This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on August 15, 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 properly denied defendant’s MAR without evidentiary hearing where witness who recanted identification did not testify under oath due to defendant’s Alford plea.
State v. Brown, COA22-525, ___ N.C. App. ___ (August 15, 2023). In this Guilford County case, defendant petitioned for a writ of certiorari, arguing error in denial of his motion for appropriate relief (MAR) after a witness recanted her identification of defendant as the shooter in a homicide. The Court of Appeals majority denied the petition.
In August of 2015, the victim was shot at a Greensboro apartment complex. Surveillance video showed defendant at the apartment complex, along with another man and a woman. Based upon statements from witnesses, the three were there to purchase Xanax from the girlfriend of the victim. Defendant and his male associate were in a gang that was rivals with the victim’s gang. After the shooting, both of defendant’s associates gave statements to the police identifying him as the shooter. In 2017, defendant entered an Alford plea to second-degree murder and an unrelated robbery charge prior to reaching trial. Five years later, the woman who visited the apartment complex with defendant recanted her statement identifying defendant as the shooter, instead identifying defendant’s fellow gang member as the shooter. Defendant subsequently filed a MAR in April of 2022 based upon the recanted statement, which the trial court denied without an evidentiary hearing.
The Court of Appeals explained that the trial court was correct to deny the MAR without an evidentiary hearing, as defendant’s choice to enter an Alford plea meant that the witness did not offer “testimony” as that term is normally defined. The witness’s statement to police was unsworn, and because the matter did not go to trial, she was never called to testify and put under oath. Although G.S. 15A-1415(c) provides that a defendant may file an MAR for recanted testimony, “the unsworn statement given to law enforcement—upon which defendant purports reliance for his guilty plea—does not properly align with the definition of testimony.” Slip Op. at 6. The court concluded that declining to hold an evidentiary hearing was proper, as G.S. 15A-1420 only calls for an evidentiary hearing when the trial court is presented with questions of fact, and the issue here was purely a determination of law.
Judge Riggs dissented by separate opinion, and would have remanded for an evidentiary hearing on the MAR, disputing the majority’s narrow interpretation of “testimony.” Id. at 17.
Curative instruction coupled with testimony of second witness justified denial of motion for mistrial based on witness’s improper testimony; defendant’s actions did not represent intent to permanently deprive the victim of his vehicle, justifying dismissal of the charge and remand for judgment on unauthorized use of a motor vehicle.
State v. Spera, COA22-814, ___ N.C. App. ___ (August 15, 2023). In this Union County case, defendant appealed his convictions for misdemeanor larceny of a vehicle and robbery with a dangerous weapon, arguing error in (1) denying his motion for a mistrial after the victim’s testimony identifying him was ruled inadmissible, (2) denying his motion to dismiss the charge of larceny of a motor vehicle for insufficient evidence of intent to permanently deprive the victim, and (3) failure to instruct the jury on the concept of temporary deprivation. The Court of Appeals found no error in (1), but found merit in (2) and vacated defendant’s conviction for larceny, remanding the case for entry of judgment on unauthorized use of a motor vehicle.
In April of 2017, defendant and several associates burst into a mobile home and robbed several friends who had gathered in the living room. Defendant, armed with a hammer, went through the pockets of the people gathered in the living room, and took the keys of one victim and went on a joyride in his truck, returning the truck 30 minutes later. The owner of the truck was allowed to leave unharmed, although some documentation in the truck was destroyed and a roadside safety kit had been taken out of the vehicle. When the matter reached trial, the victim testified that defendant was the man with the hammer who had robbed him. However, the testifying victim had initially identified defendant through a picture that was not disclosed to the defense, leading to an objection from defense counsel to his testimony. After voir dire and argument from both sides, the trial court struck the victim’s identification of defendant and gave a curative instruction to the jury, but denied defendant’s motion for a mistrial. The trial court also dismissed several charges against defendant but denied defendant’s motion for the robbery and larceny of a motor vehicle charges.
Taking up (1), the Court of Appeals noted that review of the trial court’s denial of a mistrial is highly deferential, and that a mistrial is only appropriate in situations where improprieties in the trial were so serious defendant could not receive a fair trial. Here, the court agreed that the victim’s testimony was improper and that the trial court’s curative instruction was likely too vague to remove the prejudice of the improper testimony. However, because the State offered a second witness that also identified defendant, and defense counsel conducted adequate cross-examination after the improper testimony, the court found that “albeit inadequate standing alone,” the cumulative effect of these factors “defeats [defendant’s] claim of a gross abuse of discretion by the trial judge.” Slip Op. at 8. The court also rejected defendant’s attempt to apply State v. Aldridge, 254 N.C. 297 (1961) to call into question the second witness’s credibility.
Turning to (2), the court agreed with defendant that the State did not present evidence showing intent to permanently deprive the victim of his vehicle. Explaining the elements of larceny, the court noted that intent to permanently deprive the owner of possession must be shown to sustain a conviction, and this intent is typically shown by circumstantial evidence. However, “apart from the act of taking itself, additional facts must be present to support an inference of the requisite criminal intent, including both the intent to wrongfully take and the intent to permanently deprive the owner of possession.” Slip Op. at 15. Here, the State pointed to defendant’s use of force as evidence of intent, but the court rejected this argument, exploring precedent to show that force alone does not represent evidence of intent to permanently deprive the victim of their property. Defendant returned the truck to the victim willingly after 30 minutes, representing only a temporary deprivation. The court concluded that the appropriate remedy here was the lesser-included offense of unauthorized use of a motor vehicle, and remanded for entry of judgment for that offense. This remand negated defendant’s argument (3), which the court did not consider.
Trial court properly dismissed juror who moved out of the county prior to the commencement of trial.
State v. Wiley, COA22-899, ___ N.C. App. ___ (August 15, 2023). In this Person County case, defendant appealed his conviction for first-degree murder, arguing error in dismissal of a juror who no longer lived in Person County. The Court of Appeals found no error.
On the third day of trial, Juror #4 reported car trouble and that he would be late for the trial proceedings. The trial court dispatched the sheriff to assist the juror. When the sheriff arrived at Juror #4’s reported location, he was not there, but arrived soon thereafter. The residents of the address informed the sheriff that the juror did not live there anymore and had moved to Durham County, and Juror #4 confirmed this when he arrived. The juror told the trial court that he had recently moved to Durham County and spent time in both places. After hearing from both sides, the trial court dismissed the juror and replaced him with an alternate.
Taking up defendant’s argument, the Court of Appeals noted that G.S. 15A-1211(d) permits the trial court to dismiss a juror even if a party has not challenged the juror, if the trial court determines grounds for challenge are present. Here, Juror #4 was arguably not qualified to serve under G.S. 9-3, which requires jurors to be residents of the county for the trial. The court turned to State v. Tirado, 358 N.C. 551 (2004), for a similar fact pattern of a juror being dismissed for moving prior to the trial. Based on this precedent, the trial court committed no abuse of discretion when dismissing Juror #4.