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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The defendant in this case was not a licensed bondsman, but over a period of five to six years he paid an employee at the clerk’s office to make entries into a computer record system indicating that the defendant had filed motions to set aside the bond forfeiture in numerous cases, even though no motions had been filed. Since no motions were actually filed or served on the district attorney or board of education, neither agency was on notice to file a response within the statutorily required 20-day period, meaning the bond forfeitures would be set aside automatically. The clerk was eventually fired for his role in the scheme and began cooperating with the State Bureau of Investigation. The defendant was ultimately convicted of aiding and abetting obtaining property by false pretenses, accessing a government computer, and altering court records, as well as unlicensed bail bonding.
On appeal, the defendant argued that the trial court erred in denying his motions to dismiss on the grounds that the state had failed to present sufficient evidence that he (i) aided and abetted the commission of the felony offenses, or (ii) obtained property in excess of $100,000, since at the time the false representations were made the interests of the state and the school board in the bonds to be forfeited were only speculative. The Court of Appeals rejected both arguments, finding that they were not properly preserved at trial. The aiding and abetting argument was never specifically raised in the defendant’s motions, and while the defendant did raise the property argument in his first motion to dismiss, his later motion to dismiss at the close of all the evidence only challenged the dollar value of the property rather than the issue of whether it qualified as a thing of value at all, so the court ruled that the second argument was likewise barred on appeal.
The North Carolina Supreme Court disagreed and held that the defendant properly preserved both arguments for appeal. Distinguishing objections and constitutional challenges which must be specifically argued at trial to be preserved, the arguments challenging the sufficiency of the evidence in this case were properly preserved under Rule 10(a)(3) of the Rules of Appellate Procedure. A motion to dismiss “places an affirmative duty upon the trial court to examine the sufficiency of the evidence against the accused for every element of each crime charged,” so the “simple act of moving to dismiss at the proper time preserved all issues related to the sufficiency of the evidence for appellate review.” The jurisprudence of the Court of Appeals that has attempted to distinguished between general and specific motions to dismiss for sufficiency of the evidence “and to assign different scopes of appellate review to each category, is inconsistent with Rule 10(a)(3).”
Turning to the merits of the defendant’s arguments, the court held that the state presented sufficient evidence to withstand a motion to dismiss on both issues. First, viewed in the light most favorable to the state, the evidence established that the defendant aided and abetted the clerk’s actions by meeting with him and agreeing to the scheme, sending him text messages with instructions and case names, and paying him for entering the fraudulent motions. Second, G.S. 14-100 covers both obtaining and attempting to obtain a thing of value, so the defendant’s efforts to reduce the amount he would have to pay on the forfeited bonds constituted a “thing of value” within the broad scope of the statute.
The defendant was stopped by a state trooper who saw her driving erratically. The defendant smelled of alcohol, had slurred and mumbled speech, and stumbled and staggered when she got out of her car. She registered a positive result on a portable breath test and was arrested for driving while impaired. She subsequently refused to submit to a breath test. The defendant pled guilty in district court to driving while impaired and appealed. In superior court, the defendant moved to suppress evidence and requested a bench trial. The superior court denied the motion to suppress and found the defendant guilty. At sentencing, the court found the grossly aggravating factor of a prior impaired driving conviction within seven years of the date of the offense and imposed a Level Two sentence. The defendant appealed, arguing that the trial court erred in denying her motion to suppress, the evidence was insufficient to support her conviction, and that the trial court erred in in sentencing her based on a grossly aggravating factor for which the State filed to provide the statutorily required notice.
(1) The court of appeals determined that the defendant did not properly preserve the denial of her motion to suppress for review on appeal as she did not renew her objection when the evidence was offered for consideration at her bench trial. And because the defendant did not argue plain error on appeal, the court did not review the denial of the motion for plain error.
(2) The court of appeals determined that the trial court did not err by denying defendant’s motion to dismiss for insufficient evidence. The trooper testified as to his opinion that the defendant was impaired by alcohol. He based that opinion on seeing the defendant stumbling and staggering when she got out of her car, smelling a moderate odor of alcohol on her breath, hearing her mumbled and slurred speech, and observing her erratic driving. Evidence of the defendant’s refusal to submit to a breath test at the police station also was admissible evidence of impairment. The appellate court held that, viewed in the light most favorable to the State, this evidence was sufficient to show that the defendant was under the influence of an impairing substance.
(3) The State failed to file notice of its intent to rely at sentencing upon the aggravating factor of a prior impaired driving conviction. Such notice is required by G.S. 20-179(a1)(1) for misdemeanor impaired driving charges appealed to superior court. The court explained that the right to notice of the State’s intent to rely on a prior conviction is a statutory right, not a constitutional one, and thus may be waived. The defendant admitted to the prior conviction on cross-examination, and her counsel stipulated at sentencing that she “‘did have the prior DWI.’” Slip op. at 12. Moreover, defense counsel did not object to the court’s consideration of the prior conviction as an aggravating factor. The court of appeals determined that the defendant’s admission and her counsel’s stipulation along with her failure to object to lack of notice at the sentencing hearing amounted to a waiver of her statutory right to notice.
In a per curiam decision in this capital murder case decided under the Antiterrorism and Effective Death Penalty Act of 1996, the Court held that the state court did not unreasonably apply the law when it determined that the defendant was competent to be executed. The defendant was sentenced to death in an Alabama court. As his execution neared, the defendant petitioned the trial court for a suspension of his death sentence, arguing that due to several recent strokes, he had become incompetent to be executed. At a hearing on the matter, a court appointed psychologist noted the defendant’s significant post-stroke decline but testified that he understood the posture of his case and that the State was seeking retribution against him for his criminal act. A defense psychologist testified that the defendant’s strokes rendered him unable to remember numerous events that had occurred in the past. However, he found that the defendant was able to understand the nature of the pending proceeding, what he was tried for, that he was in prison because of murder, that Alabama was seeking retribution for that crime, and the sentence, specifically the meaning of a death sentence. The defense witness also opined that the defendant does not understand the act he is being punished for because he cannot recall the sequence of events from the offense through the trial and believes that he “never went around killing folks.” After the trial court denied the defendant’s petition, the defendant pursued federal habeas proceedings. The federal district court denied the defendant’s petition and the Eleventh Circuit reversed. That court found that because the defendant has no memory of his capital offense it inescapably follows that he does not rationally understand the connection between his crime and his execution. On that basis, the federal appellate court held that the trial court’s conclusion that the defendant is competent to be executed was plainly unreasonable. The Court disagreed. Reviewing its prior case law, the Court concluded that those decisions did not clearly establish that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from the failure to rationally comprehend the concepts of crime and punishment as applied in his case. Thus, the state court did not unreasonably apply Supreme Court law when it determined that the defendant was competent to be executed because, notwithstanding his memory loss, he recognizes that he will be put to death as punishment for the murder he was found to have committed.
In this Pitt County case, defendant appealed his conviction for willingly resisting, delaying, or obstructing a public officer; the Court of Appeals found no error by the trial court.
In September of 2019, two officers from the Winterville Police Department responded to a disturbance at a gas station. Defendant was allegedly arguing with another customer about police practices and race relations in the United States. When police arrived, defendant initially refused to provide identification, then produced a card with his name and a quotation from City of Houston v. Hill, 482 U.S. 451 (1987). After an extended exchange regarding the card and defendant’s refusal to produce identification, officers arrested defendant for resisting, delaying, or obstructing a public officer. Later in 2019, defendant appeared at two traffic stops conducted by one of the arresting officers, once telling the officer he was watching him, and the second time driving by while making a hand gesture resembling a gun pointed at the officer. Defendant was subsequently charged for communicating threats, and both charges went to trial, where defendant was convicted of resisting, delaying or obstructing an officer but acquitted of communicating threats.
Defendant first argued that the trial court erred by denying his motion to dismiss the resisting, delaying or obstructing an officer charge. The Court of Appeals reviewed the denial and the evidence in the record to determine if each element of the charge was present. In this case only three elements were at issue, specifically if: (1) the officer was lawfully discharging a duty, (2) the defendant resisted, delayed, or obstructed the officer in discharge of that duty, and (3) the defendant acted willfully and unlawfully. Examining (1), the court walked through the reasonable suspicion the officer formed while approaching defendant, and explained that responding to the disturbance and attempting to identify defendant was well within the officer’s duties. Turning to (2), the court made the distinction between mere criticism of the police and the actions of defendant, who was at that time a reasonable suspect in the disturbance that the officers were investigating, and applied precent that “failure by an individual to provide personal identifying information during a lawful stop constitutes resistance, delay, or obstruction within the meaning of N.C. Gen. Stat. § 14-223.” Slip Op. at ¶31. Finally, considering (3), the court explained that since the stop was lawful and the officers were reasonably investigating defendant as the subject of the disturbance, his actions refusing to provide identification and cooperate were willful and intended to hinder the duty of the officer. Id. at ¶40.
The court then turned to defendant’s argument that the trial court erred by allowing defendant to waive counsel and represent himself in superior court after signing a waiver of counsel in district court. The Court of Appeals explained that G.S. 15A-1242 contains the required colloquy for wavier of counsel and the appropriate procedure for the court to follow. Here defendant executed a waiver during district court proceedings, and the record contains no objection or request to withdraw the waiver. The court explained that “[o]nce the initial waiver of counsel was executed, it was not necessary for successive written waivers to be executed, nor for additional inquiries to be made by the district or superior court pursuant to N.C. Gen. Stat. § 15A-1242.” Id. at ¶49. The waiver created a “rebuttable presumption” and no further inquiries were necessary. Since defendant did not identify any issue or deficiency in the initial waiver, there was no error.
Reviewing defendant’s final argument that the trial court erred by failing to provide a jury instruction on justification or excuse for the offense, the court noted that defendant did not object to the jury instructions even when given opportunity to do so. Defendant also had agreed to the jury instructions as presented to him. This led to the court’s conclusion that “[b]y failing to object at trial and expressly agreeing to the jury instructions as given, [d]efendant waived any right to appeal this issue.” Id. at ¶57.
Judge Inman concurred in the result.
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of disseminating obscene material to a minor. On appeal the defendant argued that there was insufficient evidence that the material was obscene. At trial the victim testified that the defendant showed her movies involving “a guy and a girl” having sex naked. The State introduced a photograph of three pornographic DVDs found in a search of the premises and the victim’s mother testified that the defendant “had so many” pornographic DVDs. According to the victim’s mother, when the allegations came to light, the defendant disposed of some of his pornography collection and put the rest in a shed. The victim’s mother later found that material and gave it to detectives. At trial various titles from the defendant’s pornography collection were read to the jury. This evidence was sufficient to allow a reasonable jury to infer that the material the defendant showed to the victim was of the same nature of that contained in the defendant’s pornography collection and therefore was obscene material under contemporary community standards.
(2) The trial court’s instructions with respect to multiple counts of indecent liberties with a child, first-degree rape of a child, and sex offense in a parental role did not deprive the defendant of his constitutional right to a unanimous jury verdict. The trial court provided a single instruction for each offense, without describing the details of the conduct underlying each charge. It did however instruct the jury that it must consider each count individually and the verdict sheets identified each count by victim and included a brief description of the particular conduct alleged by reference to the location where it occurred. Additionally jurors were instructed that they all must agree to the verdict, that they could not reach a verdict by majority vote, and that they should indicate on the verdict forms when they agreed upon unanimous verdicts as to each charge. Applying the test from State v. Lawrence, 360 N.C. 368 (2006), the court rejected the defendant’s argument that the jury instructions deprived him of his right to a unanimous jury verdict. The court went on to note that “the instant case is not one in which the risk of a non-unanimous verdict would have arisen by virtue of the trial court’s instructions.” The crimes at issue do not list as elements discrete criminal activities in the disjunctive. Instead, the indecent liberties statute simply forbids any immoral, improper indecent liberties with a child under 13 if taken for the purpose of arousing or gratifying sexual desire. The particular act found to be performed is immaterial to the unanimity inquiry. Thus, even if some jurors were to find that the defendant engaged in one kind of sexual misconduct while others found that he engaged in another, the jury as a whole would still have unanimously found the required sexual misconduct. Here, the defendant was charged with five counts of indecent liberties against the victim. The victim testified to at least five incidents that would have constituted indecent liberties; in fact she testified to 7 such incidents. Similarly, the jury convicted the defendant of four counts of statutory rape and the victim testified to at least four specific incidents that constituted statutory rape and occurred in each of the four locations indicated on the verdict sheet. Therefore there was no danger that the rape verdicts were not unanimous.
(3) The trial court did not err by declining to reopen the case after the defendant reconsidered his decision not to testify. After the close of the State’s evidence, the trial court addressed the defendant regarding his decision whether or not to testify. The defendant informed the trial court that he would not testify. The defense did not present any evidence and rested, and the jury was excused. After the charge conference defense counsel informed the trial court that the defendant had reconsidered his decision and now wished to testify. The trial court declined to reopen the case and bring the jury back in order to allow the defendant to testify. The court found no abuse of discretion in the trial court’s decision to decline to reopen the case to allow the defendant to testify.
In this Pitt County case, defendant appealed his convictions, arguing double jeopardy as DWI is a lesser included offense of felony serious injury by vehicle. The Court of Appeals arrested judgment on the DWI conviction, but found no prejudicial error justifying remand for resentencing.
Defendant was charged with DWI, felony hit and run, and felony serious injury by vehicle, for a collision in August of 2020. After defendant was convicted of the charges and attained habitual felon status, the trial court consolidated the DWI and felony hit and run convictions, imposing a sentence of 89 to 119 months. The trial court also imposed a 101-to-134-month sentence for the felony serious injury by vehicle conviction and ordered the sentences to run concurrently.
The court first established that “[a]s the State correctly noted at trial, DWI is a lesser included offense of felony serious injury by vehicle.” Slip Op. at 7. However, because the sentences were consolidated in separate judgments and ordered to run concurrently, defendant was not forced to serve additional time for the DWI conviction. Normally, the court would arrest judgment and remand for resentencing when it is unable to determine what weight the trial court gave to the arrested conviction. Here, because defendant’s sentences were separated, and he received a longer sentence in the presumptive range for the felony serious injury by vehicle conviction, the arrested judgment would not impact the ultimate length of his sentence.
The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial. The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation. The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.
(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.
(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.
In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.
In this Mecklenburg County case, defendant appealed his convictions for breaking and entering, larceny, and attaining habitual breaking and entering offender status, arguing error in (1) the trial court’s comments about the existence of defendant’s previous convictions during the habitual offender phase, (2) admission of expert testimony without the necessary foundation, and (3) the felony class of habitual breaking and entering on the written judgment. The Court of Appeals found no prejudicial error.
In 2018, defendant was indicted for breaking and entering and larceny after DNA and fingerprint evidence linked defendant to a break-in at a Charlotte residence. The trial proceeded first on the charges related to the break in, then after the jury convicted defendant of the initial charges, proceeded to habitual breaking and entering offender status. During this second phase, the trial court told the jury “[the state] will present evidence relating to previous convictions of breaking and/or entering at this time.” Slip Op. at 5. The jury convicted defendant of habitual offender status, and defendant subsequently appealed.
Reviewing issue (1), the Court of Appeals disagreed with defendant’s characterization of the trial court’s remarks, explaining that “the trial court did not offer to the jury the court’s opinion as to whether [d]efendant did in fact have previous convictions . . . [r]ather, the trial court notified the jury and the parties of its plan for the outset of the second phase of trial.” Id. at 12.
Turning to issue (2), the court noted that defendant did not object at trial to the testimony, meaning the review was under a plain error standard. The court examined the testimony of two experts under Rule of Evidence 702, finding that the fingerprint expert testimony “[did] not clearly indicate that [state’s expert] used the comparison process he described in his earlier testimony when he compared [d]efendant’s ink print card to the latent fingerprints recovered at the crime scene.” Id. at 28. However, the court found no prejudicial error in admitting the testimony, as properly admitted DNA evidence also tied defendant to the crime.
Finally, the court reviewed (3), defendant’s argument that the trial court incorrectly recorded his habitual breaking and entering offense as a Class E felony. The court disagreed, explaining that the form filled out by the trial court identifies the breaking and entering charge as a Class H felony (with punishment Class E), and the habitual breaking and entering offender charge as a Class E felony. Based on relevant precedent, defendant’s habitual offender status represented a status offense enhancing the punishment for the underlying substantive offense. The court concluded that the “trial court’s identification of habitual breaking and entering as a Class E status offense, as compared to a Class E substantive offense, was not error.” Id. at 37.
In this Durham County case, defendant appealed his conviction for felony animal cruelty, arguing that (1) the removal of the name of a horse from the indictment rendered it invalid, and (2) the prosecutor’s recitation of caselaw during closing argument represented gross impropriety. The Court of Appeals found no error and affirmed the conviction.
In July of 2016, Durham County Animal Services responded to a report of several deceased horses on the property where defendant kept his horses. On the scene, Animal Services discovered the skeletal remains of three horses and one still-living horse, a chestnut mare, in severely emaciated condition. This horse was initially identified as “Diamond” in the indictment, but the prosecution successfully moved to strike the name from the indictment prior to trial. Defendant was found guilty of felony animal cruelty under N.C.G.S. § 14-360(b) in January 2021.
Reviewing defendant’s first argument on appeal, the Court of Appeals noted that under N.C.G.S. § 15A-923(e) an indictment may not be amended, but “surplus language which ‘in no way change[s] the nature or the degree of the offense charged’ may be stricken from an indictment.” Slip Op. at ¶20, quoting State v. Peele, 16 N.C. App. 227 (1972). The court explained that under N.C.G.S. § 14-360(b), the name of an animal is not considered an essential element of the crime, and applicable precedent established that it was acceptable to identify animals by general descriptions in indictments. Slip Op. at ¶24, citing State v. Credle, 91 N.C. 640 (1884). Because there was only one horse at issue in this case, and striking its name “Diamond” caused no confusion or difficulty for defendant when presenting his defense, the court found no error in striking the horse’s name from the indictment.
The court next considered the prosecutor’s recitation of case law during closing argument. Noting that defense counsel did not object during trial, the court explained that defendant must show the remarks were “so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu,” a heightened standard of review. Slip Op. at ¶27, quoting State v. Jones, 355 N.C. 117 (2002). The court emphasized that “the prosecutor’s statements must have been so improper that they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Slip Op. at ¶29, quoting Darden v. Wainwright, 477 U.S. 168 (1983). Based upon this high standard for relief, and the substantial evidence admitted at trial supporting defendant’s conviction, the court could not establish that defendant was deprived of a fair trial.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Resisting an Officer, Obstruction & Related Offenses > Resisting An Officer
The indictment properly charged resisting a public officer. On appeal the defendant argued that the indictment was invalid because it failed to sufficiently allege the officer’s public office. The indictment alleged that the defendant “did resist, delay and obstruct Agent B.L. Wall, a public officer holding the office of North Carolina State Law Enforcement Agent, by refusing commands to leave the premises, assaulting the officer, refusing verbal commands during the course of arrest for trespassing and assault, and continuing to resist arrest.” Count I of the indictment which charged the separate offense of assault on a government officer, identified the officer as “Agent B.L. Wall, a state law enforcement officer employed by the North Carolina Division of Motor Vehicles.” Both counts, taken together, provided the defendant sufficient information to identify the office in question.
The court also rejected the defendant’s argument that the indictment was defective because it failed to fully and clearly articulate a duty that the officer was discharging. After noting the language in Count II, the court noted that Count III, alleging trespass, asserted that the defendant remained on the premises of the specified DMV office “after having been notified not to remain there by a person in charge of the premises.” The court held that “the charges” specifically state the duties the officer was attempting to discharge, namely: commanding the defendant to leave the premises and arresting or attempting to rest her when she failed to comply.
The court went on to hold that the officer was acting within the scope of his duties at the time. It noted that G.S. 20-49.1(a) “contains an expansive grant of power,” vesting DMV inspectors with the same powers vested in law enforcement officers by statute or common law. Thus, the officer was acting under the authority given to him under the statute at the time and was acting within the scope of his duties. The court concluded: “Even though the indictment could have been be more specific, we decline to require that it be hyper-technical.”
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Carrying Concealed
In this Chatham County case, the Court of Appeals overturned defendant’s conviction for possession of a firearm at a demonstration, finding that the indictment failed to specify the type of land where the violation took place.
Defendant attended a protest in Hillsborough over the removal of a confederate monument in 2019. During the protest, an officer observed defendant carrying a concealed firearm. Defendant was indicted for violating G.S. 14-277.2, and at trial moved to dismiss the charges, arguing that the misdemeanor statement of charges was fatally defective for not specifying the type of location for the offense, specifically the required location of a private health care facility or a public place under control of the state or local government. Defendant’s motion was denied and she was convicted of the misdemeanor.
Reviewing defendant’s appeal, the court agreed with defendant’s argument that her indictment was defective. Although the state moved to amend the location in the statement of charges, and the superior court granted that motion, the Court of Appeals explained that this did not remedy the defect. The court explained that “if a criminal pleading is originally defective with respect to an essential element . . . amendment of the pleading to include the missing element is impermissible, as doing so would change the nature of the offense.” Slip Op. at 8-9. The court looked to analogous statutes and determined that the specific type of location for the offense was an essential element of G.S. 14-277.2, and that the state had failed to specify the location in either the statement of charges or the police report provided with the statement. Instead, the statement and police report simply listed the street address and described the location as “[h]ighway/[r]oad/[a]lley/[s]treet/[s]idewalk[,]” failing to specify the essential element related to the type of location. Id. at 16-17.
Judge Inman concurred only in the result.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Felon in Possession
In this Haywood County case, the Supreme Court reversed a unanimous Court of Appeals decision and reinstated defendant’s conviction for possession of a firearm by a felon.
In April of 2018, defendant was pulled over for driving with a permanently revoked license. During the stop, the officer smelled marijuana; defendant admitted that he had smoked marijuana earlier but none was in the vehicle. Based on the smell and defendant’s admission, the officer decided to search the vehicle, eventually discovering two firearms. Defendant was charged in a single indictment with possession of a firearm by a felon, possession of a firearm with an altered or removed serial number, and carrying a concealed weapon. At trial, defendant did not challenge the indictment, and he was ultimately convicted of all three offenses.
On appeal, defendant argued the indictment was fatally flawed, as G.S. 14-415.1(c) requires a separate indictment for possession of a firearm by a felon. The Court of Appeals agreed, vacating defendant’s conviction based on State v. Wilkins, 225 N.C. App. 492 (2013), and holding that the statute unambiguously mandates a separate indictment for the charge.
After granting discretionary review, the Supreme Court disagreed with the Court of Appeals, explaining that “it is well-established that a court should not quash an indictment due to a defect concerning a ‘mere informality’ that does not ‘affect the merits of the case.’” Slip Op. at 6, quoting State v. Brady, 237 N.C. 675 (1953). The court pointed to its decision in State v. Brice, 370 N.C. 244 (2017), which held that failure to obtain a separate indictment required by a habitual offender statute was not a jurisdictional defect and did not render the indictment fatally defective. Applying the same reasoning to the current case, the court explained that “the statute’s separate indictment requirement is not jurisdictional, and failure to comply with the requirement does not render the indictment fatally defective.” Slip Op. at 9. The court explicitly stated that Wilkins was wrongly decided and specifically overruled. Id.
Justice Morgan dissented, and would have upheld the Court of Appeals opinion and the reasoning in Wilkinsfinding that the lack of a separate indictment required by G.S. 14-415.1(c) was a fatal defect. Id. at 11.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Sale and Delivery of Controlled Substance
In this Cabarrus County case, defendant appealed his death by distribution conviction, arguing error in (1) denial of his motion to dismiss, and (2) improperly admitting Rule of Evidence 404(b) evidence. The Court of Appeals found no error.
In March of 2020, defendant sold drugs, purportedly heroin and cocaine, to two women. After taking the drugs, one of the women died, and toxicology determined she had both cocaine and fentanyl in her bloodstream. The level of metabolites for both cocaine and fentanyl were determined to be in the fatal range. When defendant came to trial on charges of death by distribution, the trial court allowed the surviving woman to testify about defendant’s prior sales of drugs to her as Rule 404(b) evidence to show defendant’s “intent, identity, and common scheme or plan.” Slip Op. at 5.
Considering (1) defendant’s motion to dismiss, the Court of Appeals addressed defendant’s arguments in relation to the elements of G.S. 14-18.4(b), the death by distribution statute. The court explained that circumstantial evidence supported the conclusion that defendant sold fentanyl instead of heroin to the victim. The court also noted “[w]hile the evidence does not foreclose the possibility that fentanyl may not have been the sole cause of [the victim’s] death, there is ample evidence to support a conclusion that it was, in fact, fentanyl that killed [the victim].” Id. at 9. Rejecting defendant’s argument that he could not foresee that the victim would consume all the drugs at once, the court found sufficient evidence to submit the question of proximate cause to the jury.
Moving to (2) the Rule 404(b) evidence, the court noted that the trial court engaged in a lengthy analysis of whether to admit the testimony related to previous drug sales. Here, the testimony “demonstrate[d] not only the common plan or scheme of Defendant’s drug sales, but also his intent when transacting with [the woman],” and also served to confirm his identity. Id. at 13. Because the court could not establish a danger of unfair prejudice outweighing the probative value of the testimony, it found no error.
(1) On appeal from a divided panel of the Court of Appeals, ___ N.C. ___, 818 S.E.2d 324 (2018), the court, over a dissent, reversed the Court of Appeals’ conclusion that there was insufficient evidence to send a charge of disorderly conduct, based upon the juvenile’s act of throwing a chair in a school cafeteria, to the jury. The court first addressed the question of whether the juvenile delinquency petition sufficiently alleged a violation of G.S. 14-288.4. Finding that the State followed the “true and safe rule” by substantially employing the terminology of the statute in the petition, the court found it sufficient to confer subject matter jurisdiction to the district court. Though the petition did not specifically cite the subdivision of the statute that the juvenile was alleged to have violated, the court found that the petition’s allegation that the juvenile had thrown a chair toward another student “averred that the juvenile was delinquent for a violation of [G.S. 14-288.4(a)(1)].” Subsection (a)(1) describes a form of disorderly conduct that occurs when a person “engages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or other violence.”
(2) Having found the petition sufficient, the court went on to conclude that evidence that the juvenile threw a chair at his brother across the cafeteria where other students were present, when viewed in the light most favorable to the State, was substantial evidence that the juvenile “engag[ed] in violent conduct” in violation of the statute.
A dissenting judge said that the evidence could “fairly be said to raise a suspicion that [the juvenile] engaged in violent conduct, but no more than a suspicion.” The dissenting judge would have held that the evidence was insufficient to send the charge to the jury.
In this Haywood County case, three defendants appealed their judgments for various drug-related offenses, arguing error in (1) joining their cases for trial, (2) admission of certain testimony, (3) denying their motions to dismiss. The Court of Appeals found no error.
In October of 2018, the Haywood County Sheriff's Office executed a search warrant on three apartments, finding heroin and cocaine along with drug paraphernalia. The three defendants were found together in one of the apartments, along with drugs and a large amount of cash. The defendants came to trial in August of 2021, and the State moved to join the cases for trial; the trial court allowed this motion over their objections.
For (1), the court noted that G.S. 15A-926 permits joinder in the discretion of the trial court, with the primary consideration being the fair trial for each defendant. Here, no confessions or affirmative defenses were offered by any defendant, and “[b]ecause there were no antagonistic or conflicting defenses that would deprive Defendants of a fair trial,” the court found no error in joining the cases. Slip Op. at 8.
Looking to (2), the court explained that one defendant objected to the testimony by an officer referencing several complaints about a black car driven by the defendant. The court noted that the officer’s testimony was not hearsay under Rule of Evidence 801, as it was not being offered to prove the truth of the matter asserted. Instead, the officer’s testimony explained his subsequent actions in observing the black car, which led to conducting surveillance on the apartments.
Finally, in (3), the court found that two of the defendants had constructive possession of the drugs sufficient to support their convictions for possession despite not having exclusive possession of the apartments, as sufficient evidence of incriminating circumstances linked the defendants to the drugs and paraphernalia. The court noted this constructive possession, along with a rental application for one of the apartments, supported the finding of a conspiracy between the defendants to traffic the drugs. As a result, the trial court did commit error by denying the defendants’ motions to dismiss.
In this Mecklenburg County case, defendant appealed his convictions for breaking and entering, larceny, and attaining habitual breaking and entering offender status, arguing error in (1) the trial court’s comments about the existence of defendant’s previous convictions during the habitual offender phase, (2) admission of expert testimony without the necessary foundation, and (3) the felony class of habitual breaking and entering on the written judgment. The Court of Appeals found no prejudicial error.
In 2018, defendant was indicted for breaking and entering and larceny after DNA and fingerprint evidence linked defendant to a break-in at a Charlotte residence. The trial proceeded first on the charges related to the break in, then after the jury convicted defendant of the initial charges, proceeded to habitual breaking and entering offender status. During this second phase, the trial court told the jury “[the state] will present evidence relating to previous convictions of breaking and/or entering at this time.” Slip Op. at 5. The jury convicted defendant of habitual offender status, and defendant subsequently appealed.
Reviewing issue (1), the Court of Appeals disagreed with defendant’s characterization of the trial court’s remarks, explaining that “the trial court did not offer to the jury the court’s opinion as to whether [d]efendant did in fact have previous convictions . . . [r]ather, the trial court notified the jury and the parties of its plan for the outset of the second phase of trial.” Id. at 12.
Turning to issue (2), the court noted that defendant did not object at trial to the testimony, meaning the review was under a plain error standard. The court examined the testimony of two experts under Rule of Evidence 702, finding that the fingerprint expert testimony “[did] not clearly indicate that [state’s expert] used the comparison process he described in his earlier testimony when he compared [d]efendant’s ink print card to the latent fingerprints recovered at the crime scene.” Id. at 28. However, the court found no prejudicial error in admitting the testimony, as properly admitted DNA evidence also tied defendant to the crime.
Finally, the court reviewed (3), defendant’s argument that the trial court incorrectly recorded his habitual breaking and entering offense as a Class E felony. The court disagreed, explaining that the form filled out by the trial court identifies the breaking and entering charge as a Class H felony (with punishment Class E), and the habitual breaking and entering offender charge as a Class E felony. Based on relevant precedent, defendant’s habitual offender status represented a status offense enhancing the punishment for the underlying substantive offense. The court concluded that the “trial court’s identification of habitual breaking and entering as a Class E status offense, as compared to a Class E substantive offense, was not error.” Id. at 37.
In this case arising from a high-profile incident where William Joseph Barber was convicted of second-degree trespass for refusing to leave the office area of the General Assembly while leading a protest related to health care policy after being told to leave by security personnel for violating a building rule prohibiting causing disturbances, the Court of Appeals found that the superior court had subject matter jurisdiction to conduct the trial and that the trial was free from error.
The Court of Appeals rejected the defendant’s argument that the superior court lacked jurisdiction to try him for the misdemeanor because the charging document upon which the State proceeded in superior court was a statement of charges rather than an indictment and Defendant had not first been tried in district court. Here, the defendant was indicted by a grand jury following a presentment but the prosecutor served a misdemeanor statement of charges on him on the eve of trial and proceeded on that charging document in superior court. The Court of Appeals noted that the superior court does not have original jurisdiction to try a misdemeanor charged in a statement of charges but went on to explain that because the prosecution in this case was initiated by an indictment, the superior court had subject matter jurisdiction over the misdemeanor. The Court characterized the statement of charges as a permissible amendment to the indictment (because it did not substantially change the nature of the charged offense) rather than a new charging document.
The Court also rejected the defendant’s argument that the trial court erred by disallowing certain evidence that went to his assertion that his prosecution implicated his First Amendment rights to free speech and free assembly. The Court determined that his First Amendment rights were not implicated in the conduct for which he was charged because he was removed from the General Assembly because of the loudness of his speech rather than its content. The Court then determined that even if his First Amendment rights were implicated, they were not violated as a matter of law. The Court held that the interior of the General Assembly “is not an unlimited public forum” and therefore “the government may prohibit loud, boisterous conduct on a content-neutral basis that would affect the ability of members and staff to carry on legislative functions.” It went on to conclude that “Defendant’s First Amendment rights were not violated by the application of the legislative rules that support his conviction” because those “rules serve a significant interest of limiting loud disruptions and [he] has various other channels to make his concerns known and to engage in protests of legislative policies.”
Judge Inman concurred in part and concurred in the result in part by a separate opinion. Judge Inman applied United State v. O’Brien, 391 U.S. 367 (1968) to determine that the building rule at issue was more than an incidental burden on speech and instead was a time, place, and manner restriction subject to intermediate First Amendment scrutiny. Judge Inman also concluded, in contrast to her reading of the view in the majority opinion, that the hallway where the defendant was arrested was a designated public forum. Nevertheless, Judge Inman concurred in the ultimate conclusion that the defendant’s constitutional rights were not violated as the building rule was a reasonable time, place, and manner restriction that survived intermediate scrutiny.
In this Durham County case, defendant appealed his conviction for felony animal cruelty, arguing that (1) the removal of the name of a horse from the indictment rendered it invalid, and (2) the prosecutor’s recitation of caselaw during closing argument represented gross impropriety. The Court of Appeals found no error and affirmed the conviction.
In July of 2016, Durham County Animal Services responded to a report of several deceased horses on the property where defendant kept his horses. On the scene, Animal Services discovered the skeletal remains of three horses and one still-living horse, a chestnut mare, in severely emaciated condition. This horse was initially identified as “Diamond” in the indictment, but the prosecution successfully moved to strike the name from the indictment prior to trial. Defendant was found guilty of felony animal cruelty under N.C.G.S. § 14-360(b) in January 2021.
Reviewing defendant’s first argument on appeal, the Court of Appeals noted that under N.C.G.S. § 15A-923(e) an indictment may not be amended, but “surplus language which ‘in no way change[s] the nature or the degree of the offense charged’ may be stricken from an indictment.” Slip Op. at ¶20, quoting State v. Peele, 16 N.C. App. 227 (1972). The court explained that under N.C.G.S. § 14-360(b), the name of an animal is not considered an essential element of the crime, and applicable precedent established that it was acceptable to identify animals by general descriptions in indictments. Slip Op. at ¶24, citing State v. Credle, 91 N.C. 640 (1884). Because there was only one horse at issue in this case, and striking its name “Diamond” caused no confusion or difficulty for defendant when presenting his defense, the court found no error in striking the horse’s name from the indictment.
The court next considered the prosecutor’s recitation of case law during closing argument. Noting that defense counsel did not object during trial, the court explained that defendant must show the remarks were “so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu,” a heightened standard of review. Slip Op. at ¶27, quoting State v. Jones, 355 N.C. 117 (2002). The court emphasized that “the prosecutor’s statements must have been so improper that they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Slip Op. at ¶29, quoting Darden v. Wainwright, 477 U.S. 168 (1983). Based upon this high standard for relief, and the substantial evidence admitted at trial supporting defendant’s conviction, the court could not establish that defendant was deprived of a fair trial.
(1) The court rejected the defendant’s argument that the trial court erred by denying his motion under the Racial Justice Act to prohibit the State from seeking the death penalty without holding an evidentiary hearing. Assuming arguendo that any version of the RJA applies to the defendant, the defendant failed to follow the provisions of that statute which mandate that the claim shall be raised by the defendant at the Rule 24 conference. Here, the defendant did not raise a RJA claim at the Rule 24 conference, despite being twice asked by the trial court whether he wanted to be heard. The court concluded: “Defendant cannot complain of the trial court’s failure to strictly adhere to the RJA’s pretrial statutory procedures where he himself failed to follow those procedures.” The court noted that its ruling was without prejudice to the defendant’s ability to raise an RJA claim in post-conviction proceedings.
(2) 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 the sentencing phase of the trial. On appeal the defendant pointed to two statements made by prosecutors during the State’s closing arguments which refer to the defendant’s decision not to present mitigating evidence or closing statements. The court found no gross impropriety in the prosecutor’s remarks, noting in part that it is not impermissible for prosecutors to comment on the defendant’s lack of mitigating evidence.
(3) The court found that the defendant’s sentencing survived proportionality review, noting in part that the defendant kidnapped a five-year-old child from her home and sexually assaulted her before strangling her and discarding her body under a log in a remote area used for field dressing deer carcasses.
The State’s evidence tended to show that the defendant was driving a van with a trailer attached behind it when he cut off two motorcycles, made rude gestures, and caused one of the motorcycles to crash. The driver of the motorcycle sustained serious injuries and a passenger died as a result of the accident. The defendant slowed down briefly and then fled the scene.
(1) The trial court did not err in denying the defendant’s motion to dismiss the charges of felony hit and run because there was sufficient evidence that the defendant knew or reasonably should have known, that the vehicle he was driving was involved in a crash and that someone was killed or seriously injured as a result. First, the defendant argued that there was insufficient evidence that he knew or reasonably should have known that the vehicle he was operating was involved in a crash or that the crash had resulted in serious bodily injury because the evidence could have shown that the defendant could not have seen behind his van and trailer or that there may not have been contact between the victim’s motorcycle and the defendant’s trailer. The Court of Appeals rejected this argument for multiple reasons, largely centering on evidence of the defendant’s awareness of the position of his vehicle relative to the motorcyclists and other traffic and evidence that the defendant slowed down immediately following the crash and then sped away at a high rate of speed.
(2) The defendant argued that the trial court erred in giving the jury an instruction on flight as evidence of the defendant’s consciousness of guilt because “leaving the scene of the offense, which could be considered flight under the challenged instruction, is an essential element of felony hit and run.” Slip op. at ¶ 37. The Court of Appeals disagreed with the defendant’s assertion that flight is an essential element of felony hit and run, explaining that flight requires some evidence of a defendant taking steps to avoid apprehension while a driver’s motive for leaving the scene of a crash for purposes of felony hit and run is immaterial. The court went on to find the instruction supported by evidence of the defendant speeding away, later lying about why his tire was blown out, and asking for directions to a destination that would allow him to arrive there without traveling on the interstate.
Confronting a question of first impression, the court held that “in narrow and extraordinary circumstances” the common law defense of justification may be an affirmative defense to a charge of possession of a firearm by a felon under G.S. 14-415.1. Noting that justification is an affirmative defense which a defendant carries the burden of proving at trial, the court joined the Court of Appeals in adopting an analysis from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) andheld that a defendant invoking justification as a defense to a violation of G.S. 14-415.1 must show:
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
Having established that justification is a defense to a violation of G.S. 14-415.1, the court examined whether the defendant in this case was entitled to a jury instruction on the defense. Such an instruction is required, the court explained, when each of the four “Deleveaux factors” is supported by evidence taken in the light most favorable to the defendant. The defendant’s evidence suggested that he was under a qualifying threat as it showed that he and two friends, J and Wardell, arrived to his home to find that a group of fifteen people, some of whom were armed, had assembled at the home intending to fight the defendant. As tensions elevated towards violence, the defendant took Wardell’s gun as Wardell seemed unfamiliar with it and, in the defendant’s view, would be unable to use it in their defense. The court concluded that there was evidence of each of the Deleveaux factors under these facts and that the trial court committed prejudicial error by denying the defendant’s request to instruct the jury on the defense.
A dissenting justice, Justice Morgan, “welcom[ed] the establishment of the justification defense” for this criminal offense but did not believe that the evidence in the instant case was sufficient to require the trial judge to give the instruction.
The defendant, the former District Attorney for Person and Caldwell Counties, was tried for obtaining property by false pretenses, conspiracy to obtain property by false pretenses, aiding and abetting obtaining property by false pretenses, three counts of obstruction of justice, and failure to discharge the duties of his office. The jury acquitted on one count of felony obstruction and the conspiracy count but convicted on the remaining charges (with the exception that the jury returned a verdict of guilty of misdemeanor obstruction on one of the remaining felony obstruction counts). The trial court subsequently arrested judgment on the aiding and abetting obtaining property conviction. The charges stemmed from a scheme whereby the defendant and another elected District Attorney hired each other’s wives to work in each other’s offices. Under this arrangement, both wives were wrongfully paid for working hours that they had not actually worked.
(1) There was insufficient evidence to support the conviction for obtaining property by false pretenses. The State alleged that the defendant acted in concert with the employee who improperly submitted work hours. Acting in concert requires the actual or constructive presence of the defendant at the scene of the crime. “A person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime.” Slip op. at 15 (citation omitted). Although the employee at issue worked for the defendant, she was allowed to work at her husband’s office in another district. The defendant was therefore not physically present when the fraud of reporting unworked hours occurred. The State argued that the defendant was constructively present, pointing out that the fraudulent hours were approved by a supervisor at the defendant’s direction. The court rejected this argument, noting that the approval of hours occurred at a much later time than when the hours were submitted. While “actual distance is not determinative, . . . the accused must be near enough to render assistance if need be and to encourage the actual perpetration of the crime.” Id. at 19 (citation omitted). Here, the defendant was not in the same county as the employee who submitted the fraudulent hours at the time they were submitted. The fact that the employee could have called the defendant for help with the crime at the time was not enough to satisfy the constructive presence element. “To hold the theory of acting in concert would be satisfied merely where ‘remote assistance’ is possible would broadly expand the universe of criminal conduct under this theory.” Id. at 22. Thus, the defendant’s conviction for acting in concert to obtain property by false pretenses was vacated for insufficient evidence [although the trial court was instructed on remand to reinstate the judgment previously arrested for aiding and abetting obtaining property].
(2) There was also insufficient evidence of felony obstruction of justice. That offense requires the State to prove that the defendant actually impeded the administration of justice. The indictment alleged that the defendant made false statements to an SBI investigator concerning the employee. One of the defendant’s statements at issue was “at most misleading, and not false,” as it was a misrepresentation by omission and not affirmatively a false statement as the indictment charged. There was sufficient evidence that another of the defendant’s statements to the investigator was false, but there was no evidence that this statement actually obstructed the course of the investigation. The defendant responded truthfully to some of the investigator’s questions about the employee, which actually facilitated the investigation. The defendant was never directly asked whether the employee was in fact performing work for the defendant. “To support a conviction for obstruction of justice, the State must establish substantial evidence for every element of the crime, including that the act in question ‘obstructed justice[.]’” Id. at 27 (citation omitted). The motion to dismiss for felony obstruction of justice therefore should have been granted, and that conviction was vacated.
(3) The defendant argued that the trial court improperly excluded testimony regarding an email sent by an assistant to the Administrative Office of the Courts at the defendant’s direction. At trial, the defendant argued that the email fell within the business records exception to the prohibition on hearsay, that the email was simply not hearsay, and that the State opened the door to the admission of the email through its questions of the witness. On appeal, the defendant argued that the email should have been admitted because it was a directive to his employee, pointing to cases holding that commands are not hearsay because they are not offered for the truth of the matter (rather, they are offered to show that the command was given). It was not apparent from context that the defendant was arguing for the email’s admission as a command, and the parties and trial court did not address that argument. Since this argument was not made at the trial level, it was not preserved and was waived on appeal.
(4) The trial court did not commit plain error by failing to instruct the jury on the specific misrepresentations for the obtaining property by false pretenses offenses. “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 34 (citation omitted). The defendant argued that the evidence showed alternative false representations that the jury could have improperly relied on in rending its verdict of guilty for the two offenses. Reviewing the evidence, the court rejected this argument. “We hold the trial court did not err, nor plainly err, in failing to give an instruction about the misrepresentation alleged in the indictment.” Id. at 37.
The trial court did not err by failing to instruct the jury on an exemption to a drug trafficking charge. The defendant argued that he was exempt from prosecution as an “ultimate user” pursuant to G.S. 90-101(c). The statute defines an ultimate user as a person who lawfully possesses a controlled substance for his own use, or for the use of a member of his household. The defendant was found in possession of 54 dosage units of oxycodone weighing 6.89 grams. The defendant argued that the trial court erred by not instructing the jury sua sponte on the ultimate user exception. The court found however that the record lacked substantial evidence by which a jury instruction on this exemption would have been required. The evidence showed that the defendant did not lawfully possess his father’s oxycodone pills solely for his father’s prescribed use, as required to fall within the ultimate user exemption. Rather, the record reflects overwhelming evidence that the defendant possessed his father’s oxycodone for his own purpose of unlawfully selling the pills. Although the defendant presented evidence that the oxycodone was prescribed to his father, that the defendant drove his father to and from appointments related to his care, and that the defendant lived with and cared for his father, “no reasonable person could conclude that Defendant was in lawful possession of his father’s oxycodone at the time of his arrest.” Among other things the defendant gave a written confession admitting that he was selling the pills to make money. Because the defendant failed to present substantial evidence that he possessed the pills solely for his father’s use, he was not entitled to the instruction.
(1) The State and the defendant’s version of events were inconsistent. For purposes of determining the sufficiency of the evidence supporting a jury instruction on justification, the Court of Appeals recounted the defendant’s version of events. The defendant was in David Harrison’s trailer drinking bourbon when Harrison suddenly stood up while only a few feet from the defendant, pulled a pistol out of his pocket, pointed it toward the wall near the defendant, and fired a shot at the wall. Before pulling out the gun, Harrison had not threatened the defendant in any way, nor did he appear angry or upset. As soon as Harrison fired the shot at the wall, the defendant grabbed the pistol from Harrison and left the trailer. The defendant went to look for Karen Tucker, who was dating his father, and who he believed would be sober and safely able to take the gun from him. When the defendant did not find Karen in her trailer, he waited with the gun in his possession, in the presence of Karen’s daughters, until Karen arrived. The defendant then gave Karen the gun.
Law enforcement officers who later arrived on the scene did not find bullet holes inside of Harrison’s trailer but did find a shell casing sitting on a coffee table. The defendant was charged with a number of offenses, including possession of a firearm by a felon. At trial, the defendant requested a jury instruction on the defense of justification. The trial court denied the request, and the jury found the defendant guilty.
On appeal, the defendant argued that the trial court erred by denying his request for a jury instruction on the defense of justification. Using the test outlined in State v. Mercer, 373 N.C. 459, 463 (2020), the Court of Appeals determined that the evidence at trial was insufficient to establish the first factor of the test, which requires “that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury.” The Court concluded that even assuming Harrison’s drunken act of firing his pistol into the wall or ceiling of his house represented an “impending threat of death or serious bodily injury” to the defendant, that threat was gone once the defendant left Harrison’s trailer with the gun, and the defendant did not take advantage of other opportunities, described in the opinion, to dispose of the gun.
(2) The State conceded that the trial court erred in imposing attorneys’ fees without providing the defendant with notice and an opportunity to be heard. At the time of sentencing, the defendant’s court-appointed counsel had not yet calculated the number of hours worked on the case. The trial court explained to the defendant that those would be calculated later and submitted to the court. The court advised the defendant that it would sign what it felt to be a reasonable fee. The court later entered a civil judgment for $2,220 without first informing the defendant of the amount. The Court of Appeals held that the defendant was not provided sufficient opportunity to be heard before entry of that civil judgment. It thus vacated the civil judgment and remanded the matter to the trial court for further proceedings on that issue.
The defendant was convicted at trial of impersonating an officer and possession of a weapon of mass destruction (flashbang grenades) in Onslow County. On appeal, the Court of Appeals determined that flashbang grenades did not qualify as a weapon of mass destruction and vacated that conviction. The N.C. Supreme Court reversed on that point and remanded for the Court of Appeals to consider the defendant’s other arguments. The defendant filed a new brief with the court, arguing the trial court erred by failing to instruct the jury about the exception for lawful possession of weapons of mass destruction. See G.S. § 14-288.8(b)(3). The defendant contended that he presented evidence that he qualified for the exception as a person “under contract with the United States” and it was error to fail to instruct the jury on the exception. While the defendant challenged jury instructions in his original brief to the Court of Appeals, he did not raise this issue. He therefore asked the court to invoke Rule 2 of the Rules of Appellate Procedure to review this argument, and the court granted that request.
At trial, the defendant presented evidence that he was an active-duty U.S. Marine serving as a weapons technician, and that he came into possession of the grenades as part of his duties in that capacity. The State did not contest this evidence at trial, but argued on appeal that the defendant failed to promptly return the weapons to the Marine Corps and that the defendant was “on a detour” (and not acting in his capacity as a solider) at the time of the offense. “Even if the State’s argument is true, this would not overcome Defendant’s properly admitted testimony and his right for the jury to resolve this issue.” Carey Slip op. at 8. The trial court had a duty to instruct the jury on all substantial features of the case, including the defense of lawful possession raised by the defendant’s evidence, and its failure to do so was plain error. The judgment of conviction for possession of a weapon of mass destruction was therefore vacated and the matter remanded for a new trial on that offense.
Judge Young dissented. According to his opinion, the N.C. Supreme Court’s decision remanding the case was limited to “the defendant’s remaining challenges” – those that were raised but not decided in the defendant’s original appeal to the Court of Appeals. The mandate therefore did not include new arguments that had not previously been raised at all, and Judge Young would not have considered the lawful possession argument.
The defendant was convicted at trial of impersonating an officer and possession of a weapon of mass destruction (flashbang grenades) in Onslow County. On appeal, the Court of Appeals determined that flashbang grenades did not qualify as a weapon of mass destruction and vacated that conviction. The N.C. Supreme Court reversed on that point and remanded for the Court of Appeals to consider the defendant’s other arguments. The defendant filed a new brief with the court, arguing the trial court erred by failing to instruct the jury about the exception for lawful possession of weapons of mass destruction. See G.S. § 14-288.8(b)(3). The defendant contended that he presented evidence that he qualified for the exception as a person “under contract with the United States” and it was error to fail to instruct the jury on the exception. While the defendant challenged jury instructions in his original brief to the Court of Appeals, he did not raise this issue. He therefore asked the court to invoke Rule 2 of the Rules of Appellate Procedure to review this argument, and the court granted that request.
At trial, the defendant presented evidence that he was an active-duty U.S. Marine serving as a weapons technician, and that he came into possession of the grenades as part of his duties in that capacity. The State did not contest this evidence at trial, but argued on appeal that the defendant failed to promptly return the weapons to the Marine Corps and that the defendant was “on a detour” (and not acting in his capacity as a solider) at the time of the offense. “Even if the State’s argument is true, this would not overcome Defendant’s properly admitted testimony and his right for the jury to resolve this issue.” Carey Slip op. at 8. The trial court had a duty to instruct the jury on all substantial features of the case, including the defense of lawful possession raised by the defendant’s evidence, and its failure to do so was plain error. The judgment of conviction for possession of a weapon of mass destruction was therefore vacated and the matter remanded for a new trial on that offense.
Judge Young dissented. According to his opinion, the N.C. Supreme Court’s decision remanding the case was limited to “the defendant’s remaining challenges” – those that were raised but not decided in the defendant’s original appeal to the Court of Appeals. The mandate therefore did not include new arguments that had not previously been raised at all, and Judge Young would not have considered the lawful possession argument.
The defendant in this case previously appealed his convictions for possession of a firearm by a felon, trafficking in heroin, PWISD cocaine, and attaining habitual felon status. The Court of Appeals found no error in State v. Wynn, 264 N.C. App. 250 (2019) (unpublished) (“Wynn I”).
The state Supreme Court granted a petition for discretionary review and remanded to the Court of Appeals for the limited purpose of reconsideration in light of State v. Golder, 347 N.C. 238 (2020) (holding that a motion to dismiss made “at the proper time preserved all issues related to the sufficiency of the evidence for appellate review”). Applying Golder to the case at hand, the appellate court reconsidered defendant’s argument challenging the sufficiency of the evidence at trial, which the court in Wynn I had ruled was not preserved at the trial level. The court began by rejecting the state’s argument that Golder was inapplicable because defense counsel in this case moved for a directed verdict, rather than making a motion to dismiss; the court held that in criminal cases the terms are used interchangeably and are reviewed in the same manner.
Turning to the substantive offenses, the court held that the motion to dismiss the charge of possession of a firearm by a felon should have been granted. No firearm was found in this case; the state’s primary evidence for possession of a firearm was the defendant’s statement to the officers that he had one before they arrived but he had dropped it. Applying the corpus delicti principle, the court held that a confession alone cannot support a conviction unless there is substantial independent evidence to establish the trustworthiness of the confession, including facts which strongly corroborate the essential facts and circumstances in the confession. In this case, the police found a 9mm magazine in a home the defendant had broken into, and also found 9mm shell casings and bullet holes in the defendant’s own home; however, the court pointed out that a magazine is not a firearm, and it was unknown who caused the bullet holes or when. Without some additional evidence (such as recovering the firearm, testimony from a witness who saw a firearm or heard gunshots, or evidence of injury to a person or property), the court concluded that there was insufficient corroboration of the confession and vacated the conviction.
On his convictions for trafficking heroin and PWISD cocaine, the defendant challenged the sufficiency of the evidence that he possessed the drugs, but the appellate court held that there was sufficient evidence to establish constructive possession. The drugs were found inside a house where the defendant was seen actively moving from room to room, indicating that had dominion over the space, and the drugs were packaged in red plastic baggies that the defendant was known to use for selling drugs. When the defendant exited the house he also had over $2,000 in cash on him and a white powdery substance in and on his nose. Taken together, these facts presented sufficient evidence to withstand a motion to dismiss regarding the defendant’s constructive possession of the controlled substances, and the convictions were affirmed.
Finally, the court declined to revisit its earlier ruling on defendant’s argument concerning the admissibility of evidence under Rule 403 and 404, since the case was only remanded for reconsideration in light of Golder. “As such, the Supreme Court left, and we shall too, leave intact our prior analysis, regarding defendant’s second argument of evidence of other wrongs.”
The defendant was stopped by a state trooper who saw her driving erratically. The defendant smelled of alcohol, had slurred and mumbled speech, and stumbled and staggered when she got out of her car. She registered a positive result on a portable breath test and was arrested for driving while impaired. She subsequently refused to submit to a breath test. The defendant pled guilty in district court to driving while impaired and appealed. In superior court, the defendant moved to suppress evidence and requested a bench trial. The superior court denied the motion to suppress and found the defendant guilty. At sentencing, the court found the grossly aggravating factor of a prior impaired driving conviction within seven years of the date of the offense and imposed a Level Two sentence. The defendant appealed, arguing that the trial court erred in denying her motion to suppress, the evidence was insufficient to support her conviction, and that the trial court erred in in sentencing her based on a grossly aggravating factor for which the State filed to provide the statutorily required notice.
(1) The court of appeals determined that the defendant did not properly preserve the denial of her motion to suppress for review on appeal as she did not renew her objection when the evidence was offered for consideration at her bench trial. And because the defendant did not argue plain error on appeal, the court did not review the denial of the motion for plain error.
(2) The court of appeals determined that the trial court did not err by denying defendant’s motion to dismiss for insufficient evidence. The trooper testified as to his opinion that the defendant was impaired by alcohol. He based that opinion on seeing the defendant stumbling and staggering when she got out of her car, smelling a moderate odor of alcohol on her breath, hearing her mumbled and slurred speech, and observing her erratic driving. Evidence of the defendant’s refusal to submit to a breath test at the police station also was admissible evidence of impairment. The appellate court held that, viewed in the light most favorable to the State, this evidence was sufficient to show that the defendant was under the influence of an impairing substance.
(3) The State failed to file notice of its intent to rely at sentencing upon the aggravating factor of a prior impaired driving conviction. Such notice is required by G.S. 20-179(a1)(1) for misdemeanor impaired driving charges appealed to superior court. The court explained that the right to notice of the State’s intent to rely on a prior conviction is a statutory right, not a constitutional one, and thus may be waived. The defendant admitted to the prior conviction on cross-examination, and her counsel stipulated at sentencing that she “‘did have the prior DWI.’” Slip op. at 12. Moreover, defense counsel did not object to the court’s consideration of the prior conviction as an aggravating factor. The court of appeals determined that the defendant’s admission and her counsel’s stipulation along with her failure to object to lack of notice at the sentencing hearing amounted to a waiver of her statutory right to notice.
The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial. The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation. The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.
(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.
(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.
In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.
In this Buncombe County case, defendant appealed his convictions for second-degree forcible sexual offense, intimidating or interfering with a witness, and habitual felon status, arguing (1) the trial court lacked jurisdiction over the interfering with a witness charge, (2) error in denying his motion to dismiss the interfering charge due to insufficient evidence, and (3) error in the jury instruction related to the interfering charge. The Court of Appeals found the trial court did have sufficient jurisdiction and committed no error.
The charges against defendant arose from a 2019 incident where he forced himself upon a woman after a night of drinking and smoking marijuana. While defendant was in the Buncombe County Jail prior to trial, he made a call to the victim using a fake name. When the victim answered, defendant told her “[i]f you’re still in Asheville, I’m gonna try and send you some money,” and “I got $1,000 for ya.” Slip Op. at 4-5. The victim informed law enforcement of the call, leading to the additional charge of intimidating or interfering with a witness. At trial, the victim testified about the phone call and the recording was published to the jury. Defense counsel’s motions to dismiss the charges were denied by the trial court.
The Court of Appeals first explained the basis of defendant’s argument (1), that the trial court lacked jurisdiction because the alleged conduct from the indictment, bribing the witness/victim not to testify, was not criminalized by G.S. 14-226. Defendant argued that bribery was not an act to intimidate the witness under the language of the statute, and that only threatening or menacing a witness represented a violation of the statute. The court rejected this interpretation, explaining that G.S. 14-226 “prohibits intimidation of witnesses or attempts to deter or interfere with their testimony ‘by threats, menaces or in any other manner,’” and that this language “given its plain and ordinary meaning, straightforwardly expands the scope of prohibited conduct beyond ‘threats’ and ‘menaces’ to include any other act that intimidates a witness or attempts to deter or interfere with their testimony.” Id. at 9-10.
The court likewise rejected (2), defendant’s motion to dismiss argument. Here the court explained that direct evidence was not required to prove intent, and that circumstantial evidence was sufficient to support a finding that defendant intended to dissuade the witness from testifying. The court held that “the circumstantial evidence that the State did introduce in this case supports a reasonable inference that [defendant] acted with just that intent given the context in which he made the offer.” Id. at 13.
Taking up (3), defendant’s objections to the jury instructions, the court explained that defendant objected to four elements of the instructions. First, defendant objected that the instruction did not require the jury to find that defendant threatened the witness/victim; the court explained this was precluded by its holding discuss above on bribery in G.S. 14-226. Second, defendant argued that the instruction did not convey the required intent to the jury; the court rejected this argument as the instruction was based on a pattern jury instruction previously held to be consistent with the statute. Third, defendant argued that the structure of the instruction allowed the jury to convict him for simply offering the witness/victim $1,000, which is not illegal conduct; again the court pointed to the context and circumstances around the conduct and bribery to dissuade the testimony.
Defendant’s final argument regarding the jury instruction was that the disjunctive structure of the instruction allowed a jury verdict that was not unanimous, as he asserted that various jury members may have found him guilty under separate parts of the instruction. The court explained that some disjunctive instructions are unconstitutional, particularly where a jury can choose from one of two underlying acts to find a defendant guilty of a crime such as in State v. Lyons, 330 N.C. 298 (1991). Slip Op. at 18. However, the crime of intimidating or interfering with a witness does not consist of a list of specific criminal acts, and the court pointed to the example of State v. Hartness, 326 N.C. 561 (1990), where indecent liberties was identified as a similar statute where any of several disjunctive acts can constitute the elements of the offense for purposes of a jury’s guilty verdict. Slip Op. at 19. As there was no danger of jurors convicting defendant of separate offenses under G.S. 14-226, the court found no issue with the disjunctive nature of the jury instruction in the current case. The court further noted that the evidence and verdict rested solely on the attempt to bribe the witness/victim, and did not provide other possible behaviors that could create ambiguity.
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of disseminating obscene material to a minor. On appeal the defendant argued that there was insufficient evidence that the material was obscene. At trial the victim testified that the defendant showed her movies involving “a guy and a girl” having sex naked. The State introduced a photograph of three pornographic DVDs found in a search of the premises and the victim’s mother testified that the defendant “had so many” pornographic DVDs. According to the victim’s mother, when the allegations came to light, the defendant disposed of some of his pornography collection and put the rest in a shed. The victim’s mother later found that material and gave it to detectives. At trial various titles from the defendant’s pornography collection were read to the jury. This evidence was sufficient to allow a reasonable jury to infer that the material the defendant showed to the victim was of the same nature of that contained in the defendant’s pornography collection and therefore was obscene material under contemporary community standards.
(2) The trial court’s instructions with respect to multiple counts of indecent liberties with a child, first-degree rape of a child, and sex offense in a parental role did not deprive the defendant of his constitutional right to a unanimous jury verdict. The trial court provided a single instruction for each offense, without describing the details of the conduct underlying each charge. It did however instruct the jury that it must consider each count individually and the verdict sheets identified each count by victim and included a brief description of the particular conduct alleged by reference to the location where it occurred. Additionally jurors were instructed that they all must agree to the verdict, that they could not reach a verdict by majority vote, and that they should indicate on the verdict forms when they agreed upon unanimous verdicts as to each charge. Applying the test from State v. Lawrence, 360 N.C. 368 (2006), the court rejected the defendant’s argument that the jury instructions deprived him of his right to a unanimous jury verdict. The court went on to note that “the instant case is not one in which the risk of a non-unanimous verdict would have arisen by virtue of the trial court’s instructions.” The crimes at issue do not list as elements discrete criminal activities in the disjunctive. Instead, the indecent liberties statute simply forbids any immoral, improper indecent liberties with a child under 13 if taken for the purpose of arousing or gratifying sexual desire. The particular act found to be performed is immaterial to the unanimity inquiry. Thus, even if some jurors were to find that the defendant engaged in one kind of sexual misconduct while others found that he engaged in another, the jury as a whole would still have unanimously found the required sexual misconduct. Here, the defendant was charged with five counts of indecent liberties against the victim. The victim testified to at least five incidents that would have constituted indecent liberties; in fact she testified to 7 such incidents. Similarly, the jury convicted the defendant of four counts of statutory rape and the victim testified to at least four specific incidents that constituted statutory rape and occurred in each of the four locations indicated on the verdict sheet. Therefore there was no danger that the rape verdicts were not unanimous.
(3) The trial court did not err by declining to reopen the case after the defendant reconsidered his decision not to testify. After the close of the State’s evidence, the trial court addressed the defendant regarding his decision whether or not to testify. The defendant informed the trial court that he would not testify. The defense did not present any evidence and rested, and the jury was excused. After the charge conference defense counsel informed the trial court that the defendant had reconsidered his decision and now wished to testify. The trial court declined to reopen the case and bring the jury back in order to allow the defendant to testify. The court found no abuse of discretion in the trial court’s decision to decline to reopen the case to allow the defendant to testify.
In this Richmond County case, the defendant was found guilty by a jury of first-degree murder, attempted first-degree murder, and assault with a deadly weapon with intent to kill for shooting an acquaintance during an argument, and, during the same incident, shooting another acquaintance who was standing nearby in the leg. The defendant had been drinking for more than six hours before he shot the victims. After he began drinking and several hours before the shooting, he displayed a gun in front of a child. After the shooting, he drove to another acquaintance’s house and honked his car horn for thirty minutes. At trial, he requested that the judge instruct the jury on voluntary intoxication. The judge refused this request.
(1) On appeal, the defendant argued that the trial court erred by refusing to instruct the jury on voluntary intoxication. The defendant contended there was substantial evidence that, because of his intoxication, he could not form a deliberate and premeditated intent to kill the victim. The Court of Appeals concluded that although there was evidence that the defendant was very intoxicated and acted recklessly some hours before the shooting, there was not substantial evidence that he was intoxicated to the point he could not control himself and could not form the intent to kill the victim. The Court noted that the defendant shot and killed the victim following an argument and then drove away from the scene, arriving at an acquaintance’s house without getting into an accident. Hours after the shooting, he told officers that he shot the deceased victim in self-defense. Thus, the Court concluded that the trial court did not err in not instructing the jury on voluntary intoxication.
(2) The defendant also argued on appeal that the trial court erred in admitting the handgun used in the shootings during testimony from the pawnbroker who transferred the gun to the defendant. This took place early in the trial and before the State presented evidence that the handgun was used to shoot the victims. The Court of Appeals determined that the trial court did not err in admitting the handgun before its relevance had been established as the State later presented evidence connecting the handgun to the shootings. The defendant also argued that the trial court erred by admitting the handgun because the State did not establish a chain of custody. Even assuming the defendant preserved this issue for appeal and that the trial court erred in this regard, the Court found that the error did not prejudice the defendant in light of other overwhelming evidence of the defendant’s guilt.
Evidence > Prior Acts--404(b) Evidence > Evidence Admissible > Defendant’s Possession of Substance/Drug Activity
In this Johnston County case, defendant appealed his controlled substance related convictions arguing error in (1) the admission of prior bad act evidence, and (2) denying his motion to dismiss some of the controlled substances charges. The Court of Appeals vacated and arrested the judgment for maintaining a dwelling resorted to by persons using methamphetamine, but otherwise found no error.
In March of 2019, Johnston County Sheriff’s Office executed a search warrant on defendant’s home, discovering methamphetamine in small baggies, marijuana, and paraphernalia consistent with selling drugs. Defendant was also noncompliant during the search and arrest, struggling with officers and attempting to flee. At trial, the state admitted certain text messages obtained from defendant’s cellphone, ranging from October 2018 to February 2019, as evidence of prior bad acts; defendant objected under Rule of Evidence 404(b) but the trial court denied his motion.
For issue (1), the Court of Appeals first found Rule 404(b) did not bar admission of the texts, as “knowledge was at issue during trial, [and] the challenged evidence is relevant as it corroborated the [s]tate’s contention that the substance defendant possessed was indeed marijuana and not legal hemp.” Slip Op. at 9. The court then determined under Rule 403 that the trial court performed a sufficient analysis of the evidence and did not commit an abuse of discretion when admitting the texts.
Under issue (2), the court found error with one of defendant’s convictions, maintaining a dwelling resorted to by persons using methamphetamine under G.S. 90-108(a)(7), as the state did not offer sufficient evidence to show any other person actually used defendant’s residence for consuming methamphetamine. The court noted that “the [s]tate failed to establish that anyone outside of defendant, used defendant’s home to consume controlled substances . . . [d]efendant cannot ‘resort’ to his own residence.” Id. at 18. The court rejected defendant’s arguments with respect to his other controlled substance convictions, and arrested judgment instead of remanding the matter as defendant’s convictions were consolidated and he received the lowest possible sentence in the mitigated range.
The evidence was sufficient to sustain the defendant’s conviction for possession of methamphetamine. After the police discovered a white crystalline substance in a vehicle, they arrested the defendant who had been sitting in the driver’s seat of the car. While being transported to a detention center the defendant admitted to a detective that she had “a baggie of meth hidden in her bra.” Upon arrival at the detention center, an officer found a bag of “crystal-like” substance in the defendant’s bra. At trial an officer testified without objection to the defendant’s statement regarding the methamphetamine in her bra. Additionally, the actual substance retrieved from her bra was admitted as exhibit. However, the State did not present any other evidence regarding the chemical composition of substance. On appeal, the defendant argued that the State failed to present evidence of the chemical nature of the substance in question. Under Ward, some form of scientifically valid chemical analysis is required unless the State establishes that another method of identification is sufficient to establish the identity of a controlled substance beyond a reasonable doubt. Citing the state Supreme Court’s opinions in Nabors and Ortiz-Zape, the court held that the defendant’s admission constitutes sufficient evidence that the substance was a controlled substance.
In this Mecklenburg County case, defendant appealed his convictions for breaking and entering, larceny, and attaining habitual breaking and entering offender status, arguing error in (1) the trial court’s comments about the existence of defendant’s previous convictions during the habitual offender phase, (2) admission of expert testimony without the necessary foundation, and (3) the felony class of habitual breaking and entering on the written judgment. The Court of Appeals found no prejudicial error.
In 2018, defendant was indicted for breaking and entering and larceny after DNA and fingerprint evidence linked defendant to a break-in at a Charlotte residence. The trial proceeded first on the charges related to the break in, then after the jury convicted defendant of the initial charges, proceeded to habitual breaking and entering offender status. During this second phase, the trial court told the jury “[the state] will present evidence relating to previous convictions of breaking and/or entering at this time.” Slip Op. at 5. The jury convicted defendant of habitual offender status, and defendant subsequently appealed.
Reviewing issue (1), the Court of Appeals disagreed with defendant’s characterization of the trial court’s remarks, explaining that “the trial court did not offer to the jury the court’s opinion as to whether [d]efendant did in fact have previous convictions . . . [r]ather, the trial court notified the jury and the parties of its plan for the outset of the second phase of trial.” Id. at 12.
Turning to issue (2), the court noted that defendant did not object at trial to the testimony, meaning the review was under a plain error standard. The court examined the testimony of two experts under Rule of Evidence 702, finding that the fingerprint expert testimony “[did] not clearly indicate that [state’s expert] used the comparison process he described in his earlier testimony when he compared [d]efendant’s ink print card to the latent fingerprints recovered at the crime scene.” Id. at 28. However, the court found no prejudicial error in admitting the testimony, as properly admitted DNA evidence also tied defendant to the crime.
Finally, the court reviewed (3), defendant’s argument that the trial court incorrectly recorded his habitual breaking and entering offense as a Class E felony. The court disagreed, explaining that the form filled out by the trial court identifies the breaking and entering charge as a Class H felony (with punishment Class E), and the habitual breaking and entering offender charge as a Class E felony. Based on relevant precedent, defendant’s habitual offender status represented a status offense enhancing the punishment for the underlying substantive offense. The court concluded that the “trial court’s identification of habitual breaking and entering as a Class E status offense, as compared to a Class E substantive offense, was not error.” Id. at 37.
Evidence > Opinions > Lay Opinions > Drug Cases > Marijuana
In this Beaufort County case, defendant appealed his possession of marijuana and marijuana paraphernalia convictions, arguing the trial court erred by admitting hearsay testimony and denying his motion to dismiss for insufficient evidence. The Court of Appeals found harmless error in admitting the hearsay testimony and sufficient evidence to support the convictions.
Between February and March of 2019, the Beaufort County Sheriff’s Office used a confidential informant to conduct drug buys at a car wash owned by defendant’s father. Using audio and video transmitters, the officers heard and observed defendant discuss the price of drugs and handing drugs over for sale. Defendant was subsequently convicted based on the testimony of one of the officers who arranged the buys and observed the transmitters during the buys from defendant. This officer testified that he had known defendant since he was a little boy and would recognize his voice in a recording.
Defendant argued that the testimony of the officer was hearsay, as he read directly from the search warrant and affidavit; the court disagreed, noting that the officer offered extensive testimony from personal memory, and evidence in the record supported the conclusions outside of the hearsay statements. Additionally, the court noted defendant had ample opportunity for cross-examination on the substance of the officer’s testimony, meaning even if the portions of testimony that were hearsay were admitted erroneously, they did not rise to the level of prejudicial under the plain error standard. Slip Op. at 6-7, citing State v. Ridgeway, 137 N.C. App. 144 (2000). The court likewise held that admitting the search warrant and affidavit was harmless error, as the officer was present on the stand for cross-examination about the contents of the search warrant. Id. at 9-10, citing State v. Jackson, 24 N.C. App. 394 (1975).
The basis of defendant’s motion to dismiss was the State did not admit sufficient evidence to establish that the product seized was marijuana instead of hemp. The court noted extensive evidence in the record regarding (1) defendant referring to the substance for sale as “marijuana” and (2) the officer’s testimony about the substance and the paraphernalia present that supported the conclusion that defendant was selling marijuana. Id. at 13-14. Based on this evidence the court found no error with the denial of defendant’s motion.
In this Cleveland County case, defendant appealed his convictions for trafficking methamphetamine, arguing that his motion to dismiss should have been granted as he was not physically present when his travel companion was found in possession of the contraband. The Court of Appeals affirmed the denial of defendant’s motion to dismiss.
