NO. COA13-586

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Wake County

No. 09 CRS 19207

JASON LYNN YOUNG

Appeal 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.

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’Brien, for the State.

Appellate Defender Staples S. Hughes, by Assistant 

Appellate Defender Barbara S. Blackman, for defendantappellant. 

HUNTER, JR., Robert N., Judge.

Jason Lynn Young (“Defendant”) appeals a jury verdict 

finding him guilty of first-degree murder of his wife, Michelle 

Fisher Young (“Michelle”). 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. 
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I. Facts & Procedural History

The Wake County Grand Jury indicted Defendant for firstdegree murder on 14 December 2009. Defendant’s 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. 

Defendant’s 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.

A. State’s Evidence

Michelle Young was found at her home by her sister, 

Meredith Fisher (“Meredith”), 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.
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Meredith complied with Defendant’s requests and entered the 

Youngs’ home through the garage door, which was broken, and then 

through the unlocked kitchen door to the home’s mudroom. 

Meredith noticed her sister’s car was in the garage and that her 

keys and purse were visible near the kitchen counter. After 

entering, Meredith called out Michelle’s name and heard no 

response. Meredith heard the Youngs’ dog, “Mr. G.,” whimpering, 

but she did not see him. The house was cold.

As Meredith ascended the home’s stairs, she saw what she 

thought was dark red hair dye at the top of the staircase in the 

bathroom of the Youngs’ two-and-a-half-year-old daughter, Emily.1 

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.

Meredith called 911, and as she did, Meredith said “[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.” During the call, Emily 

continually asked for band-aids and said that her mother “has 

 

1 The pseudonym “Emily” is used to protect the identity of the 

child involved in this case.
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boo-boos everywhere.” The 911 operator asked Meredith if 

Michelle had any personal problems, to which Meredith replied 

“[u]m not really. You know her and her husband fight a little 

bit, but nothing too ridiculous.” Meredith also told the 911 

operator that her “niece is very smart for her age” and that she 

thought Emily was saying “there was somebody in the house.” 

Paramedics and the Wake County Sheriff’s Office responded to 

Meredith’s call.

Emily was not injured and appeared “clean” when Meredith

arrived, except for some dried blood on Emily’s 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’s hip until they 

both were taken away by emergency personnel. Later, Meredith 

called her mother Linda Fisher (“Linda”) in New York to tell her

of Michelle’s passing and later told Defendant’s mother Pat 

Young (“Pat”) of Michelle’s death.

Sheriff’s 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’s body 

was discolored, cold, and stiff. She was not wearing shoes and 
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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’s DNA and fingerprints were present in 

the bedroom, although none of his fingerprints contained blood.

Michelle was lying face-down just outside of a closet 

labeled “his closet.” A child’s doll was near Michelle’s 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’ home was found on the doorknob leading from 

the kitchen to the garage, and its DNA markers were consistent 

with Michelle’s DNA. No blood was found in or on Defendant’s 

vehicle, his clothes, or in the hotel room where he stayed on 2 

November 2006.

The medical examiner who conducted the autopsy, Dr. Thomas 

Clark (“Dr. Clark”), 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 “a heavy blunt object” with a rounded surface that 

produced crescent-shaped skull fractures. Dr. Clark said the 
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autopsy did not produce evidence of a sexual assault against 

Michelle. Michelle was approximately twenty weeks pregnant when 

she passed away.

Small footprints in blood, consistent with a child’s 

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’s level in Emily’s 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’s bathroom.

Several 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 (“CCBI”), 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 
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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.

A jewelry box in the master bedroom had two drawers 

removed, and DNA testing showed four markers that did not 

include Defendant or Michelle’s DNA. Meredith testified that 

Michelle “didn’t really have a lot of fancy jewelry” except her 

wedding and engagement rings, and that she “always wore” her 

wedding and engagement rings. Michelle’s 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.

