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., 10/21/2021
E.g., 10/21/2021

The defendant did not sufficiently demonstrate that he qualifies as an “Indian” under the federal Indian Major Crimes Act (IMCA) and, consequently, the trial court did not err in refusing to dismiss state murder, robbery, and weapons charges on jurisdictional grounds or in ruling that the jurisdictional issue was not required to be submitted to the jury by means of a special verdict.  The federal Indian Major Crimes Act provides that “[a]ny Indian who commits [an enumerated major crime] against the person or property of another . . . within the Indian country[] shall be subject to . . . the exclusive jurisdiction of the United States.”  In this case, there was no dispute that the shooting at issue took place in “Indian country” as it occurred within the Qualla Boundary and there was no dispute that the resulting charges constituted major crimes for purposes of the IMCA.  The only question was whether the defendant qualified as an “Indian” under the IMCA, which does not provide a definition of that term. 

The court noted that the United States Supreme Court in United States v. Rogers, 45 U.S. 567 (1846) suggested a two-pronged test for analyzing whether a person qualifies as an Indian under the statute.  To qualify as an Indian under the Rogers test, a defendant must (1) have “some Indian blood,” and (2) be “recognized as an Indian by a tribe or the federal government or both.  The parties in this case agreed that the first part of this test was satisfied because the defendant possessed an Indian blood quantum of 11/256 (4.29%).  Noting that it had never applied the Rogers test, the court reviewed the analyses of courts in other jurisdictions as it determined whether the second prong of the test was satisfied.  Finding that a four-factor balancing test enunciated in St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D. 1988) was frequently used in jurisdictions across the country with respect to the second prong of the Rogers test, though with variability in the manner of its application, the court adopted the Eighth and Tenth Circuit’s utilization of the test.  It did so “based on our belief that this formulation of the test provides needed flexibility for courts in determining the inherently imprecise issue of whether an individual should be considered to be an Indian under the second prong of the Rogers test” and also recognized “that, depending upon the circumstances in a given case, relevant factors may exist beyond the four St. Cloud factors that bear on this issue.”  A court applying the four-factor St. Cloud test considers the following factors:

1) enrollment in a tribe; 2) government recognition formally and informally through providing the person assistance reserved only to Indians; 3) enjoying benefits of tribal affiliation; and 4) social recognition as an Indian through living on a reservation and participating in Indian social life.

For various reasons, the court rejected the defendant’s initial arguments that his status as a first descendant of the tribe demonstrated his “tribal or federal recognition” as a matter of law.  The court then proceeded to apply the four St. Cloud factors along with any additional factors relevant to the analysis, noting that the trial court’s findings regarding the defendant’s motion to dismiss had not been specifically challenged on appeal and therefore were binding.  Applying the four-factor balancing test, the court found (1) it was undisputed that the defendant was not enrolled in any federally recognized tribe; (2) the only evidence of governmental assistance to defendant consisted of five incidents of free medical treatment he received as a minor; (3) though he did live and work on or near the Qualla Boundary for fourteen months prior to the murder, there was not evidence that defendant received broader benefits from tribal affiliation or that his employment on the Qualla Boundary was in any way connected to his first descendant status; (4) though the defendant was dating an enrolled tribal member at the time of the murder and had two tattoos depicting his cultural heritage, the defendant self-identified as being “white” on official documents and did not participate in Eastern Band of Cherokee Indian cultural, community, or religious activities.  Turning to whether any other relevant factors existed, such as whether the defendant had ever been subjected to tribal jurisdiction in the past, the court found that there was no evidence of other relevant factors.  With this analysis of the second prong of the Rogers test, a majority of the court held that the trial court properly concluded that the defendant was not an Indian for purposes of the IMCA and properly denied his motion to dismiss.

The court then turned to whether the defendant was entitled to a special jury verdict on the jurisdictional issue and whether the trial court erred by ruling on that issue as a matter of law.  The court distinguished two of its prior cases involving issues of territorial jurisdiction and noted that in this case the defendant did not challenge the facts underlying the jurisdictional determination, a determination the court characterized under these facts as “an inherently legal question properly decided by the trial court.”  The court concluded its analysis of this issue by observing that the dissent failed to cite any authority for the “proposition that in state court proceedings the inapplicability of the IMCA is an element of the crime that must be submitted for resolution by the jury.” 

Justice Earls disagreed with the majority’s conclusion that the defendant was not entitled to a special jury verdict on the question of whether he is an “Indian” under the IMCA, and, assuming that the majority was correct that the question need not be submitted to the jury, disagreed with the majority’s conclusion that the defendant is not an Indian under the IMCA.

In this case from Randolph County, the Court of Appeals initially vacated the defendant’s conviction for possession of heroin (discussed here). The North Carolina Supreme Court reversed, finding the evidence sufficient to support the drug conviction. State v. Osborne, 372 N.C. 619 (2019) (discussed here). On remand, the Court of Appeals was instructed to consider the applicability of G.S. 90-96.2 to the case. That statute provides “limited immunity” from prosecution for certain drug offenses when the evidence is discovered as a result of a call for assistance relating to a drug overdose. The Court of Appeals was also directed to consider plain error challenges to the admission of certain evidence that it previously left undecided.

