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., 09/26/2021
E.g., 09/26/2021
State v. May, 368 N.C. 112 (June 11, 2015)

The court reversed State v. May, 230 N.C. App. 366 (2013), which had held that the trial court committed reversible error when charging a deadlocked jury. The court of appeals held that the trial court erred when it instructed the deadlocked jury to resume deliberations for an additional thirty minutes, stating: “I’m going to ask you, since the people have so much invested in this, and we don’t want to have to redo it again, but anyway, if we have to we will.” The court of appeals concluded that instructing a deadlocked jury regarding the time and expense associated with the trial and a possible retrial resulted in coercion of a deadlocked jury in violation of the N.C. Constitution. The court of appeals went on to hold that the State had failed to show that the error was harmless beyond a reasonable doubt. The State petitioned for discretionary review on whether the court of appeals had erred in holding that the State had the burden of proving that the purported error in the trial court’s instructions was harmless beyond a reasonable doubt. The supreme court reversed, distinguishing State v. Wilson, 363 N.C. 478, 484 (2009) (claim that instructions given to less than the full jury violated the constitution was preserved as a matter of law), and concluding that because the defendant failed to raise the constitutional coercive verdict issue below, it was waived on appeal. Nevertheless, the supreme court continued, because the alleged constitutional error occurred during the trial court’s instructions to the jury, it could review for plain error. The court also concluded that because the defendant failed to assert at trial his argument that the instructions violated G.S. 15A-1235 and because the relevant provisions in G.S. 15A-1235 were permissive and not mandatory, plain error review applied to that claim as well. Turning to the substance of the claims, the court concluded that the trial court’s instructions substantially complied with G.S. 15A-1235. It further held that “Assuming without deciding that the court’s instruction to continue deliberations for thirty minutes and the court’s isolated mention of a retrial were erroneous, these errors do not rise to the level of being so fundamentally erroneous as to constitute plain error.” 

In this sex offense and indecent liberties case where the defendant was ordered to enroll in lifetime SBM, the trial court did not plainly err with respect to an Allen charge, the defendant did not preserve his argument related to SBM, and the defendant received statutory ineffective assistance of counsel during the SBM proceedings.  Approximately one hour after beginning deliberations, the jury sent a question to the court asking for clarification as to whether they must have unanimous agreement to render a guilty verdict and whether a lack of unanimity would require that they return a not guilty verdict.  In response and without objection from either party, the trial court responded to the jury’s question with instructions derived from G.S. 15A-1235(a).  The court of appeals rejected the defendant’s argument that the trial court plainly erred by omitting instructions from G.S. 15A-1235(b), explaining that the jury’s question asked for clarification on the issue of unanimity and did not clearly indicate that the jury was deadlocked, in disagreement, or at an impasse.  As such, the trial court did not err by reciting the unanimity instructions in G.S. 15A-1235(a) without providing the additional instructions in subsection (b).

As to SBM, the court first found that the defendant failed to preserve a Fourth Amendment challenge to the lifetime SBM order by failing to make a constitutional objection during the sentencing proceeding where SBM was addressed, and further declined to invoke Rule 2 to reach the issue.  The court went on to agree with the defendant’s alternative argument that he received statutory ineffective assistance of counsel under G.S. 7A-451(a)(18).  Likening the case to State v. Spinks, ___ N.C. App. ___, 2021-NCCOA-218 (2021), the court found that counsel was ineffective by failing to object to SBM enrollment or file a notice of appeal from the SBM order where the State offered no evidence of the reasonableness of lifetime SBM.

The court rejected the defendant’s argument that the trial court erred by giving a coercive instruction after the jury indicated that it was deadlocked. Concluding that the trial court’s instructions to continue deliberations were in accord with G.S. 15A-1235(b), the court disagreed. The jury informed the trial court three times that it was unable to reach a unanimous verdict. Each time the trial court gave an instruction consistent with the statute. After the jury had deliberated less than five hours in a single day, and after its third note to the trial court stating that it was deadlocked, the trial court informed the jury that it was sending them back to further deliberate with the same instructions previously given. However, in this instance, the trial court added: “after five days of testimony and less than 5 hours of deliberations, these folks deserve better.” The defendant argued that this comment was impermissibly coercive and left the jurors with the impression that the judge was irritated with them for not reaching a verdict. The court found otherwise, noting that the judge was polite, patient, and accommodating. The trial court properly gave an Allen charge each time the jury stated that it was deadlocked. Prior to its final comment, the jury received a lunch break, recess and a meal. After the third impasse, the trial court gave the jury a choice to continue to deliberate that day or to go home and continue deliberations the next day. Considering the totality of the circumstances, the trial court’s comment was not coercive.

