Case Summaries: N.C. Court of Appeals (August 3, 2021)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on August 3, 2021. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.

(1) The trial court properly excluded proffered evidence that another person committed the crime. (2) An alleged error in a photographic lineup did not constitute plain error when the defendant did not also object to the witness’s in-court identification. (3) The prosecutor’s statement at closing about a defendant’s failure to produce alibi witnesses was not impermissible. (4) The State’s objection to the defendant’s closing argument referencing the defendant’s current appearance was properly sustained. (5) Admission of the defendant’s out-of-court statements did not give rise to a reasonable possibility that the jury would have reached a different result. (6) The short-form murder indictment was sufficient to confer jurisdiction on the court.

State v. Abbitt, 2021-NCCOA-403 (Aug. 3, 2021). In this Rowan County case, two defendants, Sindy Abbitt and Daniel Albarran, were convicted of first-degree murder on the basis of premeditation and deliberation and felony murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon after they entered a victim’s apartment and shot her over a dispute about money. A witness to the shooting identified the defendants with certainty in photographic lineups, and cellular phone analysis conducted by the FBI showed the defendants were in locations near the victim on the night of the crime.

(1) The defendants argued on appeal that the trial court erred by excluding their proffered evidence that another person committed the crime. To be relevant, evidence that another person committed a crime must not only implicate another person, but also exculpate the defendant. The Court of Appeals agreed with the trial court’s conclusion that the defendants’ evidence did support an inference that another person (Ashley Phillips) may have been involved in some way, but it was not inconsistent with the direct evidence of either defendant’s involvement in the actual shooting, and was therefore properly excluded.

(2) Defendant Albarran argued on appeal that the photographic array lineup used to identify him was unconstitutionally suggestive because the photograph of him was closer to his face than the other photos in the lineup, drawing attention to him. Albarran had filed a pretrial motion to suppress the lineup, but did not object to the witness’s in-court identification during trial. Reviewing the issue for plain error, the Court of Appeals concluded that in light of the unobjected-to in-court identification, any alleged error in the photo lineup would not have impacted the jury’s verdict. The defendant’s argument was therefore overruled.

(3) Albarran argued that the trial court erred by overruling his objection to the prosecutor’s statements during closing asking why the defendant Abbitt—who had filed a pretrial notice to assert an alibi defense—did not call certain witnesses to corroborate her whereabouts on the night of the crime. Albarran, who did not give notice of an alibi defense, claimed that the comment was an improper comment on his failure to present evidence. The Court of Appeals disagreed, concluding that the prosecutor’s comment on Abbitt’s failure to produce exculpatory evidence was not impermissible as applied to her and therefore were not improper.

(4) Albarran argued that the trial court erred by sustaining the State’s objections to defense counsel’s statements during closing about Albarran’s tattoos. Defense counsel reminded the jury during closing that the witness’s description at the time of the offense made no mention of tattoos, and asked them to note the many tattoos they could see on him now. The Court of Appeals concluded that the trial court did not err in sustaining the objection where the defendant’s appearance at the time of trial—more than two years after the crime—had no bearing on the witness’s identification and description of the defendant on the night of the murder.

(5) Defendant Abbitt argued that her out-of-court statements to an officer that she had not been at the scene of the crime, that she had not seen the victim in years, and that she did not know Albarran were hearsay that was improperly placed into evidence as admissions. The Court of Appeals concluded that the statements were relevant and admissible under Rule 401, and that in any event admission of the statements did not give rise to a reasonable possibility that the jury would have reached a different result without the asserted error.

(6) Finally, the Court of Appeals rejected defendant Abbitt’s argument that the short form murder indictment was insufficient to confer jurisdiction on the court, noting the Supreme Court of North Carolina’s longstanding and consistent jurisprudence on that issue.

 

The State presented sufficient evidence of penetration for convictions for sexual offense.

