Case Summaries: N.C. Court of Appeals (June 6, 2023)

Published for NC Criminal Law on June 08, 2023.

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on June 6, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Trial court properly denied request for instruction on lesser-included offense of second-degree murder; defendant’s requested jury instruction on adolescents was properly denied; no error when allowing jury to view recorded interview of witness under Rule 803(5).

State v. Smith, COA22-719, ___ N.C. App. ___ (June 6, 2023). In this Buncombe County case, defendant appealed his conviction for first-degree murder, arguing five separate errors by the trial court and contending the cumulative prejudice of those errors entitled him to a new trial. The Court of Appeals found no error.

In June of 2017, the victim was shot in the parking lot of an apartment complex in Asheville by a man in a black hoodie. At the time of the shooting, defendant was sixteen years of age. A witness from the scene later identified defendant as the man in the hoodie, picking his photograph out of a selection of potential subjects. The witness also gave a written statement of the events to detectives. Another witness, defendant’s cousin, also identified him as the shooter during a recorded interview with detectives. At trial, both witnesses were called to testify. Defendant’s cousin testified she was unable to recall the events around the shooting, and the prosecutor moved to have the recording of her interview played for the jury under Rule of Evidence 803(5). Over defense counsel’s objection, the trial court permitted playing the video. The detectives also testified regarding the interviews of both witnesses. Defendant was subsequently convicted and appealed.

Defendant argued the first error was a failure to instruct the jury on the lesser-included offense of second-degree murder. The Court of Appeals disagreed, explaining that the prosecution had proven each element of first-degree murder, and no evidence was admitted negating any element. Walking through defendant’s points, the court noted (1) despite defendant’s claim that he used marijuana earlier in the day of the shooting, voluntary intoxication only negated specific intent if the defendant was intoxicated at the time the crime was committed; (2) no case law supported the argument that defendant’s age (16 years old) negated the elements of first-degree murder; (3) provocation by a third party could not excuse defendant’s actions towards the victim; and (4) defendant’s statement to a witness that he was “angry” at the victim but only intended to fight him did not prevent a finding of premeditation and deliberation where no evidence was admitted to show his anger reached a level “such as to disturb the faculties and reason.” Slip Op. at 19.

The second error alleged by defendant was a special jury instruction requested by defense counsel on intent, premeditation, and deliberation for adolescents. The court explained that while defense counsel’s requested instruction might be supported by scientific research, no evidence was admitted on adolescent brain function, and “[d]efendant’s age is not considered nor contemplated in the analysis of premeditation and deliberation, therefore, this instruction would be incorrect and likely to mislead the jury.” Id. at 22.

The third alleged error was playing the interview video and introducing the photo lineup identification provided by defendant’s cousin. Defendant argued she did not testify the events were fresh in her mind at the time of the recording, and the interview and lineup did not correctly reflect her knowledge of the shooting. The court disagreed with both arguments, explaining that the trial court found the recording was made two days after the shooting and concluded it was fresh in her memory. The court also explained that the witness did not disavow her statements, and provided a signature and initials on identification paperwork, justifying a finding that her testimony and identification were correct. Defendant also argued that admitting the interview and identification were improper under Rule of Evidence 403. The court disagreed, explaining that the interview was highly probative of defendant’s motive, outweighing the danger of unfair prejudice.

Considering the fourth alleged error, that the identification evidence from the first witness was tainted by impermissibly suggestive interview techniques by the detectives, the court noted that defendant did not present arguments as to why the procedures were unnecessarily suggestive. Although defendant did not properly argue the first step of the two-step determination process for impermissibly suggestive techniques, the court addressed the second step of the analysis anyway, applying the five-factor test from State v. Grimes, 309 N.C. 606 (1983), to determine there was no error in admitting the witness’s identification of defendant. Slip Op. at 31.

Finally, the court considered defendant’s argument that it was error to permit the detectives to offer improper lay opinions about the witnesses’ “forthcoming” and “unequivocal” participation in identifying defendant. Id. at 32. Defendant failed to object at trial, so the court applied a plain error standard to the review. The court did not believe that the statements were comments on the witnesses’ credibility, but even assuming that admission was error, the court concluded that admission was not plain error due to the other evidence of guilt in the record. Because the court found no error in any of the five preceding arguments, the court found no cumulative prejudice justifying a new trial.

Judge Murphy concurred, but concurred in result only for Parts II-E (Detective’s Statements) and II-F (Cumulative Prejudice). Id. at 35.

South Carolina conviction for larceny in 2005 properly served as a predicate offense for habitual felon status, despite changes to the statute rendering the offense not a felony in 2010.

State v. Hefner, COA22-435, ___ N.C. App. ___ (June 6, 2023). In this Jackson County case, defendant appealed his sentence as a habitual felon, arguing that his South Carolina conviction for larceny could not serve as a predicate conviction for habitual felon purposes as the statute in question no longer classifies the crime as a felony. The Court of Appeals disagreed, finding no error.

Defendant came to trial for stealing a TV from Wal-Mart in May of 2021. After being found guilty of felony larceny and possession of stolen goods, the trial proceeded to the habitual felon phase. The prosecution offered evidence of defendant’s 2005 conviction in South Carolina for grand larceny. Defense counsel objected during the charge conference that the South Carolina code did not refer to the crime as a felony but was overruled; the trial court instructed the jury with the habitual felon status pattern jury instruction, using “crime” to refer to the 2005 conviction instead of “felony” at the request of the prosecutor. Defendant was convicted of habitual felon status and appealed.

