Case Summaries – N.C. Court of Appeals (April 7, 2020)

This post summarizes published criminal decisions from the North Carolina Court of Appeals decided on April 7, 2020.

(1) SBM order was supported by evidence; (2) Constitutional challenge to SBM not raised at trial was waived; (3) Ineffective assistance of counsel claims are not available for civil SBM proceedings

State v. Blankenship, ___ N.C. App. ____ (April 7, 2020). In this Catawba County case, the defendant pled guilty to five counts of indecent liberties with a minor in lieu of other related charges, including possession of child pornography and other sexual assaults on children. The State argued for the imposition of satellite-based monitoring (“SBM”), pointing to the factual bases for the pleas and a STATIC-99R assessment finding the defendant to be “Average Risk.” The trial court ordered the defendant to enroll in SBM for a term of ten years following his release from prison. The defendant sought certiorari review, arguing the trial court erred by ordering SBM, that the State failed to demonstrate that SBM was reasonable under State v. Grady, 372 N.C. 509 (2019), and that his trial counsel was ineffective for failing to raise a constitutional challenge to the SBM order.

(1) In addition to the factual bases and the STATIC-99R, the trial court found that the defendant assaulted several children of both genders, that those children were between 6 and 14 years old, and that the defendant abused a position of trust to facilitate the assaults. These findings were supported by the evidence: “The unobjected to evidence, that Defendant admitted as part of his plea bargain, provides competent evidence to support [these] additional findings.” Blankenship Slip op. at 7. These findings and the STATIC-99R also supported a finding that the defendant “require[d] the highest possible level of supervision,” warranting imposition of SBM. Id. at 8. The trial court properly considered the context of the offenses, and the additional findings were related to the defendant’s likely recidivism and were not duplicative of the STATIC-99R. The trial court did not therefore err in ordering the defendant to enroll in SBM.

(2) The defendant did not object or raise any challenge to the imposition of SBM for a term at the time of the order. Any constitutional objection was therefore unpreserved: “The defendant did not raise a constitutional issue before the trial court, cannot raise it for the first time on appeal, and has waived this argument on appeal.” Id. at 13. The court declined to invoke Rule 2 of the Rules of Appellate Procedure to review the unpreserved issue and dismissed the claim.

(3) The court likewise rejected any alleged ineffective assistance of counsel claim in the SBM context: “Our Court has held ‘hearings on SBM eligibility are civil proceedings.’. . .[and ineffective assistance of counsel] claims are not available in civil appeals such as that form an SBM eligibility hearing.” Id. at 14. This claim was also dismissed, and the trial court’s judgments were unanimously affirmed.

Jury instructions on self-defense and voluntary manslaughter properly denied where evidence showed no objectively reasonable threat of deadly force

State v. Brown, ___ N.C. App. ___ (April 7, 2020). The defendant shot and killed a police officer while the officer was approaching the defendant’s car to serve arrest warrants on him in Robeson County. The defendant claimed that he had been the victim of several recent attempted murders and was “on edge,” so that when he saw the plainclothes officer approaching with a gun on his waist, he fired on the officer from his car. The defendant testified that he thought the victim-officer was going to kill him when he saw the officer’s gun but acknowledged that the gun was not raised or pointed at him. The trial court refused to instruct the jury on self-defense or voluntary manslaughter, finding that the defendant was not under the threat of deadly force. The defendant was convicted of second-degree murder.

The trial court must instruct on all “substantial features” supported by the evidence in a case. If the defendant presents competent evidence in support of self-defense, viewed in the light most favorable to the defendant, the jury should be instructed on self-defense. “Competent evidence of self-defense is evidence that it ‘was necessary or reasonably appeared to be necessary’ for the defendant ‘to kill his adversary in order to protect himself from death or great bodily harm.’” Id. at 8. The reasonableness of a defendant’s belief of threat is judged by an objective standard. Here, even in the light most favorable to the defendant, the evidence did not establish an objective reasonable belief of death or serious harm as a matter of law. The defendant’s testimony showed that the defendant saw a gun as the officer left his vehicle, that the officer looked at the defendant “real mean,” and that the gun was not pointed at the defendant. “In the mind of a person of ordinary firmness, this evidence would not permit the use of deadly force on a complete stranger getting out of a nearby car. Accordingly, the trial court properly declined to give the requested instruction on self-defense.” Id. at 11.  For the same reason—insufficient evidence supporting self-defense (perfect or imperfect)—the defendant was also not entitled to an instruction on voluntary manslaughter. The trial court was therefore unanimously affirmed.