Printouts 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 (“Ms. Whitney”) 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 
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for directions between Raleigh and Clintwood, Virginia, were 

also made that evening, as well as e-mail logins to Defendant’s 

personal email account. Ms. Whitney also found that, at an 

undetermined time, Internet searches were made on the Youngs’ 

home computer for “anatomy of a knockout,” “head trauma 

blackout,” “head blow knockout,” and “head trauma.”

i. Evening of 2 November 2006

Michelle’s sorority sister and close friend, Ms. Shelly 

Schaad (“Ms. Schaad”), arrived at the Youngs’ home around 6:30 

p.m. on 2 November 2006. Ms. Schaad arrived to have dinner and 

to watch Grey’s 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’ 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 
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anticipation of his arrival. Defendant’s father-in-law called 

and cancelled his visit that evening. After he left, Defendant

called the Young residence seven times that evening.

Michelle 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’s mother-inlaw, 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.

Ms. Schaad testified that she had an “eerie feeling” that 

evening. Ms. Schaad asked Michelle if she was scared to be 

alone. Ms. Schaad testified that Michelle

proceeded to say, you know, Jason’s 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’s 

going to break in and their intention is to 

kill you, then that’s what they’re going to 

do, and it was very unsettling. 

Ms. Schaad said she felt like the two were being watched and 

asked Michelle to walk her to her vehicle before she left that 

evening.

ii. Defendant’s Location on 2 and 3 November 2006

Defendant purchased gasoline in Raleigh at approximately 

7:30 p.m. on 2 November 2006 and then went to a Cracker Barrel 
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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 Hillsville, 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.

Security 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’s vehicle when police 

later seized it on 3 November 2006.

Defendant 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.

The 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 
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Defendant’s stay as well as a weekend edition of the USA Today 

were found in Defendant’s Ford Explorer on 3 November 2006, when 

police seized it.

Early in the morning on 3 November 2006, Hampton Inn Clerk 

Mr. Keith Hicks (“Mr. Hicks”) 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.

When Mr. Hicks returned to the front desk and reviewed the 

hotel’s 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 (“Mr. 

Goad”), 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’s 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.
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The 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’s fingerprints 

on the security camera. Investigator Eddie McCormick 

(“Investigator McCormick”) 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’ home at 5108 Birchleaf Drive.

The hotel had no record of when Defendant left on 3 

November 2006. The State’s 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 
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also said that “knowing what I know about telephonic 

investigations,” the call frequency reflected a person who was 

panicked.

Defendant 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.

Detective Richard Spivey of the Wake County Sheriff’s 

Office (“Detective Spivey”) testified that his deputy drove 

between Raleigh and Hillsville, Virginia in two hours and 

twenty-five minutes without traffic. Three gas receipts were 

found in Defendant’s 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 (“Ms. 

Calhoun”), 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’s 

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.

Ms. Calhoun was shown a photograph of Defendant’s white 

Ford Explorer on 5 November 2006 and asked if she saw the car on 
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3 November 2006. When Ms. Calhoun was shown Defendant’s 

photograph, she identified him as the vehicle’s driver. Ms. 

Calhoun was not asked to provide a physical description prior to 

seeing Defendant’s photo, and stated that the Defendant was 

“just a little bit taller than me,” 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.

Ms. 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.

After the first trial concluded, Defendant’s counsel 

learned that Ms. Calhoun had received disability benefits since 

she was a child. Ms. Calhoun stated that when she was six-
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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.

The State presented evidence that a newspaper delivery 

person passed by the Youngs’ 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. 

After Defendant arrived and learned from his mother of 

Michelle’s passing, he spoke with Meredith over the phone. 

Meredith told Defendant to come to her home because the Youngs’ 

home was a crime scene. When speaking to Meredith, he asked 

about Emily, what had happened, and seemed upset over the phone.

Officers began to question Meredith and friends of the 

Youngs about possible marital problems. After the questioning, 

Defendant’s friends Josh Dalton and Ryan Schaad suggested he not 

speak to police until he retained counsel. On counsel’s advice, 

Defendant never answered any questions from law enforcement or 

spoke about Michelle’s death with friends or family.
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Defendant arrived at Meredith’s 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 “dress pants, dress shoes, a 

thermal cut crew neck shirt, a couple buttons here, and a dress 

shirt over that open.” 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 “going to take a hit on the house.” 

iii. Marital Difficulties

The State produced several witnesses who testified that the

Youngs experienced difficulties in their marriage, including 

Meredith, Ms. Schaad, and Defendant’s friend Josh Dalton. Ms.

Schaad described the Youngs’ relationship as “volatile.”

Meredith also noted marital problems between Michelle and 

Defendant and suggested divorce to Defendant and Michelle. 

