Case Summaries – N.C. Court of Appeals (April 20, 2021)

This post summarizes published criminal decisions released by the North Carolina Court of Appeals on April 20, 2021.

State’s right of direct appeal from the grant of a motion for appropriate relief is limited to questions of law on newly discovered evidence claims or claims “inextricably intertwined” with such a claim; where the State failed to seek certiorari review following the trial court’s grant of a MAR on newly discovered evidence and an unrelated ineffective assistance of counsel claim, appellate court lacked jurisdiction to consider the State’s appeal

State v. Carver, ___ N.C. App. ___ (April 20, 2021). The defendant was tried and convicted of first-degree murder in Gaston County. The evidence of the case largely consisted of mixtures of “touch” DNA profiles found on the victim’s car along with circumstantial evidence based on the defendant’s presence in the area at the time of the murder. The verdict was affirmed on direct appeal. The defendant later filed a motion for appropriate relief (“MAR”) alleging his innocence based on new evidence, as well as claims for ineffective assistance of counsel and discovery violations. The MAR court conducted an extensive hearing on the motion. Evidence showed that the defendant’s trial counsel was aware of the defendant’s significant medical and psychological issues, some of which may have been relevant to the defendant’s ability to commit the crime. Trial counsel obtained authorization and funding for a psychological evaluation that never occurred and failed to obtain the defendant’s medical records. Trial counsel also obtained the services of a DNA expert for use at trial but failed to review the expert’s professional background or previous testimony. The expert informed trial counsel that the State’s science was “good” and advised counsel not to interview the prosecution’s DNA expert. Defense counsel did not obtain a final report from the expert and failed to question the State’s DNA expert with questions recommended by the defense expert.

At the MAR hearing, the defense presented a new DNA expert who testified that the SBI policies of interpreting mixture DNA at the time were “subjective,” outdated, and inaccurate based on current accepted practices. According to this expert, the DNA mixture relied upon by the State at trial could not be used for “any reliable matching” and that the defendant’s DNA profile was not a match. The trial court granted the MAR and ordered a new trial based on ineffective assistance of counsel stemming from trial counsel’s failure to investigate the defendant’s medical and psychological conditions, as well as trial counsel’s failure to properly prepare to meet the state’s DNA evidence. The post-conviction court also found that the defendant was entitled to a new trial based on new evidence stemming from the evolution of DNA science since the time of trial, finding that changes in the science rendered the State’s DNA evidence at trial “doubtful at best.” The State appealed.

The State generally does not have the right to appeal a defendant’s successful MAR. An exception exists for an MAR granted based on new evidence. In that case, the State may directly appeal, “but only on questions of law.” G.S. 15A-1445(a)(2). Where there is no appeal of right, the State may petition for writ of certiorari to obtain review of the trial court’s grant of the MAR. G.S. 15A-1422(c)(3). Here, the State argued that it was entitled to appeal the entire MAR order, since the order was based in part on new evidence. The Court of Appeals disagreed. Where a right to appeal exists as to one ground of an order and not others, the appealing party is generally limited to arguing only the issue from which the appeal of right lies. “[A] right to appeal those other issues exists only if this Court finds those issues ‘inextricably intertwined with the issues before this Court as of right.’” Carver Slip op. at 9 (citation omitted). Here, the issues of new evidence and ineffective assistance were not “inextricably intertwined.” According to the court:

The newly discovered evidence claim is based on evidence that was unavailable to the defendant at the time of trial. The ineffective assistance claim is based on other, separate evidence that the trial court found to be available to the defendant had his counsel exercised due diligence. Thus, these two claims are based on entirely separate facts and legal issues. Id. at 10.

Further, the exception for a State’s direct appeal of the grant of an MAR based on newly discovered evidence is limited by the “only on questions of law” language in G.S. 15A-1445(a)(2). The State’s argument that it can appeal all issues in the order ignored this limitation.

Finally, even after the defendant moved to dismiss the appeal for lack of appellate jurisdiction, the State failed to file a petition for writ of certiorari. The State’s appeal of the ineffective assistance of counsel claim was therefore dismissed for lack of jurisdiction. The appeal of the new evidence claim was rendered moot as a result, leaving the trial court’s order intact.

