Case Summaries: N.C. Court of Appeals (Oct. 19, 2021)
This post summarizes criminal decisions from the North Carolina Court of Appeals published on October 19, 2021. Summaries will also be posted to Smith’s Case Compendium, here.
Improper remarks to the venire regarding race and religious beliefs constituted structural error and required a new trial
State v. Campbell, ___ N.C. App. ___, 2021-NCCOA-563 (Oct. 19, 2021). In this Guilford County case, the trial judge improperly expressed personal opinion and injected a discussion of race in remarks to the venire during jury selection. The defendant was charged with fleeing to elude and obtaining the status of habitual felon, along with other traffic offenses. During jury voir dire, a potential juror indicated that his religious beliefs as a non-denominational Baptist prevented him from judging the defendant. In response, the trial court stated:
Okay. I’m going — we’re going to excuse him for cause, but let me just say this, and especially to African Americans: Everyday we are in the newspaper stating we don’t get fairness in the judicial system. Every single day. But none of us — most African Americans do not want to serve on a jury. And 90 percent of the time, it’s an African American defendant. So we walk off these juries and we leave open the opportunity for — for juries to exist with no African American sitting on them, to give an African American defendant a fair trial. So we cannot keep complaining if we’re going to be part of the problem. Now I grew up Baptist, too. And there’s nothing about a Baptist background that says we can’t listen to the evidence and decide whether this gentleman, sitting over at this table, was treated the way he was supposed to be treated and was given — was charged the way he was supposed to be charged. But if your — your non-denomina[tional] Baptist tells you you can’t do that, you are now excused. Campbell Slip op. at 3.
The defendant was convicted at trial of the most serious offenses and sentenced to a minimum term of 86 months in prison. On appeal, he argued that his right to an impartial judge was violated, resulting in structural error.
To the extent this argument was not preserved at trial or by operation of law, the defendant sought to invoke Rule 2 of the Rules of Appellate Procedure to obtain review. The State joined the request to suspend the normal preservation rules, and a majority of the court agreed to do so. The State further agreed that the trial judge’s comments amounted to structural error, requiring a new trial without regard to any prejudice to the defendant. The majority of the panel again agreed. In its words:
Here, the trial court’s interjection of race and religion could have negatively influenced the jury selection process. After observing the trial court admonish [the excused juror] in an address to the entire venire, other potential jurors—especially African American jurors—would likely be reluctant to respond openly and frankly to questions during jury selection regarding their ability to be fair and neutral, particularly if their concerns arose from their religious beliefs. Id. at 9.
The convictions were therefore vacated, and the matter remanded for a new trial.
Judge Dillon dissented. He would have declined to invoke Rule 2 and would have held that the trial judge’s comments, while inappropriate, did not amount to structural or otherwise reversible error.
Aggravating factors dependent on the same evidence used to support the elements of the offense were improper; plea bargain vacated
State v. Heggs, ___ N.C. App. ___, 2021-NCCOA-564 (Oct. 19, 2021). The defendant pled guilty to felony death by motor vehicle and impaired driving in Wake County pursuant to a plea bargain. He stipulated in the plea transcript to the existence of three factors in aggravation and was sentenced to an aggravated term of imprisonment. On appeal, the defendant argued that the aggravating facts were based on the same evidence supporting the elements of the offenses of conviction. Under G.S. 15A-1340(16)(d), “evidence necessary to support an element of the offense shall not be used to prove any factor in aggravation.” One of the aggravating factors alleged that the defendant was armed with a deadly weapon—the vehicle he was driving—at the time of the offenses. The evidence to support this factor was the same evidence to support the “driving” element of felony death by motor vehicle. Similarly, the aggravating factor that the defendant caused serious and permanent injury to the victim was based only on the victim’s death, another essential element of felony death by motor vehicle. These two aggravating factors therefore violated G.S. 15A-1340(16)(d). A third aggravating factor—that the defendant knowingly created a great risk of death to more than one person by his driving—did not implicate the elements of the offenses and was properly found based on the defendant’s reckless driving and high rate of speed before the collision.
Because the defendant stipulated to the aggravating factors as a part of the plea bargain, the entire plea bargain was vacated, and the matter remanded for new proceedings. According to the unanimous court:
Defendant seeks to repudiate the portion of his agreement with the State in which he stipulated to the existence of aggravating factors while retaining the portions which are more favorable; namely, his plea of guilty to felony death by motor vehicle in exchange for the State’s agreement to not seek an indictment on the charge of second-degree murder. ‘Defendant cannot repudiate in part without repudiating the whole.’ Heggs Slip op. at 10 (quoting State v. Rico, 218 N.C. App. 109, rev’d per curiam for reasons stated in the dissent, 366 N.C. 327 (2012).
(1) No plain error in constructive possession or firearm by felon jury instructions; (2) No plain error in attempted first-degree murder instructions; (3) Year-long delay of defendant’s appeal did not violate due process right to speedy appeal
State v. Neal, ___ N.C. App. ___, 2021-NCCOA-565 (Oct. 19, 2021). The defendant appealed from his Alamance County convictions for attempted murder, discharging a weapon into an occupied vehicle, possession of firearm by felon, and assault with a deadly weapon with intent to kill. The offenses arose from an incident where the defendant and his romantic partner shot at a Child Protective Services worker while the worker was in her car. The partner later pled guilty to various offenses and agreed to testify against the defendant. (1) The defendant argued at trial that possession of firearm by felon requires actual possession and that a constructive possession instruction was improper. The trial court overruled the objection and gave the constructive possession instruction. On appeal, the defendant contended that the evidence did not support an instruction on constructive possession. Reviewing for plain error, the court determined the instructions on constructive possession and possession of firearm by felon were supported by the evidence and properly given. Any potential error from the constructive possession instruction did not impact the verdict, and this argument was rejected.