No plain error occurred with respect to a supplemental jury instruction given by the trial court in response to the jury’s note that it was “stuck” during deliberations. The noted indicated that the jury was split 11 to 1. Neither party objected to the trial court’s suggestion to give the jury an instruction urging them to do what they could to arrive at a unanimous verdict. The defendant argued that the trial court’s instruction violated G.S. 15A-1235. Although the court found that the trial court’s failure to give the full instructions as directed by the statute did not rise to the level of plain error, it stated: “[W]e must clarify that at the time the instruction was given, the trial court should reasonably have believed that the jury was deadlocked. Because the trial court gave some of the instructions, but not all of them, it did commit error.” 

State v. Lee, ___ N.C. App. ___, 789 S.E.2d 679 (Aug. 2, 2016) rev’d on other grounds, ___ N.C. ___, 811 S.E.2d 563 (Apr 6 2018)

The court rejected the defendant’s argument that the trial court committed plain error by requiring a jury to deliberate for an unreasonable length of time. Jury deliberations began at 2:15 pm. At 8:43 pm the jury sent a note indicating that it was deadlocked. Several minutes later, and with defense counsel’s consent, the trial court gave an Allen instruction. At 10:50 pm the trial court returned the jury to the courtroom and requested an update on deliberations. The foreperson indicated that the jury was a lot closer “than the first time.” Both parties agreed to let deliberations resume. The jury returned a verdict at 11:34 pm. The court rejected the defendant’s argument that by allowing the jury to continue deliberations until nearly midnight it violated G.S. 15A-1235(c). When the trial court allowed the jury to continue deliberating at 10:50 pm the statute was not implicated because it no longer appeared that the jury was unable to agree.

Where the trial court’s Allen charge was in substantial compliance with G.S. 15A-1235, no coercion of the verdict occurred. The defendant argued that because the Allen charge failed to instruct the jury in accordance with section G.S. 15A-1235(b)(3) that “a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous,” he was entitled to a new trial. Acknowledging that the charge failed to repeat G.S. 15A-1235(b)(3) verbatim, the court concluded that the trial court's instructions contained the substance of the statute and fairly apprised the jurors of their duty to reach a consensus after open-minded debate and examination without sacrificing their individually held convictions merely for the sake of returning a verdict.

(1) The trial court did not coerce a verdict by giving an Allen charge pursuant to G.S. 15A-1235. The jury sent the judge a note at 3:59 pm, after 70 minutes of deliberations, indicating that they were split 11-to-1 and that the one juror “will not change their mind.” The court rejected the defendant’s argument that a jury’s indication that it may be deadlocked requires the trial court to immediately declare a mistrial, finding it inconsistent with the statute and NC case law. (2) The trial court did not coerce a verdict when it told the deliberating jury, in response to the same note about deadlock, that if they did not reach a verdict by 5 pm, he would bring them back the next day to continue deliberations. Although threatening to hold a jury until they reach a verdict can under some circumstances coerce a verdict, that did not happen here. After receiving the note at approximately 4:00 pm, the trial judge told the jurors that although they were divided, they had been deliberating for only approximately 75 minutes. The judge explained that he was going to have them continue to deliberate for the rest of the afternoon and that if they needed more time they could resume deliberations the next day. The trial judge further emphasized that the jurors should not rush in their deliberations and reminded them that it was “important that every view of the jury be considered, and that you deliberate in good faith among yourselves.” The court found that these statements cannot be viewed as coercive. 