In February of 2020, an associate of defendant was arrested for possession of drugs and chose to assist police with their investigation of defendant in return for leniency. Defendant had asked the associate for assistance in bringing drugs from Georgia to North Carolina, and the police assisted the associate in developing a plan where they would drive together to pick up drugs for sale in North Carolina. The plan would conclude with the pair being pulled over as they re-entered the state. However, as the pair returned from Atlanta with the drugs, they became tired, and defendant called a female friend to assist them with driving from South Carolina to their destination in North Carolina. The female friend arrived with another woman, and the pair split up, leaving defendant’s associate in the car with the contraband and one woman, and defendant in a different car with the other woman. They were both pulled over when they passed into North Carolina, traveling three to five miles apart. At trial, defense counsel moved to dismiss the charges at the close of state’s evidence and again at the close of all evidence, but both motions were denied.
The Court of Appeals first explained that a person may be charged with a crime in North Carolina even if part of the crime occurred elsewhere, as long as at least one of the essential acts forming the crime occurred in North Carolina, and the person “has not been placed in jeopardy for the identical offense in another state.” Slip Op. at 5, quoting G.S. 15A-134. The court then moved to defendant’s arguments that he did not possess or transport the drugs while in North Carolina so he could not be charged with trafficking by possession or trafficking by transportation.
Although defendant did not have actual possession of the drugs in North Carolina, the court noted that the “knowing possession” element of trafficking by possession could also be shown by proving that “the defendant acted in concert with another to commit the crime.” Slip Op. at 6, quoting State v. Reid, 151 N.C. App. 420, 428 (2002). Along with the evidence in the current case showing the defendant acted in concert with his associate, the trafficking charge required showing that defendant was present when the offense occurred. Here, after exploring the applicable case law, the court found that defendant was “constructively present” because, although “parties in the present case were a few miles away from each other, they were not so far away that defendant could not render aid or encouragement [to his associate].” Id. at 11.
Moving to the trafficking by transportation charge, the court noted that “[a]s with trafficking by possession, ‘trafficking by transport can be proved by an acting in concert theory.’” Id. at 13, quoting State v. Ambriz, 880 S.E.2d 449, 459 (N.C. App. 2022). The court explained that “[f]or the same reasons we hold that defendant’s motion to dismiss the trafficking by possession charge was properly denied, we also hold that the motion to dismiss the trafficking by transportation charge was properly denied.” Id.
The defendant, the former District Attorney for Person and Caldwell Counties, was tried for obtaining property by false pretenses, conspiracy to obtain property by false pretenses, aiding and abetting obtaining property by false pretenses, three counts of obstruction of justice, and failure to discharge the duties of his office. The jury acquitted on one count of felony obstruction and the conspiracy count but convicted on the remaining charges (with the exception that the jury returned a verdict of guilty of misdemeanor obstruction on one of the remaining felony obstruction counts). The trial court subsequently arrested judgment on the aiding and abetting obtaining property conviction. The charges stemmed from a scheme whereby the defendant and another elected District Attorney hired each other’s wives to work in each other’s offices. Under this arrangement, both wives were wrongfully paid for working hours that they had not actually worked.
(1) There was insufficient evidence to support the conviction for obtaining property by false pretenses. The State alleged that the defendant acted in concert with the employee who improperly submitted work hours. Acting in concert requires the actual or constructive presence of the defendant at the scene of the crime. “A person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime.” Slip op. at 15 (citation omitted). Although the employee at issue worked for the defendant, she was allowed to work at her husband’s office in another district. The defendant was therefore not physically present when the fraud of reporting unworked hours occurred. The State argued that the defendant was constructively present, pointing out that the fraudulent hours were approved by a supervisor at the defendant’s direction. The court rejected this argument, noting that the approval of hours occurred at a much later time than when the hours were submitted. While “actual distance is not determinative, . . . the accused must be near enough to render assistance if need be and to encourage the actual perpetration of the crime.” Id. at 19 (citation omitted). Here, the defendant was not in the same county as the employee who submitted the fraudulent hours at the time they were submitted. The fact that the employee could have called the defendant for help with the crime at the time was not enough to satisfy the constructive presence element. “To hold the theory of acting in concert would be satisfied merely where ‘remote assistance’ is possible would broadly expand the universe of criminal conduct under this theory.” Id. at 22. Thus, the defendant’s conviction for acting in concert to obtain property by false pretenses was vacated for insufficient evidence [although the trial court was instructed on remand to reinstate the judgment previously arrested for aiding and abetting obtaining property].
(2) There was also insufficient evidence of felony obstruction of justice. That offense requires the State to prove that the defendant actually impeded the administration of justice. The indictment alleged that the defendant made false statements to an SBI investigator concerning the employee. One of the defendant’s statements at issue was “at most misleading, and not false,” as it was a misrepresentation by omission and not affirmatively a false statement as the indictment charged. There was sufficient evidence that another of the defendant’s statements to the investigator was false, but there was no evidence that this statement actually obstructed the course of the investigation. The defendant responded truthfully to some of the investigator’s questions about the employee, which actually facilitated the investigation. The defendant was never directly asked whether the employee was in fact performing work for the defendant. “To support a conviction for obstruction of justice, the State must establish substantial evidence for every element of the crime, including that the act in question ‘obstructed justice[.]’” Id. at 27 (citation omitted). The motion to dismiss for felony obstruction of justice therefore should have been granted, and that conviction was vacated.
(3) The defendant argued that the trial court improperly excluded testimony regarding an email sent by an assistant to the Administrative Office of the Courts at the defendant’s direction. At trial, the defendant argued that the email fell within the business records exception to the prohibition on hearsay, that the email was simply not hearsay, and that the State opened the door to the admission of the email through its questions of the witness. On appeal, the defendant argued that the email should have been admitted because it was a directive to his employee, pointing to cases holding that commands are not hearsay because they are not offered for the truth of the matter (rather, they are offered to show that the command was given). It was not apparent from context that the defendant was arguing for the email’s admission as a command, and the parties and trial court did not address that argument. Since this argument was not made at the trial level, it was not preserved and was waived on appeal.
(4) The trial court did not commit plain error by failing to instruct the jury on the specific misrepresentations for the obtaining property by false pretenses offenses. “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 34 (citation omitted). The defendant argued that the evidence showed alternative false representations that the jury could have improperly relied on in rending its verdict of guilty for the two offenses. Reviewing the evidence, the court rejected this argument. “We hold the trial court did not err, nor plainly err, in failing to give an instruction about the misrepresentation alleged in the indictment.” Id. at 37.
Criminal Offenses > Larceny, Embezzlement & Related Offenses > Larceny > Doctrine of Recent Possession
On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 6 (2018), the Supreme Court determined that the evidence presented at trial supported the defendant’s conviction under the doctrine of recent possession. Pursuant to a tip, a detective discovered stolen property from the victim’s house at another house on nearby Ridge Street. Several days later, another detective saw the defendant across from the Ridge Street house, sitting in a white pickup truck. The truck matched the description of one that had reportedly been used to deliver the previously discovered property to the Ridge Street house, and now contained more items from the victim’s house. After the trial judge denied the defendant’s motion to dismiss for insufficiency of the evidence and instructed the jury on the doctrine of recent possession, the jury found the defendant guilty of felony breaking or entering and felony larceny for the first incident, and guilty of felony larceny for the second incident.
On appeal, the defendant argued that the evidence was insufficient to send the charges to the jury as to both her culpable possession of the items allegedly stolen in the first incident and the recency of her possession of those items. Considering the trial court ruling on a motion to dismiss de novo and with all evidentiary conflicts resolved in favor of the State, the court determined that the defendant’s acknowledgment that she had been in control of the victim’s items found at the Ridge Street house two weeks after the first incident brought her within the doctrine of recent possession. Though she claimed to have been acting at the direction of another man—a co-defendant also charged in connection with the initial offense—“exclusive possession” within the meaning of the doctrine of recent possession can, the court said, include joint possession of co-conspirators or persons acting in concert. As a result, the court concluded that there was substantial evidence of exclusive possession, and that the Court of Appeals majority erred by holding to the contrary and vacating the defendant’s convictions. The court thus reversed the decision of the Court of Appeals and remanded the case for consideration of the defendant’s remaining arguments.
Justice Earls dissented, writing that the evidence to support the defendant’s conviction was insufficient in that the defendant was never found in possession of the items allegedly stolen in the first incident. To the contrary, she only admitted to having the items at the behest of her employer (the co-defendant), and her possession was therefore not that of herself but of her employer.
Criminal Offenses > Larceny, Embezzlement & Related Offenses > Possession of Stolen Goods > Possession
The trial court did not err by denying the defendant’s motion to dismiss charges of possession of stolen goods (a debit card) and possession of marijuana. The State presented substantial evidence establishing constructive possession of both the items. The items were found in close proximity to the defendant and his vehicle. Because of their proximity to the items, the defendant and his accomplices had the ability to exercise control over the contraband. Additionally, an officer spotted the defendant’s car and the suspects about one minute after receiving information from the Sheriff’s department about a robbery related to the charges at issue. The brief period between the robbery and locating the suspects with the stolen card supports an inference that the defendant knew of the robbery and the presence of the card. Based on the totality of the circumstances, there was substantial evidence that the defendant had constructive possession of the items.
The defendant, along with two others, went to the home of an individual to whom they paid cash to provide them with controlled substances. The individual neither obtained the illegal drugs nor returned any of the drug purchase money to the defendant. At the home of the individual, the individual was assaulted, accompanied by a demand for the return of the money. While leaving, the defendant fired a shot into the residence. The defendant was arrested and charged with first-degree burglary, conspiracy to commit robbery with a dangerous weapon, and discharging a weapon into an occupied property. At trial, the defendant moved to dismiss the charges against him for insufficiency of the evidence, and the trial court denied the motion. The defendant was found guilty on all charges.
The Court of Appeals reversed the defendant’s conviction for conspiracy to commit robbery with a dangerous weapon and felonious breaking or entering. The Court of Appeals relied on State v. Spratt, 265 N.C. 524 (1965), and State v. Lawrence, 262 N.C. 162 (1964), in concluding that the defendant could not be guilty of conspiracy to commit robbery with a dangerous weapon because the defendant did not have the requisite felonious intent when attempting to take property from the individual, under a bona fide claim of right to the money which had been given on defendant’s behalf. The Court of Appeals also held that the lack of felonious intent negated the defendant’s ability to be convicted of the offense of felonious breaking or entering, and remanded the matter in order for the trial court to enter judgment against defendant for misdemeanor breaking or entering, which does not require felonious intent.
The Supreme Court held that the case precedent on which the Court of Appeals relied did not apply to the facts at hand. The Court concluded that “neither Spratt, nor Lawrence, nor any other case in this state has heretofore authorized a party to legally engage in ‘self-help’ by virtue of the exercise of a bona fide claim of right or title to property which is the subject of an illegal transaction,” and therefore held that there was no error in the defendant’s convictions of the offense of conspiracy to commit armed robbery with a dangerous weapon and the offense of felonious breaking or entering.
The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial. The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation. The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.
(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.
(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.
In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.
The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial. The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation. The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.
(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.
(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.
In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.
Criminal Offenses > Burglary, Breaking or Entering, and Related Offenses > Burglary > Intent to Commit Felony/Larceny Therein
At approximately 1:00 a.m. on January 1, 2018, the defendant woke Mr. and Mrs. Ridenhour by loudly banging on the front door of their residence. Mr. Ridenhour, thinking a neighbor was at the door, went to the front door and flipped the deadbolt. The defendant violently pushed the front door open, knocking Mr. Ridenhour backwards. The defendant entered the house and began beating Mr. Ridenhour, who shouted for his wife to call the police and grab his pistol. The defendant struck Mr. Ridenhour multiple times, causing him to fall down a flight of stairs and knocking him unconscious. Mrs. Ridenhour entered the hall, pointed a gun at the defendant, and told him to leave. The defendant then left the house, and Mr. Ridenhour regained consciousness and locked the door. The defendant briefly walked in the front yard but returned and began banging on the front door again. Caldwell County Sheriff’s Deputies arrived at the scene and detained the defendant at the front door. The defendant was indicted for first-degree burglary and the lesser included offense of felonious breaking and entering.
During a bench trial, the defendant twice moved to dismiss, arguing that the State had not presented sufficient evidence of his intent to commit an underlying felony when he entered the Ridenhour house, as required for first-degree burglary. The trial court denied both motions. In a subsequent charge conference, the trial court stated it was considering larceny, attempted murder, and a violation of G.S. 14-54(a1) (breaking or entering a building with intent to terrorize or injure an occupant) as potential underlying felonies for the first-degree burglary charge. However, the trial court, as finder of fact, convicted the defendant of first-degree burglary solely on the basis of G.S. 14-54(a1), stating that “the defendant . . . committed first-degree burglary by committing the felony of [G.S. 14-54(a1)] when he broke and entered into the building with the intent to terrorize and injure the occupant, because that’s what happened.” Slip op. at 5.
On appeal, the defendant challenged the sufficiency of the evidence, specifically arguing that G.S. 14-54(a1) cannot be an underlying felony for first-degree burglary because “grammatically and logically, the initial breaking and entering must be distinct from the crime which a burglar subsequently intends to commit therein.” Slip op. at 6. The Court of Appeals agreed with the defendant, reasoning that “for G.S. 14-54(a1) to satisfy the felonious intent element of first-degree burglary, a defendant must (1) break and enter a dwelling (2) with the intent to therein (3) break or enter a building (4) with the intent to terrorize or injure an occupant” Slip op. at 8–9. (emphasis in original). The Court held that sufficient evidence was not presented to support the inference that the defendant broke and entered the Ridenhours’ residence with the intent to subsequently break or enter another building within the residence and therein terrorize the Ridenhours and as a result, the defendant’s motion to dismiss should have been granted. Moreover, the Court explained that in determining that the first-degree burglary charge was only supported by the defendant’s intent to violate G.S. 14-54(a1), the trial court acquitted the defendant of the other potential underlying felonies, including attempted murder, assault inflicting serious bodily injury, and larceny. The Court reversed the defendant’s first-degree burglary conviction and remanded for entry of judgment for misdemeanor breaking or entering, a lesser included offense that does not require proof of intent to commit an underlying felony.
The defendant, along with two others, went to the home of an individual to whom they paid cash to provide them with controlled substances. The individual neither obtained the illegal drugs nor returned any of the drug purchase money to the defendant. At the home of the individual, the individual was assaulted, accompanied by a demand for the return of the money. While leaving, the defendant fired a shot into the residence. The defendant was arrested and charged with first-degree burglary, conspiracy to commit robbery with a dangerous weapon, and discharging a weapon into an occupied property. At trial, the defendant moved to dismiss the charges against him for insufficiency of the evidence, and the trial court denied the motion. The defendant was found guilty on all charges.
The Court of Appeals reversed the defendant’s conviction for conspiracy to commit robbery with a dangerous weapon and felonious breaking or entering. The Court of Appeals relied on State v. Spratt, 265 N.C. 524 (1965), and State v. Lawrence, 262 N.C. 162 (1964), in concluding that the defendant could not be guilty of conspiracy to commit robbery with a dangerous weapon because the defendant did not have the requisite felonious intent when attempting to take property from the individual, under a bona fide claim of right to the money which had been given on defendant’s behalf. The Court of Appeals also held that the lack of felonious intent negated the defendant’s ability to be convicted of the offense of felonious breaking or entering, and remanded the matter in order for the trial court to enter judgment against defendant for misdemeanor breaking or entering, which does not require felonious intent.
The Supreme Court held that the case precedent on which the Court of Appeals relied did not apply to the facts at hand. The Court concluded that “neither Spratt, nor Lawrence, nor any other case in this state has heretofore authorized a party to legally engage in ‘self-help’ by virtue of the exercise of a bona fide claim of right or title to property which is the subject of an illegal transaction,” and therefore held that there was no error in the defendant’s convictions of the offense of conspiracy to commit armed robbery with a dangerous weapon and the offense of felonious breaking or entering.
On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 6 (2018), the Supreme Court determined that the evidence presented at trial supported the defendant’s conviction under the doctrine of recent possession. Pursuant to a tip, a detective discovered stolen property from the victim’s house at another house on nearby Ridge Street. Several days later, another detective saw the defendant across from the Ridge Street house, sitting in a white pickup truck. The truck matched the description of one that had reportedly been used to deliver the previously discovered property to the Ridge Street house, and now contained more items from the victim’s house. After the trial judge denied the defendant’s motion to dismiss for insufficiency of the evidence and instructed the jury on the doctrine of recent possession, the jury found the defendant guilty of felony breaking or entering and felony larceny for the first incident, and guilty of felony larceny for the second incident.
On appeal, the defendant argued that the evidence was insufficient to send the charges to the jury as to both her culpable possession of the items allegedly stolen in the first incident and the recency of her possession of those items. Considering the trial court ruling on a motion to dismiss de novo and with all evidentiary conflicts resolved in favor of the State, the court determined that the defendant’s acknowledgment that she had been in control of the victim’s items found at the Ridge Street house two weeks after the first incident brought her within the doctrine of recent possession. Though she claimed to have been acting at the direction of another man—a co-defendant also charged in connection with the initial offense—“exclusive possession” within the meaning of the doctrine of recent possession can, the court said, include joint possession of co-conspirators or persons acting in concert. As a result, the court concluded that there was substantial evidence of exclusive possession, and that the Court of Appeals majority erred by holding to the contrary and vacating the defendant’s convictions. The court thus reversed the decision of the Court of Appeals and remanded the case for consideration of the defendant’s remaining arguments.
Justice Earls dissented, writing that the evidence to support the defendant’s conviction was insufficient in that the defendant was never found in possession of the items allegedly stolen in the first incident. To the contrary, she only admitted to having the items at the behest of her employer (the co-defendant), and her possession was therefore not that of herself but of her employer.
In this Mecklenburg County case, defendant appealed his convictions for breaking and entering, larceny, and attaining habitual breaking and entering offender status, arguing error in (1) the trial court’s comments about the existence of defendant’s previous convictions during the habitual offender phase, (2) admission of expert testimony without the necessary foundation, and (3) the felony class of habitual breaking and entering on the written judgment. The Court of Appeals found no prejudicial error.
In 2018, defendant was indicted for breaking and entering and larceny after DNA and fingerprint evidence linked defendant to a break-in at a Charlotte residence. The trial proceeded first on the charges related to the break in, then after the jury convicted defendant of the initial charges, proceeded to habitual breaking and entering offender status. During this second phase, the trial court told the jury “[the state] will present evidence relating to previous convictions of breaking and/or entering at this time.” Slip Op. at 5. The jury convicted defendant of habitual offender status, and defendant subsequently appealed.
Reviewing issue (1), the Court of Appeals disagreed with defendant’s characterization of the trial court’s remarks, explaining that “the trial court did not offer to the jury the court’s opinion as to whether [d]efendant did in fact have previous convictions . . . [r]ather, the trial court notified the jury and the parties of its plan for the outset of the second phase of trial.” Id. at 12.
Turning to issue (2), the court noted that defendant did not object at trial to the testimony, meaning the review was under a plain error standard. The court examined the testimony of two experts under Rule of Evidence 702, finding that the fingerprint expert testimony “[did] not clearly indicate that [state’s expert] used the comparison process he described in his earlier testimony when he compared [d]efendant’s ink print card to the latent fingerprints recovered at the crime scene.” Id. at 28. However, the court found no prejudicial error in admitting the testimony, as properly admitted DNA evidence also tied defendant to the crime.
Finally, the court reviewed (3), defendant’s argument that the trial court incorrectly recorded his habitual breaking and entering offense as a Class E felony. The court disagreed, explaining that the form filled out by the trial court identifies the breaking and entering charge as a Class H felony (with punishment Class E), and the habitual breaking and entering offender charge as a Class E felony. Based on relevant precedent, defendant’s habitual offender status represented a status offense enhancing the punishment for the underlying substantive offense. The court concluded that the “trial court’s identification of habitual breaking and entering as a Class E status offense, as compared to a Class E substantive offense, was not error.” Id. at 37.
Criminal Offenses > Burglary, Breaking or Entering, and Related Offenses > Breaking or Entering a Vehicle, Etc.
The defendant was charged with felony breaking or entering a pickup truck that was parked overnight at a business. The trial record did not include any evidence that the truck contained an item of even trivial value, and there was no evidence that anything had been taken from inside. In responding to the defendant’s motion to dismiss at trial, the State did not address the element of “goods, wares, freight, or other thing of value,” nor did the State argue that the evidence presented was sufficient to support that element. The Court of Appeals held there was insufficient evidence that the motor vehicle contained “goods, wares, freight, or other thing of value” and reversed the defendant’s conviction for felony breaking or entering a motor vehicle.
The defendant, during his time as a police sergeant in Georgia, used his patrol car computer to run a license plate search in the law enforcement database in exchange for money. The defendant’s conduct was in violation of his department’s policy, which authorized access to database information only for law enforcement purposes. The federal government charged the defendant with a felony violation of the Computer Fraud and Abuse Act (CFAA) for “exceeding authorized access.” The defendant was convicted in district court, and the Eleventh Circuit affirmed.
The CFAA subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” 18 U. S. C. § 1030(a)(2). The term “exceeds authorized access” is defined to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” § 1030(e)(6).
The Supreme Court, in an opinion authored by Justice Barrett, did not dispute that the phrase “exceeds authorized access” readily encompasses the defendant’s conduct, but concluded that the defendant did not exceed his authorized access as the CFAA defines that phrase. The Court resolved that the phrase “is not entitled so to obtain” plainly refers to information that a person is not entitled to obtain, specifically by using a computer that he is authorized to access. The Court also noted that a broad interpretation of the statute would criminalize a wide array of commonplace computer activity.
The Court held that the “exceeds authorized access” clause covers those who obtain information from particular areas in the computer to which their computer access does not extend, but does not cover those who have improper motives for obtaining information that is otherwise available to them. Because the defendant had authorization to use the system to retrieve license plate information, he did not exceed authorized access within the meaning of the CFAA, even though he obtained the information for an improper purpose.
Justice Thomas, joined by Chief Justice Roberts and Justice Alito, dissented, declining to give the statute any limiting function and choosing to rely on the plain meaning of the phrase.
In this case arising from a high-profile incident where William Joseph Barber was convicted of second-degree trespass for refusing to leave the office area of the General Assembly while leading a protest related to health care policy after being told to leave by security personnel for violating a building rule prohibiting causing disturbances, the Court of Appeals found that the superior court had subject matter jurisdiction to conduct the trial and that the trial was free from error.
The Court of Appeals rejected the defendant’s argument that the superior court lacked jurisdiction to try him for the misdemeanor because the charging document upon which the State proceeded in superior court was a statement of charges rather than an indictment and Defendant had not first been tried in district court. Here, the defendant was indicted by a grand jury following a presentment but the prosecutor served a misdemeanor statement of charges on him on the eve of trial and proceeded on that charging document in superior court. The Court of Appeals noted that the superior court does not have original jurisdiction to try a misdemeanor charged in a statement of charges but went on to explain that because the prosecution in this case was initiated by an indictment, the superior court had subject matter jurisdiction over the misdemeanor. The Court characterized the statement of charges as a permissible amendment to the indictment (because it did not substantially change the nature of the charged offense) rather than a new charging document.
The Court also rejected the defendant’s argument that the trial court erred by disallowing certain evidence that went to his assertion that his prosecution implicated his First Amendment rights to free speech and free assembly. The Court determined that his First Amendment rights were not implicated in the conduct for which he was charged because he was removed from the General Assembly because of the loudness of his speech rather than its content. The Court then determined that even if his First Amendment rights were implicated, they were not violated as a matter of law. The Court held that the interior of the General Assembly “is not an unlimited public forum” and therefore “the government may prohibit loud, boisterous conduct on a content-neutral basis that would affect the ability of members and staff to carry on legislative functions.” It went on to conclude that “Defendant’s First Amendment rights were not violated by the application of the legislative rules that support his conviction” because those “rules serve a significant interest of limiting loud disruptions and [he] has various other channels to make his concerns known and to engage in protests of legislative policies.”
Judge Inman concurred in part and concurred in the result in part by a separate opinion. Judge Inman applied United State v. O’Brien, 391 U.S. 367 (1968) to determine that the building rule at issue was more than an incidental burden on speech and instead was a time, place, and manner restriction subject to intermediate First Amendment scrutiny. Judge Inman also concluded, in contrast to her reading of the view in the majority opinion, that the hallway where the defendant was arrested was a designated public forum. Nevertheless, Judge Inman concurred in the ultimate conclusion that the defendant’s constitutional rights were not violated as the building rule was a reasonable time, place, and manner restriction that survived intermediate scrutiny.
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 809 S.E.2d 358 (2018), the court affirmed holding that a littering indictment was fatally defective. In so ruling the court held that subsection G.S. 14-399(a)(1) of the littering statute sets out an element of the offense, not an affirmative defense. It stated: “We conclude that subdivision (a)(1), which requires that the accused be an unauthorized person depositing refuse on land not designated by the State for such use, is an essential element of the crime of felony littering[.]”
The house leased by the defendant and her mother was destroyed by a fire. The police sergeant who was sent to investigate the fire observed that there was an unusually low number of personal belongings in the home and “not what you would expect in a home that was just lost to a fire.” Slip op. at ¶ 8. The sergeant learned that the defendant had obtained a renter’s insurance policy on her personal property about four months prior to the fire and had filed a claim for items lost in the fire. Several months later, the sergeant learned that the defendant’s mother had rented a nearby storage unit the day before the fire. Upon search of the unit, the sergeant found several personal items belonging to the defendant, many of which matched items listed on the loss inventory form the defendant submitted to her insurance company. Video footage from the storage facility showed the defendant and her mother accessing the storage unit the day before the fire, moving items into the unit, and later moving items out of the unit after the fire. The defendant was charged with and convicted of second degree arson, conspiracy to commit second degree arson, and insurance fraud and was ordered to pay $40,000 in restitution to the homeowner.
(1) On appeal, the defendant argued that the trial court erred in denying her motion to dismiss the arson and conspiracy charges because the State failed to present sufficient evidence that the house in question was inhabited by “another person,” an essential element of those arson charges. The defendant asserted that the only other inhabitant of the house, her mother, was her alleged co-conspirator and thus the house was not the dwelling of “another.” In rejecting this argument, the Court of Appeals noted that the elements of the offense and existing precedent do not provide any exception for co-conspirators and require only that “someone other than the defendant lives there.” Slip op. at ¶ 21.
(2) The defendant argued that the trial court erred in admitting expert witness testimony because the court failed to conduct a proper reliability analysis under Rule 702 of the Rules of Evidence and because the expert’s testimony was based on an unreliable method. The trial court heard extensive voir dire testimony from the expert, including information on his background and methods. The trial court allowed the expert’s testimony that he “did not conclude that the fire had an incendiary or human cause, only that he could not rule out the hypothesis of an incendiary cause based on the information gathered in his investigation.” Slip op. at ¶ 31. The Court of Appeals held that in light of the trial record, the trial court’s stated reasoning, and the court’s express pronouncement that it considered the three reliability factors in Rule 702, the trial court’s ruling was within the court’s sound discretion.
(3) The defendant contended that the trial court failed to specify the particular false statement or misrepresentation alleged in the indictment while delivering instructions to the jury. In rejecting this argument, the Court of Appeals concluded that there was no variance between the allegations in the indictment and the State’s evidence at trial and that the defendant’s statements on record all fell within the scope of the specific misrepresentation alleged in the indictment that her property was destroyed by an accidental fire.
(4) The defendant’s final argument was that the trial court erred in ordering her to pay $40,000 in restitution without a sufficient evidentiary basis of testimony or documentary evidence to support the amount of restitution ordered. The State did not present any testimony or documents to support the requested $40,000 amount except for the restitution worksheet. The State conceded error, and the Court of Appeals vacated and remanded that portion of the defendant’s sentence.
(1) On appeal from a divided panel of the Court of Appeals, ___ N.C. ___, 818 S.E.2d 324 (2018), the court, over a dissent, reversed the Court of Appeals’ conclusion that there was insufficient evidence to send a charge of disorderly conduct, based upon the juvenile’s act of throwing a chair in a school cafeteria, to the jury. The court first addressed the question of whether the juvenile delinquency petition sufficiently alleged a violation of G.S. 14-288.4. Finding that the State followed the “true and safe rule” by substantially employing the terminology of the statute in the petition, the court found it sufficient to confer subject matter jurisdiction to the district court. Though the petition did not specifically cite the subdivision of the statute that the juvenile was alleged to have violated, the court found that the petition’s allegation that the juvenile had thrown a chair toward another student “averred that the juvenile was delinquent for a violation of [G.S. 14-288.4(a)(1)].” Subsection (a)(1) describes a form of disorderly conduct that occurs when a person “engages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or other violence.”
(2) Having found the petition sufficient, the court went on to conclude that evidence that the juvenile threw a chair at his brother across the cafeteria where other students were present, when viewed in the light most favorable to the State, was substantial evidence that the juvenile “engag[ed] in violent conduct” in violation of the statute.
A dissenting judge said that the evidence could “fairly be said to raise a suspicion that [the juvenile] engaged in violent conduct, but no more than a suspicion.” The dissenting judge would have held that the evidence was insufficient to send the charge to the jury.
The defendant was charged with disorderly conduct and resisting a public officer based on events that occurred in the parking lot outside her daughter’s high school. A drug sniffing dog alerted to the defendant’s car, which her daughter had driven to the school. The defendant came to the school to observe the search of her vehicle. She remained close to the officers who were conducting the search, used profanity throughout the encounter, and refused to comply with officers’ requests for her to back up and away. The defendant said to a class of students walking through the parking lot on the way to their weightlifting class, “‘[y]ou-all about to see a black woman – an unarmed black woman get shot.’” Slip op. at 3.
While officers were searching the car, the defendant walked out of an officer’s view for about three seconds. She then refused to stand precisely where she was instructed to stand, telling officers, “you can keep an eye on me from right here.” Slip op. at 4. One of the officers asked her, “‘are you refusing to come back here?’” Id. The defendant said, “’I’m not breaking no law.’” Id. The officer then arrested her. The defendant asked what she was being arrested for and told the officers she had broken no law.
At the close of the evidence in her trial for disorderly conduct and resisting an officer, the defendant moved to dismiss the charges for insufficient evidence. The trial court denied the motion, and the defendant was convicted. She appealed.
(1) The Court of Appeals determined that the defendant’s conduct, viewed in the light most favorable to the State, was not disorderly conduct in violation of G.S. 14-288.4(a)(6) as it did not constitute a substantial interference with and disruption and confusion of the operation of the school in its program of instruction and training of its students. Defendant’s behavior did not cause students to be directed around the area of the search — the search alone required that redirection. And the defendant did not disrupt classroom instruction when she spoke to students as they were walking through the parking lot on the way to class. Finally, her use of profanity did not interfere with students by drawing their attention to the commotion; that would have happened anyway given the presence of the police officer and the dog.
The only interference with a school function caused by defendant that the appellate court identified was the class of high school students hearing profanity during their normal walk to class. The Court held that alone did not constitute a substantial interference.
(2) The Court of Appeals held that there was not substantial evidence to show that the defendant resisted, delayed, or obstructed a sheriff’s deputy in discharging his official duties or that she acted willfully and unlawfully. First, the Court noted that merely remonstrating with an officer or criticizing or questioning (in an orderly manner) an officer who is performing his duty does not amount to obstructing or delaying an officer in the performance of his duties. The Court noted that the defendant’s actions and words were not aggressive or suggestive of violence. Instead, she orderly (if loudly) remonstrated by remaining where she could see the officer executing the search. Moreover, the Court concluded that the evidence did not indicate that the defendant stood near her car with a purpose to do so without authority or careless of whether she had the right to stand there. In fact, on the scene, she stated, “‘I’m not breaking no law’” when she was told she needed to return to the deputy and then was arrested. Slip op. at 4. The Court thought it clear that even after the officers asked the defendant to move several times, she believed she had the right to stand and observe the search, so long as the deputy could see her and she was not obstructing the other officer’s search of the vehicle. The Court held that a reasonable mind would not conclude that the evidence supported a finding that the defendant acted purposely and deliberately, indicating a purpose to act whether she had the right or not.
Criminal Offenses > Bombing, Terrorism, and Related Offenses > Manufacture, Possession, Etc. of a Machine Gun, Sawed-Off Shotgun, or Weapon of Mass Destruction
In this impersonating a law enforcement officer and possession of a weapon of mass death and destruction case, the Court of Appeals erred by concluding that “flash bang” grenades did not constitute weapons of mass death and destruction as defined in G.S. 14-288.8(c)(1). The defendant had argued that the intended purpose of a flash bang grenade is “to merely stun, disable or disorient others.” The Supreme Court examined the language of G.S. 14-288(c)(1), which explicitly provides that “[a]ny explosive or incendiary . . . [g]renade” is a weapon of mass death and destruction, and determined that the General Assembly did not intend to differentiate between different types of grenades for purposes of the offense. The Court of Appeals erred by engaging in a fact-intensive examination of the extent to which any particular weapon is capable of causing mass death and destruction, and instead should have simply referred to the “straightforward list of [prohibited] weapons,” which includes any “explosive or incendiary” grenade.
The defendant was convicted at trial of impersonating an officer and possession of a weapon of mass destruction (flashbang grenades) in Onslow County. On appeal, the Court of Appeals determined that flashbang grenades did not qualify as a weapon of mass destruction and vacated that conviction. The N.C. Supreme Court reversed on that point and remanded for the Court of Appeals to consider the defendant’s other arguments. The defendant filed a new brief with the court, arguing the trial court erred by failing to instruct the jury about the exception for lawful possession of weapons of mass destruction. See G.S. § 14-288.8(b)(3). The defendant contended that he presented evidence that he qualified for the exception as a person “under contract with the United States” and it was error to fail to instruct the jury on the exception. While the defendant challenged jury instructions in his original brief to the Court of Appeals, he did not raise this issue. He therefore asked the court to invoke Rule 2 of the Rules of Appellate Procedure to review this argument, and the court granted that request.
At trial, the defendant presented evidence that he was an active-duty U.S. Marine serving as a weapons technician, and that he came into possession of the grenades as part of his duties in that capacity. The State did not contest this evidence at trial, but argued on appeal that the defendant failed to promptly return the weapons to the Marine Corps and that the defendant was “on a detour” (and not acting in his capacity as a solider) at the time of the offense. “Even if the State’s argument is true, this would not overcome Defendant’s properly admitted testimony and his right for the jury to resolve this issue.” Carey Slip op. at 8. The trial court had a duty to instruct the jury on all substantial features of the case, including the defense of lawful possession raised by the defendant’s evidence, and its failure to do so was plain error. The judgment of conviction for possession of a weapon of mass destruction was therefore vacated and the matter remanded for a new trial on that offense.
Judge Young dissented. According to his opinion, the N.C. Supreme Court’s decision remanding the case was limited to “the defendant’s remaining challenges” – those that were raised but not decided in the defendant’s original appeal to the Court of Appeals. The mandate therefore did not include new arguments that had not previously been raised at all, and Judge Young would not have considered the lawful possession argument.
In this Haywood County case, the Supreme Court reversed a unanimous Court of Appeals decision and reinstated defendant’s conviction for possession of a firearm by a felon.
In April of 2018, defendant was pulled over for driving with a permanently revoked license. During the stop, the officer smelled marijuana; defendant admitted that he had smoked marijuana earlier but none was in the vehicle. Based on the smell and defendant’s admission, the officer decided to search the vehicle, eventually discovering two firearms. Defendant was charged in a single indictment with possession of a firearm by a felon, possession of a firearm with an altered or removed serial number, and carrying a concealed weapon. At trial, defendant did not challenge the indictment, and he was ultimately convicted of all three offenses.
On appeal, defendant argued the indictment was fatally flawed, as G.S. 14-415.1(c) requires a separate indictment for possession of a firearm by a felon. The Court of Appeals agreed, vacating defendant’s conviction based on State v. Wilkins, 225 N.C. App. 492 (2013), and holding that the statute unambiguously mandates a separate indictment for the charge.
After granting discretionary review, the Supreme Court disagreed with the Court of Appeals, explaining that “it is well-established that a court should not quash an indictment due to a defect concerning a ‘mere informality’ that does not ‘affect the merits of the case.’” Slip Op. at 6, quoting State v. Brady, 237 N.C. 675 (1953). The court pointed to its decision in State v. Brice, 370 N.C. 244 (2017), which held that failure to obtain a separate indictment required by a habitual offender statute was not a jurisdictional defect and did not render the indictment fatally defective. Applying the same reasoning to the current case, the court explained that “the statute’s separate indictment requirement is not jurisdictional, and failure to comply with the requirement does not render the indictment fatally defective.” Slip Op. at 9. The court explicitly stated that Wilkins was wrongly decided and specifically overruled. Id.
Justice Morgan dissented, and would have upheld the Court of Appeals opinion and the reasoning in Wilkinsfinding that the lack of a separate indictment required by G.S. 14-415.1(c) was a fatal defect. Id. at 11.
In this Guilford County case, defendant appealed his convictions for breaking and entering, larceny, possession of a firearm by a felon, and resisting a public officer, arguing error in (1) denying his request for a jury instruction on voluntary intoxication, and (2) not specifically identifying the firearm during the jury instruction for possession of a firearm by a felon. The Court of Appeals disagreed, finding no error.
In May of 2021, defendant and an accomplice broke into a pharmacy; after police responded, the men fled the pharmacy, and defendant dropped a gun in the parking lot while running from the officers. After searching the vehicle left at the scene, police found two more firearms and other stolen goods. After defendant was indicted, he filed a notice of defense asserting that he was too intoxicated to form the necessary specific intent for the offenses. During the charge conference, the trial court denied defendant’s request for a jury instruction on voluntary intoxication. Defendant was subsequently convicted, and appealed.
Taking up (1), the Court of Appeals noted “[t]o obtain a voluntary intoxication instruction, a defendant ‘must produce substantial evidence which would support a conclusion by the judge that he was so intoxicated that he could not form’ the specific intent to commit the underlying offenses.” Slip Op. at 5, quoting State v. Mash, 323 N.C. 339, 346 (1988). However, the court pointed out that “mere intoxication” was not sufficient, and that evidence had to show the defendant had lost his ability to think and plan due to the overconsumption of intoxicants. Id. Here, although defendant testified to consuming a large amount of cocaine over several days, the court highlighted instances of defendant recalling the events of the pursuit and arrest, as well as his interview at the police station. The court concluded defendant failed to produce evidence sufficient to justify the voluntary intoxication instruction.
Turning to (2), the court noted that plain error was the applicable standard as defendant did not object to the jury instruction on possession of a firearm at trial. While the trial court did not specify which firearm defendant possessed in the instruction, the series of events where defendant fled the pharmacy and dropped a gun in the parking lot allowed for only one specific gun to be relevant. The other two firearms found at the scene were inside the vehicle and could not have been possessed by defendant. As a result, defendant could not demonstrate plain error.
Judge Murphy concurred in the result only as to (1), and concurred as to (2).
In this Brunswick County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in the denial of his motion to dismiss for insufficient evidence. The Court of Appeals found no error.
In June of 2020, deputies with the Brunswick County Sheriff’s Office began observing a vehicle that entered a known drug area. After the vehicle ran a stop sign and went 70 mph in a 55 mph zone, they pulled the vehicle over. Defendant was in the passenger seat when the deputies approached, and they observed marijuana on both the driver and defendant, leading to a search of the vehicle. The search found a bag containing a gun and a smaller crown royal bag containing three identification cards with defendant’s name and picture on them. Defendant admitted to the police he was a felon, and he was arrested for possessing a gun. At trial, defendant moved to dismiss, arguing the evidence had not established the gun was his. The trial court denied the motion and defendant was subsequently convicted.
The Court of Appeals first explained that “possession” for purposes of defendant’s conviction could be actual or constructive; here defendant was not in actual possession, so the caselaw regarding constructive possession in a vehicle applied to defendant’s appeal. To show constructive possession in this situation, the State is required to show “other incriminating circumstances” to allow a finding of constructive possession. Slip Op. at 7. The court noted that two common factors used to satisfy the “incriminating circumstances” inquiry were (1) proximity, and (2) indicia of control. Id. Here, (1) the bag containing the gun was located behind the passenger seat where defendant was sitting, and (2) the gun was touching a crown royal bag containing a wallet with defendant’s identification cards in it. The combination of these two factors supported the finding that defendant constructively possessed the gun.
In this Nash County case, defendant appealed his conviction for possession of a firearm by a felon, arguing insufficient evidence to establish his constructive possession of the firearm. The Court of Appeals agreed, reversing and remanding for resentencing.
In May of 2020, a problem oriented policing team was attempting to prevent retaliatory shootings by locating individuals that may have been involved in the incidents, and defendant was identified as one person possibly involved. Officers located a vehicle with defendant inside and initiated a traffic stop; defendant was in the front passenger seat of the vehicle. After the stop, defendant exited the vehicle and went inside a gas station, where he resisted being frisked, leading to the officers tasing him and detaining him in the police car. Searching the vehicle, the officers found a rifle in the backseat and ammunition between the driver and passenger seats. No DNA or fingerprints were taken from the firearm. At trial, defendant testified that the vehicle was his mothers, and he was not allowed to drive it because he did not have a license. Defendant also called a witness who testified that he was another passenger in the vehicle and the firearm was his. Despite the testimony, defendant was convicted of resisting a public officer and possession of a firearm by a felon, and he appealed the firearm charge.
On appeal, the Court of Appeals first noted that to establish constructive possession, the prosecutor was required to prove that defendant had the “’power and intent to control’ the disposition or use of the firearm.” Slip Op. at 6, quoting State v. Taylor, 203 N.C. App. 448 (2010). Here, the state attempted to show this by first arguing that defendant was the custodian of the vehicle, pointing to State v. Mitchell, 224 N.C. App 171 (2012). The court did not agree with this analysis, examining the relevant caselaw and concluding that “under our existing case law, the driver was also a custodian of the vehicle. As such, the evidence fails to show Defendant was in exclusive possession of the vehicle at the time the rifle was found.” Slip Op. at 9. The court looked for additional incriminating circumstances that could link defendant to constructive possession of the firearm, but found none, concluding “the evidence, without more, is not sufficient to support a finding Defendant, while seated in the front passenger seat and one of four occupants, was in constructive possession of a firearm found in the rear passenger compartment of a vehicle not owned or operated by Defendant.” Id. at 12.
Officers responding to a report of a suspicious vehicle found the defendant and a female passenger parked in a white pickup truck on the side of the road. When an officer asked if there was anything illegal in the vehicle, the defendant replied “you know I like my pot.” The passenger consented to a search of her handbag, which revealed marijuana, and officers began searching the truck. A backpack found in the back of the truck contained marijuana, paraphernalia, and a handgun in an unlocked box. The defendant stated that the drugs were his. The defendant’s sister was called to come get the vehicle, and when she arrived she told the officers that the gun was hers and she had placed it in the backpack without the defendant’s knowledge. The sister also testified to ownership of the gun at a court hearing. The case went to trial before a jury, and the defendant was convicted of possession of a firearm by a felon, possession of marijuana and drug paraphernalia, and attaining habitual felon status.
On appeal, the defendant argued that his motion to dismiss the felon in possession charge should have been granted because there was insufficient evidence that he was in possession of the firearm. The appellate court disagreed and held that the motion to dismiss was properly denied. At trial, the state proceeded on a theory of constructive possession, arguing that the defendant was not in actual possession of the gun but he was aware of its presence and had the power and intent to control its disposition and use. The appellate court agreed that there was sufficient evidence of constructive possession to survive a motion to dismiss in this case: defendant was the owner and driver of the truck; it was his backpack with his belongings inside of it; and he did not express surprise when the gun was found or disclaim ownership of it. “The State presented substantial evidence of constructive possession because Defendant’s power to control the contents of his vehicle is sufficient to present an inference of knowledge and possession of the firearm found therein.”
The court rejected the defendant’s argument that the evidence was insufficient to support an instruction on actual possession of the firearm in question. Actual possession requires that a party have physical or personal custody of the item. The case arose out of a drug transaction between an undercover officer and the defendant and others in a vehicle at a prearranged transaction site. The undercover officer testified that the defendant was fidgeting, looking around, and acting nervous as if he was “the lookout.” Another officer involved in the arrest saw the defendant in the front passenger seat with his hands “low” and not visible. When the officer opened the front passenger door, he saw a weapon between the seat and the passenger side door, where the defendant’s right hand had been. A photograph confirmed the location of a weapon. Although the firearm was not found on the defendant, the evidence was sufficient to show that he had “personal custody” of it and this was sufficient to support an instruction on actual possession.
In this possession of methamphetamine and felon in possession of a firearm case, the trial court did not err by instructing the jury that the defendant’s status as the driver of a stopped vehicle was sufficient to support an inference that he constructively possessed both methamphetamine and a firearm, even though another person was present in the vehicle. The defendant was stopped by officers while driving a beige Chevrolet pickup truck. Law enforcement had received drug complaints about a man named Sanchez. Officers conducted a two-hour surveillance of Sanchez and the defendant as they drove to several hotels in the area. Both Sanchez and the defendant were seen driving the truck during the two hour surveillance. Officers stopped the vehicle. The defendant was in the driver’s seat; Sanchez was in the passenger seat. A K-9 alert lead to a search of the vehicle. Officers found bags and backpacks in the truck bed that Sanchez stated belonged to him. While searching one of the backpacks they found pills and a notebook containing Sanchez’s name. Another backpack contained a compass with .2 g of a crystalline substance (later determined to be methamphetamine), a digital scale and counterweight, and a notebook containing entries in the defendant’s handwriting concerning the defendant’s wife. A revolver was found beneath the passenger seat. A later strip search of the defendant produced 39 pills, 15 of which were later determined to be diazepam. The defendant was indicted for possession of methamphetamine, possession of a firearm by a felon, and other charges. At the charge conference, the State requested an instruction stating that an inference of constructive possession can arise from evidence showing that a defendant was the custodian of a vehicle in which contraband was found. Over the defendant’s objection, the trial court gave the instruction. The defendant was found guilty and appealed.
There was sufficient evidence to convict the defendant of possession of methamphetamine. Because the methamphetamine was found in a backpack in the bed of the truck, the State was required to show constructive possession. As the vehicle’s driver, the defendant’s dominion and control over the truck is sufficient to give rise to an inference of constructive possession. The court rejected the defendant’s argument that his dominion and control over the truck was insufficient because he was not the only occupant of the vehicle. The court went on to conclude that while the defendant’s status as the driver might be sufficient to uphold his conviction for possession of methamphetamine, the State also presented additional incriminating evidence to support an inference of constructive possession. Specifically, the defendant’s frequent stops at hotels and gas stations, indicative of drug transactions; the defendant’s possession of other controlled substances; and that the backpack in which the methamphetamine was found contained the defendant’s personal belongings.
The evidence was also sufficient to show constructive possession of the firearm. As with possession of a controlled substance, the defendant’s dominion and control as the driver of the truck was sufficient to give rise to an inference of constructive possession. The court again rejected the defendant’s argument that his non-exclusive control over the truck required the State to provide additional incriminating evidence. Again, however, even though the defendant’s status as the driver is sufficient to give rise to an inference of possession, the State presented additional incriminating evidence in this case including the defendant’s proximity to the firearm and his behavior consistent with the sale of drugs.
Confronting a question of first impression, the court held that “in narrow and extraordinary circumstances” the common law defense of justification may be an affirmative defense to a charge of possession of a firearm by a felon under G.S. 14-415.1. Noting that justification is an affirmative defense which a defendant carries the burden of proving at trial, the court joined the Court of Appeals in adopting an analysis from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) andheld that a defendant invoking justification as a defense to a violation of G.S. 14-415.1 must show:
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
Having established that justification is a defense to a violation of G.S. 14-415.1, the court examined whether the defendant in this case was entitled to a jury instruction on the defense. Such an instruction is required, the court explained, when each of the four “Deleveaux factors” is supported by evidence taken in the light most favorable to the defendant. The defendant’s evidence suggested that he was under a qualifying threat as it showed that he and two friends, J and Wardell, arrived to his home to find that a group of fifteen people, some of whom were armed, had assembled at the home intending to fight the defendant. As tensions elevated towards violence, the defendant took Wardell’s gun as Wardell seemed unfamiliar with it and, in the defendant’s view, would be unable to use it in their defense. The court concluded that there was evidence of each of the Deleveaux factors under these facts and that the trial court committed prejudicial error by denying the defendant’s request to instruct the jury on the defense.
A dissenting justice, Justice Morgan, “welcom[ed] the establishment of the justification defense” for this criminal offense but did not believe that the evidence in the instant case was sufficient to require the trial judge to give the instruction.
(1) The State and the defendant’s version of events were inconsistent. For purposes of determining the sufficiency of the evidence supporting a jury instruction on justification, the Court of Appeals recounted the defendant’s version of events. The defendant was in David Harrison’s trailer drinking bourbon when Harrison suddenly stood up while only a few feet from the defendant, pulled a pistol out of his pocket, pointed it toward the wall near the defendant, and fired a shot at the wall. Before pulling out the gun, Harrison had not threatened the defendant in any way, nor did he appear angry or upset. As soon as Harrison fired the shot at the wall, the defendant grabbed the pistol from Harrison and left the trailer. The defendant went to look for Karen Tucker, who was dating his father, and who he believed would be sober and safely able to take the gun from him. When the defendant did not find Karen in her trailer, he waited with the gun in his possession, in the presence of Karen’s daughters, until Karen arrived. The defendant then gave Karen the gun.
Law enforcement officers who later arrived on the scene did not find bullet holes inside of Harrison’s trailer but did find a shell casing sitting on a coffee table. The defendant was charged with a number of offenses, including possession of a firearm by a felon. At trial, the defendant requested a jury instruction on the defense of justification. The trial court denied the request, and the jury found the defendant guilty.
On appeal, the defendant argued that the trial court erred by denying his request for a jury instruction on the defense of justification. Using the test outlined in State v. Mercer, 373 N.C. 459, 463 (2020), the Court of Appeals determined that the evidence at trial was insufficient to establish the first factor of the test, which requires “that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury.” The Court concluded that even assuming Harrison’s drunken act of firing his pistol into the wall or ceiling of his house represented an “impending threat of death or serious bodily injury” to the defendant, that threat was gone once the defendant left Harrison’s trailer with the gun, and the defendant did not take advantage of other opportunities, described in the opinion, to dispose of the gun.
(2) The State conceded that the trial court erred in imposing attorneys’ fees without providing the defendant with notice and an opportunity to be heard. At the time of sentencing, the defendant’s court-appointed counsel had not yet calculated the number of hours worked on the case. The trial court explained to the defendant that those would be calculated later and submitted to the court. The court advised the defendant that it would sign what it felt to be a reasonable fee. The court later entered a civil judgment for $2,220 without first informing the defendant of the amount. The Court of Appeals held that the defendant was not provided sufficient opportunity to be heard before entry of that civil judgment. It thus vacated the civil judgment and remanded the matter to the trial court for further proceedings on that issue.
The defendant was indicted for possession of a firearm—specifically, “a New England Firearms Pardner Model 12 Gauge Shotgun”—by a person previously convicted of a felon. The defendant initially told officers, who were investigating a report of a domestic dispute at the defendant’s home, that he had no knowledge about a shotgun, but he later admitted to one of the deputies that he had thrown the shotgun into the woods and told the deputy where he had thrown it. At trial, the defendant testified that he had been involved in an altercation with his stepson but did not remember taking the shotgun from him. He further testified that he did not take possession of “that gun.” The trial judge gave the pattern instruction on possession of a firearm by a person previously convicted of a felony. There were no objections to the instruction, and the jury found the defendant guilty of the possession charge and of having attained habitual felon status. On appeal, the defendant argued that the trial judge committed plain error by failing to instruct the jury on the affirmative defense of justification. The Court of Appeals held that the defendant was not entitled to the instruction.
The Court first recognized that in State v. Mercer, ___ N.C. App. ___, 818 S.E.2d 375 (2018), aff'd ___ N.C. ___, ___ S.E.2d ___ (2020), it had recognized the defense of justification to possession of a firearm by a person previously convicted of a felony. The Court noted that the North Carolina Supreme Court has granted review in Mercer but stated that it would follow Mercer as it applied when the defendant’s case was before the trial court. Assuming a justification defense as explained in Mercer applies in North Carolina, the Court stated first that it isn’t clear that a justification defense is a “substantial and essential feature” of the possession charge, requiring an instruction by the trial judge, because the possession statute does not describe justification or self-defense as an element of the offense. The Court then ruled that the defendant’s own testimony, in which he denied possessing the gun alleged in the indictment, rendered a justification defense unavailable. The Court stated that a defendant is not entitled to a justification instruction where he testifies that he did not commit the criminal act at all. The Court also rejected the defendant’s claim of ineffective assistance of counsel based on counsel’s failure to request a justification instruction, holding that even if counsel had requested such an instruction the trial court should not have granted it.
Defendant was indicted for first-degree murder, possession of a firearm by a felon, two counts of assault with a deadly weapon with intent to kill, robbery with a deadly weapon, two counts of attempted robbery with a deadly weapon, and attaining habitual felon status. At trial, he was convicted solely of possession of firearm by a felon. The charges arose from a murder that occurred during a drug transaction. Three men, Michael Harbin, Carlos James, and Derrick Copeland approached a house in Garland, NC to purchase marijuana. There were three men at the house, Jafa McKoy, a man the three would-be drug purchasers did not know, identified only as “P,” and a third man they likewise did not know. “P” approached the car in which James was sitting holding a revolver. McKoy, accompanied by the other unknown man, shot at Harbin and Copeland who had gotten out of the car. They ran. James’s body was subsequently discovered in the driveway. He had been shot in the back of the head and was dead.
Four days later, Copeland identified defendant’s photograph as a suspect for “P” with 85 to 90 percent confidence. An SBI agent interviewed the defendant two weeks after the murder. He admitted that the men may have seen him at the house, but denied killing anyone or being present when someone was killed. Records from the defendant’s cell phone showed that it was being used in the area of the murder in the hours before James was killed, but defendant’s phone was not in use and no location could be identified during the time of the encounter with Hardin, Copeland, and James. Cell phone records showed defendant as being in the nearby area, but headed toward Clinton, shortly after Hardin and Copeland ran from the house.
At the close of the State’s evidence, the trial court found the State had presented insufficient evidence that defendant possessed the specific intent to kill under a theory of acting in concert and dismissed the counts of assault with a deadly weapon with intent to kill. The trial court denied Defendant’s motion to dismiss the remaining charges. Defendant did not testify or present any evidence at trial. The jury found Defendant guilty of possession of a firearm by a felon and found the defendant not guilty of the remaining charges. Defendant stipulated and pled guilty to attaining habitual felon status. The trial court sentenced the Defendant as a habitual felon, and the defendant appealed. On appeal, the defendant argued that the trial court erred by denying his motion to dismiss the charge of possession of a firearm by a felon.
Even assuming that the State offered no direct evidence that the defendant possessed a firearm on the occasion in question, the court held that the State submitted sufficient circumstantial evidence to support a reasonable inference of the defendant’s guilt. The defendant admitted that he was present at house the morning of the incident and that Copeland, Harbin, and James may have seen him there. Defendant’s cell phone was located near the scene close to the time of the incident. Copeland identified the defendant from a photo array as the armed suspect present at the scene with “85 to 90 percent” confidence. Copeland testified “P” had a “beard, brown skin, [and a] tattoo on the upper cheek,” and estimated he was about 6’2” tall and weighed about 240 pounds. Harbin testified “P” was wearing a hat, had a beard, and “was like a burley dude, like a kind of bigger dude.” The State also presented testimony from Jane Peterson, defendant’s girlfriend at the time of the incident. She described the defendant at the time as having a close-cut beard and a tattoo on his arm and on his face. The court explained that “[a]lthough this evidence may not rule out every hypothesis of Defendant’s innocence, that is not the State’s burden on Defendant’s motion to dismiss.”
In this Chatham County case, the Court of Appeals overturned defendant’s conviction for possession of a firearm at a demonstration, finding that the indictment failed to specify the type of land where the violation took place.
Defendant attended a protest in Hillsborough over the removal of a confederate monument in 2019. During the protest, an officer observed defendant carrying a concealed firearm. Defendant was indicted for violating G.S. 14-277.2, and at trial moved to dismiss the charges, arguing that the misdemeanor statement of charges was fatally defective for not specifying the type of location for the offense, specifically the required location of a private health care facility or a public place under control of the state or local government. Defendant’s motion was denied and she was convicted of the misdemeanor.
Reviewing defendant’s appeal, the court agreed with defendant’s argument that her indictment was defective. Although the state moved to amend the location in the statement of charges, and the superior court granted that motion, the Court of Appeals explained that this did not remedy the defect. The court explained that “if a criminal pleading is originally defective with respect to an essential element . . . amendment of the pleading to include the missing element is impermissible, as doing so would change the nature of the offense.” Slip Op. at 8-9. The court looked to analogous statutes and determined that the specific type of location for the offense was an essential element of G.S. 14-277.2, and that the state had failed to specify the location in either the statement of charges or the police report provided with the statement. Instead, the statement and police report simply listed the street address and described the location as “[h]ighway/[r]oad/[a]lley/[s]treet/[s]idewalk[,]” failing to specify the essential element related to the type of location. Id. at 16-17.
Judge Inman concurred only in the result.
The petitioner appealed the district court’s denial of his concealed weapon permit. The Mecklenburg County Sheriff’s Department denied his application, citing information received from the Veteran’s Affairs (“V.A.”) that indicated the petitioner was disqualified due to substance abuse issues. The petitioner had been diagnosed with post-traumatic stress disorder in 2016 and had experienced some suicidal ideation following the death of his young son (although he never attempted suicide). He also had some history of alcohol abuse and “concern over his drinking behavior,” but had not been treated for substance abuse specifically. The V.A. provided documentation to the petitioner indicating they did not agree with the Sheriff’s justification, and the petitioner provided that communication to the district court in his appeal. At hearing, the district court determined that the petitioner was disqualified under the substance abuse subsection and that he suffered a mental infirmity that prevented him from safely handling a firearm. He appealed, alleging due process violations.
G.S. 14-415.15 requires that the Sheriff notify an application of the reasons for denial of a concealed carry permit and explain the reason for the denial. A “bare bones” denial does not meet the requirement of the statute. Here, the Sheriff’s denial failed to contain sufficient information about the alleged substance abuse to afford the petitioner an opportunity to challenge that conclusion. The petitioner further had no notice whatsoever that his mental health beyond potential substance abuse issues would be considered at the hearing, or that his ability to safely handle a firearm would be at issue. The court rejected the argument that the Sheriff’s denial letter referencing the V.A. records provided notice that any matter within his V.A. records were potentially at issue. Because the denial letter referenced a specific subsection of the statute, the petitioner could not have known that other issues were in play. “Petitioner had no meaningful notice his mental health history would be either at issue or a basis for denial for inability to safely handle a firearm before the trial court.”
The petitioner also argued that the district court’s finding of substance abuse was unsupported by the record. Because no transcript of the hearing was contained in the record on appeal, the court was unable to review the oral evidence at the hearing. Normally it is the burden of the appealing party to establish the record on appeal, but here “the burden shifted to [the Sheriff] to show the alleged violation had no impact on the remainder of the proceedings, because [the Sheriff] violated Duvall’s due process rights. Without a transcript or narrative of what occurred at the hearing, [the Sheriff] cannot meet that burden.” However, the district court was ordered to apply the definition of “addict” from 21 U.S.C. 802 when determining whether the petitioner was disqualified for the permit under the substance abuse subsection. The case was therefore unanimously reversed and remanded for a new hearing. One judge wrote separately to concur in judgment.
The defendant in this case was in possession of five guns and two knives on educational property. After threatening a school bus driver and attempting to shoot the first responding deputy, the defendant was taken into custody after a struggle with additional officers. Following a jury trial, the defendant was convicted of attempted first degree murder, five counts of possessing a gun on educational property, and one count each of possessing a knife on educational property, cruelty to animals, and assault by pointing a gun. On appeal, the defendant argued that it was error to enter judgment on five separate counts of possessing a gun on educational property because the language in G.S. 14-269.2(b) which prohibits possessing “any gun” is ambiguous as to whether it authorizes multiple punishments for the simultaneous possession of more than one firearm. The Court of Appeals unanimously agreed that the language was ambiguous, and therefore under the rule of lenity the statute had to be construed as permitting only a single conviction even if the defendant possessed more than one firearm.
The North Carolina Supreme Court granted the state’s petition for discretionary review and affirmed the ruling from the Court of Appeals. Citing State v. Garris, 191 N.C. App. 276 (2008), a case in which the Court of Appeals addressed similar statutory language prohibiting possession of “any firearm” by a convicted felon and held that only one conviction for the possession of multiple firearms was proper, the higher court agreed that the language was ambiguous in this case because it could be construed as referring to either a single or multiple firearms. Pursuant to State v. Smith, 323 N.C. 439 (1988), another case involving ambiguity as to the number of permissible convictions, when a statute fails to “clearly express the General Assembly’s intent as to the allowable unit of prosecution” the “ambiguity should be resolved in favor of lenity toward the defendant.” The court rejected the state’s arguments in favor of a contrary interpretation that would permit multiple convictions, holding that it “would be an act of pure judicial speculation in guessing which interpretation the legislature actually intended.”
Justice Morgan dissented, joined by Justice Newby. The dissent distinguished the cases cited in the majority opinion by arguing that the legislative intent to permit multiple convictions under this particular statute can be inferred from the unique dangers posed by guns on educational property “and the legislature’s clear intent to protect a vulnerable population from potential school shootings.”
In this Craven County case, the State appealed a Court of Appeals majority opinion holding the indictment charging defendant with going armed to the terror of the public was deficient as it did not allege defendant’s conduct occurred on a public highway. The Supreme Court found no error in the indictment and reversed the Court of Appeals.
Defendant was indicted for waiving a gun around and firing randomly in two parking lots during September of 2019. After defendant was convicted, his counsel filed an Anders brief with the Court of Appeals. After conducting an Anders review of the record, the Court of Appeals applied State v. Staten, 32 N.C. App. 495 (1977), and determined that defendant’s indictment was fatally flawed as it was missing the essential element that defendant committed his acts on a public highway. The State appealed based upon the dissent, which would have held that the allegations were sufficient.
Taking up the appeal, the Supreme Court disagreed that going armed to the terror of the public “includes an element that the criminal conduct occur on a public highway.” Slip Op. at 6-7. Because going armed to the terror of the public is a common law crime, the Court examined the long history of the offense in English law and its adoption in North Carolina. After documenting the lengthy history of the offense, the Court explicitly overturned the Court of Appeals interpretation in Staten, explaining:
[T]he elements of the common law crime of going armed to the terror of the public are that the accused (1) went about armed with an unusual and dangerous weapon, (2) in a public place, (3) for the purpose of terrifying and alarming the peaceful people, and (4) in a manner which would naturally terrify and alarm the peaceful people.
Id. at 14. After dispensing with the “public highway” argument, the Court confirmed that the indictment in question “adequately alleged facts supporting each element of the crime of going armed to the terror of the public.” Id. at 16.
Justice Dietz did not participate in the consideration or decision of the case.
The evidence was sufficient to support convictions for first-and second-degree sexual exploitation of a minor. On appeal the defendant argued that a key photograph introduced at trial did not depict the victim engaged in “sexual activity.” The definition of “sexual activity” for purposes of both offenses includes “[t]he lascivious exhibition of the genitals or pubic area.” This prong of the definition of “sexual activity” was the theory on which the State proceeded. The courts have defined the term “lascivious” as “tending to arouse sexual desire.” A reasonable jury could have found that the photograph meets the definition of “lascivious.” The focal point of the picture is the victim’s naked body. She is standing in her father’s bedroom, a setting generally associated with sexual activity, naked except for her socks. The photograph is clearly intended to elicit a sexual response based on the context in which it was taken, which included the defendant’s repeated attempts to touch the victim sexually. The court went on to reject the defendant’s argument that the photograph does not actually contain an exhibition of the victim’s genitals or pubic area. It noted that her fingers are spread far enough apart such that her pubic area is at least partially visible. Viewing the evidence in the light most favorable to the State, reasonable jurors could have determined that the photograph depicted the victim’s pubic area.
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of disseminating obscene material to a minor. On appeal the defendant argued that there was insufficient evidence that the material was obscene. At trial the victim testified that the defendant showed her movies involving “a guy and a girl” having sex naked. The State introduced a photograph of three pornographic DVDs found in a search of the premises and the victim’s mother testified that the defendant “had so many” pornographic DVDs. According to the victim’s mother, when the allegations came to light, the defendant disposed of some of his pornography collection and put the rest in a shed. The victim’s mother later found that material and gave it to detectives. At trial various titles from the defendant’s pornography collection were read to the jury. This evidence was sufficient to allow a reasonable jury to infer that the material the defendant showed to the victim was of the same nature of that contained in the defendant’s pornography collection and therefore was obscene material under contemporary community standards.
(2) The trial court’s instructions with respect to multiple counts of indecent liberties with a child, first-degree rape of a child, and sex offense in a parental role did not deprive the defendant of his constitutional right to a unanimous jury verdict. The trial court provided a single instruction for each offense, without describing the details of the conduct underlying each charge. It did however instruct the jury that it must consider each count individually and the verdict sheets identified each count by victim and included a brief description of the particular conduct alleged by reference to the location where it occurred. Additionally jurors were instructed that they all must agree to the verdict, that they could not reach a verdict by majority vote, and that they should indicate on the verdict forms when they agreed upon unanimous verdicts as to each charge. Applying the test from State v. Lawrence, 360 N.C. 368 (2006), the court rejected the defendant’s argument that the jury instructions deprived him of his right to a unanimous jury verdict. The court went on to note that “the instant case is not one in which the risk of a non-unanimous verdict would have arisen by virtue of the trial court’s instructions.” The crimes at issue do not list as elements discrete criminal activities in the disjunctive. Instead, the indecent liberties statute simply forbids any immoral, improper indecent liberties with a child under 13 if taken for the purpose of arousing or gratifying sexual desire. The particular act found to be performed is immaterial to the unanimity inquiry. Thus, even if some jurors were to find that the defendant engaged in one kind of sexual misconduct while others found that he engaged in another, the jury as a whole would still have unanimously found the required sexual misconduct. Here, the defendant was charged with five counts of indecent liberties against the victim. The victim testified to at least five incidents that would have constituted indecent liberties; in fact she testified to 7 such incidents. Similarly, the jury convicted the defendant of four counts of statutory rape and the victim testified to at least four specific incidents that constituted statutory rape and occurred in each of the four locations indicated on the verdict sheet. Therefore there was no danger that the rape verdicts were not unanimous.
(3) The trial court did not err by declining to reopen the case after the defendant reconsidered his decision not to testify. After the close of the State’s evidence, the trial court addressed the defendant regarding his decision whether or not to testify. The defendant informed the trial court that he would not testify. The defense did not present any evidence and rested, and the jury was excused. After the charge conference defense counsel informed the trial court that the defendant had reconsidered his decision and now wished to testify. The trial court declined to reopen the case and bring the jury back in order to allow the defendant to testify. The court found no abuse of discretion in the trial court’s decision to decline to reopen the case to allow the defendant to testify.
In this Pitt County case, defendant appealed his conviction for willingly resisting, delaying, or obstructing a public officer; the Court of Appeals found no error by the trial court.
In September of 2019, two officers from the Winterville Police Department responded to a disturbance at a gas station. Defendant was allegedly arguing with another customer about police practices and race relations in the United States. When police arrived, defendant initially refused to provide identification, then produced a card with his name and a quotation from City of Houston v. Hill, 482 U.S. 451 (1987). After an extended exchange regarding the card and defendant’s refusal to produce identification, officers arrested defendant for resisting, delaying, or obstructing a public officer. Later in 2019, defendant appeared at two traffic stops conducted by one of the arresting officers, once telling the officer he was watching him, and the second time driving by while making a hand gesture resembling a gun pointed at the officer. Defendant was subsequently charged for communicating threats, and both charges went to trial, where defendant was convicted of resisting, delaying or obstructing an officer but acquitted of communicating threats.
Defendant first argued that the trial court erred by denying his motion to dismiss the resisting, delaying or obstructing an officer charge. The Court of Appeals reviewed the denial and the evidence in the record to determine if each element of the charge was present. In this case only three elements were at issue, specifically if: (1) the officer was lawfully discharging a duty, (2) the defendant resisted, delayed, or obstructed the officer in discharge of that duty, and (3) the defendant acted willfully and unlawfully. Examining (1), the court walked through the reasonable suspicion the officer formed while approaching defendant, and explained that responding to the disturbance and attempting to identify defendant was well within the officer’s duties. Turning to (2), the court made the distinction between mere criticism of the police and the actions of defendant, who was at that time a reasonable suspect in the disturbance that the officers were investigating, and applied precent that “failure by an individual to provide personal identifying information during a lawful stop constitutes resistance, delay, or obstruction within the meaning of N.C. Gen. Stat. § 14-223.” Slip Op. at ¶31. Finally, considering (3), the court explained that since the stop was lawful and the officers were reasonably investigating defendant as the subject of the disturbance, his actions refusing to provide identification and cooperate were willful and intended to hinder the duty of the officer. Id. at ¶40.
The court then turned to defendant’s argument that the trial court erred by allowing defendant to waive counsel and represent himself in superior court after signing a waiver of counsel in district court. The Court of Appeals explained that G.S. 15A-1242 contains the required colloquy for wavier of counsel and the appropriate procedure for the court to follow. Here defendant executed a waiver during district court proceedings, and the record contains no objection or request to withdraw the waiver. The court explained that “[o]nce the initial waiver of counsel was executed, it was not necessary for successive written waivers to be executed, nor for additional inquiries to be made by the district or superior court pursuant to N.C. Gen. Stat. § 15A-1242.” Id. at ¶49. The waiver created a “rebuttable presumption” and no further inquiries were necessary. Since defendant did not identify any issue or deficiency in the initial waiver, there was no error.
Reviewing defendant’s final argument that the trial court erred by failing to provide a jury instruction on justification or excuse for the offense, the court noted that defendant did not object to the jury instructions even when given opportunity to do so. Defendant also had agreed to the jury instructions as presented to him. This led to the court’s conclusion that “[b]y failing to object at trial and expressly agreeing to the jury instructions as given, [d]efendant waived any right to appeal this issue.” Id. at ¶57.
Judge Inman concurred in the result.
The defendant was charged with disorderly conduct and resisting a public officer based on events that occurred in the parking lot outside her daughter’s high school. A drug sniffing dog alerted to the defendant’s car, which her daughter had driven to the school. The defendant came to the school to observe the search of her vehicle. She remained close to the officers who were conducting the search, used profanity throughout the encounter, and refused to comply with officers’ requests for her to back up and away. The defendant said to a class of students walking through the parking lot on the way to their weightlifting class, “‘[y]ou-all about to see a black woman – an unarmed black woman get shot.’” Slip op. at 3.
While officers were searching the car, the defendant walked out of an officer’s view for about three seconds. She then refused to stand precisely where she was instructed to stand, telling officers, “you can keep an eye on me from right here.” Slip op. at 4. One of the officers asked her, “‘are you refusing to come back here?’” Id. The defendant said, “’I’m not breaking no law.’” Id. The officer then arrested her. The defendant asked what she was being arrested for and told the officers she had broken no law.
At the close of the evidence in her trial for disorderly conduct and resisting an officer, the defendant moved to dismiss the charges for insufficient evidence. The trial court denied the motion, and the defendant was convicted. She appealed.
(1) The Court of Appeals determined that the defendant’s conduct, viewed in the light most favorable to the State, was not disorderly conduct in violation of G.S. 14-288.4(a)(6) as it did not constitute a substantial interference with and disruption and confusion of the operation of the school in its program of instruction and training of its students. Defendant’s behavior did not cause students to be directed around the area of the search — the search alone required that redirection. And the defendant did not disrupt classroom instruction when she spoke to students as they were walking through the parking lot on the way to class. Finally, her use of profanity did not interfere with students by drawing their attention to the commotion; that would have happened anyway given the presence of the police officer and the dog.
