This post summarizes published criminal decisions released by the North Carolina Court of Appeals on April 5, 2022. As always, these cases will be added to the Criminal Case Compendium, here.
(1) Challenge to jury instructions was not preserved despite written request where counsel twice acknowledged agreement with the final instructions; (2) The trial court did not err by refusing to instruct the jury on manslaughter and perfect self-defense; (3) Trial court’s comments regarding the defendant’s theory of self-defense during charge conference were not improper; (4) The defendant could not show prejudice from the trial court’s failure to instruct on imperfect self-defense
State v. Acker, ___ N.C. App. ___; 2022 NCCOA 211 (April 5, 2022). The defendant lived with his parents in a mobile home trailer in Craven County. The owner of the trailer, Ms. Patterson, lived on the property in a different mobile home and was lifelong friends with the defendant and his parents. Ms. Patterson lived with one of the defendant’s nephews pursuant to an informal arrangement with child’s father, although the Division of Social Services (“DSS”) was investigating the child’s safety there. Ms. Patterson and the child’s biological mother were involved in an altercation at the child’s school during an orientation session. According to the defendant, once Ms. Patterson returned from the school, she called out for the defendant to come to her trailer. The defendant claimed to have seen a black object in her hand shortly beforehand, which he believed to be a gun. When the defendant arrived in the trailer, Ms. Patterson expressed concern that DSS would remove the child from her home and became upset, using obscenities and “throwing her hands around.” The defendant thought he saw the same black object in the woman’s hands, and immediately hit her in the head with a baseball bat. He initially claimed to have hit her once and then to have blacked out. The next day, the defendant made several statements to various people that he had killed a woman with a bat. He did not mention being in fear or that the woman had a gun, and no gun was found in Ms. Patterson’s trailer. The defendant had blood on his clothes and appeared drunk when making these remarks. Later that evening, the defendant called 911 and reported that he had killed the woman but did not recall why he had killed her. During interrogation by the police, the defendant admitted to hitting the woman “a couple of times” and then “three or four times” with the bat and stated that he killed her because she threatened to evict his family. Blood splatter in the trailer indicated multiple blows, and the victim had no defensive injuries.
At trial, the defendant requested a jury instruction for perfect self-defense. The trial court declined to instruct on self-defense or manslaughter but agreed to instruct on second-degree murder and voluntary intoxication. The jury convicted on second-degree murder and the other offenses, and the defendant appealed. (1) Although the instructions requested by the defense were submitted in writing and argued at the charge conference, defense counsel twice acknowledged his agreement with the ultimate instructions. This was insufficient to preserve the issue for appellate review, and the court therefore reviewed the jury instructions for plain error only.
(2) The trial court did not err, plainly or otherwise, in failing to instruct on manslaughter or perfect self-defense. The only evidence in support of the defendant’s reasonable fear of imminent death or serious bodily harm was his testimony that the victim was cursing, throwing her hands about, and that he thought he saw a gun in her hands. He did not testify that the woman threatened him, and in his numerous statements to laypeople and law enforcement he never mentioned being in fear or that the woman had a gun. “Even taking this testimony in the light most favorable to defendant, defendant has failed to establish that he believed it was reasonably necessary to kill Patterson to save himself from death or great bodily harm.” Acker Slip op. at 15.
(3) The trial court stated during the charge conference that the defendant’s testimony on his need for self-defense amounted to “fantasy.” The defendant argued that this comment was an impermissible assessment of the defendant’s credibility. The court disagreed, noting that the comment was made during the charge conference, outside the presence of the jury, and “was simply . . . the trial court’s reasoning in denying defendant’s request.” Id. at 16. (4) Even if the trial court erred in refusing to instruct on imperfect self-defense and manslaughter, the defendant was not prejudiced as a result. In the words of the court: “The evidence of defendant’s guilt, most of it from statements he freely and voluntarily made, was overwhelming. Accordingly, we hold that the trial court did not plainly err in declining to instruct the jury on self-defense and manslaughter.” Id. at 17. There was therefore no error in the case.
