This post summarizes published criminal decisions from the North Carolina Court of Appeals released on December 21, 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.
This is the final post of the year. Thanks to all of our readers for engaging with the blog this year, we hope that everyone has a safe and happy holiday season.
In a second-degree murder case, the trial court did not err by omitting a jury instruction on the defense of accident or by sentencing the defendant as a Class B1 felon
State v. Crisp, ___ N.C. App. ___, 2021-NCCOA-697 (Dec. 21, 2021). In this second-degree murder case where the defendant’s girlfriend was fatally shot in the eye with a pistol, the trial court did not err by omitting a jury instruction on the defense of accident or by sentencing the defendant as a Class B1 felon. The trial court did not err by omitting an instruction on the defense of accident because the defendant testified that he did not commit the shooting or witness it and that he was unsure how it happened. The defendant’s testimony “flatly contradicted” the evidence suggesting he was involved in an arguably accidental shooting. The Court explained that the defendant could not “simultaneously deny that he committed the shooting and claim that he accidentally committed the shooting.”
As to the sentencing issue, while a general verdict of guilty for second-degree murder is ambiguous for sentencing purposes where there is evidence supporting either a Class B2 offense based on depraved-heart malice or a Class B1 offense based on another malice theory, the court concluded that there was no evidence in support of depraved-heart malice in this case. Neither the defendant’s testimony, which asserted that he left the unloaded pistol unattended, or other testimony suggesting that the victim grabbed the pistol as the defendant held it while arguing with her, was sufficient to show that the defendant committed an inherently dangerous act in a manner indicating a depraved heart. The trial court therefore did not err by sentencing the defendant as a Class B1 felon and also did not err by omitting an instruction to the jury on the definition of depraved-heart malice.
Requiring a person to serve an otherwise lawfully imposed sentence during a pandemic does not give rise to a claim of cruel and unusual punishment that can be successfully asserted in a MAR
State v. Thorpe, ___ N.C. App. ___, 2021-NCCOA-701 (Dec. 21, 2021). The defendant, who had underlying health conditions, was not entitled to relief on a MAR under G.S. 15A-1415(b)(8) on the basis of his prison sentence being invalid as a matter of law as a form of cruel and unusual punishment due to the coronavirus pandemic. The Court of Appeals explained that the defendant’s 77 to 105 month term of imprisonment was lawful at the time it was imposed before the pandemic began and that the defendant had identified no precedent indicating that requiring a person to serve an otherwise lawful sentence during pandemic times makes the sentence cruel and unusual. The defendant was not entitled to state habeas relief because of procedural deficiencies in his MAR.
In this human trafficking case involving multiple victims, (1) the trial court did not abuse its discretion by allowing the defendant to represent himself; (2) the indictments were sufficient to convey subject matter jurisdiction; (3) the trial court did not err by entering judgments for multiple counts of human trafficking for each victim; and (4) the trial court did not err in determining the defendant’s prior record level
State v. Applewhite, ___ N.C. App. ___, 2021-NCCOA-610 (Dec. 21, 2021). In this human trafficking case involving multiple victims, (1) the trial court did not abuse its discretion by allowing the defendant to represent himself; (2) the indictments were sufficient to convey subject matter jurisdiction; (3) the trial court did not err by entering judgments for multiple counts of human trafficking for each victim; and (4) the trial court did not err in determining the defendant’s prior record level.
(1) The Court of Appeals rejected the defendant’s argument that the trial court’s statements concluding that he had an “absolute right” to represent himself coupled with the trial court’s failure to consider whether he fell into the “gray area” of being competent to stand trial but incapable of representing himself was a mistake of law requiring a new trial. While the defendant suffered from an unspecified personality disorder and drug use disorders, the record showed that the trial court “undertook a thorough and realistic account of Defendant’s mental capacities and competence before concluding Defendant was competent to waive counsel and proceed pro se.” The Court of Appeals noted that after interacting with him, considering his medical conditions, and receiving testimony concerning his forensic psychiatric evaluation, two judges had ruled that Defendant was competent to proceed and represent himself. The Court of Appeals said that even if the trial court erred in allowing the defendant to represent himself, he invited the error by disagreeing with the manner of representation of appointed counsel and any such error was harmless beyond a reasonable doubt.
(2) The Court of Appeals rejected the defendant’s arguments concerning the sufficiency of the seventeen indictments charging him with human trafficking of six different victims. The Court noted that the indictments alleged every element of the offense within a specific time frame for each victim and tracked the language of the relevant statute word for word.
