This post summarizes published criminal decisions from the North Carolina Court of Appeals released on April 6, 2021. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
Where trial court’s ruling on a motion to suppress was remanded for entry of written findings resolving factual disputes but the presiding judge had retired, a new hearing was required.
State v. Swain, __ N.C. App. __, 2021-NCCOA-101 (Apr. 6, 2021). In a prior decision, State v. Swain, 259 N.C. App. 253 (2018) (“Swain I”), the defendant appealed the trial court’s denial of his motion to suppress. The defendant argued that the cocaine discovered in this drug trafficking case was based on a search warrant affidavit that contained false statements in violation of Franks v. Delaware, 438 U.S. 154 (1978). The appellate court in Swain I concluded that it could not adequately review the defendant’s arguments because the trial court had not entered a written order resolving factual disputes in the evidence presented at the suppression hearing, so the matter was remanded to the trial court for entry of a written order clarifying the court’s findings. However, since the judge who conducted the hearing had retired, another superior court judge reviewed the hearing transcript and prepared a written order denying the defendant’s motion.
The appellate court found that this procedure was improper and a new hearing should have been held, for two reasons. First, pursuant to G.S. 15A-977 and State v. Bartlett, 368 N.C. 309 (2015), only the judge who presided over the hearing could make findings of fact concerning the evidence presented. Second, the appellate court pointed out that when it remanded this matter in Swain I, it had already concluded that the transcript alone provided an insufficient basis to resolve the conflicts in the evidence, and those disputes remained unresolved by the new order. Therefore, the court once again vacated the trial court’s order and remanded with instructions to hold a new evidentiary hearing and enter a written order resolving any factual disputes and ruling on the motion.
Trial court did not err in denying defendant’s motion to dismiss; the state presented sufficient evidence that the defendant acted in concert with another shooter to murder one victim, and they conspired and attempted to murder a second victim.
State v. Baldwin, __ N.C. App. __, 2021-NCCOA-97 (Apr. 6, 2021). A longstanding feud and several prior altercations culminated in the defendant and an accomplice ambushing two victims as they were driving away from the home of a woman who helped set the victims up. As the victims’ vehicle left the woman’s home and approached an intersection, the accomplice was standing in the middle of the road and began shooting at the driver’s side of the victims’ car. The defendant was also present and shot at the passenger side of the car. The diver of the vehicle was killed, but the passenger survived unharmed. The defendant was identified as a suspect, interviewed, and arrested. In the defendant’s first interview with police, he claimed that he had been at home all day when the murder occurred. In his second interview, the defendant admitted he lied in his first interview and admitted that he was present at the scene and fired at the car, but maintained that he was firing in self-defense and not aiming at the vehicle.
The defendant was charged with first-degree murder of the driver, attempted murder of the passenger, conspiracy to commit first-degree murder of the passenger, and discharging a firearm into an occupied vehicle in operation. Following a jury trial, the defendant was convicted of all charges. The jury found the defendant guilty of murder based on both lying in wait and felony murder, but acquitted as to malice, premeditation, and deliberation. Judgment on the discharging a firearm offense was arrested, and the defendant was sentenced to life in prison.
On appeal, the defendant argued that the evidence at trial was insufficient to support his convictions for murder, attempted murder, or conspiracy. The Court of Appeals disagreed, and held that there was sufficient evidence to support all the charges. Even though the state offered the defendant’s initial exculpatory statement into evidence, that statement was inconsistent with other evidence of the defendant’s guilt, such as his admissions to being at the scene and firing a gun, and forensic evidence that showed he fired 13 shots at the passenger side of the vehicle. The bullet that killed the driver came from the other side of the car, but there was sufficient evidence to show that the defendant and the other shooter were acting in concert and engaged in the felony of discharging a firearm into an occupied vehicle. Evidence cited by the court included the longstanding feud that led to the murder, the close friendship between the defendant and the other shooter, incriminating text messages regarding their plan, the coordinated nature of both the set-up to bring the victims to a specific location and the resulting ambush, and the assailants’ joint flight afterward. Based on all the evidence, a reasonable juror could conclude that the two shooters were lying in wait for the victims, and they were acting in concert when they opened fire on the occupied vehicle. Although the passenger in the vehicle survived, the court held that the evidence was likewise sufficient to find that the defendant and his accomplice intended to murder the passenger, made an agreement to do so, and performed an overt act to carry out that intent, thus supporting the convictions for both attempted murder and conspiracy.
Where defendant appeared for sentencing at a later date as required under a plea agreement, being late to court was not a breach of the terms.