(1) Defendant’s challenge to the second step of the Batson analysis was preserved; (2) The State’s proffered explanations for its use of peremptory challenges were racially neutral; (3) The trial court did not clearly err in finding that the defendant failed to show purposeful discrimination under the totality of circumstances
State v. Bennett, ___ N.C. App. ___; 2022 NCCOA 212 (April 5, 2022) (“Bennett III”). The defendant was convicted at trial of trafficking and other drug offenses in Sampson County. During voir dire, defense counsel made a Batson objection to the prosecutor’s peremptory strikes of two Black jurors. The trial court denied the motion, finding that the defendant had not made a prima facie showing of discrimination. The Court of Appeals affirmed that decision on appeal, but the North Carolina Supreme Court reversed. It found that the defendant had met the low bar for a prima facie showing and that the trial court erred in failing to conduct the remainder of the Batson analysis. The case was therefore remanded to the trial court for a full Batson hearing (Jamie Markham summarized that decision here).
On remand, the prosecution explained that one of the struck jurors was removed because the juror failed to disclose his criminal history. As to the other struck juror, the prosecution explained that some of her answers indicated confusion, and that the juror’s business was involved in an ongoing drug investigation. The defense pointed out that the juror’s criminal record was not in the record and argued this reason was not supported by the evidence. The trial court interrupted defense counsel and indicated that the existence of the juror’s criminal record was “gospel” to the court. Defense counsel moved on to argue the stated reasons for the strikes were pretextual. The defense also offered other evidence of purposeful discrimination, including the juror strike rates, historical evidence of discriminatory jury selection practices in the county, and the susceptibility of the case to racial bias as a drug offense involving a Black defendant. The trial court ultimately found that the prosecutor’s explanations for its use of the strikes were race neutral and determined that that the defendant failed to show purposeful discrimination. The defendant appealed to the North Carolina Supreme Court, who remanded the matter to the Court of Appeals for review.
A unanimous panel of the Court of Appeals affirmed the trial court. (1) The defendant argued that the trial court erred at the second step of the Batson analysis in finding that the prosecution’s stated reasons for its strikes were race-neutral. Specifically, the defendant argued that the prosecutor’s reasons were unsupported by the record. The State argued that the defendant had failed to preserve his challenge to this part of the analysis. The court noted that the discussions between the parties during the Batson hearing were not “neatly divided,” but determined that defense counsel’s attempt to argue the lack of record evidence in support of the prosecutor’s explanations sufficed to preserve the issue. Although the defense later argued that one of the prosecution’s reasons would have supported a challenge for cause (which would supply a race-neutral reason), this occurred during a discussion of the third step of the analysis and after the trial court had indicated the reason had been accepted by the court. The defendant’s challenge to the second step of the analysis was therefore preserved.
(2) At the second step of a Batson analysis, the State must supply a race-neutral explanation for its use of the challenged peremptory strikes. The State is required to do more than simply deny wrongful intent, but any explanation will suffice if it is race neutral. “[I]f not racially motivated, the prosecutor may exercise peremptory challenges on the basis of legitimate hunches and past experience. Notably, the reason does not have to be a reason that makes sense, but a reason that does not deny equal protection.” Bennett III Slip op. at 26 (cleaned up). Although the defendant may offer surrebuttal of the prosecutor’s reasons at step two, “this merely sets up” the third step of the analysis. The court noted the low bar for the prosecution at step two and observed the reason need not be supported by the record at this stage—scrutiny of the prosecutor’s explanation occurs at the final step of the Batson analysis. Here, the reasons offered by the State for its strikes of both Black jurors were racially neutral. “Neither of those challenged explanations is inherently discriminatory because they do not rely on the jurors’ race or race-based discriminatory stereotypes.” Id. at 30.
(3) At the third and final step of the Batson analysis, the court must determine if the defendant has shown that the State’s peremptory challenges were more likely than not motivated by race by examining the totality of the circumstances, including any relevant evidence. Here, the trial court did not clearly err by concluding that the defendant failed to show purposeful discrimination. There was no clear error in the trial court’s ability to conduct a comparative juror analysis on the record before it and the trial court did not err in finding that one of the struck Black juror’s answers were not substantially similar to those of a White juror passed upon by the State. The trial court likewise did not err in determining that the case was not one susceptible to racial discrimination. The case was primarily about drugs and did not involve cross racial issues. According to the court, a case susceptible to racial discrimination is one where the defendant, victim, and witnesses are of different races. Such was not the case here. In the words of the court:
Where there is no evidence of any racial motivations or discrimination in the particular case under review, our precedent does not allow us to account in some sort of general philosophical way for ‘the effect of bias and racial stereotypes on jurors’ as Defendant wants us to consider. Id. at 55.