(3) The Court then turned to and rejected the defendant’s argument that human trafficking is a continuous offense and may only be charged as one crime for each victim. The Court explained that the defendant’s interpretation of G.S. 14-43.11, which explicitly provides that each violation of the statute “constitutes a separate offense,” would “result in perpetrators exploiting victims for multiple acts, in multiple times and places, regardless of the length of the timeframe over which the crimes occurred as long as the Defendant’s illegal actions and control over the victim were ‘continuous.’” The Court characterized human trafficking as “statutorily defined as a separate offense for each instance.”
(4) Finally, the Court determined that the defendant failed to show any error in the trial court’s calculation of his prior record level for sentencing purposes. With regard to a prior federal felon in possession of a firearm charge, the defendant conceded its classification as a Class G felony on the basis of substantial similarity by not objecting at trial when given the opportunity. Likewise with regard to a misdemeanor drug paraphernalia charge, the defendant conceded its classification as a Class 1 misdemeanor by not objecting when given the opportunity.
Judge Arrowood concurred in part and dissented in part by separate opinion, expressing his view that it was improper to convict the defendant of multiple counts per victim of human trafficking. Judge Arrowood explained that North Carolina precedent, specifically involving issues of first impression addressing statutory construction, “clearly instructs that, where a criminal statute does not define a unit of prosecution, a violation thereof should be treated as a continuing offense.” Judge Arrowood then proceeded with a lengthy and detailed analysis of the appropriate unit of prosecution for human trafficking in North Carolina.
The superior court had original jurisdiction to try a misdemeanor charge that was initiated by indictment but amended by a statement of charges; Defendant’s prosecution for second-degree trespass at the General Assembly did not violate his First Amendment rights
State v. Barber, ___ N.C. App. ___, 2021-NCCOA-695 (Dec. 21, 2021). In this case arising from a high-profile incident where William Joseph Barber was convicted of second-degree trespass for refusing to leave the office area of the General Assembly while leading a protest related to health care policy after being told to leave by security personnel for violating a building rule prohibiting causing disturbances, the Court of Appeals found that the superior court had subject matter jurisdiction to conduct the trial and that the trial was free from error.
The Court of Appeals rejected the defendant’s argument that the superior court lacked jurisdiction to try him for the misdemeanor because the charging document upon which the State proceeded in superior court was a statement of charges rather than an indictment and Defendant had not first been tried in district court. Here, the defendant was indicted by a grand jury following a presentment but the prosecutor served a misdemeanor statement of charges on him on the eve of trial and proceeded on that charging document in superior court. The Court of Appeals noted that the superior court does not have original jurisdiction to try a misdemeanor charged in a statement of charges but went on to explain that because the prosecution in this case was initiated by an indictment, the superior court had subject matter jurisdiction over the misdemeanor. The Court characterized the statement of charges as a permissible amendment to the indictment (because it did not substantially change the nature of the charged offense) rather than a new charging document.
The Court also rejected the defendant’s argument that the trial court erred by disallowing certain evidence that went to his assertion that his prosecution implicated his First Amendment rights to free speech and free assembly. The Court determined that his First Amendment rights were not implicated in the conduct for which he was charged because he was removed from the General Assembly because of the loudness of his speech rather than its content. The Court then determined that even if his First Amendment rights were implicated, they were not violated as a matter of law. The Court held that the interior of the General Assembly “is not an unlimited public forum” and therefore “the government may prohibit loud, boisterous conduct on a content-neutral basis that would affect the ability of members and staff to carry on legislative functions.” It went on to conclude that “Defendant’s First Amendment rights were not violated by the application of the legislative rules that support his conviction” because those “rules serve a significant interest of limiting loud disruptions and [he] has various other channels to make his concerns known and to engage in protests of legislative policies.”
Judge Inman concurred in part and concurred in the result in part by a separate opinion. Judge Inman applied United State v. O’Brien, 391 U.S. 367 (1968) to determine that the building rule at issue was more than an incidental burden on speech and instead was a time, place, and manner restriction subject to intermediate First Amendment scrutiny. Judge Inman also concluded, in contrast to her reading of the view in the majority opinion, that the hallway where the defendant was arrested was a designated public forum. Nevertheless, Judge Inman concurred in the ultimate conclusion that the defendant’s constitutional rights were not violated as the building rule was a reasonable time, place, and manner restriction that survived intermediate scrutiny.
