Case Summaries — North Carolina Court of Appeals (July 6, 2021)

Published for NC Criminal Law on July 07, 2021.

This post summarizes published criminal and related decisions released by the North Carolina Court of Appeals on July 6, 2021. Summaries are also posted to Smith’s Case Compendium, here.

Juvenile’s confession was voluntary, but trial court reversibly erred in failing to consider the juvenile’s age when determining custody status for purposes of Miranda and G.S. 7B-2101

In re: J.D.F., ___ N.C. App. ___ (July 6, 2021). In this Iredell Co. case, a thirteen-year-old juvenile was brought to the Sheriff’s Department for an interview regarding the sexual abuse of his nine-year-old cousin. The juvenile’s aunt had custody of the juvenile, and her partner drove the juvenile to the interview. The interview took place in an interview room with a detective and the aunt’s partner and was recorded. The juvenile was unrestrained and was told he would be allowed to go home that day. He initially denied any sexual contact but admitted to having received oral sex from his cousin approximately thirty minutes into the interview after prompting from the detective that it was the juvenile’s last chance to be truthful. The juvenile signed a statement to that effect, acknowledging that his statement was given voluntarily. A delinquency petition for first-degree sexual offense was filed. The juvenile moved to suppress, arguing his statement was not voluntary, that he did not receive a Miranda warning, and that the procedures for minor interrogations under G.S. 7B-2101 were not followed. The district court denied the motion. The juvenile then entered an Alford admission of responsibility and preserved his right to appeal the suppression ruling. The Court of Appeals affirmed in part and reversed in part.

(1) Juveniles are entitled to a Miranda warning during custodial interrogation. G.S. 7B-2101 provides further protections for children during a custodial interrogation, including the right to have a parent or custodian present during questioning. If a child is under sixteen years of age, a parent, guardian, custodian, or attorney must be present for statements made during custodial interrogation to be admissible. G.S. 7B-2101(b). A person is in custody for purposes of Miranda and G.S. 7B-2101 when a reasonable person would believe he or she was in custody, or when a significant deprivation of freedom occurs. A court must examine the totality of circumstances, including the juvenile’s age, when making a custody determination. Here, the district court’s finding that the juvenile was not in custody was “likely proper.” J.D.F. Slip op. at 10. However, the trial court’s order mentioned the juvenile’s age only in passing and failed to explicitly consider it in the custody analysis. This was reversible error and required remand for a new suppression hearing.

(2) The trial court did not err in determining that the juvenile’s statement was voluntary. Voluntariness is determined by the totality of the circumstances, including the juvenile’s age, education, length and nature of questioning, and the use of any physical punishment or deprivations. The presence of a parent, guardian, or attorney is not necessary for a juvenile to make a voluntary statement. “Generally, a minor has the capacity to make a voluntary confession . . . without the presence or consent of counsel or a responsible adult.” Id. at 12 (citation omitted). Here, because the juvenile signed a document acknowledging that his confession was given voluntarily, the district court’s finding of voluntariness was not error. “[W]e find that despite [the juvenile’s] age and inexperience he knew and understood the action he was taking.” Id. The detective’s statements during questioning that he did not believe the juvenile was telling the entire truth and that this was the juvenile’s last opportunity to cooperate were not coercive and did not alter this conclusion.

The matter was therefore remanded for the district court to conduct a new hearing on the issue of custody with a meaningful consideration of the juvenile’s age in its analysis; the district court was otherwise affirmed. Judges Inman and Griffin concurred.

