This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on January 21, 2026.
(1) Impeachment by prior inconsistent statements and bias did not constitute an attack on the complainant’s character for truthfulness under Rule 608(a)(2); (2) admitting multiple witnesses in turn to bolster the complainant’s character for truthfulness was an abuse of discretion; (3) in a credibility-centered case, the error was prejudicial and required a new trial.
State v. Braswell, No. COA25-286 (N.C. Ct. App. Jan. 21, 2026) (Carpenter). The defendant was tried in Johnston County for taking indecent liberties with a child. The trial was based primarily on the complainant’s testimony describing inappropriate touching that occurred when she was alone with the defendant at his RV park, followed by a delayed disclosure to friends and family and subsequent law-enforcement/forensic interviews. At trial, defense counsel cross examined the complainant on alleged inconsistencies across her trial testimony, interviews, and written narrative. Defense counsel also suggested a possible bias based on the defendant’s having reported the complainant’s mother for drug use. Over the defendant’s objection, the trial court permitted the State to then call five witnesses to testify that the complainant had a strong reputation for truthfulness. These witnesses were the defendant’s daughter, the defendant’s wife, the complainant’s friend, and two church leaders. The jury convicted the defendant, and he was sentenced to between twenty and thirty-three months in prison.
The Court held the defense’s impeachment of the complainant by prior inconsistent statements and bias did not open the door to truthful character rehabilitation under Rule 608(a)(2). The Court drew a distinction between impeachment that suggests a witness is lying or mistaken in the instant case versus impeachment that portrays the witness as untruthful in general (with only the latter opening the door for truthful character rehabilitation). Applying that framework, the Court concluded the trial court abused its discretion by admitting the truthful character rehabilitation testimony. Because there was no physical evidence and the case primarily turned on the complainant’s credibility, the court found a reasonable possibility of a different result absent the bolstering testimony. Finding the defendant was prejudiced by the error, the Court vacated and remanded for a new trial.
(1) A second MAR raising a forfeiture of counsel argument was procedurally barred where the defendant was in a position to raise the relevant change in law in an earlier MAR but did not; (2) “good cause” did not excuse the procedural bar where the failure to raise the claim earlier was attributable to counsel’s omission rather than true unavailability; (3) defendant’s claim that a fundamental miscarriage of justice excuses the procedural bar was abandoned where it was not supported by argument.
State v. Haizlip, No. COA25-469 (N.C. Ct. App. Jan. 21, 2026) (Flood). This post-conviction appeal arose from a 2013 Guilford County trial in which the defendant ultimately proceeded pro se after discharging retained counsel, declining appointed counsel, and later appearing for trial with a private attorney who sought (and was denied) a continuance. The defendant was convicted of cocaine trafficking-related offenses and attaining habitual felon status. On direct appeal, the Court of Appeals upheld the trial court’s denial of the motion to continue and the defendant’s forfeiture of counsel under then-existing caselaw. The defendant filed a first MAR in 2020 arguing the continuance denial unfairly deprived him of counsel. The trial court denied it as having been previously determined on the merits on direct appeal, and the defendant did not seek review. The defendant later filed a second MAR in 2023 based on caselaw from the North Carolina Supreme Court that narrowed forfeiture of counsel to “egregious misconduct.” The trial court denied the defendant’s second MAR, finding that the merits had been previously determined and that the defendant was barred from reasserting them. The Court of Appeals granted certiorari to review the denial.
The Court of Appeals affirmed solely on procedural bar grounds, concluding the defendant was “in a position to adequately raise” the changed forfeiture theory in his first MAR. This is because the first case narrowing forfeiture of counsel (State v. Simpkins, 373 N.C. 530 2020)) had been decided months before he filed his first MAR. The Court also rejected the defendant’s attempt to fit within statutory exceptions to the procedural bar. The Court first explained that “good cause” requires genuine unavailability beyond counsel’s control, and that the record reflected omission of the changed law argument in the first MAR, rather than unavailability. The Court also addressed the defendant’s claim that a fundamental miscarriage of justice would occur if the Court did not address his forfeiture of counsel argument. The Court found that the defendant did not support this claim with an argument that a different result would have been reached, and as a result the Court held the argument to be abandoned. Finally, the Court noted that its holding in this case is narrow and decided solely on the procedural bar, and as a result it does not address the merits of whether the defendant forfeited counsel under the new standard announced in Simpkins.
(1) Assuming arguendo the defendant did not introduce evidence and was entitled to open and close final arguments to the jury, there was no prejudice from the trial court allowing the State to argue first; (2) expert testimony based on machine-generated toxicology data did not violate confrontation principles; (3) sale and/or delivery of a controlled substance is not a lesser included offense of death by distribution, and the court did not err in sentencing both offenses; (4) defendant’s claim that her counsel was ineffective for not raising issues (2) and (3) at trial fails because counsel did not err.
State v. Robinson, No. COA25-199 (N.C. Ct. App. Jan. 21, 2026) (Griffin). The defendant was convicted of death by distribution, possession with intent to sell or deliver a controlled substance, maintaining a dwelling to keep controlled substance, and possession of drug paraphernalia after a jury trial in Alamance County arising out of a fentanyl sale and ensuing overdose. The evidence included witness testimony, police investigation, the defendant’s admissions during an interview, and items recovered during a search warrant at the defendant’s home. Dr. Justin Brower, a forensic toxicologist and expert in forensic toxicology, approved the toxicology report of the overdose decedent. The toxicology report was produced by other forensic chemists using machine-generated data, and showed the decedent had used methamphetamine, cocaine, and fentanyl prior to his death. At closing, the State argued first, and the defendant objected under Rule 10 of the North Carolina Rules of Superior and District Courts, contending that because the defense introduced no evidence, she was entitled to open and close. The trial court overruled the objection and denied the defendant’s motion for a mistrial. The trial court entered a single consolidated sentence and sentenced the defendant to a term of sixty to eighty-four months in prison. On appeal, the defendant argued that the trial court prejudicially erred by permitting the State to argue first, by admitting the toxicology report, and by sentencing her to both death by distribution and sale and/or delivery of a controlled substance. The defendant also argued that she received ineffective assistance of counsel because her counsel did not object to the admission of the toxicology report and did not object to her being sentenced for both death by distribution and sale and/or delivery of a controlled substance.
Addressing the defendant’s first argument, the Court of Appeals held that although Rule 10 confers the right to open and close final arguments to the defendant when the defendant does not admit evidence, any error was not prejudicial because the defendant delivered the final argument and did not demonstrate a reasonable possibility of a different verdict in light of the evidence presented. Addressing the defendant’s second argument, the Court first held the confrontation argument was waived because it was not raised at trial. However, the Court further explained that because the challenged toxicology output was machine-generated and Dr. Brower independently analyzed that machine-produced data, the testimony did not rest on testimonial statements of non-testifying analysts, and that admitting it did not violate the defendant’s confrontation rights. The Court rejected the defendant’s double jeopardy argument, finding again that it was not raised at trial, and went on to find that because sale and/or delivery of a controlled substance is not a lesser included offense of death by distribution, the trial court did not violate the defendant’s double jeopardy rights by sentencing her for both offenses. Finally, the Court denied the defendant’s claim of ineffective assistance of counsel for not objecting to the admission of the toxicology report (because it was not error for it to be admitted) and for not objecting to the defendant being sentenced for both death by distribution and sale and/or delivery of a controlled substance (because it was not error to be sentenced for both). As a result, the Court found no prejudicial error by the trial court.
