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., 09/21/2021
E.g., 09/21/2021

In this capital case, the court rejected the defendant’s argument that the trial court abused its discretion by denying his requests for a mistrial because of two statements made by the State during closing arguments at the guilt phase of the trial. During the investigation of the case, the defendant authorized defense counsel to reveal the location of the victim’s body, in hopes of receiving a plea offer or perhaps the possibility of arguing for mitigating circumstances at a possible later capital trial. The defendant and the lawyers agreed that the information would be conveyed to the police but that its source would not be disclosed. The lawyers carried out this agreement in making their disclosure to law enforcement. During closing argument at trial, the prosecutor noted in part that the victim’s body was found “where the defendant’s lawyer said he put the body.” Later, the prosecutor asserted, “And his defense attorney telling law enforcement where to look for the body puts him there.” The court found that the second statement was not improper. Evidence that the information of the victim’s location was conveyed to law enforcement by defense counsel was properly admitted by the trial court and this evidence permitted reasonable inferences to be drawn that were incriminating to the defendant, specifically that the defendant was the source of the information and had been to the location. The prosecutor’s first statement however was improper. This statement was couched as an assertion of fact which was not an accurate reflection of the evidence. However, the statement did not require a mistrial. The court stated: “this sole misstatement of that evidence did not run far afield of what was permissible.”

In this armed robbery case, the trial court did not err by denying the defendant’s motion for a mistrial based upon a detective testifying that he had retrieved from the “jail archive” photographs used for a lineup where the victim identified the defendant.  The court noted that G.S. 15A-1061 mandates that a trial judge declare a mistrial if there occurs during trial an error resulting in substantial and irreparable prejudice to the defendant’s case.  Otherwise, declaring a mistrial is in the trial court’s discretion.  The court explained that while the detective’s testimony arguably indicated to the jury indirectly that the defendant had a criminal history, the testimony was not prejudicial because the defendant himself directly informed the jury of his criminal history on direct and cross-examination.  The court went on to conclude that even if the testimony was prejudicial, the trial court cured any prejudice by sustaining the defendant’s objection and instructing the jury to disregard the detective’s statement. 

The court dismissed without prejudice the defendant’s IAC claim based upon defense counsel’s failure to challenge the photographic lineup’s compliance with the Eyewitness Identification Reform Act because the record on direct appeal was insufficient to assess the claim.

In this Bertie County case, the defendant was charged with first-degree murder and felony possession of a weapon by a prisoner for an alleged fight at Bertie Correctional Institution that left another inmate dead. After court adjourned on the first day of the defendant’s trial, one of the State’s witnesses, the prison’s assistant superintendent, told the prosecutor for the first time that the defendant’s blood-stained clothes from the day of the alleged incident were at the prison and had never been turned over to law enforcement. (The prosecutor was clearly frustrated by the oversight and the trial judge called it “ridiculous.”) The next morning, the State moved for a mistrial, arguing that it would be unfair to proceed with the trial without first testing the evidence, because it could be either corroborative or exculpatory depending what DNA testing showed. After a hearing on the issue, the trial court granted the State’s motion, concluding as a matter of law that “it is in the public’s interest in a fair trial” to enter a mistrial and give the SBI time to test the clothing. Almost 3 years later the case came on for a second trial before a different judge. That judge denied the defendant’s motions to dismiss both charges on double jeopardy grounds. The defendant was convicted of possession of a weapon by a prisoner, but the jury deadlocked on first-degree murder, resulting in another mistrial on that charge. On appellate review, the Court of Appeals concluded that the second trial judge erred by denying the defendant’s motion to dismiss on double jeopardy grounds. To grant the motion, the appellate court said, would have required a showing that the first mistrial had been properly entered for “manifest necessity.” Manifest necessity can be based on physical necessity (like when a juror falls ill), or the necessity of doing justice (like when there is evidence of jury tampering). Here, the court concluded, there was no evidence of physical necessity or misconduct by any party—just new evidence that was already in the possession of State officials, but of which the prosecution was unaware. Because the State bore the risk of proceeding to trial based on an incomplete investigation of evidence already in its possession, there was no manifest necessity justifying the mistrial in the first case. Jeopardy therefore attached and barred the State from further prosecuting the defendant. The Court of Appeals vacated the weapon possession conviction and remanded the case for dismissal of both charges.

