This post summarizes opinions issued by the North Carolina Court of Appeals on May 19, 2020.
A defendant who disagrees with the jail credit calculated by the trial court should seek relief under the procedures in G.S. 15-196.4
State v. Galloway, ___ N.C. App. ___ (May 19, 2020)
After the defendant pled guilty to multiple offenses, the trial court suspended his sentence and placed him on supervised probation. At a later probation violation hearing, the trial court revoked the defendant’s probation, reactivated his sentence, and awarded him343 days of jail credit. The defendant appealed, asking the Court of Appeals to remand the case to the trial court to determine whether he should have received an additional 107 days of credit. The Court of Appeals dismissed the defendant’s appeal without prejudice to seek relief from the trial court pursuant to G.S. 15-196.4, which allows the defendant to petition the court for credit not previously allowed. Then, if necessary, the defendant could appeal the trial court’s determination with a record suitable for meaningful review by the Court of Appeals.
Majority of Court of Appeals declines to hear certiorari petition regarding probation revocation where pro se appeal by defendant was defective
State v. Gantt, ___ N.C. App. ___ (May 19, 2020)
The defendant was convicted of felony breaking or entering in 17 CRS 54550 and felony larceny after breaking or entering in 17 CRS 54551. The trial judge sentenced him to two consecutive 8 to 19 months prison terms, suspended the sentences, and placed him on probation. Violation reports were subsequently filed in both cases, and the defendant’s probation was revoked by the trial judge in both cases. The defendant filed a pro se written notice of appeal. The majority found that the notice failed to comply with North Carolina Rule of Appellate Procedure 4 in that the notice “did not (1) designate the judgment from which he was appealing, (2) designate the court to which he was appealing, and (3) properly certify service.” The majority found that these defects deprived the Court of jurisdiction over a direct appeal, dismissed the appeal, and declined to exercise its discretion to hear the defendant’s arguments by way of petition for writ of certiorari. A dissenting judge, noting the technical nature of the defects in the defendant’s notice of appeal, would have heard the defendant’s certiorari petition in one of the cases, 17 CRS 54551. In that case, the trial judge revoked the defendant’s probation based on absconding, but the violation report did not allege absconding. Only in the other case, 17 CRS 54550, did the violation report allege absconding. The dissent observed that the allegations in that case were insufficient to put the defendant on notice of that violation in the other case. The dissenting judge stated that it was an abuse of discretion to overlook this due process violation and deny the defendant’s certiorari petition.
Trial judge must give all jury instructions to the jury and may not have clerk read some of the instructions
State v. Grappo, ___ N.C. App. ___ (May 19, 2020)
The defendant’s sole argument on appeal was that the trial judge violated the statutory mandates of G.S 15A-1231 and 15A-1232 by allowing the clerk to read some of the jury instructions to the jury. The judge had the clerk read the instructions on “(1) the function of the jury; (2) the presumption of innocence; (3) the State’s burden of proof and the definition of reasonable doubt; (4) the jury’s duty in evaluating the credibility of witnesses; (5) the weight of the evidence; (6) the definitions of direct and circumstantial evidence; and (7) the effect of Defendant’s decision not to testify.” The judge read the remainder of the instructions about the specific charges and factual findings required by the jury to convict the defendant. The defendant argued that this procedure gave the jury the impression that the first instructions were less important than those read aloud by the judge herself. The Court of Appeals held that the trial judge violated the statutory mandate that the judge give all instructions to the jury. The Court urged the trial bench not to avoid its statutory duty and emphasized its importance. The Court also recognized the possibility of prejudice by the failure to do so but found the error harmless in this case. The trial judge instructed the jury to listen closely to the clerk; the judge interjected several times to correct misstatements by the clerk; the jury reached its verdict without seeking clarification from the judge; and when asked by the judge for any additions or corrections to the instructions, counsel for the defendant said no.