State v. Knight, __ N.C. App. __, 2021-NCCOA-100 (Apr. 6, 2021). The state and the defendant negotiated a plea agreement in which the defendant would plead guilty to assault by strangulation, second-degree kidnapping, and assault with a deadly weapon, and agreed that he would receive one consolidated active sentence. Under the terms of the plea agreement, sentencing would be postponed for two months; however, if the defendant failed to appear for sentencing, the agreement would no longer be binding and sentencing would be in the court’s discretion. The defendant did appear on the scheduled sentencing date (a Tuesday), but the sentencing was first continued to Friday of the same week before being rescheduled again to Wednesday. Defendant’s attorney stated that he had informed the defendant of the new date, but on Wednesday the defendant was not present at the beginning of court. The defendant showed up an hour and fifteen minutes later, and said he thought that court started an hour later. The prosecutor argued that by failing to appear as agreed, the defendant had breached the terms of the plea bargain and was therefore subject to sentencing in the court’s discretion. After hearing from the victim and both attorneys, the judge agreed with the state and sentenced the defendant to consecutive active sentences instead of one consolidated sentence as laid out in the plea agreement.
The defendant filed a petition for writ of certiorari, arguing that the trial court erred by failing to sentence him in accordance with the plea agreement, and the appellate court agreed. Although plea agreements are contractual in nature, they also involve a waiver of the defendant’s constitutional rights and there must be safeguards to ensure that the defendant receives what he is due. In this case, the defendant did not breach the terms of the plea agreement because he appeared as ordered on the original sentencing date. Additionally, although the defendant was late to court on the rescheduled date, he did appear. Since the state still received the benefit of its bargain by securing the guilty pleas, and since the spirit of the agreement (that the defendant would appear for sentencing at a later date) was fulfilled, the appellate court concluded that the defendant should not have to forfeit what was promised to him under the agreement. The defendant’s “tardiness” did not constitute a breach; therefore, the state violated the plea agreement by asking the court to sentence the defendant in its discretion, and the trial court erred by imposing a sentence in violation of the defendant’s due process rights. The appellate court vacated the judgment, reinstated the plea agreement, and remanded for further proceedings.
Trial court’s order revoking defendant’s probation after the probationary period had ended was adequately supported by findings of good cause.
State v. Geter, __ N.C. App. __ , 2021-NCCOA-98 (Apr. 6, 2021). The defendant was placed on 18 months of supervised probation following his guilty pleas to possession of a firearm by a felon, possession of a stolen motor vehicle, fleeing to elude, and RDO. Shortly before his probationary term expired, the defendant’s probation officer filed a violation report alleging that he had committed four new criminal offenses. Approximately a year later, after the defendant prevailed on a motion to suppress evidence in those cases, the new charges were dismissed. Nevertheless, the defendant’s probation was revoked based on the allegations in the violation report, and the defendant appealed. In State v. Geter, 843 S.E.2d 489 (N.C. App. 2020) (unpublished), the appellate court remanded this matter because the revocation judgments failed to identify which of the four new offenses were the basis for the revocation, and also failed to make a finding that good cause existed to revoke the defendant’s probation after the probationary period had expired (by 399 days), as required by G.S. 15A-1344(f). After a rehearing, the trial court found that good cause existed for the revocation because the new charges were not resolved before the probationary period had ended, and the disposition of those charges would have had a direct impact on the violation hearing. The defendant again appealed his revocation, arguing that the trial court’s finding of good cause failed as a matter of law.
The appellate court disagreed and affirmed the revocation. Applying an abuse of discretion of standard, and distinguishing State v. Sasek, 844 S.E.2d 328 (N.C. App. 2020) in which no findings were made nor was there any evidence in the record that good cause existed, the trial court in this case did make findings and they were supported by facts in the record. The appellate court acknowledged that a revocation occurring 399 days after the probationary period had ended was “significant” and “unadvisable in the administration of justice,” but in this case the violation report was not filed until shortly before the end of the probationary period, there was only one session of hearings held each week in the county, and the trial court found that waiting for a disposition on the underlying new charges constituted good cause for the delay. The trial court did not abuse its discretion in so finding, and the revocation order was affirmed.
Trial court did not err in denying defendant’s motion to dismiss; there was substantial evidence that defendant was in constructive possession of a firearm found in a backpack in his vehicle.
State v. Kennedy, __ N.C. App. __, 2021-NCCOA-99 (Apr. 6, 2021). Officers responding to a report of a suspicious vehicle found the defendant and a female passenger parked in a white pickup truck on the side of the road. When an officer asked if there was anything illegal in the vehicle, the defendant replied “you know I like my pot.” The passenger consented to a search of her handbag, which revealed marijuana, and officers began searching the truck. A backpack found in the back of the truck contained marijuana, paraphernalia, and a handgun in an unlocked box. The defendant stated that the drugs were his. The defendant’s sister was called to come get the vehicle, and when she arrived she told the officers that the gun was hers and she had placed it in the backpack without the defendant’s knowledge. The sister also testified to ownership of the gun at a court hearing. The case went to trial before a jury, and the defendant was convicted of possession of a firearm by a felon, possession of marijuana and drug paraphernalia, and attaining habitual felon status.
