This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on May 22, 2026.
There was no Harbison error where (1) the defendant agreed to allow counsel to concede both elements of possession of a firearm by a felon, and (2) counsel did not fully concede the defendant’s guilt, though counsel did not argue the defendant’s innocence.
State v. Nunnally, __ N.C. __ (May 22, 2026) (Durham Co.) (Berger, J.). This case began when the defendant assaulted his ex-girlfriend, struck her with a gun, then fired shots at her and at her uncle, missing both. He was charged with being a felon in possession of a firearm and with two counts of assault with a deadly weapon with intent to kill.
Prior to trial, the defense stipulated that the defendant had a prior felony conviction. The judge noted that the stipulation “basically does admit an element of the [firearm] offense,” and asked the defendant if he agreed with the stipulation. He said yes. During trial, defense counsel asked for another inquiry under State v. Harbison, 315 N.C. 175 (1985), because “there may be a point in the trial when the defense may admit [defendant] actually possessed the firearm.” The defendant stated that counsel had his permission to do so.
During closing, defense counsel “almost exclusively argued that the intent element necessary to convict on assault with a deadly weapon with intent to kill was not satisfied.” Counsel “did not explicitly argue the elements of possession of a firearm by a felon or otherwise ask the jury to find defendant not guilty of that charge.” In describing the facts, counsel acknowledged, and did not dispute, witness testimony that the defendant had a gun and pulled the trigger. Counsel’s argument apparently was persuasive. The jury found the defendant guilty of being a felon in possession of a firearm, but as to the assault charges, convicted him only of two counts of misdemeanor assault with a deadly weapon.
The defendant appealed, asserting per se ineffective assistance of counsel under Harbison on the theory that the record did not show his consent to what he saw as counsel’s admission of guilt to the gun charge. A majority of the Court of Appeals saw merit in the argument, ordering a remand for a hearing on “whether defendant understood the consequence of the concession of the second element” of the crime. Judge Murry dissented, the State appealed, and the state supreme court granted review.
The defendant argued that “even though the record reveals his consent to the separate concession of both elements of the charge, it does not show his appreciation and understanding that such concessions equated to an admission of guilt.” The Supreme Court disagreed, determining that the defendant consented to any admission of guilt made by his attorney, because “the stipulations [the defendant] agreed to on the record match counsel’s purported concessions to the jury, and . . . the purported concessions were not made to the surprise of defendant.”
Furthermore, the majority concluded that defense counsel did not concede the defendant’s guilt. It acknowledged that State v. McAllister, 375 N.C. 455 (2020), extended Harbison to apply to “implied concessions” of guilt, including circumstances where counsel conspicuously fails to argue the defendant’s innocence of a charged offense. However, the court ruled that in this case, “counsel did not explicitly or implicitly concede guilt.” The parties agreed that there was no explicit concession, but the defendant saw an implicit concession in counsel’s refusal to argue his innocence of the gun charge, and counsel’s apparent embrace or acknowledgement of witness testimony that the defendant had a gun and fired it. The majority ruled otherwise, noting that counsel used “hypothetical language” to argue that a person (not necessarily the defendant) could point a gun at another person without intending to kill them. The court saw counsel’s argument as properly preserving counsel’s credibility with the jury while refraining from “specify[ing]” that the defendant was guilty of the gun offense.
Chief Justice Newby concurred, writing separately to express his view that the per se prejudice rule of Harbison “has been undermined by the United States Supreme Court” in Florida v. Nixon, 543 U.S. 175 (2004). Therefore, he reasoned, in an appropriate future case, the state supreme court should “realign [its] Sixth Amendment [ineffective assistance of counsel] jurisprudence” to follow the test set forth in Strickland v. Washington, 466 U.S. 668 (1984) (holding that a defendant asserting ineffective assistance of counsel must show both (a) unreasonably deficient performance and (b) prejudice).
Justice Riggs dissented, joined by Justice Earls. In the dissenters’ view, counsel did implicitly concede the defendant’s guilt of the firearm offense. They further opined that “the record does not clearly establish that [the defendant] knowingly consented to the second element of the possession of a firearm by a felon offense,” based on what they saw as a somewhat confusing and disjointed colloquy on that point. Therefore, they would have affirmed the Court of Appeals.
