Smith's Criminal Case Compendium
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State v. Johnson, 379 N.C. 629, 2021-NCSC-165 (Dec. 17, 2021)
The state obtained recordings of several hundred phone calls that the defendant made while he was in jail awaiting trial on charges of murder, armed robbery, and assault on a government official. The charges arose out of a robbery at a gas station where the clerk was killed and an officer was threatened with a firearm. The defendant gave notice of the affirmative defenses of diminished capacity, mental infirmity, and voluntary intoxication (insanity was also noticed, but not pursued at trial). Copies of the jail calls were provided to the defense in discovery, but the recordings could not be played. Defense counsel emailed the prosecutor to request a new copy of the calls, and asked the state to identify any calls it intended to use at trial. The prosecutor provided defense counsel with new copies of the calls that were playable, but also indicated that the state did not intend to offer any of the calls at trial, so defense counsel did not listen to them at that time. The evening before trial, the prosecutor notified defense counsel that the state had identified 23 calls that it believed were relevant to showing the defendant’s state of mind and memory at the time of the murder. At the start of trial the next morning, the defense moved for a continuance on the basis that it had not had time to review the calls or asses their impact on the defendant’s experts’ testimony, and argued that denial of a continuance at this point would violate the defendant’s state and federal constitutional rights to due process, effective counsel, and right to confront witnesses. The trial court denied the continuance, as well as defense counsel’s subsequent request to delay opening statements until Monday (after jury selection concluded mid-day Friday) in order to provide the defense an opportunity to listen to the calls and review them with the defendant’s experts.
The defendant was subsequently convicted of armed robbery, assault on a government official, and felony murder based on the assault. He was sentenced to life imprisonment for the murder and 60-84 months for the robbery; judgment was arrested on the assault. The defendant appealed, and a divided Court of Appeals found that the trial court did not err in denying the continuance, and furthermore any error would not have been prejudicial because the felony murder was a general intent crime and the calls were only offered by the state as rebuttal evidence regarding defendant’s diminished capacity. The dissent concluded that the majority applied the wrong standard of review, since the denial of the motion to continue was based on constitutional grounds, and would have found error and ordered a new trial. The defendant appealed to the state Supreme Court based on the dissent.
The higher court found no prejudicial error regarding the felony murder conviction, but vacated the armed robbery judgment. First, regarding the correct standard of review, a trial court’s decision on a motion to continue is normally reviewed only for abuse of discretion, but if it raises a constitutional issue it is reviewed de novo; however, even for constitutional issues, denial of a motion to continue is only reversible if the error was prejudicial. In this case, the trial court erred because the time allowed to review the calls was constitutionally inadequate. Defense counsel relied on the state’s representation that it would not use the calls until receiving a contrary notice the evening before trial began, and defense counsel did not have an opportunity to listen to the nearly four hours of recordings or consult with his expert witnesses before starting the trial. Under the circumstances of this case, the impact this had on defense counsel’s ability to investigate, prepare, and present a defense demonstrated that the defendant’s right to effective counsel was violated. Additionally, the defendant was demonstrably prejudiced by this violation, since defense counsel could not accurately forecast the evidence or anticipated expert testimony during the opening statements.
However, the state Supreme Court concluded that as to the felony murder conviction, the error was harmless beyond a reasonable doubt. The murder conviction was based on the underlying assault, a general intent crime “which only require[s] the doing of some act,” unlike specific intent offenses “which have as an essential element a specific intent that a result be reached.” The recorded calls were only offered as rebuttal evidence on this issue of intent, and therefore the error was harmless as to the assault and felony murder offenses as a matter of law, since “any evidence in this case supporting or negating that defendant was incapable of forming intent at the time of the crime is not relevant to a general-intent offense.” But the defendant’s conviction for armed robbery, a specific intent offense, was vacated and remanded for a new trial.