Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

About

This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Instructions

Navigate using the table of contents to the left or by using the search box below. Use quotations for an exact phrase search. A search for multiple terms without quotations functions as an “or” search. Not sure where to start? The 5 minute video tutorial offers a guided tour of main features – Launch Tutorial (opens in new tab).

E.g., 02/17/2018
E.g., 02/17/2018

The Court of Appeals failed to recognize its discretion under Rule 2 of Rules of Appellate Procedure to refrain from undertaking a review of the defendant’s fatal variance claim, apparently acting under the erroneous belief that it was required to reach the merits of the claim. The defendant was found guilty of felony larceny. On appeal, he asserted in part that the trial court erred by failing to dismiss the larceny charge due to a fatal variance with respect to ownership of the property. Because counsel failed to raise the issue at trial, the defendant sought review under Rule 2. Noting that a previous panel of the court had invoked that Rule to review a fatal variance issue, the Court of Appeals, without further discussion or analysis, addressed the merits of the defendant’s argument, finding a fatal variance and vacating the larceny convictions. The State petitioned the Supreme Court for discretionary review on the issue of whether the Court of Appeals erred by invoking Rule 2 under the circumstances of the case. The Supreme Court noted that Rule 2 relates to the residual power of the appellate courts to consider “in exceptional circumstances” significant issues. Whether a case warrants application of Rule 2 must be determined based on a case-by-case basis and “precedent cannot create an automatic right to review via Rule 2.” Here, the Court of Appeals erroneously believed that a fatal variance issue automatically entitled the defendant to appellate review under Rule 2. In so doing, it failed to recognize its discretion to refrain from undertaking such a review. The court reversed and remanded to the Court of Appeals “so that it may independently and expressly determine whether, on the facts and under the circumstances of this specific case, to exercise its discretion to employ Rule 2” to reach the merits of the defendant’s claim.

In a drug case in which the court of appeals had held that a strip search of the defendant did not violate the fourth amendment, State v. Collins, ___ N.C. App. ___, 782 S.E.2d 350 (2016), the Supreme Court affirmed solely on the ground that because the defendant failed to raise in the trial court the timing of the officer’s observation of powder on the floor, he failed to preserve that issue on appeal. The defendant had argued in the court of appeals that because the officer did not see the powder until after the search, the trial court was barred from considering the officer’s observation in ruling on the defendant’s suppression motion. The court of appeals determined that because the defendant failed to raise the timing of the officer’s observation at the hearing on his motion to suppress, the issue was not properly before the appellate court.

State v. Howard, 367 N.C. 320 (Mar. 7, 2014)

The court affirmed per curiam the decision below in State v. Howard, 228 N.C. App. 103 (June 18, 2013) (over a dissent, the court dismissed the defendant’s appeal where the defendant objected to the challenged evidence at trial under Rule 403 but on appeal argued that it was improper under Rule 404(b); the court stated: “A defendant cannot ‘swap horses between courts in order to get a better mount’“; the dissenting judge believed that the defendant preserved his argument and that the evidence was improperly admitted).

Because the defendant never asserted a constitutional double jeopardy violation before the trial court, he failed to preserve the issue for appellate review. However, to prevent manifest injustice, the court invoked Rule 2 and addressed the merits of the defendant’s claim.

(1) Because the defendant did not challenge, at the trial level, the sufficiency of the evidence with respect to aiding and abetting, he waived appellate review of that issue. The defendant made several specific arguments when moving to dismiss the relevant charges for insufficient evidence, but did not challenge the State’s aiding and abetting theory.

(2) Because the defendant did not assert, at the trial level, the specific assertion made on appeal with respect to the sufficiency of the evidence as to a conviction for obtaining property by false pretenses, the issue was waived on appeal. At trial, the defendant challenged only the amount of property obtained. On appeal, he asserted that the evidence was insufficient because the State failed to establish that he obtained any item of value.

A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.

A defendant who fails to move to dismiss in the trial court on grounds of fatal variance waives the issue for purposes of appeal.

Because the defendant did not present any constitutional argument before the trial court, he waived appellate review of whether his Fourth Amendment rights were violated when the trial court allowed the State to retrieve location information from his cell phone without a search warrant. The court concluded: “Defendant’s only argument before the trial court was that law enforcement did not have sufficient evidence to support issuance of the pen register order. The trial court ruled on this issue only, and this is the only argument we may consider on appeal.”

Because the defendant failed to raise the issue before the trial court, the court declined to address the defendant’s argument that his consent to search the car was not voluntary.

(1) By failing to object at trial to the trial court’s handling of a juror’s inquiry about whether jurors may question witnesses, the defendant failed to preserve the issue for appellate review.

(2) The court declined to invoke its discretionary authority under Appellate Rule 2 to suspend the issue-preservation requirements of Appellate Rule 10 and review the issue on the merits, concluding that the defendant had failed to demonstrate that the case was a rare one meriting suspension of the rules.

The defendant waived his right to direct appeal review of any fourth amendment challenge to the trial court’s order requiring him to enroll in a satellite-based monitoring for life, by failing to raise the constitutional challenge at trial. The court declined to invoke Rule 2 to issue a writ of certiorari to review the defendant’s unpreserved argument.

The defendant failed to preserve for appellate review his contention that the trial court erred by denying defense counsel’s motion to dismiss a charge of second-degree murder. Although the defendant made a motion to dismiss the charge of first-degree murder, he neither moved to dismiss the second-degree murder charge nor argued insufficiency of the evidence to establish that offense. 

Reconciling conflicting cases, the court held that the requirements of North Carolina Rule of Appellate Procedure 10(a)(1) apply to sentencing hearings. The court went on to hold that the defendant waived any argument that the sentencing hearing should not have been conducted at that particular time or in front of that particular judge, by failing to either object to the commencement of the hearing or request a continuance of that hearing. The court also held that by failing to object to trial as required by Rule 10(a)(1), the defendant waived her argument that imposition of consecutive sentences of 70 to 93 months on a 72-year-old first offender for single drug transaction violated her eighth amendment rights. Assuming arguendo that the defendant preserved her argument that the trial court abused its discretion in sentencing her to two consecutive sentences and only consolidating the third conviction for sentencing, the court rejected the defendant’s claim on appeal, finding that she failed to show the sentence imposed constituted an abuse of discretion.

Because the defendant made no motion to dismiss at trial based on insufficiency of the evidence with respect to aiding and abetting, the defendant waived appellate review of this issue. For the same reason, the defendant waived his argument that because he obtained nothing of value, the evidence was insufficient to sustain his conviction for obtaining property by false pretenses.

Because the defendant did not assert at the trial level that the officer made false statements in his affidavit supporting a search warrant, that issue was not preserved for appellate review. 

Where the defendant did not move for a mistrial or request any additional action by the trial court in response to alleged misconduct by the child victim’s father, the defendant failed to preserve for appellate review a claim that the trial court erred by failing to declare a mistrial sua sponte in response to that conduct.

The court declined to consider the defendant’s argument that his motion to suppress a warrantless blood draw should have been granted because his Fourth Amendment rights were violated where the only ground the defendant asserted with respect to that motion at trial was a violation of G.S. 20-16.2. 

In this multi-count assault and attempted murder case, because the defendant failed to challenge the sufficiency of the evidence as to the intent elements of the challenged convictions in the trial court, the issue was not preserved for appellate review. The court concluded: “Because defense counsel argued before the trial court the sufficiency of the evidence only as to specific elements of the charges and did not refer to a general challenge regarding the sufficiency of the evidence to support each element of each charge, we hold Defendant failed to preserve the issues of the sufficiency of the evidence as to the other elements of the charged offenses on appeal.”

In this child sexual assault case, because the defendant did not make an offer of proof to show what the victim’s responses to questions about her past sexual behavior would have been, he failed to preserve for appellate review whether he should have been allowed to question the victim regarding her general sexual history (a Rape Shield issue).

State v. China, ___ N.C. App. ___, 797 S.E.2d 324 (Feb. 21, 2017) temp. stay granted, ___ N.C. ___, 797 S.E.2d 303 (Mar 27 2017)

The defendant failed to preserve for appellate review a challenge to the admission of evidence at trial concerning the defendant’s previous incarceration. Although the defendant objected to the admission of the evidence during a hearing outside of the jury’s presence, he did not subsequently object when the evidence was actually introduced at trial. Thus the defendant failed to preserve for appellate review the trial court’s decision to admit this evidence.

In this drug trafficking case, the defendant did not preserve for appellate review his argument that the trial court erred by denying his motion to suppress in-court and out-of-court identifications. The trial court denied the defendant’s pretrial motion to suppress, based on alleged violations of the Eyewitness Identification Reform Act (EIRA), concluding that the current version of the EIRA did not apply to the defendant’s case because the statute came into force after the identification at issue. When the relevant evidence was offered at trial, the defendant did not object. It is well-settled that a trial court’s evidentiary ruling on a pretrial motion to suppress is not sufficient to preserve the issue of admissibility for appeal unless the defendant renews the objection during trial. The court rejected the defendant’s argument that he could raise the issue on appeal because the trial court failed to apply a statutory mandate in the EIRA and that violations of statutory mandates are preserved without the need for an objection at trial. It concluded that the trial court did not violate any statutory mandate because the mandates of the statute only arise if the court determines that the EIRA applies to the case in question.

In this child sexual assault case, the defendant failed to preserve the argument that the trial court committed prejudicial error by allowing the State’s expert witness to testify that she diagnosed the child with PTSD, thus improperly vouching for the witness. At trial, the defendant did not object to the expert’s testimony on the basis that it impermissibly vouched for the child’s credibility or the veracity of the sexual abuse allegations; rather, his objection was grounded on the fact that a licensed clinical social worker is not sufficiently qualified to give an opinion or diagnosis regarding PTSD.

By failing to properly object at trial, the defendant did not properly preserve for appeal the issue of whether the trial court abused its discretion by admitting lay opinion testimony identifying the defendant in surveillance footage and in a photograph.

Where the State’s witness testified regarding statements made to the victim by the victim’s brother and the defendant failed to move to strike the testimony, the defendant failed to preserve the issue for appellate review.

By failing to object to the omission of diminished capacity and voluntary intoxication from the trial court’s final mandate to the jury instructions on murder, the defendant failed to preserve this issue for appellate review. The trial court had instructed on those defenses per the pattern instructions. The defendant never requested that the final mandate for murder include voluntary intoxication and diminished capacity. The court went on to reject the defendant’s argument that this constituted plain error.

The court determined that it need not address the substance of the defendants’ challenge to the trial court’s order denying their suppression motions where the argument asserted was not advanced at the suppression hearing in the trial court.

Under G.S. 15A-1444, the defendant did not have a right to appeal whether his guilty plea was knowing and voluntary. The defendant argued that his plea was invalid based on the trial court’s assurance that he could appeal the denial of his motion to dismiss. However, considering the defendant's petition for writ of certiorari, the court exercised its discretion to invoke Rule 2 to suspend the Rules and address the merits of the defendant’s appeal.

In a case where the defendant argued, and the State conceded, that certain indictments were fatally defective, the court held that the defendant had no right under G.S. 15A-1444 to appeal his conviction, entered upon a plea of guilty. Nor had he asserted any grounds under Appellate Rule 21 for the court to issue a writ of certiorari. However, the court exercised its discretionary authority under Appellate Rule 2 to suspend the requirements of the appellate rules and issue a writ of certiorari, finding that manifest injustice would occur if the convictions were allowed to stand on charges for which the trial court lacked jurisdiction to impose sentence.

A drug trafficking defendant who pled guilty and was sentenced pursuant to a plea agreement had no right to appeal the sentence, which was greater than that allowed by the applicable statute at the time. G.S. 15A-1444 allows for appeal after a guilty plea for terms that are unauthorized under provisions of Chapter 15A; the drug trafficking defendant here was sentenced under Chapter 90. However, the court went on to find that the defendant’s plea was invalid.

Where the defendant entered a guilty plea and did not assert an issue identified in G.S. 15A-1444(a2), he did not have a statutory right to appeal.

State v. Shaw, 236 N.C. App. 453 (Sept. 16, 2014)

The defendant had no statutory right to appeal from a guilty plea to DWI where none of the exceptions to G.S. 15A-1444(e) applied.

Although the State had a right to appeal the trial court’s order dismissing charges because of a discovery violation, it had no right to appeal the trial court’s order precluding testimony from two witnesses as a sanction for a discovery violation. 

BIn a decision replacing the court’s original opinion, issued on September 19, 2017, the court held that the State has no statutory right to appeal an order of expunction made pursuant to G.S. 15A-145.5 and it granted the petitioner’s motion to dismiss the appeal. The State appealed from a trial court order granting petitions for expunction pursuant to G.S. 15A-145.5 and -146. On appeal, the State challenged only the portion of the trial court’s order granting the petition for expunction pursuant to G.S. 15A-145.5. The court rejected the State’s argument that it had jurisdiction over the appeal under G.S. 7A-27, concluding that G.S. 15A-1445 determines its jurisdiction because the trial court’s expunction order pursuant to G.S. 15A-145.5 is part of a criminal proceeding. The court then reasoned that because G.S. 15A-1445 “clearly does not include any reference to a right of the State to appeal from an order of expunction under N.C. Gen. Stat. § 15A-145.5, we are compelled to conclude that the General Assembly did not intend to bestow such a right at the time the statute was adopted.” The court went on to note that it has, on occasion, reviewed expunctions pursuant to the granting of a petition for writ of certiorari. Here, the State filed such a petition only after the original opinion was issued; the court reviewed the petition and in its discretion denied it.

The Court of Appeals had subject-matter jurisdiction to review, pursuant to the State’s petition for writ of certiorari, a trial court’s grant of its own motion for appropriate relief (MAR). The defendant pleaded guilty to rape of a child by an adult offender and to sexual offense with a child by an adult offender, both felonies with mandatory minimum sentences of 300 months. Pursuant to a plea arrangement, the trial court consolidated the convictions for judgment and imposed a single active sentence of 300 to 420 months. The trial court then immediately granted its own MAR and vacated the judgment and sentence. It concluded that, as applied to the defendant, the mandatory sentence violated the Eighth Amendment; the court resentenced the defendant to 144 to 233 months. The State petitioned the Court of Appeals for a writ of certiorari to review the trial court’s MAR order. The defendant responded, arguing that under State v. Starkey, 177 N.C. App. 264, the court of appeals lacked subject-matter jurisdiction to review a trial court’s sua sponte grant of a MAR. The Court of Appeals allowed the State’s petition and issued the writ. The Court of Appeals found no Eighth Amendment violation, vacated the defendant’s sentence and the trial court’s order granting appropriate relief, and remanded the case for a new sentencing hearing. See State v. Thomsen, ___ N.C. App. ___, ___, 776 S.E.2d 41, 48 (2015). Before the supreme court, the parties disagreed on whether the trial court’s sua sponte motion was pursuant to G.S. 15A-1415(b) (defendant’s MAR) or G.S. 15A-1420(d) (trial court’s sua sponte MAR). The court found it unnecessary to resolve this dispute, holding first that if the MAR was made under G.S. 15A-1415, State v. Stubbs, 368 N.C. 40, 42-43, authorized review by way of certiorari. Alternatively, if the MAR was made pursuant to G.S. 1420(d), G.S. 7A-32(c) gives the Court of Appeals jurisdiction to review a lower court judgment by writ of certiorari, unless a more specific statute restricts jurisdiction. Here, no such specific statute exists. It went on to hold that to the extent Starkey was inconsistent with this holding it was overruled.

In a case where the defendant argued, and the State conceded, that certain indictments were fatally defective, the court held that the defendant had no right under G.S. 15A-1444 to appeal his conviction, entered upon a plea of guilty. Nor had he asserted any grounds under Appellate Rule 21 for the court to issue a writ of certiorari. However, the court exercised its discretionary authority under Appellate Rule 2 to suspend the requirements of the appellate rules and issue a writ of certiorari, finding that manifest injustice would occur if the convictions were allowed to stand on charges for which the trial court lacked jurisdiction to impose sentence.

Under G.S. 15A-1444(e) the defendant had a right to seek the issuance of a writ of certiorari to obtain appellate review of a sentencing proceeding conducted upon his entry of a guilty plea and the court had jurisdiction to issue the writ. The court held that Appellate Rule 21 did not require a holding to the contrary, noting that a defendant’s statutory right to seek issuance of a writ is not abridged by Rule 21.

State v. Ledbetter, ___ N.C. App. ___, 794 S.E.2d 551 (Dec. 6, 2016) temp. stay granted, ___ N.C. ___, 794 S.E.2d 527 (Dec 22 2016)

On remand for reconsideration in light of State v. Thomsen, __ N.C. __, 789 S.E.2d 639 (2016), and State v. Stubbs, 368 N.C. 40 (2016), the court held that the defendant’s petition for writ of certiorari to review the denial of her motion to dismiss, prior to her guilty plea, did not assert any of the procedural grounds set forth in Rule 21 of the Appellate Rules to issue the writ. Noting that the issue was not a jurisdictional one, the court explained that it was without a procedural process under either Rule 1 or 21 to issue the discretionary writ without invoking Rule 2. It went on to decline to invoke Rule 2 to suspend the requirements of the appellate rules.

Because the provisions of Rule 21 of the Rules of Appellate Procedure prevail over G.S. 15A-1444(e), that rule provides the only circumstances where the court can issue a writ of certiorari: when the defendant lost the right to appeal by failing to take timely action; when the appeal is interlocutory; or when the trial court denied the defendant’s motion for appropriate relief. Here, none of those circumstances applied. One judge on the panel concurred only in the result.

State v. Hester, 367 N.C. 119 (Oct. 4, 2013)

The court per curiam affirmed the decision below, State v. Hester, 224 N.C. App. 353 (Dec. 18, 2012), which had held, over a dissent, that the defendant’s first asserted issue must be dismissed because although he argued plain error, he failed provide an analysis of the prejudicial impact of the challenged evidence.

In this attempted murder and assault case, any error with respect to admission of testimony regarding gangs was invited. In his motion in limine, the defendant expressly requested that the trial court either exclude all evidence pertaining to gangs or in the alternative allow cross-examination on the subject. The trial court granted the alternative relief sought and the defendant himself cross-examined and elicited testimony with respect to gangs.

State v. Clonts, ___ N.C. App. ____, 802 S.E.2d 531 (June 20, 2017) temp. stay granted, ___ N.C. ___, 800 S.E.2d 668 (Jul 7 2017)

The trial court did not err by failing to instruct the jury on imperfect self-defense and imperfect defense of others where the defendant did not request that the trial court give any instruction on imperfect self-defense or imperfect defense of others. In fact, when the State indicated that it believed that these defenses were not legally available to the defendant, defense counsel agreed with the State. The defendant cannot show prejudice from invited error.

State v. Langley, ___ N.C. App. ____, 803 S.E.2d 166 (June 20, 2017) review granted, ___ N.C. ___, 805 S.E.2d 483 (Nov 1 2017)

Although juror misconduct occurred, the defendant’s challenge failed because the error was invited. After it was reported to the judge that a juror did an internet search of a term used in jury instructions, the judge called the jurors into court and instructed them to disregard any other information and to follow the judge’s instructions. When the defendant moved for mistrial, the trial court offered to continue the inquiry, offering to interview each juror. The defendant did not respond to the trial judge’s offer. The court held: “Defendant is not in a position to repudiate the action and argue that it is grounds for a new trial since he did not accept the trial court’s offer to continue the inquiry when the judge offered to do so. Therefore, if any error took place, Defendant invited it.”

State v. Carter, 366 N.C. 496 (Apr. 12, 2013)

The court reversed the decision below in State v. Carter,216 N.C. App. 453 (Nov. 1, 2011) (in a child sexual offense case, the trial court committed plain error by failing to instruct on attempted sexual offense where the evidence of penetration was conflicting), concluding that the defendant failed to show plain error. The court held that when applying the plain error standard

[t]he necessary examination is whether there was a “probable impact” on the verdict, not a possible one. In other words, the inquiry is whether the defendant has shown that, “absent the error, the jury probably would have returned a different verdict.” Thus, the Court of Appeals’ consideration of what the jury “could rationally have found,” was improper.

Slip Op at 7 (citations omitted). Turning to the case at hand, the court found even if the trial court had erred, the defendant failed to show a probable impact on the verdict.

State v. Towe, 366 N.C. 56 (June 14, 2012)

The court modified and affirmed State v. Towe, 210 N.C. App. 430 (Mar. 15, 2011) (plain error to allow the State’s medical expert to testify that the child victim was sexually abused when no physical findings supported this conclusion). The court agreed that the expert’s testimony was improper but held that the court of appeals mischaracterized the plain error test. The court of appeals applied a “highly plausible that the jury could have reached a different result” standard. The correct standard, however, is whether a fundamental error occurred that “had a probable impact on the jury’s finding that the defendant was guilty.” Applying that standard, the court found it satisfied.

State v. Lawrence, 365 N.C. 506 (Apr. 13, 2012)

Reaffirming its decision in State v. Odom, 307 N.C. 655, 660 (1983), the court clarified “how the plain error standard of review applies on appeal to unpreserved instructional or evidentiary error.” It stated:

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error “had a probable impact on the jury’s finding that the defendant was guilty.” Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

(citations omitted). Applying that rule to the case at hand, the court held that the court of appeals applied the incorrect formulation of the plain error standard in State v. Lawrence, 210N.C. App. 73 (Mar. 1, 2011) (holding that the trial judge committed plain error by failing to instruct the jury on all elements of conspiracy to commit armed robbery). Although the trial judge erred (the judge instructed the jury that armed robbery involved a taking from the person or presence of another while using or in the possession of a firearm but failed to instruct on the element of use of the weapon to threaten or endanger the life of the victim), the error did not rise to the level of plain error.

