Once upon a time in the North Carolina courts, a prayer for judgment continued (PJC) could have a positive impact on a person’s future. Essentially, the prosecution would pray—that is, move—for entry of judgment, and the judge would continue the prayer and withhold judgment rather than granting the prayer and entering judgment. See State v. Griffin, 246 N.C. 680 (1957) (discussing procedure). Older cases recognized that a judge’s exercise of his or her authority to defer judgment in the interest of justice did not constitute a conviction. A PJC was thus treated like a prosecutor’s exercise of discretion in deferring prosecution. The deferral not only avoided imposition of sentence in the criminal case; it also meant that the matter did not count as a conviction in later, collateral proceedings. See Barbour v. Scheidt, 246 N.C. 169 (1957) (discussing treatment of PJCs). The Court of Appeals’ February 18, 2020 decision in Mace v. North Carolina Dept. of Insurance provides a reminder that times have changed and a PJC usually provides no protection from the collateral consequences of a conviction. Continue reading
Neither snow nor rain nor heat nor gloom of night stays the School of Government from swift completion of their case summaries. This post summarizes opinions issued by the North Carolina Court of Appeals on February 18, 2020. Everyone stay safe during this wintry weather. Continue reading →
I want to kick off 2020 by welcoming Tim Heinle to the School of Government. It is his first week on the job as our new Civil Defender Educator. Here he is in his new office at the School. You can reach him at 919.962.9594 or firstname.lastname@example.org. Tim will assist defenders in the diverse and challenging practice areas that make up civil indigent defense in North Carolina, including abuse, neglect, and dependency cases, guardianship, and child support contempt proceedings. Continue reading →
This post summarizes opinions issued by the North Carolina Court of Appeals on December 3, 2019.
Appeal of district court’s denial of defendant’s motion to enter judgment on PJC was not properly before Court of Appeals
State v. Doss, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
In 1999, the defendant was found guilty of assault on a female, and the trial judge entered a prayer for judgment continued (PJC) with a condition that the defendant pay costs of court. In 2017, the defendant was denied a concealed carry permit in West Virginia on the ground that his 1999 case resulted in a conviction for domestic violence and that he misstated in his permit application that he had never been convicted of an act of violence or act of domestic violence. In 2018, the defendant filed a motion in North Carolina to enter judgment in the 1999 case, which he then would be able to appeal to superior court for a trial de novo. The district court denied the motion, and the defendant appealed to the Court of Appeals. The Court found that the defendant did not have a right to appeal and refused to treat the defendant’s brief as a petition for a writ of certiorari. The Court therefore dismissed the defendant’s appeal. In addition to its holding, the Court made several other observations. (1) The District Attorney’s office that handled the defendant’s 1999 assault on a female case advised West Virginia that the case involved domestic violence even though the remaining records in ACIS indicated that the case did not involve domestic violence. (2) The Court recognized that it could be argued that the defendant’s representation on his permit application was not a misrepresentation about whether he had a conviction because the question is ambiguous and he could have believed in good faith that a PJC was not a conviction. (3) The Court observed that although a PJC with a condition that the defendant pay costs is not a condition that converts a PJC into a final judgment, a trial judge may not impose that condition without the defendant’s consent. When a defendant consents to a PJC, the defendant waives any right to appeal. (4) In support of its refusal to treat the defendant’s brief as a petition for a writ of certiorari, the Court stated that it would be unfair to the State to allow the defendant to renege on a twenty-year-old deal for a PJC with costs, ask the trial court to enter judgment, and appeal the judgment to superior court, which would most certainly result in dismissal of the charges because the State no longer has the evidence to proceed. (5) The court observed that G.S. 15A-1416(b)(1) gives the State the right to move for appropriate relief to enter a final judgment on a PJC, presumably when a defendant has not satisfied the conditions of a PJC, but the defendant does not have the same statutory right. (6) The court noted that the defendant can petition the superior court for a writ of certiorari under Rule 19 of the North Carolina Rules of Superior and District Court.
