This post summarizes published criminal decisions from the North Carolina Court of Appeals released on December 31, 2020. The summaries were prepared by Shea Denning, Jamie Markham, Chris Tyner, Gabrielle Supak, and Jonathan Holbrook. 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.
The trial court erred by denying the defendant’s motion to suppress evidence obtained pursuant to a warrantless search of his residence as part of his post-release supervision.
State v. McCants, ___ N.C. App. ___ (Dec. 31, 2020). In this Guilford County case, the defendant was on post-release supervision (PRS) for a previous felony. The Department of Public Safety deemed him to be a “high-risk offender” and a “validated gang member,” and thus included him in a May 2017 search operation conducted jointly with other state and federal law enforcement agencies. During that operation, officers searched the defendant’s residence and found a firearm in his bedside table, which led to a new criminal charge for possession of firearm by a felon. In response to the new criminal charge the defendant moved to suppress the handgun as the fruit of an illegal warrantless search, arguing that a warrantless search of his residence was unconstitutional under the federal and state constitutions in that it was not authorized by statute or as a matter of consent.
The trial court denied the motion to suppress, but the Court of Appeals reversed, agreeing that a warrantless search of the defendant’s home violated both the federal and state constitutions. The court distinguished Samson v. California, 547 U.S. 843 (2006), a case in which the Supreme Court upheld a warrantless search of a California parolee, limiting the reach of that case to situations in which the supervisee chooses supervision in the community (and its attendant conditions) over imprisonment. In North Carolina, defendants do not choose post-release supervision; to the contrary, by statute they may not refuse it. G.S. 15A-1368.2(b). Moreover, the statutory search condition applicable to post-release supervisees, G.S. 15A-1368.4(e)(10), allows searches only of the supervisee’s person, not of his or her premises. The Court of Appeals next rejected the State’s argument that the search was valid under the “catch-all” provision of G.S. 15A-1368.4(c), which allows the Post-Release Supervision and Parole Commission (the Commission) to impose conditions it believes reasonably necessary to ensure a supervisee will lead a law-abiding life. Applying the rule of statutory construction that the specific controls the general, the court took the existence of a specific statutory search condition for PRS limited to searches of the person as an indication that the General Assembly did not intend to grant the Commission general authority to allow other searches by way of the catch-all provision. The court also noted that related statutes applicable to searches of post-release supervisees who are sex offenders (G.S. 15A-1368.4(b1)), probationers (G.S. 15A-1343(b)(13)), and parolees (G.S. 15A-1374(b)(11)), expressly authorize searches of a defendant’s premises in addition to his or her person. The court viewed the omission of any similar language related to the defendant’s premises in the PRS condition as a demonstration of the General Assembly’s intent to limit the scope of the PRS search condition to searches of a defendant’s person.
Finally, the Court of Appeals agreed with the defendant that he did not voluntarily consent to the search of his residence. The officers who conducted the search informed the defendant that the search was permitted pursuant to the terms of his post-release supervision. However, as noted above, the Commission actually lacked the statutory authority to impose that condition. Under the logic of Bumper v. North Carolina, 391 U.S. 543 (1968), if “consent” to a search is based upon an officer’s belief that the officer has legal authority to conduct the search, but that belief turns out to be mistaken, then the purported consent is not valid. Moreover, as also noted above, the defendant had no statutory right to refuse PRS. The Court of Appeals concluded that the law could not “prejudice Defendant for agreeing to something he had no legal right to refuse.” Slip op. at 64.
In the absence of valid consent or an authorizing statute, the warrantless search was presumptively unreasonable and unconstitutional, and the trial court thus erred by denying the defendant’s motion to suppress the firearm and other evidence found during the search. The Court of Appeals reversed the trial court’s order denying the motion suppress, vacated the judgment entered pursuant to the defendant’s plea, and remanded the matter for additional proceedings.
Trial court did not adequately weigh factors necessary to determine whether the public interest in the checkpoint at which defendant was stopped outweighed its infringement on the defendant’s Fourth Amendment privacy interest.