Plain error review is not available for a claim that the trial court erred by requiring the defendant to wear prison garb during trial. Plain error is normally limited to instructional and evidentiary error.

State v. Oates, 366 N.C. 264 (Oct. 5, 2012)

The court reversed State v. Oates, 215 N.C. App. 491 (Sept. 6, 2011), and held that the State’s notice of appeal of a trial court ruling on a suppression motion was timely. The State’s notice of appeal was filed seven days after the trial judge in open court orally granted the defendant’s pretrial motion to suppress but three months before the trial judge issued his corresponding written order of suppression. The court held that the window for filing a written notice of appeal in a criminal case opens on the date of rendition of the judgment or order and closes fourteen days after entry of the judgment or order. The court clarified that rendering a judgment or an order means to pronounce, state, declare, or announce the judgment or order and is “the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy.” Entering a judgment or an order is “a ministerial act which consists in spreading it upon the record.” It continued:

For the purposes of entering notice of appeal in a criminal case . . . a judgment or an order is rendered when the judge decides the issue before him or her and advises the necessary individuals of the decision; a judgment or an order is entered under that Rule when the clerk of court records or files the judge’s decision regarding the judgment or order.

(No. COA13-661). The court denied the defendant’s motion to strike the State’s brief, which was filed in an untimely manner without any justification or excuse and after several extensions of the time within which it was authorized to do so had been obtained. However, the court “strongly admonished” counsel for the State “to refrain from engaging in such inexcusable conduct in the future” and that counsel “should understand that any repetition of the conduct disclosed by the present record will result in the imposition of significant sanctions upon both the State and himself personally.”

The court rejected the defendant’s argument that she was entitled to a new trial due to the lack of a trial transcript. After being given numerous extensions, the court reporter failed to produce a trial transcript. The defendant claimed this failure violated her right to effective appellate review, effective assistance of counsel, due process of law, and equal protection. The court disagreed, concluding that the unavailability of a verbatim transcript does not automatically constitute error. Rather, the defendant must show that the missing record resulted in prejudice. The court noted that the absence of a complete transcript does not prejudice a defendant when alternates are available that fulfill the function of a transcript and provide the defendant with a meaningful appeal. Here, the parties were able to reconstruct the testimonial evidence than other trial proceedings. The narrative stipulated to by the parties contains sufficient evidence to understand all the issues presented on appeal.

In this DWI case, the superior court properly dismissed the State’s notice of appeal from a district court ruling granting the defendant’s motion to suppress where the State’s notice of appeal failed to specify any basis for the appeal. Although such a notice may be sufficient for an appeal to the Court of Appeals, the State is required to specify the basis for its appeal to superior court.

State v. Stokes, 367 N.C. 474 (Apr. 11, 2014)

The court reversed and remanded the decision below, State v. Stokes, 227 N.C. App. 649 (Jun. 4, 2013) (vacating the defendant’s conviction for second-degree kidnapping on grounds that the evidence was insufficient to establish removal when during a robbery the defendant ordered the clerk to the back of the store but the clerk refused). The court held that the court of appeals erred by failing to consider whether the State presented sufficient evidence to support a conviction of attempted second-degree kidnapping. The court went on to find that the evidence supported conviction of the lesser offense. The court rejected the defendant’s argument that it could not consider whether the evidence was sufficient to establish the lesser offense because the State had not argued for that result on appeal, stating: “While we agree it would be better practice for the State to present such an alternative argument, we have not, however, historically imposed this requirement.” It continued:

When acting as an appellee, the State should bring alternative arguments to the appellate court’s attention, and we strongly encourage the State to do so. Nonetheless, we are bound to follow our long-standing, consistent precedent of acting ex mero motu to recognize a verdict of guilty of a crime based upon insufficient evidence as a verdict of guilty of a lesser included offense. Hence, the Court of Appeals incorrectly refused to consider whether defendant’s actions constituted attempted second-degree kidnapping.

In this child sexual abuse case, the court clarified that when analyzing Rule 404(b) and 403 rulings, it “conduct[s] distinct inquiries with different standards of review.” It stated:

When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling . . . we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court’s Rule 403 determination for abuse of discretion.

Invoking its discretion under Rule 2 to reach the merit of the defendant’s argument, the court held, over a dissent, that the trial court erred by failing to dismiss a larceny charge due to a fatal variance between the indictment and the evidence regarding ownership of the property. The indictment alleged that the property belonged to “Andy [Stevens] and Manna Baptist Church.” Andy Stevens was the church’s Pastor. In a prior opinion in the case, the court had held that a fatal variance existed because the evidence showed that the stolen property belonged only to the church. The Supreme Court however granted discretionary review as to whether the Court of Appeals erred in invoking Rule 2 to address that issue. That court remanded to the Court of Appeals for an express determination as to whether the court would exercise its discretion to invoke Rule 2 and consider the merits of the fatal variance claim. Following these instructions, the court determined that in this “unusual and extraordinary case” it would exercise its discretion to employ Rule 2 and consider the merits of the defendant’s fatal variance claim. Turning to the merits, the court adopted its analysis in its earlier decision in the case and held—again—that a fatal variance occurred. Specifically, although the indictment alleged that the property was owned by both Andy Stevens and the church, the evidence established that the property was owned only by the church. The court reiterated the principle that if the State fails to present evidence of a property interest of some sort in both owners alleged in the indictment, a fatal variance occurs. Here, the evidence did not show that Pastor Stevens held title or had any type of ownership interest in the stolen property.

On appeal from the trial court’s order granting the defendant’s suppression motion, the court rejected the defendant’s argument that the State failed to meet the certification requirements of G.S. 15A-979(c) by addressing its certificate to “the court” rather than the trial court judge. The defendant argued that because G.S. 15A-979(c) requires that the certificate be presented to the judge who granted the motion, any deviation from this statutory language renders the State’s certificate void. The court concluded that the word “judge” is synonymous with “the court.”

Because the State failed to file a certificate as required by G.S. 15A-1432(e), the appellate court lacked jurisdiction over the appeal. In district court the defendant moved to dismiss his DWI charge on speedy trial grounds. When the district court issued an order indicating its preliminary approval of the defendant’s motion, the State appealed to superior court. The superior court remanded to the district court for additional factual findings. Once the superior court received further findings of fact, it affirmed the district court’s preliminary order and remanded the case to district court with orders to affirm the dismissal. After the district court issued its final judgment, the State again appealed and the superior court affirmed the district court’s judgment. The court determined that G.S. 15A-1432(e), not G.S. 15A-1445(a)(1), applied to the State’s appeal to the appellate division. Because the State failed to comply with G.S. 15A-1432(e)’s certificate requirement, the court had no jurisdiction over the appeal.

Relying on language in G.S. 15A-979, the court held that a defendant may appeal an order denying a motion to suppress made pursuant to G.S. 15A-980 (right to suppress use of certain prior convictions obtained in violation of right to counsel) where the defendant reserved the right to appeal in his guilty plea.

In an appeal from an order requiring the defendant to enroll in lifetime SBM in which defense counsel filed an Anders brief, the court noted that SBM proceedings are civil in nature and that Anders protections do not extend to civil cases. The court however exercised discretion to review the record and found no error.

Because a civil no contact order entered under G.S. 15A-1340.50 (permanent no contact order prohibiting future contact by convicted sex offender with crime victim) imposes a civil remedy, notice of appeal from such an order must comply with N.C. R. Appellate Procedure 3(a).

(COA11-526). Gaps in the verbatim trial transcript were sufficiently addressed by other materials so that appellate review was possible. However, the complete lack of a verbatim transcript of the habitual felon phase of his trial precluded appellate review and warranted a new determination on this issue.

In this habitual impaired driving and driving while license revoked case, the trial court did not commit reversible error when it failed to formally arraigned the defendant pursuant to G.S. 15A-928(c).

The trial court did not err by assigning attorney’s fees to the judgment against the defendant for possession of a firearm by a felon, the payment of which was a condition of the defendant’s probation for that conviction. The defendant argued that the fees should have been assigned to the judgment for discharging a weapon into an occupied dwelling, for which the defendant received a jail sentence and the fees would have been docketed as a civil lien.

The trial court erred by granting a motion to set aside a bond forfeiture. When the defendant failed to appear in district court, the trial court issued a bond forfeiture notice. The bail agent filed a motion to set aside the forfeiture. However, on the preprinted form used for such motions the bail agent did not check any of the seven exclusive reasons under the statute, G.S. 15A-544.5, for setting aside a bond forfeiture. In addition to the motion, the bail agent submitted a letter stating that it had “been putting forth efforts to locate [the defendant]” but had been unsuccessful in doing so despite spending “$150 checking leads as to where and how” to locate the defendant. The Board of Education objected to the motion. The trial court allowed the surety’s motion to set aside. On appeal, the court held that the trial court erred in allowing the motion to set aside because the surety failed to demonstrate a legally sufficient reason to set aside under the statute. No box was checked on the relevant form and the reasons asserted in the letter attached to the motion did not fall within any of the seven exclusive statutory reasons for setting aside a forfeiture.

Over a dissent, the court held that the trial court erred by allowing a motion to set aside a bond forfeiture filed by the bail agent on behalf of the surety. Because the record establishes that at the time the surety posted the bond, it had actual notice that the defendant previously had failed to appear in the same matter the trial court was prohibited by statute from setting aside the bond forfeiture. When the defendant failed to appear in district court an order for arrest was issued, indicating that this was the defendant’s second or subsequent failure to appear on the charges. The defendant was served with the order for arrest and released on a secured bond posted by the bail agent in the amount of $16,000. The release order also explicitly indicated that this was the defendant’s second or subsequent failure to appear in the case. When the defendant again failed to appear, the trial court ordered the bond forfeited. A motion to set aside asserted that the defendant had been surrendered by a surety on the bail bond. At the hearing on the motion, the bail agent presented a letter from the sheriff’s office stating that the defendant had been surrendered. The trial court allowed the motion to set aside. The Board of Education appealed, arguing that the trial court was statutorily barred from setting aside the bond forfeiture and that no competent evidence supported the trial court’s decision to set aside. The Court of Appeals agreed, noting in part that while the statute allows a forfeiture to be set aside where the defendant has been surrendered by a surety, it explicitly prohibits setting aside a bond forfeiture “for any reason in any case in which the surety or the bail agent had actual notice before executing a bail bond that the defendant had already failed to appear on two or more prior occasions in the case for which the bond was executed.” G.S. 15A-544.5(f). Here, both the order for arrest and the release order expressly indicated the defendant’s second or subsequent failure to appear on the charges. Thus, the bail agent had actual notice and the trial court lacked authority to set aside the forfeiture for any reason.

The trial court lacked statutory authority to reduce the bond forfeiture amount. After the defendant failed to appear, the clerk of court issued a bond forfeiture notice in the amount of $2,000. A bail agent filed a motion to set aside the bond forfeiture. However, the motion de did not indicate the reason for setting aside the forfeiture. A document attached to the motion indicated that the defendant was incarcerated. The Board of Education objected to the motion to set aside. Following a hearing, the trial court denied the surety’s motion to set aside, finding that it had not established one of the statutory reasons for setting aside the forfeiture. Despite denying the motion, the trial court verbally reduced the amount of the bond forfeiture from $2,000 to $300. The Board of Education appealed, arguing that the trial court lacked authority to reduce the amount of the bond forfeiture after denying the motion to set aside. On appeal, the surety did not argue that the motion to set aside should have been allowed; rather, it asserted that the trial court had discretion to reduce the bond forfeiture amount. The court concluded that the trial court did not have authority under G.S. 15A-544.5 to reduce the amount owed by the surety. The court reasoned that under G.S. 15A-544.5, the trial court may only grant relief from the forfeiture for the reasons listed in the statute, and the only relief it may grant is the setting aside of the forfeiture. Here, having denied the motion to set aside, the trial court had no authority to grant partial relief by reducing the amount owed on the bond.

Over a dissent, the court held that where a motion to set aside the forfeiture of an appearance bond did not contain the required documentation to support a ground in G.S. 15A-544.5, the trial court lacked statutory authority to set aside the forfeiture. When the defendant failed to appear on a $30,000 bond, the trial judge ordered that the bond be forfeited. A bail agent for the surety moved to set aside the forfeiture, asserting that the defendant had been surrendered. Specifically, the motion stated that the “defendant has been surrendered by a surety on the bail bond as provided by G.S. 15A-540, as evidenced by the attached ‘Surrender of Defendant By Surety’ (AOC-CR-214)” (ground (b)(3) under G.S. 15A-544.5). However, no AOC form was attached to the motion. Instead, an ACIS printout was attached. The printout pertained to a traffic offense but included no reference to the case in which the bond was forfeited; nor did the printout indicate that the defendant had been surrendered. The information in the ACIS printout does not meet the requirement of a sheriff’s receipt contemplated by the statute.

(1) Even though the surety’s name was not listed on the first page of form AOC-CR-201 (Appearance Bond for Pretrial Release) the surety was in fact the surety on a $570,000.00 bond, where among other things, the attached power of attorney named the surety and the surety collected the premium on the bond and did not seek to return it until 3 years later when the trial court ordered a forfeiture. (2) The trial court did not err by concluding that the surety’s exclusive remedy for relief from a final judgment of forfeiture is an appeal pursuant to G.S. 15A-544.8. (3) The trial court did not err in granting the Board monetary sanctions against the surety and the bondsmen pursuant to G.S. 15A-544.5(d)(8). The court rejected the surety’s argument that the Board’s sanctions motion was untimely. (4) The trial court properly considered the relevant statutory factors before imposing monetary sanctions against the surety under G.S. 15A-544.5(d)(8) where there was no evidence that the surety’s failure to attach the required documentation was unintentional. (5) The trial court did not abuse its discretion by imposing a monetary sanction of $285,000 on the surety.

The trial court did not err by denying the surety’s motion to set aside a bond forfeiture when the trial court’s ruling was properly based on G.S. 15A-544.5(f) (no forfeiture may be set aside when the surety had actual notice before executing a bond that the defendant had already failed to appear on two or more prior occasions in the case for which the bond was executed). 

(1) The trial court did not err by denying the surety’s motion to set aside a bond forfeiture when the defendant was not surrendered until 9:40 pm on the day the 150-day time limit in G.S. 15A-544.5 expired and the surety’s motion to set aside was not filed until the next day. The court rejected the surety’s argument that the 150-day period should not expire when the courthouse closes, but should be extended until 11:59 pm. (2) The trial court did not abuse its discretion by failing to fully remit the forfeited amount pursuant to G.S. 15A-544.8(b)(2). The surety had argued that because the trial court found extraordinary circumstances warranting partial remission, remission should be in full unless the trial court makes specific findings supporting partial remission, but cited no authority for this proposition.

The county school board’s notice of appeal from a judge’s order affirming the Clerk’s ruling setting aside bond forfeitures divested the Clerk and trial court of jurisdiction to enter a second forfeiture while the appeal was pending.

(1) A bail agent may file a motion to set aside a forfeiture. (2) Filing such a motion by a bail agent does not constitute unauthorized practice of law. (3) A bail agent may appear pro se at a hearing on a motion to set aside forfeiture if the agent has a financial liability to the surety as a result of the bond. However, a bail agent may not appear at the motion hearing in court to represent the corporate surety.

A probation violation was a separate case from the original criminal charges for purposes of G.S. 15A-544.6(f) (providing that no more than two forfeitures may be set aside in any case).

The trial court properly denied the surety’s motion to set aside a bond forfeiture under G.S. 15A-544.5(b)(7) (defendant incarcerated at the time of the failure to appear). The statute refers to a one continuous period of incarceration beginning at the time of the failure to appear and ending no earlier than 10 days after the date that the district attorney is notified of the incarceration. In this case, the period of incarceration was not continuous.

In this drug trafficking case, the trial court erred by failing to appoint an expert to investigate the defendant’s competency to stand trial. Prior to the start of trial, defense counsel expressed concern about the defendant having fallen asleep in the courtroom. The trial court conducted a discussion with the defendant and defense counsel and ruled that the defendant was competent to proceed to trial. The colloquy revealed, among other things, that the defendant was having difficulty hearing and understanding the judge and that the defendant took over 25 medications daily in connection with a heart condition and being diagnosed as a bipolar schizophrenic. Defense counsel related never having seen the defendant so lethargic. Although the defendant seemed to understand the charges against him and possible sentences he might receive, he had little memory of meeting with counsel prior to trial. After the trial began, defense counsel informed the court that the defendant was sleeping during the trial. The court concluded that the evidence indicated a significant possibility at the time of trial that the defendant was incompetent, requiring the trial court to appoint an expert to ascertain whether the defendant was competent to proceed to trial. The court noted that its holding was based on “long-standing legal principles” and that it “should not be interpreted as articulating a new rule or standard.” It was careful to state that the trial court is not required to order a competency evaluation in every case where a criminal defendant is drowsy or suffers from mental or physical illness.

Where the defendant voluntarily ingested a large quantity of sedative, hypnotic or anxiolytic medications and alcohol during jury deliberations of his non-capital trial, the trial court did not err by failing to conduct a sua sponte competency hearing. The court relied on the fact that the defendant voluntarily ingested the intoxicants in a short period of time apparently with the intent of affecting his competency.

The court rejected the defendant’s argument that his due process rights were violated when the trial court failed to sua sponte conduct a second competency hearing. The court held that the record demonstrated the defendant’s competency, that there was no evidence that his competency was temporal in nature, and that the trial court did not err by failing to sua sponte conduct another competency hearing. It further found that the trial court’s findings were supported by competent evidence.

(1) The trial court did not err by failing to inquire, sua sponte, about the defendant’s competency after he was involuntarily committed to a psychiatric unit during trial. After the defendant failed to appear in court mid-trial and defense counsel was unable to explain his absence, the defendant was tried in absentia. Later during trial, defense counsel obtained information indicating that the defendant might have been committed, but was unable to confirm that. Evidence produced in connection with the defendant’s motion for appropriate relief (MAR) established that he in fact had been committed at that time. However, during trial, there was no evidence that the defendant had a history of mental illness and the defendant’s conduct in court indicated that he was able to communicate clearly and with a reasonable degree of rational understanding. While the trial court had information indicating that the defendant might have been committed, defense counsel was unable to confirm that information. Furthermore, at the MAR hearing defense counsel maintained he had no reason to believe anything was wrong with the defendant and thought the defendant’s hospitalization was part of a plan to avoid prosecution. (2) The trial court did not err by denying the defendant’s MAR which asserted that the defendant was incompetent to stand trial. Adequate evidence supported the trial court’s determination that the defendant was malingering.

The trial court erred by failing to sua sponte order a hearing to evaluate the defendant’s competency to stand trial. Although no one raised an issue of competency, a trial court has a constitutional duty to sua sponte hold a competency hearing if there is substantial evidence indicating that the defendant may be incompetent. Here, that standard was satisfied. The defendant proffered evidence of his extensive mental health treatment history and testimony from a treating psychiatrist showing that he has been diagnosed with paranoid schizophrenia, anti-social personality disorder, and cocaine dependency in remission. Additionally, his conduct before and during trial suggests a lack of capacity, including, among other things, refusing to get dressed for trial and nonsensically interrupting. The court rejected the remedy of a retrospective competency hearing and ordered a new trial.

The trial court erred by failing to sua sponte inquire into the defendant’s competency. In light of the defendant’s history of mental illness, including paranoid schizophrenia and bipolar disorder, her remarks that her appointed counsel was working for the State and that the trial court wanted her to plead guilty, coupled with her irrational behavior in the courtroom, constituted substantial evidence and created a bona fidedoubt as to competency. The court rejected the State’s argument that the trial court did in fact inquire into competency when, after defense counsel mentioned that she had recently undergone surgery and was taking pain medication, the trial court asked the defendant and counsel whether the medication was impairing her ability to understand the proceedings or her decision to reject the plea bargain offered by the State. Both replied in the negative. The trial court also asked the defendant about her ability to read and write and whether she understood the charges against her. However, this inquiry pertained only to effects of the pain medication. More importantly, it was not timely given that the defendant’s refusal to return to the courtroom and resulting outbursts occurred two days later. The court remanded for a determination of whether a meaningful retrospective competency hearing could be held.

The trial court abused its discretion by denying defense counsel’s motion requesting that the defendant be evaluated by a mental health professional to determine competency. At the call of the case for trial, defense counsel made a motion, supported by an affidavit by defense counsel and prior mental health evaluation reports, questioning the defendant’s capacity to proceed and seeking an assessment of his competency by a mental health professional. After conducting a hearing on the motion and considering the documentary evidence and arguments presented, the trial court denied the motion. Reviewing those materials, the court concluded that “[t]he entirety of the evidence presented . . . indicated a ‘significant possibility’ that defendant may have been incompetent . . . , necessitating the trial court to appoint an expert or experts to inquire into defendant’s mental health”. The court noted that when the a trial court conducts a proper competency hearing but abuses its discretion in proceeding to trial in light of the evidence indicating the defendant’s incompetency to proceed, the proper remedy is to vacate the judgment and remand the case for a new trial if and when the defendant is properly determined competent to proceed with trial. However, in this case a defense witness, Dr. Corvin, testified on direct examination that “there has been a time during my evaluation where I was somewhat concerned about [defendant’s current competency to stand trial], although not currently.” The court noted that defense counsel did not question Dr. Corvin on the issue of competency. It concluded: “Given Dr. Corvin’s presence at trial and his testimony that he was not currently concerned with defendant’s competency to stand trial, we fail to see how the trial court’s error prejudiced defendant.”

The court rejected the defendant’s argument that his due process rights were violated when the trial judge failed to provide him with a hearing before ordering an examination of his capacity to proceed. G.S. 15A-1002 does not require the trial judge to conduct a hearing before such an examination. A defendant may request a hearing after the examination but failure to do so—as happened here—constitutes a waiver.