Short-form indictments for statutory sex offense and indecent liberties using identical language for each charge and joined for trial were not defective

State v. Helms, ___ N.C. App. ___ (April 20, 2021). The defendant was tried and convicted of two counts of first-degree statutory sex offense and two counts of indecent liberties in Union County. The convictions were affirmed on appeal, but the North Carolina Supreme Court found an error with the sentence and remanded for resentencing. On remand, the trial court sentenced the defendant to two consecutive 300-month minimum sentences for the sex offenses and arrested judgment on the indecent liberties convictions. The defendant again appealed, arguing that one of the indictments for each charge were defective. This argument was preserved despite the defendant’s failure to raise the issue earlier, as jurisdictional challenges to the validity of an indictment may be raised at any time.

Two separate indictments were issued charging the defendant with the sex offenses using identical language under one file number and two indictments for indecent liberties similarly used identical charging language under another file number. According to the defendant, the identical language in each set of indictments could have been duplicate originals and not separate offenses. The court rejected this argument. Both sets of indictments properly charged separate offenses in compliance with the requirements for short-form indictments under G.S. 15-144.2(b) (essentials of bill for sex offense) and under G.S. 15A-924 (contents of pleadings). The offenses were also properly joined for trial pursuant G.S. 15A-926 (joinder of offenses and defendants). That statute allows the State to join offenses under a single indictment but does not require it to do so.  In the words of the court:

Defendant asks this Court to adopt a new rule by holding that, when read together, N.C. Gen. Stat. § 15A-924 and N.C. Gen. Stat. § 15A-926(a) bar the State from using multiple short-form indictments charging the same offense with the same file number. We decline to so hold. Helms Slip op. at 8.

The case was therefore affirmed.

Attempted larceny does not qualify as a predicate offense for purposes of habitual larceny; habitual felon conviction resting on improper habitual larceny conviction dismissed

State v. Irvins, ___ N.C. App. ___ (April 20, 2021). The defendant was found guilty at trial in Mecklenburg County of habitual larceny and pled guilty to habitual felon status. On appeal, he argued that a prior conviction for attempted misdemeanor larceny did not qualify as a predicate offense for purposes of the habitual larceny statute. The Court of Appeals agreed.

Under G.S. 14-72(b)(6), a defendant is eligible to be punished for habitual larceny when the defendant commits a larceny after having been convicted of larceny on four previous occasions. Qualifying prior convictions include any larceny offense under G.S. 14-72, any offense “deemed or punishable as” larceny, and substantially similar offenses from other jurisdictions. Attempted larceny is not a larceny and is not deemed or punishable as larceny because it is not a completed larceny and is punished at a lower classification than the completed offense. See G.S. 14-72 and G.S. 14-2.5 (punishment for attempts not otherwise classified). The attempted larceny conviction was from North Carolina and did not therefore qualify as a substantially similar offense from another jurisdiction. Thus, the defendant’s conviction for attempted larceny did not qualify as a valid predicate offense supporting the habitual larceny conviction. That the defendant had previously been convicted of habitual larceny was not sufficient to overcome this defect, as an indictment for habitual larceny must state the four predicate offense relied upon to establish the habitual status. The court observed that a conviction for habitual larceny counts as one conviction for purpose of future habitual larceny prosecutions. Here, because the indictment failed to allege four valid predicate larceny convictions, it was fatally flawed and failed to confer jurisdiction on the trial court.

The normal remedy for a defective indictment is to vacate the conviction. However, the indictment here adequately charged the defendant with misdemeanor larceny and the jury, by convicting the defendant of the habitual offense, found that the defendant was responsible for the misdemeanor offense. Accordingly, the court remanded for entry of a judgment finding the defendant guilty of misdemeanor larceny and for resentencing on that offense. Because the defendant’s habitual felon conviction rested on the habitual larceny conviction, that conviction was reversed and remanded for dismissal.

(1) Sufficient evidence existed to establish white rocks were cocaine notwithstanding potential contamination issue; (2) Authentication and admission of cocaine was not plain error; (3) Instruction to deliberate “with a goal” of reaching unanimous verdicts did not improperly coerce the jury’s verdict

State v. Jackson, ___ N.C. App. ___ (April 20, 2021). In this Buncombe County case, the defendant was convicted of possession with intent to sell or deliver cocaine. The defendant sold two white rocks to an undercover officer in a parking lot. When the defendant gave the drugs to the officer, he placed them in the officer’s bare hands without any packaging. The rocks were later tested and found to contain cocaine. (1) At trial, the defendant moved to dismiss for insufficient evidence. He pointed out that the officer had handled other cocaine with his bare hands earlier in the day and had stored other cocaine in his car console where the cocaine obtained from the defendant was later stored. According to the defendant, this rendered the laboratory result unreliable and insufficient to prove possession of cocaine. The court rejected this argument, finding the handling and storing of the rocks was an issue going to the weight of the evidence and not its admissibility. While the jury was free to consider the contamination argument, there was sufficient evidence that the substance was cocaine when viewed in the light most favorable to the State.

