In this child sexual assault case, the defendant failed to show prejudice caused by the trial court’s denial of the defendant’s motion for a continuance. That motion asserted that the district attorney did not file an adequate trial calendar 10 or more days before trial in violation of G.S. 7A-49.4(e). In July 2016, the trial court entered an order setting the case for trial on 14 November 2016. The case however was continued several times until the eventual 24 July 2017 trial date. The case also was placed on what the State calls a “trial session calendar” more than 10 days before the trial. However that calendar included more than a dozen criminal cases set for trial on 24 July 2017, listed in alphabetical order by the defendants’ last names. The defendant argued that this calendar does not comply with the statute because it does not list cases “in the order in which the district attorney anticipates they will be called for trial” and, given the number of complicated criminal cases on the list, necessarily includes cases that the DA does not reasonably expect to be called for trial that day. The defendant argued that the “true trial calendar” was a document filed 11 July 2017 and emailed to defense counsel on 12 July 2017. That document, entitled “Trial Order the Prosecutor Anticipates Cases to be Called,” listed the defendant’s case as the first case for trial on 24 July 2017. The defendant argues that this trial calendar did not give him 10 days notice before trial. The court agreed that the 11 July 2017 document is the only trial calendar that complies with the statute and that it was not published 10 or more days before the trial date. However, it concluded that the defendant did not show that he was prejudiced by the failure to receive the required notice. In so holding, the court rejected the defendant’s argument that he is not required to show prejudice. Here, the defendant argued that with more time he may have been able to call witnesses who would have established how the victim’s story changed over time and that she was coached. This however was speculation, as the defendant failed to produce any evidence that the witnesses would have so testified. Likewise, he did not assert that the trial court denied him the opportunity to make an offer of proof or build a record of what testimony these witnesses would have provided. Thus, no prejudice was shown.

The defendant was convicted of armed robbery and resisting a public officer in Columbus County. Immediately before trial, the defendant moved to continue the case. He argued that he had only just received and reviewed recorded statements of the robbery victim and needed time to subpoena the victim’s wife to provide exculpatory evidence and to impeach the victim’s credibility. The trial court declined to continue the case. (1) Defense counsel had been involved in the case for more than nine months and the victim’s wife was listed in discovery materials provided to the defense as a potential witness for the State. Despite being on notice of her potential value as a witness before trial, defense counsel made no effort to locate or interview her. Further, the oral motion to continue did not specifically describe what testimony the witness would provide other than calling it “exculpatory” and “impeaching,” nor was it supported by affidavit. According to the court:

[T]he oral motion for continuance is not supported by affidavit or other proof. In fact, the record suggests only a natural reluctance to go to trial . . . [and] [w]e are left with the thought that defense counsel suffered more from lack of a defense than from lack of time. McMillian Slip op. at 9 (citation omitted).

The denial of the motion to continue therefore did not violate the defendant’s constitutional rights nor amount to an abuse of discretion.

(2) At the conclusion of the case, defense counsel was not able to provide the numbers of hours he had in the case and only later provided a fee application to the judge. This was done outside the presence of the defendant, who was in custody at the time. Attorney fees were awarded without the defendant being notified or present, and there was no other evidence in the record that the defendant had notice or waived his right to be heard. The defendant sought review on the issue.

Attorney fee awards are civil judgments that must be appealed in accordance with appellate rules for civil cases. Because the defendant failed to give written notice of appeal, his appeal was dismissed for lack of jurisdiction. However, the defendant also filed a petition for writ of certiorari on the issue. The Court of Appeals granted the petition to reach the merits of the issue. The State agreed that the defendant did not receive an opportunity to be heard on attorney fees, and the court vacated the order for attorney fees. The matter was remanded the matter for a hearing to be conducted on the issue with the defendant having notice and an opportunity to be heard.

The trial court did not err by denying the defendant’s motion to continue after rejecting his Alford plea, where the defendant did not move for a continuance until the second week of trial. The defendant argued that he had an absolute right to a continuance under G.S. 15A-1023(b) (providing in part that “[u]pon rejection of the plea arrangement by the judge the defendant is entitled to a continuance until the next session of court”). Here, where the defendant failed to move for a continuance until the second week of trial, his statutory right to a continuance was waived. 

In a child sexual assault case, the trial court did not err by denying the defendant’s motion to continue, made on grounds that defense counsel learned of a potential defense witness on the eve of trial. Specifically, defense counsel learned that a psychologist prepared reports on the defendant and the victim in connection with a prior custody determination. However, the defendant knew about the psychologist’s work given his participation in it and defense counsel had two months to confer with the defendant and prepare the case for trial.

In this drug case, the trial court did not violate the defendant’s constitutional rights to due process and effective assistance of counsel by denying a motion to continue. The defendant argued that defense counsel had been appointed only 54 days before trial and had just become aware of material witnesses that might testify favorably for the defendant. Also, the defendant argued, on the Friday before trial week, the State turned over a confidential informant’s statements. The court noted that the trial was a retrial and that the underlying facts–two hand-to-hand sales to an undercover officer--were straightforward. Furthermore, the defendant failed to explain how a period of two months was insufficient to prepare for trial. With respect to the additional witnesses, the defendant failed to explain why he was unable to find them in the more than three years since his indictment and why their testimony was material. Also, the defendant already had copies of the informant’s statements.