Criminal contempt upheld for recording court proceedings in violation of courtroom policy and warnings not to do so; the judge was not required to recuse himself in hearing the contempt proceeding and had the authority to sentence the defendant to probation
In re Eldridge, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The trial judge in this case issued a show cause order for defendant to appear and show cause why he should not be held in criminal contempt for recording the proceedings before the trial judge and posting them on Facebook, contrary to courtroom policy and warnings. (1) The Court of Appeals affirmed the trial judge’s denial of the defendant’s motion to recuse, finding no evidence to suggest that the trial judge could not preside over the contempt hearing in an objective, impartial manner. (2) The evidence supported the trial judge’s finding of criminal contempt; it showed that the defendant understood the courtroom policy and warnings not to record inside the courtroom and willfully disregarded them. (3) The Court of Appeals held that the trial judge was authorized to impose a suspended sentence of imprisonment with conditions of probation, including the condition that the defendant write an essay about respect for the courtroom and publish it on his social media and internet accounts. The dissent found that although this condition had a reasonable relationship to the defendant’s criminal contempt and was permissible, it was impermissible—because not reasonably related to the contempt and potentially a violation of the First Amendment—to require the defendant to monitor comments by third parties on his accounts and delete negative ones.
(1) Judge had the authority to call a weekend recess and extend the session for a felony trial that was not completed by the last Friday of the session; (2) The defendant failed to show prejudice from the trial judge’s procedure of communicating with the jury by written message, conveyed by a bailiff to the jury, rather than in open court
State v. Evans, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was tried for armed robbery, conspiracy to commit armed robbery, and possession of a firearm by a person previously convicted of a felony. The trial was not over by Friday, and the trial judge called a weekend recess. The trial resumed on the following Monday, the jury convicted the defendant of all charges, and the trial judge sentenced the defendant. (1) The defendant argued that the trial judge failed to extend the session of court in which the trial began, violating the rule against judgments entered out of session. The Court of Appeals rejected this argument in reliance on G.S. 15-167, which allows a trial judge to extend a session if a felony trial is in progress on the last Friday of the session. The Court held that such an extension is valid when the trial judge announces a weekend recess without objection by the parties, as here. Although the trial judge was asked and declined to make written findings to support the extension, her decision not to make findings did not constitute a refusal to extend the session. (2) In response to written questions asked by the jury during deliberations, the trial judge sought clarification by writing out a short message and having the bailiff go to the jury room and read the message. The judge directed the bailiff not to communicate any other information, respond to questions by the jury, or remain for any discussion by the jury. The defendant argued that this procedure violated the requirements of G.S. 15A-1234 and G.S. 15A-1236, which require that responses to jury questions and additional instructions be in open court and which prohibit speaking to the jury. The Court held that assuming the trial judge committed statutory error, the defendant failed to show prejudice. The Court found that the trial judge’s message was clear and unambiguous, did not relate to guilt or innocence, and did not amount to an instruction to the jury. Absent evidence to the contrary, the Court stated that it would presume that both the bailiff and jurors understood and followed the judge’s directive to the bailiff to deliver the message and not to be present for or engage in any colloquy with the jury.
