Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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On remand from the Supreme Court, __ N.C. __, 814 S.E.2d 39 (June 8, 2018), of this DWI case, the Court of Appeals declined to exercise its discretion to grant the defendant’s petition for a writ of certiorari to review her claim that the trial court erred by denying her motion to dismiss. The defendant’s motion to dismiss asserted that the State violated G.S. 20-38.4, G.S. 15A-534, and State v. Knoll, 322 N.C. 535 (1988), when the magistrate failed to provide her a written copy of form AOC-CR-271, advising of her right to have witnesses observe her demeanor in jail; and failed to enter sufficient findings of fact to show that the defendant was a danger to herself and others to justify imposing a secured bond pursuant to G.S. 15A-534. Dismissal of charges for violations of statutory rights is a drastic remedy which should be granted sparingly. Before a motion to dismiss should be granted it must appear that the statutory violation caused irreparable prejudice to the preparation of the defendant’s case.
On the first issue, the State conceded that the magistrate did not comply with G.S. 20-38.4 in that the magistrate did not inform the defendant in writing of the established procedure to have others appear at the jail to observe her condition and failed to require her to list all persons she wanted to contact and telephone numbers on the relevant form. However, the State argued that the defendant could not demonstrate irreparable prejudice to the preparation of her case because the magistrate orally informed the defendant of her right to have witnesses present to observe her condition. In denying the motion to dismiss, the trial court found that the magistrate told the defendant of her right to have individuals come to the detention center to observe her condition and that once she was placed in the detention center, the defendant was allowed to make phone calls to several identified people. These findings are supported by competent evidence.
With respect to the defendant’s argument that the magistrate violated G.S. 15A-534, the magistrate testified that he considered the defendant’s condition in deciding whether to impose a secured bond and initially entered his reasons on his computer for imposing a secured bond into the “FINDINGS” section of form AOC-CR-270. However, he accidently deleted his reasons listed on form AOC-CR-270 and they were replaced with the text and finding of “BLOOD TEST.” Competent evidence supports the trial court’s findings that the magistrate considered the factors in G.S. 15A-534 in setting the defendant’s bond, and found by clear, cogent, and convincing evidence that the defendant’s physical or mental faculties were impaired and that she was a danger to herself, others or property if released.
The defendant failed to show that she was denied access to witnesses, her right to have witnesses observe her condition, or her right to collect evidence and did not demonstrate irreparable prejudice to the preparation of her case by the magistrate’s statutory violations and failures to provide her with a copy of form AOC-CR-271 or to make additional factual findings to justify imposing a secured bond under G.S. 15A-534. The court noted that the defendant was informed of her right to have witnesses observe her and had the means and was provided the opportunity to contact potential witnesses. Additionally, the magistrate’s detention order required the defendant to remain in custody for a twelve-hour period or until released into the custody of a sober, responsible adult. In fact, the defendant was released into the custody of a sober acquaintance after spending only two hours and fifty-three minutes in jail.
The court went on to reject the defendant’s argument that she was per se prejudiced by the magistrate’s statutory violations, pursuant to State v. Hill, 277 N.C. 547 (1971). Distinguishing Hill the court noted that no evidence in the record suggests the State took affirmative steps to deprive the defendant of any access to potential witnesses or an attorney, such as by preventing them from talking to the defendant or entering the jail to observe her. It continued: “Unlike the defendant in Hill, Defendant was told of her right to have observers present, was not limited to one phone call following her arrest, was allowed and did make numerous calls to multiple individuals and was released to a sober adult within less than three hours. Additionally, the Supreme Court later acknowledged in Knoll that the per se prejudice rule stated in Hill is no longer applicable.”
Ultimately the court found that the defendant’s arguments failed to demonstrate “irreparable prejudice to the preparation of defendant’s case” and that that she did not raise any “good and sufficient cause” to support the court’s exercise of its discretion to grant her petition and issue the writ of certiorari.
Affirming a divided decision below, Lee v. Gore, 206 N.C. App. 374 (Aug. 17, 2010), the court held that the Division of Motor Vehicles (DMV) may not revoke driving privileges for a willful refusal to submit to chemical analysis absent receipt of an affidavit swearing that the refusal was indeed willful. The court reasoned that because G.S. 20-16.2(d) requires that the DMV first receive a “properly executed affidavit” from law enforcement swearing to a willful refusal to submit to chemical analysis before revoking driving privileges, DMV lacked the authority to revoke the petitioner’s driving privileges. In this case, the officer swore out the DHHS 3907 affidavit and attached to that affidavit the DHHS 3908 chemical analysis result form indicating the test was “refused.” However, neither document indicated that the petitioner’s refusal to participate in chemical analysis was willful.
In this license revocation case arising from a DWI charge, the court concluded that the DMV did not have jurisdiction to revoke the petitioner’s drivers license because the affidavit submitted to the DMV showed that the arresting officer designated a blood test but that the petitioner refused a breath test. Quoting extensively from Lee v. Gore, 365 N.C. 227 (2011) and emphasizing the DMV’s “limited authority” to suspend a driver’s license, the court explained that because the Affidavit and Revocation Report of Law Enforcement Officer form (DHHS 3907) filed in this case “states that [the officer] designated one type of test and the petitioner refused another type of test,” it did not evidence a willful refusal under G.S. 20-16.2 – a necessary condition precedent under these circumstances to the DMV’s exercise of jurisdiction to revoke the petitioner’s license.
The trial court erred by determining that a clerical error on a law enforcement officer’s affidavit under G.S. 20-16.2(d) divests the DMV of its authority to suspend the driving privileges of a person who has willfully refused to submit to a chemical analysis when charged with an implied consent offense where the error does not involve an element of the offense of willful refusal. The clerical error involved listing the time of refusal as 3:45 am instead of 3:47 am.
(1) In an appeal of a driver’s license revocation under G.S. 20-16.2(e), the court declined to consider the defendant’s argument that the officer lacked reasonable and articulable suspicion to stop his vehicle. Reasonable and articulable suspicion for the stop is not relevant to determinations in connection with a license revocation; the only inquiry with respect to the officer, the court explained, is that he or she have reasonable grounds to believe that the person has committed an implied consent offense. Here, the evidence supported that conclusion. (2) The exclusionary rule does not apply in a civil license revocation proceeding.
The trial court did not err by denying the defendant’s motion to suppress in this DWI case. The defendant had argued that the arresting officer failed to comply with the requirements of G.S. 20-16.2. Specifically, the defendant asserted that he was not adequately informed of his rights under the statute due to the fact that English is not his first language and that the officer’s failure to ensure that these rights were communicated to him in his native language of Burmese resulted in violation of the statute. The court held that State v. Martinez, __ N.C. App. __, 781 S.E.2d 346 (2016) (holding that the admissibility of the results of a chemical analysis test are not conditioned on a defendant’s subjective understanding of the information disclosed to him pursuant to the requirements of G.S. 20-16.2(a)), was controlling. It held: “as long as the rights delineated under N.C. Gen. Stat. § 20-16.2(a) are disclosed to a defendant — which occurred in the present case — the requirements of the statute are satisfied and it is immaterial whether the defendant comprehends them.”
The trial court properly denied the defendant’s motion to suppress the results of the chemical analysis of his breath. The defendant argued that the officer failed to comply with the statutory requirement of a 15 minute “observation period” prior to the administration of the test. The observation period requirement ensures that “a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” However, that “nothing in the relevant regulatory language requires the analyst to stare at the person to be tested in an unwavering manner for a fifteen minute period prior to the administration of the test.” Here, the officer observed the defendant for 21 minutes, during which the defendant did not ingest alcohol or other fluids, regurgitate, vomit, eat, or smoke; during this time the officer lost direct sight of the defendant only for very brief intervals while attempting to ensure that his right to the presence of a witness was adequately protected. As such, the officer complied with the observation period requirement.
The trial court erred by denying the defendant’s motion to suppress intoxilyzer results. After arrest, the defendant was informed of his rights under G.S. 20-16.2(a) and elected to have a witness present. The defendant contacted his witness by phone and asked her to witness the intoxilyzer test. Shortly thereafter his witness arrived in the lobby of the County Public Safety Center; when she informed the front desk officer why she was there, she was told to wait in the lobby. The witness asked the front desk officer multiple times if she needed to do anything further. When the intoxilyzer test was administered, the witness was waiting in the lobby. Finding the case indistinguishable from State v. Hatley, 190 N.C. App. 639 (2008), the court held that after her timely arrival, the defendant’s witness made reasonable efforts to gain access to the defendant but was prevented from doing so and that therefore the intoxilyzer results should have been suppressed.
On the facts, the trial judge did not err in concluding that the petitioner willfully refused to submit to a breath test.
The superior court erred in reversing a DMV civil revocation of a driver’s license in a case where the appellee refused to consent to a chemical analysis after being charged with DWI. An officer responded to a call that a driver had fallen asleep in the drive-through lane of a fast food restaurant and discovered the appellee asleep in the driver’s seat of her vehicle, which was not running and was parked in the parking lot. After an investigation where the appellee admitted to falling asleep while in the drive-through lane and failed a field sobriety test, she was charged with DWI. The appellee refused to consent to a blood sample for a chemical analysis, causing the DMV to revoke her license pursuant to G.S. 20-16.2 and sustain the revocation following an administrative hearing. The superior court reversed the revocation on two grounds, finding that there was a lack of evidence that the appellee was operating a motor vehicle and also finding that the procedures of G.S. 20-16.2 deprived the appellee of due process. Leaving open the question of whether there was sufficient evidence to convict the appellee of DWI, the Court of Appeals found that the officer had probable cause to believe that the appellee was operating the vehicle, as required by the statute. As for the due process issue, the Court of Appeals found that the procedures prescribed by G.S. 20-16.2 do not violate due process merely because DMV hearing officers are DMV employees and there is no attorney at revocation hearings putting on the State’s case.
(1) After accepting a defendant’s guilty plea to DWI, the district court had no authority to arrest judgment. (2) Once the defendant appealed to superior court from the district court’s judgment for a trial de novo, the superior court obtained jurisdiction over the charge and the superior court judge erred by dismissing the charge based on alleged non-jurisdictional defects in the district court proceedings.
On discretionary review of a unanimous, unpublished decision, the court held that the Court of Appeals improperly dismissed the State’s appeal on grounds that the trial court’s order had not been properly entered. The court noted that in a criminal case, a judgment or order is entered when the clerk of court records or files the judge’s decision; entry of an order does not require that the trial court’s decision be reduced to writing. Here, after the superior court announced its decision to affirm the district court order, the courtroom clerk noted in the minutes that “Court affirms appeal. State appeals court ruling.” As a result, the order from which the State noted its appeal was properly entered.
The trial court’s oral, in-court denial of the defendant’s motions, memorialized on form AOC-CR-305 (Judgment/order or other disposition) constituted entry of an order notwithstanding the fact that the trial judge stated that “ADA Mark Stevens will prepare the order” and no such order was prepared.
The Court held, in this federal habeas case, that the Alabama courts’ refusal to provide a capital murder defendant with expert mental health assistance was contrary to, or involved an unreasonable application of, clearly established federal law. After the jury recommended that the defendant receive the death penalty, the trial court scheduled a judicial sentencing hearing for about six weeks later. It also granted a defense motion for neurological and neuropsychological exams on the defendant for use in connection with the sentencing hearing. Consequently, Dr. John Goff, a neuropsychologist employed by the State’s Department of Mental Health, examined the defendant. He filed his report two days before the judicial sentencing hearing. The report concluded, in part, that the defendant presented “some diagnostic dilemmas.” On the one hand, the defendant was “obviously attempting to appear emotionally disturbed” and “exaggerating his neuropsychological problems.” But on the other hand, it was “quite apparent that he ha[d] some genuine neuropsychological problems,” including “cortical dysfunction attributable to right cerebral hemisphere dysfunction.” The report added that the defendant’s “obvious neuropsychological deficit” could be related to his “low frustration tolerance and impulsivity,” and suggested a diagnosis of “organic personality syndrome.” Right before the hearing, defense counsel received updated records indicating that the defendant was taking an assortment of psychotropic medications. Over a defense objection that assistance from a mental health expert was needed to interpret the report and information, the hearing proceeded. The trial court sentenced the defendant to death. It later issued a written sentencing order, finding that the defendant “was not and is not psychotic,” and that “the preponderance of the evidence from these tests and reports show [the defendant] to be feigning, faking, and manipulative.” It further found that even if his mental health issues “did rise to the level of a mitigating circumstance, the aggravating circumstances would far outweigh this as a mitigating circumstance.” The case came before the U.S. Supreme Court on habeas. The Court began by noting that Ake v. Oklahoma, 470 U. S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” Here, no one denied that the conditions that trigger application of Ake are present: the defendant is and was an indigent defendant, his mental condition was relevant to the punishment he might suffer, and that mental condition--his sanity at the time of the offense--was seriously in question. As a result Ake, required the State to provide the defendant with access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. The question before the Court was: whether the Alabama courts’ determination that the defendant got all the assistance that Ake requires was contrary to, or involved an unreasonable application of, clearly established federal law. The defendant urged the Court to answer this question “yes,” asserting that a State must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties. The Court however found that it need not decide whether this claim is correct. It explained:
Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively “assist in evaluation, preparation, and presentation of the defense.” As a practical matter, the simplest way for a State to meet this standard may be to provide a qualified expert retained specifically for the defense team. This appears to be the approach that the overwhelming majority of jurisdictions have adopted. It is not necessary, however, for us to decide whether the Constitution requires States to satisfy Ake’s demands in this way. That is because Alabama here did not meet even Ake’s most basic requirements.
Here, although the defendant was examined by Dr. Goff, neither Goff nor any other expert helped the defense evaluate Goff’s report or the defendant’s extensive medical records and translate these data into a legal strategy; neither Goff nor any other expert helped the defense prepare and present arguments that might, for example, have explained that the defendant’s purported malingering was not necessarily inconsistent with mental illness; and neither Goff nor any other expert helped the defense prepare direct or cross-examination of any witnesses, or testified at the judicial sentencing hearing himself. The Court concluded: “Since Alabama’s provision of mental health assistance fell so dramatically short of what Ake requires, we must conclude that the Alabama court decision affirming [the defendant’s] conviction and sentence was contrary to, or involved an unreasonable application of, clearly established Federal law.”
The trial court did not abuse its discretion by denying the defendant’s motion seeking funds to hire an expert to retest DNA samples in this rape and kidnapping case. Prior to trial, the defendant retained an expert to review DNA testing done by the State’s DNA expert. Although the defendant’s expert criticized certain procedures used in the State’s expert and took issue with some of her characterizations of the degree of similarity between the various samples, he did not dispute the ultimate results of that DNA analysis. After this expert submitted his report, the defendant moved for funding to hire another expert to retest the DNA samples. The trial court denied the motion, noting in part that the defendant’s prior expert did not recommend the use of a new, more accurate testing procedure unavailable at the time of the State’s DNA test.
The trial court properly extended the session. After the State rested on Friday, the trial court announced that it would be in recess until the following Tuesday. The defendant did not object to the announcement. Prior to dismissing the jurors on Friday, the trial court again informed them in open court that court would be in recess until Tuesday. Again, the defendant offered no objection. Court resumed on Tuesday, without objection from the defendant, and the defendant was convicted. The court found that the trial court sufficiently complied with G.S. 15-167 and properly extended the session.
Although the trial judge did not enter a formal order extending the session, the judgment was not null and void. The trial judge repeatedly announced that it was recessing court and the defendant made no objection at the time. On these facts there was sufficient compliance with G.S. 15-167.
The court rejected the capital defendant’s claim that the prosecution knowingly elicited or failed to correct false testimony. In victim Cooke’s pretrial statements, she related that the defendant said that he had nothing to live for. When asked at trial whether the defendant made that statement, Cooke responded: “Not in those terms, no.” The court concluded that it was not apparent that Cooke testified falsely or that her trial testimony materially conflicted with her pretrial statements. Moreover, it found that any inconsistency was addressed during cross-examination. Finally, the court concluded, even if Cooke perjured herself, there is no indication that the State knew her testimony was false.
The defendant was convicted of murder for shooting and killing the victim in the parking lot of a dance club. Before trial, a witness to the shooting met with prosecutors to review her 35-page statement to the police and prepare her trial testimony. During that interview, the witness stated that she did not see the shooting but she saw the defendant holding a gun and running towards the victim. The state provided notes from that interview to the defense. At trial, however, the witness testified that she saw the defendant stand over the victim and shoot him. The defense asked the court to instruct the state to enter into a stipulation or make a statement to the jury explaining that the witness had not previously claimed she saw the shooting. The state responded that it had no knowledge the witness would testify inconsistently with her prior statement, it had complied with the discovery rules by turning over the prior statement and interview notes, and any discrepancies should be addressed on cross-examination. The trial court did not order the state to enter a stipulation or address the jury, and instead offered the defense an opportunity to conduct additional cross-examination, which the defense declined. The Court of Appeals affirmed the trial court’s ruling and rejected the defendant’s argument that the state knowingly presented false testimony in violation of defendant’s due process rights. Even if the witness’s trial testimony was false, the defendant failed to show that: (1) the testimony was material; and (2) the state knowingly and intentionally used that false testimony to convict the defendant. First, the defendant did not show that the testimony was material because other witness testimony and circumstantial evidence established that the defendant shot the victim. Second, the defendant did not show that state deliberately used false testimony because the state was not aware that the witness would testify inconsistently with her prior statement and pretrial interview. Any discrepancies between the witness’s prior statements and her trial testimony were matters of credibility, and they were properly addressed through impeachment on cross-examination.
This Iredell County case began when officers with the Mooresville Police Department seized $16,761 from the defendant’s vehicle while defendant fled the scene (the officers apparently suspected the defendant of drug activity). A few days later, the defendant filed a motion in state district court seeking return of the money on the grounds that the seizure was unlawful. The next day, while the motion was pending, the United States Department of Homeland Security “adopted” the case, and the Mooresville Police Department transferred the money to federal authorities. The state district court nonetheless granted the defendant’s motion and ordered the funds returned to the defendant. When the police department responded that it couldn’t comply because it didn’t have the money anymore, the state district court found that it had in rem jurisdiction over the funds, reaffirmed its prior order, held the police department and the city in contempt, and ordered them to purge the contempt by paying $16,761 to the defendant.
The Court of Appeals reviewed the matter under its certiorari jurisdiction. It noted that North Carolina generally employs criminal forfeiture, not civil forfeiture. And criminal forfeiture relies upon in personam jurisdiction, not the in rem jurisdiction associated with civil forfeiture. Therefore, the state district court never had in rem jurisdiction over the money, and its legal reasoning was tainted by this fundamental error. Further, under State v. Hill, 153 N.C. App. 716 (2002), “[o]nce a federal agency has adopted a local seizure, a party may not attempt to thwart the forfeiture by collateral attack in our courts, for at that point exclusive original jurisdiction is vested in the federal court.” The Court of Appeals questioned Hill’s conclusion that adoption by a federal law enforcement agency deprives the state courts of jurisdiction – instead, the court seemed to think that state jurisdiction should be lost only when a federal court acts to exercise jurisdiction – but it felt bound by Hill and accordingly vacated the trial court’s orders. The court noted that defendant’s sole remedy was to seek return of the funds in federal court.
A defendant who pleaded guilty to felony possession of marijuana had no right to appeal the trial court’s order forfeiting $400 in cash seized from his car under G.S. 90-112(a)(2).
Carlos Chavez and Luis Lopez, initially charged with state crimes and held in pretrial detention in the Mecklenburg County Jail, both became eligible for release from their state charges on October 13, 2017. But they were not released. The Sheriff, a participant in a § 287(g) agreement with the Department of Homeland Security, continued to hold them on immigration-related warrants and detainers. That same day, both men filed petitions for a writ of habeas corpus. A superior court judge entered orders finding that the men were being unlawfully detained and ordered their discharge from custody. The Sheriff declined to release either petitioner and delivered them to federal immigration custody. In November 2017, the Sheriff filed petitions for writ of certiorari with the Court of Appeals to review the trial judge’s orders, and a writ of prohibition seeking to preclude similar orders in the future. The next month, the Court of Appeals allowed the petitions and entered an order prohibiting a trial court from issuing a writ of habeas corpus for a person detained pursuant to a 287(g) agreement. The following year the Court of Appeals vacated the trial court orders for lack of jurisdiction, concluding that they infringed upon the federal government’s exclusive authority over immigration matters. Chavez v. Carmichael, 262 N.C. App. 196 (2018).
The Supreme Court allowed discretionary review and affirmed in part. The Court concluded as a threshold matter that although the matter was rendered moot when the Sheriff turned the men over to immigration authorities, the case fell within the scope of the public interest exception to the mootness doctrine. Proceeding to the merits, the Court concluded that a state court judge cannot interfere with the custody and detention of individuals held pursuant to federal authority, which includes state officials acting in accordance with a § 287(g) agreement. A trial court has jurisdiction to determine as an initial matter whether it has the authority to issue the writ, but once that initial examination of the application shows that the petitioner is being held pursuant to an immigration-related warrant or detainer, the trial court should summarily deny the application. Here, the applications, on their face, informed the judge that the petitioners were being held on immigration related process by a custodian who was a party to a § 287(g) agreement, and should therefore have been denied. The Court said the Court of Appeals erred to the extent that it held that the trial court lacked jurisdiction to make even an initial determination as to the basis for the petitioners’ detention, and also by addressing the extent to which habeas relief is available to petitioners detained on immigration-related documents by sheriffs who are not parties to § 287(g) agreements. In a footnote, the Court vacated the portion of the Court of Appeals’ decision ordering that a copy of its decision be sent to the Judicial Standards Commission.
The defendant, who was serving prison sentences for obtaining property by false pretenses, filed a petition for habeas corpus on June 15, 2020 alleging that his continued imprisonment during the COVID-19 pandemic violated the state and federal constitutional guarantees against cruel and unusual punishment. The trial court summarily denied the petition the same day on the basis that the defendant was held pursuant to a valid final judgment in a criminal case entered by a court with proper jurisdiction, citing G.S. 17-4(2).
The Court of Appeals granted certiorari review. Six days after oral argument, the defendant was released to serve the remainder of his sentence outside of prison. Notwithstanding the defendant’s release, the Court addressed the merits of the petition pursuant to the public interest exception to the mootness doctrine.
Applying de novo review, the Court of Appeals determined that the trial court’s summary denial of the petition was proper even though its reasons for doing so were legally incorrect. After reviewing the origins, evolution and limits of the writ of habeas corpus under state law, the Court concluded that the general rule in G.S. 17-4(2) is subject to the exception in G.S. 17-33(2),which provides that discharge of a lawful term of imprisonment may be based upon “some act, omission or event” that takes place after the judgment is entered.
The Court determined, however, that the defendant failed to make a threshold showing of evidence individualized to the circumstances of his case that such an act, omission or event had occurred. While the defendant averred that he had a “long history of respiratory illness” and submitted information about the risks of COVID-19 for prisoners, he did not submit materials that showed how his medical conditions put him at an elevated risk for serious illness or other medical complications from COVID-19. Affidavits submitted by defendant and his wife in which they opined about the risks COVID-19 posed to the defendant based on his medical history and diagnoses were insufficient to bridge the gap between the defendant’s individual circumstances and the general information regarding the dangers of COVID-19 to people with respiratory conditions and confined in prison since neither defendant nor his wife had the requisite expert qualifications. In addition, the defendant’s medical records, which showed that the Division of Public Safety first learned of the defendant’s history of respiratory illness after news of the pandemic was widespread, did not provide a colorable basis for concluding that the defendant’s claims had merit.
In this appeal by the Mecklenburg County Sheriff from orders of the Superior Court ordering the Sheriff to release two individuals from his custody, the court vacated and remanded to the trial court to dismiss the habeas corpus petitions for lack of subject matter jurisdiction. Defendant Lopez was arrested for common law robbery and other charges and was incarcerated in the County Jail after arrest on a $400 secured bond. He then was served with an administrative immigration arrest warrant issued by the Department of Homeland Security (DHS). Additionally DHS served the Sheriff with an immigration detainer, requesting that the Sheriff maintain custody of Lopez for 48 hours to allow DHS to take custody of him. Defendant Chavez was arrested for impaired driving and other offenses and detained at the County Jail on a $100 cash bond. He also was served with a DHS administrative immigration warrant, and the Sheriff’s office was served with a DHS immigration detainer for him. On October 13, both defendants satisfied the conditions of release set on their state charges, but the Sheriff continued to detain them pursuant to the immigration detainers and arrest warrants. That day they filed petitions for writs of habeas corpus in Superior Court. The Superior Court granted both petitions and, after a hearing, determined that the defendant’s detention was unlawful and ordered their immediate release. However, before the court issued its orders, the Sheriff’s office had turned physical custody of both of the defendants over to ICE officers. The Sheriff sought appellate review.
The court began by rejecting the defendants’ argument that the cases were moot because they were in ICE custody. The court found that the matter involves an issue of federal and state jurisdiction invoking the “public interest” exception to mootness, specifically, the question of whether North Carolina state courts have jurisdiction to review habeas petitions of alien detainees held under the authority of the federal government.
The court also rejected the defendants’ argument that it should not consider the 287(g) Agreement between the Sheriff and ICE because the Agreement was not submitted to the Superior Court. It noted, in part, that the Agreement is properly in the record on appeal and an appellate court may consider materials that were not before the lower court to determine whether subject matter jurisdiction exists.
On the central issue, the court held that the Superior Court lacked subject matter jurisdiction to review the defendants’ habeas petitions. It began by rejecting the defendants’ argument that the Superior Court could exercise jurisdiction because North Carolina law does not allow civil immigration detention, even when a 287(g) Agreement is in place. Specifically, they argued that G.S. 162-62 prevents local law enforcement officers from performing the functions of immigration officers or assisting DHS in civil immigration detentions. The court declined to adopt a reading of the statute that would forbid Sheriffs from detaining prisoners who were subject to immigration detainers and administrative warrants beyond the time they would otherwise be released from custody or jail under state law. Moreover, the court noted that G.S. 128-1.1 specifically authorizes state and local law enforcement officers to enter into 287(g) agreements and perform the functions of immigration officers, including detaining aliens.
Finding the reasoning of cases from other jurisdictions persuasive, the court held that “[a] state court’s purported exercise of jurisdiction to review the validity of federal detainer requests and immigration warrants infringes upon the federal government’s exclusive federal authority over immigration matters.” As a result, the trial court did not have subject matter jurisdiction or any other basis to receive and review the habeas petitions or issue orders other than to dismiss for lack of jurisdiction.
Further, it held that even if the 287(g) Agreement between the Sheriff and ICE did not exist or was invalid, federal law—specifically, 8 U.S.C. § 1357(g)(10)(A)-(B)--allows and empowers state and local authorities and officers to communicate with ICE regarding the immigration status of any person or otherwise to cooperate with ICE in the identification, apprehension, detention, or removal of aliens unlawfully in the United States. It continued: “A state court’s purported exercise of jurisdiction to review petitions challenging the validity of federal detainers and administrative warrants issued by ICE, and to potentially order alien detainees released, constitutes prohibited interference with the federal government’s supremacy and exclusive control over matters of immigration.”
The court added: “[a]n additional compelling reason that prohibits the superior court from exercising jurisdiction to issue habeas writs to alien petitioners, is a state court’s inability to grant habeas relief to individuals detained by federal officers acting under federal authority.” The court cited Supreme Court decisions as standing for the proposition that no state judge or court after being judicially informed that a person is imprisoned under the authority of the United States has any right to interfere with the person or require the person to be brought before the court. On this point it stated: “In sum, if a prisoner’s habeas petition indicates the prisoner is held: (1) under the authority, or color of authority, of the federal government; and, (2) by an officer of the federal government under the asserted ‘authority of the United States’, the state court must refuse to issue a writ of habeas corpus.” Here, it was undisputed that the Sheriff’s continued detention of the defendants after they were otherwise released from state custody was pursuant to federal authority delegated to the Sheriff’s office under the 287(g) Agreement, and after issuance of immigration arrest warrants and detainers. Additionally, 8 U.S.C. § 1357(g)(3) indicates state and local law enforcement officers act under color of federal authority when performing immigration functions authorized under 287(g) agreements. Thus, the Sheriff was acting under the actual authority of the United States by detaining the defendants under the immigration enforcement authority delegated to him under the agreement, and under color of federal authority provided by the administrative warrants and detainer requests. The court next turned to whether the Sheriff was acting as a federal officer under the 287(g) Agreement by detaining the defendants pursuant to the detainers and warrants, noting that the issue was one of first impression. Considering federal authority on related questions, the court concluded: “To the extent personnel of the Sheriff’s office were deputized or empowered by DHS or ICE to perform immigration functions, including detention and turnover of physical custody, pursuant to the 287(g) Agreement, we find . . . federal cases persuasive to conclude the Sheriff was empowered and acting as a federal officer by detaining Petitioners under the detainer requests and administrative warrants.” Because the defendants were being detained under express, and color of, federal authority by the Sheriff who was acting as a de facto federal officer, the Superior Court was without jurisdiction, or any other basis, to receive, review, or consider the habeas petitions, other than to dismiss them for lack of jurisdiction, to hear or issue writs, or intervene or interfere with the defendants’ detention in any capacity. The court went on to hold that the proper jurisdiction and venue for the defendants’ petitions is federal court.
The trial court erred by granting the defendant habeas relief and dismissing two first-degree capital murder charges. The trial court concluded that the victims were previable fetuses that did not meet the born alive rule for murder. It thus dismissed the murder charges. The court concluded that this was error, reasoning that whether the fetuses could be deemed living persons within the meaning of the homicide statute was a factual issue for the jury.
(1) When a trial judge conducts an initial review of an application for the issuance of a writ of habeas corpus, the issues are whether the application is in proper form and whether the applicant has established a valid basis for believing that he or she is being unlawfully detained and entitled to be discharged. In making this determination, the trial court is simply required to examine the face of the applicant’s application, including any supporting documentation, and decide whether the necessary preliminary showing has been made. Given the nature of the inquiry, there is no reason to require findings of fact and conclusions of law at this initial review stage. The decision whether an application should be summarily denied or whether additional proceedings should be conducted is a question of law and is reviewed de novo. (2) Where the trial court summarily denied the defendant’s application, it had no obligation to make findings of fact or conclusions of law and thus its failure to do so does not provide a valid basis for overturning its order on appeal. (3) The trial court did not err by summarily denying the defendant’s application where the defendant failed to establish that he had a colorable claim to be entitled to be discharged from custody based on an alleged deprivation of a constitutionally protected liberty interest established by a MAPP contract.
The State conceded, and the court held, that the trial court should not have sentenced the defendant as a habitual felon where the issue was not submitted to the jury and no formal guilty plea was made. Here, the defendant only stipulated to habitual felon status.
The trial court erred in sentencing the defendant as a habitual felon because the issue was neither submitted to the jury nor addressed by a guilty plea. A mere stipulation to the prior felonies is insufficient; there must be a jury verdict or a record of a guilty plea.
After violating his probation, the defendant was indicted on charges of interfering with an electronic monitoring device and attaining the status of a habitual felon. The habitual felon indictment charged defendant with attaining habitual felon status based on three prior felony convictions in McDowell County: (1) a June 4, 2001 conviction for felonious breaking and entering; (2) a February 18, 2010 conviction for felonious breaking and entering; and (3) a July 22, 2014 conviction for safecracking. At trial, the State admitted into evidence certified copies of the judgments for the latter two convictions to prove their existence.
Although the State could not obtain the original judgment associated with the June 4, 2001 conviction, the State introduced as an exhibit a computer printout from the Automated Criminal/Infraction System (ACIS). The Clerk of Court for McDowell County testified that ACIS is a statewide computer system relied on by courts and law enforcement agencies for accessing information regarding a defendant’s criminal judgments, offense dates, and conviction dates, manually entered into the database by an employee in the Clerk of Court’s office. The ACIS printout offered by the State showed that the defendant had been convicted of felonious breaking and entering on June 4, 2001, and the Clerk testified that the printout was a “certified true copy of the ACIS system.” The trial court admitted the printout into evidence over the defendant’s objection, and the jury found that the defendant had attained the status of a habitual felon.
On appeal, the defendant unsuccessfully argues that the trial court improperly allowed the ACIS printout because G.S. 14-7.4 contained the exclusive methods for proving prior convictions in a proceeding to determine habitual felon status. The Court of Appeals concluded that the statute was permissive and did not exclude methods of proof not specifically delineated in the Habitual Felons Act. The Supreme Court affirmed. The Court relied on the presence of the word “may” in the statute, as well as its prior interpretation of the Fair Sentencing Act, which contained similar language.
The dissenting Court of Appeals judge concluded that the introduction of the printout violated the best evidence rule because the printout was introduced as evidence of the defendant’s prior convictions and was not the original judgment. The majority rejected this argument, noting that the best evidence rule applies only when the contents of a document are at issue. The Court reasoned that here, the issue was not the contents of the conviction but rather the existence of the conviction. However, in a concurring opinion, Chief Justice Beasley noted that the nature of the Habitual Felons Act requires that the State prove that the defendant did, in fact, commit three prior felony offenses, and to do so requires the court to consider the contents of the record to be introduced for the purpose of confirming “that said person has been convicted of former felony offenses.” While the Chief concluded that the best evidence rule did apply to the introduction of the printout, the Chief noted that the State complied with the rule through the printout coupled with the Clerk’s testimony.
In this habitual larceny case where the defendant was sentenced as a habitual felon, the use of an ACIS printout to prove one of the defendant’s prior convictions during the habitual felon phase of trial was competent evidence that did not violate the best evidence rule. Citing State v. Waycaster, ___ N.C. App. ___, 818 S.E.2d 189 (2018), the court explained that G.S. 14-7.4 permits an original or certified copy of the court record of a prior conviction to be admitted into evidence to prove the prior conviction but does not mandate that manner of proof. The same case held that a certified copy of an ACIS printout is sufficient evidence of a prior conviction under the habitual felon statute.
The trial court committed reversible error by failing to instruct the jury to disregard evidence about the defendant’s habitual felon indictment when that evidence was elicited during the trial on the underlying charges. Although the trial court sustained defense counsel’s objection and instructed the jury to strike a portion of the testimony given by an officer, it was required to give a curative instruction as to additional testimony offered by the officer.
In this Craven County case, defendant appealed her guilty plea to habitual felon status, arguing the reclassification of the offense she was convicted of in Colorado from a felony to a misdemeanor removed the factual basis for her plea. The Court of Appeals majority disagreed, finding no error.
Defendant was convicted by a jury of nine counts of embezzlement and one count of obtaining property by false pretenses in August of 2022. After her conviction, she pleaded guilty to attaining habitual felon status, based in part on a Colorado conviction for second-degree forgery in 1991. In 1993, Colorado reclassified second-degree forgery as a misdemeanor. During the colloquy required by G.S. 15A-1022(c), the trial court examined evidence showing the felony conviction from 1991, and defense counsel did not object to the factual basis of the conviction, even incorrectly stating that second-degree forgery was still a felony in Colorado.
Taking up defendant’s argument, the Court of Appeals first established that it had jurisdiction to review her guilty plea under G.S. 15A-1444(a2), even though habitual felon status is not a crime. Because defendant was challenging “whether her term of imprisonment was authorized by statute[,]” the court concluded that G.S. 15A-1444(a2)(3) granted it jurisdiction to consider the appeal. The court then moved to the substance of defendant’s argument and reviewed the text of the habitual felon statute under G.S. 14-7.1. Rejecting defendant’s argument that the reclassification removed the factual basis for her plea, the court concluded “there was sufficient evidence for the trial court to properly determine a factual basis existed showing Defendant had committed three prior felonies, including the second-degree forgery felony.” Slip Op. at 8.
Judge Arrowood dissented by separate opinion, and would have held that defendant had no right of appeal under G.S. 15A-1444(a2), but would have granted a petition for certiorari and concluded that the reclassification of the felony offense justified remand for resentencing. Id. at 11.
In this Jackson County case, defendant appealed his sentence as a habitual felon, arguing that his South Carolina conviction for larceny could not serve as a predicate conviction for habitual felon purposes as the statute in question no longer classifies the crime as a felony. The Court of Appeals disagreed, finding no error.
Defendant came to trial for stealing a TV from Wal-Mart in May of 2021. After being found guilty of felony larceny and possession of stolen goods, the trial proceeded to the habitual felon phase. The prosecution offered evidence of defendant’s 2005 conviction in South Carolina for grand larceny. Defense counsel objected during the charge conference that the South Carolina code did not refer to the crime as a felony but was overruled; the trial court instructed the jury with the habitual felon status pattern jury instruction, using “crime” to refer to the 2005 conviction instead of “felony” at the request of the prosecutor. Defendant was convicted of habitual felon status and appealed.
The Court of Appeals first noted that the South Carolina larceny statute in question was changed in June of 2010 and the offense is no longer a felony, but the relevant consideration was the status of the offense at the time defendant was convicted. The court then explained that G.S. 14-7.1(b)(3) provides a mechanism for classifying crimes as felonies in states that do not explicitly refer to crimes as felonies or misdemeanors. To incorporate this mechanism, the pattern jury instruction in question was changed to permit the use of “felony” or “crime.” Slip Op. at 8-9. Even if the use of “crime” in the present case was erroneous, the court held that the jury had ample evidence to determine the South Carolina conviction was a felony due to the evidence of defendant’s conviction and the 2005 version of the statute in effect when he was convicted. The court likewise dismissed defendant’s arguments that no substantial evidence of his felony conviction was admitted and that the indictment for habitual felon status was fatally flawed.
In this Harnett County case, defendant appealed the denial of his motion for appropriate relief (MAR). The Court of Appeals affirmed the denial of defendant’s MAR and the imposition of life without parole.
Defendant first pleaded guilty to second degree kidnapping, a class E felony, in 1984, when he was sixteen years old. Four years later in 1988, defendant pleaded no contest to second-degree sexual offense (class H felony), common law robbery (class D felony), and armed robbery (class D felony). In 2001, a jury found defendant guilty of second-degree kidnapping, and subsequently of violent habitual felon status due to his prior felonies. The sentence imposed was mandatory life without parole. Defendant appealed that judgment, but the Court of Appeals found no error in State v. McDougald, 190 N.C. App. 675 (2008) (unpublished).
The current MAR at issue was filed in 2017. Defendant asserted two grounds for relief: (1) that defendant’s trial counsel was ineffective during plea negotiations because defendant was not adequately advised that he would receive mandatory life without parole if convicted, and (2) that applying violent habitual felon status due to defendant’s 1984 felony, which was committed when defendant was a juvenile, violated the Eighth Amendment.
The Court of Appeals first examined the ineffective assistance of counsel ground, and found that, although defense counsel’s records were incomplete, and counsel could not recall if he informed defendant that life without parole was mandatory if he was convicted, the evidence showed that counsel did apprise defendant of the desirability of the plea deal, and the possible risk of life without parole if he went to trial. The court found that defense counsel’s performance was not objectionably unreasonable and was not prejudicial to defendant.
Examining the second ground for relief, the court found that applying a felony committed while defendant was a juvenile did not violate the Eighth Amendment, because defendant was receiving a stiffer punishment for the felony committed as an adult, not a life without parole sentence for the initial felony committed while he was a juvenile. The court reviewed and applied “United States Supreme Court precedent, North Carolina Supreme Court precedent, and in the persuasive precedent from other jurisdictions” to determine that “the application of the violent habitual felon statute to Defendant’s conviction of second-degree kidnapping, committed when Defendant was thirty-three years old, did not increase or enhance the sentence Defendant received for his prior second-degree kidnapping conviction, committed when Defendant was sixteen.” Slip Op. at ¶ 27. Because the punishment of life without parole was not imposed for the juvenile conviction, the court found that it did not run afoul of United States Supreme Court precedent forbidding life sentences for juvenile convictions.
The court also established that the punishment of life without parole was not disproportionate for defendant’s second-degree kidnapping conviction, applying State v. Mason, 126 N.C. App. 318 (1997) to affirm the constitutionality of the habitual violent offender statute.
During the habitual felon trial stage, the jury may consider evidence of a prior felony presented during the trial for the principal offense. Evidence of one prior conviction was presented during the trial for the principal offense; evidence of two prior convictions was introduced in the habitual felon phase. The defendant argued that the evidence was insufficient because the State did not introduce evidence of all three priors at the habitual phase. There is no need to reintroduce evidence presented during the trial for the principal offense at the habitual felon hearing; evidence presented during the trial for the principal offense can be used to prove the habitual felon charge.
Habitual misdemeanor assault cannot serve as a prior felony for purposes of habitual felon.
A conviction for habitual misdemeanor assault can be used as a predicate felony for habitual felon status.
The court remanded for resentencing where the trial court imposed consecutive sentences based on a misapprehension of G.S. 14-7. The jury found the defendant guilty of multiple counts of robbery and attaining habitual felon status. The trial court sentenced the defendant as a habitual felon to three consecutive terms of imprisonment for his three common law robbery convictions, stating that “the law requires consecutive sentences on habitual felon judgments.” However, under G.S. 14-7.6, a trial court only is required to impose a sentence consecutively to “any sentence being served by” the defendant. Thus, if the defendant is not currently serving a term of imprisonment, the trial court may exercise its discretion in determining whether to impose concurrent or consecutive sentences.
The trial court did not err by ordering the defendant to serve a habitual felon sentence consecutive to sentences already being served. The defendant argued that the trial court “misapprehend[ed]” the law “when it determined that it did not have the discretion to decide” to run the defendant’s sentence concurrently with his earlier convictions. The court noted that G.S. 14-7.6 “has long provided” that habitual felon sentences “shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.”
A defendant may be sentenced as a habitual felon for an underlying felony of drug trafficking.
Rejecting the defendant’s argument that his sentence of 84-110 months in prison for possession of cocaine as a habitual felon constituted cruel and unusual punishment.
Trial judge could have could have consolidated into a single judgment multiple offenses, all of which were elevated to a Class C because of habitual felon status.
In a case involving a conviction for second-degree murder following a fatal motor vehicle accident, the indictment was sufficient. On appeal the defendant argued that the indictment only charged him with Class B1 second-degree murder, a charge for which he was acquitted, and not the Class B2 version of second-degree murder for which he was convicted. The court disagreed. Under G.S. 15-144, “it is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed).” Here, the indictment alleged that the defendant “unlawfully, willfully, and feloniously and of malice aforethought did kill and murder Derek Lane Miller.” This is sufficient to charge the defendant with second-degree murder as a B2 felony. The defendant however argued that the indictment was insufficient because, by only checking the box labeled “Second Degree” and not checking the box beneath it labeled “Inherently Dangerous Without Regard to Human Life,” the defendant was misled into believing he was not being charged with that form of second degree murder. The court disagreed, stating: “by checking the box indicating that the State was charging ‘Second Degree’ murder, and including in the body of the indictment the necessary elements of second degree murder, the State did everything necessary to inform [the defendant] that the State will seek to prove second degree murder through any of the legal theories the law allows.” Moreover, it noted, the defendant did not show that he was actually misled, and the record indicates that he understood that the State would seek to introduce his prior driving record and argue that his pattern of driving demonstrated that he engaged in an act that is inherently dangerous to human life done recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.
The defendant was charged by arrest warrant with misdemeanor injury to personal property, misdemeanor larceny, and reckless driving after he cut off the end of a truck stop’s air hose, attempted to strike his passenger with it, and then quickly fled with it when confronted by an undercover officer. He was convicted in district court and appealed to superior court. Before trial in superior court, the State moved to amend the charging language to correct the name of the corporate property owner for the injury to personal property and larceny charges. The prosecutor made the amendment on a misdemeanor statement of charges form with no objection from the defendant. The defendant was convicted and appealed. A divided Court of Appeals held that the superior court lacked jurisdiction to try the charges amended through the statement of charges, reasoning that under the language of G.S. 15A-922(e), a statement of charges may be filed after arraignment only if the defendant objects to the State’s original pleading. State v. Capps, ___ N.C. App. ___, 828 S.E.2d 733 (2019). The State appealed and the Supreme Court reversed, reinstating the convictions. The Court held that warrants may be amended at any time when doing so does not materially affect the nature of the charged offense or is otherwise authorized by law. And the State may make the amendment though a statement of charges, because the General Assembly intended statements of charges to be generally treated like amendments. The Court rejected the defendant’s argument that the defendant’s objection to the sufficiency of a warrant is a necessary prerequisite to a post-arraignment statement of charges.
The defendant in this case was charged with sexual activity by a substitute parent under G.S. 14-27.31. The defendant lived at the home of the victim and her mother, and he was the father of the victim’s sister. In 2016, while the victim’s mother was out of the house, the defendant engaged in three different sexual acts with the victim. The victim told her mother, who notified law enforcement, and the defendant was arrested and indicted. The defendant’s first trial ended in a mistrial on two counts, but he was retried and convicted on both. On appeal, the defendant raised two issues.
First, the defendant argued that the trial court erred in allowing the state to amend the indictments by including the words “[a]t the time of the offense, the defendant
was residing in the home with” the victim, contending that this was a substantial alteration of the charge. The appellate court disagreed. The original language used in the indictment adequately alleged that the defendant had assumed the position of a parent in the home of the victim, who was less than 18 years old, and engaged in a sexual act with that person, thereby satisfying all the essential elements of the offense. Since the indictment was already facially valid, and it was not necessary under the statute to allege that the defendant also resided at the home, the amendment did not add an essential element and was not a substantial alteration of the charge.
The defendant also argued that it was error for him to receive two consecutive sentences because the predicate acts for both charges occurred during the same incident. The appellate court viewed this argument as “recasting a double jeopardy argument that has not been preserved for appellate review as a hybrid challenge to the unanimity of the verdict and sufficiency of the indictment,” and held there was no error. The two charges were supported by separate and distinct sexual acts, and the jury instructions and verdict sheets clearly indicated the jury was unanimous as to each of those charges; therefore, the trial court did not err in imposing consecutive sentences for the two offenses.
Defendant was charged by citation with misdemeanor larceny under G.S. 14-72. The prosecutor amended the citation by striking through the charging language and handwriting the word “shoplifting” on the citation, along with the prosecutor’s initials and the date. The defendant entered a guilty plea to a lesser charge of shoplifting under G.S. 14-72.1, but later filed an MAR in district court arguing that the amendment was improper and the court lacked subject matter jurisdiction to enter judgment. The district court denied the MAR, and the superior court denied defendant’s petition for writ of certiorari to review the denial. The Court of Appeals granted the defendant’s petition for writ of certiorari, and held that the lower courts erred and the MAR should have been granted. The purported amendment to the citation impermissibly changed the nature of the offense because larceny and shoplifting are separate crimes with different elements. “Thus, the amendment was not legally permissible and deprived the district court of jurisdiction to enter judgment against Defendant.” The Court of Appeals reversed the superior court’s denial of the petition for writ of certiorari and vacated the shoplifting judgment.
There was no fatal variance in an indictment where the State successfully moved to amend the indictment to change the date of the offense from May 10, 2013 to July 14, 2013 but then neglected to actually amend the charging instrument. Time was not of essence to any of the charged crimes and the defendant did not argue prejudice. Rather, he asserted that the very existence of the variance was fatal to the indictment.
(1) The defendant was indicted for trafficking in MDMA, among other charges. When the case came on for trial, the trial judge called in prospective jurors and questioned them about undue hardships and conflicts with the parties and informed them of the charges against the defendant. The prosecutor then requested a bench conference at which he pointed out that the substance in the lab report showed that the relevant substance was methamphetamine, not MDMA. The prosecutor gave the defendant the choice between having the State dismiss the MDMA charge and reindict for trafficking in methamphetamine, or waiving indictment and proceeding by bill of information. The defendant chose the latter and was convicted at trial. On appeal, the defendant argued that the trial court lacked subject matter jurisdiction because the State did not file the superseding information “before . . . commencement of trial” within the meaning of G.S. 15A-646. The Court of Appeals disagreed, concluding that G.S. 15A-646 does not place any timing deadline on the State, but rather merely imposes a ministerial duty on the judge to dismiss the initial charge if a superseding indictment or information is filed before trial. The appellate court also rejected the defendant’s argument that the trial court lacked subject matter jurisdiction because the defendant was not formally arraigned on the new charge, as the lack of formal arraignment is not revisable error when the defendant does not object and assert inadequate knowledge of the charge. (2) The defendant also argued that the trial court committed plain error by failing, despite the lack of a request or objection, to instruct the jury on the requirement that the defendant have guilty knowledge of the methamphetamine. The Court of Appeals rejected the argument, distinguishing an earlier case, State v. Coleman, 227 N.C. App. 354 (2013). In Coleman, the court found plain error when the trial court failed to instruct on guilty knowledge for a defendant convicted of trafficking heroin who knew he possessed drugs, but who thought he had marijuana and cocaine, not heroin. Here, the defendant denied any knowledge about the existence of the methamphetamine and argued that it belonged to someone else. Even assuming the trial court erred by not giving the instruction, the Court of Appeals concluded it would not rise to the level of plain error given the evidence against the defendant.
The trial court erred by denying the defendant’s motion for appropriate relief alleging that the trial court lacked subject matter jurisdiction to enter judgment where the defendant was charged with a bill of information that did not include or attach a waiver of indictment. G.S. 15A-642 allows for the waiver of indictment in non-capital cases where a defendant is represented by counsel. The statute further requires: “Waiver of Indictment must be in writing and signed by the defendant and his attorney. The waiver must be attached to or executed upon the bill of information.” G.S. 15A-642(c). The court rejected the State’s argument that the statute’s requirements about waiver of indictment were not jurisdictional.
In this first-degree murder case, the trial court did not abuse its discretion by denying the defendant’s motion for a bill of particulars. The defendant argued that because the State used a short-form indictment to charge murder, he lacked notice as to which underlying felony supported the felony murder charge. Although a defendant is entitled to a bill of particulars under G.S. 15A-925, the bill of particulars provides factual information not legal theories. The court concluded: “the State’s legal theories are not ‘factual information’ subject to inclusion in a bill of particulars, and no legal mandate requires the State to disclose the legal theory it intends to prove at trial.”
On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 701 (2017), the court affirmed, holding that the citation charging the offense in question was legally sufficient to properly invoke the trial court’s subject matter jurisdiction. The defendant was cited for speeding and charged with operating a motor vehicle when having an open container of alcohol while alcohol remained in his system. With respect to the open container charge, the citation stated that the defendant “did unlawfully and willfully WITH AN OPEN CONTAINER OF ALCOHOLIC BEVERAGE AFTER DRINKING (G.S. 20-138.7(A))[.]” The defendant moved to dismiss the open container charge on grounds that the citation was fatally defective. The District Court denied the motion and found the defendant guilty of both offenses. The defendant appealed to Superior Court and a jury found him guilty of the open container offense. Before the Court of Appeals, the defendant argued that the trial court lacked jurisdiction to try him for the open container offense because the citation failed to allege all of the essential elements of the crime. The Court of Appeals found no error and the Supreme Court affirmed. Relying in part on the Official Commentary to the statutes, the Supreme Court held that a citation need only identify the crime at issue; it need not provide a more exhaustive statement of the crime as is required for other criminal pleadings. If the defendant had concerns about the level of detail contained in the citation, G.S. 15A-922(c) expressly allowed him to move that the offense be charged in a new pleading. The court further determined that because the defendant did not move in District Court to have the State charge him in a new pleading while the matter was pending in the court of original jurisdiction, the defendant was precluded from challenging the citation in another tribunal on those grounds. The court concluded: “A citation that identifies the charged offense in compliance with N.C.G.S. § 15A-302(c) sufficiently satisfies the legal requirements applicable to the contents of this category of criminal pleadings and establishes the exercise of the trial court’s jurisdiction. Under the facts and circumstances of the present case, the citation at issue included sufficient criminal pleading contents in order to properly charge defendant with the misdemeanor offense for which he was found guilty, and the trial court had subject-matter jurisdiction to enter judgment in this criminal proceeding.”
A citation charging transporting an open container of spirituous liquor was not defective. The defendant argued that the citation failed to state that he transported the fortified wine or spirituous liquor in the passenger area of his motor vehicle. The court declined the defendant’s invitation to hold citations to the same standard as indictments, noting that under G.S. 15A-302, a citation need only identify the crime charged, as it did here, putting the defendant on notice of the charge. The court concluded: “Defendant was tried on the citation at issue without objection in the district court, and by a jury in the superior court on a trial de novo. Thus, once jurisdiction was established and defendant was tried in the district court, he was no longer in a position to assert his statutory right to object to trial on citation.” (quotation omitted).
In this DWI case, the court rejected the defendant’s argument that the trial court erred by denying his motion to quash a citation on grounds that he did not sign that document and the charging officer did not certify delivery of the citation. Specifically, the defendant argued that the officer’s failure to follow the statutory procedure for service of a citation divested the court of jurisdiction to enter judgment. The court found that the citation, which was signed by the charging officer, was sufficient. [Author’s note: The court’s opinion indicates that the citation was converted to a Magistrate’s Order and that Order was served on the defendant. Thus, the Magistrate’s Order, not the citation, was the relevant charging document and it is not clear why any defect with respect to the defendant’s and officer’s signatures on the citation was material.]
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.
In this second-degree sexual exploitation of a minor case, there was no fatal variance between the indictments and the evidence presented at trial. The indictments alleged a receipt date of December 17, 2009; the evidence established the date of receipt as October 18, 2009. A variance regarding time becomes material if it deprives the defendant of his ability to prepare a defense. Here, the defendant did not advance an alibi or other time-based defense at trial.
There was no fatal variance in an indictment where the State successfully moved to amend the indictment to change the date of the offense from May 10, 2013 to July 14, 2013 but then neglected to actually amend the charging instrument. Time was not of essence to any of the charged crimes and the defendant did not argue prejudice. Rather, he asserted that the very existence of the variance was fatal to the indictment.
In a failing to register case the trial court did not err by allowing the State to amend the indictment and expand the dates of offense from 7 November 2012 to June to November 2012. It reasoned that the amendment did not substantially alter the charge “because the specific date that defendant moved to Wilkes County was not an essential element of the crime.”
In a murder case in which the defendant relied on an alibi defense, the trial court did not err by allowing the State to amend the date of the offense stated in the indictment from December 28, 2009, to December 27, 2009. The court noted that because the defendant’s alibi witness’s testimony encompassed December 27th the defendant was not deprived of his ability to present a defense. Additionally, the State’s evidence included two eyewitness statements and an autopsy report, all of which noted the date of the murder as December 27; the defendant did not argue that he was unaware of this evidence well before trial.
A criminal summons charging the defendant with impaired driving was not defective on grounds that it failed to allege the exact hour and minute that the offense occurred.
In sexual assault case involving a child victim, there was a fatal variance between the indictment, that alleged an offense date of March 30, 2000 – December 31, 2000, and the evidence, which showed that the conduct occurred in the Spring of 2001. The State never moved to amend the indictment.
There was no fatal variance between a juvenile delinquency petition for indecent liberties alleging an offense date of November 14, 2008, and the evidence which showed an offense date of November 7-9, 2008. The juvenile failed to show that his ability to present an adequate defense was prejudiced by the variance.
In a child sex case, there was substantial evidence that the defendant abused the victim during the period alleged in the indictment and specified in the bill of particulars (Feb. 1, 2001 – Nov. 20, 2001) and at a time when the defendant was sixteen years old and thus could be charged as an adult. The evidence showed that the defendant abused the victim for a period of years that included the period alleged and that the defendant, who turned sixteen on January 23, 2001, was sixteen during the entire time frame alleged. Relying on the substantial evidence of acts committed while the defendant was sixteen, the court also rejected the defendant’s argument that by charging that the alleged acts occurred “on or about” February 1, 2001 – November 20, 2001, the indictment could have encompassed acts committed before he turned sixteen.
No fatal variance between the period of time alleged in the indictment and the evidence introduced at trial. The defendant was indicted on six counts of statutory rape: two counts each for the months of June, August, and September 2004. Assuming that the victim’s testimony was insufficient to prove that the defendant had sex with her twice in August, the court held that the state nevertheless presented sufficient evidence that the defendant had sex with her at least six times between June 2004 and August 12, 2004, including at least four times in July.
(1) In this robbery case, the indictment was not fatally defective for misspelling the defendant’s middle name. The indictment incorrectly alleged the defendant’s middle name as “Rashawn.” His actual middle name is “Rashaun.” A minor misspelling of a defendant’s name does not constitute a fatal defect absent some showing of prejudice.
(2) Neither an error in the indictment with respect to the defendant’s race nor one with respect to his date of birth rendered the indictment fatally defective. The indictment listed the defendant’s race as white despite the fact that he is black. Additionally, his date of birth was alleged to be 31 August 1991 when, in fact, his birth date is 2 October 1991. There is no requirement that an indictment include the defendant’s date of birth or race. Thus, these inaccuracies can be deemed surplusage.
(1) In this robbery case, the indictment was not fatally defective for misspelling the defendant’s middle name. The indictment incorrectly alleged the defendant’s middle name as “Rashawn.” His actual middle name is “Rashaun.” A minor misspelling of a defendant’s name does not constitute a fatal defect absent some showing of prejudice.
(2) Neither an error in the indictment with respect to the defendant’s race nor one with respect to his date of birth rendered the indictment fatally defective. The indictment listed the defendant’s race as white despite the fact that he is black. Additionally, his date of birth was alleged to be 31 August 1991 when, in fact, his birth date is 2 October 1991. There is no requirement that an indictment include the defendant’s date of birth or race. Thus, these inaccuracies can be deemed surplusage.
No due process violation resulted from the delay between commission of the offenses (2000) and issuance of the indictments (2007). Although the department of social services possessed the incriminating photos and instituted an action to terminate parental rights in 2001, the department did not then share the photos or report evidence of abuse to law enforcement or the district attorney. Law enforcement was not informed about the photos until 2007. The department’s delay was not attributable to the state.
The defendant was tried and convicted of two counts of first-degree statutory sex offense and two counts of indecent liberties in Union County. The convictions were affirmed on appeal, but the North Carolina Supreme Court found an error with the sentence and remanded for resentencing. On remand, the trial court sentenced the defendant to two consecutive 300-month minimum sentences for the sex offenses and arrested judgment on the indecent liberties convictions. The defendant again appealed, arguing that one of the indictments for each charge were defective. This argument was preserved despite the defendant’s failure to raise the issue earlier, as jurisdictional challenges to the validity of an indictment may be raised at any time.
Two separate indictments were issued charging the defendant with the sex offenses using identical language under one file number and two indictments for indecent liberties similarly used identical charging language under another file number. According to the defendant, the identical language in each set of indictments could have been duplicate originals and not separate offenses. The court rejected this argument. Both sets of indictments properly charged separate offenses in compliance with the requirements for short-form indictments under G.S. 15-144.2(b) (essentials of bill for sex offense) and under G.S. 15A-924 (contents of pleadings). The offenses were also properly joined for trial pursuant G.S. 15A-926 (joinder of offenses and defendants). That statute allows the State to join offenses under a single indictment but does not require it to do so. In the words of the court:
Defendant asks this Court to adopt a new rule by holding that, when read together, N.C. Gen. Stat. § 15A-924 and N.C. Gen. Stat. § 15A-926(a) bar the State from using multiple short-form indictments charging the same offense with the same file number. We decline to so hold. Helms Slip op. at 8.
The case was therefore affirmed.
A short form indictment charging the defendant with attempted first degree murder was defective. The indictment failed to allege that the defendant acted with “malice aforethought” as required by G.S. 15-144 (short form murder indictment). The court remanded for entry of judgment on the lesser of voluntary manslaughter.
Short-form murder indictment put the defendant on notice that the State might proceed on a theory of felony-murder.
The trial court did not err by denying the defendant’s request to submit the lesser offense of assault on a female when the defendant was charged with rape using the statutory short form indictment. The defense to rape was consent. The defendant argued on appeal that the jury could have found that the rape was consensual but that an assault on a female had occurred. The court rejected that argument reasoning that the acts that the defendant offered in support of assault on a female occurred separately from those constituting rape.
(1) In this robbery case, the indictment was not fatally defective for misspelling the defendant’s middle name. The indictment incorrectly alleged the defendant’s middle name as “Rashawn.” His actual middle name is “Rashaun.” A minor misspelling of a defendant’s name does not constitute a fatal defect absent some showing of prejudice.
(2) Neither an error in the indictment with respect to the defendant’s race nor one with respect to his date of birth rendered the indictment fatally defective. The indictment listed the defendant’s race as white despite the fact that he is black. Additionally, his date of birth was alleged to be 31 August 1991 when, in fact, his birth date is 2 October 1991. There is no requirement that an indictment include the defendant’s date of birth or race. Thus, these inaccuracies can be deemed surplusage.
The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A. Simpson,” the court rejected the defendant’s argument, stating:
[N]either during trial nor on appeal did defendant argue that he was confused as to Mr. Simpson’s identity or prejudiced by the fact that the indictment identified “A. Simpson” as the purchaser instead of “Cedric Simpson” or “C. Simpson.” In fact, defendant testified that he had seen Cedric Simpson daily for fifteen years at the gym. The evidence suggests that defendant had no question as to Mr. Simpson’s identity. The mere fact that the indictment named “A. Simpson” as the purchaser of the controlled substances is insufficient to require that defendant’s convictions be vacated when there is no evidence of prejudice, fraud, or misrepresentation.
No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by both a married and maiden name, the indictment sufficiently identified the purchaser. The court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide.”