Meredith said the Youngs “would get in screaming matches. 

They’d fight in public.” 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 
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her death, Michelle became “withdrawn,” “depressed” and

“miserable.”

On 12 September 2006, Defendant sent an e-mail to the work 

address of his former fiancée, Genevieve Cargol (“Ms. Cargol”)

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’s car 

windshield, punching a hole in a wall, and forcibly removing the 

engagement ring from her finger.

Defendant had extra-marital affairs with two other women

while married to Michelle. Defendant communicated with one of 

these women, Michelle Money (“Ms. Money”) regularly and engaged

in sexual intercourse in Orlando, Florida on 7 October 2006. 

Defendant’s friend Josh Dalton stated that Defendant said “he 

felt like he was in love with” 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 
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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’ home while 

Michelle was out of town on another occasion.

On 27 October 2006, Michelle saw a counselor by herself, 

Ms. Kimberly Sargent. Ms. Sargent testified that Michelle

“cried the entire session.” Ms. Sargent said her “assessment of 

the situation was that [Michelle] was being verbally abused.”

iv. Emily’s Statements at Daycare

Emily returned to daycare the Monday after Michelle’s 

death. The State introduced testimony of Emily’s daycare

teacher, Brooke Bass (“Ms. Bass”). Defendant objected to 

admitting this testimony and was overruled.

Ms. Bass testified that Emily kept to herself more than 

usual that week. Ms. Bass said Emily asked for a “mommy” 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 “mommy doll,” and a second female doll with short 

hair. Ms. Bass stated that Emily began hitting the two dolls 

together. Another daycare teacher, Ashley Palmatier (“Ms. 

Palmatier”) asked Emily what she was doing and said Emily hit 
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the dolls together and said “mommy’s getting a spanking for 

biting.” Emily then laid the doll face-down on a dollhouse bed, 

saying “mommy had boo-boos all over, mommy has red stuff all 

over.” Emily’s 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’s first trial.

v. Introduction of Civil Suits

Evidence of two separate civil suits was introduced at 

Defendant’s second trial over Defendant’s 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’s motion for entry of a default judgment. 

Judge Stephens reviewed the affidavits and entered a judgment 

that Defendant “unlawfully killed” Michelle. Defendant was the 

beneficiary of Michelle’s $4 million life insurance policy, but 

did not make a claim on the policy. Defendant’s assets were 

seized as a result of the $15 million judgment for Linda.

After Michelle’s death, Defendant took Emily to Brevard, 

and the Fisher family was allowed to see Emily at several 
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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.

The Fishers filed a child custody complaint against 

Defendant on 17 December 2008. The complaint said Defendant 

“brutally murdered Michelle Marie Fisher Young . . . at their 

residence. Michelle was pregnant with [Defendant’s] son at the 

time of her murder. Upon information and belief [Emily] was in 

the residence at the time [Defendant] murdered her mother.” 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.

vi. Defendant’s Mistrial Testimony

Defendant 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 
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testified that after Emily was born, 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 “ecstatic” that he would 

soon have a son.

Defendant testified that he thought he and Michelle didn’t 

fight much more than other couples, but that the couple “fought 

more openly than other couples.” 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 “a lot of guilt” for spending his anniversary weekend 

with Ms. Money, rather than his wife Michelle, and so he planned

to purchase a Coach handbag to “make up for a lot in a big way.” 

Defendant called Meredith several times to retrieve the papers 

from the family printer because he “really wanted it to be a 

surprise.” Defendant thought that the gift had special 

significance because it was a leather purse for his and 

Michelle’s third anniversary, which is commonly known as the 

“leather anniversary.”

Defendant said he had just begun a new job with an 

electronic health records company, and a schedule was set for 
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him to make a sales call in Clintwood, Virginia. Defendant’s 

sales call was at 10:00 a.m. on 3 November 2006, so Defendant 

said he planned to “break the trip up” 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.

Defendant 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. 

Defendant 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-
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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 “nil to one bar.” 

After his sales meeting, Defendant drove south toward 

Brevard, arrived at his mother’s house, and his stepfather told 

him that Michelle was dead. Defendant said he “just broke” and 

cried. Defendant said some friends called and told him he 

needed “to get a lawyer before” talking to anyone. Defendant’s 

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.