The defendant was competent to stand trial and to represent himself. As to competency to stand trial, the defendant had several competency evaluations and hearings; the court rejected the defendant’s argument that a report of the one doctor who opined that he was incompetent was determinative of the issue, noting that numerous other doctors opined that he was malingering. The court also rejected the defendant’s argument that even after several competency hearings, the trial court erred by failing to hold another competency hearing when the defendant disrupted the courtroom, noting in part that four doctors had opined that the defendant’s generally disruptive behavior was volitional. The court also rejected the defendant’s argument that even if he was competent to stand trial, the trial court erred by allowing him to proceed pro se. The court found Indiana v. Edwards inapplicable because here--and unlike in Edwards--the trial court granted the defendant’s request to proceed pro se. Also, the defendant did not challenge the validity of the waiver of counsel colloquy.

When assessing whether a defendant is charged with a violent crime pursuant to G.S. 15A-1003(a) and in connection with an involuntary commitment determination, courts may consider the elements of the charged offense and the underlying facts giving rise to the charge. However, the fact-based analysis applies only with respect to determining whether the crime involved assault with a deadly weapon. The court held:

[F]or purposes of [G.S.] 15A-1003(a), a “violent crime” can be either one which has as an element “the use, attempted use, threatened use, or substantial risk of use of physical force against the person or property of another[,]” or a crime which does not have violence as an element, but assault with a deadly weapon was involved in its commission.

Slip Op. at 10 (citation omitted). Here, the defendant was charged with possession of a firearm by a felon and resisting an officer. Because violence is not an element of either offense, neither qualifies as a violent crime under the elements-based test. However, applying the fact-based analysis, the commission of the offenses involved an assault with a deadly weapon. The fact that the defendant stated that he wasn’t going with the officers, that he ran into a bedroom and stood within reach of a loaded revolver, and that he resisted while being handcuffed and removed showed an unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the officers.

In this armed robbery case involving a jewelry store heist, the court rejected the defendant’s argument that collateral estoppel precluded the admission of a receipt, identified at trial by witness Kristy Riojas of Got Gold pawn shop. The receipt, issued on the date of the offense, contained an itemized list of the items the defendant pawned, a copy of the defendant’s driver’s license, and the defendant’s signature. It was introduced to establish that the defendant was in possession of the stolen property shortly after it was taken, under the doctrine of recent possession. The defendant argued that the ticket was not admissible because the defendant previously had been acquitted on the charge of obtaining property by false pretenses, based on pawning jewelry at Got Gold. The defendant argued that based on his prior acquittal, the State was collaterally estopped from introducing the pawn shop receipt at his later trial for armed robbery to establish recent possession. The defendant did not dispute that he could be prosecuted for the robbery, notwithstanding his prior acquittal. Instead, he focused on the admissibility of evidence that was admitted in the prior trial. The court rejected the defendant’s argument, concluding that he could not establish that his acquittal of obtaining property by false pretenses represented a determination by the jury that he was not in possession of stolen property shortly after it was taken. The court noted, in part, that the doctrine of recent possession, which allows the jury to infer guilt based upon possession of stolen goods shortly after a theft, includes no requirement that the defendant made a false representation about the goods, attempt to obtain something of value, or deceive another party about ownership of the items.

The trial court properly applied the doctrine of collateral estoppel when it denied the defendant’s second motion to suppress. The defendant was in possession of a bag containing two separate Schedule I substances, Methylone and 4-Methylethcathinone. He was charged with possession with intent to manufacture, sell or deliver Methylone (Charge 1) and with possession with intent to manufacture, sell or deliver Methylethcathinone (Charge 2). Before trial he filed a motion to suppress, which was denied. He was convicted on both counts. On appeal, the court affirmed his conviction on the first charge but vacated the second because of a defective indictment. The State then re-indicted on the second charge. The then defendant filed a motion to suppress that was functionally identical to the motion to suppress filed before his first trial. The trial court denied the second motion based on the doctrine of collateral estoppel. The defendant was tried and found guilty. The trial court properly applied the doctrine of collateral estoppel when it denied the defendant’s second motion where the parties and the issues raised by the motions were the same; the issues were raised and fully litigated during the hearing on the first motion; the issue was material and relevant to the disposition of the prior action; and the trial court’s determination was necessary and essential to the final judgment.

State v Todd, ___ N.C. App. ___, 790 S.E.2d 349 (Aug. 16, 2016) temp. stay granted, ___ N.C. ___, 792 S.E.2d 797 (Sep 2 2016)

The law of the case doctrine did not prevent the trial court from considering the defendant’s motion for appropriate relief where the issue in question had not been raised or determined in the prior proceeding.

State v. Knight, ___ N.C. App. ___, 785 S.E.2d 324 (Feb. 16, 2016) review granted, ___ N.C. ___, 787 S.E.2d 17 (Jun 9 2016)

The court rejected the defendant’s argument that on a second trial after a mistrial the second trial judge was bound by the first trial judge’s suppression ruling under the doctrine of law of the case. The court concluded that doctrine only applies to an appellate ruling. However, the court noted that another version of the doctrine provides that when a party fails to appeal from the tribunal’s decision that is not interlocutory, the decision below becomes law of the case and cannot be challenged in subsequent proceedings in the same case. However, the court held that this version of the doctrine did not apply here because the suppression ruling was entered during the first trial and thus the State had no right to appeal it. Moreover, when a defendant is retried after a mistrial, prior evidentiary rulings are not binding. (2) The court rejected the defendant’s argument that the second judge’s ruling was improper because one superior court judge cannot overrule another, noting that once a mistrial was declared, the first trial court’s ruling no longer had any legal effect. (3) The court rejected the defendant’s argument that collateral estoppel barred the State from relitigating the suppression issue, noting that doctrine applies only to an issue of ultimate fact determined by a final judgment.

The trial court did not err when during a retrial in a DWI case it instructed the jury that it could consider the defendant’s refusal to take a breath test as evidence of her guilt even though during the first trial a different trial judge had ruled that the instruction was not supported by the evidence. Citing State v. Harris, 198 N.C. App. 371 (2009), the court held that neither collateral estoppel nor the rule prohibiting one superior court judge from overruling another applies to legal rulings in a retrial following a mistrial. It concluded that on retrial de novo, the second judge was not bound by rulings made during the first trial. Moreover, it concluded, collateral estoppel applies only to an issue of ultimate fact determined by a final judgment. Here, the first judge’s ruling involved a question of law, not fact, and there was no final judgment because of the mistrial.

The trial court did not err by allowing offensive collateral estoppel to establish the underlying felony for the defendant's felony murder conviction. The defendant was charged with felony-murder and an underlying felony of burglary. At the first trial the jury found the defendant guilty of burglary but hung on felony murder. The trial court entered a PJC on the burglary and declared a mistrial as to felony murder. At the retrial, the trial judge instructed the jury with respect to felony murder that "because it has previously been determined beyond a reasonable doubt in a prior criminal proceeding that [the defendant] committed first degree burglary . . . . you should consider that this element [of felony murder (that defendant committed the felony of first degree burglary)] has been proven to you beyond a reasonable doubt." Citing State v. Dial, 122 N.C. App. 298 (1996), the trial court’s instruction was proper.

In this armed robbery case, the trial court did not err in its colloquy with the defendant about the right to testify. The trial court conducted a colloquy with the defendant in which it warned the defendant that he would be subject to cross-examination if he testified at trial, including cross-examination about his prior convictions. On appeal, the defendant argued that the trial court’s instructions impermissibly chilled his right to testify and incorrectly advised him regarding the scope of cross-examination pertaining to his prior convictions. Reviewing the trial court’s colloquy with the defendant, the court disagreed, finding the advisement was consistent with the use of prior convictions to impeach under Rule 609 and that the trial court accurately informed the defendant about the limiting instruction that would be provided with respect to his prior convictions. 

By failing to object at trial, the defendant waived assertion of any error regarding shackling on appeal. The defendant argued that the trial court violated G.S. 15A-1031 by allowing him to appear before the jury in leg shackles and erred by failing to issue a limiting instruction. The court found the issue waived, noting that “other structural errors similar to shackling are not preserved without objection at trial.” However it continued:

Nevertheless, trial judges should be aware that a decision by a sheriff to shackle a problematic criminal defendant in a jail setting or in transferring a defendant from the jail to a courtroom, is not, without a trial court order supported by adequate findings of fact, sufficient to keep a defendant shackled during trial. Failure to enter such an order can, under the proper circumstances, result in a failure of due process

In a first-degree murder case, the trial court did not abuse its discretion or violate defendant’s constitutional rights by ordering the defendant to be physically restrained during trial after the defendant attempted to escape mid-trial, causing a lockdown of the courthouse.

The trial court did not abuse its discretion by requiring the defendant to wear restraints at trial. The defendant, who was charged with murder and other crimes, objected to having to wear a knee brace at trial. The brace was not visible to the jury and made no noise. At a hearing on the issue, a deputy testified that it was “standard operating procedure” to put a murder defendant “in some sort of restraint” whenever he or she was out of the sheriff’s custody. Additionally, the trial court considered the defendant’s past convictions and his five failures to appear, which it found showed “some failure to comply with the [c]ourt orders[.]” The trial court also considered a pending assault charge that arose while the defendant was in custody.

The trial court did not err by requiring the defendant to be restrained during trial.

State v. Lee, 218 N.C. App. 42 (Jan. 17, 2012)

Although the trial court abused its discretion by requiring the defendant to remain shackled during his trial, the error was harmless in light of the trial court’s curative instruction and the overwhelming evidence of guilt. The court “strongly caution[ed] trial courts to adhere to the proper procedures regarding shackling of a defendant” [Author’s note: For the section of the superior court judge’s benchbook outlining the law on this issue here.].

(1) The trial court did not abuse its discretion by failing to remove the defendant’s handcuff restraints during trial. The defendant was an incarcerated prisoner charged with possession of drugs at a penal institution. The trial court properly considered the defendant’s past record and reasoned that incarceration for second-degree murder and kidnapping raised safety concerns. (2) Although the trial court erred by failing to give the limiting instruction required by G.S. 15A-1031 regarding the defendant’s restraints, the error was not prejudicial.

The court reversed the Court of Appeals’ determination that the defendant was entitled to a new trial based on the trial court’s alleged failure to recognize and address an impasse between the defendant and his attorney during trial. The court concluded that the record did not allow it to determine whether the defendant had a serious disagreement with his attorney regarding trial strategy or whether he simply sought to hinder the proceedings. It remanded for entry of an order dismissing the defendant’s ineffective assistance of counsel claim without prejudice to his right to assert it in a motion for appropriate relief.

In a case where the trial court made a pretrial determination of not guilty by reason of insanity (NGRI), the defendant’s constitutional right to effective assistance of counsel was violated when the trial court allowed defense counsel to pursue a pretrial insanity defense against her wishes. Against the defendant’s express wishes, counsel moved for a pretrial determination of NGRI pursuant to G.S. 15A-959. The State consented and the trial court agreed, purportedly dismissing the charges based on its determination that the defendant was NGRI. The court noted that the issue whether a competent defendant has a right to refuse to pursue a defense of NGRI is a question of first impression in North Carolina. It determined:

By ignoring Defendant’s clearly stated desire to proceed to trial rather than moving for a pretrial verdict of NGRI pursuant to N.C.G.S. § 15A-959(c), the trial court allowed — absent Defendant’s consent and over her express objection — the “waiver” of her fundamental rights, including the right to decide “what plea to enter, whether to waive a jury trial and whether to testify in [her] own defense[,]” as well as “the right to a fair trial as provided by the Sixth Amendment[,] . . . the right to hold the government to proof beyond a reasonable doubt[,] . . . [and] the right of confrontation[.]” These rights may not be denied a competent defendant, even when the defendant’s choice to exercise them may not be in the defendant’s best interests. In the present case, Defendant had the same right to direct her counsel in fundamental matters, such as what plea to enter, as she had to forego counsel altogether and represent herself, even when Defendant’s choices were made against her counsel’s best judgment. (citations omitted)

It went on to hold:

[B]ecause the decision of whether to plead not guilty by reason of insanity is part of the decision of “what plea to enter,” the right to make that decision “is a substantial right belonging to the defendant.” Therefore, by allowing Defendant’s counsel to seek and accept a pretrial disposition of NGRI, the trial court “deprived [Defendant] of [her] constitutional right to conduct [her] own defense.” We are not called upon to determine how that right should be protected when asserted by a defendant’s counsel at trial but, at a minimum, a defendant’s affirmative declaration that the defendant does not wish to move for a pretrial determination of NGRI must be respected. (quotation and footnote omitted).

The court went on to reject the State’s argument that the defendant could not show prejudice because she was subject to periodic hearings pertaining to her commitment. 

The court rejected the defendant’s assertion that counsel was ineffective by failing to state for the record details of an absolute impasse between himself and counsel. Although the defendant initially wanted counsel to make certain admissions in opening statements to the jury, after discussing the issue with counsel he informed the court that he would follow counsel’s advice. The court noted there was neither disagreement regarding tactical decisions nor anything in the record suggesting any conflict between the defendant and defense counsel. Although counsel made statements to the trial court indicating that he was having difficulty believing things that the defendant told him, the court noted: “Defendant points to no authority which would require a finding of an impasse where defense counsel did not believe what a criminal-defendant client told him.”

Where the defendant and counsel reached an impasse regarding whether to cross-examine the State’s DNA analyst witness on an issue of sample contamination in this child sexual assault case, the trial court did not did not violate the defendant’s Sixth Amendment rights by ruling that it would be improper for counsel to pursue a frivolous line of questioning. Prior to the witness’s testimony, the trial court heard ex parte from the defendant and his lawyer about their disagreement regarding a proposed line of cross-examination of the analyst. The trial court ruled in favor of defense counsel and the trial resumed. The absolute impasse rule does not require an attorney to comply with the client’s request to assert frivolous or unsupported claims. Here, although the defendant wanted to challenge the analyst with respect to contamination, there was no factual basis for such a challenge. The court went on to conclude that even if the defendant’s Sixth Amendment rights had been violated, in light of the overwhelming evidence of guilt the error was harmless beyond a reasonable doubt. [Author’s note: for a discussion of the absolute impasse rule, see my Benchbook chapter here.]

An absolute impasse did not occur when trial counsel refused to abide by the defendant’s wishes to pursue claims of prosecutorial and other misconduct that counsel believed to be frivolous. Under the absolute impasse doctrine counsel need only abide by a defendant’s lawful instructions with respect to trial strategy. Here, the impasses was not over tactical decisions, but rather over whether the defendant could compel counsel to file frivolous motions and assert theories that lacked any basis in fact. The court concluded: “Because nothing in our case law requires counsel to present theories unsupported in fact or law, the trial court did not err in failing to instruct counsel to defer to Defendant’s wishes.”

When the defendant and trial counsel reached an absolute impasse regarding the use of a peremptory challenge to strike a juror, the trial court committed reversible error by not requiring counsel to abide by the defendant’s wishes. “It was error for the trial court to allow council’s decision to control when an absolute impasse was reached on this tactical decision, and the matter had been brought to the trial court’s attention.”

Following precedent, the court rejected the defendant’s assertion that counsel rendered ineffective assistance by failing to assert a fourth amendment claim at the hearing where he was ordered to submit to satellite-based monitoring for life. SBM proceedings are civil and ineffective assistance of counsel claims only can be asserted in criminal matters.

State v. Lane, 365 N.C. 7 (Mar. 11, 2011)

This capital case came back before the N.C. Supreme Court after that court remanded in State v. Lane,362 N.C. 667 (Dec. 12, 2008) (Lane I), for consideration under Indiana v. Edwards, 554 U.S. 164 (2008), as to whether the trial judge should have exercised discretion to deny the defendant’s request to represent himself. Edwards held that states may require counsel to represent defendants who are competent to stand trial but who suffer from severe mental illness to the extent that they are not competent to represent themselves. At trial, the trial court had accepted the defendant’s waiver of counsel and allowed the defendant to proceed pro se. Following a hearing, held on remand after Lane I, the trial court concluded that the defendant was competent to stand trial and to discharge his counsel and proceed pro se. The N.C. Supreme Court held that because the defendant never was denied his constitutional right to self-representation (he was allowed to proceed pro se), the U.S. “Supreme Court’s holding in Edwards, that the State may deny that right if a defendant falls into the “gray area” of competence, does not guide our decision here.” Slip op. at 22. Rather, the N.C. Supreme Court clarified, because the trial court found the defendant competent to stand trial, the issue was whether the defendant made a knowing and voluntary waiver of his right to counsel. On that issue, and after a detailed review of the trial court’s findings, the court concluded that the trial court’s inquiry was sufficient to support its determination that the defendant knowingly and voluntarily waived his right to counsel. In the course of that ruling, the court reaffirmed that a defendant’s technical legal knowledge is not relevant to an assessment of a valid waiver of counsel.

            While Lane I could be read to suggest that the trial court always must undertake an Edwards inquiry before allowing a defendant to proceed pro se, Lane II suggests otherwise. In Lane II, the court clarified the options for the trial court, stating:

For a defendant whose competence is at issue, he must be found [competent] before standing trial. If that defendant, after being found competent, seeks to represent himself, the trial court has two choices: (1) it may grant the motion to proceed pro se, allowing the defendant to exercise his constitutional right to self-representation, if and only if the trial court is satisfied that he has knowingly and voluntarily waived his corresponding right to assistance of counsel . . . ; or (2) it may deny the motion, thereby denying the defendant’s constitutional right to self-representation because the defendant falls into the “gray area” and is therefore subject to the “competency limitation” described in Edwards. The trial court must make findings of fact to support its determination that the defendant is “unable to carry out the basic tasks needed to present his own defense without the help of counsel.” 365 N.C. at 22 (citations omitted).

The defendant was competent to stand trial and to represent himself. As to competency to stand trial, the defendant had several competency evaluations and hearings; the court rejected the defendant’s argument that a report of the one doctor who opined that he was incompetent was determinative of the issue, noting that numerous other doctors opined that he was malingering. The court also rejected the defendant’s argument that even after several competency hearings, the trial court erred by failing to hold another competency hearing when the defendant disrupted the courtroom, noting in part that four doctors had opined that the defendant’s generally disruptive behavior was volitional. The court also rejected the defendant’s argument that even if he was competent to stand trial, the trial court erred by allowing him to proceed pro se. The court found Indiana v. Edwards inapplicable because here--and unlike in Edwards--the trial court granted the defendant’s request to proceed pro se. Also, the defendant did not challenge the validity of the waiver of counsel colloquy.

Based on assessments from mental health professionals and the defendant’s own behavior, the trial court did not abuse its discretion by ruling that the defendant was competent to represent himself at trial.

No violation of the defendant’s Sixth Amendment right to counsel occurred when the trial court found that the defendant forfeited his right to counsel because of serious misconduct and required him to proceed pro se. The court rejected the defendant’s argument that Indiana v. Edwards prohibits a finding of forfeiture by a “gray area” defendant who has engaged in serious misconduct. 

State v. Reid, 204 N.C. App. 122 (May. 18, 2010)

The trial court did not err in allowing the defendant to represent himself after complying with the requirements of G.S. 15A-1242. The court rejected the defendant’s argument that his conduct during a pre-trial hearing and at trial indicated that he was mentally ill and not able to represent himself, concluding that the defendant’s conduct did not reflect mental illness, delusional thinking, or a lack of capacity to carry out self-representation under Indiana v. Edwards, 128 S. Ct. 2379 (2008).

The trial court did not err by failing to appoint counsel for the defendant after his case was remanded from the appellate division and before ordering the defendant to submit to a capacity to proceed evaluation. The court held: “the trial court’s order committing defendant to a competency evaluation was not a critical stage and defendant was not denied his Sixth Amendment right to counsel.”

State v. Clark, 211 N.C. App. 60 (Apr. 19, 2011)

Because a SBM hearing is not a criminal proceeding to which the right to counsel applies, the defendant cannot assert an ineffective assistance of counsel claim as to counsel’s performance at such a hearing.

The court noted in dicta that ineffective assistance of counsel claims are not available in civil appeals, such as that from an SBM eligibility hearing.

The trial court erred by entering a civil judgment against the defendant for the attorneys’ fees incurred by his court-appointed counsel under G.S. 7A-455 without providing the defendant with notice and an opportunity to be heard. The court explained, in part:

With respect to counsel fees incurred under § 7A-455, the interests of defendants and their counsel may not always align. Because indigent defendants may feel that the fees charged by counsel were unreasonable in light of the time, effort, or responsibility involved in the case, and because those defendants might reasonably believe—as is the case at various stages of the criminal trial and sentencing—that they may speak only through their counsel, we hold that trial courts must provide criminal defendants, personally and not through their appointed counsel, with an opportunity to be heard before entering a money judgment under § 7A-455. Because [the defendant] was not informed of his right to be heard before the court entered the money judgment in this case, we vacate that judgment and remand for further proceedings.

The court instructed: “[B]efore entering money judgments against indigent defendants for fees imposed by their court-appointed counsel . . . trial courts should ask defendants—personally, not through counsel—whether they wish to be heard on the issue.” It added:

Absent a colloquy directly with the defendant on this issue, the requirements of notice and opportunity to be heard will be satisfied only if there is other evidence in the record demonstrating that the defendant received notice, was aware of the opportunity to be heard on the issue, and chose not to be heard.

The court agreed with the defendant that a civil judgment imposing fees against him must be vacated because neither the defense counsel’s total attorney fee amount nor the appointment fee were discussed in open court with the defendant. The court noted that on remand the State may apply for judgment in accordance with G.S. 7A-455, provided that the defendant is given notice and an opportunity to be heard regarding the total amount of hours and fees claimed for court-appointed counsel. Similarly, although the $60 appointment fee was vacated, that was without prejudice to the State again seeking an appointment fee on remand.