State v. Cobb, __ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020). The defendant was charged with driving while impaired after being stopped at a checkpoint on Highway 27 in Harnett County. She moved to suppress the evidence on the basis that the checkpoint violated her Fourth Amendment rights. The trial court denied the motion, and the defendant pled guilty preserving her right to appeal the denial of the motion to suppress. She then appealed.
The Court of Appeals, over a dissent, determined that the trial court did not adequately weigh the factors necessary to judge the reasonableness and hence, the constitutionality, of the checkpoint. Those factors are: (1) the gravity of the public concern served by the seizure; (2) the degree to which the seizure advances the public interest; and (3) the severity of the interference with individual liberty. If, on balance, these factors weigh in favor of the public interest, the checkpoint is reasonable and therefore constitutional.
As for the first factor, the Court of Appeals determined that the trial court failed to make findings that assessed the importance of this particular checkpoint stop to the public. While the trial court made ample findings, in the Court’s view, that the checkpoint’s primary purpose (detecting violations of the state’s motor vehicle laws) was lawful, those findings did not substitute for findings that the checkpoint furthered the public concern.
As for the second factor, the Court of Appeals noted that while the trial court made pertinent findings regarding the location of the checkpoint, the time it occurred and its duration, it failed to consider other relevant factors such as whether it “was set up on a whim,” had a predetermined start and end time, why the time was chosen, and why its location was chosen (beyond the finding that it was a major thoroughfare that was heavily traveled at times).
The Court of Appeals determined that the trial court thoroughly considered the final factor; nevertheless, the deficiencies related to the findings on the first two factors prevented it from meaningfully applying the three-prong test.
Finally, the appellate court declined to consider whether the trial court erred in concluding that the checkpoint complied with statutory requirements as that issue was not preserved for review.
Judge Stroud dissented from the majority’s resolution of the constitutional issue, expressing her view that the trial court made findings of fact sufficient to permit appellate review and that it correctly addressed the three prongs of the balancing test. The dissent would have held that the trial court’s findings supported the conclusion that the checkpoint was reasonable.
(1) Trial court erred in denying defendant’s motion to dismiss charge of disorderly conduct when the only evidence of defendant’s interference with the operation of a school and its students was a group of students hearing her use profanity on the way to class; (2) Trial court erred in denying defendant’s motion to dismiss the charge of resisting a public officer as the State failed to present substantial evidence that the defendant did anything more than merely remonstrate or that she acted willfully in purposeful or deliberate violation of the law.
State v. Humphreys, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020). The defendant was charged with disorderly conduct and resisting a public officer based on events that occurred in the parking lot outside her daughter’s high school. A drug sniffing dog alerted to the defendant’s car, which her daughter had driven to the school. The defendant came to the school to observe the search of her vehicle. She remained close to the officers who were conducting the search, used profanity throughout the encounter, and refused to comply with officers’ requests for her to back up and away. The defendant said to a class of students walking through the parking lot on the way to their weightlifting class, “‘[y]ou-all about to see a black woman – an unarmed black woman get shot.’” Slip op. at 3.
While officers were searching the car, the defendant walked out of an officer’s view for about three seconds. She then refused to stand precisely where she was instructed to stand, telling officers, “you can keep an eye on me from right here.” Slip op. at 4. One of the officers asked her, “‘are you refusing to come back here?’” Id. The defendant said, “’I’m not breaking no law.’” Id. The officer then arrested her. The defendant asked what she was being arrested for and told the officers she had broken no law.
At the close of the evidence in her trial for disorderly conduct and resisting an officer, the defendant moved to dismiss the charges for insufficient evidence. The trial court denied the motion, and the defendant was convicted. She appealed.
(1) The Court of Appeals determined that the defendant’s conduct, viewed in the light most favorable to the State, was not disorderly conduct in violation of G.S. 14-288.4(a)(6) as it did not constitute a substantial interference with and disruption and confusion of the operation of the school in its program of instruction and training of its students. Defendant’s behavior did not cause students to be directed around the area of the search — the search alone required that redirection. And the defendant did not disrupt classroom instruction when she spoke to students as they were walking through the parking lot on the way to class. Finally, her use of profanity did not interfere with students by drawing their attention to the commotion; that would have happened anyway given the presence of the police officer and the dog.