The trial court did not coerce a verdict by instructing the jurors to continue deliberating after they three times indicated a deadlock. Although the trial court did not give an Allen instruction every time, G.S. 15A-1235 does not require the trial court to do so every time the jury indicates that it is deadlocked.

The trial court did not impermissibly coerce a verdict. While deliberating, the jury asked to hear certain trial testimony again. The trial judge initially denied the request. After the jury indicated that it could not reach a verdict, the trial judge asked if it would be helpful to have the testimony played back. This was done and the trial judge gave an Allen instruction.

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

The court rejected the defendant’s argument that the trial court’s instructions to the jury coerced a verdict. The jury retired to begin deliberations at 3:38 p.m.  At 5:51 p.m., the trial judge brought the jury into the courtroom to inquire about its progress. The jury indicated that it had reached unanimous verdicts on two of the four charges. The trial judge then allowed a twenty-minute recess, giving the following challenged instruction:

What I am going to do at this point is allow you to take a recess for about 20 minutes[.] If anyone needs during this 15 or 20 minute recess to call someone, a family member, to let them know that you are going to be delayed  – but we are going to stay here this evening with a view towards reaching a unanimous verdict on the other two.  That’s where we are.  I want everyone to know that.  If you need to call someone to let them know you will be delayed, that’s fine.

After the recess, the jury resumed its deliberations. Eleven minutes later the jury returned unanimous verdicts in all four cases. Considering the totality of the circumstances, the instructions were not coercive. 

The trial court did not abuse its discretion by refusing to declare a mistrial and instead allowing the jury to go home and return the next day to continue deliberating. The jury deliberated approximately 7 hours over the course of two days; at the end of the day, when asked whether they wished to continue deliberating or come back the next day, a juror indicated that nothing would “change[.]” The trial judge ordered the jury to return the next day. They did so and reached a verdict.

On writ of certiorari of a divided decision of the Court of Appeals, ___ N.C. App. ___, 811 S.E.2d 215 (2018), the court held that the defendant was not prejudiced by the trial court’s decision to allow the jury to review photographs in the jury room without the defendant’s consent. At trial at least 179 photographs were admitted into evidence, all but one of them without any objection from the defendant. While deliberating, the jury sent a note to the trial court requesting the photographs. After noting that whether to send the photos back was in the trial court’s discretion, trial counsel objected to allowing the jury to review the photos in the jury room and stated his preference that the jurors rely on testimony and recollection. The trial court decided, in its discretion, to allow the jury to have all of the photographs, and those items were delivered to the jury room. The defendant was convicted and he appealed. G.S. 15A-1233(b) provides, in part, that, “[u]pon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence.” Permitting juries to take evidence to the jury room without the consent of the parties constitutes error. While the trial court erred by allowing the jury to examine the photographs in the jury room without the defendant’s consent, the error was not prejudicial given the extensive evidence of the defendant’s guilt and the weakness of the defendant’s claim of self-defense when considered in connection with other evidence in the record. Here, the central issue was whether or not the defendant acted in self-defense. In arguing prejudice, the defendant asserted that the lengthy period of time that the jury was allowed to have photographs showing injuries inflicted upon the victim’s body and photographs of the relatively minor injuries inflicted on him could easily have led the jury to reject his self-defense claim. For reasons discussed in the court’s opinion, the court did not find this argument persuasive.

State v. Starr, 365 N.C. 314 (Dec. 9, 2011)

The court modified and affirmed a decision of the court of appeals in State v. Starr, 209 N.C. App. 106 (Jan. 4, 2011) ((1) although the trial judge did not explicitly state that he was denying, in his discretion, the jury's request to review testimony, the judge instructed the jurors to rely on their recollection of the evidence that they heard and therefore properly exercised discretion in denying the request and (2) when defense counsel consents to the trial court's communication with the jury in a manner other than in the courtroom, the defendant waives his right to appeal the issue; here, although the trial judge failed to bring the jurors to the courtroom in response to their request to review testimony and instead instructed them from the jury room door, prior to doing so he asked for and received counsel’s permission to instruct at the jury room door). The supreme court determined that the trial court violated G.S. 15A-1233(a) by failing to exercise its discretion in deciding whether to allow the jury to review testimony. The court noted that as a general rule, when the trial court gives no reason for a ruling that must be discretionary, it is presumed that the court exercised its discretion. However, when the trial court’s statements show that it did not exercise discretion, the presumption is overcome. Here, the trial court’s statement that “we don’t have the capability . . . so we cannot provide you with that” overcomes the presumption the court exercised its discretion. However, the court found that the error was not prejudicial. The court provided the following guidance to trial court judges to ensure compliance with G.S. 15A-1233(a): The trial court must exercise its discretion to determine whether the transcript should be made available to the jury but it is not required to state a reason for denying access to the transcript. The trial judge may simply say, “In the exercise of my discretion, I deny the request,” and instruct the jury to rely on its recollection of the trial testimony. 

