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., 09/18/2021
E.g., 09/18/2021

In this Cleveland County case, the defendant was charged with multiple drug crimes and with being a habitual felon. On the day of trial, the defendant made a motion to continue, telling the court that he did not have time to go over the case with his lawyer. After a discussion with the defendant’s lawyer, the trial judge denied the motion to continue. The defendant was convicted of the drug crimes and then pled guilty to having attained habitual felon status. (1) On appeal, the defendant argued that he was deprived of effective assistance of counsel when his appointed attorney made him argue pro se for a continuance and failed to advocate on his behalf. Noting inconsistencies in the appellate record regarding the extent and timing of the defendant’s contact with his lawyer, the Court of Appeals dismissed the claim without prejudice to allow the defendant to raise the argument in the trial court through a motion for appropriate relief.

(2) The defendant also argued on appeal that the trial court erred by denying his motion to continue. The Court of Appeals disagreed, noting that defense counsel had over a month to prepare for a case that the court did not deem complicated—a controlled drug buy captured on video and audio recording. In the absence of any evidence of prejudice (and with no prejudice presumed due to the lack of complexity in the case), the appellate court concluded that the trial court did not err.

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.

In this felony murder  and armed robbery case, the trial court did not err by denying the defendant’s motion for a continuance to allow time to review evidence the State intended to introduce to rebut the defendant’s expert testimony that he acted with diminished capacity, or in the alternative to not allow the State to introduce that rebuttal evidence.  The defendant made this motion on the first day of trial, one day after being informed of the state’s intent to use the rebuttal evidence, which consisted of jailhouse call recordings made around the time that he first met with his expert and which the State contended showed that he did not display signs of diminished capacity. 

The defendant was sentenced to life imprisonment for felony murder based on the jury’s finding that his killing of a store clerk was associated with the defendant’s commission of the felony of assault with a firearm on a law enforcement officer as the defendant left the scene of the crime.  Citing precedent establishing that diminished capacity is not a defense to a felony murder conviction based on that underlying general intent felony, the court found that any error by the trial court in denying the continuance was non-prejudicial as the expert testimony was not relevant to that conviction.

The jury also convicted the defendant of armed robbery and the trial court sentenced him to a term of imprisonment to run consecutively to his life sentence for felony murder.  Because armed robbery is a specific intent crime, the expert testimony on diminished capacity was relevant to the armed robbery conviction.  The State’s jailhouse recording rebuttal evidence went to the issue of the defendant’s mental ability around the time he met with his expert and generally showed that he was capable of making plans and adding up money.  Reviewing whether the denial of the motion deprived the defendant of his constitutional right to present a defense, the court noted that defense counsel knew of the existence of the recordings for “quite a while” before trial but did not request them and, largely because the recordings did not contradict the expert’s testimony, determined that the defendant was not prejudiced by the denial of his motion for a continuance.

Judge Stroud dissented, expressing the view that the trial court’s denial of the continuance erroneously denied the defendant his right to effective assistance of counsel because of defense counsel’s inability due to time constraints to review the jailhouse call recordings or prepare for their use at trial.  In Judge Stroud’s view, because the trial court’s error amounted to a violation of the defendant’s constitutional rights, it was presumptively prejudicial unless the State showed it was harmless beyond a reasonable doubt, a burden that the State did not meet.

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.

(1) The trial court did not abuse its discretion by denying the defendant’s motion to continue. The court rejected the defendant’s argument that the trial court’s denial of his motion to continue constituted an improper overruling or reversal of an earlier order or ruling by another judge. Specifically, the defendant asserted that a statement by the judge who presided over a pretrial hearing constituted a ruling or decision which could not be modified by another judge. The court rejected this argument, finding that the preliminary and informal remark made by the pretrial judge did not constitute an order or ruling continuing the case. (2) With respect to the defendant’s argument that the denial of his motion to continue denied him his constitutional right to effective assistance of counsel, the court declined to presume prejudice in this case. And it found that the defendant had not articulated any argument related to the circumstances of the case to explain why defense counsel did not have a sufficient time to prepare for trial. 

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 this drug and drug conspiracy case, the trial court did not abuse its discretion by denying the defendant’s request for additional time to locate an alleged co-conspirator and his motion to reopen the evidence so that witness could testify when he was located after the jury reached a verdict. The trial court acted within its authority given that the witness had not been subpoenaed (and thus was not required to be present) and his attorney indicated that he would not testify.

State v. Blow, 237 N.C. App. 158 (Nov. 4, 2014) rev’d on other grounds, 368 N.C. 348 (Sep 25 2015)

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 an attempted armed robbery case where the defendant was alleged to have acted with others, the trial court did not abuse its discretion by denying the defendant’s motion to continue, made shortly before trial and after a 24-hour continuance already had been granted to the defense. The defendant argued that the continuance was needed because of the late receipt of an accomplice’s statement indicating that another accomplice had the gun during incident. The trial court denied the motion, reasoning that the statement was duplicative, did not introduce any new actors or witnesses, and did not significantly change the State’s case against the defendant. The trial court explained that legally it did not matter who possessed the gun; if one of the perpetrators possessed a gun, all perpetrators were guilty to the same extent. Additionally, the trial court noted that it already had granted a defense motion to continue. The court of appeals agreed that the statement did not significantly change the case to the defendant’s prejudice so as to require additional time to prepare 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.

The trial court did not abuse its discretion by denying defense counsel’s motion to withdraw or in the alternative for a continuance. In the four months prior to trial, the defendant failed to provide counsel with the names of potential defense witnesses. However, no justification was provided for the defendant’s failure and counsel did not express any certainty that information about potential witnesses would be forthcoming. Nor did counsel’s conclusory assertion that he could not prepare for trial because of communication problems with the defendant support the motion, particularly where the record indicated that the defendant was responsible for those difficulties.

State v. King, 227 N.C. App. 390 (May. 21, 2013)

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 err by denying the defendant’s motion to continue trial so that he could locate two alibi witnesses. Both alibi witnesses were served months prior and the trial had already been continued for this purpose.

The trial court’s denial of a motion to continue in a murder case did not violate the defendant’s right to due process and effective assistance of counsel. The defendant asserted that he did not realize that certain items of physical evidence were shell casings found in defendant’s room until the eve of trial and thus was unable to procure independent testing of the casings and the murder weapon. Even though the relevant forensic report was delivered to the defendant in 2008, the defendant did not file additional discovery requests until February 3, 2009, followed by Brady and Kyles motions on February 11, 2009. The trial court afforded the defendant an opportunity to have a forensic examination done during trial but the defendant declined to do so. The defendant was not entitled to a presumption of prejudice on grounds that denial of the motion created made it so that no lawyer could provide effective assistance. The defendant’s argument that had he been given additional time, an independent examination might have shown that the casings were not fired by the murder weapon was insufficient to establish the requisite prejudice. 

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.

State v. Flint, 199 N.C. App. 709 (Sept. 15, 2009)

The trial court did not abuse its discretion in denying a motion to continue asserting that the State provided discovery at a late date. The defendant failed to show that additional time was necessary for the preparation of a defense.

State v. Cox, 367 N.C. 147 (Nov. 8, 2013)

The court reversed the decision below, State v. Cox, 222 N.C. App. 192 (2012), which had found insufficient evidence to support a conviction of felon in possession of a firearm under the corpus delicti rule. The defendant confessed to possession of a firearm recovered by officers ten to twelve feet from a car in which he was a passenger. The Supreme Court held that under the “Parker rule” the confession was supported by substantial independent evidence tending to establish its trustworthiness and that therefore the corpus delicti rule was satisfied. The court noted that after a Chevrolet Impala attempted to avoid a DWI checkpoint by pulling into a residential driveway, the driver fled on foot as a patrol car approached. The officer observed that the defendant was one of three remaining passengers in the car. Officers later found the firearm in question within ten to twelve feet of the driver’s open door. Even though the night was cool and the grass was wet, the firearm was dry and warm, indicating that it came from inside the car. The court determined that these facts strongly corroborated essential facts and circumstances embraced in the defendant’s confession and linked the defendant temporally and spatially to the firearm. The court went on to note that the defendant made no claim that his confession was obtained by deception or coercion, or was a result of physical or mental infirmity. It continued, concluding that the trustworthiness of the confession was “further bolstered by the evidence that defendant made a voluntary decision to confess.” 

State v. Sweat, 366 N.C. 79 (June 14, 2012)

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.