The only interference with a school function caused by defendant that the appellate court identified was the class of high school students hearing profanity during their normal walk to class. The Court held that alone did not constitute a substantial interference.
(2) The Court of Appeals held that there was not substantial evidence to show that the defendant resisted, delayed, or obstructed a sheriff’s deputy in discharging his official duties or that she acted willfully and unlawfully. First, the Court noted that merely remonstrating with an officer or criticizing or questioning (in an orderly manner) an officer who is performing his duty does not amount to obstructing or delaying an officer in the performance of his duties. The Court noted that the defendant’s actions and words were not aggressive or suggestive of violence. Instead, she orderly (if loudly) remonstrated by remaining where she could see the officer executing the search. Moreover, the Court concluded that the evidence did not indicate that the defendant stood near her car with a purpose to do so without authority or careless of whether she had the right to stand there. In fact, on the scene, she stated, “‘I’m not breaking no law’” when she was told she needed to return to the deputy and then was arrested. Slip op. at 4. The Court thought it clear that even after the officers asked the defendant to move several times, she believed she had the right to stand and observe the search, so long as the deputy could see her and she was not obstructing the other officer’s search of the vehicle. The Court held that a reasonable mind would not conclude that the evidence supported a finding that the defendant acted purposely and deliberately, indicating a purpose to act whether she had the right or not.
The trial court did not err by denying the defendant’s motion to dismiss a charge of resisting an officer. The defendant argued that the State presented insufficient evidence that the officer was discharging a duty of his office. Here, the officer was discharging a duty falling within the scope of G.S. 20-49 and 20-49.1. Specifically, commanding the defendant to leave the premises of a DMV office and arresting her when she failed to comply with that command. Additionally, under G.S. 15A-401 an officer may arrest without a warrant any person the officer has probable cause to believe has committed a criminal offense in the officer’s presence. When the defendant refused to leave the DMV office, the officer had probable cause to believe that the defendant committed a crime.
The indictment properly charged resisting a public officer. On appeal the defendant argued that the indictment was invalid because it failed to sufficiently allege the officer’s public office. The indictment alleged that the defendant “did resist, delay and obstruct Agent B.L. Wall, a public officer holding the office of North Carolina State Law Enforcement Agent, by refusing commands to leave the premises, assaulting the officer, refusing verbal commands during the course of arrest for trespassing and assault, and continuing to resist arrest.” Count I of the indictment which charged the separate offense of assault on a government officer, identified the officer as “Agent B.L. Wall, a state law enforcement officer employed by the North Carolina Division of Motor Vehicles.” Both counts, taken together, provided the defendant sufficient information to identify the office in question.
The court also rejected the defendant’s argument that the indictment was defective because it failed to fully and clearly articulate a duty that the officer was discharging. After noting the language in Count II, the court noted that Count III, alleging trespass, asserted that the defendant remained on the premises of the specified DMV office “after having been notified not to remain there by a person in charge of the premises.” The court held that “the charges” specifically state the duties the officer was attempting to discharge, namely: commanding the defendant to leave the premises and arresting or attempting to rest her when she failed to comply.
The court went on to hold that the officer was acting within the scope of his duties at the time. It noted that G.S. 20-49.1(a) “contains an expansive grant of power,” vesting DMV inspectors with the same powers vested in law enforcement officers by statute or common law. Thus, the officer was acting under the authority given to him under the statute at the time and was acting within the scope of his duties. The court concluded: “Even though the indictment could have been be more specific, we decline to require that it be hyper-technical.”
There was insufficient evidence to support an adjudication of delinquency resisting a public officer. A school resource officer testified that he saw the juvenile throw a chair in the cafeteria. After throwing the chair, the juvenile ran out of the cafeteria. The officer followed and without calling out to the juvenile, grabbed him from behind. The juvenile initially cursed when the officer caught him and then told the officer that he was playing with his brother. There was insufficient evidence of resisting an officer. The officer testified that he never told the juvenile to stop before he grabbed him. In fact he testified that he “kind of, snuck up on him” and then grabbed him. On these facts the juvenile did not know or have reasonable grounds to believe that the victim was a public officer until after the officer stopped him. There is also no evidence that the juvenile resisted, delayed, or obstructed the officer in discharging or attempting to discharge a duty once he realized that an officer had grabbed him. He did not hit, fight, or physically engage with the officer. While the State focused on the fact that the juvenile yelled “no” and cursed when the officer grabbed him, his language does not rise to the level of resisting an officer, particularly as the statements appear to have been made when he was grabbed and before he knew who was grabbing him. Additionally, saying “no” and cursing does not show that the juvenile acted willfully and unlawfully, without justification or excuse. Most people would have a similar reaction grabbed from behind by an unknown person.
In this Wake County case, the Supreme Court reversed the Court of Appeals decision vacating defendant’s conviction, reinstating the conviction for felony obstruction of justice.
At trial, the State introduced evidence showing that in 2015, defendant was the elected district attorney for Caswell and Person Counties (District 9A), and he employed a woman married to the elected district attorney for Rockingham County (District 17A). Defendant did not assign an adequate workload to the wife of the Rockingham County district attorney, and eventually reports were filed with the SBI that she was attending nursing school during work hours and was not taking leave. An SBI agent interviewed defendant, who told the agent that the woman in question was working on special projects and conflict cases.
Reviewing the case, the Supreme Court found adequate evidence supported the conclusion that defendant’s statements were false, and that “a reasonable jury could conclude that defendant’s false statements . . . obstructed, impeded, and hindered the investigation and public and legal justice.” Slip Op. at 21. Although the question asked by the SBI agent did not clarify if he meant “currently” when asking about projects, the court explained “there was ample evidence from which a reasonable jury could conclude that he asked defendant that question or questions to that effect and defendant knowingly and intentionally answered falsely.” Id. at 20-21. The court noted that the knowing and willful act to respond falsely supported the jury’s verdict, justifying the reinstatement of the conviction.
Justice Earls, joined by Justice Morgan, dissented, would have dismissed the conviction “because the State did not produce substantial evidence of actual obstruction.” Id. at 32.
The defendant in this Wake County case was convicted at trial of accessory after the fact to sexual abuse by a substitute parent, felony obstruction of justice based on her failure to report the abuse, and an additional count of felony obstruction based on her interference with the attempts of investigators to interview her daughter (the victim). A divided Court of Appeals initially found the evidence insufficient to support the accessory after the fact conviction, as well as the felony obstruction based on the denial of access by law enforcement to the victim. A divided North Carolina Supreme Court affirmed as to the accessory conviction, but reversed as to the felony obstruction, finding the evidence sufficient (summarized here). The court remanded the matter to the Court of Appeals for it to consider whether the evidence was sufficient for felony or misdemeanor obstruction—specifically, whether the evidence supported a finding that the defendant acted with “deceit and intent to defraud” in denying investigators access to her daughter. An again-divided Court of Appeals determined the evidence supported felony obstruction (summarized here), and the defendant again appealed.
The record showed that the defendant actively obstructed multiple interviews of her daughter by investigators and affirmatively encouraged the daughter to lie to them. While these obstructive acts alone did not establish the element of deceit, there was evidence in the record tending to show that the defendant knew the allegations were true and acted to protect her husband. This evidence included an early admission to investigators acknowledging probable abuse of her daughter; the defendant’s knowledge of her husband’s practice of giving the victim full-body massages; continued acts of obstruction even after being made aware of inappropriate emails sent by her husband to her daughter; and statements by the defendant to her daughter that the allegations would destroy the family. Additionally, the defendant acted to protect her husband even after observing her husband in the act of abusing the child by destroying the bed sheets and by failing to report the abuse to a detective she met with later the same day. Finally, she also attempted flight and instructed her child to not go with police at the time of her arrest (among other circumstances indicating an intent to deceive). This was “more than sufficient” to show the defendant acted with a deceitful motive, and the Court of Appeals was unanimously affirmed.
In this Wake County case, defendant appealed his convictions for obstruction of justice, arguing (1) obstruction of justice is not a cognizable common law offense in North Carolina; and (2) the indictments were insufficient to allege common law obstruction of justice. The Court of Appeals disagreed with (1), but in (2) found the indictments were fatally defective, vacating defendant’s convictions.
Defendant was a deputy sheriff in Granville County, where he held instructor certifications that allowed him to teach in-service courses and firearms training for law enforcement officers. In October of 2021, defendant was charged for falsely recording that the sheriff and chief deputy had completed mandatory in-service training and firearms qualifications. After a trial, defendant was found guilty of twelve counts of obstruction of justice.
Beginning with (1), the Court of Appeals explained that G.S. 4-1 adopted the existing common law, and “obstruction of justice was historically an offense at common law, and our courts have consistently recognized it as a common law offense.” Slip Op. at 5.
Reaching (2), the court noted “[o]ur courts have defined common law obstruction of justice as ‘any act which prevents, obstructs, impedes or hinders public or legal justice.’” Id. at 8, quoting In re Kivett, 309 N.C. 635, 670 (1983). The court then set about determining what constituted an act under this definition, noting examples such as “false statements made in the course of a criminal investigation” and “obstructing a judicial proceeding.” Id. However, the court pointed out that “the act—even one done intentionally, knowingly, or fraudulently—must nevertheless be one that is done for the purpose of hindering or impeding a judicial or official proceeding or investigation or potential investigation” Id. at 12. That element was missing from the current case, as “there [were] no facts asserted in the indictment to support the assertion Defendant’s actions were done to subvert a potential subsequent investigation or legal proceeding.” Id. at 13. This meant the indictments lacked a necessary element of common law obstruction of justice, and were fatally defective.
Chief Judge Dillon, joined by Judge Stading, concurred by separate opinion and suggested that defendant may have committed another offense from common law such as “misconduct in public office.” Id. at 15.
The defendant, the former District Attorney for Person and Caldwell Counties, was tried for obtaining property by false pretenses, conspiracy to obtain property by false pretenses, aiding and abetting obtaining property by false pretenses, three counts of obstruction of justice, and failure to discharge the duties of his office. The jury acquitted on one count of felony obstruction and the conspiracy count but convicted on the remaining charges (with the exception that the jury returned a verdict of guilty of misdemeanor obstruction on one of the remaining felony obstruction counts). The trial court subsequently arrested judgment on the aiding and abetting obtaining property conviction. The charges stemmed from a scheme whereby the defendant and another elected District Attorney hired each other’s wives to work in each other’s offices. Under this arrangement, both wives were wrongfully paid for working hours that they had not actually worked.
(1) There was insufficient evidence to support the conviction for obtaining property by false pretenses. The State alleged that the defendant acted in concert with the employee who improperly submitted work hours. Acting in concert requires the actual or constructive presence of the defendant at the scene of the crime. “A person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime.” Slip op. at 15 (citation omitted). Although the employee at issue worked for the defendant, she was allowed to work at her husband’s office in another district. The defendant was therefore not physically present when the fraud of reporting unworked hours occurred. The State argued that the defendant was constructively present, pointing out that the fraudulent hours were approved by a supervisor at the defendant’s direction. The court rejected this argument, noting that the approval of hours occurred at a much later time than when the hours were submitted. While “actual distance is not determinative, . . . the accused must be near enough to render assistance if need be and to encourage the actual perpetration of the crime.” Id. at 19 (citation omitted). Here, the defendant was not in the same county as the employee who submitted the fraudulent hours at the time they were submitted. The fact that the employee could have called the defendant for help with the crime at the time was not enough to satisfy the constructive presence element. “To hold the theory of acting in concert would be satisfied merely where ‘remote assistance’ is possible would broadly expand the universe of criminal conduct under this theory.” Id. at 22. Thus, the defendant’s conviction for acting in concert to obtain property by false pretenses was vacated for insufficient evidence [although the trial court was instructed on remand to reinstate the judgment previously arrested for aiding and abetting obtaining property].
(2) There was also insufficient evidence of felony obstruction of justice. That offense requires the State to prove that the defendant actually impeded the administration of justice. The indictment alleged that the defendant made false statements to an SBI investigator concerning the employee. One of the defendant’s statements at issue was “at most misleading, and not false,” as it was a misrepresentation by omission and not affirmatively a false statement as the indictment charged. There was sufficient evidence that another of the defendant’s statements to the investigator was false, but there was no evidence that this statement actually obstructed the course of the investigation. The defendant responded truthfully to some of the investigator’s questions about the employee, which actually facilitated the investigation. The defendant was never directly asked whether the employee was in fact performing work for the defendant. “To support a conviction for obstruction of justice, the State must establish substantial evidence for every element of the crime, including that the act in question ‘obstructed justice[.]’” Id. at 27 (citation omitted). The motion to dismiss for felony obstruction of justice therefore should have been granted, and that conviction was vacated.
(3) The defendant argued that the trial court improperly excluded testimony regarding an email sent by an assistant to the Administrative Office of the Courts at the defendant’s direction. At trial, the defendant argued that the email fell within the business records exception to the prohibition on hearsay, that the email was simply not hearsay, and that the State opened the door to the admission of the email through its questions of the witness. On appeal, the defendant argued that the email should have been admitted because it was a directive to his employee, pointing to cases holding that commands are not hearsay because they are not offered for the truth of the matter (rather, they are offered to show that the command was given). It was not apparent from context that the defendant was arguing for the email’s admission as a command, and the parties and trial court did not address that argument. Since this argument was not made at the trial level, it was not preserved and was waived on appeal.
(4) The trial court did not commit plain error by failing to instruct the jury on the specific misrepresentations for the obtaining property by false pretenses offenses. “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 34 (citation omitted). The defendant argued that the evidence showed alternative false representations that the jury could have improperly relied on in rending its verdict of guilty for the two offenses. Reviewing the evidence, the court rejected this argument. “We hold the trial court did not err, nor plainly err, in failing to give an instruction about the misrepresentation alleged in the indictment.” Id. at 37.
Over a dissent, the court held that there was sufficient evidence in this common law obstruction of justice case that the defendant’s obstructive acts were done “with deceit and intent to defraud” such that under G.S. 14-3(b) the offense was punishable as a felony rather than as a misdemeanor. The defendant was told by another family member that the defendant’s daughter was the victim of sexual abuse by the defendant’s husband, who was the daughter’s adoptive stepfather. The State’s evidence showed that despite believing that abuse had occurred, the defendant engaged in a course of conduct whereby she denied child protective services and sheriff’s department investigators access to her daughter and otherwise frustrated their investigation. The defendant intervened in the investigation by remaining within hearing distance or being present during “almost every interview” investigators conducted with her daughter, not permitting her daughter to answer certain questions and answering for her during one interview, sending text messages to her daughter and physically interrupting another interview, “constantly” influencing her daughter’s statements in interviews by verbally abusing and punishing her, instructing her daughter not to speak with investigators, and directing investigators not to speak with her daughter in private. The defendant also directed her daughter to lie to investigators. The court stated that this conduct regarding investigative interviews which occurred while the defendant believed her daughter had been the victim of abuse was sufficient to allow a reasonable juror to infer that the defendant’s denial of access to her daughter was committed with deceit and intent to defraud. The court went on to hold that subsequent similar obstructive actions occurring after the defendant had actually witnessed her daughter being raped by the defendant’s husband was sufficient circumstantial evidence that the defendant had acted with deceit and intent to defraud when she denied investigators access to her daughter while merely under the belief that she had been sexually abused.
Judge Tyson dissented, expressing the view that evidence showing that the defendant “presented her daughter and allowed access every time upon request” by investigators negated the “deceit and intent to defraud” element of the felony version of the offense. Judge Tyson noted that all of the interactions between investigators and the defendant’s daughter were “voluntary,” in that none of them were supported by a warrant or other court order.
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of felonious obstruction of justice where the defendant gave eight written contradictory statements to law enforcement officers concerning a murder. In his first statements, the defendant denied being at the scene but identified individuals who may have been involved. In his next statements he admitted being present and identified various alternating persons as the killer. At the end of one interview, he was asked if he was telling the truth and he responded “nope.” A SBI agent testified to the significant burden imposed on the investigation because of the defendant’s conflicting statements. He explained that each lead was pursued and that the SBI ultimately determined that each person identified by the defendant had an alibi. (2) No double jeopardy violation occurred when the trial court sentenced the defendant for obstruction of justice and accessory after the fact arising out of the same conduct. Comparing the elements of the offenses, the court noted that each contains an element not in the other and thus no double jeopardy violation occurred.
(1) By enacting G.S. 14-223 (resist, delay, obstruct an officer), the General Assembly did not deprive the State of the ability to prosecute a defendant for common law obstruction of justice, even when the defendant’s conduct could have been charged under G.S. 14-223. (2) In a case in which the defendant, a sheriff’s chief deputy, was alleged to have obstructed justice by interfering with police processing duties in connection with a DWI charge against a third-person, the trial judge did not err by failing to instruct the jury on the lack of legal authority to require the processing with which the defendant allegedly interfered.
The trial court did not err by denying the defendant’s motion to dismiss a charge of felony obstruction of justice. The State argued that the defendant knowingly filed with the State Board of Elections (Board) campaign finance reports with the intent of misleading the Board and the voting public about the sources and uses of his campaign contributions. The defendant was a member of the House of Representatives and a candidate for re-election. He was required to file regular campaign finance disclosure reports with the Board to provide the Board and the public with accurate information about his compliance with campaign finance laws, the sources of his contributions, and the nature of his expenditures. His reports were made under oath or penalty of perjury. The defendant’s sworn false reports deliberately hindered the ability of the Board and the public to investigate and uncover information to which they were entitled by law: whether defendant was complying with campaign finance laws, the sources of his contributions, and the nature of his expenditures. Further, his false reports concealed illegal campaign activity from public exposure and possible investigation. The lack of any pending judicial proceeding or a specific investigation into whether the defendant had violated campaign finance laws was immaterial. The court also rejected the defendant’s argument that the trial court’s jury instructions deviated from the indictment. The defendant argued that the indictment alleged that he obstructed public access to the information but that the jury instructions focused on obstructing the Board’s access to information. The court found this to be a distinction without a difference.
In this Cumberland County case, defendant appealed his convictions for first-degree murder, robbery with a dangerous weapon, and intimidating a witness, arguing error in (1) denying a jury request to review the trial transcript, (2) joining the witness intimidation charge with his other two offenses, and (3) admitting cell phone and geo-tracking data evidence without proper authentication. The Court of Appeals found no error.
In August of 2019, defendant was indicted for murdering the victim while robbing her of marijuana. Prior to trial, defendant and an accomplice were being transported while in custody, and defendant punched the accomplice in the jaw. When asked why he punched the accomplice, defendant said the other man was “trying to testify on me and give me life in prison.” Slip Op. at 2. This led the State to issue a superseding indictment combining the murder and robbery charges with the witness intimidation charge, and the trial court granted a motion to combine the charges over defendant’s objection. While the jury was deliberating, they requested to review transcripts of testimony, a request that the trial court denied. Defendant was subsequently convicted of all three charges, and appealed.
In (1), defendant argued that the trial court did not have the necessary knowledge about what circumstances prompted the jury’s request before denying it. The Court of Appeals disagreed, explaining that defendant supplied no case law to support this argument. Instead, the request was governed by G.S. 15A-1233(a), and the trial court satisfied the statutory requirements by bringing the jury to the courtroom and explaining the reasoning for denying the request.
Moving to (2), defendant argued that the witness intimidation charge “not transactionally related to the robbery or murder charges.” Id. at 6. Again, the court disagreed, applying the four factors from State v. Montford, 137 N.C. App. 495 (2000), and concluding “the charges were transactionally related as the intimidating a witness charge is predicated on Defendant’s beliefs about his robbery and murder trial.” Slip Op. at 8. The court also dispensed with defendant’s argument that the intimidation charge caused the jury to presume his guilt, explaining “the evidence of Defendant’s intimidation of [the witness] would have been admissible in the murder and robbery trial even if the charges had been separately tried.” Id. at 9.
Arriving at (3), the court noted defendant did not object at trial, so the review of admitting the alleged hearsay evidence was under the plain error standard. Due to the ample evidence that defendant was at the scene and fired the weapon that killed the victim, the court concluded it was not plain error to admit the cell phone and geo-tracking evidence.
In this Buncombe County case, defendant appealed his convictions for second-degree forcible sexual offense, intimidating or interfering with a witness, and habitual felon status, arguing (1) the trial court lacked jurisdiction over the interfering with a witness charge, (2) error in denying his motion to dismiss the interfering charge due to insufficient evidence, and (3) error in the jury instruction related to the interfering charge. The Court of Appeals found the trial court did have sufficient jurisdiction and committed no error.
The charges against defendant arose from a 2019 incident where he forced himself upon a woman after a night of drinking and smoking marijuana. While defendant was in the Buncombe County Jail prior to trial, he made a call to the victim using a fake name. When the victim answered, defendant told her “[i]f you’re still in Asheville, I’m gonna try and send you some money,” and “I got $1,000 for ya.” Slip Op. at 4-5. The victim informed law enforcement of the call, leading to the additional charge of intimidating or interfering with a witness. At trial, the victim testified about the phone call and the recording was published to the jury. Defense counsel’s motions to dismiss the charges were denied by the trial court.
The Court of Appeals first explained the basis of defendant’s argument (1), that the trial court lacked jurisdiction because the alleged conduct from the indictment, bribing the witness/victim not to testify, was not criminalized by G.S. 14-226. Defendant argued that bribery was not an act to intimidate the witness under the language of the statute, and that only threatening or menacing a witness represented a violation of the statute. The court rejected this interpretation, explaining that G.S. 14-226 “prohibits intimidation of witnesses or attempts to deter or interfere with their testimony ‘by threats, menaces or in any other manner,’” and that this language “given its plain and ordinary meaning, straightforwardly expands the scope of prohibited conduct beyond ‘threats’ and ‘menaces’ to include any other act that intimidates a witness or attempts to deter or interfere with their testimony.” Id. at 9-10.
The court likewise rejected (2), defendant’s motion to dismiss argument. Here the court explained that direct evidence was not required to prove intent, and that circumstantial evidence was sufficient to support a finding that defendant intended to dissuade the witness from testifying. The court held that “the circumstantial evidence that the State did introduce in this case supports a reasonable inference that [defendant] acted with just that intent given the context in which he made the offer.” Id. at 13.
Taking up (3), defendant’s objections to the jury instructions, the court explained that defendant objected to four elements of the instructions. First, defendant objected that the instruction did not require the jury to find that defendant threatened the witness/victim; the court explained this was precluded by its holding discuss above on bribery in G.S. 14-226. Second, defendant argued that the instruction did not convey the required intent to the jury; the court rejected this argument as the instruction was based on a pattern jury instruction previously held to be consistent with the statute. Third, defendant argued that the structure of the instruction allowed the jury to convict him for simply offering the witness/victim $1,000, which is not illegal conduct; again the court pointed to the context and circumstances around the conduct and bribery to dissuade the testimony.
Defendant’s final argument regarding the jury instruction was that the disjunctive structure of the instruction allowed a jury verdict that was not unanimous, as he asserted that various jury members may have found him guilty under separate parts of the instruction. The court explained that some disjunctive instructions are unconstitutional, particularly where a jury can choose from one of two underlying acts to find a defendant guilty of a crime such as in State v. Lyons, 330 N.C. 298 (1991). Slip Op. at 18. However, the crime of intimidating or interfering with a witness does not consist of a list of specific criminal acts, and the court pointed to the example of State v. Hartness, 326 N.C. 561 (1990), where indecent liberties was identified as a similar statute where any of several disjunctive acts can constitute the elements of the offense for purposes of a jury’s guilty verdict. Slip Op. at 19. As there was no danger of jurors convicting defendant of separate offenses under G.S. 14-226, the court found no issue with the disjunctive nature of the jury instruction in the current case. The court further noted that the evidence and verdict rested solely on the attempt to bribe the witness/victim, and did not provide other possible behaviors that could create ambiguity.
In an interfering with a witness case, the trial court properly instructed the jury that the first element of the offense was that “a person was summoned as a witness in a court of this state. You are instructed that it is immaterial that the victim was regularly summoned or legally bound to attend.” The second sentence properly informed the jury that the victim need only be a “prospective witness” for this element to be satisfied.
Over a dissent, the court extended G.S. 14-226(a) (intimidating witnesses) to apply to a person who was merely a prospective witness. The local DSS filed a juvenile petition against the defendant and obtained custody of his daughter. As part of that case, the defendant was referred to the victim for counseling. The defendant appeared at the victim’s office, upset about a letter she had written to DSS about his treatment. The defendant grabbed the victim’s forearm to stop her and stated, in a loud and aggravated tone, that he needed to speak with her. The defendant asked the victim to write a new letter stating that he did not require the recommended treatment; when the victim declined to do so, the defendant “became very loud.” The victim testified, among other things, that every time she wrote a letter to DSS, she was “opening [her]self up to have to testify” in court. The court found the evidence sufficient to establish that the victim was a prospective witness and thus covered by the statute.
The evidence was insufficient to support a conviction for altering, stealing, or destroying criminal evidence under G.S. 14-221.1. The charges were based on the defendant’s alleged theft of money obtained from the controlled sale of illegal drugs. The money in question was not evidence as defined by the statute: “any article or document in the possession of a law-enforcement officer or officer of the General Court of Justice.”
The defendant in this case was not a licensed bondsman, but over a period of five to six years he paid an employee at the clerk’s office to make entries into a computer record system indicating that the defendant had filed motions to set aside the bond forfeiture in numerous cases, even though no motions had been filed. Since no motions were actually filed or served on the district attorney or board of education, neither agency was on notice to file a response within the statutorily required 20-day period, meaning the bond forfeitures would be set aside automatically. The clerk was eventually fired for his role in the scheme and began cooperating with the State Bureau of Investigation. The defendant was ultimately convicted of aiding and abetting obtaining property by false pretenses, accessing a government computer, and altering court records, as well as unlicensed bail bonding.
On appeal, the defendant argued that the trial court erred in denying his motions to dismiss on the grounds that the state had failed to present sufficient evidence that he (i) aided and abetted the commission of the felony offenses, or (ii) obtained property in excess of $100,000, since at the time the false representations were made the interests of the state and the school board in the bonds to be forfeited were only speculative. The Court of Appeals rejected both arguments, finding that they were not properly preserved at trial. The aiding and abetting argument was never specifically raised in the defendant’s motions, and while the defendant did raise the property argument in his first motion to dismiss, his later motion to dismiss at the close of all the evidence only challenged the dollar value of the property rather than the issue of whether it qualified as a thing of value at all, so the court ruled that the second argument was likewise barred on appeal.
The North Carolina Supreme Court disagreed and held that the defendant properly preserved both arguments for appeal. Distinguishing objections and constitutional challenges which must be specifically argued at trial to be preserved, the arguments challenging the sufficiency of the evidence in this case were properly preserved under Rule 10(a)(3) of the Rules of Appellate Procedure. A motion to dismiss “places an affirmative duty upon the trial court to examine the sufficiency of the evidence against the accused for every element of each crime charged,” so the “simple act of moving to dismiss at the proper time preserved all issues related to the sufficiency of the evidence for appellate review.” The jurisprudence of the Court of Appeals that has attempted to distinguished between general and specific motions to dismiss for sufficiency of the evidence “and to assign different scopes of appellate review to each category, is inconsistent with Rule 10(a)(3).”
Turning to the merits of the defendant’s arguments, the court held that the state presented sufficient evidence to withstand a motion to dismiss on both issues. First, viewed in the light most favorable to the state, the evidence established that the defendant aided and abetted the clerk’s actions by meeting with him and agreeing to the scheme, sending him text messages with instructions and case names, and paying him for entering the fraudulent motions. Second, G.S. 14-100 covers both obtaining and attempting to obtain a thing of value, so the defendant’s efforts to reduce the amount he would have to pay on the forfeited bonds constituted a “thing of value” within the broad scope of the statute.
The evidence was sufficient to support a conviction for unlicensed bail bonding in violation of G.S. 58-71-40. The defendant admitted at trial that he was not licensed as a bondsman in North Carolina. However he asserted that there was insufficient evidence that he acted in the capacity of or performed the functions duties or powers of a bondsman. The evidence introduced at trial established that the relevant agency had interpreted the governing statutes as prohibiting an unlicensed person from, other things, discussing motions and petitions with court staff that relate to a bond forfeiture. Here, the defendant was engaged with a member of court staff in falsifying motions to set-aside bond forfeitures. The court rejected the defendant’s argument that the evidence was insufficient because he was discussing false motions with court staff.
Criminal Offenses > Obstruction of Justice and Related Offenses > Falsifying Bail Bond Report Information
The State presented sufficient evidence the defendant violated G.S. 58-71-165. The case arose out of false information submitted by the defendant in connection with his work as a bail bondsman. On appeal the defendant argued that information was missing from his reports due to clerical errors committed by his staff. The court disagreed, concluding that the State presented substantial evidence to withstand a motion to dismiss this charge. Specifically, false reports, that the defendant signed the attestation clause certifying that he submitted true information, and that the reports were filed via the government system. Whether the omissions were fraud or clerical errors was for the jury to decide.
The plaintiffs sought a declaratory judgment that their sweepstakes video games were lawful and did not violate G.S. 14-306.4 (banning certain video sweepstakes games). For the third time, the North Carolina Supreme Court held that the video games at issue are primarily games of chance in violation of the statute. While the games were modified to award more nominal money prizes and to allow players to “double nudge” game symbols into place to win, these changes did not alter the chance-based character of the games. The question of whether a game falls within the prohibition on games of chance in G.S. 14-306.4 is a mixed question of law and fact and is subject to de novo review where there is no dispute about how the game is played. Applying that standard, the Court unanimously held the modified games remained games of chance. In its words:
After considering plaintiffs’ game when viewed in its entirety, we hold that the results produced by plaintiffs’ equipment in terms of whether the player wins or loses and the relative amount of the player’s winnings or losses varies primarily with the vagaries of chance and not the extent of the player’s skill and dexterity. Gift Surplus Slip op. at 22 (cleaned up).
Because the Court determined the games at issue violated G.S. 14-306.4, it declined to consider whether the games also constituted illegal gambling.
The Court of Appeals majority opinion below held that the games violated the statute regardless of whether or not they were games of chance because the games constituted an “entertaining display” under the statute. This was error, as entertaining displays are not banned under the statute unless the game is one of chance. “Any doubt about whether the statute is only concerned with games of chance is resolved by subsection (i), the statute’s ‘catch-all provision,’ which prohibits sweepstakes through ‘[a]ny other video game not dependent on skill or dexterity.’” Id. at 12. The Court of Appeals was consequently affirmed as modified.
The plaintiff filed a complaint seeking a determination, among other things, that its video gaming enterprise did not constitute an unlawful sweepstakes in violation of G.S. 14-306.4. The trial court granted summary judgment for the defendants. The plaintiff appealed, and the Court of Appeals affirmed the granting of summary judgment with respect to the issue of whether the gaming enterprise violated G.S. 14-306.4 while reversing the trial court’s decision to grant summary judgment in defendants’ favor with respect to the issue of whether the gaming enterprise violated G.S. 14-306.1A. The Supreme Court granted discretionary review.
The plaintiff’s video gaming enterprise consists of two electronic games. The first is the Reward Game, which is a game of chance. Customers use Reward Points from that game to play the Dexterity Test, which involves some skill, as it rewards Dexterity Points based on how closely the customer stops a stopwatch to the designated number. Dexterity Points may be redeemed for cash.
The Supreme Court stated that the relevant test for determining whether the operation of an electronic gaming device violates G.S. 14-306.4(a) is whether the results produced by that equipment in terms of whether the player wins or loses and the relative amount of the player’s winnings or losses varies primarily with the vagaries of chance or the extent of the player’s skill and dexterity. Applying that test, the Supreme Court agreed with the Court of Appeals that the plaintiff’s gaming enterprise violated G.S. 14-306.4. First, given that the number of Reward Points increases the dollar value of the prizes that a player is entitled to win in the course of the Dexterity Test, Reward Points are a “‘[ ]thing . . . of value’” pursuant to G.S. 14-306.4(a)(4). Slip op. at ¶ 24. For that reason, the Court concluded that the Reward Game violates G.S. 14-306.4.
The Court reached the same conclusion when considering the Reward Game and the Dexterity Test in conjunction. Even though the Dexterity Test, viewed in isolation, involves skill or dexterity, a customer’s ability to win more than a minimal amount of money is controlled by the outcome of the Reward Game. A person who is wholly unsuccessful in playing the Reward Game cannot win more than $1.00 regardless of how well he or she performs while playing the Dexterity Test. The Court reasoned that this fact established that the amount of a player’s winnings is primarily dependent upon chance rather than skill or dexterity as required by G.S. 14-306.4. Because chance predominates over the exercise of skill or dexterity in plaintiff’s games, the Court concluded that they are properly classified as a game of chance rather than a game of dexterity or skill.
Thus, the Court held that the plaintiff’s gaming enterprise is an unlawful sweepstakes in violation of G.S. 14-306.4. The court concluded that this determination obviated the need to decide other issues on remand, and accordingly modified and affirmed the decision of the Court of Appeals.
The court reversed Hest Technologies, Inc. v. North Carolina, 219 N.C. App. 308 (Mar. 6, 2012), and held that G.S. 14-306.4 does not violate the First Amendment because it regulates conduct, not protected speech. The court also concluded that even if the statute incidentally burdens speech, it passes muster under the test of United States v. O’Brien and that the statute was not overbroad.
For the reasons stated in Hest, the court reversed Sandhill Amusements v. North Carolina, 219 N.C. App. 362 (Mar. 6, 2012) (G.S. 14-306.4 is unconstitutional).
There was sufficient evidence that the defendants conducted a sweepstakes through the use of an entertaining display, including the entry process or the revealing of a prize in violation of G.S. 14-306.4. The court rejected the defendants’ argument that because the prize was revealed to the patron prior to an opportunity to play a game, they did not run afoul of the statute.
Reversing the trial court’s ruling that federal Indian gaming law prohibits the State from granting the Eastern Band of Cherokee Indians of North Carolina (“the Tribe”) exclusive rights to conduct certain gaming on tribal land while prohibiting such gaming, in G.S. 14-306.1A, throughout the rest of the State. The court held that state law providing the Tribe with exclusive gaming rights does not violate federal Indian gaming law.
Reversing an unpublished opinion below in this drug trafficking case, the supreme court held that the trial court did not err in its jury instructions regarding the defendant’s knowledge. The court noted that “[a] presumption that the defendant has the required guilty knowledge exists” when “the State makes a prima facie showing that the defendant has committed a crime, such as trafficking by possession, trafficking by transportation, or possession with the intent to sell or deliver, that lacks a specific intent element.” However, the court continued: “when the defendant denies having knowledge of the controlled substance that he has been charged with possessing or transporting, the existence of the requisite guilty knowledge becomes ‘a determinative issue of fact’ about which the trial court must instruct the jury.” As a result of these rules, footnote 4 to N.C.P.I. Crim. 260.17 (and parallel footnotes in related instructions) states that, “[i]f the defendant contends that he did not know the true identity of what he possessed,” the italicized language must be added to the jury instructions:
For you to find the defendant guilty of this offense the State must prove two things beyond a reasonable
doubt:
First, that the defendant knowingly possessed cocaine and the defendant knew that what he possessed was cocaine. A person possesses cocaine if he is aware of its presence and has (either by himself or together with others) both the power and intent to control the disposition or use of that substance.
The defendant argued that the trial court erred by failing to add the “footnote four” language to the jury instructions. The supreme court disagreed, reasoning:
In this case, defendant did not either deny knowledge of the contents of the gift bag in which the cocaine was found or admit that he possessed a particular substance while denying any knowledge of the substance’s identity. Instead, defendant simply denied having had any knowledge that the van that he was driving contained either the gift bag or cocaine. As a result, since defendant did not “contend[ ] that he did not know the true identity of what he possessed,” the prerequisite for giving the instruction in question simply did not exist in this case. As a result, the trial court did not err by failing to deliver the additional instruction contained in footnote four . . . in this case. (citation omitted).
The court went on to distinguish the case before it from State v. Coleman, 227 N.C. App. 354 (2013).
In a case involving trafficking and possession with intent charges, the evidence was insufficient to establish that the defendant Villalvavo knowingly possessed the controlled substance. The drugs were found in secret compartments of a truck. The defendant was driving the vehicle, which was owned by a passenger, Velazquez-Perez, who hired Villalvavo to drive the truck. The court found insufficient incriminating circumstances to support a conclusion that Villalvavo acted knowingly with respect to the drugs; while evidence regarding the truck’s log books may have been incriminating as to Velazquez-Perez, it did not apply to Villalvavo, who had not been working for Velazquez-Perez long and had no stake in the company or control over Velazquez-Perez. The court was unconvinced that Villalvavo’s nervousness during the stop constituted adequate incriminating circumstances.
In a case in which the defendant was convicted of possession of heroin and trafficking in opium or heroin by transportation, the trial court did not err by denying the defendant’s request for an instruction about knowing possession or transportation. The court concluded that the requested instruction was not required because the defendant did not present any evidence that he was confused or mistaken about the nature of the illegal drug his accomplice was carrying.
In a heroin trafficking case where the defendant argued that he did not know that the item he possessed was heroin, the trial court committed plain error by denying the defendant’s request for a jury instruction that the State must prove that the defendant knew that he possessed heroin (footnote 4 of the relevant trafficking instructions). The court noted that knowledge that one possesses contraband is presumed by the act of possession unless the defendant denies knowledge of possession and contests knowledge as disputed fact. It went on to reject the State’s argument that the defendant was not entitled to the instruction because he did not testify or present any evidence to raise the issue of knowledge as a disputed fact. The court noted that its case in chief the State presented evidence that the defendant told a detective that he did not know the container in his vehicle contained heroin; this constituted a contention by the defendant that he did not know the true identity of what he possessed, the critical issue in the case.
The trial court did not err by declining to give the defendant’s proposed jury instruction on the element that the defendant acted “knowingly.” The instructions given by the trial court adequately contained the substance of the defendant’s proposed instruction. Specifically, it instructed the jury that in order to possess or sell cocaine, the defendant must have been aware of its presence and have had the power and intent to control its distribution or use. These instructions effectively inform the jury that the defendant must have had knowledge of the substance and the crime being committed, and he must have intentionally and voluntarily participated in the crime.
On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 821 S.E.2d 268 (2018), the Supreme Court concluded that the Court of Appeals misapplied State v. Ward, 356 N.C. 133 (2010), when it held that the absence of a scientifically valid chemical analysis meant that the State had not established beyond a reasonable doubt that the seized substance was heroin, and that the trial court therefore erred when it denied the defendant’s motion to dismiss for insufficiency of the evidence. Ward, the Supreme Court clarified, was a case about the admissibility of evidence under Rule of Evidence 702, not sufficiency. In this case, the defendant did not object to officers’ trial testimony that they found the defendant with syringes, spoons, and a rock substance that officers visually identified and twice field tested as heroin. An officer also testified without objection that when the defendant regained consciousness, she confirmed that she had ingested heroin. The Supreme Court concluded that the Court of Appeals erred by applying Ward’s high bar for the admissibility of evidence relating to the identity of a controlled substance to a motion to dismiss for insufficiency of the evidence. The court emphasized that
[F]or purposes of examining the sufficiency of the evidence to support a criminal conviction, it simply does not matter whether some or all of the evidence contained in the record should not have been admitted; instead, when evaluating the sufficiency of the evidence, all of the evidence, regardless of its admissibility, must be considered in determining the validity of the conviction in question.
The court also disapproved of language in State v. Llamas-Hernandez, 363 N.C. 8 (2009), which had suggested that expert testimony is required to establish the identity of a controlled substance in the context of a motion to dismiss.
Applying the appropriate standard of review, and assuming without deciding that some of the evidence might have been excluded if the defendant had objected to its admission, the court determined that there was ample evidence showing that the substance the defendant allegedly possessed was heroin. The court therefore reversed the Court of Appeals and remanded the case for consideration of the defendant’s remaining arguments.
Justice Earls wrote a concurring opinion questioning whether the Good Samaritan law in G.S. 90-96.2, which came into effect in 2013, placed a limit on the trial court’s jurisdiction to prosecute the defendant in this case.
In this Henderson County case, defendant appealed his convictions for trafficking in methamphetamine by possession and trafficking in opium by possession, arguing error in (1) denying his motion to dismiss the opium charge; (2) instructing the jury that opioids were included in the definition of “opium or opiate” at the time of the offense; and (3) considering evidence of improper factors at sentencing. The Court of Appeals majority disagreed, finding no error.
In November of 2018, the Henderson County Sheriff's Office executed a search warrant at defendant’s residence, and relevant to the current appeal, discovered a bottle of white pills later determined to be hydrocodone. At the trial, defendant moved to dismiss all charges, and the trial court denied defendant’s motion. During jury instructions, the trial court explained “that opioids were included in the definition of ‘opium or opiate’ under [G.S.] 90-95(h)(4)” over defendant’s objection. Slip Op. at 2. At the sentencing hearing after defendant’s conviction, the State mentioned that defendant rejected a plea deal and conducted additional drug activity at his home. Defendant subsequently appealed.
Looking to (1), the Court of Appeals disagreed with defendant’s argument that hydrocodone was not a prohibited substance under G.S. 90-95(h)(4) at the time of the alleged offense. In State v. Garrett, 277 N.C. App. 493 (2021), the court held that opioids “qualify as an opiate within the meaning of the statute.” Slip Op. at 5, quoting Garrett at 497-98. The court explained that the same language from the 2016 statute interpreted in Garrett applied in to the 2017 version considered in the current case, and substantial evidence showed defendant possessed the opioid, supporting denial of his motion. This conclusion also addressed (2), as the court explained it was not error to provide a jury instruction that “opium or opiates” included “opioids” for purposes of the statute. Id. at 10.
In (3), the court found no evidence of improper sentencing, explaining “[a]lthough the State mentioned Defendant’s failure to accept a plea offer, there is no evidence in the record that the trial court specifically commented on or considered the refusal.” Id. at 12.
Judge Murphy dissented by separate opinion, and would have held that the court was not bound by the opinion in Garrett because the General Assembly subsequently defined “opioids” in the 2017 version of G.S. 90-87(18a). Id. at 14.
In this Cabarrus County case, defendant appealed his death by distribution conviction, arguing error in (1) denial of his motion to dismiss, and (2) improperly admitting Rule of Evidence 404(b) evidence. The Court of Appeals found no error.
In March of 2020, defendant sold drugs, purportedly heroin and cocaine, to two women. After taking the drugs, one of the women died, and toxicology determined she had both cocaine and fentanyl in her bloodstream. The level of metabolites for both cocaine and fentanyl were determined to be in the fatal range. When defendant came to trial on charges of death by distribution, the trial court allowed the surviving woman to testify about defendant’s prior sales of drugs to her as Rule 404(b) evidence to show defendant’s “intent, identity, and common scheme or plan.” Slip Op. at 5.
Considering (1) defendant’s motion to dismiss, the Court of Appeals addressed defendant’s arguments in relation to the elements of G.S. 14-18.4(b), the death by distribution statute. The court explained that circumstantial evidence supported the conclusion that defendant sold fentanyl instead of heroin to the victim. The court also noted “[w]hile the evidence does not foreclose the possibility that fentanyl may not have been the sole cause of [the victim’s] death, there is ample evidence to support a conclusion that it was, in fact, fentanyl that killed [the victim].” Id. at 9. Rejecting defendant’s argument that he could not foresee that the victim would consume all the drugs at once, the court found sufficient evidence to submit the question of proximate cause to the jury.
Moving to (2) the Rule 404(b) evidence, the court noted that the trial court engaged in a lengthy analysis of whether to admit the testimony related to previous drug sales. Here, the testimony “demonstrate[d] not only the common plan or scheme of Defendant’s drug sales, but also his intent when transacting with [the woman],” and also served to confirm his identity. Id. at 13. Because the court could not establish a danger of unfair prejudice outweighing the probative value of the testimony, it found no error.
In this Beaufort County case, defendant appealed his possession of marijuana and marijuana paraphernalia convictions, arguing the trial court erred by admitting hearsay testimony and denying his motion to dismiss for insufficient evidence. The Court of Appeals found harmless error in admitting the hearsay testimony and sufficient evidence to support the convictions.
Between February and March of 2019, the Beaufort County Sheriff’s Office used a confidential informant to conduct drug buys at a car wash owned by defendant’s father. Using audio and video transmitters, the officers heard and observed defendant discuss the price of drugs and handing drugs over for sale. Defendant was subsequently convicted based on the testimony of one of the officers who arranged the buys and observed the transmitters during the buys from defendant. This officer testified that he had known defendant since he was a little boy and would recognize his voice in a recording.
Defendant argued that the testimony of the officer was hearsay, as he read directly from the search warrant and affidavit; the court disagreed, noting that the officer offered extensive testimony from personal memory, and evidence in the record supported the conclusions outside of the hearsay statements. Additionally, the court noted defendant had ample opportunity for cross-examination on the substance of the officer’s testimony, meaning even if the portions of testimony that were hearsay were admitted erroneously, they did not rise to the level of prejudicial under the plain error standard. Slip Op. at 6-7, citing State v. Ridgeway, 137 N.C. App. 144 (2000). The court likewise held that admitting the search warrant and affidavit was harmless error, as the officer was present on the stand for cross-examination about the contents of the search warrant. Id. at 9-10, citing State v. Jackson, 24 N.C. App. 394 (1975).
The basis of defendant’s motion to dismiss was the State did not admit sufficient evidence to establish that the product seized was marijuana instead of hemp. The court noted extensive evidence in the record regarding (1) defendant referring to the substance for sale as “marijuana” and (2) the officer’s testimony about the substance and the paraphernalia present that supported the conclusion that defendant was selling marijuana. Id. at 13-14. Based on this evidence the court found no error with the denial of defendant’s motion.
The evidence was sufficient to sustain the defendant’s conviction for possession of methamphetamine. After the police discovered a white crystalline substance in a vehicle, they arrested the defendant who had been sitting in the driver’s seat of the car. While being transported to a detention center the defendant admitted to a detective that she had “a baggie of meth hidden in her bra.” Upon arrival at the detention center, an officer found a bag of “crystal-like” substance in the defendant’s bra. At trial an officer testified without objection to the defendant’s statement regarding the methamphetamine in her bra. Additionally, the actual substance retrieved from her bra was admitted as exhibit. However, the State did not present any other evidence regarding the chemical composition of substance. On appeal, the defendant argued that the State failed to present evidence of the chemical nature of the substance in question. Under Ward, some form of scientifically valid chemical analysis is required unless the State establishes that another method of identification is sufficient to establish the identity of a controlled substance beyond a reasonable doubt. Citing the state Supreme Court’s opinions in Nabors and Ortiz-Zape, the court held that the defendant’s admission constitutes sufficient evidence that the substance was a controlled substance.
In a case involving a charge of possessing a controlled substance on the premises of a local confinement facility, the defendant’s own testimony that he had a “piece of dope . . . in the jail” was sufficient evidence that he possessed a controlled substance on the premises.
The Court per curiam affirmed the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 818 S.E.2d 178 (2018), finding no error in the trial court’s denial of the defendant’s motion to dismiss a felony maintaining a vehicle for keeping or selling controlled substances charge based on insufficient evidence.
The Court of Appeals had held, over a dissent, that the evidence was sufficient to support the defendant’s conviction of maintaining a vehicle for keeping or selling controlled substances. The defendant argued that the State presented insufficient evidence that he kept or maintained the vehicle over a duration of time. The court disagreed. The determination of whether a vehicle is used for keeping or selling drugs depends on the totality of the circumstances and a variety of factors are relevant, including occupancy of the property, possession over time, the presence of large amounts of cash or paraphernalia, and the defendant’s admission to selling controlled substances. Here, the totality of the circumstances supports a reasonable inference that the defendant knowingly kept or maintained the vehicle for the purposes of keeping or selling cocaine. Although the vehicle was registered in his wife’s name, the defendant described it as his truck. He admitted that it was his work vehicle, that no one else used it, and that he built the wooden drawers and compartments located in the back of the vehicle. When searching the vehicle, officers discovered a hidden compartment in the truck bed floor containing 1 kg of cocaine. The cocaine was packaged to evade canine detection. The defendant does not challenge the sufficiency of the evidence supporting his related trafficking convictions arising from the same incident. Additionally, evidence shows that the defendant knowingly participated in a drug transaction in a Walmart parking lot immediately before his arrest and that this was not an isolated incident. Specifically, evidence indicated that if the transaction worked out, further drug sales could occur in the future. The court concluded:
[T]he evidence showed, generally, that defendant exercised regular and continuous control over the truck; that he constructed and knew about the false-bottomed compartment in which one kilogram of cocaine—an amount consistent with trafficking, not personal use— was discovered . . . ; that he was aware that cocaine was hidden in his truck and willingly participated in the transaction in the Walmart parking lot; and that he held himself out as responsible for the ongoing distribution of drugs like those discovered in the truck.
On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 796 S.E.2d 91 (2017), the court reversed, holding that the evidence was sufficient to support a conviction of maintaining a vehicle for the purpose of keeping controlled substances in violation of G.S. 90-108(a)(7). The issues before the court were whether the defendant kept or maintained the vehicle and, if so, whether there was substantial evidence that the vehicle was used for the keeping of controlled substances. Considering the first question, the court found that the word “keep” with respect to “keeping or maintaining” “refers to possessing something for at least a short period of time—or intending to retain possession of something in the future—for a certain use.” Here, officers conducted surveillance for about an hour and a half before searching the vehicle and the defendant’s hotel room. During that surveillance, they saw the defendant arrive at the hotel in the vehicle, stay in his room for a period of time, and then leave the vehicle. The defendant was the only person seen using the car. Additionally, a service receipt bearing the defendant’s name was found inside the vehicle and was dated about 2½ months before the defendant’s arrest. From these facts a reasonable jury could conclude that the defendant had possessed the car for at least 2½ months. This was sufficient evidence that the defendant kept the vehicle.
The court then turned to the second issue: whether there was sufficient evidence that the defendant used the vehicle for the keeping of illegal drugs. The court determined that in this context the word “keeps” refers to storing objects in the vehicle. The court found that here, there was substantial evidence that the defendant was using the vehicle to store crack cocaine, not merely to transport it, noting, among other things, the fact that the drugs were found in a hidden compartment and evidence suggesting that the defendant was involved in selling drugs. The court emphasized however that the statute does not create a separate crime simply because controlled substances are temporarily in a vehicle. It clarified:
In other words, merely possessing or transporting drugs inside a car—because, for instance, they are in an occupant’s pocket or they are being taken from one place to another—is not enough to justify a conviction under the “keeping” element of subsection 90-108(a)(7). Rather, courts must determine whether the defendant was using a car for the keeping of drugs—which, again, means the storing of drugs—and courts must focus their inquiry “on the use, not the contents, of the vehicle.”” (citation omitted)
The court went on to disavow its statement in State v. Mitchell, 336 N.C. 22 (1994), that keeping of drugs means “not just possession, but possession that occurs over a duration of time.” The court concluded that the statute does not require that the drugs be kept for a duration of time. Rather, “the linchpin of the inquiry into whether a defendant was using a vehicle, building, or other place ‘for the keeping . . . of’ drugs is whether the defendant was using that vehicle, building, or other place for the storing of drugs.” The court continued:
So, for instance, when the evidence indicates that a defendant has possessed a car for at least a short period of time, but that he had just begun storing drugs inside his car at the time of his arrest, that defendant has still violated subsection 90-108(a)(7)—even if, arguably, he has not stored the drugs for any appreciable “duration of time.” The critical question is whether a defendant’s car is used to store drugs, not how long the defendant’s car has been used to store drugs for. As a result, we reject any notion that subsection 90-108(a)(7) requires that a car kept or maintained by a defendant be used to store drugs for a certain minimum period of time—or that evidence of drugs must be found in the vehicle, building, or other place on more than one occasion—for a defendant to have violated subsection 90-108(a)(7). But again, merely having drugs in a car (or other place) is not enough to justify a conviction under subsection 90-108(a)(7). The evidence and all reasonable inferences drawn from the evidence must indicate, based “on the totality of the circumstances,” that the drugs are also being stored there. To the extent that Mitchell’s “duration of time” requirement conflicts with the text of subsection 90-108(a)(7), therefore, this aspect of Mitchell is disavowed. (citation omitted)
The Court per curiam affirmed the opinion below, ___ N.C. App. ___, 806 S.E.2d 697 (2017). Over a dissent, the Court of Appeals held that the trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a vehicle for keeping or selling controlled substances. The court disagreed with the defendant’s argument that case law establishes a bright-line rule that one incident of keeping or selling controlled substances always is insufficient to sustain a conviction for maintaining a vehicle. The determination, the court said, is based on the totality of the circumstances. Here, the defendant was in the vehicle at a location known for a high level of illegal drug activity. He was observed by officers unwrapping cigars and rerolling them after manipulating them. Based on the officer’s training and experience, the defendant’s actions were consistent with those used in distributing marijuana. The driver was observed in hand-to-hand exchange of cash with another person. When searched by officers, the driver was discovered to have marijuana and the defendant was no longer in possession of the “cigars.” Additionally, the defendant possessed a trafficking quantity of heroin along with plastic bags, two sets of digital scales, three cell phones, and $155 in cash. Additionally, the defendant’s ex-girlfriend testified that she was concerned about his negative influence on his nephew because she “knew the lifestyle.”
On appeal from an unpublished decision of a divided panel of the Court of Appeals which had found no error with respect to the defendant’s maintaining a vehicle conviction, the court affirmed per curiam. The defendant was convicted for maintaining a vehicle for the purpose of keeping a controlled substance. Before the Court of Appeals, he unsuccessfully argued that the trial court erred by denying his motion to dismiss for insufficiency of the evidence. Specifically, the defendant argued that to prove the “keeping” element of the offense, the State must show that the vehicle was used over time for the illegal activity. The Court of Appeals found the cases cited by the defendant distinguishable, noting that here 29.927 grams of marijuana was found in a plastic bag, tucked in a sock, and placed in a vent inside the vehicle’s engine compartment outside of the passenger area and remnants of marijuana were found throughout the vehicle’s interior. The Court of Appeals noted, in part, that a jury may infer “keeping” from the remnants of the controlled substance found throughout the interior space of the vehicle and a storage space in it for the keeping of controlled substances in the engine compartment.
In this Haywood County case, defendant appealed his convictions for trafficking and conspiracy to traffic methamphetamine and maintaining a vehicle for controlled substances, arguing he did not knowingly possess or traffic methamphetamine. The Court of Appeals disagreed, finding no error.
Based on a tip from a known drug dealer, detectives from the Haywood County Sheriff's Office monitored a hotel room in April of 2021. They observed two individuals leaving, and after a traffic stop with a K-9 unit, found methamphetamine. The officers continued monitoring the hotel room, and observed defendant and another person leave. After stopping defendant, they located marijuana and a large amount of currency in his vehicle, but no further meth. While defendant was in jail, he called an associate and gave her instructions on where to remove a portion of his vehicle to find hidden methamphetamine; law enforcement monitored the calls and intercepted the associate after she had removed the meth from the hiding places. This associate cooperated with the detectives and provided what she obtained from the vehicle, which was a large amount of meth. A search of the car taillight turned up additional meth. Defendant was subsequently convicted on all charges.
The Court of Appeals took up each of defendant’s convictions in turn, beginning with the trafficking by possession charge. Defendant argued that he did not “knowingly possess” the methamphetamine. At trial, the State offered evidence that defendant constructively possessed the meth to show knowing possession. The court explained that to establish constructive possession, the evidence must show defendant’s non-exclusive possession of property where drugs are found, along with “other incriminating evidence ‘connecting the defendant to the drugs.’” Slip Op. at 9, quoting State v. Lakey, 183 N.C. App. 652, 656 (2007). Previous cases established that a “large amount of currency” and conduct showing “knowledge of the presence of a controlled substance” support a finding of constructive possession. Id. Here, evidence showed defendant regularly operated the car where the meth was found, he was driving it when he was arrested and it was impounded, and in the trunk officers found a large amount of currency and digital scales. This evidence combined with the instructions provided in the jailhouse phone call supported the conclusion that defendant had constructive possession of the meth.
The court then turned to the trafficking by transportation charge, and rejected defendant’s argument that he did not knowingly transport the meth. The court noted transportation “requires a ‘substantial movement’ of contraband. . .[e]ven very slight movement may be real or substantial enough.” Id. at 10, quoting State v. McRae, 110 N.C. App. 643, 646 (1993). Here, detectives observed defendant drive the car with the meth from the hotel to a parking lot where he was arrested and the car was impounded. Although the meth was not immediately discovered, “[t]he fact that all the containers were not discovered until days later does not suggest a lack of knowledge given the hidden location of the packages and the Defendant’s knowledge of the location of and extraction method for the packages.” Id. at 11.
Moving to defendant’s argument that the State presented insufficient evidence he kept or maintained a vehicle for controlled substances, the court explained that “[w]hether sufficient evidence was presented of the ‘keeping or maintaining’ element [of G.S. 90-108(a)(7)] depends upon a totality of the circumstances, and no single factor is determinative.” Id. at 12. Here, the court pointed to the evidence initially found inside the car along with defendant’s “knowledge and actions to access and dispose of the methamphetamine” later found inside the car as sufficient to support the conviction. Id. at 13.
Finally, the court noted the evidence showing all the alleged co-conspirators found with meth after leaving the hotel, along with the currency and scales found with defendant, as supportive of the conspiracy to commit trafficking charge.
In this Johnston County case, defendant appealed his controlled substance related convictions arguing error in (1) the admission of prior bad act evidence, and (2) denying his motion to dismiss some of the controlled substances charges. The Court of Appeals vacated and arrested the judgment for maintaining a dwelling resorted to by persons using methamphetamine, but otherwise found no error.
In March of 2019, Johnston County Sheriff’s Office executed a search warrant on defendant’s home, discovering methamphetamine in small baggies, marijuana, and paraphernalia consistent with selling drugs. Defendant was also noncompliant during the search and arrest, struggling with officers and attempting to flee. At trial, the state admitted certain text messages obtained from defendant’s cellphone, ranging from October 2018 to February 2019, as evidence of prior bad acts; defendant objected under Rule of Evidence 404(b) but the trial court denied his motion.
For issue (1), the Court of Appeals first found Rule 404(b) did not bar admission of the texts, as “knowledge was at issue during trial, [and] the challenged evidence is relevant as it corroborated the [s]tate’s contention that the substance defendant possessed was indeed marijuana and not legal hemp.” Slip Op. at 9. The court then determined under Rule 403 that the trial court performed a sufficient analysis of the evidence and did not commit an abuse of discretion when admitting the texts.
Under issue (2), the court found error with one of defendant’s convictions, maintaining a dwelling resorted to by persons using methamphetamine under G.S. 90-108(a)(7), as the state did not offer sufficient evidence to show any other person actually used defendant’s residence for consuming methamphetamine. The court noted that “the [s]tate failed to establish that anyone outside of defendant, used defendant’s home to consume controlled substances . . . [d]efendant cannot ‘resort’ to his own residence.” Id. at 18. The court rejected defendant’s arguments with respect to his other controlled substance convictions, and arrested judgment instead of remanding the matter as defendant’s convictions were consolidated and he received the lowest possible sentence in the mitigated range.
In this keeping or maintaining a vehicle for the keeping or sale of controlled substances case, there was insufficient evidence that the defendant kept or maintained a vehicle or did so for the keeping or selling of controlled substances. Officers had received information from another agency indicating that the defendant was selling drugs. During a traffic stop and weapons frisk following 20-25 minutes of surveillance of the defendant driving, approximately 56 grams of methamphetamine and 7 grams of heroin were discovered on the defendant’s person, and an officer later testified that neither amount was consistent with personal use. The defendant was driving a vehicle registered to his wife and mother-in-law.
Noting that North Carolina courts have defined the words “keep” and “maintain” separately, the court explained that they are similar terms, “often used interchangeably, to establish a singular element of the offense” and that whether a vehicle is “kept or maintained” for the keeping or selling of controlled substances depends on the totality of the circumstances. Finding that the State presented no evidence that the defendant “maintained” the vehicle because there was no evidence that the defendant had title to or owned the vehicle, had a property interest in it, or paid for its purchase or upkeep, the court turned to whether there was sufficient evidence that the defendant “kept” the car within the meaning of G.S. 90-108(a)(7). Reviewing relevant caselaw, which establishes that the “keep or maintain” language of the statute “refers to possessing something at least for a short period of time—or intending to retain possession of something in the future—for a certain use,” the court determined that evidence of the defendant’s possession of the vehicle for approximately 20-25 minutes, standing alone, was insufficient to prove that the defendant “kept” the vehicle.
The court then turned to whether, assuming there had been sufficient evidence of the defendant’s keeping or maintaining the vehicle, the State presented sufficient evidence that the defendant’s purpose in doing so was the “keeping or selling” of controlled substances. Again reviewing relevant caselaw, the court determined that the discovery on the defendant’s person of single bags containing approximately 56 grams of methamphetamine and 7 grams of heroin was insufficient to prove the purpose of keeping or maintaining the vehicle was the keeping or selling of controlled substances. The court noted that the State presented no evidence that cell phones, cash, scales, baggies or other paraphernalia had been discovered in the vehicle. There also was no evidence that the vehicle had been modified to conceal drugs or that drugs had been discovered in the vehicle itself, hidden or otherwise.
Judge Berger dissented and expressed his view that there was sufficient evidence of the offense and that the majority erroneously conflated “keeping” and “maintaining” in its analysis of whether the defendant kept or maintained the vehicle. In Judge Berger’s view there was sufficient evidence that the defendant “kept” the vehicle based on his possession of the vehicle while engaging in drug activity. He also would have found sufficient evidence that the defendant’s purpose in doing so was the keeping or selling of controlled substances based on the defendant’s use of the vehicle to transport drugs, the discovery of a purported drug ledger in the vehicle, and other evidence that the defendant was involved in the sale of drugs.
The defendant’s conviction for maintaining a vehicle for keeping or selling drugs was supported by sufficient evidence.
The determination of whether a vehicle . . . is use for keeping or selling controlled substances will depend on the totality of the circumstances. . .While no factor is dispositive, ‘[t]he focus of the inquiry is on the use, not the contents, of the vehicle. Slip op. at 11 (citations omitted).
Here, the defendant hid a trafficking amount of methamphetamine in a tire-sealant can in his car and possessed paraphernalia. In the light most favorable to the State, this was sufficient evidence from which a jury could infer that the car was kept for purposes of keeping drugs. The defendant’s motion to dismiss this charge for insufficiency of the evidence was therefore properly denied and the convictions unanimously affirmed.
In this maintaining a dwelling case on remand from the state Supreme Court for reconsideration in light of State v. Rogers, __ N.C. __, 817 S.E.2d 150 (2018), the court held that the evidence was insufficient to support the conviction. The State’s evidence showed that the drugs were kept at the defendant’s home on one occasion. Under Rogers, “the State must produce other incriminating evidence of the ‘totality of the circumstances’ and more than just evidence of a single sale of illegal drugs or ‘merely having drugs in a car (or other place)’ to support a conviction under this charge.” Here, the State offered no evidence showing any drugs or paraphernalia, large amounts of cash, weapons or other implements of the drug trade at the defendant’s home. The State offered no evidence of any other drug sales occurring there, beyond the one sale at issue in the case. It stated: “Under ‘the totality of the circumstances,’ ‘merely having drugs in a car [or residence] is not enough to justify a conviction under subsection 90-108(a)(7).’” It concluded, stating that Roger was distinguishable because it involved keeping of drugs in a motor vehicle, where other drugs and incriminating evidence of ongoing drug sales were present.
The evidence was sufficient to sustain a conviction for maintaining a dwelling. Officer recovered from the home a Schedule I controlled substance, marijuana, a glass jar that had the odor of marijuana, Garcia y Vega cigar wraps, a marijuana roach, digital scales, sandwich bags, and a security camera set up in the living room that observed the front yard. The defendant, a convicted felon, had constructive possession of a handgun. And an officer observed traffic at the residence over several days consistent with illegal drug trade and observed a confidential source successfully buy a controlled substance from the residence.
The evidence was insufficient with respect to the maintaining a dwelling charge. There was no evidence that the defendant was the owner or lessee of the residence, there was no evidence that he paid for its utilities or upkeep, there was no evidence that he had been seen in or around the dwelling and there was no evidence that he lived there.
The trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a dwelling. The court first held that the evidence established that the defendant kept or maintained the dwelling where it showed that he resided there. Specifically, the defendant received mail addressed to him at the residence; his probation officer visited him there numerous times to conduct routine home contacts; the defendant’s personal effects were found in the residence, including a pay stub and protective gear from his employment; and the defendant placed a phone call from the Detention Center and informed the other party that officers had “come and searched his house.” Next, the court held that the evidence was sufficient to show that the residence was being used for keeping or selling drugs. In assessing this issue, the court looks at factors including the amount of drugs present and paraphernalia found. Here, a bag containing 39.7 grams of 4-methylethcathinone and methylone was found in a bedroom closet alongside another plastic bag containing “numerous little corner baggies.” A set of digital scales and $460.00 in twenty dollar bills also were found.
The trial court erred by denying the defendant’s motion to dismiss a charge of maintaining a vehicle for use, storage, or sale of a controlled substance. The statute provides two ways to show a violation: first, that the defendant knowingly allowed others to resort to his vehicle to use drugs; and second, that the defendant knowingly used the dwelling for the keeping or selling of drugs. The court reasoned that the defendant could not be convicted under the first prong because of his own use of drugs in his vehicle and that the State presented no evidence as to the second prong. [Author’s note: the court does not explain why the State’s evidence that the defendant’s acquaintance also “got[] high” with the defendant in the defendant’s vehicle was insufficient to prove the first prong.]
There was sufficient evidence to support a conviction of maintaining a dwelling. The defendant argued that there was insufficient evidence that he knew about the drugs found in the home. However, the court held that its conclusion that he constructively possessed the drugs resolved that issue in favor of the State.
The evidence was sufficient to support a conviction for maintaining a vehicle. Drugs were found in a vehicle being transported by a car carrier driven by the defendant. The evidence showed that the defendant kept or maintained the vehicle where the bill of lading showed that the defendant picked it up and maintained possession as the authorized bailee continuously and without variation for two days. Having stopped to rest overnight at least one time during the time period, the defendant retained control and disposition over the vehicle and resumed his planned route with the car carrier.
The trial court did not err by denying the defendant’s motion to dismiss a charge of maintaining a vehicle where the evidence was sufficient to establish that the defendant had possession of cocaine in his mother’s vehicle over a duration of time and/or on more than one occasion.
There was insufficient evidence to establish that the defendant “maintained” the dwelling. Evidence showed only that the defendant had discussed, with the home’s actual tenant, taking over rent payments but never reached an agreement to do so; a car, similar to defendant’s was normally parked at the residence; and the defendant’s shoes and some of his personal papers were found there.
In this trafficking of methamphetamine case, substantial evidence showed that the defendant believed the white substance handed to him during a controlled drug sale was fake, rather than an impure mixture containing methamphetamine, and therefore there was insufficient evidence that the defendant knowingly possessed the methamphetamine. At a controlled drug sale arranged by law enforcement with the help of an informant, the defendant stated his belief that the substance presented to him as methamphetamine was, contrary to his expectations, “re-rock,” a term that was defined by the State’s witnesses to describe “fake” drugs. In fact, the substance was a mixture of 1 gram of methamphetamine and at least 28 grams of a cutting agent. As the defendant and an associate inspected the substance, law enforcement officers entered the room and arrested them. Finding the case to be controlled by State v. Wheeler, 138 N.C. App. 163 (2000), the court explained that when there is no evidence that a person intends to continue a drug transaction because he or she believes the drugs are fake, handling the drugs for the sole purpose of inspection does not constitute possession.
Judge Berger dissented and expressed his view that there was sufficient evidence that the defendant knowingly possessed the methamphetamine because of his previous dealings in methamphetamine with the informant and because the defendant’s use of the term “re-rock” may have been a reference to impure, rather than fake, methamphetamine. Judge Berger also distinguished Wheeler on the grounds that the defendant in this case did not affirmatively reject the methamphetamine mixture.
In a case in which the defendant was convicted of possession of heroin and trafficking in opium or heroin by transportation, the trial court did not err by denying the defendant’s request for an instruction about knowing possession or transportation. The court concluded that the requested instruction was not required because the defendant did not present any evidence that he was confused or mistaken about the nature of the illegal drug his accomplice was carrying.
In a heroin trafficking case where the defendant argued that he did not know that the item he possessed was heroin, the trial court committed plain error by denying the defendant’s request for a jury instruction that the State must prove that the defendant knew that he possessed heroin (footnote 4 of the relevant trafficking instructions). The court noted that knowledge that one possesses contraband is presumed by the act of possession unless the defendant denies knowledge of possession and contests knowledge as disputed fact. It went on to reject the State’s argument that the defendant was not entitled to the instruction because he did not testify or present any evidence to raise the issue of knowledge as a disputed fact. The court noted that its case in chief the State presented evidence that the defendant told a detective that he did not know the container in his vehicle contained heroin; this constituted a contention by the defendant that he did not know the true identity of what he possessed, the critical issue in the case.
In a trafficking by possession case there was sufficient evidence of knowing possession where the defendant was driving the vehicle that contained the cocaine.
The evidence was sufficient to establish that the defendant knowingly possessed and transported the controlled substance. The evidence showed that (1) the packages involved in the controlled delivery leading to the charges at issue were addressed to “Holly Wright;” although a person named Holly Wainwright had lived in the apartment with the defendant, she had moved out; (2) the defendant immediately accepted possession of the packages, dragged them into the apartment, and never mentioned to the delivery person that Wainwright no longer lived there; (3) Wainwright testified that she had not ordered the packages; (4) the defendant told a neighbor that another person (Smallwood) had ordered the packages for her; (5) the defendant did not open the packages, but immediately called Smallwood to tell him that they had arrived; (6) after getting off the phone with Smallwood, the defendant acted like she was in a hurry to leave; and (7) Smallwood came to the apartment within thirty-five minutes of the packages being delivered.
There was sufficient evidence to show that the defendant knowingly possessed marijuana in a case where the defendant was convicted of trafficking in marijuana and conspiracy to traffic by possession. Defendant signed for and collected a UPS package containing 44.1 pounds of marijuana. About a half hour later, the defendant helped load a second UPS package containing 43.8 pounds of marijuana into the back seat of a car. Both boxes were found when police searched the car, driven by the defendant. The defendant had once lived in the same residence as his niece, the person to whom the packages were addressed, and knew that his niece frequently got packages like these. Also, the defendant expected to earn between $50 and $200 for simply taking the package from UPS to his niece. Finally the address on one of the boxes did not exist.