(1) Trial judge did not abuse discretion in denying mistrial after prosecutor inadvertently showed image similar to image that trial judge had ruled was inadmissible
(2) Case was remanded to trial judge to correct clerical error in written judgment (community punishment) to be consistent with actual sentence (intermediate punishment)
State v. Hauser, ___ N.C. App. ___ (May 19, 2020)
The defendant was convicted of obtaining property by false pretenses for selling boxes purportedly containing iPhones that contained only lug nuts. (1) At trial, the prosecutor tried to use the video system to display to the jury a photo of the vehicle driven by the defendant, which the judge had admitted without objection. Instead, the prosecutor inadvertently showed an image of the defendant with several phones in his hand while wearing gold necklaces and standing in front of a mirror, an image similar to a photo the trial judge had ruled inadmissible under North Carolina Rule of Evidence 403. Once defense counsel noticed the image and objected, the prosecutor apologized and disconnected the display. The trial judge denied the defendant’s motion for a mistrial and instead gave a limiting instruction telling the jury to disregard anything that might have just flashed up on the screen. After considering the nature of the evidence and the circumstances of the defendant’s case, the Court of Appeals held that the defendant did not overcome the presumption that the jury was able to understand and comply with the trial judge’s limiting instruction and that the trial judge did not abuse his discretion in denying a mistrial. (2) 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.
Imposition of satellite based monitoring (SBM) for life was unreasonable search, but majority of Court of Appeals holds that imposition of SBM during the period of post-release supervision (PRS) was reasonable
State v. Hilton, ___ N.C. App. ___ (May 19, 2020)
In 2007, the defendant pled guilty to statutory rape and statutory sexual offense and was sentenced to 144 to 182 months of imprisonment. With credit for presentence confinement, he was released in July 2017 subject to PRS, which included a condition that he not leave Catawba County without the consent of his probation officer. After his release, the defendant violated that condition by going to Caldwell County without the knowledge or approval of his probation officer. He was subsequently charged with taking indecent liberties with his fifteen-year-old niece and absconding to Caldwell County. During the pendency of his case in Caldwell County, the State initiated proceedings to enroll the defendant in SBM through a bring-back hearing pursuant to G.S. 14-208.40B. After a hearing, the trial judge ordered the defendant to enroll in SBM for life. The Court of Appeals ruled that the imposition of lifetime SBM on the defendant constituted an unreasonable search. A majority of the Court ruled further that the imposition of SBM during the defendant’s period of PRS was reasonable. The majority found that the defendant’s expectation of privacy is low during PRS. And, although the State failed to present evidence showing the efficacy of SBM in solving sex crimes, it presented evidence showing SBM’s efficacy in determining whether the defendant violated the condition of PRS that he remain in Catawba County. The majority held that the “for life” language in G.S. 14-208.40B is severable from the rest of the statute and affirmed the trial judge’s order to the extent it imposes SBM for the period of the defendant’s PRS. A dissenting judge concurred with the majority’s reversal of lifetime SBM but would have reversed the imposition of SBM for the period of PRS. He stated that the State did not show the efficacy of SBM during PRS and that statute on lifetime SBM could not be construed to authorize SBM for the period of PRS.
Defendant’s confession was induced by hope instilled by the interrogators and in the totality of circumstances was not voluntary; murder conviction and life without parole sentence reversed
State v. Lynch, ___ N.C. App. ___ (May 19, 2020)
The defendant was convicted of first-degree murder, robbery with a dangerous weapon, and assault with a deadly weapon with the intent to kill inflicting serious injury. He was sentenced to life without parole for the murder conviction and to shorter terms for the other convictions. The case arose out of the robbery of a bar by two masked individuals, during which the owner of the bar was shot and killed and the perpetrators fled with the cash register. The 18-year-old defendant was arrested and waived his Miranda rights. The defendant adamantly denied his involvement throughout much of the three-hour, recorded interrogation but toward the end confessed his involvement. The defendant’s motion to suppress his confession was denied by the trial judge, and at trial the State introduced his confession and the testimony of others involved in the robbery implicating the defendant. The defendant argued on appeal that his confession was not voluntary because it was induced by hope of a sentence of life imprisonment instilled by the statements and actions of the officers who interrogated him. The Court of Appeals reviewed the transcript of the confession and concluded that in the totality of the circumstances the defendant’s confession was involuntary. The Court found that the defendant was predisposed to deny involvement and believed he would receive a life sentence whether he confessed or not. The Court also found that without being prompted by the defendant, the interrogators introduced the idea that they had ample evidence against the defendant, that they knew he was lying, that the judge could be influenced to show leniency if he confessed, and that they would be willing to testify on his behalf. The Court further found that the State failed to meet its burden to show that admission of the confession, which was constitutional error, was harmless beyond a reasonable doubt. The Court observed that there was sufficient evidence to convict the defendant without the confession in light of testimony from others involved in the robbery and video surveillance footage showing the masked perpetrators; however, no physical evidence linked the defendant to the crime and no one at the bar could identify the defendant as one of the perpetrators. The Court stated that it could not conclude beyond a reasonable doubt that all twelve jurors would have voted to convict without the confession.
