Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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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.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 01/29/2023
E.g., 01/29/2023

In this Wake County case, the Supreme Court affirmed the Court of Appeals decision denying defendant’s petition for writ of certiorari, and dismissed as improvidently allowed issues related to defendant’s petition for discretionary review and the denial of his petition for writ of mandamus.  

This matter has a complicated procedural history as detailed on pages 4-10 of the slip opinion. Defendant was originally charged with driving while impaired and driving without an operator’s license in April of 2015. Defendant failed to appear at his February 2016 hearing date; an order for arrest was issued and the State dismissed defendant’s charges with leave under G.S. § 15A-932(a)(2). This meant defendant could not apply for or receive a driver’s license from the DMV. Defendant was arrested in July of 2018, and given a new hearing date in November of 2018, but he again failed to appear. In December of 2018, defendant was arrested a second time, and given another new hearing date that same month. However, at the December 2018 hearing, the assistant DA declined reinstate the 2015 charges, leading to defendant filing several motions and petitions to force the district attorney’s office to reinstate his charges and bring them to a hearing. After defendant’s motions were denied by the district court, and his writ for certiorari was denied by the superior court and the Court of Appeals, the matter reached the Supreme Court.  

The court first established the broad discretion of district attorneys, as “[s]ettled principles of statutory construction constrain this Court to hold that the use of the word ‘may’ in N.C.G.S. § 15A-932(d) grants exclusive and discretionary power to the state’s district attorneys to reinstate criminal charges once those charges have been dismissed with leave . . . .” Slip Op. at 13. Due to this broad authority, the court held that district attorneys could not be compelled to reinstate charges. The court next turned to the authority of the trial court, explaining that “despite a trial court’s wide and entrenched authority to govern proceedings before it as the trial court manages various and sundry matters,” no precedent supported permitting the trial court to direct the district attorney in this discretionary area. Id. at 16. Because the district attorney held discretionary authority to reinstate the charges, and the trial court could not interfere with the constitutional and statutory authority of the district attorney, the court affirmed the denial of defendant’s motions for reinstatement and petition for writ of certiorari. 

The court also considered defendant’s various petitions for writ of mandamus, noting they were properly denied under the applicable standard because “[defendant] does not have a right to compel the activation of his charges which have been dismissed with leave or to require the exercise of discretionary authority to fit his demand for prosecutorial action regarding his charges.” Id. at 22.

In this Johnson County case, defendant was charged with drug related offenses after two searches of his home turned up items and ingredients used in the manufacture of methamphetamine. The first search occurred in September of 2014, and the second occurred in June of 2015. After charges were filed resulting from both searches, defendant filed two motions to suppress the evidence obtained from these searches in March of 2017. Two separate orders were entered denying both of defendant’s motions to suppress, in May and June of 2017.

After the denial of defendant’s motions to suppress, defendant reached a plea agreement and pled guilty on July 6, 2017, to two counts of manufacturing methamphetamine along with dismissal of the remaining charges. Defendant then filed a handwritten appeal on July 10, 2017, challenging the denial of his motion to suppress the 2014 search. Defendant also filed a writ of certiorari because he had not notified the State of his intent to appeal prior to the entry of his plea. The Court of Appeals dismissed defendant’s appeal and denied his petition for a writ of certiorari in October of 2018. The court held that defendant had forfeited his right to appeal by failing to provide notice prior to entering his guilty plea, and Rule 21 of the North Carolina Rules of Appellate Procedure barred issuance of the writ. Defendant appealed the decision to the Supreme Court.

The Supreme Court remanded the case for reconsideration in light of two recent decisions, State v. Ledbetter, 371 N.C. 192 (2018), and State v. Stubbs, 368 N.C. 40 (2015). These decisions indicated that the Court of Appeals holds discretion to grant or deny a petition for writ of certiorari that is not limited by Rule 21. The Supreme Court instructed the Court of Appeals to exercise that discretion when considering defendant’s petition. However, in 2019 the Court of Appeals denied defendant’s petition for a second time, citing Rule 21 and a line of decisions indicating that defendant’s failure to provide notice of appeal barred granting his petition. Defendant again appealed the decision.