(2) The defendant did not object to the authentication of the cocaine at trial but argued on appeal that the trial court plainly erred in admitting the evidence due to the potential contamination issue. The court again disagreed. “The possibility that physical evidence has been contaminated does not, by itself, bar that evidence from being authenticated and admitted.” Slip op. at 6. Just as with the sufficiency issue, the question of the authentication of the cocaine here went to the weight of the evidence and not admissibility.

(3) After one day of deliberations, the jury sent a note to the trial court indicating it was deadlocked. The trial court instructed the jury pursuant to G.S. 15A-1235 before dismissing the jury for the day. The next morning, the trial judge stated that the jury should resume deliberations “with a goal of reaching a unanimous decision as to each charge.” The defendant complained that this language improperly coerced the jury to render a unanimous verdict. The court disagreed:

The trial court properly gave the required Allen instructions to ensure that jurors understood they were not compelled to reach a unanimous verdict. In light of those instructions, the trial court’s decision, when deliberations resumed, to inform the jury that they should have the goal of reaching a unanimous verdict did not compel any juror to surrender his well-founded convictions or judgment to the views of the majority. It simply reinforced that the jury’s charge was to deliberate and reach a unanimous verdict if possible. Jackson Slip op. at 9.

The case was therefore affirmed in all respects.

(1) No error to deny motion for continuance; (2) Attorney fees awarded without notice to the defendant or an opportunity to be heard vacated and remanded for new hearing

State v. McMillian, ___ N.C. App. ___ (April 20, 2021). The defendant was convicted of armed robbery and resisting a public officer in Columbus County. Immediately before trial, the defendant moved to continue the case. He argued that he had only just received and reviewed recorded statements of the robbery victim and needed time to subpoena the victim’s wife to provide exculpatory evidence and to impeach the victim’s credibility. The trial court declined to continue the case. (1) Defense counsel had been involved in the case for more than nine months and the victim’s wife was listed in discovery materials provided to the defense as a potential witness for the State. Despite being on notice of her potential value as a witness before trial, defense counsel made no effort to locate or interview her. Further, the oral motion to continue did not specifically describe what testimony the witness would provide other than calling it “exculpatory” and “impeaching,” nor was it supported by affidavit. According to the court:

[T]he oral motion for continuance is not supported by affidavit or other proof. In fact, the record suggests only a natural reluctance to go to trial . . . [and] [w]e are left with the thought that defense counsel suffered more from lack of a defense than from lack of time. McMillian Slip op. at 9 (citation omitted).

The denial of the motion to continue therefore did not violate the defendant’s constitutional rights nor amount to an abuse of discretion.

(2) At the conclusion of the case, defense counsel was not able to provide the numbers of hours he had in the case and only later provided a fee application to the judge. This was done outside the presence of the defendant, who was in custody at the time. Attorney fees were awarded without the defendant being notified or present, and there was no other evidence in the record that the defendant had notice or waived his right to be heard. The defendant sought review on the issue.

Attorney fee awards are civil judgments that must be appealed in accordance with appellate rules for civil cases. Because the defendant failed to give written notice of appeal, his appeal was dismissed for lack of jurisdiction. However, the defendant also filed a petition for writ of certiorari on the issue. The Court of Appeals granted the petition to reach the merits of the issue. The State agreed that the defendant did not receive an opportunity to be heard on attorney fees, and the court vacated the order for attorney fees. The matter was remanded the matter for a hearing to be conducted on the issue with the defendant having notice and an opportunity to be heard.

Failure to make findings on defendant’s capacity and entry of insanity plea without deciding capacity issue violated statutory mandate, as well as defendant’s due process rights, and was prejudicial error; (2) Defendant lacking capacity and in confinement for more than maximum possible punishment for the offense is entitled to dismissal under G.S. 15A-1008

State v. Myrick, ___ N.C. App. ___ (April 20, 2021). The defendant was charged with assault of a detention officer causing physical injury in Bertie County. Defense counsel obtained a capacity evaluation of the defendant. It showed that the defendant was not capable to stand trial but indicated his capacity could be restored. At a hearing on the defendant’s capacity, the trial court failed to make findings regarding the defendant’s capacity but instead found the defendant not guilty by reason of insanity (“NGRI”) and ordered him involuntarily committed.