State v. Burns, 2021-NCCOA-404 (Aug. 3, 2021). In this Forsyth County case, the defendant was convicted of four counts of statutory sexual offense with a child by an adult and sixteen charges of indecent liberties with a child based on incidents involving an 8-year-old victim. The victim testified that the defendant rubbed his fingers in circles on her vagina, which she described as “where I wipe at” and “the place where I pee.” She also said that nothing had ever gone “inside” her vagina. On appeal, the defendant argued that there was insufficient evidence to support the sexual offense conviction because there was no evidence of penetration. The Court of Appeals disagreed. A “sexual act” for the purposes of a sexual offense includes the penetration, however slight, by any object into the genital or anal opening of another person’s body, G.S. 14-27.20(4), and case law indicates that penetration of the labia is sufficient penetration within the meaning of that definition. Here, the victim’s testimony indicated that the defendant touched her on her urethral opening, which is located within the labia. The Court of Appeals concluded that the State therefore presented sufficient evidence to support the element of penetration.

 

The trial court erred in denying the defendant’s motion to dismiss for insufficiency of the evidence.

State v. Dover, 2021-NCCOA-405 (Aug. 3, 2021). In this Rowan County case, the defendant was convicted of felony murder based on an underlying felony of robbery with a dangerous weapon and first-degree murder based on premeditation and deliberation. The defendant was charged after one of his coworkers, Arthur Davis, was found dead in his residence due to multiple stab wounds. Investigating officers found bloody clothes at the defendant’s residence, but forensic biologists testified that those clothes had no DNA connection with the victim, and that there was no other connection between the defendant’s DNA profile and the scene of the crime. When asked about his whereabouts on the night of the crime, the defendant told investigators that he tried to call the victim that night to borrow money from him, but that Davis never answered. The defendant said he then went to his place of employment, smoked crack, did some work, and then went home. Cell site location analysis performed on the defendant’s phone records showed him to be in a sector that included both the victim’s home and his place of employment on that night. After talking with officers, the defendant was arrested and jailed on an unrelated charge. In a jailhouse phone call on a monitored line, the defendant instructed his girlfriend to bail him out using approximately $3,000 in cash hidden in a work glove, which was in turn hidden in a McDonald’s bag in a trash can. The defendant moved to dismiss all charges for insufficiency of the evidence at the close of the State’s evidence and again at the close of all evidence. At closing, the prosecutor noted the lack of DNA evidence, but said that the jury “need[ed] a reasonable explanation for that money.” The defendant objected as the prosecutor was saying “If you don’t have a reasonable explanation for where that money came from . . . ,” which the trial judge sustained, but without giving a curative instruction.

On appeal, the defendant argued that the trial court erred by denying his motion to dismiss all the charges for failure to provide evidence as to each element of each crime. A majority of the Court of Appeals agreed. Even giving the State every reasonable inference and resolving any contradictions in its favor, the court concluded that the evidence here was insufficient to go to the jury. The State presented no evidence that the defendant entered Mr. Davis’s trailer, and no evidence connecting the $3,000 with the victim. Evidence indicating that the defendant was in the vicinity of the victim’s home on the night of the offense, and that the victim was supposed to bring money to his daughter the next day but that no money or billfold was found in his house, showed only that the defendant had the opportunity to commit the crime and that someone may have taken money from the victim. There was no evidence beyond speculation, the court said, that the defendant actually went to the victim’s house, had a motive to commit the crimes, or actually did it. The court thus found that the trial court erred by failing to grant the defendant’s motion to dismiss and vacated the defendant’s convictions. Having vacated the convictions, the majority did not reach the defendant’s second argument regarding the trial court’s failure to give a limiting instruction related to the State’s improper closing argument, which arguably shifted the burden of proof to the defendant.

A dissenting judge would have found the evidence sufficient to give rise to a reasonable inference of guilt, and that the trial court therefore did not err by denying the defendant’s motion to dismiss. The dissenting judge also would have concluded that the trial court did not err in failing to give a limiting instruction regarding the State’s closing argument in light of a unobjected-to rephrasing of the argument by the prosecutor after the parties conferred with the judge.