In the current opinion, the Supreme Court expressly held that the Court of Appeals has complete discretion to grant or deny defendant’s petition, regardless of Rule 21. Additionally, the Court explicitly overruled any precedent that held or implied that the Court of Appeals was constrained by Rule 21 when considering whether to grant a writ of certiorari under similar circumstances. The case was remanded a third time for consideration by the Court of Appeals.

Justice Berger did not participate in the consideration or decision for this case.

In this Davidson County case, the defendant pled guilty to a drug offense and received 12 months of supervised probation. His probation officer filed a violation report alleging positive drug screens and other violations. At the violation hearing, the defendant chose to represent himself. The court found a willful violation and agreed to extend probation by six months and to hold the defendant in custody for up to two weeks until he could begin drug treatment at a treatment center. The defendant said “that’s crazy,” accused the court of activating his sentence, and suggested that the court be “f—king honest with [him].” After being warned about his language, he accused his probation officer of “start[ing] this sh— all over again.” The court began contempt proceedings, found the defendant in direct criminal contempt and sentenced him to 30 days. He sought appellate review.

As to the probation modification, the Court of Appeals first found that he had no right to appeal. In criminal cases, appellate rights are provided entirely by statute, and G.S. 15A-1347(a) allows an appeal of a probation violation only when the court activates a sentence or imposes special probation. The trial court did neither in this case.

The defendant therefore sought certiorari review. The lead opinion, relying on State v. Edgerson, 164 N.C. App. 712 (2004), concluded that certiorari review is not available for probation modifications. Two judges concurred separately, each disagreeing with the lead opinion on that point, but the panel was unanimous that even if such authority exists, the defendant’s petition was “wholly frivolous” and so certiorari review should be denied.

As to the contempt finding, the Court agreed to review the matter under its certiorari jurisdiction. After finding the defendant in contempt, the trial court stated, “Enter notice of appeal for his contempt citation,” to which the defendant responded, “Thank you.” Although this was not a proper notice of appeal, the defendant’s intent to appeal was obvious so certiorari review was justified. The court proceeded to uphold the contempt conviction, finding that the defendant’s “words and actions willfully interrupted the proceedings and impaired the respect due the [trial] Court’s authority” in violation of G.S. 5A-11(a).

(1) In this case where the defendant pleaded guilty to felony speeding to elude arrest pursuant to a plea arrangement, he had no statutory right to appeal. 

(2) However, the court considered the defendant’s petition for writ of certiorari which argued that he did not receive notice and an opportunity to be heard on the amount of attorney’s fees and costs. The court noted that a criminal defendant may file a petition for a writ of certiorari to appeal a civil judgment for attorney’s fees and costs. Here, after the defendant pleaded guilty to felony speeding to elude arrest he was sentenced and the trial court ordered him to pay court costs in the amount of $1,572.50. Before entering monetary judgments against indigent defendants for fees imposed for court appointed counsel, the trial court should ask defendants personally whether they wish to be heard on the issue. Absent a colloquy directly with the defendant, 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, and chose not to be heard. Here, nothing in the record indicated that the defendant understood he had a right to be heard on the issue, and the trial court did not inform him of that right. The court thus vacated the civil judgment for attorney’s fees and remanded to the trial court.

Notwithstanding the fact that the court was unable to determine whether the trial court had jurisdiction when it entered judgment in this DWI case, the court held—over a dissent--that it would exercise its discretion to treat the defendant’s appeal as a petition for certiorari in order to reach the merits of her argument.