The defendant was indicted for taking indecent liberties with a child and went to trial. At trial, the jury heard testimony from the victim and the defendant. During deliberations, the jury asked to see a transcript of both witnesses’ testimony. The trial judge told the jury that “unlike on TV” transcripts are not made in real time, it would take “a couple weeks at the fastest” to create them, so it is “just not able to be done.” On appeal, the defendant argued this was reversible error because the trial judge failed to clearly state that she was declining to provide a transcript as a matter of judicial discretion, rather than because it was impossible. The appellate court agreed, based on nearly indistinguishable binding precedent, even though in this case it “readily can be inferred” from the trial judge’s comments that she was aware that she had the discretion to order a transcript but was choosing not to do so because of the delay it would cause. The court noted that “we believe the Supreme Court should review this line of cases,” but “as an intermediate appellate court […w]e are bound by both our own precedent and the Supreme Court’s, and thus constrained to find error.”

Additionally, the error is deemed prejudicial when it is material to the determination of guilt or innocence and involves issues of confusion or contradiction such that the jury would want to review the evidence to understand it. Both factors applied in this case because there was no physical evidence and “the State’s case relied entirely on witness testimony.” Since the jury asked to review a transcript of that testimony, and the trial court erroneously told the jury it was not possible, “there is a reasonable possibility that the trial court’s error affected the outcome of the jury’s deliberations.” The conviction was vacated and remanded for a new trial.

In this indecent liberties with a child case, although the trial court erred by failing to conduct the jury to the courtroom as required by G.S. 15A-1233 in response to its request to review certain evidence, the error was not prejudicial and the defendant failed to show an error of constitutional magnitude. The statute requires that if the jury, after retiring for deliberations, requests to review evidence, the jurors must be conducted to the courtroom. Here, the jury sent two notes to the trial court, one requesting police reports, and another requesting transcripts of certain trial testimony. On both occasions, the bailiff brought the notes into the courtroom to the judge and delivered the judge’s written responses to the jury. The judge’s notes informed the jury that they could not review the police reports because they were not in evidence and that the trial court had decided, in its discretion, not to delay deliberations to have a transcript produced of the testimony in question. This was error because the trial court failed to comply with the statute. However this did not constitute a violation of the defendant’s right to a unanimous verdict under the state constitution, where the trial court did not interact with or provide instructions to less than a full jury panel. Additionally a new trial is not warranted as there is no showing that the error prejudiced the defendant.

In this murder case, although the trial court erred by making comments prior to closing arguments suggesting to the jury that it would be futile to request to review witness testimony, the error was not prejudicial. The trial judge had stated:

When you go back and start deliberating, if six of you say, Well, I remember this witness says things this way and the other six of you say, No, I don’t remember it that way . . . you don’t have the option of saying, Well, let’s go ask the judge and let the judge tell us what did that witness really say. Because if you ask that question, my response it going to be, That’s part of your job, to figure it out and to make that determination based on your recollection[.]

The court rejected the State’s argument that the trial court’s comments merely made it clear to the jurors that if they asked for his interpretation of witness testimony, the judge would instruct them to make that determination based on their own recollections. However, the court declined to find that the error was prejudicial.

Although the trial court erred by failing to exercise discretion in connection with the jury’s request to review certain testimony, the defendant failed to show prejudice. In this armed robbery case, during deliberations the jury sent a note to the trial court requesting several items, including a deputy’s trial testimony. The trial court refused the request on grounds that the transcript was not currently available. This explanation was “indistinguishable from similar responses to jury requests that have been found by our Supreme Court to demonstrate a failure to exercise discretion.” However, the court went on to find that no prejudice occurred.