State v. Smith, 362 N.C. 583 (Dec. 12, 2008)

Under the corpus delecti rule, there was insufficient evidence independent of the defendant’s extrajudicial confession to sustain a conviction for first-degree sexual offense; however, there was sufficient evidence to support an indecent liberties conviction. Note: under the rule, the state may not rely solely on the extrajudicial confession of a defendant, but must produce substantial independent corroborative evidence that supports the facts underlying the confession.

The defendant in this case previously appealed his convictions for possession of a firearm by a felon, trafficking in heroin, PWISD cocaine, and attaining habitual felon status. The Court of Appeals found no error in State v. Wynn, 264 N.C. App. 250 (2019) (unpublished) (“Wynn I”).

The state Supreme Court granted a petition for discretionary review and remanded to the Court of Appeals for the limited purpose of reconsideration in light of State v. Golder, 347 N.C. 238 (2020) (holding that a motion to dismiss made “at the proper time preserved all issues related to the sufficiency of the evidence for appellate review”). Applying Golder to the case at hand, the appellate court reconsidered defendant’s argument challenging the sufficiency of the evidence at trial, which the court in Wynn I had ruled was not preserved at the trial level. The court began by rejecting the state’s argument that Golder was inapplicable because defense counsel in this case moved for a directed verdict, rather than making a motion to dismiss; the court held that in criminal cases the terms are used interchangeably and are reviewed in the same manner.

Turning to the substantive offenses, the court held that the motion to dismiss the charge of possession of a firearm by a felon should have been granted. No firearm was found in this case; the state’s primary evidence for possession of a firearm was the defendant’s statement to the officers that he had one before they arrived but he had dropped it. Applying the corpus delicti principle, the court held that a confession alone cannot support a conviction unless there is substantial independent evidence to establish the trustworthiness of the confession, including facts which strongly corroborate the essential facts and circumstances in the confession. In this case, the police found a 9mm magazine in a home the defendant had broken into, and also found 9mm shell casings and bullet holes in the defendant’s own home; however, the court pointed out that a magazine is not a firearm, and it was unknown who caused the bullet holes or when. Without some additional evidence (such as recovering the firearm, testimony from a witness who saw a firearm or heard gunshots, or evidence of injury to a person or property), the court concluded that there was insufficient corroboration of the confession and vacated the conviction.

On his convictions for trafficking heroin and PWISD cocaine, the defendant challenged the sufficiency of the evidence that he possessed the drugs, but the appellate court held that there was sufficient evidence to establish constructive possession. The drugs were found inside a house where the defendant was seen actively moving from room to room, indicating that had dominion over the space, and the drugs were packaged in red plastic baggies that the defendant was known to use for selling drugs. When the defendant exited the house he also had over $2,000 in cash on him and a white powdery substance in and on his nose. Taken together, these facts presented sufficient evidence to withstand a motion to dismiss regarding the defendant’s constructive possession of the controlled substances, and the convictions were affirmed. 

Finally, the court declined to revisit its earlier ruling on defendant’s argument concerning the admissibility of evidence under Rule 403 and 404, since the case was only remanded for reconsideration in light of Golder. “As such, the Supreme Court left, and we shall too, leave intact our prior analysis, regarding defendant’s second argument of evidence of other wrongs.”

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 case, involving habitual impaired driving, driving while license revoked, and reckless driving, the corpus delicti rule was satisfied. The defendant argued that no independent evidence corroborated his admission to a trooper that he was the driver of the vehicle. The court disagreed, noting, in part, that the wrecked vehicle was found nose down in a ditch; one shoe was found in the driver’s side of the vehicle, and the defendant was wearing the matching shoe; no one else was in the area at the time of the accident other than the defendant, who appeared to be appreciably impaired; the defendant had an injury consistent with having been in a wreck; and the wreck of the vehicle could not otherwise be explained. Also the State’s toxicology expert testified that the defendant’s blood sample had a blood ethanol concentration of 0.33.

State v. Blankenship, ___ N.C. App. ___, 814 S.E.2d 901 (Apr. 17, 2018) temp. stay granted, ___ N.C. ___, 812 S.E.2d 666 (May 3 2018)

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 possession of methamphetamine case, the court rejected the defendant’s argument that her admission to an officer that she possessed “meth” in her bra was insufficient to establish the nature of the controlled substance under the corpus delicti rule. The defendant’s out-of-court statement to the officer was corroborated by the physical object of the crime. Specifically, law enforcement found a crystal-like substance in the defendant’s bra. Additionally, an investigation revealed that the individual from whom the defendant admitted purchasing the substance had been under surveillance for drug-related activity.

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. 

The trial court did not err by denying the defendant’s motion to dismiss a charge of armed robbery asserting that the State failed to establish the corpus delicti of the crime. Specifically, the defendant argued that the State relied solely on his uncorroborated confession, which, under the corpus delicti rule, was insufficient to establish guilt. Rejecting the defendant’s argument, the court also rejected the notion that the corpus delicti rule requires non-confessional evidence of every element of a crime. Citing prior case law, it concluded that the State need only show corroborative evidence tending to establish the reliability of the confession. Here, the State presented evidence that aligned with the defendant’s confession, including, among other things, the medical examiner’s determination as to cause of death; the recovery of a firearm at the scene; and DNA evidence. 

(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.”

Where the State failed to produce substantial, independent corroborative evidence to support the facts underlying the defendant’s extrajudicial statement in violation of the corpus delicti rule, the trial court erred by denying the defendant’s motion to dismiss charges of participating in the prostitution of a minor. 

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.

State v. Foye, 220 N.C. App. 37 (Apr. 17, 2012)

In an impaired driving and driving while license revoked case there was sufficient evidence other than the defendant’s extrajudicial confession to establish that the defendant was driving the vehicle. Among other things, the vehicle was registered to the defendant and the defendant was found walking on a road near the scene, he had injuries suggesting that he was driving, and he admitting being impaired.

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. 

Applying the corpus delicti rule (State may not rely solely on the extrajudicial confession of a defendant, but must produce substantial independent corroborative evidence) the court held that the State produced substantial independent corroborative evidence to show that a robbery and rape occurred. As to the robbery, aspects of the defendant’s confession were corroborated with physical evidence found at the scene (weapons, etc.) and by the medical examiner’s opinion testimony (regarding cause of death and strangulation). As to the rape, the victim’s body was partially nude, an autopsy revealed injury to her vagina, rape kit samples showed spermatozoa, and a forensic analysis showed that defendant could not be excluded as a contributor of the weaker DNA profile.

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.

State v. Miles, 366 N.C. 503 (Apr. 12, 2013)

The court per curiam affirmed the decision below, State v. Miles, 222 N.C. App. 593 (Aug. 21, 2012), a murder case in which the court of appeals held, over a dissent, that the trial court did not err by denying the defendant’s motion to dismiss. The court of appeals held that there was sufficient evidence that the defendant was the perpetrator of the offense and that the defendant possessed the motive, means, and opportunity to murder the victim. The victim owed the defendant approximately $40,000. The defendant persistently contacted the victim demanding his money; in the month immediately before the murder, he called the victim at least 94 times. A witness testified that the defendant, his business, and his family were experiencing financial troubles, thus creating a financial motive for the crime. On the morning of the murder the defendant left the victim an angry voicemail stating that he was going to retain a lawyer, but not to collect his money, and threatening that he would ultimately get “a hold of” the victim; a rational juror could reasonably infer from this that the defendant intentionally threatened the victim’s life. Another witness testified that on the day of the murder, the defendant confided that if he did not get his money soon, he would kill the victim, and that he was going to the victim to either collect his money or kill the victim; this was evidence of the defendant’s motive and intention to murder the victim. The victim’s wife and neighbor saw the defendant at the victim’s house on two separate occasions in the month prior to the crime. On the day of the murder, the victim’s wife and daughter observed a vehicle similar one owned by the defendant’s wife at their home. The defendant’s phone records pinpointed his location in the vicinity of the crime scene at the relevant time. Finally, the defendant’s false alibi was contradicted by evidence putting him at the crime scene.

State v. Carver, 366 N.C. 372 (Jan. 25, 2013)

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.

State v. Pastuer, 365 N.C. 287 (Oct. 7, 2011)

An equally divided court left undisturbed the court of appeals’ decision in State v. Pastuer, 205 N.C. App. 566 (July 20, 2010) (holding that the trial court erred by denying the defendant’s motion to dismiss a charge alleging that he murdered his wife; the State’s case was based entirely on circumstantial evidence; the court held that although the State may have introduced sufficient evidence of motive, evidence of the defendant’s opportunity and ability to commit the crime was insufficient to show that he was the perpetrator; according to the court, no evidence put the defendant at the scene; although a trail of footprints bearing the victim’s blood was found at her home and her blood was found on the bottom of one of the defendant’s shoes, the court concluded that the State failed to present substantial evidence that the victim’s DNA could only have gotten on the defendant’s shoe at the time of the murder; evidence that the defendant was seen walking down a highway sometime around the victim’s disappearance and that her body was later found in the vicinity did not supply substantial evidence that he was the perpetrator). The court noted that the effect of its decision is that the court of appeals’ opinion stands without precedential value.