(1) The defendant did not raise the issue of potential immunity at trial or on appeal. While subject matter jurisdictional defects cannot be waived and may be asserted at any time, the court determined that the immunity provisions of G.S. 90-96.2 are not jurisdictional and are therefore waivable:

 In sum, we hold that N.C. Gen. Stat. § 90-96.2(c) does not contain a clear indication that it is a jurisdictional requirement, and we therefore treat the provision as one granting traditional immunity from prosecution. This type of immunity must be asserted as a defense by the defendant in the trial court proceeding. The failure to raise the issue waives it and precludes further review on appeal. Slip op. at 9 (citations omitted).

The issue of immunity here was thus waived and the merits of the issue were not decided. The defendant could, however, assert ineffective assistance of counsel in post-conviction proceedings based on trial counsel’s failure to raise the issue. [Jamie Markham blogged about the immunity provisions of G.S. 90-96.2 here].

(2) The defendant also claimed the admission of field tests and lay opinions from police officers that the substance discovered in her room was heroin amounted to plain error. The Supreme Court’s opinion in the case acknowledged the “ample evidence” that the substance was heroin even without the challenged evidence, and the Court of Appeals agreed. Accordingly, the erroneous admission of field tests and lay opinion “is simply not the sort of fundamental error that calls into question the ‘fairness, integrity or public reputation of judicial proceedings’” making a finding of plain error inappropriate. Id. at 11.

The defendant in this Forsyth County case was charged with two counts felony breaking or entering, two counts felony larceny after b/e, two counts felony larceny of property over $1000, and habitual breaking or entering, stemming from two break-ins and larcenies from Wake Forest University dormitory rooms. At trial, the jury convicted the defendant of the two felony breaking or entering offenses, two felony larceny after b/e offenses, one felony larceny for theft of property over $1000, and one misdemeanor larceny, along with habitual breaking and entering. Following his notice of appeal, the State filed a motion for appropriate relief (“MAR”) within ten days of the judgment, asking the trial court to arrest judgment on the felony larceny for theft of property over $1000 and the misdemeanor larceny as duplicative. The trial court granted that request and amended the judgment accordingly.

(1) The defendant argued that the trial court was divested of jurisdiction to amend the judgments in the case after he had given notice of appeal. This was incorrect. “The trial court retains jurisdiction until a notice of appeal is given and fourteen days have passed.” Slip op. at 5 (citation omitted). Further, once the State filed a timely 10-day MAR, the period of time for the defendant to give notice of appeal is extended 14 days under G.S. § 15A-1448(a)(2) from the date the trial court rules on the MAR. That statute provides that “when a proper motion for appropriate relief is made, the case shall remain open for the taking of an appeal until the court has ruled on the motion.” Id. (citing G.S. § 15A-1448). The trial court thus retained jurisdiction to amend the judgments.

(2) The defendant also argued that the trial court should have granted his motions to dismiss two of the larceny charges, pointing to the established rule that the taking of several items of property in the course of one act or event establishes only one larceny. Here, the defendant was improperly charged and convicted of multiple larcenies based on different items of property taken at one time. Because the trial court fixed the problem of duplicative larceny convictions with its MAR order, the issue was moot, and the argument dismissed.

(3) The trial court’s judgment incorrectly noted the defendant was a habitual felon, rather than one convicted of habitual breaking or entering. This was a clerical error, and the matter was remanded for correction of that error only. The convictions were otherwise affirmed.

The elected district attorney for prosecutorial district 2, which includes Washington County, filed an ex parte motion in superior court to determine whether a criminal investigative file contained potentially exculpatory information involving a Washington County law enforcement officer that the State would be required to disclose in cases in which it intended to call the officer as a witness. The motion was not filed in connection with any particular criminal prosecution. A superior court judge reviewed the file and ordered the district attorney’s office to disclose to defendant and/or defense counsel the contents of the investigative file in any criminal matter in which the State intended to call the officer as a witness.

The law enforcement officer was notified of the order and appealed.

Over a dissent, the Court of Appeals determined that the judge exceeded the limits of the court’s jurisdiction by entering an advisory opinion and vacated the order. The court reasoned that the order was an anticipatory judgment providing for the contingency that the officer would be called as a witness in a future criminal case. The order was “purely speculative” and amounted to an advisory opinion that the parties might “put on ice to be used if and when occasion might arise.” Slip op. at 6 (internal citations omitted). The court stated that the advisory nature of the order was especially evident if one considered the alternative scenario in which the judge ruled that the State was not required to disclose information contained in the investigative report. Such an order would not bind trial courts from independent determinations of disclosure obligations in future cases.

A dissenting judge would have concluded that the trial court had authority to enter the order and that the appellate court was without jurisdiction to reach the merits of the petitioner’s claims as the petition was not an aggrieved party to the proceeding from which he appealed.