The North Carolina Supreme Court recently approved of the relevance and use of historical and statistical data in Batson challenges, but trial courts remain to free to weigh such evidence against contemporary practices and policies of a district. Although the trial court’s reasons here for discounting a study evidencing historical racial discrimination in jury selection in the county were improper, this did not amount to clear error under the facts of the case. According to the court:
Side-by-side comparisons of the potential jurors are more powerful than ‘bare statistics,’ and those comparisons here support the prosecutor. Further, we have already concluded the lack of susceptibility of this case to racial discrimination favors the prosecutor’s reasoning as well. Id. at 65.
Finally, the trial court also did not err in assigning weight to the fact that the State passed on five Black jurors. Three Black jurors were accepted before the Batson challenge, and two more were seated afterwards. The trial court found this supported an inference that the challenged strikes were not racially motivated. Unlike other cases where the prosecution only passed a Black juror after a Batson challenge, the early sitting of multiple Black jurors could be weighed in support of the State’s explanations. Additionally, the empaneled jury was more racially diverse than the population of the county itself, which further weighed in the State’s favor. In light of the whole record, the court concluded that the trial court committed no clear error, and its judgment denying the Batson challenge was affirmed.
(1) Defendant’s motion to dismiss for insufficient evidence sufficed to preserve a constitutional challenge, despite not having been raised at trial; (2) Extortion is unprotected speech as speech integral to criminal conduct and the “true threats” analysis does not apply to the offense
State v. Bowen, ___ N.C. App. ___; 2022 NCCOA 213 (April 5, 2022). The defendant and victim met on a website arranging “sugar daddy” and “sugar baby” relationships, and the two engaged in a brief, paid, sexual relationship. The victim was a married man with children at the time. Years later, the defendant contacted the man, stating that she planned to write a book about her experiences on the website and that she intended to include information about their relationship within. The woman repeatedly contacted the man and threatened to include information that the man had shared with her about his ex-wife and their marriage. She also threatened to contact the man’s ex-wife, as well as his current wife. Eventually, she offered the man a confidentiality agreement, whereby she would keep the details of their relationship private in exchange for a large sum of money. The man went to the police, and the woman was charged with extortion. She was convicted at trial and appealed.
(1) Although the defendant did not raise a constitutional challenge in her motions to dismiss at trial, her motion to dismiss for insufficient evidence preserved all sufficiency issues for review, including her constitutional argument. According to the court:
Defendant was not required to state a specific ground for her motion to dismiss as a properly made motion to dismiss preserves all arguments based on insufficiency of the evidence. Moreover, Defendant does not raise an entirely new issue on appeal, but rather argues the insufficiency of the evidence to support a conviction for extortion under her proposed Constitutional interpretation of N.C. Gen. Stat. § 14-118.4. Bowen Slip op. at 7 (citation omitted).
(2) Under the First Amendment to the U.S. Constitution, threat crimes must be interpreted to require a “true” threat. “A ‘true threat’ is an ‘objectively threatening statement communicated by a party which possess the subjective intent to threaten a listener or identifiable group.’” Bowen Slip op. at 10 (citing State v. Taylor, 379 N.C. 589 (2021)). The defendant argued that extortion under G.S. 14-118.4 must be interpreted to require proof of a true threat. The court disagreed. It found that extortion falls within another category of unprotected speech—speech integral to criminal conduct, or speech that is itself criminal (such as solicitation to commit a crime). This approach to extortion is consistent with treatment of the offense by federal courts. Although an extortion statute may sweep too broadly in violation of the First Amendment, North Carolina’s extortion statute requires that the defendant possess the intent to wrongfully obtain a benefit via the defendant’s threatened course of action. The statute therefore only applies to “extortionate” conduct and does not reach other types of protected speech, such as hyperbole or political and social commentary. According to the unanimous court:
Following the U.S. Supreme Court and federal appellate opinions, we hold extortionate speech is criminal conduct in and of itself and, as such, is not constitutionally protected speech. Therefore, the First Amendment does not require that the ‘true threat’ analysis be applied to N.C. Gen. Stat. § 14-118.4. Bowen Slip op. at 16.