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.

In this first-degree felony-murder and discharging a weapon into an occupied dwelling case, the trial court did not err by denying the defendant’s motion to dismiss the charges on grounds that there was insufficient evidence establishing that the defendant was the perpetrator. Among other things, the State’s evidence established a motive (hostility between the defendant and the victim) and opportunity to commit the crime (through physical evidence at the crime scene and witness testimony).

In a case involving convictions for felony breaking or entering, felony larceny, and misdemeanor injury to real property, the trial court did not err by denying the defendant’s motion to dismiss. The property owner was the defendant’s former girlfriend, who was away at the time. The items taken included a television. At trial, and at the State’s request, the trial court did not instruct the jury on acting in concert or aiding and abetting. Thus, to find the defendant guilty, the State was required to prove that the defendant committed the offenses himself. The court rejected the defendant’s argument that there was insufficient evidence that he was the perpetrator. Among other things, a neighbor saw a vehicle backed up to the victim’s patio; neighbors saw two males going in and out of the apartment; a neighbor recognized the defendant as one of the men; when one of the neighbors spoke to the defendant he seemed startled and anxious; a neighbor saw a television in the vehicle; another neighbor saw “stuff” in the car and when the men saw her, they quickly closed the trunk and departed; the victim told only three people that she was going out of town, one of whom was the defendant; and when the victim asked the defendant about the evening in question, he lied, telling her he was out of town. These and other facts were sufficient evidence 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 crime of discharging a weapon into occupied property. Evidence tied a burgundy SUV to the shooting and suggested the defendant was the vehicle’s driver, the defendant fled from police and made statements to them showing “inside” knowledge, and gunshot residue was found on the defendant shortly after the shooting.

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.”

There was sufficient evidence that the defendant was the perpetrator of the charged offenses so that the trial court did not err by denying the defendant’s motion to dismiss. The crimes occurred at approximately 1:00 am at the victim’s home. The intruder took a fifty-dollar bill, a change purse, a cell phone, and jewelry. The victim’s description of the perpetrator was not inconsistent with the defendant’s appearance. An eyewitness observed the defendant enter a laundromat near the victim’s home at approximately 2:00 am the same morning. The stolen change purse, cell phone, and jewelry were found in the laundromat. No one other than the defendant entered the laundromat from midnight that evening until when the police arrived. The defendant admitted using used a fifty-dollar bill to purchase items that morning and gave conflicting stories about how he obtained the bill. 

State v. Patel, 217 N.C. App. 50 (Nov. 15, 2011)

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.

In a case involving a 1972 homicide, the trial judge erred by denying the defendant’s motion to dismiss due to insufficient evidence that he was the perpetrator. When the State presents only circumstantial evidence that the defendant is the perpetrator, courts look at motive, opportunity, capability and identity to determine whether a reasonable inference of the defendant’s guilt may be inferred or whether there is merely a suspicion that the defendant is the perpetrator. Evidence of either motive or opportunity alone is insufficient to carry a case to the jury. Here, the evidence was sufficient to show motive; it showed hostility between the victim and the defendant that erupted at times in physical violence and threats. However, there was insufficient evidence of opportunity. The court noted that for there to be sufficient evidence of opportunity, the State must present evidence placing the defendant at the crime scene when the crime was committed. Here, the only evidence of opportunity was the defendant’s statement, made 26 years after the murder, that he was briefly in a spot two miles away from the crime scene. Finally, the court agreed with the defendant’s argument that State’s evidence of his means to kill the victim was insufficient because it failed to connect the defendant to the murder weapon.

The evidence was sufficient to establish that the defendant perpetrated the murder. The defendant was jealous of the victim and made numerous threats toward him; four spent casings found in his bedroom were fired from the murder weapon; on the day of the murder, the victim got into a vehicle that matched a description of the defendant’s vehicle; and a fiber consistent with the victim’s jacket was recovered from the defendant’s vehicle. 

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.

There was sufficient evidence that the defendant perpetrated a murder when, among other things, cuts on the defendant’s hands were visible more than 10 days after the murder; neither the defendant’s nor the victim’s DNA could be excluded from a DNA sample from the scene; DNA from blood stains on the defendant’s jeans matched the victim’s DNA; and 22 shoe prints found in blood in the victim’s residence were consistent with the defendant’s shoes. 

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.

Where the State’s evidence in this murder case showed both motive and opportunity, it was sufficient to survive a motion to dismiss on the issue of whether the defendant was the perpetrator.

Where a burglary victim identified the defendant as the perpetrator in court, the rule of State v. Irick, 291 N.C. 480 (1977) (fingerprint evidence can withstand a motion for nonsuit only if there is substantial evidence that the fingerprints were impressed at the time of the crime),did not require dismissal. Although the identification was not clear and unequivocal, it was not inherently incredible and supported the fingerprint evidence.

State v. McCrary, 368 N.C. 571 (Dec. 18, 2015)

In a per curiam opinion, the supreme court affirmed the decision below, State v. McCrary, __ N.C. App. __, 764 S.E.2d 477 (2014), to the extent it affirmed the trial court’s denial of the defendant’s motion to dismiss. In this DWI case, the court of appeals had rejected the defendant’s argument that the trial court erred by denying his motion to dismiss, which was predicated on a flagrant violation of his constitutional rights in connection with a warrantless blood draw. Because the defendant’s motion failed to detail irreparable damage to the preparation of his case and made no such argument on appeal, the court of appeals concluded that the only appropriate action by the trial court under the circumstances was to consider suppression of the evidence as a remedy for any constitutional violation. Noting that the trial court did not have the benefit of the United States Supreme Court’s decision in Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552 (2013), in addition to affirming that portion of the court of appeals opinion affirming the trial court’s denial of defendant’s motion to dismiss, the supreme court remanded to the court of appeals “with instructions to that court to vacate the portion of the trial court’s 18 March 2013 order denying defendant’s motion to suppress and further remand to the trial court for (1) additional findings and conclusions—and, if necessary—a new hearing on whether the totality of the events underlying defendant’s motion to suppress gave rise to exigent circumstances, and (2) thereafter to reconsider, if necessary, the judgments and commitments entered by the trial court on 21 March 2013.”

(1) The trial court erred by entering a pretrial order dismissing, under G.S. 15A-954(a)(4), murder, child abuse, and sexual assault charges against the defendant. The statute allows a trial court to dismiss charges if it finds that the defendant's constitutional rights have been flagrantly violated causing irreparable prejudice so that there is no remedy but to dismiss the prosecution. The court held that the trial court erred by finding that the State violated the defendant’s Brady rights with respect to: a polygraph test of a woman connected to the incident; a SBI report regarding testing for the presence of blood on the victim’s underwear and sleepwear; and information about crime lab practices and procedures. It reasoned, in part, that the State was not constitutionally required to disclose the evidence prior to the defendant’s plea. Additionally, because the defendant’s guilty plea was subsequently vacated and the defendant had the evidence by the time of the pretrial motion, he received it in time to make use of it at trial. The court also found that the trial court erred by concluding that the prosecutor intentionally presented false evidence at the plea hearing by stating that there was blood on the victim’s underwear. The court determined that whether such blood existed was not material under the circumstances, which included, in part, substantial independent evidence that the victim was bleeding and the fact that no one else involved was so injured. Also, because the defendant’s guilty plea was vacated, he already received any relief that would be ordered in the event of a violation. Next, the court held that the trial court erred by concluding that the State improperly used a threat of the death penalty to coerce a plea while withholding critical information to which the defendant was entitled and thus flagrantly violating the defendant’s constitutional rights. The court reasoned that the State was entitled to pursue the case capitally and no Brady violation occurred. (2) The trial court erred by concluding that the State’s case should be dismissed because of statutory discovery violations. With regard to the trial court’s conclusion that the State’s disclosure was deficient with respect to the SBI lab report, the court rejected the notion that the law requires either an affirmative explanation of the extent and import of each test and test result. It reasoned: this “would amount to requiring the creation of an otherwise nonexistent narrative explaining the nature, extent, and import of what the analyst did.” Instead it concluded that the State need only provide information that the analyst generated during the course of his or her work, as was done in this case. With regard to polygraph evidence, the court concluded that it was not discoverable.

