This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on May 7, 2025. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Prosecutor’s statements during closing argument were not improper and did not comment on defendant’s choice not to testify.
State v. Brown, COA24-500, ___ N.C. App. ___ (May 7, 2025). In this New Hanover County case, defendant appealed her convictions for felony breaking and entering, making a harassing phone call, and communicating threats, arguing several errors related to the State’s closing argument. The Court of Appeals disagreed, finding no error.
In 2021, defendant and the victim were both romantically involved with the same man, leading to several incidents where defendant harassed the victim. In April of 2022, defendant entered the victim’s apartment while she was away, taking a laptop, TVs, and a handgun, and trashing the apartment. Afterwards, defendant sent the victim threatening texts, and when the victim called her number, defendant harassed her, and even called back after the victim hung up to communicate threats to her. At trial, defendant objected to two statements by the prosecutor during closing argument, but the trial court overruled the objections.
The Court of Appeals first considered the two statements defense counsel objected to during closing, that defendant would likely still threaten the victim today, and an expression of opinion regarding the evidence. The court found no abuse of discretion allowing both statements, as the State presented overwhelming evidence and the remarks could not have prejudiced defendant.
Defendant next argued error in failing to intervene ex mero motu when the State made “flagrantly impermissible” remarks during the closing. Slip Op. at 10. Because defendant did not object, the review was for gross impropriety, a high bar that defendant’s arguments could not meet.
Finally, defendant argued a violation of her constitutional rights as she asserted the prosecution commented on her failure to testify. The court again disagreed, explaining that “[t]he State did not comment on defendant’s failure to testify but did comment on defendant’s failure to produce [the male romantic partner] as a witness.” Id. at 14 (cleaned up). This did not represent an improper comment on defendant’s right against self-incrimination, and the court found no error.
Statute criminalizing possession of a firearm by a felon not facially unconstitutional and not unconstitutional as applied to defendant.
State v. Ducker, COA24-373, ___ N.C. App. ___ (May 7, 2025). In this Buncombe County case, defendant appealed his conviction for possession of a firearm by a felon, arguing G.S. 14-415.1 was unconstitutional under the Second Amendment and Article I, § 30 of the North Carolina Constitution. The Court of Appeals found no error and affirmed the judgment.
Defendant was arrested in 2022 after the Buncombe County Sheriff’s Department received a report that he was openly carrying a handgun despite a felony conviction. At trial in 2023, defendant raised constitutional arguments, but the trial court denied his motion.
The Court of Appeals considered defendant’s issues in three parts, whether G.S. 14-415.1 was (1) facially unconstitutional under the Second Amendment, (2) unconstitutional as applied to defendant under the Second Amendment, or (3) unconstitutional as applied to defendant under the North Carolina Constitution. In (1), the court noted it had previously upheld G.S. 14-415.1 as constitutional under the analysis required by N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), in the recent decision State v. Nanes, ___ N.C. App. ___, 912 S.E.2d 202 (2025). This previous decision, along with consistent federal court decisions, supported the court’s holding that G.S. 14-415.1 “is facially constitutional under both the United States and the North Carolina Constitutions.” Slip Op. at 8.
In (2), the court explained Nanes did not control as the defendant in that case was convicted of a different predicate felony. However, the court rejected the idea that it would be required to conduct a felony-by-felony analysis, pointing to the decision in State v. Fernandez, 256 N.C. App. 539 (2017), that “as-applied challenges to Section 14-415.1 [are] universally unavailing because convicted felons fall outside of the protections of the Second Amendment.” Slip Op. at 9-10. The court noted that the Fourth Circuit had revisited this issue post-Bruen in United States v. Hunt, 123 F.4th 697 (2024), and reached the same conclusion. As a result, the court concluded “[b]ecause we agree with the Fourth Circuit . . . we are bound by our decision in Fernandez and continue to hold Section 14-415.1 regulates conduct outside of the Second Amendment’s protections.” Slip Op. at 12.
Finally, in (3), the court explained that under Britt v. State, 363 N.C. 546 (2009), a five-factor analysis is required to “determine if a convicted felon can be constitutionally disarmed under [G.S.] 14-415.1.” Slip Op. at 13. After walking through the Britt factors in defendant’s case, the court concluded G.S. 14-415.1 was constitutional when applied to defendant, as “[i]t is not unreasonable to disarm an individual who was convicted of a felony, subsequently violated a domestic violence protective order, and chose to continue to carry a firearm in violation of the law.” Id. at 17-18.
