Case Summaries – N.C. Court of Appeals (August 16, 2022)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 16, 2022. This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
(1) Objection must be made in the presence of the jury at the time evidence is offered to preserve objection for appeal; (2) objection to jury instruction must be made before the jury retires to preserve objection for appeal.
State v. McIver, 2022-NCCOA-561, ___ N.C. App. ___ (Aug. 16, 2022). In this Cumberland County case, defendant appealed his convictions for first degree murder and robbery based upon (1) the admission of expert testimony regarding cell phone locations and (2) a jury instruction on defendant’s flight from the scene. The Court of Appeals found no error by the trial court and affirmed defendant’s convictions.
Defendant and an accomplice were driven to the house of a woman known to sell marijuana in Fayetteville. After defendant and his accomplice were dropped off near the home, shots were fired, and witnesses saw men matching their descriptions leaving the home. In addition to the testimony of eyewitnesses, the State offered the testimony of an expert in cell phone analytics from the Fayetteville Police Department, and a GeoTime report plotting the location of cellphones associated with the victim and the driver of the vehicle that brought defendant to the scene.
The Court of Appeals first reviewed defendant’s objection to the cell phone expert, and noted that defendant did not object to the testimony in the presence of the jury. Counsel did file a motion in limine and objected to the expert after voir dire, but did not renew the objection when the testimony was offered in front of the jury later in the trial. The trial court noted defendant’s objection in front of the jury, but only after testimony and cross-examination had concluded. Applying State v. Ray, 364 N.C. 272 (2010), the court determined that defendant did not properly preserve the objection. Slip Op at ¶20. As a result, the court applied a plain error standard of review, and found sufficient evidence to support defendant’s convictions.
Reviewing the jury instruction on flight, the court similarly found that defendant failed to preserve the objection, as counsel never objected to the jury instruction at all. To preserve the objection, the court explained, counsel should have objected prior to the jury retiring to consider the verdict. The court applied the same plain error standard of analysis, finding that the jury instruction did not have a probable impact on the jury’s finding of guilt and ample evidence supported defendant’s convictions.
Totality of circumstances, including K-9 alert and additional evidence, supported probable cause to seize bag of possible marijuana during traffic stop.
State v. Highsmith, 2022-NCCOA-560, ___ N.C. App. ___ (Aug. 16, 2022). In this Duplin County case, defendant appealed his conviction for felony possession of marijuana. The Court of Appeals found no error and no ineffective assistance of counsel.
Officers of the Duplin County Sheriff’s Office observed a vehicle leaving a residence where they had received several complaints of narcotics being sold. Defendant was in the passenger seat of the vehicle, and the officers recognized him from past encounters and arrests for marijuana possession. The officers also observed a box of ammunition on the back seat and noted that the vehicle was not registered to any of the occupants. After a K-9 unit arrived and signaled the possible presence of illegal substances, the officers searched and found a vacuum-sealed bag of possible marijuana under defendant’s seat. The search also turned up a digital scale and a large amount of cash. Chemical analysis later determined the substance was marijuana.
At trial, defendant made a motion to suppress the bag of marijuana, arguing that the K-9 alert could not support probable cause for the seizure due to the similarity of legal hemp and illegal marijuana. Examining the trial court’s decision to deny, the Court of Appeals noted that the “totality of the circumstances” supported the seizure, because defendant made no statements about the bag containing hemp, and the officers found a digital scale and a large amount of cash in the same search, bolstering the assumption that the bag contained illegal marijuana. Slip Op. at ¶20.
The Court of Appeals also examined defendant’s claims that it was plain error not to instruct the jury that defendant must have actual knowledge the product in the bag was illegal marijuana, and that defendant’s counsel was ineffective by not requesting this jury instruction. The court disagreed on both issues, pointing to the evidence that also supported the denial of the motion to suppress.
Imposition of lifetime satellite-based monitoring for aggravated sex offender did not violate Fourth Amendment.
State v. Gordon, 2022-NCCOA-559, ___ N.C. App. ___ (Aug. 16, 2022). In this Forsyth County case, defendant appealed the imposition of lifetime satellite-based monitoring (SBM) after his classification as an aggravated offender for convictions for rape, indecent liberties with a child, assault by strangulation, and kidnapping. The Court of Appeals affirmed the imposition of lifetime SBM.
This matter first came before the Court of Appeals in 2018, after defendant appealed the trial court’s imposition of lifetime SBM. After the Court of Appeals’ decision, the North Carolina Supreme Court granted discretionary review based on the State’s petition, and remanded the case in 2019, directing the court to consider State v. Grady (Grady III), 372 N.C. 509 (2019). In 2020, the Court of Appeals issued its second opinion. The Supreme Court again granted discretionary review based on State’s petition, and remanded the case in 2021, directing the court to consider State v. Hilton, 378 N.C. 692 (2021), and State v. Strudwick, 379 N.C. 94 (2021), as well as the General Assembly’s 2021 amendments to the SBM program.
