This post summarizes opinions issued by the North Carolina Court of Appeals on December 17, 2019.
These summaries will be added to Smith’s Criminal Case Compendium, a free, searchable database of case annotations from 2008 to today.
Trial court erred by not conducting another competency hearing before defendant’s trial began, where the last competency hearing was held six months before trial and there were bona fide doubts about defendant’s competency at the time of trial.
After selling one pill of buprenorphine to a confidential informant working with the sheriff’s office on October 22, 2015, the defendant was charged with (i) sale, (ii) delivery, and (iii) possession with intent to sell and deliver a Schedule IV substance, as well as (iv) keeping or maintaining a vehicle for the purpose of selling buprenorphine, and (v) being an habitual felon. While awaiting trial, the defendant was involuntarily committed on three occasions, and twice found not capable of proceeding. The defendant was found to have intellectual disabilities that were exacerbated by severe abuse and neglect during his childhood, along with an opiate abuse and bipolar disorder, and he was unable to live independently or maintain a job. Although a prior examination had concluded that the defendant was not likely to regain his capacity to proceed, his third evaluation determined that he had regained capacity. After conducting a hearing on August 23, 2017, the trial court concluded that the defendant was competent to stand trial. Six months later, which was eight months after his last competency evaluation, defendant’s trial commenced. Defendant was convicted of the three sale, delivery, and possession offenses, and he pleaded guilty to having attained habitual felon status.
On appeal, the defendant argued that the trial court erred by not holding another competency hearing before starting his trial, and the appellate court agreed. A trial judge’s determination of competency is reviewed for abuse of discretion, and it is conclusive on appeal if it is supported by competent evidence. However, a defendant’s competency can change over time, and in this case there was a bona fide doubt as to defendant’s competency at the time of trial. It was therefore error for the trial court not to conduct another hearing closer to the date of trial. In addition to the defendant’s history of mental illness and prior commitments noted above, the appellate court also based its decision on defense counsel’s reluctance to agree that the defendant was competent, the defendant’s pattern of noncompliance with treatment recommendations, and his unclear answers during the plea colloquy on his habitual felon status. Taken together, these factors raised “a legitimate question as to whether the psychiatric evaluation accurately reflected Defendant’s capacity eight months later.” The case was remanded for the trial court to conduct a retrospective competency hearing, if possible. If a retrospective hearing is no longer possible, the conviction is reversed and a new trial may be held when defendant is found competent.
The case was also remanded for correction of two clerical errors. First, the trial court’s written order incorrectly stated that it was arresting judgment on the charge of selling a controlled substance, when in fact judgment was arrested on the charge of delivery of a controlled substance. Second, the judgment incorrectly listed buprenorphine as a Schedule IV controlled substance, but it was actually a Schedule III drug at the time of the offense.
Trial court erred by not instructing jury on the defense of accident when there was substantial evidence to support the defense presented at trial.
A code enforcement officer (“Wayman”), accompanied by police officers, was at a property owned by the defendant to execute an administrative warrant for the removal of nuisance building materials. While they were standing on the street in front of the property, the defendant drove up in his car and the passenger side mirror struck Wayman in the hip. The police officers shouted at the defendant to stop his car and get out. The defendant stopped his car, but as Wayman walked by in front of the vehicle, the car moved forward again and stuck Wayman in the knee. The officers repeatedly demanded that the defendant exit his car, and after he complied the defendant stated that Wayman “wanted to be hit.” The defendant was arrested and charged with assault with a deadly weapon. After being convicted in district court, the defendant appealed for trial de novo in superior court, and the jury found him guilty of the lesser charge of simple assault.
On appeal, the defendant argued that the trail court erred by denying his motion to dismiss for insufficient evidence regarding the defendants’ intent. The appellate court disagreed, and found there was circumstantial evidence of intent based on the witness testimony and officers’ body-cam video. The defendant swerved towards Wayman with his car, and when he exited the car he was visibly upset with Wayman, which would allow a reasonable person to believe that the defendant intended to hit Wayman or at least to put him in fear of immediate bodily harm. But the trial court erred by not instructing the jury on the defense of accident. The defendant testified that it was a chaotic scene, he was only trying to “squeeze by” Wayman and park his car, and he did not hit anyone on purpose. That constituted sufficient evidence from which the jury could have concluded the defendant’s action was unintentional, lawful, and not done with reckless disregard for the safety of others, so it was reversible error to deny the defendant’s request for an instruction on the defense of accident.