The defendant failed to give notice of appeal in a timely manner and the Court of Appeals consequently lacked jurisdiction to consider it. In recognition of his defective notice of appeal, the defendant filed a petition for writ of certiorari. That petition was also flawed in that it failed to identify the order from which review was sought. The defendant subsequently filed a second petition for certiorari to remedy that defect. In its discretion, the court granted the second petition to reach the merits of the defendant’s arguments.

(1) G.S. 15A-1002 requires a hearing when the defendant’s capacity to proceed is at issue and requires the court to make findings supporting the trial court’s conclusions. In failing to determine the defendant’s capacity and make findings in support, the trial court violated a statutory mandate. In addition, the defendant’s due process rights were violated when the NGRI plea was entered without a finding that the defendant was capable of proceeding. There was also no evidence that the defendant agreed to the entry of the plea. Although this was a question of first impression in North Carolina, the court agreed with other jurisdictions that a NGRI plea from a person lacking capacity is a due process violation. The court observed that this error was prejudicial, in that one acquitted by reason of insanity bears the burden of proof to show that the person is no longer mentally ill. See G.S. 122C-276.1(c). The NGRI order was therefore vacated, and the matter remanded for a capacity hearing.

(2) Under G.S. 15A-1008, a defendant who lacks capacity is entitled to dismissal once he or she has been confined for the maximum period of time authorized for a prior record level VI offender. Here, because the offense was a class I felony punishable by 21 months at most and the defendant had been confined for at least 23 months, in the event the trial court determines that the defendant lacks capacity on remand, the charge must be dismissed.

(1) Single taking rule precludes separate convictions for different items of property taken during a single transaction; (2) Miscalculation of prior record level based on erroneous paraphernalia classification and improper application of the “same elements” point to unrelated offenses was prejudicial error

State v. Posner, ___ N.C. App. ___ (April 20, 2021). (1) In this Franklin County case, the defendant was convicted of felony larceny pursuant to a breaking or entering, felony larceny of a firearm, firearm by felon, fleeing to elude, and armed robbery. The larceny pursuant to breaking or entering and larceny of a firearm occurred at the same time as a part of a continuous transaction and could not support separate convictions. Under the single taking rule, “a single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place.” Posner Slip op. at 4. The State conceded this error, and the court remanded the for judgment to be arrested on one of the larceny counts. [Brittany Williams recently blogged about the single taking rule here.]

(2) The defendant also challenged the trial court’s calculation of his prior record level. The trial court included a point based on a prior 2012 conviction for possession of drug paraphernalia. When determining record level points, prior convictions are classified by the law in effect at the time the present offense was committed. In 2014, the legislature created the class 3 misdemeanor offense of possession of marijuana paraphernalia. The State conceded that the defendant’s paraphernalia 2012 conviction was for marijuana paraphernalia. The conviction therefore should not have counted under current law and the trial court erred in including this point.

The trial court also erred in part in assigning the defendant an additional record level point for having been previously convicted of offenses with “all of the elements of the present offense.” G.S. 15A-1340.14(b)(6). This point applied to the defendant based on his prior convictions for possession of firearm by felon and felony breaking and entering. The defendant had not previously been convicted of larceny of a firearm, fleeing to elude arrest, or armed robbery, however, and it was error to assign this record level point in the judgments for those offenses. Both errors were prejudicial, as they raised the defendant’s prior record level from a level IV to a level V. The matter was therefore remanded for resentencing as well.

Totality of circumstances showed defendant was seized by officer’s show of authority despite not blocking defendant’s path or using blue lights; remand to determine if seizure was supported by reasonable suspicion

State v. Steele, ___ N.C. App. ___ (April 20, 2021). An East Carolina University police officer was responding to a traffic accident call at 2:50 a.m. in Pitt County. He noticed a vehicle on the road and followed it, suspecting it had been involved in the accident. The officer testified that the vehicle did not have its rear lights on. There were no other cars on the road at the time. The vehicle pulled into a parking lot and circled around to exit. The officer entered the parking lot and pulled alongside the defendant’s car as it was exiting the lot. The officer gestured with his hand for the other vehicle to stop but did not activate his blue lights or siren and did not obstruct the defendant’s path. The defendant’s vehicle stopped, and the officer engaged the driver in conversation. He quickly suspected the driver was impaired and ultimately arrested the defendant for impaired driving. The defendant moved to suppress. The trial court denied the motion, finding that the defendant was not seized and that the encounter was voluntary. The defendant pled guilty, reserving his right to appeal the denial of the suppression motion. A majority of the Court of Appeals reversed.

