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 court rejected the defendant’s argument that the trial court’s judgment finding him guilty of Class D discharging a firearm into an occupied dwelling is inconsistent with the jury verdict. Specifically, the defendant argued that the jury only found him guilty of the Class E version of the offense. The court found that the record showed otherwise, notwithstanding the fact that the trial court instructed the jury with respect to shooting into a specified “house.”
Ordering a new trial because of a defective verdict form. On the verdict form, the jury answered “Yes” to each of these questions: “Did the defendant possess cocaine, a controlled substance, with the intent to sell or deliver it? Did the defendant sell cocaine, a controlled substance, to Officer Eugene Ramos?” Because the verdict form did not include the words “guilty” or “not guilty,” the jury did not fulfill its constitutional responsibility to make an actual finding of defendant’s guilt. The verdict form only required the jury to make factual findings on the essential elements of the crimes; it thus was a “true special verdict” and could not support the judgment.
The Supreme Court reversed a Louisiana state court and held that the Sixth Amendment gives defendants a right to a unanimous jury verdict that applies to the states. The defendant was convicted of murder in 2016 based on a 10–2 jury verdict, which was a sufficient basis for conviction under then-existing Louisiana state law. (Oregon is the only other state that allows convictions based on nonunanimous verdicts.) Justice Gorsuch wrote a majority opinion joined in full by Justices Ginsburg and Breyer and in part by Justices Sotomayor and Kavanaugh, concluding based on the historical context in which the Sixth Amendment was adopted that the entitlement to an impartial jury included the right, applicable in both the federal courts and the state courts, to a unanimous jury to be convicted. The Court disclaimed the precedential value of Apodaca v. Oregon, 406 U.S. 404 (1972), a case in which a four-Justice plurality plus a lone Justice resolving the case on other grounds upheld an Oregon conviction that was based on a nonunanimous verdict. Justice Sotomayor wrote a concurring opinion saying that Apodaca must be overruled, not only because of its dubious reasoning, but also because of the racially discriminatory origins of the Louisiana and Oregon laws the case upheld. Justice Kavanaugh likewise wrote separately to concur and to share more extended thoughts on the application of stare decisis in this case. Justice Thomas concurred in the judgment, noting his agreement that the requirement for a unanimous jury verdict applies to the states, but under his own view that it applies through the Fourteenth Amendment Privileges or Immunities Clause, not the Due Process Clause. Justice Alito wrote a dissent, joined by Chief Justice Roberts and joined in part by Justice Kagan, arguing that the lower court should have been affirmed under Apodaca.
The defendant was tried for possession of a firearm by a felon, first-degree kidnapping, burglary, DVPO violations with a deadly weapon, first-degree rape and first-degree forcible sexual offense arising from the violent kidnapping and rape of his former girlfriend.
(1) The morning before the sixth day of the trial, the defendant jumped feet first from a second-floor mezzanine in the jail, injuring his left leg and ribs. The defendant was taken to the hospital for surgery. After a hearing, the trial court determined that the defendant’s absence from trial was voluntary and announced that the trial would proceed without him. The trial court considered and denied defense counsel’s motion that the court inquire into defendant’s capacity to proceed. The trial continued, and the defendant was convicted. He appealed, arguing that the trial court erred by denying defense counsel’s motion for an inquiry into capacity.
The Court of Appeals rejected the defendant’s argument. Nothing in the defendant’s prior record, conduct or actions provided the trial court with notice or evidence that the defendant may have been incompetent. For that reason, the court did not err by declining to conduct a more intensive hearing on the defendant’s capacity. The trial court had the opportunity to personally observe the defendant’s conduct and demeanor, heard arguments from the State and defense counsel, and took evidence concerning the defendant’s competency, including watching recorded footage of the defendant jumping 16 feet from the second-floor mezzanine.
(2) The trial court instructed the jury that it could find the defendant guilty of a first-degree sexual offense, if, in addition to the other required elements, it found the defendant had engaged in fellatio or anal intercourse. The defendant argued that this instruction deprived him of a unanimous jury verdict. The Court of Appeals rejected that argument, citing precedent that a jury verdict does not need to make a specific finding regarding precisely which sexual acts proscribed by G.S. 14-27.26 the defendant committed.
