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., 09/21/2021
E.g., 09/21/2021

The court per curiam affirmed an unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 478 (2018) holding that the trial court erred by denying the defendant’s motion for appropriate relief (MAR) alleging ineffective assistance of appellate counsel with respect to admission of 404(b) evidence of the defendant’s prior sexual acts. The Court of Appeals concluded that the defendant made a sufficient showing of both deficient performance by appellate counsel and actual prejudice. The defendant was charged with statutory sexual offense, sex offense by a substitute parent, indecent liberties with a minor, and sexual battery. The defendant filed two motions in limine to preclude testimony of Melissa and Tony (the defendant’s adult niece and nephew) regarding sexual encounters with the defendant that allegedly occurred while the defendant was a teenager. The trial court denied the defendant’s motions and allowed the witnesses to testify under Rule 404(b). Without any contemporaneous objection by defense counsel, the witnesses testified at trial. The defendant was found guilty and was sentenced to prison. Appellate counsel argued that the trial court erred by admitting testimony by Melissa and Tony. However counsel’s brief ignored the fact that trial counsel failed to object to the testimony when it was offered and did not seek plain error review. After reviewing the brief, a member of the Office of Appellate Defender contacted appellate counsel by email and suggested that he either file a substitute brief requesting plain error review or submit a reply brief explaining how the issue had, in fact, been preserved. Appellate counsel responded stating, in part, that it was not necessary to allege plain error. Subsequently the Court of Appeals held that the defendant failed to preserve the issue for review because trial counsel failed to object to the 404(b) evidence at trial. It further stated that it would not review an appeal for plain error where that issue had not been alleged. The defendant subsequently filed a MAR arguing that appellate counsel’s failure to assert plain error deprived him of his right to effective assistance of appellate counsel. At a hearing on the MAR, appellate counsel acknowledged that his representation was deficient. The trial court however denied the MAR, finding that appellate counsel’s performance did not prejudice the defendant because even if appellate counsel had argued plain error, there was no reasonable probability that the Court of Appeals would have found plain error and reversed the conviction. The defendant filed a petition for writ of certiorari seeking review of the MAR order. The Court of Appeals reversed. It began by considering whether the 404(b) evidence was properly admitted at trial as proof of common plan or scheme. It concluded that assuming arguendo that the acts described were sufficiently similar to the instances alleged by the child victim, the temporal proximity requirement of the 404(b) analysis was not met. Each of the acts in question occurred over 20 years before the first incident described by the child victim in this case. Additionally, there was no evidence of recurring sexual acts, nor did the State establish that the defendant’s lack of access to children explained the lack of allegations of sexual contact between the defendant and minors during the intervening decades. The court went on to reject the State’s alternative argument that the trial court properly admitted the evidence to establish the defendant’s motive. In this respect, the court concluded: “Testimony suggesting that a defendant committed a sexual act with a minor in the past is simply not enough by itself to warrant the admission of such evidence under the ‘motive’ prong of Rule 404(b).”

            Having found that the trial court erred by admitting the 404(b) evidence, the court found that the defendant met his burden of showing a reasonable probability that, had the issue been properly raised on appeal, the Court of Appeals would have found plain error and reversed the conviction. Specifically, the court evaluated the evidence in conjunction with the jury’s assessment of the victim’s credibility and the weaknesses in the State’s case, as discussed in the court’s opinion.

            Finally, the court determined that appellate counsel performed below an objective standard of reasonableness, satisfying the first prong of the Strickland ineffective assistance of counsel analysis. The court noted, in part, that appellate counsel ignored the fact that trial counsel had failed to object to the evidence at trial, meaning that the issue was not properly preserved for appeal. Although a request for the court of appeals to conduct plain error review was the only recourse available under the circumstances, appellate counsel failed to invoke the plain error doctrine in his appellate brief. This issue was immediately flagged by a member of the Office of Appellate Defender.

State v. Watts, 370 N.C. 39 (Aug. 18, 2017)