Criminal Procedure > Indictment & Pleading Issues > General Matters > Names > Victim’s Name—Generally
In this sex offense and indecent liberties case, the court held: (1) a sex offense indictment that identified the child victim as “Victim #1” was fatally defective; (2) the trial court’s erroneous failure to conduct a jury instruction conference prior to submitting the existence of a statutory aggravating factor to the jury did not “materially prejudice” the defendant.
(1) Following its decision in State v. White, 372 N.C. 248 (2019), the court held that an indictment charging the defendant with committing a sex offense with a child was fatally defective and facially invalid because it identified the victim as “Victim #1.” As in White, the court found that identifying the victim as “Victim #1” did not satisfy the requirement in G.S. 15-144.2(b) that a short form sex offense with a child indictment “[name] the child.”
(2) The court went on to determine that the trial court’s failure to conduct an instruction conference prior to submitting the existence of the “position of trust or confidence” statutory aggravating factor to the jury was error but that it did not “materially prejudice” the defendant. After accepting the jury’s verdict in the guilt-innocence phase of the trial, the trial court convened a proceeding for the purpose of determining whether a properly noticed “position of trust or confidence” statutory aggravating factor existed. The record clearly established that during this proceeding the trial court did not conduct a jury instruction conference or otherwise discuss the manner in which the jury should be instructed concerning the aggravating factor. G.S. 15A-1231(b) requires trial courts to hold a recorded conference on jury instructions but states that a failure “to comply fully” with the statute does not constitute grounds for appeal unless it “materially prejudiced the case of the defendant.” The Court of Appeals had held, relying on its own precedent, that the total failure to conduct a jury instruction conference necessitated a new proceeding on the aggravating factor regardless of whether the defendant made a showing of “material prejudice.” The Supreme Court rejected this approach and its distinction between cases in which the trial judge entirely fails to comply with G.S. 15A-1231(b) and those where there is partial compliance. Overruling any earlier decisions to the contrary, the Supreme Court explained:
[T]he reference in [G.S.] 15A-1231(b) to the necessity for the trial court to “comply fully” with the statutory requirement that a jury instruction conference be conducted, instead of distinguishing between a complete and a partial failure to comply with the applicable statutory requirement, is intended to require the making of a showing of “material prejudice” a prerequisite to an award of appellate relief regardless of the nature and extent of the trial court’s non-compliance with [G.S.] 15A-1231(b).
With this explanation of the statute, the court proceeded to analyze whether the defendant was materially prejudiced in this case and concluded that he was not, noting that there was undisputed overwhelming evidence that the victim was dependent on the defendant in various ways as his step-child and that the court previously had stated that evidence establishing a parent-child relationship tends to support the aggravating factor at issue.
In separate opinions, Justices Newby and Morgan dissented in part and concurred in result only in part. Justice Newby dissented from the portion of the majority opinion dealing with the validity of the indictment, noting that the defendant was “fully aware of the identity of the victim” and expressing his view that the indictment was sufficient. As for the instruction conference issue, Justice Newby interpreted G.S. 15A-1231(b) as not requiring a formal instruction conference at a sentencing proceeding to determine the existence of an aggravating factor. In a footnote, the majority opinion rejected this interpretation of the statute.
Justice Morgan also would have found the indictment valid because, scrutinizing the whole record, it sufficiently apprised the defendant of the charge against him. Justice Morgan noted that the victim’s initials appeared on the arrest warrant that was issued for the defendant and on an indictment returned against him for indecent liberties involving the same victim. Justice Morgan would have reached the same conclusion as the majority with regard to the instruction conference issue but would have done so by distinguishing rather than overruling the pertinent Court of Appeals opinions.
On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 563 (2017) in this child sex case, the court held that an indictment identifying the alleged victim only as “Victim #1” is facially invalid. Although the arrest warrant and the original indictment identified the victim by her full name, a superseding indictment charging the defendant with sexual offense with a child by an adult stated that he engaged in a sexual act with “Victim #1, a child who was under the age of 13 years, namely 7 years old.” The defendant was found guilty and appealed. The Supreme Court found G.S. 15-144.2(b) to be clear and unambiguous: it requires that the child be named in the indictment. In common understanding, to name someone is to identify that person in a way that is unique to that individual and enables others to distinguish between the named person and all other people. The phrase “Victim #1” does not distinguish this victim from other children or victims. The court went on to clarify that facial validity of an indictment is determined by evaluating only the allegations in the criminal pleading; it rejected the notion that a court may supplement the allegations in an indictment by referring to extrinsic evidence.
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of the panel of the Court of Appeals held that the indictment, which named the victim as “Belk’s Department Stores, an entity capable of owning property,” failed to adequately identify the victim. The court of appeals stated:
In specifying the identity of a victim who is not a natural person, our Supreme Court provides that a larceny indictment is valid only if either: (1) the victim, as named, itself imports an association or a corporation [or other legal entity] capable of owning property[;] or, (2) there is an allegation that the victim, as named, if not a natural person, is a corporation or otherwise a legal entity capable of owning property[.]” (quotations omitted).
The court of appeals further clarified: “A victim’s name imports that the victim is an entity capable of owning property when the name includes a word like “corporation,” “incorporated,” “limited,” “church,” or an abbreviated form thereof.” Here, the name “Belk’s Department Stores” does not itself import that the victim is a corporation or other type of entity capable of owning property. The indictment did however include an allegation that the store was “an entity capable of owning property.” Thus the issue presented was whether alleging that the store is some unnamed type of entity capable of owning property is sufficient or whether the specific type of entity must be pleaded. The Court of Appeals found that precedent “compel[led]” it to conclude that the charging language was insufficient. The Court of Appeals rejected the State’s argument that an indictment which fails to specify the victim’s entity type is sufficient so long as it otherwise alleges that the victim is a legal entity. The dissenting judge believed that the indictment adequately alleged the identity of the owner. The dissenting judge stated: “Given the complexity of corporate structures in today’s society, I think an allegation that the merchant named in the indictment is a legal entity capable of owning property is sufficient to meet the requirements that an indictment apprise the defendant of the conduct which is the subject of the accusation.” As noted, the Supreme Court reversed for reasons stated in the dissent.
Reversing the opinion below, State v. Ellis, __ N.C. App. __, 763 S.E.2d 574 (Oct. 7, 2014), the court held that an information charging injury to personal property was not fatally flawed. The information alleged the victims as: “North Carolina State University (NCSU) and NCSU High Voltage Distribution.” The court noted that the defendant did not dispute that North Carolina State University is expressly authorized to own property by statute, G.S. 116-3, “and is, for that reason, an entity inherently capable of owning property.” Rather, the defendant argued that the information was defective because “NCSU High Voltage Distribution” was not alleged to be an entity capable of owning property. The court held: “Assuming, without deciding, that the … information did not adequately allege that ‘NCSU High Voltage Distribution’ was an entity capable of owning property, that fact does not render the relevant count facially defective.” In so holding the court rejected the defendant’s argument that when a criminal pleading charging injury to personal property lists two entities as property owners, both must be adequately alleged to be capable of owning property. The court continued:
[A] criminal pleading purporting to charge the commission of a property-related crime like injury to personal property is not facially invalid as long as that criminal pleading adequately alleges the existence of at least one victim that was capable of owning property, even if the same criminal pleading lists additional victims who were not alleged to have been capable of owning property as well.
An indictment charging the defendant with felony larceny was not defective. The indictment alleged that the victim was “Sears Roebuck and Company.” The defendant argued that although the indictment contains the word “company,” it does not identify the victim as a company or other corporate entity. The Court disagreed. Noting prior case law holding defective an embezzlement indictment which alleged the victim’s name as “The Chuck Wagon,” the court noted that in this case the word “company” is part of the name of the property owner, “Sears Roebuck and Company.” It noted that that the words corporation, incorporated, limited, or company, or their abbreviated form sufficiently identify a corporation in an indictment.
An indictment charging statutory rape of a person who is 13, 14, or 15 years old was facially defective where it did not identify the victim by name, identifying her only as “Victim #1.” An indictment charging this crime must name the victim. The indictment need not include the victim’s full name; use of the victim’s initials may satisfy the “naming requirement.” However, an indictment “which identifies the victim by some generic term is not sufficient.”
The court rejected the defendant’s argument that there was a fatal variance between the indictment for misdemeanor larceny and the evidence at trial. Specifically, the defendant argued that there was a fatal variance between the allegation that he stole a checkbook from Glenn Cox and the evidence at trial, which showed that the checkbook belonged to Cox Auto Salvage. The court noted that a larceny indictment must allege a person who has a property interest in the stolen item, and that the State must prove that person has ownership, meaning title to the property or some special property interest. As to the case at hand, it concluded:
While there is no evidence tending to show Glenn Cox was the actual owner of Cox Auto Salvage, there is ample evidence indicating Cox had a special property interest in the checkbook. Cox testified the checkbook was his, had his name written on it, and contained stubs of checks he had written. Cox always kept a company checkbook, and he realized the checkbook was missing when he needed to pay a customer. We conclude this evidence establishes Cox was in exclusive possession and control of the checkbook, and that he viewed it as being his checkbook. Therefore, Cox had a special property interest in the checkbook.
There was no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.” doing business as “Precision Tune Auto Care.” The court noted in part: “Our courts have repeatedly held that minor variations between the name of the corporate entity alleged in the indictment and the evidence presented at trial are immaterial, so long as [t]he defendant was adequately informed of the corporation which was the accuser and victim. A variance will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property.” The court noted that the variation in names did not impair the defendant’s ability to defend against the charges.
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however that the indictment’s failure to specify the country club as an entity capable of owning property was not fatal with respect to a separate charge of possession of stolen goods.
There was no fatal variance between a kidnapping indictment that named “Vera Alston” as a victim and the evidence at trial that showed the victim’s last name was “Pierson.” The court concluded:
[T]he evidence is undisputed that one of defendant’s victims for kidnapping and assault on the date alleged in the indictment naming “Vera Alston” as the victim was defendant’s mother-in-law, Vera Pierson. Given this, there was no uncertainty that the identity of the alleged victim “Vera Alston” was actually “Vera Pierson.” Further, [a]t no time … did Defendant indicate any confusion or surprise as to whom Defendant was charged with having kidnapped and assaulted. (quotation omitted).
The trial court did not err by allowing the State to amend the victim’s name as stated in an indictment for assault with a deadly weapon from “Christina Gibbs” to “Christian Gibbs.”
By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review. Even if the issue had been preserved, it had no merit. Defendant argued that there was a fatal variance between the name of the victim in the indictment, You Xing Lin, and the evidence at trial, which showed the victim’s name to be Lin You Xing. The variance was immaterial.
Distinguishing McKoy (discussed immediately above), the court held that juvenile petitions alleging that the juvenile committed first-degree sexual offense were defective because they failed to name a victim. The petitions referenced the victim as “a child,” without alleging the victims’ names.
Rape and sexual offense indictments were not fatally defective when they identified the victim solely by her initials, “RTB.” The defendant was not confused regarding the victim’s identity; because the victim testified at trial and identified herself in open court, the defendant was protected from double jeopardy.
On discretionary review from unanimous decision of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 812 (2016), concluding that the habitual misdemeanor larceny indictment was defective, the court reversed. The Court of Appeals concluded that the indictment was defective because it failed to comply with G.S. 15A-928, a defect that was jurisdictional. The indictment alleged that the defendant stole the property after having been previously convicted of misdemeanor larceny on four separate occasions. The court began by holding that the indictment alleged all of the essential elements of habitual misdemeanor larceny. However, it failed to comply with G.S. 15A-928, which provides that when the fact that the defendant has been previously convicted of an offense raises the present offense to a higher grade and thereby becomes an element, the indictment must be accompanied by a special indictment charging the prior convictions or these allegations must be included as a separate count. Thus, the issue before the court was whether the fact that the indictment failed to comply with the separate indictment or separate account requirements set out in G.S. 15A-928 constituted a fatal defect depriving the trial court of jurisdiction. The court concluded that noncompliance with the statute was not a jurisdictional issue and thus could not be raised on appeal where, as here, the defendant raised no objection or otherwise sought relief on the issue before the trial court. The court overruled State v. Williams, 153 N.C. App. 192 (2002), which the Court of Appeals had relied on to conclude that a violation of G.S. 15A-928 was jurisdictional.
On discretionary review from a unanimous unpublished decision of the Court of Appeals vacating a conviction for carrying a concealed gun on grounds that the indictment was fatally defective, the court reversed per curiam for the reasons stated in State v. Brice, ___ N.C. ___, ___ S.E.2d ___ (Nov. 3, 2017). The defendant was charged with felony carrying a concealed weapon, an offense that became a felony because of a prior conviction. The indictment did not comply with G.S. 15A-928, which requires a special indictment or separate count alleging the prior conviction. The Court of Appeals found that failure to comply with the statute was a jurisdictional defect; the Supreme Court reversed.
On remand from the state Supreme Court for reconsideration in light of State v. Brice, ___ N.C. ___, 806 S.E.2d 32 (2017) (habitual misdemeanor larceny indictment was not defective; a violation of G.S. 15A-928 is not jurisdictional and cannot be raised on appeal where the defendant raised no objection or otherwise sought relief on the issue in the trial court), the court held that because the defendant failed to raise the non-jurisdictional issue below, the defendant waived his right to appeal the issue of whether the aggravated felony death by vehicle indictment violated G.S. 15A-928.
Following State v. Jeffers, 48 N.C. App. 663, 665-66 (1980), the court held that G.S. 15A-928 (allegation and proof of previous convictions in superior court) does not apply to the crime of felon in possession of a firearm.
(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in concert need not be alleged in the indictment. (2) The court rejected the defendant’s argument that a fatal variance existed between the indictment, the jury instructions, and the verdict sheets because each held him accountable for stealing a different number of items. Neither the jury instructions nor the verdict sheet were required to specify the number of items stolen.
In a food stamp fraud case, the State is not required to allege in the indictment that the defendant aided and abetted the crime; aiding and abetting is a theory of liability that need not be included in the indictment.
In this sexual assault case, the State was not excused by G.S. 130A-143 (prohibiting the public disclosure of the identity of persons with certain communicable diseases) from pleading in the indictment the existence of the non-statutory aggravating factor that the defendant committed the sexual assault knowing that he was HIV positive. The court disagreed with the State’s argument that alleging the non-statutory aggravating factor would have violated G.S. 130A-143. It explained:
This Court finds no inherent conflict between N.C. Gen. Stat. § 130A-143 and N.C. Gen. Stat. § 15A-1340.16(a4). We acknowledge that indictments are public records and as such, may generally be made available upon request by a citizen. However, if the State was concerned that including the aggravating factor in the indictment would violate N.C. Gen. Stat. § 130A-143, it could have requested a court order in accordance with N.C. Gen. Stat. § 130A-143(6), which allows for the release of such identifying information “pursuant to [a] subpoena or court order.” Alternatively, the State could have sought to seal the indictment. (citations omitted)
Sentencing factors that might lead to an aggravated sentence need not be alleged in the indictment.
Indictment alleging that the defendant discharged a barreled weapon into an occupied residence properly charged the Class D version of this felony (shooting into occupied dwelling or occupied conveyance in operation) even though it erroneously listed the punishment as the Class E version (shooting into occupied property).
Although the indictment failed to specify G.S. 14-208.9(a) (sex offender registration violation) as the statute violated, this omission alone did not create a fatal defect.
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by striking her with a crutch on the arm. In the course of the assault the defendant used a deadly weapon, a crutch. This act was in violation of North Carolina General Statutes section 14-17.” The court determined that the indictment was not defective because of failure to cite the statute violated. Although the indictment incorrectly cited G.S. 14-17, the statute on murder, the failure to reference the correct statute was not, by itself, a fatal defect.
Because an arrest warrant charged the defendant with a violation of G.S. 67-4.2 (failing to confine a dangerous dog), it could not support a conviction for a violation of G.S. 67-4.3 (attack by a dangerous dog). Even though the warrant cited G.S. 67-4.2, it would have been adequate if it had alleged all of the elements of a G.S. 67-4.3 offense. However, it failed to do so as it did not allege that the injuries required medical treatment costing more than $100.
An indictment charging accessory after the fact to first-degree murder was sufficient to support a conviction of accessory after the fact to second-degree murder. The indictment alleged that a felony was committed, that the defendant knew that the person he assisted committed that felony, and that he rendered personal assistance to the felon; it thus provided adequate notice to prepare a defense and protect against double jeopardy.
The trial court committed plain error by instructing the jury that it could find the defendant guilty of conspiracy if the defendant conspired to commit felony breaking and entering or felony larceny where the indictment alleged only a conspiracy to commit felony breaking or entering.
A conspiracy to commit armed robbery indictment was defective when it did not allege an agreement to commit an unlawful act. The court rejected the State’s argument that the indictment's caption, which identified the charge as "Conspiracy to Commit Robbery with a Dangerous Weapon," and the indictment's reference to the offense being committed in violation of G.S. 14-2.4 (governing punishment for conspiracy to commit a felony) saved the indictment.
When a conspiracy indictment names specific individuals with whom the defendant is alleged to have conspired and the evidence shows the defendant may have conspired with others, it is error for the trial court to instruct the jury that it may find the defendant guilty based upon an agreement with persons not named in the indictment. However, the jury instruction need not specifically name the individuals with whom the defendant was alleged to have conspired as long as the instruction comports with the material allegations in the indictment and the evidence at trial. In this case, the indictment alleged that the defendant conspired with Jimon Dollard and an unidentified male. The trial court instructed the jury that it could find the defendant guilty if he conspired with “at least one other person.” The evidence showed that the defendant and two other men conspired to commit robbery. One of the other men was identified by testifying officers as Jimon Dollard. The third man evaded capture and was never identified. Although the instruction did not limit the conspiracy to those named in the indictment, it was in accord with the material allegations in the indictment and the evidence presented at trial and there was no error.
In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the defendant “did attempt to engage in a sex offense with the victim.” Notwithstanding this, the trial court instructed the jury on the completed offense and provided no instruction on attempt.
On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 178 (2017), the court reversed the decision below holding that the short form indictment for attempted first-degree murder was not fatally defective. G.S. 15-144 provides short form language for charging murder. It provides: “[I]t is sufficient in describing murder to allege that the accused person feloniously, willfully, and of his malice aforethought, did kill and murder (naming the person killed), and concluding as is now required by law; and it is sufficient in describing manslaughter to allege that the accused feloniously and willfully did kill and slay (naming the person killed), and concluding as aforesaid . . . .” The indictment here charged the defendant with attempted first-degree murder and alleged, in relevant part, that the defendant “did attempt to kill and slay” the victim with malice aforethought. Although agreeing that the terms “murder” and “slay” are not interchangeable, the court concluded that use of the word slay in place of the word murder in the indictment at issue “is a distinction without a difference” where the indictment also charged that the killing was done with malice aforethought. The court noted that “[w]hile it may have been a better practice” for the State to use the exact language provided in the statute, “the prosecution’s failure to do so did not render the indictment fatally defective.” It held: “the use of the term ‘slay’ instead of ‘murder’ in an indictment that also includes an allegation of ‘malice aforethought’ complies with the relevant constitutional and statutory requirements for valid murder offense indictments and serves its functional purposes with regard to both the defendant and the court.”
No fatal variance occurred when a juvenile petition alleged that the juvenile assaulted the victim with his hands and the evidence established that he touched her with an object.
An indictment charging assault with a deadly weapon inflicting serious injury on victim E.D. was not defective. The defendant asserted that the indictment was defective because it failed to include the word “assault” in its description of the offense. The court concluded that while the indictment failed to include that word, it sufficiently charged the offense. Specifically, it alleged, in relevant part: “that . . . the defendant . . . did E.D. with a screwdriver, a deadly weapon, inflicting serious injury, against the form of the statute in such case made and provided and against the peace and dignity of the State.” Additionally, it correctly listed the offense as “AWDW SERIOUS INJURY” and referenced the correct statute. As such it sufficiently apprised the defendant of the crime.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Assault with a Deadly Weapon
There was no fatal variance between an indictment charging assault with a deadly weapon with intent to kill inflicting serious injury and the evidence at trial. The indictment alleged the deadly weapon to be a handgun while the trial evidence showed it was an AK-47 rifle. The court reasoned: “both a handgun and an AK-47 rifle are a type of gun, are obviously dangerous weapons, and carry the same legal significance.” Moreover, the defendant failed to demonstrate that the variance caused prejudice.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Assault by Strangulation
Even if there was a fatal variance between the indictment, which alleged that the defendant accomplished the strangulation by placing his hands on the victim’s neck, and the evidence at trial, the variance was immaterial because the allegation regarding the method of strangulation was surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Assault on Government Officer
There was no fatal variance between a warrant charging assault on a government officer under G.S. 14-33(c)(4) and the evidence at trial. The warrant charged that the assault occurred while the officer was discharging the duty of arresting the defendant for communicating threats but at trial the officer testified that the assault occurred when he was arresting the defendant for being intoxicated and disruptive in public. The pivotal element was whether the assault occurred while the officer was discharging his duties; what crime the arrest was for is immaterial.
Indictment charging assault on a government officer under G.S. 14-33(c)(4) need not allege the specific duty the officer was performing and if it does, it is surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Assault on Handicapped Person
There was no fatal defect in an indictment for felony assault on a handicapped person. The indictment alleged, in part, that the defendant unlawfully, willfully, and feloniously assaulted and struck “a handicapped person by throwing Carol Bradley Collins across a room and onto the floor and by striking her with a crutch on the arm. In the course of the assault the defendant used a deadly weapon, a crutch. This act was in violation of North Carolina General Statutes section 14-17.” The court rejected the argument that the indictment was defective for failing to allege the specific nature of the victim’s handicap. The court also rejected the defendant’s argument that the indictment was defective by failing to allege that he knew or reasonably should have known of the victim’s handicap. Citing State v. Thomas, 153 N.C. App. 326 (2002) (assault with a firearm on a law enforcement officer case), the court concluded that although the indictment did not specifically allege this element, its allegation that he “willfully” assaulted a handicapped person indicated that he knew that the victim was handicapped. Finally, the court determined that the indictment was not defective because of failure to cite the statute violated. Although the indictment incorrectly cited G.S. 14-17, the statute on murder, the failure to reference the correct statute was not, by itself, a fatal defect.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Malicious Conduct by Prisoner
Indictment charging malicious conduct by prisoner under G.S. 14-258.4 need not allege the specific duty the officer was performing and if it does, it is surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Assaults > Habitual Misdemeanor Assault
A two-count indictment properly alleged habitual misdemeanor assault. Count one alleged assault on a female, alleging among other things that the defendant’s conduct violated G.S. 14-33 and identifying the specific injury to the victim. The defendant did not contest the validity of this count. Instead, he argued that count two, alleging habitual misdemeanor assault, was defective because it failed to allege a violation of G.S. 14-33 and that physical injury had occurred. Finding State v. Lobohe, 143 N.C. App. 555 (2001) (habitual impaired driving case following the format of the indictment at issue in this case), controlling the court held that the indictment complied with G.S. 15A-924 & -928.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Child Abuse & Related Offenses
In this child abuse case the trial court erred by allowing the State to amend the indictment. The defendant was indicted for negligent child abuse under G.S. 14-318.4(a5) after police discovered her unconscious in her apartment with track marks on her arms and her 19-month-old child exhibiting signs of physical injury. Under that statute, a parent is guilty of negligent child abuse if the parent’s “willful act or grossly negligent omission in the care of the child shows a reckless disregard for human life” and the parent’s act or omission “results in serious bodily injury to the child.” The indictment charged that the defendant committed this offense by negligently failing to treat her child’s wounds. At trial, the trial court allowed the State to amend the indictment “to include failure to provide a safe environment as the grossly negligent omission as well.” This amendment was improper because it constituted a substantial alteration of the indictment. The amendment alleged conduct that was not alleged in the original indictment and which constituted the “willful act or grossly negligent omission,” an essential element of the charge. The amendment thus allowed the jury to convict the defendant of conduct not alleged in the original indictment. Additionally, the amendment violated the North Carolina Constitution, which requires the grand jury to indict and the petit jury to convict for offenses charged by the grand jury.
Where the warrant charging contributing to the abuse or neglect of a juvenile alleged, in part, that the defendant knowingly caused, encouraged, and aided the child “to commit an act, consume alcoholic beverage,” the State was not prohibited from showing that the defendant also contributed to the abuse or neglect of the juvenile by engaging her in sexual acts. The court noted that an indictment that fails to allege the exact manner in which the defendant contributed to the delinquency, abuse, or neglect of a minor is not fatally defective.
(1) An indictment for contributing to the delinquency/neglect of a minor was not defective. The indictment tracked the statutory language but did not specify the specific acts at issue. An indictment for a statutory offense is sufficient if the offense is charged in the words of the statutes, or equivalent words. Any error in the caption of the indictment was immaterial. (2) With respect to assault on a child under 12, the trial court erred by permitting the jury to convict on a criminal negligence theory of intent, which was not alleged in the indictment.
An indictment charging felony child abuse by sexual act under G.S. 14-318.4(a2) is not required to allege the particular sexual act committed. Language in the indictment specifying the sexual act as anal intercourse was surplusage.
In this malicious maiming case, the trial court did not err by instructing the jury on a theory that was not alleged in the indictment. The indictment alleged that the defendant “put out” the victim’s eye. The jury instructions told the jury it could convict if it found that the defendant “disabled or put out” the victim’s eye. Given the evidence in the case—that the victim suffered complete blindness—term “disabled” as used in the instructions can only be interpreted to mean total loss of sight.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Rape
On review of a unanimous, unpublished decision of the court of appeals in State v. Pizano-Trejo, ___ N.C. App. ___, 723 S.E.2d 583 (2012), the members of the Supreme Court equally divided, leaving the decision below undisturbed and without precedential value. The court of appeals had held that the trial court committed plain error by instructing the jury and accepting its guilty verdict for the crimes of “sexual offense with a child,” a crime for which the defendant was not indicted. The defendant was indicted for one count of first degree statutory sexual offense under G.S. 14–27.4(a)(1), and two counts of taking indecent liberties with a minor. However, the trial court instructed the jury on the crime of sexual offense with a child by an adult offender under G.S. 14–27.4A. The defendant was found guilty of both counts of taking indecent liberties with a child and one count of first degree statutory sex offense pursuant to G.S. 14–27.4(a)(1).
The court per curiam affirmed the unpublished decision of a divided panel of the court of appeals in State v. McDaris, 224 N.C. App. 399 (Dec. 18, 2012) (No. COA12-476). The court of appeals had held that a variance between the indictments and the jury instructions did not deprive the defendant of a defense. The indictments charged the defendant with statutory rape of a 13, 14, or 15 year old but specified that the victim was 15 years old at the time. Based on the evidence, the trial court instructed the jury that it could convict the defendant if the jury found that the victim was 14 or 15 years old. The jury found the defendant guilty. On appeal the defendant argued that the trial court committed reversible error by instructing the jury that it could convict if it found that the acts occurred when the victim was 14 or 15 years old, because the indictments alleged that she was 15 years old. At trial the defendant attempted to prove that the incidents occurred when the victim was 16, which would have been a complete defense. The jury rejected this defense. In light of this, the court of appeals determined that any error was not so prejudicial as to require a new trial.
In this Wake County case, defendant appealed his conviction for second-degree rape due to a missing element in the charging indictment, and his conviction for first-degree kidnapping due to insufficiency of the evidence. The Court of Appeals found the charging indictment was flawed and vacated defendant’s rape conviction, but affirmed his conviction for kidnapping.
In November of 2017, a college student went to a bar in downtown Raleigh with a group of friends and became intoxicated. Security camera footage showed defendant helping the victim into his vehicle around 2:25am. The student remembered dancing with her sister and friends around 2:00am; her next memory was around 5:30am when she found herself in defendant’s vehicle while he was engaging in sexual intercourse with her. The student told defendant to stop, tried to find her cellphone, and then fled the vehicle when she could not find her phone. The student reported the incident and defendant was convicted of rape and kidnapping after a trial.
The Court of Appeals first reviewed the charging indictment for defendant’s rape conviction, explaining that in North Carolina, one purpose of a charging indictment is to confer jurisdiction on the trial court. Failure to allege each element of a crime is a jurisdictional defect that cannot be waived. The court noted applicable precedent showing that an indictment may use different language that the statute that creates the offense, but the language used must be sufficiently similar to represent all elements of the crime alleged. In the current matter, the indictment used the phrase “engaged in vaginal intercourse” as opposed to the statute’s “carnally know and abuse.” Slip Op. at 7. The court explained that this was not sufficient because the indictment did not include “abuse,” as “[t]he inclusion of ‘abuse” is necessary to describe that [d]efendant knew and took advantage of [the victim’s] physical inability to resist his advances.” Id. Because of this flaw, the court vacated the judgment of rape and dismissed the indictment without prejudice.
Reviewing defendant’s argument of insufficiency of the evidence for his kidnapping conviction, the court found ample evidence in the record to support the elements of first-degree kidnapping. Explaining the evidence, the court found that defendant transported defendant for purposes of a felony and released her in an area that was unknown to her and not safe in her intoxicated condition.
(1) A short form indictment under G.S. 15-144.1 was sufficient to charge the defendant with attempted statutory rape of a 13, 14, or 15 year old. The defendant had argued that the statutory short form does not apply to an indictment alleging statutory rape of a 13 year old. (2) The indictment conformed to the requirements of G.S. 15-144.1 even though it failed to allege that the act occurred “by force and against her will” or that the defendant attempted to “ravish and carnally know” the victim.
(1) An indictment charging statutory rape of a 13, 14, or 15 year old was not defective because it alleged that the defendant did “carnally know” the victim. The court rejected the argument that the indictment was required to allege that “vaginal intercourse” occurred, concluding that the two terms were synonymous. (2) The court rejected the defendant’s argument that the same indictment was defective in that it failed to conform to the short form provided in G.S. 15-144.1. The court concluded that the short form did not apply to the crime charged and that the indictment alleged all material elements of the offense.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Sex Offense
In this second-degree sex offense case, the court vacated and remanded for entry of judgment on attempted sexual offense where the indictment charged the defendant only with an attempted, not a completed, sex offense. The indictment, labeled “Second Degree Sexual Offense,” alleged that the defendant “did attempt to engage in a sex offense with the victim.” Notwithstanding this, the trial court instructed the jury on the completed offense and provided no instruction on attempt.
Where the indictment charged the defendant with sexual offense in violation of G.S. 14-27.4(a)(1) (first-degree statutory sex offense with a child under the age of 13), the trial court erred by instructing the jury on sexual offense with a child in violation of G.S. 14-27.4A(a) (statutory sexual offense by an adult). The court noted that the charged offense was a lesser included of the offense of conviction, and that while the charged offense requires the State to prove that the defendant was at least 12 years old and at least 4 years older than the victim, the offense of conviction requires proof that the defendant is at least 18 years old. The court found itself bound by State v. Hicks, 239 N.C. App. 396 (Feb. 17, 2015), vacated the conviction and remanded for resentencing on the lesser included offense.
The trial court committed plain error by instructing the jury on sexual offense with a child by an adult offender under G.S. 14-27.4A when the indictment charged the defendant with first-degree sexual offense in violation of G.S. 14-27.4(a)(1), a lesser-included of the G.S. 14-27.4A crime. The court vacated defendant's conviction under G.S. 14-27.4A and remanded for resentencing and entry of judgment on the lesser-included offense. Additionally, the court appealed to the General Assembly to clarify the relevant law:
This case illustrates a significant ongoing problem with the sexual offense statutes of this State: the various sexual offenses are often confused with one another, leading to defective indictments.
Given the frequency with which these errors arise, we strongly urge the General Assembly to consider reorganizing, renaming, and renumbering the various sexual offenses to make them more easily distinguishable from one another. Currently, there is no uniformity in how the various offenses are referenced, and efforts to distinguish the offenses only lead to more confusion. For example, because "first degree sexual offense" encompasses two different offenses, a violation of N.C. Gen. Stat. § 14-27.4(a)(1) is often referred to as "first degree sexual offense with a child" or "first degree statutory sexual offense" to distinguish the offense from "first degree sexual offense by force" under N.C. Gen. Stat. § 14-27.4(a)(2). "First degree sexual offense with a child," in turn, is easily confused with "statutory sexual offense" which could be a reference to a violation of either N.C. Gen. Stat. § 14-27.4A (officially titled "[s]exual offense with a child; adult offender") or N.C. Gen. Stat. § 14-27.7A (2013) (officially titled "[s]tatutory rape or sexual offense of person who is 13, 14, or 15 years old"). Further adding to the confusion is the similarity in the statute numbers of N.C. Gen. Stat. § 14-27.4(a)(1) and N.C. Gen. Stat. § 14-27.4A. We do not foresee an end to this confusion until the General Assembly amends the statutory scheme for sexual offenses.
(citations omitted).
Noting that the sufficiency of a petition alleging a juvenile to be delinquent is evaluated by the same standards that apply to indictments, the court held that petitions alleging two acts of sexual offense and two acts of crime against nature were sufficient. In addition to tracking the statutory language, one sexual offense and one crime against nature petition alleged that the juvenile performed fellatio on the victim; the other sexual offense and crime against nature petitions alleged that the victim performed fellatio on the juvenile. The court rejected the defendant’s argument that any more detail was required, noting that if the juvenile wanted more information about the factual circumstances underlying each charge he should have moved for a bill of particulars.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Crime Against Nature
Noting that the sufficiency of a petition alleging a juvenile to be delinquent is evaluated by the same standards that apply to indictments, the court held that petitions alleging two acts of sexual offense and two acts of crime against nature were sufficient. In addition to tracking the statutory language, one sexual offense and one crime against nature petition alleged that the juvenile performed fellatio on the victim; the other sexual offense and crime against nature petitions alleged that the victim performed fellatio on the juvenile. The court rejected the defendant’s argument that any more detail was required, noting that if the juvenile wanted more information about the factual circumstances underlying each charge he should have moved for a bill of particulars.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Indecent Liberties
(1) In this Montgomery County case, the defendant was convicted of indecent liberties with a child and attaining the status of habitual felon. (1) The defendant argued on appeal that the indecent liberties indictment was fatally defective because it identified the alleged victim only by her initials. The Court of Appeals disagreed. First, the Court noted that State v. McKoy, 196 N.C. App. 650 (2009), held that identifying the victim by initials was sufficient for an indictment charging second-degree rape and second-degree sexual offense. The Court rejected the defendant’s argument that McKoy was overruled by State v. White, 372 N.C. 248 (2019), a case in which the North Carolina Supreme Court held that a sex offense indictment identifying the victim only as “Victim #1” was insufficient. Next, the Court considered whether the indictment would inform a person of reasonable understanding that the defendant was charged with indecent liberties with a child and whether the use of the victim’s initials protected the defendant’s constitutional rights to notice and freedom from double jeopardy. The Court found the indictment satisfied both requirements. A person with common understanding would know the intent of the indictment, and the record demonstrated that the defendant had notice of the victim’s identity. The arrest warrants listed the victim’s full name. The defendant was interviewed by officers regarding his contact with the victim, and he admitted that he knew her. The defendant did not argue that he had difficulty preparing his case because the initials were used rather than the victim’s full name. In addition, the victim testified at trial and identified herself by her full name in open court. The Court concluded there was no possibility that the defendant was confused regarding the victim’s identity; therefore the use of initials in the indictment provided the defendant with sufficient notice to prepare his defense and protect himself against double jeopardy.
(2) The defendant argued that the trial court plainly erred by admitting testimony and evidence that vouched for the victim’s credibility. The defendant objected on appeal (but not at trial) to the introduction of statements from Randolph County Department of Social Services employee Morgan Halkyer and Andrew, the victim’s uncle. Halkyer’s recorded interview with the victim was played for the jury. In that interview, Halkyer told the victim: “No kid should ever be put in that situation by an adult, you know, they’re an adult, they should know better.” The Court held that Halkyer did not impermissibly vouch for the victim’s credibility since her statements were not tantamount to an opinion that the victim was telling the truth. Instead, the statements provided the jury with the context of Halkyer’s interview. In that interview, Halkyer was not attempting to opine about whether the victim was truthful but was comforting the victim with general statements about adult behavior.
The defendant also argued that the trial court plainly erred in admitting text messages Andrew sent to the victim, in which stated that the defendant committed a crime. Among the texts was a statement that “they need to understand that a 40 year old man took you too [sic] his house and attempted inappropriate actions. It's [sic] may not be sexual assault but it is illegal.” Considering that the jury was instructed that its role was to judge the believability of the witnesses, the victim’s extensive testimony at trial, and the defendant’s statement that “maybe things did go a little too far,” the Court found that the defendant failed to demonstrate that Andrew’s text messages had a probable impact on the jury’s verdict. Thus, the Court held that any error in the admission of this evidence was not plain error.
Five indecent liberties indictments were sufficient where they were couched in the language of the statute and specified different and non-overlapping time frames. The court rejected the defendant’s argument that the indictments were insufficient because they included “non-specific allegations.”
In an indecent liberties case, the trial judge’s jury instructions were supported by the indictment. The indictment tracked the statute and did not allege an evidentiary basis for the charge. The jury instructions, which identified the defendant’s conduct as placing his penis between the child’s feet, was a clarification of the evidence for the jury.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Peeping
An indictment charging felony peeping was not defective. Rejecting the defendant’s argument that the indictment was defective because it failed to allege that the defendant’s conduct was done without the victim’s consent, the court concluded that “any charge brought under N.C.G.S. § 14-202 denotes an act by which the defendant has spied upon another without that person’s consent.” Moreover, the charging language, which included the word “surreptitiously” gave the defendant adequate notice. Further, the element of “without consent” is adequately alleged in an indictment that indicates the defendant committed an act unlawfully, willfully, and feloniously.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Sex Offender Crimes
In an appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 774 S.E.2d 871 (2015), the court per curiam affirmed for the reasons stated in State v. Williams, 368 N.C. 620 (Jan. 29, 2016) (in a case where the defendant, a sex offender, was charged with violating G.S. 14-208.11 by failing to provide timely written notice of a change of address, the court held that the indictment was not defective; distinguishing State v. Abshire, 363 N.C. 322 (2009), the court rejected the defendant’s argument that the indictment was defective because it alleged that he failed to register his change of address with the sheriff’s office within three days, rather than within three business days).
In a case where the defendant, a sex offender, was charged with violating G.S. 14-208.11 by failing to provide timely written notice of a change of address, the court held that the indictment was not defective. Distinguishing State v. Abshire, 363 N.C. 322 (2009), the court rejected the defendant’s argument that the indictment was defective because it alleged that he failed to register his change of address with the sheriff’s office within three days, rather than within three business days.
Indictments charging the defendant with failing register under G.S. 14-208.11(a)(2) and (a)(7) were not fatally defective where the indictments substantially tracked the language of the statute.
In a failure to register as a sex offender case, the indictment was not defective on grounds that did not allege that the defendant failed to provide “written notice” of his address change “within three business days.” Citing prior case law, the court noted that it has already rejected arguments. The court followed this case law, refusing “to subject the indictment to hyper technical scrutiny.” It further noted that the defendant did not establish that this pleading issue prejudiced his trial preparation. Finally, it noted that the better practice would be for the prosecution to allege that the defendant failed to report his change in address “in writing” and “within three business days.”
An indictment charging failing to notify the sheriff of a change in address was not defective. The indictment alleged, in relevant part, that the defendant “fail[ed] to register as a sex offender by failing to notify the Forsyth County Sheriff’s Office of his change of address.” The defendant argued that the indictment was defective because it failed to allege that he was required to provide “written notice” of a change of address. The court held: “we consider the manner of notice, in person or in writing, to be an evidentiary matter necessary to be proven at trial, but not required to be alleged in the indictment.”
(1) In a failing to register case the indictment was not defective. The indictment alleged that the defendant failed to provide 10 days of written notice of his change of address to “the last registering sheriff by failing to report his change of address to the Wilkes County Sheriff’s Office.” The defendant allegedly moved from Burke to Wilkes County. The court rejected the defendant’s argument that the indictment was fatally defective for not alleging that he failed to provide “in-person” notice. It reasoned that the defendant was not prosecuted for failing to make an “in person” notification, but rather for failing to give 10 days of written notice, which by itself is a violation of the statute. The court also rejected the defendant’s argument that an error in the indictment indicating that the Wilkes County Sheriff’s Office was the “the last registering sheriff” (in fact the last registering sheriff was the Burke County sheriff), invalidated the indictment. (2) The trial court did not err by allowing the State to amend the indictment and expand the dates of offense from 7 November 2012 to June to November 2012. It reasoned that the amendment did not substantially alter the charge “because the specific date that defendant moved to Wilkes County was not an essential element of the crime.”
An indictment charging the defendant with violating G.S. 14-208.18(a) (prohibiting registered sex offenders from being “[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors”) was not defective. The charges arose out of the defendant’s presence at a Wilkesboro public park, specifically, sitting on a bench within the premises of the park and in close proximity to the park’s batting cage and ball field. The indictment alleged, in relevant part, that the defendant was “within 300 feet of a location intended primarily for the use, care, or supervision of minors, to wit: a batting cage and ball field of Cub Creek Park located in Wilkesboro, North Carolina.” The court rejected the defendant’s argument that the indictment was defective because it failed to allege that the batting cages and ball field were located on a premise not intended primarily for the use, care, or supervision of minors.
An indictment charging failing to notify the sheriff’s office of change of address by a registered sex offender under G.S. 14-208.9 was defective where it failed to allege that the defendant was a person required to register.
Following State v. Harris, 219 N.C. App. 590 (Apr. 3, 2012) (an indictment charging the defendant with being a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of G.S. 14-208.18 was defective because it failed to allege that he had been convicted of an offense enumerated in G.S. Ch. 14 Article 7A or an offense involving a victim who was under 16 years of age at the time of the offense), the court held that the indictment at issue was defective.
An indictment charging the defendant with being a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of G.S. 14-208.18 was defective. According to the court the “essential elements” of the charged offense are that the defendant (1) knowingly is on the premises of any place intended primarily for the use, care, or supervision of minors (2) at a time when he or she was required by North Carolina law to register as a sex offender based upon a conviction for an offense enumerated in G.S. Ch. 14 Article 7A or an offense involving a victim who was under the age of 16. The court rejected the defendant’s argument that the indictment, which alleged that the defendant “did unlawfully, willfully and feloniously on the premises of Winget Park Elementary School,” was defective because it omitted any affirmative assertion that he actually went on the school’s premises. The court reasoned that although the indictment contained a grammatical error, it clearly charged the defendant with unlawfully being on the premises of the school. Next, the court rejected the defendant’s argument that the indictment was defective because it failed to allege that he knowingly went on the school’s premises. The court reasoned that the indictment’s allegation that the defendant acted “willfully” sufficed to allege the requisite “knowing” conduct. However, the court found merit in the defendant’s argument that the indictment was defective because it failed to allege that he had been convicted of an offense enumerated in G.S. Ch. 14 Article 7A or an offense involving a victim who was under 16 years of age at the time of the offense.
In this Beaufort County case, defendant appealed jury verdicts of guilty for second degree kidnapping and assault on a female. Defendant provided three grounds for appeal, (1) denial of his motion to dismiss the kidnapping charge based upon the State’s failure to offer evidence of intent, (2) that the trial court failed to define “serious bodily injury” in jury instructions, and (3) that the statute creating assault on a female is unconstitutional.
Reviewing the first issue on appeal, the Court of Appeals explained that to prove kidnapping, the State must present sufficient evidence that defendant had specific intent to do serious bodily harm when removing or transporting the victim. The court found that the State presented substantial evidence of defendant’s intent through testimony that defendant put his car in reverse and drove away while the victim’s leg was still outside and the passenger door was open, and continued to drive while the victim pleaded with defendant to stop the car. Defendant also grabbed the victim while driving, pulling her hair and choking her. This behavior represented sufficient evidence that defendant removed the victim with intent to do serious bodily harm to justify the trial court’s denial of the motion to dismiss.
For the second issue, the Court of Appeals found that the trial court used the pattern jury instructions for first and second degree kidnapping when instructing the jury. Those instructions do not contain a definition of “serious bodily injury.” Because defendant could not supply caselaw or a statute requiring this definition in the jury instruction, the lack of a definition did not rise to the level of plain error justifying a new trial.
Defendant’s final issue argued that the statute creating assault on a female was unconstitutional due to discrimination on the basis of sex. However, defendant did not raise the issue at trial and thus the issue was not preserved for appellate review, and the Court of Appeals declined to exercise discretion under Rule 2 of the North Carolina Rules of Appellate Procedure to review the issue. The court found no error in the trial court’s judgment.
The trial court erred by allowing the State to amend a second-degree kidnapping indictment. The indictment alleged that the defendant restrained the victim for the purpose of facilitating the felony of assault inflicting serious injury. However, that offense is a misdemeanor. During trial, the State was allowed to amend the indictment to add the term “bodily” such that the crime specified was “assault inflicting serious bodily injury,” which is a felony. The court held that the State was bound by the crime alleged in the original indictment. However, the court continued, the indictment does allege false imprisonment, a lesser-included offense of kidnapping. Here, where the jury found that the defendant committed the acts as alleged in the indictment, the court vacated the judgment and remanded for entry of judgment and resentencing on the lesser-included offense of false imprisonment.
(1) Indictments charging kidnapping with respect to victims under 16 were not defective. The indictments alleged that the defendant unlawfully confined and restrained each victim “without the victim’s consent.” The court rejected the defendant’s argument that because the indictments failed to allege a lack of parental or custodial consent, they were fatally defective. The court explained:
“’[T] he victim’s age is not an essential element of the crime of kidnapping itself, but it is, instead, a factor which relates to the state’s burden of proof in regard to consent. If the victim is shown to be under sixteen, the state has the burden of showing that he or she was unlawfully confined, restrained, or removed from one place to another without the consent of a parent or legal guardian. Otherwise, the state must prove that the action was taken without his or her own consent.’” (quoting State v. Hunter, 299 N.C. 29, 40 (1980)).
The court concluded: “Because age is not an essential element of the crime of kidnapping, and whether the State must prove a lack of consent from the victim or from the parent or custodian is contingent upon the victim’s age, … the indictments … are adequate even though they allege that the victim ─ and not the parent ─ did not consent.” (2) The court rejected the defendant’s argument that there was a fatal variance between a kidnapping indictment with respect to victim D.M. and the evidence at trial. The defendant argued that the indictment alleged that D.M. was at least 16 years old but the evidence showed that D.M. was 16 at the time. The court concluded: “because D.M.’s age does not involve an essential element of the crime of kidnapping, any alleged variance in this regard could not have been fatal.”
The trial court erred by denying the defendant’s motion to dismiss a charge of first-degree kidnapping where the indictment alleged that the confinement, restraint, and removal was for the purpose of committing a felony larceny but the State failed to present evidence of that crime. Although the State is not required to allege the specific felony facilitated, when it does, it is bound by that allegation.
Although a kidnapping indictment need not allege the felony intended, if it does, the State is bound by that allegation. Here, the indictment alleged confinement and restraint for the purpose of committing murder, but the evidence showed that the confinement or restraint was for the purpose of a committing a robbery. The State was bound by the allegation and had to prove the confinement and restraint was for the purposes of premeditated and deliberate murder (it could not rely on felony-murder).
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Person Who Owned/Possessed the Property
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of the panel of the Court of Appeals held that the indictment, which named the victim as “Belk’s Department Stores, an entity capable of owning property,” failed to adequately identify the victim. The court of appeals stated:
In specifying the identity of a victim who is not a natural person, our Supreme Court provides that a larceny indictment is valid only if either: (1) the victim, as named, itself imports an association or a corporation [or other legal entity] capable of owning property[;] or, (2) there is an allegation that the victim, as named, if not a natural person, is a corporation or otherwise a legal entity capable of owning property[.]” (quotations omitted).
The court of appeals further clarified: “A victim’s name imports that the victim is an entity capable of owning property when the name includes a word like “corporation,” “incorporated,” “limited,” “church,” or an abbreviated form thereof.” Here, the name “Belk’s Department Stores” does not itself import that the victim is a corporation or other type of entity capable of owning property. The indictment did however include an allegation that the store was “an entity capable of owning property.” Thus the issue presented was whether alleging that the store is some unnamed type of entity capable of owning property is sufficient or whether the specific type of entity must be pleaded. The Court of Appeals found that precedent “compel[led]” it to conclude that the charging language was insufficient. The Court of Appeals rejected the State’s argument that an indictment which fails to specify the victim’s entity type is sufficient so long as it otherwise alleges that the victim is a legal entity. The dissenting judge believed that the indictment adequately alleged the identity of the owner. The dissenting judge stated: “Given the complexity of corporate structures in today’s society, I think an allegation that the merchant named in the indictment is a legal entity capable of owning property is sufficient to meet the requirements that an indictment apprise the defendant of the conduct which is the subject of the accusation.” As noted, the Supreme Court reversed for reasons stated in the dissent.
Reversing the decision below, State v. Campbell, 234 N.C. App. 551 (2014), the court held that a larceny indictment was not fatally flawed even though it failed to specifically allege that a church, the co-owner of the property at issue, was an entity capable of owning property. The indictment named the victim as Manna Baptist Church. The court held: “[A]lleging ownership of property in an entity identified as a church or other place of religious worship, like identifying an entity as a ‘company’ or ‘incorporated,’ signifies an entity capable of owning property, and the line of cases from the Court of Appeals that has held otherwise is overruled.”
In this Graham County case, defendant appealed the denial of his motion for appropriate relief (MAR) due to a flaw in the indictment, arguing that the indictment failed to allege a legal entity capable of owning property. The Court of Appeals affirmed the denial of defendant’s MAR.
The basis of defendant’s argument arose from his conviction for breaking and entering, felony larceny, and felony possession of goods in 1994, after defendant stole a television, VCR, and microwave from what the indictment identified as “Graham County Schools,” with the additional location identified as “Robbinsville Elementary School.” When defendant was subsequently indicted in 2020 for possession of stolen goods or property and safecracking, and attaining habitual felon status, defendant filed a MAR. Defendant argued that “Graham County Schools” was not a legal entity; the trial court denied the MAR, finding that “Graham County Schools” implied the actual ownership of “Graham County Board of Education.” Slip Op. at 2-3.
The court explained that North Carolina law does require identification of an entity capable of owning property, but “larceny indictments have been upheld where the name of the entity relates back or ‘imports’ an entity that can own property.” Id. at 5. Referencing State v. Ellis, 368 N.C. 342 (2015), the court noted that a larceny indictment listing “North Carolina State University” was upheld although the statute only identifies N.C. State University as a constituent institution of the University of North Carolina. Slip Op. at 6. Here, the court found that “Graham County Schools” similarly imported the Graham County Board of Education.
An indictment charging the defendant with felony larceny was not defective. The indictment alleged that the victim was “Sears Roebuck and Company.” The defendant argued that although the indictment contains the word “company,” it does not identify the victim as a company or other corporate entity. The Court disagreed. Noting prior case law holding defective an embezzlement indictment which alleged the victim’s name as “The Chuck Wagon,” the court noted that in this case the word “company” is part of the name of the property owner, “Sears Roebuck and Company.” It noted that that the words corporation, incorporated, limited, or company, or their abbreviated form sufficiently identify a corporation in an indictment.
The court rejected the defendant’s argument that there was a fatal variance between the indictment for misdemeanor larceny and the evidence at trial. Specifically, the defendant argued that there was a fatal variance between the allegation that he stole a checkbook from Glenn Cox and the evidence at trial, which showed that the checkbook belonged to Cox Auto Salvage. The court noted that a larceny indictment must allege a person who has a property interest in the stolen item, and that the State must prove that person has ownership, meaning title to the property or some special property interest. As to the case at hand, it concluded:
While there is no evidence tending to show Glenn Cox was the actual owner of Cox Auto Salvage, there is ample evidence indicating Cox had a special property interest in the checkbook. Cox testified the checkbook was his, had his name written on it, and contained stubs of checks he had written. Cox always kept a company checkbook, and he realized the checkbook was missing when he needed to pay a customer. We conclude this evidence establishes Cox was in exclusive possession and control of the checkbook, and that he viewed it as being his checkbook. Therefore, Cox had a special property interest in the checkbook.
Although there was a fatal variance between the allegation in a felony larceny indictment as to the owner of the stolen property and the proof of ownership presented at trial, the variance did not warrant dismissal. The indictments alleged that all of the stolen items, a television, gaming system, video games, laptop, camera, and earrings were the personal property of April Faison. The evidence at trial indicated that Faison did not own all of those items. Specifically, her daughter owned the laptop and the camera; the gaming system belonged to a friend. Although the defendant conceded that some of the items listed in the indictment correctly named Faison as property owner, he argued that a fatal variance with respect to the other items required dismissal. The State’s evidence would have been sufficient if it had established that Faison, while not the property owner, had some special interest in the items owned by others, for example, as a bailee. However, the State’s evidence did not establish that. The court also rejected the argument that Faison had a special custody interest in her child’s property because, here, her daughter was an adult who did not live in the home. Thus, while the evidence was sufficient to demonstrate that Faison was the owner of some of the property, there was a fatal variance with respect to ownership of other items. The court however went on to reject the argument that a larceny indictment that properly alleges the owner of certain stolen property, but improperly alleges the owner of additional property, must be dismissed in its entirety. Here, the problematic language was surplusage.
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however that the indictment’s failure to specify the country club as an entity capable of owning property was not fatal with respect to a separate charge of possession of stolen goods.
Exercising discretion to consider a fatal variance argument with respect to a theft of money and an iPod from a frozen yogurt shop, the court held that a fatal variance existed. The State alleged that the property belonged to Tutti Frutti, LLC, but it actually belonged to Jason Wei, the son of the sole member of that company, and the State failed to show that Tutti Frutti was in lawful custody and possession of Wei’s property when it was stolen. It clarified: “there is no fatal variance between an indictment and the proof at trial if the State establishes that the alleged owner of stolen property had lawful possession and custody of the property, even if it did not actually own the property.”
A juvenile petition alleging felony larceny was fatally defective because it contained no allegation that the alleged victim, the Crossings Golf Club, was a legal entity capable of owning property.
An indictment for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective.
Fatal variance in larceny indictment alleging that the stolen gun belonged to an individual named Minear and the evidence showing that it belonged to and was stolen from a home owned by an individual named Leggett. Minear had no special property interest in the gun even though the gun was kept in a bedroom occupied by both women.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Description of Property Taken
The trial court lacked jurisdiction to sentence the defendant for larceny of goods worth more than $1,000 when the indictment charged that the defendant stole “property having a value of $1,000.”
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Larceny from Merchant
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of the panel of the Court of Appeals held that the indictment, which named the victim as “Belk’s Department Stores, an entity capable of owning property,” failed to adequately identify the victim. The court of appeals stated:
In specifying the identity of a victim who is not a natural person, our Supreme Court provides that a larceny indictment is valid only if either: (1) the victim, as named, itself imports an association or a corporation [or other legal entity] capable of owning property[;] or, (2) there is an allegation that the victim, as named, if not a natural person, is a corporation or otherwise a legal entity capable of owning property[.]” (quotations omitted).
The court of appeals further clarified: “A victim’s name imports that the victim is an entity capable of owning property when the name includes a word like “corporation,” “incorporated,” “limited,” “church,” or an abbreviated form thereof.” Here, the name “Belk’s Department Stores” does not itself import that the victim is a corporation or other type of entity capable of owning property. The indictment did however include an allegation that the store was “an entity capable of owning property.” Thus the issue presented was whether alleging that the store is some unnamed type of entity capable of owning property is sufficient or whether the specific type of entity must be pleaded. The Court of Appeals found that precedent “compel[led]” it to conclude that the charging language was insufficient. The Court of Appeals rejected the State’s argument that an indictment which fails to specify the victim’s entity type is sufficient so long as it otherwise alleges that the victim is a legal entity. The dissenting judge believed that the indictment adequately alleged the identity of the owner. The dissenting judge stated: “Given the complexity of corporate structures in today’s society, I think an allegation that the merchant named in the indictment is a legal entity capable of owning property is sufficient to meet the requirements that an indictment apprise the defendant of the conduct which is the subject of the accusation.” As noted, the Supreme Court reversed for reasons stated in the dissent.
An indictment charging the defendant with larceny from a merchant by removal of antitheft device in violation of G.S. 14-72.11 was defective in two respects. The elements of this offense include a larceny (taking the property of another, carrying it away, without the consent of the possessor, and with the intent to permanently deprive) and removal of an antishoplifting or inventory control device. In this case, the defendant was alleged to have taken clothing from a department store. The court determined that the indictment’s description of the property taken as “merchandise” was “too general to identify the property allegedly taken.” Additionally, the indictment alleged that the defendant “did remove a component of an anti-theft or inventory control device . . . . in an effort to steal” property. This language, the court determined, alleged only an attempted larceny not the completed offense.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Possession of Stolen Property
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however that the indictment’s failure to specify the country club as an entity capable of owning property was not fatal with respect to a separate charge of possession of stolen goods.
An indictment alleging possession of stolen property was defective where it failed to allege that the property was stolen or that the defendant knew or had reason to believe that it was stolen.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Embezzlement & Larceny by Employee
There was no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.” doing business as “Precision Tune Auto Care.” The court noted in part: “Our courts have repeatedly held that minor variations between the name of the corporate entity alleged in the indictment and the evidence presented at trial are immaterial, so long as [t]he defendant was adequately informed of the corporation which was the accuser and victim. A variance will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property.” The court noted that the variation in names did not impair the defendant’s ability to defend against the charges.
The trial court did not err by allowing the State to amend an embezzlement indictment. The indictment originally alleged that “the defendant . . . was the employee of MBM Moving Systems, LLC . . . .” The amendment added the words “or agent” after the word “employee.” The court rejected the defendant’s argument that the nature of his relationship to the victim was critical to the charge and thus that the amendment substantially altered the charge. The court held that the terms “employee” and “agent” “are essentially interchangeable” for purposes of this offense. The court noted that the defendant was not misled or surprised as to the charges against him.
In an embezzlement case, no fatal variance occurred where the indictment alleged that Smokey Park Hospitality, Inc., d/b/a Comfort Inn had an interest in the property. Although the evidence showed that Smokey Park Hospitality never owned the hotel, it acted as a management company and ran the business. Smokey Park Hospitality thus had a special property interest in the embezzled money.
(1) In a larceny by employee case, the trial court erred by allowing the State to amend the bill of indictment. The indictment stated that the defendant was an employee of “Cape Fear Carved Signs, Incorporated.” The State moved to amend by striking the word “Incorporated,” explaining that the business was a sole proprietorship of Mr. Neil Schulman. The amendment was a substantial alteration in the charge. (2) The court rejected the State’s argument that the defendant waived his ability to contest the indictment by failing to move to dismiss it at trial, reiterating that jurisdictional issues may be raised at any time.
In this Yadkin County case, a defendant pled guilty to second-degree murder, attempted robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon in 2013. The defendant filed a motion for appropriate relief asserting that the indictment for the attempted robbery charge was fatally defective in that it did not include the name of a victim, but rather described the victims as “employees of the Huddle House” located at a particular address. The trial court denied the motion. A divided panel of the Court of Appeals agreed with the defendant. State v. Oldroyd, 271 N.C. App. 544 (2020). The Supreme Court reversed the Court of Appeals, concluding that the indictment sufficiently informed the defendant of the crime he was accused of and protected him from being twice put in jeopardy for the same offense. The Court rejected the defendant’s argument, based on cases decided before the enactment of the Criminal Procedure Act of 1975, that indictments for crimes against a person must “state with exactitude” the name of a person against whom the offense was committed. The Court also distinguished prior cases finding indictments defective when they named the wrong victim or did not name any victim at all. Under the modern requirements of G.S. 15A-924(a)(5), the Court concluded that the attempted robbery with a dangerous weapon charge here was not defective. Therefore, the Court reversed the Court of Appeals and reinstated the trial court order denying the defendant’s motion for appropriate relief.
Affirming an unpublished opinion of the Court of Appeals, the court held that a robbery indictment was fatally defective. The indictment alleged, in relevant part, that the defendant committed the bank robbery “by way of reasonably appearing to the [named] victim . . . that a dangerous weapon was in the defendant’s possession, being used and threatened to be used by communicating that he was armed to her in a note.” The Court of Appeals had held that the indictment was defective because it failed to name any dangerous weapon that the defendant allegedly employed. The Supreme Court noted that an essential element of armed robbery is that the defendant possessed, used, or threatened use of a firearm or other dangerous weapon. Here, the indictment does not adequately allege this element. The court instructed: an armed robbery indictment “must allege the presence of a firearm or dangerous weapon used to threaten or endanger the life of a person.”
In an appeal from a conviction obtained in the Eve Carson murder case, the court held that a robbery indictment was not fatally defective. The indictment alleged that the defendant:
unlawfully, willfully and feloniously did steal, take, and carry away and attempt to steal, take and carry away another’s personal property, A 2005 TOYOTA HIGHLANDER AUTOMOBILE (VIN: JTEDP21A250047971) APPROXIMATE VALUE OF $18,000.00; AND AN LP FLIP PHONE, HAVING AN APPROXIMATE VALUE OF $100.00: AND A BANK OF AMERICA ATM CARD, HAVING AN APPROXIMATE VALUE OF $1.00; AND APPROXIMATELY $700.00 IN U.S. CURRENCY of the value of $18,801.00 dollars, from the presence, person, place of business, and residence of ______________________________. The defendant committed this act having in possession and with the use and threatened use of firearms and other dangerous weapons, implements, and means, A SAWED OFF HARRINGTON & RICHARDSON TOPPER MODEL 158, 12 GAUGE SHOTGUN (SERIAL # L246386) AND AN EXCAM GT-27 .25 CALIBER SEMI-AUTOMATIC PISTOL (SERIAL # M11062) whereby the life of EVE MARIE CARSON was endangered and threatened.
