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., 10/21/2021
E.g., 10/21/2021
State v. Todd, 369 N.C. 707 (June 9, 2017)

The Supreme Court held that it had jurisdiction to decide an appeal from a divided decision of the Court of Appeals reversing a trial court’s ruling denying a MAR. The defendant was convicted of armed robbery. He was unsuccessful on his direct appeal. The defendant then filed an MAR arguing that the evidence was insufficient to support his conviction and that his appellate counsel was ineffective for failing to raise this claim on appeal. The trial court denied the defendant’s MAR. A divided Court of Appeals reversed, with instructions to grant the MAR and vacate the conviction. The Supreme Court noted that G.S. 7A-30(2) provides an automatic right of appeal based on a dissent at the Court of Appeals. However, that automatic right of appeal is limited by G.S. 7A-28, which states that decisions of the Court of Appeals upon review of G.S. 15A-1415 MARs (MARs by the defendant filed more than 10 days after entry of judgment) are final and not subject to further review. However, the supervisory authority granted to the court by Article IV, Section 12 of the North Carolina Constitution gave the court a restriction to hear the appeal.

State v. Thomsen, 369 N.C. 22 (Aug. 19, 2016)

The Court of Appeals had subject-matter jurisdiction to review, pursuant to the State’s petition for writ of certiorari, a trial court’s grant of its own motion for appropriate relief (MAR). The defendant pleaded guilty to rape of a child by an adult offender and to sexual offense with a child by an adult offender, both felonies with mandatory minimum sentences of 300 months. Pursuant to a plea arrangement, the trial court consolidated the convictions for judgment and imposed a single active sentence of 300 to 420 months. The trial court then immediately granted its own MAR and vacated the judgment and sentence. It concluded that, as applied to the defendant, the mandatory sentence violated the Eighth Amendment; the court resentenced the defendant to 144 to 233 months. The State petitioned the Court of Appeals for a writ of certiorari to review the trial court’s MAR order. The defendant responded, arguing that under State v. Starkey, 177 N.C. App. 264, the court of appeals lacked subject-matter jurisdiction to review a trial court’s sua sponte grant of a MAR. The Court of Appeals allowed the State’s petition and issued the writ. The Court of Appeals found no Eighth Amendment violation, vacated the defendant’s sentence and the trial court’s order granting appropriate relief, and remanded the case for a new sentencing hearing. See State v. Thomsen, ___ N.C. App. ___, ___, 776 S.E.2d 41, 48 (2015). Before the supreme court, the parties disagreed on whether the trial court’s sua sponte motion was pursuant to G.S. 15A-1415(b) (defendant’s MAR) or G.S. 15A-1420(d) (trial court’s sua sponte MAR). The court found it unnecessary to resolve this dispute, holding first that if the MAR was made under G.S. 15A-1415, State v. Stubbs, 368 N.C. 40, 42-43, authorized review by way of certiorari. Alternatively, if the MAR was made pursuant to G.S. 1420(d), G.S. 7A-32(c) gives the Court of Appeals jurisdiction to review a lower court judgment by writ of certiorari, unless a more specific statute restricts jurisdiction. Here, no such specific statute exists. It went on to hold that to the extent Starkey was inconsistent with this holding it was overruled. 

State v. Stubbs, 368 N.C. 40 (Apr. 10, 2015)

Under G.S. 15A-1422, the court of appeals had subject matter jurisdiction to review the State’s appeal from a trial court’s order granting the defendant relief on his motion for appropriate relief. The court rejected the defendant’s argument that Appellate Rule 21 required a different conclusion. In the decision below, State v. Stubbs, 232 N.C. App. 274 (2014), the court of appeals held, over a dissent that the trial court erred by concluding that the defendant’s sentence of life in prison with the possibility of parole violated of the Eighth Amendment. 

The defendant was tried and convicted of first-degree murder in Gaston County. The evidence of the case largely consisted of mixtures of “touch” DNA profiles found on the victim’s car along with circumstantial evidence based on the defendant’s presence in the area at the time of the murder. The verdict was affirmed on direct appeal. The defendant later filed a motion for appropriate relief (“MAR”) alleging his innocence based on new evidence, as well as claims for ineffective assistance of counsel and discovery violations. The MAR court conducted an extensive hearing on the motion. Evidence showed that the defendant’s trial counsel was aware of the defendant’s significant medical and psychological issues, some of which may have been relevant to the defendant’s ability to commit the crime. Trial counsel obtained authorization and funding for a psychological evaluation that never occurred and failed to obtain the defendant’s medical records. Trial counsel also obtained the services of a DNA expert for use at trial but failed to review the expert’s professional background or previous testimony. The expert informed trial counsel that the State’s science was “good” and advised counsel not to interview the prosecution’s DNA expert. Defense counsel did not obtain a final report from the expert and failed to question the State’s DNA expert with questions recommended by the defense expert.