Defendant 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’s 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’s 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 
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“first responder” to a car accident where a person was knocked 

out. 

The State offered several pieces of evidence to rebut 

Defendant’s testimony. The State noted that prior to trial, 

Defendant received copies of all the State’s investigative 

files, which included field and interview notes. The State’s 

analysis of Defendant’s 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 “substantial outerwear”

besides a suit jacket was found in Defendant’s luggage.

The State rested its case on 24 February 2012. Defendant 

moved to dismiss the case at that time. The trial court denied 

Defendant’s motion, and Defendant began presenting his case on 

27 February 2012.

B. Defendant’s Evidence

Defendant’s mother Pat said Defendant called her the 

evening of 2 November 2006 and discussed bringing home a wash 
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stand and an antique dresser when Defendant’s 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.

Defendant 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.

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’s stepfather told 

Defendant of Michelle’s death, and Defendant fell to the ground 

and began crying.
-26-

Defendant’s sister Heather McCracken (“Heather”) and his 

brother-in-law, Joe McCracken (“Joe”), came to the home to see 

Defendant, who was pale, crying, and laying with a blanket 

draped over himself in a recliner. Joe drove Defendant, Pat, 

and Heather in his Ford Explorer to Meredith’s home in FuquayVarina. During the ride, Defendant said he would lose his home 

and that there was no way he could afford the home. Defendant’s 

luggage remained in his vehicle and Pat said nothing was removed 

between his arrival in Brevard and their arrival at Meredith’s 

home in Fuquay-Varina.

Pat and Defendant’s family later packed up the Youngs’ home 

two months after Michelle’s death and found a cigar humidor that 

said “Quick Set” on the exterior. Defendant previously sold 

Quick Set locks. A credit card purchase was made on a credit 

card in Michelle’s name at a Tampa, Florida store called “Cigars 

by Antonio.”

Defendant introduced testimony of a newspaper deliveryman 

who drove by the Youngs’ home at 5108 Birchleaf Drive around 

3:50 a.m., noticed that nothing seemed unusual, and did not see 

a vehicle.

A neighbor, Cynthia Beaver (“Ms. Beaver”), testified that 

she passed by the Youngs’ home between 5:20 and 5:30 a.m. and 
-27-

saw that the home’s lights and driveway lights were on, and that 

there was a light-colored “soccer-mom car” with its lights on 

and placed at the edge of the driveway. Ms. Beaver said a white 

male was in the driver’s seat and another person was in the 

passenger’s 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.

Unlike the first trial, Defendant did not testify at his 

second trial. Defendant rested his case on 29 February 2012. 

The jury returned a unanimous verdict finding Defendant guilty 

of first-degree murder of Michelle. The trial court then 

entered a life without parole sentence as required by law.

II. Jurisdiction

Defendant’s appeal from the superior court’s final judgment 

lies of right to this Court pursuant to N.C. Gen. Stat. §§ 7A–

27(b), 15A–1444(a) (2013). 

III. Analysis

a. Introduction of Civil Judgment and Pleadings

Defendant argues that introduction of a default judgment 

and complaint in a wrongful death suit, which stated that 

Defendant killed Michelle, is reversible error. We agree. 

Defendant also argues that introducing the child custody 
-28-

complaint into evidence against Defendant was reversible error. 

We agree.2

Introduction of the complaints and default judgment concern 

whether the trial court erred by violating N.C. Gen. Stat. § 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).

The 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 “when a trial 

court acts contrary to a statutory mandate and a defendant is 

prejudiced thereby, the right to appeal the court’s action is 

preserved, notwithstanding defendant’s failure to object at 

trial.” Id. at 39, 331 S.E.2d at 659. Further, “‘where 

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 

 

2 Because we grant Defendant a new trial based on the trial 

court’s improper admission of evidence under N.C. Gen. Stat. § 

1-149, we do not address Defendant’s motion for appropriate 

relief because it is moot.
-29-

noted or not.’” 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).

Under de novo review, we examine the case with new eyes. 

“[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’s record but reviews the evidence and law without 

deference to the trial court’s rulings.” Parker v. Glosson, 182 

N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007) (quotation marks 

and citations omitted). “Under a de novo review, the court 

considers the matter anew and freely substitutes its own 

judgment for that of the lower tribunal.” 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).