The court reversed a unanimous, unpublished decision of the Court of Appeals in this first-degree sexual offense case, holding that the trial court did not err by giving a disjunctive jury instruction. One of the factors that can elevate a second-degree sexual offense to a first-degree sexual offense is that the defendant was aided and abetted by one or more other persons; another is that the defendant used or displayed a dangerous or deadly weapon. Here, the trial court gave a disjunctive instruction, informing the jury that it could convict the defendant of the first-degree offense if it found that he was aided and abetted by another or that he used or displayed a dangerous or deadly weapon. Where, as here, the trial court instructs the jury disjunctively as to alternative acts which establish an element of the offense, the requirement of unanimity is satisfied. However, when a disjunctive instruction is used, the evidence must be sufficient under both theories. In this case it was undisputed that the evidence was sufficient under the dangerous or deadly weapon prong. The defendant contested the sufficiency of the evidence under the aiding and abetting prong. The court found the evidence sufficient, holding that the Court of Appeals erred in concluding that actual or constructive presence is required for aiding and abetting. As the Court stated in State v. Bond, 345 N.C. 1 (1996), actual or constructive presence is no longer required to prove aiding and abetting. Applying that law, the court held that although the defendant’s accomplices left the room before the defendant committed the sexual act, there was sufficient evidence for the jury to conclude that the others aided and abetted him. Among other things, two of the accomplices taped the hands of the residents who were present; three of them worked together to separate the sexual assault victim from the rest of the group; one of the men grabbed her and ordered her into a bedroom when she tried to sit in the bathroom; and in the bedroom the defendant and an accomplice groped and fondled the victim and removed her clothes. Most of these acts were done by the defendant and others. The act of taping her mouth shut, taping her hands behind her back, moving her into the bedroom, removing her clothing and inappropriately touching her equate to encouragement, instigation and aid all of which “readily meet the standards of . . . aiding and abetting.” The court rejected the defendant’s argument that the evidence was insufficient because he was the only person in the room when the sex act occurred.
On discretionary review from a unanimous unpublished Court of Appeals decision, the court reversed in part, concluding that the trial court’s jury instructions regarding first-degree kidnapping did not violate the defendant’s constitutional right to be convicted by the unanimous verdict. The trial court instructed the jury, in part, that to convict the defendant it was required to find that he removed the victim for the purpose of facilitating commission of or flight after committing a specified felony assault. The defendant was convicted and appealed arguing that the disjunctive instruction violated his right to a unanimous verdict. Citing its decision in State v. Bell, 359 N.C. 1, 29-30, the Supreme Court disagreed, stating: “our case law has long embraced a distinction between unconstitutionally vague instructions that render unclear the offense for which the defendant is being convicted and instructions which instead permissibly state that more than one specific act can establish an element of a criminal offense.” It also found that, contrary to the opinion below, the evidence was sufficient to support a jury finding that the defendant had kidnapped the victim in order to facilitate an assault on the victim.
The trial court violated the defendant’s constitutional right to a unanimous verdict by instructing the jury foreperson during recorded and unrecorded bench conferences, out of the presence of the other jurors. The error was preserved for appeal notwithstanding the defendant’s failure to object at trial.
In this Wake County case, defendant appealed his convictions for first-degree murder and assault with a deadly weapon, arguing his right to a properly constituted jury was violated when the trial court substituted an alternate juror after the jury began deliberations. The Court of Appeals agreed, vacating his convictions and remanding for a new trial.
Defendant came to trial in August of 2018 for a shooting at a Raleigh motel. After jury deliberations began, a juror informed the trial court that he had a doctor’s appointment and could not return the next day. The trial court replaced the juror with an alternate juror and ordered the jury to restart deliberations; defendant was not present in the courtroom when the substitution was made. Defendant subsequently appealed.
Turning to defendant’s arguments, the Court of Appeals concluded that the trial court’s substitution of an alternate juror was error. The court referenced State v. Bunning, 346 N.C. 253 (1997), and explained that the N.C. Supreme Court has interpreted the unanimous verdict requirement of the North Carolina Constitution in Article I, § 24 “to preclude juror substitution during a trial after the commencement of jury deliberations.” Slip Op. at 3. Because the substitution meant that thirteen jurors participated in the deliberations for defendant’s convictions, “[d]efendant’s constitutional right to a properly constituted jury of twelve was violated when the trial court substituted an original juror with an alternate juror after the commencement of jury deliberations.” Id. at 4. The court reached this conclusion despite the text of G.S. 15A-1215(a), noting that “where a statute conflicts with our state constitution, we must follow our state constitution.” Id. at 5.