On appeal, the defendant argued that his motion to dismiss the felon in possession charge should have been granted because there was insufficient evidence that he was in possession of the firearm. The appellate court disagreed and held that the motion to dismiss was properly denied. At trial, the state proceeded on a theory of constructive possession, arguing that the defendant was not in actual possession of the gun but he was aware of its presence and had the power and intent to control its disposition and use. The appellate court agreed that there was sufficient evidence of constructive possession to survive a motion to dismiss in this case: defendant was the owner and driver of the truck; it was his backpack with his belongings inside of it; and he did not express surprise when the gun was found or disclaim ownership of it. “The State presented substantial evidence of constructive possession because Defendant’s power to control the contents of his vehicle is sufficient to present an inference of knowledge and possession of the firearm found therein.”
On reconsideration in light of State v. Golder, trial court erred by denying defendant’s motion to dismiss the possession of a firearm by felon charge where state’s primary evidence was an unsupported confession, but there was sufficient evidence of constructive possession to support the controlled substance charges.
State v. Wynn, __ N.C. App. __, 2021-NCCOA-103 (Apr. 6, 2021). The defendant in this case previously appealed his convictions for possession of a firearm by a felon, trafficking in heroin, PWISD cocaine, and attaining habitual felon status. The Court of Appeals found no error in State v. Wynn, 264 N.C. App. 250 (2019) (unpublished) (“Wynn I”).
The state Supreme Court granted a petition for discretionary review and remanded to the Court of Appeals for the limited purpose of reconsideration in light of State v. Golder, 347 N.C. 238 (2020) (holding that a motion to dismiss made “at the proper time preserved all issues related to the sufficiency of the evidence for appellate review”). Applying Golder to the case at hand, the appellate court reconsidered defendant’s argument challenging the sufficiency of the evidence at trial, which the court in Wynn I had ruled was not preserved at the trial level. The court began by rejecting the state’s argument that Golder was inapplicable because defense counsel in this case moved for a directed verdict, rather than making a motion to dismiss; the court held that in criminal cases the terms are used interchangeably and are reviewed in the same manner.
Turning to the substantive offenses, the court held that the motion to dismiss the charge of possession of a firearm by a felon should have been granted. No firearm was found in this case; the state’s primary evidence for possession of a firearm was the defendant’s statement to the officers that he had one before they arrived but he had dropped it. Applying the corpus delicti principle, the court held that a confession alone cannot support a conviction unless there is substantial independent evidence to establish the trustworthiness of the confession, including facts which strongly corroborate the essential facts and circumstances in the confession. In this case, the police found a 9mm magazine in a home the defendant had broken into, and also found 9mm shell casings and bullet holes in the defendant’s own home; however, the court pointed out that a magazine is not a firearm, and it was unknown who caused the bullet holes or when. Without some additional evidence (such as recovering the firearm, testimony from a witness who saw a firearm or heard gunshots, or evidence of injury to a person or property), the court concluded that there was insufficient corroboration of the confession and vacated the conviction.
On his convictions for trafficking heroin and PWISD cocaine, the defendant challenged the sufficiency of the evidence that he possessed the drugs, but the appellate court held that there was sufficient evidence to establish constructive possession. The drugs were found inside a house where the defendant was seen actively moving from room to room, indicating that had dominion over the space, and the drugs were packaged in red plastic baggies that the defendant was known to use for selling drugs. When the defendant exited the house he also had over $2,000 in cash on him and a white powdery substance in and on his nose. Taken together, these facts presented sufficient evidence to withstand a motion to dismiss regarding the defendant’s constructive possession of the controlled substances, and the convictions were affirmed.
Finally, the court declined to revisit its earlier ruling on defendant’s argument concerning the admissibility of evidence under Rule 403 and 404, since the case was only remanded for reconsideration in light of Golder. “As such, the Supreme Court left, and we shall too, leave intact our prior analysis, regarding defendant’s second argument of evidence of other wrongs.”
Even if it was error to allow the state’s expert witness to testify that the victim’s characteristics were consistent with being a victim of sexual abuse, it did not rise to the level of plain error since there was overwhelming other evidence of defendant’s guilt.
State v. Waugh, __ N.C. App. __, 2021-NCCOA-102 (Apr. 6, 2021). The defendant was convicted by a jury of one count of rape of a child, one count of indecent liberties with a child, and eight counts of sexual offense with a child, and he received four consecutive sentences. The defendant did not object to the testimony of the state’s expert witness at trial, but argued on appeal that it was plain error to allow the witness to testify that the victim’s symptoms, characteristics, and history were consistent with those of children who have been sexually abused. Under plain error review, the defendant must show that there was a fundamental error at trial, and that error had a probable impact on the jury’s determination that the defendant was guilty. The appellate court held that the defendant failed to make that showing in this case.
Assuming arguendo that allowing the expert’s testimony was error, the defendant failed to show that it had a probable impact on the jury’s findings. The court reviewed in detail the extensive trial testimony from both of the defendant’s daughters describing multiple instances of sexual abuse inflicted on them over a period of many years. The victim’s testimony was corroborated by several other witnesses who investigated the case, heard the victim disclose the abuse, or had an opportunity to counsel, examine, or treat the victim as a result of the abuse. “In light of the overwhelming evidence of Defendant’s guilt,” the court concluded that “even had the challenged testimony not been admitted, the jury probably would not have reached a different result.”