Case Summaries — N.C. Supreme Court (September 25, 2020)
This post summarizes opinions issued by the North Carolina Supreme Court on September 25, 2020.
The trial court committed prejudicial error by refusing to give the defendant’s requested instruction on self-defense and the doctrine of transferred intent with respect to felony murder and an underlying assault charge
State v. Greenfield, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020). In this felony murder case based on the underlying felony of assault with a deadly weapon with intent to kill inflicting serious injury, the trial court erred by not instructing the jury on self-defense and the doctrine of transferred intent. The evidence at trial showed that the defendant and a friend arrived at the apartment of Beth and Jon intending to buy marijuana from Jon. By the time the defendant and his friend left the apartment, Jon, Beth, and the defendant had been shot. Jon died as a result. The defendant testified that while in the apartment living room, he picked up a gun he found on a coffee table because “it looked cool,” which caused Jon to become aggressive and Beth to emerge from a bedroom pointing a gun at the defendant. After convincing Beth to drop her weapon by threatening to kill Jon, the defendant testified that he ran from the apartment, saw Jon pull a gun, and felt himself be shot in the side. This caused the defendant to shoot in Jon’s direction “as best as [he] could” and “intentionally” at him. The court explained that this testimony taken in the light most favorable to the defendant entitled him to a jury instruction on perfect self-defense for any shot intended for Jon because, if believed, it showed (1) he subjectively believed that he was going to die if he did not return fire; (2) such a belief was reasonable; (3) he was not the aggressor; and (4) did not use excessive force. Further, he was entitled to an instruction on self-defense through transferred intent for the AWDWIKISI charge relating to Beth as her injury could have been caused by a bullet intended for Jon. The trial court correctly gave a self-defense instruction on premeditated murder but erred by refusing to give the defendant’s requested self-defense instruction on felony murder or any underlying felony, including the assault. This error was prejudicial because it impaired the defendant’s ability to present his defense to felony murder and the assault charge.
In addition, the Court of Appeals erred by remanding the case for entry of a judgment convicting the defendant of second-degree murder, a verdict the jury returned after the trial court accepted a partial verdict on the felony murder charge and directed the jury to continue to deliberate on the premeditated murder charge. The trial court’s decision to require continued deliberation and its associated instructions could have resulted in an improper finding by the jury that the defendant was guilty of second-degree murder. Thus, the court remanded for a new trial on all charges.
Justice Newby dissented, stating his view that the trial court’s jury instructions, which included a general transferred-intent instruction but not the specific instruction requested by the defendant, enabled the defendant to make the jury argument he desired. Justice Newby interpreted the jury’s verdicts as a rejection of the defendant’s self-defense theory.
The Harbison rule applies to situations where defense counsel makes an implied admission of the defendant’s guilt to the jury
State v. McAllister, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020). The rule of State v. Harbison, 315 N.C. 175 (1985) that a criminal defendant suffers a per se violation of the right to effective assistance of counsel when counsel concedes the defendant’s guilt to the jury without the defendant’s prior consent applies to situations involving an implied admission. The defendant was charged with habitual misdemeanor assault based on an underlying offense of assault on a female, assault by strangulation, second-degree sexual offense, and second-degree rape. During a recorded interview with police that was played for the jury, the defendant made inculpatory statements indicating that he had “pushed [the victim],” was in a “tussle” with her, had “backhanded” and “smacked” her, and that she was visibly injured as a result. During closing argument, defense counsel referenced these statements and referred to them as admissions while arguing that the jury should set aside its negative feelings about the defendant arising from that behavior to see that there was no basis for convicting him of rape, sexual offense, and assault by strangulation. The jury found the defendant guilty of assault on a female and not guilty of all other charged offenses. Following an extensive review of its precedent flowing from Harbison, the court explained that while this was not a case where defense counsel expressly asked the jury to find the defendant guilty of a specified offense, Harbison violations are not limited to such situations and also occur in situations where counsel “impliedly concedes his client’s guilt without prior authorization.” The court said that counsel’s argument to the jury in this case was “problematic for several reasons,” including his attestations to the accuracy of the defendant’s admissions, his reminder to the jury that the victim was “hurt,” and counsel’s own opinion that “God knows he did
.” The court further noted that counsel specifically asked the jury to return a not guilty verdict for every charged offense except assault on a female, and characterized this conspicuous omission as implicitly conceding the defendant’s guilt on that charge in violation of Harbison. The court concluded by emphasizing “that a finding of Harbison error based on an implied concession of guilt should be a rare occurrence,” and remanded the case for a determination of whether the defendant knowingly consented in advance to the admission.Justice Newby, joined by Justice Ervin, dissented, stating the view that the jury argument in this case did not constitute the functional equivalent of an explicit admission and that a finding of ineffective assistance of counsel in a case like this requires proof of prejudice in accordance with Strickland.
Appellate counsel was not ineffective for failing to cite State v. Pakulski, 319 N.C. 562 (1987) in a case being reviewed for plain error
State v. Collington, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020). On discretionary review of a unanimous decision below, 259 N.C. App. 127 (2018), the court reversed the Court of Appeals and held that appellate counsel was not ineffective for failing to cite a particular line of cases because the facts of this case were distinguishable from those in the line of cases the Court of Appeals would have had appellate counsel cite. The Court of Appeals had held that appellate counsel was ineffective for failing to make the argument under State v. Pakulski, 319 N.C. 562 (1987) that a trial court commits plain error when it instructs a jury on disjunctive theories of a crime, one of which is erroneous, and it cannot be discerned from the record the theory upon which the jury relied. Noting that its opinion in Pakulski “lacks clarity” with respect to the standard of review applied there, the court explained that Pakulski applied the harmless error rather than plain error standard, as evidenced by subsequent precedent. Because the defendant in this case did not object to the trial court’s jury instructions, the court explained that Pakulski “would have had little precedential value in the instant case, and appellate counsel’s failure to cite it was not objectively unreasonable.” The court went on to explain that the arguments made by appellate counsel were appropriate for plain error review as counsel argued that the jury was presented with multiple theories of guilt, one of which was erroneous, and the error had a probable impact on the jury’s verdict.
