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., 09/26/2021
E.g., 09/26/2021
State v. Krider, 370 N.C. 692 (Sept. 21, 2018)

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E.2d 828 (2018), the court affirmed per curiam, holding that the State failed to carry its burden of presenting sufficient evidence to support the trial court’s decision to revoke the defendant’s probation based upon a finding that the defendant willfully absconded probation. It went on, however, to “disavow the portion of the opinion analyzing the pertinence of the fact that defendant’s probationary term expired prior to the date of the probation violation hearing and holding ‘that the trial court lacked jurisdiction to revoke defendant’s probation after his case expired.’” In the opinion below, the Court of Appeals held that because the State presented insufficient evidence to support a finding of willful absconding, the trial court lacked jurisdiction to revoke the defendant’s probation after the term of probation ended. When the defendant’s probation officer visited his reported address, an unidentified woman advised the officer that the defendant did not live there. The State presented no evidence regarding the identity of this person or her relationship to the defendant. The officer never attempted to contact the defendant again. However when the defendant contacted the officer following his absconding arrest, the officer met the defendant at the residence in question. The Court of Appeals held that the evidence was insufficient to establish absconding. It went on to hold that the trial court’s decision was not only an abuse of discretion but also was an error that deprived the court of jurisdiction to revoke the defendant’s probation after his probationary term expired.

The defendant was on supervised probation for a conviction of possession with intent to sell or deliver marijuana, and the state alleged that he violated his probation by testing positive for cocaine and committing a new criminal offense. At a hearing held on the violation, the defendant’s probation officer testified about the positive drug screen, and a police officer testified about the alleged new criminal activity. Officers used a confidential informant to conduct two controlled buys of a white powdery substance from the defendant, and then obtained a search warrant for his home where they discovered cash and additional drugs, resulting in new criminal charges against the defendant. The informant did not testify at the probation hearing. At the conclusion of the hearing, the trial court revoked the defendant’s probation and the defendant appealed.

The trial court’s oral pronouncement only indicated that the revocation was based on the commission of a new criminal offense, but the written findings indicated that the revocation was based on both allegations, so per case precedent the written order was deemed controlling on appeal. The appellate court agreed that pursuant to the Justice Reinvestment Act, the defendant’s probation could not be revoked for using cocaine; instead, the trial court was only authorized to modify his conditions of probation or impose a 90-day CRV, so the order of revocation based on this allegation was reversed. But the state presented sufficient evidence at the hearing that the defendant also committed a new criminal offense by possessing and selling crack cocaine, which would support revoking the defendant’s probation. 

However, rather than affirming the trial court’s order, the appellate court remanded the matter to determine whether the trial court properly exercised its discretion under G.S. 15A-1345(e), which provides that “the probationer may […] confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.” (Since this was a probation revocation hearing, only the statutory confrontation right was at issue, rather than the confrontation rights under the Sixth Amendment.) The confidential informant did not testify at the hearing, and the defense objected to the admission of her hearsay statements. The trial court overruled those objections based on “the nature of these proceedings,” and the appellate court held that it was unclear whether that ruling reflected an exercise of discretion and finding of good cause. The court distinguished this case from State v. Jones, 269 N.C. App. 440 (2020), where it had previously held that a failure to find good cause was not reversible error, because in Jones the defendant did not challenge the testimony on this basis and did not request findings of good cause as to why confrontation should not be allowed, so no findings were required.

Judge Tyson concurred in part, finding that the defendant waived his statutory confrontation objection and failed to meet his burden of showing prejudice, and the trial court did not err in revoking the defendant’s probation.

(1) The defendant was convicted of drug offenses in Gaston County on July 5, 2017 and was sentenced to 24 months of supervised probation. After reporting for his intake visit with a Gaston County probation officer, the defendant avoided probation officers for several months. Probation officers attempted on six separate occasions to verify defendant’s residence at the address he provided. He was not present for any of these visits. On two of the visits, individuals who knew the defendant told the officers that the defendant no longer lived at the residence or that he planned to move from the residence.