In this sex offense case, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial and instead giving a curative instruction to the jury in response to the State’s objectionable questioning of a witness.  Defense counsel did not admit the defendant’s guilt over his objection in violation of State v. Harbison or McCoy v. Louisiana by admitting an element of the charged offense in closing argument.

(1) Prior to trial in response to the defendant’s motion to exclude certain potential testimony, the State agreed to refrain from asking a detective about the victim’s grandmother allegedly pressuring the victim not to testify.  At trial, the State asked the victim about the manner in which she had been pressured not to testify and the defendant objected.  The trial court sustained the objection but denied the defendant’s motion for a mistrial, instead issuing a curative instruction striking the testimony from the record and from the jury’s consideration.  The Court of Appeals determined that the trial court did not abuse its discretion in denying a mistrial and properly exercised its discretion and cured any potential prejudice by issuing the curative instruction and polling the jury.

(2) Even if defense counsel admitted an element of second-degree forcible sexual offense by saying in closing argument that the State would have had a “slam-dunk incest case” if the defendant and the victim were related to each other and referring to an issue of consent under the “dirty and unpalatable” facts of the case, counsel did not violate the defendant’s Sixth Amendment rights by admitting the defendant’s guilt without his consent.  The court explained that defense counsel’s statements may have constituted admissions of the “sexual act with another person” element of the crime, but did not constitute an admission of guilt because counsel “vociferously argued” that the defendant did not perpetrate the sexual contact “by force and against the will” of the victim, another element of the crime.  First addressing the issue through the lens of ineffective assistance of counsel, the court explained that an admission of an element does not constitute an admission of guilt and consequently counsel’s comments were not a Harbison violation.  The court then distinguished defense counsel’s admission of “at most” an element of the offense from the situation in McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500 (2018) where defense counsel admitted his client’s guilt and found that no Sixth Amendment structural error occurred.

The defendant was convicted of obtaining property by false pretenses for selling boxes purportedly containing iPhones that contained only lug nuts. At trial, the prosecutor tried to use the video system to display to the jury a photo of the vehicle driven by the defendant, which the judge had admitted without objection. Instead, the prosecutor inadvertently showed an image of the defendant with several phones in his hand while wearing gold necklaces and standing in front of a mirror, an image similar to a photo the trial judge had ruled inadmissible under North Carolina Rule of Evidence 403. Once defense counsel noticed the image and objected, the prosecutor apologized and disconnected the display. The trial judge denied the defendant’s motion for a mistrial and instead gave a limiting instruction telling the jury to disregard anything that might have just flashed up on the screen. After considering the nature of the evidence and the circumstances of the defendant’s case, the Court of Appeals held that the defendant did not overcome the presumption that the jury was able to understand and comply with the trial judge’s limiting instruction and that the trial judge did not abuse his discretion in denying a mistrial.

In this Watauga County case for indecent liberties, the defendant was accused of improper contact with a child in an incident allegedly witnessed by the child’s sister and mother. The State sought to compel the mother and two daughters to testify at trial. After jury was impaneled and opening statements were given, the court released the jury for the day. The State sought a show-cause order for the mother of the alleged victim, stating that the witness and her children were not present despite having been personally served with a subpoena. The State recounted efforts to reach the witnesses at the mother’s home and work, as well as at the children’s school. The defense opposed the show-cause order and sought to have trial proceed. The trial court issued the show-cause for the mother and set the matter for hearing the next morning. The mother and children again did not appear in court the next day and the trial court received more information that the witnesses could not be found. The State then sought an order for the mother’s arrest. Defense counsel again opposed the request, asking that the trial proceed or be dismissed and opposing any mistrial. The trial court issued the order for the mother’s arrest and held the proceedings open until later in the afternoon. When the witnesses were still not present, the State moved for a mistrial, arguing that the witnesses were “necessary and essential” and that trial could not proceed without them. The defendant again opposed a mistrial. The trial judge granted the mistrial, finding that the witnesses were not available due to no fault of the parties and “that their absence ‘deprived the State of its ability to present its case and to meet its burden of proof.’” At retrial, the defendant filed a motion to dismiss, arguing that a second trial would violate double jeopardy. The trial court denied the motion, ruling that because an earlier Superior Court judge had found a manifest necessity supporting the mistrial order, the present trial court could not overrule that earlier decision. The motion was therefore denied. The defendant sought review in the Court of Appeals by way of petition for writ of certiorari, which was granted. The Court of Appeals reversed.   