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 794 S.E.2d 551 (2016) (per curiam), the court reversed, holding that the absence of a procedural rule limits neither the Court of Appeals’ jurisdiction nor its discretionary authority to issue writs of certiorari. After the defendant was charged with DWI, she filed a motion to dismiss, arguing that the State violated certain statutory procedures and State v. Knoll. The trial court denied the motion and the defendant pled guilty, retaining the right to appeal the denial of the motion. The defendant gave notice of appeal and petitioned the Court of Appeals for review by writ of certiorari. The Court of Appeals dismissed the appeal and denied the petition, holding that the defendant did not have a statutory right to appeal from the trial court’s denial of her motion to dismiss prior to her guilty plea and that the petition did not assert grounds included in or permitted by Rule 21. The Supreme Court then remanded to the Court of Appeals for reconsideration in light of State v. Stubbs, 368 N.C. 40 (2015), and State v. Thomsen, 369 N.C. 22 (2016). Upon reconsideration, the Court of Appeals again denied the defendant’s petition for writ of certiorari and dismissed her appeal. The Court of Appeals determined in part that although the statute provides jurisdiction, it was without a procedural process under either Rule 1 or 21 to issue a discretionary writ other than by invoking Rule 2, and the Court of Appeals declined to invoke that rule. The court determined that the Court of Appeals correctly found that it had jurisdiction to issue the writ. However, it mistakenly concluded that the absence of a specific procedural process in the Rules of Appellate Procedure left the court without any authority to invoke that jurisdiction. The Court of Appeals had held that because the defendant’s petition did not assert any of the procedural grounds set forth in Rule 21, it was without a procedural process to issue the writ other than by invoking Rule 2. The court determined that regardless of whether Rule 21 contemplates review of the defendant’s motion to dismiss, if a valid statute gives the Court of Appeals jurisdiction to issue a writ of certiorari, Rule 21 cannot take that jurisdiction away. The court concluded:

Accordingly, the Court of Appeals had both the jurisdiction and the discretionary authority to issue defendant’s writ of certiorari. Absent specific statutory language limiting the Court of Appeals’ jurisdiction, the court maintains its jurisdiction and discretionary authority to issue the prerogative writs, including certiorari. Rule 21 does not prevent the Court of Appeals from issuing writs of certiorari or have any bearing upon the decision as to whether a writ of certiorari should be issued.

Although the defendant failed to timely file a written appeal of the trial court’s sex offender registration and SBM order, the court, in its discretion, allowed the defendant’s petition for writ of certiorari to obtain review of these orders.

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.

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.

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.

In this Person County case, defendant appealed the post-conviction order revoking his probation for a new criminal offense, requesting a review of the record similar to review of criminal convictions under Anders v. California, 386 U.S. 738 (1967). The Court of Appeals granted certiorari to review defendant’s appeal, and affirmed the order revoking defendant’s probation.

Defendant’s counsel submitted a brief along with defendant’s petition for writ of certiorari seeking “Anders-type review because counsel had examined the record and applicable law and was ‘unable to identify an issue with sufficient merit to support a meaningful argument for relief on appeal.’” Slip Op. at 2. The majority held that the lack of briefing on appeal constrained the court’s ability to review arguments against the revocation under the rules of appellate procedure, “as any argument not advanced in an appellant’s brief is abandoned under Rule 28 . . . [and] based on the reasoning of our Supreme Court’s opinion in State v. Ricks, 378 N.C. 737 [] (2021), we must conclude that it would be an abuse of our discretion to invoke Rule 2.” Slip Op. at 3. Because the majority held that the Ricks precedent prevented the Court of Appeals from invoking Rule 2 to suspend Rule 28, the court simply examined the indictments to confirm the trial court had jurisdiction to try defendant, and examined no other arguments before affirming the trial court’s order revoking probation.

Judge Inman concurred in the result only, and wrote separately suggesting that the court had “the jurisdiction and authority to consider the issues raised in [d]efendant’s Anders brief on appeal from an order revoking his probation without invoking Rule 2,” but that after conducting an Anders-style inquiry, the judge found no prejudicial error. Id. at 5.