The 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 
-30-

(2011); State v. Johnson, 209 N.C. App. 682, 692, 706 S.E.2d 

790, 797 (2011). 

“When discretionary rulings are made under a 

misapprehension of the law, this may constitute an abuse of 

discretion.” Gailey v. Triangle Billiards & Blues Club, Inc., 

179 N.C. App. 848, 851, 635 S.E.2d 482, 484 (2006).

Plain error is explained in State v. Lawrence, 365 N.C 506, 

723 S.E.2d 326 (2012):

For 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’s 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.

Id. at 518, 723 S.E.2d at 334 (quotation marks and citations 

omitted).

N.C. Gen. Stat. § 1-149 provides that “[n]o pleading can be 

used in a criminal prosecution against the party as proof of a 

fact admitted or alleged in it.” Id. (emphasis added).

3 

Further:

 

3 We note that N.C. Gen. Stat. § 1-149 was not brought to the 
-31-

[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.

State v. Dula, 204 N.C. 535, 536, 168 S.E. 836, 836–37 (1933) 

(quotation marks and citation omitted). 

Dula is a criminal embezzlement case where a civil 

complaint showing a contract for the sale of thirteen pianos was 

admitted by the defendant’s 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’s agent. Dula, 204 N.C. at 535, 168 S.E. at 836. At 

the defendant’s 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’s 

criminal trial. Id. at 537, 168 S.E. at 837. Thus, Dula

provides an example of N.C. Gen. Stat. § 1-149 as applied and 

 

trial court’s attention by the State or Defendant’s counsel. In 

our review, we did not uncover mention of N.C. Gen. Stat. § 1-

149 in common references, such as the Trial Judges’ Bench Book.
-32-

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. 

In State v. Wilson, 217 N.C. 123, 7 S.E.2d 11 (1940), our

Supreme Court recognized that reading “certain allegations of 

fact contained in the complaint in a civil action against [the 

defendant]” and asking the defendant “if he had not failed to 

deny them by any answer” would infringe upon the statutory 

guarantee against using pleadings in “‘a criminal prosecution 

against the party as proof of a fact admitted or alleged.’” 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)).

Wilson was also a criminal embezzlement case where a civil

court’s order finding the defendant had “made loans to himself 

of his wards’ funds [and] mismanaged the funds belonging to the 

estate of his wards.” Id. at 126, 7 S.E.2d at 13. The court 

didn’t question “[t]he propriety of the action of Judge Sink in 

making the orders referred to,” but did find it was “prejudicial 

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.” Id. at 126, 7 S.E.2d at 12. The 
-33-

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, “but it would not have been 

competent for the State to offer affirmative evidence of these 

collateral matters” unless they were so connected with the 

indicted charge as to illuminate the question of “fraudulent 

intent or to rebut special defenses.” Id. at 127, 7 S.E.2d at 

13.

The 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.

In Rowell, the defendant was charged criminally for 

involuntary manslaughter, as he caused his passenger’s death 
-34-

after colliding with a large truck operated by Mr. Wiley Goins. 

244 N.C. at 280, 93 S.E.2d at 201. The decedent’s estate filed 

a wrongful death action against Mr. Goins, which was pending at 

the time of the defendant’s trial. Id. Mr. Goins testified on 

behalf of the State, and on cross-examination, the defendant’s 

counsel asked Mr. Goins whether he was facing a wrongful death 

suit from the decedent’s 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’s 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.

In Phillips, the defendant’s relationship with his wife 

deteriorated when his first wife discovered that he had entered 

into a bigamous marriage with another woman from Raleigh

(“second wife”). 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 “was 

a proper link in the chain of circumstances tending to show 

motive.” Id. at 279, 41 S.E.2d at 766. A complaint filed by 

the second wife to annul the bigamous marriage was also 
-35-

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 “proof of a fact 

alleged” by the second wife, but was only used for corroborative 

purposes. Id.

In 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’s contrary testimony at 

trial. Id. Thus, the court said “no impingement upon the 

statute was intended or resulted from the cross-examination.” 

Id. at 464, 28 S.E.2d at 516.

In Fred D. Wilson, 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 “pleadings and a civil judgment entered against 
-36-

defendant were erroneously admitted to prove the same facts 

necessary to obtain a criminal conviction against the 

defendant.” 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’s financial motive for committing his crimes in 

Fred D. Wilson, as he had defaulted on several judgments due to 

insufficient funds. Id. 