The court reversed a unanimous, unpublished decision of the Court of Appeals and held, in this drug case, that the State presented sufficient evidence of constructive possession of marijuana. While engaged in marijuana eradication operations by helicopter, officers saw marijuana plants growing on a three-acre parcel of land owned by the defendants. When the officers arrived at the home they found the defendant Chekanow leaving the house by vehicle. They directed her back to the home, and she complied. She was the only person at the residence and she consented to a search of the area where the plants were located, the outbuildings, and her home. The officers found 22 marijuana plants growing on a fenced-in, ½ acre portion of the property. The area was bordered by a woven wire fence and contained a chicken coop, chickens and fruit trees. The fence was approximately 4 feet high. The single gate to the area was adjacent to the defendants’ yard. At trial, an officer testified that a trail leading from the house to the plants was visible from the air. The plants themselves were located 60-70 yards beyond the gate; 50-75 yards from the defendant’s home; and 10-20 yards from a mowed and maintained area with a trampoline. The plants and the ground around them were well maintained. An officer testified that the plants appeared to have been started individually in pots and then transferred into the ground. No marijuana or related paraphernalia was found in the home or outbuildings; however officers found pots, shovels, and other gardening equipment. Additionally, they found a “small starter kit,” which an officer testified could be used for starting marijuana plants. The officer further testified that the gardening equipment could have been used for growing marijuana or legitimate purposes, because the defendants grew regular plants on the property. One of the shovels, however, was covered in dirt that was similar to that at the base of the marijuana plants, whereas dirt in the garden was brown. The State’s case relied on the theory of constructive possession. The defendants were found guilty and appealed. The court of appeals found for the defendant, concluding that the evidence was insufficient as to constructive possession. The Supreme Court reversed. It viewed the case as involving a unique application of the constructive possession doctrine. It explained: “The doctrine is typically applied in cases when a defendant does not have actual possession of the contraband, but the contraband is found in a home or in a vehicle associated with the defendant; however, in this case we examine the doctrine as applied to marijuana plants found growing on a remote part of the property defendants owned and occupied.” Reviewing the law, the court noted that unless a person has exclusive possession of the place where drugs are found, the State must show other incriminating circumstances before constructive possession can be inferred. Here, both defendants lived in the home with their son and they allowed another individual regular access to their property to help with maintenance when they were away. The court noted that the case also involves consideration of a more sprawling area of property, including a remote section where the marijuana was growing and to which others could potentially gain access. Against this backdrop, the court stated: “Reiterating that this is an inquiry that considers all the circumstances of the individual case, when there is evidence that others have had access to the premises where the contraband is discovered, whether they are other occupants or invitees, or the nature of the premises is such that imputing exclusive possession would otherwise be unjust, it is appropriate to look to circumstances beyond a defendant’s ownership and occupation of the premises.” It continued: “Considering the circumstances of this case, neither defendant was in sole occupation of the premises on which the contraband was found, defendants allowed another individual regular access to the property, and the nature of the sprawling property on which contraband was found was such that imputing exclusive control of the premises would be unjust.” The court thus turned to an analysis the additional incriminating circumstances present in the case. The court first noted as relevant to the analysis the close proximity of the plants to an area maintained by the defendants, the reasonably close proximity of the defendants’ residence to the plants, and one defendant’s recent access to the area where the plants were growing. Second, the court found multiple indicia of control, including, among other things, the fact that the plants were surrounded by a fence that was not easily surmountable. Third, the court considered evidence of suspicious behavior in conjunction with discovery of the marijuana, including the fact that defendant Chekanow appeared to flee the premises when officers arrived. Finally, the court considered evidence found in the defendants’ possession linking them to the contraband, here the shovel with dirt matching that found at the base of the plants and the “starter kit.” The court held that notwithstanding the defendants’ nonexclusive possession of the location where the contraband was found, there was sufficient evidence of constructive possession.
For the reasons stated in the dissenting opinion below, the court reversed State v. Lindsey, 219 N.C. App. 249 (Mar. 6, 2012). In the opinion below the court of appeals held—over a dissent—that there was insufficient evidence of constructive possession. After the defendant fled from his van, which he had crashed in a Wendy’s parking lot, an officer recovered a hat and a cell phone in the van’s vicinity. No weapons or contraband were found on the defendant or along his flight path. A search of the driver's side seat of the van revealed a "blunt wrapper" and a wallet with $800. Officers discovered a bag containing cocaine and a bag containing marijuana near trash receptacles in the Wendy's parking lot. The officers had no idea how long the bags had been there, and though the Wendy's was closed at the time, the lot was open and had been accessible by the public before the area was secured. Finding the evidence insufficient, the court of appeals noted that the defendant was not at his residence or in a place where he exercised any control; although an officer observed the defendant flee, he did not see the defendant take any actions consistent with disposing of the marijuana and cocaine in two separate locations in the parking lot; there was no physical evidence linking the defendant to the drugs recovered; and no drugs were found on or in the defendant's van. The dissenting court of appeals judge would have found the evidence sufficient to establish constructive possession of the marijuana.
Affirming an unpublished opinion below, the court held that the trial court properly denied the defendant’s motion to dismiss charges of trafficking by possession and possession of a firearm by a felon. The State presented sufficient evidence to support the jury’s determination that the defendant constructively possessed drugs and a rifle found in a bedroom that was not under the defendant’s exclusive control. Among other things, photographs, a Father’s Day card, a cable bill, a cable installation receipt, and a pay stub were found in the bedroom and all linked the defendant to the contraband. Some of the evidence placed the defendant in the bedroom within two days of when the contraband was found.
For the reasons stated in the dissenting opinion below, the court reversed a decision by the court of appeals in State v. Slaughter, 212 N.C. App. 59 (May 17, 2011). The court of appeals had held, over a dissent, that there was sufficient evidence of constructive possession of marijuana. The dissenting judge had noted that the evidence showed only that the defendant and two others were detained by a tactical team and placed on the floor of a 10-by-15 foot bedroom in the back of the mobile home, which had a pervasive odor of marijuana; inside the bedroom, police found, in plain view, numerous bags containing marijuana, approximately $38,000 in cash, several firearms, a grinder, and a digital scale; stacks of $20 and $100 bills, plastic sandwich baggies, and marijuana residue were found in the bathroom adjoining the bedroom. The dissenter noted that there was no evidence of the defendant's proximity to the contraband prior to being placed on the floor, after being placed on the floor, or relative to the other detained individuals. Having concluded that the evidence was insufficient as to proximity, the dissenting judge argued that mere presence in a room where contraband is located does not itself support an inference of constructive possession. The dissenting judge further concluded that the fact that the contraband was in plain view did not “take this case out of the realm of conjecture.” He asserted: “The contraband being in plain view suggests that defendant knew of its presence, but there is no evidence — and the majority points to none — indicating that defendant had the intent and capability to maintain control and dominion over it.” (quotation omitted).
There was sufficient evidence that the defendant constructively possessed cocaine. Two factors frequently considered in analyzing constructive possession are the defendant’s proximity to the drugs and indicia of the defendant’s control over the place where the drugs are found. The court found the following evidence sufficient to support constructive possession: Officers found the defendant in a bedroom of a home where two of his children lived with their mother. When first seen, the defendant was sitting on the same end of the bed where the cocaine was recovered. Once the defendant slid to the floor, he was within reach of the package of cocaine recovered from the floor behind the bedroom door. The defendant’s birth certificate and state-issued identification card were found on top of a television stand in that bedroom. The only other person in the room was not near any of the cocaine. Even though the defendant did not exclusively possess the premises, these incriminating circumstances permitted a reasonable inference that the defendant had the intent and capability to exercise control and dominion over cocaine in that room.
In this Haywood County case, defendant appealed his convictions for trafficking and conspiracy to traffic methamphetamine and maintaining a vehicle for controlled substances, arguing he did not knowingly possess or traffic methamphetamine. The Court of Appeals disagreed, finding no error.
Based on a tip from a known drug dealer, detectives from the Haywood County Sheriff's Office monitored a hotel room in April of 2021. They observed two individuals leaving, and after a traffic stop with a K-9 unit, found methamphetamine. The officers continued monitoring the hotel room, and observed defendant and another person leave. After stopping defendant, they located marijuana and a large amount of currency in his vehicle, but no further meth. While defendant was in jail, he called an associate and gave her instructions on where to remove a portion of his vehicle to find hidden methamphetamine; law enforcement monitored the calls and intercepted the associate after she had removed the meth from the hiding places. This associate cooperated with the detectives and provided what she obtained from the vehicle, which was a large amount of meth. A search of the car taillight turned up additional meth. Defendant was subsequently convicted on all charges.
The Court of Appeals took up each of defendant’s convictions in turn, beginning with the trafficking by possession charge. Defendant argued that he did not “knowingly possess” the methamphetamine. At trial, the State offered evidence that defendant constructively possessed the meth to show knowing possession. The court explained that to establish constructive possession, the evidence must show defendant’s non-exclusive possession of property where drugs are found, along with “other incriminating evidence ‘connecting the defendant to the drugs.’” Slip Op. at 9, quoting State v. Lakey, 183 N.C. App. 652, 656 (2007). Previous cases established that a “large amount of currency” and conduct showing “knowledge of the presence of a controlled substance” support a finding of constructive possession. Id. Here, evidence showed defendant regularly operated the car where the meth was found, he was driving it when he was arrested and it was impounded, and in the trunk officers found a large amount of currency and digital scales. This evidence combined with the instructions provided in the jailhouse phone call supported the conclusion that defendant had constructive possession of the meth.
The court then turned to the trafficking by transportation charge, and rejected defendant’s argument that he did not knowingly transport the meth. The court noted transportation “requires a ‘substantial movement’ of contraband. . .[e]ven very slight movement may be real or substantial enough.” Id. at 10, quoting State v. McRae, 110 N.C. App. 643, 646 (1993). Here, detectives observed defendant drive the car with the meth from the hotel to a parking lot where he was arrested and the car was impounded. Although the meth was not immediately discovered, “[t]he fact that all the containers were not discovered until days later does not suggest a lack of knowledge given the hidden location of the packages and the Defendant’s knowledge of the location of and extraction method for the packages.” Id. at 11.
Moving to defendant’s argument that the State presented insufficient evidence he kept or maintained a vehicle for controlled substances, the court explained that “[w]hether sufficient evidence was presented of the ‘keeping or maintaining’ element [of G.S. 90-108(a)(7)] depends upon a totality of the circumstances, and no single factor is determinative.” Id. at 12. Here, the court pointed to the evidence initially found inside the car along with defendant’s “knowledge and actions to access and dispose of the methamphetamine” later found inside the car as sufficient to support the conviction. Id. at 13.
Finally, the court noted the evidence showing all the alleged co-conspirators found with meth after leaving the hotel, along with the currency and scales found with defendant, as supportive of the conspiracy to commit trafficking charge.
In this Haywood County case, three defendants appealed their judgments for various drug-related offenses, arguing error in (1) joining their cases for trial, (2) admission of certain testimony, (3) denying their motions to dismiss. The Court of Appeals found no error.
In October of 2018, the Haywood County Sheriff's Office executed a search warrant on three apartments, finding heroin and cocaine along with drug paraphernalia. The three defendants were found together in one of the apartments, along with drugs and a large amount of cash. The defendants came to trial in August of 2021, and the State moved to join the cases for trial; the trial court allowed this motion over their objections.
For (1), the court noted that G.S. 15A-926 permits joinder in the discretion of the trial court, with the primary consideration being the fair trial for each defendant. Here, no confessions or affirmative defenses were offered by any defendant, and “[b]ecause there were no antagonistic or conflicting defenses that would deprive Defendants of a fair trial,” the court found no error in joining the cases. Slip Op. at 8.
Looking to (2), the court explained that one defendant objected to the testimony by an officer referencing several complaints about a black car driven by the defendant. The court noted that the officer’s testimony was not hearsay under Rule of Evidence 801, as it was not being offered to prove the truth of the matter asserted. Instead, the officer’s testimony explained his subsequent actions in observing the black car, which led to conducting surveillance on the apartments.
Finally, in (3), the court found that two of the defendants had constructive possession of the drugs sufficient to support their convictions for possession despite not having exclusive possession of the apartments, as sufficient evidence of incriminating circumstances linked the defendants to the drugs and paraphernalia. The court noted this constructive possession, along with a rental application for one of the apartments, supported the finding of a conspiracy between the defendants to traffic the drugs. As a result, the trial court did commit error by denying the defendants’ motions to dismiss.
In this McDowell County case, defendant appealed his convictions for drug-related crimes and attaining habitual felon status, arguing error in (1) denial of his motion to suppress the results of a search and (2) denial of his motion to dismiss the charges. The Court of Appeals found no error.
In April of 2021, defendant and an acquaintance drove up to a driver’s license checkpoint operated by the McDowell County Sheriff's Department. A sheriff’s deputy approached the truck and asked the two men if either of them were on probation; the driver told the deputy he was, while defendant, as the passenger, told the deputy he was not. The deputy subsequently asked if there was anything illegal in the vehicle, and if he had their consent to search the vehicle. The driver gave verbal consent to the search, and the deputy asked him to step out of the vehicle for a pat down. After checking the driver, the deputy moved to defendant, and asked him to exit for a pat down. While patting down defendant, the deputy noticed defendant cup his hand and make a throwing motion; when asked what he threw away, the defendant admitted it was a marijuana blunt. A subsequent search of the vehicle turned up bags of marijuana and methamphetamine. At trial, defendant moved to suppress the results of the search, arguing that it was conducted without valid consent of the owner or occupants, and without reasonable suspicion. Defendant also moved to dismiss the charges for insufficient evidence. Both motions were denied, and defendant was convicted.
Taking up (1), the Court of Appeals explained defendant’s argument hinged on conflicting testimony from the deputy and himself about the truck and any illegal contents. Defendant argued that the trial court should have made findings regarding this discrepancy and whether defendant was improperly detained without a Mirandawarning. The court disagreed, explaining that “the trial court found [the deputy’s] testimony was credible and, in doing so, resolved any testimonial conflicts in [the deputy’s] favor.” Slip Op. at 8. Even assuming the deputy asked defendant about the truck in the manner defendant testified, the court explained that defendant made no incriminating statements in response, and only made an incriminating admission after the search turned up drugs in the vehicle.
In (2), defendant argued that the State failed to present sufficient incriminating circumstances to support his convictions. Because defendant “did not have exclusive possession of the truck in which the drugs were found, the State was required to provide evidence of other incriminating circumstances.” Id. at 11. The court found just such evidence in the testimony about defendant “cupping his hand, making a throwing motion with his back turned, and admitting to throwing a marijuana blunt” after the deputy asked him to exit the vehicle. Id. at 12. This behavior coupled with the drugs found in the center console supported defendant’s constructive possession for the convictions.
In this Cleveland County case, defendant appealed his convictions for trafficking methamphetamine, arguing that his motion to dismiss should have been granted as he was not physically present when his travel companion was found in possession of the contraband. The Court of Appeals affirmed the denial of defendant’s motion to dismiss.
In February of 2020, an associate of defendant was arrested for possession of drugs and chose to assist police with their investigation of defendant in return for leniency. Defendant had asked the associate for assistance in bringing drugs from Georgia to North Carolina, and the police assisted the associate in developing a plan where they would drive together to pick up drugs for sale in North Carolina. The plan would conclude with the pair being pulled over as they re-entered the state. However, as the pair returned from Atlanta with the drugs, they became tired, and defendant called a female friend to assist them with driving from South Carolina to their destination in North Carolina. The female friend arrived with another woman, and the pair split up, leaving defendant’s associate in the car with the contraband and one woman, and defendant in a different car with the other woman. They were both pulled over when they passed into North Carolina, traveling three to five miles apart. At trial, defense counsel moved to dismiss the charges at the close of state’s evidence and again at the close of all evidence, but both motions were denied.
The Court of Appeals first explained that a person may be charged with a crime in North Carolina even if part of the crime occurred elsewhere, as long as at least one of the essential acts forming the crime occurred in North Carolina, and the person “has not been placed in jeopardy for the identical offense in another state.” Slip Op. at 5, quoting G.S. 15A-134. The court then moved to defendant’s arguments that he did not possess or transport the drugs while in North Carolina so he could not be charged with trafficking by possession or trafficking by transportation.
Although defendant did not have actual possession of the drugs in North Carolina, the court noted that the “knowing possession” element of trafficking by possession could also be shown by proving that “the defendant acted in concert with another to commit the crime.” Slip Op. at 6, quoting State v. Reid, 151 N.C. App. 420, 428 (2002). Along with the evidence in the current case showing the defendant acted in concert with his associate, the trafficking charge required showing that defendant was present when the offense occurred. Here, after exploring the applicable case law, the court found that defendant was “constructively present” because, although “parties in the present case were a few miles away from each other, they were not so far away that defendant could not render aid or encouragement [to his associate].” Id. at 11.
Moving to the trafficking by transportation charge, the court noted that “[a]s with trafficking by possession, ‘trafficking by transport can be proved by an acting in concert theory.’” Id. at 13, quoting State v. Ambriz, 880 S.E.2d 449, 459 (N.C. App. 2022). The court explained that “[f]or the same reasons we hold that defendant’s motion to dismiss the trafficking by possession charge was properly denied, we also hold that the motion to dismiss the trafficking by transportation charge was properly denied.” Id.
The trial court did not err by revoking the defendant’s probation where there was substantial evidence that he committed the criminal offense of possessing controlled substances but insufficient evidence of maintaining a vehicle for sale of controlled substances. There was competent evidence to support the trial court’s finding that the defendant committed simple possession of schedule II and IV controlled substances where officers conducting a traffic stop for reckless driving discovered Oxycodone, Xanax, and Clonazepam in a pill bottle in the glove compartment in front of the passenger seat where the defendant was sitting. Analyzing the issue of whether the defendant had constructive possession of the drugs and finding that he did, a majority of the court emphasized the defendant’s close proximity to the glove compartment and pill bottle, his behavior suggesting his fear that the drugs would be discovered, and his exhibition of obvious signs of impairment that caused officers to call for EMS to check whether he should be taken to the hospital. The majority went on to find that there was insufficient evidence that the defendant committed the offense of maintaining a vehicle for the sale of controlled substances, but that the trial court’s error in revoking defendant’s probation on the basis of this offense was not prejudicial given the proper revocation based upon the possession offense.
Judge Hampson dissented and expressed the view that there was insufficient evidence of the defendant’s constructive possession of the drugs in the glovebox. Judge Hampson explained that the defendant’s behavior arguably evincing fear did not clearly indicate he was aware of the drugs, and further explained that it was not clear that his impairment was specifically related to the drugs.
The defendant in this case previously appealed his convictions for possession of a firearm by a felon, trafficking in heroin, PWISD cocaine, and attaining habitual felon status. The Court of Appeals found no error in State v. Wynn, 264 N.C. App. 250 (2019) (unpublished) (“Wynn I”).
The state Supreme Court granted a petition for discretionary review and remanded to the Court of Appeals for the limited purpose of reconsideration in light of State v. Golder, 347 N.C. 238 (2020) (holding that a motion to dismiss made “at the proper time preserved all issues related to the sufficiency of the evidence for appellate review”). Applying Golder to the case at hand, the appellate court reconsidered defendant’s argument challenging the sufficiency of the evidence at trial, which the court in Wynn I had ruled was not preserved at the trial level. The court began by rejecting the state’s argument that Golder was inapplicable because defense counsel in this case moved for a directed verdict, rather than making a motion to dismiss; the court held that in criminal cases the terms are used interchangeably and are reviewed in the same manner.
Turning to the substantive offenses, the court held that the motion to dismiss the charge of possession of a firearm by a felon should have been granted. No firearm was found in this case; the state’s primary evidence for possession of a firearm was the defendant’s statement to the officers that he had one before they arrived but he had dropped it. Applying the corpus delicti principle, the court held that a confession alone cannot support a conviction unless there is substantial independent evidence to establish the trustworthiness of the confession, including facts which strongly corroborate the essential facts and circumstances in the confession. In this case, the police found a 9mm magazine in a home the defendant had broken into, and also found 9mm shell casings and bullet holes in the defendant’s own home; however, the court pointed out that a magazine is not a firearm, and it was unknown who caused the bullet holes or when. Without some additional evidence (such as recovering the firearm, testimony from a witness who saw a firearm or heard gunshots, or evidence of injury to a person or property), the court concluded that there was insufficient corroboration of the confession and vacated the conviction.
On his convictions for trafficking heroin and PWISD cocaine, the defendant challenged the sufficiency of the evidence that he possessed the drugs, but the appellate court held that there was sufficient evidence to establish constructive possession. The drugs were found inside a house where the defendant was seen actively moving from room to room, indicating that had dominion over the space, and the drugs were packaged in red plastic baggies that the defendant was known to use for selling drugs. When the defendant exited the house he also had over $2,000 in cash on him and a white powdery substance in and on his nose. Taken together, these facts presented sufficient evidence to withstand a motion to dismiss regarding the defendant’s constructive possession of the controlled substances, and the convictions were affirmed.
Finally, the court declined to revisit its earlier ruling on defendant’s argument concerning the admissibility of evidence under Rule 403 and 404, since the case was only remanded for reconsideration in light of Golder. “As such, the Supreme Court left, and we shall too, leave intact our prior analysis, regarding defendant’s second argument of evidence of other wrongs.”
In this drug trafficking by possession and transportation case, the defendant fled an attempted traffic stop, was chased by officers for 3-5 miles until the defendant crashed his car, and then was pursued on foot. When the defendant was apprehended, he was searched and officers recovered a backpack containing digital scales, syringes, and small plastic bags. After the defendant was in custody and roughly thirty to forty-five minutes after the chase ended, the officers found two small plastic bags containing a “black tar substance” on the side of the highway roughly one hundred yards from where the car chase began. Collectively, the bags contained 4.66 grams of heroin. Although the bags were found on the route the defendant took, they were located “completely off of the roadway” and no officers testified that they saw anything thrown from the defendant’s vehicle. On appeal, the defendant challenged the sufficiency of the evidence.
(1) The Court of Appeals first addressed the State’s argument that the defendant failed to preserve the sufficiency issue for appellate review when he moved to dismiss the charges based upon a defect in the chain of custody, rather than for insufficiency of the evidence. The Court explained that the N.C. Supreme Court recently ruled in State v. Golder, 374 N.C. 238 (2020) that N.C. R. App. P. 10(a)(3) “does not require a defendant to assert a specific ground for a motion to dismiss for insufficiency of evidence” and the issue is preserved so long as a motion to dismiss is made at the proper time. Slip op. at ¶ 16. Therefore, the defendant preserved the argument on appeal.
(2) The trial court erred by denying the defendant’s motion to dismiss the charges of trafficking heroin by transportation and possession because the State’s evidence was insufficient to show that the defendant constructively possessed the two bags of heroin found on the side of the road. The court explained:
When the evidence is viewed in the light most favorable to the State, the bags of heroin were found on the driver’s side of the road approximately one hundred yards from the area where the car chase started. Inside Defendant’s vehicle, officers found scales, baggies, and syringes. Officers did not observe Defendant throw anything from the window while driving during the chase. Defendant was not in control of the area where the drugs were found, and there is no evidence connecting the bags of heroin to Defendant or to the vehicle he was driving. Without further incriminating circumstances to raise an inference of constructive possession, the State has failed to demonstrate substantial evidence that Defendant possessed the controlled substance.
In this possession of methamphetamine and felon in possession of a firearm case, the trial court did not err by instructing the jury that the defendant’s status as the driver of a stopped vehicle was sufficient to support an inference that he constructively possessed both methamphetamine and a firearm, even though another person was present in the vehicle. The defendant was stopped by officers while driving a beige Chevrolet pickup truck. Law enforcement had received drug complaints about a man named Sanchez. Officers conducted a two-hour surveillance of Sanchez and the defendant as they drove to several hotels in the area. Both Sanchez and the defendant were seen driving the truck during the two hour surveillance. Officers stopped the vehicle. The defendant was in the driver’s seat; Sanchez was in the passenger seat. A K-9 alert lead to a search of the vehicle. Officers found bags and backpacks in the truck bed that Sanchez stated belonged to him. While searching one of the backpacks they found pills and a notebook containing Sanchez’s name. Another backpack contained a compass with .2 g of a crystalline substance (later determined to be methamphetamine), a digital scale and counterweight, and a notebook containing entries in the defendant’s handwriting concerning the defendant’s wife. A revolver was found beneath the passenger seat. A later strip search of the defendant produced 39 pills, 15 of which were later determined to be diazepam. The defendant was indicted for possession of methamphetamine, possession of a firearm by a felon, and other charges. At the charge conference, the State requested an instruction stating that an inference of constructive possession can arise from evidence showing that a defendant was the custodian of a vehicle in which contraband was found. Over the defendant’s objection, the trial court gave the instruction. The defendant was found guilty and appealed.
There was sufficient evidence to convict the defendant of possession of methamphetamine. Because the methamphetamine was found in a backpack in the bed of the truck, the State was required to show constructive possession. As the vehicle’s driver, the defendant’s dominion and control over the truck is sufficient to give rise to an inference of constructive possession. The court rejected the defendant’s argument that his dominion and control over the truck was insufficient because he was not the only occupant of the vehicle. The court went on to conclude that while the defendant’s status as the driver might be sufficient to uphold his conviction for possession of methamphetamine, the State also presented additional incriminating evidence to support an inference of constructive possession. Specifically, the defendant’s frequent stops at hotels and gas stations, indicative of drug transactions; the defendant’s possession of other controlled substances; and that the backpack in which the methamphetamine was found contained the defendant’s personal belongings.
The evidence was also sufficient to show constructive possession of the firearm. As with possession of a controlled substance, the defendant’s dominion and control as the driver of the truck was sufficient to give rise to an inference of constructive possession. The court again rejected the defendant’s argument that his non-exclusive control over the truck required the State to provide additional incriminating evidence. Again, however, even though the defendant’s status as the driver is sufficient to give rise to an inference of possession, the State presented additional incriminating evidence in this case including the defendant’s proximity to the firearm and his behavior consistent with the sale of drugs.
In this drug trafficking case, the court held, over a dissent, that the evidence was insufficient to establish that the defendant knowingly possessed cocaine found in a black box in a wooded area approximately 18 hours after the defendant allegedly produced the same box in exchange for his kidnapped father. After the defendant’s father Mr. Royster was kidnapped, the kidnappers called the defendant; during that call Mr. Royster told the defendant that he needed to come and talk with the kidnappers. The next day, the defendant and a man named Cates went to the location. The defendant produced a black box that was given to one of the kidnappers and Mr. Royster was put in the defendant’s car. A shooting then broke out and one of the kidnappers, holding the box, ran into the woods behind the trailer park area. The defendant, Cates and Mr. Royster departed. One of the kidnappers died from gunshot wounds. Approximately 18 hours after the shooting, officers searched the woods behind the trailer park. 50 to 75 yards into the woods they found a black box containing a large amount of cocaine. The box was dry, despite heavy rain the previous night. A mason jar containing additional cocaine was found nearby; it also was dry. The defendant moved to dismiss the trafficking charge on the basis that the State failed to prove that he possessed the drugs in question. The trial court denied the defendant’s motion, he was convicted and he appealed. The court agreed that the evidence was insufficient to establish that the defendant possessed the controlled substances at issue. It concluded that the evidence established merely a suspicion that the defendant possessed the drugs at issue.
The trial court did not err by denying the defendant’s motion to dismiss charges of possession of stolen goods (a debit card) and possession of marijuana. The State presented substantial evidence establishing constructive possession of both the items. The items were found in close proximity to the defendant and his vehicle. Because of their proximity to the items, the defendant and his accomplices had the ability to exercise control over the contraband. Additionally, an officer spotted the defendant’s car and the suspects about one minute after receiving information from the Sheriff’s department about a robbery related to the charges at issue. The brief period between the robbery and locating the suspects with the stolen card supports an inference that the defendant knew of the robbery and the presence of the card. Based on the totality of the circumstances, there was substantial evidence that the defendant had constructive possession of the items.
The evidence was sufficient to support the defendant’s conviction of trafficking in cocaine by possession. At issue was whether the defendant constructively possessed the cocaine, found in the drawer of a bedroom dresser. Among other things, the defendant lived with Cunningham at the home. The two shared the bedroom, which also contained drug paraphernalia and illegal contraband, and was padlocked from the outside to prevent entry. The defendant and Cunningham had the only keys to the padlock. Officers found more than $400 of cash on the nightstand and a box near the nightstand contained latex gloves, a pair of goggles, and 2 boxes of plastic baggies, which the jury could infer were used to manufacture, package, or otherwise distribute crack cocaine. A reasonable juror could infer from Cunningham’s statements that she did not put the cocaine in the dresser. Moreover she stated that the cocaine did not belong to her. The jury could reasonably infer that the defendant, the only other individual with access to the bedroom, was the person who had control and dominion over the cocaine. Additionally, the defendant’s knowledge of the weight of cocaine found in the bedroom, as demonstrated by his conversation with another person, is another incriminating circumstance from which the jury could find constructive possession of cocaine.
In this possession of marijuana paraphernalia case, the State presented sufficient evidence to establish that the defendant constructively possessed a marijuana pipe found in a crashed vehicle. Although the defendant did not have exclusive possession of the vehicle, sufficient incriminating circumstances existed to establish constructive possession, including that the defendant was driving the vehicle; the pipe was found on the driver’s side floorboard; and the defendant admitted ownership of a small amount of marijuana found on his person.
In this drug case, there was insufficient evidence of constructive possession. Officers responded to a report of a breaking and entering at a residence. They heard a commotion inside and noticed smoke coming from the house. Two men, Robert McEntire and the defendant, left through the front door. Because the officers had responded to a breaking and entering in progress, they placed the men in custody. The source of the smoke turned out to be a quantity of marijuana burning in the oven. A subsequent search of the premises found over 19 pounds of marijuana and other items including drug paraphernalia. Officers later learned that McEntire lived at the premises. A photograph of the defendant was found in a container in a bedroom. The defendant was indicted on multiple drug charges including trafficking, possession with intent, maintaining a dwelling and possession of drug paraphernalia. At trial, the defendant’s mother explained why McEntire had a photograph of the defendant. McEntire testified that the defendant was merely visiting on the day in question, that the contraband belonged to McEntire and that the defendant did not know about its presence. The trial court denied the defendant’s motion to dismiss, which asserted insufficiency of the evidence. The defendant was convicted. The court found that the State failed to present substantial evidence demonstrating the defendant’s constructive possession of the contraband. The only evidence tying the defendant to the residence or the contraband was his presence on the afternoon in question and a single photograph of him found face down in a plastic storage bin located in a bedroom. There was no evidence that the defendant had any possessory interest in the house, that he had a key to the residence, that his fingerprints were found on any of the seized items, that any items belonging to him were found in the residence (on this issue it noted that the photograph belong to McEntire), or that any incriminating evidence was found on his person.
(1) Because there was sufficient evidence that the defendant possessed drug paraphernalia, the trial court did not err by denying his motion to dismiss. The paraphernalia was found in plain view in a common living area of a home over which the defendant exercised nonexclusive control. The court found that following constituted “other incriminating circumstances” necessary to prove constructive possession: the defendant spent hours at the house on the day of the search; the defendant admitted that he had a “blunt” in the black truck parked in front of the house and the police found marijuana in the truck’s console; the police found marijuana in the house behind a photograph of the defendant; and several people visited the house while the defendant was there, including a man who shook hands with defendant “as if they were passing an item back and forth.” Of these facts, the most significant was that marijuana was found in a picture frame behind a photograph of the defendant. (2) Because there was insufficient evidence that the defendant constructively possessed marijuana found in an uncovered fishing boat located in the yard of a home occupied by multiple people, including the defendant, the trial court erred by denying his motion to dismiss the drug possession charge. The boat was located roughly 70 feet from the side of the house, in a non-fenced area of the yard. There was no evidence that the defendant had any ownership interest in or possession of the boat and the defendant was never seen near the boat.
The court reversed the defendant’s conviction for possession with intent to sell or deliver methamphetamine, concluding that the State failed to present substantial evidence of constructive possession. The case arose out of a controlled drug buy. However the State’s evidence showed that “at nearly all relevant times” two other individuals—Fisher and Adams--were in actual possession of the methamphetamine. The defendant led Fisher and Adams to a trailer to purchase the drugs. The defendant entered the trailer with Fisher and Adams’ money to buy drugs. Adams followed him in and ten minutes later Adams returned with the methamphetamine and handed it to Fisher. This evidence was insufficient to establish constructive possession.
In a possession of cocaine case, the evidence was sufficient to prove that the defendant constructively possessed cocaine. The drugs were found on the ground near the rear driver’s side of the defendant’s car after an officer had struggled with the defendant. Among other things, video from the officer’s squad car showed that during the struggle the defendant dropped something that looked like an off-white rock near rear driver’s side of the vehicle. This and other facts constituted sufficient evidence of other incriminating circumstances to establish constructive possession.
The evidence was sufficient to establish that the defendant constructively possessed the methamphetamine and drug paraphernalia. Agreeing with the defendant that the evidence tended to show that methamphetamine found in a handbag belonged to the defendant’s accomplice, the court found there was sufficient evidence that he constructively possessed methamphetamine found in a duffle bag. Among other things, the defendant and his accomplice were the only people observed by officers at the scene of the “one pot” outdoor meth lab, the officer watched the two for approximately forty minutes and both parties moved freely about the site where all of the items were laid out on a blanket.
(1) In a trafficking by possession case, there was sufficient evidence of constructive possession. The court rejected the defendant’s argument that the State’s evidence showed only “mere proximity” to the drugs. Among other things, the defendant hid from the agents when they entered the warehouse; he was discovered alone in a tractor-trailer where money was hidden; no one else was discovered in the warehouse; the cocaine was found in a car parked, with its doors open, in close proximity to the tractor-trailer containing the cash; the cash and the cocaine were packaged similarly; wrappings were all over the tractor-trailer, in which the defendant was hiding, and in the open area of a car parked close by; the defendant admitted knowing where the money was hidden; and the entire warehouse had a chemical smell of cocaine. (2) Conspiracy to traffic in cocaine is not a lesser-included offense of trafficking in cocaine. The former offense requires an agreement; the latter does not.
The evidence was sufficient to support a charge of trafficking in cocaine by possession. A detective set up a cocaine sale. The defendant and an individual named Blanco arrived at the location and both came over to the detective to look at the money. The defendant and Blanco left together, with the defendant telling Blanco to wait at a parking lot for the drug delivery. Later, the defendant told Blanco to come to the defendant’s house to get the drugs. Blanco complied and completed the sale.
There was sufficient evidence that the defendant had constructive possession of heroin found in an apartment that was not owned or rented by him. Evidence that the defendant was using the apartment included that he had a key to the apartment on his key ring, his clothing was found in the bedroom, he was seen entering and exiting the apartment shortly before the drug transaction, and he characterize the apartment as "where he was staying." Also, the defendant told the officer he had more heroin in the apartment and once inside lead them directly to it. The defendant also told the officers that his roommate was not involved with heroin and knew nothing of the defendant’s involvement with drugs.
The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell and deliver cocaine where there was sufficient evidence of constructive possession. Because the defendant did not have exclusive possession of the bedroom where the drugs were found, the State was required to show other incriminating circumstances. There was sufficient evidence of such circumstances where among other things, the defendant was sleeping in the bedroom, his dog was in the room, his clothes were in the closet, and plastic baggies, drug paraphernalia, and an electronic scale with white residue were in the bedroom. Additionally, the nightstand contained a wallet with a Medicare Health Insurance Card and customer service card identifying the defendant, a letter addressed to defendant at the address, and $600 in cash.
In this drug trafficking case the court held that there was sufficient evidence to support a finding of constructive possession of cocaine. Police had previously received a tip that drug sales were occurring at the home where the drugs were found; police later received similar information in connection with a DEA investigation; when officers went to the home the defendant admitted living there with his wife and children for three years, the defendant had a pistol, which he admitted having purchased illegally, ammunition, and more than $9,000.00 in cash in his closet; the defendant had more than $2,000 in cash on his person; almost 2 kilograms of powder cocaine worth more than $50,000 were found within easy reach of an opening leading from the hallway area to the attic; and the home small and had no residents other than the defendant and his family.
In a trafficking by possession case, the evidence was sufficient to show constructive possession. After receiving a phone call from an individual named Shaw requesting cocaine, the defendant contacted a third person, Armstrong, to obtain the drugs. The defendant picked up Armstrong in a truck and drove to a location that the defendant had arranged with Shaw for the purchase. The defendant knew that Armstrong had the cocaine. Officers found cocaine on scales in the center of the truck. The defendant’s facilitation of the transaction by providing the vehicle, transportation, and arranging the location constituted sufficient incriminating circumstances to support a finding of constructive possession.
In a trafficking case, the evidence was sufficient to show that the defendant constructively possessed cocaine found in a vehicle in which the defendant was a passenger. Another occupant in the vehicle testified that the cocaine belonged to the defendant, the cocaine was found in the vehicle “where [the defendant]’s feet would have been[,]” and, cocaine also was found on the defendant’s person.
There was sufficient evidence of constructive possession of drugs found in a house. The defendant lived at and owned a possessory interest in the house; he shared the master bedroom where the majority of the marijuana and drug paraphernalia were found; he was in the living space adjoining the master bedroom when the search warrant was executed; there were drugs in plain view in the back bedroom; he demonstrated actual control over the premises in demanding the search warrant; and in a conversation with his wife after their arrest, the two questioned each other about how the police found out about the drugs and the identity of the confidential informant who said that the contraband belonged to the defendant).
There was sufficient evidence of constructive possession to sustain a conviction for possession with the intent to sell and deliver marijuana. The drugs were found in a vehicle being transported by a car carrier driven by the defendant. The court determined that based on the defendant’s power and control of the vehicle in which the drugs were found, an inference arose that he had knowledge their presence. The vehicle had been under the defendant’s exclusive control since it was loaded onto his car carrier two days earlier and the defendant had keys to every car on the carrier. Although the defendant’s possession of the vehicle was not exclusive because he did not own it, other evidence created an inference of his knowledge. Specifically, he acted suspiciously when stopped (held his hands up, nervous, sweating), he turned over a suspect bill of lading, and he had fully functional keys for all cars on the carrier except the one at issue for which he gave the officers a “fob” key which prevented its user from opening the trunk housing the marijuana.
There was insufficient evidence that the defendant had constructive possession of bags of marijuana found in a vehicle. An officer found a vehicle that had failed to stop on his command in the middle of a nearby street with the engine running. The driver and passengers had fled. Officers searched the vehicle and found, underneath the front passenger seat, a large bag containing two smaller bags of marijuana; in the glove box, a small bag of marijuana; and in the defendant’s handbag, a burned marijuana cigarette. The defendant, who had been sitting in the back seat, did not own the vehicle. There was no evidence that the defendant behaved suspiciously or failed to cooperate with officers after being taken into custody. There was no evidence that the defendant made any incriminating admissions, had a relationship with the vehicle’s owner, had a history of selling drugs, or possessed an unusually large amount of cash.
There was sufficient evidence of constructive possession even though the defendant did not have exclusive control of the residence where the controlled substances were found. The defendant admitted that he resided there, officers found luggage, mail, and a cellular telephone connected to the defendant at the residence, the defendant’s car was in the driveway, and when the officers arrived, no one else was present. Additionally, the defendant was found pushing a trash can that contained the bulk of the marijuana seized, acted suspiciously when approached by the officers, and ran when an officer attempted to lift the lid.
There was insufficient evidence that the defendant constructively possessed the controlled substances at issue. The defendant did not have exclusive possession of the premises where the drugs were found; evidence showed only that the defendant was present, with others, in the room where the drugs were found.
There was insufficient evidence that the defendant constructively possessed cocaine and drug paraphernalia. When officers announced their presence at a residence to be searched pursuant to a warrant, the defendant exited through a back door and was detained on the ground; crack cocaine was found on the ground near the defendant and drug paraphernalia was found in the house. As to the cocaine, the defendant did not have exclusive control of the house, which was rented by a third party, and there was insufficient evidence of other incriminating circumstances. The defendant did not rent the premises, no documents bearing his name were found there, none of his family lived there, and there was no evidence that he slept or lived at the home. The defendant’s connection to the paraphernalia was even weaker where no evidence connected the defendant to the paraphernalia or to the room where it was found.
There was sufficient evidence that the defendant constructively possessed controlled substances found in a motorcycle carry bag even though the defendant did not own the motorcycle.
There was sufficient evidence of constructive possession of cocaine for purposes of charges of trafficking by possession, possession with intent, and possession of paraphernalia.
There was sufficient evidence to show that the defendant knowingly possessed marijuana in a case where the defendant was convicted of trafficking in marijuana and conspiracy to traffic by possession. Defendant signed for and collected a UPS package containing 44.1 pounds of marijuana. About a half hour later, the defendant helped load a second UPS package containing 43.8 pounds of marijuana into the back seat of a car. Both boxes were found when police searched the car, driven by the defendant. The defendant had once lived in the same residence as his niece, the person to whom the packages were addressed, and knew that his niece frequently got packages like these. Also, the defendant expected to earn between $50 and $200 for simply taking the package from UPS to his niece. Finally the address on one of the boxes did not exist.
The defendant was stopped for a traffic violation after leaving a Buncombe County house that officers were surveilling due to complaints of illegal drug activity. Officers recovered from the defendant’s car one large bag and several smaller bags of a white crystalline substance, a bag of a leafy green substance believed to be marijuana, a baggie of cotton balls, several syringes, rolling papers, and a lockbox containing several smoked marijuana blunts and a number of plastic baggies. When he was arrested, the defendant offered to provide information about a woman he was supposed to meet who was involved in heroin trafficking.
The defendant was indicted for several drug charges including possession of methamphetamine and possession with intent to sell or deliver methamphetamine and for attaining habitual felon status. At trial, a forensic analyst from the State Crime Lab testified that that the white crystalline substance in the large plastic baggie was 6.51 grams of methamphetamine. The arresting officer testified that a typical methamphetamine sale for personal drug use was usually between one-half of a gram to a gram, and that two of the smaller baggies containing white crystalline substances (which were not analyzed) weighed 0.6 and 0.9 grams. The officer also testified that the baggies found in the car were consistent with those used in drug sales.
The defendant moved at the close of the State’s evidence to dismiss the charge of possession with intent to sell or deliver methamphetamine on the basis that the search of his person and vehicle yielded no cash, guns, financial records or other evidence to show that the defendant was a drug dealer as opposed to a drug user in possession of drugs. The trial court denied the motion, and the defendant was convicted of this charge and others and of being a habitual felon. The defendant appealed. Over a dissent, the Court of Appeals concluded that the trial court did not err in denying the defendant’s motion to dismiss the possession with intent to sell or deliver charge. The majority opined that “‘[w]hile it is possible that [d]efendant had 13 hits of methamphetamine solely for personal use, it is also possible that [d]efendant possessed that quantity of methamphetamine with the intent to sell or deliver the same’” and that the issue was thus “‘properly resolved by the jury.’” Slip op. at ¶ 8.
On appeal, the Supreme Court considered whether the State presented sufficient evidence that the defendant intended to sell or deliver methamphetamine. The Court applied the following factors from State v. Nettles, 170 N.C. App. 100 (2005), to evaluate whether the defendant’s intent to sell or deliver could be inferred from the evidence: (1) the packaging, labeling and storage of the controlled substance, (2) the defendant’s activities, (3) the quantity of the drugs found, and (4) the presence of cash or drug paraphernalia including plastic baggies. The Court determined that the State’s evidence satisfied every factor and that the trial court properly denied the defendant’s motion to dismiss. Specifically, the court pointed to the following evidence: (1) the packaging of the confirmed methamphetamine and the untested white crystalline substances and the presence of clear plastic baggies in the car; (2) the storage of the methamphetamine in the center console after leaving a house where drug activity was suspected and while having a pending meeting with a drug trafficker; (3) the driving to a suspected drug house, entering and remaining inside for ten minutes, planning to meet with a drug trafficker, and driving a car with a large bag of methamphetamine inside and other items that appeared to be drug-related; and (4) the more than 8 grams of white crystalline substances in the defendant’s car, with 6.51 grams confirmed as methamphetamine (23.3 percent of the threshold amount to establish trafficking in methamphetamine), combined with evidence that the typical packaging of such a substance is one-half of a gram to a gram; and (5) the loaded syringe, bag of new syringes and baggie of cotton balls in the defendant’s car along with a lock box with plastic baggies in the back floorboard of the car. Focusing on the presence of evidence that could reasonably support an inference that the defendant possessed methamphetamine with intent to sell or deliver, the Court concluded that the State presented sufficient evidence of the defendant’s intent to sell or deliver methamphetamine.
Justice Earls, joined by Justice Hudson, dissented. Justice Earls wrote that the majority had jettisoned the requirement that the State present substantial evidence of the defendant’s specific intent to sell or deliver the controlled substance by relying on evidence that was common to any individual who possesses a controlled substance.
The Court per curiam affirmed the opinion below, ___ N.C. App. ___, 804 S.E.2d 742 (2017). Over a dissent, the Court of Appeals held that the trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell or deliver marijuana. The defendant argued that the State failed to present sufficient evidence of his intent to sell or deliver the drugs and that the evidence shows the marijuana in his possession was for personal use. The defendant possessed 10.88 grams of marijuana. Although the amount of drugs may not be sufficient, standing alone, to support an inference of intent to sell or deliver, other facts supported this element, including the packaging of the drugs. Additionally, the 20-year-old defendant was carrying a large amount of cash ($1,540) and was on the grounds of a high school. Moreover, a stolen, loaded handgun was found inside the glove compartment of the vehicle.
The defendant was convicted of possession with intent to sell or deliver cocaine (PWISD-Cocaine), felony possession of cocaine and attaining habitual felon status. He argued on appeal that State failed to offer sufficient evidence of an intent to sell or deliver cocaine. The Court of Appeals rejected that argument, determining that there was sufficient evidence to support submission of the PWISD-Cocaine charge to the jury.
The State’s evidence showed that the defendant possessed cocaine contained in two packages: a corner bag containing .34 grams and a package containing 11.19 grams. Though this amount is less than half the amount that would support a trafficking charge and less than what courts have previously recognized as a substantial amount, the Court of Appeals reasoned that the amount was not insubstantial and that it well exceeded amounts previously deemed to support a PWISD-Cocaine conviction. Thus, the court deemed evidence that the defendant possessed more than 11 grams of cocaine an important circumstance. Moreover, the court stated that evidence of the packaging (one small corner bag indicative of personal use and a larger package containing the bulk of the cocaine) supported an inference of intent to sell or deliver. The defendant’s actions at the time he possessed the cocaine further supported an inference of an intent to sell and distribute. The defendant was driving (and thus transporting the cocaine) to his brother’s apartment complex when a law enforcement officer signaled for him to stop. The defendant did not immediately stop. Instead, he accelerated away from the officer, only stopping once he reached the apartment complex. Once there, the defendant got out of his car, refused to comply with the officer’s directions, and ducked behind a parked car where the larger bag of cocaine was later found. The court stated that this supported an inference that the defendant attempted to hide the larger amount of cocaine while leaving the smaller corner bag—associated with only personal use—in plain view.
The court acknowledged that there was no evidence of cash, paraphernalia or other tools of the drug trade. Nevertheless, it viewed the amount of cocaine, the packaging, and the defendant’s evasive behavior to be enough to establish, “at a minimum, a borderline case to support submission of the PWISD-Cocaine charge to the jury.”
The evidence was sufficient to sustain a conviction for possession with intent to sell or deliver marijuana. The defendant’s vehicle contained 11.5 grams of marijuana packaged in two sandwich bags, a digital scale, and 23 additional loose sandwich bags. On appeal, the defendant’s primary argument was that the amount of marijuana found in his vehicle was too small to establish the requisite intent to sell or deliver. Citing prior case law, the court noted that with respect to showing intent, prior decisions have placed particular emphasis on the amount of drugs discovered, their method of packaging, and the presence of paraphernalia typically used to package drugs for sale. Moreover, the inquiry is fact specific in which the totality of the circumstances must be considered unless the quantity of drugs is so substantial that quantity alone supports an inference of intent to sell or deliver. Here, the relatively small quantity of marijuana was not be enough on its own to support an inference regarding the defendant’s intent. However, given the additional presence of the scale and the sandwich bags the evidence was sufficient to go to the jury.
The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with intent to sell or deliver. The defendant argued that the amount of marijuana found in his car—84.8 grams—was insufficient to show the required intent. The court rejected this argument noting that the marijuana was found in multiple containers and a box of sandwich bags and digital scales were found in the vehicle. This evidence shows not only a significant quantity of marijuana, but the manner in which the marijuana was packaged raised more than an inference that defendant intended to sell or deliver the marijuana. Further, it noted, the presence of items commonly used in packaging and weighing drugs for sale—a box of sandwich bags and digital scales—along with a large quantity of cash in small denominations provided additional evidence that defendant intended to sell or deliver marijuana.
(No. COA10-534). The trial court erred by submitting to the jury the charge of possession with intent to manufacture cocaine because it is not a lesser-included offense of the charged crime of trafficking by possession of cocaine. However, possession of cocaine is a lesser of the charged offense; because the jury convicted on possession with intent to manufacture, the court remanded for entry of judgment on possession of cocaine.
The trial court erred by denying the defendant’s motion to dismiss a charge of possession with intent to sell or deliver. Evidence that an officer found 1.89 grams of marijuana on the defendant separated into three smaller packages, worth about $30, and that the defendant was carrying $1,264.00 in cash was insufficient to establish the requisite intent.
Criminal Offenses > Drug Offenses > Possession > Possession on Premises of Local Confinement facility
Over a dissent, the court of appeals held, in part, that the trial court did not err by denying the defendant’s motion to dismiss a charge of possession of a controlled substance on the premises of a local confinement facility. The defendant first argued that the State failed to show that he intentionally brought the substance on the premises. The court held that the offense was a general intent crime. As such, there is no requirement that a defendant has to specifically intend to possess a controlled substance on the premises of a local confinement facility. It stated: “[W]e are simply unable to agree with Defendant’s contention that a conviction . . . requires proof of any sort of specific intent and believe that the relevant offense has been sufficiently shown to exist in the event that the record contains evidence tending to show that the defendant knowingly possessed a controlled substance while in a penal institution or local confinement facility.” The court also rejected the defendant’s argument that his motion should have been granted because he did not voluntarily enter the relevant premises but was brought to the facility by officers against his wishes. The court rejected this argument concluding, “a defendant may be found guilty of possession of a controlled substance in a local confinement facility even though he was not voluntarily present in the facility in question.” Following decisions from other jurisdictions, the court reasoned that while a voluntary act is required, “the necessary voluntary act occurs when the defendant knowingly possesses the controlled substance.” The court also concluded that the fact that officers may have failed to warn the defendant that taking a controlled substance into the jail would constitute a separate offense, was of no consequence.
In this possession of a controlled substance on jail premises case involving Oxycodone, the trial court did not err by refusing to instruct the jury that an element of the offense is that the controlled substance be possessed unlawfully. The court explained that a plain reading of the relevant statutes does not require the State to prove unlawful possession of a controlled substance as an element of the offense. Instead, lawful possession is a defense that the defendant carries the burden of proving.
The trial court did not err by failing to instruct the jury on an exemption to a drug trafficking charge. The defendant argued that he was exempt from prosecution as an “ultimate user” pursuant to G.S. 90-101(c). The statute defines an ultimate user as a person who lawfully possesses a controlled substance for his own use, or for the use of a member of his household. The defendant was found in possession of 54 dosage units of oxycodone weighing 6.89 grams. The defendant argued that the trial court erred by not instructing the jury sua sponte on the ultimate user exception. The court found however that the record lacked substantial evidence by which a jury instruction on this exemption would have been required. The evidence showed that the defendant did not lawfully possess his father’s oxycodone pills solely for his father’s prescribed use, as required to fall within the ultimate user exemption. Rather, the record reflects overwhelming evidence that the defendant possessed his father’s oxycodone for his own purpose of unlawfully selling the pills. Although the defendant presented evidence that the oxycodone was prescribed to his father, that the defendant drove his father to and from appointments related to his care, and that the defendant lived with and cared for his father, “no reasonable person could conclude that Defendant was in lawful possession of his father’s oxycodone at the time of his arrest.” Among other things the defendant gave a written confession admitting that he was selling the pills to make money. Because the defendant failed to present substantial evidence that he possessed the pills solely for his father’s use, he was not entitled to the instruction.
The court per curiam affirmed the decision below, State v. Barnes, 229 N.C. App. 556 (Sept. 17, 2013). The court of appeals held, in part, that the trial court erred by entering judgment for both simple possession of a controlled substance and possession of a controlled substance on the premises of a local confinement facility when both charges stemmed from the same act of possession. Simple possession is a lesser-included offense of the second charge.
Where the defendant was in possession of a bag containing two separate Schedule I controlled substances, Methylone and 4-Methylethcathinone, two convictions were proper. Noting that it had already rejected the argument advanced by the defendant in another case, the court held that the defendant could be punished for two offenses where two different drugs are found in the same mixture.
No double jeopardy violation occurred when the defendant was convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance.
For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance.
A defendant may be convicted and sentenced for both possession of ecstasy and possession of ketamine when both of the controlled substances are contained in a single pill.
A defendant may be convicted and punished for both felony possession of marijuana and felony possession of marijuana with intent to sell or deliver.
Reversing a unanimous decision of the Court of Appeals, State v. Miller, ___ N.C. App. ___, ___, 783 S.E.2d 512 (2016), the court rejected the defendant’s as-applied challenge to the constitutionality of G.S. 90-95(d1)(1)(c) (felony to possess a pseudoephedrine product when the defendant has a prior conviction for possession or manufacture of methamphetamine). After holding that the General Assembly intended the statute to be a strict liability offense, the Court of Appeals had gone on to hold that the statute was unconstitutional “as applied to a defendant in the absence of notice to the subset of convicted felons whose otherwise lawful conduct is criminalized thereby or proof beyond a reasonable doubt by the State that a particular defendant was aware that his possession of a pseudoephedrine product was prohibited by law.” The Supreme Court began by noting that, as a general rule, ignorance of the law or a mistake of law is no defense to a criminal prosecution. In Lambert v. California, 355 U.S. 225 (1957), however, the United States Supreme Court sustained and as applied challenge to a municipal ordinance making it unlawful for any individual who had been convicted of a felony to remain in Los Angeles for more than five days without registering with the Chief of Police. In that case the defendant had no actual knowledge of the registration requirement and the ordinance did not require proof of willfulness. The issue presented was whether the registration act violated due process when applied to a person who has no actual knowledge of the duty to register, and where no showing is made of the probability of such knowledge. Acknowledging the rule that ignorance of the law is no excuse, the U.S. Supreme Court pointed out that due process conditions the exercise of governmental authority on the existence of proper notice where a person, wholly passive and unaware of any criminal wrongdoing, is charged with criminal conduct. Because the ordinance at issue in Lambert did not condition guilt on “any activity” and there were no surrounding circumstances which would have moved a person to inquire regarding registration, actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply were necessary before a conviction under the ordinance could stand consistent with due process. Lambert thus carves out a narrow exception to the general rule that ignorance of the law is no excuse. The subsequent Bryant decision from this court establishes that if the defendant’s conduct is not “wholly passive,” because it arises either from the commission of an act or failure to act under circumstances that reasonably could alert the defendant to the likelihood that inaction would subject him or her to criminal liability, Lambert does not apply. Turning to the facts of the case, the court noted that the defendant actively procured the pseudoephedrine product at issue. Moreover, the defendant never argued that he was ignorant of the fact that he possessed a pseudoephedrine product or that he had previously been convicted of methamphetamine possession. His conduct thus differs from that at issue in Lambert and in this court’s Bryant decision in that it was not a “wholly passive” failure to act. The court found no need to determine whether the surrounding circumstances should have put the defendant on notice that he needed to make inquiry into his ability to lawfully purchase products containing pseudoephedrine and that his as applied challenge failed. And it went on to conclude that the issue of whether the statute was a strict liability offense was not properly before it.
The evidence was sufficient with respect to 35 counts of possession of the precursor chemical pseudoephedrine with intent to manufacture methamphetamine. As to possession, the State introduced evidence that the defendant purchased pseudoephedrine, was seen “cooking meth,” and that others had purchased pseudoephedrine for him. The court rejected the defendant’s argument that the evidence was insufficient because the substance was not chemically identified as pseudoephedrine. The court concluded that the holding of State v. Ward regarding the need to identify substances through chemical analysis was limited to identifying controlled substances, and pseudoephedrine is not listed as a controlled substance in the North Carolina General Statutes.
The court rejected the defendant’s argument that the trial court erred by entering judgment for two separate counts of manufacturing methamphetamine. The defendant had argued that the crime was a single continuing offense and that therefore one of the conviction should be vacated. However two separate methamphetamine labs were discovered, in the trunk of a vehicle and in a storage unit. It was clear that the separate and distinct locations contained two separate methamphetamine manufacturing processes. Thus, the trial court did not err by entering judgment for two separate counts of manufacturing methamphetamine.
The trial court properly determined that a charge of conspiracy to manufacture methamphetamine was a Class C felony. The court rejected the defendant’s argument that G.S. 14-2.4(a) required punishment as a Class D felony (“Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty of a felony that is one class lower than the felony he or she conspired to commit[.]”). Here, G.S. 90-98 requires that conviction for conspiracy to manufacture methamphetamine is punished at the same level as manufacture of methamphetamine.
There was sufficient evidence of manufacturing methamphetamine. An officer observed the defendant and another person at the scene for approximately 40 minutes. Among the items recovered were a handbag containing a syringe and methamphetamine, a duffle bag containing a clear two liter bottle containing methamphetamine, empty boxes and blister packs of pseudoephedrine, a full pseudoephedrine blister pack, an empty pack of lithium batteries, a lithium battery from which the lithium had been removed, iodized salt, sodium hydroxide, drain opener, funnels, tubing, coffee filters, syringes, various items of clothing, and a plastic bottle containing white and pink granular material. The defendant’s presence at the scene, the evidence recovered, the officer’s testimony that the defendant and his accomplice were going back and forth in the area, moving bottles, and testimony that the defendant gave instructions to his accomplice to keep the smoke out of her eyes was sufficient evidence of manufacturing.
(1) The trial court did not commit plain error by failing to instruct the jury that to convict the defendant for trafficking by compounding it had to find he did so with an intent to distribute. Because the evidence showed that the defendant also manufactured by packaging and repackaging, the court concluded that the defendant failed to establish that a different outcome would probably have been reached had the instruction at issue been delivered at trial. (2) The court rejected the defendant’s argument that the evidence was insufficient to show trafficking in cocaine by manufacture. Where officers find cocaine or a cocaine-related mixture and an array of items used to package and distribute that substance, the evidence suffices to support a manufacturing conviction. Here, State’s evidence showed that more than 28 grams of cocaine and several items that are commonly used to weigh, separate, and package cocaine for sale were seized from the defendant’s bedroom.
(1) Reiterating that in a manufacturing case based on preparing or compounding the State must prove intent to distribute, the court found that no plain error had occurred where such a jury instruction was lacking. (2)No double jeopardy violation occurred when the defendant was convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance.
The offense of manufacturing a controlled substance does not require an intent to distribute unless the activity constituting manufacture is preparing or compounding. An indictment charging the defendant with manufacturing methamphetamine “by chemically combining and synthesizing precursor chemicals” does not charge compounding but rather charges chemically synthesizing and thus the State was not required to prove an intent to distribute.
(1) In a delivery of marijuana case, the evidence was sufficient to survive a motion to dismiss where it established that the defendant transferred less than five grams of marijuana for remuneration. The State need not show that the defendant personally received the compensation. (2) Where the evidence showed that the defendant transferred less than five grams of marijuana, the trial court erred by not instructing the jury that in order to prove delivery, the State was required to prove that the defendant transferred the marijuana for remuneration. The error, however, did not rise to the level of plain error.
In this case involving convictions for, among other offenses, sale of cocaine and delivery of cocaine, the trial court did not commit plain error in its application of G.S. 90-95 and in sentencing the defendant. At sentencing, the trial judge arrested judgment on the conviction of delivering cocaine, a Class H felony, and consolidated other convictions into the single count of selling cocaine, a Class G felony. On appeal the defendant argued that G.S. 90-95, which generally punishes the sale of cocaine more severely than the delivery of cocaine, is ambiguous as to the appropriate punishment for a judgment based on the “sale or delivery” of cocaine and that the rule of lenity requires that the lesser punishment be imposed. Taking note of the North Carolina Supreme Court’s decision in State v. Moore, 327 N.C. 378 (1990) establishing that a defendant may not be convicted of both the sale and the delivery of a controlled substance when both offenses arise from a single transfer, the court held that the purpose of Moore was accomplished here by the trial judge arresting judgment on the delivery of cocaine conviction and that the defendant did not show that plain error occurred.
(1) The evidence was sufficient to support a conviction for attempted sale or delivery of a counterfeit controlled substance. The charges arose out of a drug transaction that was prearranged by an undercover officer. The officer arranged the transaction with a target, but the defendant and other individuals showed up to execute it. The defendant and the others were arrested when they produced what appeared to be cocaine during the drug transaction. The State proceeded on the acting in concert theory. The officer had twice purchased cocaine from the target at a Bojangles restaurant in Warsaw, North Carolina. He contacted the target again for a third purchase and the target agreed to sell him one ounce of cocaine for $1200 at the same location. When the officer arrived, the defendant and the other men appeared in a vehicle and waved the officer over to their car. The target told the officer by phone “them are my boys, deal with them” and hung up. One of the men in the car displayed a bag of white powder, which was weighed and determined by the men to be one ounce. The men then were arrested, before an actual delivery of the substance or exchange of money occurred. The white powder was later determined to be counterfeit cocaine. This was sufficient evidence of transferring a counterfeit controlled substance under both the attempted sale and delivery theories of transfer.
(2) When a defendant both sells and delivers a counterfeit controlled substance as part of the same transaction, only one conviction may obtain. The focus of the offense is a transfer, committed either by sale or delivery. Here, the defendant was improperly convicted of two offenses—attempted sale and attempted delivery—arising from a single transfer. However because the defendant did not raise the issue on appeal, it was not before the court. The court however noted that the defendant could raise the issue in a Motion for Appropriate Relief.
The trial court erred by sentencing the defendant for both selling marijuana and delivering marijuana when the acts occurred as part of a single transaction.
For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance.
(1) The evidence was sufficient to support a conviction for attempted sale or delivery of a counterfeit controlled substance. The charges arose out of a drug transaction that was prearranged by an undercover officer. The officer arranged the transaction with a target, but the defendant and other individuals showed up to execute it. The defendant and the others were arrested when they produced what appeared to be cocaine during the drug transaction. The State proceeded on the acting in concert theory. The officer had twice purchased cocaine from the target at a Bojangles restaurant in Warsaw, North Carolina. He contacted the target again for a third purchase and the target agreed to sell him one ounce of cocaine for $1200 at the same location. When the officer arrived, the defendant and the other men appeared in a vehicle and waved the officer over to their car. The target told the officer by phone “them are my boys, deal with them” and hung up. One of the men in the car displayed a bag of white powder, which was weighed and determined by the men to be one ounce. The men then were arrested, before an actual delivery of the substance or exchange of money occurred. The white powder was later determined to be counterfeit cocaine. This was sufficient evidence of transferring a counterfeit controlled substance under both the attempted sale and delivery theories of transfer.
(2) When a defendant both sells and delivers a counterfeit controlled substance as part of the same transaction, only one conviction may obtain. The focus of the offense is a transfer, committed either by sale or delivery. Here, the defendant was improperly convicted of two offenses—attempted sale and attempted delivery—arising from a single transfer. However because the defendant did not raise the issue on appeal, it was not before the court. The court however noted that the defendant could raise the issue in a Motion for Appropriate Relief.
(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of possession with the intent to sell or deliver a counterfeit controlled substance. The court rejected the argument that to be considered a counterfeit controlled substance, the State must prove all three factors listed in G.S. 90-87(6)(b); the statute simply sets out factors that can constitute evidence that the controlled substance was intentionally misrepresented as a controlled substance. (2) The court found sufficient evidence of intent to sell or deliver the counterfeit controlled substance given the substance’s packaging and weight and the presence of other materials used for drug packaging.
There was sufficient evidence to support the defendant’s conviction of conspiracy to sell a counterfeit controlled substance. The court concluded that G.S. 90-87(6) (definition of counterfeit controlled substance) requires only that the substance be intentionally represented as a controlled substance, not that a defendant have specific knowledge that it is counterfeit. There was sufficient evidence that the defendant intentionally represented the substance as a controlled substance in this case: when an undercover officer asked for a “40” ($40 worth of crack cocaine), an accomplice produced a hard, white substance packaged in two small corner baggies, which the officers believed to be crack cocaine. There also was substantial evidence that the defendant conspired with the accomplice: the defendant initiated contact with the officers, directed them where to park, spoke briefly with the accomplice who emerged from a building with the substance, and the defendant brokered the deal.
For purposes of the counterfeit controlled substance offenses, a counterfeit controlled substance is defined, in part, by G.S. 90-87(6) to include any substance intentionally represented as a controlled substance. The statute further provides that “[i]t is evidence that the substance has been intentionally misrepresented as a controlled substance” if certain factors are established. The court rejected the defendant’s argument that for a controlled substance to be considered intentionally misrepresented, all of the factors listed in the statute must be proved, concluding that the factors are evidence that the substance has been intentionally misrepresented as a controlled substance, not elements of the crime. The court also concluded that the evidence was sufficient to establish that the defendant misrepresented the substance at issue—calcium carbonate—as crack cocaine where the defendant approached a vehicle, asked its occupants what they were looking for, departed to fill their request for “a twenty,” and handed the occupants a little baggie containing a white rock-like substance. Finally, the court held that the statute does not require the State to prove that the defendant had specific knowledge that the substance was counterfeit.
Criminal Offenses > Drug Offenses > Manufacture, sale, delivery, or possession with intent at or near school, childcare center, or public park
The evidence was insufficient to support a conviction for a drug offense within 1000 feet of a child care center. Under G.S. 90-95(e)(8), a defendant is punished as a Class E felon if he commits certain drug offenses within 1000 feet of the boundary of real property used for a child care center. G.S. 110-86(3) defines a child care center as “an arrangement where, at any one time, there are three or more preschool-age children or nine or more school-age children receiving child care.” Here, no evidence was elicited from any witness about how many children actually were in the facility at any given time; the witnesses only testified to the facility’s potential capacity. Thus, there was no evidence that the facility met the statutory definition. The court vacated and remanded for resentencing on the lesser included offenses.
Affirming the opinion below, the court held that G.S. 90-95(h)(4) (trafficking in opium) applies in cases involving prescription pharmaceutical tablets and pills. The court reasoned that the statute explicitly provides that criminal liability is based on the total weight of the mixture involved and that tablets and pills are mixtures covered by that provision.
The evidence was sufficient to prove a trafficking amount of methamphetamine. The court rejected the defendant’s argument that the entire weight of a mixture containing methamphetamine at an intermediate stage in the manufacturing process cannot be used to support trafficking charges because the mixture is not ingestible, is unstable, and is not ready for distribution. The defendant admitted that the methamphetamine had already been formed in the liquid and it was only a matter of extracting it from the mixture. Also, the statute covers mixtures.
In a case in which the defendant was charged with trafficking in cocaine by manufacturing, the trial court did not commit plain error by failing to instruct the jury on manufacturing cocaine. The evidence showed that the defendant possessed cocaine and a mixture of cocaine and rice that exceeded the statutory trafficking amount. The defendant admitted to having mixed rice with the cocaine to remove moisture. The court rejected the defendant’s argument that the combination of cocaine base and rice does not constitute a “mixture” as used in the trafficking statutes and concluded that the statutory reference to a “mixture” encompasses the mixture of a controlled substance with any other substance regardless of the reason for which that mixture was prepared.
The trial court did not err by allowing heroin recovered from the defendant's person outside the apartment to be combined with the heroin recovered from the apartment for the purposes of arriving at a trafficking amount for trafficking by possession. The defendant was observed entering the apartment immediately before his sale of 3.97 grams of heroin to an undercover officer. Upon arrest, the defendant said that he had more heroin in the apartment, and provided the key and consent for the officers to enter the apartment where 0.97 grams of additional heroin were recovered. This additional heroin was packaged for sale in the same manner as the heroin sold to the officer. The defendant admitted to being a drug dealer. There was no evidence any of the heroin was for the defendant's personal use. Under these circumstances, the defendant possessed the heroin in the apartment simultaneously with the heroin sold to the officer.
The evidence was insufficient to support the defendant’s methamphetamine trafficking convictions because G.S. 90-95(h)(3b) requires the state to prove the actual weight of the methamphetamine in a mixture. The defendant was convicted of trafficking by possession and manufacture of 400 grams or more methamphetamine. The state’s evidence consisted of 530 grams of a liquid that contained a detectable amount of methamphetamine. The exact amount of methamphetamine was not determined. The court noted that the trafficking statutes for methaqualone, cocaine, heroin, LSD, and MDA/MDMA specifically contain the clause “or mixture containing such substance,” whereas G.S. 90-95(h)(3b) for methamphetamine and as amphetamine does not contain that clause. [Author’s note: in 2009 the statute was revised to provide: “[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of methamphetamine or any mixture containing such substance shall be guilty of a felony which felony shall be known as ‘trafficking in methamphetamine[.]’” (emphasis added).].
On appeal in this drug case from an unpublished opinion by the court of appeals, the supreme court held that there was sufficient evidence to support a conviction for conspiracy to traffic in opium. Specifically, the court pointed to evidence, detailed in the opinion, that the defendant agreed with another individual to traffic in opium by transportation. The court rejected the defendant’s argument that the evidence showed only a “the mere existence of a relationship between two individuals” and not an unlawful conspiracy.
The evidence was sufficient to show a drug trafficking conspiracy where there was evidence of an implied agreement between the defendant and his accomplice. The defendant was present at the scene and aware that his accomplice was involved producing methamphetamine and there was sufficient evidence that the defendant himself was involved in the manufacturing process. The court concluded: “Where two subjects are involved together in the manufacture of methamphetamine and the methamphetamine recovered is enough to sustain trafficking charges, we hold the evidence sufficient to infer an implied agreement between the subjects to traffic in methamphetamine by manufacture and withstand a motion to dismiss.”
The term “deliver,” used in the trafficking statutes, is defined by G.S. 90-87(7) to “mean[] the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” Thus, an actual delivery is not required. In a prosecution under G.S. 90-95, the defendant bears the burden of establishing that an exemption applies, such as possession pursuant to a valid prescription. In this case, the trial court properly denied the defendant’s motion to dismiss and properly submitted to the jury the issue of whether the defendant was authorized to possess the controlled substances.
(1) The trial court did not commit plain error by failing to instruct the jury that to convict the defendant for trafficking by compounding it had to find he did so with an intent to distribute. Because the evidence showed that the defendant also manufactured by packaging and repackaging, the court concluded that the defendant failed to establish that a different outcome would probably have been reached had the instruction at issue been delivered at trial. (2) The court rejected the defendant’s argument that the evidence was insufficient to show trafficking in cocaine by manufacture. Where officers find cocaine or a cocaine-related mixture and an array of items used to package and distribute that substance, the evidence suffices to support a manufacturing conviction. Here, State’s evidence showed that more than 28 grams of cocaine and several items that are commonly used to weigh, separate, and package cocaine for sale were seized from the defendant’s bedroom.
(No. COA10-534). The trial court erred by submitting to the jury the charge of possession with intent to manufacture cocaine because it is not a lesser-included offense of the charged crime of trafficking by possession of cocaine. However, possession of cocaine is a lesser of the charged offense; because the jury convicted on possession with intent to manufacture, the court remanded for entry of judgment on possession of cocaine.
In this Henderson County case, defendant appealed his convictions for trafficking in methamphetamine by possession and trafficking in opium by possession, arguing error in (1) denying his motion to dismiss the opium charge; (2) instructing the jury that opioids were included in the definition of “opium or opiate” at the time of the offense; and (3) considering evidence of improper factors at sentencing. The Court of Appeals majority disagreed, finding no error.
In November of 2018, the Henderson County Sheriff's Office executed a search warrant at defendant’s residence, and relevant to the current appeal, discovered a bottle of white pills later determined to be hydrocodone. At the trial, defendant moved to dismiss all charges, and the trial court denied defendant’s motion. During jury instructions, the trial court explained “that opioids were included in the definition of ‘opium or opiate’ under [G.S.] 90-95(h)(4)” over defendant’s objection. Slip Op. at 2. At the sentencing hearing after defendant’s conviction, the State mentioned that defendant rejected a plea deal and conducted additional drug activity at his home. Defendant subsequently appealed.