In this murder case the trial court did not abuse its discretion by denying the defendant’s motion to continue. The defendant sought the continuance so that he could procure an expert to evaluate and testify regarding the State’s DNA evidence. The court rejected the defendant’s argument that by denying his motion to continue, the trial court violated his right to the effective assistance of counsel. The State provided discovery, including all SBI-generated reports and data 9 June 2011. It produced one DNA analysis report in hard copy and included a second on a CD containing other material. Defense counsel did not examine the CD until around 5 March 2012, when he e-mailed the prosecutor and asked if he had missed anything. The prosecutor informed him that the CD contained a second DNA report. Trial was set for 9 April 2012. However, after conferring with a DNA expert, the defendant filed a motion to continue on 16 March 2012. At a hearing on the motion, defense counsel explained his oversight and an expert said that he needed approximately 3-4 months to review the material and prepare for trial. The trial court denied defendant’s motion to continue. The court concluded:

Although the trial court might have justifiably granted defendant’s motion and could have avoided a potential question of ineffective assistance of counsel by doing so, we cannot say that where defendant had been provided the DNA report nearly a year before trial the trial court erred or violated defendant’s constitutional rights in denying his motion to continue in order to secure an expert witness for trial.

The court went on to dismiss the defendant’s claim of ineffective assistance without prejudice to him being able to raise it through a MAR.

The trial court did not abuse its discretion by denying the defendant’s motion to continue to test certain hair and fiber lifts from an item of clothing. The defendant had six months to prepare for trial and obtain independent testing, but waited until the day of trial to file his motion, in violation G.S. 15A-952(c). This failure to file the motion to continue within the required time period constituted a waiver of the motion. Also, because the item had already been DNA tested by the State, the lifts were not the only physical evidence obtained. 

The trial court did not violate the defendant’s due process rights by denying the defendant’s motion to continue, which had asserted that pretrial publicity had the potential to prejudice the jury pool and deprive the defendant of a fair trial. No evidence regarding pretrial publicity was in the record and even if it had been, the record showed that publicity did not improperly influence the jury.

The court affirmed the holding of State v. Sweat, 216 N.C. App. 321 (Oct. 18, 2011), that there was sufficient evidence of fellatio under the corpus delicti rule to support sex offense charges. The court clarified that the rule imposes different burdens on the State:

If there is independent proof of loss or injury, the State must show that the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime. However, if there is no independent proof of loss or injury, there must be strong corroboration of essential facts and circumstances embraced in the defendant’s confession. Corroboration of insignificant facts or those unrelated to the commission of the crime will not suffice.

(quotations omitted). Here, because the substantive evidence of fellatio was defendant’s confession to four such acts, the State was required to strongly corroborate essential facts and circumstances embraced in the confession. Under the totality of the circumstances, the State made the requisite showing based on: the defendant’s opportunity to engage in the acts; the fact that the confession evidenced familiarity with corroborated details (such as the specific acts that occurred) likely to be known only by the perpetrator; the fact that the confession fit within the defendant’s pattern of sexual misconduct; and the victim’s extrajudicial statements to an investigator and a nurse. The court rejected the defendant’s argument that the victim’s extrajudicial statements introduced to corroborate her testimony could not be used to corroborate his confession.

In this Wayne County case, defendant appealed his conviction for concealment of the death of a child who did not die of natural causes, arguing the State failed to satisfy the corpus delicti rule and error in permitting testimony that the child’s mother was convicted of second-degree murder. The Court of Appeals found no error and determined the corpus delicti rule was satisfied.  

In October of 2016, the mother and child in question moved into a house in Goldsboro with defendant and several other individuals. After the child disappeared, investigators interviewed defendant two times. In the second interview, defendant admitted overhearing the mother and another roommate discuss the child’s death and that they needed to dispose of the body. Defendant also described taking the mother and roommates to a house where they purchased methamphetamines, and events at the house that seemed to show the mother disposing of the body. Defendant told law enforcement “that he felt bad that he did not call for help, and one of his biggest mistakes was failing to tell people about [the child’s] death or report it to law enforcement.” Slip Op. at 7. At trial, text messages were admitted showing defendant and one of the roommates discussed covering up the child’s death. The prosecutor also asked a line of questions to one witness that revealed the mother was in prison for second-degree murder. Defendant moved for a mistrial several times and made a motion to dismiss, arguing insufficient evidence to satisfy the corpus delicti rule as the child’s body was never found, but the trial court denied the motions. 

Taking up defendant’s corpus delicti argument, the Court of Appeals first explained the rule’s requirement for corroborative evidence when an extrajudicial confession is the substantial evidence relied on to prove a crime. The court noted the N.C. Supreme Court adopted the “trustworthiness version” of the rule, meaning “the adequacy of corroborating proof is measured not by its tendency to establish the corpus delicti but by the extent to which it supports the trustworthiness of the admissions.” Slip Op. at 12-13, quoting State v. DeJesus, 265 N.C. App. 279 (2019). Having established the standard, the court looked to the substantial evidence supporting the trustworthiness of the confession and supporting each element of the crime charged, determining that the trial court properly denied the motion to dismiss. 