The only interference with a school function caused by defendant that the appellate court identified was the class of high school students hearing profanity during their normal walk to class. The Court held that alone did not constitute a substantial interference.
(2) The Court of Appeals held that there was not substantial evidence to show that the defendant resisted, delayed, or obstructed a sheriff’s deputy in discharging his official duties or that she acted willfully and unlawfully. First, the Court noted that merely remonstrating with an officer or criticizing or questioning (in an orderly manner) an officer who is performing his duty does not amount to obstructing or delaying an officer in the performance of his duties. The Court noted that the defendant’s actions and words were not aggressive or suggestive of violence. Instead, she orderly (if loudly) remonstrated by remaining where she could see the officer executing the search. Moreover, the Court concluded that the evidence did not indicate that the defendant stood near her car with a purpose to do so without authority or careless of whether she had the right to stand there. In fact, on the scene, she stated, “‘I’m not breaking no law’” when she was told she needed to return to the deputy and then was arrested. Slip op. at 4. The Court thought it clear that even after the officers asked the defendant to move several times, she believed she had the right to stand and observe the search, so long as the deputy could see her and she was not obstructing the other officer’s search of the vehicle. The Court held that a reasonable mind would not conclude that the evidence supported a finding that the defendant acted purposely and deliberately, indicating a purpose to act whether she had the right or not.
The trial court erred by denying the defendant’s request for a jury instruction on self-defense where, prior to an exchange of gunfire, the defendant brandished a pistol in response to the victim striking him with a piece of lumber.
State v. Stephens, __ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020). In this case where the defendant and his neighbor exchanged gunfire after an argument about the victim’s dogs killing the defendant’s cat, the trial court erred by denying the defendant’s request for a jury instruction on self-defense. In the light most favorable to the defendant, the evidence at trial tended to show that the defendant confronted the victim at the victim’s residence because the victim’s dogs had killed the defendant’s cat and were still at large. During this confrontation, the victim struck the defendant with a piece of lumber, causing the defendant to brandish a pistol he was carrying legally. The defendant did not threaten to use the pistol or point it at the victim. The victim then went inside his residence, retrieved his own pistol, and came back outside firing it at the defendant, who was at that time walking away. The defendant, who was grazed by a bullet, returned fire, striking the victim in the leg. The State argued that the defendant was not entitled to an instruction on self-defense because he was the aggressor by virtue of brandishing his firearm. The court held that a jury could have determined that the defendant was permitted to brandish his firearm, and did not thereby become the aggressor, because he had a reasonable belief it was necessary to protect himself from death or great bodily harm after the victim struck him with the lumber. Consequently, it was reversible error for the trial court to deny the defendant’s request for a self-defense jury instruction.
The court went on to determine that even assuming for argument that the defendant was the initial aggressor by virtue of brandishing his firearm, he regained the right to use force in self-defense when the victim reemerged from the residence and fired on him as the defendant was in the process of walking away from the residence towards his vehicle to leave. The court explained that walking away and towards his vehicle clearly announced the defendant’s intention to withdraw from the encounter.
Judge Tyson fully concurred with the majority opinion but wrote separately to address additional issues the defendant raised on appeal but that the majority did not reach. Those additional issues were: (1) whether the trial court erred by limiting the defendant’s cross-examination about the victim’s prior felony conviction and his possession of a firearm; (2) whether the trial court erred in preventing inquiry into an agreement between the State and the victim in exchange for his testimony; (3) whether the trial court erred by preventing the defendant from testifying about an after-the-fact reconciliation with the victim.
The trial court erred by denying the defendant’s motion to suppress evidence seized during a search of his person that occurred while the defendant was not an “occupant” of premises subject to a search warrant.
