Smith's Criminal Case Compendium

Smith's Criminal Case Compendium


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., 06/20/2024
E.g., 06/20/2024
State v. Austin, 378 N.C. 272 (Aug. 13, 2021)

The defendant was indicted for assault on a female, habitual misdemeanor assault, and attaining habitual felon status. Following the presentation of the evidence at trial, the trial court instructed the jury on the charges of assault on a female and habitual misdemeanor assault. During the initial instruction on the charge of assault on a female, the trial court stated, in part:

For you to find the defendant guilty of this offense, the State must prove three [things] beyond a reasonable doubt:

First, that the defendant intentionally assaulted the alleged victim. It has been described in this case by the prosecuting witness that the defendant hit her upon her head, that he hit her on her arms, about her body.

You are the finders of fact. You will determine what the assault was, ladies and gentlemen. The Court is not telling you what it is, I’m just giving you a description. And there was also testimony by the witness that the defendant asked her to perform, by force, another act, which could be considered an assault. But you will determine what the assault was. I’m not telling you what it is. And if what I’m saying is the evidence and your recollection is different from what I say, you still should rely upon your recollection of the evidence, as to what the assault is that has been testified to in this case. 

Slip op. at ¶ 6. The defendant did not object to any of the trial court’s jury instructions at trial, and he was found guilty of assault on a female and habitual misdemeanor assault. On appeal, the defendant argued that the trial court had improperly expressed its opinion during jury instructions that an assault had occurred. The Court of Appeals found no error and upheld defendant’s conviction.

Based on a dissenting opinion, the defendant appealed to the Supreme Court, arguing that the trial court’s comments were improper expressions of opinion which prejudiced the defendant. In affirming the decision of the Court of Appeals, the Court concluded that even assuming the trial court violated the statutory prohibitions against the expression of opinion, the defendant cannot show a reasonable possibility of a different result. The Court reasoned that the State presented evidence at trial which satisfied the elements of the predicate assault, and the trial court’s instruction made clear that the jury alone was responsible for making this determination

Justice Earls dissented, writing that the majority failed to give proper weight to the statutory mandate against expression of opinion by refusing to engage meaningfully in a prejudice analysis and instead ignoring any impact the judge’s instructions had on the jury.

State v. Berry, 368 N.C. 90 (June 11, 2015)

In this child sexual assault case and for the reasons stated in the dissenting opinion below, the supreme court reversed State v. Berry, 235 N.C. App. 496 (2014), which had held that the trial court did not express an opinion on a question of fact to be decided by the jury in violation of G.S. 15A-1222 or express an opinion as to whether a fact had been proved in violation of G.S. 15A-1232 when instructing the jury on how to consider a stipulation. In the opinion below the dissenting judge believed that the trial court’s instruction could have been reasonably interpreted by the jury as a mandate to accept certain disputed facts in violation of G.S. 15A-1222 and 15A-1232. The stipulation at issue concerned a report by a clinical social worker who had interviewed the victim; in it the parties agreed to let redacted portions of her report come in for the purpose of corroborating the victim’s testimony. The dissenting judge interpreted the trial court’s instructions to the jury as requiring them to accept the social worker’s report as true.

In this Mecklenburg County case, defendant appealed his convictions for breaking and entering, larceny, and attaining habitual breaking and entering offender status, arguing error in (1) the trial court’s comments about the existence of defendant’s previous convictions during the habitual offender phase, (2) admission of expert testimony without the necessary foundation, and (3) the felony class of habitual breaking and entering on the written judgment. The Court of Appeals found no prejudicial error.

In 2018, defendant was indicted for breaking and entering and larceny after DNA and fingerprint evidence linked defendant to a break-in at a Charlotte residence. The trial proceeded first on the charges related to the break in, then after the jury convicted defendant of the initial charges, proceeded to habitual breaking and entering offender status. During this second phase, the trial court told the jury “[the state] will present evidence relating to previous convictions of breaking and/or entering at this time.” Slip Op. at 5. The jury convicted defendant of habitual offender status, and defendant subsequently appealed.

Reviewing issue (1), the Court of Appeals disagreed with defendant’s characterization of the trial court’s remarks, explaining that “the trial court did not offer to the jury the court’s opinion as to whether [d]efendant did in fact have previous convictions . . . [r]ather, the trial court notified the jury and the parties of its plan for the outset of the second phase of trial.” Id. at 12.