This Court addresses a different set of facts than Fred D. 

Wilson, McNair, Phillips, and Rowell. Before the re-trial, 

Defendant’s counsel learned that the State planned to introduce 

evidence about the civil actions against Defendant. Defendant’s 

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’s counsel requested discovery of 

the civil attorney’s 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.

During the trial, Wake County Clerk Lorrin Freeman (“Ms. 

Freeman”) testified that on 29 October 2008, Linda filed a 
-37-

wrongful death lawsuit against Defendant on behalf of the 

estate. Ms. Freeman introduced Linda’s request for Defendant’s 

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’s 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 “[i]n the early morning 

hours of November 3rd, 2006 Jason Young brutally murdered 

Michelle Young.”

Ms. Freeman testified that the file showed no attorney on 

Defendant’s behalf, and she also stated that Defendant did not 

respond to the suit. Ms. Freeman explained that by failing to 

answer, Defendant’s action had “the legal implication or the 

legal result of the defendant having admitted the allegations as 

set forth in the complaint.” Ms. Freeman entered a default on 2 

December 2008 and thereafter, Linda moved for a default judgment 

and slayer declaration.

Judge Stephens heard the motion on 5 December 2008. Ms. 

Freeman testified, over Defendant’s objection, that Judge 

Stephens reviewed the evidence and attachments to the motion and 

entered a judgment declaring that Defendant killed Michelle. 
-38-

Ms. Freeman also testified that Defendant could have presented 

evidence in the civil action, and Defendant levied a Rule 403 

objection.

In 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’s 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 “Child Custody 

Complaint Motion for Psychological Evaluation” into evidence 

without any restrictions which also included statements that 

Defendant had killed his wife Michelle.

The 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’s unusual reaction to civil suits and to show 

Defendant’s silence in not responding to the lawsuits cast doubt 

on his subsequent testimony at his first trial. The State also 
-39-

argues the purpose of introducing the evidence contained in the 

civil filings was to “show that [Defendant] had great incentives 

to answer the civil matters and explain the evidence.” This 

stated purpose demonstrates the State’s intention of introducing 

these civil pleadings and judgments: to show proof of 

Defendant’s guilt, in violation of N.C. Gen. Stat. § 1-149. 

Further, the State’s argument that the civil suits were 

used to cast doubt on Defendant’s 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.

Secondly, 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’s 

mother, Linda Fisher. Linda’s 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. 
-40-

The 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’s guilt in the 

criminal case. The trial court ruled that the civil matters 

“might be relevant to any number of matters that the jury has 

already heard and will hear.” 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:

If 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 plaintiff’s 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 
-41-

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’s 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 plaintiff’s 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.

. . . .

I 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.

As 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 
-42-

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’s claims are 

valid. This means that the plaintiff must 

prove that the facts are more likely than 

not to exist in the plaintiff’s favor. When 

there is a default, that burden of proof is 

deemed in law to be met.

The entry of a civil default judgment is not 

a determination of guilt by the Court that 

the named defendant has committed any 

criminal offense.

Still 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.

Admitting the wrongful death judgment, the complaint in 

that case, and the complaint in the child custody case were also 

abuses of discretion. “When the intrinsic nature of the 
-43-

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.” State v. Scott, 331 N.C. 39, 43, 413 S.E.2d 787, 789 

(1992). Defendant’s 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’s 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’s trial. It is 

also an abuse of discretion to make a ruling under a 
-44-

misapprehension of the law as occurred here, where the trial 

court conducted no inquiry concerning N.C. Gen. Stat. § 1-149.

Because 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 § 1-

149 in admitting these civil matters, we do not address 

Defendant’s arguments concerning judicial opinions or 

Defendant’s argument that insufficient evidence existed to deny 

a motion to dismiss. We continue to address the admissibility 

of Emily’s statements and evidence of Defendant’s silence. We 

address these issues because they are likely to recur at 

Defendant’s re-trial.

b. Admission of Emily’s Statements at Daycare

Defendant argues that statements made by Emily to daycare 

workers that were admitted via the workers’ 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. 

