State v. Miller, COA22-561, ___ N.C. App. ___ (Feb. 21, 2023)

In this Union County case, defendant appealed his convictions for attempted first degree murder, going armed to the terror of the people, possession of a handgun by a minor, and discharge of a firearm within city limits, arguing error by insufficient findings to justify closure of the courtroom and by denial of his motion to dismiss the discharge of a firearm charge. The Court of Appeals agreed, remanding the case and vacating the discharge of a firearm conviction.

In August of 2018, defendant was armed and riding in a car with other armed occupants near a neighborhood basketball court. Defendant was seated in the front passenger seat, and when the vehicle passed a group of pedestrians walking to the basketball court, defendant leaned out the window and began shooting. One bullet hit a pedestrian but did not kill him. During the trial, the prosecution moved to close the courtroom during the testimony of two witnesses, the victim and another witness who was present during the shooting, arguing this was necessary to prevent intimidation. The trial court granted this motion over defendant’s objection, but allowed direct relatives of defendant and the lead investigator to be present during the testimony. 

The Court of Appeals found that the trial court failed to utilize the four-part test from Waller v. Georgia, 467 U.S. 39 (1984), and failed to make findings sufficient for review to support closing the courtroom. The Waller test required the trial court to determine whether “’the party seeking closure has advanced an overriding interest that is likely to be prejudiced, order closure no broader than necessary to protect that interest, consider reasonable alternatives to closing the procedure, and make findings adequate to support the closure.’” Slip Op. at 4, quoting State v. Jenkins, 115 N.C. App. 520, 525 (1994). In the current case, the trial court did not use this test and made no written findings of fact at all. As a result, the Court of Appeals remanded for a hearing on the propriety of the closure using the Waller test.

Turning to defendant’s motion to dismiss, the court found that the arrest warrant and indictment were both defective as they did not contain the caption of the relevant ordinance. Under G.S. 160A-79(a), “a city ordinance . . . must be pleaded by both section number and caption.” Id. at 8. Here, the charging documents only reference the Monroe city ordinance by number, and failed to include the caption “Firearms and other weapons.” The court found the state failed to prove the ordinance at trial, and vacated defendant’s conviction for the discharge of a firearm within city limits charge.