The trial court made a finding of fact that the officer’s intention was to conduct a voluntary encounter. While the officer did so testify, this finding did not resolve the conflict between the State’s evidence that the encounter was voluntary and consensual and the defendant’s evidence that the encounter amounted to a traffic stop. “[W]hen there is a material conflict in the evidence regarding a certain issue, it is improper for the trial court to make findings which ‘do not resolve conflicts in the evidence but are merely statements of what a particular witness said.’” Steele Slip op. at 8-9. This finding therefore failed to support the trial court’s conclusions of law. Additionally, the defendant challenged two other findings of fact relating to the defendant’s rear lights. According to the defendant, the officer’s testimony about the rear lights was plainly contradicted by the officer’s dash cam video. The Court of Appeals, though “inclined to agree” with the defendant, found that these findings were not relevant to the issue at hand:

The issue of whether Defendant’s taillights were illuminated is irrelevant because the trial court’s ruling did not turn on whether [the officer] had reasonable suspicion to pull over Defendant for a traffic stop. Instead . . .  the dispositive issue is whether this encounter qualified as a traffic stop at all (as opposed to a voluntary encounter which did not implicate the Fourth Amendment). Id. at 11-12.

The defendant argued that the defendant was not stopped and that the encounter was consensual. A seizure occurs when an officer uses physical force with intent to seize a suspect or when a suspect submits to an officer’s show of authority. See Terry v. Ohio, 392 U.S. 1 (1968). An officer’s show of authority amounts to a seizure when a reasonable person would not feel free to terminate the encounter and leave. The court noted that this case was unusual, as most seizure cases involve pedestrian stops. The trial court (and the dissent) erred by relying on pedestrian stop cases to find that no seizure occurred. Unlike when an officer approaches a person or parked car on foot, this case involved the officer following the defendant with each party in moving vehicles and the officer gesturing for the defendant to stop. According to the court:

There is an important legal distinction between an officer who tails and waves down a moving vehicle in his patrol car; and an officer who walks up to a stationary vehicle on foot. In the latter scenario, the officer has taken no actions to impede the movement of the defendant—whereas in the former scenario, the officer’s show of authority has obligated the defendant to halt the movement of his vehicle in order to converse with the officer. Steele Slip op. at 18.

Given the criminal penalties for failure to follow traffic control commands and resisting a public officer, a reasonable driver would likely feel obligated to stop an officer gesturing for the driver to stop. “[W]hen a person would likely face criminal charges for failing to comply with an officer’s ‘request,’ then that person has been seized within the meaning of the Fourth Amendment and Article I, § 20 of our state Constitution.” Id. at 20. Further, the trial court failed to properly weigh the time and location of the encounter. Given the late hour and deserted parking lot, the environment was more “intimidating” than a public, daytime encounter, and a reasonable person would be “more susceptible to police pressure” in these circumstances. Id. at 21. Finally, the trial court also failed to properly weigh the effect of the officer’s hand gestures. The “authoritative” gestures by the uniformed officer in a marked patrol car (and presumably armed) supported the defendant’s argument that he was seized. Had the officer not been in a marked police vehicle, it was unlikely that a reasonable person would have voluntarily stopped under these circumstances. The majority of the court therefore agreed that the defendant was seized and reversed the denial of the suppression motion. The matter was remanded for the trial court to determine whether the seizure was supported by reasonable suspicion.

Judge Hampson dissented and would have affirmed the trial court’s order.

(1) Stop and search was supported by reasonable suspicion and probable cause; (2) Offer of proof was not improperly limited; (3) No error in finding canine reliable despite gaps in training and certification of canine and handler

State v. Walton, ___ N.C. App. ___ (April 20, 2021). In this case from Burke County, an officer observed the defendant driving ten miles over the speed limit and believed that the vehicle’s window tint was illegal. When the officer approached, he smelled a slight odor of marijuana and a strong odor of cologne. He also observed that the car windows were not tinted but rather had “shades” covering them. While running license and background checks of the defendant, the officer called for a canine unit and a backup officer. When he returned to the defendant’s vehicle, the odor of marijuana was stronger. The defendant denied having drugs in the car and gave no indications of impairment during field sobriety testing. While the officer was writing a warning ticket, a canine unit arrived. The dog alerted on the car, and the defendant ultimately admitted that a gun was inside. A search revealed the gun, cash, digital scales, cocaine, and synthetic opioids. The defendant moved to suppress. He also sought to admit evidence of a relationship between the backup officer on scene and a woman whose house the defendant had been at immediately before the stop and challenged the reliability of the canine sniff. The trial court denied the motion to suppress, allowed a limited offer of proof regarding the relationship between the woman and the officer (but excluded the evidence as irrelevant), and found the canine was reliable. The defendant pled guilty to trafficking opium and appealed.

