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

In this habitual felon common-law robbery case, the trial court did not err by denying the defendant’s motions to recuse the entire Henderson County District Attorney’s Office. The defendant’s recusal motions asserted that ADA Bender previously represented the defendant in one of the felonies underlying the habitual felon charge and that the State later violated the trial court’s express condition that Bender not participate in the prosecution. In 2015 the defendant was indicted for injury to property, resisting an officer, giving false information to the police, and common-law robbery (“the four charges”). He was later indicted for attaining habitual felon status based on three unrelated prior felony convictions. At a pretrial hearing, the defendant moved for recusal of the District Attorney’s Office, arguing that Bender had previously represented him on one of the priors supporting the habitual felon charge. The trial court denied the motion and noted that the other prosecutor involved in the case, ADA Mundy, had given assurances that Bender would not be involved in the case in any way. At the start of the trial on the four charges, the defendant renewed his recusal motion; the trial court denied it, adopting its previous ruling. During trial on the four charges, Mundy served as the primary prosecutor. However, the trial court introduced both Mundy and Bender to the jury as the State’s attorneys. Bender attended bench and chambers conferences and argued certain jury instruction issues. After the jury found the defendant guilty of resisting an officer and robbery, the habitual felon phase began. Defense counsel made a third recusal motion, this time on the additional basis that Bender had participated in the trial. After an unrecorded conference with counsel, the defendant never obtained a ruling on his third recusal motion, and instead pled guilty to attaining habitual felon status. After judgment was entered the defendant appealed. The court noted that a prosecutor may not be disqualified unless and until the trial court determines that an actual conflict of interest exists. Here, because Bender did not previously represent the defendant with respect to the substantive charges at issue, the defendant “failed to show the actual conflict of interest required . . . to disqualify ADA Bender, much less the entire [DA’s] Office from prosecuting those charges.” Without proof of an actual conflict of interest as to those charges, further inquiry or direction by the trial court was unnecessary. Accordingly, the defendant failed to show the trial court’s denial of his disqualification motion as to the prosecution of those charges was an abuse of discretion.

           Turning to the recusal issue regarding the habitual felon charge, the court noted that because Bender represented the defendant with respect to one of the prior felony convictions, “the trial court should have inquired into whether ADA Bender divulged any confidential information to other prosecutors that could have been detrimental to defendant’s trial on the habitual felon charge in order to find whether an actual conflict of interest existed.” The court went on to note that the defendant never obtained a ruling on his motion made at the habitual felon phase, instead opting to plead guilty to habitual felon status. It concluded:

Even had the trial court conducted a formal hearing on defendant’s motion and found an actual conflict of interest would exist if ADA Bender assisted in prosecuting the habitual felon charge, whether it was a disqualifying conflict was a matter within its sound discretion. . . . [D]isqualifying the entire district attorney’s office under these facts, as defendant requested, would have been impermissibly excessive. And given that ADA Bender’s prior representation of defendant was wholly unrelated to the charges in the first phase of trial, the only rulings on the motions were obtained before the jury found defendant guilty of an underlying felony to which a habitual offender charge could attach, two unrecorded attorney conferences were held immediately following defendant’s first and third disqualification motions before and at the start of the habitual offender proceeding, and defendant failed to argue on the record how an actual disqualifying conflict might exist when prior convictions necessary to prove habitual felon status are public records but, rather, appeared instead to argue the outmoded appearance of impropriety test, we cannot conclude the trial court’s decision not to disqualify ADA Bender from the prosecution at the time it rendered its rulings was “so arbitrary that it could not have been the result of a reasoned decision.” (citations and quotations omitted).

           Finally, the court rejected the defendant’s argument that the trial court erred by not allowing his disqualification motion after the State allegedly violated the condition that Bender not participate in the prosecution, disagreeing with his interpretation of the proceedings. The court noted that during its ruling on the defendant’s first recusal motion, which it adopted in its second ruling, the trial judge stated: “I’m going to deny the motion at this time. And the Prosecutor has given assurances that [ADA] Bender will in no way be involved in this case.” Although the State concedes that Bender, in contradiction to that assurance, did participate in the prosecution, the court did not interpret the trial court’s denials as being conditioned upon Bender not participating in the first phase of trial and thus rejected this argument.

The court vacated the trial court’s order recusing the District Attorney and all staff of that office from further prosecuting the defendant and five unnamed co-defendants. In 2013, the defendant was indicted for electronic sweepstakes offenses. Those charges resulted in a mistrial. In 2015, the defendant was indicted on multiple charges involving video gaming machines, gambling, and electronic sweepstakes. The State moved to revoke the defendant’s initial bond of $68,750 and set a new secured bond of $500,000. The defendant filed a response to this motion, along with a motion to dismiss all charges for prosecutorial vindictiveness. On the same day, businesses affiliated with the defendant filed a civil complaint against the District Attorney and others. Although a hearing on the State’s motion to increase the bond was set, it was continued by agreement of the parties. Before that hearing occurred, the trial court, sua sponte and without a hearing, entered an order removing the District Attorney and his entire staff from serving as prosecutors in the pending criminal cases. The State sought review. The court noted that under State v. Camacho, 329 N.C. 589 (1991),a prosecutor may not be disqualified unless the trial court determines that an actual conflict of interest exists. Such a conflict arises when a District Attorney or a member of staff has previously represented the defendant on the charges to be prosecuted and, as a result of that attorney-client relationship, the prosecution has obtained confidential information which may be used to the defendant’s detriment at trial. If such a conflict exits, the disqualification order ordinarily should be directed only to individual prosecutors who have been exposed to such information. This holding recognizes the constitutional nature of the office of the District Attorney. The court found the recusal order at issue deficient in several respects. First, Camacho “plainly directs” that a prosecutor may be disqualified only when the trial court finds a conflict of interest because of prior representation of the defendant. Here the trial court made no finding that such a conflict existed, nor was there evidence that would support such a finding. Rather, the trial court based its recusal order on the fact that the civil action created a conflict of interest. The court went on to hold that even assuming some other type of conflict could support a recusal order, the unilateral filing of a civil suit by a criminal defendant cannot, on its own, suffice. It continued: “A conflict of interests sufficient to disqualify a prosecutor cannot arise merely from the unilateral actions of a criminal defendant.” And it added that the trial court’s order included no findings as to how the civil suit created a conflict of interest. Moreover, the court continued, Camacho directs that any order tending to infringe on the constitutional powers and duties of the District Attorney must be narrowly drawn. Here, the trial court’s order disqualifies the District Attorney and the entire office, and applies not only to the defendant but also to five other unnamed co-defendants. The court concluded: “Because the trial court’s order lacks the proper findings sufficient to support the disqualification of the prosecutor or any of his staff, and because the trial court’s order is not narrowly tailored to address any possible conflict of interests, we hold that the trial court exceeded its lawful authority in ordering the recusal of the District Attorney . . . and his entire staff.”

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