(2) The defendant also challenged the attempted first-degree murder instruction. Because no objection was made during the charge conference, the issue was again reviewed only for plain error. The instruction told jurors that if they found that the defendant intentionally inflicted harm upon the victim with a deadly weapon, the jurors could infer both an unlawful act and malice by the defendant. Here, the victim was not actually wounded during the shooting, and the defendant argued the instruction was therefore improper. The court again disagreed. The instructions as a whole properly placed the burden of proof on the State, and it was unlikely that any error here had an impact on the verdict. “As the State could not meet its burden of proving that the Defendant intentionally inflicted a wound on [the victim], the jury was not permitted to infer that Defendant acted unlawfully and with malice. We assume the jury followed the court’s instructions.” Neal Slip op. at 17. There was therefore no plain error in the attempted murder instructions.
(3) The defendant’s appeal was delayed for a year due to ten extensions of time for the court reporter to complete the trial transcript. Undue delay of a criminal appeal can create a due process violation. To determine whether a speedy appeal violation has occurred, the court examines the same factors it would in a speedy trial case. See Barker v. Wingo, 407 U.S. 514 (1972). Here, the delay of more than a year was sufficient to trigger the Barker inquiry. However, the court approved each request for extension of time to complete the transcript. The reason for the delay was therefore not attributable to the defendant or the State. The defendant did not assert a speedy appeal claim before filing his brief, and his alleged statements to appellate counsel to expedite the appeal did not count as a formal assertion of the right. Finally, the defendant claimed unique stresses from incarceration during COVID-19 and faded memory as prejudice. The court rejected this argument. The defendant failed to show that any significant and helpful evidence was lost due to his faded memory. Further, the defendant ultimately received the full transcript. This precluded a finding of prejudice. “Acknowledging Defendant’s allegation of stress caused by incarceration during the pandemic, Defendant has failed to show prejudice resulting from the delay.” Neal Slip op. at 21. There was therefore no due process violation, and the convictions were unanimously affirmed in full.
(1) Trial court did not err by failing to sua sponte order a third competency evaluation; (2) Ineffective assistance of counsel claim dismissed without prejudice for development of the record in post-conviction
State v. Sander, ___ N.C. App. ___, 2021-NCCOA-566 (Oct. 19, 2021). The defendant was convicted of three counts of first-degree murder at trial in Wake County. The defendant had a history of mental illness and had been involuntarily committed in the past. After he was charged with the murders, the defendant was observed by a forensic psychiatrist at a mental hospital. While the defendant initially exhibited some bizarre symptoms—some of which the treatment team believed to be evidence of malingering—his behavior improved after some time. Defense counsel arranged for a formal competency evaluation, which determined the defendant to be capable of standing trial. Once the defendant was returned to county jail from the hospital, he began accusing the lead defense attorney in his case of conspiring to have him convicted and making other fantastic allegations. A second competency evaluation was ordered. The evaluator found that, while the defendant was making “poor choices” and exhibiting “self-sabotaging” behavior, the defendant remained capable of rational thinking and was competent to stand trial.
Prior to trial, a third competency evaluation was sought, but defense attorneys conceded they had no new evidence in support of the request. The request was denied. Throughout jury selection, the defendant repeatedly interrupted the proceedings with outbursts and accusations over the course of several days and had to be shackled. He also sought to disqualify his lead defense attorney (which the trial court denied). Prior to opening statements, defense counsel notified the judge that they were not sure whether to give an opening statement, as the defendant had refused to work with them to decide on strategy. After a recess and an opportunity for the defendant to consult with defense counsel, defense counsel gave an opening statement. The defendant’s interruptions continued during the State’s case-in-chief, and he had to be removed from the courtroom. The defendant was convicted of all three murders.
During the penalty phase, defense evidence showed that the defendant could be exaggerating his mental illness or malingering, or that he was in fact doing so. The jury recommended life imprisonment, and the court ordered the defendant to serve consecutive life without parole terms for each count.
The record was not clear on whether the defendant gave oral notice of appeal in open court following the judgment, and a written notice of appeal filed by trial counsel failed to identify the file numbers of two of the charges, among other defects. In its discretion, the Court of Appeals granted the defendant’s petition for writ of certiorari to review the matter.
(1) The trial court did not err in failing to sua sponte order a third competency evaluation based on the defendant’s behavior at trial. The second competency evaluation was performed to address concerns that the defendant was unable to work with his attorneys, and it determined that the defendant had the capacity to work with his attorneys if he so desired. The beliefs and behaviors of the defendant leading to the second evaluation were the same behaviors he exhibited at trial and did not warrant sua sponte intervention by the trial court. According to the court:
“. . . Defendant’s refusal to work with his counsel at trial, his belief he was being framed by them, and his aggression in the courtroom was not new conduct. Instead, these behaviors were the subject of a previous evaluation that determined him competent. As such, these facts do not suggest a change in competency warranting a sua sponte hearing under our caselaw. Sander Slip op. at 17.
Further, the defendant’s behaviors (however odd) indicated that he understood the allegations and evidence against him and showed that he meant to deny the charges. There was therefore no error in failing to sua sponte order a third competency evaluation.
(2) The defendant claimed that his attorneys struck certain jurors that he wanted to keep and argued that the record showed an impasse between the defendant and his attorneys on this point. The court disagreed that an impasse between counsel and the defendant was apparent on the cold record. The court dismissed this claim without prejudice, allowing the defendant to pursue this issue via a motion for appropriate relief if he desires.
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