At the MAR hearing, the defense presented a new DNA expert who testified that the SBI policies of interpreting mixture DNA at the time were “subjective,” outdated, and inaccurate based on current accepted practices. According to this expert, the DNA mixture relied upon by the State at trial could not be used for “any reliable matching” and that the defendant’s DNA profile was not a match. The trial court granted the MAR and ordered a new trial based on ineffective assistance of counsel stemming from trial counsel’s failure to investigate the defendant’s medical and psychological conditions, as well as trial counsel’s failure to properly prepare to meet the state’s DNA evidence. The post-conviction court also found that the defendant was entitled to a new trial based on new evidence stemming from the evolution of DNA science since the time of trial, finding that changes in the science rendered the State’s DNA evidence at trial “doubtful at best.” The State appealed.

The State generally does not have the right to appeal a defendant’s successful MAR. An exception exists for an MAR granted based on new evidence. In that case, the State may directly appeal, “but only on questions of law.” G.S. 15A-1445(a)(2). Where there is no appeal of right, the State may petition for writ of certiorari to obtain review of the trial court’s grant of the MAR. G.S. 15A-1422(c)(3). Here, the State argued that it was entitled to appeal the entire MAR order, since the order was based in part on new evidence. The Court of Appeals disagreed. Where a right to appeal exists as to one ground of an order and not others, the appealing party is generally limited to arguing only the issue from which the appeal of right lies. “[A] right to appeal those other issues exists only if this Court finds those issues ‘inextricably intertwined with the issues before this Court as of right.’” Carver Slip op. at 9 (citation omitted). Here, the issues of new evidence and ineffective assistance were not “inextricably intertwined.” According to the court:

The newly discovered evidence claim is based on evidence that was unavailable to the defendant at the time of trial. The ineffective assistance claim is based on other, separate evidence that the trial court found to be available to the defendant had his counsel exercised due diligence. Thus, these two claims are based on entirely separate facts and legal issues. Id. at 10.

Further, the exception for a State’s direct appeal of the grant of an MAR based on newly discovered evidence is limited by the “only on questions of law” language in G.S. 15A-1445(a)(2). The State’s argument that it can appeal all issues in the order ignored this limitation.

Finally, even after the defendant moved to dismiss the appeal for lack of appellate jurisdiction, the State failed to file a petition for writ of certiorari. The State’s appeal of the ineffective assistance of counsel claim was therefore dismissed for lack of jurisdiction. The appeal of the new evidence claim was rendered moot as a result, leaving the trial court’s order intact.

On appeal from the denial of the defendant’s MAR, the court clarified that the appropriate standard of review is de novo with respect to conclusions of law.

 

The State could appeal the trial court’s order granting the defendant’s MAR. 

The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had authority to grant the State’s petition for writ of certiorari. The court rejected the contention that State v. Starkey, 177 N.C. App. 264, 268 (2006), required a different conclusion, noting that case conflicts with state Supreme Court decisions. 

Under G.S. 15A-1445, the State could appeal the trial court’s order granting the defendant’s MAR on the basis of newly discovered evidence. 

State v. Lee, 228 N.C. App. 324 (July 16, 2013)

State could appeal an amended judgment entered after the trial court granted the defendant’s MAR. The trial court entered the amended judgment after concluding (erroneously) that the 2009 amendments to the SSA applied to the defendant’s 2005 offenses.

(1) The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had authority to grant the State’s petition for writ of certiorari. The court rejected the contention that State v. Starkey, 177 N.C. App. 264, 268 (2006), required a different conclusion, noting that case conflicts with state Supreme Court decisions. (2) The defendant’s claim that his sentence violated the Eighth Amendment was properly asserted under G.S. 15A-1415(b)(4) (convicted/sentenced under statute in violation of US or NC Constitutions) and (b)(8) (sentence unauthorized at the time imposed, contained a type of disposition or a term of imprisonment not authorized for the particular class of offense and prior record or conviction level, was illegally imposed, or is otherwise invalid as a matter of law).

State v. Stubbs, 232 N.C. App. 274 (Feb. 4, 2014) aff'd on other grounds, 368 N.C. 40 (Apr 10 2015)

The trial court erred by concluding that the defendant’s 1973 sentence of life in prison with the possibility of parole on a conviction of second-degree burglary, committed when he was 17 years old, violated the Eighth Amendment. The defendant brought a MAR challenging his sentence as unconstitutional. The court began by noting that the defendant’s MAR claim was a valid under G.S. 15A-1415(b)(4) (unconstitutional conviction or sentence) and (8) (sentence illegal or invalid). On the substantive issue, the court found that unlike a life sentence without the possibility of parole, the defendant’s sentence “allows for the realistic opportunity to obtain release before the end of his life.” In fact, the defendant had been placed on parole in 2008, but it was revoked after he committed a DWI.