(1) The stop of the defendant’s car was supported by reasonable suspicion based on the officer’s observation of speeding (which was confirmed by radar), as well as the suspected window tint violation. The officer developed additional reasonable suspicion of a drug offense based on the odor of marijuana emanating from the defendant’s car. The canine unit arrived on scene 12 minutes into the traffic stop and conducted its sniff of the defendant’s car within one minute while the stopping officer was writing a warning ticket. The officer therefore acted within the mission of the stop throughout the encounter and the stop was not improperly extended. The search of the defendant’s car was also supported by probable cause based on the odor of marijuana and the positive canine alert.

(2) The defendant complained that his offer of proof regarding the relationship between one officer on the scene and a woman whose house the defendant had traveled from prior to the stop was improperly limited. The Court of Appeals noted that “a trial court may limit an offer of proof by allowing counsel to articulate what a defendant’s showing would have been by identifying witnesses and presenting a detailed forecast of evidence for the record.” Walton Slip op. at 11. Here, the fact of the relationship was established before the trial court and that was a sufficient offer of proof on the issue. The court also found that because this officer was not the stopping officer and had limited involvement in the case, the trial court did not commit prejudicial error in limiting or excluding this evidence.

(3) The defendant also argued that the trial court incorrectly found the canine was properly trained and reliable. Under Florida v. Harris, 568 U.S. 237 (2013), a certified or well-trained canine’s alert can supply probable cause to search under the totality of circumstances. A defendant is permitted to demonstrate that the animal was not properly trained or reliable in arguing against probable cause based on the alert. The defendant pointed to the fact that one of the dog’s certifications was expired at the time of the sniff. The court rejected this a determinative factor, finding the dog had been repeatedly certified by two different organizations and had at least one unexpired certification at the time. This was sufficient evidence of the dog’s reliability, absent any showing by the defendant that its training or performance was deficient. The fact that the officer handling the canine had gaps in his training inconsistent with departmental policies was similarly not determinative. While the officer’s training is a relevant consideration in the analysis, this alone was insufficient to overcome the showing that the dog was properly trained and reliable.

The case was therefore affirmed in all respects.

(1) The trial court has inherent authority to grant a motion on grounds not argued and a party seeking to uphold the trial court’s ruling on appeal may argue reasons to affirm not argued below; (2) Defendant was not entitled to expunction of DNA sample under G.S 15A-146 or G.S. 15A-148 following exoneration and his DNA sample was properly retained by the SBI; (3) Lack of automatic expunction process following exoneration does not violate Article 1, Sec. 19 of the N.C. Constitution; (4) Federal due process claim on the lack of automatic expunction was not preserved when defendant never pursued expunction; (5) Defendant’s DNA sample was not the fruit of the poisonous tree; (6) Taking of defendant’s  DNA sample did not otherwise violate the Fourth Amendment; (7) Attorneys representing defendant at innocence hearing were not ineffective for failing to expunge DNA results; (8) Trial court erred in limiting State’s evidence in support of the inevitable discovery exception

State v. Womble, ___ N.C. App. ___ (April 20, 2021). In this Chatham County case, the State appealed from an order suppressing DNA evidence. The defendant was serving a life sentence for felony murder stemming from a robbery and killing in 1975. In 2008, the Court of Appeals ruled that inmates serving life under the Fair Sentencing Act were entitled to certain credits towards their sentence, which would have allowed the inmates (including the defendant) to be released. See State v. Bowden, 193 N.C. App. 597 (2008). In response, the Department of Public Safety began collecting DNA blood samples from inmates impacted by the Bowden decision to comply with the mandate of G.S. 15A-266.4 (requiring DNA samples before release from prison) and took the defendant’s sample. The North Carolina Supreme Court later reversed Bowden, and the defendant remained in prison.

In 2013, a codefendant contacted the North Carolina Innocence Inquiry Commission and asserted that the defendant had not been involved in the 1975 murder. Investigation into the defendant’s background revealed that he had significant intellectual limitations and mental health issues and was functionally illiterate. Other evidence showed that the defendant’s confession at the time was unconstitutionally obtained. The Innocence Commission recommended release, and a three-judge panel found the defendant innocent and ordered him released from prison in 2014.

