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 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.