(1) Trial judge had jurisdiction to enter written order granting motion to suppress after State gave notice of appeal at the conclusion of the hearing on the motion; (2) Trial judge was free to give no weight to officer’s testimony in his findings of fact, which were supported by other evidence; (3) State failed to show that the defendant was driving and that probable cause existed to arrest him for impaired driving
State v. Fields, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was charged with impaired driving, was convicted in district court, appealed to superior court, and prevailed on a motion to suppress at a pretrial hearing in superior court. The State appealed. (1) The Court of Appeals rejected the State’s argument that the superior court judge lacked jurisdiction to enter a written order after the State gave oral notice of appeal at the conclusion of the hearing at which the judge granted the motion to suppress. At the hearing, the trial judge stated that the State could not establish a nexus between the person the officer saw driving and the defendant who later walked up to the officer. The Court found that the judge’s written order was a chronicle of the findings and conclusions he decided at the motion hearing and was not a new order affecting the merits of the case. (2) The Court rejected the State’s argument that certain findings of fact were not supported by the evidence. In regard to the green pickup truck that the defendant was allegedly driving, the trial judge found that the arresting officer testified that he did not see the truck park or anyone get in or out of the truck. The State asserted that the officer testified that he observed a video at the mini-mart where the truck was parked showing the defendant getting out of the truck. The Court found that the officer testified that the video was lost because he left the flash drive containing the video in his patrol car when he took the car to a mechanic. The Court held that the trial judge determines the credibility of witnesses, the weight to be given to testimony, and reasonable inferences. “The trial court was free to give no weight to [the officer’s] testimony regarding viewing the Mini-mart video.” (3) The Court rejected the State’s argument that probable cause existed to arrest the defendant for impaired driving. The Court found that the trial judge’s findings supported his conclusion that the State failed to show that the defendant was driving and, although the truck was registered to the defendant, failed to establish a connection between the driver of the truck and the defendant.
Trial judge erred in finding that the defendant forfeited his right to counsel and requiring the defendant to represent himself at trial
State v. Harvin, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was convicted of first-degree murder, attempted first-degree murder, attempted robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. The Court of Appeals found that the trial judge erred in finding that the defendant forfeited his right to counsel and in requiring the defendant to represent himself at trial. In a lengthy colloquy at trial, the defendant requested the judge to activate or replace his standby counsel, who previously had been appointed as standby counsel when the defendant expressed a desire to represent himself. When the trial judge did not grant that request, the defendant stated that he did not want to represent himself and wanted to be represented by counsel. The Court found that the request was clear and unequivocal. The Court further found that when the trial judge previously appointed standby counsel, the judge did not make any note of dilatory tactics by the defendant or inform him that requesting that standby counsel be activated or replaced could result in forfeiture of his right to counsel; rather, the judge advised him that standby counsel could be activated as counsel. Although the defendant had five previous attorneys, only two withdrew for reasons related to the defendant and then not because of a refusal by the defendant to participate in his defense but instead due to differences related to preparation of the defendant’s defense. The Court concluded that the record failed to show that the defendant intentionally delayed or obstructed the process. A dissenting judge would have found that the trial judge’s forfeiture ruling was not erroneous.
(1) Conspiracy to commit attempted first-degree murder is a cognizable offense in North Carolina; (2) The evidence was sufficient to go to the jury on the attempt and conspiracy charges
State v. Lyons, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was convicted of attempted first-degree murder and conspiracy to commit attempted first-degree murder. (1) The defendant argued that the latter charge is invalid because it alleges a non-existent crime. The defendant argued that an attempt requires that the act fail; therefore, it is an illogical impossibility and a legal absurdity to criminalize an agreement to commit a failed act, which in this case would be an agreement not to commit murder. The Court of Appeals rejected the argument, holding that under North Carolina law “failure” is not an element of attempted first-degree murder and that conspiracy to commit that offense is a cognizable charge. (2) The defendant argued that the evidence was insufficient to support attempted first-degree murder or conspiracy because the evidence showed only that he fired a pellet gun to try scare away the officer who was in pursuit. The Court found that the evidence was sufficient for the jury to find that the defendant fired a gun at the officer, not merely a pellet gun, with the intent to kill.
Defendant received ineffective assistance of counsel where counsel advised him that deportation “may” result from the plea and not that the defendant was facing presumptive deportation; case remanded for a determination of whether the defendant was prejudiced.