Turning to issue (2), the court noted that defendant did not object at trial to the testimony, meaning the review was under a plain error standard. The court examined the testimony of two experts under Rule of Evidence 702, finding that the fingerprint expert testimony “[did] not clearly indicate that [state’s expert] used the comparison process he described in his earlier testimony when he compared [d]efendant’s ink print card to the latent fingerprints recovered at the crime scene.” Id. at 28. However, the court found no prejudicial error in admitting the testimony, as properly admitted DNA evidence also tied defendant to the crime.

Finally, the court reviewed (3), defendant’s argument that the trial court incorrectly recorded his habitual breaking and entering offense as a Class E felony. The court disagreed, explaining that the form filled out by the trial court identifies the breaking and entering charge as a Class H felony (with punishment Class E), and the habitual breaking and entering offender charge as a Class E felony. Based on relevant precedent, defendant’s habitual offender status represented a status offense enhancing the punishment for the underlying substantive offense. The court concluded that the “trial court’s identification of habitual breaking and entering as a Class E status offense, as compared to a Class E substantive offense, was not error.” Id. at 37.

In this Edgecombe County case, two defendants, Defendant W and Defendant P, were jointly tried, and appealed their convictions for robbery with a dangerous weapon and felon in possession of a firearm. The Court of Appeals found no prejudicial error for either defendant and affirmed the convictions, but did identify a harmless error by the trial court when it delegated duties under N.C.G.S. § 15A-1213 to the prosecutor.

The defendants were convicted for a robbery that occurred outside a food mart in Rocky Mount. Evidence admitted at trial showed that Defendant W was wearing a GPS ankle bracelet that placed him at the scene of the robbery, his appearance that day matched eyewitness descriptions of the suspect and matched him with the suspect on surveillance footage. Defendant P was later apprehended based on the description of eyewitnesses and surveillance footage, and admitted to police he was present at the food mart the night the robbery took place. The Court of Appeals reviewed each defendant’s appeals separately in the opinion.

Considering Defendant P’s first grounds for appeal, the court examined whether the use of video showing Defendant P in shackles was prejudicial and a violation of his due process right to the presumption of innocence. After exploring the lack of binding precedent on using video of a shackled defendant, the court determined that, regardless of the applicable standard of review, Defendant P could not show prejudice based on the video. The court explained that the trial court gave an instruction to the jury immediately prior to playing the video not to draw any inference from the shackles, and overwhelming evidence of Defendant P’s guilt was present in the record even if the jury disregarded the trial court’s instructions. The court also held that N.C.G.S. § 15A-1031 was not applicable as this was not a physical restrain in the courtroom.

Defendant P also raised the issue of his habitual felon status being cruel and unusual punishment under the U.S. and North Carolina constitutions. However, the court found that Defendant P did not raise the issue at trial and thus did not preserve the objection for appellate review.

Examining Defendant W’s grounds for appeal, the court first looked at the argument that his counsel had an actual conflict of interest that effected counsel’s performance during the trial. The record showed that Defendant W’s attorney admitted he had represented one of the key eyewitnesses approximately seven years prior. The Court of Appeals applied the multi-step test from State v. Choudhry, 365 N.C. 215 (2011), to determine the nature of the conflict and whether it represented actual prejudice to the defendant. Slip Op. at ¶51. The court found that, although the trial court did not conduct an adequate inquiry into the conflict, Defendant W could not show any adverse effect on his counsel’s performance based on the conflict. After determining no adverse effect on Defendant W’s counsel, the court concluded that Defendant W could not show any actual prejudicial error as a result of the conflict.

On Defendant W’s second argument, the Court of Appeals found that the trial court violated N.C.G.S. § 15A-1213 by delegating to the prosecutor the duty of reading the charges, victims, and dates of offense to prospective jurors. Defendant W argued that the trial court intimated or expressed an opinion on the case in the presence of the jury, justifying a new trial. While the Court of Appeals agreed that N.C.G.S. § 15A-1213 was violated, the court did not agree that the violation rose to the level of prejudice justifying a new trial, instead finding harmless error. The court pointed out that the trial court read instructions to the jury regarding judicial impartiality, and stated “the jurors would not have gone into the jury room thinking the judge had implied any opinion by having the prosecutor give part of the case overview; the jury instructions explicitly told them not to make such inferences.” Slip Op. at ¶79. The court also noted that Defendant W was acquitted of more serious charges of attempted murder and assault with a deadly weapon, suggesting the jury considered all the charges separately.

