Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
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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Concluding that application of the stalking statute to the defendant violated his constitutional free speech rights, the court vacated the convictions. The defendant was convicted of four counts of felony stalking based primarily on the content of posts made to his Google Plus account. On appeal, the defendant asserted an as-applied challenge to the stalking statute, G.S. 14-277.3A. The court first rejected the State’s argument that the defendant’s Google Plus posts are excluded from First Amendment protection because they constitute “speech that is integral to criminal conduct.” The court reasoned that in light of the statutory language “his speech itself was the crime,” and no additional conduct on his part was needed to support his stalking convictions. Thus, the First Amendment is directly implicated by his prosecution under the statute.
The court next analyzed the defendant’s free speech argument within the framework adopted by the United States Supreme Court. It began by determining that as applied to the defendant, the statue constituted a content-based restriction on speech, and thus that strict scrutiny applies. It went on to hold that application of the statute to the messages contained in the defendant’s social media posts did not satisfy strict scrutiny.
Having determined that the defendant’s posts could not constitutionally form the basis for his convictions, the court separately examined the conduct giving rise to each of the convictions to determine the extent to which each was impermissibly premised on his social media activity. The court vacated his first conviction because it was premised entirely upon five social media posts; no other acts supported this charge. The second and third charges were premised on multiple social media posts and a gift delivery to the victim’s workplace. The gift delivery, unlike the social media posts, constituted non-expressive conduct other than speech and therefore was not protected under the First Amendment. However, because the statute requires a course of conduct, this single act is insufficient to support a stalking conviction and thus these convictions also must be vacated. The defendant’s fourth conviction encompassed several social media posts along with two emails sent by the defendant to the victim’s friend. Even if the emails are not entitled to First Amendment protection, this conviction also must be vacated. Here, the jury returned general verdicts, without stating the specific acts forming the basis for each conviction. Because this conviction may have rested on an unconstitutional ground, it must be vacated.
(1) The trial court did not err by denying the defendant’s motion to dismiss a felony stalking charge. Felonious stalking occurs when the defendant commits the offense while a court order is in effect prohibiting the conduct at issue. The State presented evidence that at the time of the conduct at issue, the defendant was subject to conditions of pretrial release orders specifying that he have no contact with the victim. The defendant asserted that he was not subject to these orders because he never posted bond and remained in jail during the relevant time period. He argued that because he was not “released,” the conditions of release orders could not apply to him. The court rejected this argument finding that the relevant orders were in effect until the charges were disposed of, regardless of whether the defendant remained committed or was released. Here, two separate pretrial conditions orders were at issue. The court found that at all relevant times either the first order, the second order or both were in effect. Furthermore, the orders included the prohibition that the defendant have no contact with the victim.
(2) The trial court did not err by denying the defendant’s motion to dismiss felony obstruction of justice charges. The obstruction of justice charges involved sending threatening letters. The defendant argued that this conduct could not be elevated to a felony because the offense does not include the elements of secrecy and malice. The court rejected this argument, noting that obstruction of justice may be elevated to a felony under G.S. 14-3(b) when it is done in secrecy and malice, or with deceit and intent to defraud. Thus, the trial court properly denied the defendant’s motion to dismiss charges of felony obstruction of justice and felony attempted obstruction of justice.
The trial court committed plain error by instructing the jury on the crime of stalking under the new stalking statute, G.S. 14-277.3A, when the charged course of conduct occurred both before and after enactment of the new statute. The new version of the stalking statute lessened the burden on the State. The court noted that where, as here, a defendant is indicted for a continuing conduct offense that began prior to a statutory modification that disadvantages the defendant and the indictment tracks the new statute’s disadvantageous language, the question of whether the violation extended beyond the effective date of the statute is one that must be resolved by the jury through a special verdict. Here, the trial court’s failure to give such a special verdict was plain error.
(COA10-1485). The defendant’s right to be protected from double jeopardy was violated when, after being convicted of felony stalking, he was again charged and convicted of that crime. Because the time periods of the “course of conduct” for both indictments overlapped, the same acts could result in a conviction under either indictment. Also, in the second trial the State introduced evidence that would have established stalking during the overlapping time period.
In a prosecution under the prior version of the stalking statute, there was sufficient evidence to sustain a conviction. The court rejected the defendant’s argument that the evidence showed communications to persons other than the alleged victim on all but one occasion, concluding that all of the communications were directed to the victim. The defendant harassed the victim by written communications, pager, and phone with no legitimate purpose. The communications were directed to the victim, including those to his office staff, made with the request that they be conveyed to the victim. The harassment placed the victim in fear as evidenced by his testimony, his actions in having his staff make sure the office doors were locked and ensuring the outside lights were working along with encouraging them to walk in “twos” to their cars, his wife’s testimony of his demeanor during and after his phone call with the defendant, his late night phone call to a police officer, his action in taking out a restraining order, and his visit to his children’s school to speak with teachers and counselors and to have them removed from the school’s website. The victim’s fears were reasonable given the defendant’s odd behavior exhibiting a pattern of escalation.
The evidence was sufficient to sustain a stalking conviction where it showed that the defendant sent five facsimile messages to the victim’s workplace but the first four did not contain a direct threat. In this regard, the court noted, the case “diverges from those instances in which our courts historically have applied the stalking statute.” Among other things, the faxes called the victim, Danny Keel, “Mr. Keel-a-Nigger,” referenced the defendant having purchased a shotgun, and mentioned his daughter, who was living away from home, by first name.