(1) In this sexual assault case the court reversed and remanded for a new trial, finding that even if the defendant had clearly and unequivocally asked to proceed pro se, the record did not establish that the defendant’s waiver of counsel complied with G.S. 15A-1242. The defendant was indicted on multiple sexual assault charges. He later was found to be indigent and Timothy Emry was appointed as counsel. Emry later moved to withdraw claiming that he and the defendant were at an impasse regarding representation. He asserted that the defendant was unwilling to discuss the case with him and the defendant was upset with Emry to asking him to sign a form acknowledging that he understood a plea offer and the consequences of taking or rejecting the plea. At a January hearing on the motion, the State asserted that if Emry was allowed to withdraw, the defendant would be on his fourth lawyer. Emry however clarified that this was inaccurate. The trial court told the defendant that he could have Emry continue as counsel, have the trial court find that the defendant had forfeited his right to counsel, or hire his own lawyer. The defendant opted to proceed pro se and the trial court appointed Emry as standby counsel. A waiver of counsel form was signed and completed. However, on the form the defendant only indicated that he waived his right to assigned counsel, not his right to all assistance of counsel. The case came to trial before a different judge. Although the trial court engaged in a colloquy with the defendant about counsel, the transcript of this event was indecipherable in parts. The defendant was convicted and appealed. On appeal, the defendant argued that the trial court erred by requiring him to proceed to trial pro se when he did not clearly and unequivocally elect to do so. Although the defendant did say that he wished to represent himself, he only did so after being faced with no other option than to continue with Emry’s representation. The court noted: “This case is a good example of the confusion that can occur when the record lacks a clear indication that a defendant wishes to proceed without representation.” Here, even assuming that the defendant did clearly and unequivocally assert his wish to proceed pro se, he still would be entitled to a new trial because the waiver was not knowing and voluntary as required by G.S. 15A-1242. At the January hearing, after explaining the defendant’s options to him the court asked that the defendant “be sworn to [his] waiver.” At this point the clerk simply asked the defendant if he solemnly swore that he had a right to a lawyer and that he waived that right. This colloquy did not meet the requirements of the statute. The court stated: “The fact that defendant signed a written waiver acknowledging that he was waiving his right to assigned counsel does not relieve the trial court of its duty to go through the requisite inquiry with defendant to determine whether he understood the consequences of his waiver.” Additionally, the written waiver form indicates that the defendant elected only to waive the right to assigned counsel, not the right to all assistance of counsel. With respect to the colloquy that occurred at trial, defects in the transcript made it unclear what the defendant understood about the role of standby counsel. In any event, “simply informing defendant about standby counsel’s role is not an adequate substitute for complying with [the statute].” Additionally, there is no indication that the trial court inquired into whether the defendant understood the nature of the charges and permissible punishments as required by the statute. The court rejected the State’s suggestion that the fact that Emry had informed the defendant about the charges could substitute for the trial court’s obligation to ensure that the defendant understood the nature of the charges and the potential punishments before accepting a waiver of counsel.

(2) The defendant did not engage in conduct warranting forfeiture of the right to counsel. Although the state and the trial court hinted that the defendant was intentionally delaying the trial and that he would be on his fourth attorney after counsel was dismissed, the record indicates that this was an inaccurate characterization of the facts. As explained by Emry, although other attorneys had been listed as the defendant’s counsel at various points early in the proceedings, the defendant received substantial assistance only from Emry. Additionally, nothing in the transcript indicates any type of “flagrant” tactics that would constitute extreme misconduct warranting forfeiture. Specifically, there is no indication that the defendant sought other delays of his trial or that he engaged in any inappropriate behavior either in court or with counsel.

In this drug trafficking case, the trial court did not err by requiring the defendant to represent himself at trial. In September 2013, the defendant appeared before a Superior Court Judge and signed a waiver of counsel form. In December 2013 the defendant appeared before another judge and signed a second waiver of counsel form. On that same day, attorney Palmer filed a notice of limited appearance, limiting his representation of the defendant to pretrial case management. In September 2015 the defendant again appeared in Superior Court. Palmer informed the court that the State “got their labs back” and would be ready to set a trial date. The trial court informed the defendant that if he wanted a court appointed lawyer, he should ask now. Among other things, the trial court informed the defendant of the hazards of proceeding pro se. In response to the judge’s questioning, the defendant indicated that he would hire an attorney for trial. The ADA stated that the case would come on for trial in the middle of the following year. The judge told the defendant he had two months to hire a lawyer and scheduled him to return to court on November 5 with his lawyer to talk about trial date. He expressly warned the defendant not to return in November saying that he did not have a lawyer. On November 5, 2015 the defendant appeared in court without a lawyer. The judge again warned the defendant that it was his responsibility to hire a lawyer and of the hazards of proceeding pro se. On December 10, 2015 the defendant again appeared in court, indicating that he continued to have trouble hiring a lawyer. The court informed the defendant to report back on January 27, and warned the defendant that the trial was soon approaching. In January 2016, the defendant again appeared in court, this time with attorney Byrd. Byrd told the court he was not in a position to make an appearance for the defendant and asked for more time. The judge scheduled the matter to return in February. On February 15, 2016, the trial court reported to the defendant that Mr. Byrd was not ready to make an appearance in his case. He warned the defendant to make arrangements to hire Byrd or someone else because a trial date would be set on March 10. On March 28, 2016, the defendant appeared before a different judge. The State indicated it was ready to proceed to trial. After hearing from the defendant regarding his dealings with various lawyers over the past months, the trial court informed the defendant of his counsel rights and asked the defendant how he intended to proceed. During this colloquy the defendant indicated that he would represent himself. The trial court reset the matter for the next administrative session so that the senior resident judge could address the counsel issue. On April 7, 2016 the case came back in Superior Court. The State requested a July trial date and asked the court to address the counsel issue. The court summarized the prior discussions with the defendant and appointed standby counsel. Proceedings continued in this vein until the defendant’s case came on for trial August 30, 2016. The defendant appeared pro se with standby counsel. The defendant was found guilty and appealed, asserting a violation of his sixth amendment counsel rights. The court disagreed with the defendant’s assertion that the trial court did not adhere to the requirements of G.S. 15A-1242 in procuring his waiver. The court noted, in part:

The trial court gave Defendant years to find an attorney. At each stage the trial court advised and counseled Defendant about his right to an attorney including his right to appointed counsel. The trial court also repeatedly counseled Defendant on the complexity of handling his own jury trial and the fact the judge would not be able to help him. Finally, the trial court repeatedly addressed the seriousness of the charges and advised Defendant a conviction likely meant a life sentence. Despite this, Defendant proceeded to represent himself at trial.

Defendant’s assertion the trial court failed to take any measures to ascertain whether Defendant understood the various difficulties associated with representing himself is without merit. Our review of the record indicates the trial court advised Defendant he would have to adhere to rules of court and evidence. The trial court also informed Defendant the court would not assist Defendant, and Defendant was facing serious charges which could result in a life sentence upon conviction. The record also indicates Defendant repeatedly expressed his understanding of the trial court’s instruction on this issue. We conclude Defendant waived his right to court appointed counsel.

The court went on to hold that even if the defendant’s waiver of counsel was not knowing and voluntary, the defendant forfeited his right to counsel through extended delaying tactics. It explained:

First, Defendant waived his right to assigned counsel in 2013. The trial court repeatedly advised Defendant on the seriousness of the charges and informed Defendant a conviction could lead to a life sentence due to Defendant’s age. Time after time, Defendant stated he intended to hire his own attorney. Defendant made close to monthly appearances in court over a 10-month period, and consistently told the court he wished to hire his own attorney. During these appearances, the trial court asked Defendant at least twice if he needed appointed counsel. Defendant answered by claiming to have sufficient funds to hire an attorney. Additionally, the trial court continued Defendant’s case several times to give Defendant’s attorney time to prepare since Defendant claimed the attorneys he met with did not have adequate time to prepare for trial.

Because defendant engaged in repeated conduct designed to delay and obfuscate the proceedings, including refusing to answer whether he wanted the assistance of counsel, he forfeited his right to counsel. Citing State v. Leyshon, 211 N.C. App. 511 (2011), the court began by holding that defendant did not waive his right to counsel. When asked whether he wanted a lawyer, defendant replied that he did not and, alternatively, when the trial court explained that defendant would proceed without counsel, defendant objected and stated he was not waiving any rights. Defendant's statements about whether he waived his right to counsel were sufficiently equivocal such that they did not constitute a waiver of the right to counsel. However, defendant forfeited his right to counsel. In addition to refusing to answer whether he wanted assistance of counsel at three separate pretrial hearings, defendant repeatedly and vigorously objected to the trial court's authority to proceed. Although defendant on multiple occasions stated that he did not want assistance of counsel, he also repeatedly made statements that he was reserving his right to seek Islamic counsel, although over the course of four hearings and about 3½ months he never obtained counsel. As in Leyshon, this behavior amounted to willful obstruction and delay of trial proceedings and therefore defendant forfeited his right to counsel.

The court rejected the defendant’s argument that the trial court failed to make the proper inquiry required by G.S. 15A-1242 before allowing him to proceed pro se, concluding that the defendant’s actions “absolved the trial court from this requirement” and resulted in a forfeiture of the right to counsel. As recounted in the court’s opinion, the defendant engaged in conduct that obstructed and delayed the proceedings.

State v. Mee, 233 N.C. App. 542 (Apr. 15, 2014)

The defendant forfeited his right to counsel where he waived the right to appointed counsel, retained and then fired counsel twice, was briefly represented by an assistant public defender, repeatedly refused to state his wishes with respect to representation, instead arguing that he was not subject to the court’s jurisdiction, would not participate in the trial, and ultimately chose to absent himself from the courtroom during the trial. The court rejected the defendant’s argument that he should not be held to have forfeited his right to counsel because he did not threaten counsel or court personnel and was not abusive. The court’s opinion includes extensive colloquies between the trial court and the defendant.

(1) No violation of the defendant’s Sixth Amendment right to counsel occurred when the trial court found that the defendant forfeited his right to counsel because of serious misconduct and required him to proceed pro se. The court rejected the defendant’s argument that Indiana v. Edwards prohibits a finding of forfeiture by a “gray area” defendant who has engaged in serious misconduct. (2) The trial court did not err by finding that the defendant forfeited his right to counsel because of serious misconduct. The court rejected the defendant’s argument that the misconduct must occur in open court. The defendant was appointed three separate lawyers and each moved to withdraw because of his behavior. His misconduct went beyond being uncooperative and noncompliant and included physically and verbally threatening his attorneys. He consistently shouted at his attorneys, insulted and abused them, and spat on and threatened to kill one of them. The court also rejected the defendant’s argument that State v. Wray, 206 N.C. App. 354 (2010), required reversal of the forfeiture ruling.

The trial court did not err by allowing the defendant to proceed pro se where the defendant forfeited his right to counsel. In July 2007, the defendant refused to sign a waiver of counsel form. At a Jan. 2008 hearing, the court twice advised the defendant of his right to counsel and repeatedly asked if he wanted a lawyer. The defendant refused to answer, arguing, “I want to find out if the Court has jurisdiction before I waive anything”. Even after the court explained the basis of its jurisdiction, the defendant refused to state if he wanted an attorney, persistently refusing to waive anything until jurisdiction was established. At a July 2008 hearing, the defendant would not respond to the court’s inquiry regarding counsel, asserting, “I’m not waiving my right to assistance of counsel,” but also refusing the assistance of the appointed attorney. At the next hearing, he continued to challenge the court’s jurisdiction and would not answer the court’s inquiry regarding whether he wanted an attorney or to represent himself. Instead, he maintained, “If I hire a lawyer, I’m declaring myself a ward of the Court . . . and the Court automatically acquires jurisdiction . . . and I’m not acquiescing at this point to the jurisdiction of the Court.” The defendant willfully obstructed and delayed the proceedings and thus forfeited his right to counsel.

State v. Boyd, 200 N.C. App. 97 (Sept. 15, 2009)

Holding that the defendant willfully obstructed and delayed court proceedings by refusing to cooperate with his appointed attorneys and insisting that his case would not be tried; he thus forfeited his right to counsel. The defendant’s lack of cooperation lead to the withdrawal of both of his court-appointed attorneys. His original appointed counsel was allowed to withdraw over disagreements with the defendant including counsel’s refusal to file a motion for recusal of the trial judge on grounds that various judges were in collusion to fix the trial. In his first motion to withdraw, the defendant’s next lawyer stated that the defendant did not want him as counsel and that he could not effectively communicate with the defendant. In his second motion to withdraw, counsel stated that the defendant had been “totally uncooperative” such that counsel “was unable to prepare any type of defense to the charges.” Further, the defendant repeatedly told counsel that his case was not going to be tried.

The trial court erred by requiring the defendant to proceed pro se. After the defendant was indicted but before the trial date, the defendant signed a waiver of the right to assigned counsel and hired his own lawyer. When the case came on for trial, defense counsel moved to withdraw, stating that the defendant had been rude to him and no longer desired his representation. The defendant agreed and indicated that he intended to hire a different, specifically named lawyer. The trial court allowed defense counsel to withdraw and informed the defendant that he had a right to fire his lawyer but that the trial would proceed that week, after the trial court disposed of other matters. The defendant then unsuccessfully sought a continuance. When the defendant’s case came on for trial two days later, the defendant informed the court that the lawyer he had intended to hire wouldn’t take his case. When the defendant raised questions about being required to proceed pro se, the court indicated that he had previously waived his right to court-appointed counsel. The trial began, with the defendant representing himself. The court held that the trial court’s actions violated the defendant’s Sixth Amendment right to counsel. The defendant never asked to proceed pro se; although he waived his right to court-appointed counsel, he never indicated that he intended to proceed to trial without the assistance of any counsel. Next, the court held that the defendant had not engaged in the type of severe misconduct that would justify forfeiture of the right to counsel. Among other things, the court noted that the defendant did not fire multiple attorneys or repeatedly delay the trial. The court concluded:

[D]efendant’s request for a continuance in order to hire a different attorney, even if motivated by a wish to postpone his trial, was nowhere close to the “serious misconduct” that has previously been held to constitute forfeiture of counsel. In reaching this decision, we find it very significant that defendant was not warned or informed that if he chose to discharge his counsel but was unable to hire another attorney, he would then be forced to proceed pro se. Nor was defendant warned of the consequences of such a decision. We need not decide, and express no opinion on, the issue of whether certain conduct by a defendant might justify an immediate forfeiture of counsel without any preliminary warning to the defendant. On the facts of this case, however, we hold that defendant was entitled, at a minimum, to be informed by the trial court that defendant’s failure to hire new counsel might result in defendant’s being required to represent himself, and to be advised of the consequences of self-representation.

State v. Wray, 206 N.C. App. 354 (Aug. 17, 2010)

The trial court erred by ruling that the defendant forfeited his right to counsel. The defendant’s first lawyer was allowed to withdraw because of a breakdown in the attorney-client relationship. His second lawyer withdrew on grounds of conflict of interest. The defendant’s third lawyer was allowed to withdraw after the defendant complained that counsel had not promptly visited him and had “talked hateful” to his wife and after counsel reported that the defendant accused him of conspiring with the prosecutor and contradicted everything the lawyer said. The trial court appointed Mr. Ditz and warned the defendant that failure to cooperate with Ditz would result in a forfeiture of the right to counsel. After the defendant indicated that he did not want to be represented by Ditz, the trial court explained that the defendant either could accept representation by Ditz or proceed pro se. The defendant rejected these choices and asked for new counsel. When Ditz subsequently moved to withdraw, the trial court allowed the motion and found that the defendant had forfeited his right to counsel. On appeal, the court recognized “a presumption against the casual forfeiture” of constitutional rights and noted that forfeiture should be restricted cases of “severe misconduct.” The court held that the record did not support the trial court’s finding of forfeiture because: (1) it suggested that while the defendant was competent to be tried, under Indiana v. Edwards, 554 U.S. 164 (2008), he may have lacked the capacity to represent himself; (2) Ditz had represented the defendant in prior cases without problem; (3) the record did not establish serious misconduct required to support a forfeiture (the court noted that there was no evidence that the defendant used profanity in court, threatened counsel or court personnel, was abusive, or was otherwise inappropriate); (4) evidence of the defendant’s misbehavior created doubt as to his competence; and (5) the defendant was given no opportunity to be heard or participate in the forfeiture hearing.

State v. Boyd, 205 N.C. App. 450 (July 20, 2010)

Defendant’s forfeiture of his right to counsel did not carry over to his resentencing, held after a successful appeal. To determine the life of a forfeiture of counsel the court adopted the standard for life of a waiver of counsel (a waiver is good and sufficient until the proceedings are terminated or the defendant makes it known that he or she desires to withdraw the waiver). Applying this standard, the court found that “a break in the period of forfeiture occurred” when the defendant accepted the appointment of counsel (the Appellate Defender) for the appeal of his initial conviction. The court noted in dicta that the defendant’s statement at resentencing that he did not want to be represented and his refusal to sign a written waiver did not constitute a new forfeiture. Because the initial forfeiture did not carry through to the resentencing and because the trial judge did not procure a waiver of counsel under G.S. 15A-1242 at the resentencing, the defendant’s right to counsel was violated.

The defendant’s Sixth Amendment right to secure counsel of choice was violated when the government, acting pursuant to 18 U. S. C. §1345, froze pretrial the defendant’s legitimate, untainted assets and thus prevented her from hiring counsel to defend her in the criminal case. Critical to the Court’s analysis was that the property at issue belonged to the defendant and was not “loot, contraband, or otherwise ‘tainted.’”

State v. Williams, 363 N.C. 689 (Dec. 11, 2009)

The trial court did not err by failing to rule on the defendant’s pro se motions, made when the defendant was represented by counsel.

The court declined to consider the defendant’s pro se MAR on grounds that he was represented by appellate counsel. It noted that having elected for representation by appointed counsel, the defendant cannot also file motions on his own behalf or attempt to represent himself; a defendant has no right to appear both by himself and by counsel.

Because the defendant’s lawyer adopted the defendant’s pro se filing under G.S. 15A-711 by submitting evidence to the trial court in support of it, the trial court properly considered the pro se filing, made while the defendant was represented by counsel.

The trial court did not err by considering the defendant’s pro se speedy trial motion, filed when he was represented by counsel.

The court admonished defense counsel for exceeding the bounds of zealous advocacy. In attacking the professionalism and ethics of the prosecutors, counsel said that the prosecutor “failed to investigate the truth”; “distort[ed] the truth”; “misled and misrepresented facts”; “subverted the truth by presenting false evidence in the form of [defendant’s] confession”; “suppressed the truth by failing to disclose potentially truth-enhancing evidence”; and “dominated the fact-finding process all led directly to [defendant’s] conviction for a crime she did not commit.” Counsel asserted that “[a] prosecutor should be professionally disciplined for proceeding with prosecution if a fair-minded person could not reasonably conclude, on the facts known to the prosecutor, that the accused is guilty beyond a reasonable doubt.” These comments were unsupported by the record and “highly inappropriate.” The court “urge[d] counsel to refrain from making such comments in the future.”

Because the defendant would not allow the trial to proceed while representing himself, the trial court did not err by denying the defendant the right to continue representing himself and forcing him to accept the representation of a lawyer who had been serving as standby counsel.

State v. Williams, 363 N.C. 689 (Dec. 11, 2009)

In a capital case, the trial court did not err by removing second-chair counsel, who was re-appointed by Indigent Defense Services, after having been allowed to withdraw by the trial court. Nor did the trial court err by failing to ex mero motu conduct a hearing on an unspecified conflict of interest between the defendant and counsel that was never raised by the defendant.

The trial court did not err by denying defense counsel’s motions to withdraw and for the appointment of substitute counsel. The court rejected the defendant’s argument that he and his trial counsel experienced “a complete breakdown in their communications” resulting in ineffective assistance of counsel. The court noted that in the absence of a constitutional violation, the decision about whether to replace appointed counsel is a discretionary one. Although the defendant expressed dissatisfaction with counsel’s performance on several occasions, he did not establish the requisite “good cause” for appointment of substitute counsel or that assigned counsel could not provide him with constitutionally adequate representation. The court concluded that any breakdown in communication “stemmed largely from Defendant’s own behavior” and that the defendant failed to show that the alleged communication problems resulted in a deprivation of his right to the effective assistance of counsel. 

A defendant does not have a right to be represented by someone who is not a lawyer.

Where appointed counsel was allowed to withdraw, on the sixth day of a bribery trial, pursuant to Comment 3, Rule 1.16(a) of the N.C. Rules of Professional Conduct, the trial court was not required to appoint substitute counsel. Comment 3 states in relevant part:

Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.

Under G.S. 7A-450(b), appointment of substitute counsel at the request of either an indigent defendant or original counsel is constitutionally required only when it appears that representation by original counsel could deprive the defendant of his or her right to effective assistance. The statute also provides that substitute counsel is required and must be appointed when the defendant shows good cause, such as a conflict of interest or a complete breakdown in communications. Here, counsel’s representation did not fail to afford the defendant his constitutional right to counsel nor did the defendant show good cause for the appointment of substitute counsel. Nothing in the record suggests a complete breakdown in communications or a conflict of interest. Indeed, the court noted, “there was no indication that [counsel]’s work was in any way deficient. Rather, [his] withdrawal was caused by [defendant] himself demanding that [counsel] engage in unprofessional conduct. 

The trial court did not abuse its discretion by denying an indigent defendant’s request for substitute counsel. The court rejected the defendant’s argument that the trial court erred by failing to inquire into a potential conflict of interest between the defendant and counsel, noting that the defendant never asserted a conflict, only that he was unhappy with counsel’s performance.