In this Durham County case, defendant appealed his convictions for two first-degree forcible sexual offense charges and five other charges related to the rape and assault of a female, arguing (1) plain error by instructing the jury on only one count of first-degree forcible sexual offense, and (2) clerical errors in the judgment requiring remand. The Court of Appeals majority agreed with defendant, remanding for a new trial on the two forcible sexual offense charges and correction of the clerical errors.
In September of 2019, defendant appeared at the victim’s home heavily intoxicated and armed with a gun. After yelling for the victim to let him inside, defendant accused the victim of sleeping with someone else while brandishing his gun, and proceeded to forcibly rape and sexually assault her. Defendant was indicted on seven charges, including first-degree forcible rape, two counts of first-degree forcible sexual offense, and four other associated charges. When instructing the jury, the trial court read the elements for forcible sexual offense, but did not read separate instructions for each count charged, or notify the jury that defendant was charged with two separate counts of the offense. While the verdict sheets listed two counts, “the two counts were not separated by specific instances of sexual act[,]” and were instead listed as count two and count three. Slip Op. at 3. Defendant did not object to the jury instructions, and he was ultimately convicted of all seven charges against him.
Taking up (1), the Court of Appeals noted that the applicable standard of review was plain error, and looked to State v. Bates, 179 N.C. App. 628 (2006), for relevant considerations. Unlike the circumstances in Bates, the jury instructions and verdict sheets in the current case did not differentiate the charges by specific sexual act associated with each charge. This called into question the unanimity of the jury, as there was no way to determine if each juror agreed on the same sexual acts supporting the two charges in question. The court concluded “because it was not ‘possible to match the jury’s verdict of guilty with specific incidents presented in evidence’ without a special verdict sheet[,]” the single instruction on forcible sexual offense was plain error, justifying a new trial. Id. at 10, quoting Bates at 634.
Moving to (2) the court noted that the State had no objection to remand for correcting the clerical errors. The court identified three errors, (i) defendant’s prior record level being identified as V instead of IV, (ii) the marking of box 12 of the sentencing sheet for committing an offense while on pretrial release, and (iii) not marking the box on the aggravating factors sheet noting that defendant entered a plea to the aggravating factor. The court remanded for correction of these errors.
Judge Thompson dissented in part by separate opinion, and would have found no error by the trial court when failing to provide a second instruction on forcible sexual offense. Id. at 14.
In this Buncombe County case, defendant appealed his convictions for second-degree forcible sexual offense, intimidating or interfering with a witness, and habitual felon status, arguing (1) the trial court lacked jurisdiction over the interfering with a witness charge, (2) error in denying his motion to dismiss the interfering charge due to insufficient evidence, and (3) error in the jury instruction related to the interfering charge. The Court of Appeals found the trial court did have sufficient jurisdiction and committed no error.
The charges against defendant arose from a 2019 incident where he forced himself upon a woman after a night of drinking and smoking marijuana. While defendant was in the Buncombe County Jail prior to trial, he made a call to the victim using a fake name. When the victim answered, defendant told her “[i]f you’re still in Asheville, I’m gonna try and send you some money,” and “I got $1,000 for ya.” Slip Op. at 4-5. The victim informed law enforcement of the call, leading to the additional charge of intimidating or interfering with a witness. At trial, the victim testified about the phone call and the recording was published to the jury. Defense counsel’s motions to dismiss the charges were denied by the trial court.
The Court of Appeals first explained the basis of defendant’s argument (1), that the trial court lacked jurisdiction because the alleged conduct from the indictment, bribing the witness/victim not to testify, was not criminalized by G.S. 14-226. Defendant argued that bribery was not an act to intimidate the witness under the language of the statute, and that only threatening or menacing a witness represented a violation of the statute. The court rejected this interpretation, explaining that G.S. 14-226 “prohibits intimidation of witnesses or attempts to deter or interfere with their testimony ‘by threats, menaces or in any other manner,’” and that this language “given its plain and ordinary meaning, straightforwardly expands the scope of prohibited conduct beyond ‘threats’ and ‘menaces’ to include any other act that intimidates a witness or attempts to deter or interfere with their testimony.” Id. at 9-10.
