This post provides summaries of the opinions of the North Carolina Court of Appeals from September 3, 2019.
Trial judge did not abuse discretion in admitting crime scene photographs into evidence
State v. Canady, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)
The defendant was convicted of first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and attempted first-degree murder. The opinion describes in detail the beatings inflicted with a bat by the defendant and two others on the deceased and her fiancé, who was severely injured but survived. The sole issue on appeal was whether the trial judge erred in admitting roughly fifty photographs of the crime scene displaying the victims’ injuries and blood throughout the house. The defendant argued that the trial judge erred in allowing an excessive number of bloody and gruesome photographs that had little probative value and were unfairly prejudicial under Rule 403 of the North Carolina Rules of Evidence. The Court of Appeals held that the trial judge did not abuse its discretion in admitting the photographs. The Court stated, “‘Even gory or gruesome photographs are admissible so long as they are used for illustrative purposes and are not introduced solely to arouse the jurors’ passions’” (quoting State v. Hennis, 323 N.C. 279 (1988)). The Court ruled that the trial judge, having conducted an in camera review of the photographs and considered the defendant’s objections, completed its task of reviewing the content and manner in which the photographs were to be used and that the admission of the photographs reflected a thoroughly reasoned decision. The Court further ruled that the defendant was unable to show that the photographs were prejudicial because of other overwhelming evidence of the defendant’s guilt.
Defendant not entitled to instruction on defense of justification to possession of firearm by person previously convicted of a felony where he testified at trial that he did not possess the firearm
State v. Holshouser, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)
The defendant was indicted for possession of a firearm—specifically, “a New England Firearms Pardner Model 12 Gauge Shotgun”—by a person previously convicted of a felon. The defendant initially told officers, who were investigating a report of a domestic dispute at the defendant’s home, that he had no knowledge about a shotgun, but he later admitted to one of the deputies that he had thrown the shotgun into the woods and told the deputy where he had thrown it. At trial, the defendant testified that he had been involved in an altercation with his stepson but did not remember taking the shotgun from him. He further testified that he did not take possession of “that gun.” The trial judge gave the pattern instruction on possession of a firearm by a person previously convicted of a felony. There were no objections to the instruction, and the jury found the defendant guilty of the possession charge and of having attained habitual felon status. On appeal, the defendant argued that the trial judge committed plain error by failing to instruct the jury on the affirmative defense of justification. The Court of Appeals held that the defendant was not entitled to the instruction.
The Court first recognized that in State v. Mercer, ___ N.C. ___, 818 S.E.2d 375 (2018), it had recognized the defense of justification to possession of a firearm by a person previously convicted of a felony. The Court noted that the North Carolina Supreme Court has granted review in Mercer but stated that it would follow Mercer as it applied when the defendant’s case was before the trial court. Assuming a justification defense as explained in Mercer applies in North Carolina, the Court stated first that it isn’t clear that a justification defense is a “substantial and essential feature” of the possession charge, requiring an instruction by the trial judge, because the possession statute does not describe justification or self-defense as an element of the offense. The Court then ruled that the defendant’s own testimony, in which he denied possessing the gun alleged in the indictment, rendered a justification defense unavailable. The Court stated that a defendant is not entitled to a justification instruction where he testifies that he did not commit the criminal act at all. The Court also rejected the defendant’s claim of ineffective assistance of counsel based on counsel’s failure to request a justification instruction, holding that even if counsel had requested such an instruction the trial court should not have granted it.
Consecutive sentences for assault with a deadly weapon inflicting serious injury and assault by a prisoner with a deadly weapon inflicting bodily injury did not violate double jeopardy
State v. Smith, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)
The defendant was convicted of and received consecutive sentences for assault with a deadly weapon inflicting serious injury (ADWISI) and assault by a prisoner with a deadly weapon inflicting bodily injury based on the same act of stabbing another prisoner. The Court of Appeals rejected the defendant’s argument that consecutive sentences for the two offenses violated the Double Jeopardy Clause of the Fifth Amendment. The Court reasoned that the ADWISI charge requires that the injury be serious while the assault by prisoner charge requires bodily injury only, which may or may not be serious. The Court reasoned further that the assault by a prisoner charge requires bodily injury while the ADWISI charge may be shown by a physical or mental injury. The Court concluded for these reasons that “serious injury” and “bodily injury” are not synonymous and the defendant’s double jeopardy argument therefore fails.