(1) Victim’s statements regarding identity of attacker were admissible as excited utterances despite possible passage of time between attack and statements; (2) Sixth Amendment confrontation argument not raised during trial was waived on appeal notwithstanding pretrial motion; (3) No abuse of discretion or prejudicial error in admission of testimony identifying defendant on a jail phone call and interpreting the contents of the call

State v. Lowery, ___ N.C. App. ___ (July 6, 2021). The victim in this Davie County murder case was a “neighborhood runner,” running errands for people in general, and allegedly running drugs for the defendant. One afternoon, a friend of the victim was walking home and discovered the victim laying near railroad tracks. The victim told his friend, “Red beat me up.” The defendant was known as “Red.” Around an hour and a half passed before law enforcement was alerted. The first responding officer asked the victim what happened, and the defendant named “Carlos Lowery” and “Red” as the person responsible. The victim again repeated this information to a detective. An additional officer and an EMT on the scene overheard the victim name the defendant as the perpetrator, and the victim named the defendant once more to a detective in the ambulance. The victim did not survive, and the defendant was charged with first-degree murder and common law robbery.

The defendant filed a motion in limine to exclude the victim’s statements to law enforcement and overheard by the EMT as hearsay and in violation of the defendant’s confrontation and due process rights. The trial court denied the motion. It found that the statements fell within the excited utterance exception or were offered in corroboration and did not address the motion’s constitutional grounds. At trial, the defendant made only general objections to the testimony regarding the victim’s statements. The State also presented evidence of a recorded jail call between the defendant and a woman through a detective. The detective testified to her familiarity with the defendant’s voice, as well as the jail phone system, and identified the voice on the call as the defendant’s. The phone call was played for the jury, but the audio was of low quality. The detective was permitted to testify that the defendant stated on the call that he “got the cigarettes and the change, but not the phone.” Lowery Slip op. at 6. Those specific items were among those listed as missing from the victim. The defendant was convicted of second-degree murder and appealed, arguing evidentiary and confrontation errors at trial.

(1) The defendant argued evidence of the victim’s statements to police and EMT identifying the defendant as his attacker was improperly admitted under the excited utterance exception. The exception provides that “statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” are admissible. G.S. 8C-1, Rule 803(2) (2019). The defendant maintained that, because the time of the attack was unknown, it was error to conclude the defendant was still under the influence of the event at the time. Rejecting this argument, the court noted that the unknown time frame cut against the defendant’s argument. In its words:

Defendant’s argument, however, rests on a speculative assessment of the facts precisely because the Record does not disclose how much time elapsed from the assault until the statements were made. Put another way, the assault may have occurred just minutes before [the friend] found [the victim] but no more than approximately 75-90 minutes before. Lowery Slip op. at 9.

Further, there is not a firm rule regarding how soon after the startling event a statement may be made to be considered an excited utterance; the question turns on whether the declarant was still under the stress of the event at the time. The defendant pointed to evidence that the defendant’s friend initially perceived the victim to be “calm” but “in pain” when the victim was first discovered. This too was rejected. Given the severity of the victim’s injuries—internal injuries causing breathing difficulty and eventually death—the court declined to conclude that the victim’s statements were not made while under the stress of the event. The trial court therefore did not err in admitting the statements as excited utterances.

(2) The defendant argued that admission of the victim’s statements identifying him to police and the EMT violated his Confrontation Clause and Due Process rights under Sixth Amendment. This constitutional argument was raised in the defendant’s pretrial motion, but the court did not rule on that issue when admitting the statements. The defendant made no constitutional objections at trial, and the issue was consequently unpreserved for appellate review. See N.C.R. App. P. 10(a)(1) (2021). The defendant did not seek plain error review or suspension of the Rules of Appellate Procedure to allow review of the unpreserved claim, and the court declined to review it.

(3) The defendant argued that admission of the jail phone call testimony violated Rule 701 of the North Carolina Rules of Evidence as improper lay opinion. He pointed out that the call was played for the jury and argued that the detective’s testimony was not helpful to the jury. As a preliminary matter, the court observed that the defendant again only made a general objection at trial and possibly failed to preserve the issue for appellate review. Assuming the issue was preserved, the admission of this testimony was not an abuse of discretion. Under State v. Belk, 201 N.C. App. 412 (2009), a lay witness may identify a defendant when the testimony is helpful to the jury and does not improperly invade the jury’s role as finder of fact. Distinguishing the video identification at issue in Belk, as well as the strength of the evidence in the respective cases, the court rejected this argument:

Given [the detective’s] familiarity with both the telephone system and with Defendant . . . , we cannot say then that there was ‘no basis for the trial court to conclude that the officer was more likely than the jury to correctly identify’ the contents of the recording of the telephone call . . . Lowery Slip op. at 18.