The court next considered defendant’s arguments that the testimony regarding the mother’s conviction for second-degree murder was (1) irrelevant under Rule of Evidence 401, (2) unfairly prejudicial under Rule of Evidence 403, and (3) constituted a violation of the Confrontation Clause of the U.S. and N.C. Constitutions. For (1), the court found relevancy “because it was relevant to whether [the child] was dead.” Id. at 21. Considering (2), the court found that since substantial evidence established the child died of unnatural causes, testimony regarding the mother’s conviction for murder was not unfairly prejudicial. Finally, for (3), the court noted that defendant’s argument that the mother’s guilty plea represented testimony was not directly addressed by North Carolina case law, but found an unpublished 4th Circuit per curiam opinion holding that a guilty plea was not testimonial evidence. The court also noted that no statement in the record seemed to alert the jury that the mother offered a guilty plea, and even if there was such a statement, it would represent harmless error based on the other evidence of the child’s death of unnatural causes. 

Chief Judge Stroud concurred in the result only by separate opinion, disagreeing with the analysis of admitting the testimony under Rules 401 and 403, but not considering the error prejudicial. 

In this child sexual assault case, there was substantial independent evidence to support the trustworthiness of the defendant’s extrajudicial confession that he engaged in vaginal intercourse with the victim on at least three occasions and therefore the corpus delicti rule was satisfied. The defendant challenged the trial court’s denial of his motion to dismiss two of his three statutory rape charges, which arose following the defendant’s confession that he had sex with the victim on three separate occasions. The defendant recognized that there was “confirmatory circumstance” to support one count of statutory rape because the victim became pregnant with the defendant’s child. However, he asserted that there was no evidence corroborating the two other charges other than his extrajudicial confession. The court disagreed, finding that there was substantial independent evidence establishing the trustworthiness of his confession that he engaged in vaginal intercourse with the victim on at least three separate occasions. Specifically, the victim’s pregnancy, together with evidence of the defendant’s opportunity to commit the crimes and the circumstances surrounding his statement to detectives provide sufficient corroboration “to engender a belief in the overall truth of Defendant’s confession.” The court began by noting that here there is no argument that the defendant’s confession was produced by deception or coercion. Additionally, in his confession he admitted that he engaged in intercourse with the victim on at least three occasions “that he could account for,” suggesting his appreciation and understanding of the importance of the accuracy of his statements. The trustworthiness of the confession was further reinforced by his ample opportunity to commit the crimes given that he was living in the victim’s home during the relevant period. Finally, and most significantly, the undisputed fact that the defendant fathered the victim’s child unequivocally corroborated his statement that he had engaged in vaginal intercourse with her. Thus, strong corroboration of the confession sufficiently establishes the trustworthiness of the concurrent statement regarding the number of instances that he had sexual intercourse with the victim.

In this child sexual assault case, the trial court erred by denying the defendant’s motion to dismiss charges of statutory sexual offense and indecent liberties with a child where the State failed to satisfy the corpus delecti rule. Here, the only substantive evidence was the defendant’s confession. Thus, the dispositive question is whether the confession was supported by substantial independent evidence tending to establish its trustworthiness, including facts tending to show that the defendant had the opportunity to commit the crime. In this case, the defendant had ample opportunity to commit the crimes; as the victim’s father, he often spent time alone with the victim at their home. Thus, the defendant’s opportunity corroborates the essential facts embedded in the confession. However, the confession did not corroborate any details related to the crimes likely to be known by the perpetrator. In out-of-court statements, the victim told others “Daddy put weiner in coochie.” However, the defendant denied that allegation throughout his confession. He confessed to other inappropriate sexual acts but did not confess to this specific activity. Also, the defendant’s confession did not fit within a pattern of sexual misconduct. Additionally, the confession was not corroborated by the victim’s extrajudicial statements. Although the defendant confessed to touching the victim inappropriately and watching pornography with her, he did not confess to raping her. Thus, the State failed to prove strong corroboration of essential facts and circumstances. The court noted that although the defendant spoke of watching pornography with the victim, investigators did not find pornography on his computer. The court thus determined that the State failed to satisfy the corpus delecti rule. It went on to reject the State’s argument that even without the defendant’s confession, there was sufficient evidence that the defendant was the perpetrator of the crimes.

In this case involving impaired and reckless driving, the court rejected the defendant’s argument that the State presented insufficient evidence to establish that he was driving the vehicle, in violation of the corpus delicti rule. The court found that the State presented substantial evidence to establish that the cause the car accident was criminal activity, specifically reckless or impaired driving. Among other things: three witnesses testified that immediately before the crash, the driver was speeding and driving in an unsafe manner on a curvy roadway; an officer testified that when he arrived at the scene, he detected alcohol from both occupants; and two motorists who stopped to assist saw the defendant exit the driver side of the vehicle seconds after the crash. 