The defendant argued that the indictment was defective because it failed to name the person from whose presence property was taken. The court reasoned that Carson’s life could not have been endangered and threatened unless she was the person in the presence of the property.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Frauds & Related Offenses > Obtaining Property By False Pretenses
(per curiam). Because the participating Justices were equally divided, the decision below, State v. Pendergraft, 238 N.C. App. 516 (Dec. 31, 2014), was left undisturbed and without precedential value. In the decision below the court of appeals had held, over a dissent, that an indictment alleging obtaining property by false pretenses was not fatally defective. After the defendant filed false documents purporting to give him a property interest in a home, he was found to be occupying the premises and arrested. The court of appeals rejected the defendant’s argument that the indictment was deficient because it failed to allege that he made a false representation. The indictment alleged that the false pretense consisted of the following: “The defendant moved into the house … with the intent to fraudulently convert the property to his own, when in fact the defendant knew that his actions to convert the property to his own were fraudulent.” Acknowledging that the indictment did not explicitly charge the defendant with having made any particular false representation, the court of appeals found that it “sufficiently apprise[d] the defendant about the nature of the false representation that he allegedly made,” namely that he falsely represented that he owned the property as part of an attempt to fraudulently obtain ownership or possession of it. The court of appeals also rejected the defendant’s argument that the indictment was defective in that it failed to allege the existence of a causal connection between any false representation by him and the attempt to obtain property, finding the charging language sufficient to imply causation.
(1) Affirming the decision below in State v. Jones, 223 N.C. App. 487 (Nov. 20, 2012), the court held that an indictment charging obtaining property by false pretenses was defective where it failed to specify with particularity the property obtained. The indictment alleged that the defendant obtained “services” from two businesses but did not describe the services. (2) The court also held that an indictment charging trafficking in stolen identities was defective because it did not allege the recipient of the identifying information or that the recipient’s name was unknown.
An indictment charging obtaining property by false pretenses was defective where it charged the defendant with obtaining an unspecified amount of “credit” secured through the issuance of an unidentified “loan” or “credit card.” This vague language failed to describe what was obtained with sufficient particularity to enable the defendant to adequately prepare a defense. A grand jury indicted the defendant on three counts of obtaining property by false pretenses. The indictment for the first count charged that the defendant “obtain[ed] credit, from Weyco.” The indictments for the second and third counts charged that the defendant “obtain[ed] credit, from Weyco” and that “this property was obtained by means of giving false information on an application for a loan so as to qualify for said loan which loan was made to defendant.” The court concluded:
[I]ndictments charging a defendant with obtaining “credit” of an unspecified amount, secured through two unidentified “loan[s]” and a “credit card” are too vague and uncertain to describe with reasonable certainty what was allegedly obtained, and thus are insufficient to charge the crime of obtaining property by false pretenses. “Credit” is a term less specific than money, and the principle that monetary value must at a minimum be described in an obtaining-property-by-false-pretenses indictment extends logically to our conclusion that credit value must also be described to provide more reasonable certainty of the thing allegedly obtained in order to enable a defendant adequately to mount a defense. Moreover, although the indictments alleged defendant obtained that credit through “loan[s]” and a “credit card,” they lacked basic identifying information, such as the particular loans, their value, or what was loaned; the particular credit card, its value, or what was obtained using that credit card.
It continued:
Because the State sought to prove that defendant obtained by false pretenses a $14,399 secured vehicle loan for the purchase of a Suzuki motorcycle and a $56,736 secured vehicle loan for the purchase of a Dodge truck, the indictments should have, at a minimum, identified these particular loans, described what was loaned, and specified what actual value defendant obtained from those loans. Because the State sought also to prove that defendant obtained the Credit Card by false pretenses, that indictment should have, at a minimum, identified the particular credit card and its account number, its value, and described what defendant obtained using that credit.
Over a dissent, the court held that an obtaining property by false pretenses indictment was not defective where it alleged that the defendant obtained “a quantity of U.S currency” from the defendant. The court found that G.S. 15-149 (allegations regarding larceny of money) supported its holding.
(1) In a case involving charges of obtaining property by false pretenses arising out of alleged insurance fraud, the defendant waived the issue of fatal variance by failing to raise it at trial. (2) Counsel rendered ineffective assistance by failing to move to dismiss on grounds of fatal variance. The indictment alleged that the defendant submitted fraudulent invoices for pet boarding services by Meadowsweet Pet Boarding which caused the insurance company to issue payment to her in the amount of $11,395.00. The evidence at trial, however, showed that the document at issue was a valid estimate for future services, not an invoice. Additionally, the document was sent to the insurance company three days after the company issued a check to the defendant. Therefore the insurance company’s payment could not have been triggered by the defendant’s submission of the document. Additionally, the State’s evidence showed that it was not the written estimate that falsely led the insurance company to believe that the defendant’s pets remained at Meadowsweet long after they had been removed from that facility, but rather the defendant’s oral representations made later. (3) The court rejected the defendant’s argument that false pretenses indictments pertaining to moving expenses were fatally defective because they did not allege the exact misrepresentation with sufficient precision. The indictments were legally sufficient: each alleged both the essential elements of the offense and the ultimate facts constituting those elements by stating that the defendant obtained money from the insurance company through a false representation made by submitting a fraudulent invoice which was intended to, and did, deceive the insurance company.
Indictments charging obtaining property by false pretenses were not defective. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then performing shoddy work or not completing the job. At trial, three other witnesses testified to similar incidents. On appeal, the defendant argued that the indictments failed to “intelligibly articulate” his misrepresentations. The court disagreed:
The indictments clearly state that defendant, on separate occasions, obtained property (money) from Ms. Hoenig and Ms. Harward by convincing each victim to believe that their roofs needed extensive repairs when in fact their roofs were not in need of repair at all. In each indictment, the State gave the name of the victim, the monetary sum defendant took from each victim, and the false representation used by defendant to obtain the money: by defendant “approaching [Ms. Hoenig] and claiming that her roof needed repair, and then overcharging [Ms. Hoenig] for either work that did not need to be done, or damage that was caused by the defendant[.]” As to Ms. Harward, the false representation used by defendant to obtain the money was “by . . . claiming that her shed roof needed repair, [with defendant knowing] at the time [that he] intended to use substandard materials and construction to overcharge [Ms. Harward].” Each indictment charging defendant with obtaining property by false pretenses was facially valid, as each properly gave notice to defendant of all of the elements comprising the charge, including the element defendant primarily challenges: the alleged misrepresentation (i.e., that defendant sought to defraud his victims of money by claiming their roofs needed repair when in fact no repairs were needed, and that defendant initiated these repairs but either failed to complete them or used substandard materials in performing whatever work was done).
(1) Indictments charging the defendant with obtaining property by false pretenses were not defective. The indictments alleged in part that “[t]he defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the products contained Gluten.” The court rejected the argument that the indictments were defective because they failed to sufficiently allege that he himself made a false representation. (2) There was no fatal variance between an indictment alleging that the defendant obtained value from the victim and the evidence, which showed that he obtained value from the victim’s husband. Citing G.S. 14-100(a), the court concluded that because an indictment for obtaining property by false pretenses need not allege any person's ownership of the thing of value obtained, the allegation was surplusage.
Stating in dicta that an indictment alleging obtaining property by false pretenses need not identify a specific victim.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Frauds & Related Offenses > Identity Theft & Related Offenses
An indictment charging trafficking in stolen identities was defective because it did not allege the recipient of the identifying information or that the recipient’s name was unknown.
No fatal variance occurred in an identity theft case. The defendant argued that there was a fatal variance between the indictment, which alleged that he possessed credit card numbers belonging to four natural persons and the evidence, which showed that three of the credit cards were actually business credit cards issued in the names of the natural persons. The court explained: “[N]o fatal variance exists when the indictment names an owner of the stolen property and the evidence discloses that that person, though not the owner, was in lawful possession of the property at the time.” Here the victims were the only authorized users of the credit cards and no evidence suggested they were not in lawful possession of them.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Frauds & Related Offenses > Forgery
There was no fatal variance between a forgery indictment and the evidence presented at trial. The indictment charged the defendant with forgery of “an order drawn on a government unit, STATE OF NORTH CAROLINA, which is described as follows: NORTH CAROLINA UNIFORM CITATION.” The evidence showed that the defendant, who was not a law enforcement officer, issued citations to several individuals. The court rejected the defendant’s arguments that the citations were not “orders” and were not “drawn on a government unit” because he worked for a private police entity.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Burglary and Related Offenses
There was no fatal variance in a possession of burglar’s tools indictment. The indictment identified the tools as a prybar and bolt cutters. The trial court instructed the jury that it could find the defendant guilty if he possessed either a prybar, bolt cutters, or work gloves. The court held that the indictment’s identification of the specific tools was mere surplusage.
Although the trial court erred when instructing the jury on first-degree burglary, no plain error occurred. The first-degree burglary indictment alleged that the defendant entered the dwelling with intent to commit larceny. The trial court instructed the jury that it could find the defendant guilty if at the time of the breaking and entering he intended to commit robbery with a dangerous weapon. Citing State v. Farrar, 361 N.C. 675 (2007) (burglary indictment alleged larceny as underlying felony but jury instructions stated that underlying felony was armed robbery; reviewing for plain error, the court held that the defendant had not been prejudiced by the instruction; because larceny is a lesser-included of armed robbery, the jury instructions benefitted defendant by adding an additional element for the State to prove), the court found that the defendant was not prejudiced by the error.
A burglary indictment alleging that the defendant intended to commit “unlawful sex acts” was not defective.
(1) An indictment for breaking or entering a motor vehicle alleging that the vehicle was the personal property of “D.L. Peterson Trust” was not defective for failing to allege that the victim was a legal entity capable of owning property. The indictment alleged ownership in a trust, a legal entity capable of owning property. (2) Because the State indicted the defendant for breaking or entering a motor vehicle with intent to commit larceny therein, it was bound by that allegation and had to prove that the defendant intended to commit larceny.
(1) Although the State is not required to allege the felony or larceny intended in an indictment charging breaking or entering a vehicle, if it does so, it will be bound by that allegation. (2) An indictment properly alleges the fifth element of breaking and entering a motor vehicle—with intent to commit a felony or larceny therein—by alleging that the defendant intended to steal the same motor vehicle.
A burglary indictment does not need to identify the felony that the defendant intended to commit inside the dwelling.
No fatal variance existed when a burglary indictment alleged that defendant broke and entered “the dwelling house of Lisa McCormick located at 407 Ward’s Branch Road, Sugar Grove Watauga County” but the evidence at trial indicated that the house number was 317, not 407. On this point, the court followed State v. Davis, 282 N.C. 107 (1972) (no fatal variance where indictment alleged that the defendant broke and entered “the dwelling house of Nina Ruth Baker located at 840Washington Drive, Fayetteville, North Carolina,” but the evidence showed that Ruth Baker lived at 830 Washington Drive). The court also held that the burglary indictment was not defective on grounds that it failed to allege that the breaking and entering occurred without consent. Following, State v. Pennell, 54 N.C. App. 252 (1981), the court held that the indictment language alleging that the defendant “unlawfully and willfully did feloniously break and enter” implied a lack of consent.
The trial court committed plain error in this safecracking case by instructing the jury that it could convict the defendant if it determined that he obtained the safe combination “by surreptitious means” when the indictment charged that he committed the offense by means of “a fraudulently acquired combination.” One essential element of the crime is the means by which the defendant attempts to open a safe. Here, there was no evidence that the defendant attempted to open the safe by the means alleged in the indictment.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Trespass & Injury to Property Offenses
On discretionary review of a unanimous decision of the Court of Appeals, 240 N.C. App. 264 (2015), the court reversed, holding that an indictment charging the defendant with injury to real property “of Katy’s Great Eats” was not fatally defective. The court rejected the argument that the indictment was defective because it failed to specifically identify “Katy’s Great Eats” as a corporation or an entity capable of owning property, explaining: “An indictment for injury to real property must describe the property in sufficient detail to identify the parcel of real property the defendant allegedly injured. The indictment needs to identify the real property itself, not the owner or ownership interest.” The court noted that by describing the injured real property as “the restaurant, the property of Katy’s Great Eats,” the indictment gave the defendant reasonable notice of the charge against him and enabled him to prepare his defense and protect against double jeopardy. The court also rejected the argument that it should treat indictments charging injury to real property the same as indictments charging crimes involving personal property, such as larceny, embezzlement, or injury to personal property, stating:
Unlike personal property, real property is inherently unique; it cannot be duplicated, as no two parcels of real estate are the same. Thus, in an indictment alleging injury to real property, identification of the property itself, not the owner or ownership interest, is vital to differentiate between two parcels of property, thereby enabling a defendant to prepare his defense and protect against further prosecution for the same crime. While the owner or lawful possessor’s name may, as here, be used to identify the specific parcel of real estate, it is not an essential element of the offense that must be alleged in the indictment, so long as the indictment gives defendant reasonable notice of the specific parcel of real estate he is accused of injuring.
The court further held that to the extent State v. Lilly, 195 N.C. App. 697 (2009), is inconsistent with its opinion, it is overruled. Finally, the court noted that although “[i]deally, an indictment for injury to real property should include the street address or other clear designation, when possible, of the real property alleged to have been injured,” if the defendant had been confused as to the property in question, he could have requested a bill of particulars.
Upon trial de novo in superior court, the defendant in this case was convicted of misdemeanor injury to personal property for throwing a balloon filled with black ink onto a painting during a protest at an arts event in Asheville. The defendant received a suspended 30-day sentence and was ordered to pay $4,425 in restitution. On appeal, the defendant argued that her motion to dismiss the injury to personal property charge should have been granted due to a fatal variance, and argued that the restitution amount was improperly based on speculative value. The appellate court rejected both arguments.
The charging document alleged that the defendant had damaged the personal property of the artist, Jonas Gerard, but the evidence at trial indicated that the painting was the property of the artist’s corporation, Jonas Gerard Fine Arts, Inc., an S corporation held in revocable trust, where Jonas Gerard was listed as both an employee and the sole owner. Although this evidence established that the artist and the corporation were separate legal entities, each capable of owning property, the court held that the state’s evidence sufficiently demonstrated that the artist named in the pleading was nevertheless a person who had a “special interest” in the property and was therefore properly named in the charging instrument. The painting was not yet complete, it was still in the artist’s possession at the time it was damaged, and the artist regarded himself and the corporation as functionally “one and the same” and he “certainly held out the paintings as his own.” Finding the facts of this case analogous to State v. Carr, 21 N.C. App. 470 (1974), the appellate court held that the charging document was “sufficient to notify Defendant of the particular piece of personal property which she was alleged to have damaged,” and the trial court did not err in denying the motion to dismiss for a fatal variance.
The restitution amount was also supported by competent evidence. A witness for the state testified that a potential buyer at the show asked what the painting would cost when completed and was told $8,850, which was the gallery’s standard price for paintings of that size by this artist. The artist also testified that the canvas was now completely destroyed, and the black ink could not be painted over. The trial court ordered the defendant to pay half that amount as restitution. The appellate court held that the fact that the painting “had not yet been purchased by a buyer does not mean that the market value assigned by the trial court for restitution was speculative.” The evidence presented at trial was sufficient to establish a fair market value for the painting prior to it being damaged, and the trial court’s restitution order would not be disturbed on appeal.
In a case where a juvenile was found to be delinquent based on the offense of injury to personal property with respect to a school printer, the trial court did not err by denying the juvenile’s motion to dismiss. The petition alleged that the juvenile damaged a printer owned by the “Charlotte Mecklenburg Board of Education[.]” The juvenile argued that the trial court erred by denying the motion to dismiss because the petition failed to allege that the school was an entity capable of owning property and that the evidence at trial did not prove who owned the printer. The court held that because the juvenile conceded the fact that the school was an entity capable of owning property and the State presented evidence that the school owned the printer, the trial court did not err by denying the motion. The court noted that the juvenile’s counsel expressly acknowledged to the trial court that the Charlotte-Mecklenburg Board of Education is an entity capable of owning property. The court also noted that because the juvenile did not contest this issue at trial, it could not be raised for the first time on appeal. As to the evidence, the State presented a witness who testified to ownership of the printer. A concurring judge recognized that with respect to the petition’s failure to plead that the owner was an entity capable of owning property, had the pleading been an indictment, the issue could be raised for the first time on appeal. However, the concurring judge concluded that the owner’s capability of owning property does not need have been pleaded in a petition with the same specificity as in an indictment.
(1) There was no fatal defect in an indictment charging the defendant with injury to personal property. The defendant asserted that the indictment was invalid because it failed to allege that the owner, a church, as an entity capable of owning property. In State v. Campbell, 368 N.C. 83 (2015), the Supreme Court held that alleging ownership of property in an entity identified as a church or other place of religious worship is sufficient to allege an entity capable of owning property. Here, count one of the indictment alleged breaking or entering a place of religious worship and identified the church expressly as “a place of religious worship.” The count alleging injury to personal property simply referred to the church by name. The court found that identifying the church as a place of religious worship in the first count and subsequently listing the church as the owner of the personal property in a later count was sufficient. A contrary ruling, requiring the church to be identified as a place of worship in each portion of the indictment, “would constitute a hypertechnical interpretation of the requirements for indictments.” (2) By failing to assert a claim of fatal variance between the indictment and the evidence with respect to a charge of injury to personal property, the defendant failed to preserve the issue for appellate review. Nevertheless, the court considered the issue and rejected the defendant’s claim. The indictment alleged that the defendant injured the personal property of the church, specifically a lock on a door. The defendant asserted that the evidence showed that the damaged device was owned not by the church but rather by the lessor of the property. The court concluded however that the evidence was sufficient to allow the jury to find that the church owned the lock and that it was damaged.
The court rejected the defendant’s fatal variance argument regarding injury to real property charges, noting that the North Carolina Supreme Court recently held that an indictment charging this crime need only identify the real property, not its owner.
In this burning of personal property case where the indictment charged that the defendant set fire to the victim’s bed, jewelry, and clothing and the evidence showed only that he set fire to her bedding, no fatal variance occurred. The State was not required to show that the defendant also set fire to her jewelry and clothing. The court rejected the defendant’s argument that there was a fatal variance between the indictment’s allegation that he set fire to her bed and the evidence, which showed he set fire to her bedding. Any variance in this regard was not material, given that there was no evidence that the “bedding” was found anywhere other than on the bed. It concluded: “we are unable to discern how Defendant was unfairly surprised, misled, or otherwise prejudiced in the preparation of his defense by the indictment’s failure to identify the ‘bedding’ rather than the ‘bed.’”
No fatal variance between an indictment charging injury to real property and the evidence at trial. The indictment incorrectly described the lessee of the real property as its owner. The indictment was sufficient because it identified the lawful possessor of the property.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Resisting an Officer, Obstruction & Related Offenses > Resisting An Officer
A confidential informant called the local police department, describing the defendant’s appearance and stating that the defendant would be at a certain location with a significant amount of methamphetamine in his bookbag. When the officers arrived at the scene, they found the defendant, matching the description, and sitting down with a bag and a knife. The officers asked the defendant if he had anything on him, to which the defendant responded he had marijuana in his pocket. After the officers retrieved the marijuana, the bag, and the knife, the defendant ran and was quickly apprehended by the officers.
At trial, the defendant stipulated that his book bag contained methamphetamine and heroin. The defendant moved to dismiss at the close of the State’s evidence and again at the close of all evidence, both of which were denied. The defendant was found guilty of possession with intent to sell and deliver methamphetamine, possession of heroin, misdemeanor possession of marijuana, possession of drug paraphernalia, resisting a public officer, and attaining habitual felon status.
On appeal, the defendant argued that the trial court erred when it denied his motion to dismiss the charge for resisting a public officer because there was a fatal variance between the indictment allegation and the evidence. Specifically, the indictment alleged that at the time of the defendant’s resistance, the detective was “attempting to take the defendant into custody for processing narcotics” but the evidence at trial only showed that the defendant ran from officers, including the detective, after a small amount of marijuana was seized from his person. Slip op. at ¶ 14. In rejecting the defendant’s argument, the Court of Appeals held that that an essential element of the charge of resisting a public officer is the identification of the official duty an officer was discharging or attempting to discharge at the time of a defendant’s resistance, rather than the specific basis for arrest. Thus, the Court concluded that the actual basis of arrest is not necessary to properly charge the offense of resisting a public officer.
Over a dissent, the court held that the trial court did not err by denying the defendant’s motion to dismiss a charge of resisting a public officer on grounds of fatal variance. The indictment specified that the defendant resisted by running away from the officer on foot. The evidence showed that although the defendant initially was on a moped, he continued to elude the officer on foot after the moped overturned.
There was no fatal variance in a resisting an officer case where the indictment alleged that the defendant refused to drop what was in his hands (plural) and the evidence showed that he refused to drop what was in his hand (singular). The variance was not material.
An indictment for resisting an officer was not defective. The indictment alleged that the defendant resisted “by not obeying [the officer’s] command [to stop]." The court rejected the defendant’s argument that the indictment failed to state with sufficient particularity the manner in which the defendant resisted.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Resisting an Officer, Obstruction & Related Offenses > Witness Intimidation
In this intimidating a witness case, the indictment alleged that the defendant told one person, Derstine, to tell another, Ramos, that the defendant would have Ramos deported if he testified against the defendant. Evidence at trial tended to show that Ramos did not actually receive this message. The court explained that while this was a variance between the indictment and the proof at trial, the variance did not relate to “the gist” of the offense of intimidating a witness, an offense concerned with “the obstruction of justice.” The court cited North Carolina case law establishing that whether a witness actually receives the threatening communication at issue is “irrelevant” to the crime of intimidating a witness, and, thus, the language of the indictment was mere surplusage. The court went on to determine that even if there was error in the trial court’s jury instruction on intimidating a witness, which did not deviate from the pattern jury instruction or from the instruction agreed upon by the parties, any such error was harmless as there was no reasonable likelihood that the alleged deviation misled the jury.
The State conceded that restitution ordered by the trial court lacked an evidentiary basis and the court remanded for a rehearing on the issue.
The State was not required to prove a specific case number alleged in an indictment charging deterring an appearance by a State witness in violation of G.S. 14-226(a). The case number was not an element of the offense and the allegation was mere surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Resisting an Officer, Obstruction & Related Offenses > Unlicensed Bail Bonding
There was no fatal defect in an indictment charging the defendant with misdemeanor unlicensed bail bonding in violation of G.S. 58-71-40. The indictment alleged that the defendant “did act in the capacity of, and performed the duties, functions, and powers of a surety bondsman and runner, without being qualified and licensed to do so. This act was done in violation of N.C.G.S. 58-71-40.” Where, as here, the language of the indictment is couched in the language of the statute it is sufficient to charge the offense. The court rejected the defendant’s argument that the indictment was defective because it failed to specify the exact manner in which he allegedly violated the statute.
A statement of charges, alleging that the defendant engaged in disorderly conduct in or near a public building or facility sufficiently charged the offense. Although the statute uses the term “rude or riotous noise,” the charging instrument alleged that the defendant did “curse and shout” at police officers in a jail lobby. The court found that the charging document was sufficient, concluding that “[t]here is no practical difference between ‘curse and shout’ and ‘rude or riotous noise.’”
The superior court lacked jurisdiction to try the defendant for possession of lottery tickets in violation of G.S. 14-290. An officer issued the defendant a citation for violating G.S. 14-291 (acting as an agent for or on behalf of a lottery). The district court allowed the charging document to be amended to charge a violation of G.S. 14-290. The defendant was convicted in district court, appealed, and was again convicted in superior court. The court held that the district court improperly allowed the charging document to be amended to charge a different crime.
The indictment properly charged the defendant with burning of a building in violation of G.S. 14-62. The indictment alleged that the “defendant . . . unlawfully, willfully and feloniously did set fire to, burn, cause to be burned and aid the burning” of a specified building. The court rejected the defendant’s argument that the indictment was defective because it did not allege that the defendant acted “wantonly,” noting that North Carolina courts have held that the terms “willfully” and “wantonly” are essentially the same.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Carrying Concealed
No fatal variance between indictment and the evidence in a carrying a concealed weapon case. After an officer discovered that the defendant was carrying knives and metallic knuckles, the defendant was charged with carrying a concealed weapon. The indictment identified the weapon as “a Metallic set of Knuckles.” The trial court instructed the jury concerning “one or more knives.” The court, per curiam and without an opinion, summarily affirmed the ruling of the North Carolina Court of Appeals that the charging language, “a Metallic set of Knuckles,” was unnecessary surplusage, and even assuming the trial court erred in instructing on a weapon not alleged in the charge, no prejudicial error required a reversal where there was evidence that the defendant possessed knives.
When charging carrying a concealed gun under G.S. 14-269, the exception in G.S. 14-269(a1)(2) (having a permit) is a defense not an essential element and need not be alleged in the indictment.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Discharging Weapon Into Property
An indictment charging the defendant with discharging a weapon into an occupied dwelling was not fatally defective. The defendant argued that the indictment was defective because it charged him with discharging a weapon into occupied property causing serious bodily injury, but failed to allege that any injury resulted from the act. The court noted that the defendant’s argument was based on the indictment’s reference to G.S. 14-34.1(c) as the statute violated. However, a statutory reference in an indictment is surplusage and can be disregarded. Moreover, the body of the indictment charges the defendant with the version of the offense for which he was convicted, which does not require serious injury.
The State conceded, and the court held, that the indictment was insufficient to support a conviction for discharging a firearm within an enclosure to incite fear. The indictment improperly alleged that the defendant discharged a firearm “into” an occupied structure; the statute, G.S. 14-34.10, requires that the defendant discharge a firearm “within” an occupied building.
An indictment charging discharging a firearm into an occupied dwelling was not defective. The indictment alleged that the defendant “discharge[d] a firearm to wit: a pistol into an apartment 1727 Clemson Court, Kannapolis, NC at the time the apartment was occupied by Michael Fezza” and that the defendant violated G.S. 14-34. The defendant was convicted of discharging a weapon into an occupied dwelling in violation of G.S. 14-34.1. The court rejected the defendant’s argument that the term “apartment,” as used in the indictment, was not synonymous with the term “dwelling,” the term used in the statute. On this issue the court stated: “We refuse to subject defendant’s … indictment to hyper technical scrutiny with respect to form.” Next, the court held that although the indictment incorrectly referenced G.S. 14-34 instead of G.S. 14-34.1(b), the error was not a fatal defect.
The trial court erred by instructing the jury on the offense of discharging a firearm into a vehicle that is in operation under G.S. 14-34.1(b) where the indictment failed to allege that the vehicle was in operation. However, because the indictment properly charged discharging a firearm into an occupied vehicle under G.S. 14-34.1(a), the court vacated the conviction under G.S. 14-34.1(b) and remanded for entry of judgment under G.S. 14-34.1(a).
Fact that indictment charging discharging a barreled weapon into an occupied dwelling used the term “residence” instead of the statutory term “dwelling” did not result in a lack of notice to the defendant as to the relevant charge.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Felon in Possession
In this case involving possession of a firearm by a felon and carrying a concealed weapon, (1) binding caselaw required that the defendant’s conviction for felon in possession be vacated because the indictment was fatally defective; and (2) the trial court’s ruling on the defendant’s motion to suppress was based on improper findings of fact.
(1) G.S. 14-415.1(c) dictates that an indictment charging a defendant with possession of a firearm by a felon must be separate from any indictment charging other offenses related to or giving rise to the felon in possession charge. Here, a single indictment charged the defendant with felon in possession, possession of a firearm with an altered/removed serial number, and carrying a concealed weapon. Finding itself bound by State v. Wilkins, 225 N.C. App. 492 (2013), the court determined that the State’s failure to obtain a separate indictment for the felon in possession offense rendered the indictment fatally defective and invalid as to that offense.
(2) The court determined that the trial court’s order denying the defendant’s Fourth Amendment motion to suppress a firearm seized from the center console of his vehicle did not contain adequate findings of fact pertaining to a material conflict in the evidence of the accessibility of the firearm and consequently the trial court plainly erred in denying the motion.
An officer initiated a valid traffic stop of the defendant and searched the vehicle for marijuana based on an emanating odor. During the search, the officer felt and saw the handgrip of a pistol around the center console, arrested the defendant for carrying a concealed weapon, and then removed a plastic panel from the console to retrieve the pistol. The defendant challenged the trial court’s finding of fact that “no tools were needed” to remove the panel, a finding bearing upon the accessibility of the pistol for purposes of determining whether the officer had probable cause for the independent search of the console premised on the offense of carrying a concealed weapon. Reviewing the testimony, the court of appeals found that the finding that “no tools were needed” was not supported by the testimony at the suppression hearing and that the trial court otherwise failed to make necessary findings as to the accessibility of the pistol. Because the accessibility issue was not resolved by adequate findings, the trial court’s conclusion of law regarding probable cause was not supported and it could not properly rule on the defendant’s motion to suppress. The court remanded the case for the trial court to make further findings on the issue.
An indictment for felon in possession of a firearm was fatally defective because the charge was included as a separate count in a single indictment also charging the defendant with assault with a deadly weapon. G.S. 14-415.1(c) requires that possession of a firearm by a felon be charged in a separate indictment from other related charges.
Felon in possession indictment that listed the wrong date for the prior felony conviction was not defective, nor was there a fatal variance on this basis (indictment alleged prior conviction date of December 8, 1992 but judgment for the prior conviction that was introduced at trial was dated December 18, 1992).
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Possession of Weapons on School Grounds
In a carrying a weapon on educational property case, the court rejected the defendant’s argument that there was a fatal variance between the indictment, which alleged that the defendant possessed weapons at “High Point University, located at 833 Montlieu Avenue” and the evidence, which showed that the conduct occurred at “1911 North Centennial Street.” The court concluded: “The indictment charged all of the essential elements of the crime: that Defendant knowingly possessed a Ruger pistol on educational property—High Point University. We agree with the State that the physical address for High Point University listed in the indictment is surplusage because the indictment already described the ‘educational property’ element as ‘High Point University.’”
A juvenile petition sufficiently alleged that the juvenile was delinquent for possession of a weapon on school grounds in violation of G.S. 14-269.2(d). The petition alleged that the juvenile possessed an “other weapon,” specified as a “steel link from chain.” The evidence showed that the juvenile possessed a 3/8-inch thick steel bar forming a C-shaped “link” about 3 inches long and 1½ inches wide. The link closed with a ½-inch thick bolt and the object weighed at least 1 pound. The juvenile could slide his fingers through the link so that 3-4 inches of the bar could be held securely across his knuckles and used as a weapon. Finding the petition sufficient the court stated: “the item . . . is sufficiently equivalent to what the General Assembly intended to be recognized as ‘metallic knuckles’ under [the statute].”
The court per curiam affirmed the decision below, State v. Stith, ___ N.C. App. ___, 787 S.E.2d 40 (April 5, 2016). In that decision, the court of appeals held, over a dissent, that an indictment charging the defendant with possessing hydrocodone, a Schedule II controlled substance, was sufficient to allow the jury to convict the defendant of possessing hydrocodone under Schedule III, based on its determination that the hydrocodone pills were under a certain weight and combined with acetaminophen within a certain ratio to bring them within Schedule III. The original indictment alleged that the defendant possessed “acetaminophen and hydrocodone bitartrate,” a substance included in Schedule II. Hydrocodone is listed in Schedule II. However, by the start of the trial, the State realized that its evidence would show that the hydrocodone possessed was combined with a non-narcotic such that the hydrocodone is considered to be a Schedule III substance. Accordingly, the trial court allowed the State to amend the indictment, striking through the phrase “Schedule II.” At trial the evidence showed that the defendant possessed pills containing hydrocodone bitartrate combined with acetaminophen, but that the pills were of such weight and combination to bring the hydrocodone within Schedule III. The court concluded that the jury did not convict the defendant of possessing an entirely different controlled substance than what was charged in the original indictment, stating: “the original indictment identified the controlled substance … as hydrocodone, and the jury ultimately convicted Defendant of possessing hydrocodone.” It also held that the trial court did not commit reversible error when it allowed the State to amend the indictment. The court distinguished prior cases, noting that here the indictment was not changed “such that the identity of the controlled substance was changed. Rather, it was changed to reflect that the controlled substance was below a certain weight and mixed with a non-narcotic (the identity of which was also contained in the indictment) to lower the punishment from a Class H to a Class I felony.” Moreover, the court concluded, the indictment adequately apprised the defendant of the controlled substance at issue. The court of appeals applied the same holding with respect to an indictment charging the defendant with trafficking in an opium derivative, for selling the hydrocodone pills.
The defendant was convicted at trial of trafficking heroin, possession with intent to sell or deliver synthetic cannabinoids, and other various drug offenses in in Brunswick County. (1) During its instructions to the jury, the trial court stated that the jury should determine the guilt or innocence of this defendant and should not be influenced by evidence that other people were also charged in connection with the underlying events (who would get their own days in court). The defendant argued that this was an impermissible expression of judicial opinion on the evidence. Specifically, she argued that this instruction conveyed to the jury that the crime had occurred; that the jury should disregard all evidence that others present in the car may have been responsible; and that the defendant’s defense should be discounted. The Court of Appeals disagreed. First, the trial court expressed no opinion that the crime occurred. There was no argument denying the presence of drugs in the car, and the role of the jury in the case was to determine whether the defendant possessed them. The trial court’s acknowledgement that a crime had occurred was therefore not improper opinion. The instruction also did not command the jury to disregard evidence that others present may have been responsible. “Read in context, the trial court’s statement did not touch on Defendant’s evidence . . . [and] did not refer to the credibility of any evidence.” Hills Slip op. at 9. Finally, the instruction did not denigrate the defendant’s defense. Unlike other cases where a trial court’s statement was found to be improper, the instruction here did not disclaim the involvement of other people. Instead, the instruction specifically informed the jury that others who were charged in the case would have their own days in court. “The trial court’s instruction, therefore, did not reflect an opinion on the credibility of Defendant’s evidence but, instead, reminded the jury it must only consider the evidence presented during the course of the hearing.” Id. at 11. Further, the instruction at issue came after the close of evidence, not during evidence, lessening the risk that the jury would have taken it as an expression of opinion. Finally, the jury was instructed not to assume any opinion based on the trial court’s statements or expressions during trial immediately before receiving the contested instruction. Under the circumstances, the trial court’s instruction did not amount to an improper expression of opinion on the case.
(2) G.S. 90-89(7) lists 18 specific synthetic cannabinoids, but the substance charged in the indictment here—”methyl(2S)-2-{{1-(5-fluoropentyl)-1H-indazol-3-yl]formamido}-3,3-dimethylbutanoate (5F-ADB)”—is not listed there or elsewhere within Chapter 90 as a Schedule I substance. Wikipedia provides that the substance named in the indictment is a synthetic cannabinoid, and the State argued on appeal that this was sufficient to establish that the identity of the substance as a Schedule I drug. The court rejected this argument, pointing out that “[a] court may not look to extrinsic evidence to supplement a missing or deficient allegation in an indictment.” Hills Slip op. at 16. It found that the indictment failed to allege a necessary element of the offense (the controlled substance) and was therefore fatally flawed. The conviction was consequently vacated. Judges Dietz and Zachary concurred.
In this Pasquotank County case, the defendant was convicted of trafficking Fentanyl by possession and possession of Fentanyl with intent to sell or deliver, among other drug crimes. (1) The defendant argued on appeal that the indictment for these offenses was fatally defective because Fentanyl was not covered by the version of G.S. 90-95(h)(4) that was in effect at the time of her offense on December 31, 2006. The Court of Appeals determined that Fentanyl was an “opiate” within the meaning of the statute, which made it unlawful to possess or transport certain quantities of “opium or opiates.” The Court reasoned that though the term “opiate” typically refers to natural drugs derived from opium, like heroin, morphine and codeine, rather than synthetic drugs like Fentanyl, that definition was not universal. It agreed with the State that the General Assembly intended for the term “opiate” to include any drug that produces an opium-like effect by binding to opium receptors in the brain, regardless of whether the drug is naturally derived from opium or is synthetic or semi-synthetic. The Court noted that the common dictionary definition of the term opiate supported this broader reading as did the statutory definition of opiate. The Court rejected the defendant’s contention that the legislature’s 2018 amendment of the statute to replace the terms “opium or opiate” with “opium, opiate, or opioid” indicated that the term opiate did not include opioids, which are partially or wholly synthetic drugs produced in a lab to mimic the effects of opium. The Court held that the amendment was intended to clarify that opium, opiates, and opioids were all prohibited substances rather than to alter the applicability of the statute.
(2) The defendant also argued on appeal that the trial court’s instructions to the jury, which reported that it was deadlocked on the second day of deliberations, were improper as they did not recite the language from G.S. 15A-1235(b) (the statute that describes how a judge should instruct a deadlocked jury). The defendant did not object to the instruction at trial, so the Court of Appeals reviewed the issue for plain error. The Court compared the instructions given by the trial court to the statutory instruction, and determined that the instructions provided contained “all of the key elements and ideas from § 15A-1235(b).” Slip op. at § 39. Thus, the Court determined that jurors was properly instructed about their duty to deliberate and the defendant did not demonstrate plain error.
The trial court erred by allowing the State, at the beginning of trial, to amend the indictment charging the defendant with trafficking in heroin to allege trafficking in opiates. In connection with a drug investigation, an officer and informant waited in a hotel room for the defendant. The defendant arrived in a vehicle and, carrying a child in his arms, approached the room. Events ensued and the defendant admitted having placed a packet of heroin in the child’s pants. The defendant was arrested and the car was searched. A search of the car produced: two digital scales; a partially smoked marijuana “blunt;” $800 in cash; a key box under the hood containing balloons of heroin, a pill bottle containing marijuana, crack cocaine and 17 hydrocodone pills; and a revolver wrapped in a sock. The hydrocodone weighed 4.62 grams; the heroin recovered from the child’s pants weighed .84 grams; and the heroin found in the car weighed 3.77 grams. The minimum amount for trafficking in heroin is 4 grams; thus, the only way for the State to prove that minimum was to prove that the defendant possessed both the heroin found in the car and the smaller quality of heroin found in the child’s pants. At a pretrial hearing, the State dismissed several charges leaving the following charges in place: possession of a firearm by a felon, possession of marijuana, possession with intent to sell or deliver cocaine, trafficking in heroin by transportation, and trafficking in heroin by possession. At this point, defense counsel informed the court that the defendant would admit to the heroin found in the child’s pants. The prosecutor then asked to amend the trafficking indictments from trafficking in heroin to trafficking in opiates. The trial court granted the State’s motion to amend, over the defendant’s objection. The defendant was convicted on the trafficking charges. The court noted that here, the amendment broadened the scope of the original indictment to allege trafficking in “opiates,” a category of controlled substances, rather than “heroin,” a specific controlled substance. It did so, the court reasoned, for the purpose of bringing an additional controlled substance—hydrocodone—within the ambit of the indictment. Although heroin is an opiate, not all opiates are heroin. Therefore, when the original indictment was amended to include hydrocodone, a new substance was effectively alleged in the indictment. The court found its holding consistent with the proposition that a critical purpose of the indictment is to enable the accused to prepare for trial. Here, the State moved to amend on the morning of trial. Until then, the defendant had justifiably relied on the original indictment in preparing his defense. In fact this concern was expressed by defense counsel in his objection to the motion to amend, specifically arguing that the defendant had no knowledge that the hydrocodone would be included in the trafficking amount. Additionally, the State sought to amend the indictment only after the defendant informed the trial court of his intention to admit possessing some, but not all, of the heroin. The logical inference of the sequence is that upon learning of the defendant’s trial strategy on the morning of trial, the State sought to thwart that strategy by broadening the scope of the indictment. The court stated: “In essence, the State was permitted to change the rules of the game just as the players were taking the field.”
(1) Count 1 of an indictment charging the defendant with possessing a Schedule I controlled substance, “Methylethcathinone,” with intent to manufacture, sell or deliver was fatally defective. Although 4-methylethcathinone falls within the Schedule I catch-all provision in G.S. 90-89(5)(j), “Methylethcathinone” does not. Therefore, even though 4-methylethcathinone is not specifically named in Schedule I, the trial court erred by allowing the State to amend the indictment to allege “4-Methylethcathinone” and the original indictment was fatally defective. (2) Noting that the indictment defect was a jurisdictional issue, the court rejected the State’s argument that the defendant waived the previous issue by failing to object to the amendment. (3) Count two of the indictment charging the defendant with possessing a Schedule I controlled substance, “Methylone,” with intent to manufacture, sell or deliver was not fatally defective. The court rejected the defendant’s argument that the indictment was required to allege that methylone, while not expressly mentioned by name in G.S. 90-89, falls within the “catch-all” provision subsection (5)(j).
Indictments charging the defendant with drug crimes were fatally defective where they did not name controlled substances listed in Schedule III. The possession with intent and sale and delivery indictments alleged the substances at issue to be “UNI-OXIDROL,” "UNIOXIDROL 50” and “SUSTANON” and alleged that those substances were “included in Schedule III of the North Carolina Controlled Substances Act.” Neither Uni-Oxidrol, Oxidrol 50, nor Sustanon are included in Schedule III and none of these names are trade names for substances so included.
Indictments charging the defendant with drug crimes and identifying the controlled substance as “BENZODIAZEPINES, which is included in Schedule IV of the North Carolina Controlled Substances Act[.]” were defective. Benzodiazepines is not listed in Schedule IV. Additionally, benzodiazepine describes a category of drugs, some of which are listed in Schedule IV and some of which are not.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Amount of Drugs
In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial. The court however went on summarily reject the defendant’s argument on them merits. The defendant had argued that there was a fatal variance between the indictment, which alleged possession of .1 grams of cocaine and the evidence, which showed possession of 0.03 grams of cocaine.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Drug Activity Near School, Child Care, Park
As conceded by the State, indictments charging the defendant with possession with intent to sell and deliver marijuana and heroin within 1000 feet of a park under G.S. 90-95(e)(10) were fatally defective where they failed to allege that he was over the age of 21 at the time of the offenses.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Sale and Delivery of Controlled Substance
The court, per curiam, affirmed the decision below in State v. Land, 223 N.C. App. 305 (2012), holding that a drug indictment was not fatally defective. Over a dissent, the court of appeals had held that when a defendant is charged with delivering marijuana and the amount involved is less than five grams, the indictment need not allege that the delivery was for no remuneration. Relying on G.S. 90-95(b)(2) (transfer of less than five grams of marijuana for no remuneration does not constitute a delivery in violation of G.S. 90-95(a)(1)), the defendant argued that the statute “creates an additional element for the offense of delivering less than five grams of marijuana -- that the defendant receive remuneration -- and that this additional element must be alleged.” Relying on State v. Pevia, 56 N.C. App. 384, 387 (1982), the court of appeals held that an indictment is valid under G.S. 90-95 even without that allegation.
The court rejected the defendant’s argument that there was a fatal variance between a sale and delivery indictment which alleged that the defendant sold the controlled substance to “A. Simpson” and the evidence. Although Mr. Simpson testified at trial that his name was “Cedrick Simpson,” not “A. Simpson,” the court rejected the defendant’s argument, stating:
[N]either during trial nor on appeal did defendant argue that he was confused as to Mr. Simpson’s identity or prejudiced by the fact that the indictment identified “A. Simpson” as the purchaser instead of “Cedric Simpson” or “C. Simpson.” In fact, defendant testified that he had seen Cedric Simpson daily for fifteen years at the gym. The evidence suggests that defendant had no question as to Mr. Simpson’s identity. The mere fact that the indictment named “A. Simpson” as the purchaser of the controlled substances is insufficient to require that defendant’s convictions be vacated when there is no evidence of prejudice, fraud, or misrepresentation.
No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had since gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by both married and maiden name, the indictment sufficiently identified the purchaser. The court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide.”
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Manufacture a Controlled Substance
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 816 S.E.2d 207 (2018), the court held that a manufacturing marijuana indictment was not fatally defective. The indictment alleged that the defendant “did manufacture [marijuana] . . . by producing, preparing, propagating and processing a controlled substance.” The defendant was found guilty of attempting to manufacture marijuana and other charges, and he appealed. The offense of manufacturing a controlled substance does not require an intent to distribute unless the activity constituting manufacture is preparation or compounding. Here, the indictment alleged that the defendant manufactured marijuana in four different ways, only one of which required a showing of an intent to distribute. After acknowledging that certain ways in which the defendant allegedly manufactured did not require proof that he acted with an intent to distribute, the Court of Appeals concluded that it was necessary that all four of those bases were alleged with sufficiency to confer jurisdiction on the trial court. The Supreme Court found that conclusion to be inconsistent with prior case law establishing that the use of the conjunctive in an indictment does not require the State to prove the various alternative matters alleged. Assuming without deciding that a valid indictment charging manufacturing by preparing or compounding must allege that the defendant acted with an intent to distribute, the indictment gave the trial court jurisdiction to enter judgment for manufacturing given that it also alleged that he did so by producing, propagating, and processing.
For the reasons stated in the dissenting opinion below, the court reversed State v. Hinson, 203 N.C. App. 172 (Apr. 6, 2010). The defendant was indicted for manufacturing methamphetamine by “chemically combining and synthesizing precursor chemicals to create methamphetamine.” However, the trial judge instructed the jury that it could find the defendant guilty if it found that he produced, prepared, propagated, compounded, converted or processed methamphetamine, either by extraction from substances of natural origin or by chemical synthesis. The court of appeals held, over a dissent, that this was plain error as it allowed the jury to convict on theories not charged in the indictment. The dissenting judge concluded that while the trial court’s instructions used slightly different words than the indictment, the import of both the indictment and the charge were the same. The dissent reasoned that the manufacture of methamphetamine is accomplished by the chemical combination of precursor elements to create methamphetamine and that the charge to the jury, construed contextually as a whole, was correct.
An indictment charging manufacturing of methamphetamine was sufficient. The indictment alleged that the defendant “did knowingly manufacture methamphetamine.” It went on to state that the manufacturing consisted of possessing certain precursor items. The latter language was surplusage; an indictment need not allege how the manufacturing occurred.
An indictment charging trafficking by manufacturing was not defective. The court rejected the defendant’s argument that the indictment was fatally defective because it did not adequately describe the manner in which the defendant allegedly manufactured cocaine. It reasoned: “Although Defendant is correct in noting that the indictment does not explicitly delineate the manner in which he manufactured cocaine or a cocaine-related mixture, the relevant statutory language creates a single offense consisting of the manufacturing of a controlled substance rather than multiple offenses depending on the exact manufacturing activity in which Defendant allegedly engaged.”
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Maintaining a Dwelling
Theories included in the trial judge’s jury instructions were supported by the indictment. The indictment charged the defendant with maintaining a dwelling “for keeping and selling a controlled substance.” The trial court instructed the jury on maintaining a dwelling “for keeping or selling marijuana.” The use of the conjunctive “and” in the indictment did not require the State to prove both theories alleged.
The trial court erred by allowing the State, at the beginning of trial, to amend the indictment charging the defendant with trafficking in heroin to allege trafficking in opiates. In connection with a drug investigation, an officer and informant waited in a hotel room for the defendant. The defendant arrived in a vehicle and, carrying a child in his arms, approached the room. Events ensued and the defendant admitted having placed a packet of heroin in the child’s pants. The defendant was arrested and the car was searched. A search of the car produced: two digital scales; a partially smoked marijuana “blunt;” $800 in cash; a key box under the hood containing balloons of heroin, a pill bottle containing marijuana, crack cocaine and 17 hydrocodone pills; and a revolver wrapped in a sock. The hydrocodone weighed 4.62 grams; the heroin recovered from the child’s pants weighed .84 grams; and the heroin found in the car weighed 3.77 grams. The minimum amount for trafficking in heroin is 4 grams; thus, the only way for the State to prove that minimum was to prove that the defendant possessed both the heroin found in the car and the smaller quality of heroin found in the child’s pants. At a pretrial hearing, the State dismissed several charges leaving the following charges in place: possession of a firearm by a felon, possession of marijuana, possession with intent to sell or deliver cocaine, trafficking in heroin by transportation, and trafficking in heroin by possession. At this point, defense counsel informed the court that the defendant would admit to the heroin found in the child’s pants. The prosecutor then asked to amend the trafficking indictments from trafficking in heroin to trafficking in opiates. The trial court granted the State’s motion to amend, over the defendant’s objection. The defendant was convicted on the trafficking charges. The court noted that here, the amendment broadened the scope of the original indictment to allege trafficking in “opiates,” a category of controlled substances, rather than “heroin,” a specific controlled substance. It did so, the court reasoned, for the purpose of bringing an additional controlled substance—hydrocodone—within the ambit of the indictment. Although heroin is an opiate, not all opiates are heroin. Therefore, when the original indictment was amended to include hydrocodone, a new substance was effectively alleged in the indictment. The court found its holding consistent with the proposition that a critical purpose of the indictment is to enable the accused to prepare for trial. Here, the State moved to amend on the morning of trial. Until then, the defendant had justifiably relied on the original indictment in preparing his defense. In fact this concern was expressed by defense counsel in his objection to the motion to amend, specifically arguing that the defendant had no knowledge that the hydrocodone would be included in the trafficking amount. Additionally, the State sought to amend the indictment only after the defendant informed the trial court of his intention to admit possessing some, but not all, of the heroin. The logical inference of the sequence is that upon learning of the defendant’s trial strategy on the morning of trial, the State sought to thwart that strategy by broadening the scope of the indictment. The court stated: “In essence, the State was permitted to change the rules of the game just as the players were taking the field.”
In a trafficking case, there was no fatal variance between the indictment, alleging that the defendant trafficked in opium, and the evidence at trial, showing that the substance was an opium derivative. G.S. 90-95(h)(4) “does not create a separate crime of possession or transportation of an opium derivative, but rather specifies that possession or transportation of an opium derivative is trafficking in opium,” as alleged in the indictment.
(1) The State conceded and the court held that an indictment for trafficking in opium by sale was fatally defective because it failed to name the person to whom the defendant allegedly sold or delivered the controlled substance. The indictment stated that the sale was "to a confidential informant[.]" It was undisputed that the name of the confidential informant was known. (2) An indictment for trafficking by delivery was defective for the same reason.
The trial court committed reversible error by allowing the State to amend an indictment charging conspiracy to engage in “trafficking to deliver Cocaine” to add the following language: “to deliver 28 grams or more but less than 200 grams of cocaine.” To allege all of the essential elements, an indictment for conspiracy to traffic in cocaine must allege that the defendant facilitated the transfer of 28 grams or more of cocaine. Here, the indictment failed to specify the amount of cocaine. The court also concluded that a defendant cannot consent to an amendment that cures a fatal defect; the issue is jurisdictional and a party cannot consent to subject matter jurisdiction.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Precursor Chemical Offenses
An indictment charging the defendant with possession of methamphetamine precursors was fatally defective and the defect could not be cured by amendment. Specifically, the indictment failed to allege that the defendant possessed the precursors knowing or having reasonable cause to believe that they would be used to manufacture methamphetamine. The trial court allowed the State to amend the indictment to add this allegation at trial. The amendment was improper and the indictment was fatally defective.
Over a dissent, the court held that an indictment charging possession of methamphetamine precursors was defective because it failed to allege either the defendant’s intent to use the precursors to manufacture methamphetamine or his knowledge that they would be used to do so. The indictment alleged only that the defendant processed the precursors in question; as such it failed to allege the necessary specific intent or knowledge.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Motor Vehicle Offenses > Impaired Driving
In an impaired driving case, citation language alleging that the defendant acted “willfully” was surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Motor Vehicle Offenses > Felony Speeding to Elude
An indictment charging felonious speeding to elude arrest and alleging an aggravating factor of reckless driving was not required to specify the manner in which the defendant drove recklessly.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Motor Vehicle Offenses > Habitual Impaired Driving
The trial court did not err by allowing the State to amend a habitual impairing driving indictment that mistakenly alleged a seven-year look-back period (instead of the current ten-year look-back), where all of the prior convictions alleged in the indictment fell within the ten-year period. The language regarding the seven-year look-back was surplusage.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > G.S. 14-3 Misdemeanor Sentencing Enhancement
An obstruction of justice indictment properly charged a felony when it alleged that the act was done “with deceit and intent to interfere with justice.” G.S. 14-3(b) provides that a misdemeanor receives elevated punishment when done with “deceit and intent to defraud.” The language “deceit and intent to interfere with justice” adequately put the defendant on notice that the State intended to seek a felony conviction. Additionally, the indictment alleged that the defendant acted “feloniously.”
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 166 (2017), the court reversed, holding that a habitual felon indictment was not fatally defective. The statute requires that a habitual felon indictment set forth “the date that prior felony offenses were committed;” “the name of the state or other sovereign against whom said felony offenses were committed;” “the dates that pleas of guilty were entered to or convictions returned in said felony offenses;” and “the identity of the court wherein said pleas or convictions took place.” Here, the indictment alleged that the three prior felony offenses were committed on 11 September 2006, 8 October 2009, and 24 August 2011; that the offenses that led to defendant’s felony convictions were committed against the State of North Carolina; that defendant was convicted of committing these offenses, the identity of which was specified in the body of the habitual felon indictment, on 15 February 2007, 21 September 2010, and 5 May 2014; and that each of these convictions occurred in the Superior Court, Pitt County. As a result, the habitual felon indictment contains all of the information required by G.S. 14-7.3 and provides defendant with adequate notice of the bases for the State’s contention that defendant had attained habitual felon status. The court noted that the indictment alleged that the defendant had committed the offenses of armed robbery and had been convicted of the lesser included offenses of common-law robbery. Because an indictment for an offense includes all lesser offenses, when the defendant allegedly committed the offense of armed robbery 8 October 2009 and 24 August 2011, he also committed the lesser included offense of common law robbery. Thus, the Court of Appeals was incorrect to state that “[i]t would be an impermissible inference to read into the indictment that common law robbery took place on 8 October 2009 or 24 August 2011 because that is not what the grand jury found when it returned its bill of indictment.”
The defendant was charged with three counts of breaking and entering, three counts of larceny after breaking and entering, two counts of obtaining property by false pretenses, and one count of felonious possession of stolen goods. The State ostensibly indicted the defendant as an habitual felon, for which the defendant waived arraignment, but the grand jury had returned the indictment marked as “NOT A TRUE BILL.” At the close of the State’s evidence at the trial of the underlying felonies, the trial judge granted the defendant’s motion to dismiss the breaking and entering charges, the related larceny charges, and one of the false pretenses counts. The jury convicted the defendant of one false pretense count and of the lesser offense of misdemeanor possession of stolen goods. Those convictions rested on the defendant’s possession of five stolen videogames and the sale of those videogames to a pawn shop for $12. After the jury’s verdict, the trial judge granted the State’s request to continue sentencing to obtain a new habitual felon indictment. The defendant was thereafter tried on the new habitual felon indictment and sentenced to 115 to 150 months in prison.
The defendant argued at trial and on appeal that the trial court did not have jurisdiction to try and sentence the defendant as an habitual felon. A majority of the Court of Appeals rejected the defendant’s argument, relying on State v. Oakes, 113 N.C. App. 332 (1994). Quoting from a portion of the Oakes opinion, the majority stated that an habitual felon indictment must be part of a prosecution “for which no judgment” has yet been entered. Oakes, 113 N.C. App. at 340. Accordingly, because judgment had not yet been entered, the State could obtain and prosecute a new habitual felon indictment. The majority also held that the trial judge did not abuse her discretion in granting a continuance to allow the State to obtain a new habitual felon indictment, rejecting the defendant’s argument that the continuance was improper because it resulted in an exponential increase in his sentence. The dissenting judge distinguished the current case from Oakes. The dissent observed that Oakes found that the defect in the habitual felon indictment was “technical” and “[a]t the time defendant entered his plea to the underlying substantive felony and proceeded to trial, there was pending against him an habitual felon indictment presumed valid by virtue of its ‘return by the grand jury as a true bill.’” Id., 113 N.C. App. at 339. Here, there was not a true bill of indictment, and allowing the State to obtain a new habitual felon indictment after the defendant entered his plea to the underlying felony was, in the dissent’s view, “beyond the boundaries of due process.” [Note: For a further discussion of case law on when the State may obtain a superseding habitual felon indictment, see Jeff Welty, North Carolina’s Habitual Felon, Violent Habitual Felon, Habitual Breaking and Entering Laws, ADMINISTRATION OF JUSTICE BULLETIN No. 2013/07, at 14–16 (Aug. 2013) (discussing cases allowing superseding habitual felon indictment for technical defects after trial of underlying felony but not for substantive changes).]
A habitual felon indictment was fatally defective. Citing precedent, the court noted that a habitual felon indictment must state two dates for each prior felony conviction: the date that the defendant committed the felony and the date that the defendant was convicted of the felony. These dates are essential elements. Here, the indictment failed to allege an offense date for one of the defendant’s prior felony convictions.
The trial court erred by instructing the jury that it could find that the defendant attained habitual felon status based on a prior conviction for selling cocaine where the indictment did not allege that conviction. The indictment alleged three predicate felonies to establish habitual felon status. However, the trial court instructed the jury on four felonies, the three identified in the indictment as well as sale of cocaine, which was not alleged in the indictment. Because it was impossible for the court to determine whether the jurors relied on the fourth felony not alleged in the indictment, a new hearing on habitual felon was required.
The trial court lacked jurisdiction over a habitual felon charge where the habitual felon indictment was returned before the principal felonies occurred.
A habitual felon indictment was not defective where it described one of the prior felony convictions as “Possess Stolen Motor Vehicle” instead of Possession of Stolen Motor Vehicle. The defendant’s argument was “hypertechnical;” the indictment sufficiently notified the defendant of the elements of the offense. Moreover, it referenced the case number, date, and county of the prior conviction.
Although a habitual felon indictment may be returned before, after, or simultaneously with a substantive felony indictment, it is improper where it is issued before the substantive felony even occurred.
By failing to object at trial to a fatal variance between a second-degree trespass indictment and the evidence at trial, the defendant failed to preserve the issue. The court declined to invoke Rule 2 to address the issue on the merits.
A fatal variance issue that is not raised at trial is waived for purposes of appeal.
By failing to assert a claim of fatal variance between the indictment and the evidence with respect to a charge of injury to personal property, the defendant failed to preserve the issue for appellate review. Nevertheless, the court considered the issue and rejected the defendant’s claim. The indictment alleged that the defendant injured the personal property of the church, specifically a lock on a door. The defendant asserted that the evidence showed that the damaged device was owned not by the church but rather by the lessor of the property. The court concluded however that the evidence was sufficient to allow the jury to find that the church owned the lock and that it was damaged.
In a trafficking in methamphetamine case where the defendant did not object on grounds of fatal variance at trial, the issue was waived for purposes of appeal.
The issue of fatal variance is not preserved for purposes of appeal if not asserted at trial.
Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.
Where a defendant failed to make a motion to dismiss on the basis of fatal variance at trial, the issue was waived for purposes of appeal.
(1) By failing to assert fatal variance as a basis for his motion to dismiss, the defendant failed to preserve the issue for appellate review.
In a felony possession of cocaine case, the defendant waived the issue of fatal variance by failing to raise it at trial.
On appeal, the defendant argued that there was a fatal variance between the indictment charging him with possession of a firearm and the evidence introduced at trial. Specifically, the defendant argued there was a variance as to the type of weapon possessed. By failing at the trial level to raise fatal variance or argue generally about insufficiency of the evidence as to the weapon used, the defendant waived this issue for purposes of appeal.
Because it is a jurisdictional issue, a defendant’s argument that a criminal indictment is defective may be raised for the first time on appeal notwithstanding the defendant’s failure to contest the validity of the indictment at trial.
A defendant may challenge the sufficiency of an indictment even after pleading guilty to the charge at issue.
The defendant pled guilty to controlled substance offenses pursuant to a bill of information and waiver of indictment. In an MAR, the defendant argued that the pleadings were defective and the trial court lacked jurisdiction because the waiver of indictment was not signed by his attorney. The trial court denied the MAR, finding that the pleadings substantially complied with the statute, but the appellate court reversed and remanded with instructions to grant the MAR and vacate the judgment. The requirements listed in G.S. 15A-642 for a waiver of indictment, including the signature of the defendant’s attorney, are mandatory. Therefore, the waiver in this case was “invalid without Defendant’s attorney’s signature, depriving the trial court of jurisdiction to accept Defendant’s guilty plea and enter judgment.”
The trial court erred by denying the defendant’s motion for appropriate relief alleging that the trial court lacked subject matter jurisdiction to enter judgment where the defendant was charged with a bill of information that did not include or attach a waiver of indictment. G.S. 15A-642 allows for the waiver of indictment in non-capital cases where a defendant is represented by counsel. The statute further requires: “Waiver of Indictment must be in writing and signed by the defendant and his attorney. The waiver must be attached to or executed upon the bill of information.” G.S. 15A-642(c). The court rejected the State’s argument that the statute’s requirements about waiver of indictment were not jurisdictional.
No double jeopardy violation occurs when the State retries a defendant on a charging instrument alleging the correct offense date after a first charge was dismissed due to a fatal variance.
Citing State v. Johnson, 9 N.C. App. 253 (1970), and noting in dicta that the granting of a motion to dismiss due to a material fatal variance between the indictment and the proof presented at trial does not preclude a retrial for the offense alleged on a proper indictment.