(1) The State first argued that appellate review should be limited to the motion to dismiss and should not consider the propriety of the mistrial order. The court disagreed. Under State v. Odom, 316 N.C. 306 (1986), “where the order of mistrial has been improperly entered over a defendant’s objection, defendant’s motion for dismissal at a subsequent trial must be granted.” In order to determine whether the motion to dismiss should have been granted, the court must also determine the propriety of the mistrial order.  The court observed that it reviewed both the order denying the motion to dismiss and the mistrial order in the recent case of State v. Schalow, 215 N.C. App. 334 (2016), disc. rev. improvidently allowed, 370 N.C. 525 (2018), on similar facts.

(2) The State also alleged that the constitutional issue was unpreserved, because the defendant failed to object to the mistrial. Rejecting this contention, the court noted:

Although Defendant never formally recited the word “objection” or noted any “exception” to the trial court’s declaration of a mistrial, he did ‘present the trial court with a timely request’ to deny the State’s motion for a mistrial, ‘stating the specific grounds for the ruling sought.’

While the defendant is generally not entitled to plead double jeopardy when he fails to object to the mistrial, here, the trial court heard arguments and ruled on the issue. This was sufficient to preserve the issue for appellate review.

(3) The trial court erred in denying the motion to dismiss based on its perceived inability to overrule another Superior Court judge. Under Odom, the court faced with a double jeopardy motion must determine whether the mistrial order was appropriate. While a mistrial normally does not support a double jeopardy claim, a mistrial must be supported by a manifest necessity when the defendant objects. A mistrial may be declared due to “physical necessity”—such as when a juror can no longer participate in the trial—or due to the “necessity of doing justice”—to protect the court system from “fraudulent practices” or where a fair trial has become impossible. Where the State seeks a mistrial, it has a “heavy” burden to carry in justifying the order. When the mistrial is based on missing or unavailable evidence, the “strictest scrutiny” applies under Arizona v. Washington, 434 U.S. 497 (1978). The inquiry looks at what the State knew at the time that trial began, and close cases should be resolved “in favor of the liberty of the citizen. . . “ Here, “it is clear the State took a chance by impaneling the jury ‘without first ascertaining’ that its witnesses . . . were present and available to testify.” There was no record evidence of any misconduct on the defendant’s part causing the witnesses to be absent, and all three witnesses were under subpoena before trial. The State assumed the risk that its witnesses would not appear, and that jeopardy would attach once the jury was impaneled. These circumstances did not constitute a manifest necessity. The court therefore unanimously reversed the trial court, remanding for the trial court to grant the motion to dismiss.

In this child sexual assault case, the court rejected the defendant’s argument that the trial court erred by denying his motion for mistrial when an expert witness mentioned the defendant as “a person who had a history of criminality.” Dr. Elizabeth Witman, the director of SAFEchild Advocacy Center, testified about the victim’s medical evaluation and diagnostic interview. When asked whether she had any concerns about the victim’s biological family, Witman replied said that she did, stating, in part, that “because of her mother’s homelessness and probably financial struggles and some other issues it was my opinion that she was neglected by being allowed to live with a person who had a history of criminality.” The defendant moved to strike. The trial court sustained the objection and instructed the jury to disregard the witness’s statement but denied the defendant’s motion for mistrial. Finding no abuse of discretion by the trial court in denying the mistrial motion, the court noted that the trial court sustained the defendant’s objection and instructed the jury to disregard. Moreover the disclosure of the defendant’s history of criminality was vague and “did not suggest Defendant had previously been convicted of anything.”

The trial court properly declared a mistrial for manifest necessity in this felony assault case. After the State rested, the trial court expressed concern that one of the jurors would be unavailable due to his wife’s upcoming heart procedure. The trial court expressed “no confidence” and “absolutely no faith” in the alternate juror because the alternate had not heard much of the trial testimony up to that point. In light of the impending absence of the juror in question and the judge’s belief that the alternate would be unable to perform his duties, the trial court did not abuse its discretion by declaring a mistrial.

In this child sexual assault case, the trial court did not abuse its discretion by failing to sua sponte declare a mistrial. The court rejected the defendant’s argument that a mistrial was required by certain behavior of the victim’s father. The defendant had pointed to several instances of conduct by the victim’s father which he argued disrupted the “atmosphere of judicial calm” to which he was entitled. The court noted that with respect to each of the instances in question, the trial judge took immediate measures to address the behavior and the defendant did not request additional action by the trial court, move for a mistrial, or object to the trial court’s method of handling the matter. The court found that “in light of the immediate and reasonable steps” by the trial court in response to the conduct, the trial court did not abuse its discretion in failing to declare a mistrial sua sponte.