(per curiam). The court modified in part and affirmed the lower court’s decision in State v. Watts, ___ N.C. App. ___, 783 S.E.2d 266 (April 5, 2016). In this child sexual assault case, the Court of Appeals held, over a dissent, that the trial court committed reversible error by admitting 404(b) evidence. The charges at issue arose from the defendant’s alleged sexual assault on an eleven-year-old girl to whom defendant was like a “grandpa.” The State sought to introduce at trial 404(b) evidence. Specifically a witness to testify that the defendant had forced his way into her apartment and raped her in 2003. Those alleged events resulted in indictments for rape and breaking or entering against the defendant, but those charges were dismissed in 2005. The trial court allowed the 404(b) evidence to be admitted. After the witness testified, defense counsel moved to strike the testimony, for limiting instruction, or in the alternative a mistrial. The trial court denied the defendant’s motions. The Court of Appeals held that admission of this evidence was prejudicial error. It reasoned that the trial court erred by determining that the evidence was relevant to show opportunity and that the evidence was not sufficiently similar to show common plan or scheme. The Court of Appeals further concluded that “[a]dding to the prejudicial nature” of the testimony was the fact that the trial court did not instruct the jury to consider the evidence only for the 404(b) purpose for which it was admitted. The Supreme Court rejected the State’s argument that defense counsel’s motion did not constitute a request for a limiting instruction. It went on to hold:

Our General Statutes provide that “[w]hen evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” N.C.G.S. § 8C-1, Rule 105 (2015) (emphasis added). “Failure to give the requested instruction must be held prejudicial error for which [a] defendant is entitled to a new trial.” Accordingly, because defendant was prejudiced by the trial court’s failure to give the requested limiting instruction, we affirm, as modified herein, the opinion of the Court of Appeals that reversed defendant’s convictions and remanded the matter to the trial court for a new trial. (citations omitted).

State v. Hembree, 368 N.C. 2 (Apr. 10, 2015)

In this capital murder case, the trial court erred by admitting an excessive amount of 404(b) evidence pertaining to the murder of another victim, Saldana. The court began by concluding that the trial court properly admitted evidence of the Saldana murder under Rule 404(b) to show common plan or design. However, the trial court abused its discretion under Rule 403 by admitting “so much” 404(b) evidence given the differences between the two deaths and the lack of connection between them, the uncertainty regarding the cause of the victim’s death, and the nature and extent of the 404(b) evidence (among other things, of the 8 days used by the State to present its case, 7 were spent on the 404(b) evidence; also, the jury viewed over a dozen photographs of Saldana’s burned remains). The court stated: “Our review has uncovered no North Carolina case in which it is clear that the State relied so extensively, both in its case-in-chief and in rebuttal, on Rule 404(b) evidence about a victim for whose murder the accused was not currently being tried.”

In this assault and possession of a firearm by a felon case, although the trial court erred by allowing the State to present evidence that the defendant had a history of narcotics activity, the error did not rise to the level of plain error. The trial court allowed a detective to testify that he knew the defendant from when the detective was working “vice/narcotics, and it was a narcotic-related case.” Here, the detective’s overall testimony was relevant to establish his familiarity with the defendant’s appearance, providing the basis for his identification of the defendant in the surveillance video. However, it was error to allow him to testify that he encountered the defendant in connection with a narcotics case. The court went on to find that the error did not rise to the level of plain error.

In a child sexual assault case in which the defendant was charged with assaulting his son, the trial court erred by admitting under Rule 404(b) evidence of the defendant's writings in a composition book about forcible, non-consensual anal sex with an adult female acquaintance. The defendant contended that the composition book was fiction; the State argued that the described events were real. The trial court admitted the composition book on the grounds that it showed “a pattern." On appeal the court assumed the trial court meant that the book showed a common scheme or plan; the court noted that the trial court must have assumed that the entry described an actual event. The court found that the events described in the book were not sufficiently similar to the case at bar, finding the only overlapping fact to be anal intercourse. The court also noted that the actual force described in the book was “not analogous” to the constructive force that applies with sexual conduct between a parent and child. It added that aside from anal intercourse, “the acts bore no resemblance to each other, involving different genders, radically different ages, different relationships between the parties, and different types of force.” It concluded:

[T]he charged crime involves defendant's very young son, while the 404(b) evidence involved a grown woman friend. There was no evidence that the locations of the crimes were similar. Further, there was no similarity in how the crime came to occur other than that it involved anal intercourse. Even though the State argues that both crimes involved force, the State has not shown that defendant's writings about physically forcible, non-consensual anal sex with an adult woman friend give rise to any inference that defendant would be desirous of or obtain sexual gratification from anal intercourse with his four-year-old or six-year-old son. The 404(b) evidence simply does not "share 'some unusual facts' that go to a purpose other than propensity . . . ."