The defendant was convicted at trial of trafficking heroin, possession with intent to sell or deliver synthetic cannabinoids, and other various drug offenses in in Brunswick County. (1) During its instructions to the jury, the trial court stated that the jury should determine the guilt or innocence of this defendant and should not be influenced by evidence that other people were also charged in connection with the underlying events (who would get their own days in court). The defendant argued that this was an impermissible expression of judicial opinion on the evidence. Specifically, she argued that this instruction conveyed to the jury that the crime had occurred; that the jury should disregard all evidence that others present in the car may have been responsible; and that the defendant’s defense should be discounted. The Court of Appeals disagreed. First, the trial court expressed no opinion that the crime occurred. There was no argument denying the presence of drugs in the car, and the role of the jury in the case was to determine whether the defendant possessed them. The trial court’s acknowledgement that a crime had occurred was therefore not improper opinion. The instruction also did not command the jury to disregard evidence that others present may have been responsible. “Read in context, the trial court’s statement did not touch on Defendant’s evidence . . . [and] did not refer to the credibility of any evidence.” Hills Slip op. at 9. Finally, the instruction did not denigrate the defendant’s defense. Unlike other cases where a trial court’s statement was found to be improper, the instruction here did not disclaim the involvement of other people. Instead, the instruction specifically informed the jury that others who were charged in the case would have their own days in court. “The trial court’s instruction, therefore, did not reflect an opinion on the credibility of Defendant’s evidence but, instead, reminded the jury it must only consider the evidence presented during the course of the hearing.” Id. at 11. Further, the instruction at issue came after the close of evidence, not during evidence, lessening the risk that the jury would have taken it as an expression of opinion. Finally, the jury was instructed not to assume any opinion based on the trial court’s statements or expressions during trial immediately before receiving the contested instruction. Under the circumstances, the trial court’s instruction did not amount to an improper expression of opinion on the case.

(2) G.S. 90-89(7) lists 18 specific synthetic cannabinoids, but the substance charged in the indictment here—”methyl(2S)-2-{{1-(5-fluoropentyl)-1H-indazol-3-yl]formamido}-3,3-dimethylbutanoate (5F-ADB)”—is not listed there or elsewhere within Chapter 90 as a Schedule I substance. Wikipedia provides that the substance named in the indictment is a synthetic cannabinoid, and the State argued on appeal that this was sufficient to establish that the identity of the substance as a Schedule I drug. The court rejected this argument, pointing out that “[a] court may not look to extrinsic evidence to supplement a missing or deficient allegation in an indictment.” Hills Slip op. at 16. It found that the indictment failed to allege a necessary element of the offense (the controlled substance) and was therefore fatally flawed. The conviction was consequently vacated. Judges Dietz and Zachary concurred.

In this robbery case where the defendant was punished as a habitual felon, (1) the defendant failed to preserve a fatal variance argument; (2) there was insufficient evidence of attempted armed robbery; (3) assuming without deciding that the trial court expressed its opinion in violation of G.S. 15A-1222, the defendant was not prejudiced; and (4) the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status.  

Noting that a defendant must specifically state at trial that a fatal variance is the basis for a motion to dismiss in order to preserve that argument for appellate review, the court found that the defendant waived his variance argument by basing his motion to dismiss solely on insufficiency of the evidence. 

With regard to insufficiency of the evidence of attempted armed robbery, the defendant argued that there was insufficient evidence of the use of a dangerous weapon.  The defendant had threatened an associate with a pistol and rifle that appeared to be firearms but turned out to be an air pistol and a pellet rifle.  Reviewing the rules from State v. Allen, 317 N.C. 119 (1986) and related cases about sufficiency of the evidence in situations involving instruments that appear to be but may not in fact be dangerous weapons, the court said that because the evidence was conclusive that the pistol and rifle were not firearms, the State was required to introduce evidence of the weapons’ “capability to inflict death or great bodily injury” to merit submission of the attempted armed robbery charge to the jury.  As no such evidence was introduced, the trial court erred in denying the defendant’s motion to dismiss for insufficient evidence.