The trial court did not err by denying defense counsel’s motions to withdraw and for the appointment of substitute counsel. The court rejected the defendant’s argument that he and his trial counsel experienced “a complete breakdown in their communications” resulting in ineffective assistance of counsel. The court noted that in the absence of a constitutional violation, the decision about whether to replace appointed counsel is a discretionary one. Although the defendant expressed dissatisfaction with counsel’s performance on several occasions, he did not establish the requisite “good cause” for appointment of substitute counsel or that assigned counsel could not provide him with constitutionally adequate representation. The court concluded that any breakdown in communication “stemmed largely from Defendant’s own behavior” and that the defendant failed to show that the alleged communication problems resulted in a deprivation of his right to the effective assistance of counsel.

The trial court did not abuse its discretion by denying the defendant’s motion to replace his court-appointed lawyer. Substitute counsel is required and must be appointed when a defendant shows good cause, such as a conflict of interest or a complete breakdown in communications. However, general dissatisfaction or disagreement over trial tactics is not a sufficient basis to appoint new counsel. In this case, the defendant’s objections fell into the latter category. The court also rejected the defendant’s argument that the trial court failed to inquire adequately when the defendant raised the substitute counsel issue.

The trial court did not abuse its discretion by denying the defendant’s request for substitute counsel where there was no evidence that the defendant’s constitutional right to counsel was violated. The defendant waived the right to appointed counsel and retained an attorney. The day after the jury was impaneled for trial the defendant requested substitute counsel, asserting that counsel had not communicated enough with him, that the defendant was unaware the case would be tried that day, and that he had concerns about counsel’s strategy, particularly counsel’s advice that the defendant not testify. None of these concerns constituted a violation of the defendant’s constitutional right to counsel.

Because the trial court properly conducted the inquiry required by G.S. 15A-1242, the court rejected the defendant’s argument that his waiver of counsel, in connection with a probation violation hearing, was not knowing and voluntary. In addition to finding that the trial court’s colloquy with the defendant established that the waiver was knowing and voluntary, the court noted that its conclusion was consistent with G.S. 7A-457(a). That provision states that a waiver of counsel shall be effective only if the court finds that the indigent person acted with “full awareness of his rights and of the consequences of the waiver,” and that in making such a finding the court must consider among other things the person’s age, education, familiarity with the English language, mental condition and complexity of the crime charged. Here, the defendant was 23 years old, spoke English, had a GED degree, had attended college for one semester, and had no mental defects of record; additionally, there were no factual or legal complexities associated with the probation violation. The defendant described himself as a “Moorish National” and a “sovereign citizen.” The court rejected the defendant’s argument that certain responses to the judge’s statements during the waiver colloquy indicated that the waiver was not knowing and voluntary. The court noted that a defendant’s contention that he does not understand the proceedings is a common aspect of a sovereign citizen defense.

The trial court did not err by allowing the defendant to waive his right to counsel and proceed pro se. Notwithstanding the defendant’s refusal to acknowledge that he was subject to court’s jurisdiction, the trial court was able to conduct a colloquy that complied with G.S. 15A-1242. The court reminded trial judges, however, that “our Supreme Court has approved a series of 14 questions that can be used to satisfy the requirements of Section 15A-1242.” “[B]est practice,” it continued “is for trial courts to use the 14 questions . . . which are set out in the Superior Court Judges’ Benchbook provided by the University of North Carolina at Chapel Hill School of Government.”

Although the trial court misstated the maximum sentence during the waiver colloquy, it adequately complied with G.S. 15A-1242. The trial court twice informed the defendant that if he was convicted of all offenses and to be a habitual felon, he could be sentenced to 740 months imprisonment, or about 60 years. However, this information failed to account for the possibility that the defendant would be sentenced in the aggravated range and thus understated the maximum term by 172 months. The court held:

[W]e do not believe that a mistake in the number of months which a trial judge employs during a colloquy with a defendant contemplating the assertion of his right to proceed pro se constitutes a per se violation of N.C. Gen. Stat. § 15A-1242. Instead, such a calculation error would only contravene N.C. Gen. Stat. § 15A-1242 if there was a reasonable likelihood that the defendant might have made a different decision with respect to the issue of self-representation had he or she been more accurately informed about “the range of permissible punishments.

The court found that although the trial court’s information “was technically erroneous” the error did not invalidate the defendant’s “otherwise knowing and voluntary waiver of counsel.” It explained:

Our conclusion to this effect hinges upon the fact that Defendant was thirty-five years old at the time of this trial, that a sentence of 740 months imprisonment would have resulted in Defendant’s incarceration until he reached age 97, and that a sentence of 912 months would have resulted in Defendant’s incarceration until he reached age 111. Although such a fourteen year difference would be sufficient, in many instances, to preclude a finding that Defendant waived his right to counsel knowingly and voluntarily as the result of a trial court’s failure to comply with N.C. Gen. Stat. § 15A-1242, it does not have such an effect in this instance given that either term of imprisonment mentioned in the trial court’s discussions with Defendant was, given Defendant’s age, tantamount to a life sentence. Simply put, the practical effect of either sentence on Defendant would have been identical in any realistic sense. In light of this fact, we cannot conclude that there was a reasonable likelihood that Defendant’s decision concerning the extent, if any, to which he wished to waive his right to the assistance of counsel and represent himself would have been materially influenced by the possibility that he would be incarcerated until age 97 rather than age 111. As a result, we conclude that Defendant’s waiver of the right to counsel was, in fact, knowing and voluntary and that the trial court did not err by allowing him to represent himself.

 

The trial court did not err when taking the defendant’s waiver of counsel. The trial court complied with the statute and asked the standard waiver questions in the judges’ bench book. The court rejected the defendant’s argument that the waiver was invalid because the trial judge did not inform him of his right to hire a private lawyer.

Based on the trial court’s extensive colloquy with the defendant, the trial court properly took a waiver of counsel in compliance with G.S. 15A-1242.

(1) The defendant’s waiver of counsel was sufficient even though a box on the waiver form was left blank and the form was executed before the court advised the defendant of the charges and the range of punishment. Citing State v. Heatwole, 344 N.C. 1, 18 (1996), and State v. Fulp, 355 N.C. 171, 177 (2002), the court first concluded that a waiver of counsel form is not required and any deficiency in the form will not render the waiver invalid, if the waiver was knowing, intelligent, and voluntary. Next, the court concluded that the waiver was not invalid because the trial court failed to go over the charges and potential punishments prior to the defendant signing the waiver form. The trial court discussed the charges and potential punishments with the defendant the following day, and defendant confirmed his desire to represent himself in open court. Although the waiver form requires the trial judge to certify that he or she informed the defendant of the charges and punishments, given that the form is not mandatory, no prejudice occurs when the trial court does, in fact, provide that information in accordance with the statute and the defendant subsequently asserts the right to proceed pro se. (2) The trial court conducted an adequate inquiry under G.S. 15A-1242. The court noted that there is no mandatory formula for complying with the statute. Here, the trial judge explicitly informed the defendant of his right to counsel and the process to secure a court-appointed attorney; the defendant acknowledged that he understood his rights after being repeatedly asked whether he understood them and whether he was sure that he wanted to waive counsel; the judge informed him of the charges and potential punishments; and the judge explained that he would be treated the same at trial regardless of whether he had an attorney. The trial court’s colloquies at the calendar call and before trial, coupled with the defendant’s repeated assertion that he wished to represent himself, demonstrate that the defendant clearly and unequivocally expressed his desire to proceed pro se and that such expression was made knowingly, intelligently, and voluntarily.

In a per curiam opinion, the court affirmed State v. Anderson, 215 N.C. App. 169 (Aug. 16, 2011) (holding that the trial court erred by allowing the defendant to waive counsel after accepting a waiver of counsel form but without complying with G.S. 15A-1242; among other things, the trial court failed to clarify the specific charges or inform the defendant of the potential punishments or that he could request court-appointed counsel).

The trial court erred by requiring the defendant to proceed to trial pro se. On February 7, 2013, the defendant was determined to be indigent and counsel was appointed. On May 30, 2014, the defendant waived his right to assigned counsel, indicating that he wished to hire a private lawyer, Mr. Parker. Between May 2014 and May 2015 the trial was continued several times to enable the defendant to obtain funds to pay Parker. On May 11, 2015, Parker informed the court that the defendant had not retained him and that if the court would not agree to continue the case, Parker would move to withdraw. Although the defendant was employed when he first indicated his desire to hire Parker, he subsequently lost his job and needed time to obtain funds to pay counsel. The trial court continued the case for two months, to give the defendant more time to obtain funds to pay Parker. On June 29, 2015, Parker filed a motion to withdraw for failure to pay. On July 6, 2015, after the trial court allowed Parker to withdraw, the defendant asked for new counsel. The trial court declined this request, the case proceeded pro se, and the defendant was convicted. The court found that the trial court’s ruling requiring the defendant to proceed pro se was based in part on the ADA’s false representation that at the May 11, 2015 hearing the defendant was asked if he wanted counsel appointed, was warned that the case would be tried in July regardless of whether he were able to hire Parker, and was explicitly warned that if he had not retained counsel by July he would be forced to proceed to trial pro se. The court concluded: “None of these representations are accurate.” Thus, the court held that the trial court’s denial of defendant’s request for appointed counsel and its ruling that the defendant had waived the right to appointed counsel were not supported by competent evidence.

Because the trial court did not take a proper of waiver of counsel, the defendant was entitled to a new trial. The State conceded error, noting that the defendant had not been advised of the range of permissible punishments as required by G.S. 15A-1242.

Because defendant engaged in repeated conduct designed to delay and obfuscate the proceedings, including refusing to answer whether he wanted the assistance of counsel, he forfeited his right to counsel. Citing State v. Leyshon, 211 N.C. App. 511 (2011), the court began by holding that defendant did not waive his right to counsel. When asked whether he wanted a lawyer, defendant replied that he did not and, alternatively, when the trial court explained that defendant would proceed without counsel, defendant objected and stated he was not waiving any rights. Defendant's statements about whether he waived his right to counsel were sufficiently equivocal such that they did not constitute a waiver of the right to counsel. However, defendant forfeited his right to counsel. In addition to refusing to answer whether he wanted assistance of counsel at three separate pretrial hearings, defendant repeatedly and vigorously objected to the trial court's authority to proceed. Although defendant on multiple occasions stated that he did not want assistance of counsel, he also repeatedly made statements that he was reserving his right to seek Islamic counsel, although over the course of four hearings and about 3½ months he never obtained counsel. As in Leyshon, this behavior amounted to willful obstruction and delay of trial proceedings and therefore defendant forfeited his right to counsel.

The trial court erred by allowing the defendant to proceed pro se at a probation revocation hearing without taking a waiver of counsel as required by G.S. 15A-1242. The defendant’s appointed counsel withdrew at the beginning of the revocation hearing due to a conflict of interest and the trial judge allowed the defendant to proceed pro se. However, the trial court failed to inquire as to whether the defendant understood the range of permissible punishments. The court rejected the State’s argument that the defendant understood the range of punishments because “the probation officer told the court that the State was seeking probation revocation.” The court noted that as to the underlying sentence, the defendant was told only that, “[t]here’s four, boxcar(ed), eight to ten.” The court found this insufficient, noting that it could not assume that the defendant understood this legal jargon as it related to his sentence. Finally, the court held that although the defendant signed the written waiver form, “the trial court was not abrogated of its responsibility to ensure the requirements of [G.S.] 15A-1242 were fulfilled.”

The defendant was denied his right to counsel at a suppression hearing. The suppression hearing was a critical stage. Although the trial court recorded waivers of counsel prior to the hearing, the waivers were not valid because the trial court failed to inform the defendant of the maximum possible sentence, as required by G.S. 15A-1242. The trial court advised the defendant that he could “go to prison for a long, long time[,]” and if convicted “the law requires you get a mandatory active prison sentence[.]” These statements do not meet the statutory requirements for a valid waiver. The court reiterated that a waiver will not be presumed from a silent record and that a completed waiver of counsel form is no substitute for compliance with the statute.

The trial court committed reversible error by requiring the defendant to proceed pro se in a probation revocation hearing when the defendant had waived only the right to assigned counsel not the right to all assistance of counsel.

The trial court committed reversible error by allowing the defendant to proceed pro se without conducting the inquiry required by G.S. 15A-1242. 

The trial court erred by allowing the defendant to waive counsel after accepting a waiver of counsel form but without complying with G.S. 15A-1242. Significantly, on the waiver form the defendant checked the box waiving his right to assigned counsel, not the box waiving his right to all assistance of counsel. Citing State v. Callahan, 83 N.C. App. 323, 324 (1986), the court noted that “[t]he record must affirmatively show that the inquiry was made and that the defendant, by his answers, was literate, competent, understood the consequences of his waiver, and voluntarily exercised his own free will.” It continued, quoting Callahan and stating: “In cases where ‘the record is silent as to what questions were asked of defendant and what his responses were’ this Court has held, ‘[we] cannot presume that [the] defendant knowingly and intelligently waived his right to counsel[.]’ When there is no ‘transcription of those proceedings,’ the defendant “is entitled to a new trial.”    

The trial court erred by permitting the defendant to waive counsel and proceed pro se at a probation revocation hearing without first satisfying the requirements of G.S. 15A-1242. The court concluded that even though the defendant executed two Waiver of Counsel forms (AOC-CR-227), one of which was certified by the trial court, “these waivers are not presumed to have been knowing, intelligent, and voluntary because the rest of the record indicates otherwise.” Nothing in the record indicated that the defendant understood and appreciated the consequences of the decision to proceed pro se, the nature of the charges, the proceedings, or the range of possible punishments. Noting that the trial court is not required to follow a specific “checklist” of questions when conducting the waiver inquiry, the court referenced a checklist that appears in the judges’ bench book. [Author’s note: the Bench Book cited in the opinion is out of print. However, the relevant section in the current version of the Superior Court Judges’ Bench Book is available here, and it includes the relevant checklist].

In Re Watson, 209 N.C. App. 507 (Feb. 15, 2011)

(1) Because the trial court failed to comply with the statutory mandates of G.S. 15A-1242, 122C-268(d), and IDS Rule 1.6, the respondent’s waiver of counsel in his involuntary commitment hearing was ineffective. The court adopted language from State v. Moore, 362 N.C. 319, 327-28 (2008), endorsing a fourteen-question checklist for taking a waiver of counsel. The court also noted with approval language from an Arizona case suggesting the proper inquiry in involuntary commitment cases. (2) The fact that the respondent had standby counsel did not cure the improper waiver of counsel. 

Trial court erred by allowing the defendant to dismiss counsel and proceed pro se mid-trial without making the inquiry required by G.S. 15A-1242.

The trial court’s action denying the defendant’s mid-trial request to discharge counsel and proceed pro se was not an abuse of discretion and did not infringe on the defendant’s right to self-representation. Prior to trial, the defendant waived his right to counsel and standby counsel was appointed. Thereafter, he informed the trial court that he wished standby counsel to select the jury. The trial court allowed the defendant’s request, informing the defendant that he would not be permitted to discharge counsel again. The defendant accepted the trial court’s conditions and stated that he wished to proceed with counsel. After the jury had been selected and the trial had begun, the defendant once again attempted to discharge counsel. The trial court denied the defendant’s request, noting that the defendant already had discharged four or five lawyers and had been uncooperative with appointed counsel.

The trial court did not err by appointing counsel for the defendant where there was no clear and unequivocal waiver. The defendant refused to answer whether he waived or asserted his right to counsel and made contradictory statements on the issue. He stated: “I’m not waiving my right to assistance of counsel,” “I want to retain my right”, and “I’m reserving my rights”. He also said: “I don’t need an attorney”, “I refuse his counsel”, and “I’ll have no counsel”.

The trial court erred by requiring the defendant to proceed to trial pro se. On February 7, 2013, the defendant was determined to be indigent and counsel was appointed. On May 30, 2014, the defendant waived his right to assigned counsel, indicating that he wished to hire a private lawyer, Mr. Parker. Between May 2014 and May 2015 the trial was continued several times to enable the defendant to obtain funds to pay Parker. On May 11, 2015, Parker informed the court that the defendant had not retained him and that if the court would not agree to continue the case, Parker would move to withdraw. Although the defendant was employed when he first indicated his desire to hire Parker, he subsequently lost his job and needed time to obtain funds to pay counsel. The trial court continued the case for two months, to give the defendant more time to obtain funds to pay Parker. On June 29, 2015, Parker filed a motion to withdraw for failure to pay. On July 6, 2015, after the trial court allowed Parker to withdraw, the defendant asked for new counsel. The trial court declined this request, the case proceeded pro se, and the defendant was convicted. The court found that the trial court’s ruling requiring the defendant to proceed pro se was based in part on the ADA’s false representation that at the May 11, 2015 hearing the defendant was asked if he wanted counsel appointed, was warned that the case would be tried in July regardless of whether he were able to hire Parker, and was explicitly warned that if he had not retained counsel by July he would be forced to proceed to trial pro se. The court concluded: “None of these representations are accurate.” Thus, the court held that the trial court’s denial of defendant’s request for appointed counsel and its ruling that the defendant had waived the right to appointed counsel were not supported by competent evidence.

The trial court erred by requiring the defendant to proceed pro se. After the defendant was indicted but before the trial date, the defendant signed a waiver of the right to assigned counsel and hired his own lawyer. When the case came on for trial, defense counsel moved to withdraw, stating that the defendant had been rude to him and no longer desired his representation. The defendant agreed and indicated that he intended to hire a different, specifically named lawyer. The trial court allowed defense counsel to withdraw and informed the defendant that he had a right to fire his lawyer but that the trial would proceed that week, after the trial court disposed of other matters. The defendant then unsuccessfully sought a continuance. When the defendant’s case came on for trial two days later, the defendant informed the court that the lawyer he had intended to hire wouldn’t take his case. When the defendant raised questions about being required to proceed pro se, the court indicated that he had previously waived his right to court-appointed counsel. The trial began, with the defendant representing himself. The court held that the trial court’s actions violated the defendant’s Sixth Amendment right to counsel. The defendant never asked to proceed pro se; although he waived his right to court-appointed counsel, he never indicated that he intended to proceed to trial without the assistance of any counsel. Next, the court held that the defendant had not engaged in the type of severe misconduct that would justify forfeiture of the right to counsel. Among other things, the court noted that the defendant did not fire multiple attorneys or repeatedly delay the trial. The court concluded:

[D]efendant’s request for a continuance in order to hire a different attorney, even if motivated by a wish to postpone his trial, was nowhere close to the “serious misconduct” that has previously been held to constitute forfeiture of counsel. In reaching this decision, we find it very significant that defendant was not warned or informed that if he chose to discharge his counsel but was unable to hire another attorney, he would then be forced to proceed pro se. Nor was defendant warned of the consequences of such a decision. We need not decide, and express no opinion on, the issue of whether certain conduct by a defendant might justify an immediate forfeiture of counsel without any preliminary warning to the defendant. On the facts of this case, however, we hold that defendant was entitled, at a minimum, to be informed by the trial court that defendant’s failure to hire new counsel might result in defendant’s being required to represent himself, and to be advised of the consequences of self-representation.

The trial court did not abuse its discretion by denying counsel’s motion to withdraw. The defendant was indicted for first-degree murder and armed robbery. Just prior to trial, the defendant provided defense counsel with a list of facts that he wished to concede to the jury: that he was at the scene of the crime; that he fired a gun; and that he was part of an attempted robbery. At a closed hearing, counsel advised the trial court that the defendant’s new admissions would impact his ability to handle the case. When he contacted the State Bar for guidance, it was suggested that he ask to withdraw because of a “personal conflict.” Counsel did so and the trial court denied the motion. Finding no abuse of discretion, the court noted that the personal conflict at issue related to counsel’s inability to believe what the defendant told him, in light of the eve of trial admissions. It noted:

As the State Bar confirmed, defense counsel did not have an actual conflict, and there is no evidence he breached the rules of professional conduct. Counsel had represented Defendant for nearly three years, and had presumably expended significant time and resources preparing for trial. In addition, there was no disagreement about trial strategy, nor was there an identifiable conflict of interest.

Moreover, the court concluded, the defendant could not show prejudice resulting from the denial of the motion to withdraw.

(1) Because the defendant had ample time to investigate, prepare, and present his defense and had failed to show that he received ineffective assistance of counsel by the trial court’s denial of his motion to continue, the trial court did not err by denying defense counsel’s motion to withdraw on this ground. (2) With respect to the defendant’s assertion that the trial court’s denial of the motion to withdraw resulted in him receiving ineffective assistance of counsel in other respects, the court found the record insufficient address the ineffectiveness issues and dismissed these grounds without prejudice to the defendant’s right to assert them in a motion for appropriate relief. 

(1) Where appointed counsel moved, on the sixth day of a bribery trial, for mandatory withdrawal pursuant to Rule 1.16(a) of the N.C. Rules of Professional Conduct, the trial court did not abuse its discretion by allowing withdrawal upon counsel’s citation of Comment 3 to Rule 1.16 as grounds for withdrawal. Comment 3 states in relevant part:

Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.

In light of the Comment, the trial court did not abuse its discretion by accepting counsel’s assertion that his withdrawal was mandatory in light of professional considerations. (2) After allowing the withdrawal, the trial court was not required to appoint substitute counsel. Under G.S. 7A-450(b), appointment of substitute counsel at the request of either an indigent defendant or original counsel is constitutionally required only when it appears that representation by original counsel could deprive the defendant of his or her right to effective assistance. The statute also provides that substitute counsel is required and must be appointed when the defendant shows good cause, such as a conflict of interest or a complete breakdown in communications. Here, counsel’s representation did not fail to afford the defendant his constitutional right to counsel nor did the defendant show good cause for the appointment of substitute counsel. Nothing in the record suggests a complete breakdown in communications or a conflict of interest. Indeed, the court noted, “there was no indication that [counsel]’s work was in any way deficient. Rather, [his] withdrawal was caused by [defendant] himself demanding that [counsel] engage in unprofessional conduct. 