(1) Sufficient evidence supported conspiracy to commit attempted first-degree murder, and defense counsel was not ineffective by failing to challenge the sufficiency of evidence for that offense; (2)(a) Jury instruction was subject to plain error review and defendant did not invite error; (2)(b) Instructing the jury that the defendant may be convicted of conspiring with people other than those named in the indictment violated the defendant’s right to be informed of the accusation against him; (3) Officer testimony about the absence of conflicting information from witnesses was not offered for the truth of the matter asserted and was not plain error

State v. Chavez, ___ N.C. App. ___ (April 7, 2020). This Mecklenburg County case involved charges of attempted first-degree murder, conspiracy to commit first-degree murder, and assault with a deadly weapon with intent to kill inflicting serious injury. The defendant and two other men (one of whom was unidentified) entered the victim’s home and attacked him with a machete and hammer. The victim’s girlfriend escaped with an infant and called police. The defendant and his named co-conspirator apprehended the girlfriend outside of the home, where the defendant instructed the other man to kill her. He refused, and the defendant fled; the other man stayed with the woman until police arrived (and became the named co-conspirator in the indictment). The defendant was convicted of all charges at trial and sentenced to a minimum term of 336 months.

(1) The defendant failed to preserve his challenge to the sufficiency of the evidence supporting the conspiracy charge. At the motion to dismiss, defense counsel conceded that the state had sufficient evidence for conspiracy. The court declined to invoke Rule 2 of the Appellate Rules of Procedure to reach the issue, finding the case did not present the type of “exceptional circumstances” justifying Rule 2 review. The defendant maintained in the alternative that his trial counsel’s failure to move for dismissal constituted ineffective assistance of counsel (“IAC”). IAC claims are typically reviewed via a motion for appropriate relief, where facts may be developed at an evidentiary hearing. Here, though, the cold record was sufficient for the court to determine the IAC claim. “An attorney’s failure to move to dismiss a charge is not ineffective assistance of counsel when the evidence is sufficient to defeat the motion.” Slip op. at 6. The conspiracy charge here was amply supported by the evidence—it showed three men attacked the victim in the victims in the victims’ bedroom and that the attack was “simultaneous [and] coordinated.” This was substantial evidence of an agreement between the attackers to murder the victim, and the motion to dismiss was properly denied. The defendant thus could not demonstrate prejudice for an IAC claim, and the claim was rejected.

(2) The defendant also complained that the trial judge improperly instructed the jury on the conspiracy charge. The defendant did not object to the instructions at trial. The conspiracy indictment named only one co-conspirator (the person that the State could identify), but evidence at trial showed the presence of two co-conspirators. The trial court’s instruction allowed the jury to find that the defendant conspired with “at least one other person.”

(a) Plain error review of the conspiracy jury instruction was available, and the defendant’s failure to object to the proposed jury instructions at trial was not invited error. Unlike cases where the defendant proposed the language of an instruction and then challenged the instruction on appeal (which would be invited error), the defendant here did not seek or craft an instruction on conspiracy. That the defendant requested other, unchallenged jury instructions given by the trial court did not constitute waiver of plain error review for the conspiracy instruction.

(b) Instructing the jury that the defendant may be convicted of conspiring with people other than those named in the indictment violated the defendant’s right to be informed of the accusation against him. Under State v. Mickey, 207 N.C. 608 (1935), such instruction “virtually put the defendant upon trial for an additional offense.” Id. at 15 (citing Mickey). This was plain error.

Where there is no variance between the indictment, the evidence, and the jury instructions, there is no error where the trial court fails to name the specific co-conspirators alleged in the indictment. See State v. Pringle, 204 N.C. App. 562 (2010). The trial court in such a situation may instruct the jury that the defendant could have an agreement with “at least one other person.” Where, as happened here however, a single co-conspirator is named in the indictment, but the evidence shows a conspiracy between more than two people, such instruction fails to comport with the evidence and indictment and constitutes error. Further, this error was prejudicial, requiring a new trial on the conspiracy charge:

Because the trial court’s instruction error permitted the jury to convict Defendant on a theory not legally available to the State, the erroneous instruction was grave error which amounted to a denial of Defendant’s fundamental right to be informed of the accusations against him, N.C. Const. Art. I, Sec. 23, and thus the trial court plainly erred its jury instruction on the charge of conspiracy to commit first-degree murder. . . Accordingly, we order a new trial on the conspiracy to commit first-degree murder. Id. at 21.