The court likewise rejected (2), defendant’s motion to dismiss argument. Here the court explained that direct evidence was not required to prove intent, and that circumstantial evidence was sufficient to support a finding that defendant intended to dissuade the witness from testifying. The court held that “the circumstantial evidence that the State did introduce in this case supports a reasonable inference that [defendant] acted with just that intent given the context in which he made the offer.” Id. at 13.
Taking up (3), defendant’s objections to the jury instructions, the court explained that defendant objected to four elements of the instructions. First, defendant objected that the instruction did not require the jury to find that defendant threatened the witness/victim; the court explained this was precluded by its holding discuss above on bribery in G.S. 14-226. Second, defendant argued that the instruction did not convey the required intent to the jury; the court rejected this argument as the instruction was based on a pattern jury instruction previously held to be consistent with the statute. Third, defendant argued that the structure of the instruction allowed the jury to convict him for simply offering the witness/victim $1,000, which is not illegal conduct; again the court pointed to the context and circumstances around the conduct and bribery to dissuade the testimony.
Defendant’s final argument regarding the jury instruction was that the disjunctive structure of the instruction allowed a jury verdict that was not unanimous, as he asserted that various jury members may have found him guilty under separate parts of the instruction. The court explained that some disjunctive instructions are unconstitutional, particularly where a jury can choose from one of two underlying acts to find a defendant guilty of a crime such as in State v. Lyons, 330 N.C. 298 (1991). Slip Op. at 18. However, the crime of intimidating or interfering with a witness does not consist of a list of specific criminal acts, and the court pointed to the example of State v. Hartness, 326 N.C. 561 (1990), where indecent liberties was identified as a similar statute where any of several disjunctive acts can constitute the elements of the offense for purposes of a jury’s guilty verdict. Slip Op. at 19. As there was no danger of jurors convicting defendant of separate offenses under G.S. 14-226, the court found no issue with the disjunctive nature of the jury instruction in the current case. The court further noted that the evidence and verdict rested solely on the attempt to bribe the witness/victim, and did not provide other possible behaviors that could create ambiguity.
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of disseminating obscene material to a minor. On appeal the defendant argued that there was insufficient evidence that the material was obscene. At trial the victim testified that the defendant showed her movies involving “a guy and a girl” having sex naked. The State introduced a photograph of three pornographic DVDs found in a search of the premises and the victim’s mother testified that the defendant “had so many” pornographic DVDs. According to the victim’s mother, when the allegations came to light, the defendant disposed of some of his pornography collection and put the rest in a shed. The victim’s mother later found that material and gave it to detectives. At trial various titles from the defendant’s pornography collection were read to the jury. This evidence was sufficient to allow a reasonable jury to infer that the material the defendant showed to the victim was of the same nature of that contained in the defendant’s pornography collection and therefore was obscene material under contemporary community standards.
(2) The trial court’s instructions with respect to multiple counts of indecent liberties with a child, first-degree rape of a child, and sex offense in a parental role did not deprive the defendant of his constitutional right to a unanimous jury verdict. The trial court provided a single instruction for each offense, without describing the details of the conduct underlying each charge. It did however instruct the jury that it must consider each count individually and the verdict sheets identified each count by victim and included a brief description of the particular conduct alleged by reference to the location where it occurred. Additionally jurors were instructed that they all must agree to the verdict, that they could not reach a verdict by majority vote, and that they should indicate on the verdict forms when they agreed upon unanimous verdicts as to each charge. Applying the test from State v. Lawrence, 360 N.C. 368 (2006), the court rejected the defendant’s argument that the jury instructions deprived him of his right to a unanimous jury verdict. The court went on to note that “the instant case is not one in which the risk of a non-unanimous verdict would have arisen by virtue of the trial court’s instructions.” The crimes at issue do not list as elements discrete criminal activities in the disjunctive. Instead, the indecent liberties statute simply forbids any immoral, improper indecent liberties with a child under 13 if taken for the purpose of arousing or gratifying sexual desire. The particular act found to be performed is immaterial to the unanimity inquiry. Thus, even if some jurors were to find that the defendant engaged in one kind of sexual misconduct while others found that he engaged in another, the jury as a whole would still have unanimously found the required sexual misconduct. Here, the defendant was charged with five counts of indecent liberties against the victim. The victim testified to at least five incidents that would have constituted indecent liberties; in fact she testified to 7 such incidents. Similarly, the jury convicted the defendant of four counts of statutory rape and the victim testified to at least four specific incidents that constituted statutory rape and occurred in each of the four locations indicated on the verdict sheet. Therefore there was no danger that the rape verdicts were not unanimous.