 

(1) Admission of improper lay-witness testimony did not prejudice the defendant. (2) The defendant’s right against self-incrimination was not violated by testimony that did not actually refer to the defendant’s post-arrest silence.

State v. Malone-Bullock, 2021-NCCOA-406 (Aug. 3, 2021). In this Wilson County case, the defendant was convicted after a jury trial of first-degree murder related to a dispute arising out of a card game. Though the defendant told the victim he was going to kill him, and though multiple witnesses saw the defendant shoot the victim, the defendant claimed for the first time at trial that another man, William Saxton, actually shot the victim. During the trial, a witness testified over the defendant’s objection that the defendant had driven to Mr. Saxton’s house after the card game because he knew Mr. Saxton had guns. Another witness testified over the defendant’s objection that he thought the defendant had tried to have him killed. (1) The defendant argued on appeal that both witnesses gave impermissible lay-witness opinions and that the trial court erred by admitting them. The Court of Appeals agreed. A lay witness may not speculate about another person’s intentions on a particular occasion, and each of the witnesses here did (that the defendant drove to Mr. Sexton’s house to get a gun, and that the defendant had set up another witness to be killed, respectively). In both instances, the court concluded, the witness was in no better position than the jurors to deduce the defendant’s intentions based on the evidence. Nevertheless, the court concluded that neither witness’s testimony prejudiced the defendant in light of the ample evidence against him.

 

(2) The defendant also argued on appeal that his right to not incriminate himself was violated when the trial court allowed the State to elicit testimony from a detective that the defendant did not give the same explanation of events at trial (that another man shot the victim) at any time before trial. The defendant argued that asking the officer why the defendant did not mention the other man earlier impermissibly referenced his post-arrest silence. The Court of Appeals disagreed, noting that the right to remain silent did not apply when the defendant did not actually remain silent; instead, he spoke to the detective, claimed that he did not kill the victim, and that he did not know who did. The State’s questioning focused on the differences between the defendant’s statement during the investigation (that he did not know who killed the victim) and his explanation at trial (that Mr. Saxton killed the victim) and was therefore permissible.

 

(1) The defendant’s ineffective assistance of counsel claim was dismissed without prejudice. (2) The trial court did not commit constitutional error by denying the defendant’s motion to continue when the defendant’s lawyer had adequate time to prepare for trial.

State v. Surratt, 2021-NCCOA-407 (Aug. 3, 2021). In this Cleveland County case, the defendant was charged with multiple drug crimes and with being a habitual felon. On the day of trial, the defendant made a motion to continue, telling the court that he did not have time to go over the case with his lawyer. After a discussion with the defendant’s lawyer, the trial judge denied the motion to continue. The defendant was convicted of the drug crimes and then pled guilty to having attained habitual felon status. (1) On appeal, the defendant argued that he was deprived of effective assistance of counsel when his appointed attorney made him argue pro se for a continuance and failed to advocate on his behalf. Noting inconsistencies in the appellate record regarding the extent and timing of the defendant’s contact with his lawyer, the Court of Appeals dismissed the claim without prejudice to allow the defendant to raise the argument in the trial court through a motion for appropriate relief.

(2) The defendant also argued on appeal that the trial court erred by denying his motion to continue. The Court of Appeals disagreed, noting that defense counsel had over a month to prepare for a case that the court did not deem complicated—a controlled drug buy captured on video and audio recording. In the absence of any evidence of prejudice (and with no prejudice presumed due to the lack of complexity in the case), the appellate court concluded that the trial court did not err.

 

The defendant was entitled to an instruction on justification as an affirmative defense to possession of a firearm by a felon.

