State v. Reid

• Court: Supreme Court of North Carolina
• Decided: March 11, 2022
• Docket: 20PA19-2
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-29

No. 20PA19-2

Filed 11 March 2022

STATE OF NORTH CAROLINA

v. UTARIS MANDRELL REID

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 274 N.C. App. 100 (2020), reversing an order entered on 7

December 2018 by Judge C. Winston Gilchrist in Superior Court, Lee County. Heard

in the Supreme Court on 5 January 2022.

Joshua H. Stein, Attorney General, by Mary Carla Babb, Special Deputy Attorney General, for the State-appellee.

Lauren E. Miller for defendant-appellant.

EARLS, Justice.

¶1 This case requires us to decide whether the Court of Appeals correctly held

that the Superior Court, Lee County (MAR court) abused its discretion and committed

legal error in granting defendant Utaris Mandrell Reid’s motion for appropriate relief

(MAR) and awarding him a new trial. Reid, who was fourteen years old when he was

indicted for assaulting and robbing a cab driver who later died, was convicted of first-

degree murder largely on the basis of a confession he made while being interrogated

by a Sanford Police Department detective outside the presence of a parent or STATE V. REID

Opinion of the Court

guardian. Years later, Reid’s postconviction counsel located a man who claimed that

on the night of the crime, another person came to his home and confessed to

assaulting the cab driver, exculpating Reid. Based on what it deemed to be this man’s

“credible and truthful testimony,” the MAR court allowed Reid’s MAR based on newly

discovered evidence, vacated his conviction, and ordered a new trial. The Court of

Appeals reversed the MAR court’s order. State v. Reid, 274 N.C. App. 100, 133 (2020).

Because we conclude that the MAR court neither abused its discretion nor committed

legal error in granting Reid a new trial, we reverse the decision of the Court of

Appeals, vacate Reid’s conviction, and remand for a new trial.

I. Background

¶2 On the evening of 21 October 1995, John Graham was working as a driver for

a taxicab company when he was assaulted and robbed. A police officer who arrived at

the scene found Graham on the ground with severe head trauma. Graham was taken

to the emergency room and remained hospitalized until he died from his injuries that

December.

¶3 Two months after Graham was assaulted and robbed, an officer from the

Sanford Police Department, Detective Jim Eads, interviewed fourteen-year-old Reid

at the police station. Reid was read his Miranda rights and signed a waiver of his

rights. The interview was not recorded, and no other person besides Detective Eads

was present. According to Detective Eads, after he informed Reid that he was STATE V. REID

interviewing him in connection with Graham’s death, Reid replied, “I am not going

down for this by myself” and, in a rambling confession, admitted to assaulting

Graham with three other boys—Elliot McCormick, Duriel Shaw, and Anthony Reid.

Detective Eads transcribed defendant Reid’s statement, which Reid signed. Reid was

subsequently indicted for first-degree murder and robbery with a dangerous weapon.

The three juveniles named by Reid were also charged with murder, but all charges

against them were ultimately dismissed.

¶4 Reid was initially tried in October 1996. At trial, Detective Eads testified that

officers interviewed Graham in the emergency room after the assault, where Graham

indicated that he had been assaulted by two black males between the ages of sixteen

and nineteen. The State did not present any blood, fingerprint, or DNA evidence or

any eyewitness testimony, and no weapon was ever recovered. The trial ended in a

mistrial due to a hung jury.

¶5 On 21 July 1997, Reid was tried for a second time. At this trial, the State again

presented Reid’s transcribed confession. The State also again presented testimony

from Detective Eads, who clarified that while Graham could not communicate

“verbally” with officers when he was interviewed at the hospital, he did “attempt to

shake his head, yes or no,” which Detective Eads “took . . . as a response” “[i]n a

fashion.” Finally, the State presented testimony from John Love, one of Graham’s

coworkers, who stated that he came to the crime scene after hearing Graham radio STATE V. REID

for help. According to Love, while Graham was lying injured, Love asked Graham

who the perpetrators were, and Graham responded “L.L., McCormick, and Reid.”

Love explained that he did not report this information to officers who interviewed

him at the crime scene because he “didn’t put together” what Graham was talking

about until after Reid’s first trial.

¶6 Reid presented an alibi defense supported by testimony from family members

who claimed he had spent the day the crime occurred in their presence. He also

presented testimony from a neuropsychologist who examined Reid’s transcribed

confession and opined that it was written at a higher grade level than Reid functioned

at. In addition, Reid filed a motion to suppress the transcribed confession. The trial

court denied the motion, concluding that Reid “knowingly, willingly and

understandingly” waived his rights and signed the confession prepared by Detective

Eads.

¶7 Ultimately, Reid was convicted of first-degree murder and common law

robbery. He was sentenced to life imprisonment without parole. On direct appeal,

Reid argued that the trial court erred in denying his motion to suppress his

confession. The Court of Appeals found no error, holding that “[w]hile a defendant’s

subnormal mental capacity is a factor to be considered in determining whether the

defendant’s waiver of rights is intelligent, knowing and voluntary, such lack of

intelligence, standing alone, is insufficient to render a statement involuntary if the STATE V. REID

circumstances otherwise indicate that the statement is voluntarily and intelligently

made.” State v. Reid, No. COA98-1392, slip op. at 4 (N.C. Ct. App. Oct. 19, 1999)

(unpublished).

A. The motion for appropriate relief.

¶8 On 6 May 2011, Reid filed a MAR and motion for postconviction discovery

asserting that his sentence of life imprisonment without parole was unconstitutional

under the Eighth Amendment as interpreted by the United States Supreme Court in

Graham v. Florida, 560 U.S. 48 (2010). His motion was summarily denied based on

the determination that Reid had failed to allege a factual or legal basis upon which

the MAR court could grant relief.

¶9 On 11 August 2011, Reid filed a motion for reconsideration of the trial court’s

order denying his MAR and motion for postconviction discovery. In support of this

motion, Reid submitted an affidavit from William McCormick, a childhood friend of

Reid’s and the brother of Elliot McCormick, one of the juveniles Reid implicated in

his confession, stating that: (1) on the night of the assault, William McCormick was

at his mother’s house with Reid; (2) Robert Shaw, Norman Cox, and Antonio Bristow

came to McCormick’s home “sweating and out of breath”; and (3) the next day, Shaw

confessed to William McCormick that he, Cox, and Bristow had robbed and assaulted

Graham. William McCormick stated that he “was not interviewed by the police or any

attorneys involved in . . . Reid’s case.” On 8 February 2012, the MAR court granted STATE V. REID

Reid’s motion for postconviction discovery, noting that “[a]n evidentiary hearing on

Defendant’s Motion for Appropriate Relief and subsequent amendments may be held

on a later date to be determined by the presiding judge.”

¶ 10 On 5 April 2013, Reid filed another MAR again alleging that he was entitled

to relief based on the newly discovered evidence of William McCormick’s testimony.