Here, the evidence clearly established the defendant’s wrongful intent and threats, and she was properly convicted of extortion.
(1) Stop was not unreasonably extended where officer had not yet determined whether to charge the defendant; (2) Consent was freely and voluntarily given
State v. Jordan, ___ N.C. App. ___; 2022 NCCOA 214 (April 5, 2022). Law enforcement in Guilford County received information that the defendant was selling drugs from his girlfriend’s apartment. They conducted a controlled buy at the location with the help of an informant, who identified the defendant as the seller. Police were later surveilling the home and saw the defendant leave with his girlfriend in her car. The car was stopped for speeding 12 mph over the limit. The stopping officer saw the defendant reach for the center console and smelled a strong odor of marijuana upon approach. The officer removed the occupants from the car and searched it, leading to the discovery of marijuana. During the search, an officer contacted the drug investigators about the possibility of notifying the defendant of the wider drug investigation. This took approximately five to seven minutes. The on-scene officers then informed the pair of the ongoing drug investigation of the defendant and sought consent to search the apartment, which the girlfriend gave. A gun and cocaine were discovered there, and the defendant was charged with firearm by felon and possession of cocaine. He moved to suppress, arguing that the traffic stop was unreasonably extended and that any consent was invalid. The trial court denied the motion, and the defendant entered a guilty plea, preserving his right to appeal the denial of the motion. On appeal, the Court of Appeal unanimously affirmed.
(1) The defendant argued since the police never acted on the speeding or marijuana offenses discovered during the traffic stop, the mission of the stop was complete, and the officer deviated from the mission of the stop by delving into an unrelated drug investigation and seeking consent to search the apartment. The court disagreed:
[A]t the time Officer Fisher asked for consent to search the Apartment, there is no evidence to suggest Officer Fisher had already made a determination to refrain from charging Defendant for the traffic violation or marijuana possession. Instead, the Record seems to indicate that at the time of Officer Fisher’s request for consent to search the Apartment, the stop had not been ‘otherwise-completed’ as he had not yet made a decision on whether to charge Defendant for the marijuana possession.” Jordan Slip op. at 9-10.
The act of asking for consent to search the apartment therefore occurred during the lawful course of the stop. Further, officers had reasonable suspicion that the defendant was selling drugs, justifying extension of the stop even if the original mission of the stop was complete at the time of the request for consent. Given the tip, the controlled purchase, law enforcement surveillance of the residence (which included observing a high volume of guests visiting the home), law enforcement likely had probable cause to arrest the defendant or obtain a warrant to search the apartment. “Consequently, the officer was justified in extending the seizure to question Defendant about the sale of heroin and crack-cocaine even though it was unrelated to the traffic violation.” Id. at 12.
(2) Officers had informed the pair that police would seek a search warrant, or that they could consent to a search of the apartment. The defendant argued that this was improper coercion and that any consent was therefore involuntary and invalid. The court disagreed. The defendant and his girlfriend were informed of the right to refuse consent, the girlfriend signed a written consent form, and neither person objected or attempted to revoke consent during the search. Further, the officers did not use any threats or other “inherently coercive tactics” in obtaining consent. Thus, the trial court properly determined that consent was freely and voluntarily given. The trial court’s judgment was consequently affirmed.