(1) In a case involving two perpetrators, the trial court properly denied the defendant’s motion to dismiss a robbery charge, predicated on the corpus delicti rule. Although the defendant’s own statements constituted the only evidence that he participated in the crime, “there [wa]s no dispute that the robbery happened.” Evidence to that effect included “security footage, numerous eyewitnesses, and bullet holes and shell casings throughout the store.” The court concluded: “corpus delicti rule applies where the confession is the only evidence that the crime was committed; it does not apply where the confession is the only evidence that the defendant committed it.” The court continued, citing State v. Parker, 315 N.C. 222 (1985) for the rule that “ ‘the perpetrator of the crime’ is not an element of corpus delicti.” (2) The trial court properly denied the defendant’s motion to dismiss a conspiracy charge, also predicated on the corpus delicti rule. The court found that there was sufficient evidence corroborating the defendant’s confession. It noted that “the fact that two masked men entered the store at the same time, began shooting at employees at the same time, and then fled together in the same car, strongly indicates that the men had previously agreed to work together to commit a crime.” Also, “as part of his explanation for how he helped plan the robbery, [the defendant] provided details about the crime that had not been released to the public, further corroborating his involvement.” Finally, as noted by the Parker Court, “conspiracy is among a category of crimes for which a ‘strict application’ of the corpus delicti rule is disfavored because, by its nature, there will never be any tangible proof of the crime.”

The evidence was sufficient to sustain a juvenile’s adjudication as delinquent for driving with no operator’s license under the corpus delicti rule. The thirteen-year-old juvenile admitted that he drove the vehicle. Ample evidence, apart from this confession existed, including that the juvenile and his associates were the only people at the scene and that the vehicle was registered to the juvenile’s mother.

In an impaired driving case, there was sufficient evidence apart from the defendant’s extrajudicial confession to establish that he was driving the vehicle. When an officer arrived at the scene, the defendant was the only person in the vehicle and he was sitting in the driver's seat. 

In this capital murder case, the trial court did not err by denying the defendant’s motion to dismiss a first-degree murder charge. The defendant argued that the State failed to present sufficient evidence to establish that he was the perpetrator. The court noted that the State’s evidence tended to show that the defendant had a history of abusing the victim, that the defendant had threatened to kill the victim and to dispose of her body, that the defendant violently attacked the victim, that the defendant was the last person to see the victim alive, that the defendant had been seen in the general area in which the victim’s body had been discovered, that the defendant had attempted to clean up the location at which he assaulted the victim, that the defendant sent text messages from the victim’s phone to another person in an attempt to establish that the victim had voluntarily left the area, that the victim’s clothing and blood were found in the defendant’s vehicle, that the defendant made conflicting statements concerning the circumstances surrounding the victim’s disappearance to various people, and that the autopsy performed upon the victim’s body indicated, consistently with other evidence tending to show that blood was emanating from the victim’s nose as the defendant carried her away, that the victim had aspirated blood prior to her death. On these facts, the trial court did not err by denying the defendant’s motion to dismiss the first-degree murder charge for insufficiency of the evidence.

The court per curiam affirmed State v. Carver, 221 N.C. App. 120 (June 5, 2012), in which the court of appeals held, over a dissent, that there was sufficient evidence that the defendant perpetrated the murder. The State’s case was entirely circumstantial. Evidence showed that at the time the victim’s body was discovered, the defendant was fishing not far from the crime scene and had been there for several hours. Although the defendant repeatedly denied ever touching the victim’s vehicle, DNA found on the victim’s vehicle was, with an extremely high probability, matched to him. The court of appeals found State v. Miller, 289 N.C. 1 (1975), persuasive, which it described as holding “that the existence of physical evidence establishing a defendant’s presence at the crime scene, combined with the defendant’s statement that he was never present at the crime scene and the absence of any evidence that defendant was ever lawfully present at the crime scene, permits the inference that the defendant committed the crime and left the physical evidence during the crime’s commission.” The court of appeals rejected the defendant’s argument that the evidence was insufficient given that lack of evidence regarding motive.

The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree murder. On appeal the defendant argued that the State failed to introduce sufficient evidence with respect to an unlawful killing and the defendant’s identity as the perpetrator.

            The defendant argued that the State failed to show that the victim died by virtue of a criminal act. The court disagreed. The victim was found dead in a bathtub, with a hairdryer. Although the forensic pathologist who performed the autopsy was unable to determine a cause of death, he testified that he found red dots similar to bruising inside of the victim’s eyelids, causing him to believe that there was some type of pressure around her upper chest or neck and head area. He also found a large bruise on her right side that was less than 18 hours old, and an abrasion on her right thigh. A witness testified that the victim had no bruises the night before her death. Additionally, the pathologist found a hemorrhage on the inside of the victim’s scalp. The pathologist testified that her toxicology report was negative for alcohol and drugs and he ruled out drowning as a cause of death. He also found no evidence to support a finding that the victim died of electrocution. Taken in the light most favorable to the State, the evidence was sufficient to establish that the cause of death was a criminal act.

            The evidence was also sufficient to establish that the defendant was the perpetrator. The State presented substantial evidence of a tumultuous relationship between the defendant and the victim, colored by the defendant’s financial troubles, and that animosity existed between the two. The victim explicitly told a friend that she did not want to marry the defendant because of financial issues. The day before her death, the victim sent the defendant a text message, stating “You have until Tuesday at 8:00 as I’m leaving to go out of town Wednesday or Thursday. And my locks will be changed. So do my [sic] act stupid. Thanks.” She then sent an additional text stating, “I will also be [sic] send a request not to stop child support FYI.” The defendant’s financial difficulties, coupled with his tempestuous relationship with the victim and her threat to end the relationship and remove the defendant from her home are sufficient for a reasonable juror to conclude that the defendant had a motive to kill the victim. Additionally, the State presented evidence of opportunity. Specifically, evidence that the defendant was in the home between when the victim returned the night before and when her body was found the next day. Additionally, the evidence supported a conclusion that the victim was suffocated, and evidence connected the defendant to the method of killing. A white feather pillow was found behind a mattress in the room where the defendant stayed. Also in that room was an unopened pack of white socks. White feathers were found on the floor in the bedroom, in a trash bin outside the home, and in the bathroom where the victim’s body was found. A pair of wet white socks was found in the trashcan in the kitchen, with a feather on them. This evidence would allow a reasonable juror to conclude that the defendant had the means of suffocating the victim with the feather pillow found in his room and that he was connected to the means of the killing.