The MAR court held evidentiary hearings on this MAR on 20 July, 4 October, and 30

November 2017. At the hearings, the MAR court heard testimony from William

McCormick, who conveyed his recollection of Shaw’s confession. McCormick also

explained that he refused to talk to anyone about Shaw’s confession at the time of

Reid’s trial because he had been living by a “street code.”

¶ 11 The MAR court also heard testimony from Reid’s trial counsel, Fred Webb, who

stated that as part of his initial investigation, “people that [he] knew in the street”

mentioned William McCormick as a person who had information regarding Graham’s

death. Webb testified that based on this information, he moved for and obtained funds

for an investigator to “[l]ocate and interview the brother and mother of . . . Elliot

McCormick, and any other witness who may have heard or seen anything concerning

the night of October 21, 1995.” However, Webb explained that the investigator was

ultimately unable to “get to [the McCormick brothers] in order to get a statement

from them about what happened.” STATE V. REID

¶ 12 On 7 December 2018, the MAR court entered an order containing sixty-seven

findings of fact and eighteen conclusions of law granting Reid’s MAR, vacating his

conviction for first-degree murder, and ordering a new trial. The MAR court explained

that having

listened to the testimony and observed the demeanor of these witnesses, [it] finds that each gave credible and truthful testimony on every issue that was material to the findings of fact and conclusions of law which are necessary to reach a ruling on the issues raised in the instant matter. William McCormick was emotional during his testimony. His demeanor gave convincing force to his testimony.

Specifically, the MAR court found “[William] McCormick’s testimony to be credible”

because, among other reasons, “McCormick in fact has no motive to testify for

Defendant other than to disclose the true facts known to him.” With respect to the

credibility of McCormick’s testimony, the MAR court noted its “emotional impact and

persuasive effect.” With respect to the likely impact of William McCormick’s

testimony on a jury, the MAR court found that this was “an extremely close case, tried

once to a hung jury, finally resulting in a conviction based largely on the purported

confession of the fourteen[-]year[-]old, mentally disabled Defendant.”

¶ 13 On the basis of Reid’s evidence and the testimony presented at the hearings,

the MAR court concluded that Reid had proven by a preponderance of the evidence

that William McCormick’s testimony was “newly discovered evidence as defined by

law” because: (1) the evidence could not have been discovered or made available at STATE V. REID

the time of Reid’s trial despite counsel’s “due diligence”; (2) the evidence had “a direct

and material bearing upon [Reid’s] guilt or innocence”; (3) the evidence was “probably

true”; (4) the evidence was “competent, material[,] and relevant”; and (5) the evidence

was likely to be admissible at trial under N.C.G.S. § 8C-1, Rules 803(24) and

804(b)(3). The State appealed pursuant to N.C.G.S. § 15A-1445(a)(2).1

B. The Court of Appeals opinion.

¶ 14 On appeal, the Court of Appeals reversed the MAR court’s order. State v. Reid,

274 N.C. App. 100, 133 (2020). According to the Court of Appeals, the MAR court

erred in concluding that Reid had proven by a preponderance of the evidence that

McCormick’s testimony was newly discovered evidence within the meaning of

N.C.G.S. § 15A-1415(c). Id. at 128. In addressing this question, the Court of Appeals

applied the seven-part test articulated by this Court in State v. Beaver:

In order for a new trial to be granted on the ground of newly discovered evidence, it must appear by affidavit that (1) the witness or witnesses will give newly discovered evidence; (2) the newly discovered evidence is probably true; (3) the evidence is material, competent and relevant; (4) due diligence was used and proper means were employed to procure the testimony at trial; (5) the newly discovered evidence is not merely cumulative or corroborative; (6) the new evidence does not merely tend to contradict, impeach or discredit the testimony of a former witness; and (7) the evidence is of such a nature that a different result will

1 N.C.G.S. § 15A-1445(a)(2) provides that “the State may appeal from the superior court . . . [u]pon the granting of a motion for a new trial on the ground of newly discovered or newly available evidence but only on questions of law.” N.C.G.S. § 15A-1445(a) (2021) (emphasis added). STATE V. REID

probably be reached at a new trial.

Id. at 124 (quoting State v. Beaver, 291 N.C. 137, 143 (1976)). According to the Court

of Appeals, Reid failed on multiple prongs of the Beaver test. Id. at 133.

¶ 15 First, the Court of Appeals held that Reid had failed to establish that William

McCormick’s recollection of Shaw’s confession was probably true. Id. at 126.

According to the Court of Appeals, there were numerous inconsistencies within

William McCormick’s affidavit and between the affidavit and his later testimony—

such as William McCormick’s conflicting accounts regarding when Shaw first told

him about assaulting Graham, the time of night Shaw arrived at his home, and

whether his mother was home or at work when Shaw arrived—that were “impossible

to reconcile.” Id. at 125–26. Thus, “[i]n light of McCormick’s conflicting affidavit and

inconsistent testimony, [Reid] failed to demonstrate by a preponderance of the

evidence that the information provided by McCormick is probably true.” Id. at 126.

¶ 16 Second, the Court of Appeals held that McCormick’s testimony was not

“unknown or unavailable to” Reid at the time of trial. Id. at 128 (quoting State v.

Wiggins, 334 N.C. 18, 38 (1993)). The court reasoned that despite being aware

William McCormick may have possessed information about Graham’s death at the

time of Reid’s trial, Webb failed “to utilize available procedures to secure McCormick’s

statement or testimony,” such as “(1) issu[ing] a subpoena, (2) request[ing] a material

witness order, (3) request[ing] a recess, (4) mak[ing] a motion to continue, STATE V. REID

(5) alert[ing] the trial court to the existence of this information, or (6) otherwise

preserv[ing] this information in the record at trial.” Id. at 127 (citing State v. Smith,

130 N.C. App. 71, 77 (1998)). Further, according to the Court of Appeals, William

McCormick was “actually present at [Reid’s] trial,” but Webb “failed to speak with

McCormick despite knowing that [he] may have information concerning Graham’s

death.” Id. Therefore, the Court of Appeals concluded that Reid “failed to exercise due

diligence in procuring McCormick’s testimony” at trial. Id. at 129.

¶ 17 Third, the Court of Appeals held that the MAR court abused its discretion in

concluding that McCormick’s testimony was “competent, material[,] and relevant.”

Id. The Court of Appeals explained that under Rule 803(24), a party must give proper

notice before offering hearsay testimony as evidence. Id. at 131. However, “there is

no evidence in the record that [Reid] filed a proper notice of intent to offer hearsay

evidence pursuant to Rule 803(24) prior to hearing the motion for appropriate relief.”

Id. at 132. Accordingly, the Court of Appeals concluded that “the [MAR] court abused

its discretion when it concluded the written notice requirement had been satisfied.”

Id.

¶ 18 Finally, the Court of Appeals held that the MAR court erred in concluding that

Reid’s “due process rights would be violated if he were not allowed to present

McCormick’s testimony at a new trial.” Id. According to the Court of Appeals, the

proper way to decide whether due process requires the court to allow a defendant to STATE V. REID

present new evidence is by applying the Beaver test “to determine whether to grant

a new trial.” Id. at 133. Based on its conclusion that Reid “has failed to satisfy the

Beaver factors discussed above,” the Court of Appeals held that “the [MAR] court

erred in concluding that Defendant’s constitutional rights would be violated if he did

not have the opportunity to present the purported newly discovered evidence.” Id.