(COA10-1485). Because the defendant was never arraigned on a second indictment (that did not indicate that it was a superseding indictment), the second indictment did not supersede the first indictment.
The trial court’s failure to dismiss the original indictment after a superseding indictment was filed did not render the superseding indictment void or defective.
The defendant was charged by arrest warrant with misdemeanor injury to personal property, misdemeanor larceny, and reckless driving after he cut off the end of a truck stop’s air hose, attempted to strike his passenger with it, and then quickly fled with it when confronted by an undercover officer. He was convicted in district court and appealed to superior court. Before trial in superior court, the State moved to amend the charging language to correct the name of the corporate property owner for the injury to personal property and larceny charges. The prosecutor made the amendment on a misdemeanor statement of charges form with no objection from the defendant. The defendant was convicted and appealed. A divided Court of Appeals held that the superior court lacked jurisdiction to try the charges amended through the statement of charges, reasoning that under the language of G.S. 15A-922(e), a statement of charges may be filed after arraignment only if the defendant objects to the State’s original pleading. State v. Capps, ___ N.C. App. ___, 828 S.E.2d 733 (2019). The State appealed and the Supreme Court reversed, reinstating the convictions. The Court held that warrants may be amended at any time when doing so does not materially affect the nature of the charged offense or is otherwise authorized by law. And the State may make the amendment though a statement of charges, because the General Assembly intended statements of charges to be generally treated like amendments. The Court rejected the defendant’s argument that the defendant’s objection to the sufficiency of a warrant is a necessary prerequisite to a post-arraignment statement of charges.
The superior court lacked jurisdiction to try the defendant for resisting arrest where the defendant was tried on a misdemeanor statement of charges filed in superior court. The State filed the statement of charges on its own, without an objection to the magistrate’s order having been made by the defendant. Under G.S. 15A-922, “the State has a limited window in which it may file a statement of charges on its own accord, and that is prior to arraignment” in district court. After arraignment, the State may only file a statement of charges when the defendant objects to the sufficiency of the pleading and the trial court rules that the pleading is insufficient.
Although the State improperly circumvented district court jurisdiction by simultaneously obtaining a presentment and an indictment from a grand jury, the proper remedy is to remand the charges to district court, not dismissal. The defendant was issued citations for impaired driving and operating an overcrowded vehicle. After the defendant’s initial hearing in district court, she was indicted by the grand jury on both counts and her case was transferred to Superior Court. The grand jury was presented with both a presentment and an indictment, identical but for the titles of the respective documents. When the case was called for trial in Superior Court, the defendant moved to dismiss for lack of subject matter jurisdiction due to the constitutional and statutory invalidity of the presentment and indictment procedure. The Superior Court granted the defendant’s motion and the State appealed.
G.S. 15A-641 provides that “[a] presentment is a written accusation by a grand jury, made on its own motion . . . .” It further provides that “[a] presentment does not institute criminal proceedings against any person, but the district attorney is obligated to investigate the factual background of every presentment . . . and to submit bills of indictment to the grand jury dealing with the subject matter of any presentments when it is appropriate to do so.” The plain language of G.S. 15A-641 “precludes a grand jury from issuing a presentment and indictment on the same charges absent an investigation by the prosecutor following the presentment and prior to the indictment.” The court rejected the State’s argument that G.S. 15A-644 governs the procedure for presentments and that because the presentment met the requirements of that statute it is valid, concluding in part: “It is not the sufficiency of the presentment form and contents that is at issue, but the presentment’s simultaneous occurrence with the State’s indictment that makes both invalid.” Here, the prosecutor did not investigate the factual background of the presentment after it was returned and before the grand jury considered the indictment. Because the prosecutor submitted these documents to the grand jury simultaneously and they were returned by the grand jury simultaneously in violation of G.S. 15A-641 “each was rendered invalid as a matter of law.” The court thus affirmed the superior court’s ruling that it did not have subject matter jurisdiction over the case.
The court went on to affirm the lower court’s conclusion that the superior court prosecution violated the defendant’s rights under Article I, Section 22 of the state constitution, but found that it need not determine whether the defendant was prejudiced by this violation. It further held that the trial court erred in holding that the State violated the defendant’s rights under Article I, Sections 19 and 23 of the North Carolina Constitution.
On the issue of remedy, the court agreed with the State that the proper remedy is not dismissal but remand to District Court for proceedings on the initial misdemeanor citations.
The court rejected the defendant’s argument that the trial court lacked subject matter jurisdiction over a misdemeanor stalking charge. Although the defendant argued that there was no evidence in the record of a presentment, the amended record shows that a presentment was issued by the grand jury and filed with the superior court.
In this DWI case, the court rejected the defendant’s argument that the State deprived him of equal protection by initiating the proceeding using a presentment instead of a citation. A rational basis (judicial economy) supported use of a presentment.
In this Cabarrus County case, defendant appealed his convictions for uttering a forged instrument and obtaining property by false pretenses, arguing that the indictment was fatally defective and the record of the hearing omitted conversations by the bench. The Court of Appeals found no error.
Reviewing defendant’s arguments on appeal, the court first explained that “[a] defendant must bring a motion to quash a fatally defective indictment to preserve the issue on appeal.” Slip Op. at 4. Because defendant did not move to quash the indictment, he forfeited this argument on appeal; defendant’s motion to dismiss at trial was a motion to dismiss for insufficiency of the evidence, and this motion did not reference the fatally defective indictment.
Regarding defendant’s recordation argument, the court pointed to State v. Blakeney, 352 N.C. 287 (2000), to draw the distinction between recording statements in open court and statements made during private bench conferences. Slip Op. at 6-7. Because applicable precedent held that G.S. § 15A-1241 does not require recording of private bench conferences, and defendant did not request the recording of these conferences, there was no error by the trial court.
Fatal variance issues not raised at trial are waived on appeal.
A defendant may not challenge the validity of an indictment in an appeal challenging revocation of probation. In such circumstances, challenging the validity of the original judgment is an impermissible collateral attack.
In a case where a juvenile was found to be delinquent based on the offense of injury to personal property with respect to a school printer, the trial court did not err by denying the juvenile’s motion to dismiss. The petition alleged that the juvenile damaged a printer owned by the “Charlotte Mecklenburg Board of Education[.]” The juvenile argued that the trial court erred by denying the motion to dismiss because the petition failed to allege that the school was an entity capable of owning property and that the evidence at trial did not prove who owned the printer. The court held that because the juvenile conceded the fact that the school was an entity capable of owning property and the State presented evidence that the school owned the printer, the trial court did not err by denying the motion. The court noted that the juvenile’s counsel expressly acknowledged to the trial court that the Charlotte-Mecklenburg Board of Education is an entity capable of owning property. The court also noted that because the juvenile did not contest this issue at trial, it could not be raised for the first time on appeal. As to the evidence, the State presented a witness who testified to ownership of the printer. A concurring judge recognized that with respect to the petition’s failure to plead that the owner was an entity capable of owning property, had the pleading been an indictment, the issue could be raised for the first time on appeal. However, the concurring judge concluded that the owner’s capability of owning property does not need have been pleaded in a petition with the same specificity as in an indictment.
The defendant was charged and convicted of felonious breaking and entering, felonious larceny after breaking and entering, and attaining the status of habitual felon for breaking into a neighbor’s house on April 24, 2018 and stealing a coffee canister of cash.
(1) The defendant, who had been arrested two days after the crime, did not receive copies of the initial indictment or a superseding indictment until December 17, 2018 – the day his trial began. After receiving the indictment, the defendant said he was ready to proceed with trial. The defendant argued on appeal that the trial court’s failure to follow the timely notice requirements of G.S. 15A-630 undermined his ability to prepare for trial and to assert certain statutory rights. The Court of Appeals disagreed, reasoning that although the defendant was not timely served with the indictment, the delay was not jurisdictional, and the defendant did not show that he was prejudiced by the delay. The record established that the defendant was aware of the charges, had viewed the evidence against him, including home surveillance footage, and had ample opportunity to prepare an adequate defense.
(2) The defendant, who had waived counsel twice before in the case, requested standby counsel on the second day of trial. The trial court denied the request, noting that the jury was empaneled and there were no attorneys in the courtroom other than prosecutors. The defendant then changed into his orange jail jumpsuit and refused to participate in the trial. On appeal, the defendant argued that the trial court erred in denying his request. The Court of Appeals disagreed, determining that the trial court properly exercised its discretion to deny the request.
In this Union County case, the Supreme Court affirmed the Court of Appeals majority opinion denying defendant’s appeal of his conviction for driving while impaired and related driving offenses.
In 2018, defendant was charged with multiple offenses after driving a pickup truck with a blood-alcohol concentration of 0.12. Defendant was declared indigent and received appointed counsel; he went to trial on the charges July 15, 2019. After the trial the jury deadlocked and the trial court declared a mistrial. After the first trial, defendant’s counsel withdrew, and new counsel was appointed. On August 26, 2019, defendant’s new counsel filed a motion for a transcript of the first hearing, and requested a continuance (because defendant was indigent, the transcript would have been provided for free). The trial court denied the motions for transcript and continuance, and the matter went forward for a second trial on September 3, 2019. On the first day of the second trial, defendant’s counsel submitted renewed motions for a transcript and a continuance, both of which were denied by the trial court. Defendant was eventually convicted of all charges and appealed, arguing that the trial court’s denial of his motion for a transcript deprived him of the ability to impeach the State’s witnesses.
Examining defendant’s appeal, the court explained that an indigent defendant does not have an absolute right to a free transcript. Instead, when considering an indigent’s request for a free transcript, courts must apply a two-part test to determine (1) the value of the transcript to defendant, and (2) the availability of alternatives that would fulfil the same function. Slip Op. at ¶16, quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971). Here, the court determined it was likely that the trial court did not perform the Britt analysis and erred by denying the motion for transcript. Slip Op. at ¶19. However, the court went on to explain that under the harmless-error doctrine and N.C.G.S. § 15A-1443(b), trial court’s error is prejudicial “unless the appellate court finds that it was harmless beyond a reasonable doubt.” Slip Op. at ¶20. In this circumstance, “overwhelming evidence of guilt may render error of constitutional dimension harmless beyond a reasonable doubt.” Slip Op at ¶21, quoting State v. Bunch, 363 N.C. 841, 845-46 (2010).
The Supreme Court found just such overwhelming evidence supporting the guilty verdicts in this case. The court noted that “[e]ven if defendant had the transcript of the prior trial to impeach the testimony of [State’s witnesses], there still existed overwhelming evidence of defendant’s guilt,” including a recorded admission by defendant “that he was the driver of the vehicle when it was wrecked” and a blood sample taken from defendant showing he was intoxicated after being taken into custody. Slip Op. at ¶24. Based on this overwhelming evidence, the trial court’s error was harmless beyond a reasonable doubt.
Justice Earls dissented from the majority opinion.
The trial court committed reversible error by denying the defendant’s request for a trial transcript for use in his retrial. After a mistrial, the trial court set a retrial for the following day. The defendant objected, arguing that he needed a trial transcript before the retrial. The trial court denied the defendant’s request and the defendant was convicted at the retrial. Equal protection requires the State to provide indigent defendants with the basic tools of an adequate defense—including a trial transcript—when those tools are available for a price to other defendants. A two-step test applies for determining whether a transcript must be provided to an indigent defendant: (a) whether the transcript is necessary for an effective defense and (b) whether there are alternative devices available to the defendant that are substantially equivalent to a transcript. Here, the trial judge stated in part that he did “not find that the anticipation or the speculation that a witness may get on the stand and alter their testimony to be sufficient basis to delay a trial so that a transcript can be produced.” These findings are insufficient. The trial court's ruling that the defendant’s asserted need constituted mere speculation that a witness might change his or her testimony would apply in almost every case and a defendant would rarely if ever be able to show that a witness would in fact change his or her testimony. The trial court's ruling makes no determination why this defendant had no need for a transcript, especially in light of the fact that the State's case rested entirely on the victim's identification of the defendant as the perpetrator. Although the trial court indicated that it could take "measures" or had "means" to protect the defendant's rights, without any explanation of what those measures or means would be, this is insufficient to establish that there were alternative devices available that were substantially equivalent to a transcript.
In this impaired driving second-degree murder case, the trial court did not err by denying the defendant’s motion to dismiss which had asserted that violation of G.S. 15A-501 required dismissal of the charges. Under G.S. 15A-501, a law enforcement must bring a person arrested before a judicial official without unnecessary delay and must without unnecessary delay advise the person of his right to communicate with counsel and friends and must allow him a reasonable time and opportunity to do so. The vehicle crash occurred at 2:37 AM. An officer arrived at the scene between 3:15 and 3:20 AM and conducted field sobriety testing on the defendant. The defendant was arrested without a warrant for impaired driving and violation of his .04 BAC drivers license restriction. The defendant was taken to a hospital to have blood drawn. He arrived at the hospital around 4:33 AM. The officer advised the defendant of his rights and the defendant signed a rights form; he did not ask to have a witness or attorney present. A telephone was available to the defendant in the hospital room. The defendant’s blood was drawn at 4:55 AM and he was examined by a physician and cleared. The defendant was then taken to a law enforcement center where the lead detective arrived to interview the defendant at about 5:52 AM. The interview began at about 6:15 AM, at which time the defendant was read his Miranda rights and waived his rights. The interview concluded after an hour. The defendant was then charged with second-degree murder and felony serious injury by vehicle. After the detective checked the defendant’s criminal and driving history, an officer transported the defendant to the county jail for processing at 9:35 AM. He was brought before magistrate at approximately 11:11 AM. Prior to seeing the magistrate, the defendant made a phone call to a friend but did not ask the friend come to the jail until after he knew the conditions of his release. Reviewing these facts, the court noted that there was a seven hour delay between the defendant’s arrest and his appearance before a magistrate. The court noted that the defendant was afforded multiple opportunities to have witnesses or an attorney present and chose not to take advantage of those opportunities. It concluded: “Defendant cannot now assert that he was prejudiced to gain relief, either by the absence of a witness or attorney or by the time period between his arrest and appearance before a magistrate.”
(1) The trial court did not err by denying the defendant’s motion to suppress statements to officers on grounds that they were obtained in violation of G.S. 15A-501(2) (arrested person must be taken before a judicial official without unnecessary delay). After a consensual search of his residence produced controlled substances, the defendant and three colleagues were arrested for drug possession. The defendant, who previously had waived his Miranda rights, was checked into the County jail at 11:12 am. After again being informed of his rights, the defendant was interviewed from 1:59 pm to 2:53 pm and made incriminating statements about a murder. After the interview the defendant was taken before a magistrate and charged with drug offenses and murder. The defendant argued that the delay between his arrival at the jail and his initial appearance required suppression of his statements regarding the murder. The court noted that under G.S. 15A-974(2), evidence obtained as a result of a substantial violation of Chapter 15A must be suppressed upon timely motion; the statutory term “result” indicates that a causal relationship between a violation of the statute and the acquisition of the evidence to be suppressed must exist. The court concluded that the delay in this case was not unnecessary and there was no causal relationship between the delay and defendant’s incriminating statements made during his interview. The court rejected the defendant’s constitutional arguments asserted on similar grounds.
The court rejected the defendant’s claim that inadequacies with his trial interpreters violated his constitutional rights. The court held that because the defendant did not challenge the adequacy of the interpreters at trial, the issue was waived on appeal and that plain error review did not apply. The court further held that because the defendant selected the interpreters, he could not complain about their adequacy. Finally, the court concluded that the record did not reveal inadequacies, given the interpreters’ limited role and the lack of translation difficulties.
At a recommitment hearing for an involuntarily-committed respondent based on a verdict of not guilty by reason of insanity, the trial court may order conditional release as an alternative to unconditional release or recommitment.
The defendant was convicted after a jury trial of first-degree murder, attempted first-degree murder, and other serious felony charges after he shot and killed his former girlfriend and then pistol-whipped and fired a gun at another woman, a registered nurse. On appeal he argued that the that the trial court erred by joining the charges for trial. The defendant had objected to the State’s motion for joinder, but he never filed a motion to sever charges as provided in G.S. 15A-927. The Court of Appeals concluded that the defendant waived the issue, declined to review the issue in its discretion under Rule 2 of the Rules of Appellate Procedure, and further declined to consider whether he received ineffective assistance of counsel for his trial lawyer’s failure to file a motion to sever charges. The Court of Appeals deemed the latter issue more appropriate for a motion for appropriate relief filed in the trial court, and so dismissed that claim without prejudice.
The defendant was charged with attempted first-degree murder and various other assaults against his wife in Henderson County. The State proceeded only on the attempted murder at trial. After the jury was empaneled, the trial court discovered that the indictment failed to allege malice, an essential element for attempted first-degree murder. The trial court ordered a mistrial over the defendant’s objection and dismissed the indictment. At retrial, the defendant’s double jeopardy argument was overruled and the defendant was convicted of attempted murder. On appeal in that case (“Schalow I”), the Court of Appeals determined that the second prosecution violated the Double Jeopardy Clause and vacated the convicted (Phil Dixon blogged about that case, here). Following that ruling, the State sought discretionary review in the Supreme Court and indicted the defendant on 14 counts of felony child abuse relating to the assaults on his wife. In remarks to the media, the District Attorney stated as follows:
If . . . the Supreme Court refuses to take up the case, then I have a plan to address that circumstance and will take additional action to see that [Defendant] is held accountable for his actions. . . . I will do everything that I can do to see that [Defendant] remains in custody for as long as possible.
The N.C. Supreme Court declined to review the Court of Appeals decision in Schalow I, and the DA posted on social media about his intentions to ensure the defendant stayed in custody, that he received a sentence similar to his first, and to prosecute the defendant again. Additional indictments for assaults against his wife were brought. All of the new charges in the third prosecution were based on the same alleged assaults against the defendant’s wife that constituted the basis for the first prosecution.
At trial, the defendant again moved to dismiss. He claimed the prosecution violated double jeopardy, constituted a vindictive prosecution, and was in violation of his rights to joinder of offenses. The trial court denied the motion, and the defendant sought certiorari review of that decision pretrial, which was granted. [The defendant had previously sought pretrial review of the denial of his motion to dismiss for double jeopardy in Schalow I and was denied.] The court granted relief on the vindictive prosecution and joinder claims.
(1) Under North Carolina v. Pearce, 395 U.S. 711 (1969), it is a due process violation for the court to impose penalties on the defendant in response to the defendant’s successful appeal or collateral attack. Blackledge v. Perry, 417 U.S. 21 (1974) later extended the protection from vindictive acts to charging decisions by the prosecution, so that the State could not try the defendant for more serious charges following the defendant’s successful appeal from the original charges of conviction. “The Blackledge court clarified that a defendant need not show that the prosecutor actually acted in bad faith; instead, where the reviewing court determines that ‘a realistic likelihood of ‘vindictiveness’’ exists, a presumption of vindictiveness may be applied.” To demonstrate a vindictive prosecution, the defendant must show that either actual intent to punish the defendant for the lawful exercise of his rights, or that the facts support presuming vindictiveness and the State failed to rebut that presumption. If a prosecution is found to be vindictive, the conviction must be vacated.
Here, the district attorney charged the defendant three different times for the same conduct. Each time, the district attorney increased the seriousness and number of charges, resulting in greater sentencing exposure to the defendant at each prosecution. The first case charged attempted manslaughter (based on the flawed indictment for attempted first-degree murder); the second case involved attempted first-degree murder; the third case involved 14 counts of child abuse, three class C assaults, two class F assaults, and one class H assault, with aggravating factors alleged in each. The defendant was facing over 35 years more time in prison in the third case, compared to the second. “[W]here a defendant is indicted on charges carrying a ‘significantly increased potential period of incarceration’ after the defendant ‘does what the law clearly permits him to do’—here, appealing from the judgment in the Second Prosecution—a reviewing court may presume prejudice.” The presumption here was “particularly appropriate here” due to the involvement of the same prosecutor at each stage. The court rejected the State’s argument that no presumption of vindictiveness should apply, because the State was only attempting to correct pleadings errors. The defendant was exposed to 19 more charges in the third prosecution, carrying significantly increased penalties. This was not rectifying pleading defects and warranted a presumption of vindictiveness.
The State also failed to rebut the presumption of vindictiveness. The only evidence showed that the DA charged in response to the outcome of its appeal of Schalow I and that the DA was determined to ensure the defendant stayed in custody “as long as possible.” Even if this did not amount to actual vindictiveness (which the court did not decide), the defendant showed that his case warranted a presumption of vindictiveness which the State failed to overcome. “[T]o hold such evidence can be sufficient to overcome a presumption of vindictiveness would effectively eviscerate the presumption altogether, and thereby render Pearce and its progeny nugatory.” The new charges were therefore dismissed.
(2) Under G.S. 15A-926, related offenses may be joined for trial. If a defendant is tried on a joinable offense and thereafter is put on trial for another related offense, he may move for dismissal for failure to join offenses, subject to the exceptions in the statute. Under State v. Warren, 313 N.C. 254 (1985), where the prosecution withholds additional charges in an effort to avoid statutory joinder of offenses, the new charges must be dismissed. In the words of the Warren court:
If a defendant can show, for example, that during the first trial the prosecutor was aware of substantial evidence that the defendant committed the crimes for which he was later indicted, this would be some evidence that the delay in bringing the later indictment was for the purpose of circumventing the statute. A showing that the State’s evidence at the second trial would be the same as the evidence presented in the first trial would also tend to show that the prosecutor delayed the indictment on the additional crimes for such purpose. A finding of either or both circumstances would support but not compel a determination by the trial court that the prosecutor withheld the additional indictment in order to circumvent the statute.
Here, the new charges were all based on the same conduct as the original assault charges that were dismissed before trial, and the child abuse allegations were apparently based on the theory that the defendant assaulted his wife in the presence of the child, causing mental injury. The State also represented to the trial court in a pretrial hearing that there had been no new investigation and would be no new substantive evidence at trial. The defendant therefore met both prongs of Warren—the prosecutor knew about substantial evidence of the assaults and child abuse during the earlier prosecutions, and the evidence necessary to prove those offense was no different than the evidence presented in the earlier trial. While these findings “support but do not compel” the conclusion that the State purposefully held back additional charges to circumvent joinder rights (and no prior case has ever reversed the denial of motion to dismiss based on Warren), here, it was appropriate. According to the court:
[B]ecause (1) Defendant has shown that both Warren circumstances are present, (2) the State has had multiple previous opportunities to join the offenses on which it now seeks to try Defendant, (3) the State has neither argued that it was somehow unable to try the offense at an earlier time nor proffered any explanation for why the offenses were not tried along with the earlier charge, we hold that the Warren exception should apply.
The defendant was therefore entitled to dismissal of the new charges for violation of his rights to statutory joinder of offenses. The court did not rule on the defendant’s double jeopardy argument because it granted relief on the other two claims. The matter was reversed and remanded for the motion to dismiss to be granted.
In this gang-related case involving two shootings and charges of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, attempted first-degree murder, and discharging a weapon into an occupied dwelling, the trial court did not err by denying the defendant’s motion to sever. Here, the transactional connection between the offenses was sufficient for joinder. Each arose from a continuous course of violent criminal conduct related to gang rivalries. The evidence tended to show that the second shooting was in retaliation for the first. The two shootings occurred the same day; the same pistol was used in both; and witnesses testified to evidence that applied to both shootings, or testified that they were present at both crime scenes. Additionally, neither the number of offenses nor the complexity of the evidence offered required severance. The evidence was not unduly complicated or confusing. The jury instructions clearly and carefully separated the offenses, and the verdict forms unmistakably distinguished the offenses by using the victim’s names. The court rejected the defendant’s argument that severance was necessary to protect his constitutional right to choose to testify with respect to some of the charges but not others. The court noted that a trial court does not abuse its discretion by refusing to sever multiple offenses against the same defendant where the defendant’s only assertion of prejudice is that he might have elected to testify in one of the cases and not in the others.
The trial court did not err by joining for trial offenses that occurred on different dates. The first set of offenses occurred on May 15, 2015 and involved assaults and sexual assaults on B.A. The second set of charges arose from a breaking or entering that occurred approximately eight months later, when the defendant entered a neighbor’s home looking for B.A. The defendant argued that certain testimony offered by the neighbor was inadmissible character evidence as to the first set of charges but was essential testimony as to the second set of charges, to establish guilt of another. The court however found that the evidence would not have been admissible for that purpose; to be admissible, guilt of another evidence must do more than create mere conjecture of another’s guilt. Here, the evidence was mere speculation that another person committed the crime. Furthermore the testimony was not inconsistent with the defendant’s guilt.
The trial court did not abuse its discretion by denying the defendant’s motion to sever where the offenses had a transactional connection (he was charged with breaking into three beachfront residences within 2.5 miles of each other and within a three-day span).
The trial court did not abuse its discretion by joining charges for trial. The defendant was indicted for: two counts of possession of a firearm by a felon; first-degree murder of Frink; two counts of assault with a deadly weapon with intent to kill inflicting serious injury; two counts of conspiracy to commit first-degree murder; first-degree murder of Jones; first-degree kidnapping; conspiracy to commit first-degree kidnapping; possession with intent to sell and/or deliver cocaine; and possession of a stolen firearm. Although the charges stemmed from a series of events that occurred over two months, they were factually related. The defendant participated in the shooting of Frick, with two accomplices, Reaves and Jones. The next night the defendant and Reaves were pulled over, and two firearms were recovered from their possession, one of which turned out to have been used in the earlier shooting. This evidence shows a direct link between the possession of a firearm by a felon charges and the charges arising directly out of the shooting. The discovery of the cocaine forming the basis for the drug charge occurred during the traffic stop. The charges related to the Jones murder were connected where the evidence showed that the defendant killed Jones to prevent Jones from implicating him in the earlier Frink murder.
The trial court did not err by joining for trial offenses committed on two different child victims. The State alleged that on 3 September 2010, the defendant committed indecent exposure by showing his privates to a child victim, M.S., and committed indecent liberties with M.S. It also alleged that on 1 July 2011 he engaged in a sexual act with a child victim, K.C., committed first-degree kidnapping, and committed indecent liberties on K.C. The evidence in the cases was similar with respect to victim, location, motive, and modus operandi. Both victims were prepubescent girls, the acts occurred within months of one another in a donation store while the girls were momentarily alone, and in both cases the defendant immediately fled the scene and engaged in sexual misconduct.
The court rejected the defendant’s argument that he received ineffective assistance of counsel when his lawyer failed to object to joinder of the defendant's charges of armed robbery and possession of a firearm by a felon. The defendant argued that the felon in possession statute was a “civil regulatory measure” that could not be joined with a criminal charge. The court held that felon in possession is a criminal offense that was properly joined for trial.
The trial court did not err by joining charges of impersonating a law enforcement officer and felony forgery that occurred in March 2006 with charges of impersonating a law enforcement officer that occurred in Apr. 2006. The offenses occurred approximately one month apart. Additionally, on both occasions the defendant acted as a law enforcement officer (interrogating individuals and writing citations for underage drinking), notified the minors’ family members that they were in his custody for underage drinking, and identified himself as a law enforcement officer to family members. His actions evidence a scheme or plan to act under the guise of apparent authority as a law enforcement officer to interrogate, belittle, and intimidate minors.
The trial court did not abuse its discretion by joining charges of felony assault with a deadly weapon and possession of stolen firearms. There was a sufficient transactional connection (a firearm that was the basis of the firearm charge was used in the assault) and joinder did not prejudicially hinder the defendant’s ability to receive a fair trial.
The trial court did not abuse its discretion in granting the state’s motion to join ten counts of third-degree sexual exploitation of a minor and ten counts of second-degree sexual exploitation of a minor with an appeal for trial de novo of misdemeanor peeping.
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.
The trial court did not abuse its discretion by joining charges against two defendants for trial, where joinder did not impede the defendant’s ability to receive a fair trial.
The trial court did not abuse its discretion by granting the State’s motion to join charges against two defendants. The defendant had argued that as a result of joinder, the jury was allowed to consider against him “other crimes” evidence introduced against a co-defendant. The court rejected this argument, concluding that the no prejudice occurred; the defendant was clearly not involved in the other crime and the trial court gave an appropriate limiting instruction.
The defendant was indicted for assault on a female, habitual misdemeanor assault, and attaining habitual felon status. Following the presentation of the evidence at trial, the trial court instructed the jury on the charges of assault on a female and habitual misdemeanor assault. During the initial instruction on the charge of assault on a female, the trial court stated, in part:
For you to find the defendant guilty of this offense, the State must prove three [things] beyond a reasonable doubt:
First, that the defendant intentionally assaulted the alleged victim. It has been described in this case by the prosecuting witness that the defendant hit her upon her head, that he hit her on her arms, about her body.
You are the finders of fact. You will determine what the assault was, ladies and gentlemen. The Court is not telling you what it is, I’m just giving you a description. And there was also testimony by the witness that the defendant asked her to perform, by force, another act, which could be considered an assault. But you will determine what the assault was. I’m not telling you what it is. And if what I’m saying is the evidence and your recollection is different from what I say, you still should rely upon your recollection of the evidence, as to what the assault is that has been testified to in this case.
Slip op. at ¶ 6. The defendant did not object to any of the trial court’s jury instructions at trial, and he was found guilty of assault on a female and habitual misdemeanor assault. On appeal, the defendant argued that the trial court had improperly expressed its opinion during jury instructions that an assault had occurred. The Court of Appeals found no error and upheld defendant’s conviction.
Based on a dissenting opinion, the defendant appealed to the Supreme Court, arguing that the trial court’s comments were improper expressions of opinion which prejudiced the defendant. In affirming the decision of the Court of Appeals, the Court concluded that even assuming the trial court violated the statutory prohibitions against the expression of opinion, the defendant cannot show a reasonable possibility of a different result. The Court reasoned that the State presented evidence at trial which satisfied the elements of the predicate assault, and the trial court’s instruction made clear that the jury alone was responsible for making this determination
Justice Earls dissented, writing that the majority failed to give proper weight to the statutory mandate against expression of opinion by refusing to engage meaningfully in a prejudice analysis and instead ignoring any impact the judge’s instructions had on the jury.
In this child sexual assault case and for the reasons stated in the dissenting opinion below, the supreme court reversed State v. Berry, 235 N.C. App. 496 (2014), which had held that the trial court did not express an opinion on a question of fact to be decided by the jury in violation of G.S. 15A-1222 or express an opinion as to whether a fact had been proved in violation of G.S. 15A-1232 when instructing the jury on how to consider a stipulation. In the opinion below the dissenting judge believed that the trial court’s instruction could have been reasonably interpreted by the jury as a mandate to accept certain disputed facts in violation of G.S. 15A-1222 and 15A-1232. The stipulation at issue concerned a report by a clinical social worker who had interviewed the victim; in it the parties agreed to let redacted portions of her report come in for the purpose of corroborating the victim’s testimony. The dissenting judge interpreted the trial court’s instructions to the jury as requiring them to accept the social worker’s report as true.
The defendant was convicted at trial of trafficking heroin, possession with intent to sell or deliver synthetic cannabinoids, and other various drug offenses in in Brunswick County. (1) During its instructions to the jury, the trial court stated that the jury should determine the guilt or innocence of this defendant and should not be influenced by evidence that other people were also charged in connection with the underlying events (who would get their own days in court). The defendant argued that this was an impermissible expression of judicial opinion on the evidence. Specifically, she argued that this instruction conveyed to the jury that the crime had occurred; that the jury should disregard all evidence that others present in the car may have been responsible; and that the defendant’s defense should be discounted. The Court of Appeals disagreed. First, the trial court expressed no opinion that the crime occurred. There was no argument denying the presence of drugs in the car, and the role of the jury in the case was to determine whether the defendant possessed them. The trial court’s acknowledgement that a crime had occurred was therefore not improper opinion. The instruction also did not command the jury to disregard evidence that others present may have been responsible. “Read in context, the trial court’s statement did not touch on Defendant’s evidence . . . [and] did not refer to the credibility of any evidence.” Hills Slip op. at 9. Finally, the instruction did not denigrate the defendant’s defense. Unlike other cases where a trial court’s statement was found to be improper, the instruction here did not disclaim the involvement of other people. Instead, the instruction specifically informed the jury that others who were charged in the case would have their own days in court. “The trial court’s instruction, therefore, did not reflect an opinion on the credibility of Defendant’s evidence but, instead, reminded the jury it must only consider the evidence presented during the course of the hearing.” Id. at 11. Further, the instruction at issue came after the close of evidence, not during evidence, lessening the risk that the jury would have taken it as an expression of opinion. Finally, the jury was instructed not to assume any opinion based on the trial court’s statements or expressions during trial immediately before receiving the contested instruction. Under the circumstances, the trial court’s instruction did not amount to an improper expression of opinion on the case.
(2) G.S. 90-89(7) lists 18 specific synthetic cannabinoids, but the substance charged in the indictment here—”methyl(2S)-2-{{1-(5-fluoropentyl)-1H-indazol-3-yl]formamido}-3,3-dimethylbutanoate (5F-ADB)”—is not listed there or elsewhere within Chapter 90 as a Schedule I substance. Wikipedia provides that the substance named in the indictment is a synthetic cannabinoid, and the State argued on appeal that this was sufficient to establish that the identity of the substance as a Schedule I drug. The court rejected this argument, pointing out that “[a] court may not look to extrinsic evidence to supplement a missing or deficient allegation in an indictment.” Hills Slip op. at 16. It found that the indictment failed to allege a necessary element of the offense (the controlled substance) and was therefore fatally flawed. The conviction was consequently vacated. Judges Dietz and Zachary concurred.
The trial court did not impermissibly express an opinion on the evidence in violation of G.S. 15A-1222 by denying the defendant’s motion to dismiss in the presence of the jury. At the close of the State’s evidence and outside the presence of the jury, the defendant made a motion to dismiss the charges, which the trial court denied. Following the presentation of the defendant’s evidence, the defendant renewed his motion to dismiss, in the jury’s presence. The trial court denied the motion. The defendant did not seek to have the ruling made outside of the presence of the jury, did not object, and did not move for a mistrial on these grounds. The court found State v. Welch, 65 N.C. App. 390 (1983), controlling and rejected the defendant’s argument.
In this DWI case, the trial court did not impermissibly express an opinion when instructing the jury regarding the admissibility of breath test results.
In a first-degree murder case, the court rejected the defendant’s argument that the trial court made an improper judicial comment on his dangerousness in violation G.S. 15A-1222 and -1232. The defendant had argued that the trial court’s decision to order additional security after his mid-trial escape attempt, including physical restraints and an escort for the jury, was akin to a statement that defendant was highly dangerous and probably guilty. The court rejected this argument, concluding that the trial court did not abuse its discretion or violate the defendant’s constitutional rights by ordering additional security measures after the defendant attempted to escape, causing a lockdown of the courthouse. The court also rejected the defendant’s argument that the trial court should have instructed the jury that they should not consider the fact that they had been escorted to their cars or the additional security personnel in the courtroom.
(1) In a statutory rape case, the trial court committed reversible error by expressing an opinion regarding the victim’s age--an element of the offense--when responding to a note from the jury. During deliberations, the jury sent a note asking: “May we please have the date and age of [the victim] when she was raped the first time regarding the first-degree rape?” The trial court informed the jurors that the information they sought was in the victim’s testimony and that it was their duty to recall that testimony from memory. Juror number 5 then immediately asked: “[W]ould it be an accurate statement that the Court would not be able to charge him with that particular charge if it were not in corroboration with the age reference?” The trial court answered: “You’re correct.” (2) The trial court did not commit plain error by referring to the prosecuting witnesses as “victims” in its jury instructions. The trial court’s statements did not constitute an opinion.
No plain error occurred when the trial court referred to the prosecuting witness as “the victim.” The court rejected the defendant’s argument that a different result should obtain because he asserted self-defense.
In a child sexual assault case, the trial court did not commit plain error by impermissibly expressing an opinion when it described the child as the “victim” in its jury instructions.
The trial court did not commit prejudicial error in violation of G.S. 15A-1222 (judge may not express an opinion) by laughing in the presence of the jury upon hearing a witness’s testimony that defendant “ran like a bitch all the way, way down past his house.” The court concluded that “[a]lthough the judge’s outburst may have been ill-advised and did not exemplify an undisturbed atmosphere of judicial calm” (quotation omitted) any resulting error was harmless.
The trial court did not err by using the word “victim” in the jury charge in a child sex offense case.
The trial judge impermissibly expressed an opinion during the defendant’s testimony that tended to discredit the defense theory and required a new trial. In this drug case, the defense’s principal theory was that the defendant did not possess the controlled substance and paraphernalia because her boyfriend brought the items to her apartment while she was at work. During her testimony, the defendant was questioned about how often her boyfriend went to her apartment. The State objected. The trial court sustained the objection, and stated: “Let’s move on to another area. He has no involvement with these charges.”
The trial court’s order requiring the defendant to enroll in SBM, although signed and dated by the trial court, was never filed with the clerk of court and therefore was a nullity.
In a criminal case, entry of judgment occurs when a judge announces the ruling in open court or signs the judgment containing the ruling and files it with the clerk. A trial judge is not required to announce all of the findings and details of its judgment in open court, provided they are included in the signed judgment filed with the clerk. Based on these rules, a written order on form AOC-CR-317 (Forfeiture of Licensing Privileges Felony Probation Revocation) was not invalid for failure to announce the order’s details in open court.
The defendant did not sufficiently demonstrate that he qualifies as an “Indian” under the federal Indian Major Crimes Act (IMCA) and, consequently, the trial court did not err in refusing to dismiss state murder, robbery, and weapons charges on jurisdictional grounds or in ruling that the jurisdictional issue was not required to be submitted to the jury by means of a special verdict. The federal Indian Major Crimes Act provides that “[a]ny Indian who commits [an enumerated major crime] against the person or property of another . . . within the Indian country[] shall be subject to . . . the exclusive jurisdiction of the United States.” In this case, there was no dispute that the shooting at issue took place in “Indian country” as it occurred within the Qualla Boundary and there was no dispute that the resulting charges constituted major crimes for purposes of the IMCA. The only question was whether the defendant qualified as an “Indian” under the IMCA, which does not provide a definition of that term.
The court noted that the United States Supreme Court in United States v. Rogers, 45 U.S. 567 (1846) suggested a two-pronged test for analyzing whether a person qualifies as an Indian under the statute. To qualify as an Indian under the Rogers test, a defendant must (1) have “some Indian blood,” and (2) be “recognized as an Indian by a tribe or the federal government or both. The parties in this case agreed that the first part of this test was satisfied because the defendant possessed an Indian blood quantum of 11/256 (4.29%). Noting that it had never applied the Rogers test, the court reviewed the analyses of courts in other jurisdictions as it determined whether the second prong of the test was satisfied. Finding that a four-factor balancing test enunciated in St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D. 1988) was frequently used in jurisdictions across the country with respect to the second prong of the Rogers test, though with variability in the manner of its application, the court adopted the Eighth and Tenth Circuit’s utilization of the test. It did so “based on our belief that this formulation of the test provides needed flexibility for courts in determining the inherently imprecise issue of whether an individual should be considered to be an Indian under the second prong of the Rogers test” and also recognized “that, depending upon the circumstances in a given case, relevant factors may exist beyond the four St. Cloud factors that bear on this issue.” A court applying the four-factor St. Cloud test considers the following factors:
1) enrollment in a tribe; 2) government recognition formally and informally through providing the person assistance reserved only to Indians; 3) enjoying benefits of tribal affiliation; and 4) social recognition as an Indian through living on a reservation and participating in Indian social life.
For various reasons, the court rejected the defendant’s initial arguments that his status as a first descendant of the tribe demonstrated his “tribal or federal recognition” as a matter of law. The court then proceeded to apply the four St. Cloud factors along with any additional factors relevant to the analysis, noting that the trial court’s findings regarding the defendant’s motion to dismiss had not been specifically challenged on appeal and therefore were binding. Applying the four-factor balancing test, the court found (1) it was undisputed that the defendant was not enrolled in any federally recognized tribe; (2) the only evidence of governmental assistance to defendant consisted of five incidents of free medical treatment he received as a minor; (3) though he did live and work on or near the Qualla Boundary for fourteen months prior to the murder, there was not evidence that defendant received broader benefits from tribal affiliation or that his employment on the Qualla Boundary was in any way connected to his first descendant status; (4) though the defendant was dating an enrolled tribal member at the time of the murder and had two tattoos depicting his cultural heritage, the defendant self-identified as being “white” on official documents and did not participate in Eastern Band of Cherokee Indian cultural, community, or religious activities. Turning to whether any other relevant factors existed, such as whether the defendant had ever been subjected to tribal jurisdiction in the past, the court found that there was no evidence of other relevant factors. With this analysis of the second prong of the Rogers test, a majority of the court held that the trial court properly concluded that the defendant was not an Indian for purposes of the IMCA and properly denied his motion to dismiss.
The court then turned to whether the defendant was entitled to a special jury verdict on the jurisdictional issue and whether the trial court erred by ruling on that issue as a matter of law. The court distinguished two of its prior cases involving issues of territorial jurisdiction and noted that in this case the defendant did not challenge the facts underlying the jurisdictional determination, a determination the court characterized under these facts as “an inherently legal question properly decided by the trial court.” The court concluded its analysis of this issue by observing that the dissent failed to cite any authority for the “proposition that in state court proceedings the inapplicability of the IMCA is an element of the crime that must be submitted for resolution by the jury.”
Justice Earls disagreed with the majority’s conclusion that the defendant was not entitled to a special jury verdict on the question of whether he is an “Indian” under the IMCA, and, assuming that the majority was correct that the question need not be submitted to the jury, disagreed with the majority’s conclusion that the defendant is not an Indian under the IMCA.
In this Pasquotank County case, defendant appealed his conviction for first-degree murder, arguing the trial court erred in several matters related to the COVID-19 pandemic and by admitting irrelevant and hearsay testimony. The Court of Appeals found no error.
In May of 2018, defendant was in an altercation in Elizabeth City; defendant pulled a gun as the victim ran away and shot him several times in the back. The matter reached trial on January 11, 2021, after delays related to COVID-19. On the first day of trial, defense counsel made a motion to continue, arguing that she did not feel safe proceeding due to COVID-19. The trial court denied the motion to continue. The trial was subject to capacity limitations and modified jury selection procedures to limit the proximity of those in the courtroom, leading to additional issues on appeal.
Defendant first argued that the trial court lacked subject-matter jurisdiction to hear the case, pointing to the emergency orders from then-Chief Justice Beasley issued on December 14, 2020, forbidding jury trials for the next thirty days unless a jury was already empaneled. The Court of Appeals noted that Chief Justice Newby was sworn in on January 1, 2021, and a commission to the superior court hearing the matter was issued on January 5. The new chief justice also issued an order effective January 14, 2021, allowing the emergency directives in question to expire. The court found that the emergency order did not remove the superior court’s jurisdiction, and “[t]he 5 January 2021 AOC commission for this session and the 13 January 2021 order from Chief Justice Newby effectively repudiated and superseded the 14 December 2020 order.” Slip Op. at 9.
Moving to defendant’s trial-related issues, the court first considered denial of the motion to continue, explaining that defendant could not show prejudice justifying a new trial because defense counsel “was legally prepared to try the case, but was solely worried about potential COVID-19 risks,” and defendant made “no showing of any deficient representation throughout trial.” Id. at 14. The court next considered the argument that defense counsel should have been barred under Emergency Directive 2 from the December 14, 2020, emergency orders, as this order forbid persons likely exposed to COVID-19 from entering the courthouse. Rejecting this argument, the court noted that defense counsel did not identify her likely exposure to the clerk or mention it in her motion to continue, meaning she never presented the issue to the court for consideration prior to her motion. Examining defendant’s argument that the courtroom closure for capacity reasons violated his right to a public trial, the court explained that he failed to preserve this issue on appeal and declined to apply Rule of Appellate Procedure 2 to revive it. Finally, the court rejected defendant’s challenge to jury selection, holding:
While the jury selection procedure the court utilized here may have varied the express requirement of N.C. Gen. Stat. § 15A-1214(d) requiring the State to pass a full panel of twelve prospective jurors . . . [d]efendant was not forced to accept any undesirable juror as a result of the passing of less than twelve prospective jurors during jury selection procedure under these circumstances. Id. at 21-22, citing State v. Lawrence, 365 N.C. 506 (2012).
The court last turned to defendant’s challenge to the admission of Exhibits 54, 55, and 57. Exhibits 54 and 55 were Facebook messages, and Exhibit 57 was documentation of a handgun purchase. Noting the exhibits “were probative to issues of [d]efendant’s guilt, [d]efendant’s opportunity to acquire a weapon, and [d]efendant’s possible motive for the killing,” the court rejected defendant’s challenge to relevancy. Slip Op. at 25. The court then looked at the admission of Exhibit 54, a Facebook message exchange between defendant’s sister and the victim’s sister describing a dispute between defendant and the victim over payment for a gun. The court found no error in admitting this exchange, and noted that North Carolina law “permits declarations of one person to be admitted into evidence for the purpose of showing that another person has knowledge or notice of the declared facts and to demonstrate his particular state of mind.” Id. at 27, quoting State v. Swift, 290 N.C. 383, 393 (1976).
The defendant in this Forsyth County case was charged with two counts felony breaking or entering, two counts felony larceny after b/e, two counts felony larceny of property over $1000, and habitual breaking or entering, stemming from two break-ins and larcenies from Wake Forest University dormitory rooms. At trial, the jury convicted the defendant of the two felony breaking or entering offenses, two felony larceny after b/e offenses, one felony larceny for theft of property over $1000, and one misdemeanor larceny, along with habitual breaking and entering. Following his notice of appeal, the State filed a motion for appropriate relief (“MAR”) within ten days of the judgment, asking the trial court to arrest judgment on the felony larceny for theft of property over $1000 and the misdemeanor larceny as duplicative. The trial court granted that request and amended the judgment accordingly.
(1) The defendant argued that the trial court was divested of jurisdiction to amend the judgments in the case after he had given notice of appeal. This was incorrect. “The trial court retains jurisdiction until a notice of appeal is given and fourteen days have passed.” Slip op. at 5 (citation omitted). Further, once the State filed a timely 10-day MAR, the period of time for the defendant to give notice of appeal is extended 14 days under G.S. § 15A-1448(a)(2) from the date the trial court rules on the MAR. That statute provides that “when a proper motion for appropriate relief is made, the case shall remain open for the taking of an appeal until the court has ruled on the motion.” Id. (citing G.S. § 15A-1448). The trial court thus retained jurisdiction to amend the judgments.
(2) The defendant also argued that the trial court should have granted his motions to dismiss two of the larceny charges, pointing to the established rule that the taking of several items of property in the course of one act or event establishes only one larceny. Here, the defendant was improperly charged and convicted of multiple larcenies based on different items of property taken at one time. Because the trial court fixed the problem of duplicative larceny convictions with its MAR order, the issue was moot, and the argument dismissed.
(3) The trial court’s judgment incorrectly noted the defendant was a habitual felon, rather than one convicted of habitual breaking or entering. This was a clerical error, and the matter was remanded for correction of that error only. The convictions were otherwise affirmed.
The elected district attorney for prosecutorial district 2, which includes Washington County, filed an ex parte motion in superior court to determine whether a criminal investigative file contained potentially exculpatory information involving a Washington County law enforcement officer that the State would be required to disclose in cases in which it intended to call the officer as a witness. The motion was not filed in connection with any particular criminal prosecution. A superior court judge reviewed the file and ordered the district attorney’s office to disclose to defendant and/or defense counsel the contents of the investigative file in any criminal matter in which the State intended to call the officer as a witness.
The law enforcement officer was notified of the order and appealed.
Over a dissent, the Court of Appeals determined that the judge exceeded the limits of the court’s jurisdiction by entering an advisory opinion and vacated the order. The court reasoned that the order was an anticipatory judgment providing for the contingency that the officer would be called as a witness in a future criminal case. The order was “purely speculative” and amounted to an advisory opinion that the parties might “put on ice to be used if and when occasion might arise.” Slip op. at 6 (internal citations omitted). The court stated that the advisory nature of the order was especially evident if one considered the alternative scenario in which the judge ruled that the State was not required to disclose information contained in the investigative report. Such an order would not bind trial courts from independent determinations of disclosure obligations in future cases.
A dissenting judge would have concluded that the trial court had authority to enter the order and that the appellate court was without jurisdiction to reach the merits of the petitioner’s claims as the petition was not an aggrieved party to the proceeding from which he appealed.
In this DWI case, the superior court properly denied the defendant’s motion to dismiss the indictment for lack of jurisdiction. The defendant asserted that because the State failed to dismiss the citation charging the offense in district court, that charge remained valid and pending in district court, depriving the superior court of jurisdiction. The court concluded that because the charge in superior court was initiated by presentment, that court acquired jurisdiction over the offense when the indictment was issued. The court rejected the defendant’s argument that because the State never dismissed the citation in district court, that charge remained pending and active requiring the superior court to dismiss the indictment. Although the State never filed a formal dismissal of the citation in district court, it abandoned that prosecution in favor of the superior court prosecution, “which effectively served as the functional equivalent of a dismissal of the district court charge, rendering it no longer valid and pending.” The court further rejected the defendant’s argument that the two courts had concurrent jurisdiction and that as the first court exercising jurisdiction, the district court had jurisdiction to the exclusion of the superior court. The court found no evidence of the district court’s exercise jurisdiction over the offense after the existence of concurrent jurisdiction with the superior court.
The trial court lacked subject matter jurisdiction to enter an order denying the defendant’s motion for post-conviction DNA testing pursuant to G.S. 15A-269 while the defendant’s appeal from the original judgment of conviction was pending. The defendant was convicted of an attempted sexual offense and sentenced on 10 November 2014. The defendant gave notice of appeal that day. On 6 April 2016, while his appeal was pending in the court of appeals, the defendant filed a pro se motion for post-conviction DNA testing pursuant to G.S. 15A-269. The trial court denied the defendant’s motion. The defendant timely filed notice of appeal from this denial. Then, on 16 August 2016, the court of appeals issued an opinion in defendant’s original appeal, vacating his sentence and remanding the case to the trial court for re-sentencing. The mandate issued on 6 September 2016. The court noted that once a notice of appeal has been filed, the trial court retains jurisdiction only over matters that are ancillary to the appeal. The trial court’s order on the defendant’s post-conviction motion was not such a matter. The court concluded:
In the instant case, the trial court was divested of jurisdiction when defendant filed notice of appeal from the judgment entered on his conviction . . . on 10 November 2014. Because defendant’s motion for post-conviction DNA testing opened an inquiry into a case that this Court was already reviewing, the trial court lacked jurisdiction to rule on it until after the case was returned to the trial court by way of mandate, which issued on 6 September 2016. We therefore must vacate the trial court’s order denying defendant’s motion for post-conviction DNA testing.
In this Miller Eighth Amendment/LWOP case, the superior court lacked jurisdiction to enter judgment. The trial court resentenced the defendant in response to a decision by the North Carolina Supreme Court, but before the mandate had issued from that Court. The court vacated the judgment and remanded for resentencing.
In a case in which the defendant was originally charged with habitual impaired driving, driving while license revoked and speeding, the superior court did not have subject matter jurisdiction to try the misdemeanor or the infraction where the State dismissed the felony DWI charge before trial. The case came on for trial in superior court about one month after the State dismissed the felony DWI charge. Without the felony offense, the misdemeanor fell under none of the exceptions in G.S. 7A-271(a) giving jurisdiction to the superior court, and the infraction fell under none of the exceptions in subsection (d) of that provision. Under G.S. 7A-271(c), once the felony was dismissed before trial, the court should have transferred the two remaining charges to the district court.
(1) The superior court was without subject matter jurisdiction with respect to three counts of first-degree statutory rape, where no evidence showed that the defendant was at least 16 years old at the time of the offenses. The superior court may obtain subject matter jurisdiction over a juvenile case only if it is transferred from the district court according to the procedure set forth in Chapter 7B; the superior court does not have original jurisdiction over a defendant who is 15 years old on the date of the offense. (2) Over a dissent, the majority held that jurisdiction was also proper with respect to a fourth count of statutory rape which alleged a date range for the offense (January 1, 2011 to November 30, 2011) that included periods before the defendant’s sixteenth birthday (September 14, 2011). Unchallenged evidence showed that the offense occurred around Thanksgiving 2011, after the defendant’s sixteenth birthday. The court noted the relaxed temporal specificity rules regarding offenses involving child victims and that the defendant could have requested a special verdict to require the jury to find the crime occurred after he turned sixteen or moved for a bill of particulars to obtain additional specificity.
Based on the victim’s testimony that the alleged incident occurred in his bedroom, there was sufficient evidence that the charged offense, crime against nature, occurred in the state of North Carolina.
(1) North Carolina had territorial jurisdiction to prosecute the defendant for embezzlement. The defendant was a long distance driver employed by a North Carolina moving company. The defendant was charged with having received funds from a customer out-of-state and having converted them to his own use instead of transmitting the funds to his employer. The court adopted a “duty to account” theory under which territorial jurisdiction for embezzlement may be exercised by the state in which the accused was under a duty to account for the property. In this case, the court found that the duty to account was to the victim in North Carolina. (2) Because the defendant’s argument about territorial jurisdiction was a legal and not a factual one, the trial court did not err by declining to submit the issue to the jury.
Where the defendant was charged with impaired driving and reckless driving and the State took a voluntary dismissal of the reckless driving charge in district court, that charge was not properly before the superior court on appeal for trial de novo and judgment on that offense must be vacated. The court noted that the dismissal was not pursuant to a plea agreement.
In this Iredell County case, the Supreme Court affirmed the Court of Appeals decision finding that the trial court complied with G.S. 15A-1201(d)(1) when consenting to defendant’s waiver of the right to a jury trial for habitual felon status.
After the 2014 amendment to the North Carolina constitution permitting defendants to waive their right to a jury trial in non-death penalty cases with the consent of the trial court, the General Assembly enacted G.S. 15A-1201(d), outlining the process for judicial consent to a defendant’s jury trial waiver. Defendant argued that trial court erred by permitting his counsel to respond on his behalf to the trial court’s inquiry as to whether he understood the consequences of waiving his right to a jury trial.
The Supreme Court considered the interpretation of G.S. 15A-1201(d) de novo, and noted that while the statute mandates who to address (defendant) and what must be determined (whether defendant understands the consequences of waiving a jury trial), the statute does not specify the procedure the trial court must follow. Because the statute is silent, the appropriate procedure is left to the discretion of the trial court. Here, the trial court asked defendant if he wished to waive the right to jury trial on the habitual felon issue; after asking the court for time and consulting with defendant, defense counsel responded that defendant wished to do so. After this exchange with the trial court, defendant signed a form confirming he understood the consequences and waived his right to a jury trial. The court found that these steps did not represent an abuse of the trial court’s discretion under the statute.
Justice Ervin, joined by Justices Hudson and Earls, dissented and would have granted a new trial for defendant’s habitual felon status. Slip Op. at 12.
The defendant was convicted in a bench trial of speeding 94 miles per hour in a 65 mile-per-hour zone. A divided panel of the Court of Appeals determined that even though the trial court failed to follow the procedure set forth in N.C.G.S. § 15A-1201 for waiver of defendant’s right to a jury trial, the defendant was not prejudiced by the trial court’s noncompliance. On appeal, the defendant argued that the trial court erred in conducting a bench trial because he did not knowingly and voluntarily waive his right to a jury trial.
Counsel for the defendant requested a bench trial in superior court, and the State consented to the request. The trial court granted the request and began the trial without first addressing the defendant and determining whether he fully understood and appreciated the consequences of the jury trial waiver as required by G.S. 15A-1201(d). After the State rested, the trial court asked the defendant if he consented to the waiver of jury trial. In that exchange, the defendant said he consented to the waiver.
The Supreme Court determined that that the trial court’s failure to conduct the inquiry required by G.S. 15A-1201(d) was a statutory rather than a constitutional violation and that the defendant was required to show prejudice resulting from the violation to be entitled to relief. The Court stated that the pretrial exchange between the trial court, defense counsel, and the State, coupled with defendant’s subsequent answers to questions posed by the trial court demonstrated that he understood he was waiving his right to a trial by jury and the consequences of that decision. In addition, the Court stated there was overwhelming evidence of defendant’s guilt.
Justice Ervin, joined by Justices Hudson and Earls, dissented. Justice Ervin wrote that he would hold that the defendant did not properly waive his right to trial by jury, that the absence of a proper waiver resulted in a deprivation of his right to trial by jury, that the failure to obtain a proper waiver of defendant’s right to a jury trial constituted error per se, and that defendant was therefore entitled to a new trial.
At the start of his trial on drug charges, the defendant, through counsel, requested to waive his right to trial by jury in favor of a bench trial. The trial judge advised the defendant of the charges and the maximum punishment and asked several questions about the defendant’s request for a bench trial. Specifically, the trial judge asked the defendant whether he wished to waive a jury trial and have a bench trial, whether he understood the difference between a jury trial and bench trial, and whether he had discussed his rights and the ramifications of the waiver with his attorney. The court then granted the defendant’s motion for a bench trial. The court and the defendant signed AOC-CR-405, the Waiver of Jury trial form.
The defendant then was arraigned, tried, and convicted. He appealed, arguing that the trial court violated G.S. 15A-1201, which sets out the procedure for waiver of a jury trial, in granting his request for a bench trial. Specifically, the defendant argued that the trial court (1) failed to require the defendant to comply with the notice provisions in G.S. 15A-1201(c); (2) failed to solicit information required to determine that the waiver was knowing and voluntary; and (3) failed to afford the defendant 10 business days in which to revoke the waiver.
(1) The court determined that the defendant’s failure to request a separate arraignment before trial invited noncompliance with G.S. 15A-1201(c). Given that, the waiver of jury trial on the date of arraignment and trial, pursuant to notice provided on that date, with the consent of the trial court and the State was proper.
(2) The court held that the colloquy between the trial court and the defendant, which mirrored the acknowledgements on the Waiver of Jury Trial form, established that the defendant fully understood and appreciated the consequences of the decision to waive the right to trial by jury, thus satisfying the requirements of G.S. 15A-1201(d)(1).
(3) G.S. 15A-1201(e) provides that once waiver of jury trial has been made and consented to by the trial judge, the defendant may revoke the waiver one time within 10 business days of the notice. The court held that this provision does not mandate a ten-day cooling off period for a waiver made on the eve of trial. Instead, it provides a period during which a waiver made in advance of trial may be revoked.
(4) The court held that even if it presumed that the trial court erred in granting the waiver, the defendant could not show that he was prejudiced by the violation.
Because the constitutional amendment permitting waiver of a jury trial only applies to defendants arraigned on or after 1 December 2014, a bench trial was improperly allowed in this case where the defendant was arraigned in February 2014. The session law authorizing the ballot measure regarding waiver of a jury trial provided that if the constitutional amendment is approved by the voters it becomes effective 1 December 2014 and applies to criminal cases arraigned in Superior Court on or after that date. After the ballot measure was approved, the constitutional amendment was codified at G.S. 15A-1201(b). That statute was subsequently amended to provide procedures for a defendant’s waiver of the right to a jury trial, by a statute that became effective on 1 October 2015. The court rejected the State’s argument that because of the subsequent statutory amendment, the constitutional amendment allowing for waiver of a jury trial applies to any defendant seeking to waive his right to a jury trial after 1 October 2015. The amendment to the statute does not change the effective date of the constitutional amendment itself. The court concluded: “Accordingly, a trial court may consent to a criminal defendant’s waiver of his right to a jury trial only if the defendant was arraigned on or after 1 December 2014.” The parties may not stipulate around this requirement. Here, because the defendant was arraigned in February 2014, he could not waive his right to a trial by jury. The court found that automatic reversal was required.
In this child sexual assault case, the court upheld the defendant’s conviction, obtained after a bench trial. (1) The court rejected the defendant’s argument that the trial court lacked authority to try him without a jury. The defendant asserted that the statute allowing a jury trial waiver applies only to cases arraigned on or after December 1, 2014. The defendant argued that the statute did not apply to him because he was never formally arraigned and thus should not have been allowed to waive his jury trial right. The court noted in part that arraignment is not mandatory, and will be held only if a defendant files a written request for arraignment. Here, the defendant never made such a request. Additionally, the March 2, 2015 hearing on the defendant’s motion to waive a jury trial--a hearing date after the statute’s effective date--“essentially served the purpose of an arraignment.” (2) The defendant’s waiver of his jury trial right was knowing and voluntary where the court engaged in a full colloquy with the defendant.
(1) The court rejected the defendant’s argument that the trial court lacked authority to allow him to waive his right to a trial by jury because he was not arraigned before the effective date of the constitutional amendment and statute allowing such a waiver. The new provision on jury trial waivers became effective December 1, 2014 and applies to criminal cases arraigned in Superior Court on or after that date. The defendant never requested a formal arraignment pursuant to G.S. 15A-941; his arraignment occurred on the first day of trial, May 11, 2015. Because the defendant’s arraignment occurred after the effective date of the constitutional amendment and accompanying session law, the trial court was constitutionally authorized to accept the defendant’s waiver of jury trial. (2) The court rejected the defendant’s argument that because the trial judge had ruled in favor of the defendant’s pretrial motion in limine, excluding an involuntary confession, he was unable to serve as a fair and impartial factfinder and that the non-jury trial was “tainted” by the trial judge’s knowledge of the inadmissible statements. Because the defendant chose to waive his right to a trial by jury and proceed with a bench trial, he could not argue on appeal that he was prejudiced as a result of his own strategic decision. Furthermore, the trial court is presumed to disregard incompetent evidence in making decisions as a finder of fact.