Disagreement between defense counsel and defendant over strategy did not represent absolute impasse.
State v. Henderson, COA24-223, ___ N.C. App. ___ (May 7, 2025). In this Mecklenburg County case, defendant appealed his convictions for carrying a concealed gun, possession of a firearm by a felon, and having attained habitual felon status, arguing (1) error in failing to instruct defense counsel when an absolute impasse occurred; (2) failing to declare a mistrial ex mero motu; and (3) ineffective assistance of counsel. The Court of Appeals found no error in (1)-(2), and dismissed without prejudice the ineffective assistance claim.
In October of 2021, defendant was pulled over by Charlotte-Mecklenburg Police after officers determined defendant had an outstanding warrant for a parole violation. During the traffic stop, officers frisked defendant and found a .38 revolver in his pocket. A passenger was in the vehicle, and one officer’s body-worn camera captured a conversation with the passenger. This video later became the subject of an agreement between defense counsel and the State to mute the video due to the hearsay discussion between the officer and the passenger. When discussing this agreement, defense counsel informed the trial court that defendant disagreed with the strategy and wanted all of the video to be heard. At one point defendant expressed the desire to speak to the trial court, and the trial court cautioned defendant that he should first discuss his issues with defense counsel. Excerpts of the transcript for this discussion appear on pages 6-9 of the slip opinion.
Taking up (1), the Court of Appeals explained that defense counsel wanted the video muted because it referenced defendant’s parole violation, while defendant wanted the video unmuted because the passenger said “no” when asked if she knew defendant “had that gun on him the whole time.” Slip Op. at 13. The court did not see an absolute impasse based on the record, noting that defense counsel alerted the trial court and defendant had an opportunity to discuss issues with counsel after the colloquy with the trial court. The court concluded “[t]his record shows an initial disagreement between Defendant and his defense counsel, but not an ‘absolute impasse.’” Id. at 15.
Moving to (2), defendant argued it was error not to declare a mistrial after the State introduced inadmissible evidence that defendant had suspected marijuana and a stack of temporary license plates. The court dispensed with this argument by noting defendant did not object at trial, and did not specifically content plain error, meaning he abandoned the argument.
For (3), the court concluded it could not determine the ineffective assistance of counsel claim “based on the cold record” and dismissed without prejudice to permit a motion for appropriate relief in the trial court. Id. at 18.
Defense counsel’s Harbison error justified new trial.
State v. Meadows, COA24-149, ___ N.C. App. ___ (May 7, 2025). In this Duplin County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing ineffective assistance of counsel by conceding his guilt without permission. The Court of Appeals majority agreed, vacating defendant’s convictions and remanding for a new trial.
In July of 2016, officers responded to the report of a break-in and gunshot injuries. Defendant was indicted for the break-in and shooting of the victim and came to trial in March 2023. Before and during the trial, defendant attempted to get new counsel three times, but each attempt was denied by the trial court. During trial, testimony from defendant’s former girlfriend focused on his gang connections and his motivations for the killing, including following orders from gang leaders so that he could move up in the organization. At the charge conference, the trial court denied the State’s request for an instruction on acting in concert, but the prosecutor made arguments related to acting in concert anyway. When defense counsel gave closing arguments, he referenced the structure of the gang and conceded that defendant was present at the scene of the crime and that he ran away afterwards, leaving his shoes outside the house. Defendant was subsequently convicted.
The Court of Appeals agreed with defendant’s argument that “his counsel impliedly admitted defendant’s guilt when he stated during closing arguments that defendant went to the home of the victim with [two gang members] on the night of the incident.” Slip Op. at 10. The court explained this represented a violation of defendant’s rights under the Sixth Amendment as articulated in State v. Harbison, 315 N.C. 175 (1985). Here, there was no on-the-record Harbison inquiry except for defendant’s consent to the discussion of a prior conviction. There was “no evidence in the record to suggest that at any other point before or during trial defendant’s counsel sought or obtained informed consent from defendant to discuss his presence at the crime scene or his involvement with the gang the evening of the incident.” Slip Op. at 12. The court also highlighted defense counsel’s statements that represented “an implied admission that although defendant was following orders, he was also a participant in the crime in question.” Id. at 15-16. Defense counsel’s Harbison error of impliedly admitting defendant’s guilt justified a new trial.
Judge Stading dissented, arguing defense counsel did not impliedly admit defendant’s guilt, and that even if he did admit guilt, the lack of record about defendant’s voluntary consent justified dismissing the appeal and allowing defendant to file a motion for appropriate relief.