Finally, the court concluded that even if this testimony was admitted in error, the defendant could not demonstrate prejudice on the facts. The trial court was therefore affirmed in all respects. Judge Dietz and Zachary concurred.

SBM order entered without taking evidence or conducting a hearing was improper; divided court invokes its discretionary authority to review and reverse without prejudice

State v. Barnes, ___ N.C. App. ___ (July 6, 2021). The defendant was convicted of first-degree rape, kidnapping, and sex offense in Alamance County and sentenced to a minimum 420 months. The trial court ordered lifetime satellite-based monitoring (“SBM”), but no Grady hearing was conducted. The defendant sought certiorari review after failing to give proper notice of appeal. The court granted the petition. The defendant further sought to suspend the rules of appellate procedure to allow review of the unpreserved claim. Noting other cases where Rule 2 of the Rules of Appellate Procedure had been invoked to review claims on similar facts, the Court of Appeals allowed review.

Despite ample guidance from case law regarding the requirements for imposition of SBM, the State did not offer any evidence and the trial court did not conduct any hearing on the issue. The order was therefore vacated. Although the State is prohibited from trying again following an unsuccessful attempt to prove the appropriateness of SBM, here, it had no such opportunity given the lack of a hearing on the issue. The order was therefore vacated without prejudice, allowing the State to seek an SBM order if it desires.

Judge Tyson dissented and would not have allowed review of the unpreserved claim, calling the defendant’s appellate argument “frivolous.” Barnes Slip op. at 17 (Tyson, J., dissenting).

(1) Trial court’s instruction that the jury should not be influenced by the fact that others were charged with the crime when deciding the defendant’s guilt was not an improper expression of opinion; (2) Indictment for synthetic cannabinoid that failed to correctly name controlled substance was fatally flawed

State v. Hills, ___ N.C. App. ___ (July 6, 2021). The defendant was convicted at trial of trafficking heroin, possession with intent to sell or deliver synthetic cannabinoids, and other various drug offenses in in Brunswick County. (1) During its instructions to the jury, the trial court stated that the jury should determine the guilt or innocence of this defendant and should not be influenced by evidence that other people were also charged in connection with the underlying events (who would get their own days in court). The defendant argued that this was an impermissible expression of judicial opinion on the evidence. Specifically, she argued that this instruction conveyed to the jury that the crime had occurred; that the jury should disregard all evidence that others present in the car may have been responsible; and that the defendant’s defense should be discounted. The Court of Appeals disagreed. First, the trial court expressed no opinion that the crime occurred. There was no argument denying the presence of drugs in the car, and the role of the jury in the case was to determine whether the defendant possessed them. The trial court’s acknowledgement that a crime had occurred was therefore not improper opinion. The instruction also did not command the jury to disregard evidence that others present may have been responsible. “Read in context, the trial court’s statement did not touch on Defendant’s evidence . . . [and] did not refer to the credibility of any evidence.” Hills Slip op. at 9. Finally, the instruction did not denigrate the defendant’s defense. Unlike other cases where a trial court’s statement was found to be improper, the instruction here did not disclaim the involvement of other people. Instead, the instruction specifically informed the jury that others who were charged in the case would have their own days in court. “The trial court’s instruction, therefore, did not reflect an opinion on the credibility of Defendant’s evidence but, instead, reminded the jury it must only consider the evidence presented during the course of the hearing.” Id. at 11. Further, the instruction at issue came after the close of evidence, not during evidence, lessening the risk that the jury would have taken it as an expression of opinion. Finally, the jury was instructed not to assume any opinion based on the trial court’s statements or expressions during trial immediately before receiving the contested instruction. Under the circumstances, the trial court’s instruction did not amount to an improper expression of opinion on the case.