Looking to (1), the Court of Appeals disagreed with defendant’s argument that hydrocodone was not a prohibited substance under G.S. 90-95(h)(4) at the time of the alleged offense. In State v. Garrett, 277 N.C. App. 493 (2021), the court held that opioids “qualify as an opiate within the meaning of the statute.” Slip Op. at 5, quoting Garrett at 497-98. The court explained that the same language from the 2016 statute interpreted in Garrett applied in to the 2017 version considered in the current case, and substantial evidence showed defendant possessed the opioid, supporting denial of his motion. This conclusion also addressed (2), as the court explained it was not error to provide a jury instruction that “opium or opiates” included “opioids” for purposes of the statute. Id. at 10.
In (3), the court found no evidence of improper sentencing, explaining “[a]lthough the State mentioned Defendant’s failure to accept a plea offer, there is no evidence in the record that the trial court specifically commented on or considered the refusal.” Id. at 12.
Judge Murphy dissented by separate opinion, and would have held that the court was not bound by the opinion in Garrett because the General Assembly subsequently defined “opioids” in the 2017 version of G.S. 90-87(18a). Id. at 14.
No double jeopardy violation occurred when the defendant was convicted of trafficking in methamphetamine, manufacturing methamphetamine, and possession of methamphetamine based on the same illegal substance.
In this possession of marijuana paraphernalia case, the State presented sufficient evidence to establish that the defendant constructively possessed a marijuana pipe found in a crashed vehicle. Although the defendant did not have exclusive possession of the vehicle, sufficient incriminating circumstances existed to establish constructive possession, including that the defendant was driving the vehicle; the pipe was found on the driver’s side floorboard; and the defendant admitted ownership of a small amount of marijuana found on his person.
The trial court did not err by denying the defendant’s motion to dismiss the charge of possession of drug paraphernalia. When the arresting officer approached the vehicle, the defendant was sitting in the back seat and did not immediately show his hands at the officer’s request. Officers subsequently found the glass pipe on the rear floor board of the seat where the defendant was sitting. The defendant admitted that he smoked methamphetamine out of the pipe while in the car. Additionally Fisher testified that the pipe belonged to the defendant and the defendant had been carrying it in his pocket.
Where a drug paraphernalia indictment charged the defendant with possession of plastic baggies used to package and repackage pills but the State introduced no evidence of plastic baggies at trial, the trial court erred by denying the defendant’s motion to dismiss. At trial, the State’s evidence showed that the defendant used a bottle to deliver the pills. The court stated: “We hold that the specific items alleged to be drug paraphernalia must be enumerated in the indictment, and that evidence of such items must be presented at trial.”
In this DWI case in which a State Highway Patrol officer arrested the defendant, a non-Indian, on Indian land, the court rejected the defendant’s argument that the State lacked jurisdiction over the crime. The court noted that pursuant to the Tribal Code of the Eastern Band of the Cherokee Indians and mutual compact agreements between the Tribe and other law enforcement agencies, the North Carolina Highway Patrol has authority to patrol and enforce the motor vehicle laws of North Carolina within the Qualla boundary of the Tribe, including authority to arrest non-Indians who commit criminal offenses on the Cherokee reservation. Thus, the court concluded, “Our State courts have jurisdiction over the criminal offense of driving while impaired committed by a non-Indian, even where the offense and subsequent arrest occur within the Qualla boundary of the Cherokee reservation.”
The State’s evidence tended to show that the defendant was driving a van with a trailer attached behind it when he cut off two motorcycles, made rude gestures, and caused one of the motorcycles to crash. The driver of the motorcycle sustained serious injuries and a passenger died as a result of the accident. The defendant slowed down briefly and then fled the scene.
(1) The trial court did not err in denying the defendant’s motion to dismiss the charges of felony hit and run because there was sufficient evidence that the defendant knew or reasonably should have known, that the vehicle he was driving was involved in a crash and that someone was killed or seriously injured as a result. First, the defendant argued that there was insufficient evidence that he knew or reasonably should have known that the vehicle he was operating was involved in a crash or that the crash had resulted in serious bodily injury because the evidence could have shown that the defendant could not have seen behind his van and trailer or that there may not have been contact between the victim’s motorcycle and the defendant’s trailer. The Court of Appeals rejected this argument for multiple reasons, largely centering on evidence of the defendant’s awareness of the position of his vehicle relative to the motorcyclists and other traffic and evidence that the defendant slowed down immediately following the crash and then sped away at a high rate of speed.
(2) The defendant argued that the trial court erred in giving the jury an instruction on flight as evidence of the defendant’s consciousness of guilt because “leaving the scene of the offense, which could be considered flight under the challenged instruction, is an essential element of felony hit and run.” Slip op. at ¶ 37. The Court of Appeals disagreed with the defendant’s assertion that flight is an essential element of felony hit and run, explaining that flight requires some evidence of a defendant taking steps to avoid apprehension while a driver’s motive for leaving the scene of a crash for purposes of felony hit and run is immaterial. The court went on to find the instruction supported by evidence of the defendant speeding away, later lying about why his tire was blown out, and asking for directions to a destination that would allow him to arrive there without traveling on the interstate.
Hit and run resulting in injury is a lesser included offense of hit and run resulting in death. The defendant was indicted for a felonious hit and run resulting in death. At trial the State requested that the jury be instructed on the offense of felonious hit and run resulting in injury. Over the defendant’s objection, the trial court agreed to so instruct the jury. The jury found the defendant guilty of that offense. On appeal, the court held that because felonious hit and run resulting in injury is a lesser included offense of hit and run resulting in death no error occurred.
In a hit and run case involving failure to remain at the scene, the trial court committed plain error by failing to instruct the jury with respect to willfulness where the defendant’s sole defense was that his departure was authorized and required to get assistance for the victim. The court continued:
To prevent future confusion and danger, we also take this opportunity to address the State’s argument that N.C.G.S. § 20-166 prohibits a driver from leaving the scene of an accident to obtain medical care for himself or others and instead only authorizes a driver to temporarily leave to in order to call for help. While it is true that subsection (a) instructs that a driver may not leave the scene of an accident “for any purpose other than to call for a law enforcement officer, to call for medical assistance or medical treatment,” we do not read statutory subsections in isolation. Instead, statutes dealing with the same subject matter must be construed in pari materia and reconciled, if possible.
Applying that principle here leads us to conclude that, even though N.C.G.S. §20-166(a) instructs that drivers may only leave for the limited purpose of calling for aid, that authorization is expanded by N.C.G.S. § 20-166(b)’s requirement that drivers, among other things, “shall render to any person injured in such crash reasonable assistance, including the calling for medical assistance” permitted by subsection (a). (Emphasis added). The plain language of this provision indicates that a driver’s obligation to an injured person permits him to take action including but not limited to that which is authorized by subsection (a). Accordingly, it is clear that taking a seriously injured individual to the hospital to receive medical treatment is not prohibited by the statute in the event that such assistance is reasonable under the circumstances. In fact, the violation of that directive is itself a Class 1 misdemeanor.
In this Carteret County case, the defendant appealed from his conviction for habitual impaired driving and habitual felon status. The defendant was treated at the hospital following his arrest and the State obtained his medical records pursuant to a court order. Those records, which were introduced at trial, included a toxicology lab report of the defendant’s alcohol concentration. The defendant argued on appeal that the trial court erred by denying his motion to suppress the medical records because disclosure of the records violated his Fourth Amendment rights. The Court of Appeals found no prejudicial error. Even assuming for the sake of argument that the trial court erred, the Court held that any error was harmless in light of the overwhelming evidence of the defendant’s guilt. That evidence included a strong odor of alcohol on the defendant, defendant’s slurred speech, defendant’s inability to stand up straight, his poor performance on standardized field sobriety tests, his urinating on the police station floor, and opinion testimony from two law enforcement officers that the defendant was appreciably impaired.
In this Rowan County case, the defendant appealed after being convicted of impaired driving after a jury trial. The conviction stemmed from a 2017 incident in which the defendant was found unresponsive on a fallen moped in the middle of the road. Field sobriety tests and a toxicology test indicated that the defendant was impaired. The trial court denied the defendant’s motion to dismiss and the defendant was convicted. On appeal, the defendant contended that the trial court erred by denying his motion to dismiss because there was insufficient evidence that he drove the moped. Though no witness testified to seeing the defendant driving the moped, the Court of Appeals concluded that there was sufficient circumstantial evidence that he did. He was found alone, wearing a helmet, lying on the double yellow line in the middle of the road and mounted on the seat of the fallen moped. The Court thus found no error.
In this Graham County case, the defendant was convicted of felony death by vehicle and driving while impaired after she drove off the road and killed her passenger. Though first responders did not initially think the defendant had ingested any impairing substance, the Highway Patrol suspected impairment. A blood sample revealed the presence of Xanax, Citalopram, and Lamotrigine, but was inconclusive as to Hydrocodone, which the blood analyst testified could have been masked by the Lamotrigine, metabolized, or present in too small a quantity to be measured. (1) On appeal, the defendant argued that the trial court erred by denying her motion to dismiss based on insufficient evidence of impairment to support her charge of DWI, and, in turn, her charge of felony death by motor vehicle. The Court of Appeals disagreed. Viewing the evidence in the light most favorable to the State, and allowing the State every reasonable inference arising from the evidence, the court concluded that there was sufficient evidence of impairment, including the results from standardized field sobriety tests, the defendant’s statement that she had consumed alcohol and Hydrocodone, and the opinion of the Highway Patrol’s drug recognition expert. The defendant’s conflicting evidence—including that the accident occurred at night on a curvy mountain road and that her weight and diabetes affected the results of her sobriety tests—did not allow the trial court to grant a motion to dismiss, because conflicting evidence is for the jury to resolve.
(2) The defendant also argued on appeal that the trial court should not have allowed the State’s expert to testify as to possible reasons why Hydrocodone did not show up in the defendant’s blood test, because that testimony violated Rule 702 in that it was not based on scientific or technical knowledge, was impermissibly based on unreliable principles and methods, and was prejudicial due to the stigma associated with Hydrocodone on account of the opioid crisis. The Court of Appeals concluded that even if the issue was properly preserved for appeal, and even if the admission of the expert’s statement was an abuse of discretion in violation of Rule 702, it was not prejudicial given the defendant’s admission that she took 20 mg of Hydrocodone approximately one hour and fifteen minutes before the accident.
The defendant was stopped by a state trooper who saw her driving erratically. The defendant smelled of alcohol, had slurred and mumbled speech, and stumbled and staggered when she got out of her car. She registered a positive result on a portable breath test and was arrested for driving while impaired. She subsequently refused to submit to a breath test. The defendant pled guilty in district court to driving while impaired and appealed. In superior court, the defendant moved to suppress evidence and requested a bench trial. The superior court denied the motion to suppress and found the defendant guilty. At sentencing, the court found the grossly aggravating factor of a prior impaired driving conviction within seven years of the date of the offense and imposed a Level Two sentence. The defendant appealed, arguing that the trial court erred in denying her motion to suppress, the evidence was insufficient to support her conviction, and that the trial court erred in in sentencing her based on a grossly aggravating factor for which the State filed to provide the statutorily required notice.
(1) The court of appeals determined that the defendant did not properly preserve the denial of her motion to suppress for review on appeal as she did not renew her objection when the evidence was offered for consideration at her bench trial. And because the defendant did not argue plain error on appeal, the court did not review the denial of the motion for plain error.
(2) The court of appeals determined that the trial court did not err by denying defendant’s motion to dismiss for insufficient evidence. The trooper testified as to his opinion that the defendant was impaired by alcohol. He based that opinion on seeing the defendant stumbling and staggering when she got out of her car, smelling a moderate odor of alcohol on her breath, hearing her mumbled and slurred speech, and observing her erratic driving. Evidence of the defendant’s refusal to submit to a breath test at the police station also was admissible evidence of impairment. The appellate court held that, viewed in the light most favorable to the State, this evidence was sufficient to show that the defendant was under the influence of an impairing substance.
(3) The State failed to file notice of its intent to rely at sentencing upon the aggravating factor of a prior impaired driving conviction. Such notice is required by G.S. 20-179(a1)(1) for misdemeanor impaired driving charges appealed to superior court. The court explained that the right to notice of the State’s intent to rely on a prior conviction is a statutory right, not a constitutional one, and thus may be waived. The defendant admitted to the prior conviction on cross-examination, and her counsel stipulated at sentencing that she “‘did have the prior DWI.’” Slip op. at 12. Moreover, defense counsel did not object to the court’s consideration of the prior conviction as an aggravating factor. The court of appeals determined that the defendant’s admission and her counsel’s stipulation along with her failure to object to lack of notice at the sentencing hearing amounted to a waiver of her statutory right to notice.
In this felony death by vehicle case involving the presence of narcotics in an unknown quantity in the defendant’s blood, the evidence was sufficient to establish that the defendant was impaired. The State’s expert testified that Oxycodone and Tramadol were present in the defendant’s blood; tests revealed the presence of these drugs in amounts equal to or greater than 25 nanograms per milliliter — the “detection limits” used by the SBI for the test; the half-lives of Oxycodone and Tramadol are approximately 3-6 and 4-7 hours, respectively; she was unable to determine the precise quantities of the drugs present in the defendant’s blood; and she was unable to accurately determine from the test results whether the defendant would have been impaired at the time of the accident. The defendant’s motion to dismiss was denied and the defendant was found guilty of felony death by motor vehicle based on a theory of impairment under G.S. 20-138.1(a)(1) (“While under the influence of an impairing substance”). On appeal the court rejected the defendant’s argument the State’s evidence merely showed negligence regarding operation of his vehicle as opposed to giving rise to a reasonable inference that he was impaired. The court noted that it was undisputed that the defendant ingested both drugs on the day of the accident and that they were present in his blood after the crash. It continued: “Taking these facts together with the evidence at trial regarding Defendant’s lack of awareness of the circumstances around him and his conduct before and after the collision, reasonable jurors could — and did — find that Defendant was appreciably impaired.” Specifically, the court noted: the labels on the medicine bottles warned that they may cause drowsiness or dizziness and that care should be taken when operating a vehicle after ingestion, and these substances are Schedule II and Schedule IV controlled substances, respectively; the defendant testified that he failed to see the victim on the side of the road despite the fact that it was daytime, visibility was clear, the road was straight, and three eyewitnesses saw the victim before the defendant hit her; the defendant admitted that he was unaware that his vehicle had hit a human being despite the fact that the impact of the crash was strong enough to cause the victim’s body to fly 59 feet through the air; and the defendant testified that his brakes had completely stopped functioning when he attempted to slow down immediately before the accident, he decided not to remain at the scene, instead driving his truck out of the ditch and to his home despite the fact that he had no operable brakes. Finding that this was sufficient evidence for the issue of impairment to go to the jury, the court noted that under Atkins v. Moye, 277 N.C. 179 (1970), impairment can be shown by a combination of evidence that a defendant has both (1) ingested an impairing substance; and (2) operated his vehicle in a manner showing he was so oblivious to a visible risk of harm as to raise an inference that his senses were appreciably impaired.
The trial court erred by denying the defendant’s motion to dismiss in this impaired driving case. Responding to a report of a motor vehicle accident, officers found a Jeep Cherokee on the side of the road. The vehicle’s right side panel was damaged and the officer saw approximately 100 feet of tire impressions on the grass leading from the highway to the stopped vehicle. The first ten feet of impressions led from the highway to a large rock embankment that appeared scuffed. Beyond the embankment, the impressions continued to where the vehicle was stopped. No one was in the vehicle or at the scene. An officer checked the vehicle’s records and found it was registered to the defendant. The officer then set out in search of the defendant, who he found walking alongside the road about 2 or 3 miles away. The officer saw a mark on the defendant’s forehead and noticed that he was twitching and unsteady on his feet. When asked why he was walking along the highway, the defendant responded: “I don’t know, I’m too smoked up on meth.” The officer handcuffed the defendant for safety purposes and asked if he was in pain. When the defendant said that he was, the officer called for medical help. During later questioning at the hospital, the defendant confirmed that he had been driving the vehicle and said that it had run out of gas. He added that he was hurt in a vehicle accident that occurred a couple of hours ago. Upon inquiry, the defendant said that he had not used alcohol but that he was “on meth.” The officer didn’t ask the defendant or anyone else at the hospital whether the defendant had been given any medication. The defendant appeared dazed, paused before answering questions, and did not know the date or time. The officer informed the defendant that he would charge him with impaired driving and read the defendant his Miranda rights. Upon further questioning the officer did not ask the defendant when he had last consumed meth, when he became impaired, whether he had consumed meth prior to or while driving, or what the defendant did between the time of the accident and when he was found on the side of the road. At trial the State presented no lab report regarding the presence of an impairing substance in the defendant’s body. The court agreed with the defendant that the State failed to present substantial evidence of an essential element of DWI: that the defendant was impaired while he was driving. Contrasting the case from one where the evidence was held to be sufficient, the court noted, in part, that the State presented no evidence regarding when the first officer encountered the defendant on the side of the road. The officer who spoke with him at the hospital did not do so until more than 90 minutes after the accident was reported, and at this time the defendant told the officer he had been in an accident a couple of hours ago. Moreover, the State presented no evidence of how much time elapsed between the vehicle stopping on the shoulder and the report of an accident being made. And, there was no testimony by any witness who observed the defendant driving the vehicle at the time of the accident or immediately before the accident. The court concluded that although there was evidence that the defendant owned the vehicle and the defendant admitted driving and wrecking the vehicle, he did not admit to being on meth or otherwise impaired when he was driving the vehicle. And the State presented no evidence, direct or circumstantial, to establish that essential element of the crime.
The trial court did not err by denying the defendant’s motion to dismiss a DWI charge, which alleged that the defendant was under the influence of alprazolam. The evidence was sufficient where it showed: the defendant drove her vehicle in the public drive-through area of a restaurant where she collided with another vehicle; responding officers noted that her eyes were red and glassy and her speech was slurred; the defendant admitted to officers at the scene that she had consumed alprazolam, a Schedule IV controlled substance, that morning; an officer testified that the defendant presented six of six clues indicating impairment after administering the HGN test; and another officer testified that after performing his 12-step DRE evaluation on the defendant, he determined that she was impaired by a central nervous system depressant.
For habitual impaired driving, the three prior impaired driving convictions need not be from different court dates. On appeal, the defendant alleged that the indictment for habitual impaired driving was facially invalid because two of the underlying impaired driving convictions were from the same court date. The indictment alleged the following prior charges: impaired driving on November 26, 2012, with a conviction date of September 30, 2015 in Johnson County; impaired driving on June 22, 2012, with a conviction date of December 20, 2012 in Wake County; and impaired driving on June 18, 2012, with a conviction date of December 20, 2012 in Wake County. The statute contains no requirement regarding the timing of the three prior impaired driving convictions, except that they occur within 10 years of the current charge.
In this impaired driving case the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss at the close of the State’s evidence. The defendant had argued that there was no independent evidence, other than his admission, to establish that he was operating a motor vehicle at any relevant time period. Here, the defendant admitted to the detective that he had been driving the vehicle and described in detail the route he took to get to the scene. When the detective approached the vehicle, the engine was not running but it was parked under an overhang area by the front door of a hotel, where guests typically stop to check in. The detective observed the defendant sitting in the drivers seat and the vehicle was registered to the defendant. The circumstantial evidence, along with the defendant’s admissions to driving the vehicle and the route he took, was sufficient evidence for the jury to determine that the defendant drove the vehicle.
The trial court did not err by denying the defendant’s motion to dismiss a DWI charge. Here, after the officer stopped the defendant’s vehicle, he noticed a moderate amount of alcohol coming from the defendant’s breath, the defendant had red and glassy eyes, the defendant admitting to consuming alcohol hours before, the officer noted five out of six indicators of impairment on the HGN test and the officer believed that the defendant was impaired.
(1) In this impaired driving case, there was insufficient evidence that a cut through on a vacant lot was a public vehicular area within the meaning of G.S. 20-4.01(32). The State argued that the cut through was a public vehicular area because it was an area “used by the public for vehicular traffic at any time” under G.S. 20-4.01(32)(a). The court concluded that the definition of a public vehicular area in that subsection “contemplates areas generally open to and used by the public for vehicular traffic as a matter of right or areas used for vehicular traffic that are associated with places generally open to and used by the public, such as driveways and parking lots to institutions and businesses open to the public.” In this case there was no evidence concerning the lot’s ownership or that it had been designated as a public vehicular area by the owner. (2) Even if there had been sufficient evidence to submit the issue to the jury, the trial court erred in its jury instructions. The trial court instructed the jury that a public vehicular area is “any area within the State of North Carolina used by the public for vehicular traffic at any time including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley or parking lot.” The court noted that
the entire definition of public vehicular area in [G.S.] 20-4.01(32)(a) is significant to a determination of whether an area meets the definition of a public vehicular area; the examples are not separable from the statute. . . . [As such] the trial court erred in abbreviating the definition of public vehicular area in the instructions to the jury and by preventing defendant from arguing his position in accordance with [G.S.] 20-4.01(32)(a).”
In this felony death by vehicle case, even without evidence of the defendant’s blood-alcohol, the evidence was sufficient to establish that the defendant was impaired. When an officer interviewed the defendant at the hospital, she admitted drinking “at least a 12-pack.” The defendant admitted at trial that she drank at least seven or eight beers, though she denied being impaired. The first responding officer testified that when he arrived on the scene, he noticed the strong odor of alcohol and when he spoke with defendant, she kept asking for a cigarette, slurring her words. He opined that she seemed intoxicated. Finally, the doctor who treated the defendant at the hospital diagnosed her with alcohol intoxication, largely based on her behavior.
In an impaired driving case, there was sufficient evidence apart from the defendant’s extrajudicial confession that he was driving the vehicle. Specifically, when an officer arrived at the scene, the defendant was the only person in the vehicle and he was sitting in the driver's seat.
(1) There was sufficient evidence that the defendant was operating the vehicle in question. At trial a witness testified about her observations of the car, which continued from her first sighting of it until the car stopped in the median and the police arrived. She did not observe the driver or anyone else exit the car and the car did not move. The witness talked to an officer who arrived at the scene and then left. An officer testified that when she arrived at the scene eight minutes after the call went out, another officer was already talking to the driver who was still seated in the car. (2) The evidence was sufficient to show that the Intoxilyzer test was administered on the defendant at the time in question. Jacob Sanok, a senior identification technician with the local bureau of identification testified that he read the defendant his rights for a person requested to submit to a chemical analysis to determine alcohol concentration; the defendant indicated that he understood those rights; Sanok administered the Intoxilyzer tests to the defendant; and Sanok gave the defendant a copy of the Intoxilyzer test. The State introduced the rights form signed by the defendant; Sanok’s “Affidavit and Revocation Report of Chemical Analyst[,]” showing that Sanok performed the Intoxilyzer test on the defendant; and the printout from the Intoxilyzer test showing that the defendant, who was listed by name, had a reported alcohol concentration of “.25g/210L[.]” Even though Sanok did not directly identify the defendant as the person to whom he administered the Intoxilyzer test, an officer identified the defendant in the courtroom as the person who was arrested and transported to the jail to submit to the Intoxilyzer test.
The evidence was sufficient to sustain the defendant’s conviction for impaired driving when there was evidence of two .08 readings. The court rejected the defendant’s argument that since the blood alcohol reading was the lowest for which he could be convicted under the statute, the margin of error of the Intoxilyzer should be taken into account to undermine the State’s case against him.
The evidence was sufficient to survive a motion to dismiss. Evidence of faulty driving, along with evidence of consumption of alcohol and cocaine, is sufficient to show a violation of G.S. 20-138.1. Witnesses observed the defendant’s behavior as he was driving, not sometime after. Multiple witnesses testified as to his faulty driving and other conduct, including that he “had a very wild look on his face” and appeared to be in a state of rage; drove recklessly without regard for human life; drove in circles on a busy street and on a golf course; twice collided with other motorists; drove on the highway at speeds varying between 45 and 100 mph; drove with the car door open and with his left leg and both hands hanging out; struck a patrol vehicle; and exhibited “superhuman” strength when officers attempted to apprehend him. Blood tests established the defendant’s alcohol and cocaine use, and one witness testified that she smelled alcohol on the defendant.
In a case in which there was no admissible evidence as to the defendant’s blood alcohol level, the court found that the evidence was insufficient to show that the defendant drove while impaired, even though it showed that she had been drinking before driving. The accident at issue occurred when the defendant collided with someone or something extending over the double yellow line and into her lane of traffic. Under these circumstances, the fact of the collision itself did not establish faulty or irregular driving indicating impairment.
A defendant may be convicted for both second-degree murder (for which the evidence of malice was the fact that the defendant drove while impaired and had prior convictions for impaired driving) and impaired driving.
A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.
The trial court erred by imposing punishment for felony death by vehicle and felony serious injury by vehicle when the defendant also was sentenced for second-degree murder and assault with a deadly weapon inflicting serious injury based on the same conduct. G.S. 20-141.4(a) prescribes the crimes of felony and misdemeanor death by vehicle, felony serious injury by vehicle, aggravated felony serious injury by vehicle, aggravated felony death by vehicle, and repeat felony death by vehicle. G.S. 20-141.4(b), which sets out the punishments for these offenses, begins with the language: “Unless the conduct is covered under some other provision of law providing greater punishment, the following classifications apply to the offenses set forth in this section[.]” Second-degree murder and assault with a deadly weapon inflicting serious injury provide greater punishment than felony death by vehicle and felony serious injury by vehicle. The statute thus prohibited the trial court from imposing punishment for felony death by vehicle and felony serious injury by vehicle in this case.
In this Pitt County case, defendant appealed his convictions, arguing double jeopardy as DWI is a lesser included offense of felony serious injury by vehicle. The Court of Appeals arrested judgment on the DWI conviction, but found no prejudicial error justifying remand for resentencing.
Defendant was charged with DWI, felony hit and run, and felony serious injury by vehicle, for a collision in August of 2020. After defendant was convicted of the charges and attained habitual felon status, the trial court consolidated the DWI and felony hit and run convictions, imposing a sentence of 89 to 119 months. The trial court also imposed a 101-to-134-month sentence for the felony serious injury by vehicle conviction and ordered the sentences to run concurrently.
The court first established that “[a]s the State correctly noted at trial, DWI is a lesser included offense of felony serious injury by vehicle.” Slip Op. at 7. However, because the sentences were consolidated in separate judgments and ordered to run concurrently, defendant was not forced to serve additional time for the DWI conviction. Normally, the court would arrest judgment and remand for resentencing when it is unable to determine what weight the trial court gave to the arrested conviction. Here, because defendant’s sentences were separated, and he received a longer sentence in the presumptive range for the felony serious injury by vehicle conviction, the arrested judgment would not impact the ultimate length of his sentence.
In this felony death by vehicle case involving the presence of narcotics in an unknown quantity in the defendant’s blood, the evidence was sufficient to establish that the defendant was impaired. The State’s expert testified that Oxycodone and Tramadol were present in the defendant’s blood; tests revealed the presence of these drugs in amounts equal to or greater than 25 nanograms per milliliter — the “detection limits” used by the SBI for the test; the half-lives of Oxycodone and Tramadol are approximately 3-6 and 4-7 hours, respectively; she was unable to determine the precise quantities of the drugs present in the defendant’s blood; and she was unable to accurately determine from the test results whether the defendant would have been impaired at the time of the accident. The defendant’s motion to dismiss was denied and the defendant was found guilty of felony death by motor vehicle based on a theory of impairment under G.S. 20-138.1(a)(1) (“While under the influence of an impairing substance”). On appeal the court rejected the defendant’s argument the State’s evidence merely showed negligence regarding operation of his vehicle as opposed to giving rise to a reasonable inference that he was impaired. The court noted that it was undisputed that the defendant ingested both drugs on the day of the accident and that they were present in his blood after the crash. It continued: “Taking these facts together with the evidence at trial regarding Defendant’s lack of awareness of the circumstances around him and his conduct before and after the collision, reasonable jurors could — and did — find that Defendant was appreciably impaired.” Specifically, the court noted: the labels on the medicine bottles warned that they may cause drowsiness or dizziness and that care should be taken when operating a vehicle after ingestion, and these substances are Schedule II and Schedule IV controlled substances, respectively; the defendant testified that he failed to see the victim on the side of the road despite the fact that it was daytime, visibility was clear, the road was straight, and three eyewitnesses saw the victim before the defendant hit her; the defendant admitted that he was unaware that his vehicle had hit a human being despite the fact that the impact of the crash was strong enough to cause the victim’s body to fly 59 feet through the air; and the defendant testified that his brakes had completely stopped functioning when he attempted to slow down immediately before the accident, he decided not to remain at the scene, instead driving his truck out of the ditch and to his home despite the fact that he had no operable brakes. Finding that this was sufficient evidence for the issue of impairment to go to the jury, the court noted that under Atkins v. Moye, 277 N.C. 179 (1970), impairment can be shown by a combination of evidence that a defendant has both (1) ingested an impairing substance; and (2) operated his vehicle in a manner showing he was so oblivious to a visible risk of harm as to raise an inference that his senses were appreciably impaired.
The trial court did not err in instructing the jury with respect to proximate cause as to the charge of felonious serious injury by vehicle. The defendant argued that the language of the statute “forecloses the possibility of the state proving proximate cause in conjunction with some other concurrent cause.” The court disagreed, citing prior case law rejecting this argument.
G.S. 20-141.4(c) does not bar simultaneous prosecutions for involuntary manslaughter and death by vehicle; it only bars punishment for both offenses when they arise out of the same death.
There was sufficient evidence of felonious serious injury by motor vehicle. The defendant had argued that his willful action in attempting to elude arrest was the proximate cause of the victim’s injuries, not his impaired driving. The court rejected this argument concluding that even if his willful attempt to elude arrest was a cause of the injuries, his driving under the influence could also be a proximate cause.
A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.
There was sufficient evidence to support an open container charge. Specifically, the evidence was sufficient to establish constructive possession, including, among other things, that the trooper saw the can near the console area of the vehicle that the defendant was driving; the defendant initially provided the trooper a false name; and the defendant’s eyes were red and glassy and his speech was slurred.
There was sufficient evidence of reckless driving where the defendant was intoxicated; all four tires of her vehicle went off the road; distinctive “yaw” marks on the road indicated that she lost control of the vehicle; the defendant’s vehicle overturned twice; and the vehicle traveled 131 feet from the point it went off the road before it flipped, and another 108 feet after it flipped.
The evidence was insufficient to adjudicate the thirteen-year-old juvenile delinquent for reckless driving under G.S. 20-140(b). The evidence showed that the juvenile was driving a vehicle registered to his mother at the time of the wreck and that the vehicle that he was driving collided with a utility pole. However there was no evidence showing that the collision resulted from careless or reckless driving. The court concluded that the “mere fact that an unlicensed driver ran off the road and collided with a utility pole does not suffice to establish a violation of [G.S.] 20-140(b)."
In this Mecklenburg County case, the Court of Appeals found no error by the trial court when denying defendant’s motion to dismiss for insufficient evidence.
In November of 2016, a Charlotte-Mecklenburg police officer received a call from dispatch to look out for a white sedan that had been involved in a shooting. Shortly thereafter, the officer observed defendant speed through a stop sign, and the officer followed. Defendant continued to run stop signs, and after the officer attempted to pull him over, defendant led officers on a high-speed pursuit through residential areas until he was cut off by a stopped train at a railroad crossing. Defendant was indicted and eventually convicted for felonious speeding to elude arrest.
On appeal, defendant argued that the trial court erred by failing to dismiss the charge, because the state did not admit sufficient evidence showing the officer was lawfully performing his duties when attempting to arrest defendant. The crux of defendant’s argument relied on the language of the indictment, specifically that the officer was attempting to arrest defendant for discharging a firearm into an occupied vehicle. Although defendant argued that evidence had to show this was the actual duty being performed by the officer, the court explained that the description of the officer’s duty in the indictment was surplusage. Although the state needed to prove (1) probable cause to arrest defendant, and (2) that the officer was in the lawful discharge of his duties, it did not need to specifically describe the duties as that was not an essential element of the crime, and here the court found ample evidence of (1) and (2) to sustain the conviction. Slip Op. at 9-10. The court also found that defendant failed to preserve his jury instruction request on the officer’s specific duty because the request was not submitted in writing.
The defendant in this case “yelled, cursed, and argued with school staff” in the front office about the school’s tardy slip policy after bringing his child to school late, and the school called the police after the defendant initially refused to go outside. When officers arrived, the defendant was outside getting back into his truck with his child, and bystanders were staring at the defendant. Concluding that the disturbance call likely involved the defendant, the first officer approached the truck and told the defendant he was being detained. After the officer talked to the principal, who asked to have the defendant banned from the property, a second officer approached the vehicle and asked for the defendant’s identification. The defendant refused to provide any identification other than his name. When the defendant raised his voice and demanded to know what laws he was violating and the basis for his detention, the officer told him he would be arrested for obstructing their investigation if he did not comply. When the defendant moved to put the vehicle in gear, the officer reached in and attempted to remove the keys from the ignition. The defendant pulled forward, briefly pinning the officer’s arm in the car, before reversing and then driving away. Officers initially pursued the car, but broke off the chase due to the presence of a child in the vehicle. The defendant crashed his vehicle a short time later and was arrested. The defendant was charged with felony fleeing to elude an officer engaged in the lawful performance of his duties under G.S. 20-141.5. The defendant filed a pretrial motion to suppress all evidence on the grounds that his arrest was unlawful, which was denied, and later made a motion to dismiss at trial for insufficiency of the evidence, which was also denied. The defendant was convicted, received a suspended 6-17 month sentence, and appealed.
On appeal, the defendant argued that his motion to dismiss should have been granted because there was insufficient evidence that the officers were acting in the lawful performance of their duties. Specifically, the defendant argued on appeal that the officers had no reasonable suspicion to detain him and no probable cause to arrest him, and the attempted arrest also failed to comply with statutory requirements. The appellate court rejected all three arguments. First, although the officers had only briefly spoken with the principal and were still investigating the matter, under the totality of the circumstances (including the initial phone call, the defendant’s behavior upon seeing the officers, and the fact that bystanders and others inside the school were staring at the defendant) the officers had reasonable and articulable suspicion that the defendant may have been interrupting or disturbing the operation of the school in violation of G.S. 14-288.4(a)(6) (“Disorderly conduct”). Second, since the defendant was operating a motor vehicle but refused to provide his identification to the officers, there was probable cause to arrest him for a misdemeanor under G.S. 20-29 (“Surrender of license”). Finally, the appellate court rejected the defendant’s argument that the officers failed to comply with G.S. 15A-401 during the attempted arrest. The defendant argued that the officers did not provide the defendant with “notice of their authority and purpose for arresting him” as required by the statute, and unlawfully used force to enter his vehicle. The officer testified at trial that he told the defendant he would be arrested for obstructing an investigation, and was only prevented from further citing to G.S. 20-29 because the defendant was arguing with and talking over the officer. Similarly, the officer’s forcible entry only occurred because the defendant locked the doors and refused to exit the vehicle, and the officer reasonably believed that attempting to take the keys was necessary to prevent his escape. Viewed in the light most favorable to the state, this was sufficient evidence for a jury to find that the officers were acting in lawful performance of their duties, and the motion to dismiss was properly denied.
In this Johnston County case, defendant appealed her conviction for misdemeanor fleeing to elude arrest, arguing insufficient evidence of her specific intent to evade arrest. The Court of Appeals found no error.
In October of 2020, officers attempted to pull over defendant for driving through a stop sign at an apartment complex. Defendant initially did not stop, and instead sped up in a residential area, turned on her hazard lights, and called 911 to inquire if the vehicle attempting to pull her over was actually a police vehicle. Even after being advised that the car attempting to pull her over was a police vehicle, defendant kept driving, ignoring several stop signs and exceeding the speed limit. Defendant eventually returned to the apartment complex and stopped, where she was arrested. She was eventually convicted of misdemeanor possession of marijuana and misdemeanor fleeing to elude arrest.
Considering defendant’s argument of insufficient evidence of her intent to evade arrest, the Court of Appeals disagreed, pointing to the substantial evidence of defendant’s flight from officers. Defendant drove for several miles, passing many safe areas to pull over, at a rate of speed above the posted speed limit. She also threw marijuana out of the vehicle as she drove away from officers, and initially refused to comply when she stopped at the apartment complex. The court explained “[t]his is not a case of a nervous motorist taking a moment longer than necessary to stop for an officer in order to pull into a well-lit or populated parking lot.” Slip Op. at 7, quoting State v. Cameron, 223 N.C. App. 72 (2012).
In a speeding to elude case, the court rejected the defendant’s argument that she did not intend to elude an officer because she preferred to be arrested by a female officer rather than the male officer who stopped her. The defendant’s preference in this regard was irrelevant to whether she intended to elude the officer.
For the reasons stated in the dissenting opinion below, the court reversed State v. Lindsey, 219 N.C. App. 249 (Mar. 6, 2012). In the opinion below the court had held, over a dissent, that the trial court erred by denying the defendant’s motion to dismiss where an officer, who lost sight of the vehicle was unable to identify the driver.
In a case in which a second officer died in a vehicular accident when responding to a first officer’s communication about the defendant’s flight from a lawful stop, the evidence was sufficient to establish that the defendant’s flight was the proximate cause of death to support a charge of fleeing to elude arrest and causing death. The evidence was sufficient to allow a reasonable jury to conclude that the second officer’s death would not have occurred had the defendant remained stopped after the first officer pulled him over and that the second officer’s death was reasonably foreseeable. The court rejected the defendant’s argument that the second officer’s contributory negligence broke the causal chain.
In this Cabarrus County case, defendant appealed her convictions for felony speeding to elude arrest, arguing error in denial of her motion to dismiss for insufficient evidence of speeding in excess of 15 mph over the speed limit. The Court of Appeals found no error.
In September of 2018, defendant was pulled over by officers for an expired plate. During the traffic stop, defendant failed to provide a license or registration, and gave the officers an incorrect name, but the officers determined her correct name through a search on their computer terminal. The officers asked defendant to confirm her name 20-30 times, but she refused; after this exchange, one of the officers struck the window attempting to remove defendant from the vehicle, and at that point defendant sped off from the traffic stop. The officers pursued defendant, and although she initially eluded them by driving at a high rate of speed, she eventually crashed and was discovered by the officers. Two aggravating factors elevated defendant’s offense to a felony, (1) speeding in excess of 15 mph over the speed limit, and (2) driving with a revoked license.
The only issue on appeal was whether sufficient evidence was admitted to show speeding in excess of 15 mph over the speed limit, as defendant stipulated that her license was revoked at the time of the incident. The Court of Appeals examined three elements, whether the prosecution admitted sufficient evidence of: (1) the posted speed limit on the relevant highway, (2) defendant’s speed eluding arrest, and (3) the officers’ precise speed in pursuit of defendant. Examining (1), the court explained that testimony from one of the officers regarding the posted speed limit established substantial evidence that the limit was 45 mph. Turning to (2), the court noted that testimony from one of the officers regarding an estimated speed for the defendant was adequate to support the allegation that defendant was traveling in excess of 15 mph over the speed limit. The court found the officer had a “reasonable opportunity” to observe the speed of defendant’s vehicle, and any question about the credibility of the officer’s testimony was one for the jury, not a matter of admissibility. Slip Op. at 13-14. Finally, considering (3), the court found that while no direct testimony established the speed of the officers in pursuit, sufficient evidence of guilt was present, including a photograph of the serious wreck of defendant’s car, and the testimony offered by the officer regarding her excessive speed. As a result, the court found sufficient evidence to support each element of the offense and no error.
In this felony speeding to elude case, the State presented sufficient evidence that the defendant caused property damage in excess of $1000, one of the elements of the charge. At trial, an officer testified that the value of damages to a guardrail, vehicle, and house and shed exceeded $1000. Additionally, the State presented pictures and videos showing the damaged property. The court noted that because the relevant statute does not specify how to determine the value of the property damage, value may mean either the cost to repair the property damage or the decrease in value of the damaged property as a whole, depending on the circumstances of the case. It instructed: “Where the property is completely destroyed and has no value after the damage, the value of the property damage would likely be its fair market value in its original condition, since it is a total loss.” It continued, noting that in this case, it need not decide that issue because the defendant did not challenge the jury instructions, and the evidence was more than sufficient to support either interpretation of the amount of property damage. Here, the officer’s testimony and the photos and video establish that besides hitting the guard rail, the defendant drove through a house and damaged a nearby shed. “The jury could use common sense and knowledge from their ‘experiences of everyday life’ to determine the damages from driving through a house alone would be in excess of $1000.
In a felony speeding to elude case there was sufficient evidence that the defendant drove recklessly. An officer testified that the defendant drove 82 mph in a 55 mph zone and that he was weaving around traffic; also a jury could infer from his testimony that the defendant crossed the solid double yellow line.
The trial court did not err by instructing the jury that in order to constitute an aggravating factor elevating speeding to elude arrest to a felony, driving while license revoked could occur in a public vehicular area. Although the offense of driving while license revoked under G.S. 20-28 requires that the defendant drive on a highway, driving while license revoked can aggravate speeding to elude even if it occurs on a public vehicular area. While the felony speeding to elude arrest statute lists several other aggravating factors with express reference to the motor vehicle statutes proscribing those crimes (e.g., passing a stopped school bus as proscribed by G.S. 20-217), the aggravating factor of driving while license revoked does not reference G.S. 20-28.
Even if the trial court erred in its jury instruction with regard to the required state of mind, no plain error occurred in light of the overwhelming evidence of guilt.
(1) In a felony speeding to elude case, the trial court did not err by giving a disjunctive jury instruction that allowed the jury to convict the defendant if it found at least two of three aggravating factors submitted. The defendant had argued that the trial court should have required the jury to be unanimous as to which aggravating factors it found. (2) The trial judge did not commit plain error by failing to define the aggravating factor of reckless driving in felony speeding to elude jury instructions. The defendant had argued that the trial court was obligated to include the statutory definition of reckless driving in G.S. 20-140.
Criminal Offenses > Motor Vehicle Offenses > Speeding to Elude > Multiple Convictions and Punishments
Double jeopardy barred convicting the defendant of speeding and reckless driving when he also was convicted of felony speeding to elude arrest, which was raised from a misdemeanor to a felony based on the aggravating factors of speeding and driving recklessly. The court determined that the aggravating factors used in the felony speeding to elude conviction were essential elements of the offense for purposes of double jeopardy. Considering the issue of whether legislative intent compelled a different result, the court determined that the General Assembly did not intend punishment for speeding and reckless driving when a defendant is convicted of felony speeding to elude arrest based on the aggravating factors of speeding and reckless driving. Thus, the court arrested judgment on the speeding and reckless driving convictions.
In this driving while license revoked case, because the defendant introduced evidence that he did not receive actual notice from the DMV that his license was revoked, the trial court erred by refusing to instruct the jury that it could find the defendant guilty only if he had knowledge of his revocation. The State’s evidence included copies of four dated letters from the DMV addressed to the defendant stating that his license had been suspended. However, the defendant testified that he never received any of those letters and was unaware that his license had been suspended. He suggested that his father might have received and opened the letters because he lived at the same address as the defendant. At trial, the defendant requested the instruction that to be guilty he must have had knowledge of the revocation. The trial court denied this request. To prove driving while license revoked, the State must prove that the defendant had actual or constructive knowledge of the revocation. If the State presents evidence that the DMV mailed notice of the defendant’s license revocation to the address on file for the defendant at least four days prior to the incident, there is a prima facie presumption that the defendant received the notice. However the defendant can rebut the presumption. If the defendant presents some evidence that he or she did not receive the notice or some other evidence sufficient to raise the issue, the trial court must instruct the jury that guilty knowledge is necessary for conviction. Here, the defendant testified that he did not receive the notice and offered an explanation as to why it may not have reached him. He was thus entitled to an instruction that he must have knowledge of the revocation. The court went on to hold that the error was prejudicial.
On appeal from an unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 794 S.E.2d 921 (2016), finding no error in this animal cruelty case, the court per curiam affirmed. The defendant appealed from her conviction for felony cruelty to animals, contending that the trial court erred by refusing to instruct the jury on the lesser included offense of misdemeanor cruelty to animals. The Court of Appeals held that because no evidence was presented from which a jury could find that the defendant intentionally injured the dog by dragging him behind her vehicle but did so without malice, the trial court was not required to instruct on the lesser included offense.
In this Durham County case, defendant appealed his conviction for felony animal cruelty, arguing that (1) the removal of the name of a horse from the indictment rendered it invalid, and (2) the prosecutor’s recitation of caselaw during closing argument represented gross impropriety. The Court of Appeals found no error and affirmed the conviction.
In July of 2016, Durham County Animal Services responded to a report of several deceased horses on the property where defendant kept his horses. On the scene, Animal Services discovered the skeletal remains of three horses and one still-living horse, a chestnut mare, in severely emaciated condition. This horse was initially identified as “Diamond” in the indictment, but the prosecution successfully moved to strike the name from the indictment prior to trial. Defendant was found guilty of felony animal cruelty under N.C.G.S. § 14-360(b) in January 2021.
Reviewing defendant’s first argument on appeal, the Court of Appeals noted that under N.C.G.S. § 15A-923(e) an indictment may not be amended, but “surplus language which ‘in no way change[s] the nature or the degree of the offense charged’ may be stricken from an indictment.” Slip Op. at ¶20, quoting State v. Peele, 16 N.C. App. 227 (1972). The court explained that under N.C.G.S. § 14-360(b), the name of an animal is not considered an essential element of the crime, and applicable precedent established that it was acceptable to identify animals by general descriptions in indictments. Slip Op. at ¶24, citing State v. Credle, 91 N.C. 640 (1884). Because there was only one horse at issue in this case, and striking its name “Diamond” caused no confusion or difficulty for defendant when presenting his defense, the court found no error in striking the horse’s name from the indictment.
The court next considered the prosecutor’s recitation of case law during closing argument. Noting that defense counsel did not object during trial, the court explained that defendant must show the remarks were “so grossly improper that the trial court committed reversible error by failing to intervene ex mero motu,” a heightened standard of review. Slip Op. at ¶27, quoting State v. Jones, 355 N.C. 117 (2002). The court emphasized that “the prosecutor’s statements must have been so improper that they ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Slip Op. at ¶29, quoting Darden v. Wainwright, 477 U.S. 168 (1983). Based upon this high standard for relief, and the substantial evidence admitted at trial supporting defendant’s conviction, the court could not establish that defendant was deprived of a fair trial.
The evidence was sufficient to establish misdemeanor cruelty to animals under G.S. 14-360(a) on grounds of torment. The odor of cat feces and ammonia could be smelled outside of the property and prevented officers from entering without ventilating and using a breathing apparatus; while the house was ventilated, residents from two blocks away were drawn outside because of the smell; fecal matter and debris blocked the front door; all doors and windows were closed; old and new feces and urine covered everything, including the cats; the cats left marks on the walls, doors and windows, trying to get out of the house.
The trial court did not err when instructing the jury on the offense of unlawfully taking deer with the assistance of artificial lighting. The court rejected the defendant’s argument that the trial court expressed an opinion when giving the jury instructions, concluding that the trial court gave the jury an accurate statement of the prima facie evidentiary requirements for the charged offense.
(1) In this hunting without a license case, the trial court did not err by denying defendant Oxendine’s request to instruct the jury on legal justification. The defendant argued that he was exempt under G.S. 113-276 from the requirement of a hunting license because he had been engaged in a Native American religious hunting ceremony. That statute applies to “member[s] of an Indian tribe recognized under Chapter 71A of the General Statutes.” Although the defendant argued that he is “an enrolled member of the Haudenosaunee Confederacy of the Tuscarora Nation,” he is not a member of a Native American tribe recognized under Chapter 71A. Additionally the defendant did not show that he was hunting on tribal land, as required by the statute. (2) The evidence was sufficient to convict defendant Pedro of hunting without a license. Based on the facts presented, the court rejected the defendant’s argument that the State’s evidence was insufficient to show that he “was preparing to immediately kill a dove.”
Fees that the defendant StubHub charged for its services did not violate G.S. 14-344 (sale of admission tickets in excess of printed price) [Author’s note: As the court noted, after the present case was initiated, the General Assembly amended G.S. 14-344 and enacted G.S. 14-344.1 to exempt internet ticket sales accompanied by a ticket assurance guarantee from the strictures otherwise established by that statutory provision.]
A code enforcement officer (“Wayman”), accompanied by police officers, was at a property owned by the defendant to execute an administrative warrant for the removal of nuisance building materials. While they were standing on the street in front of the property, the defendant drove up in his car and the passenger side mirror struck Wayman in the hip. The police officers shouted at the defendant to stop his car and get out. The defendant stopped his car, but as Wayman walked by in front of the vehicle, the car moved forward again and stuck Wayman in the knee. The officers repeatedly demanded that the defendant exit his car, and after he complied the defendant stated that Wayman “wanted to be hit.” The defendant was arrested and charged with assault with a deadly weapon. After being convicted in district court, the defendant appealed for trial de novo in superior court, and the jury found him guilty of the lesser charge of simple assault.
On appeal, the defendant argued that the trail court erred by denying his motion to dismiss for insufficient evidence regarding the defendants’ intent. The appellate court disagreed, and found there was circumstantial evidence of intent based on the witness testimony and officers’ body-cam video. The defendant swerved towards Wayman with his car, and when he exited the car he was visibly upset with Wayman, which would allow a reasonable person to believe that the defendant intended to hit Wayman or at least to put him in fear of immediate bodily harm. But the trial court erred by not instructing the jury on the defense of accident. The defendant testified that it was a chaotic scene, he was only trying to “squeeze by” Wayman and park his car, and he did not hit anyone on purpose. That constituted sufficient evidence from which the jury could have concluded the defendant’s action was unintentional, lawful, and not done with reckless disregard for the safety of others, so it was reversible error to deny the defendant’s request for an instruction on the defense of accident.
In a case involving attempted murder and other charges, the defendant was not entitled to a jury instruction on the defense of accident. The defendant testified that his gun discharged accidentally during the fight with the victim. The evidence, however, even considered in the light most favorable to the defendant, shows the defendant was engaged in wrongdoing when he shot the victim. The defendant admitted that he physically assaulted the victim and had his hand on the trigger of his gun when it discharged. By his own admission, he was engaged in wrongful conduct when he shot the victim. He thus was not entitled to a jury instruction on the defense of accident.
In a child sexual assault case, the trial court did not err by failing to instruct the jury on the defense of accident as requested by the defendant. The defendant, who assisted high school sports teams, was charged with sexual offense and indecent liberties with students in connection with stretching and massages he provided to injured student athletes. The trial court properly denied the defendant’s request for the instruction “given the complete absence of any evidence tending to show that he digitally penetrated [the victim’s] vagina with his fingers in an accidental manner.” The court noted that at trial the defendant denied doing the acts in question.
The trial court did not err by failing to instruct on accident. The defense is unavailable when the defendant was engaged in misconduct at the time of the killing. Here, the defendant was engaged in misconduct—he broke into a home with the intent to commit robbery and the killing occurred during a struggle over the defendant’s gun. The court also rejected the defendant’s argument that because he abandoned his plan to commit the robbery, his right to the defense of accident was “restored.” Even assuming that the defendant abandoned his plan, that fact would not break the sequence of events giving rise to the shooting.
Where the trial court submitted an instruction on automatism as a defense to a charge of felony child abuse, it was not required to instruct the jury on lesser included child abuse offenses. Automatism is a complete defense to a criminal charge and did not render any of the elements of felonious child abuse in conflict.
The trial court did not commit plain error by instructing the jury that the defendant had the burden of persuasion to prove the defense of automatism. Automatism is an affirmative defense, and the burden is on the defendant to prove its existence to the jury.
In an impaired driving case, the trial court did not err by declining to instruct on automatism or unconsciousness. The defendant asserted that even though unconsciousness through voluntary consumption of alcohol or drugs does not support an instruction as to automatism or unconsciousness, his unconsciousness could have been the result of the effects of voluntary consumption of alcohol combined with the effects of Alprazolam, a drug that he had been prescribed to control his panic attacks. The court concluded that there was no evidence that the defendant’s consumption of alcohol or his medication was involuntary.
The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property is a general intent crime, diminished capacity offers no defense.
Although the defendant met his burden of production with respect to diminished capacity in this murder and assault case in which the defendant stuck various persons with a vehicle, the State introduced sufficient evidence of specific intent to kill. The State did not present expert witnesses. Rather, the State’s evidence focused on the defendant's acts before, during, and after the crime as showing that he had the specific intent to kill necessary for first-degree murder based on premeditation and deliberation and the other felony assaults. The State’s evidence showed for example that the defendant specifically targeted the victims and that he did not just hit them and drive on but rather continued to injure them further after the first impact.
In a murder case, the trial court did not err by denying the defendant’s request for a jury instruction on diminished capacity. The defendant had argued that he was entitled to the instruction based on evidence that he suffered from post-traumatic stress syndrome, alcohol dependence, and cognitive impairment resulting from a head injury, causing him to possibly overreact to stress or conclude that deadly force was necessary to deal with a threatening situation. The court found no evidence casting doubt on the defendant’s ability to premeditate, deliberate, or form the specific intent to kill necessary for guilt of first-degree murder on the basis of malice, premeditation, and deliberation.
The trial court did not err by failing to instruct the jury on duress as a defense to a charge of first-degree murder on the basis of premeditation and deliberation. Duress is not a defense to such a charge.
In this attempted felony breaking or entering and habitual felon case, the trial court did not err by denying the defendant’s request to instruct the jury on duress. To be entitled to an instruction on duress, a defendant must present evidence that he feared he would suffer immediate death or serious bodily injury if he did not act. Moreover, duress cannot be invoked as an excuse by someone who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. Here, the evidence showed that the defendant’s accomplice drove the defendant’s vehicle to the home in question while the defendant was a passenger. The accomplice, carrying a knife, and the defendant, carrying a lug wrench walked to the premises. After realizing that the resident was taking their pictures, both fled. When asked if he attempted to get away from his accomplices at any point, the defendant testified only that his accomplices “pretty much had control of my car;” he also testified that at some point he “did get scared” of his accomplices because they talked about stealing his truck. He admitted however that they never pulled a weapon on him. Additionally, although the defendant argued that his accomplices held him against his will for several days, he had at least two opportunities to seek help and escape, including one instance when he was alone with an officer. Based on this evidence, the defendant was not entitled to a jury instruction on duress.
The court rejected the defendant’s argument that he could not be convicted of aiding and abetting a sexual offense and child abuse by sexual act on grounds that the person who committed the acts—his son—was under duress from the defendant. Even if the son was under duress, his acts were still criminal.
The trial court did not err in denying the defendant’s request for a jury instruction on duress. The defendant voluntarily joined with his accomplices to commit an armed robbery, he did not object or attempt to exit the vehicle as an accomplice forced the victims into the car, and the defendant took jewelry from one victim while an accomplice pointed a gun at her. There was no evidence that any coercive measures were directed toward the defendant prior to the crimes being committed. Any threats made to the defendant occurred after the crimes were committed.
The defendant was charged with solicitation of a child by computer under G.S. 14-202.3 after he responded to a Craigslist personal advertisement posted by a police detective posing as a 15-year-old. At trial the defendant requested a jury instruction on the defense of entrapment, which the trial court denied. The defendant was convicted and appealed. A divided Court of Appeals affirmed, with the majority concluding that the defendant’s request for an entrapment instruction was properly denied when the evidence showed that he was willing to engage in criminal activity and defendant failed to show that he was not predisposed to commit the act. State v. Keller, ___ N.C. App. ___, 828 S.E.2d 578 (2019). The dissenting judge would have concluded that the defendant was entitled to the instruction.
The Supreme Court reversed the Court of Appeals and remanded for a new trial. A defendant is entitled to jury instructions on entrapment if he presents “some credible evidence” tending to show that he was a victim of entrapment. Here, viewing the evidence in the light most favorable to the defendant, the Court concluded that he made the requisite showing. The defendant testified that he initially believed the undercover detective to be 18 years old because Craigslist requires age verification to post a personal ad. And once the detective said via email that he was 15, the defendant repeatedly said they would have to wait to have sex until the detective was of age, at which point the detective steered the conversation back toward sex. Taking those facts as true, the Court concluded that a reasonable juror could have found that the defendant did not have a willingness or predisposition to commit the charged crime, and that he was thus entitled to an instruction on entrapment. The Court also concluded that the trial court erred by finding that the defendant’s request for a jury instruction on entrapment was inconsistent with his testimony that he traveled to meet the detective to help him, not to commit a sexual act with him. In general, a defendant cannot simultaneously deny committing an act and also say that he was entrapped into committing it. Here, however, the defendant did not deny the act, but rather only disputed his criminal intentions for the meeting. The entrapment defense therefore remained available. Finally, the Court held that the error was prejudicial and remanded for a new trial.
Justice Newby dissented, joined by Justice Morgan, stating his view that the entrapment defense is not available to a defendant who does not admit to all the elements of the charged offense, and that the defendant’s continued pursuit of the undercover detective even after learning that he was underage showed a predisposition to commit criminal acts that barred an entrapment defense.
In this drug trafficking case, the trial court did not err by refusing the defendant’s request to instruct the jury on the affirmative defense of entrapment. The trial court did err, however, by entering a civil judgment against the defendant for attorney’s fees without first giving the defendant an opportunity to be heard on that issue.
Viewed in the light most favorable to the defendant, the evidence showed that the defendant was persuaded by Jason Ford, a confidential informant working with the Onslow County Sheriff’s Office, to commit the crimes for which he was convicted. As to the jury instruction on entrapment, the court explained that under precedent from the North Carolina Supreme Court,
The defense of entrapment is available when there are acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime and when the origin of the criminal intent lies with the law enforcement agencies. We note that this is a two step test and a showing of trickery, fraud or deception by law enforcement officers alone will not support a claim of entrapment. The defendant must show that the trickery, fraud or deception was practiced upon one who entertained no prior criminal intent.
(quoting and adding emphasis to State v. Hageman, 307 N.C. 1, 28 (1982)). The court found that the defendant’s evidence showed the first element of entrapment but did not show the second, noting that the defendant’s testimony established that (1) the criminal opportunity at issue originated with a third party who was not working for or affiliated with the State; (2) the defendant told Ford about the opportunity; and (3) Ford thereafter encouraged the defendant to take advantage of the criminal opportunity and offered to help facilitate. Reviewing the record, the court found that it demonstrated that Ford “merely afford[ed] the defendant an opportunity to commit the crime[s]” which he was predisposed to commit and, therefore, the defendant was not entitled to an instruction on entrapment.
The State conceded that the indigent defendant was not given an opportunity to be heard before the trial court entered the civil judgment against him for attorney’s fees and that this was error. The court set aside the civil judgment and remanded for a new hearing on attorney’s fees.
In this drug case, the trial court erred by denying the defendant’s request for an instruction on entrapment. The court agreed with the defendant that the plan to sell the pills originated in the mind of the defendant’s friend Eudy, who was acting as an agent for law enforcement, and the defendant was only convinced to do so through trickery and persuasion. It explained:
[A]ccording to defendant’s evidence, Eudy was acting as an agent for the Sherriff’s office when she approached defendant, initiated a conversation about selling pills to her buyer, provided defendant the pills, and coached her on what to say during the sale. While it is undisputed that defendant was a drug user, defendant claimed that she had never sold pills to anyone before. In fact, the only reason she agreed to sell them was because she was “desperate for some pills,” and she believed Eudy’s story that she did not want her husband to find out what she was doing. Defendant’s testimony established that Eudy told defendant exactly what to say such that, during the encounter, defendant was simply playing a role which was defined and created by an agent of law enforcement. In sum, this evidence, if believed, shows that Eudy not only came up with the entire plan to sell the drugs but also persuaded defendant, who denied being a drug dealer, to sell the pills to [the undercover officer] by promising her pills in exchange and by pleading with her for her help to keep the sale secret from her husband. Furthermore, viewing defendant’s evidence as true, she had no predisposition to commit the crime of selling pills.
(1) In a delivery of cocaine case where the defendant presented sufficient evidence of the essential elements of entrapment, the trial court erred by refusing to instruct the jury on that defense. The defendant’s evidence showed that an undercover officer tricked the defendant into believing that the officer was romantically interested in the defendant in order to persuade the defendant to obtain cocaine for him, that the defendant had no predisposition to commit a drug offense such as delivering cocaine, and that the criminal design originated solely with the officer. The court rejected the State’s argument that the evidence showed that the officer merely afforded the defendant the opportunity to commit the offense.
In a drug trafficking case where the record failed to indicate that law enforcement officers utilized acts of persuasion, trickery or fraud to induce the defendant to commit a crime, or that the criminal design originated in the minds of law enforcement rather than with the defendant, the trial court did not err in failing to instruct the jury on the defense of entrapment.
The trial court did not err by denying the defendant’s request for an entrapment instruction where no credible evidence suggested that he would not have committed the crime except for law enforcement’s persuasion, trickery or fraud or that the crime was the creative production of law enforcement authorities.
In a drug trafficking case, the trial court did not err by denying the defendant’s request for a jury instruction on entrapment. After an individual named Shaw repeatedly called the defendant asking for cocaine, the defendant told Shaw he would “call a guy.” The defendant called a third person named Armstrong to try to obtain the cocaine. When Armstrong did not answer his phone, the defendant drove to his house. The next day, the defendant picked up Armstrong and drove him to a location previously arranged to meet Shaw. The court found that these actions illustrate the defendant’s “ready compliance, acquiescence in, [and] willingness to cooperate in the criminal plan” and thus his predisposition. Additionally, the court noted, the defendant admitted that he had been involved as a middle man on a prior deal; this admission further demonstrates predisposition.
The trial court did not err by denying the defendant’s request for an instruction on the defense of entrapment by estoppel. The defendant was charged with violating G.S. 14-454.1(a)(2) (unlawful to “willfully . . . access or cause to be accessed any government computer for the purpose of . . . [o]btaining property or services by means of false or fraudulent pretenses, representations, or promises”). The State alleged that the defendant, who worked for a private license plate agency, submitted false information into the State Title and Registration System (STARS) so that a car dealer whose dealer number was invalid could transfer title. The defendant asserted that she was told by a colleague named Granados, who was a licensed title clerk, how to enter the transaction. The court concluded that Granados was not a governmental official; Granados was an employee of the license plate agency, not the State of North Carolina, and the agency was a private contractor. It stated that a government license does not transform private licensees into governmental officials.
The trial court erred by dismissing larceny by employee charges based on the theory of entrapment by estoppel. The defendant, a public works supervisor, was accused of selling “white goods” and retaining the proceeds. The court concluded that while officials testified that they were aware that some “white goods” were sold and that the money was deposited to a common pool, no evidence was offered to show that government officials expressly condoned the defendant pocketing money from that fund. Thus, the explicit permission requirement for entrapment by estoppel was not met.
In a drug case, the evidence failed to establish that the defendant was entitled to the entrapment defense as a matter of law. Thus, the trial court did not err by denying the defendant’s motion to dismiss on grounds of entrapment and submitting the issue to the jury.
The trial judge did not err by refusing to instruct on entrapment. The defendant was convicted of soliciting a child by computer with intent to commit an unlawful sex act. The “child” was a law enforcement officer pretending to be a 14 year old in an adults-only Yahoo chat room. The court concluded that there was no credible evidence that the criminal design originated in the minds of the government officials, rather than defendant, such that the crime was the product of the creative activity of the government. Instead, it stated, the evidence indicates that undercover deputies merely provided the opportunity for the defendant and, when presented with that opportunity, the defendant pursued it with little hesitance.
The defendant was convicted of and sentenced to death for killing his wife, who had filed for divorce, his two teenage daughters, and his wife’s grandmother, with whom the victims were staying. Before trial, the defendant filed a motion arguing that Kansas’ law on insanity violated the Due Process Clause of the Fourteenth Amendment. Before statutory changes enacted in 1995, Kansas followed the M’Naghten test for insanity. Under that test, a defendant is not guilty by reason of insanity if either (1) he did not know the nature and quality of the act he was doing or (2) if he did know, he did not know his act was wrong. In 1995, Kansas legislatively abolished the M’Naghten insanity defense and adopted a mens rea defense. The pertinent statute provides that it is a defense to prosecution that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged. The statute provides further that a mental disease or defect is not otherwise a defense. The Kansas courts rejected the defendant’s due process challenge. The U.S. Supreme Court affirmed.
The six-member majority began by observing that the M’Naghten insanity formulation consists of two tests: a cognitive incapacity test (the defendant did not know the nature and quality of his act); and a moral incapacity test (the defendant did not know his act was wrong). The Kansas’ mens rea defense, according to the Court, retains the cognitive incapacity test for insanity and jettisons the moral incapacity test. For a state rule on criminal liability to violate the Due Process Clause, it must offend “some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Slip Op. at 14. The Court held that the moral capacity test is not such a principle and that the Due Process Clause does not compel states to adopt an insanity defense that turns on a defendant’s ability to know his act was wrong. The Court also noted that Kansas law allows a defendant to present mental health evidence at sentencing and that a judge may replace a defendant’s prison term with commitment to a mental health facility.
The three dissenting justices argued that Kansas had eliminated the core of the insanity defense by disallowing the defense for a defendant, who by reason of mental illness, “lacked the mental capacity necessary for his conduct to be considered morally blameworthy.” Dissenting Op. at 1. The dissent gave two examples to illustrate its view.
In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Id. at 1–2.
Under Kansas’ law, the defendant in Prosecution One could defend against the charge by showing that his mental illness prevented him from forming the mens rea for murder (intentional killing of a human being). The defendant in Prosecution Two has no defense under Kansas law because he acted with the necessary level of intent. The dissent observed that mental illness typically does not deprive individuals of the ability to form intent; rather, it affects their motivations for acting. As a result, Kansas’ approach requires conviction of a broad swath of defendants who would be adjudged not guilty under any traditional formulation of the insanity defense. In the dissent’s view, this result “offends deeply entrenched and widely recognized moral principles underpinning our criminal laws.” Id. at 21. The dissent rejected the idea that consideration of mental capacity at sentencing satisfies due process, finding that an insane defendant should not be found guilty in the first place.
No plain error occurred when the trial judge instructed the jury on insanity using N.C.P.I.—Crim. 304.10. The defendant had argued that the trial court erred by failing to instruct the jury that the insanity defense applies if a defendant believed, due to mental illness, that his conduct was morally right.
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.
Where the evidence showed that part of a child abduction occurred in North Carolina jurisdiction was established and no jury instruction on jurisdiction was required. The defendant took the child from North Carolina to Florida. The court noted that jurisdiction over interstate criminal cases is governed by G.S. 15A-134 ("[i]f a charged offense occurred in part in North Carolina and in part outside North Carolina, a person charged with that offense may be tried in this State"). It was undisputed that the defendant picked up the child in North Carolina. Therefore, the child abduction occurred, at least in part, in North Carolina.
In this Bladen County case, the Supreme Court reversed the Court of Appeals majority decision overturning defendant’s conviction and ordering a new trial. The Supreme Court found no error with the denial of defendant’s request for a jury instruction on justification as a defense to possession of a firearm by a felon.
Defendant went to trial for first degree murder and possession of a firearm by a felon in November of 2018. Defense counsel requested an instruction on the affirmative defense of justification to the firearm possession charge, and the trial court denied this request. Explaining the basis for the defense, the Supreme Court noted that justification has four elements outlined by State v. Mercer, 373 N.C. 459 (2020), and only two, the second and third elements, were in question in the immediate case. Slip Op. at 6-7. The court outlined the second element under Mercer, that defendant “did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct,” and concluded that defendant failed to meet this burden by returning to the apartments where an altercation had occurred. Id. at 8. Because defendant placed himself in a situation where criminal conduct could occur, he could not meet this burden, and the court did not conduct any further analysis on the third Mercer factor.
Justice Morgan, joined by Justices Hudson and Earls, dissented, and would have affirmed the Court of Appeals majority decision. Id. at 10.
The defendant was indicted for possession of a firearm—specifically, “a New England Firearms Pardner Model 12 Gauge Shotgun”—by a person previously convicted of a felon. The defendant initially told officers, who were investigating a report of a domestic dispute at the defendant’s home, that he had no knowledge about a shotgun, but he later admitted to one of the deputies that he had thrown the shotgun into the woods and told the deputy where he had thrown it. At trial, the defendant testified that he had been involved in an altercation with his stepson but did not remember taking the shotgun from him. He further testified that he did not take possession of “that gun.” The trial judge gave the pattern instruction on possession of a firearm by a person previously convicted of a felony. There were no objections to the instruction, and the jury found the defendant guilty of the possession charge and of having attained habitual felon status. On appeal, the defendant argued that the trial judge committed plain error by failing to instruct the jury on the affirmative defense of justification. The Court of Appeals held that the defendant was not entitled to the instruction.
The Court first recognized that in State v. Mercer, ___ N.C. App. ___, 818 S.E.2d 375 (2018), aff'd ___ N.C. ___, ___ S.E.2d ___ (2020), it had recognized the defense of justification to possession of a firearm by a person previously convicted of a felony. The Court noted that the North Carolina Supreme Court has granted review in Mercer but stated that it would follow Mercer as it applied when the defendant’s case was before the trial court. Assuming a justification defense as explained in Mercer applies in North Carolina, the Court stated first that it isn’t clear that a justification defense is a “substantial and essential feature” of the possession charge, requiring an instruction by the trial judge, because the possession statute does not describe justification or self-defense as an element of the offense. The Court then ruled that the defendant’s own testimony, in which he denied possessing the gun alleged in the indictment, rendered a justification defense unavailable. The Court stated that a defendant is not entitled to a justification instruction where he testifies that he did not commit the criminal act at all. The Court also rejected the defendant’s claim of ineffective assistance of counsel based on counsel’s failure to request a justification instruction, holding that even if counsel had requested such an instruction the trial court should not have granted it.
(1) In an involuntary manslaughter case where a death occurred during a high speed chase by a bail bondsman in his efforts to arrest a principal, the trial court did not err by instructing the jury that bail bondsmen cannot violate motor vehicle laws in order to make an arrest. While the statute contains specific exemptions to the motor vehicle laws pertaining to speed for police, fire, and emergency service vehicles, no provision exempts a bail bondsman from complying with speed limits when pursuing a principal. (2) The trial court did not err by failing to submit to the jury the question whether the defendant’s means in apprehending his principal were reasonable. Under the law the defendant bail bondsman was not authorized to operate his motor vehicle at a speed greater than was reasonable and prudent under the existing conditions because of his status as a bail bondsman. It concluded:
Just as the bail bondsmen cannot enter the homes of third parties without their consent, a bail bondsmen pursuing a principal upon the highways of this State cannot engage in conduct that endangers the lives or property of third parties. Third parties have a right to expect that others using the public roads, including bail bondsmen, will follow the laws set forth in Chapter 20 of our General Statutes.
Under G.S. 14-51.4, a person may not claim self-defense if the person was attempting a felony, committing a felony, or escaping from the commission of a felony at the time of the use of force. The defendant was charged with first-degree murder, armed robbery, and fleeing to elude in Cumberland County. He claimed self-defense and testified on his behalf. Evidence showed that the defendant had multiple prior felony convictions and that he possessed a weapon at the time of the murder. The trial court gave a general instruction on statutory self-defense and instructed the jury that the defendant could not claim self-defense if he was committing the felony of possession of firearm by a felon at the time of his use of force. The jury convicted on all counts and the defendant was sentenced to life without parole. On appeal, the Court of Appeals affirmed, finding that the defendant was disqualified from claiming statutory self-defense under State v. Crump, 259 N.C. App. 144 (2018) (strictly interpreting the felony disqualification) and determining that G.S. 14-51.4 supplanted the common law right in the situations covered by the statute. On discretionary review, the Supreme Court modified and affirmed.