Despite being on notice to maintain regular contact with probation officers, no probation officer met with the defendant in person following his initial intake visit before the first violation report alleging absconding was filed on September 14, 2017. On the few occasions that a probation officer could reach the defendant by phone, the officer notified the defendant that a home visit was scheduled. The defendant was absent from the home on those occasions and failed to apprise his probation officer of his whereabouts.

Even after the defendant was released from custody after being arrested for alleged probation violations relating to absconding, he failed to report to his probation officer within 24 hours as instructed. After defendant’s case was transferred from Gaston County to Lincoln County in March 2018, officers continued to have difficulty contacting him. And he failed to notify officers upon getting evicted from his listed residence.

An addendum was filed to the defendant’s probation violation report on May 31, 2018 alleging an additional incident of absconding. The trial court found that the defendant violated his probation by absconding and ordered his probation revoked. The defendant appealed, arguing that the trial court erred in revoking his probation based on its finding that he willfully absconded from supervision.

The Court of Appeals found the State’s allegations and supporting evidence––reflecting defendant’s continuous, willful pattern of avoiding supervision and making his whereabouts unknown––sufficient to support the trial court’s exercise of discretion in revoking defendant’s probation for absconding.

(2) The trial court checked the box on the judgment form stating that the defendant waived a violation hearing and admitted the violations. This was inaccurate, as the record reflects that the defendant was present for his probation hearing and testified as a witness. The Court of Appeals determined that the trial court committed a clerical error when it checked the box indicating otherwise and remanded the case to allow the trial court to correct the error.

(1) The defendant, who had been on probation in six cases, argued on appeal that the trial court erred by revoking his probation for absconding. A divided Court of Appeals disagreed, concluding that the trial court did not abuse its discretion by revoking when the State presented competent evidence to support its finding that the defendant absconded. At the violation hearing, the probation officer testified that, as part of his investigation, he went to the defendant’s last known residence twice, called the defendant’s references, called the local hospital, and checked legal databases to see if the defendant was in custody. During the investigation the defendant also missed two additional appointments and did not contact the officer, leaving the officer unaware of the defendant’s whereabouts for at least nine days. The appellate court distinguished State v. Williams, 243 N.C. App. 198 (2015), in which it had overturned an absconding revocation for a defendant who, despite missing meetings with his officer, remained in contact by telephone. The court also articulated a mens rea distinction between nonrevocable failure-to-report violations and revocable absconding violations, saying that failures to report can amount to absconding if they are willful and the State proves to the trial judge’s reasonable satisfaction that the defendant was avoiding supervision or making his whereabouts unknown. Here, the court cited evidence of the defendant’s failure to return a call from the officer and the thoroughness of the officer’s investigation as sufficient evidence that the defendant was willfully making himself unavailable for supervision and making his whereabouts unknown within the meaning of the absconding condition. Moreover, the defendant admitted to the absconding, and thus failed to meet his burden of establishing that the violation was not willful. (2) The defendant also argued that the trial court erred by ordering the six activated sentences to run consecutively, to the extent that it mistakenly believed that it lacked the authority to allow them to run concurrently. The Court of Appeals disagreed, concluding that the revoking judge’s remark that he was not going to modify the sentencing judge’s decision indicated that the judge acted in his discretion, not under a misapprehension of the law. The court remanded the matter for correction of a clerical error. A judge dissenting in part would have concluded in light of prior appellate cases that the evidence did not support a finding of willful absconding.