(3) The trial court did not err by declining to reopen the case after the defendant reconsidered his decision not to testify. After the close of the State’s evidence, the trial court addressed the defendant regarding his decision whether or not to testify. The defendant informed the trial court that he would not testify. The defense did not present any evidence and rested, and the jury was excused. After the charge conference defense counsel informed the trial court that the defendant had reconsidered his decision and now wished to testify. The trial court declined to reopen the case and bring the jury back in order to allow the defendant to testify. The court found no abuse of discretion in the trial court’s decision to decline to reopen the case to allow the defendant to testify.
In this case where the defendant was charged with three counts of first-degree sex offense with a child and three counts of sex offense by a substitute parent, the trial court’s jury instructions did not allow for a non-unanimous verdict. The indictments charged that the offenses all occurred within the same date range and did not provide details distinguishing the incidents. The evidence at trial showed multiple sexual interactions between the defendant and the victim. In its instructions to the jury, the trial court differentiated between the offenses based on where they were alleged to have occurred: inside the house, outside the house but on the property, and at the end of a dirt road near the house. The court rejected the defendant’s argument that the trial court failed to sufficiently identify the incidents, thereby depriving him of his right to a unanimous jury verdict. Specifically, he asserted that the evidence presented at trial showed multiple, distinct incidents of sexual assault occurring inside the house and multiple, distinct instances of sexual assault occurring outside the house but on the property. The court rejected the defendant’s arguments, noting that prior case law has held no violation of the unanimity rule occurs in sexual assault cases even if the jurors considered a greater number of incidents than the number of counts charged and if the indictments lacked specific details to identify the specific incidents. It concluded: “Jury unanimity was shown as there was evidence of fellatio inside the house both at the computer table and in the bathroom, or that there was evidence of fellatio outside the house but on the property both inside a car and in the driveway.”
In a failure to register (change of address) case, the court rejected the defendant’s argument that the trial court violated his right to a unanimous verdict because it was not possible to determine the theory upon which the jury convicted. The trial court instructed the jury, in part, that the State must prove “that the defendant willfully changed his address and failed to provide written notice of his new address in person at the sheriff’s office not later than three days after the change of address to the sheriff’s office in the county with which he had last registered.” The defendant argued that, based on this instruction, it was impossible to determine whether the jury based his conviction on his failure to register upon leaving the county jail, failure to register upon changing his address, registering at an invalid address, or not actually living at the address he had registered. The court concluded: “because any of these alternative acts satisfies the . . . jury instruction — that Defendant changed his address and failed to notify the sheriff within the requisite time period — the requirement of jury unanimity was satisfied.”
In a case involving five counts of indecent liberties, no unanimity issue arose where the trial court framed the jury instructions in terms of the statutory requirements and referenced the indictments, each of which specified a different, non-overlapping time frame. The trial court’s instructions distinguished among the five charges, directed the jurors to find the defendant guilty on each count only if they found that he committed the requisite acts within the designated time period, and each verdict sheet was paired with a particular indictment.
In a case in which the defendant was indicted on 24 counts of indecent liberties, 6 counts of first-degree statutory sex offense, and 6 counts of second-degree sex offense, the court cited State v. Lawrence, 360 N.C. 368 (2006), and rejected the defendant’s argument that because the indictments did not distinguish the separate acts, there was a possibility that the jury verdicts were not unanimous as to all of the convictions.
The defendant’s right to a unanimous verdict was violated in a kidnapping case where the trial judge instructed on the theories of restraint, confinement and removal but no evidence supported a theory of removal.