(1) The trial court and Court of Appeals correctly rejected the defendant’s argument that the statutory self-defense disqualification did not apply because the defendant was claiming common law, rather than statutory, self-defense. The Court agreed with the lower courts that G.S. 14-51.3 and 14-51.4 were intended to abolish the common law right to perfect self-defense in the circumstances identified by the statute, noting that the language of G.S. 14-51.3 closely followed the common law definition of self-defense and that the legislature had failed to express an intent to retain the common law (unlike other parts of the statutory self-defense laws, where such an intention was expressly stated). In the words of the Court:
[A]fter the General Assembly’s enactment of G.S. 14-51.3, there is only one way a criminal defendant can claim perfect self-defense: by invoking the statutory right to perfect self-defense. Section 14-51.3 supplants the common law on all aspects of the law of self-defense addressed by its provisions. Section 14-51.4 applies to the justification described in G.S. 14-51.3. Therefore, when a defendant in a criminal case claims perfect self-defense, the applicable provisions of G.S. 14-51.3—and, by extension, the disqualifications provided under G.S. 14-51.4—govern. McLymore Slip op. at 8-9 (cleaned up).
The trial court therefore did not err by instructing the jury on statutory self-defense, including on the felony disqualifier.
(2) The defendant’s objections to the jury instructions were sufficient to preserve his arguments relating to a “causal nexus” requirement for the felony disqualification provisions of G.S. 14-51.4, and his arguments were also apparent from the record. Among other reasons, the State argued, and the trial court relied on, the Crump decision (finding no causal nexus requirement for the felony disqualifier) in rejecting the defendant’s proposed jury instruction.
(3) The Court agreed that G.S.14-51.4 must be read to require a nexus between the defendant’s use of force and felony conduct used to disqualify the defendant from use of defensive force. A strict interpretation of this statute would lead to absurd and unjust results and would also contract the common law right to self-defense. “[A]bsent a causal nexus requirement, each individual [committing a felony not related to the need for defensive force] would be required to choose between submitting to an attacker and submitting to a subsequent criminal conviction.” McLymore Slip op. at 18. The Court also noted that a broad interpretation of the felony disqualifier may violate the North Carolina Constitution’s protections for life and liberty. N.C. Const. art. I, sec. 1. The Court therefore held that the State has the burden to demonstrate a connection between the disqualifying felony conduct and the need for the use of force, and the jury must be instructed on that requirement. Crump and other decisions to the contrary were expressly overruled. In the Court’s words:
[W]e hold that in order to disqualify a defendant from justifying the use of force as self-defense pursuant to N.C.G.S. § 14-51.4(1), the State must prove the existence of an immediate causal nexus between the defendant’s disqualifying conduct and the confrontation during which the defendant used force. The State must introduce evidence that ‘but for the defendant’ attempting to commit, committing, or escaping after the commission of a felony, ‘the confrontation resulting in injury to the victim would not have occurred.’ McLymore Slip op. at 20.
(4) Though the trial court’s instructions on the felony disqualification were erroneous, this error did not prejudice the defendant under the facts of the case. The jury convicted the defendant of armed robbery based on his theft of the victim’s car immediately after the murder. This necessarily showed that the jury found the defendant was committing or escaping from the commission of a felony related to his need to use force. According to the court:
Based upon the outcome of McLymore’s trial, it is indisputable that there existed an immediate causal nexus between his felonious conduct and the confrontation during which he used assertedly defensive force, and the felony disqualifier applies to bar his claim of self-defense. Id. at 23.
However, the Court rejected the State’s argument that the defendant would be categorically barred from self-defense with a firearm due to this status as a convicted felon. The defendant was not charged with possession of firearm by felon in the case and had no opportunity to defend against that charge. Additionally, the jury was not instructed on a causal connection between the defendant’s mere possession of the firearm and his need for use of force. According to the Court:
To accept the State’s argument on this ground would be to effectively hold that all individuals with a prior felony conviction are forever barred from using a firearm in self-defense under any circumstances. This would be absurd. Id. at 22.
The Court of Appeals was therefore modified and affirmed. Chief Justice Newby wrote separately to concur in result only, joined by Justice Barringer. They would have found that the causal nexus argument was not preserved and should have not been considered. Alternatively, they would have ruled that the felony disqualification does not require a causal nexus.
Confronting a question of first impression, the court held that “in narrow and extraordinary circumstances” the common law defense of justification may be an affirmative defense to a charge of possession of a firearm by a felon under G.S. 14-415.1. Noting that justification is an affirmative defense which a defendant carries the burden of proving at trial, the court joined the Court of Appeals in adopting an analysis from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) andheld that a defendant invoking justification as a defense to a violation of G.S. 14-415.1 must show:
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
Having established that justification is a defense to a violation of G.S. 14-415.1, the court examined whether the defendant in this case was entitled to a jury instruction on the defense. Such an instruction is required, the court explained, when each of the four “Deleveaux factors” is supported by evidence taken in the light most favorable to the defendant. The defendant’s evidence suggested that he was under a qualifying threat as it showed that he and two friends, J and Wardell, arrived to his home to find that a group of fifteen people, some of whom were armed, had assembled at the home intending to fight the defendant. As tensions elevated towards violence, the defendant took Wardell’s gun as Wardell seemed unfamiliar with it and, in the defendant’s view, would be unable to use it in their defense. The court concluded that there was evidence of each of the Deleveaux factors under these facts and that the trial court committed prejudicial error by denying the defendant’s request to instruct the jury on the defense.
A dissenting justice, Justice Morgan, “welcom[ed] the establishment of the justification defense” for this criminal offense but did not believe that the evidence in the instant case was sufficient to require the trial judge to give the instruction.
Reversing the Court of Appeals, the Supreme Court held that the trial court’s self-defense instructions were not erroneous. The court began by considering whether “North Carolina law allows an aggressor to regain the right to utilize defensive force based upon the nature and extent of the reaction that he or she provokes in the other party.” Although historically North Carolina law did not allow an aggressor using deadly force to regain the right to exercise self-defense when the person to whom his or her aggression was directed responds by using deadly force in defense, changes in statutory law allow aggressor to regain that right under certain circumstances. But, G.S. 14-51.4(2)(a), allowing an aggressor to regain the right to utilize defensive force under certain circumstances, does not apply where the aggressor initially uses deadly force against the person provoked. Thus, the trial court did not err by instructing that a defendant who was the aggressor using deadly force had forfeited the right to use deadly force and that a person who displays a firearm to his opponent with the intent to use deadly force against him or her and provokes the use of deadly force in response is an aggressor. The court continued, noting that it also must determine whether the trial court erred by failing to instruct the jury, in accordance with the defendant’s request, that he might have regained the right to use defensive force based on the victim’s reaction to any provocative conduct in which the defendant might have engaged. The court concluded that a defendant “could have only been entitled to the delivery of such an instruction to the extent that his provocative conduct involved non-deadly, rather than deadly, force.” Here, there was a complete absence of any evidence tending to show that the defendant used non-deadly force.
(1) Reversing the Court of Appeals in this first-degree felony murder case, the court held that the trial court did not commit reversible error by failing to instruct the jury on the lesser included offenses of second-degree murder and voluntary manslaughter. The underlying felony for first-degree felony murder was discharging a firearm into an occupied vehicle in operation. The trial court denied the defendant’s request for instructions on second-degree murder and voluntary manslaughter. The Court of Appeals held that it was error not to instruct on the lessers because the evidence was conflicting as to whether the defendant acted in self-defense. The court found this reasoning incorrect, noting that self-defense is not a defense to felony murder. Perfect self-defense may be a defense to the underlying felony, which would defeat the felony murder charge. Imperfect self-defense however is not available as a defense to the underlying felony use to support a felony murder charge because allowing such a defense when the defendant is in some manner at fault “would defeat the purpose of the felony murder rule.” In order to be entitled to instructions on the lesser included offenses, “the conflicting evidence must relate to whether defendant committed the crime charged, not whether defendant was legally justified in committing the crime.” Here, there is no conflict regarding whether the defendant committed the underlying felony. The defendant does not dispute that he committed this crime; rather he claims only that his conduct was justified because he was acting in self-defense. (2) Reversing the Court of Appeals, the court held that the trial court did not commit plain error when it instructed the jury on the aggressor doctrine of self-defense. The trial court instructed the jury on perfect self-defense including the aggressor doctrine (that a defendant is not entitled to the benefit of self-defense if he was the aggressor); the defendant did not object. When there is no evidence that a defendant was the initial aggressor, it is reversible error for the trial court to instruct on the aggressor doctrine. The Court of Appeals determined that there was no evidence that the defendant was the aggressor. It failed however to analyze whether such error had the type of prejudicial impact that seriously affected the fairness, integrity or public reputation of the judicial proceeding. Therefore, that court’s analysis was insufficient to conclude that the alleged error constituted plain error. The court found it unnecessary to decide whether an instruction on the aggressor doctrine was improper because the defendant failed to show that the alleged error was so fundamentally prejudicial as to constitute plain error.
The court affirmed the decision below in State v. Monroe, 233 N.C. App. 563 (April 15, 2014) (holding, over a dissent, that even assuming arguendo that the rationale in United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), applies in North Carolina, the trial court did not err by denying the defendant’s request to give a special instruction on self-defense as to the charge of possession of a firearm by a felon; the majority concluded that the evidence did not support a conclusion that the defendant possessed the firearm under unlawful and present, imminent, and impending threat of death or serious bodily injury).
The court affirmed per curiam State v. Cruz, 203 N.C. App. 230 (Apr. 6, 2010) (holding, in a murder case, and over a dissenting opinion, that an instruction on self-defense was not required where there was no evidence that the defendant believed it was necessary to kill the victim in order to save himself from death or great bodily harm).
The trial court erred by refusing to instruct the jury on self-defense and defense of a family member. Viewed in the light most favorable to the defendant, the evidence showed that the defendant was at his produce stand; the victim was a 16-year-old male, approximately 6 feet tall and 180 pounds; the victim had a physical altercation with the defendant’s wife as he attempted to rob the cash box; the victim struck at the defendant’s wife and violently pulled at the cash box; the defendant’s wife, was “scared to death” and cried out for her husband; when the defendant ordered the victim to “back off”, the victim did so, but placed his hand in his pocket, and as he again approached the defendant and the defendant’s wife, began to pull his hand from his pocket; and defendant shot the victim once because he feared for the safety of his wife, his grandson, and himself. The defendant’s evidence was sufficient to show that he believed that it was necessary to use force to prevent death or great bodily injury to himself or a family member.
In this first-degree murder case, the trial court properly declined to resolve the defendant’s castle doctrine defense before trial, properly denied the defendant’s motion to dismiss, and properly instructed the jury on the elements of the castle doctrine.
The defendant argued that the trial court erred by refusing to resolve her castle doctrine defense prior to trial because the language of G.S. 14-51.2(e) providing that a person is “immune from civil or criminal liability” when he or she satisfies the castle doctrine criteria suggests that the issue of whether a person qualifies for the defense must be resolved by judge rather than a jury. Engaging in statutory construction, the court explained through various examples that in the context of the criminal law, the General Statutes use the phrase “immunity from prosecution” when describing the traditional form of immunity equating to a right not to be forced into court to defend oneself. In contrast, the court explained that the immunity provided by the castle doctrine is “immunity from a conviction and judgment, not the prosecution itself.” The court bolstered this conclusion by noting that traditional immunities from prosecution typically involve little or no fact determination while the castle doctrine “can involve deeply fact-intensive questions.”
The court went on to conclude that there was sufficient evidence from which the jury could determine that the State had rebutted the castle doctrine’s presumption of reasonable fear and also sufficient evidence of premeditation and deliberation. The State’s evidence showed that a bystander saw the defendant in her driveway with a gun standing over the unarmed victim as he pleaded “Please, please, just let me go. Let me go.” The bystander then saw the defendant take several steps back and shoot the victim in the head from three to six feet away. In the light most favorable to the State, this was sufficient evidence to overcome the defendant’s motions to dismiss based on both the castle doctrine and a lack of premeditation and deliberation.
Finally, the court determined that the trial court did not err in its instruction to the jury concerning the castle doctrine. The jury instruction used language mirroring that of G.S. 14-51.2 and was crafted with significant input from the parties. While the instruction specifically identified only the criteria of G.S. 14-51.2(c)(5) as an avenue for rebutting the defendant’s presumption of fear, it did not, consistent with state law on the issue, instruct that the criteria of subsection (c)(5) was the only means of rebuttal and instead left the issue for the jury’s determination based on the facts of the case.
In this assault case, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the charges due to the insufficiency of the evidence. The defendant asserted that the State’s own evidence showed that the defendant acted in self-defense after he was violently assaulted. The defendant argued that because the State’s evidence tended only to exculpate the defendant, his motion to dismiss should have been granted. The court found that the evidence did not tend only to exculpate the defendant. Rather, there was substantial evidence to contradict the defendant’s claim of self-defense.
In this felony-murder case where the underlying felony was discharging a firearm into an occupied vehicle, the trial court did not err by declining to instruct on self-defense. The court rejected the defendant’s argument that a reasonable jury could have found that the shooting constituted perfect self-defense. Viewing the facts in the light most favorable to the defendant, the first three elements of self-defense were present: the defendant testified that he believed two individuals were about to shoot him or another person; a reasonable person would have so concluded; and until he fired, the defendant had not attacked or threatened the victim in any way. However, the defendant’s own testimony indicated that he did not shoot to kill. “Such an intent is required for a trial court to instruct a jury on perfect self-defense.”
In this assault with a deadly weapon case involving two neighbors, the trial court did not err by denying the defendant’s request for an instruction on self-defense. The defendant provoked the confrontation by willingly and voluntarily leaving his property and entering the victim’s property with a loaded rifle. The defendant was not forced into the confrontation. The defendant escalated the confrontation by affirmatively opting to retrieve his rifle, loaded, and carry it with him on to the victim’s property. No evidence showed that the victim possessed a weapon during the altercation or that the defendant had a good faith belief that the victim was armed. The defendant fired the first shot before the victim made any threatening movement. Thus, the defendant was not justified under G.S. 14-51.3 or 14-51.4 to use deadly force against the victim and claim self-defense.
The trial court did not commit plain error when it instructed the jury on attempted first-degree murder but failed to instruct on imperfect self-defense and on attempted voluntary manslaughter. In light of the fact that “the State introduced abundant testimony supporting a finding of defendant’s murderous intent,” the court held that the defendant failed to demonstrate that if the trial court had instructed on imperfect self-defense, the jury probably would have acquitted defendant of attempted first-degree murder.
In this homicide case in which defendant was found guilty of second-degree murder, the trial court did not err by denying defendant’s request to instruct the jury on voluntary manslaughter based on imperfect self-defense. The trial court instructed the jury on first-degree murder, second-degree murder and voluntary manslaughter based on heat of passion. During the charge conference, defendant requested an instruction on voluntary manslaughter based on imperfect self-defense. The trial court denied this request. On appeal, defendant argued that evidence of his stature and weight compared with that of the victim and testimony that the victim held him in a headlock when the stabbing occurred was sufficient to allow the jury to infer that he reasonably believed it was necessary to kill the victim to protect himself from death or great bodily harm. The court disagreed, concluding:
Here, the uncontroverted evidence shows that defendant fully and aggressively participated in the altercation with [the victim] in the yard of [the victim’s] home. No evidence was presented that defendant tried to get away from [the victim] or attempted to end the altercation. Where the evidence does not show that defendant reasonably believed it was necessary to stab [the victim], who was unarmed, in the chest to escape death or great bodily harm, the trial court properly denied defendant’s request for a jury instruction on voluntary manslaughter based upon imperfect self-defense.
The trial court did not err by denying defendant’s request for an instruction on duress or necessity as a defense to possession of a firearm by a felon. On appeal, defendant urged the court to adopt the reasoning of United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), an opinion recognizing justification as an affirmative defense to possession of a firearm by a felon. The court declined this invitation, instead holding that assuming without deciding that the Deleveaux rule applies, defendant did not satisfy its prerequisites. Specifically, even when viewed in the light most favorable to defendant, the evidence does not support a conclusion that defendant, upon possessing the firearm, was under unlawful and present, imminent, and impending threat of death or serious bodily injury.
In this assault and second-degree murder case, the trial court did not err by refusing to instruct the jury on self-defense and by omitting an instruction on voluntary manslaughter. The court noted that the defendant himself testified that when he fired the gun he did not intend to shoot anyone and that he was only firing warning shots. It noted: “our Supreme Court has held that a defendant is not entitled to jury instructions on self-defense or voluntary manslaughter ‘while still insisting . . . that he did not intend to shoot anyone[.]’”
The trial court erred by instructing pursuant to G.S. 14-51.4 (justification for defensive force not available) where the statute, enacted in 2011, did not apply to the 2006 incident in question.
In this murder case, the trial court did not err by denying the defendant’s request to instruct the jury on self-defense and imperfect self-defense. The defendant never testified that he thought it was necessary or reasonably necessary to kill his wife, the victim, to protect himself from death or great bodily harm; he only testified that his wife was holding a stun gun and that he pushed her up against the bathroom cabinets to keep her from using it. The defendant was able to push the stun gun into his wife’s side and ultimately subdued her. He did not state that he feared for his life or that he feared he might suffer great bodily harm.
The trial court did not commit plain error by failing to instruct the jury on self-defense with respect to a charge of discharging a firearm into an occupied vehicle. The trial court instructed the jury regarding self-defense in its instructions for attempted first-degree murder and assault. For the discharging a firearm charge, the trial court did not give the full self-defense instruction, but rather stated that the jury must find whether the defendant committed the offense without justification or excuse. At the jury instruction conference the defendant agreed to this instruction. The court found that the trial court placed the burden of proof on the State to satisfy the jury beyond a reasonable doubt that the defendant did not act in self-defense when he shot at the car. It also noted that the defendant agreed to the proposed instruction and that the jury found the defendant guilty of the other charges even though each included a self-defense instruction.
In this murder case, the trial court did not err by denying the defendant’s request for jury instructions on self-defense and voluntary manslaughter. The defendant’s theory was that the gun went off accidentally. Additionally, there was no evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm.
(1) The trial court did not err by denying the defendant’s motion to dismiss homicide charges. The defendant argued that the evidence showed perfect self-defense. Noting that there was some evidence favorable to the defendant as to each of the elements of perfect self-defense, the court concluded that there was also evidence favorable to the State showing that the defendant’s belief that it was necessary to kill was not reasonable, and that defendant was the aggressor or used excessive force. (2) The trial court did not commit plain error by instructing the jury that the defendant would lose the right to self-defense if he was the aggressor. The defendant had argued that the State failed to put forth evidence that the defendant was the aggressor.
(1) The trial court did not err by failing to include self-defense in its mandate on felony-murder charges that were based on the underlying offenses of attempted robbery. Self-defense is only relevant to felony-murder if it is a defense to the underlying felony. The court continued: “We fail to see how defendant could plead self-defense to a robbery the jury found he had attempted to commit himself.” (2) The trial court did not err by failing to include self-defense in its mandate on felony-murder charges based on underlying assault offenses. The trial court gave the full self-defense instructions with respect to the assault charges. It then referenced these instructions, and specifically the self-defense instructions, in its instructions concerning felony-murder based upon the assault charges. Taken as a whole, this was not error.
The trial court committed plain error by instructing the jury that the defendant was not entitled to the benefit of self-defense if she was the aggressor when no evidence suggested that the defendant was the aggressor.
The trial court did not commit plain error by failing to instruct on perfect or imperfect self-defense or perfect or imperfect defense of others where no evidence supported those instructions.
The trial court did not commit plain error by failing to instruct on defense of others. The defendant’s statement that he was defending himself, his vehicle and his wife was not evidence from which the jury could find that the defendant reasonably believed a third person was in immediate peril of death or serious bodily harm at the hands of another.
In an assault with a deadly weapon with intent to kill inflicting serious injury case where the weapon was not a deadly weapon per se, the trial court did not err by declining to give self-defense instruction N.C.P.I.—Crim. 308.40 and did not commit plain error by declining to give self-defense instruction N.C.P.I.—Crim. 308.45 over the defendant’s objection. The court clarified that when a defendant is charged with assault with a deadly weapon and the weapon is a deadly weapon per se, the trial judge should instruct that the assault would be excused as being in self-defense only if the circumstances would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself or herself from death or great bodily harm. If, however, the weapon is not a deadly weapon per se, the trial judge should further instruct the jury that if they find that the defendant assaulted the victim but do not find that the defendant used a deadly weapon, that assault would be excused as being in self-defense if the circumstances would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself or herself from bodily injury or offensive physical contact.
The trial court committed plain error by charging the jury with a self-defense instruction that related to assaults not involving deadly force (N.C.P.I.—Crim. 308.40) when the defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury. The court explained: “in those cases where the weapon is not a deadly weapon per se, but . . . the trial judge concludes on the evidence . . . that the weapon used was a deadly weapon as a matter of law, the jury should be instructed that the assault would be excused as being in self-defense only if the circumstances at the time the defendant acted were such as would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself from death or great bodily harm.” The instruction given lessened the State’s burden of proving that the defendant did not act in self-defense.
In a murder case, the trial court did not err by declining to instruct on self-defense where there was no evidence that would support a finding that the defendant reasonably believed that he needed to use deadly force against the victim to prevent death or serious bodily injury. Although the victim had threatened the defendant repeatedly, there was no evidence that he threatened to kill the defendant or attempted to harm him. There was no evidence that anyone had ever seen the victim with a weapon or attack another person. There was no indication that the victim had a reputation for violence; in fact, although the victim was angry with the defendant for a while, their conflict had never escalated beyond threats. There was no evidence that the victim threatened to hurt or attack the defendant on the day in question or that the encounter between them was more heated than earlier disputes. Instead, the evidence established that the defendant approached the victim with a gun, fired multiple shots at the victim, and continued firing as the victim attempted to retreat. The victim’s prior threats against the defendant, without more, did not establish a reasonable need for deadly force. The defendant’s description of the victim’s conduct immediately prior to the shooting did not, whether considered in isolation or in the context of the victim’s prior threats, suffice to support a self-defense instruction. The fact that the victim may have been “edging up” on the defendant while reaching behind his back did not support a finding that the defendant reasonably believed that he needed to use lethal force given that the defendant did not claim to have seen the victim with a weapon on that or any occasion, the victim had not threatened him immediately prior to the shooting, and the defendant had no other objective basis, aside from prior threats, for believing that the victim was about to attack him and create a risk of death or great bodily injury.
The trial court did not commit plain error by instructing the jury that a defendant acting in self-defense is guilty of voluntary manslaughter if he was the aggressor, where there was sufficient evidence suggesting that the defendant was indeed the aggressor. Although the trial court erred by failing to include an instruction on no duty to retreat, the error did not rise to the level of plain error given the evidence suggesting that the defendant used excessive force and was the aggressor.
The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree murder based on the defendant’s contention that he acted in self-defense where the evidence was sufficient to establish that rather than acting in self-defense, the defendant went armed after the victim to settle an argument.
No error, much less plain error, occurred when the trial judge gave a self defense instruction based on NCPJI – Crim. 308.45. Although the court found the wording of the pattern instruction confusing as to burden of proof on self defense, it concluded that the trial court properly edited the pattern instruction by repeatedly telling the jury that the State had the burden of proving beyond a reasonable doubt that defendant’s actions were not in self-defense.
Reversing and remanding for a new trial where, despite the fact that there was no evidence that the defendant was the aggressor, the trial judge instructed the jury that in order to receive the benefit of self-defense, the defendant could not have been the aggressor.
On discretionary review of a unanimous, unpublished decision below, the court reversed, ruling on the “Turner issue” presented in this case and holding that the misdemeanor DWI prosecution was not barred by the two-year statute of limitations in G.S. 15-1. On 1 August 2012, the defendant was cited for DWI. A magistrate’s order was issued on 9 August 2012. On 21 April 2015, the defendant objected to trial on the citation and moved for a statement of charges and to dismiss. The defendant argued that because she was filing a pretrial objection to trial on a citation, the State typically would be required to file a statement of charges. However, she further argued that because G.S. 15-1 establishes a two-year statute of limitations for misdemeanors, the charges must be dismissed. In a Preliminary Indication, the District Court found a statute of limitations bar and dismissed the charges. The State appealed to Superior Court, arguing that the magistrate’s order tolled the statute of limitations. The Superior Court affirmed the District Court’s Preliminary Indication and the State appealed to the Court of Appeals. That court found the procedural and legal issues identical to those in State v. Turner, ___ N.C. App. ___, 793 S.E.2d 287 (2016), adopted the reasoning of that decision, and held that the District Court did not err by granting the motion to dismiss. The State again sought review, arguing that any criminal pleading that establishes jurisdiction in the district court tolls the two-year statute of limitations. The Supreme Court agreed. The Supreme Court found the citation was a constitutionally and statutorily proper criminal pleading that conveyed jurisdiction to the District Court to try the defendant for the charged misdemeanor. The court went on to hold that the citation tolled the statute of limitations. The court found itself unable to “conclude that the General Assembly intended the illogical result that an otherwise valid criminal pleading that vests jurisdiction in the trial court would not also toll the statute of limitations.”
Defendant was charged with two counts of misdemeanor death by motor vehicle by citation on December 24, 2013. On December 21, 2015, the state filed a misdemeanor statement of charges alleging the same offenses. While those charges were pending in district court, the grand jury issued a presentment for the offenses on March 7, 2016, and the state obtained a corresponding indictment on March 21, 2016. The defense filed a motion to dismiss, arguing that the superior court indictments were obtained after the two-year statute of limitations for the offense had run. The trial court granted the motion.
The Court of Appeals reversed and remanded. Pursuant to State v. Curtis, 371 N.C. 355 (2018), the citation and misdemeanor statement of charges filed in district court tolled the statute of limitations. The court rejected the defendant’s argument that the presentment and indictment “annulled” the original district court prosecution, thereby making the new charges in superior court untimely. The original charges were still pending in district court at the time the state obtained the indictment, and “[i]f an action in District Court was properly pending, as it was here, the statute of limitations continued to be tolled.”
The statute of limitations applicable to misdemeanor offenses does not apply when the issue of a defendant’s guilt of a misdemeanor offense is submitted to the jury as a lesser included offense of a properly charged felony. Applying this rule, the court held that the two-year misdemeanor statute of limitations does not bar conviction for misdemeanor common law obstruction of justice when the misdemeanor was submitted to the jury as a lesser-included offense of felonious obstruction of justice, the crime charged in the indictment.
In 2018, the defendant was charged with felony breaking or entering a motor vehicle and other crimes for an incident involving the theft of several items from a car. Before trial, the defendant gave notice of her intent to raise a defense of voluntary intoxication. The trial court denied her request for an instruction on voluntary intoxication, concluding that the evidence showed that she spoke clearly, was responsive to questions, walked under her own power, and followed instructions from officers. The Court of Appeals held over a dissent that the trial court did not err in declining to give the instruction. State v. Meader, 269 N.C. App. 446 (2020). On appeal, the Supreme Court applied the standard that, to obtain a voluntary intoxication instruction, a defendant must produce substantial evidence supporting a conclusion that she was so intoxicated that she could not form the specific intent to commit the crime. Reviewing the evidence, the high court concluded that the defendant’s behavior, while periodically unusual, did not show her to be “utterly incapable” of forming specific intent. To the contrary, the evidence showed her to be aware of surroundings and in control of her faculties, both before and after the police arrived. The court thus held that the trial court did not err and affirmed the decision of the Court of Appeals.
Justice Hudson, joined by Justice Morgan and Justice Earls, dissented. She wrote that the evidence, when viewed in the light most favorable to the defendant, could lead a rational factfinder to conclude that she was unaware that she had taken another’s property.
In this Guilford County case, defendant appealed his convictions for breaking and entering, larceny, possession of a firearm by a felon, and resisting a public officer, arguing error in (1) denying his request for a jury instruction on voluntary intoxication, and (2) not specifically identifying the firearm during the jury instruction for possession of a firearm by a felon. The Court of Appeals disagreed, finding no error.
In May of 2021, defendant and an accomplice broke into a pharmacy; after police responded, the men fled the pharmacy, and defendant dropped a gun in the parking lot while running from the officers. After searching the vehicle left at the scene, police found two more firearms and other stolen goods. After defendant was indicted, he filed a notice of defense asserting that he was too intoxicated to form the necessary specific intent for the offenses. During the charge conference, the trial court denied defendant’s request for a jury instruction on voluntary intoxication. Defendant was subsequently convicted, and appealed.
Taking up (1), the Court of Appeals noted “[t]o obtain a voluntary intoxication instruction, a defendant ‘must produce substantial evidence which would support a conclusion by the judge that he was so intoxicated that he could not form’ the specific intent to commit the underlying offenses.” Slip Op. at 5, quoting State v. Mash, 323 N.C. 339, 346 (1988). However, the court pointed out that “mere intoxication” was not sufficient, and that evidence had to show the defendant had lost his ability to think and plan due to the overconsumption of intoxicants. Id. Here, although defendant testified to consuming a large amount of cocaine over several days, the court highlighted instances of defendant recalling the events of the pursuit and arrest, as well as his interview at the police station. The court concluded defendant failed to produce evidence sufficient to justify the voluntary intoxication instruction.
Turning to (2), the court noted that plain error was the applicable standard as defendant did not object to the jury instruction on possession of a firearm at trial. While the trial court did not specify which firearm defendant possessed in the instruction, the series of events where defendant fled the pharmacy and dropped a gun in the parking lot allowed for only one specific gun to be relevant. The other two firearms found at the scene were inside the vehicle and could not have been possessed by defendant. As a result, defendant could not demonstrate plain error.
Judge Murphy concurred in the result only as to (1), and concurred as to (2).
In this Richmond County case, the defendant was found guilty by a jury of first-degree murder, attempted first-degree murder, and assault with a deadly weapon with intent to kill for shooting an acquaintance during an argument, and, during the same incident, shooting another acquaintance who was standing nearby in the leg. The defendant had been drinking for more than six hours before he shot the victims. After he began drinking and several hours before the shooting, he displayed a gun in front of a child. After the shooting, he drove to another acquaintance’s house and honked his car horn for thirty minutes. At trial, he requested that the judge instruct the jury on voluntary intoxication. The judge refused this request.
(1) On appeal, the defendant argued that the trial court erred by refusing to instruct the jury on voluntary intoxication. The defendant contended there was substantial evidence that, because of his intoxication, he could not form a deliberate and premeditated intent to kill the victim. The Court of Appeals concluded that although there was evidence that the defendant was very intoxicated and acted recklessly some hours before the shooting, there was not substantial evidence that he was intoxicated to the point he could not control himself and could not form the intent to kill the victim. The Court noted that the defendant shot and killed the victim following an argument and then drove away from the scene, arriving at an acquaintance’s house without getting into an accident. Hours after the shooting, he told officers that he shot the deceased victim in self-defense. Thus, the Court concluded that the trial court did not err in not instructing the jury on voluntary intoxication.
(2) The defendant also argued on appeal that the trial court erred in admitting the handgun used in the shootings during testimony from the pawnbroker who transferred the gun to the defendant. This took place early in the trial and before the State presented evidence that the handgun was used to shoot the victims. The Court of Appeals determined that the trial court did not err in admitting the handgun before its relevance had been established as the State later presented evidence connecting the handgun to the shootings. The defendant also argued that the trial court erred by admitting the handgun because the State did not establish a chain of custody. Even assuming the defendant preserved this issue for appeal and that the trial court erred in this regard, the Court found that the error did not prejudice the defendant in light of other overwhelming evidence of the defendant’s guilt.
The defendant’s wife, Mrs. Arnett, came home from work on November 21 and found the defendant drinking. They got in the defendant’s car and drove to grocery store, during which the defendant struck her, threatened her, and took her cellphone. Mrs. Arnett went inside the store and asked the manager to call law enforcement. The defendant was charged, and a court date was set for January 23.
On January 21, Mrs. Arnett again came home from work and found the defendant drinking. The defendant had ingested three beers prior to his wife arriving home and had consumed another after the couple returned from a trip to the grocery store. During dinner, the defendant drank another beer and started another. The defendant went to a neighbor’s house for marijuana and received eight Xanax bars instead, two of which he ingested. After returning home to finish his dinner, the defendant assaulted his wife, slamming her face into the wall, busting her eyes, and cutting her arms and chin. The defendant also kicked her legs, cut her head, stabbed her in the side, and repeatedly punched her in the face. Mrs. Arnett went to the hospital the next morning and remained hospitalized until January 24.
The defendant was indicted on charges of AWDWISI, and the defendant’s trial counsel filed a notice of voluntary intoxication defense, stating he would show that the defendant could not form the specific intent necessary for the crime charged. The trial court ruled AWDWISI was a general intent crime and that the defense of voluntary intoxication was not available to the defendant. At trial, the defendant’s attorney stated he would admit an element of the physical act of the assault, but not the defendant’s guilt because he lacked intent. The defendant told the court, on two separate occasions, that he understood his attorney would admit an element of the offense and that he had discussed the strategy with his attorney and agreed with the argument. The defendant was convicted of AWDWISI with two aggravating factors.
On appeal, the defendant argued that the trial court erred in ruling that the voluntary intoxication defense was not available. The Court of Appeals rejected this argument, reasoning that voluntary intoxication is a defense only to a crime that requires a showing of specific intent, and AWDWISI is not a specific intent crime.
The defendant next argued that the trial court’s Harbison inquiry was inadequate to confirm that he understood he was agreeing for counsel to admit the charged offense and present an invalid defense. The Court rejected this argument, noting that the defendant was present for two separate Harbison inquiries, the defendant was addressed personally by the trial court both times, the defendant confirmed he understood and consented to his counsel’s actions prior to any admission by his counsel, and the defendant heard the trial court’s ruling that voluntary intoxication would not be allowed as a defense to his general intent crime. The Court held that the Harbison inquiries as well as the conversations leading up to them were adequate to show that the defendant was thoroughly advised and knowingly consented to his attorney’s admission to the jury.
The defendant contended that he was denied effective assistance of counsel. The Court rejected this argument, reasoning that the defendant testified, was cross examined, and clearly consented to trial counsel’s acknowledgement of the defendant’s actions against his wife to the jury during closing argument. The Court concluded that the record showed a deliberate, knowing, and consented-to trial strategy in the face of overwhelming and uncontradicted evidence of the defendant’s guilt.
In this arson case, the evidence was not sufficient to entitle the defendant to a voluntary intoxication instruction. While the evidence showed that the defendant was intoxicated at the time in question, there was no evidence about how much alcohol she had consumed or about the length of time over which she had consumed it. The evidence showed only that the defendant had consumed some amount of some type of alcohol over some unknown period. The court also noted that the defendant’s conduct in committing the crime and behavior with law enforcement afterwards indicated some level of awareness of her situation.
Although the State presented evidence that the defendant smoked crack, there was no evidence regarding the crack cocaine’s effect on the defendant’s mental state and thus the trial court did not commit plain error in failing to instruct the jury on the defense of voluntary intoxication.
The trial court did not err by refusing to instruct on voluntary intoxication. Some evidence showed that the defendant had drunk two beers and "could feel it," had taken Xanax, and may have smoked crack cocaine. However, the defendant herself said she was not drunk and had not smoked crack. The defendant did not produce sufficient evidence to show that her mind was so completely intoxicated that she was utterly incapable of forming the necessary intent.
Because the defendant failed to present evidence of intoxication to the degree required to show that he was incapable of forming the requisite intent to commit attempted statutory rape and indecent liberties, the trial court did not commit plain error by failing to instruct the jury on voluntary intoxication. The State’s evidence showed that the defendant made careful plans to be alone with the child, and in at least one instance, tricked her into coming out of her room after she had locked herself away from him. The defendant offered evidence that he has abused alcohol and drugs for so long that his memory has deteriorated so that he cannot remember the relevant events. However, the court concluded, the defendant’s failure to remember later when accused is not proof of his mental condition at the time of the crime.
The trial court did not err by denying the defendant’s request to instruct the jury on the defense of withdrawal where the evidence showed that the defendant completed his assigned task in the home invasion (kicking in the door) and failed to renounce the common purpose or indicate that he did not intend to participate in the crime any further.
The 2001 amendments to the capital sentencing statutes revoked the statutory mandate that provided the rationale for State v. Rorie, 348 N.C. 266 (1998) (holding that the trial court exceeded its authority to enforce Rule 24 by precluding the State from prosecuting a first-degree murder case capitally). Thus, the trial court has inherent authority to enforce Rule 24 by declaring a case noncapital in appropriate circumstances. Declaring a case noncapital is appropriate only when the defendant makes a sufficient showing of prejudice resulting from the State’s delay in holding the Rule 24 conference. In this case, the defendant did not show sufficient prejudice to warrant declaring the cases noncapital.
The random segregation of the entire jury pool so that it could be split among the defendant’s proceeding and other matters being handled at the courthouse that day was a preliminary administrative matter at which defendant did not have a right to be present.
(1) In this capital case, the court rejected the defendant’s argument that the trial court deprived him of his state and federal constitutional right to a trial by a fair and impartial jury by prohibiting defense counsel from questioning prospective jurors concerning their ability to follow the applicable law prohibiting the imposition of the death penalty upon an intellectually disabled person. Defense counsel informed the trial court that they wanted to ask the jurors whether they can follow the law with regard to mental retardation and that in order to make an adequate inquiry, defense counsel would need to tell the jurors about the relevant law. The trial judge determined that the defense would be limited to inquiring into the jurors’ ability to follow the applicable law. When the jurors returned to the courtroom, defense counsel told the jurors that mental retardation is a defense to the death penalty and that it is defined, among other things, as having a low IQ. Both defense counsel and the prosecutor asked prospective jurors numerous questions related to intellectual disability issues. Although the trial court told defense counsel to limit their questioning with respect to intellectual disability issues to inquiry as to whether members of the jury could follow the law as given to them by the court, the defendant was allowed, without objection, to explain to two different jury panels, at a time when all prospective jurors were present, that mental retardation is a defense to the death penalty. Additionally, defense counsel asked prospective jurors about their experiences with intellectually disabled persons, the extent of their familiarity with intelligence testing and adaptive skills functioning issues, their willingness to consider expert mental health testimony, and their willingness to follow the applicable law as given in the trial court’s instructions. When considered in conjunction with the fact that defense counsel was allowed to tell jurors that mental retardation was a defense, the questions defense counsel were allowed to pose sufficiently permitted counsel to determine whether jurors could fairly consider and follow the trial court’s instruction concerning whether the defendant should be exempted from the imposition of the death penalty on the basis of any intellectual disabilities. The limitations that the trial court put on defense counsel’s questioning of prospective jurors concerning intellectual disability issues was not an abuse of discretion and did not render the trial fundamentally unfair.
(2) The court rejected the defendant’s argument that he demonstrated that he suffers from an intellectual disability by a preponderance of the evidence and that the trial court erred by denying his motion to set aside the jury’s verdict in the State’s favor with respect to this issue. Although the defendant did present sufficient evidence to support a determination that he should be deemed exempt from the imposition of the death penalty on intellectual disability grounds, the State presented expert testimony tending to support a contrary determination. The relative credibility of the testimony offered by the various experts concerning the nature and extent of the defendant’s intellectual limitations was a matter for the jury. Because the record reveals a conflict in the evidence concerning the extent to which the defendant was intellectually disabled, the trial court did not abuse its discretion by failing to set aside the jury’s verdict.
(3) The trial court committed reversible error at the defendant’s capital sentencing proceeding by failing to instruct the jury with respect to the statutory mitigating factor in G.S. 15A-2000(f)(6), which addresses the extent to which a defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired. The trial judge is required to instruct the jury to consider any mitigating circumstances which have adequate evidentiary support and the trial court has no discretion in determining whether to submit a mitigating circumstance when substantial evidence in support of it has been presented. Citing evidence in the record, the court held that it contains ample support for the submission of the mitigating circumstance at issue. The court went on to find that the trial court’s error was not harmless beyond a reasonable doubt. The court ordered a new capital sentencing hearing
(1) The trial court did not err by allowing the State’s challenge for cause of a prospective juror when the juror’s beliefs about the death penalty could not be pinned down. (2) The trial court did not err in denying the defendant’s motion to dismiss asserting that disproportionate numbers of prospective jurors who were African-American, opposed the death penalty, or both, were excluded from the jury in violation of Wainwright v. Witt, 469 U.S. 412 (1985). The court declined to reconsider its previous holding that death qualifying a jury in a capital case does not violate the United States or North Carolina Constitutions. (3) The trial court did not err by prohibiting defense counsel from suggesting during voir dire that there is a presumption that life without parole is the appropriate sentence when North Carolina law does not establish such a presumption. (4) The court rejected the defendant’s argument that the State injected error when it stated to prospective jurors that the jury had to be unanimous as to a sentence of death or life without parole. According to the defendant, these comments erroneously indicated that the jury had to recommend a life sentence unanimously, placing a burden on the defendant, when in fact life sentence is imposed if the jury cannot agree during a capital sentencing proceeding. While the defendant was correct that an inability to reach unanimity in a capital sentencing proceeding will result in a life sentence, the jury is not to be instructed as to the result of being unable to reach a unanimous sentencing recommendation. (5) The State did not reduce its burden when it asked prospective jurors to presuppose that the defendant had been found guilty. Such a supposition was a necessary prelude to voir dire questions relating to the sentencing proceeding, should one be needed.
The Eighth Amendment does not require courts to instruct capital sentencing juries that mitigating circumstances “need not be proved beyond a reasonable doubt.”
In a per curiam opinion, the Court reversed a Sixth Circuit decision granting relief to a defendant on grounds that the jury instructions used in his capital trial ran afoul of Beck v. Alabama, 447 U.S. 625 (1980) (holding that the death penalty may not be imposed when the jury was not permitted to consider a verdict of guilt of a lesser-included non-capital offense, and when the evidence would have supported such a verdict). The Court concluded that the penalty phase instruction at issue was not invalid under Beck, which dealt with guilt-innocence phase instructions.
Distinguishing Mills v. Maryland, 486 U.S. 367 (1988), and holding that the penalty phase jury instructions and verdict forms were not unconstitutional. The defendant had asserted that the instructions improperly required the jury to consider in mitigation only those factors the jury unanimously found to be mitigating.
(1) The Eighth Amendment does not require courts to instruct capital sentencing juries that mitigating circumstances “need not be proved beyond a reasonable doubt.” (2) The Eighth Amendment was not violated by a joint capital sentencing proceeding for two defendants. The Court reasoned, in part: “the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like ‘mercy.’”
In this habeas appeal, the petitioner was convicted of two murders in 1992 in Arizona state court. At that time, no requirement existed that the jury determine facts supporting an aggravating factor. At least one aggravating factor must be found to support a sentence of death under the Court’s precedents. In the petitioner’s case, the trial court found factors in aggravation for both murders and imposed death. In federal habeas proceedings 20 years later, the Ninth Circuit found that the trial court improperly ignored mitigation evidence in violation of Eddings v. Oklahoma, 455 U.S. 104 (1982) (reversible error for trial court to ignore relevant mitigation evidence at capital sentencing). The case returned to the Arizona Supreme Court, where the petitioner argued for a new sentencing hearing before a jury. The Arizona Supreme Court rejected this argument, pointing to Clemons v. Mississippi, 494 U.S. 738 (1990). Clemons allows a state appellate court to reweigh aggravating and mitigating factors in a death case following reversal for use of an improper aggravating factor (instead of a jury weighing those factors). The Arizona Supreme Court reweighed the sentencing factors in the case and again imposed death. The petitioner appealed to the U.S. Supreme Court, arguing that a jury should have made that determination. A majority of the court disagreed and affirmed the death sentence.
The court first rejected the argument that Clemons did not apply because that case involved an improper aggravating factor, whereas the petitioner’s case involved a failure to consider a mitigation factor.
. . . [T]he Court’s decision in Clemons ruled that appellate tribunals may perform a ‘reweighing of the aggravating and mitigating evidence.’ In short, a Clemons reweighing is a permissible remedy for an Eddings error.
The court also rejected the argument that Clemons was overruled by Ring v. Arizona, 536 U. S. 584 (2002), and Hurst v. Florida, 136 S. Ct. 616 (2016), which require a jury to determine facts supporting an aggravating factor. The petitioner argued that an appellate court could no longer reweigh aggravating factors under those cases and that a jury determination was required. This too was rejected. A jury need only find the facts in support of the aggravated factor; states are free to allow the trial court to make the ultimate decision on whether to impose a death sentence, so long as any facts necessary to support the aggravating factor were found by a jury. The court noted:
. . .[I]n a capital proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. . . In short, Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.
The petitioner also pointed to the fact that no jury determined the facts of the factors in aggravation supporting his death sentence as Ring and Hurst require. This claim was foreclosed by the fact that Ring and Hurst were decided after the petitioner’s direct appeal became final. Those cases therefore do not apply retroactively to cases (like the petitioner’s) on collateral review under Schriro v. Summerlin, 542 U.S. 348. The court rejected the argument that the Arizona Supreme Court’s reweighing of aggravating and mitigating factors re-opened direct review. The Arizona Supreme Court categorized its decision as collateral review, and the U.S. Supreme Court declined to disturb that interpretation of state law. “As a matter of state law, the reweighing proceeding in McKinney’s case occurred on collateral review.” Id. at 8 (emphasis in original). The Arizona Supreme Court’s judgment was consequently affirmed by a 5-4 majority. Chief Justice Roberts, and Justices Alito, Gorsuch, and Thomas joined the majority opinion.
Justice Ginsberg dissented, joined by Justices Breyer, Sotomayor, and Kagan. The dissenting justices disagreed with the majority that the Arizona Supreme Court’s action in reweighing sentencing factors was a collateral proceeding. In their view, that proceeding was a re-opening of direct appeal proceedings, and Ring applied. The dissenting justices would have found the death sentence unconstitutional and reversed the judgment of the Arizona Supreme Court.
The Court held Florida’s capital sentencing scheme unconstitutional. In this case, after a jury convicted the defendant of murder, a penalty-phase jury recommended that the judge impose a death sentence. Notwithstanding this recommendation, Florida law required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty. The judge so found and sentenced the defendant to death. After the defendant’s conviction and sentence was affirmed by the Florida Supreme Court, the defendant sought review by the US Supreme Court. That Court granted certiorari to resolve whether Florida’s capital sentencing scheme violates the Sixth Amendment in light of Ring. Holding that it does, the Court stated: “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.”
The defendant was convicted of first-degree murder and sentenced to death. Notwithstanding Roper v. Simmons, 543 U.S. 551 (2005) (Eighth Amendment prohibits execution of one who commits murder before eighteenth birthday), prior violent felonies committed when the defendant was only 16 years old could be considered with respect to the G.S. 15A-2000(e)(3) (prior violent felony conviction) aggravating circumstance.
Capital Law > Aggravating Circumstances > (e)(4) ─ Murder Committed To Prevent Arrest Or Effect Escape
The trial court did not commit plain error by submitting both the (e)(4) (murder committed to prevent arrest or effect escape) and (e)(8) (crime committed against law enforcement officer) aggravating circumstances. The (e)(4) aggravating circumstance focuses on the defendant’s subjective motivation for his or her actions while the (e)(8) aggravating circumstance pertains to the underlying factual basis of the crime. The court rejected the defendant’s argument that the aggravating circumstances impermissibly overlapped because the defendant’s motive for killing the officer was to avoid the very arrest that the officer was attempting to carry out at the time of the killing.
The trial court did not commit plain error by submitting both the (e)(4) (murder committed to prevent arrest or effect escape) and (e)(8) (crime committed against law enforcement officer) aggravating circumstances. The (e)(4) aggravating circumstance focuses on the defendant’s subjective motivation for his or her actions while the (e)(8) aggravating circumstance pertains to the underlying factual basis of the crime. The court rejected the defendant’s argument that the aggravating circumstances impermissibly overlapped because the defendant’s motive for killing the officer was to avoid the very arrest that the officer was attempting to carry out at the time of the killing.
The trial court did not err by submitting the (f)(1) mitigating circumstance (no significant history of prior criminal activity) to the jury. The defendant’s prior record included: felony breaking and entering in 1999; felony larceny in 1998; driving under the influence in 1996; larceny in 1993; sale of marijuana in 1991; and sale of a narcotic or controlled substance in 1990. The court found it significant that the priors were somewhat remote in time and did not appear to involve violence against a person.
The trial court did not err by failing to submit the G.S. 15A-2000(f)(1) (no significant history of prior criminal activity) mitigating circumstance. A forecast of evidence suggested that the defendant had violently abducted his former wife and forced her to engage in sexual activity.
The trial court did not err by instructing the jury to consider, over the defendant’s objection, the (f)(1) mitigating circumstance (no significant history of prior criminal activity). The defendant’s priors consisted of breaking and entering a motor vehicle (Class I felony) and several misdemeanors (larceny, public disturbance, defrauding an innkeeper, trespassing, carrying a concealed weapon, and possession of marijuana). There was also evidence of unspecified thefts, mostly at school. Because the evidence pertained to minor offenses, a rational jury could conclude that the defendant had no significant history of criminal activity.
The trial court erred by submitting the (f)(4) mitigating circumstance (defendant was an accomplice in or accessory to the capital felony committed by another person and his participation was relatively minor) to the jury where it was not supported by substantial evidence. However, in the absence of “extraordinary facts,” the court concluded that the error was harmless.
(1) In this capital case, the court rejected the defendant’s argument that the trial court deprived him of his state and federal constitutional right to a trial by a fair and impartial jury by prohibiting defense counsel from questioning prospective jurors concerning their ability to follow the applicable law prohibiting the imposition of the death penalty upon an intellectually disabled person. Defense counsel informed the trial court that they wanted to ask the jurors whether they can follow the law with regard to mental retardation and that in order to make an adequate inquiry, defense counsel would need to tell the jurors about the relevant law. The trial judge determined that the defense would be limited to inquiring into the jurors’ ability to follow the applicable law. When the jurors returned to the courtroom, defense counsel told the jurors that mental retardation is a defense to the death penalty and that it is defined, among other things, as having a low IQ. Both defense counsel and the prosecutor asked prospective jurors numerous questions related to intellectual disability issues. Although the trial court told defense counsel to limit their questioning with respect to intellectual disability issues to inquiry as to whether members of the jury could follow the law as given to them by the court, the defendant was allowed, without objection, to explain to two different jury panels, at a time when all prospective jurors were present, that mental retardation is a defense to the death penalty. Additionally, defense counsel asked prospective jurors about their experiences with intellectually disabled persons, the extent of their familiarity with intelligence testing and adaptive skills functioning issues, their willingness to consider expert mental health testimony, and their willingness to follow the applicable law as given in the trial court’s instructions. When considered in conjunction with the fact that defense counsel was allowed to tell jurors that mental retardation was a defense, the questions defense counsel were allowed to pose sufficiently permitted counsel to determine whether jurors could fairly consider and follow the trial court’s instruction concerning whether the defendant should be exempted from the imposition of the death penalty on the basis of any intellectual disabilities. The limitations that the trial court put on defense counsel’s questioning of prospective jurors concerning intellectual disability issues was not an abuse of discretion and did not render the trial fundamentally unfair.
(2) The court rejected the defendant’s argument that he demonstrated that he suffers from an intellectual disability by a preponderance of the evidence and that the trial court erred by denying his motion to set aside the jury’s verdict in the State’s favor with respect to this issue. Although the defendant did present sufficient evidence to support a determination that he should be deemed exempt from the imposition of the death penalty on intellectual disability grounds, the State presented expert testimony tending to support a contrary determination. The relative credibility of the testimony offered by the various experts concerning the nature and extent of the defendant’s intellectual limitations was a matter for the jury. Because the record reveals a conflict in the evidence concerning the extent to which the defendant was intellectually disabled, the trial court did not abuse its discretion by failing to set aside the jury’s verdict.
(3) The trial court committed reversible error at the defendant’s capital sentencing proceeding by failing to instruct the jury with respect to the statutory mitigating factor in G.S. 15A-2000(f)(6), which addresses the extent to which a defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired. The trial judge is required to instruct the jury to consider any mitigating circumstances which have adequate evidentiary support and the trial court has no discretion in determining whether to submit a mitigating circumstance when substantial evidence in support of it has been presented. Citing evidence in the record, the court held that it contains ample support for the submission of the mitigating circumstance at issue. The court went on to find that the trial court’s error was not harmless beyond a reasonable doubt. The court ordered a new capital sentencing hearing
The defendant was convicted of first-degree murder and sentenced to death. The defendant was eighteen years and five months old when he committed the murder. The court rejected the defendant’s argument that Roper v. Simmons, 543 U.S. 551 (2005) (Eighth Amendment prohibits execution of one who commits murder before eighteenth birthday), required it to conclude that the defendant’s age had mitigating value as a matter of under the G.S. 15A-2000(f)(7) (defendant’s age when murder committed) mitigating circumstance.
(1) The trial court did not err by failing to give a peremptory instruction on statutory mitigating circumstances when the evidence as to each was contested. (2) Although the trial court erred by failing to give a peremptory instruction on the non-statutory mitigating circumstance that the defendant’s mother did not accept his deficits, the error was harmless beyond a reasonable doubt. (3) The trial court did not err by failing to give peremptory instructions on non-statutory mitigating circumstances when it was not clear how one was mitigating or that the evidence was credible; as to others, the evidence was not uncontroverted.
The trial judge did not err by declining to give a peremptory instruction on a non-statutory mitigating circumstance that the defendant accepted responsibility for his criminal conduct. While the defendant admitted killing the victim and acknowledged that the killing was a terrible mistake, he only authorized his lawyers to concede guilt to second-degree murder. A willingness to plead guilty to second-degree murder is evidence only of the defendant’s willingness to lessen exposure to the death penalty or a life sentence upon a conviction for first-degree murder.
The Court affirmed the decision below, rejecting the defendant’s argument that because of his unusual medical condition the State of Missouri’s lethal injection protocol is unconstitutional as applied to him.
For more detail about this decision, see my colleague blog post here: https://unc.live/2uNfWf3.
In this case, challenging Oklahoma’s lethal injection protocol, the Court affirmed the denial of the prisoner’s application for a preliminary injunction. The prisoners, all sentenced to death in Oklahoma, filed an action in federal court, arguing that Oklahoma’s method of execution violates the Eighth Amendment because it creates an unacceptable risk of severe pain. They argued that midazolam, the first drug employed in the State’s three-drug protocol, fails to render a person insensate to pain. After holding an evidentiary hearing, the District Court denied the prisoner’s application for a preliminary injunction, finding that they had failed to prove that midazolam is ineffective. The Tenth Circuit affirmed, as did the Supreme Court, for two independent reasons. First, the Court concluded that the prisoners failed to identify a known and available method of execution that entails a lesser risk of pain. Second, the Court concluded that the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.
In a per curiam opinion in this capital case, the Court held that the defendant has shown he is a person with intellectual disability. In 2015 a Texas appellate court held that the defendant did not have an intellectual disability and consequently was eligible for the death penalty. The Court considered the lawfulness of that determination, vacated the court’s decision, and remanded the case for further consideration. The Texas court subsequently reconsidered the matter but reached the same conclusion, holding that the defendant had not demonstrated intellectual disability. The defendant filed a petition for certiorari, arguing that the trial court record demonstrates his intellectual disability. The prosecutor agreed with the defendant that he is intellectually disabled and cannot be executed; the Attorney General of Texas however asked the Court to deny the defendant’s petition. Considering the merits, the Court agreed with the defendant that the Texas appellate court’s determination was inconsistent with its prior opinion in the case. The Court noted: “We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion.” For one thing, it explained, the Texas appellate court again relied less on the adaptive deficits to which the trial court had referred than upon the defendant’s apparent adaptive strengths. The Court also found that the Texas appellate court relied too heavily upon adaptive improvements made in prison. Furthermore, the Texas court concluded that the defendant failed to show that the cause of his deficient social behavior was related to any deficits in general mental abilities rather than emotional problems. The Court noted, in part, that in its last review, it said that the Court of Appeals had departed from clinical practice when it required the defendant to prove that his problems in kindergarten stemmed from intellectual disability rather than emotional problems. Additionally, despite the appellate court’s statement that it would abandon reliance on certain evidentiary factors, it seems to have used many of those factors in reaching its conclusion. The Court concluded:
[T]he appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper. And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court. We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.
Vacating and remanding in this capital case, the Court held that a Texas court was wrong to fault a lower court for using a current definition of intellectual disability and by focusing on superseded standards and non-clinical factors for determining intellectual disability. Consulting current medical diagnostic standards, a state habeas court found in 2014 that the defendant was intellectually disabled and recommended relief. The Texas Court of Criminal Appeals (CCA) rejected this recommendation and denied the defendant relief. It reasoned that the habeas court erred by using the most current standards regarding the diagnosis of intellectual disability rather than the test set out in Ex parte Briseno, 135 S. W. 3d 1 (Tex. Crim. App. 2004) which incorporated older medical standards and set forth “seven evidentiary factors,” later described by the Supreme Court as being unsupported by any authority, medical or judicial. The CCA determined that the Briseno standards “remai[n] adequately ‘informed by the medical community’s diagnostic framework.’” Applying them, that court found that relief was not warranted. One judge dissented, arguing that Atkins and Hall require courts to consult current medical standards to determine intellectual disability and criticizing the majority for relying on manuals superseded in the medical community. The dissenting judge also questioned the legitimacy of the seven Briseno factors, noting that they deviate from the current medical consensus. Before the Supreme Court the issue was whether the Texas court’s “adherence to superseded medical standards and its reliance on Briseno comply with the Eighth Amendment and this Court’s precedents.” The Court held that it did not. It noted that although its decisions in Atkins and Hall left to the States the task of developing appropriate ways to enforce the restriction on executing intellectually disabled individuals, that determination must be informed by the medical community’s diagnostic framework. Here, the habeas court applied current medical standards in concluding that the defendant is intellectually disabled and therefore not eligible for the death penalty. The CCA, however, faulted the habeas court for disregarding the CCA’s case law and using a current definition of intellectual disability. The CCA instead “fastened its intellectual-disability determination” on a 1992 American Association on Mental Retardation manual definition adopted in Briseno. “By rejecting the habeas court’s application of medical guidance and clinging to the standard it laid out in Briseno, including the wholly nonclinical Briseno factors, the CCA failed adequately to inform itself of the medical community’s diagnostic framework.” (quotation omitted).
Because the Louisiana state court’s decision rejecting the defendant’s Atkins claim without affording him an evidentiary hearing was based on an unreasonable determination of the facts, the defendant was entitled to have his claim considered on the merits in federal court. After the defendant was convicted, the U.S. Supreme Court held, in Atkins, that “in light of . . . ‘evolving standards of decency,’” the Eighth Amendment “‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” The Court however left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” The Louisiana Supreme Court later held that “a diagnosis of mental retardation has three distinct components: (1) subaverage intelligence, as measured by objective standardized IQ tests; (2) significant impairment in several areas of adaptive skills; and (3) manifestations of this neuro-psychological disorder in the developmental stage.” That court further held that an Atkins evidentiary hearing is required when an inmate has put forward sufficient evidence to raise a “reasonable ground” to believe him to be intellectually disabled. In a post-conviction motion in the case at bar, the defendant sought an Atkins hearing. Without holding an evidentiary hearing or granting funds to conduct additional investigation, the state trial court dismissed the defendant’s petition. After losing in state court, the defendant pursued federal habeas relief. The defendant won at the federal district court but the Fifth Circuit reversed. The U.S. Supreme Court granted review and held that the state court’s decision denying his Atkins claim was premised on an “unreasonable determination of the facts.” In reaching this decision, the Court focused on the two underlying factual determinations on which the trial court’s decision was premised: that the defendant’s IQ score of 75 was inconsistent with a diagnosis of intellectual disability and that he had presented no evidence of adaptive impairment. The Court held that both of the state court’s critical factual determinations were unreasonable.
The Court held unconstitutional a Florida law strictly defining intellectual disability for purposes of qualification for the death penalty. The Eighth and Fourteenth Amendments forbid the execution of persons with intellectual disability. Florida law defines intellectual disability to require an IQ test score of 70 or less. If, from test scores, a prisoner is deemed to have an IQ above 70, all further exploration of intellectual disability is foreclosed. The Court held: “This rigid rule . . . creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” Slip Op. at 1. The Court concluded:
Florida seeks to execute a man because he scored a 71 instead of 70 on an IQ test. Florida is one of just a few States to have this rigid rule. Florida’s rule misconstrues the Court’s statements in Atkins that intellectually disability is characterized by an IQ of “approximately 70.” 536 U. S., at 308, n. 3. Florida’s rule is in direct opposition to the views of those who design, administer, and interpret the IQ test. By failing to take into account the standard error of measurement, Florida’s law not only contradicts the test’s own design but also bars an essential part of a sentencing court’s inquiry into adaptive functioning. [Defendant] Freddie Lee Hall may or may not be intellectually disabled, but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.
The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.
Slip Op. at 22.
(1) In this capital case, the court rejected the defendant’s argument that the trial court deprived him of his state and federal constitutional right to a trial by a fair and impartial jury by prohibiting defense counsel from questioning prospective jurors concerning their ability to follow the applicable law prohibiting the imposition of the death penalty upon an intellectually disabled person. Defense counsel informed the trial court that they wanted to ask the jurors whether they can follow the law with regard to mental retardation and that in order to make an adequate inquiry, defense counsel would need to tell the jurors about the relevant law. The trial judge determined that the defense would be limited to inquiring into the jurors’ ability to follow the applicable law. When the jurors returned to the courtroom, defense counsel told the jurors that mental retardation is a defense to the death penalty and that it is defined, among other things, as having a low IQ. Both defense counsel and the prosecutor asked prospective jurors numerous questions related to intellectual disability issues. Although the trial court told defense counsel to limit their questioning with respect to intellectual disability issues to inquiry as to whether members of the jury could follow the law as given to them by the court, the defendant was allowed, without objection, to explain to two different jury panels, at a time when all prospective jurors were present, that mental retardation is a defense to the death penalty. Additionally, defense counsel asked prospective jurors about their experiences with intellectually disabled persons, the extent of their familiarity with intelligence testing and adaptive skills functioning issues, their willingness to consider expert mental health testimony, and their willingness to follow the applicable law as given in the trial court’s instructions. When considered in conjunction with the fact that defense counsel was allowed to tell jurors that mental retardation was a defense, the questions defense counsel were allowed to pose sufficiently permitted counsel to determine whether jurors could fairly consider and follow the trial court’s instruction concerning whether the defendant should be exempted from the imposition of the death penalty on the basis of any intellectual disabilities. The limitations that the trial court put on defense counsel’s questioning of prospective jurors concerning intellectual disability issues was not an abuse of discretion and did not render the trial fundamentally unfair.
(2) The court rejected the defendant’s argument that he demonstrated that he suffers from an intellectual disability by a preponderance of the evidence and that the trial court erred by denying his motion to set aside the jury’s verdict in the State’s favor with respect to this issue. Although the defendant did present sufficient evidence to support a determination that he should be deemed exempt from the imposition of the death penalty on intellectual disability grounds, the State presented expert testimony tending to support a contrary determination. The relative credibility of the testimony offered by the various experts concerning the nature and extent of the defendant’s intellectual limitations was a matter for the jury. Because the record reveals a conflict in the evidence concerning the extent to which the defendant was intellectually disabled, the trial court did not abuse its discretion by failing to set aside the jury’s verdict.
(3) The trial court committed reversible error at the defendant’s capital sentencing proceeding by failing to instruct the jury with respect to the statutory mitigating factor in G.S. 15A-2000(f)(6), which addresses the extent to which a defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was impaired. The trial judge is required to instruct the jury to consider any mitigating circumstances which have adequate evidentiary support and the trial court has no discretion in determining whether to submit a mitigating circumstance when substantial evidence in support of it has been presented. Citing evidence in the record, the court held that it contains ample support for the submission of the mitigating circumstance at issue. The court went on to find that the trial court’s error was not harmless beyond a reasonable doubt. The court ordered a new capital sentencing hearing
The trial judge has discretion regarding whether to submit the special issue of mental retardation to the jury in a bifurcated or unitary capital sentencing proceeding. The court held that in the case before it, the trial court did not abuse its discretion by denying a defense motion to bifurcate the issues of mental retardation and sentence.
The trial court erred by denying the defendant’s request to instruct the jury that a verdict finding the defendant mentally retarded would result in a sentence of life imprisonment without parole. The trial judge had given N.C.P.J.I.—Crim. 150.05, which states, in part, that “no defendant who is mentally retarded shall be sentenced to death,” and the attorneys argued that if the defendant was found mentally retarded he would receive life in prison. Stating that on remand, the trial court should instruct the jury that “[i]f the jury determines the defendant to be mentally retarded, the court shall declare the case noncapital and the defendant shall be sentenced to life imprisonment.”
In this capital case, the court held that the cumulative effect of several errors at trial denied the defendant a fair trial; the court vacated the conviction and sentence and remanded for a new trial. Specifically, and as discussed in more detail in the summaries that follow, the trial court erred by admitting an excessive amount of 404(b) evidence pertaining to another murder; by admitting evidence of the 404(b) murder victim’s good character; and by allowing the prosecution to argue without basis to the jury that defense counsel had in effect suborned perjury.
The trial judge properly denied a defense motion for imposition of a sentence of life imprisonment when polling revealed that the jury had returned a non-unanimous verdict after deliberations of just over 1 hour and 30 minutes. Under 15A-2000(b) “the only contingency in which a trial court unilaterally shall impose a life sentence in a capital case is when the jury is non[-]unanimous after having deliberated for a ‘reasonable time.’”
Where the State put the defendant’s future dangerousness at issue and acknowledged that his only alternative sentence to death was life imprisonment without parole, the Arizona court erred by concluding that the defendant had no right to inform the jury of his parole ineligibility. Under Simmons v. South Carolina, 512 U. S. 154 (1994), and its progeny, where a capital defendant’s future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, the Due Process Clause entitles the defendant to inform the jury of his parole ineligibility, either by a jury instruction or in arguments by counsel.
In a per curiam opinion, for the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020) the court vacated the trial court’s order dismissing the defendant’s motion for appropriate relief filed pursuant to the Racial Justice Act and remanded the case for the reinstatement of the defendant’s sentence of life imprisonment without parole.
Justice Ervin, joined by Justice Davis, concurred in the result because he was bound by the decision in Robinson, a case in which he dissented. Were he not bound by Robinson, Justice Ervin would have dissented for the reasons he stated in Robinson.
Justice Newby dissented for the reasons stated in his dissenting opinion in Robinson.
The complex procedural history of this case, which involves motions for appropriate relief filed by three defendants under the Racial Justice Act and associated proceedings occurring over a years-long period of time when the RJA was amended and then repealed, is recounted in detail in the court’s opinion which vacates the trial court’s order ruling that the repeal of the RJA voided the defendant’s RJA MAR and remands the case for the reinstatement of the defendant’s sentence of life imprisonment without parole. For the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020), the retroactivity provision of the RJA repeal violates the double jeopardy protections of the North Carolina Constitution. For the reasons stated in State v. Ramseur, 374 N.C. 658 (2020), the retroactive application of the RJA repeal violates the prohibitions against ex post facto laws contained in the United States Constitution and the North Carolina Constitution.
Justice Davis concurred in the result for the reasons stated in Justice Ervin’s concurring opinions in State v. Golphin, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020) and State v. Walters, ___ N.C. ___, ___ S.E.2d ___ (Sept. 25, 2020).
Justice Newby dissented for the reasons stated in his dissenting opinions in Robinson and Ramseur.
In a per curiam opinion, for the reasons stated in State v. Robinson, ___ N.C. ___, 846 S.E.2d 711 (2020) the court vacated the trial court’s order dismissing the defendant’s motion for appropriate relief filed pursuant to the Racial Justice Act and remanded the case for the reinstatement of the defendant’s sentence of life imprisonment without parole.
Justice Ervin, joined by Justice Davis, concurred in the result because he was bound by the decision in Robinson, a case in which he dissented. Were he not bound by Robinson, Justice Ervin would have dissented for the reasons he stated in Robinson.
Justice Newby dissented for the reasons stated in his dissenting opinions in Robinson and State v. Ramseur, 374 N.C. 658 (2020).
The defendant was convicted of first-degree murder and sentenced to death in 1994. The defendant filed a timely motion for appropriate relief pursuant to the RJA in 2010. After an evidentiary hearing, the trial court resentenced the defendant to life imprisonment without the possibility of parole. Following resentencing of three other defendants under the RJA, the General Assembly repealed the RJA. The repeal stated that it was retroactive and voided all pending motions for appropriate relief but did not apply to a trial court order resentencing a defendant to life without parole if that order was affirmed on appellate review.
A joint hearing was thereafter held by a different trial judge on the motions for appropriate relief by the four defendants, to consider whether the defendant’s claims were rendered void by the RJA repeal. While the trial court found that the defendant’ss rights had not vested and that the RJA repeal was not an ex post facto law, the Supreme Court held that the trial court erred by failing to consider the defendant’s double jeopardy argument.
The Supreme Court held that the initial trial court’s order resentencing the defendant to life in prison was an acquittal for purposes of double jeopardy. The Court reasoned that once the trial court found that the defendant had proven all of the essential elements under the RJA to bar the imposition of the death penalty, he was acquitted of that capital sentence, jeopardy terminated, and any attempt by the State to reimpose the death penalty would be a violation of the state constitution. One justice, concurring, agreed with the three-member majority that the judgment and commitment order in which the defendant was sentenced to life imprisonment without the possibility of parole was a final judgment, for which appellate review was neither sought nor obtained, and that double jeopardy barred further review.
Justice Newby, in dissent, argued that the majority opinion presented three grounds for its ruling, only one of which garnered four votes, resulting in the narrow holding that the State failed to appeal the amended judgment and commitment order so that order is final. Justice Ervin, in dissent, concluded that based on the Court’s holding in State v. Ramseur, 843 S.E.2d 106 (N.C. 2020), the case should be remanded to the trial court for a full hearing on the merits of the defendant’s RJA claim at a proceeding where the State has a further opportunity to respond.
The defendant was convicted of two counts of first-degree murder based on offenses committed in 2007. He was sentenced to death in 2010. That same year he filed a motion for appropriate relief under the North Carolina Racial Justice Act (RJA), but the trial court did not rule on it until after the General Assembly amended the RJA in 2012 and then repealed it in 2013. The repeal was made retroactively applicable to all pending MARs filed before the effective date of the repeal. The trial court therefore determined that the repeal rendered the defendant’s MAR void and dismissed it. The trial court also ruled in the alternative that the defendant’s RJA claims were without merit and that no evidentiary hearing was necessary to resolve them.
The Supreme Court granted the defendant’s petition for writ of certiorari. (1) The Court agreed with the defendant that retroactive application of the RJA repeal violated the prohibitions against ex post facto laws in the state and federal constitutions. The Court reasoned that this was the type of ex post facto law that inflicts a greater punishment for an offense than the law applicable when it was committed. Though the RJA did not exist when the defendant committed his crimes, the effective date coverage of the original RJA—which did include the defendant’s offense date—made the RJA applicable to crimes committed at that time. The Court concluded that the legislature’s repeal of a prior, retroactively-applicable ameliorative law like the RJA violated ex post facto principles. The Court rejected the State’s argument that the RJA was a mere procedural overlay that did not substantively change the law governing the death penalty. Through the RJA, the 2009 General Assembly affirmatively sought to allow the review of statistical evidence that the Supreme Court had not allowed in McCleskey v. Kemp, 481 U.S. 279 (1987), and to create a new claim for relief not otherwise available. The Court also acknowledged that the RJA repeal happened shortly after four defendants had obtained relief under the original Act, making relevant one of the policy purposes of the Ex Post Facto Clause: to restrain “arbitrary and potentially vindictive legislation.” Slip op. at 29.