The Court of Appeals upheld the trial judge’s revocation of the defendant’s probation for absconding on the following facts: The defendant was released from custody on December 21, 2018, following a plea of guilty to assault with a deadly weapon on a government official. He failed to report to his probation officer by January 11, 2019, when the probation violation report was filed. The probation officer tried to contact the defendant at his sister’s house, which the defendant had given to the probation officer as his address. When the probation officer called the listed phone number, his sister said she had not had contact with him in some time and didn’t know he was out of custody; and when the officer went to the address provided by the defendant, the homeowner said he didn’t know the defendant. On this evidence, the Court concluded that the trial judge did not abuse his discretion in finding that the defendant had absconded. The Court rejected the defendant’s argument that the trial judge may have revoked his probation based on other alleged violations that could not be grounds for revocation, such as failing to attend community support meetings. The Court found that the trial judge specifically revoked the defendant’s probation for absconding.

The trial court did not abuse its discretion when it revoked the defendant’s probation. The State presented sufficient evidence that the defendant willfully absconded by failing to report within 72 hours of his release from custody and thereafter avoiding supervision and making his whereabouts unknown from August 20 through the filing of a violation report on September 22. At the hearing, the defendant admitted that he knew he had to report to the probation office within 72 hours of release, that his mother had informed him that a probation officer had stopped by their home, and that his mother had given him a business card with the probation officer’s information on it. Moreover, the trial court found the defendant’s testimony that he did in fact report to the probation office as instructed to be lacking in credibility. The court rejected the defendant’s argument that the trial court abused its discretion because missing scheduled appointments cannot constitute absconding. The court noted that here the defendant did not simply miss an appointment or phone call with his probation officer. After the defendant was taken into custody for a violation based on absconding, the defendant knowingly failed to notify his probation officer of his release from custody. Thereafter, he actively avoided supervision each day after the initial 72-hour time period through and until September 22, 2017. This was a willful course of conduct by the defendant that thwarted supervision. His actions were a persistent avoidance of supervision and a continual effort to make his whereabouts unknown. Thus, the trial court did not abuse its discretion by finding that the defendant had absconded.

Finding that the trial court properly revoked the defendant’s probation, the court affirmed but remanded for correction of a clerical error. While on probation for another offense, the defendant was convicted of possession of drug paraphernalia. A probation officer filed a violation report noting three violations: arrears for $800 in court indebtedness, $720 in probation supervision fees, and the new conviction. The trial court revoked the defendant’s probation and he appealed. On appeal the defendant argued that the trial court abused its discretion and acted under a misapprehension of the law when it revoked probation based on the three alleged violations when only one provided a statutory basis for revocation. Because the defendant committed a criminal offense while on probation, the trial court properly revoked probation on that ground. The court acknowledged the trial court could not have revoked based on the other two violations and, as noted by the defendant, the trial court improperly checked the box on the form indicating that each violation is in and of itself a sufficient basis for revocation. However, other evidence in the record indicated that the trial court recognized that only one of the violations was sufficient to revoke probation. The court thus remanded for correction of the clerical error.

The trial court abused its discretion by revoking the defendant’s probation, where the evidence was insufficient to establish absconding. The probation officer testified that the defendant absconded a week after a 26 October 2016 meeting by failing attend meetings scheduled for 28 October and 2 November and by failing to contact the officer thereafter even though the officer attempted to call and visit the defendant multiple times and left messages for the defendant with the defendant’s parents. However, the officer could not support her testimony with records and did not recall the number of times and dates on which these contacts were made. The defendant testified that her cell phone was missing, that she was not at home when the officer visited, and that she received no messages that the officer was trying to reach her. She testified that since she had seen the officer at the end of October, it did not occur to her to contact the officer. Although the officer testified to attempts to call and visit the defendant and to having left messages with the defendant’s parents for the defendant, there was no evidence that any message was given to the defendant or that the defendant knew the officer was trying to reach her. Although there was competent evidence that the officer attempted to contact the defendant, there was insufficient evidence that the defendant willfully refused to make herself available for supervision.