In this murder case resulting in a death sentence, the Court held that the trial court committed clear error in concluding that the State’s peremptory strike of a black prospective juror was not motivated in substantial part by discriminatory intent. The defendant Flowers, who is black, allegedly murdered four people at a furniture store in Winona, Mississippi, three of whom were white. Flowers was tried six separate times for the murders; the same lead prosecutor conducted each of the trials. A conviction in the first trial was reversed by the Mississippi Supreme Court on grounds of prosecutorial misconduct, with the court not reaching a Batson challenge raised in that proceeding. A conviction in the second trial was reversed by the Mississippi Supreme Court on grounds of prosecutorial misconduct. A conviction in the third trial was reversed by the Mississippi Supreme Court on grounds that the State violated Batson. The fourth and fifth trials ended in hung jury mistrials. A Batson challenge arising in the sixth trial is the basis of the instant case.
Under principles of equal protection, Batson v. Kentucky, 476 U.S. 79 (1986), prohibits the use of peremptory strikes in a racially discriminatory manner. A Batson challenge is a three-step process. First, the party asserting the challenge must make a prima facie case of discrimination in the use of a peremptory strike. If a prima facie case is established, the burden shifts to the party subject to the challenge to provide a race-neutral reason for the strike. In the third step, the trial judge assesses whether purposeful discrimination has been proved, examining as part of this assessment whether the proffered race-neutral reasons for the strike in fact are pretext for discrimination.
In assessing the Batson issue in the instant case, the Court said that four categories of evidence loomed large:
(1) the history from Flowers’ six trials, (2) the prosecutor’s striking of five of six black prospective jurors at the sixth trial, (3) the prosecutor’s dramatically disparate questioning of black and white prospective jurors at the sixth trial, and (4) the prosecutor’s proffered reasons for striking one black juror (Carolyn Wright) while allowing other similarly situated white jurors to serve on the jury at the sixth trial.
The Court addressed each of these categories in turn. With regard to the history from Flowers’ trials, the court first noted that under Batson a challenger need not demonstrate a history of discriminatory strikes in past cases – purposeful discrimination may be proved solely on evidence concerning the exercise of peremptory challenges at the particular trial at issue. However, Batson does not preclude use of such historical evidence, and the “history of the prosecutor’s peremptory strikes in Flowers’ first four trials strongly supports the conclusion that his use of peremptory strikes in Flowers’ sixth trial was motivated in substantial part by discriminatory intent. Over the course of the first four trials, the State “used its available peremptory strikes to attempt to strike every single black prospective juror that it could have struck.” The Court further noted that a Batson challenge in the second trial was sustained by the trial court and that the Mississippi Supreme Court reversed the conviction obtained in the third trial because of a Batson violation.
Turning to the events of the sixth trial, the Court noted that the State struck five of six black prospective jurors and that this, in light of the history of the case, suggested that the State was motivated in substantial part by discriminatory intent. The Court also noted the State’s “dramatically disparate questioning of black and white prospective jurors.” The five black prospective jurors who were struck were asked a total of 145 questions by the State. In contrast, the State asked the 11 seated white jurors a total of 12 questions. With regard to this disparate questioning, the Court found that the record refuted the State’s argument that differences in questioning was explained by differences in the jurors’ characteristics. Finally, with regard to a particular black prospective juror, Carolyn Wright, the Court found that the State’s peremptory strike was motivated in substantial part by discriminatory intent. The State said that it struck Wright in part because she knew several defense witnesses and worked at a Wal-Mart where Flowers’ father also worked. The Court noted that Winona is a small town and that several prospective jurors knew many individuals involved in the case. It further noted that the State did not engage in a meaningful voir dire examination on this purported basis for striking Wright with similarly situated white potential jurors. The State also misstated the record while attempting to provide a race-neutral explanation of its strike of Wright to the trial court. The Court explained that “[w]hen a prosecutor misstates the record in explaining a strike, that misstatement can be another clue showing discriminatory intent.” The court concluded its analysis of the State’s strike of Wright by explaining that its precedents require that the strike be examined “in the context of all the facts and circumstances,” and that in this light “we conclude that the trial court clearly erred in ruling that the State’s peremptory strike of Wright was not motivated in substantial part by discriminatory intent.”
Justice Thomas, joined in part by Justice Gorsuch, dissented. In Thomas’s view, “[e]ach of the five challenged strikes was amply justified on race-neutral grounds timely offered by the State at the Batson hearing.”
The Court reversed this capital murder case, finding that the State’s “[t]wo peremptory strikes on the basis of race are two more than the Constitution allows.” The defendant was convicted of capital murder and sentenced to death in a Georgia court. Jury selection proceeded in two phases: removals for cause and peremptory strikes. The first phase whittled the list of potential jurors down to 42 “qualified” prospective jurors. Five were black. Before the second phase began, one of the black jurors—Powell—informed the court that she had just learned that one of her close friends was related to the defendant; she was removed, leaving four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett. The State exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. The defendant immediately lodged a Batson challenge. The trial court rejected the objection and empaneled the jury. The jury convicted the defendant and sentenced him to death. After the defendant unsuccessfully pursued his Batson claim in the Georgia courts, the U.S. Supreme Court granted certiorari. Before the Court, both parties agreed that the defendant demonstrated a prima facie case and that the prosecutor had offered race-neutral reasons for the strikes. The Court therefore addressed only Batson’s third step, whether purposeful discrimination was shown. The defendant focused his claim on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood. With respect Garrett, the prosecutor had told the trial court that Garrett was “listed” by the prosecution as “questionable” and its strike of her was a last-minute race-neutral decision. However, evidence uncovered after the trial showed this statement to be false; the evidence showed that the State had specifically identified Garret in advance as a juror to strike. In fact, she was on a “definite NO’s” list in the prosecution’s file. The Court rejected attempts by the State “to explain away the contradiction between the ‘definite NO’s’ list and [the prosecutor’s] statements to the trial court as an example of a prosecutor merely ‘misspeak[ing].’” Regarding Hood, the Court noted that “[a]s an initial matter the prosecution’s principal reasons for the strike shifted over time, suggesting that those reasons may be pretextual.” It further found that the State’s asserted justifications for striking Hood “cannot be credited.” In the end, the Court found that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”
When an explanation for a peremptory challenge is based on a prospective juror’s demeanor, the trial judge should consider, among other things, any observations the judge made of the prospective juror’s demeanor during the voir dire. However, no previous decisions of the Court have held that a demeanor-based explanation must be rejected if the judge did not observe or cannot recall the prospective juror’s demeanor.
During a state murder trial, the defendant was denied the opportunity to exercise a peremptory challenge against a female juror because the trial judge erroneously, but in good faith, believed that the defendant’s use of a peremptory challenge violated Batson. The Due Process Clause does not require an automatic reversal of a conviction when a state trial court committed a good-faith error in denying the defendant’s peremptory challenge of a juror and all jurors seated in the trial were qualified and unbiased.
In this Forsyth County case, the Supreme Court affirmed the denial of defendant’s post-conviction motions for appropriate relief (MARs) based upon newly discovered evidence relevant for his Batson claim. The Supreme Court held that defendant’s Batson claim was properly denied under G.S. 15A-1419.
Defendant was convicted for the murder of a security guard in December of 1994 and sentenced to death; details of the underlying case are in defendant’s appeal of the conviction, State v. Tucker, 347 N.C. 235, 239–40 (1997). During jury selection, defendant raised Batson objections to the State’s peremptory strikes of two black prospective jurors and one black prospective alternate juror. Pages 3-9 of the Slip Opinion contain relevant excerpts of the exchanges with these prospective jurors. The trial court allowed the State to provide race-neutral reasons for striking the potential jurors, but “[w]ith each of the three prospective jurors at issue, the trial court never characterized the proceeding as a full Batson hearing, nor was pretext argued or ruled upon.” Slip Op. at 15. The trial court overruled defendant’s Batson objections.
After defendant’s conviction and the imposition of a death sentence, he appealed, but did not raise a Batsonissue during his direct appeal or during his first MAR. Defendant filed several subsequent MARs and a petition for writ of habeas corpus in federal court. The current opinion concerns MARs filed and amended in 2017, 2019, and 2020, where defendant raised a Batson issue based upon newly discovered evidence: (1) a CLE handout entitled “BATSON Justifications: Articulating Juror Negatives,” and (2) a statistical study by law professors at Michigan State University reviewing data concerning jury selection in North Carolina capital cases between 1990 and 2010. Id.at 17-18. Defendant argued that (1) the CLE handout contained language used by one prosecutor when giving race-neutral reasons for striking the three potential jurors, and (2) the study showed a history of discrimination by “establish[ing] a pattern of race-based strikes by both prosecutors in this case.” Id. at 19. In August of 2020, the MAR court entered an order denying the three MARs based on the alleged new evidence; this order forms the basis of the current appeal and opinion.
The Supreme Court granted defendant’s petition for writ of certiorari to review the MAR court’s order, and began by examining the procedural bar to post-conviction proceedings in G.S. 15A-1419. To prevail under the exception provided by G.S. 15A-1419(b), defendant needed to show “good cause” as provided under subsection (c) for why he did not raise his Batson issue during his previous appeal. The Court then set out the scope of consideration for defendant’s Batson claim. After defendant’s Batson objection, the trial court ruled that defendant failed to make the required prima facie showing of purposeful discrimination (step one of Batson), and “[t]he Batson inquiry should have ended at that point, and it was error for the trial court to direct the State to place its race-neutral reasons on the record.” Id. at 33. Because the relevant consideration was step one of Batson, defendant’s claim of a “good cause” exception had to relate to that first step. The Court explained why this was an issue for defendant:
[T]he bulk of defendant’s argument ignores step one of the Batson inquiry and focuses on pretext at step three, which is not the pertinent issue as set forth above. Because defendant offers the CLE handout and the MSU study as “newly discovered evidence” of purposeful discrimination and pretextual reasons proffered by the State in striking [the potential jurors], defendant’s purported “newly discovered” evidence does not address his failure to establish a prima facie case at step one.
Id. at 35.
Parsing the two individual exhibits, the Court looked to (1) the CLE handout, noting “because review of the Batson issue here is limited to step one, the CLE handout listing various race-neutral reasons for peremptory challenges at step two is irrelevant.” Id. at 37. Observing that the handout was simply a list of relevant caselaw presented during a CLE, the Court pointed out “mere knowledge of the state of the law under Batson does not raise any inference of discriminatory intent.” Id. at 42. Since defendant and his counsel could have found the cited cases themselves, and information on the handout could not represent discriminatory intent, the Court rejected any “good cause” argument.
Taking up (2) the study, the Court noted the “the MSU study was created to assist capital defendants, including this defendant, preparing to file under the [Racial Justice Act].” Id. at 47. This led the Court to observe that “the MAR court correctly concluded that the study was ‘not newly discovered’ but ‘newly created.’” Id. at 47. The Court pointed out that the relevant historical data related to cases was already available and could have been complied by defendant’s counsel. Acknowledging the potential effort involved, the Court pointed out “[t]hat gathering such information may have been difficult or time consuming does not change its character.” Id. at 48. The Court also rejected the use of cases decided subsequent to defendant’s trial and flagged other issues with the structure of the study, agreeing with the MAR court that " the MSU study assumed racial animus in cases in which defendants did not make any such claim, or in which the trial court or appellate courts did not make or sustain any such findings.” Id. at 50. Concluding that allowing a defendant to wait until a third-party had analyzed evidence in a favorable manner would create never-ending post-conviction proceedings, the Court said:
Here, the raw data used to construct the study could have been discovered by defendant’s exercise of reasonable diligence. To the extent that the MSU study analyzed and presented previously existing data in a manner that defendant now believes is more persuasive for his claim, it fails to qualify as newly discovered evidence. The “factual predicate” contemplated by [G.S.] 15A-1419(c) is either available or unavailable to a defendant—it is not a matter of creative packaging.
Id. at 56. The Court also rejected defendant’s argument that North Carolina caselaw from after his conviction changed the applicable standard for Batson claims. Finally, the Court held that State v. Burke, 374 N.C. 617 (2020), a case considering a MAR filed under the Racial Justice Act, did not apply to defendant’s current case, as his Racial Justice Act MARs were not before the Court.
Justice Riggs did not participate in the consideration or decision of the case.
Justice Earls dissented and would have held that the procedural bar did not apply to defendant’s claim, allowing remand to the trial court for consideration of the Batson claim. Id. at 71.
In this Cumberland County case, the Supreme Court affirmed the trial court’s determination that under the inquiry established by Batson v. Kentucky, 476 U.S. 79 (1986), no purposeful discrimination in jury selection occurred when the state used peremptory challenges to strike three black jurors.
This matter was originally considered in State v. Hobbs (Hobbs I), 374 N.C. 345 (2020), where the Supreme Court remanded to the trial court with specific directions to conduct a hearing under the third step of the three-step Batson inquiry to determine whether defendant had proven purposeful discrimination. After the hearing, the trial court concluded defendant had not proven purposeful discrimination. In the current opinion, the Supreme Court considered whether the trial court’s conclusions were “clearly erroneous.”
The Supreme Court first noted that under both the U.S. and North Carolina constitutions the striking of potential jurors for race through peremptory challenges is forbidden, and that it has expressly adopted the Batson three-prong test for review of peremptory challenges. Here only the third prong was at issue, where the trial court “determines whether the defendant, who has the burden of proof, established that the prosecutor acted with purposeful discrimination.” Slip Op. at 4. The court then explained the basis of its review and detailed the instructions from Hobbs I for the trial court to consider when performing its analysis. Walking through the evidence for each stricken juror, the court found that the trial court considered the relevant factors and “conducted side-by-side juror comparisons of the three excused prospective jurors at issue with similarly situated prospective white jurors whom the State did not strike,” creating an analysis for each juror. Id. at 9.
In addition to the evidence regarding specific jurors, the court pointed out that “the State’s acceptance rate of black jurors was 50% after the State excused [the last juror under consideration] which did not support a finding of purposeful discrimination.” Id. at 20. Reviewing additional evidence, the court noted that “the trial court found that the relevant history of the State’s peremptory strikes in the jurisdiction was flawed and therefore misleading.” Id. This referred to a study by Michigan State University regarding the use of peremptory strikes in North Carolina. The trial court found that all of the Batson challenges in cases referenced in the study were rejected by North Carolina appellate courts, and the study had three potential flaws:
(1) the study identified juror characteristics without input from prosecutors, thus failing to reflect how prosecutors evaluate various characteristics; (2) recent law school graduates with little to no experience in jury selection evaluated the juror characteristics; and (3) the recent law school graduates conducted their study solely based on trial transcripts rather than assessing juror demeanor and credibility in person.
Id. at 8-9. Based on the court’s review of the entire evidence, it affirmed the trial court’s conclusion of no Batson violation.
Justice Earls, joined by Justice Morgan, dissented, and would have found a Batson violation. Id. at 22.
In this Columbus County case, the Supreme Court affirmed the Court of Appeals decision finding no error with the determination that defendant failed to establish a prima facie showing of racial discrimination during jury selection.
In July of 2017, defendant’s charges of first-degree murder and second-degree kidnapping reached trial. During jury selection, defense counsel raised an objection under Batson v. Kentucky, 476 U.S. 79 (1986), arguing that the state had used three of its four peremptory challenges to strike potential jurors who were black. The trial court denied the Batson objection, finding defendant did not establish a prima facie case, but required the state to offer race-neutral reasons for all four jurors who were stricken. After defendant was convicted, the matter was appealed in State v. Campbell (Campbell I), 269 N.C. App. 427 (2020). Although the Court of Appeals majority found no error, the Supreme Court remanded for consideration in light of State v. Hobbs (Hobbs I), 374 N.C. 345 (2020), and State v. Bennett, 374 N.C. 579 (2020). In the case giving rise to the current opinion, a Court of Appeals majority again found no error in State v. Campbell (Campbell II), 272 N.C. App. 554 (2020).
Reviewing the appeal from Campbell II, the Supreme Court first noted that under both the U.S. and North Carolina constitutions the striking of potential jurors for race through peremptory challenges is forbidden. When a defendant raises a Batson objection, the trial court must apply the first step of the Batson inquiry, which requires “determin[ing] whether the defendant has met his or her burden of ‘establish[ing] a prima facie case that the peremptory challenge was exercised on the basis of race.’” Slip Op. at 10, quoting State v. Cummings, 346 N.C. 291, 307–08 (1997). In the current case, the court reviewed the trial court’s determination under a “clearly erroneous” standard, finding no error and determining “the Batson inquiry should have concluded when the trial court first determined that defendant failed to make a prima facie showing.” Id. at 14. Because the court held the inquiry should have concluded, it did not explore the adequacy of the state’s reasons for each stricken juror.
The court rejected defendant’s argument that the mathematical ratio of the strike rate justified a prima facie case of discrimination under State v. Barden, 356 N.C. 316 (2002), pointing out that this interpretation would effectively remove the first step of the Batson analysis and the deference granted to the trial court. Explaining the holding, the court emphasized “[o]ur decision in Barden was not an invitation for defendants to manufacture minimal records on appeal and force appellate courts to engage in a purely mathematical analysis.” Slip Op. at 16-17. The court likewise rejected defendant’s argument under Hobbs I, that the trial court failed to adequately explain its reasoning in denying the Batson motion. After noting that Hobbs I did not address the prima facie portion of the Batson inquiry, the court held that “[d]efendant has provided no case law from this state or any other jurisdiction establishing that a trial court is required to enter extensive written factual findings in support of its determination that a defendant has failed to establish a prima facie case, and we decline to impose such a requirement.” Id. at 18.
Justice Earls dissented, and would have held that the first step of the Batson inquiry was moot due to the trial court’s requirement that the state offer race neutral justifications for each stricken juror. Id. at 20.
The defendant was tried for armed robbery and possession of firearm by felon in Wake County. When the prosecution struck two Black jurors from the panel, defense counsel made a Batson challenge. The prosecution argued the strikes were based on the jurors’ body language and failure to look at the prosecutor during questioning. The prosecution also pointed to one of the juror’s answer of “I suppose” in response to a question on her ability to be fair, and to the other juror’s former employment at Dorothea Dix, as additional race-neutral explanations for the strikes. The trial court initially found that these reasons were not pretextual and overruled the Batson challenge. After the defendant was convicted at trial, the Court of Appeals affirmed in an unpublished opinion, agreeing that the defendant failed to show purposeful discrimination. The defendant sought review at the North Carolina Supreme Court. In a special order, the Court remanded the case to the trial court and retained jurisdiction of the case.
On remand, the defense noted that the “I suppose” answer used to justify the prosecutor’s strike was in fact a mischaracterization of the juror’s answer—the juror in question responded with that answer to a different question about her ability to pay attention (and not about whether she could be fair). The defense argued this alone was enough to establish pretext and obviated the need to refute other justifications for the strike. As to the other juror, the defense noted that while the juror was asked about her past work in the mental health field, no other juror was asked similar questions about that field. The defense argued with respect to both jurors that the prosecutor’s body language and eye contact explanations were improper, pointing out that the trial court failed to make findings on the issue despite trial counsel disputing the issue during the initial hearing. It also noted that the prosecutor referred to the two women collectively when arguing this explanation and failed to offer specific reasons for why such alleged juror behavior was concerning. This evidence, according to the defendant, met the “more likely than not” standard for showing that purposeful discrimination was a substantial motivating factor in the State’s use of the strikes.
The State argued that it struck the juror with a history in mental health as someone who may be sympathetic to the defendant but did not argue the juror’s body language or eye contact as explanations for its use of that strike at the remand hearing. As to the other juror, the State reiterated its original explanations of the juror’s body language and eye contact. It also explained that the mischaracterization of the juror’s “I suppose” answer was inadvertent and argued that this and another brief answer of “I think” from the juror during voir dire indicated a potential inability of the juror to pay attention to the trial.
The trial court ruled that the strike of the juror with previous employment in the mental health field was supported by the record, but that the prosecution’s strike of the other juror was not. It found it could not rely on the mischaracterized explanation, and that the body language and eye contact justifications were insufficient explanations on their own without findings by the trial court resolving the factual dispute on the issue. The trial court therefore determined that the prosecutor’s justifications failed as to that juror. The trial court considered the defendant’s statistical evidence of racial discrimination in the use of peremptory strikes in the case and historical evidence of racial discrimination in voir dire statewide. It also noted disparate questioning between Black and White jurors on the issue of their ability to pay attention to the trial but found this factor was not “particularly pertinent” under the facts of the case. The trial court ultimately concluded that this evidence showed the prosecutor’s explanation was improper as to the one juror, but nonetheless held that no purposeful discrimination had occurred, distinguishing the case from others finding a Batson violation. Thus, the objection was again overruled, and the defendant again sought review at the North Carolina Supreme Court.
A majority of the Court reversed, finding a Batson violation by the State. The prosecutor’s shifting and mischaracterized explanation for the strike of the juror who answered “I suppose”—initially argued as an indication the juror could not be fair, but later argued as going to her ability to pay attention—indicated the reason was pretextual, and the trial court correctly rejected that justification for the strike. The trial court also correctly determined that the demeanor-based explanations for the strike of this juror were insufficient without findings of fact on the point. However, the trial court erred in several critical ways. For one, when the trial court rejects all of the prosecutor’s race-neutral justifications for use of a strike, the defendant’s Batson challenge should be granted. According to the Court:
If the trial court finds that all of the prosecutor’s proffered race-neutral justifications are invalid, it is functionally identical to the prosecutor offering no race-neutral justifications at all. In such circumstances, the only remaining submissions to be weighed—those made by the defendant—tend to indicate that the prosecutor’s peremptory strike was ‘motivated in substantial part by discriminatory intent.’ Clegg Slip op. at 47.
Further, while the trial court correctly recited the more-likely-than-not burden of proof in its order, it failed to meaningfully apply that standard. While the present case involved less explicit evidence of racial discrimination in jury selection than previous federal cases finding a violation, it is not necessary for the defendant to show “smoking-gun evidence of racial discrimination.” Clegg Slip op. at 41. The trial court also erred in reciting a reason for the strike not offered by the prosecution in its order denying relief. Finally, there was substantial evidence that the prosecutor questioned jurors of different races in a disparate manner, and the trial court failed to fully consider the impact of this evidence. Collectively, these errors amounted to clear error and required reversal. Because the Court determined that purposeful discrimination occurred as to the one juror, it declined to consider whether discrimination occurred with respect to the strike of the other juror.
The conviction was therefore vacated, and the matter remanded to the trial court for any further proceedings. A Batson violation typically results in a new trial. The defendant here had already served the entirety of his sentence and period of post-release, and the Court noted the statutory protections from greater punishment following a successful appeal in G.S. 15A-1335. In conclusion, the Court observed:
[T]he Batson process represents our best, if imperfect, attempt at drawing a line in the sand establishing the level of risk of racial discrimination that we deem acceptable or unacceptable. If a prosecutor provides adequate legitimate race-neutral explanations for a peremptory strike, we deem that risk acceptably low. If not, we deem it unacceptably high. . . Here, that risk was unacceptably high. Clegg Slip op. at 56-57.
Justice Earls wrote separately to concur. She would have considered the Batson challenge for both jurors and would have found clear error with respect to both. She also noted that this is the first case in which the North Carolina Supreme Court has found a Batson violation by the State. Her opinion argued the State has been ineffective at preventing racial discrimination in jury selection and suggested further action by the Court was necessary to correct course.
Justice Berger dissented, joined by Chief Justice Newby and Justice Barringer. The dissenting Justices would have affirmed the trial court’s finding that a Batson violation did not occur in the case.
The defendant was charged with possession of a firearm by a felon and multiple drug crimes including drug trafficking. During jury selection, the State peremptorily challenged two potential jurors who were black before accepting a white juror. The defendant made a Batson motion, arguing that there was no basis aside from race for excusing the first two jurors. The trial court concluded that the defendant had not made a prima facie showing of racial discrimination, noting in particular that the State had “excused two, but kept three African Americans.” The defendant was convicted and appealed. The Court of Appeals affirmed the trial court, holding that the defendant failed to make a prima facie case that the State’s challenges were racially motivated. State v. Bennett, 262 N.C. App. 89 (2018).
On discretionary review, the Supreme Court reversed the Court of Appeals. As a preliminary matter, the Court agreed with the Court of Appeals that the record contained sufficient information about the relevant jurors’ race to permit a substantive review of the defendant’s Batson claim. There was no dispute among counsel for the parties or the trial judge concerning the racial identity of the relevant jurors, resulting in what amounts to a stipulation to their racial identity. The Court then concluded that the Court of Appeals erred in upholding the trial court’s rejection of the defendant’s Batson claim. After noting that a numerical analysis of strike patterns with respect to race is not necessarily dispositive, the Court said that the pattern here—where the State had challenged two of five African American prospective jurors but no white jurors, and where all of the State’s peremptory challenges were used to excuse black prospective jurors—was sufficient to raise an inference of purposeful discrimination when there was no other immediately obvious justification for the challenges. The Court rejected the State’s argument that the State’s acceptance rate for African American prospective jurors (three out of five) was higher than in many previous cases affirming trial court findings of no purposeful discrimination. Those cases included other distinguishing facts beyond the acceptance rate, such as the State using peremptory challenge on at least one white prospective juror, or a juror expressing reservations about the death penalty. Having found that the trial court erred at step one of the Batson analysis, the Court remanded the matter for a hearing to complete the second and third steps of the required analysis.
Justice Newby dissented, writing that the defendant did not preserve the race of the jurors for the record, and that Court therefore should not have reached the merits of his claim. And even if the issue had been preserved, he would have concluded that the trial court did not clearly err.
The defendant was tried capitally in Cumberland County and convicted of first-degree murder (among other offenses). On appeal, he argued the trial court erred in denying his Batson challenges to three peremptory strikes used by the State against black jurors during jury selection. The Court of Appeals unanimously affirmed (here). On discretionary review, the North Carolina Supreme Court reversed in a 6-1 divided opinion.
Under Batson v. Kentucky, 476 U.S. 79 (1986), when a defendant objects that the State has struck a juror for racially discriminatory reasons, the court undertakes a three-step hearing. First, the court determines whether the defendant made a prima facia showing that the exercise of the peremptory strike was discriminatory. The defendant meets that hurdle “by showing that the totality of the relevant facts give rise to an inference of racial discrimination [and] is not intended to be a high hurdle . . .” Slip op. at 8-9. At this stage, the defendant’s burden is one of production, not persuasion. If the defendant meets that burden, the State must then provide a race-neutral justification for the use of the strike. If the State provides facially neutral explanations, then the court proceeds to the third step, allowing the defendant an opportunity to rebut the State’s explanation and show purposeful discrimination by the State in its exercise of the strike. At this stage, the court must consider all of the evidence and determine whether the prosecution’s use of the strike “was motivated in substantial part by discriminatory intent.” Id. at 12.
(1) As to the defendant’s first two Batson objections, the trial court ruled against the defendant at the first stage, finding that he did not make a prima facia case. However, the trial court proceeded to the second and third steps of the analysis, asking the State to justify its use of the strikes and then denying the Batson challenge on the merits. The Court of Appeals held that the issue of whether the defendant made a prima facia case was not moot and agreed with the trial court that a prima facia case had not been established. This was error, as that issue was moot. See, e.g. State v. Robinson, 330 N.C. 1, 17 (1991) (so holding). “When the trial court has already ruled that a defendant failed in his ultimate burden of proving purposeful discrimination, there is no reason to consider whether the defendant has met the lesser burden of establishing a prima facia case of discrimination.” Hobbs slip op. at 13 (citations omitted). These circumstances were distinguishable from other cases cited in the Court of Appeals decision where the trial court ruled on the first step but did not conduct a complete Batson analysis.
(2) The trial court and the Court of Appeals failed to properly weigh the defendant’s evidence of purposeful discrimination. As to the first two challenges, the Court of Appeals did not consider purposeful discrimination at all, ruling only that the defendant did not make a prima facia showing. Since that issue was moot, the Court of Appeals should have conducted a full Batson analysis. While the trial court purported to conduct a “full hearing” on the Batson claims for the first two challenged jurors, its analysis of purposeful discrimination also failed to consider all of the evidence. The trial court noted the races of the defendant, the victims, and witnesses, and observed that the State had used three-fourths of its peremptory challenges on black venire members. It also noted that the defendant had exercised nearly half of his peremptory challenges to excuse black venire members. The trial court listed the State’s race-neutral justifications and stated that it “considered” the defendant’s argument that comparative answers between jurors struck and jurors kept by the State rebutted those justifications. It concluded no discrimination had occurred and did not specifically address the defendant’s argument regarding historical evidence of discrimination in jury selection in the county. Multiple errors in this analysis required a new Batson hearing.
One, the defendant’s use of peremptory challenges is irrelevant to determining the State’s intention in striking the juror, and it was improper for the trial court to consider that evidence. Second, the trial court failed to address all of the defendant’s evidence of discriminatory intent, including evidence of a pattern of historical discrimination in voir dire within the county. Without explaining how this evidence was weighed, the trial court’s analysis was incomplete. Finally, the trial court erred by failing to conduct comparative analysis of the answers of the jurors struck and of those passed on by the State. The trial court examined the different questions asked by the State of the jurors but failed to meaningfully compare the jurors’ answers in response. Evidence in the record suggested that white jurors passed by the State gave answers similar to those given by similar black jurors who were excused by the State. This was relevant and should have been addressed. In the court’s words:
Evidence about similar answers between similarly situated white and nonwhite jurors is relevant to whether the prosecutor’s stated reasons for exercising a peremptory strike are mere pretext for racial discrimination. Potential jurors do not need to be identical in every regard for this to be true. ‘If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step’. Id. at 21-22 (citations omitted).
These errors required reversal and remand to the trial court for new hearing. The same errors affected the trial court’s denial of the defendant’s third Batson claim. On remand, the trial court was instructed to conduct another Batson hearing as to all three claims, taking into account the totality of the evidence, including comparative analysis of juror answers and the historical evidence regarding racial discrimination. The trial court was further instructed to make findings of fact and conclusions of law, and to certify its order to the North Carolina Supreme Court within 60 days or “within such time as the current state of emergency allows.” Id. at 24.
Justice Newby dissented and would have affirmed the trial court and Court of Appeals. [Prior to the Supreme Court’s decision, Emily Coward blogged about this case, here.]
The trial court did not err in denying a capital defendant’s Batson challenge when the defendant failed to established a prima facie case that the prosecutor’s use of a peremptory challenge against Juror Rogers, an African-American female, was motivated by race. Because Ms. Rogers was the first prospective juror peremptorily challenged, there was no pattern of disproportionate use of challenges against African-Americans. Ms. Rogers was the only juror who stated, when first asked, that she was personally opposed to the death penalty. (2) The trial court did not err in denying a capital defendant’s Batson challenge to the State’s peremptory challenge of a second juror. There did not appear to be a systematic effort by the State to prevent African-Americans from serving when the State accepted 50% of African-American prospective jurors. The prosecutor’s race-neutral reasons were that the juror had not formulated views on the death penalty, did not read the newspaper or watch the news, had been charged with a felony, and gave information regarding disposition of that charge that was inconsistent with AOC records. Considering these reasons in the context of the prosecutor’s examination of similarly situated whites who were not peremptorily challenged, the court found they were not pretextual and that race was not a significant factor in the strike. (3) The court rejected the defendant’s argument that a remand was required for further findings of fact under Snyder v. Louisiana, 552 U.S. 472 (2008). Unlike in Snyder, the case at hand did not involve peremptory challenges involving demeanor or other intangible observations that cannot be gleaned from the record. However, the court stated that “[c]onsistent with Snyder, we encourage the trial courts to make findings . . . to elucidate aspects of the jury selection process that are not preserved on the cold record so that review of such subjective factors as nervousness will be possible.”
In this Buncombe County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and malicious maiming, arguing error in overruling his Batson objection and denying his motions for mistrial. The Court of Appeals found no prejudicial error.
During voir dire for defendant’s trial in June of 2019, the State used a peremptory strike on a black potential juror who expressed reservations about the death penalty. Defendant raised a Batson objection, and the trial court conducted the three-step analysis (this exchange is reproduced on pages 6-11 of the opinion). The trial court found that there had not been a sufficient showing of race as a motivating factor in the third step of the Batson analysis, overruling the objection. After the denial but during the trial, one of the State’s witnesses was killed. One juror learned of the killing through a press release issued by the DA’s office, and was excused for cause. Defendant moved for a mistrial, and the motion was denied. After the verdict, defendant learned another juror had heard of the killing, and moved for a mistrial again; the trial court denied this motion as well.
Beginning with the Batson issue, the Court of Appeals explained the procedural requirements for a Batson objection as clarified by State v. Hobbs, 374 N.C. 345, 356 (2020). The court then turned to the scope of review, explaining “we base our analysis on a review of the whole record, engaging in a full, written analysis of all arguments raised by Defendant at trial.” Slip Op. at 19. The court considered and rejected defendant’s argument that striking jurors for their views on race was equivalent to striking jurors for their actual race, but noted that “to the extent Defendant offers [the juror’s] views about race and the views of the three stricken white jurors as context to support an allegation that the strike of [the juror] was pretextual, we consider his argument for that limited purpose.” Id. at 21. Moving to the actual Batson analysis, the court examined the questioning of white jurors along with the black juror who triggered the Batson objection. Although the court noted that “the case is close,” it could not establish clear error in denying the Batson objection, pointing out that the black juror who was struck shared many similarities with a white juror who was struck for her views on the death penalty. Id. at 32.
Considering the motions for mistrial, the court could not find an abuse of discretion by the trial court in denying either motion. The court noted that the trial court issued a curative instruction about the use of cell phones, and that the juror in question for the second motion only saw a headline and did not express any issue with being fair and impartial. The court likewise rejected defendant’s argument that the trial court should have recused itself from the second mistrial motion, explaining the judge did not act as a witness on the question of whether the juror could perform his duties impartially.
Chief Judge Stroud and Judge Zachary concurred in the result only.
In this Cleveland County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and attempted robbery, arguing (1) error in denying his motion to dismiss for insufficient evidence based upon the impossibility of a witness’s testimony, and (2) inadequate Batson findings. The Court of Appeals majority found no error in (1), but remanded to the trial court in (2) for further findings under the guidance of State v. Hobbs, 374 N.C. 345 (2020).
In October of 2016, several people were gathered at a home drinking alcohol and taking drugs. Early in the morning, a hooded gunman entered the house, exchanging gunfire with one of the victims and killing two victims while leaving a third paralyzed. One of the witnesses present at the scene identified defendant as the gunman, and defendant came to trial for the charges in March of 2020. After defendant was convicted, he appealed, and the Court of Appeals held this case in abeyance pending the resolution of State v. Campbell, 384 N.C. 126 (2023).
In (1), defendant argued that the testimony of the witness identifying him as the gunman was physically impossible. The Court of Appeals first noted that to be “inherently incredible,” the testimony of the witness must be irreconcilable with “basic physical facts or laws of nature.” Slip Op. at 7. The court explained that “evidence is only inherently incredible where the alleged impossibility fundamentally undermines the reliability of the evidence as opposed to creating conflicts at the margins.” Id. at 10. Here, defendant pointed to three different issues with the witness’s testimony, but only one of those, the vantage point of the witness who saw the gunman shoot a victim in the living room, could have qualified as evidentiary impossibility. Defendant’s interpretation required the gunman to maintain a fixed location in the living room after speaking to the witness and subsequently shooting one of the victims. However, the witness’s testimony did not contain a statement that defendant stayed stationary, and nothing else ruled out the idea that the gunman stepped towards the victim before shooting her. Because nothing in the record fundamentally undermined the witness’s testimony, and a plausible explanation existed for the inconsistencies identified by defendant, the court did not find error in denying defendant’s motion.
Defendant’s Batson challenge in (2) was based upon the State using two peremptory challenges on black female prospective jurors. Under Hobbs, a trial court must conduct the three-step Batson analysis by first deciding whether the defendant has made a prima facie showing of racial discrimination, then proceeding to hear the State’s race-neutral reasons for striking the jurors, and finally ruling on the merits of the Batsonchallenge after weighing the circumstances around the stricken jurors. Here, the trial court immediately requested the State’s input after hearing defendant’s objection and issued a ruling deciding the entire Batsonchallenge, “issuing no preliminary ruling on whether Defendant had made a prima facie case [of racial discrimination],” and rendering the first Batson step moot. Id. at 21-22. The trial court ruled after hearing the State’s race-neutral reasons for striking the jurors, “ma[king] the ruling, in substance, a ruling on the third step of Batson.” Id. at 22. This ruling lacked the analysis required, as “’[T]he trial court did not explain how it weighed the totality of the circumstances surrounding the prosecution’s use of peremptory challenges,’ nor did it conduct a comparative analysis between the stricken African-American jurors and the other jurors alleged to have been similarly situated.” Id. at 24-25, quoting Hobbs at 358. Because defendant did not seek review of the trial court’s substantive ruling, the court did not attempt to perform a comparative-juror analysis, instead reversing and remanding the case for “further proceedings consistent with those set out in Hobbs.” Id. at 25.
Judge Dillon concurred by separate opinion, noting that the State may be heard during the first step of the Batson analysis and that the trial court could still make a ruling on the prima facie showing of discrimination, but that the court here proceeded to step two.
Judge Stading concurred to the holding in (1) and dissented to the holding in (2) by separate opinion, and would have held that the trial court committed no error as the step one Batson determination was not moot under the circumstances of the case.
In this Rowan County case, defendant argued error in overruling his objection under Batson v. Kentucky, 476 U.S. 79 (1986) to the prosecution peremptorily striking two black jurors. The Court of Appeals found no error.
Defendant, a black man, reached trial in June of 2021 for charges of misdemeanor assault on a government official/employee. Relevant for the consideration of the objection, the victim of the assault was a white police officer. During jury selection, only four black potential jurors were a part of the jury pool; one black juror was struck for cause, and then the prosecutor used two peremptory challenges on two remaining black potential jurors. At this point, defense counsel objected and the trial court proceeded with the inquiry required by Batson.
The Court of Appeals reviewed defendant’s arguments, initially noting that under both the U.S. and North Carolina constitutions, the use of peremptory challenges for racially discriminatory reasons is prohibited, and courts in North Carolina apply the Batson analysis to determine if a violation occurred. Here, defendant only challenged the third step of the Batson inquiry, where the trial court determined that the prosecutor’s peremptory strikes were not motivated by discriminatory intent. Defendant also argued in the alternative that the trial court failed to sufficiently explain the basis of its ruling.
The court found no issue with the trial court’s description of the basis for its ruling, and denied remand. Using the analogy of a scale, the court found that “[h]ere, unlike in [related Batson precedent], the trial court placed all the factors presented to it by the parties on the scale, and thus we do not need to remand.” Slip Op. at 17. The court walked through the considerations made by the trial court, including the consideration of issues not raised by either party, and satisfied itself that the trial court “adequately accounted for all the factors presented to it at Batson’s third step.” Id. at 21.
The court then looked directly at the conclusion of no discriminatory purpose in the third step, reviewing the relevant factors to determine if the trial court committed clear error. After conducting a lengthy review spanning pages 22 to 41 of the opinion, the court concluded that "[t]he statistics of strike rates and susceptibility of the case to racial discrimination both weigh on the side of discriminatory intent,” but the lack of disparate questioning and investigation, and the race-neutral reasons given by the prosecutor for striking the jurors both weighed on the side of no discrimination. Id. at 40-41. Based on this review, the court could not find clear error to support defendant’s Batson challenge.
The defendant was convicted at trial of trafficking and other drug offenses in Sampson County. During voir dire, defense counsel made a Batson objection to the prosecutor’s peremptory strikes of two Black jurors. The trial court denied the motion, finding that the defendant had not made a prima facie showing of discrimination. The Court of Appeals affirmed that decision on appeal, but the North Carolina Supreme Court reversed. It found that the defendant had met the low bar for a prima facie showing and that the trial court erred in failing to conduct the remainder of the Batson analysis. The case was therefore remanded to the trial court for a full Batson hearing (Jamie Markham summarized that decision here).
On remand, the prosecution explained that one of the struck jurors was removed because the juror failed to disclose his criminal history. As to the other struck juror, the prosecution explained that some of her answers indicated confusion, and that the juror’s business was involved in an ongoing drug investigation. The defense pointed out that the juror’s criminal record was not in the record and argued this reason was not supported by the evidence. The trial court interrupted defense counsel and indicated that the existence of the juror’s criminal record was “gospel” to the court. Defense counsel moved on to argue the stated reasons for the strikes were pretextual. The defense also offered other evidence of purposeful discrimination, including the juror strike rates, historical evidence of discriminatory jury selection practices in the county, and the susceptibility of the case to racial bias as a drug offense involving a Black defendant. The trial court ultimately found that the prosecutor’s explanations for its use of the strikes were race neutral and determined that that the defendant failed to show purposeful discrimination. The defendant appealed to the North Carolina Supreme Court, who remanded the matter to the Court of Appeals for review.
A unanimous panel of the Court of Appeals affirmed the trial court. (1) The defendant argued that the trial court erred at the second step of the Batson analysis in finding that the prosecution’s stated reasons for its strikes were race-neutral. Specifically, the defendant argued that the prosecutor’s reasons were unsupported by the record. The State argued that the defendant had failed to preserve his challenge to this part of the analysis. The court noted that the discussions between the parties during the Batson hearing were not “neatly divided,” but determined that defense counsel’s attempt to argue the lack of record evidence in support of the prosecutor’s explanations sufficed to preserve the issue. Although the defense later argued that one of the prosecution’s reasons would have supported a challenge for cause (which would supply a race-neutral reason), this occurred during a discussion of the third step of the analysis and after the trial court had indicated the reason had been accepted by the court. The defendant’s challenge to the second step of the analysis was therefore preserved.
(2) At the second step of a Batson analysis, the State must supply a race-neutral explanation for its use of the challenged peremptory strikes. The State is required to do more than simply deny wrongful intent, but any explanation will suffice if it is race neutral. “[I]f not racially motivated, the prosecutor may exercise peremptory challenges on the basis of legitimate hunches and past experience. Notably, the reason does not have to be a reason that makes sense, but a reason that does not deny equal protection.” Bennett III Slip op. at 26 (cleaned up). Although the defendant may offer surrebuttal of the prosecutor’s reasons at step two, “this merely sets up” the third step of the analysis. The court noted the low bar for the prosecution at step two and observed the reason need not be supported by the record at this stage—scrutiny of the prosecutor’s explanation occurs at the final step of the Batson analysis. Here, the reasons offered by the State for its strikes of both Black jurors were racially neutral. “Neither of those challenged explanations is inherently discriminatory because they do not rely on the jurors’ race or race-based discriminatory stereotypes.” Id. at 30.
(3) At the third and final step of the Batson analysis, the court must determine if the defendant has shown that the State’s peremptory challenges were more likely than not motivated by race by examining the totality of the circumstances, including any relevant evidence. Here, the trial court did not clearly err by concluding that the defendant failed to show purposeful discrimination. There was no clear error in the trial court’s ability to conduct a comparative juror analysis on the record before it and the trial court did not err in finding that one of the struck Black juror’s answers were not substantially similar to those of a White juror passed upon by the State. The trial court likewise did not err in determining that the case was not one susceptible to racial discrimination. The case was primarily about drugs and did not involve cross racial issues. According to the court, a case susceptible to racial discrimination is one where the defendant, victim, and witnesses are of different races. Such was not the case here. In the words of the court:
Where there is no evidence of any racial motivations or discrimination in the particular case under review, our precedent does not allow us to account in some sort of general philosophical way for ‘the effect of bias and racial stereotypes on jurors’ as Defendant wants us to consider. Id. at 55.
The North Carolina Supreme Court recently approved of the relevance and use of historical and statistical data in Batson challenges, but trial courts remain to free to weigh such evidence against contemporary practices and policies of a district. Although the trial court’s reasons here for discounting a study evidencing historical racial discrimination in jury selection in the county were improper, this did not amount to clear error under the facts of the case. According to the court:
Side-by-side comparisons of the potential jurors are more powerful than ‘bare statistics,’ and those comparisons here support the prosecutor. Further, we have already concluded the lack of susceptibility of this case to racial discrimination favors the prosecutor’s reasoning as well. Id. at 65.
Finally, the trial court also did not err in assigning weight to the fact that the State passed on five Black jurors. Three Black jurors were accepted before the Batson challenge, and two more were seated afterwards. The trial court found this supported an inference that the challenged strikes were not racially motivated. Unlike other cases where the prosecution only passed a Black juror after a Batson challenge, the early sitting of multiple Black jurors could be weighed in support of the State’s explanations. Additionally, the empaneled jury was more racially diverse than the population of the county itself, which further weighed in the State’s favor. In light of the whole record, the court concluded that the trial court committed no clear error, and its judgment denying the Batson challenge was affirmed.
(1) The defendant, on trial for multiple drug charges, challenged the prosecutor’s peremptory strike of the only Black juror in the venire under Batson v. Kentucky. The trial court overruled the defendant’s objection, finding that although the “100 percent rejection rate of African American jurors” established a prima facie showing of discrimination, the State gave credible race-neutral reasons for striking the prospective juror, and the defendant therefore did not prove purposeful discrimination. The defendant appealed, arguing that the trial court erred in denying his Batson challenge or, in the alternative, failed to make adequate findings of fact as required by State v. Hobbs, 374 N.C. 345 (2020). The Court of Appeals rejected the State’s argument that the defendant had not preserved the issue because the record did not disclose direct evidence of the race of the challenged juror and the jury selection process was not recorded. The Court held that the record sufficed to permit appellate review when the record of the Batson hearing included express statements, undisputed by the State, that the defendant was African American and that the lone African American in the jury pool was excluded. On the merits of the Batson challenge, the Court concluded that the trial court failed to make sufficient findings of fact on its comparative analysis of the answers regarding prior criminal history given by the stricken Black juror (who had a previous child abuse charge dismissed) and a White juror passed by the State (who had a prior drug charge dismissed). The trial court also failed to make findings of fact on the defendant’s argument that the State’s purported concern about the defendant’s “tone of voice” suggested racial bias. The Court remanded the matter to the trial court for specific findings, including, but not limited to the details of the court’s comparative juror analysis and on the defendant’s assertion that the prosecutor’s statements regarding the defendant’s answers to questions and tone of voice evinced racial bias. (2) The trial court erred by assessing costs in each of the four judgments against the defendant. Under State v. Rieger, ___ N.C. App. ___, 833 S.E.2d 699 (2019), the trial court should assess costs only once for cases adjudicated together in the same hearing or trial regarding multiple charges arising from the same underlying event or transaction.
In a first-degree felony murder case, the trial court did not err by denying the defendant’s motion to strike the initial jury panel and the Court of Appeals remanded the case to the trial court for a proper Batson hearing consistent with State v. Hobbs, 374 N.C. 345 (2020). Before jury selection, the clerk provided the State and the defendant with a list of the first 12 prospective jurors to be called from the master jury list – 11 had surnames beginning with the letter “B” and the twelfth had a surname beginning with the letter “C.” After defense counsel’s oral motion on the first day of voir dire to strike the first 12 prospective jurors based on concerns about whether they had been randomly selected in accordance with relevant statutes was denied, defense counsel made a motion in writing on the second day of voir dire to strike the jury panel for lack of randomness. The trial court denied that written motion. On the third day of voir dire, the trial court summarily denied the defendant’s Batson challenge to the State’s exercise of a peremptory strike against an African-American prospective juror. With respect to the denial of the written motion to strike the jury panel, the Court of Appeals determined that even if the mandatory statutory procedure for calling jurors had been violated, the defendant did not show that any such violation was prejudicial because he did not strike any of the first 12 jurors for cause or with a peremptory challenge. With respect to the Batson challenge, the court reviewed Hobbs, other precedent, and the proceedings in the trial court on its way to determining that the trial court erred by summarily denying the challenge without making specific findings of fact and conclusions of law. The court remanded the case with instructions to the trial court to conduct a proper Batson hearing.
This case involves a first-degree murder conviction previously upheld by the Court of Appeals, ___ N.C. App. ___, 838 S.E.2d 660 (2020), back before the court for reconsideration in light of the Supreme Court’s recent decisions in State v. Hobbs, ___ N.C. ___, 841 S.E.2d 492(2020), and State v. Bennett, ___ N.C. ___, 843 S.E.2d 222 (2020).
At his murder trial, the defendant raised a Batson challenge in response to the State’s use of three of its four peremptory challenges to strike African American prospective jurors. The trial judge said that he did not find that the defendant established a prima facie case of discrimination, but he nonetheless ordered the State to give reasons for its challenges, which the State did. After hearing the State’s explanations, the trial court reiterated its finding that the defendant had not made a prima facie showing of purposeful discrimination and denied his Batson challenge. The defendant was convicted of first-degree murder and appealed.
The Court of Appeals first rejected the State’s motion to dismiss the appeal in light of the defendant’s failure to include in the appellate record a transcript of jury selection proceedings. At trial, the defendant’s lawyer made a motion for recordation of all proceedings, but specifically noted that she was not requesting recordation of jury selection. The appellate court concluded that the record was minimally sufficient to permit appellate review here, but emphasized that it will generally be extremely difficult for a defendant to prevail on a Batson argument without a transcript of jury selection.
The Court of Appeals next determined that the scope of its review was limited to step one of the Batson analysis—that is, the trial judge’s finding that the defendant had failed to establish a prima facie case of discrimination. The court distinguished this case from State v. Williams, 343 N.C. 345 (1996) (step one becomes moot when the State volunteers the reasons for its peremptory challenges before the trial court rules on whether the defendant has made a prima facie showing), and State v. Hobbs, ___ N.C. App. at ___, 841 S.E.2d at 499–501 (step one becomes moot when the trial judge rules that the defendant has not established a prima facie case but nonetheless orders the State to provide nondiscriminatory reasons for its peremptory challenges and then enters findings on those reasons). Unlike Williams, the State did not volunteer reasons before the trial court ruled on step one; the State was ordered to give reasons after the court ruled. And unlike Hobbs, the trial judge never conducted a full hearing or made findings on the State’s proffered reasons. The step one inquiry therefore was not rendered moot, and Court of Appeals majority thus considered itself precluded from consideration of the State’s proffered nondiscriminatory reasons. The court concluded that the trial court’s order addressing only step one of the inquiry was not facially deficient when that was the only step of the inquiry the trial court technically reached.
On the merits, the court concluded that based on the limited available record, the defendant had not established that the trial court erred in finding that the defendant failed to make a prima facie showing. The transcript showed only the race of the defendant and that the State used three of its four peremptory challenges to remove prospective African American jurors. It did not provide other information about the so-called Quick factors (derived from State v. Quick, 341 N.C. 141 (1995)), such as the race of the victim, the questions and statements of the prosecutor during jury selection, or the final racial composition of the jury. The court noted its concern that the State used seventy-five percent of its peremptory challenges on African American prospective jurors, but said that alone was not sufficient to establish a prima facie case of discrimination.
A judge dissenting in part would have concluded that the rate at which the State used its peremptory challenges on African American jurors obligated the trial court to conduct a more thorough analysis of the defendant’s objection. He therefore would have remanded the case for specific findings of fact in order to permit a meaningful appellate review.
In this first-degree murder case, defense counsel objected to the State’s use of peremptory challenges to strike three African American prospective jurors. The trial court denied defense counsel’s Batson challenge, finding that the defendant had not established a prima facie case that the State acted in a racially discriminatory manner. The Court of Appeals found no error, first denying the State’s motion to dismiss the appeal for failing to include a verbatim transcript of jury selection in the appellate record. A transcript is not required—although the court noted that it is “extremely difficult” to prevail on a Batson argument without one. Here, the Court of Appeals concluded that the narrative summary of jury selection proceedings in the appellate record was “minimally sufficient” to enable the court to review whether the defendant established a prima facie Batson claim by presenting factors relevant to the claim (so-called Quick factors, listed by the Supreme Court in State v. Quick, 341 N.C. 141 (1995), including the defendant’s race, the victim’s race, the race of key witnesses, and information about the State’s use of peremptory challenges to strike jurors based on race). On the merits, however, the court concluded over a dissent that without more information about the Quick factors (the narrative summary did not state the victim’s race, the race of key witnesses, or the final racial composition of the jury), it lacked sufficient information to conclude that the trial court erred. The court “urge[d] all criminal defense counsel that the better practice is to request a verbatim transcription of jury selection if they believe a Batson challenge might be forthcoming.” The court declined to consider the State’s proffered nondiscriminatory reasons for striking three prospective African American jurors, because those reasons were provided only after the judge had already ruled that the defendant had failed to establish a prima facie case of discrimination. (The court distinguished situations where the State volunteers nondiscriminatory reasons before the judge rules on the question of a prima facie case, or where the court requires the State to give reasons before actually ruling on the first question.)
A judge concurring in part and dissenting in part agreed with the majority that the narrative summary in the record sufficed to deny the State’s motion to dismiss the appeal, but would have concluded that the State’s use of three out of four peremptory challenges on African American jurors was a sufficient basis on which to remand the case for the trial court to conduct a Batson hearing and make specific factual findings on whether the defendant made a prima facie case.
The trial court did not err by denying the defendant’s Batson challenges in this capital case. The two victims and the eyewitness were Palestinian and the defendant was black. The State exercised a peremptory strike against Juror 2, a black male. When questioned about the death penalty, Juror 2 stated that he would not agree to the death penalty under any circumstances, elaborating that he was a pastor and that agreeing with the death penalty would make him a hypocrite; he added that he might hypothetically agree to the death penalty in one specified gruesome scenario. Reservations concerning ability to impose the death penalty constitute a racially neutral basis for exercising a peremptory challenge. The State exercised a peremptory strike against Juror 10, a black female. After the defendant raised a Batson challenge, the State provided reasons for the strike: Juror 10’s thoughts about the death penalty; her failure to disclose her criminal charges; reservations about whether law enforcement treated her brother fairly; and her lack of eye contact when asked whether her brother’s prosecution would affect her ability to be fair and impartial. These are racially neutral reasons for striking a juror. The State exercised a peremptory strike against Juror 11, a black male; it did not strike Juror 12, a white male. Jurors 11 and 12 were charged with writing worthless checks and driving while license revoked in the past and both knew a potential witness in the case. However, Juror 12 responded directly to questions about his criminal charges while Juror 11 minimized his criminal history; Juror 11 avoided questions regarding his family members’ criminal charges; Juror 12 had a business relationship with the witness whereas Juror 11 spoke with him on multiple occasions and his grandniece worked for the witness. The trial court did not commit clear error in rejecting the defendant’s Batson challenges
In this capital murder case involving an African American defendant and victims, the trial court did not err by sustaining the State’s reverse Batson challenge. The defendant exercised 11 peremptory challenges, 10 against white and Hispanic jurors. The only black juror that the defendant challenged was a probation officer. The defendant’s acceptance rate of black jurors was 83%; his acceptance rate for white and Hispanic jurors was 23%. When the State raised a Batson challenge, defense counsel explained that he struck the juror in question, Juror 10, a white male, because he indicated that he favored capital punishment as a matter of disposition. Yet, the court noted, that juror also stated that being in the jury box made him “stop and think” about the death penalty, that he did not have strong feelings for or against the death penalty, and he considered the need for facts to support a sentence. Also, the defendant accepted Juror 8, a black female, whose views were “strikingly similar” to those held by Juror 10. Additionally, the defendant had unsuccessfully filed a pretrial motion to prevent the State from exercising peremptory strikes against any prospective black jurors. This motion was not made in response to any discriminatory action of record and was made in a case that is not inherently susceptible to racial discrimination. In light of the record, the court concluded that the trial court did not err by sustaining the State’s Batson objection.
The trial court did not err by dismissing the defendant’s Batson objection. The prosecutor’s explanation for its peremptory challenge to the black juror was that she was unemployed and that the prosecutor recognized the juror’s name, possibly from a prior domestic violence case. The court noted that the State accepted a white juror who was unemployed. However, a review of the record revealed that the trial court conducted a full Batson inquiry and its conclusion that there was no purposeful discrimination was not erroneous.
The trial court did not err by failing to conduct a Batson hearing where the defendant failed to establish a prima facie case of discrimination. At the time the defendant objected, the State's acceptance rate, excluding jurors dismissed for cause, was 25% for African Americans, and 80% for whites. This was the only factor asserted by the defendant. The court noted that the defendant and both murder victims were African American and that the State questioned all the prospective jurors in the same manner, there were no racially motivated comments made or questions asked during jury selection, and the responses of the prospective jurors provided reasonable justification for exclusion.
The court rejected the defendant’s argument that the State used six of its peremptory challenges to excuse prospective African-American jurors in violation of Batson. At a Batson hearing, the State offered race-neutral explanations as to why it excused each juror, including unresponsiveness, deceit, failure to make eye contact, alleged acquaintance with the defendant’s former girlfriend, an extensive history of purchasing pawn tickets, and prior employment at the store where the crime occurred. After weighing these race-neutral explanations, the trial court found that the defendant had not demonstrated purposeful discrimination. The court concluded that “[a]fter careful review, we cannot find error that would justify overturning the trial court’s ruling.”
The trial court did not err by rejecting the defendant’s Batson challenge as to two black jurors. The prosecutor's explanation with respect to both jurors included the fact that both had a close family member who was incarcerated and had not been "treated fairly." The court rejected the defendant’s argument that the State accepted a white male juror whose father had been incarcerated, noting that the white juror indicated that he was not close to his father and that his father had been treated fairly. The court also rejected the defendant’s argument that the State's peremptory challenges left the defendant, who was black, with an all-white jury, concluding that Batson requires purposeful discrimination; it is not enough that the effect of the challenge was to eliminate all or some African-American jurors.
The trial court did not err by overruling the defendant’s Batson objection to the State’s peremptory challenge of an African-American juror. The defendant, who is African-American, was tried for murder. In response to the defendant’s Batson objection, the prosecutor explained to the trial court that the juror was challenged because he was heavily tattooed and dressed in baggy, low hanging jeans decorated with a blood-red colored splatter. The prosecutor expressed concern over what the juror chose to wear to court and “his choice of applying . . . that much ink.” The court found the State’s reason for striking the juror to be race-neutral. It also held that the trial court did not err by finding that the defendant failed to prove purposeful discrimination. The court determined that the defendant’s statistical evidence was not helpful because the jury pool contained only one or two African-Americans. Although defense counsel had suggested to the trial court that there were “racial overtones” in the defendant’s prior trials, no evidence of this was presented. The court also rejected the defendant’s argument that the State’s explanation for excluding the juror was pretextual. Finally, the court noted that both the victim and the defendant were African-American, the State asked no racially motivated questions, the State’s method of questioning the juror did not differ from its method of questioning other jurors, the State used only two peremptory challenges and contemporaneously challenged both a black and white prospective juror, the defendant left unresolved the question whether one of the jurors accepted by the State was African-American, and the defendant failed to show that any other prospective jurors wore clothing or had tattooing similar to that displayed by the juror in question.
The defendant arranged a meeting with the victim through an app for the purchase of a phone. The victim left his home to go get the phone and was later found shot and killed. Communications found on the app led police officers to the defendant, who was 15 years old at the time.
Officers contacted the defendant’s mother and arranged to meet with the defendant as a witness in a larceny case. The officers met with and questioned the defendant in the presence of his parents. During the questioning, the defendant told the officers about the meeting that had been arranged for the purchase of the phone, and eventually disclosed that one of his companions wanted to rob the victim. Although the defendant carried a gun at the time of the incident, the defendant insisted that his own plan was not to rob the victim but rather sell him the phone.
The defendant was found guilty of attempted robbery with a dangerous weapon and first-degree murder. The defendant was found not guilty of conspiracy to commit robbery with a firearm.
(1) On appeal, the defendant argued that the trial court erred by denying the defendant’s challenge for cause to dismiss a juror. The Court of Appeals held that the defendant failed to preserve the issue for appeal because he did not adhere to the procedures established by G.S. 15A-1214(i). Specifically, the defendant did not (1) previously peremptorily challenge the juror; or (2) state in his motion to renew his challenge for cause that he would have challenged that juror peremptorily had his challenges not been exhausted.
(2) The defendant’s next argument on appeal was that the trial court erred by denying his motion to suppress his confession. The defendant contended that detectives gained access to him, a fifteen-year-old boy, by deceiving his mother, repeatedly told the defendant that he was lying, and capitalized on the presence of his parents to extract the confessions from him. Based on the trial court’s findings of fact, the Court of Appeals concluded that the defendant was in a non-custodial setting in his grandmother’s home with his parents, was informed the discussion was voluntary, was not handcuffed or otherwise restrained, and was not coerced, deceived, or threatened. The defendant did not challenge any of the trail court’s findings of fact. The Court of Appeals held that the trial court’s findings of fact fully support its conclusions of law, and based upon the totality of the circumstances, held that the defendant’s statement was voluntary. The Court affirmed the trial court’s denial of the defendant’s motion to suppress his non-custodial statement.
(3) The defendant argued that the trial court erred by failing to instruct the jury on second-degree murder as a lesser-included offense of first-degree murder because there was evidence that supported the instruction. In rejecting this argument, the Court of Appeals noted that there was no evidence that the victim was killed other than in the course of an attempted robbery. The Court concluded that there was no evidence in the record from which a rational juror could find the defendant guilty of second-degree murder and not guilty of felony murder.