The trial court did not err by denying the defendant’s motion to dismiss a charge of first-degree rape. Because the victim could not remember the incident, she was unable to testify that she had been raped or that the defendant was the perpetrator. The evidence showed that while out with friends one night, the victim met the defendant. Later that evening, two strangers, John and Jean, responded to a woman screaming for help. They found a man straddling the victim. After throwing the man off, John saw him pull up his pants over an erection. The man ran, chased by John and another person. Jean stayed with the victim, who was on the ground with her pants and underwear pulled to her ankles. An officer saw the chase and detained the defendant, whose pants were undone. John and Jean participated in a show up identification of the defendant shortly thereafter; both identified the defendant as the perpetrator. The victim was taken to the emergency room where a nurse found debris and a small black hair consistent with a pubic hair inside the victim’s vagina. The nurse testified in part that debris cannot enter the vagina unless something had opened the vagina; thus the debris could not have entered merely because she was on the ground. The defendant unsuccessfully moved to dismiss, was convicted and appealed. On appeal the defendant argued that the State failed to produce sufficient evidence that penetration occurred and that he was the perpetrator. The court disagreed, succinctly concluding that a reasonable juror could have inferred that the victim was vaginally penetrated against her will and that the defendant was the perpetrator.

Sufficient evidence supported the defendant’s armed robbery conviction where two eyewitnesses identified the defendant and an accomplice. The court was unpersuaded by the defendant’s citation of articles and cases from other states discussing the weaknesses of eyewitness identification, noting that such arguments have no bearing on the sufficiency of the evidence when considering a motion to dismiss. It continued: “If relevant at all, these arguments would go only to the credibility of an eyewitness identification.”

There was sufficient evidence that the defendant perpetrated the murder. The defendant’s cell phone was found next to the victim, cell phone records showed that the phone was within one mile of the murder scene around the time of the murder, the defendant gave inconsistent statements about his whereabouts, and a witness testified that the defendant stated, “I must have dropped [my phone] after I killed him.”

In a first-degree murder case, the trial court did not err by denying the defendant’s motion to dismiss on grounds of insufficiency of the evidence where the State produced evidence of motive, opportunity, and means as well as admissions by the defendant.

The State presented sufficient evidence that the defendant perpetrated a breaking and entering. The resident saw the defendant break into her home, the getaway vehicle was registered to the defendant, the resident knew the defendant from prior interactions, a gun was taken from the home, and the defendant knew that the resident possessed the gun. 

In a robbery case, the trial court did not err by denying the defendant’s motion to dismiss where there was substantial evidence that the defendant was the perpetrator. The victim, who knew the defendant well, identified the defendant’s voice as that of his assailant; identified his assailant as a black man with a lazy eye, two characteristics consistent with the defendant’s appearance; consistently identified the defendant as his assailant; and had a high level of certainty with regard to this identification.

In a case involving felonious breaking or entering, larceny, and possession of stolen goods, the State presented sufficient evidence identifying the defendant as the perpetrator. The evidence showed that although the defendant did not know the victim, she found his truck in her driveway with the engine running; the victim observed a man matching the defendant’s description holding electronic equipment subsequently determined to have been stolen; the man dropped the electronic equipment and jumped over a fence; a police dog tracked the man’s scent through muddy terrain and lost the trail near Thermal Road; a canine officer observed fresh slide marks in the mud; the defendant was found on Thermal Road with muddy pants and shoes and in possession of a Leatherman tool, which could have been used to open the door of the residence; the defendant had approximately $30.00 in loose change, which could have been taken from the residence; and when police apprehended an accomplice, the defendant’s roommate and known associate, he had the victim’s electronic device in his possession.

The defendant was arrested for impaired driving. Because of his extreme intoxication, he was taken to a hospital for medical treatment. The defendant was belligerent and combative at the hospital, and was medicated in an effort to calm his behavior. After the defendant was medically subdued, a nurse withdrew his blood. She withdrew some blood for medical purposes and additional blood for law enforcement use. No warrant had been issued authorizing the blood draw. The defendant moved to suppress evidence resulting from the warrantless blood draw on constitutional grounds. The trial court granted the motion, suppressing evidence of the blood provided to law enforcement and the subsequent analysis of that blood. The State appealed from that interlocutory order, certifying that the evidence was essential to the prosecution of its case. The North Carolina Supreme Court, in State v. Romano, 369 N.C. 678 (2017), affirmed the trial court’s ruling suppressing the State’s blood analysis, and remanded the case for additional proceedings. 

While the case was pending before the state supreme court, the State filed a motion for disclosure of the defendant’s medical records on the date of his arrest, which included records of the hospital’s analysis of his blood. The motion was granted, and the medical records were disclosed.