Discrepancies between the record and the trial court’s judgments left the basis for revoking the defendant’s probation unclear and required that the judgments be vacated and the case be remanded for further determinations and findings
State v. Whatley, ___ N.C. App. ___, 2021-NCCOA-702 (Dec. 21, 2021). The Court of Appeals vacated the trial court’s judgments revoking the defendant’s probation and activating his suspended sentences imposed in connection with felonies charged in two CRS case numbers – 17 CRS 86913 and 18 CRS 338 – because discrepancies between the record and the judgements left the basis for revocation in both case numbers unclear. The Court likened this case to State v. Sitosky, 238 N.C. App. 558 (2014) because in both cases the trial court marked the boxes on the judgments indicating that the defendants had admitted to all violations alleged in the violation reports when in fact the defendants had not done so. Here, among other inconsistencies, the trial court indicated in its judgments that the defendant had waived his revocation hearing and admitted all alleged violations despite the fact that the record indicated that the defendant did not waive the hearing and expressly denied the alleged violations. The Court discussed other discrepancies in the judgments and the record, including that the trial court appeared to have revoked the defendant’s probation in 17 CRS 86913 on the basis of violating an SRG Agreement that was a valid condition of probation in 18 CRS 338 but was not a valid condition of 17 CRS 86913 as it had not been included in a written order in that case. The Court of Appeals remanded the case to the trial court for further determinations and findings.
To the extent that defense counsel’s admissions in opening statements triggered Harbison, the trial court’s colloquy with the defendant was adequate to ascertain his consent to those admissions
State v. Bryant, ___ N.C. App. ___, 2021-NCCOA-696 (Dec. 21, 2021). Following defense counsel’s opening statements in a Possession with Intent to Sell or Deliver Heroin and Possession of Drug Paraphernalia case where the defendant was indicted as a habitual felon, the State expressed concern that defense counsel had made admissions necessitating a Harbison inquiry. Though defense counsel said “I don’t think we admitted anything,” the trial court held a colloquy where the defendant stated that the arguable admissions were made with his consent. While the transcript did not contain defense counsel’s opening statements, the Court of Appeals concluded there was enough information in the transcript to determine that defense counsel, although he admitted the defendant possessed a baggie of a substance that later would be identified as heroin, had not made a Harbison admission to PWISD Heroin because he did not admit the element that defendant had the intent to sell or deliver the substance. Nevertheless, the Court of Appeals went on to determine that the statements could have been admissions to the lesser included offense of heroin possession or admissions to Possession of Drug Paraphernalia and therefore “possibly triggered Harbison.” Assuming a Harbison inquiry was required, the trial court’s colloquy with the defendant was adequate to ascertain the defendant’s consent to the admissions. The Court also noted that the colloquy was adequate with respect to any admissions defense counsel may have made regarding habitual felon status, a status to which the defendant later pleaded guilty after a voluntariness inquiry.
There was sufficient evidence that the defendant submitted false sex offender registration information to the local sheriff’s office
State v. Lamp, ___ N.C. App. ___, 2021-NCCOA-698 (Dec. 21, 2021). There was sufficient evidence that the defendant submitted false sex offender registration information to the local sheriff’s office where he submitted his address as “1010 Foxcroft Lane, Building 604, Apartment A6” when at the relevant time of 25 June 2019 he was either homeless or possibly living at 1010 Foxcroft Lane, Building 602, Apartment A6. The Court of Appeals explained that evidence before the trial court indicated (1) that on 25 June 2019 the defendant submitted information to the sheriff’s office asserting both that he resided at Building 604 Apartment A6 and was homeless; (2) the same day he was seen at Building 602 Apartment A6; (3) the following day an occupant of Building 604 Apartment A6 told a sheriff’s deputy that the defendant did not live there. The Court held that given these inconsistencies a reasonable juror could have inferred that the defendant willfully misrepresented his address to the sheriff’s office and noted case law establishing that providing an incorrect address on sex offender registration forms constitutes circumstantial evidence of deceptive intent and the mental state of willfulness. In the light most favorable to the State, the evidence was sufficient to go to the jury and the trial court did not err by denying the defendant’s motion to dismiss.
The trial court did not commit plain error by admitting certain testimony about how the death of a murder victim affected the victim’s brother
State v. McCutcheon, ___ N.C. App. ___, 2021-NCCOA-699 (Dec. 21, 2021). In this first-degree murder case, the trial court did not commit plain error under Rules 401 and 402 by admitting testimony from the victim’s brother and the brother’s wife concerning how the victim’s death affected the brother. With regard to the brother’s testimony, the Court of Appeals determined that the testimony satisfied the “low bar of logical relevance” because it rebutted evidence the defendant had elicited from another witness suggesting that the brother had spoken to that witness shortly after the murder and explained why that was unlikely. The testimony also had bearing on the brother’s credibility and allowed the jury to better understand his motives or biases. The testimony of the brother’s wife explaining how the victim’s death had affected him also was relevant because it explained the timeline of the brother’s communication with the other witness and corroborated the brother’s testimony. The Court went on to determine that the defendant failed to preserve certain victim-impact evidence arguments and had failed to show that she was prejudiced by the admission of any of the challenged evidence.