(2) G.S. 90-89(7) lists 18 specific synthetic cannabinoids, but the substance charged in the indictment here—”methyl(2S)-2-{{1-(5-fluoropentyl)-1H-indazol-3-yl]formamido}-3,3-dimethylbutanoate (5F-ADB)”—is not listed there or elsewhere within Chapter 90 as a Schedule I substance. Wikipedia provides that the substance named in the indictment is a synthetic cannabinoid, and the State argued on appeal that this was sufficient to establish that the identity of the substance as a Schedule I drug. The court rejected this argument, pointing out that “[a] court may not look to extrinsic evidence to supplement a missing or deficient allegation in an indictment.” Hills Slip op. at 16. It found that the indictment failed to allege a necessary element of the offense (the controlled substance) and was therefore fatally flawed. The conviction was consequently vacated. Judges Dietz and Zachary concurred.

(1) Where evidence supported one conspiracy, trial court erred by entering separate conspiracy judgments; only the first substantive crime of the conspiracy supported judgment, but the error did not require resentencing; (2) No abuse of discretion to deny jury’s request for transcript of witness testimony

State v. Beck, ___ N.C. App. ___ (July 6, 2021). The defendant was convicted of armed robbery, conspiracy to commit armed robbery, felony breaking or entering, and conspiracy to commit breaking or entering in Watauga County. The offenses related to the attempted robbery of a drug dealer in an apartment in Boone. The jury convicted on all counts, and each conspiracy count was consolidated with the related substantive count for judgment.

(1) The defendant argued that the trial court erred in failing to dismiss one of the conspiracy counts. The Court of Appeals agreed. To convict on separate conspiracies, the State has the burden to show separate agreements. A single agreement to commit multiple offenses constitutes only one conspiracy. Factors relevant in determining the existence of multiple conspiracies include “the “nature of the agreement or agreements, the objectives of the conspiracies, the time interval between them, the number of participants, and the number of meetings . . .” Beck Slip op. at 11 (citation omitted). Here, the evidence showed only one agreement to rob drug dealers and thus only supported one conspiracy.

Where multiple conspiracy convictions are vacated, the court must identify the first substantive crime in determining which conviction to vacate. Here, the felony breaking or entering was the first substantive offense committed by the conspirators. The conviction for conspiracy to commit armed robbery was therefore vacated. According to the court:

As the felony breaking and entering was the first substantive crime committed by defendant (i.e., the ‘operative’ crime), because the conspiracy to commit felony breaking and entering was the ‘earlier of the conspiracy convictions’ insofar as defendant is concerned, and because the State failed to prove that defendant conspired with [the co-conspirators] in the weeks leading up to the crimes, we vacate defendant’s conviction for conspiracy to commit armed robbery . . . Id. at 14.

No resentencing was required, however, since the conspiracy to commit armed robbery was consolidated with the substantive robbery offense and the defendant was sentenced within the presumptive range for that crime.

(2) The trial court did not abuse its discretion in failing to provide the jury with a transcript of a witness’s testimony. No party objected to the trial court’s refusal in response to the jury’s request. Under G.S. 15A-1233(a), it is within the trial court’s discretion to allow reexamination of the evidence. Prejudice from the denial of a jury request to reexamine evidence will only be considered where the trial court fails to acknowledge its discretion in responding to the request. The trial court here recognized the matter as within its discretion. Consequently, the denial of the request for a transcript was neither an abuse of discretion nor prejudicial error.

Judge Inman concurred without separate opinion. Judge Tyson concurred in part and dissented in part. He would have found no error with the conviction for conspiracy to commit armed robbery.

