Six defendants were alleged to have committed an armed robbery at Raleigh’s Walnut Creek Amphitheater. The trial judge granted the State’s motion to try three of the defendant’s jointly, including Mr. Melvin. Before and during trial, Melvin repeatedly moved to sever his case from that against one of his co-defendants, Mr. Baker. After all three defendants were convicted, Melvin and Baker appealed, arguing that the trial court should have granted their motions for severance based on antagonistic defenses. The Court of Appeals concluded unanimously that the that their claims were not properly preserved for appeal, because neither had expressly argued before trial that they planned to present antagonistic defenses. State v. Melvin, No. COA18-843, 2019 WL 614204 (N.C. Ct. App. 2019).

Melvin sought and obtained discretionary review by the Supreme Court, asking the court to review the Court of Appeals’ decision as to his objection to joint trial with Mr. Baker. The Supreme Court reversed, concluding that the Court of Appeals erred by considering only Melvin’s pretrial motion for severance and not considering his subsequent motions made after the close of evidence, after closing argument, and after conviction before sentencing. Under G.S. 15A-927, a trial court must deny joinder or grant severance of defendants whenever (1) the court finds before trial that severance is necessary to protect a defendant’s speedy trial right or to promote a fair determination of guilt or innocence, or (2) the trial court finds during trial that severance is necessary to achieve a fair determination of guilt or innocence. The statute thus contemplates objections both before trial and during trial, and defendants may therefore preserve severance claims for appellate review by objecting at any point during the trial. The Court of Appeals’ conclusion that Melvin’s argument for severance was not preserved was based on that court’s erroneous application of the rule for motions to sever offenses, which, under G.S. 15A-952, must generally be made with specificity before trial. There is no similar statutory requirement for motions to sever defendants. Therefore, on the facts of this case, where Melvin objected to joinder prior to trial, moved to sever during trial based on a co-defendant’s testimony implicating him, and again moved to sever based on a co-defendant’s argument during closing that Melvin was guilty, the Court held that Melvin sufficiently preserved for appellate review his motion to sever defendants on the basis of antagonistic defenses. The Supreme Court remanded the case to the Court of Appeals for consideration of the claim on the merits.

Justice Berger, joined by Justices Newby and Barringer, wrote separately, concurring in the result only. He agreed that the Court of Appeals applied the wrong joinder statute, but said that the Supreme Court should have simply remanded the matter for consideration under the proper statute, rather than concluding that the matter was indeed preserved based on the defendant’s motions before the trial court.