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., 01/28/2023
E.g., 01/28/2023
State v. Phachoumphone [Duplicated], 257 N.C.App. 848, 810 S.E.2d 748 (Feb. 6, 2018) review granted, 372 N.C. 72, 824 S.E.2d 397 (Sep 20 2018)

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

In this Cabarrus County case, defendant appealed his convictions for uttering a forged instrument and obtaining property by false pretenses, arguing that the indictment was fatally defective and the record of the hearing omitted conversations by the bench. The Court of Appeals found no error. 

Reviewing defendant’s arguments on appeal, the court first explained that “[a] defendant must bring a motion to quash a fatally defective indictment to preserve the issue on appeal.” Slip Op. at 4. Because defendant did not move to quash the indictment, he forfeited this argument on appeal; defendant’s motion to dismiss at trial was a motion to dismiss for insufficiency of the evidence, and this motion did not reference the fatally defective indictment. 

Regarding defendant’s recordation argument, the court pointed to State v. Blakeney, 352 N.C. 287 (2000), to draw the distinction between recording statements in open court and statements made during private bench conferences. Slip Op. at 6-7. Because applicable precedent held that G.S. § 15A-1241 does not require recording of private bench conferences, and defendant did not request the recording of these conferences, there was no error by the trial court. 

Fatal variance issues not raised at trial are waived on appeal. 

A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.

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