The trial court did not violate G.S. 15A-1233 by providing a preemptive instruction that denied the jury an opportunity to make any evidentiary requests. The court concluded that no such preemptive instruction was given; the trial court instructed that although no transcript existed, it would consider requests to review testimony on a case by case basis and attempt to accommodate requests if necessary.

The trial court committed prejudicial error by failing to exercise discretion in responding to the deliberating jury’s request to review evidence. The trial court indicated that the requested information was “not in a form which can be presented to [the jury.]” The court found that this statement “demonstrated a belief that [the trial court] was not capable of complying with the jury’s transcript request” and that as a result the trial court failed to exercise discretion in responding to the jury’s request. [Author’s note: For the proper procedure for responding to such a request by the jury, see my Bench Book section here.]

The court reversed and remanded for a new trial where the trial court failed to exercise its discretion regarding the jury’s request to review the victim’s testimony and the error was prejudicial. Responding to the jury’s request, the trial court stated, in part, “We can’t do that.” This statement suggests that the trial court did not know its decision was discretionary.

Although the trial court erred by sending exhibits to the jury deliberation room over objection of defense counsel, the error was not prejudicial. The deliberating jury asked to review a number of exhibits. After consulting with counsel outside of the presence of the jury the trial court directed that certain items be sent back to the jury. Defense counsel objected. Under G.S. 15A-1233, it was error for the court to send the material to the jury room over the defendant’s objection.

(1) The trial court erred when it responded to the deliberating jury’s request to review evidence by sending the requested evidence back to the jury room instead of conducting the jury to the courtroom, as required by G.S. 15A-1233. The defendant however suffered no prejudice. (2) The trial court erred when it allowed the jury to review a statement that had not been admitted in evidence. The defendant however suffered no prejudice. 

State v. Garcia, 216 N.C. App. 176 (Oct. 4, 2011)

The trial court properly exercised its discretion when denying the jury’s request to review testimony. Although the trial court’s statements to the jury indicate it thought that a review of that testimony was not possible (statements that normally suggest a failure to exercise discretion), the trial court had previously discussed with counsel the possibility of having the testimony read to the jury. The trial court was aware it had the ability to grant the request, but exercised its discretion in declining to do so.

The trial court violated G.S. 15A-1233 by responding to a jury request to review evidence and sending the evidence back to the jury room instead of bringing the jury into the courtroom. However, no prejudice resulted.

The trial court did not abuse its discretion by allowing the State to display an enhanced version (frame-by-frame presentation) of a video recording during closing argument and jury deliberations. The trial court correctly determined that the enhanced version was not new evidence since the original video had been presented in the State’s case.

The trial court did not abuse its discretion by denying the jury’s request, made during deliberations, for a transcript of a witness’s testimony. The trial court expressly denied the request in its discretion; there is no requirement that the trial judge provide any further explanation to demonstrate that he or she is in fact exercising discretion.

State v. Ross, 207 N.C. App. 379 (Oct. 19, 2010)

The bailiff’s delivery of an exhibit to the jury, with an instruction from the trial judge that it would need to be returned to the trial court did not prejudice the defendant, even though the trial court violated G.S. 15A-1233(a) by failing to bring the jury into the courtroom when the jury’s asked to review the exhibit. As to the instruction delivered by the bailiff, the court distinguished prior case law, in part, because the communication did not pertain to matters material to the case. 

The trial court erred in not exercising its discretion when denying the jury’s request for transcripts of testimony of the victim and the defendant.