State v. Hunt, 367 N.C. 700 (Dec. 14, 2014)

The court affirmed per curiam that aspect of the decision below that generated a dissenting opinion. In the decision below, State v. Hunt, 221 N.C. App. 489 (July 17, 2012), the court of appeals held, over a dissent, that the trial court did not err by conducting a voir dire when an issue of attorney conflict of interest arose and denying the defendant’s mistrial motion. A dissenting judge believed that the trial court erred by failing to conduct an evidentiary hearing to determine whether defense counsel’s conflict of interest required a mistrial.

State v. Choudhry, 365 N.C. 215 (Aug. 26, 2011)

Although the trial court’s inquiry of the defendant was insufficient to assure that the defendant knowingly, intelligently, and voluntarily waived his right to conflict free counsel, because the defendant failed to show that counsel’s performance was adversely affected by the conflict, he is not entitled to relief. At the defendant’s noncapital first-degree murder trial, the prosecution informed the trial court that defense counsel had previously represented a State’s witness, Michelle Wahome, who was the defendant’s girlfriend at the time of the incident in question and with whom the defendant had a child. Specifically, defense counsel had represented Wahome with respect to charges arising out of an incident at a shopping mall. The charges were reduced to common law forgery and although the defendant had not been charged in the matter, both he and Wahome appeared in the video surveillance and the items in question were men’s clothing. Defense counsel indicated that the prior representation would not impair his ability to represent the defendant and that he did not plan to question Wahome about the earlier incident. The trial court then informed the defendant that defense counsel had previously represented Wahome, a witness for the State and asked the defendant if he had any concerns about counsel’s ability appropriately to represent him, if he was satisfied with counsel’s representation, and if he desired to have counsel continue his representation. The defendant said that he had no concerns about counsel’s representation and gave an affirmative answer to each remaining question. The defendant was convicted and appealed. In a split decision, the court of appeals found no error. State v. Choudhry, 206 N.C. App. 418, 430 (Aug. 17, 2010). The dissenting judge contended that the trial court erred by failing to fully inform the defendant of the consequences of the potential conflict and that a remand was required. The supreme court determined that because the prosecutor brought a potential conflict to the trial judge’s attention, the trial judge was obligated to make an inquiry. The court concluded that because the trial court did not specifically explain the limitations that the conflict imposed on defense counsel’s ability to question Wahome regarding her earlier criminal charges or indicate that he had given the defendant such an explanation, the trial judge failed to establish that the defendant had sufficient understanding of the implications of counsel’s prior representation of Wahome to ensure a knowing, intelligent, and voluntary waiver of the potential conflict of interest. However, it went on to conclude that in light of counsel’s effective cross-examination of Wahome, the defendant failed to demonstrate an actual conflict of interest adversely affecting performance and thus was not entitled to relief.

State v. Phillips, 365 N.C. 103 (June 16, 2011)

The trial court did not err by failing to inquire into defense counsel’s alleged conflict of interest and by failing to obtain a waiver from the defendant of the right to conflict-free counsel. According to the defendant, the conflict arose when it became apparent that counsel might have to testify as a witness. The court rejected the defendant’s argument that his claim should be assessed under the conflict of interest ineffective assistance of counsel standard rather than the standard two-prong Strickland analysis. It noted that the conflict of interest standard generally applies to conflicts that arise from multiple or successive representation and it deferred to defense counsel’s conclusion that no conflict existed in the case at hand. Applying Strickland, the court rejected the defendant’s claim, concluding that even if counsel’s conduct fell below an objective standard of reasonableness, no prejudice occurred.

The trial court erred by ordering, under threat of contempt, that defense counsel’s legal assistant appear as a witness for the State. The State served the assistant with a subpoena directing her to appear to testify on the weeks of Friday, November 8, 2013, Monday, December 2, 2013, and Monday, January 13, 2014. However, the trial did not begin on any of the dates listed on the subpoena; rather, it began on Monday, November 18, 2013 and ended on Wednesday, November 20, 2013. Because the assistant had not been properly subpoenaed to appear on Tuesday, November 19th, the trial court erred by ordering, under threat of contempt, that she appear on that day as a witness for the State. The court went on to find the error prejudicial and ordered a new trial. The court held that if on re-trial the assistant again testifies for the State, the trial court must conduct a hearing to determine whether an actual conflict of interest exists that denies the defendant the right to effective assistance of counsel.

(1) Even if counsel provided deficient performance by informing the trial court, with the defendant’s consent, that the defendant wanted to go to trial and “take the chance that maybe lightning strikes, or I get lucky, or something,” no prejudice was shown. (2) The court declined the defendant’s invitation to consider his ineffective assistance claim a conflict of interest that was per se prejudicial, noting that the court has limited such claims to cases involving representation of adverse parties.

State v. King, 235 N.C. App. 187 (July 15, 2014)

No error occurred when the trial court denied defense counsel’s request for an overnight recess after having to defend himself against the State’s motion for contempt based on an allegation that counsel violated the court’s order regarding the rape shield rule in connection with his examination of the victim in this child sexual abuse case. After the trial court denied the State’s motion, defense counsel requested an overnight recess to “calm down” about the contempt motion. The trial court denied this request but at 11:38 am called a recess until 2 pm that day. The court rejected the defendant’s arguments that there was a conflict of interest between the defendant and defense counsel and that the trial court’s denial of the overnight recess resulted in ineffective assistance of counsel. 

The defendant was entitled to a new trial where the trial court proceeded to trial over the defendant’s objection to continued representation by appointed counsel who had previously represented one of the State’s witnesses. At a pretrial hearing the State informed the trial court that defense counsel had previously represented Mr. Slade, who the State intended to call as a trial witness. The defendant told the trial court that he was concerned about a conflict of interest and asked for another lawyer. Slade subsequently waived any conflict and the State Bar advised the trial court that since Slade had consented “the lawyer’s ability to represent the current client is not affected” and that the current client’s consent was not required. The trial court conducted no further inquiry. The court held that the trial court erred by failing to make any inquiry into the nature and extent of the potential conflict and whether the defendant wished to waive the conflict. It concluded:

[W]e believe that Defendant . . . was effectively forced to go to trial while still represented by his trial counsel, who had previously represented one of the State’s witnesses and who acknowledged being in the possession of confidential information which might be useful for purposes of cross-examining that witness, despite having clearly objected to continued representation by that attorney. As a result, given that prejudice is presumed under such circumstances, Defendant is entitled to a new trial.

The trial court did not err by removing the defendant’s retained counsel, Wayne Eads, based on the possibility that Eads might be called to testify as a witness at trial. The defendant was charged with attempted murder and felony assault. The defendant was having an affair with the victim’s wife and the victim’s wife had discussed with the defendant the possibility of leaving her husband. Prior to the incident at issue, the victim’s wife also communicated with Eads, who was the defendant’s best friend and attorney, about her relationship with the defendant and the consequences of a divorce. The trial court’s action was proper given “a serious potential for conflict” based on Eads’ relationship with the defendant and communication with the victim’s wife. The court stated:

Eads was aware of personal and sensitive information, including the nature of their affair, which was a major factor leading to the shooting. Had Eads remained as defendant’s counsel, he might have been called to testify, at which time he might have been asked to disclose confidential information regarding the relationship between defendant and [the victim’s wife], which information may have divulged defendant’s motive for shooting [the victim], which in turn could compromise his duty of loyalty to his client.

The court went on to conclude that competent evidence supported the trial court’s conclusion that Eads was likely to be a necessary witness at trial and that none of the exceptions to Rule 3.7 of the N.C. Revised Rules of Professional Conduct applied.

In this habeas corpus case, the Court reversed the Sixth Circuit, which had held that defense counsel provided per se ineffective assistance of counsel under United States v. Cronic, 466 U. S. 648 (1984), when he was briefly absent during testimony concerning other defendants. The Court determined that none of its decisions clearly establish that the defendant is entitled to relief under Cronic. The Court clarified: “We have never addressed whether the rule announced in Cronic applies to testimony regarding codefendants’ actions.” The Court was however careful to note that it expressed no view on the merits of the underlying Sixth Amendment principle.

State v. Phillips, 365 N.C. 103 (June 16, 2011)

(1) Investigators did not violate the capital defendant’s constitutional right to counsel by continuing to question him after an attorney who had been appointed as provisional counsel arrived at the sheriff’s office and was denied access to the defendant. The interrogation began before the attorney arrived, the defendant waived his Miranda rights, and he never stated that he wanted the questioning to stop or that he wanted to speak with an attorney. (2) Office of Indigent Defense Services statutes and rules regarding an indigent’s entitlement to counsel did not make the defendant’s statement inadmissible. Although the relevant statutes create an entitlement to counsel and authorize provisional counsel to seek access to a potential capital defendant, they do not override a defendant’s waiver of the right to counsel, which occurred in this case. 

State v. Bass, ___ N.C. App. ___, 802 S.E.2d 477 (June 6, 2017) temp. stay granted, ___ N.C. ___, 800 S.E.2d 421 (Jun 23 2017)

In this assault case involving self-defense the court held, over a dissent, that the trial court committed prejudicial error by denying the defendant’s motion to continue, made after the prosecutor provided defense counsel with additional reports of the victim’s assaultive behavior on the evening before trial, where that behavior was relevant to the defendant’s self-defense assertion that the victim was the aggressor. The defendant should have been permitted adequate time to investigate these additional instances of the victim’s violent and explosive conduct in order to adequately prepare his defense. The court concluded: “Failure to allow counsel any time to investigate after the State’s disclosures, provided the night before trial, . . . violated Defendant’s rights to effective assistance of counsel and to present a complete defense.”

Where appointed counsel was allowed to withdraw, on the sixth day of a bribery trial, pursuant to Comment 3 of Rule 1.16(a) of the N.C. Rules of Professional Conduct, the court rejected the defendant’s argument that private counsel retained after this incident was presumptively ineffective given the limited time he had to review the case. The defendant noted that new counsel entered the case on the seventh day of trial and requested only a four-hour recess to prepare. Given the status of the trial and the limited work to be done, the court rejected the defendant’s argument. The court also rejected the defendant’s argument that new counsel rendered deficient performance by failing to request a longer or an additional continuance.

State v. Rouse, 234 N.C. App. 92 (May. 20, 2014)

The defendant was denied his constitutional right to counsel when the trial court held a resentencing hearing on the defendant’s pro se MAR while the defendant was unrepresented. The court vacated the judgment and remanded for a new sentencing hearing.

The trial court’s denial of a motion to continue in a murder case did not violate the defendant’s right to effective assistance of counsel. The defendant asserted that he did not realize that certain items of physical evidence were shell casings found in defendant’s room until the eve of trial and thus was unable to procure independent testing of the casings and the murder weapon. Even though the relevant forensic report was delivered to the defendant in 2008, the defendant did not file additional discovery requests until February 3, 2009, followed by Brady and Kyles motions on February 11, 2009. The trial court afforded the defendant an opportunity to have a forensic examination done during trial but the defendant declined to do so. The defendant was not entitled to a presumption of prejudice on grounds that denial of the motion created made it so that no lawyer could provide effective assistance. The defendant’s argument that had he been given additional time, an independent examination might have shown that the casings were not fired by the murder weapon was insufficient to establish the requisite prejudice.

(1) In this murder case, counsel’s statement in closing argument did not exceed the scope of consent given by the defendant during a Harbison inquiry. In light of the Harbison hearing, the defendant knowingly, intelligently and voluntarily, and with full knowledge of the awareness of the possible consequences agreed to counsel’s concession that he killed the victim and had culpability for some criminal conduct. The court noted that counsel’s trial strategy was to argue that the defendant lacked the mental capacity necessary for premeditation and deliberation and therefore was not guilty of first-degree murder. (2) The Harbison standard did not apply to counsel’s comments regarding the “dreadfulness” of the crimes because these comments were not concessions of guilt. Considering these statements under the Strickland standard, the court noted that counsel pointed out to the jury that while the defendant’s crimes were horrible, the central issue was whether the defendant had the necessary mental capacity for premeditation and deliberation. The defendant failed to rebut the strong presumption that counsel’s conduct was reasonable. Additionally no prejudice was established given the overwhelming evidence of guilt.

In this murder case, trial counsel did not render ineffective assistance by failing to produce evidence, as promised in counsel’s opening statement to the jury, that the shooting in question was justified or done in self-defense. After the trial court conducted a Harbison inquiry, defense counsel admitted to the jury that the defendant had a gun and shot the victim but argued that the evidence would show that the shooting was justified. The concession regarding the shooting did not pertain to a hotly disputed factual matter given that video surveillance footage of the events left no question as to whether the defendant shot the victim. The trial court’s Harbison inquiry was comprehensive, revealing that the defendant knowingly and voluntarily consented to counsel’s concession. The court also rejected the defendant’s argument that making unfulfilled promises to the jury in an opening statement constitutes per se ineffective assistance of counsel. And it found that because counsel elicited evidence supporting a defense of justification, counsel did not fail to fulfill a promise made in his opening statement. The court stated: “Defense counsel promised and delivered evidence, but it was for the jury to determine whether to believe that evidence.”

In an attempted murder case, counsel did not commit a Harbison error when he stated during closing argument: “You have heard my client basically admit that while pointing the gun at someone, he basically committed a crime: Assault by pointing a gun.” Because assault by pointing a gun is not a lesser-included of the charged offense, counsel’s statement fell outside of Harbison. 

In a murder case, trial counsel did not impermissibly concede the defendant’s guilt under Harbison. Although defense counsel never explicitly conceded the defendant’s guilt during trial, she did make factual concessions, including admitting that the defendant was present at the shooting and that he believed that he was participating in a plan to commit a robbery. The court found that it did not need to decide whether the factual admissions constituted an admission of guilt to first degree felony-murder given that the defendant expressly consented to counsel’s admissions. 

In an appeal from a conviction obtained in the Eve Carson murder case, the court held that counsel did not commit a Harbison error (unconsented to admission of guilt by counsel). Even taken out of context, the remark at issue did not even approach a concession of guilt.

The court rejected the defendant’s Harbison claim (it is ineffective assistance of counsel for a defense lawyer to concede guilt without the defendant’s consent) where defense counsel raised the admission with the trial court before it was made and the defendant consented to counsel’s strategy.

The court dismissed the defendant’s Harbison claim without prejudice to it being raised in a motion for appropriate relief. During closing argument, defense counsel stressed that the defendant was a drug user, not a drug dealer. With regard to a charge of possession of drug paraphernalia, counsel stated “finding him guilty of the drug paraphernalia I would agree is about as open and shut as we can get in this case, but finding him guilty of the selling, you don’t have the seller.” The court noted that this statement conceded guilt. However, because of the incomplete record as to consent by the defendant, the court dismissed without prejudice. 

Although concluding that counsel admitted the defendant’s guilt to the jury, the court dismissed the defendant’s Harbison claim without prejudice to his right to file a motion for appropriate relief on that basis in the trial court. Counsel conceded guilt to resisting a public officer and eluding arrest when he stated, among other things, that the defendant “chose to get behind the wheel after drinking, and he chose to run from the police[,]” and “[the officer] was already out of the way and he just kept on going, kept running from the police.” However, the record did not indicate whether the defendant had consented to these admissions.

The court dismissed the defendant’s Harbison claim without prejudice in order for it to be raised by way of a motion for appropriate relief in the trial division. As to a charge of resisting an officer, defense counsel had argued to the jury that “[T]he elements are there. They were officers of the law. They were discharging a duty of their office. We are not contending they were doing anything unlawful at the time and he didn’t obey. He delayed them. He obstructed them, he resisted them[.]” The court concluded that such statements cannot be construed in any other light than admitting the defendant’s guilt. However, the court determined, based on the record on appeal, it was unclear whether the defendant consented to this admission of guilt.

(1) Defense counsel did not commit a Harbison error during the habitual felon proceeding by admitting that the defendant had pled guilty to three felonies. Although defense counsel admitted the defendant’s prior convictions, he never argued that the jury should find that the defendant had attained habitual felon status and in fact suggested that the jury take certain mitigating factors into account. (2) Even if such an admission occurred, the defendant would not be entitled to relief because Harbison does not apply to a habitual felon proceeding. 

Because defense counsel admitted the defendant’s guilt to assault with a deadly weapon and involuntary manslaughter to the jury without obtaining the defendant’s express consent, counsel was per se ineffective under State v. Harbison, 315 N.C. 175 (1985). A majority of the panel distinguished the United States Supreme Court’s holding in Florida v. Nixon, 543 U.S. 175 (2004) (under federal law, when the defendant alleges ineffective assistance due to an admission of guilt, the claim should be analyzed under the Strickland attorney error standard), on grounds that Nixon was a capital case and the case before the court was non-capital. The majority further concluded that post-Nixon decisions by the North Carolina Supreme Court and the court of appeals required it to apply the Harbison rule.

No Harbison error occurred in this murder case where the defendant consented, on the record, to counsel’s strategy of admitting guilt.

By wrongly advising the defendant that a guilty plea to a drug charge would not result in deportation, counsel rendered ineffective assistance of counsel (IAC) in connection with the defendant’s plea. After he was charged with possessing ecstasy with intent to distribute, the defendant feared that a criminal conviction might affect his status as a lawful permanent resident. His attorney assured him that the Government would not deport him if he pleaded guilty. As a result the defendant, who had no real defense to the charge, accepted a plea that carried a lesser prison sentence than he would have faced at trial. The defendant’s attorney was wrong: The conviction meant that the defendant was subject to mandatory deportation. Before the Court, the Government conceded that the defendant received objectively unreasonable representation when counsel assured him that he would not be deported if he pleaded guilty. The question before the Court was whether the defendant could show prejudice as a result. The Court noted that when an IAC claim involves a claim of attorney error during the course of a legal proceeding—for example, that counsel failed to raise an objection at trial or to present an argument on appeal—a defendant raising such a claim can demonstrate prejudice by showing a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. This case, however was different. The Court explained:

             But in this case counsel’s “deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” When a defendant alleges his counsel’s deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial “would have been different” than the result of the plea bargain. That is because, while we ordinarily “apply a strong presumption of reliability to judicial proceedings,” “we cannot accord” any such presumption “to judicial proceedings that never took place.”

            We instead consider whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.” As we held in Hill v. Lockhart, when a defendant claims that his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” (citations omitted).

The Court rejected the dissent’s argument that the defendant must also show that he would have been better off going to trial. It conceded “[t]hat is true when the defendant’s decision about going to trial turns on his prospects of success and those are affected by the attorney’s error—for instance, where a defendant alleges that his lawyer should have but did not seek to suppress an improperly obtained confession.” The Court found that the error at issue was different. Here, the defendant “knew, correctly, that his prospects of acquittal at trial were grim, and his attorney’s error had nothing to do with that. The error was instead one that affected [the defendant’s] understanding of the consequences of pleading guilty.” And here, the defendant argues that he never would have accepted a guilty plea had he known that he would be deported as a result; the defendant insists he would have gambled on trial, risking more jail time for whatever small chance there might be of an acquittal that would let him remain in the United States. Considering this claim, the Court rejected the Government’s request for a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial. Instead it held: “In the unusual circumstances of this case, we conclude that [the defendant] has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” 

Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899 (June 22, 2017)

In a case where the defendant failed to preserve a claim of structural error with respect to improper closure of the courtroom and raised it later in the context of an ineffective assistance claim, the Court held that the defendant was not relieved of his burden of establishing prejudice, which he failed to do. During the defendant’s state criminal trial, the courtroom was occupied by potential jurors and closed to the public for two days of jury selection. Defense counsel neither objected to the closure at trial nor raised the issue on direct review. The case came to the Court in the context of an ineffective assistance of counsel claims. On the facts presented, the Court held that the defendant had not established prejudice. It explained:

In the criminal justice system, the constant, indeed unending, duty of the judiciary is to seek and to find the proper balance between the necessity for fair and just trials and the importance of finality of judgments. When a structural error is preserved and raised on direct review, the balance is in the defendant’s favor, and a new trial generally will be granted as a matter of right. When a structural error is raised in the context of an ineffective assistance claim, however, finality concerns are far more pronounced. For this reason, and in light of the other circumstances present in this case, petitioner must show prejudice in order to obtain a new trial. As explained above, he has not made the required showing.

In this Texas capital murder case, the defendant’s Sixth Amendment right to effective assistance of counsel was violated when his lawyer introduced evidence from a psychologist that the defendant was statistically more likely to act violently because he is black. A Texas jury convicted the defendant of capital murder. Under state law, the jury could impose a death sentence only if it found that the defendant was likely to commit acts of violence in the future. The defendant’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that the defendant probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that the defendant was statistically more likely to act violently because he is black. The jury sentenced the defendant to death. With respect to first prong of the Strickland attorney error standard, the Court held that counsel’s performance fell outside the bounds of competent representation. Counsel knew that the expert’s report reflected the view that the defendant’s race disproportionately predisposed him to violent conduct; he also knew that the principal point of dispute during the trial’s penalty phase was whether the defendant was likely to act violently in the future. Counsel nevertheless called the expert to the stand and specifically elicited testimony about the connection between the defendant’s race and the likelihood of future violence. Additionally counsel put into evidence the expert’s report stating that the defendant’s race, “Black,” suggested an “[i]ncreased probability” as to future dangerousness. This report “said, in effect, that the color of [the defendant’s] skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race.” The Court went on to hold that the second prong of the Strickland test—prejudice--also was satisfied, finding that it was reasonably probable that the proceeding would have ended differently had counsel rendered competent representation. It noted that the evidence at issue was “potent” and “appealed to a powerful racial stereotype—that of black men as ‘violence prone.’” The expert’s opinion “coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing.” The court concluded: “the effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.” This effect was heightened because the witness took the stand as a medical expert, “bearing the court’s imprimatur.” The Court rejected the notion that any mention of race was de minimis, concluding “Some toxins can be deadly in small doses.” [This case also addresses a number of procedural issues that apply in federal court; because they are not relevant to state court proceedings they are not summarized here.]