The defendant’s argument that there was insufficient evidence to support multiple convictions of assault by strangulation was not preserved.
State v. Tadlock, __ N.C. __ (May 22, 2026) (Haywood Co.) (Berger, J.). The defendant violently assaulted his girlfriend. He was charged with attempted murder, rape, and other crimes, including two counts of assault by strangulation. He was convicted of the two assaults by strangulation and other offenses. He appealed, contending that the “distinct interruption” test of State v. Dew, 379 N.C. 64 (2021), applied to assault by strangulation and asserting that there was insufficient evidence of a distinct interruption between two acts of strangulation to support multiple convictions. The Court of Appeals disagreed, but one judge dissented and the Supreme Court of North Carolina granted review. Rather than deciding the case on the merits, however, the court determined that the issue was not properly preserved because defense counsel had not made a motion to dismiss the strangulation charges at the close of the State’s evidence. Therefore, it vacated the opinion of the Court of Appeals on the issue.
Chief Justice Newby concurred, writing separately to express his view that even if the issue had been preserved, the defendant would not have prevailed. He reasoned that the “distinct interruption” test in Dew applies only to “general assault crimes,” not to assault by strangulation because “each completed strangulation” meets the elements of the offense as set forth in G.S. 14-32.4.
In a murder case in which the defendant claimed self-defense, the trial judge erred by excluding under Rule 404(b) evidence that the decedent had a prior felony conviction and the defendant knew it.
State v. Hague, __ N.C. __ (May 22, 2026) (Iredell Co.) (Riggs, J.). The defendant and the eventual decedent, Thomas Cass, had several arguments about Cass’s hunting on property near the defendant’s horse rescue farm. The hunting spooked the defendant’s horses, one of which had previously been shot and injured by hunters. Cass appeared to view the defendant as a meddling busybody. Things came to a head during a hunt in 2020. The defendant confronted Cass, who pushed the defendant, age 71, to the ground. The defendant was able to get up. According to Cass’s friends, the defendant immediately drew his pistol and shot Cass. According to the defendant, he fired only after he saw Cass reaching into his vest pocket, causing the defendant to fear that Cass was going to draw his own gun.
The defendant was charged with, and convicted of, first-degree murder. A divided Court of Appeals ordered a new trial, finding multiple errors. The State sought further review in the Supreme Court of North Carolina. The high court agreed with the Court of Appeals that the trial judge erred in excluding evidence that Cass had previously been convicted of a felony and that the defendant knew it.
The evidentiary issue arose when the State filed a motion in limine to exclude the evidence as irrelevant. The defendant responded that it was pertinent because it helped show that it was reasonable for him to fear that Cass was going to shoot him. The trial judge ruled for the State, apparently in reliance on Rule 404(b), which prohibits the admission of evidence of a person’s “other crimes, wrongs, or acts . . . to prove the character of a person in order to show that he acted in conformity therewith.”
The Supreme Court of North Carolina ruled that the evidence was not subject to exclusion under Rule 404(b) because the evidence served a purpose other than showing Cass’s propensity to engage in misconduct. It was “relevant to the defendant’s state of mind” that Cass was a felon who was willing to flaunt the gun laws by possessing a firearm in the course of hunting.
The court further determined that the exclusion of this evidence was prejudicial. The defendant’s state of mind and the reasonableness of his conduct were at the heart of the case. Therefore, the court ordered a new trial. It declined to address a second alleged error, the trial court’s refusal to give a stand your ground jury instruction in the case.
Justice Barringer, joined by Justice Allen, wrote separately to express the view that the defendant’s possession of a handgun – which he said he carried routinely – was not alone sufficient evidence of premeditation.
The totality of the circumstances provided probable cause to search a vehicle. The odor of marijuana was one factor, but not the only one.