(2) The Court next considered whether retroactive application of the 2012 RJA amendments to the defendant also violated the prohibition against ex post facto laws. The 2012 amendments made three significant changes to the law. And because the 2012 legislation included a severability clause, the Court analyzed each of them separately. The first change was to eliminate the mandatory requirement for an evidentiary hearing upon the filing of an RJA claim. The Court concluded that this was a procedural change that—despite working to the disadvantage of some defendants, including Mr. Ramseur—did not implicate the prohibition on ex post facto laws. The second change altered the evidentiary requirements for establishing racial discrimination in an RJA claim in several ways, including shrinking the relevant geographic region from the entire state to the specific county or prosecutorial district, limiting the relevant time for consideration, and mandating that statistical evidence alone is insufficient to establish a meritorious claim. The Court concluded that this second set of changes implemented a more stringent standard of proof for establishing discrimination that cannot permissibly apply retroactively. The third change added a waiver provision, saying that a defendant must waive any objection to imposition of a sentence of life without parole as a prerequisite for asserting an RJA claim. The Court declined to address the constitutionality of that change because it was not at issue in Mr. Ramseur’s case. In summary, the 2012 amendment eliminating the mandatory hearing requirement could permissibly apply to an RJA claim asserted before the amendments became law, but the other evidentiary changes could not. Therefore, the evidentiary rules of the original RJA must apply to pre-amendment filings like Mr. Ramseur’s.
Finally, the Court concluded that the trial court erred by concluding without an evidentiary hearing that the defendant’s RJA MARs were without merit. The defendant’s motions included extensive evidence, stated with particularity, tending to show race was a significant factor in imposition of death sentences within the meaning of the RJA. The Court said the motions also established that the defendant was entitled to discovery of State files under G.S. 15A-1415(f). The Court remanded the case for proceedings not inconsistent with its opinion.
Justice Newby dissented, concluding primarily that the RJA amendments and repeal did not violate ex post facto principles because they left the defendant no worse off than he was when he committed his offense in 2007, before the RJA was enacted.
The defendant was sentenced to death for first-degree murder in 1993. He filed a first motion for appropriate relief in 1997, which was denied in 2011. He filed a new MAR under the North Carolina Racial Justice Act (the RJA MAR) in 2010, amending it twice after the General Assembly amended the RJA in 2012 and then repealed it in 2013. In 2014, the trial court dismissed the defendant’s amended RJA MAR as procedurally barred and, in the alternative, as being without merit. On appeal, the Supreme Court vacated the trial court’s orders and remanded for proceedings not inconsistent with the Court’s opinion in State v. Ramseur, ___ N.C. ___ (2020), summarized above. (1) The General Assembly’s 2013 repeal of the RJA was unconstitutional as applied to the defendant under the state and federal constitutions, and the 2012 amendment can only be applied insofar as it affects procedural aspects of his claim. (2) The Court held that the trial court erred by concluding that the defendant’s RJA MAR was procedurally barred, as the original version of the RJA included language, then codified in G.S. 15A-2012(b), allowing defendants to seek relief “[n]otwithstanding any other provision or time limitation” in the MAR article. (3) The Court also concluded that the trial court abused its discretion by dismissing the defendant’s claims without an evidentiary hearing in light of the evidence presented in his motion, including evidence that race was a factor in jury selection, sentencing, and capital charging decisions in the relevant jurisdictions; statistical evidence from Michigan State University College of Law; expert testimony and evidence from another RJA case; and evidence of race-based juror strikes in his own case. The Court remanded for proceedings not inconsistent with its opinion. Justice Newby dissented for the reasons stated in his dissent in Ramseur.
(1) The court rejected the defendant’s argument that the trial court erred by denying his motion under the Racial Justice Act to prohibit the State from seeking the death penalty without holding an evidentiary hearing. Assuming arguendo that any version of the RJA applies to the defendant, the defendant failed to follow the provisions of that statute which mandate that the claim shall be raised by the defendant at the Rule 24 conference. Here, the defendant did not raise a RJA claim at the Rule 24 conference, despite being twice asked by the trial court whether he wanted to be heard. The court concluded: “Defendant cannot complain of the trial court’s failure to strictly adhere to the RJA’s pretrial statutory procedures where he himself failed to follow those procedures.” The court noted that its ruling was without prejudice to the defendant’s ability to raise an RJA claim in post-conviction proceedings.
(2) 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 the sentencing phase of the trial. On appeal the defendant pointed to two statements made by prosecutors during the State’s closing arguments which refer to the defendant’s decision not to present mitigating evidence or closing statements. The court found no gross impropriety in the prosecutor’s remarks, noting in part that it is not impermissible for prosecutors to comment on the defendant’s lack of mitigating evidence.
(3) The court found that the defendant’s sentencing survived proportionality review, noting in part that the defendant kidnapped a five-year-old child from her home and sexually assaulted her before strangling her and discarding her body under a log in a remote area used for field dressing deer carcasses.
In this capital case, before the supreme court on certiorari from an order of the trial court granting the defendant relief on his Racial Justice Act (RJA) motion for appropriate relief (MAR), the court vacated and remanded to the trial court. The supreme court determined that the trial court abused its discretion by denying the State’s motion to continue, made after receiving the final version of the defendant’s statistical study supporting his MAR approximately one month before the hearing on the motion began. The court reasoned:
The breadth of respondent’s study placed petitioner in the position of defending the peremptory challenges that the State of North Carolina had exercised in capital prosecutions over a twenty-year period. Petitioner had very limited time, however, between the delivery of respondent’s study and the hearing date. Continuing this matter to give petitioner more time would have done no harm to respondent, whose remedy under the Act was a life sentence without the possibility of parole.
It concluded: “Without adequate time to gather evidence and address respondent’s study, petitioner did not have a full and fair opportunity to defend this proceeding.” The court continued:
On remand, the trial court should address petitioner’s constitutional and statutory challenges pertaining to the Act. In any new hearing on the merits, the trial court may, in the interest of justice, consider additional statistical studies presented by the parties. The trial court may also, in its discretion, appoint an expert under N.C. R. Evid. 706 to conduct a quantitative and qualitative study, unless such a study has already been commissioned pursuant to this Court’s Order in State v. Augustine, ___ N.C. ___, ___ S.E.2d ___ (2015) (139PA13), in which case the trial court may consider that study. If the trial court appoints an expert under Rule 706, the Court hereby orders the Administrative Office of the Courts to make funds available for that purpose.
In this second RJA case the supreme court held that “the error recognized in this Court’s Order in [Robinson (summarized immediately above)], infected the trial court’s decision, including its use of issue preclusion, in these cases.” The court vacated the trial court’s order granting the defendant’s RJA MAR and remanded with parallel instructions. It also concluded that the trial court erred when it joined the three cases for an evidentiary hearing.
(1) In a case centered on the constitutionality of the State’s method of execution in capital cases, the Court held that the N.C. Council of State’s process for approving or disapproving the Department of Correction’s lethal injection protocol is not subject to the Administrative Procedure Act and that petitioners cannot challenge it by going through the Office of Administrative Hearings. Instead, the court held, any issue petitioners have with the protocol rests with the state trial courts or the federal courts. (2) The court also held that the superior court erred by dismissing the petitioners’ declaratory judgment claim that the Council’s approval of the execution protocol violated G.S. 15-188. Nevertheless, the court affirmed the superior court’s order as modified because the court correctly construed G.S. 15-188 to mean that petitioners’ rights “are limited to the obligation that [their] death[s] be by lethal injection, in a permanent death chamber in Raleigh, and carried out pursuant to an execution protocol approved by the Governor and the Council of State” and that no factual or legal authority “supports Petitioner[s] claims of a due process right to participate in the approval process.”
The N.C. Medical Board’s position statement on physician participation in executions exceeds its authority under G.S. Chapter 90 because it contravenes the specific requirement of physician presence in G.S. 15-190.
The court remanded to the trial court this case challenging North Carolina’s drug protocol for lethal injections. The plaintiffs appealed a trial court order granting summary judgment to the defendants on the plaintiffs’ challenge to North Carolina’s previously used three-drug protocol for the administration of lethal injections (“the 2007 Protocol”). During the appeal, the 2007 Protocol was replaced by the “Execution Procedure Manual for Single Drug Protocol (Pentobarbital)” (“the new Manual”) after a statutory amendment vested the Secretary of NC Department of Public Safety with the authority to determine execution procedures. As a result, the plaintiffs’ only remaining contention on appeal was that the new Manual must be promulgated through rule-making under the Administrative Procedure Act. The court remanded so that the trial court could determine this issue in the first instance.
If a defendant with no memory of his crime rationally understands why the State seeks to execute him, the Eighth Amendment does not bar execution; if a defendant with dementia cannot rationally understand the reasons for his sentence, it does. What matters, explained the Court, is whether a person has a “rational understanding,” not whether he has any particular memory or any particular mental illness.
The Court noted that in Ford v. Wainwright, 477 U. S. 399 (1986), it held that the Eighth Amendment’s ban on cruel and unusual punishments precludes executing a prisoner who has “lost his sanity” after sentencing. It clarified the scope of that category in Panetti v. Quarterman by focusing on whether a prisoner can “reach a rational understanding of the reason for [his] execution.” Here, Vernon Madison killed a police officer in 1985. An Alabama jury found him guilty of capital murder and he was sentenced to death. In recent years, Madison’s mental condition sharply deteriorated. He suffered a series of strokes, including major ones in 2015 and 2016. He was diagnosed with vascular dementia, with attendant disorientation and confusion, cognitive impairment, and memory loss. Madison claims that he can no longer recollect committing the crime for which he has been sentenced to die. After his 2016 stroke, Madison petitioned the trial court for a stay of execution on the ground that he had become mentally incompetent, citing Ford and Panetti. The trial court found Madison competent to be executed. Madison then unsuccessfully sought federal habeas corpus relief. When Alabama set an execution date in 2018, Madison returned to state court arguing again that his mental condition precluded the State from going forward, noting, in part, that he suffered further cognitive decline. The state court again found Madison mentally competent. The U.S. Supreme Court agreed to review the case.
The Court determined that a person lacking memory of his crime may yet rationally understand why the State seeks to execute him; if so, the Eighth Amendment poses no bar to his execution. It explained: “Assuming, that is, no other cognitive impairment, loss of memory of a crime does not prevent rational understanding of the State’s reasons for resorting to punishment. And that kind of comprehension is the Panetti standard’s singular focus.” It continued, noting that a person suffering from dementia or a similar disorder, rather than psychotic delusions, may be unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment does not allow his execution. What matters, it explained, “is whether a person has the ‘rational understanding’ Panetti requires—not whether he has any particular memory or any particular mental illness.” The Court continued, noting that the “standard has no interest in establishing any precise cause: Psychosis or dementia, delusions or overall cognitive decline are all the same under Panetti, so long as they produce the requisite lack of comprehension.” Ultimately, the Court returned the case to the state court for renewed consideration of Madison’s competency, instructing:
In that proceeding, two matters disputed below should now be clear. First, under Ford and Panetti, the Eighth Amendment may permit executing Madison even if he cannot remember committing his crime. Second, under those same decisions, the Eighth Amendment may prohibit executing Madison even though he suffers from dementia, rather than delusions. The sole question on which Madison’s competency depends is whether he can reach a “rational understanding” of why the State wants to execute him. Panetti, 551 U. S. at 958.
In a per curiam decision in this capital murder case decided under the Antiterrorism and Effective Death Penalty Act of 1996, the Court held that the state court did not unreasonably apply the law when it determined that the defendant was competent to be executed. The defendant was sentenced to death in an Alabama court. As his execution neared, the defendant petitioned the trial court for a suspension of his death sentence, arguing that due to several recent strokes, he had become incompetent to be executed. At a hearing on the matter, a court appointed psychologist noted the defendant’s significant post-stroke decline but testified that he understood the posture of his case and that the State was seeking retribution against him for his criminal act. A defense psychologist testified that the defendant’s strokes rendered him unable to remember numerous events that had occurred in the past. However, he found that the defendant was able to understand the nature of the pending proceeding, what he was tried for, that he was in prison because of murder, that Alabama was seeking retribution for that crime, and the sentence, specifically the meaning of a death sentence. The defense witness also opined that the defendant does not understand the act he is being punished for because he cannot recall the sequence of events from the offense through the trial and believes that he “never went around killing folks.” After the trial court denied the defendant’s petition, the defendant pursued federal habeas proceedings. The federal district court denied the defendant’s petition and the Eleventh Circuit reversed. That court found that because the defendant has no memory of his capital offense it inescapably follows that he does not rationally understand the connection between his crime and his execution. On that basis, the federal appellate court held that the trial court’s conclusion that the defendant is competent to be executed was plainly unreasonable. The Court disagreed. Reviewing its prior case law, the Court concluded that those decisions did not clearly establish that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from the failure to rationally comprehend the concepts of crime and punishment as applied in his case. Thus, the state court did not unreasonably apply Supreme Court law when it determined that the defendant was competent to be executed because, notwithstanding his memory loss, he recognizes that he will be put to death as punishment for the murder he was found to have committed.
A judge who did not preside over the guilt phase of a capital trial had jurisdiction to preside over the penalty phase. The first judge had declared a mistrial as to the penalty phase after the defendant attacked one of his lawyers and both counsel were allowed to withdraw. The fact that the original guilt phase jury did not hear the penalty phase when it was re-tried after the mistrial did not create a jurisdictional issue. A death sentence imposed after the re-trial of the penalty phase was not out-of-session or out-of-term.
In a case where the trial court initially sentenced the defendant correctly but then erroneously thought it had used the wrong sentencing grid and re-sentenced the defendant to a lighter sentence using the wrong grid, the court remanded for imposition of the initial correct but more severe sentence. The court noted that G.S. 15A-1335 did not apply because the higher initial sentence was statutorily mandated.
G.S. 15A-1335 did not apply when on retrial the trial court sentenced the defendant for a different, more serious offense.
The trial court did not violate G.S. 15A-1335 when on remand it sentenced the defendant to a term that was longer than he originally received. The trial court initially imposed an illegal term, sentencing the defendant to a presumptive range sentence of 120 to 153 months; the correct presumptive range sentence for the defendant’s class of offense and prior record level was 135 to 171 months. When the trial court imposed a presumptive range of 135 to 171 months on remand, it was imposing a statutorily mandated sentence that did not run afoul of G.S. 15A-1335.
No violation of G.S. 15A-1335 occurred on resentencing. A jury found the defendant guilty of felonious breaking and entering, felonious larceny, felonious possession of stolen goods, and for being a habitual felon. The trial court consolidated the offenses for judgment and sentenced the defendant to 125-159 months of imprisonment. The appellate court subsequently vacated the felony larceny conviction and remanded for resentencing. At resentencing the trial court consolidated the offenses and again sentenced the defendant to 125-150 months. The defendant argued that because he received the same sentence even though one of the convictions had been vacated, the new sentence violated G.S. 15A-1335. The court disagreed, concluding that the pursuant to G.S. 15A-1340.15(b), having consolidated the sentences, the trial court was required to sentenced the defendant for the most serious offense, which it did at the initial sentencing and the resentencing.
Citing, State v. Oliver, 155 N.C. App 209 (2002), the court held that no violation of G.S. 15A-1335 occurred when, after the defendant’s two death sentences for murder were vacated, the trial judge imposed two consecutive life sentences.
After being found guilty of first-degree rape and first-degree kidnapping, the defendant was sentenced to consecutive terms of 307-378 months for the rape and 133-169 for the kidnapping. On appeal, the court held that the trial judge erred by allowing the same sexual assault to serve as the basis for the rape and first-degree kidnapping convictions. The court remanded for a new sentencing hearing, instructing the trial judge to either arrest judgment on first-degree kidnapping and resentence on second-degree kidnapping, or arrest judgment on first-degree rape and resentence on first-degree kidnapping. The trial judge chose the first option, resentencing the defendant to 370-453 months for first-degree rape and to a consecutive term of 46-65 months for second-degree kidnapping. The resentencing violated G.S. 15A-1335 because the trial court imposed a more severe sentence for the rape conviction after the defendant’s successful appeal. The court rejected the State’s argument that when applying G.S. 15A-1335, the court should consider whether the aggregated new sentences are greater than the aggregated original sentences.
The defendant was convicted of obtaining property by false pretenses for selling boxes purportedly containing iPhones that contained only lug nuts. The defendant argued that the sentence of 36 months supervised probation was erroneous because the trial judge imposed a community punishment, which has a limit of 30 months probation. The Court of Appeals found that the trial judge imposed an intermediate punishment; the only indication to the contrary was a checkmark in the box for community punishment at the top of the judgment. Considering the sentencing hearing, the conditions imposed by the trial judge in the defendant’s presence, and the written judgment, the Court concluded that the mark in the community punishment box was a clerical error and remanded the case for correction.
The court remanded for correction of two clerical errors. The first error was that the trial court inadvertently checked the box on the Judgment form indicating that it made no written findings because the sentence imposed was within the presumptive range but in fact the trial court sentenced the defendant to an aggravated sentence. The second error was that the form used to arrest judgment mistakenly listed the wrong offense.
Finding that the trial court did not abuse its discretion by revoking the defendant’s probation, the court remanded for correction of a clerical error. Specifically, the trial court checked the wrong box on the judgment form indicating the basis for the probation revocation.
The court remanded to the trial court to correct a clerical error in a written order. After the jury convicted the defendant of first-degree felony-murder, armed robbery, and felony possession of a firearm, the trial court rendered an oral ruling arresting judgment on the armed robbery conviction. However the written order arresting judgment reflects the correct file number but incorrectly lists the offense arrested as the weapons charge. The court remanded for correction.
Over a dissent, the court rejected the defendant’s argument that there was a clerical error in the judgment. Although the trial court stated after the jury returned the verdict that it was “going to arrest judgment” on the trafficking by delivery charge, the trial court did not pronounce the sentence at that time because the defendant failed to appear. At a sentencing hearing held several weeks later, the trial court noted that the defendant had been found guilty on three trafficking counts--including trafficking by delivery--and consolidated the trafficking offenses into one judgment. The judgment form reflects that the three offenses were so consolidated. The trial court’s failure to arrest judgment on the trafficking by delivery offense was not a clerical error.
The defendant was properly required to register as a sex offender and submit to SBM. Although the trial court mistakenly found that the defendant had been convicted of an offense against a minor, the error was clerical where other findings were made that would require the defendant to register and submit to SBM and the defendant did not dispute these findings.
Where a plea agreement contemplated that the defendant would be sentenced to community punishment and the trial court indicated that it was so sentencing the defendant, the court remanded for correction of a clerical error in the judgment stating that the sentence was an intermediate one.
The trial court made clerical errors in sentencing. It made a clerical error when it stated that it was arresting judgment on convictions vacated by the court of appeals; in context it was clear that the trial court meant to state that it was vacating those convictions. The trial court also erred by mentioning that it was arresting another conviction when that conviction had not in fact been vacated by the appellate court. The court remanded for correction of these errors.
Where the judgment form mistakenly contained a reference to “Assault with a Deadly Weapon,” a charge on which the defendant was acquitted, but where the error did not affect the sentence imposed, the court remanded for correction of this clerical error. The court rejected the defendant’s argument that the error entitled him to a resentencing.
Where the trial court miscalculated the defendant’s prior record level but where a correction in points would not change the defendant’s sentence, the court treated the error as clerical and remanded for correction. A dissenting judge would have concluded that the error was judicial not clerical.
The court remanded for correction of a clerical error. Specifically, the trial court found at the sentencing hearing that the defendant was a PRL IV offender and ordered him to pay $6,841.50 in attorney’s fees. However, the judgment incorrectly listed him at PRL II and stated that the defendant owes $13,004.45 in attorney’s fees (the amount owed by his co-defendant).
The court remanded for correction of a clerical error where the defendant was convicted of assault with a deadly weapon but the trial court entered judgment for AWDWIK.
Where the trial court determined that the defendant had 16 prior record points and was a prior record level V but the judgment indicated that he had 5 prior record points and was a prior record level III, the entries on the judgment were clerical errors.
A clerical error occurred where the trial court found that it could revoke the defendant’s probation under the Justice Reinvestment Act because the defendant was convicted of another criminal offense while on probation but checked the box on the form indicating that the revocation was based on the fact that the defendant had twice previously been confined in response to violations. Remanding for correction.
A clerical error occurred in a Fair Sentencing Act case when the trial court found an aggravating factor and went on to sentence the defendant above the presumptive range but failed to check the box on the judgment indicating that the aggravating factor existed. The court remanded for correction of the error.
The court remanded for correction of a clerical error where the trial court announced a fine of $100 but the judgment incorrectly reflected a $500 fine.
Where the trial judge erroneously sentenced the defendant to an aggravated term without finding that an aggravating factor existed and that an aggravated sentence was appropriate, a second judge erroneously treated this as a clerical that could be corrected simply by amending the judgment.
In dicta, the court noted that the trial judge was entitled to modify her ruling on a suppression motion because court was still in session.
The court remanded to the trial court for correction of a clerical error in the judgment so that the judgment would reflect the offense the defendant was convicted of committing (trafficking by transportation versus trafficking by delivery).
In a case in which the defendant was sentenced as a Class C habitual felon, the court remanded for correction of a clerical error regarding the felony class of the underlying felony.
Trial judge’s failure to mark the appropriate box in the judgment indicating that the sentence was in the presumptive range was a clerical error.
Listing the victim on the restitution worksheet as an “aggrieved party” was a clerical error.
The trial court committed a clerical error when, in a written order revoking probation, it found that the conditions violated and the facts of each violation were set forth in a violation report dated October 20, 2008, which was the date of a probation violation hearing, not a violation report.
The court treated as a clerical error the trial court’s mistake on the judgment designating an offense as Class G felony when it in fact was a Class H felony. The court remanded for correction of the clerical error.
On the judicial findings and order for sex offender form, the trial court erroneously indicated that the defendant had been convicted of an offense against a minor under G.S. 14-208.6(1i) when in fact he was convicted of a sexually violent offense under G.S. 14-208.6(5). The court remanded for correction of the clerical error.
When the trial court intended to check one box on AOC-CR-615 (judicial findings and order for sex offenders) but another box was marked on the form signed by the judge, this was a clerical error that could be corrected on remand.
The inclusion of an incorrect file number on the caption of a transcript of plea was a clerical error where the plea was taken in compliance with G.S. 15A-1022 and the body of the form referenced the correct file number.
Inadvertent listing of the wrong criminal action number on the judgment was a clerical error.
The trial court’s mistake of ordering SMB for a period of ten years (instead of lifetime registration) after finding that the defendant was a recidivist was not a clerical error.
The trial judge committed a clerical error when he entered judgment for a violation of G.S. 14-34.1(a), the Class E version of discharging a firearm into occupied property. The record showed that, based on the defendant’s prior record level, the judge’s sentence reflected a decision to sentence the defendant to the Class D version of this offense (shooting into occupied dwelling) and at sentencing the judge stated that the defendant was being sentenced for discharging a firearm into an occupied dwelling, the Class D version of the offense.
In this Warren County case, the defendant moved for postconviction DNA testing under G.S. 15A-269 more than two decades after pleading guilty to second-degree murder. The trial court determined that the defendant had failed to show that the requested testing would be material to his defense. The Court of Appeals majority concluded that the General Assembly’s use of the word “verdict” in G.S. 15A-269 did not limit the statute’s application to cases decided by a jury, but ultimately affirmed the trial court’s decision that the defendant here failed to make the necessary showing of materiality to grant his request for postconviction DNA testing. State v. Alexander, 271 N.C. App. 77 (2020). The Supreme Court allowed the defendant’s petition for discretionary review and affirmed the Court of Appeals.
The Supreme Court began by considering as a question of first impression whether defendants who pled guilty are eligible to seek postconviction DNA testing. Like the Court of Appeals, the Court concluded that the statute’s use of the term “verdict” was not intended to limit the law’s application to defendants convicted after a jury trial. Likewise, the law’s reference to “defense” did not exclude defendants who pled guilty. Slip op. ¶ 38 (“[A] defendant’s ‘defense’ may evolve in light of newly available DNA evidence. As a result, the statutory reference to the defendant’s ‘defense’ does not, without more, satisfy us that the General Assembly intended to limit the availability of postconviction DNA testing to defendants who were convicted at the conclusion of a contested trial on the issue of guilt or innocence.”). In light of the statute’s title and purpose and the fact that some innocent people plead guilty for understandable reasons (like avoiding the death penalty), the Court held that the Court of Appeals did not err in determining that a defendant who pleads guilty can nonetheless seek postconviction DNA testing under G.S. 15A-269.
Nevertheless, on the merits of the defendant’s request for postconviction DNA testing, the Supreme Court affirmed the Court of Appeals’ conclusion that the defendant failed to make a sufficient showing of the materiality of any evidence that would be obtained through the testing. The Court concluded that the Court of Appeals applied the correct legal standard in analyzing materiality—that is, whether, in response to the test results, there was a “reasonable probability” that the defendant would have refrained from pleading guilty and obtained a more favorable verdict at any ensuing trial. The Supreme Court reasoned that the discovery of any third-party DNA on the shell casings and projectile found at the crime scene would not likely have changed the outcome because it would not contradict other evidence in the case; rather, it would merely indicate that someone else touched the shell casing and projectile at some point in time, for some reason not necessarily related to the crime.
Chief Justice Newby concurred in the result, writing that in light of the statute’s use of the words “defense” and “verdict,” a defendant who pleads guilty should not be able to make a postconviction motion to test DNA under G.S. 15A-269.
Justice Earls concurred in part and dissented in part, writing that she agreed with the majority’s conclusion that defendants who plead guilty are eligible to seek postconviction DNA testing, but that the majority’s materiality analysis placed too high a burden on the defendant. The evidence Alexander sought might not have conclusively established his innocence, but it might have demonstrated a reasonable probability that he would not have pled guilty to second-degree murder and would not have been convicted had he proceeded to trial—which is, she wrote, all the burden he must carry at this stage.
The trial court erred by denying the defendant’s motion for post-conviction DNA testing and discovery pursuant to G.S. 15A-269. The defendant was tried for burglary, kidnapping, assault by strangulation, rape, sex offense, and attaining habitual felon status. Evidence at trial included, among other things, testimony from the State’s expert in forensic DNA analysis concerning DNA evidence recovered from the victim. The DNA analyst concluded that defendant’s DNA “cannot be excluded as a contributor to the DNA mixture” that was recovered, and that “the chance of selecting an individual at random that would be expected to be included for the observed DNA mixture profile” was approximately, “for the North Carolina black population, 1 in 14.5 million[.]” The defendant was convicted and his conviction was affirmed on direct appeal. He then filed a pro se motion with the trial court under G.S. 15A-269 and included a sworn affidavit maintaining his innocence. The trial court treated the motion as a Motion for Appropriate Relief (MAR) and denied the motion. It determined that the defendant had not complied with the service and filing requirements for MARs, did not allege newly discovered evidence or other genuine issues that would require a hearing, and that the claims were procedurally barred under the MAR statute. The Court of Appeals granted the defendant’s petition for writ of certiorari and reversed. The court noted that the procedures for post-conviction DNA testing pursuant to G.S. 15A-269 are distinct from those that apply to MARs. Thus, when a defendant brings a motion for post-conviction DNA testing pursuant to G.S. 15A-269, the trial court must rule on the motion in accordance with the statutes that apply to that type of motion. The trial court may not supplant those procedures with procedures applicable to MARs. The court vacated and remanded for the trial court’s review consistent with the relevant statutes.
In a 6-to-3 decision, the Court held that a convicted state prisoner seeking DNA testing of crime-scene evidence may assert a claim under 42 U.S.C. § 1983. However, the Court noted that District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009), severely limits the federal action a state prisoner may bring for DNA testing. It stated: “Osborne rejected the extension of substantive due process to this area, and left slim room for the prisoner to show that the governing state law denies him procedural due process.” Slip Op. at 2 (citation omitted).
A defendant whose criminal conviction has become final does not have a substantive due process right to gain access to evidence so that it can be subjected to DNA testing to attempt to prove innocence. Additionally, the Court rejected the holding below that Alaska’s procedures for post-conviction relief violated the defendant’s procedural due process rights.
Considering an issue of first impression, the court held that the pro se indigent defendant made an insufficient showing that post-conviction DNA testing “may be material to [his] claim of wrongful conviction” and consequently the trial court did not err by denying his motion for DNA testing under G.S. 15A-269 before appointing him counsel. The court explained that the showing a defendant must make to be entitled to appointment of counsel under G.S. 15A-269(c) is a lesser burden than that required to obtain DNA testing under G.S. 15A-269(a) because subsection (a) requires a showing that the testing “is material” to the defendant’s defense while subsection (c) requires a showing that testing “may be material” to the defense. The term “material,” the meaning of which the court discussed extensively in its opinion, maintains the same definition under both statutory provisions, but the showing differs due to the varying use of the modifiers “is” and “may be.” Here, in light of the overwhelming evidence at trial of the defendant’s guilt, the dearth of evidence at trial implicating a second perpetrator, and the unlikelihood that DNA testing would establish the involvement of a third party, the defendant failed to satisfy his burden of showing that DNA testing may be material to his claim of wrongful conviction.
On appeal from the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 699 (2017), the court affirmed per curiam. In the opinion below, the Court of Appeals affirmed the trial court’s order denying the defendant’s pro se motion to locate and preserve evidence and motion for post-conviction DNA testing. The defendant pleaded guilty to multiple counts of indecent liberties, 2 counts of second-degree sexual offense and 2 counts of felony child abuse. He did not appeal. Nearly 2 years later he filed a pro se motion to locate and preserve evidence and motion for post-conviction DNA testing. The motion listed 12 pieces of physical evidence that the defendant alleged needed to be tested and preserved because they would prove that he was not the perpetrator. The trial court denied the defendant’s motion concluding that he had not made a showing that DNA testing may be material to his claim of wrongful conviction. As a result, the trial court declined to either appoint counsel or conduct an evidentiary hearing on the motion. The defendant appealed. The Court of Appeals concluded that the defendant’s burden of showing materiality under the post-conviction DNA statute requires more than a conclusory statement that the ability to conduct the testing is material to the defense. Rather, the defendant must provide specific reasons why the requested test would be significantly more accurate or probative of the identity of the perpetrator or accomplice or that there is a reasonable probability of contradicting previous test results. Here, the defendant’s bare assertion that the DNA testing would prove he is not the perpetrator is not sufficiently specific to establish that the requested DNA testing would be material to his defense. Accordingly, the trial court did not err by summarily denying his request for post-conviction DNA testing and court-appointed counsel to prosecute the motion.
(1) The trial court did not err by denying the defendant’s motion for post-conviction DNA testing without appointing counsel. The statute requires appointment of counsel only on a showing that the DNA testing may be material to the defendant’s claim of wrongful conviction. The burden of establishing materiality is on the defendant. To meet this burden, the defendant must do more than make a conclusory statement that the ability to conduct the requested testing is material to the defense. Where—as here--the case involves a guilty plea, the defendant has a heightened burden to show materiality. Here, the defendant’s justifications for DNA testing are merely conclusory statements. In a footnote, the court noted that the trial court did not address materiality and that “a specific finding or conclusion of materiality” by the trial court “would be helpful to our appellate review.”
(2) The court rejected the defendant’s argument that the trial court erred by summarily denying his motion for a complete inventory of evidence under G.S. 15A-268. That statute provides that upon written request by the defendant the custodial agency shall prepare an inventory of biological evidence relevant to the case that is in the custodial agency’s custody. However, a request for location and preservation of evidence, as occurred here, is not a request for an inventory of evidence. Thus, the trial court did not err by denying the defendant’s motion for post-conviction DNA testing prior to obtaining an inventory of biological evidence which the defendant never requested. Even if the defendant had requested an inventory of biological evidence from the trial court, it would have been improper for the trial court to grant such a request where there was no evidence that the defendant had requested the inventory from the custodial agency.
(3) The court rejected the defendant’s argument that the trial court erred by summarily denying his motion for an inventory of evidence under G.S. 15A-269. That statute provides that upon receipt of a motion for post-conviction DNA testing the custodial agency shall inventory the evidence and provide an inventory list to, among others, the defendant. Under the statute, a defendant need not make a request for an inventory of physical evidence. Instead, the custodial agency’s obligation to do the inventory is triggered upon receipt of a motion for post-conviction DNA testing. Here, the record lacks proof that either the defendant or the trial court served the custodial agency with the motion for inventory. Assuming arguendo that the trial court had the burden to do so, any error that occurred is harmless because the defendant failed to meet his burden of showing materiality.
In this child sexual assault case, the trial court did not err by refusing to appoint counsel to litigate the defendant’s pro se motion for post-conviction DNA testing. Under G.S. 15A-269(c), to be entitled to counsel, the defendant must establish that the DNA testing may be material to his wrongful conviction claim. The defendant’s burden to show materiality requires more than a conclusory statement. Here, the defendant’s conclusory contention that testing was material was insufficient to carry his burden. Additionally, the defendant failed to include the lab report that he claims shows that certain biological evidence was never analyzed. The court noted that the record does not indicate whether this evidence still exists and that after entering a guilty plea, evidence need only be preserved until the earlier of 3 years from the date of conviction or until the defendant is released.
(1) The trial court did not err by denying defendant’s motion for post-conviction DNA testing under G.S. 15A-269. Defendant’s motion contained only the following conclusory statement regarding materiality: “The ability to conduct the requested DNA testing is material to defendant[’]s defense[.]” That conclusory statement was insufficient to satisfy his burden under the statute. (2) The court rejected defendant’s argument that the trial court erred in failing to consider defendant’s request for the appointment of counsel pursuant to G.S. 15A-269(c), concluding that an indigent defendant must make a sufficient showing of materiality before he or she is entitled to appointment of counsel.
The trial court did not err by failing to appoint counsel to represent the defendant on a motion for post-conviction DNA testing. The trial court is required to appoint counsel for a motion under G.S. 15A-269 only if the defendant makes a showing of indigence and that the DNA testing is material to defendant’s claim of wrongful conviction. Here, the defendant did not make a sufficient showing of materiality, which requires more than a conclusory statement that the evidence is material.
On appeal from the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 699 (2017), the court affirmed per curiam. In the opinion below, the Court of Appeals affirmed the trial court’s order denying the defendant’s pro se motion to locate and preserve evidence and motion for post-conviction DNA testing. The defendant pleaded guilty to multiple counts of indecent liberties, 2 counts of second-degree sexual offense and 2 counts of felony child abuse. He did not appeal. Nearly 2 years later he filed a pro se motion to locate and preserve evidence and motion for post-conviction DNA testing. The motion listed 12 pieces of physical evidence that the defendant alleged needed to be tested and preserved because they would prove that he was not the perpetrator. The trial court denied the defendant’s motion concluding that he had not made a showing that DNA testing may be material to his claim of wrongful conviction. As a result, the trial court declined to either appoint counsel or conduct an evidentiary hearing on the motion. The defendant appealed. The Court of Appeals concluded that the defendant’s burden of showing materiality under the post-conviction DNA statute requires more than a conclusory statement that the ability to conduct the testing is material to the defense. Rather, the defendant must provide specific reasons why the requested test would be significantly more accurate or probative of the identity of the perpetrator or accomplice or that there is a reasonable probability of contradicting previous test results. Here, the defendant’s bare assertion that the DNA testing would prove he is not the perpetrator is not sufficiently specific to establish that the requested DNA testing would be material to his defense. Accordingly, the trial court did not err by summarily denying his request for post-conviction DNA testing and court-appointed counsel to prosecute the motion.
The court held that trial court was not required to hold an evidentiary hearing on the defendant’s motion, noting:
[A] trial court is not required to conduct an evidentiary hearing where it can determine from the trial record and the information in the motion that the defendant has failed to meet his burden of showing any evidence resulting from the DNA testing being sought would be material. A trial court is not required to conduct an evidentiary hearing on the motion where the moving defendant fails to describe the nature of the evidence he would present at such a hearing which would indicate that a reasonable probability exists that the DNA testing sought would produce evidence that would be material to his defense.
The rules of evidence apply to proceedings related to post-conviction motions for DNA testing under G.S. 15A-269.
(1) The trial court did not err by denying the defendant’s motion for post-conviction DNA testing without appointing counsel. The statute requires appointment of counsel only on a showing that the DNA testing may be material to the defendant’s claim of wrongful conviction. The burden of establishing materiality is on the defendant. To meet this burden, the defendant must do more than make a conclusory statement that the ability to conduct the requested testing is material to the defense. Where—as here--the case involves a guilty plea, the defendant has a heightened burden to show materiality. Here, the defendant’s justifications for DNA testing are merely conclusory statements. In a footnote, the court noted that the trial court did not address materiality and that “a specific finding or conclusion of materiality” by the trial court “would be helpful to our appellate review.”
(2) The court rejected the defendant’s argument that the trial court erred by summarily denying his motion for a complete inventory of evidence under G.S. 15A-268. That statute provides that upon written request by the defendant the custodial agency shall prepare an inventory of biological evidence relevant to the case that is in the custodial agency’s custody. However, a request for location and preservation of evidence, as occurred here, is not a request for an inventory of evidence. Thus, the trial court did not err by denying the defendant’s motion for post-conviction DNA testing prior to obtaining an inventory of biological evidence which the defendant never requested. Even if the defendant had requested an inventory of biological evidence from the trial court, it would have been improper for the trial court to grant such a request where there was no evidence that the defendant had requested the inventory from the custodial agency.
(3) The court rejected the defendant’s argument that the trial court erred by summarily denying his motion for an inventory of evidence under G.S. 15A-269. That statute provides that upon receipt of a motion for post-conviction DNA testing the custodial agency shall inventory the evidence and provide an inventory list to, among others, the defendant. Under the statute, a defendant need not make a request for an inventory of physical evidence. Instead, the custodial agency’s obligation to do the inventory is triggered upon receipt of a motion for post-conviction DNA testing. Here, the record lacks proof that either the defendant or the trial court served the custodial agency with the motion for inventory. Assuming arguendo that the trial court had the burden to do so, any error that occurred is harmless because the defendant failed to meet his burden of showing materiality.
(1) The trial court properly denied the defendant’s motion for post-conviction DNA testing. The defendant, who pleaded guilty to multiple sexual assaults, filed a pro se motion seeking DNA testing of evidence he alleged was collected by law enforcement, including vials of blood and saliva, a bag of clothes, and a rape kit. The court found that the post-conviction DNA testing statute was not intended to “completely forestall” the filing of such a motion when the defendant enters a guilty plea. It continued, noting that when such a motion is filed “[t]he trial court is obligated to consider the facts surrounding a defendant’s decision to plead guilty in addition to other evidence, in the context of the entire record of the case, in order to determine whether the evidence is ‘material’” within the meaning of the post-conviction DNA testing statute. A defendant’s burden to show materiality requires more than a conclusory statement that the ability to conduct the requested testing is material to the defense. Here, the defendant’s assertion in his motion that his DNA would not be found in the rape kit essentially amounts to a statement that testing would show he was not the perpetrator. The court noted that it has previously held that such a statement is insufficient to establish materiality. The court thus found that the defendant failed to show the DNA testing would have been material to his defense. Specifically, the record indicates that the defendant was convicted of multiple counts of statutory rape for encounters with a single victim which took place over many months; the defendant confessed to the crimes; and the victim reported that the defendant had sexually abused her. The defendant’s motion requested that DNA testing be performed on certain items recovered from the victim over a month after the defendant’s last alleged contact with the victim. The lack of DNA on those items, recovered well after the alleged crimes, would not conclusively prove that the defendant was not involved in the conduct at issue. Additionally, the Sheriff’s office indicated that the only relevant evidence it had—or ever had—was a computer that an officer searched for child pornography with the defendant’s consent.
(2) The court found that the defendant’s challenge to the trial court’s denial of his request for an inventory of biological evidence pursuant to G.S. 15A-268 was not properly before it. The defendant asserted that he requested an inventory from a hospital and DSS, whom he alleged had clothing, hair and blood samples, and other items. However, there was no evidence of these requests in the record. Without any evidence that the defendant made a proper request pursuant to the statute and without any indication that the trial court considered this issue, the court found that there was no ruling for it to review.
(1) The court dismissed the defendant’s argument that the trial court erred by failing to order an inventory of biological evidence under G.S. 15A-269(f). Under the statute, a request for post-conviction DNA testing triggers an obligation for the custodial agency to inventory relevant biological evidence. Thus, a defendant who requests DNA testing under G.S. 15A-269 need not make any additional written request for an inventory of biological evidence. However, the required inventory under section 15A-269 is merely an ancillary procedure to an underlying request for DNA testing. Where, as here, the defendant has abandoned his right to appellate review of the denial of his request for DNA testing, there is no need for the inventory required by G.S. 15A-269(f). (2) The court rejected the defendant’s argument that the trial court erred by failing to order preparation of an inventory of biological evidence under G.S. 15A-268 where the defendant failed to make a written request as required by G.S. 15A-268(a7). The defendant’s motion asked only that certain “physical evidence obtained during the investigation of his criminal case be located and preserved.”
In this Warren County case, the defendant moved for postconviction DNA testing under G.S. 15A-269 more than two decades after pleading guilty to second-degree murder. The trial court determined that the defendant had failed to show that the requested testing would be material to his defense. The Court of Appeals majority concluded that the General Assembly’s use of the word “verdict” in G.S. 15A-269 did not limit the statute’s application to cases decided by a jury, but ultimately affirmed the trial court’s decision that the defendant here failed to make the necessary showing of materiality to grant his request for postconviction DNA testing. State v. Alexander, 271 N.C. App. 77 (2020). The Supreme Court allowed the defendant’s petition for discretionary review and affirmed the Court of Appeals.
The Supreme Court began by considering as a question of first impression whether defendants who pled guilty are eligible to seek postconviction DNA testing. Like the Court of Appeals, the Court concluded that the statute’s use of the term “verdict” was not intended to limit the law’s application to defendants convicted after a jury trial. Likewise, the law’s reference to “defense” did not exclude defendants who pled guilty. Slip op. ¶ 38 (“[A] defendant’s ‘defense’ may evolve in light of newly available DNA evidence. As a result, the statutory reference to the defendant’s ‘defense’ does not, without more, satisfy us that the General Assembly intended to limit the availability of postconviction DNA testing to defendants who were convicted at the conclusion of a contested trial on the issue of guilt or innocence.”). In light of the statute’s title and purpose and the fact that some innocent people plead guilty for understandable reasons (like avoiding the death penalty), the Court held that the Court of Appeals did not err in determining that a defendant who pleads guilty can nonetheless seek postconviction DNA testing under G.S. 15A-269.
Nevertheless, on the merits of the defendant’s request for postconviction DNA testing, the Supreme Court affirmed the Court of Appeals’ conclusion that the defendant failed to make a sufficient showing of the materiality of any evidence that would be obtained through the testing. The Court concluded that the Court of Appeals applied the correct legal standard in analyzing materiality—that is, whether, in response to the test results, there was a “reasonable probability” that the defendant would have refrained from pleading guilty and obtained a more favorable verdict at any ensuing trial. The Supreme Court reasoned that the discovery of any third-party DNA on the shell casings and projectile found at the crime scene would not likely have changed the outcome because it would not contradict other evidence in the case; rather, it would merely indicate that someone else touched the shell casing and projectile at some point in time, for some reason not necessarily related to the crime.
Chief Justice Newby concurred in the result, writing that in light of the statute’s use of the words “defense” and “verdict,” a defendant who pleads guilty should not be able to make a postconviction motion to test DNA under G.S. 15A-269.
Justice Earls concurred in part and dissented in part, writing that she agreed with the majority’s conclusion that defendants who plead guilty are eligible to seek postconviction DNA testing, but that the majority’s materiality analysis placed too high a burden on the defendant. The evidence Alexander sought might not have conclusively established his innocence, but it might have demonstrated a reasonable probability that he would not have pled guilty to second-degree murder and would not have been convicted had he proceeded to trial—which is, she wrote, all the burden he must carry at this stage.
On appeal from the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 699 (2017), the court affirmed per curiam. In the opinion below, the Court of Appeals affirmed the trial court’s order denying the defendant’s pro se motion to locate and preserve evidence and motion for post-conviction DNA testing. The defendant pleaded guilty to multiple counts of indecent liberties, 2 counts of second-degree sexual offense and 2 counts of felony child abuse. He did not appeal. Nearly 2 years later he filed a pro se motion to locate and preserve evidence and motion for post-conviction DNA testing. The motion listed 12 pieces of physical evidence that the defendant alleged needed to be tested and preserved because they would prove that he was not the perpetrator. The trial court denied the defendant’s motion concluding that he had not made a showing that DNA testing may be material to his claim of wrongful conviction. As a result, the trial court declined to either appoint counsel or conduct an evidentiary hearing on the motion. The defendant appealed. The Court of Appeals concluded that the defendant’s burden of showing materiality under the post-conviction DNA statute requires more than a conclusory statement that the ability to conduct the testing is material to the defense. Rather, the defendant must provide specific reasons why the requested test would be significantly more accurate or probative of the identity of the perpetrator or accomplice or that there is a reasonable probability of contradicting previous test results. Here, the defendant’s bare assertion that the DNA testing would prove he is not the perpetrator is not sufficiently specific to establish that the requested DNA testing would be material to his defense. Accordingly, the trial court did not err by summarily denying his request for post-conviction DNA testing and court-appointed counsel to prosecute the motion.
In this capital case, the court held that the defendant failed to prove materiality in connection with his request for post-conviction DNA testing of hair samples. The hair samples were found in a trash bag in which the victim’s body had been placed. Before the trial court the defendant argued that the requested testing was material for two reasons. First, the evidence at trial showed two separate crimes, a rape and murder; acknowledging that DNA evidence implicated him in the rape, the defendant asserted that the hairs could relate to another perpetrator, and potentially the only perpetrator of the murder. Second, the defendant argued that the State’s closing argument relied in part on the forensic analysis of hairs recovered from the defendant’s residence that were found to be microscopically consistent with the victim’s hair; the defendant asserted that if those hairs were material to the State, the hairs found in the bag were material to the defense. The trial court denied the testing motion, finding that the defendant failed to establish materiality. The trial court considered, among other things, the evidence presented at trial and prior post-conviction DNA testing that was done on vaginal and rectal swabs from the victim’s body that ultimately implicated the defendant. The court began by adopting the following standard of review of the denial of the motion for post-conviction DNA testing: findings of fact are binding if supported by competent evidence and may not be disturbed absent an abuse of discretion; conclusions of law are reviewed de novo. The court further determined that the post-conviction DNA statute adopted the Brady materiality standard. It went on to conclude that taken together, the overwhelming evidence of guilt at trial, the dearth of trial evidence pointing to a second perpetrator, and “the inability of forensic testing to determine whether the hair samples at issue are relevant to establish a third party was involved”, created an “insurmountable hurdle” to the defendant’s materiality argument with respect to either the conviction or sentence. Finally, the court denied the defendant’s request that the court exercise its constitutional supervisory or inherent authority to order testing.
(1) The trial court did not err by denying the defendant’s motion for post-conviction DNA testing without appointing counsel. The statute requires appointment of counsel only on a showing that the DNA testing may be material to the defendant’s claim of wrongful conviction. The burden of establishing materiality is on the defendant. To meet this burden, the defendant must do more than make a conclusory statement that the ability to conduct the requested testing is material to the defense. Where—as here--the case involves a guilty plea, the defendant has a heightened burden to show materiality. Here, the defendant’s justifications for DNA testing are merely conclusory statements. In a footnote, the court noted that the trial court did not address materiality and that “a specific finding or conclusion of materiality” by the trial court “would be helpful to our appellate review.”
(2) The court rejected the defendant’s argument that the trial court erred by summarily denying his motion for a complete inventory of evidence under G.S. 15A-268. That statute provides that upon written request by the defendant the custodial agency shall prepare an inventory of biological evidence relevant to the case that is in the custodial agency’s custody. However, a request for location and preservation of evidence, as occurred here, is not a request for an inventory of evidence. Thus, the trial court did not err by denying the defendant’s motion for post-conviction DNA testing prior to obtaining an inventory of biological evidence which the defendant never requested. Even if the defendant had requested an inventory of biological evidence from the trial court, it would have been improper for the trial court to grant such a request where there was no evidence that the defendant had requested the inventory from the custodial agency.
(3) The court rejected the defendant’s argument that the trial court erred by summarily denying his motion for an inventory of evidence under G.S. 15A-269. That statute provides that upon receipt of a motion for post-conviction DNA testing the custodial agency shall inventory the evidence and provide an inventory list to, among others, the defendant. Under the statute, a defendant need not make a request for an inventory of physical evidence. Instead, the custodial agency’s obligation to do the inventory is triggered upon receipt of a motion for post-conviction DNA testing. Here, the record lacks proof that either the defendant or the trial court served the custodial agency with the motion for inventory. Assuming arguendo that the trial court had the burden to do so, any error that occurred is harmless because the defendant failed to meet his burden of showing materiality.
(1) The trial court properly denied the defendant’s motion for post-conviction DNA testing. The defendant, who pleaded guilty to multiple sexual assaults, filed a pro se motion seeking DNA testing of evidence he alleged was collected by law enforcement, including vials of blood and saliva, a bag of clothes, and a rape kit. The court found that the post-conviction DNA testing statute was not intended to “completely forestall” the filing of such a motion when the defendant enters a guilty plea. It continued, noting that when such a motion is filed “[t]he trial court is obligated to consider the facts surrounding a defendant’s decision to plead guilty in addition to other evidence, in the context of the entire record of the case, in order to determine whether the evidence is ‘material’” within the meaning of the post-conviction DNA testing statute. A defendant’s burden to show materiality requires more than a conclusory statement that the ability to conduct the requested testing is material to the defense. Here, the defendant’s assertion in his motion that his DNA would not be found in the rape kit essentially amounts to a statement that testing would show he was not the perpetrator. The court noted that it has previously held that such a statement is insufficient to establish materiality. The court thus found that the defendant failed to show the DNA testing would have been material to his defense. Specifically, the record indicates that the defendant was convicted of multiple counts of statutory rape for encounters with a single victim which took place over many months; the defendant confessed to the crimes; and the victim reported that the defendant had sexually abused her. The defendant’s motion requested that DNA testing be performed on certain items recovered from the victim over a month after the defendant’s last alleged contact with the victim. The lack of DNA on those items, recovered well after the alleged crimes, would not conclusively prove that the defendant was not involved in the conduct at issue. Additionally, the Sheriff’s office indicated that the only relevant evidence it had—or ever had—was a computer that an officer searched for child pornography with the defendant’s consent.
(2) The court found that the defendant’s challenge to the trial court’s denial of his request for an inventory of biological evidence pursuant to G.S. 15A-268 was not properly before it. The defendant asserted that he requested an inventory from a hospital and DSS, whom he alleged had clothing, hair and blood samples, and other items. However, there was no evidence of these requests in the record. Without any evidence that the defendant made a proper request pursuant to the statute and without any indication that the trial court considered this issue, the court found that there was no ruling for it to review.
In this child sexual assault case, the trial court did not err by refusing to appoint counsel to litigate the defendant’s pro se motion for post-conviction DNA testing. Under G.S. 15A-269(c), to be entitled to counsel, the defendant must establish that the DNA testing may be material to his wrongful conviction claim. The defendant’s burden to show materiality requires more than a conclusory statement. Here, the defendant’s conclusory contention that testing was material was insufficient to carry his burden. Additionally, the defendant failed to include the lab report that he claims shows that certain biological evidence was never analyzed. The court noted that the record does not indicate whether this evidence still exists and that after entering a guilty plea, evidence need only be preserved until the earlier of 3 years from the date of conviction or until the defendant is released.
(1) The trial court did not err by denying defendant’s motion for post-conviction DNA testing under G.S. 15A-269. Defendant’s motion contained only the following conclusory statement regarding materiality: “The ability to conduct the requested DNA testing is material to defendant[’]s defense[.]” That conclusory statement was insufficient to satisfy his burden under the statute. (2) The court rejected defendant’s argument that the trial court erred in failing to consider defendant’s request for the appointment of counsel pursuant to G.S. 15A-269(c), concluding that an indigent defendant must make a sufficient showing of materiality before he or she is entitled to appointment of counsel.
(1) The trial court properly denied the defendant’s motion for post-conviction DNA testing. The defendant was convicted of murdering his wife; her body was discovered in a utility shop behind their home. He sought DNA testing of five cigarettes and a beer can that were found in the utility shop, arguing that Karen Fowler, with whom the defendant had an affair, or her sons committed the murder. He asserted that testing may show the presence of DNA from Fowler or her sons at the scene. The defendant failed to prove the materiality of sought-for evidence, given the overwhelming evidence of guilt and the fact that DNA testing would not reveal who brought the items into the utility shop or when they were left there. The court noted: “While the results from DNA testing might be considered ‘relevant,’ had they been offered at trial, they are not ‘material’ in this postconviction setting.”
The trial court did not err by denying the defendant’s motion for post-conviction DNA testing where the defendant did not meet his burden of showing materiality under G.S. 15A-269(a)(1). The defendant made only a conclusory statement that "[t]he ability to conduct the requested DNA testing is material to the Defendant's defense"; he provided no other explanation of why DNA testing would be material to his defense.
The trial court did not err by denying the defendant’s motion for post-conviction independent DNA testing. The defendant was convicted of first-degree murder (based on premeditation and deliberation and felony-murder predicated upon discharge of a weapon into occupied property), discharge of a weapon into occupied property, and misdemeanor violation of a domestic violence protective order. The defendant argued that the trial court erred by concluding that DNA testing was not material to the defense. Specifically, he asserted that the State’s theory of the case indicated that the victim was inside the home and the defendant was outside when he discharged his handgun. The defendant further argued that blood on his pants was never tested. He asserted that if DNA evidence indicates the blood belonged to the victim, the defendant could argue that he was in close proximity to the victim, that he did not shoot from outside the residence, and that he would have the basis for a heat-of-passion defense to first-degree murder. The court rejected this argument, concluding that the evidence submitted by defendant in support of his motion supported the jury’s verdict and did not support a jury instruction on the heat-of-passion defense. It noted: “Defendant’s contention that he was in close proximity to the victim at some point, even if supported by DNA evidence, does not minimize the significance of or otherwise refute the substantial evidence that defendant fired a gun into occupied property and that the victim suffered fatal gunshot wounds as a result.”
The trial court properly denied the defendant’s pro se motion for post-conviction DNA testing where the defendant failed to adequately establish that newer and more accurate tests would identify the perpetrator or contradict prior test results. It reasoned:
Defendant’s mere allegations that “newer and more accurate testing” methods exist, “which would provide results that are significantly more accurate and probative of the identity of the perpetrator [o]r accomplice, or have a reasonable probability of . . . contradicting prior test results” are incomplete and conclusory. Even though he named a new method of DNA testing, he provided no information about how this method is different from and more accurate than the type of DNA testing used in this case. Without more specific detail from Defendant or some other evidence, the trial court could not adequately determine whether additional testing would be significantly more accurate and probative or have a reasonable probability of contradicting past test results.
The post-conviction DNA testing statute does not require the trial court to make findings of fact when denying a motion. “A trial court’s order is sufficient so long as it states that the court reviewed the defendant’s motion, cites the statutory requirements for granting the motion, and concludes that the defendant failed to show that all the required conditions were met.”
The trial court did not err by failing to make specific findings of fact when denying the defendant’s request for post-conviction DNA testing under G.S. 15A-269. The statute contains no requirement that the trial court make specific findings of fact.
(1) The court held that it had both jurisdiction and authority to decide whether Anders-type review should be prohibited, allowed, or required in appeals from G.S. 15A-270.1. Exercising this discretionary authority, the court held that Anders procedures apply to appeals pursuant to G.S. 15A–270.1. However, it was careful to limit its holding “to the issue before us – appeal pursuant to N.C.G.S. § 15A– 270.1.”
(2) Conducting an Anders review in this appeal from the trial court’s denial of the defendant’s motion to locate and preserve evidence and for post-conviction DNA testing pursuant to G.S. 15A-268 and 269, the court found the appeal wholly frivolous. In this homicide case the defendant argued that he did not act with premeditation and deliberation in killing the victim and did not come to her apartment with intent to commit a felony therein. The court found that these averments bear no relation to the integrity of the DNA evidence presented at trial or to the potential value of additional testing. The court also found that the defendant’s argument was “wholly at odds” with the theory presented in his motion to the trial court, that is, that the testing would prove he was not the perpetrator.
The court adopted the following standard of review of a denial for post-conviction DNA testing: Findings of fact are binding if supported by competent evidence and may not be disturbed absent an abuse of discretion; conclusions of law are reviewed de novo.
A defendant does not have a right to appeal a trial judge’s order denying relief following a hearing to evaluate test results.
Having erroneously arrested judgment on a DWI charge to which the defendant had pleaded guilty, the trial court had authority to correct the invalid judgment and sentence the defendant even after the session ended. Citing State v. Branch, 134 N.C. App. 637 (1999), the court noted in dicta that the trial court’s authority to correct invalid sentences includes sentences that exceed the statutory maximum. For a more detailed discussion of Branch and the trial court’s authority to sua sponte correct errors, see Jessica Smith, Trial Judge’s Authority to Sua Sponte Correct Errors after Entry of Judgment in a Criminal Case, Admin. of Justice. Bull. May 2003 (UNC School of Government) (online here : http://www.sog.unc.edu/sites/www.sog.unc.edu/files/aoj200302.pdf).
The Supreme Court held that it had jurisdiction to decide an appeal from a divided decision of the Court of Appeals reversing a trial court’s ruling denying a MAR. The defendant was convicted of armed robbery. He was unsuccessful on his direct appeal. The defendant then filed an MAR arguing that the evidence was insufficient to support his conviction and that his appellate counsel was ineffective for failing to raise this claim on appeal. The trial court denied the defendant’s MAR. A divided Court of Appeals reversed, with instructions to grant the MAR and vacate the conviction. The Supreme Court noted that G.S. 7A-30(2) provides an automatic right of appeal based on a dissent at the Court of Appeals. However, that automatic right of appeal is limited by G.S. 7A-28, which states that decisions of the Court of Appeals upon review of G.S. 15A-1415 MARs (MARs by the defendant filed more than 10 days after entry of judgment) are final and not subject to further review. However, the supervisory authority granted to the court by Article IV, Section 12 of the North Carolina Constitution gave the court a restriction to hear the appeal.
The Court of Appeals had subject-matter jurisdiction to review, pursuant to the State’s petition for writ of certiorari, a trial court’s grant of its own motion for appropriate relief (MAR). The defendant pleaded guilty to rape of a child by an adult offender and to sexual offense with a child by an adult offender, both felonies with mandatory minimum sentences of 300 months. Pursuant to a plea arrangement, the trial court consolidated the convictions for judgment and imposed a single active sentence of 300 to 420 months. The trial court then immediately granted its own MAR and vacated the judgment and sentence. It concluded that, as applied to the defendant, the mandatory sentence violated the Eighth Amendment; the court resentenced the defendant to 144 to 233 months. The State petitioned the Court of Appeals for a writ of certiorari to review the trial court’s MAR order. The defendant responded, arguing that under State v. Starkey, 177 N.C. App. 264, the court of appeals lacked subject-matter jurisdiction to review a trial court’s sua sponte grant of a MAR. The Court of Appeals allowed the State’s petition and issued the writ. The Court of Appeals found no Eighth Amendment violation, vacated the defendant’s sentence and the trial court’s order granting appropriate relief, and remanded the case for a new sentencing hearing. See State v. Thomsen, ___ N.C. App. ___, ___, 776 S.E.2d 41, 48 (2015). Before the supreme court, the parties disagreed on whether the trial court’s sua sponte motion was pursuant to G.S. 15A-1415(b) (defendant’s MAR) or G.S. 15A-1420(d) (trial court’s sua sponte MAR). The court found it unnecessary to resolve this dispute, holding first that if the MAR was made under G.S. 15A-1415, State v. Stubbs, 368 N.C. 40, 42-43, authorized review by way of certiorari. Alternatively, if the MAR was made pursuant to G.S. 1420(d), G.S. 7A-32(c) gives the Court of Appeals jurisdiction to review a lower court judgment by writ of certiorari, unless a more specific statute restricts jurisdiction. Here, no such specific statute exists. It went on to hold that to the extent Starkey was inconsistent with this holding it was overruled.
Under G.S. 15A-1422, the court of appeals had subject matter jurisdiction to review the State’s appeal from a trial court’s order granting the defendant relief on his motion for appropriate relief. The court rejected the defendant’s argument that Appellate Rule 21 required a different conclusion. In the decision below, State v. Stubbs, 232 N.C. App. 274 (2014), the court of appeals held, over a dissent that the trial court erred by concluding that the defendant’s sentence of life in prison with the possibility of parole violated of the Eighth Amendment.
The defendant was tried and convicted of first-degree murder in Gaston County. The evidence of the case largely consisted of mixtures of “touch” DNA profiles found on the victim’s car along with circumstantial evidence based on the defendant’s presence in the area at the time of the murder. The verdict was affirmed on direct appeal. The defendant later filed a motion for appropriate relief (“MAR”) alleging his innocence based on new evidence, as well as claims for ineffective assistance of counsel and discovery violations. The MAR court conducted an extensive hearing on the motion. Evidence showed that the defendant’s trial counsel was aware of the defendant’s significant medical and psychological issues, some of which may have been relevant to the defendant’s ability to commit the crime. Trial counsel obtained authorization and funding for a psychological evaluation that never occurred and failed to obtain the defendant’s medical records. Trial counsel also obtained the services of a DNA expert for use at trial but failed to review the expert’s professional background or previous testimony. The expert informed trial counsel that the State’s science was “good” and advised counsel not to interview the prosecution’s DNA expert. Defense counsel did not obtain a final report from the expert and failed to question the State’s DNA expert with questions recommended by the defense expert.
At the MAR hearing, the defense presented a new DNA expert who testified that the SBI policies of interpreting mixture DNA at the time were “subjective,” outdated, and inaccurate based on current accepted practices. According to this expert, the DNA mixture relied upon by the State at trial could not be used for “any reliable matching” and that the defendant’s DNA profile was not a match. The trial court granted the MAR and ordered a new trial based on ineffective assistance of counsel stemming from trial counsel’s failure to investigate the defendant’s medical and psychological conditions, as well as trial counsel’s failure to properly prepare to meet the state’s DNA evidence. The post-conviction court also found that the defendant was entitled to a new trial based on new evidence stemming from the evolution of DNA science since the time of trial, finding that changes in the science rendered the State’s DNA evidence at trial “doubtful at best.” The State appealed.
The State generally does not have the right to appeal a defendant’s successful MAR. An exception exists for an MAR granted based on new evidence. In that case, the State may directly appeal, “but only on questions of law.” G.S. 15A-1445(a)(2). Where there is no appeal of right, the State may petition for writ of certiorari to obtain review of the trial court’s grant of the MAR. G.S. 15A-1422(c)(3). Here, the State argued that it was entitled to appeal the entire MAR order, since the order was based in part on new evidence. The Court of Appeals disagreed. Where a right to appeal exists as to one ground of an order and not others, the appealing party is generally limited to arguing only the issue from which the appeal of right lies. “[A] right to appeal those other issues exists only if this Court finds those issues ‘inextricably intertwined with the issues before this Court as of right.’” Carver Slip op. at 9 (citation omitted). Here, the issues of new evidence and ineffective assistance were not “inextricably intertwined.” According to the court:
The newly discovered evidence claim is based on evidence that was unavailable to the defendant at the time of trial. The ineffective assistance claim is based on other, separate evidence that the trial court found to be available to the defendant had his counsel exercised due diligence. Thus, these two claims are based on entirely separate facts and legal issues. Id. at 10.
Further, the exception for a State’s direct appeal of the grant of an MAR based on newly discovered evidence is limited by the “only on questions of law” language in G.S. 15A-1445(a)(2). The State’s argument that it can appeal all issues in the order ignored this limitation.
Finally, even after the defendant moved to dismiss the appeal for lack of appellate jurisdiction, the State failed to file a petition for writ of certiorari. The State’s appeal of the ineffective assistance of counsel claim was therefore dismissed for lack of jurisdiction. The appeal of the new evidence claim was rendered moot as a result, leaving the trial court’s order intact.
On appeal from the denial of the defendant’s MAR, the court clarified that the appropriate standard of review is de novo with respect to conclusions of law.
The State could appeal the trial court’s order granting the defendant’s MAR.
The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had authority to grant the State’s petition for writ of certiorari. The court rejected the contention that State v. Starkey, 177 N.C. App. 264, 268 (2006), required a different conclusion, noting that case conflicts with state Supreme Court decisions.
Under G.S. 15A-1445, the State could appeal the trial court’s order granting the defendant’s MAR on the basis of newly discovered evidence.
State could appeal an amended judgment entered after the trial court granted the defendant’s MAR. The trial court entered the amended judgment after concluding (erroneously) that the 2009 amendments to the SSA applied to the defendant’s 2005 offenses.
Post-Conviction Proceedings > Motions for Appropriate Relief > Claims That Can Be Raised > Unconstitutional Conviction or Sentence
(1) The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had authority to grant the State’s petition for writ of certiorari. The court rejected the contention that State v. Starkey, 177 N.C. App. 264, 268 (2006), required a different conclusion, noting that case conflicts with state Supreme Court decisions. (2) The defendant’s claim that his sentence violated the Eighth Amendment was properly asserted under G.S. 15A-1415(b)(4) (convicted/sentenced under statute in violation of US or NC Constitutions) and (b)(8) (sentence unauthorized at the time imposed, contained a type of disposition or a term of imprisonment not authorized for the particular class of offense and prior record or conviction level, was illegally imposed, or is otherwise invalid as a matter of law).
The trial court erred by concluding that the defendant’s 1973 sentence of life in prison with the possibility of parole on a conviction of second-degree burglary, committed when he was 17 years old, violated the Eighth Amendment. The defendant brought a MAR challenging his sentence as unconstitutional. The court began by noting that the defendant’s MAR claim was a valid under G.S. 15A-1415(b)(4) (unconstitutional conviction or sentence) and (8) (sentence illegal or invalid). On the substantive issue, the court found that unlike a life sentence without the possibility of parole, the defendant’s sentence “allows for the realistic opportunity to obtain release before the end of his life.” In fact, the defendant had been placed on parole in 2008, but it was revoked after he committed a DWI.
Post-Conviction Proceedings > Motions for Appropriate Relief > Claims That Can Be Raised > Significant Change in the Law
The superior court judge erred by “retroactively” applying Structured Sentencing Law (SSL) provisions to a Fair Sentencing Act (FSA) case. The defendant was sentenced under the FSA. After SSL came into effect, he filed a motion for appropriate relief asserting that SSL applied retroactively to his case and that he was entitled to a lesser sentence under SSL. The superior court judge granted relief. The supreme court, exercising rarely used general supervisory authority to promote the expeditious administration of justice, allowed the State’s petition for writ of certiorari and held that the superior court judge erred by modifying the sentence. The court relied on the effective date of the SSL, as set out by the General Assembly when enacting that law. Finding no other ground for relief, the court remanded for reinstatement of the original FSA sentence.
On the State’s petition for writ of certiorari, the court reversed the trial court and held that no significant change in the law pertaining to the admissibility of expert opinions in child sexual abuse cases had occurred and thus that the defendant was not entitled to relief under G.S. 15A-1415(b)(7) (in a motion for appropriate relief, a defendant may assert a claim that there has been a significant change in law applied in the proceedings leading to the defendant's conviction or sentence, and retroactive application of the changed legal standard is required). Contrary to the trial court’s findings and conclusions, State v. Stancil, 355 N.C. 266 (2002),was not a significant change in the law, but merely an application of the court’s existing case law on expert opinion evidence requiring that in order for an expert to testify that abuse occurred, there must be physical findings consistent with abuse.
Declining to address whether State v. Garris, 191 N.C. App. 276 (2008), applied retroactively, the court held that the defendant’s MAR was subject to denial because the Garris does not constitute a significant change in the substantive or procedural law as required by G.S. 15A-1415(b)(7), the MAR ground asserted by the defendant. When Garris was decided, no reported NC appellate decisions had addressed whether the possession of multiple firearms by a convicted felon constituted a single violation or multiple violations of G.S. 14-415.1(a). For that reason, Garris resolved an issue of first impression. The court continued: “Instead of working a change in existing North Carolina law, Garris simply announced what North Carolina law had been since the enactment of the relevant version of [G.S.] 14-415.1(a).” As a result, it concluded, “a decision which merely resolves a previously undecided issue without either actually or implicitly overruling or modifying a prior decision cannot serve as the basis for an award of appropriate relief made pursuant to [G.S.] 15A-1415(b)(7).” It thus concluded that the trial court lacked jurisdiction to grant relief for the reason requested and properly denied the MAR.
Post-Conviction Proceedings > Motions for Appropriate Relief > Claims That Can Be Raised > Illegal or Invalid Sentence
(1) The court rejected the defendant’s argument that the State had no avenue to obtain review of a trial court order granting his G.S. 15A-1415 MAR (MAR made more than 10 days after entry of judgment) on grounds that his sentence violated the Eighth Amendment. The court found that it had authority to grant the State’s petition for writ of certiorari. The court rejected the contention that State v. Starkey, 177 N.C. App. 264, 268 (2006), required a different conclusion, noting that case conflicts with state Supreme Court decisions. (2) The defendant’s claim that his sentence violated the Eighth Amendment was properly asserted under G.S. 15A-1415(b)(4) (convicted/sentenced under statute in violation of US or NC Constitutions) and (b)(8) (sentence unauthorized at the time imposed, contained a type of disposition or a term of imprisonment not authorized for the particular class of offense and prior record or conviction level, was illegally imposed, or is otherwise invalid as a matter of law).
The trial court erred by concluding that the defendant’s 1973 sentence of life in prison with the possibility of parole on a conviction of second-degree burglary, committed when he was 17 years old, violated the Eighth Amendment. The defendant brought a MAR challenging his sentence as unconstitutional. The court began by noting that the defendant’s MAR claim was a valid under G.S. 15A-1415(b)(4) (unconstitutional conviction or sentence) and (8) (sentence illegal or invalid). On the substantive issue, the court found that unlike a life sentence without the possibility of parole, the defendant’s sentence “allows for the realistic opportunity to obtain release before the end of his life.” In fact, the defendant had been placed on parole in 2008, but it was revoked after he committed a DWI.
Post-Conviction Proceedings > Motions for Appropriate Relief > Claims That Can Be Raised > Newly Discovered Evidence
Reversing the court of appeals, the court held that information supporting the defendant’s motion for appropriate relief (MAR) was not newly discovered evidence. After the defendant was convicted of drug possession offenses, his father told a probation officer that the contraband belonged to him. The trial court granted the defendant’s MAR, concluding that this statement constituted newly discovered evidence under G.S. 15A-1415(c). The court concluded that because the information implicating the defendant’s father was available to the defendant before his conviction, the statement was not newly discovered evidence and that thus the defendant was not entitled to a new trial. The court noted that the search warrant named both the defendant and his father, the house was owned by both of the defendant’s parents, and the father had a history of violating drug laws. Although the defendant’s father invoked the Fifth Amendment at trial when asked whether the contraband belonged to him, the information implicating him as the sole possessor of the drugs could have been made available by other means. It noted that on direct examination of the defendant’s mother, the defendant did not pursue questioning about whether the drugs belonged to the father; also, although the defendant testified at trial, he gave no testimony regarding the ownership of the drugs.
In this murder case, the trial court properly granted the defendant a new trial on the basis of newly discovered evidence. At trial one of the State’s most important expert witnesses was SBI Agent Duane Deaver, who testified as an expert in bloodstain pattern analysis. Deaver testified that the victim was struck a minimum of four times before falling down stairs. Deaver stated that, based on his bloodstain analysis, the defendant attempted to clean up the scene, including his pants, prior to police arriving and that defendant was in close proximity to the victim when she was injured. The court held that Deaver’s misrepresentations regarding his qualifications (discussed in the opinion) constituted newly discovered evidence entitling the defendant to a new trial.
Post-Conviction Proceedings > Motions for Appropriate Relief > Claims That Can Be Raised > DNA Testing
Because the trial court did not have subject matter jurisdiction to rule on the defendant’s MAR claim alleging a violation of the post-conviction DNA statutes, the portion of the trial court’s order granting the MAR on these grounds is void. The court noted that the General Assembly has provided a statutory scheme, outside of the MAR provisions, for asserting and obtaining relief on, post-conviction DNA testing claims.