The defendant was seen handling a black box in connection with a possible drug transaction/ransom payment. The next day, officers found a black box full of cocaine in the woods nearby. The defendant was charged with and convicted of trafficking by possession. He appealed, arguing that the State’s evidence was insufficient. A divided court of appeals agreed that there was insufficient evidence that there was cocaine inside the box at the time that defendant was seen handling it. On further appeal, the supreme court held that the defendant adequately preserved the sufficiency issue, as his motion to dismiss at the close of all the evidence included an argument about possession. The supreme court divided equally on the merits, with Justice Davis not participating. The opinion of the court of appeals therefore stands without precedential value.

The State had no right to appeal the trial court’s order granting the defendant’s motion to dismiss for insufficient evidence, made after the close of all evidence where the trial court erred by taking the defendant’s motion under advisement and failing to rule until after the jury returned its verdict. Under G.S. 15A-1227(c), when a defendant moves to dismiss based on insufficient evidence, the trial court must rule on the motion “before the trial may proceed.” Here, after the defendant moved to dismiss the trial court determined that it needed to review the transcript of an officer’s trial testimony before ruling. While waiting for the court reporter to prepare the transcript, the trial court allowed the jury to begin deliberations. Shortly after the jury returned a guilty verdict, the court reporter completed the transcript and the trial court reviewed it. The trial court then granted the motion to dismiss, explaining that the transcript showed the State had not met its burden of proof. The trial court added that it considered its ruling as one made “at the close of all the evidence.” The State appealed. While double jeopardy prevents the State from appealing the grant of a motion to dismiss for insufficient evidence if it comes before the jury verdict, the State generally can appeal that ruling if it comes after the verdict (because, the court explained, if the State prevails, the trial court on remand can enter judgment consistent with the jury verdict without subjecting the defendant to a second trial). Here, the trial court’s violation of the statute prejudiced the defendant; had the trial court ruled at the proper time, no appeal would have been allowed. The court determined that the proper remedy was to preclude the State’s appeal.

In this DWI case, the district court properly dismissed the charges sua sponte. After the district court granted the defendant’s motion to suppress, the State appealed to superior court, which affirmed the district court’s pretrial indication and remanded. The State then moved to continue the case, which the district court allowed until June 16, 2015, indicating that it was the last continuance for the State. When the case was called on June 16th the State requested another continuance so that it could petition the Court of Appeals for writ of certiorari to review the order granting the defendant’s motion to suppress. The district court judge denied the State’s motion to continue and filed the final order of suppression. The district court judge then directed the State to call the case or move to dismiss it. When the State refused to take any action, the district court, on its own motion, dismissed the case because of the State’s failure to prosecute. Affirming, the court noted that when the case came on for final hearing on June 16th, the State had failed to seek review of the suppression motion. And, given that the prosecutor knew that there was no admissible evidence supporting the DWI charge in light of the suppression ruling, a State Bar Formal Ethics Opinion required dismissal of the charges. The court noted: the “State found itself in this position by its own in action.”

State v. Joe, 365 N.C. 538 (Apr. 13, 2012)

Although a trial court may grant a defendant's motion to dismiss under G.S. 15A–954 or –1227 and the State may enter an oral dismissal in open court under G.S. 15A–931, the trial court has no authority to enter an order dismissing the case on its own motion.

In this Rowan County case, the defendant was convicted of felony murder based on an underlying felony of robbery with a dangerous weapon and first-degree murder based on premeditation and deliberation. The defendant was charged after one of his coworkers, Arthur Davis, was found dead in his residence due to multiple stab wounds. Investigating officers found bloody clothes at the defendant’s residence, but forensic biologists testified that those clothes had no DNA connection with the victim, and that there was no other connection between the defendant’s DNA profile and the scene of the crime. When asked about his whereabouts on the night of the crime, the defendant told investigators that he tried to call the victim that night to borrow money from him, but that Davis never answered. The defendant said he then went to his place of employment, smoked crack, did some work, and then went home. Cell site location analysis performed on the defendant’s phone records showed him to be in a sector that included both the victim’s home and his place of employment on that night. After talking with officers, the defendant was arrested and jailed on an unrelated charge. In a jailhouse phone call on a monitored line, the defendant instructed his girlfriend to bail him out using approximately $3,000 in cash hidden in a work glove, which was in turn hidden in a McDonald’s bag in a trash can. The defendant moved to dismiss all charges for insufficiency of the evidence at the close of the State’s evidence and again at the close of all evidence. At closing, the prosecutor noted the lack of DNA evidence, but said that the jury “need[ed] a reasonable explanation for that money.” The defendant objected as the prosecutor was saying “If you don’t have a reasonable explanation for where that money came from . . . ,” which the trial judge sustained, but without giving a curative instruction. 

On appeal, the defendant argued that the trial court erred by denying his motion to dismiss all the charges for failure to provide evidence as to each element of each crime. A majority of the Court of Appeals agreed. Even giving the State every reasonable inference and resolving any contradictions in its favor, the court concluded that the evidence here was insufficient to go to the jury. The State presented no evidence that the defendant entered Mr. Davis’s trailer, and no evidence connecting the $3,000 with the victim. Evidence indicating that the defendant was in the vicinity of the victim’s home on the night of the offense, and that the victim was supposed to bring money to his daughter the next day but that no money or billfold was found in his house, showed only that the defendant had the opportunity to commit the crime and that someone may have taken money from the victim. There was no evidence beyond speculation, the court said, that the defendant actually went to the victim’s house, had a motive to commit the crimes, or actually did it. The court thus found that the trial court erred by failing to grant the defendant’s motion to dismiss and vacated the defendant’s convictions. Having vacated the convictions, the majority did not reach the defendant’s second argument regarding the trial court’s failure to give a limiting instruction related to the State’s improper closing argument, which arguably shifted the burden of proof to the defendant.

A dissenting judge would have found the evidence sufficient to give rise to a reasonable inference of guilt, and that the trial court therefore did not err by denying the defendant’s motion to dismiss. The dissenting judge also would have concluded that the trial court did not err in failing to give a limiting instruction regarding the State’s closing argument in light of a unobjected-to rephrasing of the argument by the prosecutor after the parties conferred with the judge.

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.

State v. Todd, ___ N.C. App. ___, 790 S.E.2d 349 (Aug. 16, 2016) rev’d on other grounds, 369 N.C. 707 (Jun 9 2017)

Over a dissent the court held that the evidence was insufficient to support a conviction for armed robbery where it consisted of a single partial fingerprint on the exterior of a backpack worn by the victim at the time of the crime and that counsel rendered ineffective assistance by failing to raise this issue on the defendant’s first appeal. Evidence showed that the assailants “felt around” the victim’s backpack; the backpack however was not stolen. The backpack, a movable item, was worn regularly by the victim for months prior to the crime while riding on a public bus. Additionally, the defendant left the backpack unattended on a coat rack while he worked in a local restaurant. Reviewing the facts of the case and distinguishing cases cited by the State, the court concluded that the circumstances of the crime alone provide no evidence which might show that the fingerprint could only have been impressed at the time of the crime. The court went on to reject the State’s argument that other evidence connected the defendant to the crime. 

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.”

The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss where the defendant’s argument went to issues of credibility.

The trial court erred by granting the defendant’s motion to dismiss a charge of felon in possession of a firearm on grounds that the statute was unconstitutional as applied to him. The defendant’s motion was unverified, trial court heard no evidence, and there were no clear stipulations to the facts. To prevail in a motion to dismiss on an as applied challenge to the statute, the defense must present evidence allowing the trial court to make findings of fact regarding the type of felony convictions and whether they involved violence or threat of violence; the remoteness of the convictions; the felon's history of law abiding conduct since the crime; the felon's history of responsible, lawful firearm possession during a period when possession was not prohibited; and the felon's assiduous and proactive compliance with amendments to the statute.

In this drug case, the defendant failed to preserve her argument that the trial court erred by failing to sua sponte conduct a hearing to confirm that the defendant’s in-custody statements to law enforcement were knowing and voluntary. The defendant did not move to suppress the statements before or at any time during trial. When the State first asked about the statements at trial, defense counsel stated “objection.” The trial court overruled the objection, and defense counsel said nothing more. When no exception to making a motion to suppress before trial applies, a defendant’s failure to make a pretrial motion to suppress waives any right to contest the admissibility of evidence at trial on constitutional grounds. Thus, the trial court properly overruled the defendant’s objection as procedurally barred.

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 trial court did not err by denying the defendant’s motion to suppress as untimely under G.S. 15A-976 where the defendant failed to file the motion within the requisite time following receipt of the State’s notice.

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.

The defendant’s motion to suppress was untimely where the defendant had approximately seven weeks of notice that the State intended to use the evidence, well more than the required 20 working days.