(4) The defendant’s final argument was that the trial court erred by failing to order a discretionary transfer hearing as a matter of due process. The defendant argued that the juvenile petition did not contain facts indicating that he committed first-degree murder, so a discretionary transfer hearing should have occurred as required under G.S. 7B-2203. The Court of Appeals rejected this argument, noting that the defendant already had a transfer hearing in district court, and the defendant did not appeal the district court’s order to superior court as required by G.S. 7B-2603.
The defendant also contended that the trial court violated his right to due process by allowing the State to prosecute him under felony murder because felony murder is based on deterrence, which is not effective for and should not apply to juveniles. However, the Court of Appeals considered the argument abandoned because the defendant failed to cite any law indicating a juvenile may not be convicted of felony murder.
Chief Judge Stroud dissented in part to say that because there was a conflict in the evidence regarding an element of felony murder, specifically whether or not the defendant planned to rob the victim, the evidence supported an instruction for the lesser included offense of second-degree murder.
The defendant in this case was convicted of first-degree murder on four different theories, along with three counts each of armed robbery and kidnapping, and one count of conspiracy to commit armed robbery. The trial court sentenced the defendant for the murder and two robberies, and arrested judgment on the remaining convictions. Since the only issues raised on appeal concerned jury selection and a clerical error in one of the judgments, the appellate court declined to “recount the especially brutal and horrific factual background” leading to the defendant’s convictions. The facts are summarized in the parties’ briefs available here and here.
On appeal, the defendant argued that the trial court erred by refusing to excuse a prospective juror for cause after the juror indicated that she would not be able to apply the presumption of innocence. The defendant’s motion to excuse the juror for cause was denied at trial, so she was excused by the defense with a peremptory challenge. The motion was renewed later in the jury selection process after all the defendant’s peremptory challenges were exhausted, when the defendant was unable to excuse another juror he otherwise would have.
The appellate court reviewed the trial court’s ruling under an abuse of discretion standard, and found no error. Since this case had received extensive pretrial publicity, around 200 prospective jurors were called for jury selection. After excusing a number of jurors for hardships, the remaining 146 were divided into two panels for jury selection. Many of those potential jurors were subsequently excused for cause due to their exposure to pretrial publicity, inability to be fair and impartial, and concerns over the gruesome nature of the evidence. The juror at issue in this appeal had no prior knowledge of the facts, but during voir dire she stated that her father was retired from the Highway Patrol and acknowledged that she may have difficulty being fair to the defendant since she would be inclined to trust and give greater weight to testimony from a law enforcement witness. However, after further questioning by the attorneys and the trial judge, the prospective juror also stated that she was capable of setting her bias aside and “applying the presumption of innocence to defendant and the burden of proving guilt beyond a reasonable doubt to the State.” Viewing the juror’s answers in their entirety under case precedent such as State v. Cummings, 361 N.C. 438 (2007), along with the fact that (unlike much of the venire) this juror also had no prior knowledge of the case, the appellate court concluded that the trial court did not abuse its discretion in finding that the juror could follow the law as instructed, and did not err in declining to excuse her for cause.
The case was remanded to correct a clerical error on one of the judgments, which incorrectly listed the defendant’s active sentence as 77 to 100 months, instead of 73 to 100 months.
The trial court did not abuse its discretion by denying the defendant’s challenges for cause of two prospective jurors. The defendant asserted that the first juror stated that he would form opinions during trial. Because the juror stated upon further questioning that he would follow the judge’s instructions, the trial court did not abuse its discretion by denying the challenge of this juror. Next, the defendant argued that the trial court erred when it denied his for-cause challenge to a second juror who was a Marine with orders to report to Quantico, Virginia, before the projected end of trial. The trial court did not abuse its discretion in refusing to allow the for-cause challenge where the juror twice asserted that despite his orders to report, he could focus on the trial if he was selected as a juror.
The trial court did not abuse its discretion by denying the defendant’s challenge for cause. Although the juror initially voiced sentiments that would normally make her vulnerable to a challenge for cause, she later confirmed that she would put aside prior knowledge and impressions, consider the evidence presented with an open mind, and follow the applicable law.
In an appeal from a conviction obtained in the Eve Carson murder case, the trial court did not abuse its discretion by denying three of the defendant’s challenges for cause during jury selection. The defendant failed to preserve for appellate review challenges as to two of the jurors. As to the third, his challenge was based on the juror’s hearing problems. However, the trial court obtained a hearing device for the juror’s use and tested its effectiveness in court.
The trial court did not abuse its discretion by denying the defendant’s motion to strike a juror for cause or his request for an additional peremptory challenge. The defendant argued that a juror should have been excused for cause based on his comments during voir dire that he knew “things that [he] probably shouldn’t know, knowing some of the details.” Asked to elaborate, he indicated that he had read about the case in the newspaper. The trial court and the defendant then inquired further as to whether the juror could follow the law and be impartial. The juror indicated that he could put aside what he had read and make a decision based on the evidence. The court noted that the trial court was very careful to give considerable attention to its determination of whether the juror’s prior knowledge of the case would impair his ability to fairly evaluate the evidence and in accordance with trial court’s instructions.
In an impaired driving case, the trial court did not abuse its discretion by allowing the State’s challenge for cause of a juror while denying a defense challenge for cause of another juror. The juror challenged by the State had a pending impaired driving case in the county and admitted to consuming alcohol at least three times a week, and stated that despite his pending charge, he could be fair and impartial. The juror challenged by the defense was employed with a local university police department as a traffic officer. He had issued many traffic citations, worked closely with the District Attorney’s office to prosecute those and other traffic cases, including impaired driving cases, and had never testified for the defense. He indicated that he could be fair and impartial. Distinguishing State v. Lee, 292 N.C. 617 (1977), the court noted that the juror challenged by the defense did not have a personal relationship with any officer involved in the case and never indicated he might not be able to be fair and impartial. The court rejected the notion that a juror must be excused solely on the grounds of a close relationship with law enforcement.
The state supreme court did not unreasonably apply clearly established federal law with respect to the defendant’s claim that the method of jury selection violated his sixth amendment right to be tried by an impartial jury drawn from sources reflecting a fair cross-section of the community. The state supreme court assumed that African-Americans were underrepresented in venires from which juries were selected but went on to conclude that the defendant had not shown the third prong of the Duren prima facie case for fair cross section claims: that the underrepresentation was due to systemic exclusion of the group in the jury-selection process. The Court expressly declined to address the methods or methods by which underrepresentation is appropriately measured. For a more detailed discussion of this case, see the blog post.
The trial court did not err by denying the defendant’s motion to strike the jury venire. The defendant alleged that his venire was racially disproportionate to the demographics of Mecklenburg County, where he was tried, and therefore deprived him of his constitutional right to a jury of his peers. The court began by noting that the fact that a single venire that fails to proportionately represent a cross-section of the community does not constitute systematic exclusion. Rather, systematic exclusion occurs when a procedure in the venire selection process consistently yields non-representative venires. Here, the defendant argued that Mecklenburg County’s computer program, Jury Manager, generated a racially disproportionate venire and thus deprived him of a jury of his peers. Although the defendant asserted that there was a disparity in the venire, he conceded the absence of systematic exclusion and thus his claim must fail.
The trial court did not err by denying the defendant’s motion to discharge the jury venire on grounds that the defendants’ race (African-American) was disproportionately underrepresented. To establish a prima facie violation for disproportionate representation in a venire, a defendant must show that: (1) the group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process. Although the defendants met their burden with respect to the first prong, they failed to satisfy the other prongs. As to the second prong, the defendants failed to produce any evidence that the representation African-Americans was not fair and reasonable in relation to the number of such persons in the community. Defendants stated that the African-American population in the county was “certainly greater than . . . five percent” but produced no supporting evidence. As to the third prong, the defendants presented no evidence showing that the alleged deficiency of African-Americans in the venire was because of the systematic exclusion. Although the defendants noted that only three out of 60 potential jurors were African-American, this fact was insufficient to show systematic exclusion.
By failing to object, the defendant waived his right to appeal the issue of whether the trial court erred by informing prospective jurors, pursuant to G.S. 15A-1213, that the defendant had given notice of self-defense. During jury selection, the trial court stated: “Defendant, ladies and gentlemen, has entered a plea of not guilty and given the affirmative defense of self-defense.” The court rejected the defendant’s argument that the trial judge acted contrary to the statutory mandate of G.S. 15A-905(c), a discovery statute providing that on the State’s motion, the defendant must give notice of an intent to offer certain defenses at trial, including self-defense, and that the defendant’s notice of defense is inadmissible at trial. The court stated that the trial judge did not act contrary to the statutory mandate on orienting the jury in G.S. 15A-1213 and, in fact, the opposite was true. Therefore, as the defendant failed to preserve the issue, the court declined to address the merits of his argument on appeal.
In this Pasquotank County case, defendant appealed his conviction for first-degree murder, arguing the trial court erred in several matters related to the COVID-19 pandemic and by admitting irrelevant and hearsay testimony. The Court of Appeals found no error.
In May of 2018, defendant was in an altercation in Elizabeth City; defendant pulled a gun as the victim ran away and shot him several times in the back. The matter reached trial on January 11, 2021, after delays related to COVID-19. On the first day of trial, defense counsel made a motion to continue, arguing that she did not feel safe proceeding due to COVID-19. The trial court denied the motion to continue. The trial was subject to capacity limitations and modified jury selection procedures to limit the proximity of those in the courtroom, leading to additional issues on appeal.
Defendant first argued that the trial court lacked subject-matter jurisdiction to hear the case, pointing to the emergency orders from then-Chief Justice Beasley issued on December 14, 2020, forbidding jury trials for the next thirty days unless a jury was already empaneled. The Court of Appeals noted that Chief Justice Newby was sworn in on January 1, 2021, and a commission to the superior court hearing the matter was issued on January 5. The new chief justice also issued an order effective January 14, 2021, allowing the emergency directives in question to expire. The court found that the emergency order did not remove the superior court’s jurisdiction, and “[t]he 5 January 2021 AOC commission for this session and the 13 January 2021 order from Chief Justice Newby effectively repudiated and superseded the 14 December 2020 order.” Slip Op. at 9.
Moving to defendant’s trial-related issues, the court first considered denial of the motion to continue, explaining that defendant could not show prejudice justifying a new trial because defense counsel “was legally prepared to try the case, but was solely worried about potential COVID-19 risks,” and defendant made “no showing of any deficient representation throughout trial.” Id. at 14. The court next considered the argument that defense counsel should have been barred under Emergency Directive 2 from the December 14, 2020, emergency orders, as this order forbid persons likely exposed to COVID-19 from entering the courthouse. Rejecting this argument, the court noted that defense counsel did not identify her likely exposure to the clerk or mention it in her motion to continue, meaning she never presented the issue to the court for consideration prior to her motion. Examining defendant’s argument that the courtroom closure for capacity reasons violated his right to a public trial, the court explained that he failed to preserve this issue on appeal and declined to apply Rule of Appellate Procedure 2 to revive it. Finally, the court rejected defendant’s challenge to jury selection, holding:
While the jury selection procedure the court utilized here may have varied the express requirement of N.C. Gen. Stat. § 15A-1214(d) requiring the State to pass a full panel of twelve prospective jurors . . . [d]efendant was not forced to accept any undesirable juror as a result of the passing of less than twelve prospective jurors during jury selection procedure under these circumstances. Id. at 21-22, citing State v. Lawrence, 365 N.C. 506 (2012).
The court last turned to defendant’s challenge to the admission of Exhibits 54, 55, and 57. Exhibits 54 and 55 were Facebook messages, and Exhibit 57 was documentation of a handgun purchase. Noting the exhibits “were probative to issues of [d]efendant’s guilt, [d]efendant’s opportunity to acquire a weapon, and [d]efendant’s possible motive for the killing,” the court rejected defendant’s challenge to relevancy. Slip Op. at 25. The court then looked at the admission of Exhibit 54, a Facebook message exchange between defendant’s sister and the victim’s sister describing a dispute between defendant and the victim over payment for a gun. The court found no error in admitting this exchange, and noted that North Carolina law “permits declarations of one person to be admitted into evidence for the purpose of showing that another person has knowledge or notice of the declared facts and to demonstrate his particular state of mind.” Id. at 27, quoting State v. Swift, 290 N.C. 383, 393 (1976).
In this Guilford County case, the trial judge improperly expressed personal opinion and injected a discussion of race in remarks to the venire during jury selection. The defendant was charged with fleeing to elude and obtaining the status of habitual felon, along with other traffic offenses. During jury voir dire, a potential juror indicated that his religious beliefs as a non-denominational Baptist prevented him from judging the defendant. In response, the trial court stated:
Okay. I’m going -- we’re going to excuse him for cause, but let me just say this, and especially to African Americans: Everyday we are in the newspaper stating we don’t get fairness in the judicial system. Every single day. But none of us -- most African Americans do not want to serve on a jury. And 90 percent of the time, it’s an African American defendant. So we walk off these juries and we leave open the opportunity for -- for juries to exist with no African American sitting on them, to give an African American defendant a fair trial. So we cannot keep complaining if we’re going to be part of the problem. Now I grew up Baptist, too. And there’s nothing about a Baptist background that says we can’t listen to the evidence and decide whether this gentleman, sitting over at this table, was treated the way he was supposed to be treated and was given -- was charged the way he was supposed to be charged. But if your -- your non-denomina[tional] Baptist tells you you can’t do that, you are now excused. Campbell Slip op. at 3.
The defendant was convicted at trial of the most serious offenses and sentenced to a minimum term of 86 months in prison. On appeal, he argued that his right to an impartial judge was violated, resulting in structural error.
To the extent this argument was not preserved at trial or by operation of law, the defendant sought to invoke Rule 2 of the Rules of Appellate Procedure to obtain review. The State joined the request to suspend the normal preservation rules, and a majority of the court agreed to do so. The State further agreed that the trial judge’s comments amounted to structural error, requiring a new trial without regard to any prejudice to the defendant. The majority of the panel again agreed. In its words:
Here, the trial court’s interjection of race and religion could have negatively influenced the jury selection process. After observing the trial court admonish [the excused juror] in an address to the entire venire, other potential jurors—especially African American jurors—would likely be reluctant to respond openly and frankly to questions during jury selection regarding their ability to be fair and neutral, particularly if their concerns arose from their religious beliefs. Id. at 9.
The convictions were therefore vacated, and the matter remanded for a new trial.
Judge Dillon dissented. He would have declined to invoke Rule 2 and would have held that the trial judge’s comments, while inappropriate, did not amount to structural or otherwise reversible error.
In a first-degree felony murder case, the trial court did not err by denying the defendant’s motion to strike the initial jury panel and the Court of Appeals remanded the case to the trial court for a proper Batson hearing consistent with State v. Hobbs, 374 N.C. 345 (2020). Before jury selection, the clerk provided the State and the defendant with a list of the first 12 prospective jurors to be called from the master jury list – 11 had surnames beginning with the letter “B” and the twelfth had a surname beginning with the letter “C.” After defense counsel’s oral motion on the first day of voir dire to strike the first 12 prospective jurors based on concerns about whether they had been randomly selected in accordance with relevant statutes was denied, defense counsel made a motion in writing on the second day of voir dire to strike the jury panel for lack of randomness. The trial court denied that written motion. On the third day of voir dire, the trial court summarily denied the defendant’s Batson challenge to the State’s exercise of a peremptory strike against an African-American prospective juror. With respect to the denial of the written motion to strike the jury panel, the Court of Appeals determined that even if the mandatory statutory procedure for calling jurors had been violated, the defendant did not show that any such violation was prejudicial because he did not strike any of the first 12 jurors for cause or with a peremptory challenge. With respect to the Batson challenge, the court reviewed Hobbs, other precedent, and the proceedings in the trial court on its way to determining that the trial court erred by summarily denying the challenge without making specific findings of fact and conclusions of law. The court remanded the case with instructions to the trial court to conduct a proper Batson hearing.
Although the trial court erred by failing to follow the statutory procedure for jury selection in G.S. 15A-1214 (specifically, that the prosecutor must pass 12 jurors to the defense), the defendant failed to show prejudice. The court rejected the defendant’s argument that the error was reversible per se.
Following State v. Holden, 346 N.C. 404 (1997), the court held that the trial court erred by refusing to allow the defendant to use a remaining peremptory challenge when a juror revealed mid-trial that she knew one of the State’s witnesses from high school. After re-opening voir dire on the juror, the trial court determined that there was no cause to remove her. The defendant then requested that he be allowed to use his remaining peremptory challenge, but this request was denied. The court reasoned that the trial court has discretion to re-open voir dire even after the jury has been empaneled. If that happens, each side has an absolute right to exercise any remaining peremptory challenges to excuse the juror.
The trial court erred by denying the defendant the opportunity to use his one remaining peremptory challenge after voir dire was reopened. After the jury was impaneled, the judge learned that a seated juror had attempted to contact an employee in the district attorney’s office before impanelment. The trial judge reopened voir dire, questioned the juror, allowed the parties to do so as well, but denied the defendant’s request to remove the juror. The court of appeals noted that after a jury has been impaneled, further challenge of a juror is in the trial court’s discretion. However, once the trial court reopens examination of a juror, each party has an absolute right to exercise any remaining peremptory challenges.
The defendant was tried for various federal crimes in connection with the collapse of Enron. The Court held that the defendant’s Sixth Amendment right to trial by an impartial jury was not violated when the federal district court denied the defendant’s motion to change venue because of pretrial publicity. The Court distinguished the case at hand from previous decisions and concluded that given the community’s population (Houston, Texas), the nature of the news stories about the defendant, the lapse in time between Enron’s collapse and the trial, and the fact that the jury acquitted the defendant of a number of counts, a presumption of juror prejudice was not warranted. The Court went on to conclude that actual prejudice did not infect the jury, given the voir dire process.
In this child sexual assault case, the court rejected the defendant’s argument that a statement made by a prospective juror violated his constitutional right to an impartial jury and constituted plain error. Specifically, the defendant argued that the prospective juror’s statement that her uncle was a local defense attorney who had told her his job was to “get the bad guys off” amounted to a comment on the defendant’s guilt from a reliable source. The court found that the statement in question was generic and did not imply any particular knowledge of the defendant’s case or the possibility that the defendant might be guilty.
Trial court did not err in sustaining the prosecutor’s objection to an improper stake-out question by the defense. Defense counsel wanted to ask the juror in this capital case whether the juror could, if convinced that life imprisonment was the appropriate penalty, return such a verdict even if the other jurors were of a different opinion.
In this Alamance County case, defendant appealed his convictions for driving while impaired (DWI), resisting a public officer, and being intoxicated and disruptive, arguing error in (1) excusing potential jurors for cause, (2) denying defendant’s motion to dismiss the DWI charge, and (3) calculating the appropriate sentence. The Court of Appeals found no error in (1) and (2), but in (3) remanded for resentencing for the resisting a public officer and intoxicated and disruptive offenses.
In April of 2021, police officers noticed a wrecked vehicle in the middle of the road and saw defendant attempting to hide behind a building nearby. Officers eventually arrested defendant, and found a key fob in his pocket that opened the doors of the wrecked vehicle. When defendant came to trial for the charges at superior court, he pleaded guilty to resisting an officer and being intoxicated and disruptive prior to the jury trial. During voir dire, the trial court dismissed two jurors for cause own its own initiative. Defense counsel did not object to either dismissal. Defendant was found guilty of the DWI charge, and the court sentenced defendant for all three charges.
Taking up defendant’s argument (1), the Court of Appeals noted that the two dismissed jurors “both expressed strong emotions against law enforcement based upon their personal experiences with officers.” Slip Op. at 10. The court noted the defendant also did not use all of his peremptory challenges. Because there was no evidence that the empaneled jury was unfair, the court overruled defendant’s argument.
Moving to (2), defendant argued that no evidence showed he operated or owned the wrecked vehicle involved in the DWI charge. The court disagreed, noting there was no direct evidence of defendant operating the car while impaired, but sufficient circumstantial evidence to support the conviction. The officers observed defendant near the wrecked vehicle, found a key fob corresponding to the vehicle in his pocket, and observed him at the Cook-Out intoxicated and with a fresh cut on his forehead.
Finally, in (3) the court noted that defendant was sentenced to 120 days’ confinement for the resisting a public officer and intoxicated and disruptive misdemeanors, while “the maximum, combined sentence allowed by law is 80 days.” Id. at 14. The court remanded to allow resentencing based on the correct calculation of possible confinement.
In an appeal from a conviction obtained in the Eve Carson murder case, the trial court did not abuse its discretion by overruling the defendant’s objections to the State’s questions during jury selection. The defendant objected to questions about whether jurors could consider testimony by witnesses who had criminal records, had received immunity deals for their testimony, and/or were uncharged participants in some of the criminal activities described at trial. The defendant also objected to questions about the jurors’ understanding of and feelings about the substantive law on felony murder.
In a case in which the defendant was charged with various crimes related to his shooting of his pregnant wife, the trial court did not err by limiting the defendant’s voir dire of prospective jurors. The charges against the defendant included first-degree murder of his child, who was born alive after the defendant’s attack on her mother but died one month later. Defense counsel attempted to ask prospective jurors about their views on abortion and when life begins, and whether they held such strong views on those subjects that they would be unable to apply the law. The trial court sustained the State’s objection to this questioning. These questions apparently confused prospective jurors as several inquired about the relevancy of their opinions on abortion. The trial court did not abuse its discretion by sustaining the State’s objection to questioning that was confusing and irrelevant.
The trial court did not improperly limit the defendant’s voir dire questioning with respect to assessing the credibility of witnesses and the jurors’ ability to follow the law on reasonable doubt. Because the trial judge properly sustained the State’s objections to the defendant’s questions, no abuse of discretion occurred. Even if any error occurred, the defendant suffered no prejudice.
The court rejected the defendant’s argument that the trial court erred during jury selection by unduly restricting the defendant’s inquiry into whether prospective jurors could fairly evaluate credibility if faced with evidence that a person had lied in the past. The trial court properly sustained objections to the defendant’s improper stakeout questions and questions tending to indoctrinate the jurors. Additionally, the trial court did not close the door on the defendant’s inquiry into whether the prospective jurors could fairly assess credibility. Rather, the defendant was permitted to ask similar questions in line with the pattern jury instructions, which were an adequate proxy to gauge a prospective juror’s ability to fairly assess credibility at trial.
The trial court did not abuse its discretion by denying the defendant’s request to be provided, prior to voir dire, with the trial court’s intended jury instructions regarding the killing of an unborn fetus. The defendant wanted the instruction to “clarify the law” before questioning of the jurors. The trial court properly instructed the jury on the born alive rule and killing of an unborn fetus was not an issue in the case.
In this non-capital first-degree murder case, the trial court did not abuse its discretion by preventing the defendant from rehabilitating a juror. During jury selection, the State questioned prospective juror Terrance Copling, who said he was familiar with the defendant’s family, did not know the defendant personally, and could be impartial and fair to both sides. However, when pressed by the State, Copling admitted that his connection to the defendant’s father would “probably cause issues.” The State moved to dismiss Copling for cause. The trial court denied the defendant’s request to rehabilitate and upon questioning by the trial court Copling indicated that because of his connection to the defendant’s family he could not be impartial. The trial court allowed the State’s challenge for cause and excused Copling over the defendant’s objection. The defendant also wanted to rehabilitate prospective juror Clapp, believing that the State’s questions had confused her. The trial court rejected this request and excused Clapp for cause. The defendant was convicted and appealed. The court reasoned that in non-capital cases the trial court has discretion regarding whether to allow rehabilitation during voir dire. Here, although the trial court initially told the defendant that rehabilitation was not permissible in a non-capital case, the trial court later allowed for the possibility of rehabilitation and thus did not establish a blanket ruling against all rehabilitation. It further found that the trial court properly exercised its discretion by denying the defendant’s request to rehabilitate jurors.
In this Guilford County case, defendant appealed his conviction for first-degree murder, arguing an abuse of discretion when the trial court declined to reopen voir dire of a juror who expressed concerns about the questions asked to other jurors but not her. The Court of Appeals found no abuse of discretion.
After jury selection but before impaneling of the jury, Juror Number 6 expressed concerns to court deputies that she was not asked the same questions as other jurors during voir dire. One of the deputies brought the issue to the trial court’s attention, and the trial court called the juror in open court to ask her several questions. The court asked the juror “your concern is that some questions were asked of some jurors that perhaps were not asked of other jurors?” to which she replied, “yes.” The trial court went on to ask “[a]nd whatever this information is that you were not provided perhaps because the specific question was not asked, in your opinion, does not affect your ability to be fair; is that correct?” to which the juror responded “I don’t think so.” Slip Op. at 4. After this exchange, the trial court impaneled the jury.
Examining the trial court’s actions, the Court of Appeals first noted that the trial court possessed discretion to conduct an inquiry into the juror’s comments, and turned to State v. Boggess, 358 N.C. 676 (2004), and State v. Adams, 285 N.C. App. 379 (2022) to establish the standards applicable to the inquiry. Looking at the substance of the inquiry, the court explained that “Juror Number 6 never expressed doubts about her impartiality, ability to serve as a juror, find the facts, and to fairly apply the law.” Slip Op. at 9. Defense counsel also failed to make any further request, as the court explained:
The trial court provided counsel on both sides with the opportunity to request further voir dire, and both parties’ counsel expressly declined the opportunity. Defense counsel also failed to request additional voir dire when asked by the trial court and waived the right to challenge the issue on appeal.
Id. As a result, the court found no abuse of discretion in the actions of the trial court.
Following State v. Holden, 346 N.C. 404 (1997), the court held that the trial court erred by refusing to allow the defendant to use a remaining peremptory challenge when a juror revealed mid-trial that she knew one of the State’s witnesses from high school. After re-opening voir dire on the juror, the trial court determined that there was no cause to remove her. The defendant then requested that he be allowed to use his remaining peremptory challenge, but this request was denied. The court reasoned that the trial court has discretion to re-open voir dire even after the jury has been empaneled. If that happens, each side has an absolute right to exercise any remaining peremptory challenges to excuse the juror.
The trial court committed reversible error by refusing to allow the defendant, after the jury was impanelled, to exercise a remaining peremptory challenge to excuse a juror who had lunch with a friend who was a lawyer in the district attorney's office. Citing State v. Holden, 346 N.C. 404 (1997), and State v. Thomas, 195 N.C. App. 593 (2009), the court held that because the trial court reopened voir dire and because the defendant had not exhausted all of his peremptory challenges, the trial court was required to allow the defendant to exercise a peremptory challenge to excuse the juror. After a lunch break at trial, defense counsel reported that he had seen juror number 8 having lunch with a lawyer from the district attorney's office. Counsel said that if he had known of the juror’s connection with that office, he "probably would have used one of [his] strikes against them." The jurors were returned to the courtroom and asked whether any of them had lunch with a member of the district attorney's office. Juror number 8 indicated that he had done so, but that they had not discussed the case. After removing the other jurors, the trial judge allowed both sides to question juror number 8. Thereafter defense counsel asked that the juror be removed, noting that he had two strikes left. The trial court denied the motion. The court noted that after a jury has been impaneled, further challenge of a juror is a matter within the trial court's discretion. However, when the trial court reopens voir dire, each party has the absolute right to exercise any remaining peremptory challenges. In this case, because the trial court reopened voir dire, the defendant had an absolute right to exercise his remaining challenges.
The defendant was indicted for multiple charges of armed robbery, kidnapping, possession of firearm by a felon, assault with a deadly weapon with intent to kill, and assaulting a law enforcement officer with a firearm. The charges arose out of the robbery of an illegal poker game and the intended robbery of a second game. The second game was a set-up by one of the victims from the first game, who called 911 when the robbers arrived. Officers responding to the 911 call encountered the defendant in a car parked outside the office complex where the fake game was to be held, and a shootout ensued. The defendant was apprehended after a low-speed chase involving several law-enforcement agencies, and went to trial on all charges. Three of the charges were dismissed at trial by the court, and the jury acquitted the defendant of two others, but he was convicted of the remaining charges and received thirteen consecutive judgments totaling 872 to 1,203 months incarceration. The defendant appealed his conviction. A more detailed summary of the facts of this case and a discussion of the Court of Appeals’ holding regarding the application of the statutory felony disqualification provisions to the defendant’s self-defense claims can be found here: John Rubin, “A Lose-Lose Situation for ‘Felonious’ Defendants Who Act in Self-Defense,” N.C. Criminal Law Blog, May 1, 2018.
The Court of Appeals unanimously affirmed the conviction, but the state Supreme Court granted discretionary review to consider whether the trial court erred by restricting the defendant’s voir dire of prospective jurors on issues of race, implicit bias, and police shootings of black men. Concluding that the “the trial court did abuse its discretion and that the trial court’s improper restrictions on defendant’s questioning during voir dire did prejudice defendant,” the higher court reversed the conviction.
During voir dire, the trial court sustained objections to the defendant’s attempts to ask prospective jurors about “the possibility that they harbored racial biases against African Americans” as well as “their awareness of a case that had recently occurred in Charlotte where a police officer shot and killed an unarmed black man.” On appeal, the defense argued that the questions were relevant to determine whether jurors could be unbiased and fair, while the state argued that the questions were an improper attempt to “stake out” the jurors and secure a forecast of how they would vote. The Supreme Court acknowledged that trial courts have broad discretion to restrict the manner and extent of questioning prospective jurors, but concluded that the trial court erred in this case when it “flatly prohibited” and “categorically denied” all questions about race, bias, and officer shootings of black men. The proposed questions were not an attempt to stake out the jurors, but rather an attempt to determine if any jurors had opinions or biases that would impact their ability to decide the facts of the case. Additionally, since the case involved a dispute over whether the defendant or the officers fired first, as well as what inferences to draw from the defendant’s refusal to immediately surrender after the shooting, the error was prejudicial because it impacted the defendant’s ability to identify and challenge any jurors who “might struggle to fairly and impartially determine whose testimony to credit, whose version of events to believe, and, ultimately, whether or not to find defendant guilty.” Because it held that the exclusion of these issues during voir dire was prejudicial error warranting reversal, the Supreme Court did not reach the remaining issue of whether there must be a causal nexus between the use of defensive force and the felonious conduct that would bar a self-defense claim under G.S. 14-51.4.
Justice Davis dissented, joined by Justices Newby and Morgan. The dissent would have held that the limited series of questions rejected by the trial court did not establish that all inquiry into issues of potential juror bias was prohibited, and also would have found that the only reason offered at trial for these questions was to gauge how jurors might assess the defendant’s state of mind while fleeing the scene, rather than for the purpose of identifying potential bias on the part of the jurors as argued on appeal. The majority responded that both issues were addressed by viewing the questions in context and considering the entire record of the voir dire.
The court rejected the defendant’s argument that the trial court erred during jury selection by unduly restricting the defendant’s inquiry into whether prospective jurors could fairly evaluate credibility if faced with evidence that a person had lied in the past. The trial court properly sustained objections to the defendant’s improper stakeout questions and questions tending to indoctrinate the jurors. Additionally, the trial court did not close the door on the defendant’s inquiry into whether the prospective jurors could fairly assess credibility. Rather, the defendant was permitted to ask similar questions in line with the pattern jury instructions, which were an adequate proxy to gauge a prospective juror’s ability to fairly assess credibility at trial.
Although declining to reach the merits of the defendant’s claim that the trial court erred in handling a juror’s inquiry about whether jurors may question witnesses, the court noted that whether to allow jurors to question witnesses is within the sound discretion of the trial court. Although the trial court may allow jurors to ask witnesses questions, the better practice is for the jury to submit written questions to the trial judge, who then has a bench conference with the attorneys, hearing any objections that they might have. The judge would then question the witnesses.
In this first-degree murder case, the defendant, who was white, was charged with shooting through a window in his garage door and killing the victim, who was black. The victim was one of a group of about 20 people who had briefly gone to a party at a nearby house, and he was shot and killed when he ran through a portion of the defendant’s yard. The defendant admitted to the shooting, but argued that he was acting in self-defense and defense of habitation. At trial, the defendant testified that he had yelled at the group to “shut the f— up” and they yelled back “f— you; go inside; white boy.” The state’s evidence included a recorded 911 call in which the defendant reported there were “hoodlums” racing in the street (the defendant later admitted this was false) and stated that he was “going to kill him,” he was “locked and loaded,” and he would “secure the neighborhood.”
During closing arguments, the prosecutor stated that the issue of race was “the elephant in the room” since it had been raised during jury selection and alluded to during the defendant’s evidence and closing argument. The defendant objected, but the trial court overruled the objection and allowed the prosecutor to argue that if the defendant’s fear of the victim was based on the victim’s race, then it was not a reasonable fear that would support a claim of self-defense: “Now, reasonableness and that fear, a fear based out of hatred or a fear based out of race is not a reasonable fear, I would submit to you. That’s just hatred. And I’m not saying that’s what it is here, but you can consider that. And if that’s what you think it was, then maybe it’s not a reasonable fear.” The defendant was convicted and appealed. Citing State v. Jones, 355 N.C. 117 (2002), the Court of Appeals held that the prosecutor’s statements regarding race were an improper appeal to bias and reversed the conviction. [Note: For further discussion of the Court of Appeals decision, see Emily Coward, “State v. Copley: Addressing Race During Closing Argument,” N.C. Criminal Law Blog (June 18, 2019).]
The North Carolina Supreme Court reversed the Court of Appeals, finding that neither the majority nor the dissent had conducted a “complete prejudice analysis” in the case. The higher court acknowledged Jones but explained that it was an inadequate basis for comparison because the challenged statements in Jones arose during the closing arguments in the sentencing phase of a death penalty case. To properly evaluate prejudice during the guilt-innocence phase of a non-capital case, the reviewing court must also consider: (i) the other evidence of the defendant’s guilt; and (ii) the remainder of the closing argument. Assuming without deciding that the challenged statements were improper, the defendant failed to establish prejudice in this case. First, viewing the comments about race “in the context of the entire closing,” the court found that the comments were only a small part of an argument that primarily focused on the defendant’s lack of credibility, the strong evidence of his guilt, and the absence of a basis for claiming self-defense, which undermined a finding of prejudice. Second, in light of all the other “compelling evidence” of the defendant’s guilt in this case (e.g., incriminating statements recorded on the 911 call, firing through a closed garage door, challenges to the defendant’s credibility, and his admission to the shooting), the defendant failed to meet his burden of demonstrating a reasonable possibility that the jury would have acquitted him in the absence of the prosecutor’s comments. The appellate court’s decision was reversed, and the case was remanded for ruling on the defendant’s remaining arguments.
Justice Earls wrote separately in concurrence to address the unresolved issue of whether the prosecutor’s comments were improper. Derogatory or inflammatory statements appealing to bias or prejudice are improper, but neutral and non-derogatory statements regarding race are permissible if they bear a material relevance to an issue in the case (such as motive). Justice Earls concluded that the prosecutor’s statements in this case were not an appeal to racial animus; instead, they addressed relevant issues of race that had arisen during jury selection and the defendant’s testimony. Therefore, it was “proper and permissible for the prosecutor to urge the jury not to allow any racial considerations or stereotypical assumptions about young black men to impact their ultimate decision about what was reasonable fear in these circumstances.”
The trial court did not err by failing to intervene ex mero motu during the State’s closing argument. At issue was the prosecutor’s reference to the defendant’s gang ties. Here, when the defendant called two codefendants as witnesses, both testified that they were gang members and one admitted that he and the defendant belonged to the same gang. The prosecutor’s statements merely commented on the evidence that had been presented. Also, the prosecutor’s argument did not center on gang involvement. The prosecutor’s only reference to gang involvement was in one paragraph of her closing argument. As such the prosecutor’s statement did not render the trial fundamentally unfair.
In a rape case, the trial court was not required to intervene ex mero motu when the State asserted in closing: “What happened . . . is no different than a hunter in the field, a beast in the field sitting [sic] a prey, stalking the prey, learning the prey, and at some point in time, eventually taking what he wants, and that’s what happened here.”
In a case involving attempted murder and other charges, the prosecutor’s reference to the victims as sheep and the defendant as a “predator” did not require the trial court to intervene ex mero motu. However, the court stated that comparisons between criminal defendants and animals are strongly disfavored.
The prosecutor’s statements during closing argument were not so grossly improper as to require the trial court to intervene ex mero motu. Although disapproving a prosecutor’s comparisons between criminal defendants and animals, the court concluded that the prosecutor’s statements equating the defendant’s actions to a hunting tiger were not grossly improper; the statements helped to explain the State’s theory of premeditated and deliberate murder.
In this felony death by vehicle case the prosecutor did not improperly appeal to the jury’s passion and prejudice requiring the trial court to intervene ex mero motu. The prosecutor asserted that the jury “can send a message” with its verdict and told the jury that it was “the moral voice and conscience of this community.” Neither of these arguments are improper.
In this Vance County case, defendant appealed his convictions for attempted first-degree sexual offense with a child, statutory rape of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective assistance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.
Defendant’s convictions relate to inappropriate sexual conduct with his minor cousin from 2007 to 2012; the victim did not report the sexual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of molestation and rape that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.
Reviewing defendant’s motion to dismiss the attempted statutory sexual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at sexual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the home, but the court noted that defendant had raped the victim on several other occasions, supporting the inference that he intended to do so during this time as well.
Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of sexual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar sexual conduct with a victim’s sibling to show “defendant’s intent, motive and on-going plan to gratify his sexual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective assistance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vouching for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vouching for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.
Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.
Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.
The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments.
(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.
(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.
(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.
(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.
(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.
(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.
(1) During closing statements to the jury, the prosecutor did not impermissibly comment on the defendant’s failure to take the stand. In context, the prosecutor’s statements summarized the evidence before the jury and asserted that no evidence was presented to support defense counsel’s assertions in his opening statement. Even if the prosecutor’s statements constituted an impermissible comment on the defendant’s right to remain silent, the error was harmless beyond a reasonable doubt. (2) The court rejected the defendant’s argument that the prosecutor improperly misled the jury during closing argument by asserting facts not in evidence. The defendant failed to show any gross impropriety that was likely to influence the verdict. (3) The defendant failed to show gross impropriety warranting intervention ex mero motu to when the prosecutor handled a rifle in evidence by pointing it at himself. The defendant argued that the prosecutor’s actions inflamed the jurors’ emotions and causing them to make a decision based on fear (4) Notwithstanding these conclusions, the court noted that it found the prosecutor’s words and actions “troublesome,” stating: “the prosecutor flew exceedingly close to the sun during his closing argument. Only because of the unique circumstances of this case has he returned with wings intact.” It went on to emphasize that a prosecutor “has the responsibility of the Minister of Justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict” (quotation omitted).
In this sexual assault trial, the prosecutor’s comment during closing argument was not a comment on the defendant’s failure to testify. The prosecutor stated: “There are only two people in this courtroom as we sit here today that actually know what happened between the two people, and that’s [the victim] and the defendant.” The comment was made in the context of an acknowledgement that while the SANE nurse who examined the victim testified to abrasions and tears indicative of vaginal penetration, the nurse could not tell if the victim’s vagina was penetrated by a penis. The prosecutor went on to recount evidence that semen containing the defendant’s DNA was found on the victim’s vaginal swabs and on cuttings from her panties. The comment emphasized the limitations of the physical evidence and was not a comment on the defendant’s decision not to testify.
The prosecutor did not improperly refer to the defendant’s failure to testify but rather properly commented on the defendant’s failure contradict or challenge the State’s evidence.
The prosecutor’s comments during closing did not constitute a reference to the defendant’s failure to testify; the comments responded to direct attacks on the State’s witnesses and pertained to the defendant’s failure to produce witnesses or exculpatory evidence.
The prosecutor did not improperly comment on the defendant’s failure to testify by pointing out to the jury in closing that the defense had not put on any mental health evidence as forecasted in its opening statement; however, the court disapproved of the prosecutor’s statement that this constituted “[b]roken promises from the defense.” The prosecutor did not comment on the defendant’ failure to testify by stating in closing that there was no evidence regarding accident.
The defendant was convicted of attempted first-degree murder for shooting a law enforcement officer who was attempting to serve a warrant for the defendant’s arrest for violating probation. During closing argument, the prosecutor stated:
[You m]ight ask why would [defendant] plead not guilty? I contend to you that the defendant is just continuing to do what he’s done all along, refuse to take responsibility for any of his actions. That’s what he does. He believes the rules do not apply to him.
. . .
[Defendant’s] not taking responsibility today. There’s nothing magical about a not guilty plea to attempted murder. He’s got to admit to all the other charges. You see them all on video. The only thing that’s not on video is what’s in his head. He also knows that those other charges carry less time. There’s the magic.
Slip op. at ¶ 8.
The defendant did not object to the State’s closing argument, and he was convicted of attempted murder and other charges. On appeal, the defendant argued that the trial court’s failure to intervene during the State’s improper argument was reversible error. The majority of the Court of Appeals panel agreed, holding that the prosecutor’s commentary on defendant’s decision to plead not guilty was so unfair it violated defendant’s due process rights and ordering a new trial. The dissenting judge would have required a showing of prejudice by defendant because he failed to object at trial. Based on the record, the dissenting judge would have held that the State’s closing argument was improper, but that defendant was not prejudiced by the error. The State appealed on the basis of the dissenting opinion, conceding that the argument was improper but arguing that it was not prejudicial.
On appeal, the Supreme Court held that the Court of Appeals erred by failing to analyze prejudice. The high court undertook this review considering the entirety of the closing argument, the evidence, and the jury instructions. The Court noted that the prosecutor made the improper remarks in the context of explaining the intent required for attempted first-degree murder and after emphasizing the deliberate nature of the shooting. The Court characterized the improper argument as a “small portion” of the State’s closing argument and not the “primary” or “major focus.” Slip op. at ¶ 14. The Court noted that the State presented evidence that the defendant told his relatives that he would rather kill himself or be killed by law enforcement than go back to jail. Witnesses testified that the defendant’s gun was loaded with bullets designed to cause more serious injuries. After the officer identified himself, the defendant turned around and fired at the officer. The shootout between the defendant and the officer was captured on hotel surveillance video, which was played for the jury at trial. The Court reasoned that between the video and testimony from eyewitnesses who corroborated the State’s account of events, “‘virtually uncontested’” evidence of the defendant’s guilt was submitted to the jury. Slip op. at ¶ 15. In addition, the trial court instructed the jury that the defendant’s decision to plead not guilty could not be taken as evidence of his guilt, that the defendant was presumed innocent, and that the State was required to prove the defendant’s guilt beyond a reasonable doubt. Finally, the jury asked to re-watch the surveillance video of the shooting during its closing argument. The Court stated that this tended “to show that the jury based its decision on the evidence rather than on passion or prejudice resulting from the prosecutor’s improper argument.” Slip op. at ¶ 16. For these reasons, the Court concluded that the defendant was not prejudiced by the prosecutor’s “undeniably improper” closing argument. Slip. op. at ¶ 17. The Supreme Court reversed the Court of Appeals and remanded for consideration of remaining issues.
The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments.
(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.
(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.
(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.
(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.
(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.
(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.
In this drug trafficking case, the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu during the State’s closing argument. During those arguments, the prosecutor, without objection, made references to the defendant’s right to a jury trial and noted that the defendant had exercised that right despite “[a]ll of the evidence” being against him. The defendant has a constitutional right to plead not guilty and be tried by a jury. Reference by the State to a defendant’s failure to plead guilty violates the defendant’s constitutional right to a jury trial. Here, the prosecutor’s comments were improper. The court stated: “Counsel is admonished for minimalizing and referring to Defendant’s exercise of his right to a trial by jury in a condescending manner.” However, because the evidence of guilt was overwhelming the defendant failed to show that the comments were so prejudicial as to render the trial fundamentally unfair.
In this felony death by vehicle case, the prosecution did not incorrectly state the standard for impairment in jury argument. The defendant asserted that the prosecutor’s statements suggested that the jury could find the defendant guilty merely if impairing substances were in his blood. The court disagreed finding that the when viewed in totality, the prosecutor’s statements made clear that the defendant could only be convicted if he was, in fact, legally impaired.
Although the prosecutor improperly argued to the jury in this armed robbery case that it did not matter whether a shotgun in question was loaded for purposes of determining whether it was a dangerous weapon, the defendant was not prejudiced by this argument where the trial judge properly instructed the jury on this element.
Reversing a unanimous decision of the Court of Appeals in this murder case, the court held that while certain statements made by the prosecutor in his closing argument were improper, the arguments did not amount to prejudicial error. The ADA opened closing arguments by saying “Innocent men don’t lie.” During his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times. The prosecutor also made negative comments regarding defense counsel and regarding a defense expert witness. Regarding the defense expert, the prosecutor argued that the expert made more than $300,000 per year working for defendants, that he was not impartial and that “he’s just a $6,000 excuse man.” Defense counsel did not object and the trial court did not intervene ex mero motu. The Court of Appeals held that the trial court erred by failing to intervene ex mero motu, concluding that the defendant’s entire defense was predicated on his credibility and on the credibility of his expert witness. The court reversed. It began by holding that there was “no doubt” that the prosecutor’s statements directed at the defendant’s credibility were improper. However it went on to hold that the statements were not so grossly improper as to result in prejudice, noting that the evidence supports the inference that the defendant’s testimony lacked credibility. For example, the defendant gave six different versions of the shooting, five to the police and one to the jury. The court concluded: “While we do not approve of the prosecutor’s repetitive and dominant insinuations that defendant was a liar, we do believe sufficient evidence supported the premise that defendant’s contradictory statements were untruthful.” The court also found that the prosecutor’s assertion that the defense expert was “just a $6,000 excuse man” also was improper in that it implied the witness was not trustworthy because he was paid for his testimony. While a lawyer may point out potential bias resulting from payment, it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. The court also noted that the prosecutor’s use of the word “excuse” amounts to name-calling, “which is certainly improper.” Finally, the court agreed that the prosecutor improperly argued that defense counsel should not be believed because he was paid to represent the defendant. Although ultimately concluding that it was not reversible error for the trial court to fail to intervene ex mero motu, the court added:
Nonetheless, we are disturbed that some counsel may bepurposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism. Our concern stems from the fact that the same closing argument language continues to reappear before this Court despite our repeated warnings that such arguments are improper. . . . Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made.
In this murder case, the prosecutor’s statement that the defendant “can’t keep her knees together or her mouth shut” was “improperly abusive.” The defendant was charged with murdering her husband, and the State’s evidence indicated that she was having an affair with her therapist. However, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial--a “drastic remedy”--on grounds of the prosecutor’s improper statements. The prosecutor’s statements that the defendant had lied to the jury while testifying at trial were clearly improper, as was the prosecutor’s statement referring to the defendant as a narcissist. However, considering the overwhelming evidence of guilt, the prosecutor’s remarks did not render the trial and conviction fundamentally unfair and thus the trial court did not err by failing to intervene ex mero motu.
Where the defendant opened the door to the credibility of a defense witness, the prosecutor’s possibly improper comments regarding the witness’s credibility were not so grossly improper as to require intervention by the trial court ex mero motu. Among other things, the prosecutor stated: “that man would not know the truth if it came up and slapped him in the head.”
Although reversing on other grounds, the court characterized the prosecutor’s closing argument as “grossly improper.” The prosecutor repeatedly engaged in abusive name-calling of the defendant and expressed his opinion that defendant was a liar and was guilty. The entire tenor of the prosecutor’s argument was undignified and solely intended to inflame the passions of the jury. The court noted that had the trial court not issued a curative instruction to the jury, it would have been compelled to order a new trial on this basis.
The prosecutor’s characterization of the defendant’s statements as lies, while “clearly improper,” did not require reversal. The court noted that the trial court’s admonition to the prosecutor not to so characterize the defendant’s statements neutralized the improper argument.
The trial court did not err by failing to intervene ex mero motu when, in closing argument, the prosecutor suggested that the defendant was lying. The comments were not so grossly improper as to constitute reversible error.
Reversing a unanimous decision of the Court of Appeals in this murder case, the court held that while certain statements made by the prosecutor in his closing argument were improper, the arguments did not amount to prejudicial error. The ADA opened closing arguments by saying “Innocent men don’t lie.” During his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times. The prosecutor also made negative comments regarding defense counsel and regarding a defense expert witness. Regarding the defense expert, the prosecutor argued that the expert made more than $300,000 per year working for defendants, that he was not impartial and that “he’s just a $6,000 excuse man.” Defense counsel did not object and the trial court did not intervene ex mero motu. The Court of Appeals held that the trial court erred by failing to intervene ex mero motu, concluding that the defendant’s entire defense was predicated on his credibility and on the credibility of his expert witness. The court reversed. It began by holding that there was “no doubt” that the prosecutor’s statements directed at the defendant’s credibility were improper. However it went on to hold that the statements were not so grossly improper as to result in prejudice, noting that the evidence supports the inference that the defendant’s testimony lacked credibility. For example, the defendant gave six different versions of the shooting, five to the police and one to the jury. The court concluded: “While we do not approve of the prosecutor’s repetitive and dominant insinuations that defendant was a liar, we do believe sufficient evidence supported the premise that defendant’s contradictory statements were untruthful.” The court also found that the prosecutor’s assertion that the defense expert was “just a $6,000 excuse man” also was improper in that it implied the witness was not trustworthy because he was paid for his testimony. While a lawyer may point out potential bias resulting from payment, it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. The court also noted that the prosecutor’s use of the word “excuse” amounts to name-calling, “which is certainly improper.” Finally, the court agreed that the prosecutor improperly argued that defense counsel should not be believed because he was paid to represent the defendant. Although ultimately concluding that it was not reversible error for the trial court to fail to intervene ex mero motu, the court added:
Nonetheless, we are disturbed that some counsel may bepurposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism. Our concern stems from the fact that the same closing argument language continues to reappear before this Court despite our repeated warnings that such arguments are improper. . . . Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made.
During closing arguments at the guilt-innocence phase of this capital murder trial, the State improperly accused defense counsel of suborning perjury. The prosecutor argued in part: “Two years later, after [the defendant] gives all these confessions to the police and says exactly how he killed [the victims] . . . the defense starts. The defendant, along with his two attorneys, come together to try and create some sort of story.” Although the trial court sustained the defendant’s objection to this statement it gave no curative instruction to the jury. The prosecutor went to argue that the defendant lied on the stand in cooperation with defense counsel. These latter statements were grossly improper and the trial court erred by failing to intervene ex mero motu.
Prosecutor’s comment during jury argument was improper. The comment attacked the integrity of defense counsel and was based on speculation that the defendant changed his story after speaking with his lawyer.
Affirming the Court of Appeals in this murder case, the court held that the prosecutor’s closing argument exaggerating the defendant’s likelihood of being released from civil commitment upon a finding of not guilty by reason of insanity and constituted prejudicial error requiring a new trial. At trial the defendant asserted the insanity defense. At the charge conference, the prosecutor asked the trial court if he could comment on the civil commitment procedures that would apply if the defendant was found not guilty by reason of insanity. The trial court agreed to permit the comment, but cautioned the prosecutor not to exaggerate the defendant’s chance of being released after 50 days. During closing arguments the prosecutor stated that it was “very possible that in 50 days, if she shows by a preponderance of the evidence that she is not a threat to anyone else or herself, she will be back home.” The defendant unsuccessfully objected to this comment and the prosecutor continued, arguing “She very well could be back home in less than two months.” The court began by rejecting the State’s argument that because the defendant failed to object to the prosecutor’s second statement, that statement should be reviewed under a stricter standard of review. The court concluded that the second statement was not separate and distinct from the first. Turning to the propriety of the prosecutor’s argument, it noted that if the jury finds a defendant not guilty by reason of insanity, the trial court must order the defendant civilly committed. Within 50 days of commitment, the trial court must provide the defendant with a hearing. If at that time the defendant shows by a preponderance of the evidence that she no longer has a mental illness or is dangerous to others the court will release the defendant. Clear, cogent and convincing evidence that an individual has committed homicide in the relevant past is prima facie evidence of dangerousness to others. Here, the evidence did not support the prosecutor’s assertion that if the defendant was found not guilty by reason of insanity it is “very possible” that she would be released in 50 days. Instead, it demonstrated that the defendant will suffer from mental illness and addiction “for the rest of her life” and that her “risk of recidivism would significantly increase if she were untreated and resumed her highly unstable lifestyle.” Additionally, the homicide for which she was convicted is prima facie evidence of dangerousness to others. Therefore the only reasonable inference from the evidence is that it is highly unlikely that the defendant would be able to demonstrate by a preponderance of the evidence within 50 days that she no longer is dangerous to others.
In this capital case, the court rejected the defendant’s argument that the trial court abused its discretion by denying his requests for a mistrial because of two statements made by the State during closing arguments at the guilt phase of the trial. During the investigation of the case, the defendant authorized defense counsel to reveal the location of the victim’s body, in hopes of receiving a plea offer or perhaps the possibility of arguing for mitigating circumstances at a possible later capital trial. The defendant and the lawyers agreed that the information would be conveyed to the police but that its source would not be disclosed. The lawyers carried out this agreement in making their disclosure to law enforcement. During closing argument at trial, the prosecutor noted in part that the victim’s body was found “where the defendant’s lawyer said he put the body.” Later, the prosecutor asserted, “And his defense attorney telling law enforcement where to look for the body puts him there.” The court found that the second statement was not improper. Evidence that the information of the victim’s location was conveyed to law enforcement by defense counsel was properly admitted by the trial court and this evidence permitted reasonable inferences to be drawn that were incriminating to the defendant, specifically that the defendant was the source of the information and had been to the location. The prosecutor’s first statement however was improper. This statement was couched as an assertion of fact which was not an accurate reflection of the evidence. However, the statement did not require a mistrial. The court stated: “this sole misstatement of that evidence did not run far afield of what was permissible.”
In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.
The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.
Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.
Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”
The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.
The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.
The court concluded with this note:
While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.
In this DWI case the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu to statements made by the prosecutor in closing argument. The court found the defendant’s argument to be “meritless at best,” noting that the statements at issue were consistent with the evidence presented and did not delve into conjecture or personal opinion. Even if the remarks were improper, the defendant failed to show prejudice.
The trial court abused its discretion when it allowed the prosecutor, in closing argument and over the defendant’s objection, to compare the defendant’s impaired driving case to a previous impaired driving case litigated by the prosecutor. The prosecutor discussed the facts of the case, indicated that the jury had returned a guilty verdict, and quoted from the appellate decision finding no reversible error. Reversed for a new trial.
The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor asserted that defense counsel’s mitigation case was a “lie” based on “half-truths” and omitted information.
Reversing a unanimous decision of the Court of Appeals in this murder case, the court held that while certain statements made by the prosecutor in his closing argument were improper, the arguments did not amount to prejudicial error. The ADA opened closing arguments by saying “Innocent men don’t lie.” During his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times. The prosecutor also made negative comments regarding defense counsel and regarding a defense expert witness. Regarding the defense expert, the prosecutor argued that the expert made more than $300,000 per year working for defendants, that he was not impartial and that “he’s just a $6,000 excuse man.” Defense counsel did not object and the trial court did not intervene ex mero motu. The Court of Appeals held that the trial court erred by failing to intervene ex mero motu, concluding that the defendant’s entire defense was predicated on his credibility and on the credibility of his expert witness. The court reversed. It began by holding that there was “no doubt” that the prosecutor’s statements directed at the defendant’s credibility were improper. However it went on to hold that the statements were not so grossly improper as to result in prejudice, noting that the evidence supports the inference that the defendant’s testimony lacked credibility. For example, the defendant gave six different versions of the shooting, five to the police and one to the jury. The court concluded: “While we do not approve of the prosecutor’s repetitive and dominant insinuations that defendant was a liar, we do believe sufficient evidence supported the premise that defendant’s contradictory statements were untruthful.” The court also found that the prosecutor’s assertion that the defense expert was “just a $6,000 excuse man” also was improper in that it implied the witness was not trustworthy because he was paid for his testimony. While a lawyer may point out potential bias resulting from payment, it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. The court also noted that the prosecutor’s use of the word “excuse” amounts to name-calling, “which is certainly improper.” Finally, the court agreed that the prosecutor improperly argued that defense counsel should not be believed because he was paid to represent the defendant. Although ultimately concluding that it was not reversible error for the trial court to fail to intervene ex mero motu, the court added:
Nonetheless, we are disturbed that some counsel may bepurposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism. Our concern stems from the fact that the same closing argument language continues to reappear before this Court despite our repeated warnings that such arguments are improper. . . . Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made.
The court rejected the capital defendant’s argument that the trial court erred by failing to intervene ex mero motu during the State’s argument in the guilt-innocence phase. The defendant argued that the trial court should have intervened when the prosecutor commented about a defense expert on diminished capacity. Although the court found the prosecutor’s statement that the expert’s testimony was “wholly unbelievable” to be error, that error was not so egregious as to warrant intervention on the court’s own motion. Similarly, the prosecutor’s comment about the “convenience” of the expert’s testimony (she opined that the defendant suffered from diminished capacity for a portion of time that coincided with when the crime occurred), was not so grossly improper as to require intervention ex mero motu.
The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor used the words “laugh, laugh” when impeaching the credibility of a defense expert.
(1) No gross impropriety occurred in closing argument in the guilt-innocence phase of a capital trial when the prosecutor (a) improperly expressed his personal belief that there was overwhelming evidence of guilt; (b) improperly injected his personal opinion that a stab wound to the victim’s neck showed intent. (2) The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor improperly injected his personal beliefs, repeatedly using the words, “I think” and “I believe.” (3) The collective impact of these arguments did not constitute reversible error.
The defendant was convicted of taking indecent liberties with a minor, charges that arose from sexual assaults against his daughters. During closing argument, the prosecutor said that the defendant’s excuse for possibly touching his daughters’ breasts—that he lacked feeling in his hands and fingers—was “ridiculous.” (Slip op. at ¶ 10). He explained that the defendant could adjust a microphone and open candy wrappers, which defendant demonstrated during the trial. The prosecutor also stated that the fight between the defendant and one of his daughters over her phone occurred because “he wanted to get in, and I guess see what was in there, what those pictures were, what those text messages were.” Id. He explained, “it makes a lot more sense when you put it in the context of a father who has a sexual attraction to his daughters.” Id. The defendant (who did not object to these statements when they were made) argued on appeal that the trial court erred by failing to intervene on its own motion to correct these statements.
The Court of Appeals rejected the defendant’s argument. The Court characterized the “ridiculous excuse” statements as a small part of an otherwise proper argument that the jury should not believe the defendant’s claim that a lack of feeling in his fingers prevented him from knowing if he had touched his daughters’ breasts. Additionally, the Court noted that the prosecutor used the word “ridiculous” only twice in his lengthy closing argument. The Court said that although the prosecutor should not have expressed his personal belief that the defendant’s testimony was false, his remarks were not so grossly improper as to render the proceeding fundamentally unfair.
The Court further determined that it was not improper for the prosecutor to argue that the defendant wanted to access his daughter’s phone to look at inappropriate photos. This was a reasonable inference based upon the evidence introduced at trial. Because the argument was not improper, the trial court was not required to intervene.
The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments.
(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.
(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.
(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.
(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.
(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.
(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.
In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.
The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.
Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.
Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”
The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.
The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.
The court concluded with this note:
While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.
In this murder case, the trial court did not err by failing to intervene ex mero motu during the State’s closing argument. The defendant argued that the prosecutor’s closing arguments injected the prosecutor’s personal beliefs, appealed to the jury’s passion, and led the jury away from the evidence. The court determined that the challenged portions of the argument, when taken in context, draw reasonable inferences based on the defendant’s inconsistent statements and point out inconsistencies in his testimony. The court determined that statements like “give me a break” and “come on” do not reflect the prosecutor’s personal opinion but rather point out inconsistencies in the defendant’s testimony. With respect to the prosecutor’s statement that he would “respectfully disagree” with the jury if they decided to find that the defendant killed the victim in self-defense, even if this argument was improper, it was not grossly so as to warrant the trial court’s intervention ex mero motu.
In this DWI case the court rejected the defendant’s argument that the trial court erred by failing to intervene ex mero motu to statements made by the prosecutor in closing argument. The court found the defendant’s argument to be “meritless at best,” noting that the statements at issue were consistent with the evidence presented and did not delve into conjecture or personal opinion. Even if the remarks were improper, the defendant failed to show prejudice.
(1) The prosecutor’s statement, which was clarified after objection, was not in violation of the law or calculated to mislead or prejudice the jury. After the trial court sustained defense counsel’s objection to the prosecutor’s statement about the victim, “I think she is telling the truth,” the prosecutor clarified: “I’m just arguing they should think she’s telling the truth. I’m sorry, Judge, I misstated. You should be able to say, after watching her testify, that you think she is telling the truth.” (2) The court rejected the defendant’s argument that the trial court erred by failing to give a curative instruction to the jury after sustaining defense counsel’s objection, where the defendant had not asked for such an instruction. Additionally, the trial court had instructed the jury at the outset of the trial that when the court sustains an objection to a question, the jury must disregard the question and e answer. (3) The trial court did not err by failing to intervene ex mero motu when the prosecutor made his clarifying statement.
In this murder case, the trial court did not abuse its discretion by overruling the defendant’s objections to the State’s closing argument. Although the prosecutor’s remarked that the case was one of “the most gruesome and violent murders this community has ever seen,” the comment related directly to the State’s theory of the case--that the defendant acted intentionally and with premeditation and deliberation.
The trial court did not err by failing to intervene ex mero motu when, in a triple homicide case, the prosecutor argued, among other things, “If that . . . isn’t murder, I don’t know what is” and “I know when to ask for the death penalty and when not to. This isn’t the first case, it’s the ten thousandth for me.”