(1) Sufficient evidence supported the defendant’s identity as the perpetrator; (2) Defendant was not entitled to an opportunity to be heard on attorney fees where the fee was awarded as a condition of probation and not as a civil judgment

State v. Gibson, ___ N.C. App. ___ (July 6, 2021). The defendant attempted to cash a forged check at a bank in Burke County. He submitted his driver’s license and social security card along with the check through the tube system at the bank’s drive-through. The bank teller handling the transaction became suspicious upon seeing the check and contacted the account owner. The account owner informed the bank employee that she had not authorized the check, did not know the defendant, and that the check had been recently taken from her mailbox. The defendant left the scene without recovering his documents and was later indicted for uttering a forged instrument. He was convicted at trial and appealed.

(1) Sufficient evidence existed for the jury to determine that the defendant was the perpetrator. The State introduced the defendant’s driver’s license and social security card, which had been left with the bank teller. A detective established the chain of custody of those items from the bank teller to the police. The bank teller testified that the defendant was the person who initially passed those documents to at the bank window, and that he verified at the time that the defendant was the person on the license. In the light most favorable to the State, this was sufficient evidence to show that the defendant was the person responsible for the crime.

(2) The defendant’s attorney testified that he had 28 hours in the case, and the trial judge awarded attorney fees as a condition of probation in the amount of $1,680.00. The defendant complained that he was not provided an opportunity to be heard on the award. Because the attorney fees were ordered as a condition of probation and not as a civil judgment, the defendant was not entitled to be heard. “[T]his Court has only required notice and an opportunity to be heard when the court has imposed a civil judgment against an indigent defendant for attorney fees pursuant to [G.S. 7A-]455(b).” Gibson Slip op. at 10 (citing State v. Jacobs, 172 N.C. App. 220 (2005) and State v. Friend, 257 N.C. App. 516 (2018)). G.S. 15A-1343(b)(10) authorizes payment of attorney fees as a condition of probation, and the trial court correctly calculated the rate for appointed attorney fees for the class of offense ($60 x 28 hours) to arrive at the award. Because the award was authorized as a matter of probation and no civil judgment was involved, the award would only be reversed for an abuse of discretion. Finding none, the award of attorney fees was affirmed. Judges Dietz and Collins concurred.

(1) Sufficient evidence supported convictions for obtaining property by false pretense; credits to defendant’s NCDOR account were things of value for purposes of the offense, and NCDOR was actually deceived; (2) Assuming without deciding that a motion to dismiss for insufficient evidence preserves a variance argument, the failure to specify the NCDOR credits as a thing of value in the jury instructions was not a fatal variance from the allegations of the indictment on the facts; (3) Restitution award was unsupported by evidence and required reversal  

State v. Brantley-Phillips, ___ N.C. App. ___ (July 6, 2021). The defendant engaged in a scheme whereby she would submit electronic payments towards delinquent taxes to the North Carolina Department of Revenue (“NCDOR”) from invalid accounts (or, in one case out of 48, an account with insufficient funds). The payments to NCDOR were all made towards matters connected to the defendant. The electronic payments (from a total of ten different banks) had valid bank routing numbers and were all initially processed by NCDOR—resulting in immediate credits on the defendant’s NCDOR accounts. Only days after the electronic payment would the bank receive notice that payment had not been received due to an invalid account or insufficient funds. NCDOR immediately applied the payments to defendant’s various tax liabilities, and occasionally stopped garnishing the defendant’s wages based on the fraudulent payments. The defendant made several overpayments to NCDOR, and refund checks were issued to her. The defendant was able to cash three of four refund checks before NCDOR realized the electronic payments never materialized. When interviewed by law enforcement, the defendant confessed. She was subsequently charged with ten counts of obtaining property by false pretenses in Wake County. The jury convicted on all counts and the defendant appealed.

(1) The defendant argued that there was insufficient evidence that she obtained a “thing of value” for purposes of obtaining property by false pretense. Any thing of value will suffice for this purpose, and the determination of whether something is a thing of value is a factual question for the jury. Ample evidence showed that the defendant received a thing of value:

[T]he benefit Defendant incurred from her purported ‘payments’ was the elimination or diminution of liabilities owed to NCDOR . . . in addition to the tangible benefit of cash by way of the refund checks. Moreover, Defendant herself admitted she committed these offenses to ‘stop the wage garnishments from occurring,’ and deliberately ‘continue[d] the cycle’ to redeem additional refund checks. Brantley-Phillips Slip op. at 10.