The trial court did not have jurisdiction to revoke the defendant’s probation. Four days before his 30 months of probation was to expire, the trial court entered an order extending the defendant’s probation for 12 months with the defendant’s consent. The purpose of the extension was to allow the defendant time “to complete Substance Abuse Treatment.” During the 12-month extension the defendant violated probation and after a hearing the trial court revoked probation. The defendant appealed. The court began by rejecting the State’s argument that the defendant’s appeal was moot because he had already served the entire sentence assigned for the revocation. Turning to the merits, the court held that the trial court lacked jurisdiction to revoke the defendant’s probation because his probationary period was unlawfully extended. In order to extend an individual’s probationary period, the trial court must have statutory authority to do so. No statue authorizes a trial court to extend the defendant’s probation to allow him time to complete a substance abuse program. The court rejected the State’s argument that because the statutes allow an extension of probation for completion of medical or psychiatric treatment ordered as a condition of probation, the trial court’s extension was proper. It reasoned, it part, that the General Assembly did not intend for a probation condition to complete “substance-abuse treatment” to be synonymous with, or a subset of, a probation condition to complete “medical or psychiatric treatment.”

The trial court did not err by revoking the defendant’s probation based on its finding that he willfully absconded from supervision. Reviewing the facts of the case, the court rejected the defendant’s argument that there was insufficient evidence that he willfully absconded from supervision.

The court rejected the defendant’s argument that the trial court erred by revoking her probation after its expiration because it did not make adequate findings of fact. Specifically, the defendant argued that the trial court erred by failing to make any written or oral findings of good cause to revoke her probation. The court noted that the statute at issue, G.S. 15A-1344(f), does not require that the trial court make any specific findings and that, here, the record indicates that the trial court found good cause to revoke.

The trial court properly revoked the defendant’s probation, where the defendant committed a new crime while on probation.

The trial court did not err by revoking the defendant’s probation where the evidence showed that he willfully absconded. The defendant moved from his residence, without notifying or obtaining prior permission from his probation officer, willfully avoided supervision for multiple months, and failed to make his whereabouts known to his probation officer at any time thereafter. 

(1) The trial court erred by revoking the defendant’s probation where the State failed to prove violations of the absconding provision in G.S. 15A-1343(b)(3a). The trial court found that the defendant “absconded” when he told the probation officer he would not report to the probation office and then failed to report as scheduled on the following day. This conduct does not rise to the level of absconding supervision; the defendant’s whereabouts were never unknown to the probation officer. (2) The other alleged violations could not support a probation revocation, where those violations were “unapproved leaves” from the defendant’s house arrest and “are all violations of electronic house arrest.” This conduct was neither a new crime nor absconding. The court noted that the defendant did not make his whereabouts unknown to the probation officer, who was able to monitor the defendant’s whereabouts via the defendant’s electronic monitoring device. 

Under Justice Reinvestment Act (JRA) changes, the trial court erred by revoking the defendant’s probation. After reviewing the requirements of the JRA, the court noted that the trial judge did not check the box on the judgment form indicating that it had made a finding that the defendant violated the statutory absconding provision, G.S. 15A–1343(b)(3a). 

Applying the Justice Reinvestment Act (JRA), the court held that the trial court improperly revoked the defendant’s probation. The defendant violated the condition of probation under G.S. 15A-1343(b)(2) that she not leave the jurisdiction without permission and monetary conditions under G.S. 15A-1343(b). She did not commit a new crime, was not subject to the new absconding condition codified by the JRA in G.S. 15A-1343(b)(3a), and had served no prior CRVs under G.S. 15A 1344(d2). Thus, under the JRA, her probation could not be revoked. 

(1) The trial court did not err by activating the defendant’s sentence on the basis that the defendant absconded by willfully avoiding supervision. The defendant’s probation required that he remain in the jurisdiction and report as directed to the probation officer. The violation report alleged violations of both of these conditions. Despite the trial court’s use of the term “abscond,” it was clear that the trial court revoked the defendant’s probation because he violated the two listed conditions. (2) The trial court did not abuse its discretion in finding a violation and revoking his probation where the evidence supported its determination.