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.

State v. Bartlett, 368 N.C. 309 (Sept. 25, 2015)

The court reversed the decision below, State v. Bartlett, 231 N.C. App. 417 (Dec. 17, 2013), holding that a new suppression hearing was required. At the close of the suppression hearing, the superior court judge orally granted the defendant’s motion and asked counsel to prepare a written order. However, that judge did not sign the proposed order before his term ended. The defendant presented the proposed order to a second superior court judge, who signed it, over the State’s objection, and without conducting a hearing. The order specifically found that the defendant’s expert was credible, gave weight to the expert’s testimony, and used the expert’s testimony to conclude that no probable cause existed to support defendant’s arrest. The State appealed, contending that the second judge was without authority to sign the order. The court of appeals found it unnecessary to reach the State’s contention because that court considered the first judge’s oral ruling to be sufficient. Reviewing the law, the Supreme Court clarified, “our cases require findings of fact only when there is a material conflict in the evidence and allow the trial court to make these findings either orally or in writing.” It added that to the extent that cases such as State v. Williams, 195 N.C. App. 554 (2009), “suggest otherwise, they are disavowed.” Turning to the case at hand, the court concluded that at the suppression hearing in this case, disagreement between the parties’ expert witnesses created a material conflict in the evidence. Thus, a finding of fact, whether written or oral, was required. Here, however, the first judge made no such finding. The court noted that while he did attempt to explain his rationale for granting the motion, “we cannot construe any of his statements as a definitive finding of fact that resolved the material conflict in the evidence.” Having found the oral ruling was inadequate, the Court considered whether the second judge had authority to resolve the evidentiary conflict in his written order even though he did not conduct the suppression hearing. It held that he did not, reasoning that G.S. 15A-977 contemplates that the same trial judge who hears the evidence must also find the facts. The court rejected the defendant’s argument that G.S. 15A-1224(b) authorized the second judge to sign the order, concluding that provision applies only to criminal trials, not suppression hearings. 

State v. Salinas, 366 N.C. 119 (June 14, 2012)

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.

Stat v. Phillips, 365 N.C. 103 (June 16, 2011)

The court rejected the capital defendant’s argument that the trial court’s findings of fact as to whether he had consumed impairing substances before making an incriminating statement to the police were insufficient. The court reviewed the trial court’s detailed findings and found them sufficient.

In this case involving possession of a firearm by a felon and carrying a concealed weapon, (1) binding caselaw required that the defendant’s conviction for felon in possession be vacated because the indictment was fatally defective; and (2) the trial court’s ruling on the defendant’s motion to suppress was based on improper findings of fact.

(1) G.S. 14-415.1(c) dictates that an indictment charging a defendant with possession of a firearm by a felon must be separate from any indictment charging other offenses related to or giving rise to the felon in possession charge.  Here, a single indictment charged the defendant with felon in possession, possession of a firearm with an altered/removed serial number, and carrying a concealed weapon.  Finding itself bound by State v. Wilkins, 225 N.C. App. 492 (2013), the court determined that the State’s failure to obtain a separate indictment for the felon in possession offense rendered the indictment fatally defective and invalid as to that offense.

(2) The court determined that the trial court’s order denying the defendant’s Fourth Amendment motion to suppress a firearm seized from the center console of his vehicle did not contain adequate findings of fact pertaining to a material conflict in the evidence of the accessibility of the firearm and consequently the trial court plainly erred in denying the motion. 

An officer initiated a valid traffic stop of the defendant and searched the vehicle for marijuana based on an emanating odor.  During the search, the officer felt and saw the handgrip of a pistol around the center console, arrested the defendant for carrying a concealed weapon, and then removed a plastic panel from the console to retrieve the pistol.  The defendant challenged the trial court’s finding of fact that “no tools were needed” to remove the panel, a finding bearing upon the accessibility of the pistol for purposes of determining whether the officer had probable cause for the independent search of the console premised on the offense of carrying a concealed weapon.  Reviewing the testimony, the court of appeals found that the finding that “no tools were needed” was not supported by the testimony at the suppression hearing and that the trial court otherwise failed to make necessary findings as to the accessibility of the pistol.  Because the accessibility issue was not resolved by adequate findings, the trial court’s conclusion of law regarding probable cause was not supported and it could not properly rule on the defendant’s motion to suppress.  The court remanded the case for the trial court to make further findings on the issue.

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.

An officer patrolling the parking area of a park just before closing discovered the defendant asleep in her car. Based on the defendant’s positioning, he was concerned there might be a medical emergency, so he knocked on the window of her car. After he knocked several times, the defendant sat up, looked at him, and opened the driver’s side door. She said she was camping in the park with her son and decided to take a nap in her car. Her speech was slurred, her eyes were bloodshot, and she was unsteady on her feet when she got out of her car. The officer also saw track marks on her arms that were consistent with heroin use. The officer asked for the defendant’s license, and, while holding it, asked for consent to search the defendant’s car and her purse, which was sitting in the front seat of the car. 

The State and defendant presented conflicting evidence about what happened next. The officer said that defendant responded, “Sure.” The defendant said the officer asked three times for permission to search her car and each time she said, “I would really rather you not.” She said she only consented to the search after the officer threatened to arrest her.

The officer searched the defendant’s purse and found several syringes in its top section. He then asked the defendant whether she was carrying anything illegal. The defendant asked whether she was going to jail. The officer told her that he would not take her to jail if she cooperated. The defendant told him she had a syringe containing heroin in the side compartment of her purse. The officer found the syringe there, along with a burnt spoon and two grams of heroin.

The defendant was not arrested that evening, but subsequently was indicted for possession of heroin and possession of drug paraphernalia. She filed a motion to suppress the evidence obtained from the search, which the trial court denied. She pled guilty, preserving her right to appeal. On appeal, she argued that she did not voluntarily consent to the search of her purse, and that the trial court’s findings on that issue were insufficient. The court of appeals disagreed. Rejecting the defendant’s argument to the contrary, the court explained that the question of whether consent to search was voluntary is one of fact, not law.

The trial court determined that the defendant freely gave consent to the officer to search her vehicle and her purse. This finding was supported by the officer’s testimony at the suppression hearing that he asked defendant for consent to search her car and purse, and she said, “Sure.” The court of appeals concluded, therefore, that the trial court’s finding that the defendant’s consent was “freely given” was supported by competent evidence and was binding on appeal. Though the trial court failed to make a specific finding that the search did not violate the defendant’s Fourth Amendment rights, the appellate court reached that conclusion based on the finding of fact that the defendant voluntarily consented to the search. Thus, the court of appeals concluded that the trial court did not err in denying the defendant’s motion to suppress.

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.

The court rejected the defendant’s argument that the findings and conclusions made by the trial court from the bench with respect to his motions to suppress are insufficient because the trial court expressly ordered the State to prepare written orders on the motions but the State failed to do so. North Carolina law requires findings of fact only where there is a material conflict in the evidence, and allows the trial court to make those findings of fact either orally or in writing. Regardless of whether findings of fact are required, the trial court must make conclusions of law in the record. Considering each of the defendant’s motions to suppress the court found that the “trial court’s oral rulings on the motions are without error, because they state sufficient findings of fact resolving any material conflicts in the evidence and conclusions of law that apply the law to those factual findings.”

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. 

The trial court’s order denying the defendant’s motion to suppress in this traffic stop case contained inadequate conclusions of law concerning the validity of the traffic stop. The trial court’s sole conclusion of law is better characterized as a statement of law. A conclusion of law requires the exercise of judgment in making a determination or application of legal principles to the facts found. The court remanded for findings of fact and conclusions of law. 

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.

Because the trial court provided the rationale for its ruling on the defendant’s motion to suppress from the bench and there were no material conflicts in the evidence, the trial court was not required to enter a written order.

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.

The trial court erred by failing to issue a written order denying the defendant’s motion to suppress. A written order is necessary unless the court announces its rationale from the bench and there are no material conflicts in the evidence. Here, although the trial court announced its ruling from the bench, there was a material conflict in the evidence. The court remanded for entry of the required written order. 

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. 

In granting the defendant’s motion to suppress, the trial judge erred by failing to make findings of fact resolving material conflicts in the evidence. The court rejected the defendant’s argument that the trial court “indirectly provided a rationale from the bench” by stating that the motion was granted for the reasons in the defendant’s memorandum.

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.

In re N.J., 221 N.C. App. 427 (June 19, 2012)

The district court erred by failing to make findings of fact or conclusions of law in connection with its ruling on the juvenile’s motion to suppress in violation of G.S. 15A-977, where the trial court failed to provide its rationale for denying the motion. 