The trial court did err by failing to ex mero motu investigate the competency of a juror after the juror sent two notes to the trial court during deliberations. After the juror sent a note saying that the juror could not convict on circumstantial evidence alone, the trial judge re-instructed the whole jury on circumstantial evidence and reasonable doubt. After resuming deliberations, the juror sent another note saying that the juror could not apply the law as instructed and asked to be removed. The trial judge responded by informing the jury that the law prohibits replacing a juror once deliberations have begun, sending the jury to lunch, and after lunch, giving the jury an Allen charge. The court found no abuse of discretion and noted that if the judge had questioned the juror, the trial judge would have been in the position of instructing an individual juror in violation of the defendant’s right to a unanimous verdict.
Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the “no-impeachment rule” give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee. A Colorado jury convicted the defendant of harassment and unlawful sexual contact. Following the discharge of the jury, two jurors told defense counsel that, during deliberations, Juror H.C. had expressed anti-Hispanic bias toward the defendant and the defendant’s alibi witness. Counsel obtained affidavits from the two jurors describing a number of biased statements by H.C. The trial court acknowledged H.C.’s apparent bias but denied the defendant’s motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying as to statements made during deliberations in a proceeding inquiring into the validity of the verdict. The state appellate courts affirmed. The U.S. Supreme Court reversed. The no-impeachment rule evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. As the Court noted, this “case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” The affidavits by the two jurors in the case described a number of biased statements made by Juror H.C. H.C. told the other jurors that he “believed the defendant was guilty because, in [H.C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” H.C. also stated his belief that Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “I think he did it because he’s Mexican and Mexican men take whatever they want.” H.C. further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” And H.C. said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “an illegal.” The Court noted that with respect to this last comment, the witness testified during trial that he was a legal resident of the United States. Noting that “It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons,” the Court held that the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt. The Court went on to elaborate that
Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.
Because the issue was not presented, the Court declined to address what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial bias. It likewise declined to decide the appropriate standard for determining when evidence of racial bias is sufficient to require that the verdict be set aside and a new trial be granted.
The defendant’s MAR claim was without merit where it alleged ineffective assistance because of counsel’s failure to assert that extraneous information had been presented to the jury. The court found that evidence proffered from a juror was not “extraneous prejudicial information” and thus was inadmissible under N.C.R. Evid. 606(b).
Although the trial court erred by admitting in a motion for appropriate relief (MAR) hearing a juror’s testimony about the impact on his deliberations of his conversation with the defendant’s mother during trial, the trial court’s findings supported its determination that there was no reasonable possibility the juror was affected by the extraneous information. After the defendant was found guilty it came to light that his mother, Ms. Elmore, spoke with a juror during trial. The defendant filed a MAR alleging that he did not receive a fair trial based on this contact. At the MAR hearing, the juror admitted that a conversation took place but said that he did not take it into account in arriving at a verdict. The trial court denied the MAR. Although it was error for the trial court to consider the juror’s mental processes regarding the extraneous information, the judge’s unchallenged findings of fact supported its conclusion that there was no reasonable possibility that the juror could have been affected by the information. The court noted that the juror testified that Elmore said only that her son was in trouble and that she was there to support him; she never said what the trouble was, told the juror her son’s name, or specified his charges.
Reversing the court of appeals in 199 N.C. App. 469 (2009) (the trial court committed plain error by failing to instruct the jury that it could convict the defendant of either first-degree murder or accessory after the fact to murder, but not both), the court held that although the trial court erred by failing to give the instruction at issue, no plain error occurred. Citing its recent decision in State v. Mumford, 364 N.C. 394, 398-402 (2010), the court held that because guilty verdicts of first-degree murder and accessory after the fact to that murder would be legally inconsistent and contradictory, a defendant may not be punished for both. The court went on to explain that mutually exclusive offenses may be joined for trial; if substantial evidence supports each offense, both should be submitted to the jury with an instruction that the defendant only may be convicted of one of the offenses, but not both. Having found error, the court went on to conclude that no plain error occurred in light of the overwhelming evidence of guilt, the fact that the jury found the defendant guilty of both offenses, suggesting that it would have convicted him of the more serious offense, had it been required to choose between charges, and that the trial judge arrested judgment on the accessory after the fact conviction.