The superior court judge erred by “retroactively” applying Structured Sentencing Law (SSL) provisions to a Fair Sentencing Act (FSA) case. The defendant was sentenced under the FSA. After SSL came into effect, he filed a motion for appropriate relief asserting that SSL applied retroactively to his case and that he was entitled to a lesser sentence under SSL. The superior court judge granted relief. The supreme court, exercising rarely used general supervisory authority to promote the expeditious administration of justice, allowed the State’s petition for writ of certiorari and held that the superior court judge erred by modifying the sentence. The court relied on the effective date of the SSL, as set out by the General Assembly when enacting that law. Finding no other ground for relief, the court remanded for reinstatement of the original FSA sentence.

On the State’s petition for writ of certiorari, the court reversed the trial court and held that no significant change in the law pertaining to the admissibility of expert opinions in child sexual abuse cases had occurred and thus that the defendant was not entitled to relief under G.S. 15A-1415(b)(7) (in a motion for appropriate relief, a defendant may assert a claim that there has been a significant change in law applied in the proceedings leading to the defendant's conviction or sentence, and retroactive application of the changed legal standard is required). Contrary to the trial court’s findings and conclusions, State v. Stancil, 355 N.C. 266 (2002),was not a significant change in the law, but merely an application of the court’s existing case law on expert opinion evidence requiring that in order for an expert to testify that abuse occurred, there must be physical findings consistent with abuse. 

The court reversed the trial court’s order granting the defendant’s motion for reconsideration and motion for appropriate relief (MAR), holding that the requirement that counsel advise the defendant of the immigration consequences of a plea agreement established by Padilla does not apply retroactively. The defendant pled no contest to a drug charge in 1997. In 2015 the defendant asserted a MAR claim under Padilla v. Kentucky, 559 U.S. 356 (2010), that he was not informed of the impact his conviction would have on his immigration status, particularly the risk of deportation. The trial court initially denied the MAR but subsequently granted a motion to reconsider and entered an order granting the MAR. Reversing, the court noted that it had previously decided, in State v. Alshaif, 219 N.C. App. 162 (2012), that Padilla does not apply retroactively.

Declining to address whether State v. Garris, 191 N.C. App. 276 (2008), applied retroactively, the court held that the defendant’s MAR was subject to denial because the Garris does not constitute a significant change in the substantive or procedural law as required by G.S. 15A-1415(b)(7), the MAR ground asserted by the defendant. When Garris was decided, no reported NC appellate decisions had addressed whether the possession of multiple firearms by a convicted felon constituted a single violation or multiple violations of G.S. 14-415.1(a). For that reason, Garris resolved an issue of first impression. The court continued: “Instead of working a change in existing North Carolina law, Garris simply announced what North Carolina law had been since the enactment of the relevant version of [G.S.] 14-415.1(a).” As a result, it concluded, “a decision which merely resolves a previously undecided issue without either actually or implicitly overruling or modifying a prior decision cannot serve as the basis for an award of appropriate relief made pursuant to [G.S.] 15A-1415(b)(7).” It thus concluded that the trial court lacked jurisdiction to grant relief for the reason requested and properly denied the MAR.

(1) The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had authority to grant the State’s petition for writ of certiorari. The court rejected the contention that State v. Starkey, 177 N.C. App. 264, 268 (2006), required a different conclusion, noting that case conflicts with state Supreme Court decisions. (2) The defendant’s claim that his sentence violated the Eighth Amendment was properly asserted under G.S. 15A-1415(b)(4) (convicted/sentenced under statute in violation of US or NC Constitutions) and (b)(8) (sentence unauthorized at the time imposed, contained a type of disposition or a term of imprisonment not authorized for the particular class of offense and prior record or conviction level, was illegally imposed, or is otherwise invalid as a matter of law).

State v. Stubbs, 232 N.C. App. 274 (Feb. 4, 2014) aff'd on other grounds, 368 N.C. 40 (Apr 10 2015)

The trial court erred by concluding that the defendant’s 1973 sentence of life in prison with the possibility of parole on a conviction of second-degree burglary, committed when he was 17 years old, violated the Eighth Amendment. The defendant brought a MAR challenging his sentence as unconstitutional. The court began by noting that the defendant’s MAR claim was a valid under G.S. 15A-1415(b)(4) (unconstitutional conviction or sentence) and (8) (sentence illegal or invalid). On the substantive issue, the court found that unlike a life sentence without the possibility of parole, the defendant’s sentence “allows for the realistic opportunity to obtain release before the end of his life.” In fact, the defendant had been placed on parole in 2008, but it was revoked after he committed a DWI.

