N.C. Court of Appeals (Dec. 5, 2023) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on December 5, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

No error in trial court’s denial of Batson objection; motion for mistrial properly denied where juror inadvertently discovered information regarding the murder of a witness.

State v. Dixon, COA21-471, ___ N.C. App. ___ (Dec. 5, 2023). In this Buncombe County case, defendant appealed his convictions for first-degree murder, attempted first-degree murder, and malicious maiming, arguing error in overruling his Batson objection and denying his motions for mistrial. The Court of Appeals found no prejudicial error.

During voir dire for defendant’s trial in June of 2019, the State used a peremptory strike on a black potential juror who expressed reservations about the death penalty. Defendant raised a Batson objection, and the trial court conducted the three-step analysis (this exchange is reproduced on pages 6-11 of the opinion). The trial court found that there had not been a sufficient showing of race as a motivating factor in the third step of the Batson analysis, overruling the objection. After the denial but during the trial, one of the State’s witnesses was killed. One juror learned of the killing through a press release issued by the DA’s office, and was excused for cause. Defendant moved for a mistrial, and the motion was denied. After the verdict, defendant learned another juror had heard of the killing, and moved for a mistrial again; the trial court denied this motion as well.

Beginning with the Batson issue, the Court of Appeals explained the procedural requirements for a Batson objection as clarified by State v. Hobbs, 374 N.C. 345, 356 (2020). The court then turned to the scope of review, explaining “we base our analysis on a review of the whole record, engaging in a full, written analysis of all arguments raised by Defendant at trial.” Slip Op. at 19. The court considered and rejected defendant’s argument that striking jurors for their views on race was equivalent to striking jurors for their actual race, but noted that “to the extent Defendant offers [the juror’s] views about race and the views of the three stricken white jurors as context to support an allegation that the strike of [the juror] was pretextual, we consider his argument for that limited purpose.” Id. at 21. Moving to the actual Batson analysis, the court examined the questioning of white jurors along with the black juror who triggered the Batson objection. Although the court noted that “the case is close,” it could not establish clear error in denying the Batson objection, pointing out that the black juror who was struck shared many similarities with a white juror who was struck for her views on the death penalty. Id. at 32.

Considering the motions for mistrial, the court could not find an abuse of discretion by the trial court in denying either motion. The court noted that the trial court issued a curative instruction about the use of cell phones, and that the juror in question for the second motion only saw a headline and did not express any issue with being fair and impartial. The court likewise rejected defendant’s argument that the trial court should have recused itself from the second mistrial motion, explaining the judge did not act as a witness on the question of whether the juror could perform his duties impartially.

Chief Judge Stroud and Judge Zachary concurred in the result only.

Pending appeal of SBM order did not remove trial court’s jurisdiction to consider Rule 60(b)(6) motion under Bell exception.

State v. Harvey, COA23-542, ___ N.C. App. ___ (Dec. 5, 2023). In this Columbus County case, defendant appealed the denial of his motion for relief from the order imposing lifetime Satellite-Based Monitoring (SBM) for his second-degree rape conviction. The Court of Appeals reversed the denial and remanded to the trial court.

In August of 2021, the trial court entered an order imposing lifetime SBM on defendant after he completed his sentence for second-degree rape; defendant subsequently appealed the order. In September of 2021, the General Assembly amended the SBM statutes to alter the findings required to impose SBM and to allow an offender to petition for termination or modification if they were sentenced to a term of SBM longer than 10 years before December 1, 2021. After this amendment, defendant filed a motion under Rule of Civil Procedure 60(b)(6) with the trial court to set aside the order imposing lifetime SBM, “arguing the change to the SBM law mere weeks after he was ordered to submit to a lifetime of SBM constituted an extraordinary circumstance warranting relief.” Slip Op. at 2. The trial court held a hearing on the motion, during which the judge expressed the opinion that the pending appeal removed jurisdiction from the trial court. However, in the written order denying the motion, the trial court included a conclusion of law that “Rule 60(b)(6) does not apply because extraordinary circumstances do not exist.” Id. at 4.

Taking up the Rule 60(b) issue, the Court of Appeals found error in the conclusion that an appeal removed the trial court’s jurisdiction. The court explained that normally, an appeal removes the jurisdiction of the trial court, but there is an exception under Bell v. Martin, 43 N.C. App. 134 (1979), for Rule 60(b) motions. The Bell exception procedure allows the trial court to consider the Rule 60(b) motion and indicate on the record how it would rule:

Should the trial court indicate it would be in favor of granting the motion, the appellant would “be in position to move the appellate court to remand to the trial court for judgment on the motion.” If, on the other hand, the trial court indicated it would deny the motion, that indication “would be considered binding on that court and [the] appellant could then request appellate court review of the lower court’s action.”

Id. at 7, quoting Bell at 142 (cleaned up). Here, the trial court’s statements and order were “at odds with each other,” as it appeared the trial court did not think it had jurisdiction, but subsequently concluded that extraordinary circumstances did not exist to grant the Rule 60(b) motion. Id. at 9. This led the court to reverse and remand for a new hearing consistent with the Bell procedure.

Admission of hearsay cellphone records without authenticating witness testimony violated defendant’s Confrontation Clause rights.

State v. Lester, COA23-115, ___ N.C. App. ___ (Dec. 5, 2023). In this Wake County case, defendant appealed his convictions for statutory rape, statutory sexual offense, and indecent liberties with a child, arguing the admission of hearsay cellphone records violated his rights under the Confrontation Clause of the Sixth Amendment. The Court of Appeals agreed, vacating the judgment and remanding for a new trial.

