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., 09/25/2021
E.g., 09/25/2021

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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