The defendant was tried for armed robbery, conspiracy to commit armed robbery, and possession of a firearm by a person previously convicted of a felony. The trial was not over by Friday, and the trial judge called a weekend recess. The trial resumed on the following Monday, the jury convicted the defendant of all charges, and the trial judge sentenced the defendant. (1) The defendant argued that the trial judge failed to extend the session of court in which the trial began, violating the rule against judgments entered out of session. The Court of Appeals rejected this argument in reliance on G.S. 15-167, which allows a trial judge to extend a session if a felony trial is in progress on the last Friday of the session. The Court held that such an extension is valid when the trial judge announces a weekend recess without objection by the parties, as here. Although the trial judge was asked and declined to make written findings to support the extension, her decision not to make findings did not constitute a refusal to extend the session. (2) In response to written questions asked by the jury during deliberations, the trial judge sought clarification by writing out a short message and having the bailiff go to the jury room and read the message. The judge directed the bailiff not to communicate any other information, respond to questions by the jury, or remain for any discussion by the jury. The defendant argued that this procedure violated the requirements of G.S. 15A-1234 and G.S. 15A-1236, which require that responses to jury questions and additional instructions be in open court and which prohibit speaking to the jury. The Court held that assuming the trial judge committed statutory error, the defendant failed to show prejudice. The Court found that the trial judge’s message was clear and unambiguous, did not relate to guilt or innocence, and did not amount to an instruction to the jury. Absent evidence to the contrary, the Court stated that it would presume that both the bailiff and jurors understood and followed the judge’s directive to the bailiff to deliver the message and not to be present for or engage in any colloquy with the jury.

In this felony murder case, the trial court acted within its discretion by declining to answer a question from the deliberating jury. Robbery was the underlying felony for the felony murder charge. During deliberations, the jury sent a note with the following question: “Can this defendant be found guilty of the robbery charge and then found not guilty of the murder charge?” After hearing from the parties, the trial court declined to answer the question yes or no, instead telling the jury to read the written jury instructions that it had previously provided. The court noted that whether to give additional instructions to the jury is within the trial court’s discretion. Here, it was undisputed that the trial court correctly instructed the jury on all offenses and heard from the parties when the question was raised.

(1) In this murder and discharging a barreled weapon case in which the jury heard some evidence that the defendant was affiliated with a gang, the trial court did not deprive the defendant of his constitutional right to a fair and impartial jury by failing to question jurors about a note they sent to the trial court. The note read as follows:

(1) Do we have any concern for our safety following the verdict? Based on previous witness gang [information] and large [number] of people in court during the trial[.] Please do not bring this up in court[.]

(2) We need 12 letters—1 for each juror showing we have been here throughout this trial[.]

According to the defendant, the note required the trial court to conduct a voir dire of the jurors. The court disagreed, noting that the cases cited by the defendant dealt with the jurors being exposed to material not admitted at trial constituting “improper and prejudicial matter.” Here, the information about gang affiliation was received into evidence and the number of people in the courtroom cannot be deemed “improper and prejudicial matter.” (2) The trial court violated the defendant’s constitutional right to presence at every stage of the trial by failing to disclose the note to the defendant. However, the error was harmless beyond a reasonable doubt. (3) Although the court agreed that the trial court should disclose every jury note to the defendant and that failing to do so violates the defendant’s right to presence, it rejected the defendant’s argument that such disclosure is required by G.S. 15A-1234. That statute, the court explained, addresses when a trial judge may give additional instructions to the jury after it has retired for deliberations, including in response to an inquiry by the jury. It continued: “nothing in this statute requires a trial judge to respond to a jury note in a particular way.”

In this felony breaking and entering and larceny case the trial court did not violate G.S. 15A-1234 when responding to a question by the deliberating jury. The defendant argued that the trial failed to afford counsel an opportunity to be heard before responding the jury’s question about the difference between “taking” and “carrying away.” After receiving the question from the jury, the trial court told the parties that it was “going to tell [the jury] the definition of taking is to lay hold of something with one’s hands;” neither party objected to the proposed instructions. The trial court then instructed the jury on this definition, demonstrated the difference between the two terms with a coffee cup, and repeated the elements of felony larceny. Although the trial court did not inform the parties of its visual demonstration, the statute only requires that the trial court inform the parties “generally” of the instruction that it intends to give, as was done here.

Distinguishing State v. Hockett, 309 N.C. 794, 800 (1983) (trial court erred by refusing to answer deliberating jury’s question), the court held that the trial court properly answered the jury’s question about the State’s proof regarding the weapon in a robbery charge. 

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