Justice Ervin, joined by Justice Newby, concurred, agreeing with the court’s interpretation of Pakulski and its determination that appellate counsel was not ineffective, but writing separately to clarify the general matter that a defendant may be convicted of possession of a firearm by a felon under an acting in concert theory. Noting that neither the North Carolina Supreme Court nor the Court of Appeals has ever directly held that a defendant can be convicted of that offense on the basis of an acting in concert theory, Justice Ervin described the “general availability of the acting in concert doctrine in possession-related cases” and stated that he was not persuaded that the theory is inapplicable to the offense of possession of a firearm by a felon.
Justice Earls, joined by Justice Davis, dissented, expressing the view that the majority opinion’s explanations of Pakulski and appellate counsel’s arguments were inaccurate. In Justice Earls’ view, Pakulski applied the plain error standard of review and appellate counsel did not meet the obligation to argue to the Court of Appeals that the defendant could not be convicted of possession of a firearm by a felon based on someone else’s possession.
The trial court did not err by failing to appoint counsel for a pro se indigent defendant seeking post-conviction DNA testing under G.S. 15A-269
State v. Byers, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020). Considering an issue of first impression, the court held that the pro se indigent defendant made an insufficient showing that post-conviction DNA testing “may be material to [his] claim of wrongful conviction” and consequently the trial court did not err by denying his motion for DNA testing under G.S. 15A-269 before appointing him counsel. The court explained that the showing a defendant must make to be entitled to appointment of counsel under G.S. 15A-269(c) is a lesser burden than that required to obtain DNA testing under G.S. 15A-269(a) because subsection (a) requires a showing that the testing “is material” to the defendant’s defense while subsection (c) requires a showing that testing “may be material” to the defense. The term “material,” the meaning of which the court discussed extensively in its opinion, maintains the same definition under both statutory provisions, but the showing differs due to the varying use of the modifiers “is” and “may be.” Here, in light of the overwhelming evidence at trial of the defendant’s guilt, the dearth of evidence at trial implicating a second perpetrator, and the unlikelihood that DNA testing would establish the involvement of a third party, the defendant failed to satisfy his burden of showing that DNA testing may be material to his claim of wrongful conviction.
The retroactivity provision of the Racial Justice Act repeal violates the double jeopardy protections of the North Carolina Constitution; The retroactive application of the RJA repeal violates the prohibitions against ex post facto laws contained in the United States Constitution and the North Carolina Constitution
State v. Augustine, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020). The complex procedural history of this case, which involves motions for appropriate relief filed by three defendants under the Racial Justice Act and associated proceedings occurring over a years-long period of time when the RJA was amended and then repealed, is recounted in detail in the court’s opinion which vacates the trial court’s order ruling that the repeal of the RJA voided the defendant’s RJA MAR and remands the case for the reinstatement of the defendant’s sentence of life imprisonment without parole. For the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020), the retroactivity provision of the RJA repeal violates the double jeopardy protections of the North Carolina Constitution. For the reasons stated in State v. Ramseur, 374 N.C. 658 (2020), the retroactive application of the RJA repeal violates the prohibitions against ex post facto laws contained in the United States Constitution and the North Carolina Constitution.
Justice Davis concurred in the result for the reasons stated in Justice Ervin’s concurring opinions in State v. Golphin, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020) and State v. Walters, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020).
Justice Newby dissented for the reasons stated in his dissenting opinions in Robinson and Ramseur.
For the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020) the court vacated the trial court’s order dismissing the defendant’s motion for appropriate relief filed pursuant to the Racial Justice Act
State v. Walters, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020). In a per curiam opinion, for the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020) the court vacated the trial court’s order dismissing the defendant’s motion for appropriate relief filed pursuant to the Racial Justice Act and remanded the case for the reinstatement of the defendant’s sentence of life imprisonment without parole.
Justice Ervin, joined by Justice Davis, concurred in the result because he was bound by the decision in Robinson, a case in which he dissented. Were he not bound by Robinson, Justice Ervin would have dissented for the reasons he stated in Robinson.
Justice Newby dissented for the reasons stated in his dissenting opinion in Robinson.
For the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020) the court vacated the trial court’s order dismissing the defendant’s motion for appropriate relief filed pursuant to the Racial Justice Act
State v. Golphin, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020). In a per curiam opinion, for the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020) the court vacated the trial court’s order dismissing the defendant’s motion for appropriate relief filed pursuant to the Racial Justice Act and remanded the case for the reinstatement of the defendant’s sentence of life imprisonment without parole.
Justice Ervin, joined by Justice Davis, concurred in the result because he was bound by the decision in Robinson, a case in which he dissented. Were he not bound by Robinson, Justice Ervin would have dissented for the reasons he stated in Robinson.
Justice Newby dissented for the reasons stated in his dissenting opinions in Robinson and State v. Ramseur, 374 N.C. 658 (2020).
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