During the testimony of a defense witness, the trial court interjected to admonish the witness not to refer to the pistol and rifle as “airsoft” weapons because, in the trial court’s view, that terminology was not an accurate description of the items.  Assuming without deciding that this admonishment was an improper expression of opinion and accepting for argument that it may have negatively impacted the jury’s view of the witness’s testimony, there was not a reasonable probability that the jury would have reached a different verdict absent the admonishment.

Finally, the State conceded and the court agreed that the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status without conducting the required guilty plea colloquy.

The trial court did not impermissibly express an opinion on the evidence in violation of G.S. 15A-1222 by denying the defendant’s motion to dismiss in the presence of the jury. At the close of the State’s evidence and outside the presence of the jury, the defendant made a motion to dismiss the charges, which the trial court denied. Following the presentation of the defendant’s evidence, the defendant renewed his motion to dismiss, in the jury’s presence. The trial court denied the motion. The defendant did not seek to have the ruling made outside of the presence of the jury, did not object, and did not move for a mistrial on these grounds. The court found State v. Welch, 65 N.C. App. 390 (1983), controlling and rejected the defendant’s argument.

In this DWI case, the trial court did not impermissibly express an opinion when instructing the jury regarding the admissibility of breath test results. 

In a first-degree murder case, the court rejected the defendant’s argument that the trial court made an improper judicial comment on his dangerousness in violation G.S. 15A-1222 and -1232. The defendant had argued that the trial court’s decision to order additional security after his mid-trial escape attempt, including physical restraints and an escort for the jury, was akin to a statement that defendant was highly dangerous and probably guilty. The court rejected this argument, concluding that the trial court did not abuse its discretion or violate the defendant’s constitutional rights by ordering additional security measures after the defendant attempted to escape, causing a lockdown of the courthouse. The court also rejected the defendant’s argument that the trial court should have instructed the jury that they should not consider the fact that they had been escorted to their cars or the additional security personnel in the courtroom.

(1) In a statutory rape case, the trial court committed reversible error by expressing an opinion regarding the victim’s age--an element of the offense--when responding to a note from the jury. During deliberations, the jury sent a note asking: “May we please have the date and age of [the victim] when she was raped the first time regarding the first-degree rape?” The trial court informed the jurors that the information they sought was in the victim’s testimony and that it was their duty to recall that testimony from memory. Juror number 5 then immediately asked: “[W]ould it be an accurate statement that the Court would not be able to charge him with that particular charge if it were not in corroboration with the age reference?” The trial court answered: “You’re correct.” (2) The trial court did not commit plain error by referring to the prosecuting witnesses as “victims” in its jury instructions. The trial court’s statements did not constitute an opinion.

No plain error occurred when the trial court referred to the prosecuting witness as “the victim.” The court rejected the defendant’s argument that a different result should obtain because he asserted self-defense.

State v. Carter, 216 N.C. App. 453 (Nov. 1, 2011) rev’d on other grounds, 366 N.C. 496 (Apr 12 2013)

In a child sexual assault case, the trial court did not commit plain error by impermissibly expressing an opinion when it described the child as the “victim” in its jury instructions.

The trial court did not commit prejudicial error in violation of G.S. 15A-1222 (judge may not express an opinion) by laughing in the presence of the jury upon hearing a witness’s testimony that defendant “ran like a bitch all the way, way down past his house.” The court concluded that “[a]lthough the judge’s outburst may have been ill-advised and did not exemplify an undisturbed atmosphere of judicial calm” (quotation omitted) any resulting error was harmless.

The trial court did not err by using the word “victim” in the jury charge in a child sex offense case.

The trial judge impermissibly expressed an opinion during the defendant’s testimony that tended to discredit the defense theory and required a new trial. In this drug case, the defense’s principal theory was that the defendant did not possess the controlled substance and paraphernalia because her boyfriend brought the items to her apartment while she was at work. During her testimony, the defendant was questioned about how often her boyfriend went to her apartment. The State objected. The trial court sustained the objection, and stated: “Let’s move on to another area. He has no involvement with these charges.”

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