The Court of Appeals first noted that the South Carolina larceny statute in question was changed in June of 2010 and the offense is no longer a felony, but the relevant consideration was the status of the offense at the time defendant was convicted. The court then explained that G.S. 14-7.1(b)(3) provides a mechanism for classifying crimes as felonies in states that do not explicitly refer to crimes as felonies or misdemeanors. To incorporate this mechanism, the pattern jury instruction in question was changed to permit the use of “felony” or “crime.” Slip Op. at 8-9. Even if the use of “crime” in the present case was erroneous, the court held that the jury had ample evidence to determine the South Carolina conviction was a felony due to the evidence of defendant’s conviction and the 2005 version of the statute in effect when he was convicted. The court likewise dismissed defendant’s arguments that no substantial evidence of his felony conviction was admitted and that the indictment for habitual felon status was fatally flawed.

Trial court properly declined to reopen voir dire after questioning juror who expressed confusion that other jurors were asked questions not asked of her.

State v. Gidderon, COA22-681, ___ N.C. App. ___ (June 6, 2023). In this Guilford County case, defendant appealed his conviction for first-degree murder, arguing an abuse of discretion when the trial court declined to reopen voir dire of a juror who expressed concerns about the questions asked to other jurors but not her. The Court of Appeals found no abuse of discretion.

After jury selection but before impaneling of the jury, Juror Number 6 expressed concerns to court deputies that she was not asked the same questions as other jurors during voir dire. One of the deputies brought the issue to the trial court’s attention, and the trial court called the juror in open court to ask her several questions. The court asked the juror “your concern is that some questions were asked of some jurors that perhaps were not asked of other jurors?” to which she replied, “yes.” The trial court went on to ask “[a]nd whatever this information is that you were not provided perhaps because the specific question was not asked, in your opinion, does not affect your ability to be fair; is that correct?” to which the juror responded “I don’t think so.” Slip Op. at 4. After this exchange, the trial court impaneled the jury.

Examining the trial court’s actions, the Court of Appeals first noted that the trial court possessed discretion to conduct an inquiry into the juror’s comments, and turned to State v. Boggess, 358 N.C. 676 (2004), and State v. Adams, 285 N.C. App. 379 (2022) to establish the standards applicable to the inquiry. Looking at the substance of the inquiry, the court explained that “Juror Number 6 never expressed doubts about her impartiality, ability to serve as a juror, find the facts, and to fairly apply the law.” Slip Op. at 9. Defense counsel also failed to make any further request, as the court explained:

The trial court provided counsel on both sides with the opportunity to request further voir dire, and both parties’ counsel expressly declined the opportunity. Defense counsel also failed to request additional voir dire when asked by the trial court and waived the right to challenge the issue on appeal.

Id. As a result, the court found no abuse of discretion in the actions of the trial court.

Defendant who offered to act as financial advisor to victim and accepted check for $17,500 did not act as a bailee for purposes of conversion of property by bailee.

State v. Storm, COA22-685, ___ N.C. App. ___ (June 6, 2023). In this Guilford County case, defendant appealed his conviction for felony conversion of property by bailee, arguing he did not qualify as a bailee under the law. The Court of Appeals agreed, vacating the judgment.

In 2017, defendant accepted a check for $17,500 from an acquaintance (the alleged victim), and promised to invest the money on her behalf. Defendant had previously told the acquaintance that he was a financial advisor, and the agreement to invest the money was memorialized in a promissory note between the parties. After several months, defendant stopped responding to the victim’s communications about the money. The victim reported the issue to the Greensboro Police Department, and a detective conducted an investigation, including an interview with defendant. The investigation determined that defendant had never created an investment account for the money, and defendant no longer had the funds. Defendant was tried in February of 2022 for several charges, but after the trial court dismissed a computer access charge and an embezzlement charge, he was only convicted of felony conversion of property by bailee.

Taking up defendant’s argument that he was not a bailee, the Court of Appeals first looked to the language of G.S. 14-168.1 and relevant caselaw. The court noted that “[t]raditionally, the object of bailment is a specific item of real property,” and that older North Carolina caselaw used the term “chattel” in this context. Slip Op. at 7. Normally the court would look for a relationship where a bailee controlled property for a limited purpose and had agreed to return that specific property. Because the nature of a bailment agreement is usually one party holding and returning a specific item of property (in the same or some altered form), money is not normally the subject of bailment. Caselaw supported the principle that “whether a bailment relationship has been created with respect to money depends on whether the agreement requires the use of ‘exact funds’ as opposed to treating the money as fungible.” Id. at 9. Here, the financial advisor relationship did not satisfy that test, as “[d]efendant was neither obligated nor expected to return the exact check given to him,” and “he was entrusted with a complex series of decisions concerning the investment of the funds as a fungible asset.” Id. at 11. Because defendant was not a bailee, he could not be convicted under the applicable statute.

Judge Arrowood concurred in the judgment only by separate opinion, recommending the Supreme Court of North Carolina revisit the concept of bailment and the return of “exact funds.” Id. at 12.

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