Crack cocaine rock that was “smashed” into powder prior to trial was admissible in evidence. Being smashed was not a material change to the evidence that precluded its authentication, and the state established a chain of custody for the evidence.
Using a confidential informant to conduct a controlled buy, law enforcement officers purchased a small crack cocaine rock from the defendant. The rock field-tested positive for the presence of cocaine, and it was subsequently tested at the SBI and confirmed to be cocaine base. The defendant was indicted for sale and delivery of cocaine and possession with intent to sell and deliver cocaine, as well as having attained habitual felon status, and the case went to trial approximately two years later. At trial, the state offered the “rock” purchased from the defendant as State’s Exhibit #6, but the item inside the evidence bag was now a powder. The narcotics detective in the case testified that the substance had been “smashed” but it was otherwise “substantially the same” item he originally recovered from the informant and submitted to the SBI. The SBI analyst likewise testified that the substance in Exhibit #6 was a “rock” at the time she tested it and determined it was crack cocaine, and her lab results and report were admitted as Exhibit #7.
Following his conviction, the defendant argued on appeal that the trial court erred by admitting Exhibit #6 because it was not readily identifiable and had been altered, and therefore it could not be authenticated by the state’s witnesses. The appellate court disagreed for several reasons. First, citing case precedent, physical changes to drugs such as smashing or pressing them together “do not amount to material changes raising admissibility concerns.” Second, even if this were a material change, the state presented an adequate chain of custody to show that the substance contained in Exhibit #6 was the same one purchased from the defendant and ultimately tested by the SBI, and the witnesses’ testimony established that whatever caused the rock to be “smashed” must have occurred sometime after it was tested. Third, the defendant failed to demonstrate that any error in admitting Exhibit #6 would be prejudicial, since there was no objection to the introduction of Exhibit #7 or the analyst’s testimony about the testing she performed on that substance, meaning that the same information was before the jury through other evidence. As a result, there was no reasonable possibility that a different verdict would have been reached even if Exhibit #6 had been excluded.
Motion to dismiss for insufficient evidence was properly denied where the state presented sufficient evidence to support defendant’s voluntary manslaughter conviction based on the use of excessive force in self-defense, and the trial court’s jury instruction on the substantive offenses and affirmative defenses, taken as a whole, did not constitute plain error.
On March 13, 2016, the defendant was out at a bar in Greensboro with his nephews and several other people to celebrate a friend’s birthday. As they were leaving the bar around 2:00 a.m., another group of men approached and one of them asked a woman in the defendant’s group if she would perform sexual acts for money. The defendant’s group rebuked the other man, and the defendant’s group left the parking lot in two vehicles. When they were stopped at a red light, a vehicle occupied by the second group of men pulled up next to the vehicle in which the defendant was riding. One of the men in the second group smashed a bottle against the defendant’s vehicle, and the second group pursued the defendant’s group at high speed as they drove away. The vehicles all pulled into a nearby parking lot, where two off-duty police officers were parked in a patrol vehicle. As the occupants exited their vehicles, a large fight broke out involving different clusters of people, and one person (“Jones”) was killed. Additional officers responded to the scene and attempted to break up the multiple altercations. None of the officers saw a weapon being used, but Jones and several other individuals had suffered deep lacerations, and their statements to the officers on scene indicated the defendant was the one who cut them with a knife. As the fights were being broken up, an officer saw the defendant walking back towards a vehicle, ignoring commands to stop, and making a furtive movement to throw something into the car. Officers checked the car and found a bloody knife on the driver’s seat. The defendant was searched and also found to have “bath salts” in his pocket. The medical examiner concluded that stab wounds consistent with the knife found in the car caused Jones’ death. Additional evidence indicating that the defendant was the person who mortally wounded Jones included blood found on the defendant’s shoes and clothing, the defendant’s close proximity to the wounded individuals, the defendant’s DNA on the knife, and the defendant’s statements to a private investigator that others were stomping and hitting him so he pulled a knife out of his pocket and “came out swinging.”