In the current opinion, the Court of Appeals considered the new caselaw and statutory requirements applicable to the imposition of defendant’s lifetime SBM. Applying Hilton, the court explained that lifetime SBM does not represent an unreasonable search for aggravated offenders like defendant. Slip Op. at ¶9. Additionally, the court referenced Strudwick when establishing that the State does not have to demonstrate the reasonableness of lifetime SBM after defendant’s release from prison at some date in the future, only the reasonableness of the imposition in the present. Slip Op. at ¶10. The court then performed a Fourth Amendment analysis in light of the changes to the SBM program and caselaw, determining that “the search of Defendant as imposed is reasonable and therefore withstands Fourth Amendment scrutiny.” Slip Op. at ¶21.
(1) Video of shackled defendant played for jury was not prejudicial; (2) defense counsel’s conflict did not alter performance at trial and was not prejudicial; (3) trial court’s delegation to prosecutor of reading the charges, victims, and dates of offense to prospective jurors violated N.C.G.S. § 15A-1213 but did not justify new trial.
State v. Williams, 2022-NCCOA-562, ___ N.C. App. ___ (Aug. 16, 2022). In this Edgecombe County case, two defendants, Defendant W and Defendant P, were jointly tried, and appealed their convictions for robbery with a dangerous weapon and felon in possession of a firearm. The Court of Appeals found no prejudicial error for either defendant and affirmed the convictions, but did identify a harmless error by the trial court when it delegated duties under N.C.G.S. § 15A-1213 to the prosecutor.
The defendants were convicted for a robbery that occurred outside a food mart in Rocky Mount. Evidence admitted at trial showed that Defendant W was wearing a GPS ankle bracelet that placed him at the scene of the robbery, his appearance that day matched eyewitness descriptions of the suspect and matched him with the suspect on surveillance footage. Defendant P was later apprehended based on the description of eyewitnesses and surveillance footage, and admitted to police he was present at the food mart the night the robbery took place. The Court of Appeals reviewed each defendant’s appeals separately in the opinion.
Considering Defendant P’s first grounds for appeal, the court examined whether the use of video showing Defendant P in shackles was prejudicial and a violation of his due process right to the presumption of innocence. After exploring the lack of binding precedent on using video of a shackled defendant, the court determined that, regardless of the applicable standard of review, Defendant P could not show prejudice based on the video. The court explained that the trial court gave an instruction to the jury immediately prior to playing the video not to draw any inference from the shackles, and overwhelming evidence of Defendant P’s guilt was present in the record even if the jury disregarded the trial court’s instructions. The court also held that N.C.G.S. § 15A-1031 was not applicable as this was not a physical restrain in the courtroom.
Defendant P also raised the issue of his habitual felon status being cruel and unusual punishment under the U.S. and North Carolina constitutions. However, the court found that Defendant P did not raise the issue at trial and thus did not preserve the objection for appellate review.
Examining Defendant W’s grounds for appeal, the court first looked at the argument that his counsel had an actual conflict of interest that effected counsel’s performance during the trial. The record showed that Defendant W’s attorney admitted he had represented one of the key eyewitnesses approximately seven years prior. The Court of Appeals applied the multi-step test from State v. Choudhry, 365 N.C. 215 (2011), to determine the nature of the conflict and whether it represented actual prejudice to the defendant. Slip Op. at ¶51. The court found that, although the trial court did not conduct an adequate inquiry into the conflict, Defendant W could not show any adverse effect on his counsel’s performance based on the conflict. After determining no adverse effect on Defendant W’s counsel, the court concluded that Defendant W could not show any actual prejudicial error as a result of the conflict.
On Defendant W’s second argument, the Court of Appeals found that the trial court violated N.C.G.S. § 15A-1213 by delegating to the prosecutor the duty of reading the charges, victims, and dates of offense to prospective jurors. Defendant W argued that the trial court intimated or expressed an opinion on the case in the presence of the jury, justifying a new trial. While the Court of Appeals agreed that N.C.G.S. § 15A-1213 was violated, the court did not agree that the violation rose to the level of prejudice justifying a new trial, instead finding harmless error. The court pointed out that the trial court read instructions to the jury regarding judicial impartiality, and stated “the jurors would not have gone into the jury room thinking the judge had implied any opinion by having the prosecutor give part of the case overview; the jury instructions explicitly told them not to make such inferences.” Slip Op. at ¶79. The court also noted that Defendant W was acquitted of more serious charges of attempted murder and assault with a deadly weapon, suggesting the jury considered all the charges separately.
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