State v. Tripp, __ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020). The defendant in this drug case moved to suppress evidence discovered on his person by a law enforcement officer who was part of a team of officers executing a search warrant at the defendant’s residence. At the time of the execution of the warrant, the defendant, who the day before had sold heroin to a confidential informant at the subject premises, was standing outside his grandfather’s home situated roughly 60 yards away. Upon arriving to execute the search warrant, the officer noticed the defendant outside his grandfather’s home, approached him, and ordered him to submit to a pat-down where the officer discovered fentanyl in his pants pocket. Analyzing the propriety of the seizure of the defendant under both Michigan v. Summers and Terry v. Ohio, the court determined that the seizure was illegal.
The court explained that under Michigan v. Summers and related North Carolina cases including State v. Wilson, 371 N.C. 920 (2018), “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain (1) the occupants, (2) who are within the immediate vicinity of the premises to be searched, and (3) who are present during the execution of a search warrant.” Relying on reasoning from State v. Thompson, 267 N.C. App. 101 (2019) that a person is an “occupant” of premises for purposes of Summers when he or she poses a real threat to the safe and efficient execution of the search, the court concluded that the defendant, who was “simply leaning up against the rail” outside his grandfather’s house and “did not take any action to raise any suspicion of criminal activity on his part” did not pose such a threat and therefore was not at that time an “occupant” of the premises subject to the search warrant.
The court then determined, largely because the particular officer who seized the defendant was unaware of the defendant’s sale of heroin to the confidential informant, that there was no basis for the officer to seize the defendant under Terry v. Ohio and that the inevitable discovery doctrine was inapplicable. Finally, the court remanded the case to the trial court to correct clerical errors arising from judgment forms that were inconsistent with the sentence rendered orally in open court.
Judge Stroud dissented, expressing the view that the trial court correctly denied the defendant’s motion to dismiss because the defendant, due to his proximity to the premises and criminal history which involved possession of firearms, posed a real threat to the safe and efficient execution of the search warrant and thus was an “occupant” of the premises within the meaning of Summers. Judge Stroud also would have found the frisk of the defendant to be valid under Terry and the confiscation of the drugs on his person to be supported by the plain view doctrine.
Denial of a domestic violence protective order for plaintiff, based solely on the fact that she and defendant were in a same-sex dating relationship and therefore excluded by the terms of G.S. 50B-1(b)(6), violated her due process and equal protection rights.
M.E. v. T.J., __ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020). The plaintiff and defendant were in a same-sex dating relationship, and when it ended M.E. sought a domestic violence protective order against T.J. The plaintiff alleged that the defendant had engaged in harassment and threatening conduct, and had access to firearms. At a hearing on the requested order, the trial court concluded that it could not enter a 50B protective order because the “allegations are significant but parties are in same sex relationship and have never lived together, therefore do not have relationship required” under the statute. The parties’ relationship fell outside the scope of the statute because “pursuant to the definitions in N.C.G.S. § 50B-1, violence against a person with whom the perpetrator either is, or has been, in a ‘dating relationship’ is not ‘domestic violence,’ no matter how severe the abuse, unless the perpetrator of the violence and the victim of the violence ‘[a]re persons of the opposite sex[.]’ N.C.G.S. § 50B-1(b)(6).” The trial court entered a civil no-contact order pursuant to Chapter 50C instead, and the plaintiff appealed.
The Attorney General’s office and several non-profit groups filed amicus curiae briefs in support of the petitioner, and neither the defendant nor any other parties filed a brief on defendant’s behalf, so the appellate court appointed an amicus curiae to file a brief in response to the plaintiff’s argument. Noting that the trial court would have held that the allegations supported the entry of a 50B order if not for the fact that petitioner and defendant were the same sex, the plaintiff argued that “the trial court’s denial of her request for a DVPO violated constitutional rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, as well as the associated provisions of the North Carolina Constitution.” The plaintiff made an as-applied constitutional challenge, but the appellate court observed that its ruling would apply to any other similarly situated applicants. Noting the “ambiguity surrounding the appropriate test to apply in LGBTQ+ based Fourteenth Amendment cases” in the wake of recent cases including Obergefell v. Hodges, 576 U.S. 644 (2015), the Court of Appeals reviewed plaintiff’s claim under several alternative levels of review, but ultimately held that “no matter the review applied, N.C.G.S. § 50B-1(b)(6) does not survive Plaintiff’s due process and equal protection challenges under either the North Carolina Constitution or the Constitution of the United States.”
