Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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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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The state obtained recordings of several hundred phone calls that the defendant made while he was in jail awaiting trial on charges of murder, armed robbery, and assault on a government official. The charges arose out of a robbery at a gas station where the clerk was killed and an officer was threatened with a firearm. The defendant gave notice of the affirmative defenses of diminished capacity, mental infirmity, and voluntary intoxication (insanity was also noticed, but not pursued at trial). Copies of the jail calls were provided to the defense in discovery, but the recordings could not be played. Defense counsel emailed the prosecutor to request a new copy of the calls, and asked the state to identify any calls it intended to use at trial. The prosecutor provided defense counsel with new copies of the calls that were playable, but also indicated that the state did not intend to offer any of the calls at trial, so defense counsel did not listen to them at that time. The evening before trial, the prosecutor notified defense counsel that the state had identified 23 calls that it believed were relevant to showing the defendant’s state of mind and memory at the time of the murder. At the start of trial the next morning, the defense moved for a continuance on the basis that it had not had time to review the calls or asses their impact on the defendant’s experts’ testimony, and argued that denial of a continuance at this point would violate the defendant’s state and federal constitutional rights to due process, effective counsel, and right to confront witnesses. The trial court denied the continuance, as well as defense counsel’s subsequent request to delay opening statements until Monday (after jury selection concluded mid-day Friday) in order to provide the defense an opportunity to listen to the calls and review them with the defendant’s experts.
The defendant was subsequently convicted of armed robbery, assault on a government official, and felony murder based on the assault. He was sentenced to life imprisonment for the murder and 60-84 months for the robbery; judgment was arrested on the assault. The defendant appealed, and a divided Court of Appeals found that the trial court did not err in denying the continuance, and furthermore any error would not have been prejudicial because the felony murder was a general intent crime and the calls were only offered by the state as rebuttal evidence regarding defendant’s diminished capacity. The dissent concluded that the majority applied the wrong standard of review, since the denial of the motion to continue was based on constitutional grounds, and would have found error and ordered a new trial. The defendant appealed to the state Supreme Court based on the dissent.
The higher court found no prejudicial error regarding the felony murder conviction, but vacated the armed robbery judgment. First, regarding the correct standard of review, a trial court’s decision on a motion to continue is normally reviewed only for abuse of discretion, but if it raises a constitutional issue it is reviewed de novo; however, even for constitutional issues, denial of a motion to continue is only reversible if the error was prejudicial. In this case, the trial court erred because the time allowed to review the calls was constitutionally inadequate. Defense counsel relied on the state’s representation that it would not use the calls until receiving a contrary notice the evening before trial began, and defense counsel did not have an opportunity to listen to the nearly four hours of recordings or consult with his expert witnesses before starting the trial. Under the circumstances of this case, the impact this had on defense counsel’s ability to investigate, prepare, and present a defense demonstrated that the defendant’s right to effective counsel was violated. Additionally, the defendant was demonstrably prejudiced by this violation, since defense counsel could not accurately forecast the evidence or anticipated expert testimony during the opening statements.
However, the state Supreme Court concluded that as to the felony murder conviction, the error was harmless beyond a reasonable doubt. The murder conviction was based on the underlying assault, a general intent crime “which only require[s] the doing of some act,” unlike specific intent offenses “which have as an essential element a specific intent that a result be reached.” The recorded calls were only offered as rebuttal evidence on this issue of intent, and therefore the error was harmless as to the assault and felony murder offenses as a matter of law, since “any evidence in this case supporting or negating that defendant was incapable of forming intent at the time of the crime is not relevant to a general-intent offense.” But the defendant’s conviction for armed robbery, a specific intent offense, was vacated and remanded for a new trial.
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.
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.
(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.
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.
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.
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.