(1) The defendant had standing to contest the search of a building where he was a late-night occupant and exercised apparent control of the door and a safe within; (2) Potential loss of car keys tied to stolen car was not exigent circumstance justifying warrantless entry and drugs discovered inside the building likewise could not support warrantless entry; (3) Purported consent was invalid as the product of an illegal warrantless entry and was not sufficiently attenuated from the illegal police actions; (4) Search warrant for safe based on sight of drugs inside the home did not establish probable cause
State v. Jordan, ___ N.C. App. ___; 2022 NCCOA 215 (April 5, 2022). Charlotte-Mecklenburg police received a report of a stolen car and information about its possible location. Officers went to the location, which was part residence and part commercial establishment. A car matching the description of the stolen vehicle was in the back parking lot. As police watched, a man came out of the building and approached the car as if to enter it. He noticed the unmarked police car and immediately returned to the building, alerting the occupants to the presence of police. Police pulled into the driveway intending to detain the man. The defendant opened the door of the building from inside and the man who had approached the stolen car went inside, although the door was left open. An officer approached and asked the man to come out and speak with police before immediately stepping into the building through the open door. That officer noticed a safe next to the defendant and saw the defendant close the safe, lock it, and place the key in his pocket. More officers arrived on scene and noticed drug paraphernalia in plain view. Officers swept the house and discovered a gun in a bedroom. At this point, officers established that a man inside either owned or leased the building and requested his consent to search. The man initially refused but assented when officers threatened to place everyone in handcuffs and to obtain a search warrant. The defendant informed officers that anything they found in the home was not his and that he did not live there. He denied owning the safe, but a woman who was present at the time later informed officers that the safe belonged to the defendant. Officers obtained a search warrant for the safe and discovered money, drugs, paraphernalia, and a gun inside. The defendant was subsequently charged with trafficking, firearm by felon, habitual felon, and other offenses. He moved to suppress. The trial court denied the motion, apparently on the basis that the defendant lacked standing (although because no written order was entered, the findings and conclusions of the trial court were not easily determined). The defendant was convicted at trial of the underlying offenses and pled guilty to having obtained habitual felon status. The trial court imposed a minimum term of 225 months in consecutive judgments. On appeal, a unanimous panel of the Court of Appeals reversed.
(1) The defendant had a reasonable expectation of privacy in the building. He opened the door when it was knocked and was one of only four people inside the home at a late hour. The defendant further had apparent permission to keep the safe inside and clearly had an interest in it as the person with its key and the ability to exclude others. While the defendant did not own or lease the property, this was not enough to defeat his expectation of privacy. The defendant also disclaimed ownership of the safe to police, and the State argued that this amounted to abandonment, defeating any privacy interest in the safe. The court disagreed, noting that the defendant only made that remark after the police illegally entered the home and that abandonment does not apply in such a situation. In its words:
[W]hen an individual ‘discards property as the product of some illegal police activity, he will not be held to have voluntarily abandoned the property or to have necessarily lost his reasonable expectation of privacy with respect to it[.]’ Jordan Slip op. at 14 (citation omitted).
Thus, the defendant had standing to challenge the police entry and search.
(2) The trial court determined that officers had reasonable suspicion to speak with the man who was seen approaching the stolen car. However, this did not justify warrantless entry into the home. The State argued that the entry was supported by exigent circumstances, in that the keys to the stolen car and the drug paraphernalia seen inside the building could have been easily destroyed. However, there was no evidence that the first officer who approached the home saw any drug paraphernalia at the time and the officer therefore could not have had a legitimate concern about its destruction. There was likewise no explanation from the State regarding the need for immediate warrantless entry to preserve the car keys evidence. Because officers had already seen the man approach the car with the keys and because possession of a stolen car may be established by constructive possession, there was no immediate need to obtain the car keys. Further, there was no immediate risk of destruction of evidence where the occupants of the home left the door open, and an officer entered the home within “moments” of arrival. Exigent circumstances therefore did not support the warrantless entry.
(3) The State also argued that the person with a property interest in the building gave valid consent, and that this consent removed any taint of the initial illegal entry. Illegally obtained evidence may be admissible where the link between the illegal police activity and the discovery of evidence is sufficiently attenuated. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Here, the taint of the illegal entry had not dissipated. Officers obtained consent soon after entering the home, no intervening circumstances arose between the entry and the obtaining of consent, and officers purposefully and flagrantly entered the building without a warrant or probable cause. Any consent was therefore tainted by the initial police illegality and could not justify the search.
(4) Although police did ultimately obtain a search warrant for the safe, the information contained in the search warrant application was based on information obtained by police after they were inside the building. There was no evidence that officers saw any drugs prior to entry, so any evidence obtained as a result was the fruit of the poisonous tree. Without the drugs evidence, the stolen car in the parking lot, the man walking up to the stolen car, and his abrupt return from the car to the building did not supply probable cause to search the building or safe. According to the court:
Because the affidavit supporting the issuance of the search warrant, stripped of the facts obtained by the officers’ unlawful entry into the residence, does not give rise to probable cause to search the residence for the evidence of drugs and drug paraphernalia described in the warrant, ‘the warrant and the search conducted under it were illegal and the evidence obtained from them was fruit of the poisonous tree.’ Id. at 24.