The defendant was charged with first-degree murder, possession of 4-chloromethcathinone, and attaining habitual felon status. At the conclusion of a jury trial on the substantive charges, the jury was instructed on first-degree murder, second-degree murder, voluntary manslaughter, and the controlled substance offense. The jury convicted the defendant of voluntary manslaughter and drug possession. On appeal, the defendant argued that the trial court should have granted his motion to dismiss for insufficient evidence based on self-defense (or that he received ineffective assistance of counsel if that argument was deemed not adequately preserved), and that the trial court erred in its jury instruction regarding voluntary manslaughter.
Because the jury only convicted the defendant of manslaughter, rather than first- or second-degree murder, and because the state did not advance the theories that the defendant had either killed in the heat of passion or was the initial aggressor, the appellate court concluded that the only issue it needed to determine was whether the state’s evidence was sufficient to withstand a motion to dismiss a charge of voluntary manslaughter premised on a killing that would be second-degree murder (committed with malice) but for the fact that the defendant had an imperfect claim of self-defense (based on his use of excessive force). To survive such a motion, the state’s evidence would have to show that the defendant: (1) intentionally wounded Jones; (2) proximately causing his death; (3) under a reasonable belief that use of force was necessary to avoid death or great bodily harm; but (4) the force used was greater than necessary to prevent such harm. Viewed in the light most favorable to the state, there was sufficient evidence in this case from which a reasonable juror could find each of those four factors, and the motion to dismiss was properly denied.
The defendant also argued on appeal that the parties had agreed to use pattern jury instruction 206.10, but the trial court’s actual instructions to the jury did not directly follow the pattern instruction language. If true, a challenge to that instruction would be preserved for appellate review even though the defense did not object. But based on its review of the record, the appellate court held that there was not an agreement to use a specific instruction, so its review of the jury instructions was limited to plain error. After reviewing the instructions as a whole, the appellate court found that the trial court had adequately instructed the jury as to each element and lesser-included offense. “Because the jury was informed of the essential elements it would have to find beyond a reasonable doubt in order to convict defendant of voluntary manslaughter, the trial court did not err in its jury instructions.”
Defendant was not seized when he was approached by an officer outside a gas station and asked to leave; defendant’s consent to the search and his subsequent nervous behavior justified a Terry frisk of his clothing for weapons; and counterfeit drugs discovered during that search were admissible under the plain feel doctrine.
A police offer stopped at a gas station for a cup of coffee, and on his way inside he noticed the defendant standing outside the gas station, talking loudly and using abusive language on his cell phone. The clerk inside told the officer she thought the defendant was bothering other customers. The officer called for backup, approached the defendant, and asked him to end his conversation. The defendant complied “after some delay,” but then began shifting from foot to foot and looking from side to side. His nervous behavior made the officer concerned that he might have a weapon, so he asked the defendant if he could pat him down. The defendant hesitated, but then consented. While conducting the pat-down, the officer felt a soft, rubbery wad in the defendant’s pocket that the officer immediately believed to be narcotics packaged in plastic baggies. After completing the pat-down, the officer manipulated the rubbery wad again, ensuring it was what he believed it to be, and then reached into the defendant’s pocket and withdrew the object. The wad was made up of plastic baggie corners containing a white powdery substance that looked like cocaine and a tube of Orajel. The defendant stated that the substance was baking soda, which he mixed with Orajel to fool buyers into thinking it was cocaine. Field and lab testing confirmed the defendant’s statements. The defendant was charged with possession with intent to sell and deliver a counterfeit controlled substance. The trial court denied the defendant’s motion to suppress the fruits of the search on the grounds that he was illegally detained, he did not consent to the search, and the search exceeded the scope of a permissible pat-down. The defendant pled guilty and appealed.
The appellate court affirmed the trial court’s ruling denying the motion. The defendant was not seized by the officers, who initially told him he should “finish his conversation elsewhere.” It was only when the defendant hesitated and began acting nervous that the officer became concerned that the defendant might be armed, and the defendant then consented to be searched for weapons. The counterfeit drugs discovered during that weapons search were admissible under the “plain feel” doctrine. Even before he manipulated the object a second time or removed it from the defendant’s pocket, the officer testified that based on his years of experience in narcotics investigations, it was “immediately apparent” to him that the object would be drugs in plastic packaging. After reviewing several cases on the plain feel doctrine, the court explained that the standard to be applied is analogous to the probable cause standard. In this case, the officer’s training and experience in narcotics investigations, the circumstances surrounding the defendant’s nervous behavior, and the readily apparent nature of the item in the defendant’s pocket established “that [the officer’s] subsequent manipulation of the objects and search of defendant’s pocket for confirmation was therefore supported by probable cause.”