The Court reversed the state decision below which had held that the defendant’s lawyers were ineffective under Strickland. At the defendant’s 1995 murder trial, the State offered FBI Agent Peele as an expert witness on Comparative Bullet Lead Analysis (CBLA). Peele’s testimony linked a bullet fragment removed from the victim’s brain to the defendant’s gun. In 2006, the defendant asserted a post-conviction claim that his defense attorneys were ineffective for failing to question the legitimacy of CBLA. At this point—eleven years after his conviction--CBLA had fallen out of favor. In fact, in 2006, the Court of Appeals of Maryland held that CBLA evidence was not generally accepted by the scientific community and was therefore inadmissible. Although the defendant’s post-conviction claim failed in the trial court, he appealed and the Maryland appellate court reversed. According to the Maryland court, defendant’s lawyers were deficient because they failed to unearth a report co-authored by Peele in 1991 and containing a single finding which could have been used to undermine the CBLA analysis. The Supreme Court reversed, noting at the time of the defendant’s trial “the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence.” And in fact, the 1991 report at issue “did not question the validity of CBLA, concluding that it was a valid and useful forensic tool to match suspect to victim.” The Court held: “Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis.” Furthermore the Court noted, it is unclear that counsel would have been able to uncover the report, if a diligent search was made.

Defense counsel in a capital case rendered deficient performance when he made an “inexcusable mistake of law” causing him to employ an expert “that he himself deemed inadequate.” Counsel believed that he could only obtain $1,000 for expert assistance when in fact he could have sought court approval for “any expenses reasonably incurred.” The Court clarified:

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired. The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.

Slip Op. at 12 (citation omitted). The court remanded for a determination of whether counsel’s deficient performance was prejudicial.

Missouri v. Frye, 566 U.S. 133 (Mar. 21, 2012)

The Court held that a defense lawyer rendered ineffective assistance by allowing a plea offer by the prosecution to expire without advising the defendant of the offer or allowing him to consider it. The defendant was charged with felony driving with a revoked license, an offense carrying a maximum term of imprisonment of four years. On November 15, the prosecutor sent a letter to defense counsel offering a choice of two plea bargains. First, the prosecutor offered to recommend a 3-year sentence for a guilty plea to the felony charge, without a recommendation regarding probation but with a recommendation for 10 days in jail as so called “shock” time. Second, to reduce the charge to a misdemeanor and, if the defendant pleaded guilty, to recommend a 90-day sentence. The misdemeanor charge would have carried a maximum term of imprisonment of one year. The letter stated both that offers would expire on December 28. The defendant’s attorney did not tell the defendant of the offers and they expired. Before this charge was resolved, the defendant was again arrested for driving with a revoked license. The defendant subsequently plead guilty to the initial charge. There was no plea agreement. The trial court accepted the guilty plea and sentenced the defendant to three years in prison. The defendant challenged his conviction, arguing that counsel’s failure to inform him of the plea offer constituted ineffective assistance of counsel.

            The Court began its analysis by concluding that the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. It stated: “In today’s criminal justice system . . . the negotiation of a plea bargain . . . is almost always the critical point for a defendant.” Having determined that there is a right to effective assistance with respect to plea offers, the Court turned to the question of whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both. On this issue it held:

[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.

The Court then turned to the issue of prejudice and laid out the following standards:

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.  To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. 

Applying these standards to the case before it, the Court concluded that because defense counsel made no meaningful attempt to inform the defendant of the written plea offer, counsel’s representation fell below an objective standard of reasonableness. As to prejudice, the Court found that the state court applied the wrong standard. Specifically, it did not require the defendant to show that the first plea offer, if accepted, would have been adhered to by the prosecution and accepted by the trial court, particularly given the defendant’s subsequent arrest for the same offense. The Court remanded on this issue. 

Lafler v. Cooper, 566 U.S. 156 (Mar. 21, 2012)

The Court held that defense counsel rendered ineffective assistance by advising a defendant to reject a plea offer and it specified the appropriate remedy for the constitutional violation. The defendant was charged with assault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a felony, misdemeanor possession of marijuana, and being a habitual offender. The prosecution twice offered to dismiss two of the charges and to recommend a sentence of 51-85 months for the other two, in exchange for a guilty plea. The defendant rejected both offers, allegedly after his attorney convinced him that the prosecution would be unable to establish intent to murder. On the first day of trial the prosecution offered a significantly less favorable plea deal, which the defendant rejected. The defendant was convicted on all counts and received a mandatory minimum sentence of 185-360 months’ imprisonment. He then challenged the conviction, arguing that his attorney’s advice to reject the plea constituted ineffective assistance.

On appeal the parties agreed that counsel rendered deficient performance when he advised the defendant to reject the plea offer. Thus, the only issue before the Court was how to apply Strickland’s prejudice prong. The court held that when ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the later trial

a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

            The Court then addressed the issue of the appropriate remedy, noting that the injury suffered by defendants who decline a plea offer as a result of ineffectiveness and then receive a greater sentence at a trial can come in at least one of two forms. Sometimes, the Court explained, the sole advantage a defendant would have received under the plea is a lesser sentence. In this situation, the trial court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he or she would have accepted the plea. “If the showing is made,” the Court elaborated, “the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.” In some situations, however, the Court noted “resentencing alone will not be full redress for the constitutional injury,” such as when an offer was for a guilty plea to a less serious crime than the one the defendant ends up getting convicted for at trial, or if a mandatory sentence limits a judge’s sentencing discretion. In these situations, the Court explained, “the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” The Court noted that when implementing a remedy in both situations, the trial court must weigh various factors. Although it determined that the “boundaries of proper discretion need not be defined here” the Court noted two relevant considerations:

First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions.  Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made.  The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.

Applying the relevant test to the case at hand, the Court found that the defendant met Strickland’s two-part test for ineffective assistance. The fact of deficient performance had been conceded and the defendant showed that but for counsel’s deficient performance there is a reasonable probability that both he and the trial court would have accepted the guilty plea. Additionally, as a result of not accepting the plea and being convicted at trial, respondent received a minimum sentence 3½ times greater than he would have received under the plea. The Court found that the correct remedy is to order the State to reoffer the plea agreement. It continued: “Presuming [the defendant] accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.”

In a capital case, the Ninth Circuit Court of Appeals improperly granted the defendant habeas relief on his claim of penalty-phase ineffective assistance of counsel. The defendant and two accomplices broke into a house at night, killing two men who interrupted the burglary. A jury convicted the defendant of first-degree murder, and he was sentenced to death. After the California Supreme Court twice denied the defendant habeas relief, a federal district court held an evidentiary hearing and granted the defendant relief under 28 U.S.C. § 2254 on grounds of “inadequacy of counsel by failure to investigate and present mitigation evidence at the penalty hearing.” Sitting en banc, the Ninth Circuit affirmed, holding that the California Supreme Court unreasonably applied Strickland v. Washington, 466 U. S. 668 (1984), in denying the defendant’s claim of penalty-phase ineffective assistance of counsel. The U.S. Supreme Court reversed, concluding that the defendant failed to show that the state court unreasonably concluded that defense counsel’s penalty phase “family sympathy” strategy (that consisted principally of the testimony of the defendant’s mother) was appropriate. Likewise, the defendant failed to show that the state court unreasonably concluded and that even if counsel’s conduct was deficient, no prejudice occurred, given that the new evidence largely duplicated the mitigation evidence presented at trial and the extensive aggravating evidence.

The Court reversed the Ninth Circuit, which had held that the state court unreasonably applied existing law when rejecting the defendant’s claim that his counsel was deficient by failing to present expert testimony on serology, pathology, and blood spatter patterns; the defendant had asserted that this testimony would have confirmed his version of how the events in question occurred. The Court concluded that it was at least arguable that a reasonable attorney could decide to forgo inquiry into the blood evidence under the circumstances, which included, among other things, the fact that counsel had reason to question the truth of the defendant’s version of the events. The Court also rejected the Ninth Circuit’s conclusion that counsel was deficient because he had not expected the prosecution to offer expert testimony and therefore was unable to offer expert testimony of his own in response. The Court concluded that although counsel was mistaken in thinking the prosecution would not present forensic testimony, the prosecution itself did not expect to make that presentation and had made no preparations for doing so on the eve of trial. For this reason alone, the Court concluded, it is at least debatable whether counsel’s error was so fundamental as to call the fairness of the trial into doubt. Finally, the Court concluded that it would not have been unreasonable for the state court to conclude that the defendant failed to establish prejudice. Justice Kagan did not participate in the consideration or decision of the case.

Premo v. Moore, 562 U.S. 115 (Jan. 19, 2011)

The Court reversed the Ninth Circuit, which had held that the state court unreasonably applied existing law when rejecting the defendant’s claim that counsel was ineffective by failing to file a motion to suppress the defendant’s confession to police before advising him to accept a plea offer. Counsel had explained that he discussed the plea bargain with the defendant without first challenging the confession to the police because suppression would serve little purpose given that the defendant had made full and admissible confessions to two other private individuals, both of whom could testify. The state court would not have been unreasonable to accept this explanation. Furthermore, the Court held, the state court reasonably could have determined that the defendant would have accepted the plea agreement even if his confession had been ruled inadmissible. Justice Kagan did not participate in the consideration or decision of the case.

Sears v. Upton, 561 U.S. 945 (June 29, 2010)

After the defendant was sentenced to death in state court, a state post-conviction court found that the defendant’s lawyer conducted a constitutionally inadequate penalty phase investigation that failed to uncover evidence of the defendant’s significant mental and psychological impairments. However, the state court found itself unable to assess whether counsel’s conduct prejudiced the defendant; because counsel presented some mitigating evidence, the state court concluded that it could not speculate as to the effect of the new evidence. It thus denied the defendant’s claim of ineffective assistance. The United State Supreme Court held that although the state court articulated the correct prejudice standard (whether there was a reasonable likelihood that the outcome of the trial would have been different if counsel had done more investigation), it failed to properly apply that standard. First, the state court put undue reliance on the assumed reasonableness of counsel’s mitigation theory, given that counsel conducted a constitutionally unreasonable mitigation investigation and that the defendant still might have been prejudiced by counsel’s failures even if his theory was reasonable. More fundamentally, the Court continued, in assessing prejudice, the state court failed to consider the totality of mitigation evidence (both that adduced at trial and the newly uncovered evidence). The prejudice inquiry, the Court explained, requires the state court to speculate as to the effect of the new evidence. A proper prejudice inquiry, it explained, requires the court to consider the newly discovered evidence along with that introduced at trial and assess whether there is a significant probability that the defendant would have received a different sentence after a constitutionally sufficient mitigation investigation.

After pleading guilty to a charge of transportation of a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than 40 years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country so long. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain[] [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.

Wood v. Allen, 558 U.S. 290 (Jan. 20, 2010)

The state court’s conclusion that the defendant’s counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts. The Court did not reach the question of whether the strategic decision itself was a reasonable exercise of professional judgment under Strickland.

Smith v. Spisak, 558 U.S. 139 (Jan. 12, 2010)

Even if counsel’s closing argument at the sentencing phase of a capital trial fell below an objective standard of reasonableness, the defendant could not show that he was prejudiced by this conduct.

Porter v. McCollum, 558 U.S. 30 (Nov. 30, 2009)

A capital defendant’s trial counsel’s conduct fell below an objective standard of reasonableness when counsel failed to investigate and present mitigating evidence, including evidence of the defendant’s mental health, family background, and military service. The state court’s holding that the defendant was not prejudiced by counsel’s deficient representation was unreasonable. To establish prejudice, the defendant need not show that counsel’s deficient conduct more likely than not altered the outcome; the defendant need only establish a probability sufficient to undermine the confidence in the outcome, as he did in this case.

Wong v. Belmontes, 558 U.S. 15 (Nov. 16, 2009)

Even if counsel’s performance was deficient with regard to mitigating evidence in a capital trial, the defendant could not establish prejudice. Trial counsel testified that he presented a limited mitigating case in order to avoid opening the door for the prosecution to admit damaging evidence regarding a prior murder to which the defendant admitted but for which the defendant could not be tried. The defendant did not establish a reasonable probability that the jury would have rejected a capital sentence after it weighed the entire body of mitigating evidence (including the additional testimony counsel could have presented, some of which was cumulative) against the entire body of aggravating evidence (including evidence of the prior murder, which would have be admitted had counsel made a broader case for mitigation). 

Bobby v. Van Hook, 558 U.S. 4 (Nov. 9, 2009)

Although restatements of professional conduct, such as ABA Guidelines, can be useful guides to whether an attorney’s conduct was reasonable, they are relevant only when they describe the professional norms prevailing at the time that the representation occurred. In this case, the lower court erred by applying 2003 ABA standards to a trial that occurred eighteen years earlier. Moreover, the lower court erred by treating the ABA Guidelines “as inexorable commands with which all capital defense counsel must comply.” Such standards are merely guides to what is reasonable; they do not define reasonableness. The Court went on to reject the defendant’s arguments that counsel was ineffective under prevailing norms; the defendant had argued that his lawyers began their mitigation investigation too late and that the scope of their mitigation investigation was unreasonable. The Court held that even if the defendant’s counsel had performed deficiently, the defendant suffered no prejudice.

Knowles v. Mirzayance, 556 U.S. 111 (Mar. 24, 2009)

Counsel was not ineffective by recommending that the defendant withdraw his insanity defense. The defendant entered pleas of not guilty and not guilty by reason of insanity (NGI) at his first-degree murder trial in state court. State procedure required a bifurcated trial consisting of a guilt phase followed by a NGI phase. During the guilt phase, the defendant sought, through medical testimony, to show that he was insane and thus incapable of premeditation and deliberation. The jury nevertheless convicted him of first-degree murder. For the NGI phase, the defendant had the burden of showing insanity. Counsel had planned to meet that burden presenting medical testimony similar to that offered in the guilt phase. Although counsel had planned to offer additional testimony of the defendant’s parents, counsel learned that the parents were refusing to testify. At this point, counsel advised the defendant to withdraw his NGI plea and the defendant complied. Defense counsel was not ineffective by recommending withdrawal of a defense that counsel reasonably believed was doomed to fail. The defendant’s medical testimony already had been rejected in the guilt phase and the defendant’s parents’ expected testimony, which counsel believed to be the strongest evidence, was no longer available. Counsel is not required to raise claims that are almost certain to lose. Additionally, the defendant did now show prejudice; it was highly improbable that jury that had just rejected testimony about the defendant’s mental state when the state bore the burden of proof would have reached a different result when the defendant presented similar evidence at the NFI phase. 

The Court of Appeals erred by holding that the defendant received ineffective assistance of counsel when appellate counsel failed to challenge the sufficiency of the evidence supporting the defendant’s armed robbery conviction. Before the Supreme Court, the State argued that appellate counsel made a strategic decision not to challenge the sufficiency of the evidence. However, because the lower courts did not determine whether there was a strategic reason for counsel to refrain from addressing the sufficiency of the evidence, the record was insufficient to determine the merits of the ineffective assistance claim. The court reversed and remanded so that the trial court could fully address whether counsel made a strategic decision not to raise the sufficiency of the evidence argument, if such a decision was reasonable and whether the defendant suffered prejudice. 

In this attempted murder and assault case, the court rejected the defendant’s claim that his lawyer rendered ineffective assistance by failing to object to the introduction of testimony about street gangs. The court rejected the assertion that there was no strategic reason for trial counsel to fail to object to the evidence. The record clearly established that trial counsel’s strategy was to show that the shooting may have been gang related. Counsel’s strategy focused on the victim’s own criminal record and gang connections, the fact that he was shot again when the defendant was incarcerated, and the connection between where the gun was found and the gang with which the victim was associated. Counsel further asserted in jury argument that the prosecution reflected law enforcement tunnel vision and a failure to explore other possible culprits. The court rejected the defendant’s argument that this trial strategy constituted ineffective assistance of counsel.

(1) The court rejected the defendant’s assertion that counsel was ineffective by failing to state for the record details of an absolute impasse between himself and counsel. Although the defendant initially wanted counsel to make certain admissions in opening statements to the jury, after discussing the issue with counsel he informed the court that he would follow counsel’s advice. The court noted there was neither disagreement regarding tactical decisions nor anything in the record suggesting any conflict between the defendant and defense counsel. Although counsel made statements to the trial court indicating that he was having difficulty believing things that the defendant told him, the court noted: “Defendant points to no authority which would require a finding of an impasse where defense counsel did not believe what a criminal-defendant client told him.” (2) Trial counsel did not provide ineffective assistance when he failed to cross-examine witness Tarold Ratlif for a third time about who shot the victim. The defendant asserted that additional questioning would have supported his theory that someone else killed the victim. The court concluded that even assuming arguendo that the defendant satisfied the first prong of the Strickland ineffective assistance of counsel test, he could not--in light of the evidence presented--satisfy the second prong, which requires a showing of prejudice.

(1) In this drug case, the court rejected the defendant’s argument that she received ineffective assistance of counsel when defense counsel elicited damaging testimony from a law enforcement officer that a witness was “honest.” Declining to address whether counsel’s conduct constituted deficient performance, the court concluded that the ineffective assistance of counsel claim failed on the prejudice prong: there was no reasonable probability that in the absence of trial counsel’s alleged errors the results of the proceeding would have been different. 

(2) The defendant did not receive ineffective assistance of counsel when counsel failed to object to a law enforcement officer’s testimony that he felt that the defendant should be charged because she was as guilty as her husband. The court noted that because law enforcement officers may not express an opinion that they believe a defendant to be guilty, admission of the statement was error. However, the defendant failed to show prejudice and thus her ineffective assistance of counsel claim failed.

 

The court rejected the defendant’s argument that trial counsel was deficient by failing to give notice to the State of the defendant’s intention to offer an alibi witness. The defendant had argued that trial counsel’s failure was a violation of the discovery rules and resulted in the trial court declining to give an alibi jury instruction. The court found however that the trial court’s decision declining to give an alibi instruction was not due to ineffective assistance but rather to the trial court’s error. A defendant only is required to give notice of an alibi witness after being ordered to do so by the trial court. Here, no such order was entered. Therefore, counsel was not deficient in failing to disclose the defendant’s intent to offer an alibi witness. The court went on to conclude that even if it were to find that counsel’s performance was deficient, the defendant failed to show prejudice. Although the trial court declined to give an instruction on alibi, the alibi evidence--the defendant’s own testimony that he was elsewhere with his girlfriend at the time of the offense--was heard and considered by the jury. 

Counsel was not ineffective by failing to allege a Fourth Amendment violation in a motion to suppress a warrantless blood draw. Here, no prejudice occurred under the Strickland test because there was sufficient evidence for a conviction based driving while under the influence of an impairing substance prong of DWI such that BAC evidence for the .08 prong was not required.

State v. Hyman, ___ N.C. App. ___, 797 S.E.2d. 308 (Feb. 21, 2017) cert. granted, ___ N.C. ___, 798 S.E.2d 523 (May 3 2017)

Over a dissent, the court reversed the trial court’s order denying the defendant’s motion for appropriate relief (MAR). In the defendant’s capital murder trial, he was represented by lawyers Smallwood and High. When the State called eyewitness Speller to testify, Smallwood told High that she previously represented Speller in an unrelated probation matter and had spoken to him about the defendant’s case. Smallwood’s notes from the conversation undermined Speller’s trial testimony. Smallwood attempted to cross-examine Speller about their conversation to show that Speller had previously identified another person as the shooter. Speller conceded that he spoke with Smallwood but denied making statements reflected in her notes. The trial court did not allow Smallwood to show Speller her notes or to admit the notes into evidence. The defendant was convicted and appealed. The appellate court remanded for evidentiary hearing on the attorney conflict of interest claim. The MAR judge concluded that Smallwood’s representation of the defendant was not adversely affected by her previous representation of Speller. The Court of Appeals affirmed. The defendant then filed a writ of habeas corpus in Federal District Court. The federal court concluded that the defendant was entitled to relief and vacated his conviction, concluding that Smallwood’s actual conflict of interest adversely affected her performance. The State appealed to the Fourth Circuit which ended up staying the appeal to provide the North Carolina courts with an opportunity to weigh in on the relevant issues. The defendant then filed a MAR asserting that his sixth amendment right to effective, conflict free counsel was violated because one of his lawyers was also a crucial defense witness who did not testify due to her conflict of interest. At a hearing on the MAR the defendant could not produce Smallwood, who had been disbarred for separate misconduct and had left the state. The trial court denied the MAR concluding that any evidence Smallwood would have offered was inadmissible and that the defendant had presented no credible evidence that the conversation between Smallwood and Speller ever took place or that Smallwood’s notes were made contemporaneously with the conversation. The court erred by concluding that the defendant’s claim had no evidentiary support. It was undisputed that at the time of trial Smallwood had evidence that Speller gave a prior inconsistent statement concerning the shooter’s identity. The exculpatory witness claim raised in the defendant’s MAR was whether Smallwood’s failure to withdraw and testify as to that alleged prior inconsistent statement was ineffective assistance of counsel. Evidence that Smallwood was privy to a conversation in which Speller identified the shooter as someone other than the defendant would have been both relevant and material had it been offered at trial. It was thus error to conclude that the claim was meritless for lack of evidentiary support. The trial court also erred by concluding that the defendant could demonstrate neither deficient performance nor prejudice in connection with his Strickland ineffective assistance of counsel claim. Citing precedent, the court analyzed the defendant’s claim under the Strickland attorney error standard rather than under the Cuyler conflict of interest standard.The court went on to reject the MAR judge’s conclusion that Smallwood’s testimony would not have been admissible at trial, noting that “It cannot seriously be disputed that the identity of the shooter was a material issue in defendant’s murder trial.” Smallwood, who possessed evidence of Speller’s prior inconsistent statement regarding the shooter’s identity was not bound to accept Speller’s answers on cross-examination. Smallwood’s testimony, had it been offered, would have been admissible to impeach Speller. The court continued, holding that contrary to the trial court’s conclusion, “we do not believe such exculpatory evidence would have been inconsequential so as to justify Smallwood’s failure to withdraw.” The court concluded that by failing to withdraw and testify, Smallwood’s conduct fell below an objective standard of reasonableness. The court further held that the defendant satisfied the requisite showing of prejudice.