There was also sufficient evidence that NCDOR was actually deceived by the defendant for related reasons—the agency issued refund checks, credited the defendant’s accounts with the agency (and others), and stopped garnishing the defendant’s wages at times. The convictions were therefore supported by sufficient evidence.

(2) The indictments alleged that the defendant made false representations to obtain credits on her NCDOR account. The trial court instructed the jury that the defendant could be found guilty if it found that the defendant fraudulently obtained property or a thing of value. The instruction did not specifically name the NCDOR tax credits as the item of value at issue. The defendant argued that the jury instructions impermissibly varied from the language of the indictment. The State argued this issue should only be reviewed for plain error since the defendant did not object at trial. The defendant argued that her properly timed motion to dismiss for insufficient evidence preserved all issues relating to sufficiency, including variance issues, and should be reviewed de novo. Assuming without deciding that the motion preserved the variance argument, the court applied de novo review.

Jury instructions should generally match the allegations of the indictment, and a fatal variance may result where they do not. However, an exception to this rule exists: “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no fatal variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 14 (citation omitted). The jury instructions here were consistent with the allegations of the indictment and the proof at trial, and it was unlikely the jury was confused as to the thing of value at issue. There was therefore no fatal variance between the jury instructions and the indictment.

(3) The State conceded on appeal that the restitution award in the case was unsupported by sufficient evidence, and the matter was remanded for resentencing on that issue alone. The judgment of the trial court was otherwise affirmed. Judges Wood and Tyson concurred.

(1) Defendant was properly served subpoenas to appear by telephone; (2) Show cause order based on defendant’s disregard of the subpoena was sufficient to confer jurisdiction for contempt hearing; (3) Trial court’s oral pronouncement of the correct standard of proof was sufficient despite failure to check box on form finding the defendant in criminal contempt

State v. Gonzalez, ___ N.C. App. ___ (July 6, 2021). The defendant was served with subpoenas for her and her children to testify in a murder trial. She was first served by telephone by the Watauga County Sheriff’s deputy and later served personally. The defendant and her children did not appear as commanded. (This led to an improperly declared mistrial and ultimately resulted in a double jeopardy violation. See State v. Resendiz-Merlos, 268 N.C. App. 109 (Oct. 15, 2019)). The day before failing to appear as required by the subpoena, the defendant met with the prosecutor and acknowledged her obligation to appear and testify. After the trial, the defendant acknowledged to law enforcement that she had purposefully failed to comply with the subpoena. A show cause order was issued, and the defendant was found in criminal contempt. She was sentenced to an active term of 30 days and appealed.

(1) The subpoena personally served on the defendant only had one page of the AOC subpoena form (AOC-G-100). Page two of that document lists the rights and protections for a person under subpoena, and the defendant argued this rendered the process invalid. The Court of Appeals agreed that the subpoena personally served on the defendant did not comply with the requirements for service of a subpoena, but found the subpoena served by telephone was proper.

(2) The defendant also argued that the trial court lacked jurisdiction to find her in contempt based on the invalid subpoena. Because the telephone subpoena was properly served, the trial court had jurisdiction to enforce it. Contempt under these circumstances was permissible as a matter of Rule 45 of the North Carolina Rules of Civil Procedure or under G.S. 5A-11 (Criminal contempt). A show cause order alleging failure to comply with a court order and referencing the prior order gives a trial court jurisdiction for the trial court to act, and the show cause order here did so. In the court’s words:

[B]ecause the trial court entered a show cause order requiring defendant to appear in court and explain why she failed to appear in accordance with the subpoena served upon her, it was fully authorized to find her in criminal contempt of court. Gonzalez Slip op. at 9.