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.

By orally denying the defendant's motion to suppress, the trial court failed to comply with G.S. 15A-977(f)’s requirement that it enter a written order with findings of fact resolving material conflicts in the evidence. The statute mandates a written order unless the trial court provides its rationale from the bench and there are no material conflicts in the evidence. Although the trial court provided its rationale from the bench, there were material conflicts in the evidence as to whether the defendant’s consent to search was voluntary. The court remanded for the trial court to make the necessary findings of fact and for reconsideration of its conclusions of law in light of those findings.

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.

Remanding for a new suppression hearing where the trial court failed to provide any basis or rationale for its denial of the defendant’s suppression motion. The court “again urge[d] the trial courts . . . to remember ‘it is always the better practice to find all facts upon which the admissibility of the evidence depends.’”

(1) Although a trial court may summarily deny or dismiss a suppression motion for failure to attach a supporting affidavit, it has the discretion to refrain from doing so. (2) In granting the defendant’s motion to suppress, the trial judge erred by failing to make findings of fact resolving material conflicts in the evidence. The court rejected the defendant’s argument that the trial court “indirectly provided a rationale from the bench” by stating that the motion was granted for the reasons in the defendant’s memorandum.

The trial court did not err by denying the defendant’s motion to suppress filed under G.S. 15A-980. The defendant argued for suppression of a conviction used in two habitual misdemeanor assault indictments on grounds that it was obtained in violation of his right to counsel. At hearing on the motion the defendant testified that when he pleaded guilty to the charge, he was not represented by counsel and did not waive his right to counsel. At the suppression hearing, an assistant clerk testified that the only remaining records of the proceeding indicated that the defendant was represented by a retained attorney. Specifically, the designations “R” and “N/A” appeared in the electronic record. She testified that the designation “R” was used to reflect the fact that a defendant had retained counsel. “N/A” was used when the handwritten notes on the shuck were not legible or the attorney’s name was unknown and the designation “N/A” was never used when a defendant was unrepresented . Applying the presumption of regularity, the court presumed that the information contained in the records was accurate and found that the defendant failed to rebut the presumption with competent, material and substantial evidence.

The trial court abused its discretion by summarily denying the defendant’s motion under G.S. 15A-980 for suppression, in connection with sentencing, of a prior conviction which the defendant alleged was obtained in violation of her right to counsel. The trial court dismissed the motion as an impermissible collateral attack on a prior conviction that only could be raised by motion for appropriate relief. Relying on a prior unpublished opinion, the court held that although the defendant “could not seek to overturn her prior conviction” on this basis, G.S. 15A-980 gave her “the right to move to suppress that conviction’s use in this case.”

State v. Lewis, 365 N.C. 488 (Apr. 13, 2012)

Affirming the court of appeals, the court held that on a retrial the trial court erred by applying the law of the case and denying the defendant’s motion to suppress. At the defendant’s first trial, he unsuccessfully moved to suppress the victim’s identification as unduly suggestive. That issue was affirmed on appeal. At the retrial, the defense filed new motions to suppress on the same grounds. However, at the pretrial hearings on these motions, the defense introduced new evidence relevant to the reliability of the identification. The State successfully argued that the law of the case governed and that the defendant’s motions must be denied. After the defendant was again convicted, he appealed and the court of appeals reversed on this issue. Affirming that ruling the court noted that “the law of the case doctrine does not apply when the evidence presented at a subsequent proceeding is different from that presented on a former appeal.” It then went on to affirm the court of appeals’ holding that the retrial court erred in applying the doctrine of the law of the case to defendant’s motion to suppress at the retrial.

State v. Wade, 198 N.C. App. 257 (July 21, 2009)

The trial court did not abuse its discretion by denying the defendant’s motion to renew his suppression motion in light of an officer’s trial testimony. There was no additional relevant information discovered during trial that required reconsideration of the motion to suppress.

On appeal from a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 374 (2016), the court reversed, holding that the defendant’s Fourth Amendment claims regarding the traffic stop are not reviewable on direct appeal, even for plain error, because the defendant waived them by not moving to suppress the evidence discovered during the stop before or at trial. The defendant did not move to suppress the evidence before or at trial, but instead argued for the first time on appeal that the seizure of the evidence—here cocaine--resulted from various Fourth Amendment violations. Deciding this issue of first impression, the court held that plain error review is not available when a defendant has not moved to suppress at the trial level. It noted that when a defendant does not move to suppress in the trial court, the evidentiary record pertaining to the suppression issue is not fully developed, and may not be developed at all. Without a fully developed record, and appellate court lacks the information necessary to assess the merits of a defendant’s plain error arguments. Here, for example, the Court of Appeals reviewed the officer’s body camera footage and determined that the officer did not have reasonable suspicion to extend the stop. However, the officer never testified at a suppression hearing, and thus never gave testimony regarding whether he had reasonable suspicion, including testimony about facts that were not captured on the camera footage. The court reversed and remanded to the Court of Appeals for consideration of the defendant’s claim that counsel rendered ineffective assistance by failing to move to suppress the evidence in question.

State v. Oates, 366 N.C. 264 (Oct. 5, 2012)

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.

The defendant pled guilty to two counts of manufacturing methamphetamine after the trial court denied his motion to suppress items seized during a search. The case came back before the court of appeals on remand from the supreme court for reconsideration in light of State v. Ledbetter, ___ N.C. ___, 814 S.E.2 39 (2018), and State v. Stubbs, 368 N.C. 40 (2015). (1) The court of appeals dismissed the defendant’s direct appeal because the defendant failed to provide notice to the State of his intent to do so before plea negotiations were finalized as required under State v. Tew, 326 N.C. 732 (1990). (2) The court of appeals denied the defendant’s petition for writ of certiorari, rejecting his contention that it should be granted under State v. Davis, 237 N.C. App. 22 (2014). Davis, the court of appeals concluded, failed to address prior binding court of appeals authority. As a result, the court deemed itself obliged to follow the supreme court’s guidance in State v. Jones, 358 N.C. 473 (2004), that when faced with inconsistent opinions from separate panels, a subsequent panel of the court of appeals must follow the earlier opinion. Following that rule, the court concluded that earlier decisions (including State v. Pimental, 153 N.C. App. 69 (2002) (holding that the court of appeals cannot grant a writ of certiorari when a defendant pleads guilty without first notifying the State of his or her intent to appeal a suppression, because that is not a “failure to take timely action” within the meaning of Appellate Rule 21) compelled it to deny the writ. The court viewed Ledbetter and Stubbs as clarifying the court of appeals’ jurisdiction to hear petitions for writ of certiorari, but not as relieving the court of its obligation to follow binding substantive precedent. A concurring judge would have denied the defendant’s petition for certiorari, but as a matter of discretion, and not pursuant to prior court of appeals cases that the judge did not view as binding after Ledbetter and Stubbs.

In this drug case, the defendant failed to preserve her argument that the trial court erred by failing to sua sponte conduct a hearing to confirm that the defendant’s in-custody statements to law enforcement were knowing and voluntary. The defendant did not move to suppress the statements before or at any time during trial. When the State first asked about the statements at trial, defense counsel stated “objection.” The trial court overruled the objection, and defense counsel said nothing more. When no exception to making a motion to suppress before trial applies, a defendant’s failure to make a pretrial motion to suppress waives any right to contest the admissibility of evidence at trial on constitutional grounds. Thus, the trial court properly overruled the defendant’s objection as procedurally barred.

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.

In a case where the defendant pled guilty pursuant to a plea agreement without notifying the State of his intent to appeal the suppression ruling and failed to timely file a notice of intent to appeal, the court dismissed the defendant’s untimely appeal and his petition for writ of certiorari. Acknowledging State v. Davis, 237 N.C. App. 22 (2014), a recent case that allowed, with no analysis, a writ in this very circumstance, the court found itself bound to follow an earlier opinion, State v. Pimental, 153 N.C. App. 69, 77 (2002), which requires dismissal of the defendant’s efforts to seek review of the suppression issue.

The denial of a motion to suppress does not preserve the issue for appellate review in the absence of a timely objection made when the evidence is introduced at trial.

The defendant gave sufficient notice of his intent to appeal the denial of his motion to suppress so as to preserve his right to appeal. The State had argued that defense counsel’s language was not specific enough to put the trial court and prosecution on notice of his intention to appeal the adverse ruling. Immediately following an attempt to make a renewed motion to suppress at the end of the State’s evidence, defense counsel stated “that [the defendant] would like to preserve any appellate issues that may stem from the motions in this trial.” The court noted that the defendant had only made five motions during trial, two of which were motions to suppress, and that following defense counsel’s request, the trial court reentered substantially similar facts as he did when initially denying the pretrial motion to suppress. Clearly, the court concluded, the trial court understood which motion the defendant intended to appeal and decided to make its findings of fact as clear as possible for the record.