Reversing a unanimous decision of the Court of Appeals in this murder case, the court held that while certain statements made by the prosecutor in his closing argument were improper, the arguments did not amount to prejudicial error. The ADA opened closing arguments by saying “Innocent men don’t lie.” During his argument, the prosecutor used some variation of the verb “to lie” at least thirteen times. The prosecutor also made negative comments regarding defense counsel and regarding a defense expert witness. Regarding the defense expert, the prosecutor argued that the expert made more than $300,000 per year working for defendants, that he was not impartial and that “he’s just a $6,000 excuse man.” Defense counsel did not object and the trial court did not intervene ex mero motu. The Court of Appeals held that the trial court erred by failing to intervene ex mero motu, concluding that the defendant’s entire defense was predicated on his credibility and on the credibility of his expert witness. The court reversed. It began by holding that there was “no doubt” that the prosecutor’s statements directed at the defendant’s credibility were improper. However it went on to hold that the statements were not so grossly improper as to result in prejudice, noting that the evidence supports the inference that the defendant’s testimony lacked credibility. For example, the defendant gave six different versions of the shooting, five to the police and one to the jury. The court concluded: “While we do not approve of the prosecutor’s repetitive and dominant insinuations that defendant was a liar, we do believe sufficient evidence supported the premise that defendant’s contradictory statements were untruthful.” The court also found that the prosecutor’s assertion that the defense expert was “just a $6,000 excuse man” also was improper in that it implied the witness was not trustworthy because he was paid for his testimony. While a lawyer may point out potential bias resulting from payment, it is improper to argue that an expert should not be believed because he would give untruthful or inaccurate testimony in exchange for pay. The court also noted that the prosecutor’s use of the word “excuse” amounts to name-calling, “which is certainly improper.” Finally, the court agreed that the prosecutor improperly argued that defense counsel should not be believed because he was paid to represent the defendant. Although ultimately concluding that it was not reversible error for the trial court to fail to intervene ex mero motu, the court added:
Nonetheless, we are disturbed that some counsel may bepurposefully crafting improper arguments, attempting to get away with as much as opposing counsel and the trial court will allow, rather than adhering to statutory requirements and general standards of professionalism. Our concern stems from the fact that the same closing argument language continues to reappear before this Court despite our repeated warnings that such arguments are improper. . . . Our holding here, and other similar holdings finding no prejudice in various closing arguments, must not be taken as an invitation to try similar arguments again. We, once again, instruct trial judges to be prepared to intervene ex mero motu when improper arguments are made.
In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.
The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.
Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.
Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”
The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.
The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.
The court concluded with this note:
While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.
In this murder case, the prosecutor’s statement that the defendant “can’t keep her knees together or her mouth shut” was “improperly abusive.” The defendant was charged with murdering her husband, and the State’s evidence indicated that she was having an affair with her therapist. However, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial--a “drastic remedy”--on grounds of the prosecutor’s improper statements. The prosecutor’s statements that the defendant had lied to the jury while testifying at trial were clearly improper, as was the prosecutor’s statement referring to the defendant as a narcissist. However, considering the overwhelming evidence of guilt, the prosecutor’s remarks did not render the trial and conviction fundamentally unfair and thus the trial court did not err by failing to intervene ex mero motu.
In a drug trafficking case, the trial court did not err by failing to intervene ex mero motu during the prosecutor’s closing argument. The prosecutor asserted: “Think about the type of people who are in that world and who would be able to testify and witness these type of events. I submit to you that when you try the devil, you have to go to hell to get your witness. When you try a drug case, you have to get people who are involved in that world. Clearly the evidence shows that [the defendant] was in that world. He’s an admitted drug dealer and admitted drug user.” Citing State v. Willis, 332 N.C. 151, 171 (1992), the court concluded that the prosecutor was not characterizing the defendant as the devil but rather was using this phrase to illustrate the type of witnesses which were available in this type of case.
Although reversing on other grounds, the court characterized the prosecutor’s closing argument as “grossly improper.” The prosecutor repeatedly engaged in abusive name-calling of the defendant and expressed his opinion that defendant was a liar and was guilty. The entire tenor of the prosecutor’s argument was undignified and solely intended to inflame the passions of the jury. The court noted that had the trial court not issued a curative instruction to the jury, it would have been compelled to order a new trial on this basis.
The trial court did not err by failing to intervene ex mero motu when the prosecutor referred to the defendant as a con man, liar, and parasite. The defendant was charged with obtaining property by false pretenses, an offense committed by deceiving or lying to win the confidence of victims. Given that the defendant lied to a church congregation in order to convince them to give him money, there was no impropriety in the State’s reference to the defendant as a liar and con man; the terms accurately characterize the charged offense and the evidence presented at trial. As for the term “parasite,” the court concluded: “this name-calling by the State was unnecessary and unprofessional, but does not rise to the level of gross impropriety.”
While the prosecutor would have been better advised to have refrained from making comments that might have encouraged the jury to lend an ear to the community and engage in general deterrence, any impropriety did not render the trial fundamentally unfair.
In this felony death by vehicle case the prosecutor did not improperly appeal to the jury’s passion and prejudice requiring the trial court to intervene ex mero motu. The prosecutor asserted that the jury “can send a message” with its verdict and told the jury that it was “the moral voice and conscience of this community.” Neither of these arguments are improper.
In this felon in possession of a firearm case, the court held that although some of the prosecutor’s statements were improper, they were not so improper as to deprive the defendant of a fundamentally fair trial.
The court first determined that, in context, the prosecutor’s use of the term “fool” was not improper. The prosecutor’s remarks related to a gunfight and did not single out the defendant as a fool, but compared him to other fools who behave recklessly with firearms. Additionally there were no repeated ad hominem attacks on the defendant.
Although the prosecutor’s expressions of personal belief were improper, they were not so grossly improper as to warrant reversal. Specifically, “[t]he prosecutor went too far when he asserted that the witnesses were ‘telling the truth.’” These statements improperly vouched for the truthfulness of the witnesses.
Although the prosecutor’s statements as to the defendant’s guilt were improper, they did not deprive the defendant of a fair trial. The prosecutor proclaimed that the defendant was “absolutely guilty” and that there was “just no question about it.”
The court rejected the defendant’s argument that the prosecutor made arguments on matters outside of the record and unsupported by the evidence when he remarked that the defendant told another person to get rid of the gun. The prosecutor’s assertion fairly summarized the evidence and argued a reasonable inference arising from it.
The court rejected the defendant’s argument that the prosecutor impermissibly advocated that the jury’s accountability to the community should compel a guilty verdict. A prosecutor can argue that the jury is the voice and conscience of the community and ask the jury to send a message to the community regarding justice. A prosecutor may not ask or embolden the jury to lend an ear to the community, such that the jury is speaking for the community or acting for the community’s desires. Here, the prosecutor’s remarks were proper because they involved commonly held beliefs and merely attempted to motivate the jury to come to an appropriate conclusion, rather than to achieve a result based on the community’s demands. Additionally, the prosecutor did not urge that society wanted the defendant to be punished, but rather requested, based on the evidence, that the jury make an appropriate decision.
The court concluded with this note:
While we reject Defendant’s arguments, we do not condone remarks by prosecutors that exceed statutory and ethical limitations. Derogatory comments, epithets, stating personal beliefs, or remarks regarding a witness’s truthfulness reflect poorly on the propriety of prosecutors and on the criminal justice system as a whole. Prosecutors are given a wide berth of discretion to perform an important role for the State, and it is unfortunate that universal compliance with “seemingly simple requirements” are hindered by “some attorneys intentionally ‘push[ing] the envelope’ with their jury arguments.” Jones, 355 N.C. at 127, 558 S.E.2d at 104. But, because Defendant has failed to overcome the high burden to prove that these missteps violated his due process rights, he is not entitled to relief.
While the prosecutor would have been better advised to have refrained from making comments that might have encouraged the jury to lend an ear to the community and engage in general deterrence, any impropriety did not render the trial fundamentally unfair.
The trial judge abused her discretion in overruling a defense objection to the State’s jury argument regarding the effect of an aggravating factor on the sentence. Although the jury’s understanding of aggravating factors is relevant to sentencing, the prosecutor’s argument introduced error because it was inaccurate and misleading. The court indicated that consistent with G.S. 7A-97, parties may explain to a jury the reasons why it is being asked to consider aggravating factors and may discuss and illustrate the general effect of finding such factors, such as the fact that a finding of an aggravating factor may allow the trial court to impose a more severe sentence or that the court may find mitigating factors and impose a more lenient sentence.
In this first-degree murder case, the defendant, who was white, was charged with shooting through a window in his garage door and killing the victim, who was black. The victim was one of a group of about 20 people who had briefly gone to a party at a nearby house, and he was shot and killed when he ran through a portion of the defendant’s yard. The defendant admitted to the shooting, but argued that he was acting in self-defense and defense of habitation. At trial, the defendant testified that he had yelled at the group to “shut the f— up” and they yelled back “f— you; go inside; white boy.” The state’s evidence included a recorded 911 call in which the defendant reported there were “hoodlums” racing in the street (the defendant later admitted this was false) and stated that he was “going to kill him,” he was “locked and loaded,” and he would “secure the neighborhood.”
During closing arguments, the prosecutor stated that the issue of race was “the elephant in the room” since it had been raised during jury selection and alluded to during the defendant’s evidence and closing argument. The defendant objected, but the trial court overruled the objection and allowed the prosecutor to argue that if the defendant’s fear of the victim was based on the victim’s race, then it was not a reasonable fear that would support a claim of self-defense: “Now, reasonableness and that fear, a fear based out of hatred or a fear based out of race is not a reasonable fear, I would submit to you. That’s just hatred. And I’m not saying that’s what it is here, but you can consider that. And if that’s what you think it was, then maybe it’s not a reasonable fear.” The defendant was convicted and appealed. Citing State v. Jones, 355 N.C. 117 (2002), the Court of Appeals held that the prosecutor’s statements regarding race were an improper appeal to bias and reversed the conviction. [Note: For further discussion of the Court of Appeals decision, see Emily Coward, “State v. Copley: Addressing Race During Closing Argument,” N.C. Criminal Law Blog (June 18, 2019).]
The North Carolina Supreme Court reversed the Court of Appeals, finding that neither the majority nor the dissent had conducted a “complete prejudice analysis” in the case. The higher court acknowledged Jones but explained that it was an inadequate basis for comparison because the challenged statements in Jones arose during the closing arguments in the sentencing phase of a death penalty case. To properly evaluate prejudice during the guilt-innocence phase of a non-capital case, the reviewing court must also consider: (i) the other evidence of the defendant’s guilt; and (ii) the remainder of the closing argument. Assuming without deciding that the challenged statements were improper, the defendant failed to establish prejudice in this case. First, viewing the comments about race “in the context of the entire closing,” the court found that the comments were only a small part of an argument that primarily focused on the defendant’s lack of credibility, the strong evidence of his guilt, and the absence of a basis for claiming self-defense, which undermined a finding of prejudice. Second, in light of all the other “compelling evidence” of the defendant’s guilt in this case (e.g., incriminating statements recorded on the 911 call, firing through a closed garage door, challenges to the defendant’s credibility, and his admission to the shooting), the defendant failed to meet his burden of demonstrating a reasonable possibility that the jury would have acquitted him in the absence of the prosecutor’s comments. The appellate court’s decision was reversed, and the case was remanded for ruling on the defendant’s remaining arguments.
Justice Earls wrote separately in concurrence to address the unresolved issue of whether the prosecutor’s comments were improper. Derogatory or inflammatory statements appealing to bias or prejudice are improper, but neutral and non-derogatory statements regarding race are permissible if they bear a material relevance to an issue in the case (such as motive). Justice Earls concluded that the prosecutor’s statements in this case were not an appeal to racial animus; instead, they addressed relevant issues of race that had arisen during jury selection and the defendant’s testimony. Therefore, it was “proper and permissible for the prosecutor to urge the jury not to allow any racial considerations or stereotypical assumptions about young black men to impact their ultimate decision about what was reasonable fear in these circumstances.”
In this child sex case, the trial court did not err by failing to intervene ex mero motu when the prosecutor referred to the complainants as “victims.”
The trial court did not err by denying the defendant final closing arguments in this DWI case. Rule 10 of the General Rules of Practice for the Superior and District Courts provides that “if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him.” Here, the defendant did not call any witnesses or put on evidence but did cross-examine the State’s only witness and sought to play a video of the entire traffic stop recorded by the officer’s in-car camera during cross-examination. At issue on appeal was whether admitting the video of the stop during cross-examination constituted introducing evidence. Although the officer provided testimony describing the stop shown in the video, the video went beyond the officer’s testimony and “is different in nature from evidence presented in other cases that was determined not to be substantive.” Playing the video allowed the jury to hear exculpatory statements by the defendant to the police beyond those testified to by the officer and introduced evidence of flashing police lights that was not otherwise in evidence to attack the reliability of the HGN test. The video was not merely illustrative. It allowed the jury to make its own determinations concerning the defendant’s impairment apart from the officer’s testimony and therefore was substantive evidence.
Because the defendant did not present any evidence at trial, the trial court committed reversible error by denying the defendant final closing argument. Defense counsel cross-examined an officer who responded to a call about the break-in and identified defense Exhibit 2, a report made by that officer following his investigation. During cross defense counsel elicited the officer’s confirmation that, after viewing video surveillance footage, a man named Basil King was identified as a possible suspect. The trial court denied the defendant's motion to make the final closing argument because it believed this cross-examination constituted the introduction of evidence pursuant to Rule 10 of the General Rules of Practice for the Superior and District Courts. Although the defendant introduced for the first time evidence in the officer’s report that Basil King was a suspect, the defendant did not introduce the officer’s actual report into evidence, nor did he have the officer read the report to the jury. Furthermore, this evidence was relevant to the investigation and was contained in the officer’s own report. It was the State, the court noted, that first introduced testimony by the officer and other witnesses concerning the investigation and the evidence leading the police to identify the defendant as a suspect. It concluded: “We cannot say that the identification of other suspects by the police constituted new evidence that was not relevant to any issue in the case." (quotation omitted). Therefore, this testimony cannot be considered the introduction of evidence pursuant to Rule 10.
The trial court committed reversible error by denying the defendant the right to the final argument based on its ruling that he had “introduced” evidence within the meaning of Rule 10 of the General Rules of Practice for the Superior and District Courts during his cross-examination of the victim. During that cross defense counsel read aloud several portions of the victim’s earlier statement to an officer, in what appears to have been an attempt to point out inconsistencies between the victim’s trial testimony and his prior statement; defense counsel also asked the victim questions, including whether he had told the officer everything that happened when he provided his statement. The statements read and referenced by defense counsel directly related to the victim’s testimony on direct examination. Furthermore, defense counsel never formally introduced the statement into evidence. Thus, the defendant never “introduced” evidence within the meaning of Rule 10.
The trial judge erred in denying the defendant final jury argument. The defendant did not introduce evidence under Rule 10 of the General Rules of Practice when cross-examining an officer. Defense counsel referred to the contents of the officer’s report when cross-examining the officer. However, the officer’s testimony on cross-examination did not present “new matter” to the jury when considered with the state’s direct examination of the officer.
In this DWI case, the trial court did not err by failing to intervene ex mero motu when the prosecutor speculated in closing argument about what the defendant’s breathalyzer test would have been an hour before she was actually tested. The court found that the argument at issue was not so grossly improper as to require the trial court to intervene ex mero motu.
The trial court did not err by failing to intervene ex mero motu during that State’s closing argument. Even if the prosecutor misstated the evidence, the trial court’s jury instruction cured any defect. The trial court instructed the jury that if their “recollection of the evidence differs from that of the attorneys, you are to rely solely upon your recollection of the evidence.”
The defendant was convicted of possession of firearm by a felon for his involvement in a drug transaction in which one of the would-be-drug-buyers was shot and killed. Witnesses described the defendant, who they said pulled out a revolver and moved toward the car where the victim was sitting, as having a tattoo on his cheek. At trial, the State introduced a photograph of the defendant that showed a tattoo on his chest. During closing argument, the prosecutor stated that the men who saw the defendant draw his revolver identified him as having a tattoo on his chest. In fact, those witnesses had testified that the man had a tattoo on his cheek. The defendant did not contemporaneously object to these misstatements. The defendant appealed, and the Court of Appeals found no error, concluding that the prosecutor’s statements during closing argument were not grossly improper. The Supreme Court granted discretionary review and affirmed.
The Supreme Court characterized the misstatements as mistakes that were not intentional and were not extreme or grossly improper. The Court noted that the trial court explicitly instructed jurors that they were to be guided exclusively by their own recollection of the evidence any time their recollection differed from that of the attorneys. Stating that “[t]rials are not carefully scripted productions,” the Court reasoned that absent gross impropriety in an argument “a judge should not be thrust into the role of an advocate based on a perceived misstatement regarding an evidentiary fact when counsel is silent.” Slip op. at ¶ 26. Accepting the defendant’s argument, the Court stated, would allow attorneys to “sit back in silence during closing arguments” and then claim error on appeal if the trial court failed to correct a misstatement of the evidence. Slip op. at ¶ 26. Thus, the Court concluded that the trial court did not abuse its discretion when it declined to intervene ex mero motu.
On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 178 (2017), the court held that the prosecutor’s remarks during closing argument in this first-degree murder case were not so grossly improper as to require the trial court to intervene ex mero motu. In the first challenged comments, the prosecutor told the jury that the defendant’s mental health history was ripe with examples of violence, homicidal ideations, and the desire and intent to kill other people. The prosecutor argued that any mental illness that the defendant had did not prevent him from forming the specific intent to kill. The prosecutor continued: “He had the specific intent to kill many people, over a 20-year period of time.” These statements were premised on matters in the record and were not otherwise improper.
The defendant also pointed to statements by the prosecutor that the jury could ensure that a “homicidal, manipulative, sociopath is not unleashed, yet again, onto our streets.” The defendant argued that the term “unleashed” was inflammatory and prejudicial. The court disagreed, concluding that this statement “falls within the realm of permissible hyperbole.”
Finally, the defendant challenged the prosecutor’s reference to the defendant’s potentially delusional, but factually plausible, motives for stabbing the victim. Again, the court found no gross impropriety with respect to these comments.
In case where the defendant was convicted of misdemeanor child abuse and contributing to the delinquency of a minor, the court reversed the opinion below, ___ N.C. App. ___, 789 S.E.2d 703 (2016), for the reasons stated in the dissent. The case involved the drowning of a child under the defendant’s supervision. Over a dissent, a majority of the Court of Appeals held that the State’s jury argument regarding 404(b) evidence involving the drowning of another child in the defendant’s care “amounted to plain error.” The dissenting judge rejected the contention that the trial court erred by failing to intervene ex mero motu to this argument, arguing that plain error was not the appropriate standard of review with respect to jury argument that fails to provoke a timely objection. Applying the gross impropriety standard, the dissenting judge found no error.
(1) The court rejected the capital defendant’s argument that the trial court erred by failing to intervene ex mero motu at several points during the State’s argument in the guilt-innocence phase. The defendant argued that the trial judge should have intervened when the prosecutor mischaracterized defense counsel’s statements. Although the prosecutor overstated the extent of defense counsel’s concessions, the statements constituted a lapsus linguae that were neither calculated to mislead nor prejudicial. The defendant argued that the trial court should have intervened when the prosecutor remarked about the defendant’s failure to introduce evidence supporting his diminished capacity defense. The court concluded that the State is free to point out the defendant’s failure to produce evidence to refute the State’s case. Furthermore, it rejected the defendant’s contention that the prosecutor’s statements misstated the law on diminished capacity. The defendant argued that the prosecutor’s statement about diminished capacity misled the jury into believing that the defense was not established because the defense failed to prove remorse or efforts to help the victims. Any impropriety in this argument, the court concluded, was cured by the trial court’s correct instructions on the defense. The defendant argued that the prosecutor misstated the law as to the intent required for first-degree murder. However, the prosecutor’s statement was not improper. In sum, the court concluded that the prosecutor’s statements, both individually and cumulatively, were not so grossly improper as to have required the trial court to intervene ex mero motu. (2) The court rejected the defendant’s argument that during the State’s closing argument in the sentencing phase the prosecutor erroneously called upon the jury to disregard mercy altogether. The court found that the arguments in question, cautioning jurors against reaching a decision on the basis of their “feelings” or “hearts,” did not foreclose considerations of mercy or sympathy; instead, the prosecutor asked the jury not to impose a sentence based on emotions divorced from the facts presented in the case.
(1) No gross impropriety occurred in closing argument in the guilt-innocence phase of a capital trial when the prosecutor (a) asserted that a mark on the victim’s forehead was caused by the defendant’s shoe and evidence supported the statement; (b) suggested that the defendant’s accomplice committed burglary at the victim’s home; the comment only referred the accomplice, neither the defendant nor the accomplice were charged with burglary, and the trial court did not instruct the jury to consider burglary; or (c) suggested that the victim was killed to eliminate her as a witness when the argument was a reasonable extrapolation of the evidence made in the context of explaining mental state. (2) The trial court did not err by failing to intervene ex mero motu during the State’s opening statement during the sentencing phase of a capital trial when the prosecutor stated that the “victim and the victim’s loved ones would not be heard from.” According to the defendant, the statement inflamed and misled the jury. The prosecutor’s statement described the nature of the proceeding and provided the jury a forecast of what to expect. (3) The trial court did not err by failing to intervene ex mero motu during closing argument in the sentencing phase of a capital trial when the prosecutor (a) made statements regarding evidence of aggravating circumstances; the court rejected the argument that the prosecutor asked the jury to use the same evidence to find more than one aggravating circumstance; (b) properly used a neighbor’s experience to convey the victim’s suffering and nature of the crime; (c) offered a hypothetical conversation with the victim’s father; (d) referred to “gang life” to indicate lawlessness and unstrained behavior, and not as a reference to the defendant being in a gang or that the killing was gang-related; also the prosecutor’s statements were supported by evidence about the defendant’s connection to gangs.
In this Rutherford County case, defendant appealed his conviction for indecent liberties with a child, arguing the trial court erred by not intervening during the state’s opening statement, and allowing a witness to bolster the victim’s testimony. The Court of Appeals found no error.
In 2011, defendant was dating a woman with a young daughter. One day the woman left her daughter with defendant as a babysitter; defendant took the daughter into his bedroom and engaged in sexual contact with her. The victim eventually reported the incident in 2018, when she reached seventh grade. Defendant was subsequently indicted and convicted of indecent liberties with a child in October of 2021.
On appeal defendant first argued that the trial court should have intervened ex mero motu during the state’s opening statement, as the state referred to upcoming testimony by defendant’s roommate but the testimony was never offered at trial. The Court of Appeals disagreed, applying the two-step analysis from State v. Huey, 370 N.C. 174 (2017), and determining that the prosecutor’s statements were not grossly improper and did not justify a new trial. Slip Op. at 6. The court next considered defendant’s argument that a witness bolstered the victim’s testimony, explaining that the testimony in question was not supporting the truthfulness of the victim’s statements, but was instead noting that the victim’s statements were consistent. Making the distinction between testimony that clearly supported the veracity of a victim’s testimony verses the testimony offered in the current case, the court found no plain error in admitting the testimony. Id. at 11.
The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments.
(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.
(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.
(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.
(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.
(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.
(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.
The trial court did not err in this murder case by failing to intervene ex mero motu to strike prosecutor’s comments during closing arguments. Citing case precedent, the court held that neither the prosecutor’s characterization of the defendant as “evil” nor a brief reference to the defense experts as “hacks” were so grossly improper that the judge erred by failing to intervene ex mero motu during the closing argument.
In this murder case, the trial court did not err by failing to intervene ex mero motu during the State’s closing argument. The defendant argued that the prosecutor’s closing arguments injected the prosecutor’s personal beliefs, appealed to the jury’s passion, and led the jury away from the evidence. The court determined that the challenged portions of the argument, when taken in context, draw reasonable inferences based on the defendant’s inconsistent statements and point out inconsistencies in his testimony. The court determined that statements like “give me a break” and “come on” do not reflect the prosecutor’s personal opinion but rather point out inconsistencies in the defendant’s testimony. With respect to the prosecutor’s statement that he would “respectfully disagree” with the jury if they decided to find that the defendant killed the victim in self-defense, even if this argument was improper, it was not grossly so as to warrant the trial court’s intervention ex mero motu.
(1) During closing statements to the jury, the prosecutor did not impermissibly comment on the defendant’s failure to take the stand. In context, the prosecutor’s statements summarized the evidence before the jury and asserted that no evidence was presented to support defense counsel’s assertions in his opening statement. Even if the prosecutor’s statements constituted an impermissible comment on the defendant’s right to remain silent, the error was harmless beyond a reasonable doubt. (2) The court rejected the defendant’s argument that the prosecutor improperly misled the jury during closing argument by asserting facts not in evidence. The defendant failed to show any gross impropriety that was likely to influence the verdict. (3) The defendant failed to show gross impropriety warranting intervention ex mero motu to when the prosecutor handled a rifle in evidence by pointing it at himself. The defendant argued that the prosecutor’s actions inflamed the jurors’ emotions and causing them to make a decision based on fear (4) Notwithstanding these conclusions, the court noted that it found the prosecutor’s words and actions “troublesome,” stating: “the prosecutor flew exceedingly close to the sun during his closing argument. Only because of the unique circumstances of this case has he returned with wings intact.” It went on to emphasize that a prosecutor “has the responsibility of the Minister of Justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict” (quotation omitted).
The trial court did not err by failing to intervene sua sponte during the prosecutor’s closing argument. Here, the prosecutor argued facts in evidence regarding a prior assault by the defendant and the trial court gave an appropriate limiting instruction regarding the defendant’s prior conviction. Thus, the prosecutor’s reference to this incident and his comment suggesting that the defendant was a “cold person” were not so grossly improper that the trial court was required to intervene on its own motion.
The court held, in this burning of personal property case, that although some of the prosecutor’s comments regarding the credibility of certain witness testimony during closing arguments may have been objectionable, they did not rise to the level of requiring the trial court to intervene ex mero motu. The court noted as objectionable the prosecutor’s statement that the victim’s testimony was “extraordinarily credible.”
The State’s closing arguments did not require the trial court to intervene ex mero moto. With respect to comments regarding 404(b) evidence, the State did not ask the jury to use the evidence for an improper purpose. To the extent that the State referred to any improper evidence, the references were not so grossly improper that the trial court should have intervened on its own motion.
In this DWI case, the court rejected the defendant’s argument that comments made during the prosecutor’s final argument and detailed in the court’s opinion were so grossly improper that the trial court should have intervened ex mero motu. Among the challenged comments were those relating to the defendant’s status as an alcoholic and the extent to which he had developed a tolerance for alcoholic beverages. Finding that “the prosecutor might have been better advised to refrain from making some of the challenged comments,” the court declined to find that the arguments were so grossly improper that the trial court should have intervened ex mero motu.
In a case where the defendant was convicted of sexual battery and contributing to the abuse or neglect of a juvenile, the trial court did not err by failing to intervene ex mero motu during the prosecutor’s final argument to the jury. The defendant challenged the prosecutor’s statement that he had ruined the victim’s childhood and that if it failed to find the victim’s testimony credible, it would be sending a message that she would need to be hurt, raped, or murdered before an alleged abuser could be convicted.
(No. COA13-925). Although the prosecutor’s statements during closing argument in a robbery case were improper, a new trial was not required. The prosecutor argued that if the defendant “had gotten hold” of a rifle loaded with 14 rounds, “one each for you jurors,” “this might have been an entirely different case.” The court held that “the remarks by the State were improper, and should have been precluded by the trial court.” However, under the appropriate standards of review, a new trial was not required.
In this DWI case, the trial court did not err by failing to intervene ex mero motu to the State’s closing arguments. The defendant argued that certain remarks were improper because they speculated that he had driven impaired on other occasions; were sarcastic and provoked a sense of class envy; tended to shift the burden of proof to the defendant; and indicated that the defendant’s witnesses were hypocrites and liars. Without discussing the specific remarks, the court held that “although the State pushed the bounds of impropriety” the remarks were not so grossly improper as to require intervention ex mero motu.
In this DWI case, the trial court did not err by failing to intervene ex mero motu to the State’s closing arguments. The defendant argued that certain remarks were improper because they speculated that he had driven impaired on other occasions; were sarcastic and provoked a sense of class envy; tended to shift the burden of proof to the defendant; and indicated that the defendant’s witnesses were hypocrites and liars. Without discussing the specific remarks, the court held that “although the State pushed the bounds of impropriety” the remarks were not so grossly improper as to require intervention ex mero motu.
In a murder case, the trial court was not required to intervene ex mero motu when the prosecutor argued to the jury that depression might make you suicidal but it “doesn’t make you homicidal.” The defendant’s witness had testified that depression can make a person suicidal. In context, the prosecutor’s argument attacked the relevance, weight, and credibility of that testimony.
The trial court did not abuse its discretion by allowing the State to display an enhanced version (frame-by-frame presentation) of a video recording during closing argument and jury deliberations. The trial court correctly determined that the enhanced version was not new evidence since the original video had been presented in the State’s case.
In a child sex case, the court rejected the defendant’s argument that the trial court erred by ruling that the defendant could not argue that his nephew or someone else had assaulted the victim. It concluded: “Although defendant argues that he was improperly prevented from arguing that someone else raped the victim, defendant is unable to point to specific portions of his closing argument which were limited by the trial court’s ruling, as closing arguments in this case were not recorded. Therefore, defendant has not met his burden of establishing the trial court’s alleged error within the record on appeal. This court will not ‘assume error by the trial judge when none appears on the record before [it].’”
The court rejected the defendant’s argument that plain error occurred when the prosecutor misrepresented the results of the SBI Crime Lab phenolphthalein blood tests. At trial, a SBI agent explained that a positive test result would provide an indication that blood could be present. On cross-examination, he noted that certain plant and commercially produced chemicals may give a positive result. The defendant argued that the prosecutor misrepresented the results of the phenolphthalein blood tests during closing argument by stating that the agent tested the clothes and they tested positive for blood. Based on the agent’s testimony, this argument was proper.
The trial court did not abuse its discretion by denying the defendant’s mistrial motion based on the prosecutor’s closing statement. During closing arguments in this murder case, defense counsel stated that “a murder occurred” at the scene in question. In his own closing, the prosecutor stated that he agreed with this statement by defense counsel. Although finding no abuse of discretion, the court “remind[ed] the prosecutor that the State’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
The court reversed State v. May, 230 N.C. App. 366 (2013), which had held that the trial court committed reversible error when charging a deadlocked jury. The court of appeals held that the trial court erred when it instructed the deadlocked jury to resume deliberations for an additional thirty minutes, stating: “I’m going to ask you, since the people have so much invested in this, and we don’t want to have to redo it again, but anyway, if we have to we will.” The court of appeals concluded that instructing a deadlocked jury regarding the time and expense associated with the trial and a possible retrial resulted in coercion of a deadlocked jury in violation of the N.C. Constitution. The court of appeals went on to hold that the State had failed to show that the error was harmless beyond a reasonable doubt. The State petitioned for discretionary review on whether the court of appeals had erred in holding that the State had the burden of proving that the purported error in the trial court’s instructions was harmless beyond a reasonable doubt. The supreme court reversed, distinguishing State v. Wilson, 363 N.C. 478, 484 (2009) (claim that instructions given to less than the full jury violated the constitution was preserved as a matter of law), and concluding that because the defendant failed to raise the constitutional coercive verdict issue below, it was waived on appeal. Nevertheless, the supreme court continued, because the alleged constitutional error occurred during the trial court’s instructions to the jury, it could review for plain error. The court also concluded that because the defendant failed to assert at trial his argument that the instructions violated G.S. 15A-1235 and because the relevant provisions in G.S. 15A-1235 were permissive and not mandatory, plain error review applied to that claim as well. Turning to the substance of the claims, the court concluded that the trial court’s instructions substantially complied with G.S. 15A-1235. It further held that “Assuming without deciding that the court’s instruction to continue deliberations for thirty minutes and the court’s isolated mention of a retrial were erroneous, these errors do not rise to the level of being so fundamentally erroneous as to constitute plain error.”
In this sex offense and indecent liberties case where the defendant was ordered to enroll in lifetime SBM, the trial court did not plainly err with respect to an Allen charge, the defendant did not preserve his argument related to SBM, and the defendant received statutory ineffective assistance of counsel during the SBM proceedings. Approximately one hour after beginning deliberations, the jury sent a question to the court asking for clarification as to whether they must have unanimous agreement to render a guilty verdict and whether a lack of unanimity would require that they return a not guilty verdict. In response and without objection from either party, the trial court responded to the jury’s question with instructions derived from G.S. 15A-1235(a). The court of appeals rejected the defendant’s argument that the trial court plainly erred by omitting instructions from G.S. 15A-1235(b), explaining that the jury’s question asked for clarification on the issue of unanimity and did not clearly indicate that the jury was deadlocked, in disagreement, or at an impasse. As such, the trial court did not err by reciting the unanimity instructions in G.S. 15A-1235(a) without providing the additional instructions in subsection (b).
As to SBM, the court first found that the defendant failed to preserve a Fourth Amendment challenge to the lifetime SBM order by failing to make a constitutional objection during the sentencing proceeding where SBM was addressed, and further declined to invoke Rule 2 to reach the issue. The court went on to agree with the defendant’s alternative argument that he received statutory ineffective assistance of counsel under G.S. 7A-451(a)(18). Likening the case to State v. Spinks, ___ N.C. App. ___, 2021-NCCOA-218 (2021), the court found that counsel was ineffective by failing to object to SBM enrollment or file a notice of appeal from the SBM order where the State offered no evidence of the reasonableness of lifetime SBM.
The court rejected the defendant’s argument that the trial court erred by giving a coercive instruction after the jury indicated that it was deadlocked. Concluding that the trial court’s instructions to continue deliberations were in accord with G.S. 15A-1235(b), the court disagreed. The jury informed the trial court three times that it was unable to reach a unanimous verdict. Each time the trial court gave an instruction consistent with the statute. After the jury had deliberated less than five hours in a single day, and after its third note to the trial court stating that it was deadlocked, the trial court informed the jury that it was sending them back to further deliberate with the same instructions previously given. However, in this instance, the trial court added: “after five days of testimony and less than 5 hours of deliberations, these folks deserve better.” The defendant argued that this comment was impermissibly coercive and left the jurors with the impression that the judge was irritated with them for not reaching a verdict. The court found otherwise, noting that the judge was polite, patient, and accommodating. The trial court properly gave an Allen charge each time the jury stated that it was deadlocked. Prior to its final comment, the jury received a lunch break, recess and a meal. After the third impasse, the trial court gave the jury a choice to continue to deliberate that day or to go home and continue deliberations the next day. Considering the totality of the circumstances, the trial court’s comment was not coercive.
No plain error occurred with respect to a supplemental jury instruction given by the trial court in response to the jury’s note that it was “stuck” during deliberations. The noted indicated that the jury was split 11 to 1. Neither party objected to the trial court’s suggestion to give the jury an instruction urging them to do what they could to arrive at a unanimous verdict. The defendant argued that the trial court’s instruction violated G.S. 15A-1235. Although the court found that the trial court’s failure to give the full instructions as directed by the statute did not rise to the level of plain error, it stated: “[W]e must clarify that at the time the instruction was given, the trial court should reasonably have believed that the jury was deadlocked. Because the trial court gave some of the instructions, but not all of them, it did commit error.”
The court rejected the defendant’s argument that the trial court committed plain error by requiring a jury to deliberate for an unreasonable length of time. Jury deliberations began at 2:15 pm. At 8:43 pm the jury sent a note indicating that it was deadlocked. Several minutes later, and with defense counsel’s consent, the trial court gave an Allen instruction. At 10:50 pm the trial court returned the jury to the courtroom and requested an update on deliberations. The foreperson indicated that the jury was a lot closer “than the first time.” Both parties agreed to let deliberations resume. The jury returned a verdict at 11:34 pm. The court rejected the defendant’s argument that by allowing the jury to continue deliberations until nearly midnight it violated G.S. 15A-1235(c). When the trial court allowed the jury to continue deliberating at 10:50 pm the statute was not implicated because it no longer appeared that the jury was unable to agree.
Where the trial court’s Allen charge was in substantial compliance with G.S. 15A-1235, no coercion of the verdict occurred. The defendant argued that because the Allen charge failed to instruct the jury in accordance with section G.S. 15A-1235(b)(3) that “a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous,” he was entitled to a new trial. Acknowledging that the charge failed to repeat G.S. 15A-1235(b)(3) verbatim, the court concluded that the trial court's instructions contained the substance of the statute and fairly apprised the jurors of their duty to reach a consensus after open-minded debate and examination without sacrificing their individually held convictions merely for the sake of returning a verdict.
The trial court did not coerce a verdict by instructing the jurors to continue deliberating after they three times indicated a deadlock. Although the trial court did not give an Allen instruction every time, G.S. 15A-1235 does not require the trial court to do so every time the jury indicates that it is deadlocked.
(1) The trial court did not coerce a verdict by giving an Allen charge pursuant to G.S. 15A-1235. The jury sent the judge a note at 3:59 pm, after 70 minutes of deliberations, indicating that they were split 11-to-1 and that the one juror “will not change their mind.” The court rejected the defendant’s argument that a jury’s indication that it may be deadlocked requires the trial court to immediately declare a mistrial, finding it inconsistent with the statute and NC case law. (2) The trial court did not coerce a verdict when it told the deliberating jury, in response to the same note about deadlock, that if they did not reach a verdict by 5 pm, he would bring them back the next day to continue deliberations. Although threatening to hold a jury until they reach a verdict can under some circumstances coerce a verdict, that did not happen here. After receiving the note at approximately 4:00 pm, the trial judge told the jurors that although they were divided, they had been deliberating for only approximately 75 minutes. The judge explained that he was going to have them continue to deliberate for the rest of the afternoon and that if they needed more time they could resume deliberations the next day. The trial judge further emphasized that the jurors should not rush in their deliberations and reminded them that it was “important that every view of the jury be considered, and that you deliberate in good faith among yourselves.” The court found that these statements cannot be viewed as coercive.
The trial court did not impermissibly coerce a verdict. While deliberating, the jury asked to hear certain trial testimony again. The trial judge initially denied the request. After the jury indicated that it could not reach a verdict, the trial judge asked if it would be helpful to have the testimony played back. This was done and the trial judge gave an Allen instruction.
The court rejected the defendant’s argument that the trial court’s instructions to the jury coerced a verdict. The jury retired to begin deliberations at 3:38 p.m. At 5:51 p.m., the trial judge brought the jury into the courtroom to inquire about its progress. The jury indicated that it had reached unanimous verdicts on two of the four charges. The trial judge then allowed a twenty-minute recess, giving the following challenged instruction:
What I am going to do at this point is allow you to take a recess for about 20 minutes[.] If anyone needs during this 15 or 20 minute recess to call someone, a family member, to let them know that you are going to be delayed – but we are going to stay here this evening with a view towards reaching a unanimous verdict on the other two. That’s where we are. I want everyone to know that. If you need to call someone to let them know you will be delayed, that’s fine.
After the recess, the jury resumed its deliberations. Eleven minutes later the jury returned unanimous verdicts in all four cases. Considering the totality of the circumstances, the instructions were not coercive.
The trial court did not abuse its discretion by refusing to declare a mistrial and instead allowing the jury to go home and return the next day to continue deliberating. The jury deliberated approximately 7 hours over the course of two days; at the end of the day, when asked whether they wished to continue deliberating or come back the next day, a juror indicated that nothing would “change[.]” The trial judge ordered the jury to return the next day. They did so and reached a verdict.
On writ of certiorari of a divided decision of the Court of Appeals, ___ N.C. App. ___, 811 S.E.2d 215 (2018), the court held that the defendant was not prejudiced by the trial court’s decision to allow the jury to review photographs in the jury room without the defendant’s consent. At trial at least 179 photographs were admitted into evidence, all but one of them without any objection from the defendant. While deliberating, the jury sent a note to the trial court requesting the photographs. After noting that whether to send the photos back was in the trial court’s discretion, trial counsel objected to allowing the jury to review the photos in the jury room and stated his preference that the jurors rely on testimony and recollection. The trial court decided, in its discretion, to allow the jury to have all of the photographs, and those items were delivered to the jury room. The defendant was convicted and he appealed. G.S. 15A-1233(b) provides, in part, that, “[u]pon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence.” Permitting juries to take evidence to the jury room without the consent of the parties constitutes error. While the trial court erred by allowing the jury to examine the photographs in the jury room without the defendant’s consent, the error was not prejudicial given the extensive evidence of the defendant’s guilt and the weakness of the defendant’s claim of self-defense when considered in connection with other evidence in the record. Here, the central issue was whether or not the defendant acted in self-defense. In arguing prejudice, the defendant asserted that the lengthy period of time that the jury was allowed to have photographs showing injuries inflicted upon the victim’s body and photographs of the relatively minor injuries inflicted on him could easily have led the jury to reject his self-defense claim. For reasons discussed in the court’s opinion, the court did not find this argument persuasive.
The court modified and affirmed a decision of the court of appeals in State v. Starr, 209 N.C. App. 106 (Jan. 4, 2011) ((1) although the trial judge did not explicitly state that he was denying, in his discretion, the jury's request to review testimony, the judge instructed the jurors to rely on their recollection of the evidence that they heard and therefore properly exercised discretion in denying the request and (2) when defense counsel consents to the trial court's communication with the jury in a manner other than in the courtroom, the defendant waives his right to appeal the issue; here, although the trial judge failed to bring the jurors to the courtroom in response to their request to review testimony and instead instructed them from the jury room door, prior to doing so he asked for and received counsel’s permission to instruct at the jury room door). The supreme court determined that the trial court violated G.S. 15A-1233(a) by failing to exercise its discretion in deciding whether to allow the jury to review testimony. The court noted that as a general rule, when the trial court gives no reason for a ruling that must be discretionary, it is presumed that the court exercised its discretion. However, when the trial court’s statements show that it did not exercise discretion, the presumption is overcome. Here, the trial court’s statement that “we don’t have the capability . . . so we cannot provide you with that” overcomes the presumption the court exercised its discretion. However, the court found that the error was not prejudicial. The court provided the following guidance to trial court judges to ensure compliance with G.S. 15A-1233(a): The trial court must exercise its discretion to determine whether the transcript should be made available to the jury but it is not required to state a reason for denying access to the transcript. The trial judge may simply say, “In the exercise of my discretion, I deny the request,” and instruct the jury to rely on its recollection of the trial testimony.
The defendant was indicted for taking indecent liberties with a child and went to trial. At trial, the jury heard testimony from the victim and the defendant. During deliberations, the jury asked to see a transcript of both witnesses’ testimony. The trial judge told the jury that “unlike on TV” transcripts are not made in real time, it would take “a couple weeks at the fastest” to create them, so it is “just not able to be done.” On appeal, the defendant argued this was reversible error because the trial judge failed to clearly state that she was declining to provide a transcript as a matter of judicial discretion, rather than because it was impossible. The appellate court agreed, based on nearly indistinguishable binding precedent, even though in this case it “readily can be inferred” from the trial judge’s comments that she was aware that she had the discretion to order a transcript but was choosing not to do so because of the delay it would cause. The court noted that “we believe the Supreme Court should review this line of cases,” but “as an intermediate appellate court […w]e are bound by both our own precedent and the Supreme Court’s, and thus constrained to find error.”
Additionally, the error is deemed prejudicial when it is material to the determination of guilt or innocence and involves issues of confusion or contradiction such that the jury would want to review the evidence to understand it. Both factors applied in this case because there was no physical evidence and “the State’s case relied entirely on witness testimony.” Since the jury asked to review a transcript of that testimony, and the trial court erroneously told the jury it was not possible, “there is a reasonable possibility that the trial court’s error affected the outcome of the jury’s deliberations.” The conviction was vacated and remanded for a new trial.
In this indecent liberties with a child case, although the trial court erred by failing to conduct the jury to the courtroom as required by G.S. 15A-1233 in response to its request to review certain evidence, the error was not prejudicial and the defendant failed to show an error of constitutional magnitude. The statute requires that if the jury, after retiring for deliberations, requests to review evidence, the jurors must be conducted to the courtroom. Here, the jury sent two notes to the trial court, one requesting police reports, and another requesting transcripts of certain trial testimony. On both occasions, the bailiff brought the notes into the courtroom to the judge and delivered the judge’s written responses to the jury. The judge’s notes informed the jury that they could not review the police reports because they were not in evidence and that the trial court had decided, in its discretion, not to delay deliberations to have a transcript produced of the testimony in question. This was error because the trial court failed to comply with the statute. However this did not constitute a violation of the defendant’s right to a unanimous verdict under the state constitution, where the trial court did not interact with or provide instructions to less than a full jury panel. Additionally a new trial is not warranted as there is no showing that the error prejudiced the defendant.
In this murder case, although the trial court erred by making comments prior to closing arguments suggesting to the jury that it would be futile to request to review witness testimony, the error was not prejudicial. The trial judge had stated:
When you go back and start deliberating, if six of you say, Well, I remember this witness says things this way and the other six of you say, No, I don’t remember it that way . . . you don’t have the option of saying, Well, let’s go ask the judge and let the judge tell us what did that witness really say. Because if you ask that question, my response it going to be, That’s part of your job, to figure it out and to make that determination based on your recollection[.]
The court rejected the State’s argument that the trial court’s comments merely made it clear to the jurors that if they asked for his interpretation of witness testimony, the judge would instruct them to make that determination based on their own recollections. However, the court declined to find that the error was prejudicial.
Although the trial court erred by failing to exercise discretion in connection with the jury’s request to review certain testimony, the defendant failed to show prejudice. In this armed robbery case, during deliberations the jury sent a note to the trial court requesting several items, including a deputy’s trial testimony. The trial court refused the request on grounds that the transcript was not currently available. This explanation was “indistinguishable from similar responses to jury requests that have been found by our Supreme Court to demonstrate a failure to exercise discretion.” However, the court went on to find that no prejudice occurred.
The trial court did not violate G.S. 15A-1233 by providing a preemptive instruction that denied the jury an opportunity to make any evidentiary requests. The court concluded that no such preemptive instruction was given; the trial court instructed that although no transcript existed, it would consider requests to review testimony on a case by case basis and attempt to accommodate requests if necessary.
The trial court committed prejudicial error by failing to exercise discretion in responding to the deliberating jury’s request to review evidence. The trial court indicated that the requested information was “not in a form which can be presented to [the jury.]” The court found that this statement “demonstrated a belief that [the trial court] was not capable of complying with the jury’s transcript request” and that as a result the trial court failed to exercise discretion in responding to the jury’s request. [Author’s note: For the proper procedure for responding to such a request by the jury, see my Bench Book section here.]
The court reversed and remanded for a new trial where the trial court failed to exercise its discretion regarding the jury’s request to review the victim’s testimony and the error was prejudicial. Responding to the jury’s request, the trial court stated, in part, “We can’t do that.” This statement suggests that the trial court did not know its decision was discretionary.
Although the trial court erred by sending exhibits to the jury deliberation room over objection of defense counsel, the error was not prejudicial. The deliberating jury asked to review a number of exhibits. After consulting with counsel outside of the presence of the jury the trial court directed that certain items be sent back to the jury. Defense counsel objected. Under G.S. 15A-1233, it was error for the court to send the material to the jury room over the defendant’s objection.
(1) The trial court erred when it responded to the deliberating jury’s request to review evidence by sending the requested evidence back to the jury room instead of conducting the jury to the courtroom, as required by G.S. 15A-1233. The defendant however suffered no prejudice. (2) The trial court erred when it allowed the jury to review a statement that had not been admitted in evidence. The defendant however suffered no prejudice.
The trial court properly exercised its discretion when denying the jury’s request to review testimony. Although the trial court’s statements to the jury indicate it thought that a review of that testimony was not possible (statements that normally suggest a failure to exercise discretion), the trial court had previously discussed with counsel the possibility of having the testimony read to the jury. The trial court was aware it had the ability to grant the request, but exercised its discretion in declining to do so.
The trial court violated G.S. 15A-1233 by responding to a jury request to review evidence and sending the evidence back to the jury room instead of bringing the jury into the courtroom. However, no prejudice resulted.
The trial court did not abuse its discretion by allowing the State to display an enhanced version (frame-by-frame presentation) of a video recording during closing argument and jury deliberations. The trial court correctly determined that the enhanced version was not new evidence since the original video had been presented in the State’s case.
The trial court did not abuse its discretion by denying the jury’s request, made during deliberations, for a transcript of a witness’s testimony. The trial court expressly denied the request in its discretion; there is no requirement that the trial judge provide any further explanation to demonstrate that he or she is in fact exercising discretion.
The bailiff’s delivery of an exhibit to the jury, with an instruction from the trial judge that it would need to be returned to the trial court did not prejudice the defendant, even though the trial court violated G.S. 15A-1233(a) by failing to bring the jury into the courtroom when the jury’s asked to review the exhibit. As to the instruction delivered by the bailiff, the court distinguished prior case law, in part, because the communication did not pertain to matters material to the case.
The trial court erred in not exercising its discretion when denying the jury’s request for transcripts of testimony of the victim and the defendant.
The defendant was tried for armed robbery, conspiracy to commit armed robbery, and possession of a firearm by a person previously convicted of a felony. The trial was not over by Friday, and the trial judge called a weekend recess. The trial resumed on the following Monday, the jury convicted the defendant of all charges, and the trial judge sentenced the defendant. (1) The defendant argued that the trial judge failed to extend the session of court in which the trial began, violating the rule against judgments entered out of session. The Court of Appeals rejected this argument in reliance on G.S. 15-167, which allows a trial judge to extend a session if a felony trial is in progress on the last Friday of the session. The Court held that such an extension is valid when the trial judge announces a weekend recess without objection by the parties, as here. Although the trial judge was asked and declined to make written findings to support the extension, her decision not to make findings did not constitute a refusal to extend the session. (2) In response to written questions asked by the jury during deliberations, the trial judge sought clarification by writing out a short message and having the bailiff go to the jury room and read the message. The judge directed the bailiff not to communicate any other information, respond to questions by the jury, or remain for any discussion by the jury. The defendant argued that this procedure violated the requirements of G.S. 15A-1234 and G.S. 15A-1236, which require that responses to jury questions and additional instructions be in open court and which prohibit speaking to the jury. The Court held that assuming the trial judge committed statutory error, the defendant failed to show prejudice. The Court found that the trial judge’s message was clear and unambiguous, did not relate to guilt or innocence, and did not amount to an instruction to the jury. Absent evidence to the contrary, the Court stated that it would presume that both the bailiff and jurors understood and followed the judge’s directive to the bailiff to deliver the message and not to be present for or engage in any colloquy with the jury.
In this felony murder case, the trial court acted within its discretion by declining to answer a question from the deliberating jury. Robbery was the underlying felony for the felony murder charge. During deliberations, the jury sent a note with the following question: “Can this defendant be found guilty of the robbery charge and then found not guilty of the murder charge?” After hearing from the parties, the trial court declined to answer the question yes or no, instead telling the jury to read the written jury instructions that it had previously provided. The court noted that whether to give additional instructions to the jury is within the trial court’s discretion. Here, it was undisputed that the trial court correctly instructed the jury on all offenses and heard from the parties when the question was raised.
(1) In this murder and discharging a barreled weapon case in which the jury heard some evidence that the defendant was affiliated with a gang, the trial court did not deprive the defendant of his constitutional right to a fair and impartial jury by failing to question jurors about a note they sent to the trial court. The note read as follows:
(1) Do we have any concern for our safety following the verdict? Based on previous witness gang [information] and large [number] of people in court during the trial[.] Please do not bring this up in court[.]
(2) We need 12 letters—1 for each juror showing we have been here throughout this trial[.]
According to the defendant, the note required the trial court to conduct a voir dire of the jurors. The court disagreed, noting that the cases cited by the defendant dealt with the jurors being exposed to material not admitted at trial constituting “improper and prejudicial matter.” Here, the information about gang affiliation was received into evidence and the number of people in the courtroom cannot be deemed “improper and prejudicial matter.” (2) The trial court violated the defendant’s constitutional right to presence at every stage of the trial by failing to disclose the note to the defendant. However, the error was harmless beyond a reasonable doubt. (3) Although the court agreed that the trial court should disclose every jury note to the defendant and that failing to do so violates the defendant’s right to presence, it rejected the defendant’s argument that such disclosure is required by G.S. 15A-1234. That statute, the court explained, addresses when a trial judge may give additional instructions to the jury after it has retired for deliberations, including in response to an inquiry by the jury. It continued: “nothing in this statute requires a trial judge to respond to a jury note in a particular way.”
In this felony breaking and entering and larceny case the trial court did not violate G.S. 15A-1234 when responding to a question by the deliberating jury. The defendant argued that the trial failed to afford counsel an opportunity to be heard before responding the jury’s question about the difference between “taking” and “carrying away.” After receiving the question from the jury, the trial court told the parties that it was “going to tell [the jury] the definition of taking is to lay hold of something with one’s hands;” neither party objected to the proposed instructions. The trial court then instructed the jury on this definition, demonstrated the difference between the two terms with a coffee cup, and repeated the elements of felony larceny. Although the trial court did not inform the parties of its visual demonstration, the statute only requires that the trial court inform the parties “generally” of the instruction that it intends to give, as was done here.
Distinguishing State v. Hockett, 309 N.C. 794, 800 (1983) (trial court erred by refusing to answer deliberating jury’s question), the court held that the trial court properly answered the jury’s question about the State’s proof regarding the weapon in a robbery charge.
Although juror misconduct occurred, the defendant’s challenge failed because the error was invited. After it was reported to the judge that a juror did an internet search of a term used in jury instructions, the judge called the jurors into court and instructed them to disregard any other information and to follow the judge’s instructions. When the defendant moved for mistrial, the trial court offered to continue the inquiry, offering to interview each juror. The defendant did not respond to the trial judge’s offer. The court held: “Defendant is not in a position to repudiate the action and argue that it is grounds for a new trial since he did not accept the trial court’s offer to continue the inquiry when the judge offered to do so. Therefore, if any error took place, Defendant invited it.”
In a case where the defendant was convicted of first-degree murder and sentenced to life in prison, the trial court did not abuse its discretion by denying the defendant’s mistrial motions based on juror misconduct and refusing the defendant’s request to make further inquiry into whether other jurors received prejudicial outside information. During the sentencing phase of the trial, the trial court received a letter from juror Lloyd’s brother-in-law claiming that Lloyd contacted his sister and said that one juror failed to disclose information during voir dire, that he went online and found information about the defendant, and that he asked his sister the meaning of the term malice. Upon inquiry by the court Lloyd denied that he conducted online research or asked about the meaning of the term malice. The trial court removed Lloyd from the jury and replaced him with an alternate. The defendant moved for a mistrial before and after removal of Lloyd and asked the trial court to make further inquiry of the other jurors to determine if they were exposed to outside information. Given the trial court’s “searching” inquiry of Lloyd, the court found no abuse of discretion. With regard to the trial court’s failure to inquire of the other jurors, the court emphasized that there is no rule that requires a court to hold a hearing to investigate juror misconduct when an allegation is made.
In a first-degree murder case where the defendant attempted to escape mid-trial, causing a lockdown of the courthouse and the trial court to order a security escort for the jury, the trial court’s procedure for inquiring about the juror’s exposure to media coverage was adequate. When court reconvened the next day, the trial court had the bailiff ask the jurors whether any of them had seen any reports about the events of the previous day. None indicated that they had. The trial court decided that it was unnecessary to individually inquire of the jurors and once the jury was back in the courtroom, the trial court asked them, as a whole, whether they had followed the court’s instructions to avoid any coverage of the trial. None indicated that they had violated the court’s instructions.
In this murder case, the trial court did not err by failing to make further inquiry when a prospective juror revealed during voir dire that prospective jurors were discussing the case in the jury room. Questioning of the juror revealed that “a few” prospective jurors spoke about whether they knew the defendant, what had happened, and news coverage of the crime. The juror indicated that no one knew the defendant or anything about the case. The trial court acted within its discretion by declining to conduct any further examination and limiting its inquiry to the juror’s voir dire.
Although the trial court erred by admitting in a motion for appropriate relief (MAR) hearing a juror’s testimony about the impact on his deliberations of his conversation with the defendant’s mother during trial, the trial court’s findings supported its determination that there was no reasonable possibility the juror was affected by the extraneous information. After the defendant was found guilty it came to light that his mother, Ms. Elmore, spoke with a juror during trial. The defendant filed a MAR alleging that he did not receive a fair trial based on this contact. At the MAR hearing, the juror admitted that a conversation took place but said that he did not take it into account in arriving at a verdict. The trial court denied the MAR. Although it was error for the trial court to consider the juror’s mental processes regarding the extraneous information, the judge’s unchallenged findings of fact supported its conclusion that there was no reasonable possibility that the juror could have been affected by the information. The court noted that the juror testified that Elmore said only that her son was in trouble and that she was there to support him; she never said what the trouble was, told the juror her son’s name, or specified his charges.
In a case involving first-degree murder and other charges, the trial court did not err by denying the defendant’s mistrial motion. On July 16th the trial court learned that while two jurors were leaving the courthouse the previous day after the verdict was rendered in the guilt phase, they saw and heard a man thought to be the defendant’s brother, cursing and complaining about the trial. The two jurors informed the other jurors about this incident. On July 20th, the trial court learned that over the weekend juror McRae had discussed the trial with a spectator at the defendant’s trial. The trial court removed McRae and replaced him with an alternate juror. The court concluded that there was no evidence of jury misconduct prior to or during deliberations as to guilt and that there was no prejudice as to sentencing because the defendant received a sentence of life imprisonment not death.
The trial court did not abuse its discretion by denying the defendant’s mistrial motion. During a recess at trial, a juror was approached by a man who said, “Just quit, and I’ll let you go home.” Upon return to the courtroom, the trial court inquired and determined that six jurors witnessed the incident. The trial court examined each juror individually and each indicated that the incident would not affect his or her ability to follow the trial court’s instructions or review of the evidence. Given the trial court’s response and the lack of evidence showing that the jurors were incapable of impartially rendering their verdict, the trial court did not abuse its discretion by denying the motion.
The trial court did not abuse its discretion by denying a defense motion to dismiss a juror, made after the juror sent a letter to the trial judge requesting to see a DVD that had been played the previous day in court and stating that she thought the defendant’s accent was fabricated. Despite being presented with only a suspicion of potential misconduct, the court made inquiry and determined that the juror had not made up her mind as to guilt or innocence and that she was willing to listen to the remainder of the evidence before considering guilt or innocence. The juror did not indicate that she was unable to accept a particular defense or penalty or abide by the presumption of innocence. Nothing suggested that the juror had spoken with other jurors about her thoughts, shared the note with anyone, or participated in any kind of misconduct. Given the trial court’s examination, it was not required to allow the defense to examine the juror.
The trial court’s entry into the jury room during deliberations to determine the jury’s progress was not subject to plain error review. However, the court admonished the trial court that it should refrain from such conduct “to avoid the possibility of improperly influencing the jury and to avoid disruptions in the juror’s deliberation process.”
The trial court did not abuse its discretion by failing to conduct an inquiry into allegations of jury misconduct or by denying the defendant’s motion for a new trial. The day after the verdict was delivered in the defendant’s sexual battery trial and at the sentencing hearing, defense counsel moved for a new trial, arguing that several jurors had admitted looking up, on the Internet during trial, legal terms (sexual gratification, reasonable doubt, intent, etc.) and the sexual battery statute. The trial court did not conduct any further inquiry and denied defendant’s motion. Because definitions of legal terms are not extraneous information under Evidence Rule 606 and did not implicate defendant’s constitutional right to confront witnesses against him, the allegations were not proper matters for an inquiry by the trial court.
In this sex offense and indecent liberties case, the court held: (1) a sex offense indictment that identified the child victim as “Victim #1” was fatally defective; (2) the trial court’s erroneous failure to conduct a jury instruction conference prior to submitting the existence of a statutory aggravating factor to the jury did not “materially prejudice” the defendant.
(1) Following its decision in State v. White, 372 N.C. 248 (2019), the court held that an indictment charging the defendant with committing a sex offense with a child was fatally defective and facially invalid because it identified the victim as “Victim #1.” As in White, the court found that identifying the victim as “Victim #1” did not satisfy the requirement in G.S. 15-144.2(b) that a short form sex offense with a child indictment “[name] the child.”
(2) The court went on to determine that the trial court’s failure to conduct an instruction conference prior to submitting the existence of the “position of trust or confidence” statutory aggravating factor to the jury was error but that it did not “materially prejudice” the defendant. After accepting the jury’s verdict in the guilt-innocence phase of the trial, the trial court convened a proceeding for the purpose of determining whether a properly noticed “position of trust or confidence” statutory aggravating factor existed. The record clearly established that during this proceeding the trial court did not conduct a jury instruction conference or otherwise discuss the manner in which the jury should be instructed concerning the aggravating factor. G.S. 15A-1231(b) requires trial courts to hold a recorded conference on jury instructions but states that a failure “to comply fully” with the statute does not constitute grounds for appeal unless it “materially prejudiced the case of the defendant.” The Court of Appeals had held, relying on its own precedent, that the total failure to conduct a jury instruction conference necessitated a new proceeding on the aggravating factor regardless of whether the defendant made a showing of “material prejudice.” The Supreme Court rejected this approach and its distinction between cases in which the trial judge entirely fails to comply with G.S. 15A-1231(b) and those where there is partial compliance. Overruling any earlier decisions to the contrary, the Supreme Court explained:
[T]he reference in [G.S.] 15A-1231(b) to the necessity for the trial court to “comply fully” with the statutory requirement that a jury instruction conference be conducted, instead of distinguishing between a complete and a partial failure to comply with the applicable statutory requirement, is intended to require the making of a showing of “material prejudice” a prerequisite to an award of appellate relief regardless of the nature and extent of the trial court’s non-compliance with [G.S.] 15A-1231(b).
