State v. Robinson, 279 N.C. App. 643, 2021–NCCOA–533 (Oct. 5, 2021)

The defendant was indicted for trafficking opium and possession of a firearm by a felon, and he filed a motion to suppress evidence obtained during a search of his residence on the grounds that the officers executing the search turned off their body cameras after conducting the initial walk-through of the residence. The trial court denied the motion to suppress, finding that there was no evidence of bad faith and no showing that any materially exculpatory evidence was lost – only potentially useful evidence was lost. The defendant pleaded guilty, and the trial court declined the defendant’s request to make a substantial assistance deviation at sentencing, but did make note of his assistance and imposed one consolidated sentence of 90 to 120 months. The defendant filed a notice of appeal and a petition for writ of certiorari.

The appellate court first found that the defendant failed to preserve his right to appeal because he did not give notice of his intent to appeal when the plea was entered. However, the court granted the petition for writ of certiorari and reached the merits on the grounds that the defendant’s trial counsel was responsible for this deficiency, rather than the defendant. Defendant’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he could not find any meritorious issues to argue and asking the court to conduct its own review. The appellate court reviewed the record and the majority likewise concluded that there were no meritorious issues regarding the sufficiency of the indictments, denial of the motion to suppress, factual basis for the guilty plea, or sentencing. On the motion to suppress, the majority agreed with the trial court that there was no evidence of bad faith on the part of the officers in turning off their body cameras, since they were instructed to do so by a supervisor on scene after the walk-through was completed, and they were acting in accordance with their department’s policy. Additionally, the defendant was present during the execution of the search warrant, and there was no showing that any materially exculpatory evidence was lost. The majority therefore found no error.

Judge Murphy dissented, and would have remanded the case for appointment of new appellate counsel to brief issues of potential merit, including whether the officers’ execution of the search warrant may have violated the notice and entry requirements in G.S. 15A-249, and whether the trial court may have erred in its application of the substantial assistance provisions in G.S. 90-95(h)(5).