State v. Marzouq, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant, a lawful permanent resident, was charged with various drug offenses and pled guilty under Alford to the charges of possession of heroin and maintaining a vehicle or dwelling, for which the trial judge imposed a two-year suspended sentence. About one year into his sentence, the defendant was seized by Immigration and Customs Enforcement (ICE) and placed into detention and removal proceedings. He filed a motion for appropriate relief (MAR), arguing that had he known the plea would affect his immigration status and result in deportation, he would not have taken it. The trial judge denied the MAR. The Court of Appeals granted certiorari and ordered the trial judge to review whether the defendant’s Alford plea was induced by misadvice of counsel and whether the misadvice resulted in prejudice. The trial judge again denied the MAR. He found that the defendant had been advised that he might be deported if he pled guilty and that he should speak to an immigration attorney. The Court of Appeals granted certiorari a second time. Relying on Padilla v. Kentucky, 559 U.S. 356 (2010), and State v. Nkiam, 243 N.C. App. 777 (2015), the Court recognized that it is not sufficient for an attorney to advise a client that there is a risk of deportation where, as here, deportation is presumptively mandatory. The Court stated: “Waffling language suggesting a mere possibility of deportation does not adequately inform the client of the risk before him or her, and does not permit a defendant to make a reasoned and informed decision.” The Court remanded the case to the trial judge to determine prejudice—that is, whether there is a reasonable probability that but for counsel’s ineffective assistance, the result of the proceeding would have been different. The Court specifically directed the trial court to consider the impact of other charges against the defendant. The Court recognized that a defendant cannot show a different outcome, as required by the prejudice standard, if deportation would still result from other charges. The Court found the record insufficient on this issue. The defendant had a prior drug paraphernalia conviction, but that offense does not render him presumptively deportable, and other pending charges, but the record did not contain findings as to whether any other convictions made the defendant deportable.
New trial where State Crime Lab forensic scientist was required to testify about DNA sample despite her insistence that the testimony was not scientifically valid
State v. Phillips, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was convicted of statutory rape of C.C., a 13-year-old child. This was the second trial of the defendant; at the first trial involving the events of that evening, the jury acquitted him on some charges and there was a mistrial on the statutory rape charge. At the second trial, the State called a forensic biologist, Dr. Wilson, from the North Carolina State Crime Lab and qualified her as an expert in DNA analysis. She testified that she tested DNA samples from swabs taken from C.C. and compared them to the DNA profiles from C.C., the defendant, and another person, Eckard, who was present that evening. Dr. Wilson testified she had found a mixture of contributors: two major contributors and one minor contributor. She presumed that one of the major contributors was C.C. and determined that the defendant’s DNA profile was consistent with the other major contributor. She testified that the minor contributor’s profile was “inconclusive due to complexity and/or insufficient quality of recovered DNA.” The prosecutor asked whether Dr. Wilson was able to see anything about the minor contributor’s profile. Dr. Wilson testified that when a profile is inconclusive as in this case, it is not permissible as a matter of State Crime Lab policy to do any comparison because such a comparison is not scientifically accurate. At a hearing outside the presence of the jury, the prosecutor said his purpose in asking the question was to counter the defendant’s potential argument that Eckard, with whom the defendant had sex that evening, may have been the source of the DNA and may have transferred the defendant’s DNA to C.C. The trial judge ruled that the prosecutor could direct Dr. Wilson to look at the alleles shown in the records and testify about them. Before the jury, she then testified that three of the alleles in the minor contributor’s profile were the same as Eckard’s profile but the other three alleles were different. The Court of Appeals found that this testimony violated Rule 702 of the North Carolina Rules of Evidence. The Court found, first, that the testimony was expert opinion and, contrary to the State’s argument, was not merely a statement of what Dr. Wilson could “see.” The Court found, second, that the expert testimony violated Rule 702. The testimony was not based on sufficient facts or data because the recovered DNA for the minor contributor was inconclusive, and it was not the product of reliable principles and methods because Dr. Wilson said that the comparison was scientifically inaccurate. The Court of Appeals found the admission of this testimony was prejudicial and ordered a new trial. A dissenting judge agreed that the testimony was improper because it was irrelevant under Evidence Rule 402 and unduly prejudicial under Evidence Rule 403. However, the dissent would have reviewed the case under the plain error standard for prejudice, which the dissent did not find, because the defendant based his objection on Evidence Rule 702 only and, although he objected initially before the jury and during the voir dire hearing before the trial judge, failed to renew his objection when Dr. Wilson resumed her testimony.