(1) Majority of Court of Appeals holds that attempted armed robbery must specifically name victims and that indictment that alleged victims as employees of business was fatally defective
(2) Whole plea agreement covering defective charge and other charges had to be vacated; parties may enter into new plea agreement or State may proceed to trial on all charges, including new indictment for armed robbery
State v. Oldroyd, ___ N.C. App. ___ (May 19, 2020)
The defendant was indicted in 2013 for first-degree murder, attempted armed robbery, and conspiracy to commit murder for crimes committed in 1996. Pursuant to a plea agreement, the defendant pled guilty in June 2014 to a reduced charge of second-degree murder, attempted armed robbery, and conspiracy to commit robbery, for which he received a consolidated sentence of 120 to 153 months. In June 2015, the defendant filed a motion for appropriate relief claiming that the indictment for attempted armed robbery was fatally defective by failing to name any victim. The trial judge denied the motion, and the defendant petitioned for a writ of certiorari. (1) A majority of the Court of Appeals ruled that the indictment was fatally defective and did not provide the trial court with jurisdiction to enter judgment on the defendant’s guilty plea to attempted armed robbery. The Court recognized that armed robbery is a crime against the person. Like common law robbery, it involves the taking of money or goods from the person or presence of another by violence or intimidation. The only difference is the use of a firearm or other dangerous weapon. Indictments for such crimes must specifically name the victim. The Court held that attempted armed robbery is indistinguishable from the completed crime in terms of the subject matter and the victim must be specifically named in the indictment. The indictment in this case alleged the victims as employees of the Huddle House. Relying on prior decisions, including the North Carolina Supreme Court’s decision in State v. Scott, 237 N.C. 432 (1953), the Court ruled that this allegation was not sufficient to satisfy the requirement that the victim be specifically named. A dissenting judge would have found the indictment sufficient because the allegation that the defendant was attempting to steal property from the employees of Huddle House was sufficient to show that the defendant was taking others’ property and the allegation that the lives of the employees were threatened or endangered by the defendant’s possession of a firearm was sufficient to put him on notice of the manner and means by which the crime was perpetrated. (2) The Court of Appeals rejected the requested remedy of vacating his conviction for attempted armed robbery. The Court held that by successfully moving to vacate the judgment for armed robbery, the Court was obliged to vacate the whole plea agreement. The Court observed that the parties may enter into a new plea agreement or the State may proceed to trial on the charges, including attempted armed robbery pursuant to a new indictment.
Trial judge erred by finding the defendant in direct contempt for an unintelligible remark he made after sentencing without giving the defendant notice and an opportunity to be heard
State v. Perkinson, ___ N.C. App. ___ (May 19, 2020)
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.
(1) Trial judge did not err in refusing to instruct the jury on consent in case involving assault inflicting serious bodily injury (AISBI)
(2) Trial judge did not abuse discretion in refusing to impose sanctions for State’s failure to disclose fee paid to expert about the victim’s injuries
State v. Russell, ___ N.C. App. ___ (May 19, 2020)
The defendant met his former girlfriend and new boyfriend, the victim in the case, at a bar. The defendant asked the victim to step outside to talk. During the exchange, the victim told the victim to hit him. (According to the concurrence, the victim said, “If you want to hit me, hit me, but this is not the way we need to solve this issue.”). The defendant hit the victim and broke his jaw in two places, requiring surgery to repair the damage. (1) The defendant argued that the trial court erred in refusing to instruct the jury on AISBI. The majority stated that consent is not a defense to assault in North Carolina and held that the trial court did not err in refusing to instruct on consent for AISBI. The concurring judge found it unnecessary to decide whether consent is an element of or defense to assault, finding that the trial judge did not err in refusing to instruct on consent because the evidence did not show the victim consented to an assault inflicting serious bodily injury and arguably did not consent to an assault all.