Court of Appeals refuses to recognize civil cause of action for violation of state constitutional right to a speedy trial
Washington v. Cline, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)
The plaintiff sued the State of North Carolina, City of Durham, various people who worked for the State Bureau of Investigation, the Durham Police Department, and the Durham County District Attorney’s office for a permanent injunction and money damages to redress harms allegedly suffered in connection with his pretrial detention, investigation, and prosecution. The plaintiff, then the criminal defendant, was arrested in 2002 for a home invasion involving an armed robbery and attempted sexual assault and was tried almost five years later. The Court of Appeals, in State v. Washington, 192 N.C. App. 277, vacated his conviction, finding a denial of his speedy trial rights under the United States and North Carolina Constitutions. The trial judge in this case granted the civil defendants’ motion for summary judgment against the plaintiff on his claim that the defendants violated his state constitutional right to a speedy trial. The Court of Appeals recognized that a victim of a constitutional violation may sue for some constitutional violations, such as a violation of the Fourth Amendment protection against unreasonable searches and seizures under the United States Constitution, but the right to sue for damages has not been extended to the deprivation of the Sixth Amendment right to a speedy trial. The Court declined to recognize a private cause of action for the deprivation of the right to a speedy trial under the North Carolina Constitution. Noting that the plaintiff did not appeal the trial judge’s decision about the causes of action alleged by the plaintiff other than his state constitutional claim, the Court declined to address the other causes of action.
(1) Evidence was sufficient to support speeding to elude arrest where law enforcement was performing lawful duty of office at time of traffic stop; (2) Waiver of counsel was not knowing, voluntary, and understanding where trial judge erroneously advised the defendant about the maximum punishments for the charges
State v. Mahatha, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)
The defendant was charged with driving while license revoked, not an impaired revocation; assault on a female; possession of a firearm by a person previously convicted of a felony; attempted robbery with a dangerous weapon; and habitual felon status. The State proceeded to trial on the charges of speeding to elude arrest and attaining habitual felon status, dismissing the other charges. The defendant was found guilty of both, and the trial judge sentenced the defendant to 97 to 129 months’ imprisonment.
(1) The defendant argued that the trial judge erred in failing to dismiss the speeding to elude arrest charge. According to the defendant, at the time the law enforcement officer activated his blue lights and siren to initiate a traffic stop, the officer did not have reasonable suspicion to stop the defendant and therefore was not performing a lawful duty of his office. The Court of Appeals rejected this argument, holding that the circumstances before and after an officer signals his intent to stop a defendant determine whether there was reasonable suspicion for a stop. Here, after the officer put on his lights and siren, the defendant accelerated to speeds of 90 to 100 miles per hour, drove recklessly by almost hitting other cars, pulled onto the shoulder to pass other cars, swerved and fishtailed across multiple lanes, crossed over the double yellow line, and ran a stop sign before he parked in a driveway and took off running into a cow pasture, where the officers found him hiding in a ditch. These circumstances gave the officer reasonable suspicion of criminal activity before he seized the defendant.
(2) The defendant argued that that the trial judge failed to comply with the statutory mandate of G.S. 15A-1242 before allowing the defendant to represent himself. The Court of Appeals agreed, finding that the trial judge failed to inform the defendant of the nature of the charges and proceedings and the range of permissible punishments. The trial court erroneously informed the defendant that: obtaining the status of habitual felon is a Class D felony when being a habitual felon is a status, not a crime; erroneously indicated that the defendant faced a maximum possible sentence of 47 months for possession of a firearm by a person previously convicted of a felony when he faced a maximum of 231 months if determined to be a habitual felon; failed to inform the defendant of the maximum prison term of 231 months for the attempted robbery with a dangerous weapon if he were determined to be a habitual felon; erroneously referred to the speeding to elude arrest as fleeing to elude arrest and failed to inform the defendant that the habitualized maximum was 204 months; and asked the defendant whether he understood that he could face 231 months when he could actually have faced 666 months and 170 days. The Court of Appeals concluded that the defendant’s waiver of counsel was not knowing, intelligent, or voluntary and vacated his convictions and remanded for a new trial.
(1) Flight from unlawful investigatory stop did not constitute resisting, delaying, or obstructing an officer; (2) Because defendant voluntarily abandoned gun before he submitted to officer’s authority, gun was not obtained as result of unlawful seizure and was admissible at trial
State v. Holley, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)
The defendant was charged with possession of a firearm by a person previously convicted of a felony and resisting, delaying, or obstructing an officer. The State dismissed the resisting charge before trial, and the defendant filed a motion to suppress the firearm. The trial judge denied the motion to suppress, the defendant did not object to the introduction of the firearm at trial, and the defendant was convicted. Because the defendant failed to object to the firearm at trial, the Court of Appeals applied plain error review to the denial of his suppression motion.