State v. Dobson, __ N.C. __ (May 22, 2026) (Guilford Co.) (Earls, J.). Phil Dixon will blog separately about this case. Briefly, the case arose out of a traffic stop. Officers involved in the stop smelled (a) the odor of burnt marijuana and (b) a strong, perfumed cover scent coming from the vehicle. They also learned that multiple occupants of the vehicle had criminal records, including for drug offenses. They searched the vehicle and found drugs, leading to criminal charges. On review, the state supreme court determined that the totality of the circumstances in this case provided probable cause to support the search. It expressly declined to resolve “whether the smell of a single odor [of marijuana] or a double odor [of marijuana and a cover scent] is sufficient to establish probable cause.”
The totality of the circumstances provided reasonable suspicion to frisk a person and probable cause to search a vehicle. The odor of marijuana was one factor, but not the only one.
State v. Rowdy, __ N.C. __ (May 22, 2026) (Forsyth Co.) (Riggs, J.). This is a companion case to Dobson, summarized above. It involved (a) a warrantless frisk of the defendant’s person, under a reasonable suspicion standard, and (b) a warrantless search of the defendant’s vehicle, under a probable cause standard. Similar to Dobson, the court stated that reasonable suspicion and probable cause are assessed under the totality of the circumstances, and in this case, multiple facts supported the officers’ actions, including the odor of marijuana and also circumstances such as the defendant’s “refusal to pull over for the traffic stop, his presence in a ‘high crime area,’ his prior convictions for narcotics and weapons offenses . . . and his evasive behavior during questioning.” Because multiple incriminating factors were present, the court did not opine regarding whether the odor of marijuana alone would support reasonable suspicion or probable cause.
A defendant had no statutory right to appeal her guilty plea to habitual felon status based on her claim that one of the prior convictions used to support the status should not have counted as a felony.
State v, Mincey, __ N.C. __ (May 22, 2026) (Craven Co.) (Riggs, J.). The defendant ran a travel agency, collected clients’ money, then cancelled their trips and kept their funds. She was charged with embezzlement and related crimes and with being a habitual felon. She was convicted of multiple fraud offenses and pled guilty to being a habitual felon based on prior Colorado convictions. Her trial counsel stated, incorrectly, that the Colorado offenses were felonies at the time of conviction and remained felonies at the time of trial.
After determining that one of the Colorado offenses had been downgraded to a misdemeanor a few years after the defendant’s conviction, the defendant appealed and filed a petition for certiorari. The Court of Appeals determined that she had a right of appeal and therefore denied as moot her petition for certiorari. On the merits, it ruled that the Colorado conviction could be used to support habitual felon status, because it was consistent with the purpose of the habitual felon statute to count prior convictions of offenses that were felonies at the time, even if the offenses were later downgraded.
Both parties sought review in the Supreme Court of North Carolina. That court ruled that the defendant lacked a right to appeal. The right to appeal in criminal cases is purely statutory and G.S. 15A-1444 is the key statute. Under subsections (a1) and (a2) of the statute, defendants who plead guilty are allowed to appeal only a limited number of issues, generally pertaining to claimed errors in sentencing. The Court of Appeals had ruled that the defendant was entitled to appeal under subdivision (a2)(3), which allows a defendant to challenge a prison sentence “for a duration not authorized by G.S. 15A-1340.17 or G.S. 15A-1340.23 for the defendant’s class of offense and prior record or conviction level.” The Supreme Court disagreed, reasoning that the question whether the Colorado offense could be counted “centers on interpretation of the habitual felon statute itself” not on the application of the Structured Sentencing statutes listed in subdivision (a2)(3). Therefore, it ruled that the defendant lacked a right of appeal. Because the Court of Appeals had denied as moot the defendant’s petition for certiorari, the Supreme Court concluded that the Court of Appeals lacked jurisdiction to review the defendant’s case and it remanded for further proceedings.
The admission of the defendant’s salacious, unflattering, and possibly irrelevant text messages did not rise to the level of plain error given the strength of the State’s case and the weakness of the defendant’s claim of self-defense.