After the case was remanded, the State proceeded to try the defendant on charges of habitual impaired driving and driving while license revoked for impaired driving. The defendant moved to dismiss the charges and to suppress the evidence of his medical records. The trial court denied the motions, and the defendant was convicted.

The defendant argued on appeal that the trial court erred by denying his motion to dismiss. Noting that the State appealed the order suppressing evidence from the warrantless blood draw on the basis that the State’s analysis of his blood was essential to its case, the defendant argued that the State should not have been permitted to try the case against him on remand because that evidence was ordered suppressed. The court rejected the defendant’s argument, stating that the supreme court’s decision simply upheld the suppression of the evidence. It did not preclude the State from proceeding to trial without the suppressed evidence on remand. Thus, the court of appeals concluded that the trial court did not err in denying defendant’s motion to dismiss.

In an impaired driving case, evidence that the defendant’s BAC was .09 was sufficient to survive a motion to dismiss, notwithstanding evidence that the machine may have had a margin of error of .02. The court concluded: “Defendant’s argument goes to the credibility of the State’s evidence, not its sufficiency to withstand defendant’s motion to dismiss. Such an argument is more appropriately made to the jury at trial, and not to an appellate court.”

In this indecent liberties case, the defendant waived any right of appellate review with respect to his arguments challenging admission of his inculpatory statements (he had asserted a Miranda violation and that the statements were involuntary). The defendant has the burden of establishing that a motion to suppress is made both timely and in proper form. Here, the defendant failed to meet that burden and thus waved appellate review of these issues. The court continued, however, holding that the record was insufficient to consider the defendant’s related ineffective assistance of counsel claim, and dismissed that claim without prejudice to the defendant’s right to file a motion for appropriate relief in superior court.

The defendant’s motion to suppress his statement made during a police interview was untimely. The motion was not made until trial and there was no argument that the State failed to disclose evidence of the interview or statement in a timely manner.

On appeal from a divided panel of the Court of Appeals, State v. Parisi, ___ N.C. App. ___, 817 S.E.2d 228 (2018) (discussed in an earlier blog post by Shea Denning, https://nccriminallaw.sog.unc.edu/got-probable-cause-for-impaired-driving/), the Supreme Court held that the trial court erred by granting the defendant’s motion to suppress in this impaired driving case. The Supreme Court considered whether the trial courts’ findings—which are conclusive on appeal if supported by competent evidence—supported the ultimate conclusions of law. Here, where the trial court made findings that the defendant admitted to consuming three beers, that defendant’s eyes were red and glassy, that a moderate odor of alcohol emanated from defendant’s person, and that the defendant exhibited multiple indicia of impairment while performing various sobriety tests, the Supreme Court had “no hesitation” in concluding that those facts sufficed, as a matter of law, to support the officer’s decision to arrest the defendant for impaired driving.

Modifying and affirming State v. Salinas, 214 N.C. App.408 (Aug. 16, 2011) (trial court incorrectly applied a probable cause standard instead of a reasonable suspicion standard to a vehicle stop), the court held that the trial court may not rely on allegations contained in a defendant’s G.S. 15A-977(a) affidavit when making findings of fact in connection with a motion to suppress.

In this Johnston County case, defendant appealed his convictions for possessing methamphetamine, possessing drug paraphernalia, resisting a public officer, and carrying a concealed weapon, arguing error in denying his motion to suppress because the order contained erroneous findings of fact and conclusions of law. The Court of Appeals disagreed, finding no plain error. 

In August of 2018, sheriff’s deputies responded to a mobile home park after a service call about drug activity. When they arrived, they observed defendant sitting in the passenger seat of a silver car that was parked next to a black car. After an exchange where one passenger of the vehicle informed a deputy that he was “making a blunt,” and they observed marijuana, the deputies began questioning others in the vehicle. Slip Op. at 3. When defendant refused to take his hands out from under his legs or show his hands, a deputy assisted him out of the vehicle. Although at one point defendant fled the scene, he was eventually detained and placed in a deputy’s vehicle. After securing defendant, the deputies searched the area and the silver car, finding methamphetamine, marijuana, and drug paraphernalia. In February 2020, defendant’s motion to suppress was denied, and he was subsequently convicted in March of 2021. In May of 2022, defendant’s first petition for writ of certiorari was granted and the Court of Appeals found that the trial court’s order lacked sufficient conclusions of law. On remand, the trial court issued an amended order with additional conclusions of law in August 2022, again denying defendant’s motion to suppress. This amended order gave rise to the current opinion. 

Taking up the order, the Court of Appeals first pointed out that the standard of review was plain error, as “Defendant filed a motion to suppress the challenged evidence, but at trial, Defendant failed to object to the admission of the evidence.” Id. at 7. The first remand by the court “did not negate the fact that Defendant failed to preserve the issues raised in his motion to suppress at trial.” Id. at 8. The court then analyzed the challenged findings of fact and conclusions of law to determine if they represented a violation of defendant’s Fourth Amendment rights. The court determined that finding of fact 7 was erroneous, as it referenced a black car being involved in the initial tip but testimony only mentioned a silver car. However, this error did not rise to a Fourth Amendment violation because “the evidence found in the silver vehicle was properly admitted.” Id. at 11.  