In 2022, defendant came to trial for having sex with a thirteen-year-old girl during the summer of 2019. At trial, the State offered cellphone records showing calls between a number associated with defendant and a number associated with the victim as Exhibits #2 and #3. Defendant was subsequently convicted of all charges, and defendant appealed. The Court of Appeals issued an opinion on October 17, 2023, which was subsequently withdrawn and replaced by the current opinion.

Considering defendant’s Sixth Amendment argument, the court quoted State v. Locklear, 363 N.C. 438 (2009), for the concept that the Confrontation Clause “bars admission of direct testimonial evidence, ‘unless the declarant is unavailable to testify and the accused had a prior opportunity to cross-examine the declarant.’” Slip Op. at 7-8. When determining whether a defendant’s Confrontation Clause rights were violated, courts apply a three-part test: “(1) whether the evidence admitted was testimonial in nature; (2) whether the trial court properly ruled the declarant was unavailable; and, (3) whether defendant had an opportunity to cross-examine the declarant.” Id. at 8. Here, “[t]he trial court’s findings answered the first and second factors . . . in the affirmative and the third factor in the negative,” meaning “the evidence should have been excluded.” Id. at 9.

The court went on to explain why the admission of the two exhibits was improper under the residual exception in Rule of Evidence 803(24), noting that “[t]he primary purpose of the court-ordered production of and preparation of the data records retained and provided by Verizon was to prepare direct testimonial evidence for Defendant’s trial.” Id. at 13. Because defendant was “not given the prior opportunity or at trial to challenge or cross-examine officials from Verizon, who had purportedly accumulated this evidence . . . their admission as such violated Defendant’s rights under the Confrontation Clause.” Id.

After establishing that admission of the exhibits was error, the court explained that the State could not meet the burden of showing the error was “harmless beyond a reasonable doubt” as required for constitutional errors. Id. at 14. As a result, the court vacated the judgment and remanded for a new trial.

Defendant did not supply sufficient evidence of voluntary intoxication; failure to specifically identify the firearm in question for jury instruction was not error.

State v. Mitchell, COA23-270, ___ N.C. App. ___ (Dec. 5, 2023). 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).

Erroneous Finding of Fact and Conclusion of Law did not represent plain error as defendant’s Fourth Amendment rights were not violated.

State v. Williams, COA22-914, ___ N.C. App. ___ (Dec. 5, 2023). In this Johnston County case, defendant appealed his convictions for possessing methamphetamine, possessing drug paraphernalia, resisting a public officer, and carrying a concealed weapon, arguing error in denying his motion to suppress because the order contained erroneous findings of fact and conclusions of law. The Court of Appeals disagreed, finding no plain error.

In August of 2018, sheriff’s deputies responded to a mobile home park after a service call about drug activity. When they arrived, they observed defendant sitting in the passenger seat of a silver car that was parked next to a black car. After an exchange where one passenger of the vehicle informed a deputy that he was “making a blunt,” and they observed marijuana, the deputies began questioning others in the vehicle. Slip Op. at 3. When defendant refused to take his hands out from under his legs or show his hands, a deputy assisted him out of the vehicle. Although at one point defendant fled the scene, he was eventually detained and placed in a deputy’s vehicle. After securing defendant, the deputies searched the area and the silver car, finding methamphetamine, marijuana, and drug paraphernalia. In February 2020, defendant’s motion to suppress was denied, and he was subsequently convicted in March of 2021. In May of 2022, defendant’s first petition for writ of certiorari was granted and the Court of Appeals found that the trial court’s order lacked sufficient conclusions of law. On remand, the trial court issued an amended order with additional conclusions of law in August 2022, again denying defendant’s motion to suppress. This amended order gave rise to the current opinion.

Taking up the order, the Court of Appeals first pointed out that the standard of review was plain error, as “Defendant filed a motion to suppress the challenged evidence, but at trial, Defendant failed to object to the admission of the evidence.” Id. at 7. The first remand by the court “did not negate the fact that Defendant failed to preserve the issues raised in his motion to suppress at trial.” Id. at 8. The court then analyzed the challenged findings of fact and conclusions of law to determine if they represented a violation of defendant’s Fourth Amendment rights. The court determined that finding of fact 7 was erroneous, as it referenced a black car being involved in the initial tip but testimony only mentioned a silver car. However, this error did not rise to a Fourth Amendment violation because “the evidence found in the silver vehicle was properly admitted.” Id. at 11.

Moving to the challenged conclusions of law, numbers 10 and 11, the court noted that these involved the lack of a seizure during the encounter and that the encounter did not trigger Fourth Amendment scrutiny. The court walked through the constitutional analysis applicable to the encounter between the deputies and defendant, concluding that conclusion of law 10 was not error as the encounter between the deputies and defendant was initially consensual, and defendant and the other occupants of the car were not seized. However, the court noted that conclusion of law 11 was erroneous, as “[c]ontrary to the trial court’s conclusion, ‘Fourth Amendment scrutiny’ was ‘triggered’ when [a deputy] assisted Defendant out of the vehicle because no reasonable person would have felt free to leave at that point.” Id. at 14. However, although the conclusion of law was erroneous, “it was not plain error because the deputies did not violate Defendant’s Fourth Amendment rights.” Id. at 14-15. Because the evidence was “properly admitted,” it did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings,” and the trial court appropriately denied the motion. Id. at 15.

Leave a Reply

Your email address will not be published. Required fields are marked *