In a first-degree murder and discharging a firearm into an occupied vehicle in operation case, the trial court did not commit reversible error on evidentiary issues and that there was no cumulative error
State v. Thomas, ___ N.C. App. ___, 2021-NCCOA-700 (Dec. 21, 2021). In this first-degree murder and discharging a firearm into an occupied vehicle in operation case, the Court of Appeals determined that the trial court did not commit reversible error on evidentiary issues and that there was no cumulative error. Defendant was jealous of Demesha Warren’s relationship with the victim, Kenneth Covington, and fatally shot Covington while Covington was driving Warren’s car after visiting the store on an evening when he and Warren were watching TV together at her apartment.
(1) Because certain prior statements made by Warren to an investigator correctly reflected her knowledge at the time she made them, the trial court did not err by admitting the statements as past recorded recollections under Rule 803(5). One statement was recorded by the investigator on the night of the murder and the other was an email Warren later provided to the investigator. At trial, Warren remembered speaking with the investigator on the night of the murder and giving him the email but could not remember the content of either communication because of trauma-induced memory loss. While Warren did not testify that the content of the recording correctly reflected her knowledge at the time, she did not disavow it and characterized the content as “what [she] had been through” and “just laying it all out.” This was sufficient for the Court to conclude that Warren was relaying information that reflected her knowledge correctly. As for the email, evidence suggesting that Warren dictated the email and signed and dated it when providing it to the investigator was sufficient to show that it correctly reflected her knowledge at the time.
(2) The trial court did not abuse its discretion in admitting testimony of the State’s expert on gunshot residue (GSR) because the expert followed the State Crime Lab’s procedures as required to meet the reliability requirement of Rule 702(a). The defendant argued that the expert did not follow Lab protocol because the expert analyzed a GSR sample taken from the defendant more than four hours after the shooting. The trial court found, and the Court of Appeals agreed, that the expert actually did follow Lab protocol which permits a sample to be tested beyond the four-hour time limit when the associated GSR information form indicates that collection was delayed because the person from whom the sample was collected was sleeping during the four-hour time window, as was the case here. The Court determined that the defendant failed to preserve another Rule 702(a) argument related to threshold amounts of GSR elements.
(3) The trial court did not abuse its discretion by allowing an investigator to provide lay opinion testimony identifying a car in a surveillance video as the defendant’s car based on its color and sunroof. The Court of Appeals explained that it was unnecessary for the investigator to have firsthand knowledge of the events depicted in the videos to provide the lay opinion identification. Rather, in order to offer an interpretation of the similarities between the depicted car and the defendant’s car, the investigator needed to have firsthand knowledge of the defendant’s car, which he did because he had viewed and examined the car following the shooting.
(4) The trial court erred by admitting testimony from a witness concerning statements Warren had made to the witness describing the defendant confronting Warren about her relationship with the victim and Warren’s belief that the defendant had killed the victim. The trial court admitted the testimony of those statements as non-hearsay corroboration of Warren’s testimony, but this was error because the statements were inconsistent with and contradicted Warren’s testimony. While error, admission of the statements was not prejudicial because the jury heard other admissible evidence that was consistent with the erroneously admitted statements.
(5) The trial court did not err by admitting a witness’s testimony recounting the victim’s statement to the witness that the victim was afraid of the defendant because the defendant had threatened to kill him as a statement of the victim’s then-existing state of mind under Rule 803(3). The fact of the threat explained the victim’s fear and, thus, the statement was “precisely the type of statement by a murder victim expressing fear of the defendant that our Supreme Court has long held admissible under Rule 803(3).”
(6) The trial court erred by admitting evidence that an investigator recovered a .45 caliber bullet from the defendant’s car because the bullet had no connection to the murder, which involved .40 caliber bullets, and therefore was irrelevant under Rules 401 and 402. However, this error did not amount to prejudicial plain error because it “did not draw any connection between Defendant and guns that had not already been drawn.”
(7) Finally, the Court rejected the defendant’s contention that the cumulative effect of the individual errors required a new trial, explaining that “the errors individually had, at most, a miniscule impact on the trial” because the facts underlying the erroneously admitted evidence came in through other means and there was extensive other evidence implicating the defendant in the murder.