¶ 19 In a brief concurring opinion, Judge Dietz agreed with the majority that Reid’s

trial counsel was aware “that William McCormick had information that implicated

other people, but not Reid, in the crime” and that counsel’s failure to exercise any of

the “many options . . . in this situation to secure the testimony of [an] evasive witness”

meant that McCormick’s testimony was not, “when it finally came to light, newly

discovered evidence under our post-conviction jurisprudence.” Id. at 134 (Dietz, J.,

concurring). However, Judge Dietz expressed his view that “the failure to secure this

testimony at the time of trial implicates Reid’s constitutional right to the effective

assistance of counsel,” noting that the Court of Appeals’ resolution of the case “does

not bar Reid from seeking post-conviction relief on other grounds.” Id. (Dietz, J.,

concurring).

¶ 20 Reid filed a petition for discretionary review, which was allowed by order of

this Court in conference on 14 April 2021.

II. Standard of Review

¶ 21 Upon filing a MAR, the burden is on the moving party to prove “by a STATE V. REID

preponderance of the evidence every fact essential to support the motion.” State v.

Eason, 328 N.C. 409, 434 (1991). “[A] new trial for newly discovered evidence should

be granted with the utmost caution and only in a clear case, lest the courts should

thereby encourage negligence or minister to the litigious passions of men.” State v.

Davis, 203 N.C. 316, 323 (cleaned up), cert. denied, 287 U.S. 668 (1932).

¶ 22 However, “[t]he decision of whether to grant a new trial in a criminal case on

the ground of newly discovered evidence is within the trial court’s discretion and is

not subject to review absent a showing of an abuse of discretion.” State v. Rhodes, 366

N.C. 532, 535 (2013) (quoting Wiggins, 334 N.C. at 38). In general, “[a]ppellate courts

review trial court orders deciding motions for appropriate relief ‘to determine whether

the findings of fact are supported by evidence, whether the findings of fact support

the conclusions of law, and whether the conclusions of law support the order entered

by the trial court.’ ” State v. Hyman, 371 N.C. 363, 382 (2018) (quoting State v. Frogge,

359 N.C. 228, 240 (2005)). “[T]he trial court’s findings of fact ‘are conclusive on appeal

if supported by competent evidence, even if the evidence is conflicting.’ ” Id.

(alteration in original) (quoting State v. Buchanan, 353 N.C. 332, 336 (2001)). A MAR

court abuses its discretion only if its ruling was “so arbitrary that it could not have

been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777 (1985).

III. Analysis

¶ 23 Both parties agree that, as a general matter, the Beaver test governs when STATE V. REID

assessing whether a defendant is entitled to a new trial on the basis of newly

discovered evidence. The parties disagree as to whether the Court of Appeals properly

applied the test in this case.

¶ 24 Reid contends that the Court of Appeals usurped the role of the MAR court

when it “looked beyond the [MAR] court’s supported [factual] findings” and reweighed

the evidence based on its own assessment of the relative credibility of the witnesses

who testified at the evidentiary hearing. According to Reid, the MAR court’s threshold

determination that William McCormick’s account of Shaw’s confession was “probably

true” is a “factual determination” that is binding on appeal because it was supported

by “ample” evidence in the record. Further, Reid argues that the Court of Appeals

erred in concluding that his trial counsel did not exercise due diligence in attempting

to elicit William McCormick’s testimony and in concluding that this evidence was not

“competent” because it was inadmissible.

¶ 25 In response, the State contends that the Court of Appeals appropriately

concluded Reid failed to satisfy the “rigorous” and “difficult-to-meet” Beaver test. In

the State’s view, the MAR court’s determination that William McCormick’s affidavit

and testimony were probably true “is a conclusion of law, or at the very least, a mixed

finding of fact and conclusion of law, reviewable de novo on appeal.” Further, the

State argues that the Court of Appeals correctly concluded that Reid did not “carry

[the] very heavy burden . . . [of] establishing the exercise of due diligence” in seeking STATE V. REID

William McCormick’s testimony at trial and that the MAR court abused its discretion

in concluding that his testimony was material, competent, and relevant.

¶ 26 We agree with Reid that the Court of Appeals overstepped in displacing the

MAR court’s finding that William McCormick’s recollection of Shaw’s confession was

probably true, a factual determination that was supported by evidence in the record.

In addition, the MAR court did not commit any error of law in its application of the

Beaver test and did not abuse its discretion in concluding that Reid was entitled to a

new trial on the basis of newly discovered evidence. Accordingly, we reverse the

decision of the Court of Appeals.

A. What is probably true is a question of fact.

¶ 27 In order to demonstrate that he was entitled to a new trial, Reid was required

to establish that William McCormick’s recollection of Shaw’s confession was

“probably true.” Beaver, 291 N.C. at 143. To determine if McCormick’s testimony was

probably true, the MAR court needed to “weigh evidence, assess witness credibility,

assign probative value to the evidence and testimony, and determine what the

evidence proves or fails to prove.” State v. Moore, 366 N.C. 100, 108 (2012). These are

all tasks that can only be performed by the factfinder, who “sees the witnesses,

observes their demeanor as they testify and . . . is given the responsibility of

discovering the truth.” State v. Cooke, 306 N.C. 132, 135 (1982) (quoting State v.

Smith, 278 N.C. 36, 41 (1971)). Determining whether evidence is probably true STATE V. REID

requires the factfinder to perform its quintessential functions to “discover[ ] the

truth,” id.; thus, determining whether evidence is probably true is a factual question

to be resolved by the MAR court.

¶ 28 The Court of Appeals held that the MAR court erred in determining that Reid’s

evidence was probably true because there were some inconsistencies internal to

William McCormick’s affidavit and discrepancies between his affidavit and

subsequent testimony at the evidentiary hearing. But, as the State correctly

acknowledges, “inconsistencies and conflicts in the evidence do not render a trial

court’s findings of fact unsupported by evidence and reviewable on appeal.” Rather,

as we have repeatedly emphasized, the fact that evidence presented to a MAR court

is conflicting or contains discrepancies is not a reason for an appellate court to

disregard the MAR court’s factual findings based on that evidence. See, e.g., State v.

Allen, 378 N.C. 286, 2021-NCSC-88, ¶ 24 (“The MAR court’s factual findings are

binding . . . if they are supported by evidence, even if the evidence is conflicting.”

(cleaned up)). Indeed, the factfinder’s function is to “resolve” any “[c]ontradictions and

discrepancies” appearing in the evidence. State v. McDaniel, 372 N.C. 594, 603 (2019).

On appeal, the reviewing court’s only role, “even [if] the evidence is conflicting,” is to

“determine whether the findings of fact are supported by evidence.” State v. Stevens,

305 N.C. 712, 720 (1982). Whatever inconsistencies there might be in Reid’s evidence

did not give the Court of Appeals license to replace the MAR court’s facts with its STATE V. REID

own.