(1) The evidence showed that the police chief received a call about possible drug activity involving two black males outside a store and radioed the information to patrol officers. A patrol officer saw two men who matched the description walking on the sidewalk, and he parked his marked patrol car. The patrol officer testified that the two men saw him and continued walking. When the officer yelled for the defendant to stop, he looked at the officer and then ran. Another officer eventually located the defendant and arrested him for resisting, delaying, or obstructing an officer.
The Court of Appeals found that the evidence did not support the trial judge’s findings of fact in its denial of the defendant’s suppression motion. Thus, the trial judge found the area had been the scene of several drug investigations and shootings in the previous months, but the police chief testified that for approximately seven years he could recall three arrests for drugs and marijuana and did not testify that they took place in the past several months. The patrol officer testified that he had responded to one shooting in the area but didn’t indicate when the shooting occurred and since then had responded to loitering and loud music issues. The trial judge also found that the defendant walked away “briskly” when he first saw the patrol officer, but the officer testified that the defendant was just walking down the sidewalk. The officer’s later testimony at trial that the defendant kept walking away faster and faster was not before the judge at the suppression hearing and could not be used to support the judge’s findings of fact. The Court found next that the trial judge’s supported findings of fact did not support his conclusion that the officer had reasonable suspicion to stop the defendant initially or probable cause to arrest for resisting. Thus, even assuming the incident took place in a high crime area, the defendant’s presence there and his walking away from the officer did not provide reasonable suspicion to stop. (The Court noted that the patrol officer was unaware of the tip received by the police chief and therefore did not consider the tip in measuring the reasonableness of the stopping officer’s suspicion.) Because the officer did not have reasonable suspicion to stop, the Court found that the defendant was not fleeing from a lawful investigatory stop and the trial judge erred in concluding that there was probable cause to arrest the defendant for resisting.
(2) When the second officer detained the defendant, the defendant did not have a firearm on him. Rather, a K-9 unit recovered the firearm underneath a shed along the defendant’s “flight path.” The Court of Appeals found that the defendant voluntarily abandoned the firearm before he was seized by law enforcement officers. The evidence was therefore not the fruit of an unlawful seizure, and the Fourth Amendment did not bar its admission at trial.
Majority of Court of Appeals finds that trial judge did not commit plain error in admission of various evidence or instructions in indecent liberties case
State v. Betts, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)
The defendant was charged with three counts of indecent liberties with a child. A majority of the Court of Appeals found that the following matters did not constitute plain error and did not warrant a new trial. (1) At trial, the State’s witnesses included two expert witnesses, who testified to the profile and characteristics of children who have been sexually abused. The defendant argued that the trial judge should have given a limiting instruction so that the jury would not have treated the testimony as substantive evidence. The Court rejected the defendant’s argument because he did not request a limiting instruction. (2) The State’s experts and lay witnesses repeatedly used the term “disclose” or variations thereof when summarizing the child’s statements to them. The defendant argued that use of this term lent credibility to the child’s statements and was a comment on her credibility in violation of the prohibition on “vouching” for a witness’s credibility. The Court held that the term “disclose,” standing alone, does not convey believability or credibility and an unpublished opinion suggesting the contrary (State v. Jamison, ___ N.C. App. ___, 821 S.E.2d 665 (2018)), is not persuasive. (3) The State offered into evidence a report about the child from one of its experts. The defendant argued that the opinions and recommendations in the report showed that the expert found the child credible. The defendant’s counsel initially objected to the report but, after the State redacted portions of the report, told the trial court that she had no objection The Court held that to the extent it was error to admit the report, the error was invited. (4) The trial judge gave a limiting instruction to the jury on consideration of testimony about the diagnosis that the child had PTSD. The judge instructed the jury that it could consider the testimony to corroborate the child’s testimony and to explain a delay in reporting. The Court rejected the defendant’s argument that the second purpose was improper, finding that prior decisions had found that explaining delay was a permissible purpose of such evidence. (5) The State offered evidence of past incidents of domestic violence by the defendant against the child and her mother. The defendant argued that the evidence was of no consequence to whether he took indecent liberties with the child. The Court found that such evidence can be permissible where the victim has delayed reporting sexual abuse out of fear or apprehension. (6) The Court of Appeals noted that because it found no prejudicial error, it need not address the defendant’s argument that the cumulative effect of the errors rendered his trial fundamentally unfair.
