Similar to its federal counterpart, North Carolina Rule of Evidence 607 provides that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” That said, the party calling a witness cannot use Rule 607 as “mere subterfuge” to elicit inadmissible hearsay under the “guise of impeachment.” So, did the State violate Rule 607 in State v. Miller, 2026 WL 2727500 (N.C. App. 2026)?
In Miller, Michael Legage Miller, Jr., appealed “from the trial court’s judgments entered upon a jury’s verdicts finding him guilty of three counts of first degree murder.” According to the Court of Appeals:
Detective Short’s investigation revealed that Defendant lived part-time with his half-brother, Bilal Jenkins. On 7 May 2020, the SWAT team executed a warrant to search Jenkins’s residence. At the time, Jenkins, Smith, Smith’s then-girlfriend, and Katrina Best, Jenkins’s then-wife, were at the house. Law enforcement arrested Jenkins for absconding parole and detained Smith for his alleged involvement.
Law enforcement interviewed Jenkins later that day; during his interview, Jenkins identified Defendant as the perpetrator and told law enforcement officers, inter alia, they would find a barrel buried in the ditch next to his house and broken glass in the woods. Officers returned to Jenkins’s residence and recovered glass fragments from the driveway. Officers using dogs and metal detectors searched extensively for the barrel but did not find one.
Thereafter, at trial,
The State called Jenkins to testify about what he had told Detective Short during his interviews, but Jenkins testified that, although he remembered Detective Short questioning him, he could not recall the details of the interviews. When the State asked him if looking at the videos of those interviews would refresh his recollection, Jenkins responded, “[i]t wouldn’t.” Jenkins went on to explain that it would be impossible to refresh his memory because he has a disability that affects his memory.
Thereafter, the trial court, at the State’s request, declared Jenkins to be a hostile witness and allowed the State to ask leading questions about the statements Jenkins made during his interviews. The State then asked Jenkins whether he remembered telling Detective Short that he (1) saw an AK-47 in the backseat of Buentello’s Chevy Malibu; (2) had observed Defendant driving the Malibu and having a Glock 9mm handgun with an extended magazine on his person in November 2020; and (3) encountered Smith “coming up to [him] in an early morning November of 2020 crying and distraught.” Jenkins responded that he did not recall telling Detective Short any of those things. After an off-the-record bench conference, the trial court excused the jury, and Defendant argued that Jenkins had “responded several times that he does not recall what statements he made to Detective Short,” and that the State’s attempt “to cross-examine [Jenkins] as to specific things that…he said in that interview is just an attempt to get those hearsay statements before the jury.” In rebuttal, the State argued that Jenkins’s testimony was vital to the State’s case because “Jenkins is the only witness in this case who is not an interested witness that is aware of a confession of” Defendant. The trial court ultimately allowed the State to continue asking Jenkins about the statements he made during his police interviews; Jenkins could not recall most of the prior statements.
In finding no violation of Rule 607, the court contrasted this case at hand to its prior opinion in State v. Hunt, 324 N.C. 343 (1989), concluding that
Hunt is distinguishable from the instant case for three reasons. First, unlike the witness in Hunt, Jenkins never denied making these statements; rather, Jenkins testified he could not recall the exact statements he made during his interviews. Consequently, his statements were not a collateral matter, and extrinsic evidence of those statements could be used to impeach Jenkins….
Second, there is no evidence in the instant case indicating the State knew prior to trial that Jenkins would refuse to answer questions while on the stand. In Hunt, the prosecutor specifically asked the witness if she had told police officers prior to trial that she was not going to testify….This question, in the Supreme Court’s words, “made evident the fact that the [S]tate was on notice before the trial began that their witness would not reiterate the unsworn statements it wished the jury to hear.”…Here, Defendant argues the State knew Jenkins was not going to cooperate while on the stand because the State had to obtain a material witness order to force Jenkins to testify at trial. A material witness order may be issued if there are “reasonable grounds to believe that the person whom the State…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.”…The material witness order, at most, indicates that Jenkins was reluctant to appear at Defendant’s trial to testify, but it does not show that the State knew prior to trial that Jenkins would not cooperate while on the stand….Third, unlike the trial court in Hunt, the trial court here instructed the jury regarding impeachment or corroboration by prior statement immediately after both interviews were published to the jury.
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