In this Wake County case, defendant appealed his convictions for statutory rape and taking indecent liberties with a child, arguing the trial court improperly excluded testimony from his expert. The Court of Appeals dismissed defendant’s appeal.

In 2019, defendant had sex with a 15-year-old girl who he intercepted on her walk home from a bus stop. When the case reached trial, defendant attempted to have his expert, a registered nurse, testify that the victim was not penetrated by defendant. The State challenged this testimony under Rule of Evidence 704. After voir dire of the expert, the trial court would not allow her to testify regarding whether a sexual assault occurred, and defendant chose not to call her due to the limitation on her testimony. Defendant was convicted on all charges and timely appealed. Due to significant procedural errors in his notice of appeal, defendant filed a petition for writ of certiorari.

Walking through the procedural issues with defendant’s appeal, the court first noted the missing certificate of service issue was waived by the State when they failed to raise the issue and filed a reply brief. The court then pointed out defendant preserved the expert testimony issue for appeal by objecting during the trial, drawing a contrast with the procedural defect present in State v. Ricks, 378 N.C. 737, 741. Slip Op. at 10-11. However, defendant failed to “designate the judgment or order from which appeal is taken” as required by Rule of Appellate Procedure 4(b). This defect meant that defendant was required to show merit or prejudice justifying the issuance of a writ of certiorari to proceed. Id. at 12. 

The court turned to the expert testimony issue under Rule of Evidence 702, explaining the two-prong test applicable to expert testimony conducted under the trial court’s discretion. The court explained the “trial court first applied the factors outlined in [Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)] when determining whether [defendant’s expert] was qualified as an expert, focusing on the absence of reliable principles and methods,” then “contemplated how to balance [defendant’s expert’s] lack of credentials and training with [d]efendant’s right to present a defense.” Id. at 15. Defendant failed to show any abuse of the trial court’s discretion during this process, leading the court to deny his petition and dismiss the appeal.

The defendant was convicted at trial of driving while impaired and habitual DWI in Guilford County. (1) In its discretion, the Court of Appeals granted the defendant’s petitions for writ of certiorari to review the criminal judgment and civil judgment for attorney fees. Following his conviction for habitual impaired driving, the defendant filed two pro se notices of appeal. Those notices did not contain a certificate of service indicating service on the State and failed to name the court to which the appeals were taken. Appellate counsel was later appointed, who recognized the pro se notices of appeal were potentially defective and filed two petitions for writ of certiorari seeking appellate review. The pro se notices of appeal were an indication that the defendant intended to preserve his right to appellate review, and the Court of Appeals previously held in an unpublished case that the types of defects in the notices of appeal at issue did not require dismissal for lack of jurisdiction. Where (as happened here) the State does not object, the Court of Appeals may exercise jurisdiction by granting the petitions for writ of certiorari. Thus, the Court of Appeals had jurisdiction to consider the defendant’s arguments.

(2) During trial, the defendant moved to dismiss for insufficiency of the evidence at the close of the State’s case in chief. The defendant thereafter presented evidence and failed to renew the sufficiency motion at the close of all evidence. Because sufficiency review was therefore not preserved, the defendant requested that the Court of Appeals invoke Rule 2 of the Rules of Appellate Procedure to suspend the preservation rules and review the issue. The court declined to do so and thus affirmed the habitual DWI conviction.

(3) The trial court awarded the defendant’s trial counsel attorney fees as a civil judgment without giving the defendant an opportunity to personally be heard, in violation of G.S. § 7A-455. More than 35 recent cases have reversed the attorney fee award in similar circumstances. Following that line of cases, the majority of the panel vacated the attorney fee order and remanded for a hearing on the matter where the defendant could be personally heard or for “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.” Slip op. at 11.

Judge Tyson dissented. He would have refused to grant the petitions for writ of certiorari and dismissed all the defendant’s arguments as frivolous.

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