New trial based on plain error where DSS investigator testified that DSS substantiated sexual abuse by the defendant against the complainant
State v. Warden, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was convicted of sexual offense with a child by an adult, child abuse by a sexual act, and taking indecent liberties with a child. At trial, a DSS Child Protective Services Investigator testified, without objection, that DSS had substantiated the allegations of sexual abuse against the defendant. The investigator explained that when DSS believes the allegations are true, it substantiates the case and that in this case “[w]e substantiated sexual abuse naming [the defendant] as the perpetrator.” The defendant testified and denied having committed any sexual act against the complainant. Citing previous cases addressing substantiation testimony, the Court found that the testimony improperly bolstered and vouched for the victim’s credibility and that admission of the testimony was plain error in this case. The Court stated that where, as argued by the State in its closing argument, the credibility of the complainant is the central if not the only issue to be decided by the jury, the error is prejudicial and requires a new trial. A dissenting judge agreed that it was error to allow the testimony but would have found that the error did not meet the prejudice standard for plain error review.
Now that the North Carolina General Assembly has adjourned for the remainder of the year and most criminal law legislation has taken effect (which is often December 1 each year), it’s time to take stock of what passed this session. You can read summaries of all of the criminal law and related legislation here. Each summary provides a brief description of the act in question along with a link to the text of the act and, where available, links to blogs my colleagues and I wrote. As usual, the legislation spans a range of topics. Continue reading →
Two years ago I wrote a blog post about North Carolina’s unusual stance on rape and consent. In its 1979 decision in State v. Way, 297 N.C. 293 (1979), the North Carolina Supreme Court appeared to take the position that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. In my lengthy blog, I suggested ways to distinguish or limit the antiquated approach in Way. This post need not be nearly as long. Last week, the General Assembly enacted Senate Bill 199, which revised the elements of rape and other sexual offenses to recognize the right to revoke consent, whether or not sexual intercourse or another sexual act has begun. If signed by the Governor (the Governor has signed the bill), the law will apply to offenses committed on or after December 1, 2019. Continue reading →
In legislation that may have escaped the notice of some criminal law practitioners, the North Carolina General Assembly enacted significant reforms this year to the state’s occupational licensing laws. The reforms, which apply to applications for licensure submitted on or after October 1, 2019, significantly lessen legal barriers to obtaining an occupational license for people with a criminal conviction. The legislation, S.L. 2019-91 (H 770), received bipartisan support, passing both chambers unanimously. Continue reading →
The common law right to use defensive force in North Carolina rests on three fundamental principles: necessity, proportionality, and fault. Ordinarily, when a person uses defensive force, the force must be reasonably necessary to prevent harm; the force must be proportional to the threatened harm; and the person using defensive force must not be at fault in the conflict. See John Rubin, The Law of Self-Defense § 2.1(b), at 14–15 (UNC School of Government, 1996). North Carolina’s new statutes on defensive force continue to rely on these principles. As under the common law, the statutes do not always refer to these principles in describing the circumstances in which a person may use defensive force. But, as this post is intended to show, the basic principles of necessity, proportionality, and fault remain central to the statutory rights. Continue reading →
In State v. Harvey, ___ N.C. ___, ___ S.E.2d ___ (June 14, 2019), a five to one majority of the North Carolina Supreme Court affirmed the unpublished decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 500 (2018), holding that the trial judge properly refused to instruct the jury on perfect and imperfect self-defense in a homicide case. In so ruling, the majority in the Supreme Court and Court of Appeals relied on the “belief” doctrine created by our courts over the last 25 years. The opinions, four in all, show that our courts are continuing to wrestle with the implications of that doctrine. Continue reading →