The defendant, who was 14 years old at the time of the offense, was convicted of first-degree murder in 1997. In 2018, the trial court granted a motion for appropriate relief and vacated his conviction based on newly discovered evidence in the form of an affidavit from William McCormick indicating that other young men committed the crime. The Court of Appeals agreed with the State’s arguments that the trial court abused its discretion when it granted the defendant a new trial based on newly discovered evidence, and erred when it determined that the defendant’s due process rights would be violated if he were not allowed to present the evidence at a new trial. (1) As to the first argument, the Court held that the defendant failed to prove the purported newly discovered evidence as required under seven-factor analysis set out in State v. Beaver, 291 N.C. 137 (1976). Based on inconsistencies between McCormick’s testimony and his affidavit and internal inconsistencies in the affidavit itself, the Court could not agree with the trial court’s conclusion that the purported new evidence in it was “probably true.” Moreover, the information in McCormick’s testimony did not meet the requirement in G.S. 15A-1415(c) that newly discovered evidence “must be unknown or unavailable to the defendant at the time of trial in order to justify relief.” To the contrary, the defendant’s trial attorney had indications that McCormick may have had information about the crime but failed to use a subpoena or material witness order to secure his testimony for trial. Furthermore, despite McCormick’s known presence at the defendant’s trial, the defendant’s attorney never alerted the trial court, asked for a continuance or recess, or otherwise took steps to get information from him. As such, the evidence was not unknown or unavailable at the time of trial. The Court also concluded that McCormick’s testimony was not “competent, material, and relevant” as to the statements made by Robert Shaw about the purported true killers because that testimony was inadmissible hearsay. The Court held that the trial court abused its discretion by concluding that the evidence was admissible under the residual exception in Rule 803(24), as there was no indication in the record that the defendant satisfied the requirement to give the State notice of its intent to offer evidence pursuant to the rule. (2) As to the State’s second argument, the Court agreed that the trial court erred in concluding as an independent ground for decision that the defendant’s due process rights would be violated if he were not allowed to present McCormick’s testimony at a new trial. The Court concluded that the Beaver factors set out the test for determining whether the defendant is entitled to a new trial, and the defendant did not satisfy them. A concurring judge noted that the Court’s holding did not bar the defendant from seeking post-conviction relief through a claim for ineffective assistance of counsel.

State v. Rhodes, 366 N.C. 532 (June 13, 2013)

Reversing the court of appeals, the court held that information supporting the defendant’s motion for appropriate relief (MAR) was not newly discovered evidence. After the defendant was convicted of drug possession offenses, his father told a probation officer that the contraband belonged to him. The trial court granted the defendant’s MAR, concluding that this statement constituted newly discovered evidence under G.S. 15A-1415(c). The court concluded that because the information implicating the defendant’s father was available to the defendant before his conviction, the statement was not newly discovered evidence and that thus the defendant was not entitled to a new trial. The court noted that the search warrant named both the defendant and his father, the house was owned by both of the defendant’s parents, and the father had a history of violating drug laws. Although the defendant’s father invoked the Fifth Amendment at trial when asked whether the contraband belonged to him, the information implicating him as the sole possessor of the drugs could have been made available by other means. It noted that on direct examination of the defendant’s mother, the defendant did not pursue questioning about whether the drugs belonged to the father; also, although the defendant testified at trial, he gave no testimony regarding the ownership of the drugs.

In this murder case, the trial court properly granted the defendant a new trial on the basis of newly discovered evidence. At trial one of the State’s most important expert witnesses was SBI Agent Duane Deaver, who testified as an expert in bloodstain pattern analysis. Deaver testified that the victim was struck a minimum of four times before falling down stairs. Deaver stated that, based on his bloodstain analysis, the defendant attempted to clean up the scene, including his pants, prior to police arriving and that defendant was in close proximity to the victim when she was injured. The court held that Deaver’s misrepresentations regarding his qualifications (discussed in the opinion) constituted newly discovered evidence entitling the defendant to a new trial. 

Because the trial court did not have subject matter jurisdiction to rule on the defendant’s MAR claim alleging a violation of the post-conviction DNA statutes, the portion of the trial court’s order granting the MAR on these grounds is void. The court noted that the General Assembly has provided a statutory scheme, outside of the MAR provisions, for asserting and obtaining relief on, post-conviction DNA testing claims.

The court vacated and remanded an opinion by the court of appeals in State v. Williamson, 206 N.C. App. 599 (Sept. 7, 2010) (over a dissent, the court rejected the defendant’s argument that the trial court erred by failing to enter a written order with findings of fact and conclusions of law when denying the defendant’s MAR; the trial court’s oral order, containing findings of fact and conclusions of law and appearing in the transcript, was sufficient). The court noted that during review it became apparent that a written order actually was entered by the trial court, the existence of which apparently was not known to appellate counsel. The court remanded to the court of appeals to determine: (1) whether to amend the record on appeal to permit consideration of the order; (2) whether to order new briefs and/or oral arguments in light of its ruling on item (1) above; (3) whether to address defendant’s issues on the merits; and (4) whether to enter any other or further relief as it may deem appropriate.

