This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 1, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Trial court adequately inquired into potential conflict before denying defense counsel’s motion to withdraw, and defendant knowingly waived any potential conflict.
State v. Bridges, COA22-208, ___ N.C. App. ___ (August 1, 2023). In this Johnston County case, defendant appealed his convictions for assault with a deadly weapon and attempted robbery, arguing error in the denial of defense counsel’s motion to withdraw, and ineffective assistance of counsel. The Court of Appeals found no error and dismissed the ineffective assistance of counsel claim without prejudice.
In October of 2018, defendant went to a car lot in Garner with another man and a woman. While the woman discussed purchasing a car with the manager, defendant and his accomplice entered with handguns and asked for the manager’s money. The manager was subsequently shot through the neck, and the group fled the lot. When the matter came for trial, the woman testified for the State that defendant was the shooter. Prior to the witness’s testimony, defense counsel encountered her in the hallway crying, and had a conversation with her where she allegedly told him that she was not present at the scene of the crime. Defense counsel alerted the trial court, and an inquiry was held outside the presence of the jury. The State was also permitted to meet with the witness during lunch recess. After all these events, defense counsel made a motion to withdraw and a motion for a mistrial, arguing that he had a conflict of interest based upon the discussion with the witness, and he had become a necessary witness in defendant’s case. The trial court denied this motion, and defendant was subsequently convicted.
The Court of Appeals first looked at defendant’s argument that defense counsel became a necessary witness for defendant, depriving him of his Sixth Amendment right to conflict-free and effective counsel. The court explained that a trial court must conduct an adequate inquiry when it is aware of a possible conflict with defense counsel; to be adequate, the inquiry must determine whether the conflict will deprive the defendant of his constitutional rights. Here, the trial court discussed the conflict and its implications with the parties at length before denying defense counsel’s motion to withdraw. The court also noted that defendant made a voluntary, knowing, and intelligent waiver of any conflict, as he “explicitly stated, after witnessing the entirety of [the witness’s] testimony, including his counsel’s cross-examination of her, that he did not wish for his counsel to withdraw.” Slip Op. at 13. The court concluded that no error occurred based on the adequate inquiry and defendant’s waiver.
Taking up defendant’s ineffective assistance of counsel claim, the court explained that normally these issues are not taken up on direct appeal, and the appropriate remedy is a motion for appropriate relief (MAR) so that the trial court can conduct further investigation as necessary. Here, the court dismissed defendant’s claim without prejudice to allow him to file an MAR.
Sentence entered seven years after prayer for judgment continued did not represent unreasonable delay; prayer for judgment continued was not final judgment as it did not impose conditions amounting to punishment.
State v. McDonald, COA22-672, ___ N.C. App. ___ (August 1, 2023). In this Robeson County case, defendant appealed his conviction for misdemeanor death by vehicle, arguing error as (1) the prayer for judgment continued (PJC) was intended to be a final judgment in the matter, and (2) the almost seven-year delay in entering judgment was unreasonable. The Court of Appeals affirmed the trial court’s judgment.
In October of 2011, defendant crossed the center line of a roadway when attempting to turn left, causing a collision with a motorcyclist who died of injuries sustained in the collision. Defendant pleaded guilty to misdemeanor death by vehicle in October of 2014. Defendant’s plea agreement required him to plead guilty and acknowledge responsibility in open court, and stated the trial court would then enter a prayer for judgment in the matter. In August of 2020, defendant was charged with involuntary manslaughter due to another motor vehicle accident, and the State moved to pray judgment in the misdemeanor death by vehicle case. Over defendant’s opposition, the trial court granted the State’s motion and entered a judgment imposing a sentence of imprisonment that was suspended for supervised probation.
Considering issue (1), the Court of Appeals noted that applicable precedent has made a distinction between PJCs that impose conditions “amounting to punishment” versus PJCs that do not. Slip Op. at 5. Conditions amounting to punishment include fines and imprisonment terms, whereas orders such as requiring defendant to obey the law or pay court costs do not represent punishment for this distinction. Here the court found no conditions amounting to punishment and rejected defendant’s argument that the trial court’s statement “that he hoped ‘both sides can have some peace and resolution in the matter’” represented an intention for the judgment to be final. Id. at 7.
Turning to (2), the court noted that a sentence from a PJC must be entered “within a reasonable time” after the conviction, and looked to State v. Marino, 265 N.C. App. 546 (2019) for the considerations applicable to determining whether the sentence was entered in a reasonable time. Slip Op at 8-9. Here, the court noted the circumstances supported a finding of reasonableness, as (1) the State delayed its motion to pray judgment until defendant committed a second motor vehicle offense, (2) defendant tacitly consented to the delay by not objecting to the PJC and not asking for judgment to be entered, and (3) defendant could not show actual prejudice by the delay of entering a sentence.