With this explanation of the statute, the court proceeded to analyze whether the defendant was materially prejudiced in this case and concluded that he was not, noting that there was undisputed overwhelming evidence that the victim was dependent on the defendant in various ways as his step-child and that the court previously had stated that evidence establishing a parent-child relationship tends to support the aggravating factor at issue.
In separate opinions, Justices Newby and Morgan dissented in part and concurred in result only in part. Justice Newby dissented from the portion of the majority opinion dealing with the validity of the indictment, noting that the defendant was “fully aware of the identity of the victim” and expressing his view that the indictment was sufficient. As for the instruction conference issue, Justice Newby interpreted G.S. 15A-1231(b) as not requiring a formal instruction conference at a sentencing proceeding to determine the existence of an aggravating factor. In a footnote, the majority opinion rejected this interpretation of the statute.
Justice Morgan also would have found the indictment valid because, scrutinizing the whole record, it sufficiently apprised the defendant of the charge against him. Justice Morgan noted that the victim’s initials appeared on the arrest warrant that was issued for the defendant and on an indictment returned against him for indecent liberties involving the same victim. Justice Morgan would have reached the same conclusion as the majority with regard to the instruction conference issue but would have done so by distinguishing rather than overruling the pertinent Court of Appeals opinions.
Although the trial court erred by failing to fully comply with the statutory requirements regarding a charge conference at the sentencing phase of this felony child abuse case, no material prejudice resulted. The court noted that G.S. 15A-1231(b) requires the trial court to hold a charge conference, regardless of whether a party requests one, before instructing the jury on aggravating factors during the sentencing phase of a non-capital case. Here, the trial court informed the parties of the aggravating factors that it would charge, gave counsel a general opportunity to be heard at the charge conference, and gave counsel an opportunity to object at the close of the instructions. However, because the trial court failed to inform counsel of the instructions that it would provide the jury, it deprived the parties of the opportunity to know what instructions would be given, and thus did not comply fully with the statute.
(1) The court rejected the defendant’s argument that the trial court erred by providing the jury with written jury instructions on the charge of felonious breaking or entering which conflicted and materially differed from the court’s earlier oral instructions. As a general rule, when there are conflicting instructions on a material point, a new trial is required. Here, the trial court’s initial oral instructions stated, in part, that the jury must find that, at the time of the breaking or entering, the defendant intended to commit the felony of assault. Subsequently, the trial court noted to counsel that he wanted to add the definition of “the felony of assault” in written instructions to be given to the jury. Both sides agreed to the trial court’s proposed language. The revised language stated that the felony of assault would be assault with a deadly weapon with intent to kill, inflicting serious bodily injury or an attempt to commit that crime. The court rejected the defendant’s argument that the oral and written instructions conflicted. Here, recognizing that the oral instructions may have been insufficient, the trial court provided the additional language simply to further define “the felony of assault.” The trial court may clarify its jury instructions. (2) Even assuming that the trial court erred in its jury instructions, the error did not rise to the level of plain error.
In a footnote, the court “urge[d]” the trial courts to define all relevant terms in its jury instructions and avoid the situation that occurred here, where the trial court declined to define the relevant term and allowed counsel to argue definitions of the term to the jury.
In this Beaufort County case, defendant appealed jury verdicts of guilty for second degree kidnapping and assault on a female. Defendant provided three grounds for appeal, (1) denial of his motion to dismiss the kidnapping charge based upon the State’s failure to offer evidence of intent, (2) that the trial court failed to define “serious bodily injury” in jury instructions, and (3) that the statute creating assault on a female is unconstitutional.
Reviewing the first issue on appeal, the Court of Appeals explained that to prove kidnapping, the State must present sufficient evidence that defendant had specific intent to do serious bodily harm when removing or transporting the victim. The court found that the State presented substantial evidence of defendant’s intent through testimony that defendant put his car in reverse and drove away while the victim’s leg was still outside and the passenger door was open, and continued to drive while the victim pleaded with defendant to stop the car. Defendant also grabbed the victim while driving, pulling her hair and choking her. This behavior represented sufficient evidence that defendant removed the victim with intent to do serious bodily harm to justify the trial court’s denial of the motion to dismiss.
For the second issue, the Court of Appeals found that the trial court used the pattern jury instructions for first and second degree kidnapping when instructing the jury. Those instructions do not contain a definition of “serious bodily injury.” Because defendant could not supply caselaw or a statute requiring this definition in the jury instruction, the lack of a definition did not rise to the level of plain error justifying a new trial.
Defendant’s final issue argued that the statute creating assault on a female was unconstitutional due to discrimination on the basis of sex. However, defendant did not raise the issue at trial and thus the issue was not preserved for appellate review, and the Court of Appeals declined to exercise discretion under Rule 2 of the North Carolina Rules of Appellate Procedure to review the issue. The court found no error in the trial court’s judgment.
(1) The court rejected the defendant’s argument that the trial court erred by providing the jury with written jury instructions on the charge of felonious breaking or entering which conflicted and materially differed from the court’s earlier oral instructions. As a general rule, when there are conflicting instructions on a material point, a new trial is required. Here, the trial court’s initial oral instructions stated, in part, that the jury must find that, at the time of the breaking or entering, the defendant intended to commit the felony of assault. Subsequently, the trial court noted to counsel that he wanted to add the definition of “the felony of assault” in written instructions to be given to the jury. Both sides agreed to the trial court’s proposed language. The revised language stated that the felony of assault would be assault with a deadly weapon with intent to kill, inflicting serious bodily injury or an attempt to commit that crime. The court rejected the defendant’s argument that the oral and written instructions conflicted. Here, recognizing that the oral instructions may have been insufficient, the trial court provided the additional language simply to further define “the felony of assault.” The trial court may clarify its jury instructions. (2) Even assuming that the trial court erred in its jury instructions, the error did not rise to the level of plain error.
The court rejected the defendant’s argument that the trial court erred by failing to give additional jury instructions in open court and make them a part of the record as required by G.S. 15A-1234. Where, as here, the trial judge simply repeats or clarifies instructions previously given and does not add substantively to those instructions, the court’s instructions are not “additional instructions” within the meaning of the statute.
The trial court did not abuse its discretion by declining to provide the jury with a written copy of the jury instructions when asked to do so by the jury.
(1) The defendant was indicted for trafficking in MDMA, among other charges. When the case came on for trial, the trial judge called in prospective jurors and questioned them about undue hardships and conflicts with the parties and informed them of the charges against the defendant. The prosecutor then requested a bench conference at which he pointed out that the substance in the lab report showed that the relevant substance was methamphetamine, not MDMA. The prosecutor gave the defendant the choice between having the State dismiss the MDMA charge and reindict for trafficking in methamphetamine, or waiving indictment and proceeding by bill of information. The defendant chose the latter and was convicted at trial. On appeal, the defendant argued that the trial court lacked subject matter jurisdiction because the State did not file the superseding information “before . . . commencement of trial” within the meaning of G.S. 15A-646. The Court of Appeals disagreed, concluding that G.S. 15A-646 does not place any timing deadline on the State, but rather merely imposes a ministerial duty on the judge to dismiss the initial charge if a superseding indictment or information is filed before trial. The appellate court also rejected the defendant’s argument that the trial court lacked subject matter jurisdiction because the defendant was not formally arraigned on the new charge, as the lack of formal arraignment is not revisable error when the defendant does not object and assert inadequate knowledge of the charge. (2) The defendant also argued that the trial court committed plain error by failing, despite the lack of a request or objection, to instruct the jury on the requirement that the defendant have guilty knowledge of the methamphetamine. The Court of Appeals rejected the argument, distinguishing an earlier case, State v. Coleman, 227 N.C. App. 354 (2013). In Coleman, the court found plain error when the trial court failed to instruct on guilty knowledge for a defendant convicted of trafficking heroin who knew he possessed drugs, but who thought he had marijuana and cocaine, not heroin. Here, the defendant denied any knowledge about the existence of the methamphetamine and argued that it belonged to someone else. Even assuming the trial court erred by not giving the instruction, the Court of Appeals concluded it would not rise to the level of plain error given the evidence against the defendant.
In this capital case, the court rejected the defendant’s argument that the trial court abused its discretion by denying his requests for a mistrial because of two statements made by the State during closing arguments at the guilt phase of the trial. During the investigation of the case, the defendant authorized defense counsel to reveal the location of the victim’s body, in hopes of receiving a plea offer or perhaps the possibility of arguing for mitigating circumstances at a possible later capital trial. The defendant and the lawyers agreed that the information would be conveyed to the police but that its source would not be disclosed. The lawyers carried out this agreement in making their disclosure to law enforcement. During closing argument at trial, the prosecutor noted in part that the victim’s body was found “where the defendant’s lawyer said he put the body.” Later, the prosecutor asserted, “And his defense attorney telling law enforcement where to look for the body puts him there.” The court found that the second statement was not improper. Evidence that the information of the victim’s location was conveyed to law enforcement by defense counsel was properly admitted by the trial court and this evidence permitted reasonable inferences to be drawn that were incriminating to the defendant, specifically that the defendant was the source of the information and had been to the location. The prosecutor’s first statement however was improper. This statement was couched as an assertion of fact which was not an accurate reflection of the evidence. However, the statement did not require a mistrial. The court stated: “this sole misstatement of that evidence did not run far afield of what was permissible.”
In this Buncombe County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and malicious maiming, arguing error in overruling his Batson objection and denying his motions for mistrial. The Court of Appeals found no prejudicial error.
During voir dire for defendant’s trial in June of 2019, the State used a peremptory strike on a black potential juror who expressed reservations about the death penalty. Defendant raised a Batson objection, and the trial court conducted the three-step analysis (this exchange is reproduced on pages 6-11 of the opinion). The trial court found that there had not been a sufficient showing of race as a motivating factor in the third step of the Batson analysis, overruling the objection. After the denial but during the trial, one of the State’s witnesses was killed. One juror learned of the killing through a press release issued by the DA’s office, and was excused for cause. Defendant moved for a mistrial, and the motion was denied. After the verdict, defendant learned another juror had heard of the killing, and moved for a mistrial again; the trial court denied this motion as well.
Beginning with the Batson issue, the Court of Appeals explained the procedural requirements for a Batson objection as clarified by State v. Hobbs, 374 N.C. 345, 356 (2020). The court then turned to the scope of review, explaining “we base our analysis on a review of the whole record, engaging in a full, written analysis of all arguments raised by Defendant at trial.” Slip Op. at 19. The court considered and rejected defendant’s argument that striking jurors for their views on race was equivalent to striking jurors for their actual race, but noted that “to the extent Defendant offers [the juror’s] views about race and the views of the three stricken white jurors as context to support an allegation that the strike of [the juror] was pretextual, we consider his argument for that limited purpose.” Id. at 21. Moving to the actual Batson analysis, the court examined the questioning of white jurors along with the black juror who triggered the Batson objection. Although the court noted that “the case is close,” it could not establish clear error in denying the Batson objection, pointing out that the black juror who was struck shared many similarities with a white juror who was struck for her views on the death penalty. Id. at 32.
Considering the motions for mistrial, the court could not find an abuse of discretion by the trial court in denying either motion. The court noted that the trial court issued a curative instruction about the use of cell phones, and that the juror in question for the second motion only saw a headline and did not express any issue with being fair and impartial. The court likewise rejected defendant’s argument that the trial court should have recused itself from the second mistrial motion, explaining the judge did not act as a witness on the question of whether the juror could perform his duties impartially.
Chief Judge Stroud and Judge Zachary concurred in the result only.
The defendant arranged a meeting with the victim through an app for the purchase of a phone. The victim left his home to go get the phone and was later found shot and killed. Communications found on the app led police officers to the defendant, who was 15 years old at the time.
Officers contacted the defendant’s mother and arranged to meet with the defendant as a witness in a larceny case. The officers met with and questioned the defendant in the presence of his parents. During the questioning, the defendant told the officers about the meeting that had been arranged for the purchase of the phone, and eventually disclosed that one of his companions wanted to rob the victim. Although the defendant carried a gun at the time of the incident, the defendant insisted that his own plan was not to rob the victim but rather sell him the phone.
The defendant was found guilty of attempted robbery with a dangerous weapon and first-degree murder. The defendant was found not guilty of conspiracy to commit robbery with a firearm.
(1) On appeal, the defendant argued that the trial court erred by denying the defendant’s challenge for cause to dismiss a juror. The Court of Appeals held that the defendant failed to preserve the issue for appeal because he did not adhere to the procedures established by G.S. 15A-1214(i). Specifically, the defendant did not (1) previously peremptorily challenge the juror; or (2) state in his motion to renew his challenge for cause that he would have challenged that juror peremptorily had his challenges not been exhausted.
(2) The defendant’s next argument on appeal was that the trial court erred by denying his motion to suppress his confession. The defendant contended that detectives gained access to him, a fifteen-year-old boy, by deceiving his mother, repeatedly told the defendant that he was lying, and capitalized on the presence of his parents to extract the confessions from him. Based on the trial court’s findings of fact, the Court of Appeals concluded that the defendant was in a non-custodial setting in his grandmother’s home with his parents, was informed the discussion was voluntary, was not handcuffed or otherwise restrained, and was not coerced, deceived, or threatened. The defendant did not challenge any of the trail court’s findings of fact. The Court of Appeals held that the trial court’s findings of fact fully support its conclusions of law, and based upon the totality of the circumstances, held that the defendant’s statement was voluntary. The Court affirmed the trial court’s denial of the defendant’s motion to suppress his non-custodial statement.
(3) The defendant argued that the trial court erred by failing to instruct the jury on second-degree murder as a lesser-included offense of first-degree murder because there was evidence that supported the instruction. In rejecting this argument, the Court of Appeals noted that there was no evidence that the victim was killed other than in the course of an attempted robbery. The Court concluded that there was no evidence in the record from which a rational juror could find the defendant guilty of second-degree murder and not guilty of felony murder.
(4) The defendant’s final argument was that the trial court erred by failing to order a discretionary transfer hearing as a matter of due process. The defendant argued that the juvenile petition did not contain facts indicating that he committed first-degree murder, so a discretionary transfer hearing should have occurred as required under G.S. 7B-2203. The Court of Appeals rejected this argument, noting that the defendant already had a transfer hearing in district court, and the defendant did not appeal the district court’s order to superior court as required by G.S. 7B-2603.
The defendant also contended that the trial court violated his right to due process by allowing the State to prosecute him under felony murder because felony murder is based on deterrence, which is not effective for and should not apply to juveniles. However, the Court of Appeals considered the argument abandoned because the defendant failed to cite any law indicating a juvenile may not be convicted of felony murder.
Chief Judge Stroud dissented in part to say that because there was a conflict in the evidence regarding an element of felony murder, specifically whether or not the defendant planned to rob the victim, the evidence supported an instruction for the lesser included offense of second-degree murder.
In this case involving possession of a firearm by a felon and carrying a concealed weapon, (1) binding caselaw required that the defendant’s conviction for felon in possession be vacated because the indictment was fatally defective; and (2) the trial court’s ruling on the defendant’s motion to suppress was based on improper findings of fact.
(1) G.S. 14-415.1(c) dictates that an indictment charging a defendant with possession of a firearm by a felon must be separate from any indictment charging other offenses related to or giving rise to the felon in possession charge. Here, a single indictment charged the defendant with felon in possession, possession of a firearm with an altered/removed serial number, and carrying a concealed weapon. Finding itself bound by State v. Wilkins, 225 N.C. App. 492 (2013), the court determined that the State’s failure to obtain a separate indictment for the felon in possession offense rendered the indictment fatally defective and invalid as to that offense.
(2) The court determined that the trial court’s order denying the defendant’s Fourth Amendment motion to suppress a firearm seized from the center console of his vehicle did not contain adequate findings of fact pertaining to a material conflict in the evidence of the accessibility of the firearm and consequently the trial court plainly erred in denying the motion.
An officer initiated a valid traffic stop of the defendant and searched the vehicle for marijuana based on an emanating odor. During the search, the officer felt and saw the handgrip of a pistol around the center console, arrested the defendant for carrying a concealed weapon, and then removed a plastic panel from the console to retrieve the pistol. The defendant challenged the trial court’s finding of fact that “no tools were needed” to remove the panel, a finding bearing upon the accessibility of the pistol for purposes of determining whether the officer had probable cause for the independent search of the console premised on the offense of carrying a concealed weapon. Reviewing the testimony, the court of appeals found that the finding that “no tools were needed” was not supported by the testimony at the suppression hearing and that the trial court otherwise failed to make necessary findings as to the accessibility of the pistol. Because the accessibility issue was not resolved by adequate findings, the trial court’s conclusion of law regarding probable cause was not supported and it could not properly rule on the defendant’s motion to suppress. The court remanded the case for the trial court to make further findings on the issue.
On remand from the Supreme Court, __ N.C. __, 814 S.E.2d 39 (June 8, 2018), of this DWI case, the Court of Appeals declined to exercise its discretion to grant the defendant’s petition for a writ of certiorari to review her claim that the trial court erred by denying her motion to dismiss. The defendant’s motion to dismiss asserted that the State violated G.S. 20-38.4, G.S. 15A-534, and State v. Knoll, 322 N.C. 535 (1988), when the magistrate failed to provide her a written copy of form AOC-CR-271, advising of her right to have witnesses observe her demeanor in jail; and failed to enter sufficient findings of fact to show that the defendant was a danger to herself and others to justify imposing a secured bond pursuant to G.S. 15A-534. Dismissal of charges for violations of statutory rights is a drastic remedy which should be granted sparingly. Before a motion to dismiss should be granted it must appear that the statutory violation caused irreparable prejudice to the preparation of the defendant’s case.
On the first issue, the State conceded that the magistrate did not comply with G.S. 20-38.4 in that the magistrate did not inform the defendant in writing of the established procedure to have others appear at the jail to observe her condition and failed to require her to list all persons she wanted to contact and telephone numbers on the relevant form. However, the State argued that the defendant could not demonstrate irreparable prejudice to the preparation of her case because the magistrate orally informed the defendant of her right to have witnesses present to observe her condition. In denying the motion to dismiss, the trial court found that the magistrate told the defendant of her right to have individuals come to the detention center to observe her condition and that once she was placed in the detention center, the defendant was allowed to make phone calls to several identified people. These findings are supported by competent evidence.
With respect to the defendant’s argument that the magistrate violated G.S. 15A-534, the magistrate testified that he considered the defendant’s condition in deciding whether to impose a secured bond and initially entered his reasons on his computer for imposing a secured bond into the “FINDINGS” section of form AOC-CR-270. However, he accidently deleted his reasons listed on form AOC-CR-270 and they were replaced with the text and finding of “BLOOD TEST.” Competent evidence supports the trial court’s findings that the magistrate considered the factors in G.S. 15A-534 in setting the defendant’s bond, and found by clear, cogent, and convincing evidence that the defendant’s physical or mental faculties were impaired and that she was a danger to herself, others or property if released.
The defendant failed to show that she was denied access to witnesses, her right to have witnesses observe her condition, or her right to collect evidence and did not demonstrate irreparable prejudice to the preparation of her case by the magistrate’s statutory violations and failures to provide her with a copy of form AOC-CR-271 or to make additional factual findings to justify imposing a secured bond under G.S. 15A-534. The court noted that the defendant was informed of her right to have witnesses observe her and had the means and was provided the opportunity to contact potential witnesses. Additionally, the magistrate’s detention order required the defendant to remain in custody for a twelve-hour period or until released into the custody of a sober, responsible adult. In fact, the defendant was released into the custody of a sober acquaintance after spending only two hours and fifty-three minutes in jail.
The court went on to reject the defendant’s argument that she was per se prejudiced by the magistrate’s statutory violations, pursuant to State v. Hill, 277 N.C. 547 (1971). Distinguishing Hill the court noted that no evidence in the record suggests the State took affirmative steps to deprive the defendant of any access to potential witnesses or an attorney, such as by preventing them from talking to the defendant or entering the jail to observe her. It continued: “Unlike the defendant in Hill, Defendant was told of her right to have observers present, was not limited to one phone call following her arrest, was allowed and did make numerous calls to multiple individuals and was released to a sober adult within less than three hours. Additionally, the Supreme Court later acknowledged in Knoll that the per se prejudice rule stated in Hill is no longer applicable.”
Ultimately the court found that the defendant’s arguments failed to demonstrate “irreparable prejudice to the preparation of defendant’s case” and that that she did not raise any “good and sufficient cause” to support the court’s exercise of its discretion to grant her petition and issue the writ of certiorari.
(1) The defendant, on trial for multiple drug charges, challenged the prosecutor’s peremptory strike of the only Black juror in the venire under Batson v. Kentucky. The trial court overruled the defendant’s objection, finding that although the “100 percent rejection rate of African American jurors” established a prima facie showing of discrimination, the State gave credible race-neutral reasons for striking the prospective juror, and the defendant therefore did not prove purposeful discrimination. The defendant appealed, arguing that the trial court erred in denying his Batson challenge or, in the alternative, failed to make adequate findings of fact as required by State v. Hobbs, 374 N.C. 345 (2020). The Court of Appeals rejected the State’s argument that the defendant had not preserved the issue because the record did not disclose direct evidence of the race of the challenged juror and the jury selection process was not recorded. The Court held that the record sufficed to permit appellate review when the record of the Batson hearing included express statements, undisputed by the State, that the defendant was African American and that the lone African American in the jury pool was excluded. On the merits of the Batson challenge, the Court concluded that the trial court failed to make sufficient findings of fact on its comparative analysis of the answers regarding prior criminal history given by the stricken Black juror (who had a previous child abuse charge dismissed) and a White juror passed by the State (who had a prior drug charge dismissed). The trial court also failed to make findings of fact on the defendant’s argument that the State’s purported concern about the defendant’s “tone of voice” suggested racial bias. The Court remanded the matter to the trial court for specific findings, including, but not limited to the details of the court’s comparative juror analysis and on the defendant’s assertion that the prosecutor’s statements regarding the defendant’s answers to questions and tone of voice evinced racial bias. (2) The trial court erred by assessing costs in each of the four judgments against the defendant. Under State v. Rieger, ___ N.C. App. ___, 833 S.E.2d 699 (2019), the trial court should assess costs only once for cases adjudicated together in the same hearing or trial regarding multiple charges arising from the same underlying event or transaction.
In this Alamance County case, defendant appealed his convictions for driving while impaired (DWI), resisting a public officer, and being intoxicated and disruptive, arguing error in (1) excusing potential jurors for cause, (2) denying defendant’s motion to dismiss the DWI charge, and (3) calculating the appropriate sentence. The Court of Appeals found no error in (1) and (2), but in (3) remanded for resentencing for the resisting a public officer and intoxicated and disruptive offenses.
In April of 2021, police officers noticed a wrecked vehicle in the middle of the road and saw defendant attempting to hide behind a building nearby. Officers eventually arrested defendant, and found a key fob in his pocket that opened the doors of the wrecked vehicle. When defendant came to trial for the charges at superior court, he pleaded guilty to resisting an officer and being intoxicated and disruptive prior to the jury trial. During voir dire, the trial court dismissed two jurors for cause own its own initiative. Defense counsel did not object to either dismissal. Defendant was found guilty of the DWI charge, and the court sentenced defendant for all three charges.
Taking up defendant’s argument (1), the Court of Appeals noted that the two dismissed jurors “both expressed strong emotions against law enforcement based upon their personal experiences with officers.” Slip Op. at 10. The court noted the defendant also did not use all of his peremptory challenges. Because there was no evidence that the empaneled jury was unfair, the court overruled defendant’s argument.
Moving to (2), defendant argued that no evidence showed he operated or owned the wrecked vehicle involved in the DWI charge. The court disagreed, noting there was no direct evidence of defendant operating the car while impaired, but sufficient circumstantial evidence to support the conviction. The officers observed defendant near the wrecked vehicle, found a key fob corresponding to the vehicle in his pocket, and observed him at the Cook-Out intoxicated and with a fresh cut on his forehead.
Finally, in (3) the court noted that defendant was sentenced to 120 days’ confinement for the resisting a public officer and intoxicated and disruptive misdemeanors, while “the maximum, combined sentence allowed by law is 80 days.” Id. at 14. The court remanded to allow resentencing based on the correct calculation of possible confinement.
Upon trial de novo in superior court, the defendant in this case was convicted of misdemeanor injury to personal property for throwing a balloon filled with black ink onto a painting during a protest at an arts event in Asheville. The defendant received a suspended 30-day sentence and was ordered to pay $4,425 in restitution. On appeal, the defendant argued that her motion to dismiss the injury to personal property charge should have been granted due to a fatal variance, and argued that the restitution amount was improperly based on speculative value. The appellate court rejected both arguments.
The charging document alleged that the defendant had damaged the personal property of the artist, Jonas Gerard, but the evidence at trial indicated that the painting was the property of the artist’s corporation, Jonas Gerard Fine Arts, Inc., an S corporation held in revocable trust, where Jonas Gerard was listed as both an employee and the sole owner. Although this evidence established that the artist and the corporation were separate legal entities, each capable of owning property, the court held that the state’s evidence sufficiently demonstrated that the artist named in the pleading was nevertheless a person who had a “special interest” in the property and was therefore properly named in the charging instrument. The painting was not yet complete, it was still in the artist’s possession at the time it was damaged, and the artist regarded himself and the corporation as functionally “one and the same” and he “certainly held out the paintings as his own.” Finding the facts of this case analogous to State v. Carr, 21 N.C. App. 470 (1974), the appellate court held that the charging document was “sufficient to notify Defendant of the particular piece of personal property which she was alleged to have damaged,” and the trial court did not err in denying the motion to dismiss for a fatal variance.
The restitution amount was also supported by competent evidence. A witness for the state testified that a potential buyer at the show asked what the painting would cost when completed and was told $8,850, which was the gallery’s standard price for paintings of that size by this artist. The artist also testified that the canvas was now completely destroyed, and the black ink could not be painted over. The trial court ordered the defendant to pay half that amount as restitution. The appellate court held that the fact that the painting “had not yet been purchased by a buyer does not mean that the market value assigned by the trial court for restitution was speculative.” The evidence presented at trial was sufficient to establish a fair market value for the painting prior to it being damaged, and the trial court’s restitution order would not be disturbed on appeal.
In this sex offense and indecent liberties case where the defendant was ordered to enroll in lifetime SBM, the trial court did not plainly err with respect to an Allen charge, the defendant did not preserve his argument related to SBM, and the defendant received statutory ineffective assistance of counsel during the SBM proceedings. Approximately one hour after beginning deliberations, the jury sent a question to the court asking for clarification as to whether they must have unanimous agreement to render a guilty verdict and whether a lack of unanimity would require that they return a not guilty verdict. In response and without objection from either party, the trial court responded to the jury’s question with instructions derived from G.S. 15A-1235(a). The court of appeals rejected the defendant’s argument that the trial court plainly erred by omitting instructions from G.S. 15A-1235(b), explaining that the jury’s question asked for clarification on the issue of unanimity and did not clearly indicate that the jury was deadlocked, in disagreement, or at an impasse. As such, the trial court did not err by reciting the unanimity instructions in G.S. 15A-1235(a) without providing the additional instructions in subsection (b).
As to SBM, the court first found that the defendant failed to preserve a Fourth Amendment challenge to the lifetime SBM order by failing to make a constitutional objection during the sentencing proceeding where SBM was addressed, and further declined to invoke Rule 2 to reach the issue. The court went on to agree with the defendant’s alternative argument that he received statutory ineffective assistance of counsel under G.S. 7A-451(a)(18). Likening the case to State v. Spinks, ___ N.C. App. ___, 2021-NCCOA-218 (2021), the court found that counsel was ineffective by failing to object to SBM enrollment or file a notice of appeal from the SBM order where the State offered no evidence of the reasonableness of lifetime SBM.
In this Pasquotank County case, defendant appealed his conviction for first-degree murder, arguing the trial court erred in several matters related to the COVID-19 pandemic and by admitting irrelevant and hearsay testimony. The Court of Appeals found no error.
In May of 2018, defendant was in an altercation in Elizabeth City; defendant pulled a gun as the victim ran away and shot him several times in the back. The matter reached trial on January 11, 2021, after delays related to COVID-19. On the first day of trial, defense counsel made a motion to continue, arguing that she did not feel safe proceeding due to COVID-19. The trial court denied the motion to continue. The trial was subject to capacity limitations and modified jury selection procedures to limit the proximity of those in the courtroom, leading to additional issues on appeal.
Defendant first argued that the trial court lacked subject-matter jurisdiction to hear the case, pointing to the emergency orders from then-Chief Justice Beasley issued on December 14, 2020, forbidding jury trials for the next thirty days unless a jury was already empaneled. The Court of Appeals noted that Chief Justice Newby was sworn in on January 1, 2021, and a commission to the superior court hearing the matter was issued on January 5. The new chief justice also issued an order effective January 14, 2021, allowing the emergency directives in question to expire. The court found that the emergency order did not remove the superior court’s jurisdiction, and “[t]he 5 January 2021 AOC commission for this session and the 13 January 2021 order from Chief Justice Newby effectively repudiated and superseded the 14 December 2020 order.” Slip Op. at 9.
Moving to defendant’s trial-related issues, the court first considered denial of the motion to continue, explaining that defendant could not show prejudice justifying a new trial because defense counsel “was legally prepared to try the case, but was solely worried about potential COVID-19 risks,” and defendant made “no showing of any deficient representation throughout trial.” Id. at 14. The court next considered the argument that defense counsel should have been barred under Emergency Directive 2 from the December 14, 2020, emergency orders, as this order forbid persons likely exposed to COVID-19 from entering the courthouse. Rejecting this argument, the court noted that defense counsel did not identify her likely exposure to the clerk or mention it in her motion to continue, meaning she never presented the issue to the court for consideration prior to her motion. Examining defendant’s argument that the courtroom closure for capacity reasons violated his right to a public trial, the court explained that he failed to preserve this issue on appeal and declined to apply Rule of Appellate Procedure 2 to revive it. Finally, the court rejected defendant’s challenge to jury selection, holding:
While the jury selection procedure the court utilized here may have varied the express requirement of N.C. Gen. Stat. § 15A-1214(d) requiring the State to pass a full panel of twelve prospective jurors . . . [d]efendant was not forced to accept any undesirable juror as a result of the passing of less than twelve prospective jurors during jury selection procedure under these circumstances. Id. at 21-22, citing State v. Lawrence, 365 N.C. 506 (2012).
The court last turned to defendant’s challenge to the admission of Exhibits 54, 55, and 57. Exhibits 54 and 55 were Facebook messages, and Exhibit 57 was documentation of a handgun purchase. Noting the exhibits “were probative to issues of [d]efendant’s guilt, [d]efendant’s opportunity to acquire a weapon, and [d]efendant’s possible motive for the killing,” the court rejected defendant’s challenge to relevancy. Slip Op. at 25. The court then looked at the admission of Exhibit 54, a Facebook message exchange between defendant’s sister and the victim’s sister describing a dispute between defendant and the victim over payment for a gun. The court found no error in admitting this exchange, and noted that North Carolina law “permits declarations of one person to be admitted into evidence for the purpose of showing that another person has knowledge or notice of the declared facts and to demonstrate his particular state of mind.” Id. at 27, quoting State v. Swift, 290 N.C. 383, 393 (1976).
The defendant was charged with attempted first-degree murder and various other assaults against his wife in Henderson County. The State proceeded only on the attempted murder at trial. After the jury was empaneled, the trial court discovered that the indictment failed to allege malice, an essential element for attempted first-degree murder. The trial court ordered a mistrial over the defendant’s objection and dismissed the indictment. At retrial, the defendant’s double jeopardy argument was overruled and the defendant was convicted of attempted murder. On appeal in that case (“Schalow I”), the Court of Appeals determined that the second prosecution violated the Double Jeopardy Clause and vacated the convicted (Phil Dixon blogged about that case, here). Following that ruling, the State sought discretionary review in the Supreme Court and indicted the defendant on 14 counts of felony child abuse relating to the assaults on his wife. In remarks to the media, the District Attorney stated as follows:
If . . . the Supreme Court refuses to take up the case, then I have a plan to address that circumstance and will take additional action to see that [Defendant] is held accountable for his actions. . . . I will do everything that I can do to see that [Defendant] remains in custody for as long as possible.
The N.C. Supreme Court declined to review the Court of Appeals decision in Schalow I, and the DA posted on social media about his intentions to ensure the defendant stayed in custody, that he received a sentence similar to his first, and to prosecute the defendant again. Additional indictments for assaults against his wife were brought. All of the new charges in the third prosecution were based on the same alleged assaults against the defendant’s wife that constituted the basis for the first prosecution.
At trial, the defendant again moved to dismiss. He claimed the prosecution violated double jeopardy, constituted a vindictive prosecution, and was in violation of his rights to joinder of offenses. The trial court denied the motion, and the defendant sought certiorari review of that decision pretrial, which was granted. [The defendant had previously sought pretrial review of the denial of his motion to dismiss for double jeopardy in Schalow I and was denied.] The court granted relief on the vindictive prosecution and joinder claims.
(1) Under North Carolina v. Pearce, 395 U.S. 711 (1969), it is a due process violation for the court to impose penalties on the defendant in response to the defendant’s successful appeal or collateral attack. Blackledge v. Perry, 417 U.S. 21 (1974) later extended the protection from vindictive acts to charging decisions by the prosecution, so that the State could not try the defendant for more serious charges following the defendant’s successful appeal from the original charges of conviction. “The Blackledge court clarified that a defendant need not show that the prosecutor actually acted in bad faith; instead, where the reviewing court determines that ‘a realistic likelihood of ‘vindictiveness’’ exists, a presumption of vindictiveness may be applied.” To demonstrate a vindictive prosecution, the defendant must show that either actual intent to punish the defendant for the lawful exercise of his rights, or that the facts support presuming vindictiveness and the State failed to rebut that presumption. If a prosecution is found to be vindictive, the conviction must be vacated.
Here, the district attorney charged the defendant three different times for the same conduct. Each time, the district attorney increased the seriousness and number of charges, resulting in greater sentencing exposure to the defendant at each prosecution. The first case charged attempted manslaughter (based on the flawed indictment for attempted first-degree murder); the second case involved attempted first-degree murder; the third case involved 14 counts of child abuse, three class C assaults, two class F assaults, and one class H assault, with aggravating factors alleged in each. The defendant was facing over 35 years more time in prison in the third case, compared to the second. “[W]here a defendant is indicted on charges carrying a ‘significantly increased potential period of incarceration’ after the defendant ‘does what the law clearly permits him to do’—here, appealing from the judgment in the Second Prosecution—a reviewing court may presume prejudice.” The presumption here was “particularly appropriate here” due to the involvement of the same prosecutor at each stage. The court rejected the State’s argument that no presumption of vindictiveness should apply, because the State was only attempting to correct pleadings errors. The defendant was exposed to 19 more charges in the third prosecution, carrying significantly increased penalties. This was not rectifying pleading defects and warranted a presumption of vindictiveness.
The State also failed to rebut the presumption of vindictiveness. The only evidence showed that the DA charged in response to the outcome of its appeal of Schalow I and that the DA was determined to ensure the defendant stayed in custody “as long as possible.” Even if this did not amount to actual vindictiveness (which the court did not decide), the defendant showed that his case warranted a presumption of vindictiveness which the State failed to overcome. “[T]o hold such evidence can be sufficient to overcome a presumption of vindictiveness would effectively eviscerate the presumption altogether, and thereby render Pearce and its progeny nugatory.” The new charges were therefore dismissed.
(2) Under G.S. 15A-926, related offenses may be joined for trial. If a defendant is tried on a joinable offense and thereafter is put on trial for another related offense, he may move for dismissal for failure to join offenses, subject to the exceptions in the statute. Under State v. Warren, 313 N.C. 254 (1985), where the prosecution withholds additional charges in an effort to avoid statutory joinder of offenses, the new charges must be dismissed. In the words of the Warren court:
If a defendant can show, for example, that during the first trial the prosecutor was aware of substantial evidence that the defendant committed the crimes for which he was later indicted, this would be some evidence that the delay in bringing the later indictment was for the purpose of circumventing the statute. A showing that the State’s evidence at the second trial would be the same as the evidence presented in the first trial would also tend to show that the prosecutor delayed the indictment on the additional crimes for such purpose. A finding of either or both circumstances would support but not compel a determination by the trial court that the prosecutor withheld the additional indictment in order to circumvent the statute.
Here, the new charges were all based on the same conduct as the original assault charges that were dismissed before trial, and the child abuse allegations were apparently based on the theory that the defendant assaulted his wife in the presence of the child, causing mental injury. The State also represented to the trial court in a pretrial hearing that there had been no new investigation and would be no new substantive evidence at trial. The defendant therefore met both prongs of Warren—the prosecutor knew about substantial evidence of the assaults and child abuse during the earlier prosecutions, and the evidence necessary to prove those offense was no different than the evidence presented in the earlier trial. While these findings “support but do not compel” the conclusion that the State purposefully held back additional charges to circumvent joinder rights (and no prior case has ever reversed the denial of motion to dismiss based on Warren), here, it was appropriate. According to the court:
[B]ecause (1) Defendant has shown that both Warren circumstances are present, (2) the State has had multiple previous opportunities to join the offenses on which it now seeks to try Defendant, (3) the State has neither argued that it was somehow unable to try the offense at an earlier time nor proffered any explanation for why the offenses were not tried along with the earlier charge, we hold that the Warren exception should apply.
The defendant was therefore entitled to dismissal of the new charges for violation of his rights to statutory joinder of offenses. The court did not rule on the defendant’s double jeopardy argument because it granted relief on the other two claims. The matter was reversed and remanded for the motion to dismiss to be granted.
After violating his probation, the defendant was indicted on charges of interfering with an electronic monitoring device and attaining the status of a habitual felon. The habitual felon indictment charged defendant with attaining habitual felon status based on three prior felony convictions in McDowell County: (1) a June 4, 2001 conviction for felonious breaking and entering; (2) a February 18, 2010 conviction for felonious breaking and entering; and (3) a July 22, 2014 conviction for safecracking. At trial, the State admitted into evidence certified copies of the judgments for the latter two convictions to prove their existence.
Although the State could not obtain the original judgment associated with the June 4, 2001 conviction, the State introduced as an exhibit a computer printout from the Automated Criminal/Infraction System (ACIS). The Clerk of Court for McDowell County testified that ACIS is a statewide computer system relied on by courts and law enforcement agencies for accessing information regarding a defendant’s criminal judgments, offense dates, and conviction dates, manually entered into the database by an employee in the Clerk of Court’s office. The ACIS printout offered by the State showed that the defendant had been convicted of felonious breaking and entering on June 4, 2001, and the Clerk testified that the printout was a “certified true copy of the ACIS system.” The trial court admitted the printout into evidence over the defendant’s objection, and the jury found that the defendant had attained the status of a habitual felon.
On appeal, the defendant unsuccessfully argues that the trial court improperly allowed the ACIS printout because G.S. 14-7.4 contained the exclusive methods for proving prior convictions in a proceeding to determine habitual felon status. The Court of Appeals concluded that the statute was permissive and did not exclude methods of proof not specifically delineated in the Habitual Felons Act. The Supreme Court affirmed. The Court relied on the presence of the word “may” in the statute, as well as its prior interpretation of the Fair Sentencing Act, which contained similar language.
The dissenting Court of Appeals judge concluded that the introduction of the printout violated the best evidence rule because the printout was introduced as evidence of the defendant’s prior convictions and was not the original judgment. The majority rejected this argument, noting that the best evidence rule applies only when the contents of a document are at issue. The Court reasoned that here, the issue was not the contents of the conviction but rather the existence of the conviction. However, in a concurring opinion, Chief Justice Beasley noted that the nature of the Habitual Felons Act requires that the State prove that the defendant did, in fact, commit three prior felony offenses, and to do so requires the court to consider the contents of the record to be introduced for the purpose of confirming “that said person has been convicted of former felony offenses.” While the Chief concluded that the best evidence rule did apply to the introduction of the printout, the Chief noted that the State complied with the rule through the printout coupled with the Clerk’s testimony.
In this habitual larceny case where the defendant was sentenced as a habitual felon, the use of an ACIS printout to prove one of the defendant’s prior convictions during the habitual felon phase of trial was competent evidence that did not violate the best evidence rule. Citing State v. Waycaster, ___ N.C. App. ___, 818 S.E.2d 189 (2018), the court explained that G.S. 14-7.4 permits an original or certified copy of the court record of a prior conviction to be admitted into evidence to prove the prior conviction but does not mandate that manner of proof. The same case held that a certified copy of an ACIS printout is sufficient evidence of a prior conviction under the habitual felon statute.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Sex Acts/Related Conduct With Another
In this Vance County case, defendant appealed his convictions for attempted first-degree sexual offense with a child, statutory rape of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective assistance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.
Defendant’s convictions relate to inappropriate sexual conduct with his minor cousin from 2007 to 2012; the victim did not report the sexual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of molestation and rape that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.
Reviewing defendant’s motion to dismiss the attempted statutory sexual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at sexual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the home, but the court noted that defendant had raped the victim on several other occasions, supporting the inference that he intended to do so during this time as well.
Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of sexual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar sexual conduct with a victim’s sibling to show “defendant’s intent, motive and on-going plan to gratify his sexual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective assistance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vouching for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vouching for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.
Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.
Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.
In this Cleveland County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and attempted robbery, arguing (1) error in denying his motion to dismiss for insufficient evidence based upon the impossibility of a witness’s testimony, and (2) inadequate Batson findings. The Court of Appeals majority found no error in (1), but remanded to the trial court in (2) for further findings under the guidance of State v. Hobbs, 374 N.C. 345 (2020).
In October of 2016, several people were gathered at a home drinking alcohol and taking drugs. Early in the morning, a hooded gunman entered the house, exchanging gunfire with one of the victims and killing two victims while leaving a third paralyzed. One of the witnesses present at the scene identified defendant as the gunman, and defendant came to trial for the charges in March of 2020. After defendant was convicted, he appealed, and the Court of Appeals held this case in abeyance pending the resolution of State v. Campbell, 384 N.C. 126 (2023).
In (1), defendant argued that the testimony of the witness identifying him as the gunman was physically impossible. The Court of Appeals first noted that to be “inherently incredible,” the testimony of the witness must be irreconcilable with “basic physical facts or laws of nature.” Slip Op. at 7. The court explained that “evidence is only inherently incredible where the alleged impossibility fundamentally undermines the reliability of the evidence as opposed to creating conflicts at the margins.” Id. at 10. Here, defendant pointed to three different issues with the witness’s testimony, but only one of those, the vantage point of the witness who saw the gunman shoot a victim in the living room, could have qualified as evidentiary impossibility. Defendant’s interpretation required the gunman to maintain a fixed location in the living room after speaking to the witness and subsequently shooting one of the victims. However, the witness’s testimony did not contain a statement that defendant stayed stationary, and nothing else ruled out the idea that the gunman stepped towards the victim before shooting her. Because nothing in the record fundamentally undermined the witness’s testimony, and a plausible explanation existed for the inconsistencies identified by defendant, the court did not find error in denying defendant’s motion.
Defendant’s Batson challenge in (2) was based upon the State using two peremptory challenges on black female prospective jurors. Under Hobbs, a trial court must conduct the three-step Batson analysis by first deciding whether the defendant has made a prima facie showing of racial discrimination, then proceeding to hear the State’s race-neutral reasons for striking the jurors, and finally ruling on the merits of the Batsonchallenge after weighing the circumstances around the stricken jurors. Here, the trial court immediately requested the State’s input after hearing defendant’s objection and issued a ruling deciding the entire Batsonchallenge, “issuing no preliminary ruling on whether Defendant had made a prima facie case [of racial discrimination],” and rendering the first Batson step moot. Id. at 21-22. The trial court ruled after hearing the State’s race-neutral reasons for striking the jurors, “ma[king] the ruling, in substance, a ruling on the third step of Batson.” Id. at 22. This ruling lacked the analysis required, as “’[T]he trial court did not explain how it weighed the totality of the circumstances surrounding the prosecution’s use of peremptory challenges,’ nor did it conduct a comparative analysis between the stricken African-American jurors and the other jurors alleged to have been similarly situated.” Id. at 24-25, quoting Hobbs at 358. Because defendant did not seek review of the trial court’s substantive ruling, the court did not attempt to perform a comparative-juror analysis, instead reversing and remanding the case for “further proceedings consistent with those set out in Hobbs.” Id. at 25.
Judge Dillon concurred by separate opinion, noting that the State may be heard during the first step of the Batson analysis and that the trial court could still make a ruling on the prima facie showing of discrimination, but that the court here proceeded to step two.
Judge Stading concurred to the holding in (1) and dissented to the holding in (2) by separate opinion, and would have held that the trial court committed no error as the step one Batson determination was not moot under the circumstances of the case.
In this Vance County case, defendant appealed his convictions for attempted first-degree sexual offense with a child, statutory rape of a child, and indecent liberties with a child, arguing error in the denial of his motion to dismiss and the admission of testimony from several witnesses, ineffective assistance of counsel, and prejudicial statements by the prosecutor during closing argument. The Court of Appeals found no error.
Defendant’s convictions relate to inappropriate sexual conduct with his minor cousin from 2007 to 2012; the victim did not report the sexual conduct until 2018. At trial, defendant’s minor cousin testified regarding the extensive history of molestation and rape that defendant subjected her to over the course of several years. The jury convicted defendant in 2021.
Reviewing defendant’s motion to dismiss the attempted statutory sexual offense charge due to insufficient evidence, the court found ample evidence to support the attempt at sexual offense. During the events at issue in the motion, defendant was prevented from penetrating the genital opening of the victim because of the presence of her parents in the home, but the court noted that defendant had raped the victim on several other occasions, supporting the inference that he intended to do so during this time as well.
Moving next to defendant’s challenge to the admission of improper testimony, the court first looked at testimony regarding defendant’s history of sexual contact with the victim’s older sister. The court explained that Rule of Evidence 404(b) required careful scrutiny of the prior acts, but applicable precedent supported admission of similar sexual conduct with a victim’s sibling to show “defendant’s intent, motive and on-going plan to gratify his sexual desires.” Slip Op. at 14, quoting State v. Sturgis, 74 N.C. App. 188, 193 (1985). Defendant also argued ineffective assistance of counsel due to failure to object to this testimony, an argument the court rejected, noting even if counsel objected “the testimony would have likely been admitted under Rules 404(b) and 403.” Id. at 21. The court then examined the testimony of the victim’s parents vouching for her truthfulness, looking to State v. Gobal, 186 N.C. App. 308 (2007), for the applicable test regarding opinion testimony from lay witnesses vouching for the veracity of other witnesses. Slip Op. at 16. The court held defendant failed to demonstrate plain error, which was necessary because he did not object at trial.
Finally, the court turned to the prosecution’s closing argument, noting that the statements challenged by defendant, when read in context, did not comment on defendant’s failure to testify; instead, “the prosecutor was . . . highlighting the fact that [d]efendant never denied [the victim’s] allegations when confronted by her parents.” Id. at 23. The trial court also administered the appropriate jury instruction on defendant’s failure to testify, supporting the court’s finding of no error.
Judge Murphy concurred for sections I-VI of the opinion, but concurred in result only regarding the prosecutor’s statements during closing argument.
(1) In this Montgomery County case, the defendant was convicted of indecent liberties with a child and attaining the status of habitual felon. (1) The defendant argued on appeal that the indecent liberties indictment was fatally defective because it identified the alleged victim only by her initials. The Court of Appeals disagreed. First, the Court noted that State v. McKoy, 196 N.C. App. 650 (2009), held that identifying the victim by initials was sufficient for an indictment charging second-degree rape and second-degree sexual offense. The Court rejected the defendant’s argument that McKoy was overruled by State v. White, 372 N.C. 248 (2019), a case in which the North Carolina Supreme Court held that a sex offense indictment identifying the victim only as “Victim #1” was insufficient. Next, the Court considered whether the indictment would inform a person of reasonable understanding that the defendant was charged with indecent liberties with a child and whether the use of the victim’s initials protected the defendant’s constitutional rights to notice and freedom from double jeopardy. The Court found the indictment satisfied both requirements. A person with common understanding would know the intent of the indictment, and the record demonstrated that the defendant had notice of the victim’s identity. The arrest warrants listed the victim’s full name. The defendant was interviewed by officers regarding his contact with the victim, and he admitted that he knew her. The defendant did not argue that he had difficulty preparing his case because the initials were used rather than the victim’s full name. In addition, the victim testified at trial and identified herself by her full name in open court. The Court concluded there was no possibility that the defendant was confused regarding the victim’s identity; therefore the use of initials in the indictment provided the defendant with sufficient notice to prepare his defense and protect himself against double jeopardy.
(2) The defendant argued that the trial court plainly erred by admitting testimony and evidence that vouched for the victim’s credibility. The defendant objected on appeal (but not at trial) to the introduction of statements from Randolph County Department of Social Services employee Morgan Halkyer and Andrew, the victim’s uncle. Halkyer’s recorded interview with the victim was played for the jury. In that interview, Halkyer told the victim: “No kid should ever be put in that situation by an adult, you know, they’re an adult, they should know better.” The Court held that Halkyer did not impermissibly vouch for the victim’s credibility since her statements were not tantamount to an opinion that the victim was telling the truth. Instead, the statements provided the jury with the context of Halkyer’s interview. In that interview, Halkyer was not attempting to opine about whether the victim was truthful but was comforting the victim with general statements about adult behavior.
The defendant also argued that the trial court plainly erred in admitting text messages Andrew sent to the victim, in which stated that the defendant committed a crime. Among the texts was a statement that “they need to understand that a 40 year old man took you too [sic] his house and attempted inappropriate actions. It's [sic] may not be sexual assault but it is illegal.” Considering that the jury was instructed that its role was to judge the believability of the witnesses, the victim’s extensive testimony at trial, and the defendant’s statement that “maybe things did go a little too far,” the Court found that the defendant failed to demonstrate that Andrew’s text messages had a probable impact on the jury’s verdict. Thus, the Court held that any error in the admission of this evidence was not plain error.
In this Rutherford County case, defendant appealed his conviction for indecent liberties with a child, arguing the trial court erred by not intervening during the state’s opening statement, and allowing a witness to bolster the victim’s testimony. The Court of Appeals found no error.
In 2011, defendant was dating a woman with a young daughter. One day the woman left her daughter with defendant as a babysitter; defendant took the daughter into his bedroom and engaged in sexual contact with her. The victim eventually reported the incident in 2018, when she reached seventh grade. Defendant was subsequently indicted and convicted of indecent liberties with a child in October of 2021.
On appeal defendant first argued that the trial court should have intervened ex mero motu during the state’s opening statement, as the state referred to upcoming testimony by defendant’s roommate but the testimony was never offered at trial. The Court of Appeals disagreed, applying the two-step analysis from State v. Huey, 370 N.C. 174 (2017), and determining that the prosecutor’s statements were not grossly improper and did not justify a new trial. Slip Op. at 6. The court next considered defendant’s argument that a witness bolstered the victim’s testimony, explaining that the testimony in question was not supporting the truthfulness of the victim’s statements, but was instead noting that the victim’s statements were consistent. Making the distinction between testimony that clearly supported the veracity of a victim’s testimony verses the testimony offered in the current case, the court found no plain error in admitting the testimony. Id. at 11.
In this Cleveland County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and attempted robbery, arguing (1) error in denying his motion to dismiss for insufficient evidence based upon the impossibility of a witness’s testimony, and (2) inadequate Batson findings. The Court of Appeals majority found no error in (1), but remanded to the trial court in (2) for further findings under the guidance of State v. Hobbs, 374 N.C. 345 (2020).
In October of 2016, several people were gathered at a home drinking alcohol and taking drugs. Early in the morning, a hooded gunman entered the house, exchanging gunfire with one of the victims and killing two victims while leaving a third paralyzed. One of the witnesses present at the scene identified defendant as the gunman, and defendant came to trial for the charges in March of 2020. After defendant was convicted, he appealed, and the Court of Appeals held this case in abeyance pending the resolution of State v. Campbell, 384 N.C. 126 (2023).
In (1), defendant argued that the testimony of the witness identifying him as the gunman was physically impossible. The Court of Appeals first noted that to be “inherently incredible,” the testimony of the witness must be irreconcilable with “basic physical facts or laws of nature.” Slip Op. at 7. The court explained that “evidence is only inherently incredible where the alleged impossibility fundamentally undermines the reliability of the evidence as opposed to creating conflicts at the margins.” Id. at 10. Here, defendant pointed to three different issues with the witness’s testimony, but only one of those, the vantage point of the witness who saw the gunman shoot a victim in the living room, could have qualified as evidentiary impossibility. Defendant’s interpretation required the gunman to maintain a fixed location in the living room after speaking to the witness and subsequently shooting one of the victims. However, the witness’s testimony did not contain a statement that defendant stayed stationary, and nothing else ruled out the idea that the gunman stepped towards the victim before shooting her. Because nothing in the record fundamentally undermined the witness’s testimony, and a plausible explanation existed for the inconsistencies identified by defendant, the court did not find error in denying defendant’s motion.
Defendant’s Batson challenge in (2) was based upon the State using two peremptory challenges on black female prospective jurors. Under Hobbs, a trial court must conduct the three-step Batson analysis by first deciding whether the defendant has made a prima facie showing of racial discrimination, then proceeding to hear the State’s race-neutral reasons for striking the jurors, and finally ruling on the merits of the Batsonchallenge after weighing the circumstances around the stricken jurors. Here, the trial court immediately requested the State’s input after hearing defendant’s objection and issued a ruling deciding the entire Batsonchallenge, “issuing no preliminary ruling on whether Defendant had made a prima facie case [of racial discrimination],” and rendering the first Batson step moot. Id. at 21-22. The trial court ruled after hearing the State’s race-neutral reasons for striking the jurors, “ma[king] the ruling, in substance, a ruling on the third step of Batson.” Id. at 22. This ruling lacked the analysis required, as “’[T]he trial court did not explain how it weighed the totality of the circumstances surrounding the prosecution’s use of peremptory challenges,’ nor did it conduct a comparative analysis between the stricken African-American jurors and the other jurors alleged to have been similarly situated.” Id. at 24-25, quoting Hobbs at 358. Because defendant did not seek review of the trial court’s substantive ruling, the court did not attempt to perform a comparative-juror analysis, instead reversing and remanding the case for “further proceedings consistent with those set out in Hobbs.” Id. at 25.
Judge Dillon concurred by separate opinion, noting that the State may be heard during the first step of the Batson analysis and that the trial court could still make a ruling on the prima facie showing of discrimination, but that the court here proceeded to step two.
Judge Stading concurred to the holding in (1) and dissented to the holding in (2) by separate opinion, and would have held that the trial court committed no error as the step one Batson determination was not moot under the circumstances of the case.
The trial court lacked subject matter jurisdiction to enter an order denying the defendant’s motion for post-conviction DNA testing pursuant to G.S. 15A-269 while the defendant’s appeal from the original judgment of conviction was pending. The defendant was convicted of an attempted sexual offense and sentenced on 10 November 2014. The defendant gave notice of appeal that day. On 6 April 2016, while his appeal was pending in the court of appeals, the defendant filed a pro se motion for post-conviction DNA testing pursuant to G.S. 15A-269. The trial court denied the defendant’s motion. The defendant timely filed notice of appeal from this denial. Then, on 16 August 2016, the court of appeals issued an opinion in defendant’s original appeal, vacating his sentence and remanding the case to the trial court for re-sentencing. The mandate issued on 6 September 2016. The court noted that once a notice of appeal has been filed, the trial court retains jurisdiction only over matters that are ancillary to the appeal. The trial court’s order on the defendant’s post-conviction motion was not such a matter. The court concluded:
In the instant case, the trial court was divested of jurisdiction when defendant filed notice of appeal from the judgment entered on his conviction . . . on 10 November 2014. Because defendant’s motion for post-conviction DNA testing opened an inquiry into a case that this Court was already reviewing, the trial court lacked jurisdiction to rule on it until after the case was returned to the trial court by way of mandate, which issued on 6 September 2016. We therefore must vacate the trial court’s order denying defendant’s motion for post-conviction DNA testing.
In this Pasquotank County case, defendant appealed his conviction for first-degree murder, arguing the trial court erred in several matters related to the COVID-19 pandemic and by admitting irrelevant and hearsay testimony. The Court of Appeals found no error.
In May of 2018, defendant was in an altercation in Elizabeth City; defendant pulled a gun as the victim ran away and shot him several times in the back. The matter reached trial on January 11, 2021, after delays related to COVID-19. On the first day of trial, defense counsel made a motion to continue, arguing that she did not feel safe proceeding due to COVID-19. The trial court denied the motion to continue. The trial was subject to capacity limitations and modified jury selection procedures to limit the proximity of those in the courtroom, leading to additional issues on appeal.
Defendant first argued that the trial court lacked subject-matter jurisdiction to hear the case, pointing to the emergency orders from then-Chief Justice Beasley issued on December 14, 2020, forbidding jury trials for the next thirty days unless a jury was already empaneled. The Court of Appeals noted that Chief Justice Newby was sworn in on January 1, 2021, and a commission to the superior court hearing the matter was issued on January 5. The new chief justice also issued an order effective January 14, 2021, allowing the emergency directives in question to expire. The court found that the emergency order did not remove the superior court’s jurisdiction, and “[t]he 5 January 2021 AOC commission for this session and the 13 January 2021 order from Chief Justice Newby effectively repudiated and superseded the 14 December 2020 order.” Slip Op. at 9.
Moving to defendant’s trial-related issues, the court first considered denial of the motion to continue, explaining that defendant could not show prejudice justifying a new trial because defense counsel “was legally prepared to try the case, but was solely worried about potential COVID-19 risks,” and defendant made “no showing of any deficient representation throughout trial.” Id. at 14. The court next considered the argument that defense counsel should have been barred under Emergency Directive 2 from the December 14, 2020, emergency orders, as this order forbid persons likely exposed to COVID-19 from entering the courthouse. Rejecting this argument, the court noted that defense counsel did not identify her likely exposure to the clerk or mention it in her motion to continue, meaning she never presented the issue to the court for consideration prior to her motion. Examining defendant’s argument that the courtroom closure for capacity reasons violated his right to a public trial, the court explained that he failed to preserve this issue on appeal and declined to apply Rule of Appellate Procedure 2 to revive it. Finally, the court rejected defendant’s challenge to jury selection, holding:
While the jury selection procedure the court utilized here may have varied the express requirement of N.C. Gen. Stat. § 15A-1214(d) requiring the State to pass a full panel of twelve prospective jurors . . . [d]efendant was not forced to accept any undesirable juror as a result of the passing of less than twelve prospective jurors during jury selection procedure under these circumstances. Id. at 21-22, citing State v. Lawrence, 365 N.C. 506 (2012).
The court last turned to defendant’s challenge to the admission of Exhibits 54, 55, and 57. Exhibits 54 and 55 were Facebook messages, and Exhibit 57 was documentation of a handgun purchase. Noting the exhibits “were probative to issues of [d]efendant’s guilt, [d]efendant’s opportunity to acquire a weapon, and [d]efendant’s possible motive for the killing,” the court rejected defendant’s challenge to relevancy. Slip Op. at 25. The court then looked at the admission of Exhibit 54, a Facebook message exchange between defendant’s sister and the victim’s sister describing a dispute between defendant and the victim over payment for a gun. The court found no error in admitting this exchange, and noted that North Carolina law “permits declarations of one person to be admitted into evidence for the purpose of showing that another person has knowledge or notice of the declared facts and to demonstrate his particular state of mind.” Id. at 27, quoting State v. Swift, 290 N.C. 383, 393 (1976).
The defendant was tried for armed robbery, conspiracy to commit armed robbery, and possession of a firearm by a person previously convicted of a felony. The trial was not over by Friday, and the trial judge called a weekend recess. The trial resumed on the following Monday, the jury convicted the defendant of all charges, and the trial judge sentenced the defendant. (1) The defendant argued that the trial judge failed to extend the session of court in which the trial began, violating the rule against judgments entered out of session. The Court of Appeals rejected this argument in reliance on G.S. 15-167, which allows a trial judge to extend a session if a felony trial is in progress on the last Friday of the session. The Court held that such an extension is valid when the trial judge announces a weekend recess without objection by the parties, as here. Although the trial judge was asked and declined to make written findings to support the extension, her decision not to make findings did not constitute a refusal to extend the session. (2) In response to written questions asked by the jury during deliberations, the trial judge sought clarification by writing out a short message and having the bailiff go to the jury room and read the message. The judge directed the bailiff not to communicate any other information, respond to questions by the jury, or remain for any discussion by the jury. The defendant argued that this procedure violated the requirements of G.S. 15A-1234 and G.S. 15A-1236, which require that responses to jury questions and additional instructions be in open court and which prohibit speaking to the jury. The Court held that assuming the trial judge committed statutory error, the defendant failed to show prejudice. The Court found that the trial judge’s message was clear and unambiguous, did not relate to guilt or innocence, and did not amount to an instruction to the jury. Absent evidence to the contrary, the Court stated that it would presume that both the bailiff and jurors understood and followed the judge’s directive to the bailiff to deliver the message and not to be present for or engage in any colloquy with the jury.
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.