(1) Counsel did not render ineffective assistance by failing to object to a witness’s expert testimony. The expert testified that the fire was intentionally set with the use of an accelerant. The defendant’s trial defense did not challenge this issue but rather focused on whether the State had proved that the defendant was the perpetrator. In light of this, counsel made a reasonable, strategic decision not to object to the witness’s testimony. (2) Counsel did not render ineffective assistance by failing to renew a motion to dismiss at the close of all of the evidence. The defendant could not show prejudice where such a motion, had it been made, would have been denied.

In this attempted felony breaking or entering and habitual felon case, the court rejected the defendant’s argument that he received ineffective assistance of counsel because his trial counsel did not attempt to introduce certain items into evidence. The defendant failed to show that counsel’s performance was deficient or that he was prejudiced by counsel’s action.

In this sex offense case, the court rejected the defendant’s argument that he received ineffective assistance of counsel when counsel failed to object to 404(b) evidence that was properly admitted.

The Harbison standard did not apply to counsel’s comments regarding the “dreadfulness” of the crimes because these comments were not concessions of guilt. Considering these statements under the Strickland standard, the court noted that counsel pointed out to the jury that while the defendant’s crimes were horrible, the central issue was whether the defendant had the necessary mental capacity for premeditation and deliberation. The defendant failed to rebut the strong presumption that counsel’s conduct was reasonable. Additionally no prejudice was established given the overwhelming evidence of guilt.

In this murder case, trial counsel did not render ineffective assistance by failing to produce evidence, as promised in counsel’s opening statement to the jury, that the shooting in question was justified or done in self-defense. After the trial court conducted a Harbison inquiry, defense counsel admitted to the jury that the defendant had a gun and shot the victim but argued that the evidence would show that the shooting was justified. The concession regarding the shooting did not pertain to a hotly disputed factual matter given that video surveillance footage of the events left no question as to whether the defendant shot the victim. The trial court’s Harbison inquiry was comprehensive, revealing that the defendant knowingly and voluntarily consented to counsel’s concession. The court also rejected the defendant’s argument that making unfulfilled promises to the jury in an opening statement constitutes per se ineffective assistance of counsel. And it found that because counsel elicited evidence supporting a defense of justification, counsel did not fail to fulfill a promise made in his opening statement. The court stated: “Defense counsel promised and delivered evidence, but it was for the jury to determine whether to believe that evidence.”

In this appeal from a motion for appropriate relief (MAR), the court held that advice provided by the defendant’s counsel in connection with his plea did not comply with Padilla v. Kentucky, 559 U.S. 356 (2010) (incorrect advice regarding the immigration consequences of a guilty plea may constitute ineffective assistance). The defendant was a permanent resident of the United States. After he pled guilty to aiding and abetting robbery and conspiracy to commit robbery, the federal government initiated deportation proceedings against him. The defendant then filed a MAR asserting ineffective assistance of counsel. At issue was counsel’s advice regarding the immigration consequences of the defendant’s guilty plea. It was undisputed that defense counsel informed the defendant that his plea carried a “risk” of deportation. The court noted that “[t]his case is the first in which our appellate courts have been called upon to interpret and apply Padilla’s holding.” The court interpreted Padilla as holding: “when the consequence of deportation is unclear or uncertain, counsel need only advise the client of the risk of deportation, but when the consequence of deportation is truly clear, counsel must advise the client in more certain terms.” In this case, “there was no need for counsel to do anything but read the statute,” to understand that the deportation consequences for the defendant were truly clear. Thus, counsel was required, under Padilla, “’to give correct advice’ and not just advise defendant that his ‘pending criminal charges may carry a risk of adverse immigration consequences.’” The court remanded for determination of whether the defendant was prejudiced by counsel’s deficient performance.

Without addressing the deficient performance prong of the Strickland test, the court held that the defendant did not receive ineffective assistance of counsel where he was not prejudiced by counsel’s conduct. The defendant had complained of counsel’s failure to object to a law enforcement officer’s testimony about the victim’s demeanor and counsel’s failure to object to the striking of a defense witness’s testimony.

State v. King, 235 N.C. App. 187 (July 15, 2014)

No error occurred when the trial court denied defense counsel’s request for an overnight recess after having to defend himself against the State’s motion for contempt based on an allegation that counsel violated the court’s order regarding the rape shield rule in connection with his examination of the victim in this child sexual abuse case. After the trial court denied the State’s motion, defense counsel requested an overnight recess to “calm down” about the contempt motion. The trial court denied this request but at 11:38 am called a recess until 2 pm that day. The court rejected the defendant’s arguments that there was a conflict of interest between the defendant and defense counsel and that the trial court’s denial of the overnight recess resulted in ineffective assistance of counsel. 

Considering the defendant’s ineffective assistance of counsel claim on appeal the court rejected his contention that counsel was ineffective by eliciting hearsay evidence that conflicted with his claim of self-defense, concluding that the evidence did not contradict this defense. It also rejected his contention that counsel was ineffective by failing to object to evidence that the defendant sold drugs on a prior occasion, concluding that even if this constituted deficient representation, there was no reasonable possibility that the error affected the outcome of the case. Finally, the court rejected the defendant’s contention that counsel was ineffective by failing to move to dismiss the charges at the close of the evidence, concluding that given the evidence there was no likelihood that the trial court would have granted the motion. 

The defendant was not denied effective assistance of counsel in a case where defense counsel had a meeting with the State’s witnesses in which they offered to drop the charges against the defendant in exchange for compensation. Defense counsel cross-examined the witnesses extensively about their visit to his office and the resulting discussion, including that defense counsel did not give them any money or otherwise cooperate with their demands. Through cross-examination and closing argument, counsel called issues with the witnesses’ credibility to the attention of the jury. Counsel was able to make the required points without serving as a witness in the defendant’s trial. 

Counsel was ineffective by failing move to suppress evidence obtained by a “patently unconstitutional seizure.” The State conceded that the evidence was obtained illegally but argued that counsel’s failure to move to suppress could have been the result of trial strategy. The court rejected this argument, noting in part trial counsel’s affidavit stating that he had no strategic reason for his failure. Trial counsel’s conduct fell below an objective standard of reasonableness and the defendant suffered prejudice as a result.

In Re C.W.N., 227 N.C. App. 63 (May. 7, 2013)

(1) On direct appeal, the court rejected the juvenile’s assertion that counsel’s failure to make a closing argument in a delinquency proceeding was per se ineffective assistance. (2) In a delinquency case in which the juvenile was alleged to have assaulted another child, the court rejected the juvenile’s argument that he received ineffective assistance of counsel when defense counsel failed argue that the incident was an accident that occurred during horseplay. Given counsel’s cross-examination of the victim and other witnesses and direct examination of the juvenile, counsel’s conduct did not fall below an objective standard of reasonableness. Nor was prejudice established.

State v Canty, 224 N.C. App. 514 (Dec. 18, 2012)

Counsel rendered ineffective assistance by failing to file what would have been a meritorious motion to suppress.

Citing Lafler v. Cooper, 566 U.S. 156 (2012) (defense counsel rendered ineffective assistance by advising a defendant to reject a plea offer), the court dismissed without prejudice the defendant’s claim that defense counsel rendered ineffective assistance by advising him to reject a favorable plea offer. The court noted that the defendant may reassert his claim in a MAR.

State v. Hunt, 221 N.C. App. 489 (July 17, 2012) aff’d per curiam, 367 N.C. 700 (Dec 19 2014)

Although counsel provided deficient performance in this sexual assault case, the defendant was not prejudiced by this conduct and thus the defendant’s claim of ineffective assistance of counsel must fail. The defendant argued that counsel was ineffective when he asked the defendant on direct examination if he had “ever done such a thing before,” despite knowing that other sexual offense charges were pending against the defendant. When the defendant responded in the negative, this opened the door to the State calling another witness to testify about the defendant’s alleged sexual abuse of her. Counsel’s performance fell below an objective standard of reasonableness because there was no strategic benefit in opening the door to this testimony. However, because the evidence about the other pending charges did not likely affect the verdict, no prejudice resulted.

In a sex offense case, the defendant received ineffective assistance of counsel when counsel failed to object to the prosecutor’s motion in limine to exclude specific reference to a prior DSS hearing and/or to clarify the evidence regarding that hearing. At the prior hearing the district court considered a DSS petition for abuse, neglect, and dependency of the defendant’s children and concluded that the children were not sexually abused but were neglected. At the criminal trial, the trial court granted the State’s motion in limine to exclude specific references to the outcome of the DSS hearing. Defense counsel did not object to this motion. A DSS social worker then testified to the victim’s allegations of sexual abuse and stated that DSS removed the defendant’s children from the home. Because of this testimony, the jury would have thought that the children were removed due to the sexual abuse allegations when in fact they were removed due to neglect.

In a child sexual assault case, defense counsel’s failure to move to strike testimony of a forensic interviewer that the fact that a young child had extensive sexual knowledge suggested that “something happened,” did not constitute deficient performance.

(1) The defendant’s claim that trial counsel was ineffective by failing to object to a videotape of the defendant’s interrogation fails because even if counsel had objected, the objection would have been overruled when the defendant opened the door to the evidence through his own trial testimony. (2) The defendant failed to demonstrate that counsel’s performance was deficient. As noted, the defendant’s own testimony opened the door to admission of the videotape. Trial counsel made a strategic decision to have the defendant testify to offer an alibi. On appeal, the defendant did not challenge this strategy, which the jury rejected, and thus did not overcome the presumption that counsel’s trial strategy was reasonable.

When a defendant discharges counsel and proceeds pro se, he or she may not assert a claim of ineffective assistance of counsel with regard to his or her own representation.

The court dismissed the defendant’s claim that counsel’s trial strategy constituted ineffectiveness under Strickland. This claim was dismissed without prejudice to the defendant’s right to assert the claim in a Motion for Appropriate Relief.

The defendant’s claim that trial counsel was ineffective by failing to object to a videotape of the defendant’s interrogation was properly considered on appeal. Although the defendant asked the court to dismiss his claim without prejudice to raise it in a motion for appropriate relief, he failed to identify how the record on appeal was insufficient to resolve the claim. 

Evidence withheld by the Government was not material under Brady. In 1985, a group of defendants were tried together in the Superior Court for the District of Columbia for the kidnaping, armed robbery, and murder of Catherine Fuller. Long after their convictions became final, it emerged that the Government possessed certain evidence that it failed to disclose to the defense. The only question before the Court was whether the withheld evidence was “material” under Brady. The Court held it was not, finding that the withheld evidence as “too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards.” [Author’s note: For a more detailed discussion of the withheld evidence and the Court’s reasoning, see my colleague’s blog post here].

In this capital case, the prosecution’s failure to disclose material evidence violated the defendant’s due process rights. At trial the defendant unsuccessfully raised an alibi defense and was convicted. The case was before the Court after the defendant’s unsuccessful post-conviction Brady claim. Three pieces of evidence were at issue. First, regarding State’s witness Scott, the prosecution withheld police records showing that two of Scott’s fellow inmates had made statements that cast doubt on Scott’s credibility. One inmate reported hearing Scott say that he wanted to make sure the defendant got “the needle cause he jacked over me.” The other inmate told investigators that he had witnessed the murder. However, he recanted the next day, explaining that “Scott had told him what to say” and had suggested that lying about having witnessed the murder “would help him get out of jail.” Second, regarding State’s witness Brown, the prosecution failed to disclose that, contrary to its assertions at trial that Brown, who was serving a 15-year sentence, “hasn’t asked for a thing,” Brown had twice sought a deal to reduce his existing sentence in exchange for his testimony. And third, the prosecution failed to turn over medical records on Randy Hutchinson. According to Scott, on the night of the murder, Hutchinson had run into the street to flag down the victim, pulled the victim out of his car, shoved him into the cargo space, and crawled into the cargo space himself. But Hutchinson’s medical records revealed that, nine days before the murder, Hutchinson had undergone knee surgery to repair a ruptured patellar tendon. An expert witness testified at the state collateral-review hearing that Hutchinson’s surgically repaired knee could not have withstood running, bending, or lifting substantial weight. The State presented an expert witness who disagreed regarding Hutchinson’s physical fitness. Concluding that the state court erred by denying the defendant’s Brady claim, the Court stated: “Beyond doubt, the newly revealed evidence suffices to undermine confidence in [the defendant’s] conviction. The State’s trial evidence resembles a house of cards, built on the jury crediting Scott’s account rather than [the defendant’s] alibi.” It continued: “Even if the jury—armed with all of this new evidence—could have voted to convict [the defendant], we have no confidence that it would have done so.” (quotations omitted). It further found that in reaching the opposite conclusion, the state post-conviction court improperly evaluated the materiality of each piece of evidence in isolation rather than cumulatively, emphasized reasons a juror might disregard new evidence while ignoring reasons she might not, and failed even to mention the statements of the two inmates impeaching Scott.

Smith v. Cain, 565 U.S. 73 (Jan. 10, 2012)

The Court reversed petitioner Smith’s conviction on grounds of a Brady violation. At Smith’s trial, a single witness, Larry Boatner, linked Smith to the crime. Boatner testified that Smith and two other gunmen entered a home, demanded money and drugs, and then began shooting, killing five people. At trial, Boatner identified Smith as the first gunman through the door and claimed that he had been face to face with Smith during the initial moments of the robbery. No other witnesses and no physical evidence implicated Smith. Smith was convicted of five counts of murder. After an unsuccessful direct review, Smith sought post-conviction relief in the state courts. In connection with this effort he obtained notes of the lead police investigator. These notes contained statements by Boatner that conflicted with his testimony identifying Smith as a perpetrator. Specifically, they state that Boatner “could not . . . supply a description of the perpetrators other then [sic] they were black males.” The investigator also made a handwritten account of a conversation he had with Boatner five days after the crime, in which Boatner said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The investigator’s typewritten report of that conversation states that Boatner told the officer he “could not identify any of the perpetrators of the murder.” Smith argued that the prosecution’s failure to disclose the notes violated Brady. The State did not dispute that Boatner’s statements were favorable to Smith and that they were not disclosed. The sole question for the Court thus was whether the statements were material. The Court noted that evidence impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. However, it concluded the State’s evidence was not sufficiently strong in this case. Boatner’s testimony was the only evidence linking Smith to the crime. Also, Boatner’s undisclosed statements directly contradicted his testimony. Boatner’s undisclosed statements, the Court concluded, were plainly material. The Court went on to reject various reasons advanced by the State and the dissent regarding why the jury might have discounted Boatner’s undisclosed statements. Justice Thomas dissented.

In this assault on a government officer case, no Brady violation occurred when recordings from police body cameras were reviewed by the defendant’s original trial counsel and then destroyed pursuant to the police department’s evidence retention schedule. The defendant’s original trial counsel reviewed the video recordings but opted not to obtain copies or use the footage at the defendant’s district court trial. The defendant was convicted and appealed for trial de novo to superior court. In the meantime, the original recordings were destroyed in accordance with the police department’s evidence retention schedule. The defendant’s new trial counsel moved for a continuance to allow time for counsel to prepare a motion to dismiss, arguing that such a remedy was warranted because the recordings had been destroyed and thus were unavailable for use by the defense. The trial court denied the motion. The defendant was convicted and appealed. The court stated: “Defense counsel’s decision not to make or preserve copies of the videos — regardless of counsel’s reason for declining to do so — cannot serve as a basis for arguing a Brady violation was committed by the State.” 

Invoking Rule 2 of the NC Rules of Appellate Procedure, the court considered emails outside of the record and granted the defendants’ MAR, finding both a Brady violation and a Napue (failure to correct false testimony) violation. Specifically, the State failed to provide critical impeachment evidence regarding its star witness which would have supported the defendants’ assertion that the witness was a drug dealer. Likewise, the State failed to correct testimony by the witness that he was not a drug dealer. The emails in question related to an ongoing investigation of the witness revealing that he was in fact involved with drugs.

In this misdemeanor DWI case the trial court did not err by denying the defendant’s motions to examine the Intoximeter source code. The court rejected the defendant’s argument that the source code was Brady evidence, reasoning that he failed to show that it was favorable and material. The court noted that the jury found the defendant guilty under both prongs of the DWI statute. The court also rejected the defendant’s argument that under Crawford and the confrontation clause he was entitled to the source code. 

In a child sex case, the trial court erred by failing to require disclosure of material exculpatory information contained in privileged documents that were reviewed in camera by the trial court and pertained to the victim’s allegations. The documents contained “sufficient exculpatory material to impeach the State’s witnesses.” The court instructed the trial judge to “review the material de novo to determine, in his or her discretion, what material should be made available to Defendant.”

The trial court erred by dismissing charges after finding that the State violated the discovery statutes by failing to obtain and preserve a pawn shop surveillance video of the alleged transaction at issue. On 7 August 2012, defense counsel notified that State that there was reason to believe another person had been at the pawn shop on the date of the alleged offense and inquired if the State had obtained a surveillance video from the pawn shop. On 18 February 2013, trial counsel made another inquiry about the video. The prosecutor then spoke with an investigator who went to the pawn shop and learned that the video had been destroyed six months ago. Before the trial court, the defendant successfully argued that the State was “aware of evidence that could be exculpatory and acted with negligence to allow it to be destroyed.” On appeal, the court rejected this argument, noting that there was no evidence that the video was ever in the State’s possession and under the discovery statutes, the State need only disclose matters in its possession; it need not conduct an independent investigation to locate evidence favorable to a defendant. 

G.S. 15A-903 requires production of already existing documents; it imposes no duty on the State to create or continue to develop additional documentation regarding an investigation. To the extent the trial court concluded that the State violated statutory discovery provisions because it failed to document certain conversations, this was error. 

The trial court did not err by denying the defendant’s motion to dismiss the charges and her motion in limine, both of which asserted that the State violated the discovery rules by failing to provide her with the victim’s pretrial statement to the prosecutor. The victim made a statement to the police at the time of the crime. In a later statement to the prosecutor, the victim recounted the same details regarding the crime but said that he did not remember speaking to the police at the crime scene. The victim’s account of the incident, including his identification of the defendant as the perpetrator, remained consistent. Even though the victim told the prosecutor that he did not remember making a statement to the police at the scene, this was not significantly new or different information triggering a duty on the part of the State to disclose the statement.

State v. Flint, 199 N.C. App. 709 (Sept. 15, 2009)

The trial court did not abuse its discretion in denying the defendant’s motion to continue alleging that the defendant did not receive discovery at a reasonable time prior to trial where the defendant never made a motion for discovery and there was no written discovery agreement and thus the State was not required to provide discovery pursuant to G.S. 15A-903(a)(1). The trial court did not abuse its discretion in allowing a witness named Karen Holman to testify when her name allegedly was listed on the State’s witness list as Karen Holbrook where the defendant never made a motion for discovery and there was no written discovery agreement, even if such a motion had been made, the trial judge had discretion under the statute to permit any undisclosed witness to testify, and the witness’s testimony served only to authenticate a videotape. 

A witness testified at trial that the defendant made the following statement about the victim during the robbery: “I hope this spic is dead.” The court rejected the defendant’s argument that the evidence should have been excluded because of a discovery violation. The State provided information prior to trial that the witness had stated that “they hated Mexicans” and there was no unfair surprise.

The trial court’s ex parte orders compelling the production of the defendant’s personnel files and educational records where void ab initio. While employed as a police officer the defendant was involved in a vehicle pursuit that resulted in the death of the pursued driver. Prior to charging the defendant with a crime, the State obtained two separate ex parte orders compelling the production of the defendant’s personnel records from four North Carolina police departments where he had been employed as well as his educational records related to a community college BLET class. After the defendant was indicted for involuntary manslaughter, he unsuccessfully moved to set aside the ex parte orders. On appeal, the court concluded that the orders were void ab initio. Citing In re Superior Court Order, 315 N.C. 378 (1986), and In re Brooks, 143 N.C. App. 601 (2001), both dealing with ex parte orders for records, the court concluded:

The State did not present affidavits or other comparable evidence in support of their motions for the release of [the defendant’s] personnel files and educational records sufficiently demonstrating their need for the documents being sought. Nor was a special proceeding, a civil action, or a criminal action ever initiated in connection with the ex parte motions and orders. For these reasons, the State never took the steps necessary to invoke the superior court’s jurisdiction.

In this misdemeanor DWI case the court held that the defendant had no statutory right to pretrial discovery and rejected the defendant’s argument that G.S. 15A-901 violated due process. The court noted, however, that the defendant did have discovery rights under Brady.

Cone v. Bell, 556 U.S. 449 (Apr. 28, 2009)

Although exculpatory evidence suppressed by the state was immaterial to the jury’s finding of guilt, it might have affected the jury’s decision to recommend a death sentence. The defendant offered an insanity defense based on his habitual use of an excessive amount of drugs and their affect on his behavior during the commission of the offenses. After the defendant was convicted and sentenced to death, it was discovered that the state had suppressed exculpatory evidence concerning the defendant’s drug use. The Court remanded to the federal habeas trial court for a full review of the suppressed evidence and its effect on sentencing. 

Pages

Show Table of Contents