The court reversed State v. Mumford, 201 N.C. App. 594 (Jan. 5, 2010), and held that because a not guilty verdict under G.S. 20-138.1 (impaired driving) and a guilty verdict under G.S. 20-141.4(a3) (felony serious injury by vehicle) were merely inconsistent, the trial court did not err by accepting the verdict where it was supported with sufficient evidence. To require reversal, the verdicts would have to be both inconsistent and legally contradictory, also referred to as mutually exclusive verdicts (for example, guilty verdicts of embezzlement and obtaining property by false pretenses; the verdicts are mutually exclusive because property cannot be obtained simultaneously pursuant to both lawful and unlawful means). The court overruled State v. Perry, 305 N.C. 225 (1982) (affirming a decision to vacate a sentence for felonious larceny when the jury returned a guilty verdict for felonious larceny but a not guilty verdict of breaking or entering), and State v. Holloway, 265 N.C. 581 (1965) (per curiam) (ordering a new trial when the defendant was found guilty of felonious larceny, but was acquitted of breaking or entering and no evidence was presented at trial to prove the value of the stolen goods), to the extent they were inconsistent with its holding.
In this first-degree rape and second-degree sexual offense case, the trial court did not err in accepting the jury’s verdicts finding the defendant guilty of both offenses despite the fact that first-degree rape requires a finding of infliction of serious personal injury while second-degree rape does not. Responding to the defendant’s argument that if the jury determined that he had inflicted serious injury on the victim it should have convicted him of first-degree forcible sexual offense rather than the lesser included offense of second-degree forcible sexual offense, the court explained that the verdicts were at most inconsistent rather than mutually exclusive and that there was sufficient evidence of each offense. The court went on to reason that it was possible that the jury could have determined that the defendant’s infliction of serious personal injury upon the victim was done to accomplish the forcible rape but not the forcible sex offense.
The defendant was convicted by a jury of first-degree murder under the felony-murder rule. The underlying felony was statutory rape of a child under 13. And yet the jury acquitted the defendant of the charge of statutory rape of a child under 13. The defendant appealed, arguing that statutory rape of a child under 13 could not support a felony-murder conviction because it lacks the necessary intent to support such a charge. He also argued that because the jury acquitted him of the predicate felony, his first-degree murder conviction must be vacated. The Court of Appeals rejected both arguments.
(1) The Court of Appeals determined that while the offense of statutory rape does not require that the defendant intended to commit a sexual act with an underage person, it does require that the defendant intend to commit a sexual act with the victim. The Court held that this intent satisfies the intent required for a crime to serve as the basis for a felony-murder charge. The Court distinguished the sort of intent required to engage in vaginal intercourse with a victim from the culpable negligence required to commit the offense of assault with a deadly weapon inflicting serious injury based on driving a vehicle while impaired, which the court held in State v. Jones, 353 N.C. 159 (2000), was insufficient to support a felony-murder charge. Statutory rape requires that the person be purposely resolved to participate in the conduct that comprises the criminal offense.
(2) The Court of Appeals determined that the jury verdicts finding the defendant (a) guilty of felony murder with statutory rape as the underlying felony but (b) not guilty of statutory rape were inconsistent but were not legally contradictory or, in other words, mutually exclusive. The Court of Appeals reasoned that a jury could rely on the act of committing statutory rape to support a felony murder conviction without also having a conviction of statutory rape. Indeed, the State could proceed to trial on such a felony murder theory without also charging statutory rape.
The Court noted that a defendant is not entitled to relief for a merely inconsistent verdict as it is not clear in such circumstances “‘whose ox has been gored.’” (Slip op. at ¶ 44 (quoting United States v. Powell, 469 U.S. 57, 65 (1984)). The jury may have thought the defendant was not guilty. Equally possibly, it may have reached an inconsistent verdict through mistake, compromise, or lenity. The defendant receives the benefit of the acquittal, but must accept the burden of conviction.
The jury did not return mutually exclusive verdicts when it found the defendant guilty of felony child abuse in violation of G.S. 14-318.4(a3) (the intentional injury version of this offense) and felony child abuse resulting in violation of G.S. 14-318.4(a4) (the willful act or grossly negligent omission version of this offense). The charges arose out of an incident where the victim was severely burned in a bathtub while under the defendant’s care. Citing State v. Mumford, 364 N.C. 394, 400 (2010), the court noted that criminal offenses are mutually exclusive if “guilt of one necessarily excludes guilt of the other.” The defendant argued that the mens rea component of the two offenses makes them mutually exclusive. The court concluded, however, that substantial evidence permitted the jury to find that two separate offenses occurred in succession such that the two charges were not mutually exclusive. Specifically, that the defendant acted in reckless disregard for human life by initially leaving the victim and her brother unattended in a tub of scalding hot water and that after a period of time, the defendant returned to the tub and intentionally held the victim in that water.