The denial of the motion to suppress was therefore reversed and the case was remanded for any further proceedings.
(1) Photos of condoms were properly admitted but photos of sex toys were irrelevant and improper, although the error did not rise to the level of plain error; (2) Improper lifetime SBM order vacated without prejudice to the State’s ability to refile a new petition; (3) Portions of undisclosed protected records, while favorable to the defendant, were not material and did not justify relief
State v. Sheffield, ___ N.C. App. ___; 2022 NCCOA 216 (April 5, 2022). In this Caldwell County case, the defendant was charged with first-degree sex offense with a child. The victim was the minor child of a family friend. While the child was watching television at the defendant’s house, the defendant brought the child to his computer, which had pornography playing. The defendant then exposed himself and masturbated, performed oral sex on the child, and attempted to have anal sex with the child. The child escaped and reported the incident to his mother at once. During forensic examination, the defendant’s DNA was found on the child’s underwear. The child stated that the defendant had shown him a glass duck with square packets inside he did not recognize, similar to candy or gum packaging, in a previous encounter. At trial, the State presented photos of the defendant’s bedroom. One photo showed condoms, and the other photos showed condoms with sex toys. The sex toys were not alleged to have been involved in the sexual assault, and the State did not mention them in argument. It did argue that the items in the glass duck mentioned by the victim during his interview were condoms, and that the photos of the condoms in the defendant’s room corroborated the child’s account. The defendant was convicted at trial and appealed.
(1) The admission of the photograph showing condoms in the defendant’s room was properly admitted. That image was relevant to corroborate the victim’s story and to show potential grooming behavior by the defendant. The condoms were also admissible to show the defendant’s plan and preparation to commit the offense. Thus, the trial court did not err under N.C. Evid. R. 401 or 404 in admitting the condom photo. The admission of the photos showing the sex toys, however, was erroneous under both rules. The sex toys were in no way related to the assault allegation and amounted to improper character evidence. However, the items were only referenced at trial in passing by defense counsel (and not elsewhere), and there was overwhelming evidence of the defendant’s guilt. Under these circumstances, the erroneous admission of the photos did not rise the level of plain error.
(2) The defendant was ordered to enroll in satellite-based monitoring (“SBM”) for life without a hearing and without defense objection. On appeal, the parties conceded that this was error but disagreed as to the remedy, with the defendant asking for reversal and the State seeking remand of the issue. The court found the issue was preserved under G.S. 15A-1446(d)(18) as an unauthorized sentence. The defendant was convicted under now-G.S. 14-27.29 (formerly G.S. 14-27.4). At trial, the parties mistakenly agreed that the defendant had been convicted under G.S. 14-27.28 (formerly G.S. 14-27.4A). Under the SBM laws in place at the time, a person convicted of an offense under G.S. 14-27.28 was required to enroll in SBM for life, whereas the defendant’s conviction was not eligible for automatic lifetime enrollment. His conviction did require that he undergo a risk assessment and potentially enroll in SBM for a time period to be determined by the trial court. While other cases have prohibited the State from re-litigating the issue on remand, this case was distinguishable given the lack of a motion to dismiss the SBM proceeding, the lack of defense objection, and the mistake of law of the parties. The SBM order was therefore vacated without prejudice, allowing the State to seek an additional hearing on the issue if it desires. A claim of ineffective assistance of counsel based on trial counsel’s performance at the SBM hearing was rendered moot in light of this holding.
(3) The defendant sought to access an officer’s personnel file, as well as Division of Social Services (“DSS”) and school records on the victim and his family. The trial court reviewed and released to the defendant certain documents from each category but ordered other portions of the records withheld as irrelevant, cumulative, or otherwise not discoverable. The Court of Appeals reviewed the unreleased records and determined that some of the unreleased records contained evidence favorable to the defendant. However, that information was not material, in that it did not establish a reasonable likelihood of a different result at trial had it been disclosed. Further discussion of the specifics of the undisclosed records was placed in an order under seal in the court file to preserve the confidentiality of the records for any potential further review. The case was therefore remanded for any new SBM proceeding, and the trial was otherwise without error.