“When the admissibility of evidence by the trial court is 
-45-

preserved for review by an objection, we review the trial 

court’s decision de novo.” Martinez, 212 N.C. App. at 664, 711 

S.E.2d at 789. “When preserved by an objection, a trial court’s 

decision with regard to the admission of evidence alleged to be 

hearsay is reviewed de novo.” Johnson, 209 N.C. App. at 692, 

706 S.E.2d at 797. 

The State argues that Defendant did not preserve this issue 

for appellate review. We disagree. After the prosecution 

advised the court outside the jury’s presence that it would put 

forth two witnesses that would relate Emily’s statements at 

daycare, the following dialogue occurred between Defendant’s 

counsel and the trial court:

THE COURT: Okay. I know you’ve 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.

[DEFENSE COUNSEL]: We would, your Honor, on 

grounds previously stated.

THE COURT: As I understand, your position is 

that the statement of the child is hearsay 

and not otherwise admissible, as well as 

it’s 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.

[DEFENSE COUNSEL]: That is correct, your 

Honor, as well as confrontation/cross-
-46-

examination grounds and due process and 403.

THE 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.

[DEFENSE COUNSEL]: That is correct.

THE COURT: I mean, the learning and her 

schooling and observations about the folks 

at school and things like that.

[DEFENSE COUNSEL]: That is correct, your 

Honor.

THE 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.

This portion of the trial transcript demonstrates the trial 

court’s granting of a line or continuing objection pursuant to 

N.C. Gen. Stat. § 15A-1446(d)(10) (2013); State v. Crawford, 344 

N.C. 65, 76, 472 S.E.2d 920, 927 (1996). While Defendant’s 

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’s second objection when the second 

daycare worker took the stand and began to relate hearsay 
-47-

statements was a simple reaffirmation of the originally granted 

line objection. Therefore de novo review of this issue is 

appropriate.

The State presented the testimony of Emily’s 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, “[M]ommy’s getting a spanking for biting. . . . [M]ommy 

has boo-boos all over.” Ms. Palmatier then testified that, 

after a nap, Emily said “[Mommy] fell on the floor. Now she’s 

on the bed with animals, animals were in the barn, they were 

asleep. There was a cow. Daddy bought me new fruit snacks.” 

The State argued that this was evidence Emily saw the murder, 

and that it was probative of Defendant’s identity as she was 

later found unharmed. 

Defendant’s 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’s identity; and (3) the evidence was more probative 

than prejudicial.
-48-

The court sua sponte excluded Emily’s post-nap statements 

and granted the defense a continuing objection to Emily’s 

testimony. The trial court instructed the jury that evidence 

was being introduced of Emily’s observations, made when she “may 

have had some memory” of Michelle’s death. The trial court 

instructed the jury that it could use Emily’s statements to 

determine whether Emily witnessed a portion of the assault on 

Michelle. 

Emily’s daycare teacher then testified that on 9 November 

2006, Emily asked her for “the mommy doll.” 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 “mommy doll”

against another doll and a dollhouse chair while saying, 

“[M]ommy has boo-boos all over” and “[M]ommy’s getting a 

spanking for biting. . . . [M]ommy has boo-boos all over, mommy 

has red stuff all over.”

Defendant first argues that the evidence was not relevant. 

Relevant evidence is evidence that has “any 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.” N.C. Gen. Stat. § 8C-1, Rule 401. “A 
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trial court’s rulings on relevancy are technically not 

discretionary, though we accord them great deference on appeal.” 

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’s assailant. The evidence was probative 

that Emily observed her mother’s assault, and that the assailant 

cared for Emily in some way, as he or she left Emily unharmed 

after the assault.

Secondly, 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’s 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).

Hearsay is “a 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.” N.C. Gen. 

Stat. § 8C-1, Rule 801(c). A “statement” is an oral or written 
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assertion or “nonverbal conduct of a person . . . intended by 

him as an assertion.” N.C. Gen. Stat. § 8C-1, Rule 801(a). 

Emily’s statements consisted of striking the “mommy” doll 

while saying, “[M]ommy’s getting a spanking for biting” and 

“[M]ommy has boo-boos all over, mommy has red stuff all over.” 

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. Factfinders 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).