The trial court erred by revoking the defendant’s probation. The defendant pleaded guilty and was sentenced to 120 days confinement suspended for one year of supervised probation. The trial court ordered the defendant to perform 48 hours of community service, although no date for completion of the community service was noted on the judgment, and to pay $1,385 in costs, fines, and fees, as well as the probation supervision fee. The schedule required for the defendant’s payments and community service was to be established by the probation officer. The probation officer filed a violation report alleging that the defendant had willfully violated his probation by failing to complete any of his community service, being $700 in arrears of his original balance, and being in arrears of his supervision fee. The defendant was found to have willfully violated and was revoked. The court concluded that absent any evidence of a required payment schedule or schedule for community service, the evidence was insufficient to support a finding of willful violation.

The trial court did not abuse its discretion by revoking the defendant’s probation under the Justice Reinvestment Act when the defendant was convicted of another criminal offense while on probation.

(1) The trial court did not abuse its discretion by revoking the defendant’s probation. The defendant asserted that the revocation was improper because he never received a written statement containing the conditions of his probation, as required by G.S. 15A-1343(c). The court noted that the statute requires written notice. However, citing an unpublished opinion, it noted that a different approach applies when the violation is a failure to initially report for processing, as happened here. In this case the defendant walked away from the probation office before he could be given the written notice. The court concluded that because the trial judge informed the defendant of his obligation to report and the defendant failed to do so, written confirmation was not necessary. (2) The court also rejected the defendant’s argument that he could not have violated probation because he was not assigned a probation officer, reasoning that the defendant was not so assigned because he left in the middle of intake procedure.

The trial court erred by revoking the defendant’s probation on grounds that he willfully violated the condition that he reside at a residence approved by the supervising officer. The defendant was violated on the day he was released from prison, before he even “touched outside.” Prior to his release the defendant, who was a registered sex offender and indigent, had tried unsuccessfully to work with his case worker to secure a residence. At the revocation hearing, the trial judge rejected defense counsel’s plea for a period of 1-2 days for the defendant to secure a residence. The court concluded that the defendant’s violation was not willful and that probation was “revoked because of circumstances beyond his control.” 

The trial court erred by finding that the defendant willfully violated probation by failing to have an approved residence plan. The defendant was placed on supervised probation to begin when he was released from incarceration on separate charges. On the day that the defendant was scheduled to be released, a probation officer filed a violation report. The defendant demonstrated that he was unable to obtain suitable housing before his release from incarceration because of circumstances beyond his control; the trial court abused its discretion by finding otherwise.  

The defendant’s explanation that she was addicted to drugs was not a lawful excuse for violating probation by failing to complete a drug treatment program. 

The trial court erred by failing to make findings of fact that clearly show it considered and evaluated the defendant’s evidence before concluding that the defendant violated his probation by failing to pay the cost of his sexual abuse treatment program. The defendant presented ample evidence of an inability to pay after efforts to secure employment; the probation officer corroborated this evidence and testified that he believed that the defendant would complete the treatment program if he could pay for it. 

(1) The trial court abused its discretion by revoking the defendant’s probation when the State failed to present evidence that he violated the condition of probation that he “not reside in a household with a minor child.” Although the trial court interpreted the term “reside” to mean that the defendant could not have children anywhere around him, State v. Strickland, 169 N.C. App. 193 (2005), construed that term much more narrowly, establishing that the condition is not violated simply when a defendant sees or visits with a child. Because the evidence showed only that the defendant was visiting with his fiancée’s child, it was insufficient to establish a violation. (2) The trial court improperly revoked the defendant’s probation for violating conditions that he not (a) socialize or communicate with minors unless accompanied by an approved adult; or (b) be alone with a minor without approval. The conditions were not included in the written judgments and there was no evidence that the defendant ever was provided written notice of them. As such, they were not valid conditions of probation.

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