Officers had reasonable suspicion to believe that defendant might be armed and dangerous, which justified a “frisk” of the vehicle that led to discovery of cocaine within a reachable area, even after defendant had been removed from the vehicle.
Two officers on patrol together in a high-crime area after midnight checked the tag on a vehicle and discovered that it was registered to another car, so the officers initiated a traffic stop. The driver stopped fairly quickly and raised his hands, holding them outside the vehicle window. Based on past experience with drug crimes, the officers took notice of that gesture because “sometimes it can mean the person has a gun.” Upon approaching the car and talking to the defendant in the driver’s seat, the officer noticed that the defendant was turning or “blading” his body as if to conceal something to his right. The driver was cooperative and answered “no” when asked if he had any weapons in the car, but he also seemed very nervous. The defendant explained that he had just purchased the car that day, and he provided the officer with his license and a bill of sale from the center console. While checking the defendant’s information back in their patrol car, the officers learned that the defendant had several prior charges and at least two convictions for violent offenses. Believing that the defendant might be armed and dangerous, the officers asked him to step out of the vehicle, where he consented to a frisk of his person. The officers then searched the “lungeable” areas inside the vehicle, over defendant’s objection, and discovered cocaine in the center console. The defendant was indicted for felony possession of cocaine, and filed a motion to suppress the search of his vehicle.
The defendant moved to suppress the evidence found during the search of his car on the grounds that the officers had no authority to search the vehicle and unlawfully extended the traffic stop. The trial court denied the defendant’s motion to suppress, and that ruling was affirmed on appeal. Under the totality of the circumstances, and showing deference to the trial court’s factual findings, there were specific and articulable facts to support the officers’ reasonable suspicion that the defendant might be armed (late at night in a high crime area, and the defendant’s unusual raised hand gesture, nervous demeanor, “blading” his body to hide something, and violent criminal history). In the case of vehicle stops, an officer’s authority to check the defendant for weapons includes a brief and limited search of areas inside the vehicle that would be within the suspect’s reach, even after the person has been removed from the vehicle. “In other words, we review the frisking of a vehicle the same way we would analyze an officer’s frisk of a person.” Because the officers had authority to conduct a frisk search of the defendant and his vehicle, any extension of the original traffic stop was likewise not unlawful.
Even if it was error to instruct the jury on the theory of acting in concert, defendant did not show it was prejudicial where the state presented exceedingly strong evidence of guilt that was not in dispute or subject to serious credibility questions.
Two men (“Stroud” and “Bernard”) hosted two young women (“Jermisha” and “Kendretta”) at Stroud’s home on two occasions. During the second visit, Kendretta experienced a “spell” where she fell down and started kicking, apparently as a result of consuming alcohol and synthetic weed. About an hour after Kendretta recovered and left, the defendant showed up at Stroud’s house in a car, accompanied by at least two other individuals. The defendant identified himself as “KP” and confronted Stroud on the front porch, where he accused him of trying to take sexual advantage of Kendretta. The defendant stated he was here to kill Stroud and pulled out a gun. Stroud initially struggled with the defendant, but once the defendant drew and aimed his gun, Stroud fled inside. The defendant fired multiple shots into Stroud’s home and then drove away. Stroud’s niece was able to identify “KP” as the defendant, and she later spoke to the defendant about what happened and he admitted shooting into the house. The defendant was indicted, tried, and convicted on charges of discharging a firearm into an occupied dwelling and possession of a firearm by a convicted felon.