In this murder case, the prosecutor’s statement that the defendant “can’t keep her knees together or her mouth shut” was “improperly abusive.” The defendant was charged with murdering her husband, and the State’s evidence indicated that she was having an affair with her therapist. However, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial--a “drastic remedy”--on grounds of the prosecutor’s improper statements. 

In this drug trafficking case, the trial court did not abuse its discretion by declining to declare a mistrial because of a prospective juror’s comment. In the presence of the rest of the jury pool, the prospective juror stated that he had seen the defendant “around” and “I believe she did it.” The defendant moved for a mistrial. The trial judge denied the motion but indicated that it would instruct the jury to cure any potential for prejudice. The trial judge immediately dismissed the prospective juror and gave a lengthy curative instruction to the jury pool. The court rejected the defendant’s argument that the comment required a mistrial as a matter of law. The court held that in light of the trial court’s curative instruction, the trial court acted well within its discretion in denying the defendant’s motion for a mistrial.

In this robbery case, the trial court did not err by denying the defendant’s mistrial motion made after an officer testified that the defendant told him that he was turning himself in on a failure to appear charge issued in connection with unrelated drug charges. The defendant failed to timely object to the officer’s testimony and any prejudice resulting from it was eliminated by the trial court’s curative instruction and the defendant’s own trial testimony.

The trial court did not err by denying the pro se defendant’s motion for mistrial asserting that the jury was prejudiced against him. The record revealed that members of the jury did seem to be frustrated with the pro se defendant who was disruptive in court and asked rambling and irrelevant questions of witnesses. Their frustration was demonstrated through notes to the trial court and the fact that some members stood up several times in apparent exasperation during the proceedings. However, the court concluded that where a defendant was “prejudiced in the eyes of the jury by his own misconduct, he cannot be heard to complain.” (quotation omitted).

The trial court did not err by denying the defendant’s motion for a mistrial where the motion was based on the defendant’s own misconduct in the courtroom.

In a resist, delay and obstruct case arising out of an incident of indecent exposure, the trial court did not abuse its discretion by denying the defendant’s mistrial motion when an officer testifying for the State indicated that the defendant said he was a convicted sex offender. The trial court sustained the defendant’s objection, granted the defendant’s motion to strike, and gave the jury a curative instruction.

The trial court did not abuse its discretion by denying the defendant’s motion for a mistrial made after three law enforcement officers, who were witnesses for the State, walked through the jury assembly room on their way to court while two members of the jury were in the room. The trial court had found that the contact with jurors was inadvertent and that there was no conversation between the officers and the jurors.

The trial court did not abuse its discretion in this murder case by denying the defendant’s motion for a mistrial made in response to a statement by the prosecutor during the State’s direct examination of a witness that “[t]here was testimony in this case that a shot was fired from a shotgun in the hallway of the residence.” The court agreed with the defendant that the statement was misleading given that no witness had testified that the shotgun was fired in the hallway. However, trial court took steps to mitigate the impact of the statement by sustaining the defendant’s objection to it and instructing the jury to disregard the statement. The court also rejected the defendant’s argument that his mistrial motion should have been granted because the prosecutor’s statement violated an earlier suppression order. The suppression order prohibited the State from introducing testimony relating to SBI ballistics testing regarding the shotgun. The prosecutor’s statement did not refer to the SBI testing and thus did not violate the prior order.

State v. Dye, 207 N.C. App. 473 (Oct. 19, 2010)

The trial court did not abuse its discretion by denying the defendant’s mistrial motion, made after the jury returned guilty verdicts. The motion was based on the fact that the child victim in this sexual assault case twice interrupted defense counsel’s closing argument. After the initial interruption, the trial court, out of the jury’s presence, instructed the victim to remain quiet. After her second outburst, the victim was removed from the courtroom. Additionally, the trial provided the defendant with an opportunity to request remedial measures, including mistrial, an invitation that was declined until after the verdict was returned.

The trial court did not abuse its discretion by denying the defendant’s mistrial motion made after the State twice violated a court order forbidding any mention of polygraph examinations. The court disapproved of the State’s action in submitting to the jury unredacted exhibits containing references to a polygraph examination but noted that the exhibits did not contain any evidence of the results of such examination.

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