The court vacated and remanded an opinion by the court of appeals in State v. Williamson, 206 N.C. App. 599 (Sept. 7, 2010) (over a dissent, the court rejected the defendant’s argument that the trial court erred by failing to enter a written order with findings of fact and conclusions of law when denying the defendant’s MAR; the trial court’s oral order, containing findings of fact and conclusions of law and appearing in the transcript, was sufficient). The court noted that during review it became apparent that a written order actually was entered by the trial court, the existence of which apparently was not known to appellate counsel. The court remanded to the court of appeals to determine: (1) whether to amend the record on appeal to permit consideration of the order; (2) whether to order new briefs and/or oral arguments in light of its ruling on item (1) above; (3) whether to address defendant’s issues on the merits; and (4) whether to enter any other or further relief as it may deem appropriate.
The defendant was charged with four counts of engaging in sexual acts against a child under 13 and taking indecent liberties with a child. The defendant was alleged to have touched a child, A.M.D., in sexual manner on several occasions over a period of one to two years. The state’s evidence at trial consisted primarily of testimony from the victim, A.M.D., and corroborating testimony from other witnesses to whom she had disclosed the abuse. The state dismissed some of the charges prior to verdict, and the jury ultimately convicted the defendant of one count of sexual offense against a child under age 13.
Defendant filed an MAR seeking a new trial, based on the victim recanting her testimony. At a hearing on the MAR, the victim testified that she lied about the abuse at trial due to bribes and threats from another person. The trial judge denied the MAR, but failed to make sufficient findings of fact resolving the conflicts in the victim’s testimony between the trial and the MAR hearing. The trial court “abused its discretion by failing to expressly find which version of events it believed to be true,” so the matter was remanded with instructions to enter a new order making clear findings. Dissenting as to this part of the decision, J. Bryant would have found that the judge’s order was sufficient, since the defendant had the burden of proof at the hearing and the trial judge made a finding that the defense had not met that burden by stating she was “not satisfied that the testimony given by [A.M.D.] at the trial on this matter in December 2016 was false.”
The court per curiam affirmed the decision below, State v. Rollins, 224 N.C. App. 197 (Dec. 4, 2012), in which the court of appeals had held, over a dissent, that the trial court did not abuse its discretion by denying the defendant’s MAR without an evidentiary hearing. The MAR asserted that the defendant “did not receive a fair trial as a result of a juror watching irrelevant and prejudicial television publicity during the course of the trial, failing to bring this fact to the attention of the parties or the Court, and arguing vehemently for conviction during jury deliberations.” Although the MAR was supported by an affidavit from one of the jurors, the court found that the affidavit “merely contained general allegations and speculation.” The defendant’s MAR failed to specify which news broadcast the juror in question had seen; the degree of attention the juror had paid to the broadcast; the extent to which the juror received or remembered the broadcast; whether the juror had shared the contents of the news broadcast with other jurors; and the prejudicial effect, if any, of the alleged juror misconduct.
The trial court erred by failing to conduct an evidentiary hearing before granting the MAR. An evidentiary hearing “is not automatically required before a trial court grants a defendant’s MAR, but such a hearing is the general procedure rather than the exception.” Prior case law “dictates that an evidentiary hearing is mandatory unless summary denial of an MAR is proper, or the motion presents a pure question of law.” Here, the State denied factual allegations asserted by the defendant. The trial court granted the MAR based on what it characterized as “undisputed facts,” faulting the State for failing to present evidence to rebut the defendant’s allegations. However, where the trial court sits as “the post-conviction trier of fact,” it is “obligated to ascertain the truth by testing the supporting and opposing information at an evidentiary hearing where the adversarial process could take place. But instead of doing so, the court wove its findings together based, in part, on conjecture and, as a whole, on the cold, written record.” It continued, noting that given the nature of the defendant’s claims (as discussed in the court’s opinion), the trial court was required to resolve conflicting questions of fact at an evidentiary hearing.
(1) Because the defendant’s motion for appropriate relief (MAR) alleging ineffective assistance of counsel in this sexual assault case raised disputed issues of fact, the trial court erred by failing to conduct an evidentiary hearing before denying relief. The defendant claimed that counsel was ineffective by failing to, among other things, obtain a qualified medical expert to rebut testimony by a sexual abuse nurse examiner and failing to properly cross-examine the State’s witnesses. The defendant’s motion was supported by an affidavit from counsel admitting the alleged errors and stating that none were strategic decisions. The court concluded that these failures “could have had a substantial impact on the jury’s verdict” and thus the defendant was entitled to an evidentiary hearing. The case was one of “he said, she said,” with no physical evidence of rape. The absence of any signs of violence provided defense counsel an opportunity to contradict the victim’s allegations with a medical expert, an opportunity he failed to take. Additionally, trial counsel failed to expose, through cross-examination, the fact that investigators failed to collect key evidence. For example, they did not test, collect, or even ask the victim about a used condom and condom wrapper found in the bedroom. Given counsel’s admission that his conduct was not the product of a strategic decision, an evidentiary hearing was required. (2) With respect to the defendant’s claim that the trial court erred by denying his motion before providing him with post-conviction discovery pursuant to G.S. 15A-1415(f), the court remanded for the trial court to address whether the State had complied with its post-conviction discovery obligations.
The trial court did not err by rejecting the defendant’s G.S. 15A-1414 MAR without an evidentiary hearing.
At the MAR hearing, the trial court properly excluded the State’s expert witness, who did not testify at the original trial. The court viewed the State’s position as “trying to collaterally establish that the jury would have reached the same verdict based on evidence not introduced at trial.” It concluded that the trial court properly excluded this evidence:
Defendant’s newly discovered evidence concerned Agent Deaver, arguably, the State’s most important expert witness. Thus, the State could have offered its own evidence regarding Agent Deaver’s qualifications, lack of bias, or the validity of his experiments and conclusions. Furthermore, the State was properly allowed to argue that the evidence at trial was so overwhelming that the newly discovered evidence would have no probable impact on the jury’s verdict. However, the State may not try to minimize the impact of this newly discovered evidence by introducing evidence not available to the jury at the time of trial. Thus, the trial court did not err in prohibiting the introduction of this evidence at the MAR hearing.
(1) The trial court gave the State proper notice when it made a sua sponte oral MAR in open court one day after judgment had been entered. (2) The trial court did not violate the MAR provision stating that any party is entitled to a hearing on a MAR where the State did not request a hearing but merely requested a continuance so that the prosecutor from the previous day could be present in court.
The trial court did not abuse its discretion by denying the defendant’s motion for appropriate relief (MAR) made under G.S. 15A-1414 without first holding an evidentiary hearing. Given that the defendant’s MAR claims pertained only to mitigating sentencing factors and the defendant had been sentenced in the presumptive range, the trial judge could properly conclude that the MAR was without merit and that the defendant was not entitled to an evidentiary hearing.
The trial court did not err by denying the defendant’s post-sentencing motion to withdraw a plea without an evidentiary hearing. The defendant’s motion was a motion for appropriate relief. Evidentiary hearings are required on such motions only to resolve issues of fact. In this case, no issue of fact was presented. The defendant’s statement that he did not understand the trial court’s decision to run the sentences consecutively did not raise any factual issue given that he had already stated that he accepted and understood the plea agreement and its term that “the court will determine whether the sentences will be served concurrently or consecutively.” Furthermore, nothing in the record indicates that the defendant’s plea was not the product of free and intelligent choice. Rather, it appears that his only reason for moving to withdraw was his dissatisfaction with his sentence.
In this Lee County case, the trial judge granted a motion for appropriate relief and awarded a new trial for a defendant who was convicted of first-degree murder committed when he was fourteen years old, largely on the basis of a confession made during a police interrogation conducted outside the presence of a parent or guardian. Years later, postconviction counsel located a new witness who claimed a different person had confessed to the crime, exculpating the defendant. The trial court found the new witness’s testimony credible and granted the MAR based on the newly discovered evidence and ordered a new trial. The Court of Appeals reversed, saying the trial court abused its discretion and erred in granting a new trial, in that the defendant’s affidavit failed multiple prongs of the seven-factor test for evaluating newly discovered evidence set forth in State v. Beaver, 291 N.C. 137 (1976). State v. Reid, 274 N.C. App. 100 (2020).
After allowing the defendant’s petition for discretionary review, the Supreme Court reversed the Court of Appeals, concluding that the trial court properly applied the Beaver test. First, the trial court did not err in concluding that the newly discovered evidence was “probably true,” despite the inconsistencies in the new witness’s testimony. It was the factfinder’s role—not the role of the Court of Appeals—to evaluate the credibility of the witness and make findings of fact, which are binding on appeal if supported by the evidence. The Court of Appeals thus erred by reweighing the evidence and making its own findings as to whether the new evidence was “probably true.”
Second, the trial court did not err in finding that the defendant’s trial counsel had exercised due diligence in attempting to procure the newly discovered evidence. The trial court’s findings that an investigator had earlier attempted to find the new witness and that those efforts were unsuccessful due in part to interference by the witness’s mother were supported by the evidence and binding on appeal. The Court noted that the “due diligence” prong of the Beaver test requires “reasonable diligence,” not that the defendant have done “everything imaginable” to procure the purportedly new evidence at trial. Where, as here, neither the defendant nor his lawyer knew whether the sought-after witness actually had any information about the victim’s killing, hiring an investigator was deemed reasonable diligence without the need to take additional steps such as issuing an subpoena or asking for a continuance.
Third, the Court concluded that the trial judge did not err in concluding that the new witness’s testimony was “competent” even though it was hearsay. The evidence was admitted without objection by the State, and was therefore competent. And in any event, the test for competence within the meaning of the Beaver test is not admissibility at the MAR hearing, but rather whether it would be material, competent, and relevant in a future trial if the MAR were granted. Here, the trial court properly concluded that the new witness’s testimony would have been admissible at trial under the residual hearsay exception of Rule 803(24).
Finally, the trial court did not err in concluding that the addition of the newly discovered evidence would probably result in a different outcome in another trial. Though the defendant’s confession was admissible, it was nonetheless the confession of a fourteen-year-old and might therefore receive less probative weight in a case like this where the other evidence of the defendant’s guilt was not overwhelming.
The Supreme Court reversed the Court of Appeals and remanded the case for a new trial.
Chief Justice Newby, joined by Justice Barringer, dissented. He wrote that the defendant failed to meet the “due diligence” prong of the Beaver test in that he did not take reasonable action at trial to procure the evidence he later argued was newly discovered. The Chief Justice disagreed with the majority’s conclusion that hiring an investigator was enough. Rather, he wrote, the defense lawyer should have gone to the trial court for assistance in obtaining testimony from the witness (such as through a material witness order), or spoken to other witnesses who likely had the same information (such as the sought-after witness’s brother).
(1) On review of a divided panel of the Court of Appeals, ___ N.C. App. ___, 797 S.E.2d 308 (2017), in this murder case, the court affirmed the holding of the Court of Appeals that the defendant’s ineffective assistance of counsel (IAC) claim was not procedurally barred under G.S. 15A-1419(a)(3) (a claim asserted in a MAR must be denied if, upon a previous appeal, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so). To be subject to the G.S. 15A-1419(a)(3) procedural default bar, the direct appeal record must contain sufficient information to permit the reviewing court to make all the factual and legal determinations necessary to allow a proper resolution of the claim. Here, the defendant was not in a position to adequately raise the IAC claim on direct appeal. A Strickland IAC claim requires a defendant to show both deficient performance and prejudice. The nature of the defendant’s claim would have required him to establish that his attorney was in a position to provide favorable testimony on his behalf, that her failure to withdraw from representing the defendant in order to testify on his behalf constituted deficient performance, and if she had acted as he asserts she should have, there is a reasonable probability that he would not have been found guilty of murder. Here, the defendant would have been unable to make a viable showing based on the evidentiary record developed at trial.
(2) Reversing the Court of Appeals, the court found that the record contains adequate evidentiary support for the trial court’s findings that the factual basis for the defendant’s IAC claim did not exist. The defendant’s IAC claim alleged that his lawyer should have withdrawn from representing him at trial and testified on his behalf with respect to a conversation that she had with a witness. The trial court found as a fact that the defendant presented no credible evidence during the MAR hearing that the alleged conversation between defense counsel and the witness ever took place. After reviewing the evidence presented before the trial court, the court found that the record contains sufficient evidence to support the trial court’s finding of fact that the alleged conversation never occurred.
With one justice taking no part in consideration of the case and with the other members of the court equally divided, the court affirmed, without opinion, a ruling by the trial court on the defendant’s motion for appropriate relief. The case was before the court on writ of certiorari to review the trial court’s order. The question presented, as stated in the defendant’s appellate brief, was: “Whether the trial court erred in finding in a capitally-charged case that failing to disclose exculpatory SBI reports, testifying falsely as to what evidence was brought to the SBI and failing to preserve irreplaceable biological evidence did not violate due process?”
The defendant was convicted of statutory rape and sex offense in Rockingham County. That verdict was affirmed on appeal in an unpublished decision, and the defendant sought post-conviction relief. He filed a motion for appropriate relief (“MAR”) and a request for post-conviction discovery, arguing that his trial counsel was ineffective in failing to obtain Department of Social Services (“DSS”) records on the victim from Rockingham and Guilford counties. Specifically, the MAR stated that the DSS records would establish multiple prior false accusations by the victim. The trial court denied the request for discovery and denied the MAR. The Court of Appeals granted certiorari and reversed, ordering the trial court to obtain the DSS records and to conduct an in camera review. The State provided what it alleged to be the complete DSS files relating to the case to the trial court. Reviewing those records, the trial court found that the files did not contain information relevant to the defendant’s case. It also found that the records were incomplete and that the court was unable to complete its review without additional files. The trial court ordered Rockingham DSS (and later Guilford County DSS) to produce records on the victim from three specific time frames. The defendant complained to the trial court that limiting the order to these specific ranges of time was too narrow and would miss relevant records (including the records of the accusation against the defendant himself), but the trial court did not alter its order. When the trial judge ultimately obtained the ordered records and reviewed them, it found the information was not likely to have impacted the verdict and was therefore not material. The motion for post-conviction discovery of the DSS records was consequently denied for a second time. The Court of Appeals granted certiorari again and again reversed and remanded.
The court agreed with the defendant that the trial court improperly limited the scope of the request for DSS records. The defendant’s original request was for DSS records of prior accusations by the victim. While the Court of Appeals order remanding the case for an in camera review of the records mentioned specific time frames as examples, its order was not limited to those time frames and encompassed any and all relevant records. On remand a second time, the trial court was ordered to conduct an in camera review of any DSS records pertaining to prior accusations of abuse by the victim. The court declined to review the DSS records sealed in the file before the trial court has had an opportunity to complete a full review of the relevant records. It noted that the defendant would be entitled to a new trial if the records are deemed material.
Judge Arrowood sat on the panel initially remanding the case and dissented. He believed that the trial court had complied with the original remand order and would have affirmed the trial court’s order denying post-conviction discovery.
The defendant, who had underlying health conditions, was not entitled to relief on a MAR under G.S. 15A-1415(b)(8) on the basis of his prison sentence being invalid as a matter of law as a form of cruel and unusual punishment due to the coronavirus pandemic. The Court of Appeals explained that the defendant’s 77 to 105 month term of imprisonment was lawful at the time it was imposed before the pandemic began and that the defendant had identified no precedent indicating that requiring a person to serve an otherwise lawful sentence during pandemic times makes the sentence cruel and unusual. The defendant was not entitled to state habeas relief because of procedural deficiencies in his MAR.
The trial court did not have jurisdiction to resentence the defendant for obtaining property by false pretenses, where the defendant’s motion for appropriate relief (MAR), which was granted by the trial court, challenged only his conviction for possession of stolen goods, a separate CRS case that was not consolidated with the fraud conviction.
The Ninth Circuit erred by concluding that the California “Dixon bar”--providing that a defendant procedurally defaults a claim raised for the first time on state collateral review if he could have raised it earlier on direct appeal—was inadequate to bar federal habeas review. Federal habeas courts generally refuse to hear claims defaulted in state court pursuant to an independent and adequate state procedural rule. State rules are “adequate” if they are firmly established and regularly followed. California’s Dixon bar meets this standard.
A federal habeas court will not review a claim rejected by a state court if the state court decision rests on an adequate and independent state law ground. The Court held that a state rule is not inadequate for purposes of this analysis just because it is a discretionary rule.
(1) On review of a divided panel of the Court of Appeals, ___ N.C. App. ___, 797 S.E.2d 308 (2017), in this murder case, the court affirmed the holding of the Court of Appeals that the defendant’s ineffective assistance of counsel (IAC) claim was not procedurally barred under G.S. 15A-1419(a)(3) (a claim asserted in a MAR must be denied if, upon a previous appeal, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so). To be subject to the G.S. 15A-1419(a)(3) procedural default bar, the direct appeal record must contain sufficient information to permit the reviewing court to make all the factual and legal determinations necessary to allow a proper resolution of the claim. Here, the defendant was not in a position to adequately raise the IAC claim on direct appeal. A Strickland IAC claim requires a defendant to show both deficient performance and prejudice. The nature of the defendant’s claim would have required him to establish that his attorney was in a position to provide favorable testimony on his behalf, that her failure to withdraw from representing the defendant in order to testify on his behalf constituted deficient performance, and if she had acted as he asserts she should have, there is a reasonable probability that he would not have been found guilty of murder. Here, the defendant would have been unable to make a viable showing based on the evidentiary record developed at trial.
(2) Reversing the Court of Appeals, the court found that the record contains adequate evidentiary support for the trial court’s findings that the factual basis for the defendant’s IAC claim did not exist. The defendant’s IAC claim alleged that his lawyer should have withdrawn from representing him at trial and testified on his behalf with respect to a conversation that she had with a witness. The trial court found as a fact that the defendant presented no credible evidence during the MAR hearing that the alleged conversation between defense counsel and the witness ever took place. After reviewing the evidence presented before the trial court, the court found that the record contains sufficient evidence to support the trial court’s finding of fact that the alleged conversation never occurred.
(1) On remand from the state Supreme Court, the court rejected the defendant’s argument that the trial court erred by concluding that he was procedurally barred from reasserting in his MAR a dual representation conflict of interest ineffective assistance of counsel claim with respect to attorney Smallwood. Because this court on direct appeal addressed the merits and rejected this claim, the trial court properly concluded that it was procedurally defaulted under G.S. 15A-1419(a)(2) (claim previously determined on the merits).
(2) The court then turned to the defendant’s claim that he received ineffective assistance of counsel from attorney Warmack at the evidentiary remand hearing because Warmack had a dual representation conflict arising from having previously represented codefendant Swain. The court held that the trial court erred by finding that this claim was procedurally barred under G.S. 15A-1419(a)(3) (failure to raise on appeal), reasoning that the defendant was not in a position to adequately raise the claim on direct appeal. The court further found that the record was insufficient to establish that the defendant knowingly, intelligently, and voluntarily waived Warmack’s potential conflict and that the trial court erred by concluding otherwise.
The trial court erred by summarily denying the defendant’s motion for appropriate relief (MAR) and accompanying discovery motion. In the original proceeding, the trial court denied the defendant’s motion to suppress in part because it was not filed with the required affidavit. After he was convicted, the defendant filed a MAR asserting that trial counsel was ineffective in failing to file the required affidavit. The trial court denied the MAR and the court of appeals granted certiorari. The court rejected the State’s argument that because the defendant failed to raise the ineffectiveness claim on direct appeal, he was procedurally defaulted from raising it in the MAR. The court reasoned that the record did not provide appellate counsel with sufficient information to establish the prejudice prong of the ineffectiveness test. Specifically, proof of this prong would have required appellate counsel to show that the defendant had standing to challenge the search at issue.
The court suggested in dicta that on a motion for appropriate relief (as on appellate review) a defendant may be deemed to have waived errors in jury instructions by failing to raise the issue at trial. However, the court did not decide the issue since it concluded that even when considered on the merits, the defendant’s alleged instructional error lacked merit.
In this Wayne County case, defendant appealed the order denying his motion to withdraw his guilty plea to felony possession of cocaine. The Court of Appeals affirmed the trial court’s order.
In January of 2005, defendant was indicted for felony possession of cocaine; subsequently defendant “entered a plea of guilty to felony possession of cocaine in order to receive a conditional discharge pursuant to [G.S.] 90-96.” Slip Op. at 2. In February of 2006, the trial court determined defendant had satisfied the conditions imposed for a conditional discharge and dismissed the charges under G.S. 90-96. During these events, defendant was an undocumented immigrant married to an American citizen and father to one child through the marriage. In 2021, defendant was detained by immigration officials and sent to a detention center in Georgia, where he was held without bond as a result of his guilty plea to a felony in 2005. In January of 2022 defendant filed a motion to withdraw his guilty plea to the possession charge, arguing he was “confused” and did not know the guilty plea would continue to constitute a conviction for federal immigration purposes. Id. at 3. After holding a hearing, the trial court denied defendant’s motion, treating it as a motion for appropriate relief (MAR).
The Court of Appeals first established that the trial court was correct in interpreting the motion as a MAR, explaining the dismissal of charges in 2006 was “final judgment” in the matter, and defendant’s subsequent motion was “a post-sentence MAR requiring Defendant to show manifest injustice in order to withdraw his guilty plea.” Id. at 9. The court then noted the six factors recognized in North Carolina case law justifying withdrawal of a plea, and that defendant argued “misunderstanding the consequences of the guilty plea, hasty entry, confusion, and coercion.” Id.at 10. Here, while the court expressed sympathy to defendant’s situation, it explained that he had not shown manifest injustice, as the federal immigration consequences were collateral, not direct consequences of entering his plea that he failed to understand. Sumarizing the situation, the court stated “[w]hile Defendant may now regret the consequences of his guilty plea in light of its implications under federal law, his remorse does not reflect a misunderstanding of the guilty plea at the time he entered into it.” Id. at 15.
The defendant’s assertions in his MAR, filed more than seven years after expiration of the appeal period, that his plea was invalid because the trial court failed to follow the procedural requirements of G.S. 15A-1023 and -1024 were precluded by G.S. 15A-1027 (“Noncompliance with the procedures of this Article may not be a basis for review of a conviction after the appeal period for the conviction has expired.”).
The defendant was found guilty of first-degree murder and sentenced to death in 2003. The defendant challenged his conviction and sentence on direct appeal, but the Supreme Court unanimously found no error. The Supreme Court of the United States denied certiorari. Subsequently, the defendant filed a motion for appropriate relief (MAR) in Superior Court in July 2007. Six years later, and before the MAR court ruled on his MAR, the defendant filed a supplemental motion for appropriate relief (SMAR) amending some of his previous claims and adding two additional claims. The MAR court dismissed each of the defendant’s claims, and the defendant appealed to the state Supreme Court.
(1) Of the twelve total claims raised in the defendant’s MAR and SMAR, five of them directly related to his allegation that his trial attorneys rendered unconstitutionally ineffective assistance of counsel (IAC) during the guilt-innocence phase of his trial by failing to investigate, develop, and utilize various sources of exculpatory evidence. The Supreme Court held that the MAR court erred in summarily dismissing the defendant’s guilt-innocence phase IAC claims without an evidentiary hearing because “some of his asserted grounds for relief required the [MAR] court to resolve questions of fact.” Slip op. at ¶ 3. The Court concluded that because the defendant presented evidence which, if proven true would entitle him to relief, he is entitled to an evidentiary hearing in accordance with statutory mandate.
(2) The Supreme Court held that the trial court erred in summarily ruling that the defendant’s claim alleging he was impermissibly shackled in view of the jury was procedurally barred because the record did not contain facts necessary to a fair resolution of the claim. The Court vacated the relevant portion of the MAR court’s order and remanded for an evidentiary hearing to obtain the facts necessary to determine whether his claim is procedurally barred and, if not, whether it has merit.
The Court affirmed the MAR court’s disposition of all other claims raised in the defendant’s MAR and SMAR.
In this Brunswick County case, the defendant appealed from an order denying his motion for appropriate relief (“MAR”) filed after his conviction for robbery with a firearm and related offenses. The defendant argued on appeal that the trial court erred by (1) denying his MAR because law enforcement’s loss of an eyewitness statement was a Brady violation; (2) denying his MAR because the State presented false testimony, (3) failing to hold an evidentiary hearing on his claims, and (4) barring the defendant from filing future MARs.
(1) The Court of Appeals affirmed the trial court’s ruling deny the defendant’s due process claim under Brady v. Maryland, 373 U.S. 83 (1963), that the State suppressed favorable evidence. Noting that to establish a Brady violation, the defendant must show that the suppressed evidence was material, the Court of Appeals concluded that the lost statement from an eyewitness did not meet this standard. Central to the Court’s conclusion was trial counsel’s ability to cross-examine the witness about inconsistencies in his statements and to impeach him with other testimony.
(2) The Court of Appeals affirmed the trial court’s ruling denying the defendant’s due process claim under Napue v. Illinois, 360 U.S .264 (1959), that the State knowingly presented false evidence. The Court concluded that the record did not support the defendant’s contention that the State knew testimony from one of the eyewitness victims was false as opposed to simply inconsistent with other testimony.
(3) The Court of Appeals determined that the trial court erred by failing to grant an evidentiary hearing on the defendant’s IAC claims as the defendant stated facts that, if true, would entitle him to relief. Focusing its analysis on defendant’s claim that trial counsel failed to investigate a known alibi witness – defendant’s son, who claimed to have been with him the morning of the crime – the Court noted that the record did not reveal whether defendant’s trial counsel made a strategic decision not to investigate this alibi witness. The Court reasoned that this factual issue could only be appropriately resolved at an evidentiary hearing.
(4) The Court of Appeals vacated the trial court’s ruling that the defendant’s failure to assert other grounds in his MAR “shall be treated in the future as a BAR to any other motions for appropriate relief [in this case].” The Court relied upon its holding in State v. Blake, 275 N.C. App. 699 (2020), that G.S. 15A-1419 does not authorize a trial court to bar MAR claims in advance and that gatekeeper orders normally are entered only when a defendant has previously asserted numerous frivolous claims. The Court noted that the current case was not one in which the defendant had filed many frivolous MARs asserting the same claims.
Judge Murphy concurred, with the exception of a sole paragraph discussing precedent from other jurisdictions related to whether an attorney’s representation is deficient for failing to contact and interview prospective alibi witnesses. Judge Griffin concurred by separate opinion, expressing his disagreement with North Carolina Supreme Court precedent requiring an evidentiary hearing on the defendant’s IAC claim, which he said was not supported by statute and allowed a petitioning party to take away the gatekeeping function of the trial judge.
The court held that the trial court erred by summarily denying the defendant’s MAR alleging ineffective assistance. Because the State did not contest that trial counsel’s failure to attach the requisite affidavit to a suppression motion constituted deficient representation, the focus of the court’s inquiry was on whether the defendant’s MAR forecast adequate evidence of prejudice. On this issue, it concluded that the MAR adequately forecast evidence on each issue relevant to the prejudice analysis: that the defendant had standing to challenge the search and that the affidavit supporting the warrant contained false statements.
The Court held that when a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction. Absent conviction of a crime, one is presumed innocent. Under the Colorado law in question, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. The Court held that this scheme offends the Fourteenth Amendment’s guarantee of due process. It concluded: “To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.”
Confronting the question in a habeas case of whether the holding in Ramos v. Louisiana, 590 U.S. ___, ___ S. Ct. ___ (2020) that a state jury must be unanimous to convict a criminal defendant of a serious offenses applies retroactively under the framework of Teague v. Lane, 489 U.S. 288 (1989), the Court held that while Ramos announced a “new” procedural rule it was not a “watershed rule” that applies retroactively. The Court further held that the Teague exception for watershed rules is moribund as no new rules of criminal procedure can satisfy the “purported exception” for watershed rules. Writing for the majority, Justice Kavanaugh first conducted the traditional analysis of retroactivity under Teague, finding that while Ramos announced a new procedural rule that was “momentous and consequential” it was not a “watershed” rule and therefore did not apply retroactively to cases on collateral review. Characterizing the “purported exception” for watershed rules as an “empty promise,” the Court said that “[c]ontinuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.” The Court said it was time to say explicitly what had been apparent for years: “New procedural rules do not apply retroactively on federal collateral review.”
Justice Thomas, joined by Justice Gorsuch, concurred in full but wrote separately to explain that the case could have been resolved under the AEDPA because a Louisiana state court had considered Edwards’s argument that he was entitled to a unanimous jury verdict and had reasonably relied on federal law as it was prior to Ramos in rejecting that claim. Thomas explained that in such circumstances the AEDPA directs that a writ of habeas corpus shall not be granted.
Justice Gorsuch, joined by Justice Thomas, concurred by canvassing the history of the writ of habeas corpus, explaining developments in the law in the middle of the twentieth century leading to Teague, and expressing his agreement with the decision to explicitly state that the “watershed rule” exception was illusory.
Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, stating her view that the holding of Ramos “fits to a tee Teague’s description of a watershed procedural rule” and criticizing the majority’s overturning of the watershed exception as following “none of the usual rules of stare decisis.”
Johnson v. United States, 576 U. S. ___, 135 S. Ct. 2551 (2015), holding that the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), was void for vagueness was a substantive decision that is retroactive in cases on collateral review.
Miller v. Alabama, 567 U. S. ___ (2012) (holding that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile’s special circumstances), applied retroactively to juvenile offenders whose convictions and sentences were final when Miller was decided. A jury found defendant Montgomery guilty of murdering a deputy sheriff, returning a verdict of “guilty without capital punishment.” Under Louisiana law, this verdict required the trial court to impose a sentence of life without parole. Because the sentence was automatic upon the jury’s verdict, Montgomery had no opportunity to present mitigation evidence to justify a less severe sentence. That evidence might have included Montgomery’s young age at the time of the crime; expert testimony regarding his limited capacity for foresight, self-discipline, and judgment; and his potential for rehabilitation. After the Court decided Miller, Montgomery, now 69 years old, sought collateral review of his mandatory life without parole sentence. Montgomery’s claim was rejected by Louisiana courts on grounds the Miller was not retroactive. The Supreme Court granted review and reversed. The Court began its analysis by concluding that it had jurisdiction to address the issue. Although the parties agreed that the Court had jurisdiction to decide this case, the Court appointed an amicus curiae to brief and argue the position that the Court lacked jurisdiction; amicus counsel argued that the state court decision does not implicate a federal right because it only determined the scope of relief available in a particular type of state proceeding, which is a question of state law. On the issue of jurisdiction, the Court held:
[W]hen a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts. This holding is limited to Teague’s first exception for substantive rules; the constitutional status of Teague’s exception for watershed rules of procedure need not be addressed here.
Turning to the issue of retroactivity, the Court held that Miller announced a new substantive rule that applies retroactively to cases on collateral review. The Court explained: “Miller … did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole; it established that the penological justifications for life without parole collapse in light of ‘the distinctive attributes of youth.’” The Court continued:
Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects “‘unfortunate yet transient immaturity.’” Because Miller determined that sentencing a child to life without parole is excessive for all but “‘the rare juvenile offender whose crime reflects irreparable corruption,’” it rendered life without parole an unconstitutional penalty for “a class of defendants because of their status”—that is, juvenile offenders whose crimes reflect the transient immaturity of youth. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive because it “‘necessarily carr[ies] a significant risk that a defendant’”—here, the vast majority of juvenile offenders—“‘faces a punishment that the law cannot impose upon him.’” (citations omitted).
The Court went on to reject the State’s argument that Miller is procedural because it did not place any punishment beyond the State’s power to impose, instead requiring sentencing courts to take children’s age into account before sentencing them to life in prison. The Court noted: “Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” It explained: “Before Miller, every juvenile convicted of a homicide offense could be sentenced to life without parole. After Miller, it will be the rare juvenile offender who can receive that same sentence.” Noting that Miller “has a procedural component,” the Court explained that “a procedural requirement necessary to implement a substantive guarantee” cannot transform a substantive rule into a procedural one. It continued, noting that the hearing where “youth and its attendant characteristics” are considered as sentencing factors “does not replace but rather gives effect to Miller’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.”
In this federal habeas case, the Court held that the Michigan Court of Appeals did not unreasonably apply clearly established federal law when it retroactively applied to the defendant’s case a state supreme court decision rejecting the diminished capacity defense for first-degree murder. The defendant was convicted in Michigan state court of first-degree murder. When the crime was committed, Michigan’s intermediate appellate court had repeatedly recognized diminished capacity as a defense negating the mens rea required for first-degree murder. However, by the time the defendant’s case was tried, the Michigan Supreme Court, in a decision called Carpenter, had rejected the defense and he thus was precluded from offering it at trial. In the Michigan Court of Appeals, the defendant unsuccessfully argued that retroactive application of Carpenter denied him due process of law. He then sought federal habeas relief. The Court noted that judicial changes to a common law doctrine of criminal law violate the principle of fair warning and thus must not be given retroactive effect only where the change “is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Slip Op. at 7 (quotation omitted). Judged against this standard, the Court held that the Michigan court’s rejection of the defendant’s due process claim was not an unreasonable application of federal law.
Padilla v. Kentucky, 559 U. S. 356 (2010) (criminal defense attorneys must inform non-citizen clients of the risks of deportation arising from guilty pleas), does not apply retroactively to cases that became final before Padilla was decided. Applying the Teague retroactivity analysis, the Court held that Padilla announced a new rule. The defendant did not assert that Padilla fell within either of the Teague test’s exceptions to the anti-retroactivity rule.
The court held that Padilla v. Kentucky, 559 U.S. 356 (Mar. 31, 2010), dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea, did not apply retroactively to the defendant’s motion for appropriate relief. Applying Teague retroactivity analysis, the court held that Padilla announced a new procedural rule but that the rule was not a watershed one. [Author’s note: for the law on retroactivity and the Teague test, see my paper here]
A district attorney’s office may not be held liable under 42 U.S.C. § 1983 for failure to train based on a single Brady violation. The Orleans Parish District Attorney’s Office conceded that, in prosecuting the defendant for attempted armed robbery, prosecutors failed to disclose evidence that should have been turned over under Brady. The defendant was convicted. Because of that conviction, the defendant chose not to testify in his own defense in his later murder trial. He was again convicted and spent 18 years in prison. Shortly before his scheduled execution, his investigator discovered the undisclosed evidence from his armed robbery trial. The reviewing court determined that the evidence was exculpatory and both convictions were vacated. The defendant then sued the district attorney’s office for damages under § 1983, alleging that the district attorney failed to train prosecutors adequately about their duty to produce exculpatory evidence and that the lack of training had caused the nondisclosure at issue. The jury awarded the defendant $14 million, and Fifth Circuit affirmed. Reversing, the Court, in an opinion authored by Justice Thomas, clarified that the failure-to-train claim required the defendant to prove both that (1) the district attorney, the policymaker for the district attorney’s office, was deliberately indifferent to the need to train prosecutors about their Brady disclosure obligation with respect to the type of evidence at issue and (2) the lack of training actually caused the Brady violation at issue. The Court determined that the defendant failed to prove that the district attorney was on actual or constructive notice of, and therefore deliberately indifferent to, a need for more or different Brady training. The Court noted that a pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference for purposes of failure to train. Here, however, no such pattern existed; the Court declined to adopt a theory of “single-incident liability.” Justice Scalia concurred, joined by Justice Alito, writing separately only to address several issues raised by the dissent. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. For another discussion of this opinion, see the blog post here.
In a per curiam opinion the Court held that a Tucson, Arizona police officer was entitled to qualified immunity with respect to his non-fatal shooting of Amy Hughes. Kisela and officer Garcia responded to a police radio report that a woman was hacking a tree with a kitchen knife. Minutes later, they were flagged down by the person who called 911; that person gave a description of the woman with the knife and said she was behaving erratically. About this time another officer arrived at the scene. Garcia saw a woman, later identified as Sharon Chadwick, standing near a car. A chain link fence was between Chadwick and the officers. The officers saw Hughes, who matched the description that had been provided, exit a house carrying a large knife. Hughes walked toward Chadwick and stopped no more than six feet from her. All three officers drew their guns. At least twice they told Hughes to drop the knife. She did not do so. Kisela shot Hughes four times. All three of the officers later said that at the time they believed Hughes to be a threat to Chadwick. The Court of Appeals held that the record, viewed in the light most favorable to Hughes, was sufficient to demonstrate that Kisela violated the Fourth Amendment. That court also held that the violation was clearly established because, in its view, the constitutional violation was obvious and because of Circuit precedent that the court perceived to be analogous. The Supreme Court granted review and reversed. The Court determined that it need not decide whether Kisela violated the Fourth Amendment when he used deadly force against Hughes, because even assuming a Fourth Amendment violation occurred—a proposition the Court found “not at all evident”—Kisela was at least entitled to qualified immunity. Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The Court stated:
Kisela says he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and Garcia. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.
Justices Sotomayor and Ginsburg dissented.
Reversing a Ninth Circuit decision that upheld a $4 million award on a §1983 excessive force claim, the Court rejected the Ninth Circuit’s “provocation doctrine,” which had allowed relief where the officers’ conduct was deemed reasonable. Deputies from the Los Angeles County Sheriff’s Department were searching for parolee Ronnie O’Dell. A felony arrest warrant had been issued for O’Dell, who was believed to be armed and dangerous and had previously evaded capture. When law enforcement received a tip that O’Dell had been seen at a home owned by Paula Hughes, officers mapped out a plan for apprehending him. Some officers would approach the residence’s front door, while two Deputies--Conley and Pederson--would search the rear of the property and cover the back door. At the time, officers knew that a man named Angel Mendez lived in the backyard of the Hughes home with a woman named Jennifer Garcia. Upon arriving at the home, three officers knocked on the front door. Meanwhile, Conley and Pederson, with guns drawn, searched the rear. The property included a shack made of wood and plywood, occupied by Mendez and Garcia. Conley and Pederson, without a warrant and without knocking and announcing their presence, opened the door to the shack. Conley saw Mendez with a gun, later determined to be a BB gun Mendez used on rats and other pests, and yelled, “Gun!” Deputies immediately opened fire, discharging 15 rounds. Mendez and Garcia were shot multiple times and suffered severe injuries; Mendez’s right leg was later amputated below the knee. O’Dell was never found on the property. Mendez and Garcia filed a §1983 suit, alleging three Fourth Amendment claims: that the deputies executed an unreasonable search by entering the shack without a warrant; that the deputies performed an unreasonable search because they failed to announce their presence before entering the shack; and that the deputies effected an unreasonable seizure by deploying excessive force in opening fire after entering the shack. With respect to the excessive force claim, the trial court found that the deputies’ use of force was reasonable “given their belief that a man was holding a firearm rifle threatening their lives.” However, the trial court applied the Ninth Circuit’s provocation rule. Under that rule, “an officer’s otherwise reasonable (and lawful) defensive use of force is unreasonable as a matter of law, if the officer intentionally or recklessly provoked a violent response, and that provocation is an independent constitutional violation.” Based on this rule, the District Court held the deputies liable for excessive force and awarded respondents around $4 million in damages. The Ninth Circuit did not disagree with the conclusion that the shooting was reasonable; instead, like the District Court, it applied the provocation rule and held the deputies liable for the use of force on the theory that they had intentionally and recklessly brought about the shooting by entering the shack without a warrant in violation of clearly established law. The Court of Appeals also adopted an alternative rationale for its judgment, holding that “basic notions of proximate cause” would support liability even without the provocation rule because it was “reasonably foreseeable” that the officers would meet an armed homeowner when they “barged into the shack unannounced.” The Supreme Court granted certiorari and reversed. The Court held that the Ninth Circuit’s provocation rule was “incompatible” with the Court’s excessive force jurisprudence, stating that the rule’s “fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” The Court went on to reject the Ninth Circuit’s proximate cause justification, finding that analysis, “like the provocation rule, conflated distinct Fourth Amendment claims and required only a murky causal link between the warrantless entry and the injuries attributed to it.”
In a 5-to-4 decision, the Court affirmed a remedial order issued by a three-judge court directing California to remedy ongoing constitutional violations involving prisoners with serious mental disorders and medical conditions primarily caused by prison overcrowding. The order below leaves the choice of means to reduce overcrowding to the discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—California will be required to release some number of prisoners before their full sentences have been served. The Court held that the Prison Litigation Reform Act of 1995 authorizes the relief afforded and that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights.
Trial court erred by dismissing the prisoner’s excessive force claim on grounds that his injuries were de minimis. In an excessive force claim, the core inquiry is not whether a certain quantum of injury was sustained but rather whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.
This case arose from the cross-border shooting of a 15-year-old Mexican child by a U.S. border patrol agent. The parents of the child sued the agent in federal court for Fourth and Fifth Amendment violations pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Bivens found an implied cause of action for constitutional violations by federal officers where no statutory authorization for damages exists. The scope of a Bivens claim has been limited by the Supreme Court over time, and separation of powers concerns caution against extending Bivens to new context, a “disfavored judicial activity.” See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). In determining whether a Bivens remedy is available, the court first determines whether the claim involves new context. New context is defined broadly. “We regard a context as ‘new’ if it is different in a meaningful way from previous Bivens cases decided by this Court.” Slip op. at 10. If the claim presents new context, the court then determines whether there is a “reason to pause before applying Bivens to new context or to a new class of defendant . . .” Id.
Bivens has been applied to Fourth and Fifth Amendment claims before in the context of illegal search and arrest in New York City, and to sex discrimination by a congressman in Washington, D.C. A cross- border shooting, however, was new context according to the majority. “There is a world of difference between those claims and petitioners’ cross-border shooting claims, where ‘the risk of disruptive intrusion by the Judiciary into the functioning of other branches’ is significant.” Id. at 11. Here, the court found that the foreign policy implications of extending Bivens to a cross-border shooting was factor against extending the remedy. “The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Id. at 12 (citation omitted). National security concerns were another factor against extension of Bivens to this context. “Since regulating the conduct of agents at the border unquestionably has national security implications, the risk of undermining border security provides reason to hesitate . . .” Id. at 17. Further, that Congress has limited the ability to recover damages from the actions of U.S. agents while abroad also indicates the need for caution. It is the role of Congress, not the courts, to fashion damages remedies, and Congress has indicated its intention to limit judicial remedies for acts of federal officers abroad by repeatedly refusing to authorize such causes of action. Concluding, the majority observed:
In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern—respect for the separation of powers. . .Congress’s decision not to provide a judicial remedy does not compel us to step into its shoes. . .When evaluating whether to extend Bivens, the most important question ‘is who should decide’ whether to provide for a damages remedy, Congress or the courts? The correct ‘answer most often will be Congress.’ That is undoubtedly the answer here. Id. at 22-23.
The Fifth Circuit’s judgment dismissing the suit was therefore affirmed by 5-4 vote. Chief Justice Roberts, and Justices Thomas, Gorsuch, and Kavanaugh joined the majority opinion. Justice Thomas, joined by Justice Gorsuch, wrote separately to advocate that Bivens be overruled altogether.
Justice Ginsberg authored a dissent, joined by Justices Breyer, Sotomayor, and Kagan. According to the dissent, this was not new context and there were no justifications sufficient to deny a Bivens remedy. “Rogue U.S. officer conduct falls within a familiar, not ‘new,’ Bivens setting.” Id. at 30. The plaintiffs have no other possible recourse, and this case was “not an isolated incident.” The dissenting justices would have reversed and allowed the claim to proceed. Justice Ginsberg concluded:
In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing. I resist the conclusion that ‘nothing’ is the answer required in this case. Id. at 42 (Ginsberg, J., dissenting).
In this Buncombe County case, the Supreme Court affirmed the Court of Appeals decision finding no error with the trial court’s revocation of defendant’s probation over a year after the end of the probation term.
In January of 2017, the Asheville Police Department executed a search warrant of defendant’s residence, recovering marijuana, a digital scale, a firearm, and cash, including $40 used in a previous controlled buy of narcotics from defendant. At the time of the search warrant, defendant was already on supervised probation. Defendant was subsequently charged with possession of marijuana and related drug offenses and possessing a firearm by a felon. Defendant’s probation officer prepared violation reports identifying defendant’s offenses while on probation and filed them in February of 2018, more than two weeks before defendant’s probation expired on February 28, 2018. Although defendant successfully filed a motion to suppress the results of the search warrant, leading to the state dismissing the charges against him, the probation violations reached the trial court in April of 2019. The trial court found that defendant committed a new criminal offense while on probation and revoked defendant’s probation.
The Supreme Court first considered whether the trial court had jurisdiction to revoke defendant’s probation, examining the question de novo. The three requirements of G.S. 15A-1344(f) determine if a trial court has jurisdiction to revoke a defendant’s probation after it has expired; here the court found that all three were satisfied, but examined the adequacy of the “good cause shown and stated” to satisfy the requirement in (f)(3). Slip Op. at 10. The court turned to similar uses of “good cause” such as continuance motions, and examined related precedent to find that the trial court’s determination was not an abuse of discretion and was justified under the circumstances. The court also rejected defendant’s argument that the state must show “reasonable efforts” to schedule the probation revocation hearing at an earlier time, explaining the caselaw referenced by defendant examined a version of G.S. 15A-1344(f) no longer in effect. Id. at 19.
Justice Earls, joined by Justice Hudson, dissented and would have found that the trial court did not possess good cause to revoke defendant’s probation. Id. at 21.
The defendant was found guilty of criminal contempt relating to his unauthorized Facebook livestreaming of Macon County criminal superior court proceedings. The trial judge sentenced the defendant to 30 days in jail but suspended the sentence on numerous conditions. One condition required the defendant to compose a 2,000-3,000-word essay on respect for the judicial system and to post it to his social media. He was further ordered to monitor the posts of the essay on social media and delete any negative or disparaging remarks made by third parties. The defendant was not allowed to return to court in the district until the essay was posted online. On appeal, the defendant argued that his sentence was illegal and not authorized by the contempt statutes.
As summarized here, the Court of Appeals determined that the trial court had the discretion to suspend a contempt sentence and that the terms of probation were reasonably related to the nature of the offense (and therefore within the trial court’s discretion). Judge Brook dissented in part, noting the potential First Amendment problems with compelling the defendant to delete the comments of third parties on social media. He would have vacated that condition as not reasonably related to the offense or circumstances of the defendant. Based on that partial dissent, the defendant appealed to the North Carolina Supreme Court. In a per curiam order, the North Carolina Supreme Court affirmed. [Jonathan Holbrook blogged in part about the Court of Appeals decision in the case here.]
In this Gaston County case, the defendant was summarily found in direct criminal contempt by a magistrate. The contempt order arose out of a situation where the defendant came to the magistrate’s office to report a death threat she had received on her cell phone. The magistrate declined to look at the phone because cell phones were not permitted in the courtroom. The magistrate then told the defendant “that she needed to leave and take the cell phone out or [he] would hold her in contempt.” ¶ 5. The magistrate sat in silence for two or three minutes while the defendant repeated her claim, and then shut the blinds to the magistrate’s window, saying “we’re finished.” Id. The defendant left and made it to her car, but by that point the magistrate had informed the sheriff’s office that he was holding the defendant in contempt. Officers returned the defendant to the courtroom where the magistrate, without any additional proceedings, passed the contempt order through the window and gave it to the defendant. On appeal, the superior court found, among other things, that the magistrate told the defendant “that she was going to have to leave the courtroom and stop arguing with him, or he would hold her in contempt of court.” ¶ 8. The superior court concluded that the magistrate twice gave the defendant summary notice of the contempt charge and the conduct on which it was based, and then gave the defendant an opportunity to respond. The superior court entered an order holding the defendant in contempt and sentenced her to 48 hours of time already served.
On appeal to the Court of Appeals, the defendant argued that some of the trial judge’s findings of fact were not supported by the evidence. The Court of Appeals agreed, concluding that the evidence did not support the finding that the magistrate told the defendant to stop arguing with him. Rather, the magistrate told the defendant to leave the courtroom on account of the phone, and did not say anything further before ultimately closing the window blinds. Additionally, the Court concluded that there was insufficient evidence to support the trial court’s finding that the defendant continued to argue with the magistrate in response to being given notice that she would be held in contempt. To the contrary, the magistrate’s own testimony indicated that the defendant was repeating her claim about the underlying death threat, not arguing with the magistrate’s contempt warning.
The Court went on to note that the superior court appeared to be reviewing validity of the proceedings leading up to the magistrate’s order rather than conducting a de novo review. Moreover, the Court noted that summary contempt proceedings by the magistrate were not appropriate in any event where the contempt was not imposed substantially contemporaneously with the offending acts. Here, the magistrate effectively closed court by closing the window blinds and did not actually hold the defendant in summary contempt until she had left the courtroom for her car. Once court was closed, there was no proceeding to be delayed or disrupted, and summary contempt proceedings were therefore inappropriate.
The Court reversed the trial court’s order.
The defendant was served with subpoenas for her and her children to testify in a murder trial. She was first served by telephone by the Watauga County Sheriff’s deputy and later served personally. The defendant and her children did not appear as commanded. (This led to an improperly declared mistrial and ultimately resulted in a double jeopardy violation. See State v. Resendiz-Merlos, 268 N.C. App. 109 (Oct. 15, 2019)). The day before failing to appear as required by the subpoena, the defendant met with the prosecutor and acknowledged her obligation to appear and testify. After the trial, the defendant acknowledged to law enforcement that she had purposefully failed to comply with the subpoena. A show cause order was issued, and the defendant was found in criminal contempt. She was sentenced to an active term of 30 days and appealed.
(1) The subpoena personally served on the defendant only had one page of the AOC subpoena form (AOC-G-100). Page two of that document lists the rights and protections for a person under subpoena, and the defendant argued this rendered the process invalid. The Court of Appeals agreed that the subpoena personally served on the defendant did not comply with the requirements for service of a subpoena, but found the subpoena served by telephone was proper.
(2) The defendant also argued that the trial court lacked jurisdiction to find her in contempt based on the invalid subpoena. Because the telephone subpoena was properly served, the trial court had jurisdiction to enforce it. Contempt under these circumstances was permissible as a matter of Rule 45 of the North Carolina Rules of Civil Procedure or under G.S. 5A-11 (Criminal contempt). A show cause order alleging failure to comply with a court order and referencing the prior order gives a trial court jurisdiction for the trial court to act, and the show cause order here did so. In the court’s words:
[B]ecause the trial court entered a show cause order requiring defendant to appear in court and explain why she failed to appear in accordance with the subpoena served upon her, it was fully authorized to find her in criminal contempt of court. Gonzalez Slip op. at 9.
(3) An additional argument that the trial court failed to apply the beyond-a-reasonable-doubt standard to her contempt conviction was likewise rejected. The trial court announced in open court its use of that standard but failed to check the appropriate box on the form order. The oral pronouncement was sufficient to indicate the trial court’s application of the correct standard of proof, and the district court’s judgment was therefore affirmed in all respects. Judges Carpenter and Arrowood concurred.
The defendant in this case was found in criminal contempt after failing to appear as a witness at an assault on a female trial involving her husband where she was the alleged victim. The court first determined that failing to appear as a witness when subpoenaed is punishable as criminal contempt because it constitutes willful disobedience of, resistance to, or interference with a court’s lawful process. The court then rejected the defendant’s jurisdictional argument that the show cause order issued by the district court was facially defective for failing to comply with G.S. 15A-924(5), explaining that the statute’s requirements for pleadings in criminal cases in superior court do not apply to proceedings for criminal contempt. The court concluded by rejecting the following arguments advanced by the defendant: (1) that the district court’s failure to indicate that it used the reasonable doubt standard of proof deprived the superior court of jurisdiction on appeal from the district court’s order; (2) that it was error for the superior court to allow the district court judge to testify in the de novo hearing on appeal from the district court’s order; and (3) that competent evidence did not support the trial court’s findings of fact related to the defendant’s failure to appear.
Judge Berger concurred in a separate opinion, expressing his view that the majority should not have considered the defendant’s argument under Evidence Rule 605 regarding the competency of the district court judge as a witness, as well as his view that the majority should not have engaged in plain error review of the witness competency issue as it was a matter within the trial court’s sound discretion.
In this direct criminal contempt case involving summary proceedings where the defendant was sentenced for two instances of contempt, the Court of Appeals determined as a matter of first impression that the defendant did not have a statutory right to appointed counsel under G.S. 7A-451(a)(1). The court explained that precedent from the United States Supreme Court and the North Carolina Supreme Court establishes that there is no Sixth Amendment right to counsel in summary proceedings for direct criminal contempt. The court further explained that discussion in Jolly v. Wright, 300 N.C. 83 (1980), overruled on other grounds by McBride v. McBride, 334 N.C. 124 (1993), suggested that the language in G.S. 7A-451(a)(1) entitling an indigent defendant to appointed counsel in “any case” in which imprisonment or a fine of $500 or more is likely to be adjudged should be construed to refer to “any criminal case to which Sixth Amendment protections apply.” The court went on to point out that the contemporaneous nature of summary proceedings for direct criminal contempt where the trial court acts on its own first-hand observations supported the conclusion that the statutory right to counsel does not apply, but cautioned trial courts to exercise restraint in such proceedings.
The court remanded the matter to the trial court to correct a clerical error regarding the length of one of the defendant’s contempt sentences. The court also found that the trial court’s written judgment ordering that one of the sentences run consecutive to the other violated the defendant’s right to be present at sentencing because the trial court did not specify the consecutive nature of the sentence when rendering it orally while the defendant was present in the courtroom, and remanded for the entry of a new judgment in the defendant’s presence.
The defendant entered into a plea agreement with the State in superior court, after he appealed for a trial de novo, under which he would plead guilty to misdemeanor larceny and first-degree trespassing and receive a suspended sentence of 180 days, with a split sentence of 30 days. The arrangement also stated that “[u]ltimate sentencing shall be in the discretion of the court[.]” The defendant pled guilty, and the superior court judge imposed an active sentence of imprisonment of 120 days for the larceny and 60 days for the trespass, to run consecutively. The defendant made an unintelligible remark after sentencing, and the judge held him in direct criminal contempt and imposed an additional 30 days in jail. Thereafter, the superior court entered a consent order allowing the defendant to withdraw his plea, vacating the judgment for misdemeanor larceny and first-degree trespass, and allowing the State to proceed on the original plea offer. The appeal concerned the contempt judgment only. The Court of Appeals reversed the contempt judgment, holding that the trial judge failed to give the defendant summary notice and an opportunity to be heard before entering judgment in accordance with G.S. 5A-14(b). Although the findings and order signed by the trial judge contain a preprinted finding that “the contemnor was given summary notice of the charges and summary opportunity to respond,” the Court found that the record directly contradicted the form language and that no notice or opportunity to be heard was given. The Court rejected the State’s argument that because the defendant had already served the contempt sentence, the defendant’s appeal was moot. That argument, if accepted, would allow a defendant to be criminally confined without judicial review so long as the sentence was completed.
The trial judge in this case issued a show cause order for defendant to appear and show cause why he should not be held in criminal contempt for recording the proceedings before the trial judge and posting them on Facebook, contrary to courtroom policy and warnings. (1) The Court of Appeals affirmed the trial judge’s denial of the defendant’s motion to recuse, finding no evidence to suggest that the trial judge could not preside over the contempt hearing in an objective, impartial manner. (2) The evidence supported the trial judge’s finding of criminal contempt; it showed that the defendant understood the courtroom policy and warnings not to record inside the courtroom and willfully disregarded them. (3) The Court of Appeals held that the trial judge was authorized to impose a suspended sentence of imprisonment with conditions of probation, including the condition that the defendant write an essay about respect for the courtroom and publish it on his social media and internet accounts. The dissent found that although this condition had a reasonable relationship to the defendant’s criminal contempt and was permissible, it was impermissible—because not reasonably related to the contempt and potentially a violation of the First Amendment—to require the defendant to monitor comments by third parties on his accounts and delete negative ones.
At the conclusion of a probation revocation hearing, the defendant yelled vulgarities within earshot of the court. The trial court found the defendant in criminal contempt and sentenced him to an additional 30 days, consecutive to his other sentences. The trial court did not give the defendant an opportunity to respond to the alleged contempt, in violation of G.S. 5A-14(b). The judge also struck language from the contempt order that would normally document the fact that the defendant was warned and given an opportunity to be heard. “’[T]he judicial official’s findings in a summary contempt proceeding should clearly reflect that the contemnor was given an opportunity to be heard’ and without that finding, the trial court’s findings do not support the imposition of contempt.” The contempt order and judgment were therefore reversed.
The trial court did not err by holding the defendant in direct criminal contempt for statements he made during closing arguments in this pro se case. On appeal, the defendant argued that his actions were not willful and that willfulness must be considered in the context of his lack of legal knowledge or training. The trial court repeatedly instructed the defendant that he could not testify to matters outside the record during his closing arguments, given that he chose not to testify at trial. The trial court reviewed closing argument procedures with the defendant, stressing that he could not testify during his closing argument, and explaining that he could not tell the jury “Here’s what I say happened.” Although the defendant stated that he understood these instructions, he began his closing arguments by attempting to tell the jury about evidence that he acknowledges was inadmissible. The trial court excused the jury and again admonished the defendant not to discuss anything that was not in evidence. The defendant again told the trial court that he understood its instructions. When the jury returned however the defendant again attempted to discuss matters not in evidence. The trial court excused the jury and gave the defendant a final warning. Once again the defendant informed the trial court that he understood its warnings. However when the jury returned he continued his argument by stating matters that were not in evidence. This final incident served as the basis for the trial court’s finding of criminal contempt. On this record, the trial court did not err by finding that the defendant acted willfully in violation of the trial court’s instructions.
The trial court did not err by imposing consecutive sentences for multiple findings of contempt. The trial court had sentenced the defendant to six consecutive 30-day terms of imprisonment based on six findings of direct criminal contempt.
Trial court did not err by holding the defendant in criminal contempt for willfully violating the Consent Order provision which forbade her from allowing the children to be in the presence of a convicted sex offender.
A criminal contempt order was fatally deficient where it failed to indicate that the standard of proof was proof beyond a reasonable doubt.
For reasons discussed in the opinion, the court affirmed the trial judge’s order finding defense counsel in contempt of court for willfully disobeying a court order regarding permissible inquiry under the Rape Shield statute.
A “complaining witness” in a grand jury proceeding is entitled to the same immunity in an action under 42 U.S.C. §1983 as a witness who testifies at trial.
(1) The court rejected the defendant’s argument that on a second trial after a mistrial the second trial judge was bound by the first trial judge’s suppression ruling under the doctrine of law of the case. The court concluded that doctrine only applies to an appellate ruling. However, the court noted that another version of the doctrine provides that when a party fails to appeal from the tribunal’s decision that is not interlocutory, the decision below becomes law of the case and cannot be challenged in subsequent proceedings in the same case. However, the court held that this version of the doctrine did not apply here because the suppression ruling was entered during the first trial and thus the State had no right to appeal it. Moreover, when a defendant is retried after a mistrial, prior evidentiary rulings are not binding. (2) The court rejected the defendant’s argument that the second judge’s ruling was improper because one superior court judge cannot overrule another, noting that once a mistrial was declared, the first trial court’s ruling no longer had any legal effect. (3) The court rejected the defendant’s argument that collateral estoppel barred the State from relitigating the suppression issue, noting that doctrine applies only to an issue of ultimate fact determined by a final judgment.
The trial court did not err when during a retrial in a DWI case it instructed the jury that it could consider the defendant’s refusal to take a breath test as evidence of her guilt even though during the first trial a different trial judge had ruled that the instruction was not supported by the evidence. Citing State v. Harris, 198 N.C. App. 371 (2009), the court held that neither collateral estoppel nor the rule prohibiting one superior court judge from overruling another applies to legal rulings in a retrial following a mistrial. It concluded that on retrial de novo, the second judge was not bound by rulings made during the first trial. Moreover, it concluded, collateral estoppel applies only to an issue of ultimate fact determined by a final judgment. Here, the first judge’s ruling involved a question of law, not fact, and there was no final judgment because of the mistrial.
When a mistrial was declared, the judge retrying the case was not bound by rulings made by the judge who presided over the prior trial. Here, the rulings pertained to the admissibility of 404(b) evidence and complete recordation of the trial.
The court held that the trial court had jurisdiction to enter an order denying the defendant’s request for post-conviction DNA testing, rejecting the defendant’s argument that the order was entered out of session and without his consent. Harmonizing State v. Boone, 310 N.C. 284 (1984), State v. Trent, 359 N.C. 583 (2005), and Capital Outdoor Adver., Inc. v. City of Raleigh, 337 N.C. 150 (1994), the court held:
The . . . rule is that the superior court is divested of jurisdiction when it issues an out-of-term order substantially affecting the rights of the parties unless that order is issued with the consent of the parties. If the court issues an order out of session, however, the court is not divested of jurisdiction as long as either section 7A-47.1 or Rule 6(c) is applicable.
Although Rule 6(c) had no bearing on this criminal case, G.S. 7A-47.1 applied and validated the trial court’s out-of-session order.
The Court held that federal law preempted three of four provisions of Arizona’s immigration statute. Four provisions of the Arizona law were at issue. One section made failure to comply with federal alien registration requirements a state misdemeanor. A second section made it a misdemeanor for an unauthorized alien to seek or engage in work in Arizona. A third section authorized officers to arrest without a warrant a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.” A fourth section provided that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government. The Court held that the first three provisions were preempted by federal law but that it was improper to enjoin the fourth provision “before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.”
A district court judge did not err by failing to follow an administrative order issued by the senior resident superior court judge when that order was not issued in conformity with G.S. 15A-535(a) (issuance of policies on pretrial release). The administrative order provided, in part, that “the obligations of a bondsman or other surety pursuant to any appearance bond for pretrial release are, and shall be, terminated immediately upon the entry of the State and a Defendant into a formal Deferred Prosecution Agreement.” The district court judge was not required to follow the administrative order because the superior court judge issued it without consulting with the chief district court judge or other district court judges within the district.
Due process required that a Pennsylvania Supreme Court Justice recuse himself from the capital defendant’s post-conviction challenge where the justice had been the district attorney who gave his official approval to seek the death penalty in the case. The Court stated: “under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” It went on to hold that the justice’s authorization to seek the death penalty against the defendant constituted significant, personal involvement in a critical trial decision. Finally, it determined that an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote; as such the error was not subject to harmless error review.
A violation of due process occurred when West Virginia Supreme Court justice Brent Benjamin denied a recusal motion. The Supreme Court of West Virginia reversed a trial court judgment which had entered a jury verdict of $50 million against A.T. Massey Coal Co., Inc. Five justices heard the case, and the vote was 3 to 2. The basis for the recusal motion was that Justice Benjamin had received campaign contributions in an extraordinary amount from, and through the efforts of, Don Blankenship, Massey’s board chairman and principal officer. After the initial verdict in the case, but before the appeal, West Virginia held its 2004 judicial elections. Benjamin was running against an incumbent justice. In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to a political organization opposed to the incumbent and supporting Benjamin. Additionally, Blankenship spent just over $500,000 on independent expenditures—direct mailings and letters soliciting donations as well as television and newspaper advertisements supporting Benjamin. Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Benjamin won, in a close election. In October 2005, before Massey filed its petition for appeal to the West Virginia Supreme Court, the plaintiffs in the underlying action moved to disqualify now-Justice Benjamin based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion. In November 2007, the West Virginia Supreme Court reversed the $50 million verdict against Massey. It did so again on rehearing, after another recusal motion was denied. The U.S. Supreme Court held that “Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear, and true” and that “[o]n these extreme facts, the probability of actual bias rises to an unconstitutional level.”
The defendant failed to demonstrate grounds for recusal. The defendant argued that recusal was warranted based on the trial judge’s comments at various hearings and on the fact that “the trial court was often dismissive of defense counsel’s efforts and made a number of rulings unfavorable to the Defendant.” The court cautioned the trial court with respect to the following statement made at trial: “The other thing I want to do is put on the record that I leave to the appellate courts whether or not any recommendation as to discipline should be made to any of the responses or conduct of the attorneys based upon the record in this case as to whether any of the Rules of Practice or Rules of Conduct have been violated.” The court concluded that although it was unclear what issue the trial court meant to address with this statement, “it is the trial court’s responsibility initially to pass on these concerns if the court has them, especially in view of the fact that the trial court is in a better position than a Court of the Appellate Division both to observe and control the trial proceedings. . . . It is not for the trial court to abdicate its role in managing the conduct of trial to an appellate court whose task is to review the cold record” (citation omitted).
(1) In a proceeding for removal of an elected district attorney (DA) from office, the trial court did not err by denying the DA’s motion to continue where the statute, G.S. 7A-66, mandated that the matter be heard within 30 days. (2) In the absence of a statutory or rule-based provision for discovery in proceedings under the statute, the DA did not have a right to discovery. (3) Where the trial court put the burden of proof in the removal proceeding on the party who had initiated the action by clear, cogent and convincing evidence, no error occurred. (4) The court held that the trial court’s rulings in the removal proceeding did not violate the DA’s right to due process, noting that the DA had no right to discovery and that the trial court properly allocated the burden of proof. (5) The standard in the relevant provision of the removal statute of conduct prejudicial to the administration of justice which brings the office into disrepute is not unconstitutionally vague. (6) No violation of the prosecutor’s First Amendment free speech rights occurred where the DA’s removal was based on statements she made about a judge. The statements were made with actual malice and thus were not protected speech by the First Amendment. (7) Qualified immunity does not insulate the DA from removal based on statements made with actual malice. (8) Where the matter was heard without a jury, it is presumed that the trial court considered only admissible evidence, and the trial court did not err in admitting lay testimony.
The trial court had inherent authority to order an attorney to pay $500 as a sanction for filing motions in violation of court rules, that were vexatious and without merit, and that were for the improper purpose of harassing the prosecutor. The attorney received proper notice that the sanctions might be imposed and of the alleged grounds for their imposition, as well as an opportunity to be heard.
Where search warrants were unsealed in accordance with procedures set forth in a Senior Resident Superior Court Judge’s administrative order and where the State failed to make a timely motion to extend the period for which the documents were sealed, the trial judge did not err by unsealing the documents. At least 13 search warrants were issued in an investigation. As each was issued, the State moved to have the warrant and return sealed. Various judges granted these motions, ordering the warrants and returns sealed “until further order of the Court.” However, an administrative order in place at the time provided that an order directing that a warrant or other document be sealed “shall expire in 30 days unless a different expiration date is specified in the order.” Subsequently, media organizations made a made a public records request for search warrants more than thirty days old and the State filed motions to extend the orders sealing the documents. A trial judge ordered that search warrants sealed for more than thirty days at the time of the request be unsealed. The State appealed. The court began by rejecting the State’s argument that the trial court erred by failing to give effect to the language in the original orders that the records remain sealed “until further order of the Court.” The court noted the validity of the administrative order and the fact that the trial judge acted in compliance with it. The court also rejected the State’s argument that the trial judge erred by having the previously sealed documents delivered without any motion, hearing, or notice to the State and without findings of fact. The court noted that the administrative order afforded an opportunity and corresponding procedure for the trial court to balance the right of access to records against the governmental interests sought to be protected by the prior orders. Specifically, the State could make a motion to extend the orders. Here, however, the State failed to make a timely motion to extend the orders. Therefore, the court concluded, the administrative order did not require the trial court to balance the right to access against the governmental interests in protecting against premature release. The court further found that the State had sufficient notice given that all relevant officials were aware of the administrative order.
Affirming the trial court’s order denying the plaintiffs’ motion to unseal three returned search warrants and related papers. Holding that although returned search warrants are public records, the trial court did not abuse its discretion by sealing the documents where the release of information would undermine the ongoing investigation, and that sealing for a limited time period was necessary to ensure the interests of maintaining the State’s right to prosecute a defendant, protecting a defendant’s right to a fair trial, and preserving the integrity of an investigation. The court also rejected the plaintiffs’ argument that the orders violated North Carolina common law on the public’s right of access to court records and proceedings, concluding that the public records law had supplanted any common law right and that even if the common law right existed no abuse of discretion occurred. The court rejected the plaintiffs’ First Amendment argument, concluding that because the documents were not historically open to the press and public, the plaintiffs did not have a qualified First Amendment right to access. The court rejected the plaintiff’s argument that the sealing orders violated the open courts provision of Article I, § 18 of the State Constitution. Although the court recognized a qualified right of access to the documents under the open courts provision, it found that right was outweighed by compelling governmental interests. Finally, the court concluded that the trial court’s findings were sufficiently specific, that any alternatives were not feasible, and that by limiting the sealing orders to 30 days the trial court used the least restrictive means of keeping the information confidential.
The Sixth Amendment right to a public trial extends to the voir dire of prospective jurors. Trial courts are required to consider alternatives to closure even when they are not offered by the parties.
In a child sexual abuse case, the trial court did not violate the defendant’s right to a public trial by closing the courtroom for part of the victim’s testimony. The trial court made the requisite inquiries under Waller and made appropriate findings of fact supporting closure.
On appeal after a remand for the trial court to conduct a hearing and make appropriate findings of fact and conclusions of law regarding a closure of the courtroom during testimony by a child sexual abuse victim, the court held that the closure of the courtroom was proper and that the defendant’s constitutional right to a public trial was not violated.
In a sexual exploitation of a minor case, the trial court did not violate the defendant’s constitutional right to a public trial by closing the courtroom during the presentation of the sexual images at issue.
The trial court did not err on remand when it conducted a retrospective hearing to determine whether closure of the courtroom during the victim’s testimony was proper under Waller v. Georgia and decided that question in the affirmative. The court rejected the defendant’s argument that the trial court’s findings of fact had to be based solely on evidence presented prior to the State’s motion for closure; it also determined that the evidence supported the trial court’s factual findings.
The trial court did not violate the defendant’s constitutional right to a public trial under Waller v. Georgia by closing the courtroom during a sexual abuse victim’s testimony where the State advanced an overriding interest that was likely to be prejudiced; the closure of the courtroom was no broader than necessary to protect the overriding interest; the trial court considered reasonable alternatives to closing the courtroom; and the trial court made findings adequate to support the closure.
The trial court violated the defendant’s right to a public trial by temporarily closing the courtroom while the victim testified concerning an alleged rape perpetrated by defendant without engaging in the four-part test set forth in Waller v. Georgia, 467 U.S. 39 (1984). The court held that while the trial court need not make exhaustive findings of fact, it must make findings sufficient for the appellate court to review the propriety of the trial court’s decision to close the proceedings. The court cautioned trial courts to avoid making “broad and general” findings that impede appellate review. The court remanded for a hearing on the propriety of the closure:
The trial court must engage in the four-part Waller test and make the appropriate findings of fact regarding the necessity of closure during [the victim’s] testimony in an order. If the trial court determines that the trial should not have been closed during [the victim’s] testimony, then defendant is entitled to a new trial. If the trial court determines that the trial was properly closed during [the victim’s] testimony on remand, then defendant may seek review of the trial court’s order by means of an appeal . . . .
In a child sexual abuse case, the trial court did not err by excluding spectators from the courtroom during the victim’s testimony. The court excluded all spectators except the victim’s mother and stepfather, investigators for each side, and a high school class. Because the defendant did not argue that he was denied a public trial, the requirements of Waller v. Georgia, 467 U.S. 39 (1984), do not apply. The defendant waived any constitutional issues by failing to raise them at trial. The trial court’s action was permissible under G.S. 15-166 (in sexual assault cases the trial judge may, during the victim’s testimony, exclude from the courtroom everyone except the officers of the court, the defendant, and those engaged in the trial of the case). Furthermore, the court noted, G.S. 15A-1034(a) gives the trial court authority to restrict access to the courtroom to ensure orderliness in the proceedings. The State was concerned about the child victim being confronted with “a hostile environment with [defendant's] family sitting behind him;” the trial court was concerned about the potential for outbursts or inappropriate reactions by supporters of both the defendant and the victim. Although it was unusual to allow the high school class to stay, this decision was not unreasonable given that the issue was reactions by family members.