Moving to the challenged conclusions of law, numbers 10 and 11, the court noted that these involved the lack of a seizure during the encounter and that the encounter did not trigger Fourth Amendment scrutiny. The court walked through the constitutional analysis applicable to the encounter between the deputies and defendant, concluding that conclusion of law 10 was not error as the encounter between the deputies and defendant was initially consensual, and defendant and the other occupants of the car were not seized. However, the court noted that conclusion of law 11 was erroneous, as “[c]ontrary to the trial court’s conclusion, ‘Fourth Amendment scrutiny’ was ‘triggered’ when [a deputy] assisted Defendant out of the vehicle because no reasonable person would have felt free to leave at that point.” Id. at 14. However, although the conclusion of law was erroneous, “it was not plain error because the deputies did not violate Defendant’s Fourth Amendment rights.” Id. at 14-15. Because the evidence was “properly admitted,” it did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings,” and the trial court appropriately denied the motion. Id. at 15. 

The defendant was stopped in Cleveland County for driving left of center and driving without an active license. The officer recognized the defendant and knew her to be involved in drugs. While running license and warrants checks, the officer asked to search the car. The defendant refused. According to the officer, a drug dog was called, but before it could arrive, the defendant admitted to possessing drugs. According to the defendant, the officer searched her car without consent, found drugs, removed them from the car, and then put them back inside the car for canine training purposes. When the canine arrived, it alerted on the car, leading to the discovery of methamphetamine, marijuana, and paraphernalia, and the defendant was charged accordingly. She moved to suppress, and the trial court denied the motion.

The findings of fact in the denial order reflected that the defendant did not consent, but the conclusions of law upholding the search were based on the defendant’s consent. The order also failed to resolve the factual dispute regarding when the drugs were actually seized in relation to when the canine sniff occurred. These issues required that the order be vacated, and the matter remanded for new findings. In the court’s words:

Because the findings of fact are not sufficient to allow proper appellate review, we must remand for further findings of fact, particularly regarding whether and when defendant consented to a search and the timing of the search and seizure in relation to the consent and the call for, arrival, and sniff of the canine officer.” Heath Slip op. at 8-9.

The defendant was charged with impaired driving, was convicted in district court, appealed to superior court, and prevailed on a motion to suppress at a pretrial hearing in superior court. The State appealed. (1) The Court of Appeals rejected the State’s argument that the superior court judge lacked jurisdiction to enter a written order after the State gave oral notice of appeal at the conclusion of the hearing at which the judge granted the motion to suppress. At the hearing, the trial judge stated that the State could not establish a nexus between the person the officer saw driving and the defendant who later walked up to the officer. The Court found that the judge’s written order was a chronicle of the findings and conclusions he decided at the motion hearing and was not a new order affecting the merits of the case. (2) The Court rejected the State’s argument that certain findings of fact were not supported by the evidence. In regard to the green pickup truck that the defendant was allegedly driving, the trial judge found that the arresting officer testified that he did not see the truck park or anyone get in or out of the truck. The State asserted that the officer testified that he observed a video at the mini-mart where the truck was parked showing the defendant getting out of the truck. The Court found that the officer testified that the video was lost because he left the flash drive containing the video in his patrol car when he took the car to a mechanic. The Court held that the trial judge determines the credibility of witnesses, the weight to be given to testimony, and reasonable inferences. “The trial court was free to give no weight to [the officer’s] testimony regarding viewing the Mini-mart video.” (3) The Court rejected the State’s argument that probable cause existed to arrest the defendant for impaired driving. The Court found that the trial judge’s findings supported his conclusion that the State failed to show that the defendant was driving and, although the truck was registered to the defendant, failed to establish a connection between the driver of the truck and the defendant.

Officers obtained a search warrant to search the defendant’s house. They executed the warrant, found drugs, and charged the defendant with drug offenses. The defendant moved to suppress, arguing that the warrant contained material misrepresentations and did not provide probable cause to support the issuance of the warrant. A superior court judge denied the motion, and the defendant was convicted and appealed. The court of appeals reversed. (1) The trial judge did not set forth adequate conclusions of law. Although formal findings of fact are not required when the evidence regarding a motion to suppress is not in conflict, a judge must still provide conclusions of law, i.e., must explain the reason for the judge’s ruling. In this case, the defendant made multiple challenges to the warrant and the trial judge merely denied the motion without further explanation. (2) The warrant was not supported by probable cause. The application was based on information from a confidential and reliable informant. The informant claimed to have purchased drugs from the defendant in the past, but reported that the defendant had become more cautious recently and now would sell drugs only through a specific middleman. The informant reported that she had recently picked up the middleman, dropped the middleman off in “the general area of defendant’s home” and picked him up shortly thereafter in possession of drugs. The court of appeals concluded that this did not provide probable cause as the middleman was of unknown reliability and no one had observed him entering the defendant’s home. A dissenting judge would have found that the informant’s history of purchasing drugs from the defendant, plus what amounted to an imperfectly controlled purchase by the middleman, provided probable cause.

Because the trial court failed to provide its rationale for denying the defendant’s motions to suppress, the court found itself unable to engage in meaningful review with respect to the trial court’s denial of the motions and thus remanded. Although the trial court is only required to make findings of fact when there is a material conflict in the evidence, the trial court must make conclusions of law. Here, the trial court did not provide its rationale during the hearing and its order lacked adequate conclusions of law applying necessary principles to the facts presented. 

