State v. Moore, COA23-816, ___ N.C. App. ___ (Oct. 15, 2024)

In this Cumberland County case, defendant appealed after his convictions for first-degree murder, first-degree kidnapping, and common law robbery, arguing error in (1) denying his motion to suppress the results of a search of his former residence, (2) denying his motion to dismiss the kidnapping charge because it represented double jeopardy, (3) admitting Rule 404(b) evidence, and (4) excluding some of defendant’s testimony. The Court of Appeals majority found no error in (1), (3) or (4), but in (2) found that the kidnapping charge represented double jeopardy, vacating the sentence for kidnapping.

In August of 2018, police performed a wellness check on defendant’s wife after members of her family reported not hearing from her for a week. When she did not respond, police entered the residence and discovered her bound and cuffed to a bed with trash bags over her head, dead from apparent asphyxiation. The police officers also determined that defendant had not paid rent for the month and the landlord was preparing to evict them from the residence.

Taking up (1), the Court of Appeals explained that the trial court properly applied the inevitable discovery doctrine in this matter when admitting the evidence obtained from the residence, explaining the victim “would have been inevitably discovered by either her family or by the landlord who had begun eviction proceedings.” Slip Op. at 4. The court also noted that defendant had permanently abandoned the residence, forfeiting his standing to challenge the search.

Moving to (2), the court quoted State v. Prevette, 367 N.C. 474 (1986), for the concept that the State must admit “substantial evidence of restraint, independent and apart from the murder” to support a separate kidnapping charge. Slip Op. at 6. Here, the facts were similar to Prevette, as the victim’s “hands, feet, and arms were restrained [and] she could not remove the bags that caused her suffocation” based on the evidence. Id. at 5. The court acknowledged that the restraint of the victim’s legs and feet did not cause her suffocation, but noted that the legs and feet of the victim in Prevette were bound as well. Because there was no evidence that the victim was restrained “independently and apart from the murder,” the court vacated defendant’s sentence for kidnapping. Id. at 7.

Reaching (3), the court noted that the testimony in question dealt with a prior incident where defendant put his hands around the victim’s neck, but because of the overwhelming evidence of defendant’s guilt, defendant could not demonstrate prejudice from the testimony. In (4), the court found that defendant failed to “raise his argument as a constitutional issue” and the argument was waived on appeal. Id.at 8.

Judge Thompson dissented and would have found restraint of the victim independent and apart from the murder due to the additional restraints present and the evidence that defendant spent some amount of time smoking cigarettes and drinking coffee while the victim was restrained.