However, 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. § 8C-1, Rule 
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803(2). For the excited utterance exception to apply, “there 

must be (1) a sufficiently startling experience suspending 

reflective thought and (2) a spontaneous reaction, not one 

resulting from reflection or fabrication.” Smith, 315 N.C. at 

86, 337 S.E.2d at 841. “The rationale underlying the 

admissibility of an excited utterance is its inherent 

trustworthiness.” 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).

Excited 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 

“several minutes” 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 “the stress and 

spontaneity upon which the exception is based [are] often 

present for longer periods of time in young children than in 

adults.” 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 (“This ascertainment of prolonged 

stress is born of three observations. First, a child is apt to 
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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 ‘free of conscious fabrication’ for a longer period 

after the incident than with adults.” (citation and quotation 

marks omitted)).

Our State’s 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’ 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’s 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’s 

statements made three days after sexual abuse admissible). 

Thus, 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’s 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 
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application of the excited utterance exception and that the 

trial court did not err in admitting Emily’s statements. 

Because we hold Emily’s 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.

c. Defendant’s Silence as Substantive Evidence

The trial court offered the following jury instructions as 

they relate to Defendant’s refusal to speak with police and his 

family members:

Ladies and gentlemen, the Fifth Amendment to 

the United States Constitution protects a 

citizen’s 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’s 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’s refusal to answer 

police questions to the extent that the 

evidence surrounding that refusal bears upon 

the defendant’s 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.
-54-

Therefore, I instruct you that you may 

consider evidence of the defendant’s 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’s truthfulness as a witness at his 

prior trial, then you may consider it for 

that purpose only. Except as it relates to 

the defendant’s truthfulness, you may not 

consider the defendant’s refusal to answer 

police questions as evidence of guilt in 

this case.

I 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.

Defendant argues that the trial court committed plain error 

by instructing the jury that it could consider Defendant’s 

failure to speak with friends and family as substantive evidence 

of guilt. We disagree and find that the instruction was proper.

The Fifth Amendment’s protection against self-incrimination 

does not extend to questions asked by civilians. Oregon v. 

Elstad, 470 U.S. 298, 304-05 (1985) (“The 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.” (citations 

and quotation marks omitted) (emphasis added)).
-55-

Defendant argues that Defendant’s 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’d 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’s pre-trial statement or trial testimony. Mack held 

that “[p]rior statements of a witness which are inconsistent 

with his present testimony are not admissible as substantive 

evidence because of their hearsay nature.” 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.
-56-

Defendant’s friends and family asked him about Michelle’s 

murder on several occasions and Defendant did not offer 

statements to his friends and family about the evening’s events. 

The State contends that Defendant’s later version of events 

offered at his first trial were inconsistent with his earlier 

silence and that the discrepancy “tend[s] to reflect the mental 

processes of a person possessed of a guilty conscience seeking 

to divert suspicion and to exculpate [himself].” State v. 

Redfern, 246 N.C. 293, 298, 98 S.E.2d 322, 326 (1957) (holding 

that conflicting statements amount to “substantive evidence of 

substantial probative force, tending to show consciousness of 

guilt”). Defendant’s 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’s mental processes. Thus, the evidence was proper for 

substantive consideration by the jury.

Defendant 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 
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considered as to premeditation and deliberation. State v. 

Myers, 309 N.C. 78, 88, 305 S.E.2d 506, 512 (1983). Defendant 

argues that a new trial was required because the case was 

“entirely circumstantial.” Id.

In Myers, the defendant objected to the instruction, the 

witnesses relied upon by the State had severe credibility 

issues, and the trial court placed an “emphasis upon the 

negative aspect of defendant’s statements.” Id. Here, there 

was minimal mention by the State that Defendant was silent to 

his friends and family. We hold that Defendant’s pre-arrest 

silence coupled with evidence that whoever killed Michelle did 

so with premeditation and deliberation and the limited referral 

to Defendant’s 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.

IV. Conclusion

The introduction into evidence of the civil complaints and 

judgment was in error and violated N.C. Gen. Stat. § 1-149, as 

the evidence was used to prove a fact — namely, that Defendant 

had killed Michelle — Defendant is deemed to have admitted in 

the wrongful death civil action and which had been alleged in 
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the child custody proceeding. This evidence also severely 

impacted Defendant’s ability to receive a fair trial. As such, 

we order a

NEW TRIAL.

Judges STROUD and DILLON concur.