In a case involving a drug-related murder that occurred in 2007, the trial court committed reversible error by admitting evidence that the defendant was involved in a 1994 homicide in which he broke into an apartment, found his girlfriend in bed with the victim, and shot the victim. The facts of the 1994 shooting were not admissible to show intent or knowledge. The State argued that the 404(b) evidence showed that the defendant knew that the weapon was lethal and intent to kill. Because the victim in this case was killed by a gunshot to the back of his head, the person who committed that act clearly knew it was lethal and intended to kill. The court found that whatever slight relevance the 1994 shooting might have on these issues was outweighed by undue prejudice. Regarding the 404(b) purpose of identity, the court found that the acts were not sufficiently similar. The court discounted similarities noted by the trial court, such as the fact that both crime occurred with a gun.

In a murder case, the trial court did not err by excluding defense evidence of the victims’ military disciplinary infractions. Both the defendant and the victim were in the military. After several military infractions, the victim was referred to the defendant for counseling. The victim later alleged that the defendant raped her. She was subsequently killed. At trial, the defendant sought to question military personnel about the victim’s disciplinary infractions which led to the request that he counsel her. The defendant argued that this evidence established the victim’s motive for making a false rape allegation against him. The trial court excluded this evidence. The court of appeals concluded that the question of whether the victim’s accusation of rape was grounded in fact or falsehood was not before the jury. Moreover, her specific instances of conduct unrelated to the defendant shed no light upon the crimes charged. Therefore, it concluded, the specific instances of conduct resulting in minor disciplinary infractions were not relevant and were properly excluded.

State v. Glenn, 220 N.C. App. 23 (Apr. 17, 2012)

In a kidnapping, assault and indecent exposure case, the trial court erred by admitting testimony from a witness about a sexual encounter with the defendant to show identity, modus operandi, intent, plan, scheme, system, or design. The encounter occurred nine years earlier. The witness testified that the partially clothed defendant approached her on foot while she was walking. He exposed his penis to her and grabbed at her breasts and buttocks. Although he followed her up a driveway, he did not try to restrain her. In the case at hand, however, the victim got in a man’s vehicle and discovered that he was partially clothed. The man called her a bitch and grabbed her hair and shirt as she attempted to exit the vehicle, but there was no evidence of a sexual touching. The court concluded: “Given the differences in the two instances, as well as the remoteness in time of the incident . . . admission of the evidence was error. 

In a case in which the defendant was charged with committing a sexual offense and indecent liberties against a five-year-old female victim, the trial court committed prejudicial error by admitting evidence that the defendant had anal intercourse with a four-year-old male 18 years earlier. The evidence was admitted to show identity, intent, and common scheme or plan. Noting confusion in the N.C. cases, the court concluded that temporal proximity continues to be relevant to the issue of admissibility of 404(b) evidence; the court rejected the notion that temporal proximity goes only to weight of the evidence. Turning to admission of the evidence for purposes of identity, the court found the 18-year gap between the incidents significant. It rejected the State’s argument that the time period should be tolled during the defendant’s incarceration on grounds that the State failed to offer competent evidence as to the length of his incarceration. Although the incidents both involved very young children and occurred at a caretaker's house where the defendant was a frequent visitor, the nature of the alleged assaults was very different. In light of these differences and “the great length of time” between them, the State failed to show sufficient unusual facts present in both or particularly similar acts which would indicate that the same person committed both crimes. The court went on to reach similar conclusions as to admissibility for the purposes of intent and prior scheme or plan.

State v. Davis, 208 N.C. App. 26 (Nov. 16, 2010)

The trial court committed prejudicial error by admitting, under rule 404(b), the defendant’s prior impaired driving convictions to show malice for purposes of a second-degree murder charge. Three of the defendant’s four prior impaired driving convictions occurred eighteen or nineteen years prior to the accident at issue and one occurred two years prior. Given the sixteen-year gap between the older convictions and the more recent one, the court held that there was not a clear and consistent pattern of criminality and that the older convictions were too remote to be admissible under rule 404(b).

State v. Ward, 199 N.C. App. 1 (Aug. 18, 2009)

The trial court erred in admitting 404(b) evidence obtained as a result of an earlier arrest when the earlier charges were dismissed for insufficient evidence and the probative value of the evidence depended on the defendant’s having committed those offenses. The court distinguished cases where several items are seized from a defendant at one time but the defendant is tried separately for possession of the various items; in this context, evidence may be admissible even if there has been an earlier acquittal, if the evidence forms an integral and natural part of an account of the present crime.

State v. Webb, 197 N.C. App. 619 (June 16, 2009)

In a child sexual abuse case, 404(b) evidence that the defendant abused two witnesses 21 and 31 years ago was improperly admitted. In light the fact that the prior incidents were decades old, more was required in terms of similarity than that the victims were young girls in the defendant’s care, the incidents happened in the defendant’s home, and the defendant told the victims not to report his behavior.

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