The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.

Defendant filed an MAR seeking a new trial, based on the victim recanting her testimony. At a hearing on the MAR, the victim testified that she lied about the abuse at trial due to bribes and threats from another person. The trial judge denied the MAR, but failed to make sufficient findings of fact resolving the conflicts in the victim’s testimony between the trial and the MAR hearing. The trial court “abused its discretion by failing to expressly find which version of events it believed to be true,” so the matter was remanded with instructions to enter a new order making clear findings. Dissenting as to this part of the decision, J. Bryant would have found that the judge’s order was sufficient, since the defendant had the burden of proof at the hearing and the trial judge made a finding that the defense had not met that burden by stating she was “not satisfied that the testimony given by [A.M.D.] at the trial on this matter in December 2016 was false.”

State v. Rollins, 367 N.C. 114 (Oct. 4, 2013)

The court per curiam affirmed the decision below, State v. Rollins, 224 N.C. App. 197 (Dec. 4, 2012), in which the court of appeals had held, over a dissent, that the trial court did not abuse its discretion by denying the defendant’s MAR without an evidentiary hearing. The MAR asserted that the defendant “did not receive a fair trial as a result of a juror watching irrelevant and prejudicial television publicity during the course of the trial, failing to bring this fact to the attention of the parties or the Court, and arguing vehemently for conviction during jury deliberations.” Although the MAR was supported by an affidavit from one of the jurors, the court found that the affidavit “merely contained general allegations and speculation.” The defendant’s MAR failed to specify which news broadcast the juror in question had seen; the degree of attention the juror had paid to the broadcast; the extent to which the juror received or remembered the broadcast; whether the juror had shared the contents of the news broadcast with other jurors; and the prejudicial effect, if any, of the alleged juror misconduct.

The trial court erred by failing to conduct an evidentiary hearing before granting the MAR. An evidentiary hearing “is not automatically required before a trial court grants a defendant’s MAR, but such a hearing is the general procedure rather than the exception.” Prior case law “dictates that an evidentiary hearing is mandatory unless summary denial of an MAR is proper, or the motion presents a pure question of law.” Here, the State denied factual allegations asserted by the defendant. The trial court granted the MAR based on what it characterized as “undisputed facts,” faulting the State for failing to present evidence to rebut the defendant’s allegations. However, where the trial court sits as “the post-conviction trier of fact,” it is “obligated to ascertain the truth by testing the supporting and opposing information at an evidentiary hearing where the adversarial process could take place. But instead of doing so, the court wove its findings together based, in part, on conjecture and, as a whole, on the cold, written record.” It continued, noting that given the nature of the defendant’s claims (as discussed in the court’s opinion), the trial court was required to resolve conflicting questions of fact at an evidentiary hearing.

(1) Because the defendant’s motion for appropriate relief (MAR) alleging ineffective assistance of counsel in this sexual assault case raised disputed issues of fact, the trial court erred by failing to conduct an evidentiary hearing before denying relief. The defendant claimed that counsel was ineffective by failing to, among other things, obtain a qualified medical expert to rebut testimony by a sexual abuse nurse examiner and failing to properly cross-examine the State’s witnesses. The defendant’s motion was supported by an affidavit from counsel admitting the alleged errors and stating that none were strategic decisions. The court concluded that these failures “could have had a substantial impact on the jury’s verdict” and thus the defendant was entitled to an evidentiary hearing. The case was one of “he said, she said,” with no physical evidence of rape. The absence of any signs of violence provided defense counsel an opportunity to contradict the victim’s allegations with a medical expert, an opportunity he failed to take. Additionally, trial counsel failed to expose, through cross-examination, the fact that investigators failed to collect key evidence. For example, they did not test, collect, or even ask the victim about a used condom and condom wrapper found in the bedroom. Given counsel’s admission that his conduct was not the product of a strategic decision, an evidentiary hearing was required. (2) With respect to the defendant’s claim that the trial court erred by denying his motion before providing him with post-conviction discovery pursuant to G.S. 15A-1415(f), the court remanded for the trial court to address whether the State had complied with its post-conviction discovery obligations.

The trial court did not err by rejecting the defendant’s G.S. 15A-1414 MAR without an evidentiary hearing. 