¶ 29 In order for the MAR court to determine that it was probably true Shaw had

confessed to William McCormick, the court needed to find that McCormick was

credible. That is precisely what the MAR court did: it entered numerous findings of

fact specifically detailing the basis for its determination that McCormick was a

credible witness, which included its own observations of McCormick’s demeanor, his

reasons for not coming forward near the time of Graham’s death, his lack of any

motivation to lie, and his maturation since his brother was murdered in 2000. A

different factfinder might have assessed McCormick’s credibility differently, but we

cannot say that the MAR court’s findings concerning McCormick’s credibility were

unsupported by the evidence. Thus, the MAR court’s determination that McCormick

was credible could not be displaced on appeal.

¶ 30 Reid bore the burden of proving by a preponderance of the evidence that

McCormick’s affidavit and testimony were probably true. Notwithstanding the Court

of Appeals’ suggestion to the contrary, this burden did not require him to “reconcile

the discrepancies in the information provided by McCormick.” Reid, 274 N.C. App. at

126. A trial court is entitled to “believe all that a witness testified to, or to believe

nothing that a witness testified to, or to believe part of the testimony and to disbelieve

part of it.” Brown v. Brown, 264 N.C. 485, 488 (1965). Evidence that contains

inconsistencies can still support a factual finding based upon the factfinder’s STATE V. REID

assessment of the evidence and the credibility of its proponents. If it were otherwise—

if only evidence without any discrepancies or inconsistencies could support a trial

court’s factual findings—our precedents instructing appellate courts to defer to the

trial court’s findings when the evidence is conflicting would be nonsensical.

¶ 31 Rather than defer to the MAR court’s factual findings which were supported

by evidence in the record, “the Court of Appeals engaged in the prohibited exercises

of reweighing evidence and making witness credibility determinations, essentially

making its own findings of fact in several areas where evidence presented to the

[MAR court] was conflicting.” Brackett v. Thomas, 371 N.C. 121, 127 (2018).

Accordingly, the Court of Appeals erred in overruling the MAR court’s determination

that Reid had proven by a preponderance of the evidence that William McCormick’s

account of Shaw’s confession was probably true.

B. The exercise of due diligence at trial.

¶ 32 The Court of Appeals also held that the MAR court abused its discretion in

granting Reid a new trial because Reid had failed to prove by a preponderance of the

evidence that “due diligence was used and proper means were employed to procure

the testimony [being offered in support of his MAR] at trial.” Beaver, 291 N.C. at 143;

see also N.C.G.S. § 15A-1415(c) (2021). The MAR court entered two relevant findings

of fact in support of its conclusion that Reid’s trial counsel had exercised due diligence

in attempting to procure William McCormick’s testimony: STATE V. REID

63. Before trial, Attorney Webb spoke to contacts “in the street” who had provided information that led him to believe Defendant was not involved in the crime. The names of the McCormick brothers, William and Elliott, came up as witnesses who had information that could be helpful to the defense. Attorney Webb moved for and secured funds to retain Investigator Mel Palmer for the specific purpose of locating and interviewing William McCormick. In the motions and orders for investigator funding, Attorney Webb specified that he was trying to locate William McCormick.

64. Investigator Palmer attempted to interview William McCormick, but was unable to locate him. Investigator Palmer made attempts to serve William McCormick with a subpoena but was unable to do so. McCormick’s mother interfered with the investigator’s efforts to locate William and would not allow him to be interviewed.

These findings of fact are supported by the evidence and binding on appeal.

¶ 33 The due diligence requirement does not demand that a defendant do

everything imaginable to procure at trial the purportedly newly discovered evidence

presented in a MAR. Rather, it requires the defendant to prove that he or she “could

not, with reasonable diligence, have discovered and produced the evidence at the

trial.” Beaver, 291 N.C. at 143 (emphasis added); see also Due Diligence, Black’s Law

Dictionary (11th ed. 2019) (defining due diligence as “[t]he diligence reasonably

expected from, and ordinarily exercised by, a person who seeks to satisfy a legal

requirement or to discharge an obligation”). We have explained that “[w]hen the

information presented by the purported newly discovered evidence was known or

available to the defendant at the time of trial, the evidence does not meet the STATE V. REID

requirements of N.C.G.S. § 15A-1415(c).” State v. Rhodes, 366 N.C. 532, 537 (2013)

(emphasis added).

¶ 34 In this case, the MAR court did not commit legal error or abuse its discretion

in concluding that William McCormick’s testimony was neither known nor available

to Reid or his counsel, Webb, at the time of trial. Neither Reid nor Webb knew that

Shaw had confessed regarding his role in the murder to William McCormick; at most,

Webb knew that his contacts “in the street” had identified William McCormick as

someone who might possess information that could potentially benefit Reid. He had

no knowledge of and no reason to know what that information was, or even whether

it existed, at the time of trial. And William McCormick was decidedly not “available”

to Reid and Webb; despite repeated efforts, the investigator hired by Webb was

unable to locate William McCormick in order to interview him and ascertain what

information McCormick possessed.2

¶ 35 Nevertheless, the Court of Appeals concluded that Reid and his counsel “failed

to exercise due diligence in procuring McCormick’s testimony.” Reid, 274 N.C. App.

at 129. As recounted above, the rationale for this conclusion was that Webb “could

2 Further, the State concedes that the MAR court made no finding—and there is no testimony in the record—supporting the Court of Appeals’ assertion that Webb knew William McCormick was “actually present at [Reid’s] trial.” At most, there is testimony indicating that Webb saw William McCormick’s family in the courthouse on one occasion but they “refused to even talk to [Webb]” and testimony indicating that William McCormick saw Reid in the courthouse on some unspecified occasion. The Court of Appeals exceeded its proper role as an appellate court in asserting the existence of a fact not found by the MAR court based on vague and ambiguous record evidence. STATE V. REID

have secured McCormick’s attendance to testify at trial” by, for example, issuing a

subpoena or requesting a material witness order. Id. at 127. But the question is not

whether there was any possible existing procedural mechanism by which Webb could

have secured McCormick’s appearance at trial; the question is whether utilizing any

of these mechanisms would have been “reasonably expected” of someone who

possessed the information Webb possessed. Judged against this standard, we

disagree with the State that Webb’s failure to issue a subpoena or request a material

witness order means that the MAR court committed legal error or abused its

discretion in determining that Webb exercised due diligence.