First, the appellate court applied the traditional scrutiny framework (rational basis, intermediate scrutiny, or strict scrutiny) to evaluate the plaintiff’s due process and equal protection claims under the state constitution and the Fourteenth Amendment. Pursuant to Obergefell and other precedent, “any member of the LGBTQ+ community has the same rights and freedoms to make personal decisions about dating, intimacy, and marriage as any non-LGBTQ+ individual.” A statute impinging on those liberties on the basis of sex or gender must pass a higher level of scrutiny (“at least” intermediate). Since excluding the plaintiff from the protections of the statute served no legitimate government interest, and was in fact contrary to the broader statutory purpose of protecting all victims of domestic violence, “N.C.G.S. § 50B-1(b)(6) is unconstitutional as-applied to Plaintiff and those similarly situated” under the state constitution, and “cannot survive even the lowest level of scrutiny.” Turning to the Fourteenth Amendment, the court likewise held that the statute did not pass constitutional muster. Plaintiff’s rights and interests were “were identical in every way to those of any other woman in an ‘opposite sex’ relationship” yet she and others similarly situated “are intentionally denied, by the State, the same protections against the domestic violence that may occur after a ‘break-up’” based solely upon sex or membership in a particular class. The court held that the opposite-sex requirement in G.S. 50B-1(b)(6) failed the higher scrutiny test because it was an arbitrary distinction that bore no reasonable or just relation to the classification of protected individuals. The court again noted that the statute would not pass even the lower level of rational basis scrutiny, since there was no cognizable government interest that such a restriction would serve.
Next, reviewing U.S. Supreme Court precedent that culminated in Obergefell, the appellate court found that the cases have “labored to determine the correct standards to apply in the face of government action that had a discriminatory effect on members of the LGBTQ+ community,” resulting in an alternative approach described as a “full Fourteenth Amendment review” that “does not readily fit within the ‘rational basis,’ ‘intermediate scrutiny,’ or ‘strict scrutiny’ triad.” This hybrid approach involves three considerations: (1) the government’s clear intent in passing the law; (2) the impact of majority opposition becoming law and policy, and the consequence it has on those whose liberty is denied; and (3) the particular harms inflicted on same-sex individuals, couples, or families. More specifically, courts must view laws that deny rights to LGBTQ+ individuals as initially suspect, and consider factors such as the state’s actual intent in passing the law, the particular harms suffered by affected individuals, the long history of disapproval of LGBTQ+ relationships, and the injury caused by state action which singles out and stigmatizes those individuals. Those factors are then weighed against any legitimate interest advanced by the law, considering the particular facts and context. Applying those factors and relevant precedent to the present case, the court held that “N.C.G.S. § 50B-1(b)(6) does not survive this balancing test” given the plain language of the statute denying protections to similarly situated people based on sex or gender.
The majority opinion closed by addressing issues related to its appointment of amicus curiae to brief a response to the plaintiff’s appeal. Due to public interest and the potential impact of the decision, as well as the fact that no brief was filed by or on behalf of the defendant, the court appointed an amicus curiae to “defend the ruling of the trial court” and provide the court with the benefit of an opposing view on the constitutionality of the statute. However, the court clarified that an appointed amicus curiae has a limited role under the appellate rules, and does not have the same standing as the original party. As a result, the additional arguments raised by the amicus on behalf of the defendant challenging the court’s jurisdiction and seeking to amend the record on appeal were dismissed as a nullity.
The trial court’s order denying the plaintiff a 50B protective order was reversed and remanded for entry of an appropriate order. The trial court was instructed to apply G.S. 50B-1(b)(6) as stating: “Are persons who are in a dating relationship or have been in a dating relationship.” The court’s ruling applies to any other similarly situated person who seeks a 50B protective order, and the same-sex or opposite-sex nature of the relationship shall not be a factor in the decision to grant or deny the order.