On the State’s appeal from a trial court order granting the defendant’s motion to suppress, the court vacated and remanded for new findings of fact and if necessary, a new suppression hearing. After being shot by police, the defendant was taken to the hospital and given pain medication. He then waived his Miranda rights and made a statement to the police. He sought to suppress that statement, arguing that his Miranda waiver and statement were involuntarily. The court began by rejecting the State’s claim that the trial court erred by considering hearsay evidence in connection with the suppression motion and by relying on such evidence in making its findings of fact. The court noted that the trial court had “great discretion” to consider any relevant evidence at the suppression hearing. However, the court agreed with the State’s argument that the trial court erred by failing to resolve evidentiary issues before making its findings of fact. It explained:

[T]he trial court suppressed Defendant’s statements on the grounds Defendant was “in custody, in severe pain, and under the influence of a sufficiently large dosage of a strong narcotic medication[;]” however, the trial court failed to make any specific findings as to Defendant’s mental condition, understanding, or coherence—relevant considerations in a voluntariness analysis—at the time his Miranda rights were waived and his statements were made. The trial court found only that Defendant was in severe pain and under the influence of several narcotic pain medications. These factors are not all the trial court should consider in determining whether his waiver of rights and statements were made voluntarily.

Furthermore, although the defendant moved to suppress on grounds that police officers allegedly coerced his Miranda waiver and statements by withholding pain medication, the trial court failed to resolve the material conflict in evidence regarding whether police coercion occurred.

Although the trial court made findings of fact in its order denying the defendant’s suppression motion, it erred by failing to make conclusions of law. The court remanded for appropriate conclusions of law.

A trial court’s order denying a motion to suppress is not invalid merely because the trial court did not make its findings immediately after the suppression hearing where the trial court later made the required findings. 

The trial court was not required to make written finding of fact supporting its denial of a suppression motion where the trial court provided its rationale from the bench and there were not material conflicts in the evidence.

Although there was no material conflict in the evidence as to whether the defendant was impaired when he made a statement, the court held, over a dissent, that there was a material conflict as to whether he was in custody and that the trial court erred by failing to make the necessary findings of fact on that issue. Because the defendant’s testimony did not meet the standard for rendering his statement involuntary, any conflict in the evidence on this issue was not material. As to custody, the officer’s testimony suggested the defendant was not in custody. However the defendant’s testimony if believed would support a contrary conclusion; therefore there was a material conflict on this issue.

The trial court erred by failing to make findings of fact and conclusions of law in connection with its denial of the defendant’s motion to suppress. When a trial court’s failure to make findings of fact and conclusions of law is assigned as error, the trial court’s ruling on a motion to suppress is fully reviewable for a determination as to whether (1) the trial court provided the rationale for its ruling from the bench; and (2) there was a material conflict in the evidence presented at the suppression hearing. If a reviewing court concludes that both criteria are met, then the findings of fact are implied by the trial court’s denial of the motion to suppress and will be binding on appeal, if supported by competent evidence. If a reviewing court concludes that either of the criteria is not met, then a trial court’s failure to make findings of fact and conclusions of law is reversible error. A material conflict in the evidence exists when evidence presented by one party controverts evidence presented by an opposing party such that the outcome of the matter is likely to be affected. Turning to the case at hand, the court held that the defendant had presented evidence that controverts the State’s evidence as to whether a seizure occurred. Because there was a material conflict in the evidence, the trial court’s failure to make findings of fact and conclusions of law is fatal to the validity of its ruling. The court reversed and remanded for findings of fact and conclusions of law. The court noted that even when there is no material conflict in the evidence, the better practice is for the trial court to make findings of fact.

In this indecent liberties case, the defendant waived any right of appellate review with respect to his arguments challenging admission of his inculpatory statements (he had asserted a Miranda violation and that the statements were involuntary). The defendant has the burden of establishing that a motion to suppress is made both timely and in proper form. Here, the defendant failed to meet that burden and thus waved appellate review of these issues. The court continued, however, holding that the record was insufficient to consider the defendant’s related ineffective assistance of counsel claim, and dismissed that claim without prejudice to the defendant’s right to file a motion for appropriate relief in superior court.

The court reversed State v. Oates, 215 N.C. App. 491 (Sept. 6, 2011), and held that the State’s notice of appeal of a trial court ruling on a suppression motion was timely. The State’s notice of appeal was filed seven days after the trial judge in open court orally granted the defendant’s pretrial motion to suppress but three months before the trial judge issued his corresponding written order of suppression. The court held that the window for filing a written notice of appeal in a criminal case opens on the date of rendition of the judgment or order and closes fourteen days after entry of the judgment or order. The court clarified that rendering a judgment or an order means to pronounce, state, declare, or announce the judgment or order and is “the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy.” Entering a judgment or an order is “a ministerial act which consists in spreading it upon the record.” It continued:

For the purposes of entering notice of appeal in a criminal case . . . a judgment or an order is rendered when the judge decides the issue before him or her and advises the necessary individuals of the decision; a judgment or an order is entered under that Rule when the clerk of court records or files the judge’s decision regarding the judgment or order.