(3) An officer was asked whether she received any conflicting information about the defendant’s identity from witnesses interviewed about the case. The officer testified at trial that she did not. The defendant did not object at trial but complained that admission of evidence was hearsay, violated his confrontation rights, and constituted plain error. Rejecting this argument, the court found that the officer’s testimony did not convey a statement from any of the interviewees and was capable of different interpretations. It was not therefore a statement offered for the truth of the matter asserted and violated neither hearsay rules nor the Confrontation Clause. Even if the admission of this evidence was error, it was not prejudicial and did not rise to plain error. The conviction for conspiracy to commit attempted murder was reversed, the remaining convictions affirmed, and the matter remanded.

Judge Brook concurred without separate opinion. Judge Tyson concurred in part and dissented in part. He agreed with the majority as to (1) and (3) above but would have found that that the defendant waived plain error review by inviting the jury instruction error, and that overwhelming evidence of guilt overcame any prejudice as to the conspiracy instruction.

(1) No abuse of discretion for failure to impose discovery sanctions; (2) Sufficient evidence supported for maintaining a vehicle for keeping controlled substances

State v. Dudley, ___ N.C. App. ___ (April 7, 2020). In this Union County case, the defendant appealed convictions for methamphetamine trafficking and maintaining a vehicle for keeping or selling drugs (among others). An officer in Wadesboro observed the defendant’s car at a “known drug house” and alerted a county deputy about the suspect vehicle, who in turn notified an officer with the Town of Wingate. The Wingate officer stopped the defendant for minor traffic violations. The officer ultimately searched the vehicle and found meth in a tire-sealant can with a hidden cavity. The defendant argued at suppression that the Wingate officer failed to disclose the source of his tip in discovery. That deputy testified at suppression that the Wadesboro officer was the source of the tip to the Wingate officer, but acknowledged his failure to disclose this information in his report. The defendant complained to the trial court of this last-minute disclosure. The prosecutor acknowledged “difficulty” in obtaining complete information but pointed out that she had sought information from the deputy about the source of the tip, learned it was a Wadesboro officer, and requested a supplemental report. Further, the prosecutor informed defense counsel about these steps. The motion to suppress was denied and the defendant was convicted at trial.

(1) The trial court did not err in declining to impose sanctions on the State for discovery violations. Where a party fails to comply with statutory discovery obligations, G.S. 15A-910 authorizes the court to sanction the offending party. “Whether a party has complied with discovery and what sanctions, if any, should be imposed are questions address to the sound discretion of the trial court.” Slip op. at 8 (citation omitted). Under that standard, the trial court will only be reversed if its decision was “manifestly unsupported by reason.” Id. at 9. While the defendant was not made aware of the Wadesboro officer’s identity until the suppression hearing, the State ultimately provided the deputy’s supplemental report and there was no record evidence that the defendant specifically sought the unknown officer’s identity. On these facts, the trial court did not err in declining to impose sanctions on the State for the alleged discovery violation.

(2) The defendant’s conviction for maintaining a vehicle for keeping or selling drugs was supported by sufficient evidence.

The determination of whether a vehicle . . . is use for keeping or selling controlled substances will depend on the totality of the circumstances. . .While no factor is dispositive, ‘[t]he focus of the inquiry is on the use, not the contents, of the vehicle. Id. at 11 (citations omitted).

Here, the defendant hid a trafficking amount of methamphetamine in a tire-sealant can in his car and possessed paraphernalia. In the light most favorable to the State, this was sufficient evidence from which a jury could infer that the car was kept for purposes of keeping drugs. The defendant’s motion to dismiss this charge for insufficiency of the evidence was therefore properly denied and the convictions unanimously affirmed.

Time served awaiting trial is not voluntary compliance with the judgment within the meaning of G.S. 15A-1431(d) (requiring in-person notice of appeal following a defendant’s compliance with the district court judgment)

State v. Dudley, ___ N.C. App. ___ (April 7, 2020). The defendant was convicted of misdemeanor stalking in district court in Forsyth County and sentenced to time served. The defendant filed a pro se written notice of de novo appeal to superior court on the ninth day after the district court’s judgment. The State moved to dismiss the appeal under G.S. 15A-1431(d). The superior court dismissed the appeal and a petition for writ of certiorari, and the defendant sought certiorari review in the Court of Appeals.