At the MAR hearing, the trial court properly excluded the State’s expert witness, who did not testify at the original trial. The court viewed the State’s position as “trying to collaterally establish that the jury would have reached the same verdict based on evidence not introduced at trial.” It concluded that the trial court properly excluded this evidence:

Defendant’s newly discovered evidence concerned Agent Deaver, arguably, the State’s most important expert witness. Thus, the State could have offered its own evidence regarding Agent Deaver’s qualifications, lack of bias, or the validity of his experiments and conclusions. Furthermore, the State was properly allowed to argue that the evidence at trial was so overwhelming that the newly discovered evidence would have no probable impact on the jury’s verdict. However, the State may not try to minimize the impact of this newly discovered evidence by introducing evidence not available to the jury at the time of trial. Thus, the trial court did not err in prohibiting the introduction of this evidence at the MAR hearing.

 

(1) The trial court gave the State proper notice when it made a sua sponte oral MAR in open court one day after judgment had been entered. (2) The trial court did not violate the MAR provision stating that any party is entitled to a hearing on a MAR where the State did not request a hearing but merely requested a continuance so that the prosecutor from the previous day could be present in court.

The trial court did not abuse its discretion by denying the defendant’s motion for appropriate relief (MAR) made under G.S. 15A-1414 without first holding an evidentiary hearing. Given that the defendant’s MAR claims pertained only to mitigating sentencing factors and the defendant had been sentenced in the presumptive range, the trial judge could properly conclude that the MAR was without merit and that the defendant was not entitled to an evidentiary hearing.

The trial court did not err by denying the defendant’s post-sentencing motion to withdraw a plea without an evidentiary hearing. The defendant’s motion was a motion for appropriate relief. Evidentiary hearings are required on such motions only to resolve issues of fact. In this case, no issue of fact was presented. The defendant’s statement that he did not understand the trial court’s decision to run the sentences consecutively did not raise any factual issue given that he had already stated that he accepted and understood the plea agreement and its term that “the court will determine whether the sentences will be served concurrently or consecutively.” Furthermore, nothing in the record indicates that the defendant’s plea was not the product of free and intelligent choice. Rather, it appears that his only reason for moving to withdraw was his dissatisfaction with his sentence.

State v. Hyman, 371 N.C. 363 (Aug. 17, 2018)

(1) On review of a divided panel of the Court of Appeals, ___ N.C. App. ___, 797 S.E.2d 308 (2017), in this murder case, the court affirmed the holding of the Court of Appeals that the defendant’s ineffective assistance of counsel (IAC) claim was not procedurally barred under G.S. 15A-1419(a)(3) (a claim asserted in a MAR must be denied if, upon a previous appeal, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so). To be subject to the G.S. 15A-1419(a)(3) procedural default bar, the direct appeal record must contain sufficient information to permit the reviewing court to make all the factual and legal determinations necessary to allow a proper resolution of the claim. Here, the defendant was not in a position to adequately raise the IAC claim on direct appeal. A Strickland IAC claim requires a defendant to show both deficient performance and prejudice. The nature of the defendant’s claim would have required him to establish that his attorney was in a position to provide favorable testimony on his behalf, that her failure to withdraw from representing the defendant in order to testify on his behalf constituted deficient performance, and if she had acted as he asserts she should have, there is a reasonable probability that he would not have been found guilty of murder. Here, the defendant would have been unable to make a viable showing based on the evidentiary record developed at trial.

(2) Reversing the Court of Appeals, the court found that the record contains adequate evidentiary support for the trial court’s findings that the factual basis for the defendant’s IAC claim did not exist. The defendant’s IAC claim alleged that his lawyer should have withdrawn from representing him at trial and testified on his behalf with respect to a conversation that she had with a witness. The trial court found as a fact that the defendant presented no credible evidence during the MAR hearing that the alleged conversation between defense counsel and the witness ever took place. After reviewing the evidence presented before the trial court, the court found that the record contains sufficient evidence to support the trial court’s finding of fact that the alleged conversation never occurred.

State v. Long, 365 N.C. 5 (Feb. 4, 2011)

With one justice taking no part in consideration of the case and with the other members of the court equally divided, the court affirmed, without opinion, a ruling by the trial court on the defendant’s motion for appropriate relief. The case was before the court on writ of certiorari to review the trial court’s order. The question presented, as stated in the defendant’s appellate brief, was: “Whether the trial court erred in finding in a capitally-charged case that failing to disclose exculpatory SBI reports, testifying falsely as to what evidence was brought to the SBI and failing to preserve irreplaceable biological evidence did not violate due process?”

The trial court did not have jurisdiction to resentence the defendant for obtaining property by false pretenses, where the defendant’s motion for appropriate relief (MAR), which was granted by the trial court, challenged only his conviction for possession of stolen goods, a separate CRS case that was not consolidated with the fraud conviction. 