(3) An additional argument that the trial court failed to apply the beyond-a-reasonable-doubt standard to her contempt conviction was likewise rejected. The trial court announced in open court its use of that standard but failed to check the appropriate box on the form order. The oral pronouncement was sufficient to indicate the trial court’s application of the correct standard of proof, and the district court’s judgment was therefore affirmed in all respects. Judges Carpenter and Arrowood concurred.

Over a dissent, Court of Appeals finds condition of probation mandating the defendant to have no contact with the custodian of his children proper despite child custody order authorizing visitation

State v. Medlin, ___ N.C. App. ___ (July 6, 2021). The defendant was living in a home owned by his girlfriend’s mother. He and his girlfriend had three children living with the girlfriend’s mother. The defendant exercised limited visitation with the children at the mother’s home pursuant to a child custody order. The mother entrusted a box of jewelry and valuable coins to the defendant, requesting that he store it in a safe within the home. Much of the property from the box was later discovered to be missing or to have been replaced with fake items, with some items having been pawned by the defendant at a local store. The defendant was ultimately convicted at trial of obtaining property by false pretense.

At sentencing, the court ordered that the defendant have no contact with the girlfriend’s mother as a special condition of probation. The defendant challenged that condition on appeal. He argued it conflicted with the child custody and visitation order and was an abuse of discretion. A majority of the Court of Appeals disagreed. Noting that the child custody order was not before the court and was unaffected by this decision, the majority found other avenues to exercise visitation were available to the defendant—a third party could be utilized, or the mother could contact her daughter or the defendant himself to arrange for visitation. The condition of probation only prohibited the defendant from contacting the mother. This condition was reasonably related to the “protection of the victim, the defendant’s rehabilitation, and his compliance with probation.” Medlin Slip op. at 8. The condition was therefore not an abuse of discretion. Any constitutional challenge to the probationary term was not raised at the trial level and was deemed waived on appeal.

Judge Wood dissented. She would have found that the no contact condition was not reasonably related to the defendant’s crime or rehabilitation and would have vacated it as an abuse of discretion.

Defendant was entitled to relief under Grady III where the sole basis of SBM was defendant’s status as a recidivist; trial court lacked jurisdiction to consider SBM at purported “review hearing” where no statute authorized such action and the State failed to file a motion or pleading in the case

State v. Billings, ___ N.C. App. ___ (July 6, 2021). In this Iredell County case, the defendant was convicted of multiple counts of indecent liberties with a minor. He was ordered to enroll in satellite-based monitoring (“SBM”) for life as a recidivist offender. The North Carolina Supreme Court later decided State v. Grady (“Grady III”), 372 N.C. 509, 831 S.E.2d 542 (2019) (holding SBM unconstitutional as applied to recidivist offenders). A “review hearing” of defendant’s SBM enrollment was conducted following that decision. No motion or other pleading was filed by the State for the hearing. The defendant appeared pro se. The State presented a Static-99 risk assessment and recounted the defendant’s criminal record. The trial court ordered that the defendant remain enrolled in the SBM program for life, and the defendant appealed.

No basis for SBM existed in this case other than the defendant’s status as a recidivist. Grady III squarely held that one’s status as a recidivist alone is insufficient to justify SBM. The State argued that the defendant had been provided an opportunity to seek removal from the program at the review hearing, and that the trial court’s order was supported by the evidence. According to the State, the review process rendered the defendant ineligible for relief under Grady III. The court disagreed:

The State did not invoke the jurisdiction of the trial court for the [review] hearing during which Defendant was ostensibly provided with the post hoc process that the State claims disqualifies him from relief under Grady III. The State cannot avoid Grady III . . . by devising a procedure that itself violates Defendant’s rights. Billings Slip op. at 9.