¶ 36 Due diligence does not require counsel to take speculative risks on the basis of

rumors. Having only heard intimations that William McCormick possessed

information that might have benefited his client—but having not been able to

interview McCormick and having no insight into the substance of the information

McCormick may (or, as far as Webb knew, may not) have possessed—it would not

have been reasonably expected of Webb to subpoena William McCormick to testify at

trial. Cf. Gatling v. Commonwealth, 14 Va. App. 60, 63 (1992) (“[I]t is unreasonable

to require, as an exercise of due diligence, that defense counsel call to the witness

stand a witness as to whose testimony he is uninformed.”). Similarly, it would not

have been reasonably expected of Webb to submit an affidavit swearing that William

McCormick “possesse[d] information material to the determination of the STATE V. REID

proceeding,” given that he did not know what (if any) information McCormick

possessed. N.C.G.S. § 15A-803(a) (2021). Finally, given that Webb had already tried

and failed to locate William McCormick for an interview on multiple occasions, it

would not have been reasonably expected of Webb to utilize any of the other

procedural options identified by the Court of Appeals, such as requesting a recess or

moving for a continuance. On the basis of the information Webb possessed at the time

of trial, his actions in obtaining funding to hire an investigator who repeatedly

attempted to locate and interview William McCormick constituted due diligence.

¶ 37 The facts of this case are distinguishable from the facts of prior cases in which

this Court has held that a defendant failed to exercise due diligence at trial. For

example, in Beaver, a defendant who was convicted of burglary asserted in a

postconviction MAR that “while the jury deliberated” he learned detectives had

located his former roommate, who would have testified that the defendant was living

at the house he supposedly burglarized on the night the crime was committed. 291

N.C. at 142. This Court concluded that the MAR court did not abuse its discretion in

denying the defendant’s MAR because (1) the defendant himself testified at trial to

the same facts the roommate would have presented; (2) the detectives who located

the former roommate testified at trial and were available to be cross-examined by the

defendant; and (3) the defendant knew the substance of the information the

roommate would have testified to if he had been called at trial. Thus, the defendant STATE V. REID

“should have filed an affidavit before trial so stating and moved for a continuance to

enable him to locate this witness.” Id. at 144 (emphasis added). By contrast, in this

case, no other witness who had knowledge of Shaw’s confession testified at trial, no

person who knew where William McCormick could be found testified at trial, and

Webb was unaware of what information McCormick would have disclosed had he

been located and compelled to testify.

¶ 38 Similarly, in State v. Powell, a defendant who was convicted of rape filed a

MAR on the basis of newly discovered evidence in the form of testimony from a woman

who witnessed the defendant walking “hand in hand” with the victim around the time

of the alleged crime. 321 N.C. 364, 370 (1988). This Court concluded that the woman’s

testimony was not newly discovered evidence because the defendant’s attorney

“examined [the special agent’s] notes during the trial, at which time he learned of

[the woman’s] statement and [yet] he did not ask for a recess for the purpose of

procuring [the woman] as a witness.” Id. Because “[t]he evidence showed that the

defendant knew of the statement of [the woman] during the trial,” it was not an abuse

of discretion to deny his MAR. Id. at 371 (emphasis added). By contrast, in this case,

Reid and Webb did not learn Shaw confessed to William McCormick until an

investigator was able to locate and interview McCormick many years after trial.

¶ 39 Most recently, in Rhodes, a defendant who was convicted of various drug

offenses claimed he was entitled to a new trial on the basis of newly discovered STATE V. REID

evidence in the form of an affidavit alleging that the defendant had learned that “after

the trial, [the defendant’s father] told a probation officer that the contraband

belonged to him.” 366 N.C. at 534. However, the defendant had himself testified at

trial and offered “no testimony regarding the ownership of the drugs.” Id. at 538. In

addition, although the defendant’s father had invoked his Fifth Amendment right to

avoid self-incriminating testimony when asked if he owned the drugs at trial, the

defendant “did not pursue a line of questioning about whether the drugs belonged to

[the defendant’s father]” on direct examination of the defendant’s mother, who co-

owned with the defendant’s father the home where the contraband was found. Id.

Accordingly, we concluded that the defendant had failed to make the requisite

“showing of due diligence” at trial. Id. By contrast, in this case, Reid had no way of

knowing the substance of the information forming the basis of his MAR at the time

of trial, and no person who did know such information testified.

¶ 40 Accordingly, on the facts as determined by the MAR court, the MAR court did

not err as a matter of law or abuse its discretion in concluding that Reid had exercised

due diligence in attempting to procure William McCormick’s testimony at trial.

Because neither Reid nor his counsel knew whether William McCormick actually

possessed any information about Graham’s killing, let alone whether that

information would have benefitted Reid’s case—and because Webb undertook

proactive efforts to locate and interview McCormick before trial—Webb could not STATE V. REID

have been reasonably expected to utilize any of the additional procedural mechanisms

identified by the Court of Appeals to compel McCormick’s appearance at trial. As our

precedents illustrate, on a different set of facts it might have been reasonably

expected that Webb would do something more than hiring an investigator to try to

interview William McCormick; however, on this set of facts, we conclude that the

MAR court did not err as a matter of law or abuse its discretion in concluding that

Webb exercised due diligence.

C. Material, competent, and relevant evidence.

¶ 41 The Court of Appeals held that the MAR court abused its discretion in

concluding that William McCormick’s testimony was “competent” evidence because it

was inadmissible hearsay. Reid, 274 N.C. App. at 129. As explained above, the sole

basis for this conclusion was that Reid had failed to “file[ ] a proper notice of intent

to offer hearsay evidence pursuant to Rule 803(24) prior to hearing the motion for

appropriate relief.” Id. at 132. Although the Court of Appeals was correct that Reid

bore the burden of proving that the evidence he presented in support of his MAR was

“material, competent[,] and relevant,” Beaver, 291 N.C. at 143, the Court of Appeals’

analysis misses the mark for two reasons.

¶ 42 First, if the Court of Appeals is correct that evidence in support of a MAR is

competent if it is admissible at the evidentiary hearing on the MAR, then the Court

of Appeals erred in concluding that McCormick’s testimony was inadmissible for lack STATE V. REID

of proper notice. In its reply brief at the Court of Appeals, the State conceded that it

“did not object at the time defendant offered McCormick’s testimony at the MAR

hearing” and thus “waived appellate review of the MAR court’s . . . admission of

McCormick’s testimony at the MAR hearing by not objecting.” In its brief at this

Court, the State concedes that it “knew McCormick would testify [at the MAR

hearing] and did not object to his testimony.” Evidence that is admitted without

objection is competent evidence. See State v. Bryant, 235 N.C. 420, 423 (1952) (“While

some of the evidence offered by the State might have been excluded as hearsay, it was

admitted without objection, and hence . . . may be considered with the other evidence

and given such evidentiary value as it properly may possess.” (citation omitted)).

Thus, if the test for competence is admissibility at the MAR hearing, the Court of

Appeals erred in concluding that McCormick’s testimony was not competent evidence.

¶ 43 Regardless, we disagree with the Court of Appeals that admissibility at the

MAR hearing is the test for competence. Rather, courts assess whether evidence

would be material, competent, and relevant in a future trial if the defendant’s MAR

were granted in order to determine whether a new trial is warranted. See, e.g., State

v. Nickerson, 320 N.C. 603, 609–10 (1987) (“The rule for newly discovered evidence is

that in order for a new trial to be granted . . . .” (emphasis added)). Applying the proper

test for competence, we conclude that the MAR court did not commit legal error or

abuse its discretion in determining that McCormick’s testimony would have been STATE V. REID

admissible under the residual exception, Rule 803(24).