The dissenting judge found that the trial judge plainly erred in admitting evidence that improperly vouched for the credibility of the child, who was six years old at the time of the alleged events. He stated: “The credibility of the complainant was the sole evidence and issue before the jury. . . . The State produced no other physical evidence, eyewitness testimony or anything else to corroborate these allegations, other than improper bolstering babble restating M.C.’s allegations. The trial court plainly erred in admitting evidence that improperly vouched for the credibility of the complainant, the sole province of the jury.” Slip Op. at 22. Because there was a dissent, the decision will be reviewed by the North Carolina Supreme Court.
(1) Majority of Court of Appeals holds that constructive possession and acting in concert instructions were supported by evidence in drug possession case; (2) Court finds that the defendant should have been sentenced in prior record level V, not prior record level VI
State v. Glover, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 3, 2019)
The defendant was charged with possession of various drugs found in his bedroom and an adjoining alcove, which he said was his personal space. The defendant shared the house with a number of people, including a woman named Ms. Stepp. The defendant consented to a search of his bedroom and alcove, stating to the officers he did not believe they would find any illegal substances, only drug paraphernalia. When asked whether he had ingested any illegal substances, the defendant admitted having used methamphetamine and prescription pills. The search of the defendant’s bedroom uncovered a white rectangular pill marked G3722, a small bag of marijuana, and drug paraphernalia. The search of the alcove uncovered a metal tin containing methamphetamine, cocaine, heroin, and a small pill similar to the one found in his bedroom. The defendant was charged with and convicted of possession of methamphetamine, heroin, and cocaine and having attained the status of an habitual felon.
(1) At trial, over the defendant’s objection, the trial judge instructed the jury that it could find the defendant guilty of possession on the theory of acting in concert in addition to the theory of constructive possession. On appeal, the defendant argued that the evidence did not support an instruction on acting in concert. The majority recognized that prior cases stated that the acting in concert theory is not generally applicable to possession offenses because it tends to get confused with other theories of guilt; however, acting in concert may occur if the evidence shows that the defendant was acting together with another person who did the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. The majority found sufficient evidence of acting in concert based on the testimony of Ms. Stepp, who the defendant called as a witness. She testified that she placed the metal tin in the dresser in the alcove, that the drugs were hers, that she intended to come back later to use them, and that she and the defendant had taken drugs together in the past. The majority found this sufficient evidence of acting in concert because the jury could have found that the defendant was aware of the presence of the drugs in the metal tin and that he facilitated Ms. Stepp’s constructive possession by allowing her to keep her drugs in a place where they would be safe from others.
The dissent found that this evidence was insufficient to show that the defendant acted together with Ms. Stepp pursuant to a common plan or purpose to possess the drugs in the metal tin. The dissent found no evidentiary support for the majority’s conclusion that the defendant facilitated Ms. Stepp’s possession by allowing her to keep the drugs in the alcove. The dissent concluded that the error was not harmless and the defendant should receive a new trial. Because there was a dissent, this aspect of the decision will be reviewed by the North Carolina Supreme Court.
(2) Based on the stipulation of counsel to the prior record worksheet, the trial judge found that the defendant had 47 prior convictions and was in prior record level VI. The Court found that the following 32 convictions should not have been counted: convictions used to support habitual felon status in this case; convictions rendered in the same week or session of court other than the one with the highest points; and Class 2 and lower misdemeanor convictions. The Court held that of the 15 remaining convictions, six were out-of-state convictions and were incorrectly classified. Only two should have been counted and then as Class I felonies. The Court held that precedent continues to prohibit the parties from stipulating to the similarity of out-of-state convictions or the resulting North Carolina classification. The Court distinguished State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that when an offense is split into two separate crimes and the defendant stipulates to the higher offense class, it is assumed that the higher classification is sufficiently supported by the underlying facts of the crime. For out-of-state convictions, in contrast, the parties must establish that the elements of the out-of-state conviction are similar to those of a North Carolina offense; only then may a stipulation determine the underlying facts of the offense and the appropriate classification. Based on this review, the Court found the defendant had 11 convictions that could be used, which placed him in prior record level V. The judge who dissented on the acting-in-concert instruction concurred in this part of the opinion but would not have reached the issue because she found that the defendant was entitled to a new trial.