The Ninth Circuit erred by concluding that the California “Dixon bar”--providing that a defendant procedurally defaults a claim raised for the first time on state collateral review if he could have raised it earlier on direct appeal—was inadequate to bar federal habeas review. Federal habeas courts generally refuse to hear claims defaulted in state court pursuant to an independent and adequate state procedural rule. State rules are “adequate” if they are firmly established and regularly followed. California’s Dixon bar meets this standard.

Beard v. Kindler, 558 U.S. 53 (Dec. 8, 2009)

A federal habeas court will not review a claim rejected by a state court if the state court decision rests on an adequate and independent state law ground. The Court held that a state rule is not inadequate for purposes of this analysis just because it is a discretionary rule.

(1) On review of a divided panel of the Court of Appeals, ___ N.C. App. ___, 797 S.E.2d 308 (2017), in this murder case, the court affirmed the holding of the Court of Appeals that the defendant’s ineffective assistance of counsel (IAC) claim was not procedurally barred under G.S. 15A-1419(a)(3) (a claim asserted in a MAR must be denied if, upon a previous appeal, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so). To be subject to the G.S. 15A-1419(a)(3) procedural default bar, the direct appeal record must contain sufficient information to permit the reviewing court to make all the factual and legal determinations necessary to allow a proper resolution of the claim. Here, the defendant was not in a position to adequately raise the IAC claim on direct appeal. A Strickland IAC claim requires a defendant to show both deficient performance and prejudice. The nature of the defendant’s claim would have required him to establish that his attorney was in a position to provide favorable testimony on his behalf, that her failure to withdraw from representing the defendant in order to testify on his behalf constituted deficient performance, and if she had acted as he asserts she should have, there is a reasonable probability that he would not have been found guilty of murder. Here, the defendant would have been unable to make a viable showing based on the evidentiary record developed at trial.

(2) Reversing the Court of Appeals, the court found that the record contains adequate evidentiary support for the trial court’s findings that the factual basis for the defendant’s IAC claim did not exist. The defendant’s IAC claim alleged that his lawyer should have withdrawn from representing him at trial and testified on his behalf with respect to a conversation that she had with a witness. The trial court found as a fact that the defendant presented no credible evidence during the MAR hearing that the alleged conversation between defense counsel and the witness ever took place. After reviewing the evidence presented before the trial court, the court found that the record contains sufficient evidence to support the trial court’s finding of fact that the alleged conversation never occurred.

In this child sexual assault case, the court reversed the trial court’s order denying the defendant’s Motion for Appropriate Relief (MAR) seeking a new trial for ineffective assistance of counsel related to opinion testimony by the State’s expert. The defendant was convicted of sexual offenses against Kim. On appeal the defendant argued that the trial court should have granted his MAR based on ineffective assistance of both trial and appellate counsel regarding expert opinion testimony that the victim had in fact been sexually abused.

(1) The court began by concluding that the testimony offered by the State’s expert that Kim had, in fact, been sexually abused was inadmissible. The court reiterated the rule that where there is no physical evidence of abuse, an expert may not opine that sexual abuse has in fact occurred. In this case the State offered no physical evidence that Kim had been sexually abused. On direct examination the State’s expert testified consistent with governing law. On cross-examination, however, the expert expressed the opinion that Kim “had been sexually abused.” And on redirect the State’s expert again opined that Kim had been sexually abused. In the absence of physical evidence of sexual abuse, the expert’s testimony was inadmissible.

(2) The court went on to hold, however, that because the defendant failed to raise the issue on direct appeal, his claim that trial counsel was ineffective by failing to move to strike the expert’s opinion that victim Kim had in fact been sexually abused was procedurally defaulted. The record from the direct appeal was sufficient for the court to determine in that proceeding that trial counsel provided ineffective assistance of counsel. Defense counsel failed to object to testimony that was “clearly inadmissible” and the court could not “fathom any trial strategy or tactic which would involve allowing such opinion testimony to remain unchallenged.” And in fact, the trial transcript reveals that allowing the testimony to remain unchallenged was not part of any trial strategy. Moreover trial counsel’s failure to object to the opinion testimony was prejudicial. Because the “cold record” on direct appeal was sufficient for the court to rule on the ineffective assistance of counsel claim, the MAR claim was procedurally barred under G.S. 15A-1419(a)(3).

(3) The court continued, however, by holding that the defendant was denied effective assistance of appellate counsel in his first appeal when appellate counsel failed to argue that it was error to allow the expert’s testimony that Kim had, in fact, been sexually abused. The court noted that the ineffective assistance of appellate counsel claim was not procedurally barred. And, applying the Strickland attorney error standard, the court held that appellate counsel’s failure to raise the issue on direct appeal constituted ineffective assistance of counsel. The court thus reversed and remanded for entry of an order granting the defendant’s MAR.

One judge on the panel concurred with the majority “that appellate counsel was ineffective”; concurred in result only with the majority’s conclusion that the claim regarding trial counsel’s ineffectiveness was procedurally barred; but, concluding that the defendant was not prejudiced by the expert’s testimony, dissented from the remainder of the opinion.