¶ 44 The residual exception provides for the admission of “[a] statement not

specifically covered by any” other hearsay exception but “having equivalent

circumstantial guarantees of trustworthiness.” N.C.G.S. § 8C-1, Rule 803(24) (2021).

In order for evidence to be admissible under Rule 803(24), a court must make findings

addressing the following six factors:

(1) whether proper notice has been given, (2) whether the hearsay is not specifically covered elsewhere, (3) whether the statement is trustworthy, (4) whether the statement is material, (5) whether the statement is more probative on the issue than any other evidence which the proponent can procure through reasonable efforts, and (6) whether the interests of justice will be best served by admission.

State v. Valentine, 357 N.C. 512, 518 (2003). We have deemed the third factor,

whether the testimony was trustworthy, the “most significant requirement.” State v.

Smith, 315 N.C. 76, 93 (1985). “When assessing trustworthiness, a court considers

the following, non-exhaustive set of factors: ‘(1) assurances of the declarant’s personal

knowledge of the underlying events, (2) the declarant’s motivation to speak the truth

or otherwise, (3) whether the declarant has ever recanted the statement, and (4) the

practical availability of the declarant at trial for meaningful cross-examination.’ ”

State v. Corbett, 376 N.C. 799, 2021-NCSC-18, ¶ 41 (quoting State v. Triplett, 316

N.C. 1, 10–11 (1986)). “A trial court’s determination as to the admissibility of hearsay

statements pursuant to Rule 803(24) is reviewed for abuse of discretion.” Id. ¶ 40. STATE V. REID

¶ 45 In this case, the MAR court entered findings corresponding to all six

admissibility factors:

After careful scrutiny, the court concludes that the testimony of William McCormick about Robert Shaw’s statement regarding the details of Shaw, Bristow and Cox assaulting the victim is admissible evidence under Rule 803(24). First, the State is on notice that Defendant would offer such evidence at trial. Second, this hearsay evidence is not specifically covered by any other exception in Rule 803. Third, the evidence possesses circumstantial guarantees of trustworthiness equivalent to other hearsay exceptions because it constitutes an admission of criminal conduct by Shaw, is consistent with events actually observed by William McCormick the day before, when Shaw and the other youths arrived at McCormick’s house out of breath having jumped and run from a cab, and is consistent with known circumstances of the case, including that the victim was assaulted by more than one young male person. Fourth, the evidence is material to the case. Fifth, the evidence is more probative on the issue of whether Shaw, Bristow and Cox, rather than Defendant, were the actual perpetrators of these crimes than any other evidence procurable by reasonable efforts. Defendant cannot reasonably be expected to procure the in-court confession of Shaw that Shaw himself is guilty of robbery and first degree murder. Sixth, admission of the evidence of Shaw’s statements will best serve the purposes of the Rules of Evidence and the interests of justice.

Further, with respect to the third factor, the MAR court specifically found that

“(1) Shaw had personal knowledge of the events described; (2) Shaw had a strong

motivation to confide the truth to his friend William McCormick and no reason to

claim false responsibility for such serious acts which could expose him to criminal

liability; and (3) there is no evidence that Shaw ever recanted his statement.” STATE V. REID

¶ 46 According to the State, these findings were insufficient to support the MAR

court’s conclusion that the evidence was admissible because “[t]here was no

independent, non-hearsay evidence connecting Shaw, Cox, or Bristow to Graham’s

murder.” However, we have never held that a trial court lacks the discretion to find

hearsay evidence trustworthy in the absence of independent non-hearsay

corroborating evidence. Rather, as we explained in the related context of examining

the scope of the hearsay exception for declarations against penal interest, “the precise

application of the standards of reliability must be left to the discretion of the trial

judge.” State v. Haywood, 295 N.C. 709, 729 (1978). In view of these findings, the

MAR court’s determination that McCormick’s testimony was sufficiently trustworthy

and admissible under the residual exception was not “manifestly unsupported by

reason . . . [or] so arbitrary that it could not have been the result of a reasoned

decision.” White, 312 N.C. at 777.

D. Other claims that the MAR court abused its discretion.

¶ 47 In addition to the purported deficiencies in the MAR court’s reasoning

identified by the Court of Appeals, the State also argues before this Court that the

MAR court abused its discretion in granting Reid a new trial because Reid “failed to

establish McCormick’s testimony showed that a different result would probably be

reached at a new trial.” Reid bore the burden of proving by a preponderance of the

evidence that his newly discovered evidence was “of such a nature that a different STATE V. REID

result will probably be reached at a new trial.” Beaver, 291 N.C. at 143. In this case,

the MAR court concluded that

[t]he newly discovered evidence is of such a nature as to show that [i]n another trial a different result will probably be reached . . . . This was an extremely close case, tried once to a hung jury, finally resulting in a conviction based largely on the purported confession of the fourteen-year- old, mentally disabled Defendant. No physical evidence connected Defendant to the case, and alibi evidence was offered. The addition of credible testimony from William McCormick will probably result in a different outcome than that reached in the original trial.

. . . The testimony of William McCormick points directly to the guilt of specific persons and is inconsistent with Defendant’s guilt.

¶ 48 The State takes issue with the MAR court’s characterization of Reid’s

confession as “purported” in light of the Court of Appeals resolution of Reid’s direct

appeal, where the court held that his confession was admissible at trial. See State v.

Reid, No. COA98-1392, slip op. at 4 (N.C. Ct. App. Oct. 19, 1999) (unpublished). We

agree with the State that for the purposes of this appeal, Reid’s confession was validly

obtained and properly admitted. However, the State is wrong to suggest that because

Reid’s confession has been established to be admissible, any potential impact of

McCormick’s testimony at trial is automatically negated.

¶ 49 The question of how much probative weight to give a confession in determining

a defendant’s guilt is distinct from the question of whether the confession is

admissible, and a factfinder is entitled to consider the circumstances surrounding a STATE V. REID

confession even after the confession has been admitted. State v. Roache, 358 N.C. 243,

286 (2004) (explaining that evidence was properly admitted because it “lent

credibility” to a defendant’s confession); see also Crane v. Kentucky, 476 U.S. 683, 689

(1986) (“[T]he physical and psychological environment that yielded the confession can

also be of substantial relevance to the ultimate factual issue of the defendant's guilt

or innocence. Confessions, even those that have been found to be voluntary, are not

conclusive of guilt.”). Indeed, even after a trial court has denied a defendant’s motion

to suppress a confession, a defendant possesses a constitutional right to admit

evidence regarding the circumstances surrounding the confession. Crane, 476 U.S. at

690. In this case, the unrecorded confession was elicited from a fourteen-year-old

child with intellectual deficiencies who was interviewed in a police station outside the

presence of a parent or guardian. There was no physical evidence, and limited

corroborating evidence, connecting Reid to the crime scene. As the initial mistrial due

to a hung jury illustrates, the evidence of Reid’s guilt was not overwhelming.