Judge Riggs dissented by separate opinion, and would have held that the delay divested the trial court of jurisdiction to enter the sentence.
Attempt to bribe witness represented intimidation or interference with a witness for purposes of G.S. 14-226; disjunctive jury instruction was not error where the statute did not specifically enumerate criminal acts constituting an offense.
State v. Patton, COA22-994, ___ N.C. App. ___ (August 1, 2023). In this Buncombe County case, defendant appealed his convictions for second-degree forcible sexual offense, intimidating or interfering with a witness, and habitual felon status, arguing (1) the trial court lacked jurisdiction over the interfering with a witness charge, (2) error in denying his motion to dismiss the interfering charge due to insufficient evidence, and (3) error in the jury instruction related to the interfering charge. The Court of Appeals found the trial court did have sufficient jurisdiction and committed no error.
The charges against defendant arose from a 2019 incident where he forced himself upon a woman after a night of drinking and smoking marijuana. While defendant was in the Buncombe County Jail prior to trial, he made a call to the victim using a fake name. When the victim answered, defendant told her “[i]f you’re still in Asheville, I’m gonna try and send you some money,” and “I got $1,000 for ya.” Slip Op. at 4-5. The victim informed law enforcement of the call, leading to the additional charge of intimidating or interfering with a witness. At trial, the victim testified about the phone call and the recording was published to the jury. Defense counsel’s motions to dismiss the charges were denied by the trial court.
The Court of Appeals first explained the basis of defendant’s argument (1), that the trial court lacked jurisdiction because the alleged conduct from the indictment, bribing the witness/victim not to testify, was not criminalized by G.S. 14-226. Defendant argued that bribery was not an act to intimidate the witness under the language of the statute, and that only threatening or menacing a witness represented a violation of the statute. The court rejected this interpretation, explaining that G.S. 14-226 “prohibits intimidation of witnesses or attempts to deter or interfere with their testimony ‘by threats, menaces or in any other manner,’” and that this language “given its plain and ordinary meaning, straightforwardly expands the scope of prohibited conduct beyond ‘threats’ and ‘menaces’ to include any other act that intimidates a witness or attempts to deter or interfere with their testimony.” Id. at 9-10.
The court likewise rejected (2), defendant’s motion to dismiss argument. Here the court explained that direct evidence was not required to prove intent, and that circumstantial evidence was sufficient to support a finding that defendant intended to dissuade the witness from testifying. The court held that “the circumstantial evidence that the State did introduce in this case supports a reasonable inference that [defendant] acted with just that intent given the context in which he made the offer.” Id. at 13.
Taking up (3), defendant’s objections to the jury instructions, the court explained that defendant objected to four elements of the instructions. First, defendant objected that the instruction did not require the jury to find that defendant threatened the witness/victim; the court explained this was precluded by its holding discuss above on bribery in G.S. 14-226. Second, defendant argued that the instruction did not convey the required intent to the jury; the court rejected this argument as the instruction was based on a pattern jury instruction previously held to be consistent with the statute. Third, defendant argued that the structure of the instruction allowed the jury to convict him for simply offering the witness/victim $1,000, which is not illegal conduct; again the court pointed to the context and circumstances around the conduct and bribery to dissuade the testimony.
Defendant’s final argument regarding the jury instruction was that the disjunctive structure of the instruction allowed a jury verdict that was not unanimous, as he asserted that various jury members may have found him guilty under separate parts of the instruction. The court explained that some disjunctive instructions are unconstitutional, particularly where a jury can choose from one of two underlying acts to find a defendant guilty of a crime such as in State v. Lyons, 330 N.C. 298 (1991). Slip Op. at 18. However, the crime of intimidating or interfering with a witness does not consist of a list of specific criminal acts, and the court pointed to the example of State v. Hartness, 326 N.C. 561 (1990), where indecent liberties was identified as a similar statute where any of several disjunctive acts can constitute the elements of the offense for purposes of a jury’s guilty verdict. Slip Op. at 19. As there was no danger of jurors convicting defendant of separate offenses under G.S. 14-226, the court found no issue with the disjunctive nature of the jury instruction in the current case. The court further noted that the evidence and verdict rested solely on the attempt to bribe the witness/victim, and did not provide other possible behaviors that could create ambiguity.