State v. Hicks, __ N.C. __ (May 22, 2026) (Randolph Co.) (Earls, J.). The defendant shot her paramour twice in the back, killing him. She was charged with murder. She claimed to have acted in self-defense. Without objection, the State introduced at trial “phone extraction reports” that showed all the text messages she sent and received over a period of several months leading up to the shooting. Based on the opinion of the Court of Appeals, the messages included sexually explicit content revealing that she was involved in simultaneous relationships with multiple men, callous remarks about misfortunes suffered by others, and advice to her son to lie to school authorities about his conduct, among other unflattering material. She was convicted of second-degree murder and appealed.
The Court of Appeals determined that the messages were “irrelevant and prejudicial” and that their admission constituted plain error. In that court’s view, there was a plausible self-defense case to be made, but the admission of the messages “probably caused the jurors to convict Defendant based on their emotional revulsion toward her rather than acquit her based on the evidence of self-defense.”
The Supreme Court concluded that any error did not rise to the level of plain error. Essentially, the majority viewed the State’s case as being strong enough that any prejudice arising from the admission of the messages was not so severe as to change the outcome. It emphasized that the defendant was “the only armed party” in the interaction leading up to the shooting, that the victim was “shot twice in the back,” that there were no “significant injuries” to the defendant suggestive of a violent struggle, and that there was no “damage to the room” in which the shooting took place. It also noted that the defendant gave police multiple inconsistent accounts of events.
When a governor commutes a defendant’s death sentence to life in prison prior to appellate review, the defendant’s appeal is to the Court of Appeals, not to the state supreme court.
State v. Robinson, __ N.C. __ (May 22, 2026) (Stanly Co.) (Allen, J.). The defendant killed a man in 2007. He was charged with, and convicted of, first-degree murder and was sentenced to death. He appealed directly to the Supreme Court of North Carolina pursuant to G.S. 7A-27(a)(1) (stating that appeals go directly to the state supreme court in “[a]ll cases in which the defendant is convicted of murder in the first degree and the judgment of the superior court includes a sentence of death”) and G.S. 15A-2000(d)(1) (providing that “[t]he judgment of conviction and sentence of death is subject to automatic review by the Supreme Court of North Carolina”).
The defendant had also made a claim under the Racial Justice Act (RJA). He asked the state supreme court to stay his direct appeal pending a resolution of his RJA claim. In 2012, the court granted a stay. On December 31, 2024, with the stay still in place, Governor Cooper commuted the defendant’s death sentence to a sentence of life in prison.
The defendant then asked the Supreme Court of North Carolina to dissolve the stay and remand the case to the Court of Appeals. In his view, with the death penalty off the table, his case was no longer a capital case subject to direct and automatic review by the state supreme court. Rather, it was in effect a first-degree murder conviction with a sentence of life in prison. Appeals in such cases go to the Court of Appeals under G.S. 7A-27(b)(1).
A majority of the Supreme Court of North Carolina agreed. The majority looked at the type of review required by G.S. 15A-2000(d), which addresses whether “the record . . . support[s] the jury’s findings of any aggravating circumstance . . . upon which the sentencing court based its sentence of death,” whether “the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor,” and whether the “sentence of death is excessive or disproportionate.” The majority concluded that those considerations revealed “the legislature’s principal concern in creating direct appeals to this Court from judgments imposing the death penalty: to prevent arbitrary or unjust executions.” Given that the defendant in this case no longer faces the possibility of execution, the majority saw no reason for his appeal to go directly to the state supreme court. It therefore remanded the case to the Court of Appeals.
Justice Berger dissented. In his view, G.S. 7A-27(a)(1) unambiguously requires that where “the judgment of the superior court includes a sentence of death,” the direct appeal in “all cases” goes to the state supreme court. Clemency is an act of executive grace that does not change the judgment. Because the judgment in this case contains a sentence of death, Justice Berger would have kept the case in the Supreme Court of North Carolina.
State v. Barden, __ N.C. __ (May 22, 2026) (Samson Co.) (per curiam). This case is similar to State v. Robinson, summarized above, and follows the same holding. Justice Berger dissents for the same reasons he dissented in Robinson.