Accordingly, the MAR court did not abuse its discretion in determining that “a

different result w[ould] probably be reached at a new trial” if McCormick’s testimony

were admitted. Beaver, 291 N.C. at 143.

IV. Conclusion

¶ 50 After a defendant has been convicted by a jury of his or her peers, the defendant

“has the laboring oar to rebut the presumption that the verdict is correct.” State v. STATE V. REID

Casey, 201 N.C. 620, 624 (1931). However, in this case, the MAR court did not abuse

its discretion or commit legal error in concluding that Reid met his burden of proving

by a preponderance of the evidence all elements necessary to demonstrate his

entitlement to a new trial on the basis of newly discovered evidence. Accordingly, we

reverse the decision of the Court of Appeals.

REVERSED.

Justice BERGER did not participate in the consideration or decision of this

case. Chief Justice NEWBY dissenting.

¶ 51 “[A] new trial for newly discovered evidence should be granted with the utmost

caution and only in a clear case, lest the courts should thereby encourage negligence

or minister to the litigious passions of men.” State v. Rhodes, 366 N.C. 532, 536, 743

S.E.2d 37, 40 (2013) (alteration in original) (quoting State v. Davis, 203 N.C. 316, 323,

166 S.E. 292, 296 (1932)). “The defendant ‘has the laboring oar to rebut the

presumption that the verdict is correct and that he has not exercised due diligence in

preparing for trial.’ ” Id. at 537, 743 S.E.2d at 40 (quoting State v. Casey, 201 N.C.

620, 624, 161 S.E. 81, 83 (1931)). “Under the rule as codified, the defendant has the

burden of proving that the new evidence ‘could not with due diligence have been

discovered or made available at [the time of trial].’ ” Id. (alteration in original)

(quoting N.C.G.S. § 15A-1415(c) (2011)); see N.C.G.S. § 15A-1420(c)(5), (6) (2021).

Because the majority ignores these fundamental principles and significantly lowers

the standard for “newly discovered evidence,” I respectfully dissent.

¶ 52 Defendant has the burden to rebut the presumption that the evidence in

question could not have been discovered by due diligence before the trial. Due

diligence is “diligence reasonably expected from, and ordinarily exercised by, a person

who seeks to satisfy a legal requirement or to discharge an obligation.” Due Diligence,

Black’s Law Dictionary (11th ed. 2019). “When the information presented by the

purported newly discovered evidence was known or available to the defendant at the STATE V. REID

Newby, C.J., dissenting

time of trial,” but the defendant fails to procure the information, due diligence was

not exercised, and “the evidence [thus] does not meet the requirements of N.C.G.S.

§ 15A-1415(c).” Rhodes, 366 N.C. at 537, 743 S.E.2d at 40; see State v. Beaver, 291

N.C. 137, 144, 229 S.E.2d 179, 183 (1976); State v. Powell, 321 N.C. 364, 371, 364

S.E.2d 332, 336 (1988).

¶ 53 Three cases should control our analysis. In Beaver the defendant was convicted

of first-degree burglary and later filed a motion for a new trial on the basis of newly

discovered evidence. Beaver, 291 N.C. at 142, 229 S.E.2d at 182. The defendant

argued that he was entitled to a new trial because the State concealed the

whereabouts of a witness who could testify that the defendant was a resident of the

house he allegedly burglarized. Id. The trial court denied the motion. Id. On appeal,

this Court noted that the defendant had ample opportunity to examine the detectives

who allegedly knew the witness’s location but failed to do so. Id. at 144, 229 S.E.2d

at 183. We also reasoned that “if [the] defendant considered [the witness] an

important and material witness, he should have filed an affidavit before trial so

stating and moved for a continuance to enable him to locate this witness.” Id. Since

the defendant failed to take such action, we concluded that he did not exercise due

diligence in procuring the witness’s testimony. Id. As such, we upheld the trial court’s

denial of the defendant’s motion for a new trial. Id.

¶ 54 Similarly, in Powell the defendant filed a motion for appropriate relief (MAR) STATE V. REID

with the trial court seeking to overturn his conviction of first-degree rape. Powell, 321

N.C. at 370, 364 S.E.2d at 336. There the victim testified that while she was sitting

on the beach in Kitty Hawk, the defendant approached her, drew a knife, forced her

into a dune, and raped her. Id. at 366, 364 S.E.2d at 334. During the trial, the

defendant’s counsel inspected notes that a special agent with the State Bureau of

Investigation had made throughout his investigation of the incident. Id. at 370, 364

S.E.2d at 336. The notes showed that a witness to the incident informed the special

agent that she had observed through binoculars a male and female enter the dunes

and leave approximately twenty minutes later hand in hand. Id. Despite having

access to this material information, the defendant’s counsel never called the witness

to testify at trial. Id. As such, when the defendant filed a post-conviction MAR

arguing that the witness’s statement to the special agent constituted newly

discovered evidence, the trial court denied the motion, concluding that the defendant

failed to exercise due diligence in procuring the witness’s testimony. Id. On appeal,

since the defendant’s counsel was aware of the witness’s statement but failed to

procure her testimony, this Court upheld the trial court’s denial of the MAR. Id. at

371, 364 S.E.2d at 336.

¶ 55 A defendant also fails to exercise due diligence where a witness refuses to

testify to material information, but the information could have been discovered

through pursuing a different line of questioning or speaking to other witnesses. See STATE V. REID

Rhodes, 366 N.C. at 537–38, 743 S.E.2d at 40–41. In Rhodes the defendant and his

father were the subjects of a search warrant. Id. at 533, 743 S.E.2d at 38. When police

executed the warrant at the defendant’s residence, they found the defendant and his

mother downstairs. Id. After the officers found drugs and paraphernalia at the

residence, the defendant was charged with possession with intent to manufacture,

sell, or deliver cocaine and possession of drug paraphernalia. Id. at 534, 743 S.E.2d

at 38. At trial the defense presented testimony by the defendant, his mother, and his

father. Id. The defendant’s mother testified that the drugs did not belong to the

defendant, but the defendant’s counsel did not pursue a line of questioning regarding

whether the drugs belonged to the defendant’s father. Id. The defendant’s father also

testified that the drugs did not belong to the defendant. Id. When the defendant’s

father was asked whether the drugs belonged to him, however, he invoked his Fifth

Amendment privilege against self-incrimination. Id. Lastly, the defendant testified

to facts concerning the execution of the search warrant, but the defendant’s counsel

never asked the defendant about the ownership of the contraband. Id. The jury found

the defendant guilty of the drug offenses. Id.

¶ 56 The defendant later filed a MAR based upon the theory of newly discovered

evidence. Id. The defendant alleged that after the conclusion of the trial, the

defendant’s father told a probation officer that the contraband belonged to him. Id.