On appeal, the defendant argued that the trial court erred by instructing the jury on the theory of acting in concert (over the defendant’s objection and a request for a special verdict form) because that theory was not supported by the evidence and including it in the instructions was prejudicial. Pursuant to State v. Malachi, 371 N.C. 719 (2018), even if the jury was instructed on an unsupported legal theory, the appellate court must engage in a two-part inquiry to determine prejudice: “first we ask whether the State presented ‘exceedingly strong evidence of defendant’s guilt on the basis of a theory that has sufficient support’ from the evidence presented; and, second, we must ensure that ‘the State’s evidence is neither in dispute nor subject to serious credibility-related questions[.]’ […] If we are satisfied that those conditions have been met, we must conclude ‘it is unlikely that a reasonable jury would elect to convict the defendant on the basis of an unsupported legal theory.’” Reviewing the evidence in the case, the court found that both parts of the inquiry were satisfied by the state’s evidence. First, the eyewitness testimony, along with physical evidence such as a bullet recovered from inside the home, provided exceedingly strong evidence that the defendant did discharge a firearm into an occupied dwelling. Second, minor discrepancies in the trial testimony such as what type of car the defendant drove to Stroud’s house did not rise to the level of presenting a material dispute in the evidence, nor were there “serious credibility-related questions” with the evidence. The court acknowledged that Stroud’s niece, a key witness for the state, was cross-examined about her potential bias against the defendant, but “she answered the questions about her alleged bias head-on and flatly denied having any bias against Defendant, going as far as to say she cares for him and his family. We find this testimony remediates the seriousness of any credibility-related questions.” Therefore, even assuming arguendo that it was error to instruct the jury on acting in concert in this case, the state presented “exceedingly strong evidence of Defendant’s guilt that was neither in dispute nor subject to serious credibility-related questions,” so the error was not prejudicial.
In a trial on solicitation to commit murder, where defendant did not object to the jury instructions at trial or allege plain error on appeal, the issue was not before the appellate court; defendant’s characterization of the issue as a sentencing error was incorrect.
The defendant was charged with solicitation to commit first-degree murder after he asked someone he met through a mutual acquaintance (“Edwards”) to murder his wife for money. After repeated requests from the defendant over the next few days, Edwards contacted law enforcement and assisted their investigation by wearing recording equipment at a subsequent meeting with the defendant to discuss details of the murder. The defendant was indicted for solicitation to commit first-degree murder, and after being convicted at a jury trial he was sentenced for a Class C offense. On appeal, the defendant argued that he was sentenced incorrectly because the jury was only instructed on solicitation to commit “murder.” The jury was not asked to make any special findings regarding the level of malice it found regarding the crime solicited. Therefore, the defendant argued that he should have been convicted of soliciting only the lowest possible level of any form that offense (second-degree murder punished as Class B2 offense). Pursuant to G.S. 14-2.6(a), a solicitation to commit a B2 offense would be punished as a Class D felony, rather than as Class C felony for soliciting a Class A or B1 offense. The appellate court disagreed, noting that “Defendant creatively sidesteps the fact that he was not charged with murder, but with solicitation to commit murder. The jury was not required to find any of the elements of murder. As previously explained, one may be guilty of solicitation regardless of whether the solicited crime—murder, in this case—actually occurs. […] The crime was in the asking.” Rather than alleging a sentencing error, the defendant’s appeal was really an argument against the sufficiency of the jury instructions. However, since the defendant did not object and raise that issue at trial, nor did he allege plain error on appeal, the issue was not properly before the court. “In that Defendant’s entire appeal was predicated on an unpreserved issue and he failed to request plain error review, his conviction and subsequent sentence shall remain undisturbed.”
In an attempted armed robbery trial, it was error not to instruct the jury on the lesser-included offense of attempted common law robbery when there was evidence presented that the alleged weapon was actually a BB gun.
The defendant and another person committed an attempted robbery of a convenience store in which they pointed what appeared to be a gun at the clerk and demanded money. When the clerk explained that he had already put the money in the store’s safe, the two men fled. The defendant was eventually charged with attempted armed robbery, but the weapon used was never found. At trial, a detective testified for the state that the defendant had admitted to committing the attempted robbery, but claimed that it was only a BB gun and not a real gun. The jury convicted the defendant of attempted armed robbery, and the defendant appealed. The defendant argued that the trial court erred by refusing to instruct the jury on the lesser-included offense of common law robbery. The appellate court agreed and vacated the conviction. The trial court is required to instruct the jury on the lesser-included offense of common law robbery “if there is any evidence – whether offered by the State or by the defendant – that the implement used was not a deadly weapon.” In this case, since the state presented some evidence (the defendant’s statement, as testified to by the detective) that the purported firearm was only a BB gun, the trial court was required to instruct the jury on the lesser offense.