In 2013, the defendant’s car collided with another vehicle, killing its driver. The defendant was taken to the hospital, where he was treated and released. The State later obtained an order directing the hospital to provide the defendant’s medical records and blood. Tests of the blood indicated a blood alcohol concentration of 0.22. The defendant was charged with second-degree murder and death by vehicle. Before trial, the defendant moved to suppress, arguing that the blood was obtained in violation of the state and federal constitutions because there was no exigent circumstance or finding of probable cause. The trial court denied the motion and the defendant was convicted. The Court of Appeals held that the trial court erred by denying the motion to suppress, but went on to conclude over a dissent that “Defendant ha[d] failed to carry his burden to show any prejudicial error in the denial of the motion to suppress.” State v. Scott, 269 N.C. App. 457 (2020). The dissent argued that the proper legal standard for evaluating whether a federal constitutional error is prejudicial is whether the State has proved its harmlessness beyond a reasonable doubt. Id. (Brook, J., dissenting). On appeal, the Supreme Court agreed with the dissent, holding that the Court of Appeals applied the incorrect standard and wrongly placed the burden on the defendant to show prejudice. The Court remanded the matter to the Court of Appeals for application of the proper standard.

On remand from the North Carolina Supreme Court, this Alamance County case involved a medical blood draw from a defendant suspected of driving while impaired and second-degree murder. The Court of Appeals previously determined that the seizure of the defendant’s medical records without a search warrant violated the defendant’s Fourth Amendment rights but found that the defendant failed to prove prejudice and was not entitled to relief (here). A dissent at the Court of Appeals agreed that the warrantless seizure was a Fourth Amendment violation but disagreed that the defendant was required to show prejudice. The North Carolina Supreme Court unanimously reversed, agreeing with the dissent below. It remanded to that court for application of the correct standard, harmless error, whereby the State has the burden to demonstrate that the error did not affect the validity and fairness of the proceedings beyond a reasonable doubt.

Evidence at trial showed that the defendant was driving recklessly at a high speed and passed another car in a no passing zone, and the defendant admitted as much. The defendant also had prior convictions for impaired driving and speeding. The State argued that this was sufficient to show malice for purposes of second-degree murder even without the blood result. However, the blood result was the only evidence of impairment—there were no signs of impairment at the scene, and no witness could attest that the defendant was impaired. The jury was instructed that it could find malice based on impairment, reckless driving, or speeding. It returned a general verdict and did not specify a theory of malice supporting the murder conviction. While the evidence of speeding, recklessness, and prior convictions were sufficient to survive a motion to dismiss the murder charge, the State here did not establish that the erroneous admission of the blood evidence was harmless beyond a reasonable doubt. The conviction for second degree murder was therefore vacated and the matter remanded for a new trial. Judges Gore and Griffin concurred.

The trial court did not impermissibly place the burden of proof on the defendant at a suppression hearing. Initially the burden is on the defendant to show that the motion is timely and in proper form. The burden then is on the State to demonstrate the admissibility of the challenged evidence. The party who bears the burden of proof typically presents evidence first. Here, the fact that the defendant presented evidence first at the suppression hearing does not by itself establish that the burden of proof was shifted to the defendant.

(1) The trial court did not err by denying the defendant’s motion to suppress statements to officers on grounds that they were obtained in violation of G.S. 15A-501(2) (arrested person must be taken before a judicial official without unnecessary delay). After a consensual search of his residence produced controlled substances, the defendant and three colleagues were arrested for drug possession. The defendant, who previously had waived his Miranda rights, was checked into the County jail at 11:12 am. After again being informed of his rights, the defendant was interviewed from 1:59 pm to 2:53 pm and made incriminating statements about a murder. After the interview the defendant was taken before a magistrate and charged with drug offenses and murder. The defendant argued that the delay between his arrival at the jail and his initial appearance required suppression of his statements regarding the murder. The court noted that under G.S. 15A-974(2), evidence obtained as a result of a substantial violation of Chapter 15A must be suppressed upon timely motion; the statutory term “result” indicates that a causal relationship between a violation of the statute and the acquisition of the evidence to be suppressed must exist. The court concluded that the delay in this case was not unnecessary and there was no causal relationship between the delay and defendant’s incriminating statements made during his interview. The court rejected the defendant’s constitutional arguments asserted on similar grounds.

In this Chatham County case, the State appealed from an order suppressing DNA evidence. The defendant was serving a life sentence for felony murder stemming from a robbery and killing in 1975. In 2008, the Court of Appeals ruled that inmates serving life under the Fair Sentencing Act were entitled to certain credits towards their sentence, which would have allowed the inmates (including the defendant) to be released. See State v. Bowden, 193 N.C. App. 597 (2008). In response, the Department of Public Safety began collecting DNA blood samples from inmates impacted by the Bowden decision to comply with the mandate of G.S. 15A-266.4 (requiring DNA samples before release from prison) and took the defendant’s sample. The North Carolina Supreme Court later reversed Bowden, and the defendant remained in prison.

In 2013, a codefendant contacted the North Carolina Innocence Inquiry Commission and asserted that the defendant had not been involved in the 1975 murder. Investigation into the defendant’s background revealed that he had significant intellectual limitations and mental health issues and was functionally illiterate. Other evidence showed that the defendant’s confession at the time was unconstitutionally obtained. The Innocence Commission recommended release, and a three-judge panel found the defendant innocent and ordered him released from prison in 2014.

In 2017, law enforcement discovered a woman murdered in her apartment in Pittsboro. The defendant lived in the apartment complex at the time. Blood found on the crime scene matched to the defendant, but the SBI did not initially alert police to the match. Because the underlying murder conviction had been set aside, the SBI believed that the defendant’s DNA sample should not have been in the database. Months later, the SBI alerted local law enforcement to the DNA match to the defendant. A search warrant was obtained to procure a new sample from the defendant. The affidavit acknowledged that the match was based on a sample provided for the earlier, now-vacated conviction, but noted that the SBI did not receive an order for expunction of that sample. The new sample of the defendant’s DNA matched to the blood on the scene of the Pittsboro murder and the defendant could not be excluded as a source for other forensic evidence at the scene. The defendant was consequently charged with first-degree murder and moved to suppress the DNA results.

The suppression motion alleged that the DNA test results stemmed from the defendant’s illegal confession in 1975 as well as an unjustified warrantless search of the defendant’s DNA in 2017, and that counsel at the defendant’s innocence hearing was ineffective for failing to seek an expunction of the defendant’s DNA sample. The trial court found that the SBI lawfully obtained the defendant’s DNA sample and that defense counsel was not ineffective. It nonetheless granted the motion to suppress. The trial court reasoned that the DNA expunction statute wrongfully placed the burden on the defendant to move for relief, and that the lack of an automatic process for expunction in cases of exoneration violated the Law of the Land clause of the state constitution under Article 1, section 19. Neither party raised this argument. The Court of Appeals reversed.

(1) The State sought to have the suppression order reversed on the basis that the Law of the Land clause argument was not raised in the trial court and was not therefore preserved for appellate review. This was incorrect. According to the court: “Our precedents clearly allow the party seeking to uphold the trial court’s presumed-to-be-correct and ultimate ruling to, in fact, choose and run any horse to race on appeal to sustain the legally correct conclusion of the order appealed from.” Womble Slip op. at 16. The trial court had inherent authority to grant the motion on grounds other than those argued before it and the issue was preserved for review.

(2) G.S. 15A-148 permits a defendant whose conviction is dismissed on appeal or by pardon of innocence to petition for expunction of a DNA sample provided in connection with the case. This statute did not apply to the defendant’s situation because an appellate court did not dismiss his original conviction and he did not receive a pardon. Innocence Commission cases are heard by a three-judge panel. They conduct an evidentiary hearing and sit as finder of fact, unlike an appellate court. While a superior court can in some instances act as an appellate court (reviewing only record evidence), innocence-claim judicial panels are expressly tasked with taking and weighing evidence. G.S. 15A-1469.

G.S. 15A-146 permits expunction when a case is dismissed and may include a request for expunction of the defendant’s DNA sample taken in connection with the case. Under the version of the statute in effect in 2019, a person did not qualify for this type of expunction if they had previously been convicted of a felony. The defendant had felony convictions unrelated to the original murder conviction, and those rendered the defendant ineligible for expunction under G.S. 15A-146 as well. The trial court therefore correctly determined that the SBI lawfully possessed and retained the defendant’s DNA sample.