(1) On remand from the state Supreme Court, the court rejected the defendant’s argument that the trial court erred by concluding that he was procedurally barred from reasserting in his MAR a dual representation conflict of interest ineffective assistance of counsel claim with respect to attorney Smallwood. Because this court on direct appeal addressed the merits and rejected this claim, the trial court properly concluded that it was procedurally defaulted under G.S. 15A-1419(a)(2) (claim previously determined on the merits).

(2) The court then turned to the defendant’s claim that he received ineffective assistance of counsel from attorney Warmack at the evidentiary remand hearing because Warmack had a dual representation conflict arising from having previously represented codefendant Swain. The court held that the trial court erred by finding that this claim was procedurally barred under G.S. 15A-1419(a)(3) (failure to raise on appeal), reasoning that the defendant was not in a position to adequately raise the claim on direct appeal. The court further found that the record was insufficient to establish that the defendant knowingly, intelligently, and voluntarily waived Warmack’s potential conflict and that the trial court erred by concluding otherwise.

The trial court erred by summarily denying the defendant’s motion for appropriate relief (MAR) and accompanying discovery motion. In the original proceeding, the trial court denied the defendant’s motion to suppress in part because it was not filed with the required affidavit. After he was convicted, the defendant filed a MAR asserting that trial counsel was ineffective in failing to file the required affidavit. The trial court denied the MAR and the court of appeals granted certiorari. The court rejected the State’s argument that because the defendant failed to raise the ineffectiveness claim on direct appeal, he was procedurally defaulted from raising it in the MAR. The court reasoned that the record did not provide appellate counsel with sufficient information to establish the prejudice prong of the ineffectiveness test. Specifically, proof of this prong would have required appellate counsel to show that the defendant had standing to challenge the search at issue. 

The court suggested in dicta that on a motion for appropriate relief (as on appellate review) a defendant may be deemed to have waived errors in jury instructions by failing to raise the issue at trial. However, the court did not decide the issue since it concluded that even when considered on the merits, the defendant’s alleged instructional error lacked merit.

The defendant’s assertions in his MAR, filed more than seven years after expiration of the appeal period, that his plea was invalid because the trial court failed to follow the procedural requirements of G.S. 15A-1023 and -1024 were precluded by G.S. 15A-1027 (“Noncompliance with the procedures of this Article may not be a basis for review of a conviction after the appeal period for the conviction has expired.”).

The defendant was found guilty of first-degree murder and sentenced to death in 2003. The defendant challenged his conviction and sentence on direct appeal, but the Supreme Court unanimously found no error. The Supreme Court of the United States denied certiorari. Subsequently, the defendant filed a motion for appropriate relief (MAR) in Superior Court in July 2007. Six years later, and before the MAR court ruled on his MAR, the defendant filed a supplemental motion for appropriate relief (SMAR) amending some of his previous claims and adding two additional claims. The MAR court dismissed each of the defendant’s claims, and the defendant appealed to the state Supreme Court.

(1) Of the twelve total claims raised in the defendant’s MAR and SMAR, five of them directly related to his allegation that his trial attorneys rendered unconstitutionally ineffective assistance of counsel (IAC) during the guilt-innocence phase of his trial by failing to investigate, develop, and utilize various sources of exculpatory evidence. The Supreme Court held that the MAR court erred in summarily dismissing the defendant’s guilt-innocence phase IAC claims without an evidentiary hearing because “some of his asserted grounds for relief required the [MAR] court to resolve questions of fact.” Slip op. at ¶ 3. The Court concluded that because the defendant presented evidence which, if proven true would entitle him to relief, he is entitled to an evidentiary hearing in accordance with statutory mandate.

(2) The Supreme Court held that the trial court erred in summarily ruling that the defendant’s claim alleging he was impermissibly shackled in view of the jury was procedurally barred because the record did not contain facts necessary to a fair resolution of the claim. The Court vacated the relevant portion of the MAR court’s order and remanded for an evidentiary hearing to obtain the facts necessary to determine whether his claim is procedurally barred and, if not, whether it has merit.

The Court affirmed the MAR court’s disposition of all other claims raised in the defendant’s MAR and SMAR.

The court held that the trial court erred by summarily denying the defendant’s MAR alleging ineffective assistance. Because the State did not contest that trial counsel’s failure to attach the requisite affidavit to a suppression motion constituted deficient representation, the focus of the court’s inquiry was on whether the defendant’s MAR forecast adequate evidence of prejudice. On this issue, it concluded that the MAR adequately forecast evidence on each issue relevant to the prejudice analysis: that the defendant had standing to challenge the search and that the affidavit supporting the warrant contained false statements.

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