G.S. 15A-1431 proscribes jurisdictional rules governing criminal appeals from district to superior court. A defendant typically has 10 days from the time of judgment to give notice of de novo appeal by filing a written notice of appeal or by giving notice in open court. Under subsection (d), however, once a defendant complies with a district court judgment, notice of appeal must be given by the defendant in person before the presiding judge or certain other officials. According the State, the defendant had complied with the judgment, since he already served the sentence imposed by the district court. His notice of appeal was therefore defective and deprived the superior court of jurisdiction to hear the appeal. The defendant maintained that his pretrial confinement (leading to the time served judgment) could not serve as voluntary compliance with the judgment within the meaning of the statute. The Court of Appeals agreed with the defendant.

Under the plain language of the statute, “the word ‘compliance’ carries with it a connotation of voluntariness.” Slip op. at 5. Official commentary to the statute also supported this view. In the court’s words:

[The defendant’s] purported ‘compliance’ with his criminal sentence was not his choice. He was involuntarily detained in pre-trial confinement while awaiting trial and was later credited with time served . . . [The defendant] therefore properly gave notice of appeal by doing so in writing within ten days of entry of judgment. Id. at 6.

The superior court’s dismissal of the appeal was therefore unanimously reversed, and the matter remanded for trial in superior court.

(1) Harbison admission to AWDWISI in prosecution for attempted murder and AWDWIKISI was not an admission to attempted murder and did not constitute ineffective assistance of counsel; (2) Harbison colloquy by the trial court was proper

State v. Foreman, ___ N.C. App. ___ (April 7, 2020). This Pitt County case involved charges of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”) and felony breaking or entering. Before trial, the defendant signed a document allowing his attorney to argue that he was guilty of assault with a deadly weapon inflicting serious injury (“AWDWISI”). This “Harbison acknowledgement” stated that the defendant understood his right to plead not guilty and have all issues in his case tried; that the defendant understood he was not required to concede guilt as to any offense; that he voluntarily admitted guilt to the assault while understanding the consequences of that admission; and that he authorized his attorney to argue his guilt of that offense to the jury. The trial court conducted a colloquy with the defendant where the defendant orally reaffirmed the terms of the document. At trial, defense counsel argued that the defendant was guilty of AWDWISI but lacked the intent to kill necessary to support the first-degree attempted murder (or AWDWIKISI). The jury convicted on all counts and the defendant appealed. He argued that his admission of guilt to the assault was not knowing or voluntary and that he therefore received ineffective assistance of counsel. He also claimed the trial court’s Harbison colloquy was deficient.

(1) Under State v. Harbison, 315 N.C. 175 (1985), it is per se ineffective assistance of counsel for defense counsel to admit a defendant’s guilt to an offense without the defendant’s consent. The defendant argued that his admission to the assault was effectively an admission to attempted murder. AWDWISI and attempted first-degree murder have different elements and AWDWISI is not a lesser-included offense of attempted first-degree murder. Thus, the admission to AWDWISI did not admit guilt to attempted murder. Further, the defendant knowingly and voluntarily admitted guilt to that assault, and his attorney never conceded guilt to attempted murder. The defendant therefore could not demonstrate ineffective assistance of counsel.

(2) Before accepting an admission of guilt at trial, the record should reflect the defendant’s knowing and informed consent to the admission. Here, it did:

The record demonstrates that Defendant fully understood that trial counsel was going to concede guilt to AWDWISI, and the Defendant expressly consented to the concession. Further, Defendant specifically acknowledged that he understood the consequences of such admission. Id. at 11.

Thus, the trial court’s Harbison colloquy with the defendant was proper. In addition to his appeal, the defendant filed a motion for appropriate relief (“MAR”) in the appellate division. Denying that motion, the court found that no Harbison violation occurred and that the defendant could not therefore show the existence of a ground for relief under the MAR statute. The convictions were thus unanimously affirmed.

Admission of expert fingerprint testimony violated Rule 702 by failing to demonstrate reliable application of the methods and principles to the defendant’s case; no plain error in light of overwhelming evidence of guilt

State v. Koiyan, ___ N.C. App. ___ (April 7, 2020). The defendant was convicted of armed robbery in Mecklenburg County and appealed. He complained that a fingerprint analyst’s expert testimony failed to show that the witness applied reliably applied the relevant methods and principles to the case, in violation of N.C. Evid. Rule 702(a)(3). Because the defendant failed to object at trial, the issue was reviewed for plain error only.