The trial court concluded that due diligence was used to procure the testimony at STATE V. REID

trial, set aside the defendant’s conviction, and awarded a new trial. Id. at 535, 743

S.E.2d at 38–39. On appeal, this Court explained that despite the defendant’s father’s

refusal to testify to the true ownership of the drugs, the information could have been

made available by other means. Id. at 538, 743 S.E.2d at 40. We specifically noted

that on direct examination of the defendant’s mother, the defendant failed to pursue

a line of questioning about whether the drugs belonged to the defendant’s father and

that the defendant gave no testimony regarding the ownership of the drugs. Id.

Therefore, we held that the trial court erred in concluding as a matter of law that due

diligence was used to procure the information. Id. Accordingly, we reversed the

decision of the Court of Appeals which affirmed the trial court’s decision to award the

defendant a new trial. Id. at 533, 743 S.E.2d at 38.

¶ 57 Like the defendants in Beaver, Powell, and Rhodes, defendant here failed to

take reasonable action to procure the evidence that he now deems “newly discovered.”

Defendant’s trial counsel, Fred Webb, believed that William McCormick likely had

information that could exculpate defendant. When asked at the MAR hearing

whether he made any effort to locate McCormick during his pretrial investigation,

Webb responded as follows:

Yes, we did. I got contact through some of the people that I knew in the street who had brought up the names of other guys that they thought had done it, and they had indicated to me that they didn’t think [defendant] was the one that did it and that it was – the McCormick names popped up in those conversations. STATE V. REID

After that, I talked with [the investigator] and explained to him that I needed him to locate the McCormick kids, but I told him also it’s going to be difficult because I knew the McCormick kids’ mother and I had heard that she was protecting them and keeping them from – keeping them not being available so people could talk to them.

I approached her once down in the lower lobby of the courthouse in an effort to try to talk with them, and they refused to even talk to me.

¶ 58 The majority opines that Webb’s mere hiring of a private investigator to locate

McCormick establishes the exercise of due diligence. According to the majority, since

Webb did not specifically know about Shaw’s confession to McCormick, he should not

have been expected to conduct further inquiry after McCormick’s mother prevented

Webb from speaking with him. Whether Webb specifically knew about Shaw’s alleged

confession to McCormick is not the question. Instead, the question is whether Webb

exercised due diligence as defined by our cases after being told that McCormick had

information that would likely help his client.

¶ 59 The record evidence indicates that Webb’s efforts were not reasonable. Though

Webb hired a private investigator, McCormick’s mother prevented the investigator

from speaking with McCormick. Webb then ceased his investigatory efforts when he

realized that circumventing McCormick’s mother was “going to be difficult.” But

difficulty in obtaining information does not make that information unavailable. As

our cases indicate, due diligence required more. The defense attorney should have STATE V. REID

sought some form of relief from the trial court in an effort to speak to McCormick or

should have further questioned other witnesses about the identity of the murderers.

As we explained in Beaver, “if defendant considered [McCormick] an important and

material witness, he should have filed an affidavit before trial so stating.” Beaver,

291 N.C. at 144, 229 S.E.2d at 183.

¶ 60 Further, our General Statutes provide several mechanisms for eliciting

material information from a reluctant witness. For example, “[t]he presence of a

person as a witness in a criminal proceeding may be obtained by subpoena.” N.C.G.S.

§ 15A-801 (2021). And,

[a] judge may issue an order assuring the attendance of a material witness at a criminal proceeding. This material witness order may be issued when there are reasonable grounds to believe that the person whom the State or a defendant desires to call as a witness in a pending criminal proceeding possesses information material to the determination of the proceeding and may not be amenable or responsive to a subpoena at a time when his attendance will be sought.

....

. . . A material witness order may be obtained upon motion supported by affidavit showing cause for its issuance.

Id. § 15A-803(a), (d) (2021). Webb knew McCormick’s address and even approached

McCormick and his mother in the courthouse. Despite Webb’s belief that McCormick

possessed exculpatory information, however, he did not seek any form of relief from STATE V. REID

the trial court or otherwise. Had Webb gone to the trial court for assistance, he likely

could have gained access to McCormick and elicited his testimony.

¶ 61 Webb also could have discovered the relevant information by speaking to other

witnesses or further questioning those he had already interviewed. For example,

McCormick’s brother likely had the same information as McCormick. Nonetheless, it

does not appear that Webb or the private investigator attempted to speak with

McCormick’s brother or his attorney.

¶ 62 Further, Webb’s testimony demonstrates that he spoke with several unnamed

potential witnesses that had information related to the identity of the murderers.

Webb, however, never explained the basis for these potential witnesses’ belief that

defendant was innocent nor had them testify at trial. If Webb knew these potential

witnesses believed defendant was innocent and had information implicating other

perpetrators, then Webb had an obligation to further investigate the extent of their

knowledge. For example, Webb could have inquired into the identities and locations

of the “other guys that [the potential witnesses] thought had done it.” Instead, it

appears that for reasons of his own, Webb declined to pursue these leads. Due

diligence required Webb to conduct further investigation where he likely could have

discovered the information that defendant now classifies as newly discovered.

¶ 63 Just as the identity of the true owner of the drugs was available to the

defendant in Rhodes and just as the eyewitness testimony contained in the notes was STATE V. REID

available to the defendant in Powell, the fact that McCormick had possibly

exculpatory information was available to defendant in the present case. As such,

based upon our prior decisions, McCormick’s testimony at the MAR hearing does not

constitute newly discovered evidence. See Beaver, 291 N.C. at 144, 229 S.E.2d at 183;

Powell, 321 N.C. at 371, 364 S.E.2d at 336; Rhodes, 366 N.C. at 538, 743 S.E.2d at

40. Nonetheless, the majority now lowers the due diligence bar, allowing a defendant

to decline to interview a witness he believed to be material and to later file a MAR

asserting that the witness’s testimony is newly discovered.

¶ 64 In summary, our case law presumes that an underlying verdict is correct.

When a defendant seeks a new trial based upon newly discovered evidence, there is

a presumption that the defendant did not exercise due diligence in preparing for trial.

It is the defendant’s burden to overcome the presumption of lack of due diligence.

Defendant could have discovered the information contained in McCormick’s

testimony through due diligence—i.e., issuing a subpoena, seeking a material witness

order or other court assistance in accessing McCormick, or further investigating the

information known by other witnesses. Since defendant failed to pursue the available

information, he is unable to establish a necessary element of his MAR. Though “[t]he

decision of whether to grant a new trial in a criminal case on the ground of newly

discovered evidence is within the trial court’s discretion and is not subject to review

absent a showing of an abuse of discretion,” a trial court “by definition abuses its STATE V. REID

discretion when it makes an error of law.” Rhodes, 366 N.C. at 535–36, 743 S.E.2d at

39 (first quoting State v. Wiggins, 334 N.C. 18, 38, 431 S.E.2d 755, 767 (1993), then

quoting Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047 (1996)). Here

the trial court made an error of law when it concluded that defendant “could not have

discovered or made available the new evidence from McCormick with due diligence.”

The decision of the Court of Appeals should be affirmed. Therefore, I dissent.

Justice BARRINGER joins in this dissenting opinion.