(2) At sentencing, the State advised the trial judge that it had failed to disclose the fee paid to an expert to testify about the victim’s injuries. The trial judge found the failure to disclose was an “honest mistake.” The Court stated that it was not clear whether the trial judge found that a discovery violation had occurred, but assuming a violation occurred, the defendant was not prejudiced.
(1) Trial judge erred in admitting expert testimony that substance was methamphetamine without first requiring that expert explain how she applied the GCMS test to the substance; however, error was not plain error
(2) Good cause did not exist for activating the defendant’s suspended sentence on other charges after his period of probation expired; State could have proceeded for violation of “commit no crime” condition before defendant was convicted of current crime
State v. Sasek, ___ N.C. App. ___ (May 19, 2020)
(1) The defendant was convicted of possession with intent to sell or deliver a Schedule II controlled substance and sale of methamphetamine. At trial, the State presented the testimony of an expert in drug chemistry from the North Carolina State Crime Lab. She testified that she performed a gas chromatography mass spectrometer (GCMS) test on the substance. She explained how the GCMS test works and how the examiner analyzes the results. Before she explained how she applied those methods on the sample in this case and the result she obtained, the State interrupted her testimony and asked about recognition of GCMS testing in the scientific community. The witness testified that GCMS was well-respected in the scientific community and confirmed that she had recorded the results of her testing in the lab report. The lab report was then admitted into evidence without objection, and the witness testified without objection that the substance was methamphetamine, Schedule II. The Court of Appeals held that although the witness was prepared to explain how she conducted GCMS testing in this case, she never did so. Further, the lab report stated only that the material that was examined was found to contain methamphetamine. The Court of Appeals found that this evidence failed to satisfy North Carolina Rule of Evidence 702(a)(3), which requires that the witness demonstrate that she applied the principles and methods reliably to the facts of the case. The Court ruled, however, that the defendant failed to establish plain error because the witness testified that she conducted the GCMS test, obtained positive results, and produced a lab report recording the results. (2) The trial judge revoked the defendant’s probation, imposed for other charges before the offenses in this case, based on violation of the condition that the defendant commit no criminal offense. The defendant argued and the State conceded that the trial judge erred by activating his suspended sentence without making a finding that good cause existed to revoke his probation after the period of probation expired. The defendant argued further that the probation revocation should be vacated, without remand, because the record was devoid of any evidence to show good cause to revoke after the expiration of the defendant’s probation. The Court of Appeals agreed. A violation report was filed May 17, 2017, and a probation hearing was scheduled for June 13, 2017, but a hearing did not take place until March 2019, fourteen months after the defendant’s probation expired. The Court found nothing in the record to show why the probation hearing was not held in June 2017 or at least before expiration of his probation in January 2018. The Court noted that a criminal conviction is not required for the trial judge to revoke probation for a defendant’s commission of a criminal act in violation of probation. A concurring judge would have remanded for further proceedings on whether the State made reasonable efforts to conduct a probation hearing before expiration of the defendant’s probation.
Appeal of ruling rejecting facial constitutional challenge to red-light traffic camera law dismissed as interlocutory for lack of judgment as to the State of North Carolina
Vaitovas v. City of Greenville, ___ N.C. App. ___ (May 19, 2020)
The plaintiff brought a facial constitutional challenge to a state law concerning automated red-light traffic cameras in the City of Greenville. She alleged the law violated the North Carolina Constitution prohibiting local laws relating to health and sued the City of Greenville, Pitt County Board of Education, and State of North Carolina through official capacity claims against Phil Berger, President Pro Tempore of the North Carolina Senate, and Tim Moore, Speaker of the North Carolina House of Representatives. The case was transferred to a three-judge panel of superior court judges appointed by the Chief Justice because the complaint is a facial constitutional challenge to a state law. The panel heard cross-motions for summary judgment and entered summary judgment in favor of the City of Greenville and Pitt County Board of Education. The plaintiff appealed. The Court of Appeals found that the record on appeal contained no indication that the three-judge panel ruled on an earlier motion to dismiss the claim against the State of North Carolina. The Court dismissed the appeal for lack of appellate jurisdiction because the challenged order entered judgment as to some, but not all, parties, and the appeal is interlocutory. The Court concluded: “Before this Court hears the matter and addresses the constitutionality of that law on the merits, the appeal should include a judgment entered as to the State, so that the State, if it chooses, can appear and advocate for its position on that constitutional question.”