Guilty verdicts of trafficking in opium and selling and possessing with intent to sell and deliver a schedule III preparation of an opium derivative are not mutually exclusive. There is no support for the defendant's argument that a schedule III preparation of an opium derivative does not qualify as a "derivative . . . or preparation of opium" for purposes of trafficking.
The trial court did not err by accepting a verdict of guilty of assault with a deadly weapon with intent to kill inflicting serious injury when the jury had acquitted the defendant of attempted first-degree murder. The verdicts were not mutually exclusive under State v. Mumford, 364 N.C. 394 (Oct. 8, 2010).
Guilty verdicts of breaking or entering and discharging a firearm into occupied property were not mutually exclusive. The defendant argued that he could not both be in the building and shooting into the building at the same time. The court rejected this argument noting that the offenses occurred in succession, the defendant would be guilty of the discharging offense regardless of whether or not he was standing on a screened-in porch at the time, and that in any event the defendant was not in the building when he was standing on the porch.
The trial court properly denied the defendant’s motion for judgment notwithstanding the verdict based on inconsistent verdicts. The jury found the defendant guilty of felonious larceny after a breaking or entering and of being a habitual felon but deadlocked on a breaking or entering charge. Citing, State v. Mumford, 364 N.C. 394 (Oct. 8, 2010), the court held that the verdicts were merely inconsistent and not mutually exclusive.
The trial court did not err in accepting seemingly inconsistent verdicts of guilty of misdemeanor assault with a deadly weapon and not guilty of possession of a firearm by a felon.
The court agreed with the court of appeals’ decision in State v. Sargeant, 206 N.C. App. 1 (Aug. 3, 2010), which had held, over a dissent, that the trial court erred by taking a partial verdict. However, because the court concluded that a new trial was warranted on account of a prejudicial ruling on an unrelated evidence issue, it did not analyze whether the verdict error was prejudicial. The court of appeals’ decision described the verdict issue as follows. The defendant was convicted of first-degree murder, first-degree kidnapping, robbery with a dangerous weapon, and burning of personal property. At the end of the first day of deliberations, the jury had not reached a unanimous decision as to each of the charges. The trial court asked the jury to submit verdict sheets for any of the charges for which it had unanimously found the defendant guilty. The trial court then received the jury’s verdicts finding the defendant guilty of first-degree kidnapping, robbery with a dangerous weapon, and burning of personal property, as well as first-degree murder on the bases of both felony murder and lying in wait. The only issue left for the jury to decide was whether the defendant was guilty of first-degree murder on the basis of premeditation and deliberation. The next morning, the court gave the jury a new verdict sheet asking only whether the defendant was guilty of first-degree murder on the basis of premeditation and deliberation. The jury returned a guilty verdict later that day. The court of appeals concluded that the trial court erred by taking a verdict as to lying in wait and felony murder when the jury had not yet agreed on premeditation and deliberation. It reasoned that premeditation and deliberation, felony murder, and lying in wait are not crimes, but rather theories of first-degree murder and the trial court cannot take a verdict on a theory. Therefore, the court of appeals concluded, the trial court erred by taking partial verdicts on theories of first-degree murder. As noted above, the supreme court agreed that error occurred but declined to assess whether it was prejudicial.
Based on the facts of the case, the clerk properly polled the jury in accordance with G.S. 15A-1238.
The clerk was not required to question the jurors separately about each of the two offenses; the polling was proper when the clerk posed one question about both offenses, to each juror individually.
The trial court did not err by examining the verdict sheet returned by the jury, rejecting the verdict, and instructing the jury to answer each question. The trial court acted before consulting with counsel but did consult with counsel after the jury was removed from the courtroom. The court noted that “While it would have been preferable for the trial court to have excused the jury from the courtroom, and allowed counsel to view the verdict sheet and to be heard prior to the court’s instructions to the jury, we can discern no prejudice to defendant based upon what [actually] happened.” The court noted that because the trial court instructed the jury to re-mark the verdict sheet next to their original markings, the original markings were preserved.