In 2017, law enforcement discovered a woman murdered in her apartment in Pittsboro. The defendant lived in the apartment complex at the time. Blood found on the crime scene matched to the defendant, but the SBI did not initially alert police to the match. Because the underlying murder conviction had been set aside, the SBI believed that the defendant’s DNA sample should not have been in the database. Months later, the SBI alerted local law enforcement to the DNA match to the defendant. A search warrant was obtained to procure a new sample from the defendant. The affidavit acknowledged that the match was based on a sample provided for the earlier, now-vacated conviction, but noted that the SBI did not receive an order for expunction of that sample. The new sample of the defendant’s DNA matched to the blood on the scene of the Pittsboro murder and the defendant could not be excluded as a source for other forensic evidence at the scene. The defendant was consequently charged with first-degree murder and moved to suppress the DNA results.

The suppression motion alleged that the DNA test results stemmed from the defendant’s illegal confession in 1975 as well as an unjustified warrantless search of the defendant’s DNA in 2017, and that counsel at the defendant’s innocence hearing was ineffective for failing to seek an expunction of the defendant’s DNA sample. The trial court found that the SBI lawfully obtained the defendant’s DNA sample and that defense counsel was not ineffective. It nonetheless granted the motion to suppress. The trial court reasoned that the DNA expunction statute wrongfully placed the burden on the defendant to move for relief, and that the lack of an automatic process for expunction in cases of exoneration violated the Law of the Land clause of the state constitution under Article 1, section 19. Neither party raised this argument. The Court of Appeals reversed.

(1) The State sought to have the suppression order reversed on the basis that the Law of the Land clause argument was not raised in the trial court and was not therefore preserved for appellate review. This was incorrect. According to the court: “Our precedents clearly allow the party seeking to uphold the trial court’s presumed-to-be-correct and ultimate ruling to, in fact, choose and run any horse to race on appeal to sustain the legally correct conclusion of the order appealed from.” Womble Slip op. at 16. The trial court had inherent authority to grant the motion on grounds other than those argued before it and the issue was preserved for review.

(2) G.S. 15A-148 permits a defendant whose conviction is dismissed on appeal or by pardon of innocence to petition for expunction of a DNA sample provided in connection with the case. This statute did not apply to the defendant’s situation because an appellate court did not dismiss his original conviction and he did not receive a pardon. Innocence Commission cases are heard by a three-judge panel. They conduct an evidentiary hearing and sit as finder of fact, unlike an appellate court. While a superior court can in some instances act as an appellate court (reviewing only record evidence), innocence-claim judicial panels are expressly tasked with taking and weighing evidence. G.S. 15A-1469.

G.S. 15A-146 permits expunction when a case is dismissed and may include a request for expunction of the defendant’s DNA sample taken in connection with the case. Under the version of the statute in effect in 2019, a person did not qualify for this type of expunction if they had previously been convicted of a felony. The defendant had felony convictions unrelated to the original murder conviction, and those rendered the defendant ineligible for expunction under G.S. 15A-146 as well. The trial court therefore correctly determined that the SBI lawfully possessed and retained the defendant’s DNA sample.

(3) The court agreed with the trial court that the defendant has the burden to seek expunction under the statutory framework. It further observed that expunctions act prospectively and not retrospectively—the criminal record is only erased after the final order of expunction has been filed. Here, the defendant did not seek expunction and alleged no disability preventing him from doing so. The trial court’s ruling on the Law of the Land clause was incorrect. In determining a violation under that clause, the court asks “(1) Does the regulation have a legitimate objective; and (2) if so, are the means chosen to implement that objective reasonable?” Womble Slip op. at 27. The State has a legitimate interest in maintaining records of convicted felons to assist with solving other crimes, and this is sufficient to satisfy the first prong of the test. The statutes regarding collection of DNA samples from convicted felons and the process by which those records may be expunged were also reasonable. According to the court:

The trial court’s suppression of the DNA evidence based upon the Law of the Land Clause denied the longstanding presumption of validity of legislative policy choices and is error. The application of N.C. Gen. Stat. § 15A-148 is presumed to be, and is, constitutional under the Law of the Land Clause. Id. at 28.

The trial court’s order to the contrary was therefore reversed.

(4) While not addressed by the trial court, the Court of Appeals also examined due process arguments under the Fourteenth Amendment as issues likely to recur on remand. North Carolina’s Law of the Land clause is the state counterpart to the Fourteenth Amendment to the U.S. Constitution and has been interpreted to provide greater protections than its federal relative. Because no violation occurred under the Law of the Land clause, no federal due process violation occurred either.

