degree murder, assault with a deadly weapon inflicting serious injury, robbery with a dangerous weapon, and discharging a firearm within an enclosure to incite fear; a jury convicted him of assault, robbery, and discharge-with-intent-to-incite-fear, but acquitted him of attempted first-degree murder.
Sentences: assaults and robbery resulted in prison terms; the trial court also ordered McLean to reimburse costs including an expert witness fee and listed a judicial order to pay the expert from AOC funds. McLean appealed.

Issues

Issue	State's Argument	McLean's Argument	Held
Sufficiency of indictment for discharging a firearm within an enclosure to incite fear	Indictment tracks statute (State conceded error)	Indictment misdescribed the act as discharging a firearm "into" an occupied structure rather than "within" one, so it was legally insufficient	Indictment insufficient; conviction vacated
Denial of motion to dismiss robbery with a dangerous weapon (taking from person or presence)	Evidence (victims’ IDs, commands to remove clothes, victims robbed while under duress) supports a taking from Braddy’s person or presence	Insufficient evidence that McLean took property from Braddy’s person or presence	No error — substantial evidence supported the robbery conviction
Admission of Lieutenant Butler’s testimony that Braddy "seemed truthful" (vouching)	Testimony described Butler’s perception and belief about victim’s desire for police to find perpetrators	Testimony impermissibly vouched for witness credibility and was plain error	Admission was error but not plain error given corroborating testimony from other witnesses
Admission of McInnis’s testimony recounting jailer’s identification of McLean in adjacent cell (alleged hearsay)	Testimony was admissible to explain why McInnis feared testifying (non-hearsay purpose)	Testimony was hearsay because it asserted the truth of McLean’s presence in the cell and the jailer did not testify	No plain error — testimony admissible to explain fear and, even if hearsay, harmless in light of other evidence
Assessment of expert-witness fee as condition of early/post-release supervision	Trial court ordered reimbursement but also signed CR-231 showing expert to be paid from AOC funds	Trial court lacked statutory authority to require defendant to pay State’s expert as supervision condition	Vacation of the expert-fee assessment as a condition of early/post-release supervision

Key Cases Cited

State v. Mann, 237 N.C. App. 535 (discussing de novo review of indictment sufficiency)
State v. Miranda, 235 N.C. App. 601 (indictment essential to trial court jurisdiction)
State v. Penley, 277 N.C. 704 (indictment sufficient when it charges language of statute)
State v. Hill, 365 N.C. 273 (elements of robbery with a dangerous weapon)
State v. Cole, 199 N.C. App. 151 (broad construction of "presence" in robbery prosecutions)
State v. Locklear, 322 N.C. 349 (substantial evidence standard for denial of dismissal)
State v. Vause, 328 N.C. 231 (definition of "substantial evidence")
State v. Odom, 307 N.C. 655 (plain error standard and cautions)
State v. Global, 186 N.C. App. 308 (opinion vouching for another witness barred by Rule 701)