In this DWI case, the superior court properly denied the defendant’s motion to dismiss the indictment for lack of jurisdiction. The defendant asserted that because the State failed to dismiss the citation charging the offense in district court, that charge remained valid and pending in district court, depriving the superior court of jurisdiction. The court concluded that because the charge in superior court was initiated by presentment, that court acquired jurisdiction over the offense when the indictment was issued. The court rejected the defendant’s argument that because the State never dismissed the citation in district court, that charge remained pending and active requiring the superior court to dismiss the indictment. Although the State never filed a formal dismissal of the citation in district court, it abandoned that prosecution in favor of the superior court prosecution, “which effectively served as the functional equivalent of a dismissal of the district court charge, rendering it no longer valid and pending.” The court further rejected the defendant’s argument that the two courts had concurrent jurisdiction and that as the first court exercising jurisdiction, the district court had jurisdiction to the exclusion of the superior court. The court found no evidence of the district court’s exercise jurisdiction over the offense after the existence of concurrent jurisdiction with the superior court.

The trial court lacked subject matter jurisdiction to enter an order denying the defendant’s motion for post-conviction DNA testing pursuant to G.S. 15A-269 while the defendant’s appeal from the original judgment of conviction was pending. The defendant was convicted of an attempted sexual offense and sentenced on 10 November 2014. The defendant gave notice of appeal that day. On 6 April 2016, while his appeal was pending in the court of appeals, the defendant filed a pro se motion for post-conviction DNA testing pursuant to G.S. 15A-269. The trial court denied the defendant’s motion. The defendant timely filed notice of appeal from this denial. Then, on 16 August 2016, the court of appeals issued an opinion in defendant’s original appeal, vacating his sentence and remanding the case to the trial court for re-sentencing. The mandate issued on 6 September 2016. The court noted that once a notice of appeal has been filed, the trial court retains jurisdiction only over matters that are ancillary to the appeal. The trial court’s order on the defendant’s post-conviction motion was not such a matter. The court concluded:

In the instant case, the trial court was divested of jurisdiction when defendant filed notice of appeal from the judgment entered on his conviction . . . on 10 November 2014. Because defendant’s motion for post-conviction DNA testing opened an inquiry into a case that this Court was already reviewing, the trial court lacked jurisdiction to rule on it until after the case was returned to the trial court by way of mandate, which issued on 6 September 2016. We therefore must vacate the trial court’s order denying defendant’s motion for post-conviction DNA testing.

In this Miller Eighth Amendment/LWOP case, the superior court lacked jurisdiction to enter judgment. The trial court resentenced the defendant in response to a decision by the North Carolina Supreme Court, but before the mandate had issued from that Court. The court vacated the judgment and remanded for resentencing. 

In a case in which the defendant was originally charged with habitual impaired driving, driving while license revoked and speeding, the superior court did not have subject matter jurisdiction to try the misdemeanor or the infraction where the State dismissed the felony DWI charge before trial. The case came on for trial in superior court about one month after the State dismissed the felony DWI charge. Without the felony offense, the misdemeanor fell under none of the exceptions in G.S. 7A-271(a) giving jurisdiction to the superior court, and the infraction fell under none of the exceptions in subsection (d) of that provision. Under G.S. 7A-271(c), once the felony was dismissed before trial, the court should have transferred the two remaining charges to the district court.

(1) The superior court was without subject matter jurisdiction with respect to three counts of first-degree statutory rape, where no evidence showed that the defendant was at least 16 years old at the time of the offenses. The superior court may obtain subject matter jurisdiction over a juvenile case only if it is transferred from the district court according to the procedure set forth in Chapter 7B; the superior court does not have original jurisdiction over a defendant who is 15 years old on the date of the offense. (2) Over a dissent, the majority held that jurisdiction was also proper with respect to a fourth count of statutory rape which alleged a date range for the offense (January 1, 2011 to November 30, 2011) that included periods before the defendant’s sixteenth birthday (September 14, 2011). Unchallenged evidence showed that the offense occurred around Thanksgiving 2011, after the defendant’s sixteenth birthday. The court noted the relaxed temporal specificity rules regarding offenses involving child victims and that the defendant could have requested a special verdict to require the jury to find the crime occurred after he turned sixteen or moved for a bill of particulars to obtain additional specificity.

Based on the victim’s testimony that the alleged incident occurred in his bedroom, there was sufficient evidence that the charged offense, crime against nature, occurred in the state of North Carolina.

(1) North Carolina had territorial jurisdiction to prosecute the defendant for embezzlement. The defendant was a long distance driver employed by a North Carolina moving company. The defendant was charged with having received funds from a customer out-of-state and having converted them to his own use instead of transmitting the funds to his employer. The court adopted a “duty to account” theory under which territorial jurisdiction for embezzlement may be exercised by the state in which the accused was under a duty to account for the property. In this case, the court found that the duty to account was to the victim in North Carolina. (2) Because the defendant’s argument about territorial jurisdiction was a legal and not a factual one, the trial court did not err by declining to submit the issue to the jury.

Where the defendant was charged with impaired driving and reckless driving and the State took a voluntary dismissal of the reckless driving charge in district court, that charge was not properly before the superior court on appeal for trial de novo and judgment on that offense must be vacated. The court noted that the dismissal was not pursuant to a plea agreement.

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