The defendant also argued Nelson v. Colorado, 581 U.S. ___, 137 S. Ct. 1249 (2017), as an additional ground to affirm the trial court. That case found Colorado’s process of requiring the defendant to prove by clear and convincing evidence in a new civil action that the person was actually innocent before refunding financial costs imposed in relation to an overturned conviction violated due process. Under Nelson, “a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated” to comport with due process. Id. The court assumed without deciding that the defendant’s DNA could be treated like the fees and fines in Nelson. Here though, the defendant never pursued the statutory minimum procedure of filing for an expunction. This precluded review by the Court of Appeals. “Defendant did not argue this basis before the trial court and his failure to request the return of his blood as an exaction of his invalidated conviction prevents us from considering the matter as a violation of his federal Due Process rights.” Womble Slip op. at 31. This claim was therefore dismissed.

(5) The defendant argued that his DNA sample obtained while in prison for his original conviction was the fruit of the poisonous tree as an additional ground to affirm the trial court. According to the defendant, the detective coerced his confession in 1975 and this rendered the DNA sample inadmissible. The Court of Appeals rejected this argument too, finding that the sample was obtained from an independent source. Under the independent source exception to the exclusionary rule, “evidence obtained illegally should not be suppressed if it is later acquired pursuant to a constitutionally valid search or seizure.” Id. at 32. No court had ever ruled that the detective at issue wrongfully obtained the defendant’s confession or that the confession was the fruit of the poisonous tree. Furthermore, the defendant also confessed to other law enforcement agents at the time, and this was an adequate independent source of the DNA sample. This argument was dismissed as well.

(6) The defendant argued his 2009 DNA sample was wrongfully obtained as a warrantless search unsupported by exigent circumstances. In Maryland v. King, 569 U.S. 435 (2013), the Supreme Court approved the taking of a DNA sample by swabbing the inner cheek of a person validly arrested on probable cause, reasoning that the search (the swab) was reasonable under the circumstances. The defendant’s case was different, in that the DNA sample was obtained by way of an intravenous blood-draw. While this process is more invasive than the swab at issue in King, it was not a significant intrusion. As an inmate at the time, the defendant had a reduced (though not nonexistent) expectation of privacy. The defendant was not singled out to provide a sample; he was part of a category of prisoners being prepared for release. “This intrusion is weighted against the government’s interest in preserving an identification record of convicted felons for resolving past or future crimes.” Womble Slip op. at 40. The court determined that the State’s interest outweighed the intrusion upon the defendant’s privacy rights and again affirmed that no Fourth Amendment violation occurred.

(7) The defendant claimed his innocence-claim attorneys were ineffective for failing to expunge his conviction and DNA sample. The State argued that there is no right to an attorney in collateral review and that there was therefore no ineffective assistance claim to be made. The defendant analogized this situation to that of Kentucky v. Padilla, 559 U.S. 356 (holding that the right to counsel requires the client to be correctly informed of clear immigration consequences). He argued that the DNA sample was a similar collateral consequence. The Court of Appeals again disagreed. In the words of the court:

Defendant did not have a statutory right to expungement under either N.C. Gen. Stat. §§ 15A-146 or 15A-148. Defendant’s counsel does not have a duty to pursue a remedy unavailable at law. Under Strickland, Defendant’s counsel’s performance cannot be ‘deficient’ for not pursuing a claim that is unavailable to him. Womble Slip op. at 43.

(8) The State argued that the DNA sample was admissible even if the defendant’s rights were violated under the inevitable discovery exception to the exclusionary rule. Pursuant to that rule, if State shows by a preponderance of evidence that law enforcement would have discovered the evidence despite their unconstitutional actions, the evidence may still be admitted. See Nix v. Williams, 467 U.S. 431 (1984). According to the State, law enforcement had already decided upon the defendant as a prime suspect in the 2017 murder and would have ultimately arrested him even without the DNA sample. The trial court precluded the State from presenting evidence of prior altercations between the defendant and his girlfriend spanning a period of time from the month before the 2017 murder to several months after. The trial court based its ruling on the fact that the detective did not learn of these prior disturbances until after the SBI alerted law enforcement to the DNA match. This was error. “Nowhere does our precedent impose a temporal component to evidence subject to inevitable discovery, only that the evidence ‘would have been inevitably discovered’ by police.” Womble Slip op. at 46.

The case was therefore affirmed in part, reversed in part, and remanded for further proceedings.

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