The testimony at issue here was similar to that of the fingerprint analyst in the recent case of State v. McPhaul, 256 N.C. App. 303 (2017) (finding error, though no prejudice, in the admission of fingerprint match testimony where the expert failed to demonstrate reliable application of the relevant principles to the case). While the expert’s testimony met the first two requirements of Rule 702—he established his training and expertise in the field and demonstrated that the methods used in the field were reliable—his testimony failed to establish reliable application of those methods to the defendant’s case. In the words of the court:

While [the expert] testified earlier that he generally examines prints for ‘all three levels of detail’ and looks for ‘ridges and bifurcations and their spatial relationship’ on each print, [the expert] failed to provide any such detail when testifying as to how he arrived at his conclusions in this case.  Koiyan Slip op. at 9-10 (emphasis in original).

The expert also failed to identify any specific characteristics of the defendant’s prints that matched the latent prints. Admission of this testimony was error and violated Rule 702. However, the defendant could not show prejudice in light of “overwhelming evidence” of guilt. The court therefore declined to find plain error and the conviction was affirmed.

Preemptive impeachment evidence regarding defendant’s pre-arrest silence did not violate protections against self-incrimination where defendant gave notice of intent to rely on defense of duress

State v. Shuler, ___ N.C. App. ___ (April 7, 2020). In this Haywood County case, police were called about a disturbance at a hotel involving a specific car. They arrived and approached the vehicle. A man standing outside of the car identified himself and police quickly determined there were outstanding warrants for his arrest. He was taken into custody and officers approached the defendant, seated in the car. She too had outstanding warrants. Before the officer took her into custody, he asked if she had any contraband. The defendant silently removed a bag of marijuana from her bra in response. The officer again asked if she had any more contraband, specifically asking about methamphetamine, and explained that possession of drugs in jail is a separate charge. The defendant again silently removed another bag (this time, of methamphetamine) from her bra. She was charged with trafficking methamphetamine and possession of marijuana. Before trial, the defendant gave notice of intent to rely on duress as a defense. She alleged that, prior to the police approaching the car, the man standing beside the car (with whom she admitted associating) threw the drugs at her as police arrived and threatened to “chain her to a tree” if she didn’t hide them.

At trial, a detective was asked by the State during its case-in-chief whether the defendant made any statements about the man standing by car at the time of her arrest. The defense objected on Fifth Amendment grounds and was overruled. The defendant then moved for a mistrial outside the presence of the jury and again complained that the question emphasized the defendant’s silence at the time of arrest. This too was denied. The defendant testified about the alleged duress but did not explain her silence at the time of police questioning. The jury was instructed on duress and convicted on both charges. On appeal, the defendant renewed her Fifth Amendment objections to the police testimony about her silence.

While it is improper for the State to use the defendant’s silence following arrest as substantive evidence of guilt, the evidence may be admissible for impeachment purposes when the “defendant’s prior silence is inconsistent with [her] present statements at trial.” Slip op. at 7. The defendant argued that the testimony was improperly used as substantive evidence of guilt, arising from an effort of the State to preempt her duress defense. The defendant pointed to State v. Mendoza, 206 N.C. App. 391 (2010), where the court found error based on this type of preemptive impeachment evidence regarding the defendant’s pre-arrest silence. The court distinguished that case and found that because the defendant gave notice of intent to rely on duress, she could be preemptively impeached with evidence of her pre-arrest silence:

When the State seeks to impeach a defendant through silence, ‘[t]he test is whether, under the circumstances at the time of arrest, it would have been natural for defendant to have asserted the same defense asserted at trial. . .Here, it would have been . . . natural for Defendant to have told the arresting officer the contraband she possessed belonged to [the other man] and he had threatened her to conceal it, if she ‘believed that to be the case.’ Id. at 9 (citations omitted).

The admission of this testimony was therefore not error, and the convictions were unanimously affirmed.

1 thought on “Case Summaries – N.C. Court of Appeals (April 7, 2020)”

  1. State v. Blankenship, ___ N.C. App. ____ (April 7, 2020)
    (1) The Defendant’s STATIC-99R “Average Risk” assessment does not support a finding that the Defendant required the highest level of supervision, likely recidivism or warrant
    Imposition of SBM. This decision is erroneous and has no factual basis as presented.

    (3)This is pure sophistry. If the courts have ruled that SBM eligibility is a civil proceeding then that hearing should be separated from the criminal proceeding and a separate council appointed. Otherwise what recourse does the defendant have?

    State v. Brown, ___ N.C. App. ___ (April 7, 2020)
    What exactly is a person of ordinary firmness?


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