State v. Swindell, 2021-NCCOA-408 (Aug. 3, 2021). In this Bladen County case, the defendant was convicted of second-degree murder and possession of a firearm by a felon after shooting a man in an altercation between several people at an apartment complex. There were conflicting accounts about which of the people involved had guns, although the defendant testified that he fired his weapon when he believed that one of the men with which he was fighting had a gun, and that he was about to be killed. On appeal, the defendant argued that the trial court erred in declining his request to instruct the jury on the affirmative defense of justification to possess a firearm as a felon—a defense recently recognized by the Supreme Court in State v. Mercer, 373 N.C. 459 (2020). To be entitled to a jury instruction on justification, a defendant must meet a four-part test: (1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. Id. at 464. Additionally, to be entitled to the justification defense, the defendant must possess the firearm only while under threat. Id. Here, taking the evidence in the light most favorable to the defendant, the Court of Appeals concluded that the defendant presented evidence of all the required elements. As to the imminent threat, the victim had knocked the defendant onto his buttocks and heard others saying someone had a gun and “pop him.” As to the second element, the defendant was not the aggressor and attempted to explain to the victim that he was not there to fight. As to the availability of an alternative, evidence showed that the victim attacked the defendant, and a reasonable jury could have concluded that it was too late to call 911 and that running away would have put the defendant at risk of being shot. And as to the causal relationship between the avoidance of harm and the criminal conduct, testimony indicated that the defendant took possession of the firearm only after he heard others saying the victim had a gun, and that he abandoned it when he was able to run away. Finally, the court concluded that the defendant was prejudiced by the trial judge’s failure to give the instruction, as a reasonable jury may have acquitted the defendant on the firearm charge if it had been permitted to consider whether he was justified in possessing it. Accordingly, the majority reversed the conviction and remanded the case for a new trial.

A dissenting judge would have concluded that the required elements for the justification instruction were not met because the defendant intentionally placed himself in a dangerous situation, and because he had many reasonable alternatives to violating the law.

 

(1) There was sufficient evidence of the defendant’s impairment. (2) Any error in the admission of a toxicology expert’s testimony was not prejudicial in light of the defendant’s admission to taking Hydrocodone.

State v. Teesateskie, 2021-NCCOA-409 (Aug. 3, 2021). In this Graham County case, the defendant was convicted of felony death by vehicle and driving while impaired after she drove off the road and killed her passenger. Though first responders did not initially think the defendant had ingested any impairing substance, the Highway Patrol suspected impairment. A blood sample revealed the presence of Xanax, Citalopram, and Lamotrigine, but was inconclusive as to Hydrocodone, which the blood analyst testified could have been masked by the Lamotrigine, metabolized, or present in too small a quantity to be measured. (1) On appeal, the defendant argued that the trial court erred by denying her motion to dismiss based on insufficient evidence of impairment to support her charge of DWI, and, in turn, her charge of felony death by motor vehicle. The Court of Appeals disagreed. Viewing the evidence in the light most favorable to the State, and allowing the State every reasonable inference arising from the evidence, the court concluded that there was sufficient evidence of impairment, including the results from standardized field sobriety tests, the defendant’s statement that she had consumed alcohol and Hydrocodone, and the opinion of the Highway Patrol’s drug recognition expert. The defendant’s conflicting evidence—including that the accident occurred at night on a curvy mountain road and that her weight and diabetes affected the results of her sobriety tests—did not allow the trial court to grant a motion to dismiss, because conflicting evidence is for the jury to resolve.

(2) The defendant also argued on appeal that the trial court should not have allowed the State’s expert to testify as to possible reasons why Hydrocodone did not show up in the defendant’s blood test, because that testimony violated Rule 702 in that it was not based on scientific or technical knowledge, was impermissibly based on unreliable principles and methods, and was prejudicial due to the stigma associated with Hydrocodone on account of the opioid crisis. The Court of Appeals concluded that even if the issue was properly preserved for appeal, and even if the admission of the expert’s statement was an abuse of discretion in violation of Rule 702, it was not prejudicial given the defendant’s admission that she took 20 mg of Hydrocodone approximately one hour and fifteen minutes before the accident.