While G.S. 14-208.40A permits the trial court to consider SBM at sentencing, and G.S. 14-208.40B permits a “bring-back” hearing where there has been no prior determination of SBM eligibility, neither of these statutes applied to the defendant’s situation. Further, case law is clear that the State may not seek reconsideration of SBM once the issue has been decided. See State v. Clayton, 206 N.C. App. 301 (2010) (imposition of SBM at probation violation was improper when issue had already been decided against the State at SBM hearing). Without a new reportable conviction, there was no jurisdictional basis for the purported SBM review hearing. The lack of a written motion or pleading also acted to deprive the trial court of jurisdiction.  The SBM order was therefore vacated without prejudice, allowing the State to properly seek a SBM order if it desires.

Judge Tyson wrote separately to concur in result only. He noted that any discussion in the majority opinion beyond its holding that the trial court lacked jurisdiction was dicta.

State failed to show that improperly admitted blood evidence was harmless beyond a reasonable doubt; new trial

State v. Scott, ___ N.C. App. ___ (July 6, 2021). On remand from the North Carolina Supreme Court, this Alamance County case involved a medical blood draw from a defendant suspected of driving while impaired and second-degree murder. The Court of Appeals previously determined that the seizure of the defendant’s medical records without a search warrant violated the defendant’s Fourth Amendment rights but found that the defendant failed to prove prejudice and was not entitled to relief (here). A dissent at the Court of Appeals agreed that the warrantless seizure was a Fourth Amendment violation but disagreed that the defendant was required to show prejudice. The North Carolina Supreme Court unanimously reversed, agreeing with the dissent below. It remanded to that court for application of the correct standard, harmless error, whereby the State has the burden to demonstrate that the error did not affect the validity and fairness of the proceedings beyond a reasonable doubt.

Evidence at trial showed that the defendant was driving recklessly at a high speed and passed another car in a no passing zone, and the defendant admitted as much. The defendant also had prior convictions for impaired driving and speeding. The State argued that this was sufficient to show malice for purposes of second-degree murder even without the blood result. However, the blood result was the only evidence of impairment—there were no signs of impairment at the scene, and no witness could attest that the defendant was impaired. The jury was instructed that it could find malice based on impairment, reckless driving, or speeding. It returned a general verdict and did not specify a theory of malice supporting the murder conviction. While the evidence of speeding, recklessness, and prior convictions were sufficient to survive a motion to dismiss the murder charge, the State here did not establish that the erroneous admission of the blood evidence was harmless beyond a reasonable doubt. The conviction for second degree murder was therefore vacated and the matter remanded for a new trial. Judges Gore and Griffin concurred.

Search warrant affidavit that failed to identify dates or time frame of events did not establish probable cause; trial court erred by considering information outside of the four corners of the warrant

State v. Logan, ___ N.C. App. ___ (July 6, 2021). In this Cleveland County case, police were dispatched to a commercial business around 3 a.m. in response to a noise complaint. Upon arrival, they noticed a strong odor of burning marijuana and loud noises from a party within the building. The property owner-defendant approached police on scene and refused to consent to a search of the property. Officers applied for a search warrant. The defendant was ultimately charged with possession of firearm by felon based on the discovery of firearms inside, along with having obtained the status of habitual felon. He moved to suppress all evidence derived from the search, arguing that the warrant did not establish probable cause, was based on stale information, and was overbroad. Following the denial of his motion, the defendant was convicted of both offenses at trial. The Court of Appeals unanimously reversed.

The affidavit in support of the warrant alleged an investigation at the location and the odor of marijuana but failed to recount any specific time or date of the officer’s observation. This was fatal to a finding of probable cause. In the words of the court:

[W]e agree with Defendant that the affidavit in support of the search warrant application did not provide sufficient facts from which the magistrate could conclude there was probable cause because it did not specify when the purported events occurred nor did it indicate sufficient facts from which the magistrate could reasonably infer the timing of such events . . . Logan Slip op. at 12.

The trial court erred in considering information (the timing of the officer’s observations) not found within the four corners of the warrant. The denial of the motion to suppress was therefore reversed, the convictions vacated, and the matter remanded for a new trial. Because the court determined that the warrant application failed to establish probable cause, it did not consider the defendant’s other arguments regarding the validity of the warrant. Judge Gore and Judge Dillon concurred.


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