(3) The court agreed with the trial court that the defendant has the burden to seek expunction under the statutory framework. It further observed that expunctions act prospectively and not retrospectively—the criminal record is only erased after the final order of expunction has been filed. Here, the defendant did not seek expunction and alleged no disability preventing him from doing so. The trial court’s ruling on the Law of the Land clause was incorrect. In determining a violation under that clause, the court asks “(1) Does the regulation have a legitimate objective; and (2) if so, are the means chosen to implement that objective reasonable?” Womble Slip op. at 27. The State has a legitimate interest in maintaining records of convicted felons to assist with solving other crimes, and this is sufficient to satisfy the first prong of the test. The statutes regarding collection of DNA samples from convicted felons and the process by which those records may be expunged were also reasonable. According to the court:

The trial court’s suppression of the DNA evidence based upon the Law of the Land Clause denied the longstanding presumption of validity of legislative policy choices and is error. The application of N.C. Gen. Stat. § 15A-148 is presumed to be, and is, constitutional under the Law of the Land Clause. Id. at 28.

The trial court’s order to the contrary was therefore reversed.

(4) While not addressed by the trial court, the Court of Appeals also examined due process arguments under the Fourteenth Amendment as issues likely to recur on remand. North Carolina’s Law of the Land clause is the state counterpart to the Fourteenth Amendment to the U.S. Constitution and has been interpreted to provide greater protections than its federal relative. Because no violation occurred under the Law of the Land clause, no federal due process violation occurred either.

The defendant also argued Nelson v. Colorado, 581 U.S. ___, 137 S. Ct. 1249 (2017), as an additional ground to affirm the trial court. That case found Colorado’s process of requiring the defendant to prove by clear and convincing evidence in a new civil action that the person was actually innocent before refunding financial costs imposed in relation to an overturned conviction violated due process. Under Nelson, “a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated” to comport with due process. Id. The court assumed without deciding that the defendant’s DNA could be treated like the fees and fines in Nelson. Here though, the defendant never pursued the statutory minimum procedure of filing for an expunction. This precluded review by the Court of Appeals. “Defendant did not argue this basis before the trial court and his failure to request the return of his blood as an exaction of his invalidated conviction prevents us from considering the matter as a violation of his federal Due Process rights.” Womble Slip op. at 31. This claim was therefore dismissed.

(5) The defendant argued that his DNA sample obtained while in prison for his original conviction was the fruit of the poisonous tree as an additional ground to affirm the trial court. According to the defendant, the detective coerced his confession in 1975 and this rendered the DNA sample inadmissible. The Court of Appeals rejected this argument too, finding that the sample was obtained from an independent source. Under the independent source exception to the exclusionary rule, “evidence obtained illegally should not be suppressed if it is later acquired pursuant to a constitutionally valid search or seizure.” Id. at 32. No court had ever ruled that the detective at issue wrongfully obtained the defendant’s confession or that the confession was the fruit of the poisonous tree. Furthermore, the defendant also confessed to other law enforcement agents at the time, and this was an adequate independent source of the DNA sample. This argument was dismissed as well.

(6) The defendant argued his 2009 DNA sample was wrongfully obtained as a warrantless search unsupported by exigent circumstances. In Maryland v. King, 569 U.S. 435 (2013), the Supreme Court approved the taking of a DNA sample by swabbing the inner cheek of a person validly arrested on probable cause, reasoning that the search (the swab) was reasonable under the circumstances. The defendant’s case was different, in that the DNA sample was obtained by way of an intravenous blood-draw. While this process is more invasive than the swab at issue in King, it was not a significant intrusion. As an inmate at the time, the defendant had a reduced (though not nonexistent) expectation of privacy. The defendant was not singled out to provide a sample; he was part of a category of prisoners being prepared for release. “This intrusion is weighted against the government’s interest in preserving an identification record of convicted felons for resolving past or future crimes.” Womble Slip op. at 40. The court determined that the State’s interest outweighed the intrusion upon the defendant’s privacy rights and again affirmed that no Fourth Amendment violation occurred.

(7) The defendant claimed his innocence-claim attorneys were ineffective for failing to expunge his conviction and DNA sample. The State argued that there is no right to an attorney in collateral review and that there was therefore no ineffective assistance claim to be made. The defendant analogized this situation to that of Kentucky v. Padilla, 559 U.S. 356 (holding that the right to counsel requires the client to be correctly informed of clear immigration consequences). He argued that the DNA sample was a similar collateral consequence. The Court of Appeals again disagreed. In the words of the court:

Defendant did not have a statutory right to expungement under either N.C. Gen. Stat. §§ 15A-146 or 15A-148. Defendant’s counsel does not have a duty to pursue a remedy unavailable at law. Under Strickland, Defendant’s counsel’s performance cannot be ‘deficient’ for not pursuing a claim that is unavailable to him. Womble Slip op. at 43.

(8) The State argued that the DNA sample was admissible even if the defendant’s rights were violated under the inevitable discovery exception to the exclusionary rule. Pursuant to that rule, if State shows by a preponderance of evidence that law enforcement would have discovered the evidence despite their unconstitutional actions, the evidence may still be admitted. See Nix v. Williams, 467 U.S. 431 (1984). According to the State, law enforcement had already decided upon the defendant as a prime suspect in the 2017 murder and would have ultimately arrested him even without the DNA sample. The trial court precluded the State from presenting evidence of prior altercations between the defendant and his girlfriend spanning a period of time from the month before the 2017 murder to several months after. The trial court based its ruling on the fact that the detective did not learn of these prior disturbances until after the SBI alerted law enforcement to the DNA match. This was error. “Nowhere does our precedent impose a temporal component to evidence subject to inevitable discovery, only that the evidence ‘would have been inevitably discovered’ by police.” Womble Slip op. at 46.

The case was therefore affirmed in part, reversed in part, and remanded for further proceedings.

In a prior decision, State v. Swain, 259 N.C. App. 253 (2018) (“Swain I”), the defendant appealed the trial court’s denial of his motion to suppress. The defendant argued that the cocaine discovered in this drug trafficking case was based on a search warrant affidavit that contained false statements in violation of Franks v. Delaware, 438 U.S. 154 (1978). The appellate court in Swain I concluded that it could not adequately review the defendant’s arguments because the trial court had not entered a written order resolving factual disputes in the evidence presented at the suppression hearing, so the matter was remanded to the trial court for entry of a written order clarifying the court’s findings. However, since the judge who conducted the hearing had retired, another superior court judge reviewed the hearing transcript and prepared a written order denying the defendant’s motion.

The appellate court found that this procedure was improper and a new hearing should have been held, for two reasons. First, pursuant to G.S. 15A-977 and State v. Bartlett, 368 N.C. 309 (2015), only the judge who presided over the hearing could make findings of fact concerning the evidence presented. Second, the appellate court pointed out that when it remanded this matter in Swain I, it had already concluded that the transcript alone provided an insufficient basis to resolve the conflicts in the evidence, and those disputes remained unresolved by the new order. Therefore, the court once again vacated the trial court’s order and remanded with instructions to hold a new evidentiary hearing and enter a written order resolving any factual disputes and ruling on the motion.

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.

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.

At a suppression hearing, the trial court may consider testimony from an officer about a vehicle stop that includes material information not contained in the officer’s contemporaneous reports. On the date of the traffic stop, Trooper Myers—the stopping officer--made handwritten notes in an Affidavit and Revocation Report and in a Driving While Impaired Report form (DWIR form). He testified that for most of his impaired driving cases, he was unable to put a lot of information on the DWIR form due to space constraints and his own sloppy handwriting. His practice was to later type his full observations into a Word document so that it would be easier to read. He followed this practice with respect to the incident in question, typing his notes into a Word document the following day; these notes contained greater detail about the incident than the prior Revocation Report or DWIR form. The court rejected the defendant’s argument that the trial court could not consider additional details included in the typed notes. This additional information supplemented rather than contradicted that in the earlier-created documents.

Because the trial court summarily denied the defendant’s motion to suppress, a full hearing with sworn testimony was not required under G.S. 15A-977 (motion to suppress procedure). The defendant’s own affidavit clearly laid out facts establishing that the officer had reasonable suspicion to detain the defendant. The information presented in the affidavit was sufficient to allow the trial court to determine that the defendant’s allegation did not merit a full suppression hearing because the affidavit did not as a matter of law support the ground alleged for suppression.

Any alleged violation of the New Jersey constitution in connection with a stop in that state leading to charges in North Carolina, provided no basis for the suppression of evidence in a North Carolina court.

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