Judge Tyson dissented, and would have held that the appellate court lacked jurisdiction to decide the matter based on the plaintiff’s dismissal of the original 50B complaint, as well as her failure to argue and preserve the constitutional issues, join necessary parties, and comply with other procedural and appellate rules.
(1) The defendant failed to show that the use of the word “disclosure” by the expert witness was used to vouch for truthfulness and thus plain error; (2) Lifetime satellite-based monitoring (SBM) was unconstitutional.
State v. Robinson, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020). The defendant appealed from his convictions for first degree rape, first degree sexual offense, and taking indecent liberties with a child. The defendant also challenged a civil order requiring lifetime SBM. Defendant was charged with first degree rape of a child, first degree sex offense with a child, and taking indecent liberties with a child that allegedly occurred in 2007 or 2008. The victim told no one about what had happened to her until June 2017, when she was asked if she had ever been raped during the intake process for juvenile justice. The defendant was found guilty of all charges and sentenced to 240-297 months. Following release, the defendant would be required to register as a sex offender for life and to enroll in SBM for life.
(1) The defendant first argued that the trial court committed plain error by allowing that state’s expert witness, who conducted a forensic interview of the victim, to describe the victim’s claim that she was raped as a “disclosure,” and if this vouching for truthfulness had not occurred, then the victim would have been a less credible witness. The court of appeals first noted that the defendant did not object to the use of the word “disclosure” at trial and therefore his argument is reviewed for plain error.
The court explained that North Carolina case law makes it clear that experts cannot vouch for a child sexual abuse victim’s credibility when there is no evidence of physical abuse. The defendant argued the dictionary definition of disclose is “to make known (as information previously kept secret).” Slip op. at 4. The court acknowledged that the word may have that connotation at times, but its use must be considered in the specific context of the evidence in this case. After examining the testimony of the expert, the court determined that the use of the word “disclose” during the testimony “simply does not have the connotation of exposing a previously hidden truth as argued by [d]efendant.” Slip op. at 5. The court came to this conclusion because in this context the “use of the word ‘disclosure’ was simply as part of the description of the interview method and was not “vouching” for the truth of what an alleged victim reveals. Slip op. at 7.
(2) The court of appeals next noted that the defendant had waived his right to argue constitutional issues on appeal because no objection on constitutional grounds was made by defendant’s trial counsel and no notice of appeal was given from the SBM order. However, the court of appeals determined that because a substantial right of the defendant was affected, it was appropriate for the court to invoke Rule 2 to prevent a manifest injustice and thus review the constitutionality of the SBM order. Id. at 15.
The defendant argued that the trial court erred in ordering lifetime SBM because the state presented no evidence that lifetime SBM was a reasonable Fourth Amendment search of the defendant. The court reviewed the issue de novo and under the Grady III framework. The framework involves “reviewing Defendant’s privacy interests and the nature of SBM’s intrusion into them before balancing those factors against the State’s interests in monitoring Defendant and the effectiveness of SBM in addressing those concerns.” Id. at 16. The court of appeals found that the state presented no evidence showing how the lifetime SBM would reduce recidivism and therefore, the state “failed to meet its burden of establishing that lifetime satellite-based monitoring following [d]efendant’s eventual release from prison is a reasonable search in [d]efendant’s case.” Slip op. at 19.
(1) The state failed to meet its burden of establishing that lifetime satellite-based monitoring (SBM) of the defendant following the defendant’s release from prison is a reasonable search because the state did not present any evidence that a legitimate state interest would be served by requiring lifetime SBM of the defendant; (2) It was error for the trial court to assess duplicative court costs because all of the defendant’s charges arose from the same event.
State v. Perez, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020). The defendant appealed from judgments entered upon his guilty pleas to second-degree rape and forcible sex offenses, second-degree kidnapping, assault on female, assault by strangulation, obstruction of justice, and intimidating a witness. The defendant appealed by writ of certiorari both the trial court’s imposition of lifetime SBM and the trial court’s imposition of duplicative court costs.
First, the Court of Appeals had to decide whether the defendant’s writs of certiorari properly conferred jurisdiction to the court. The defendant gave oral notice of appeal at his sex offender registration hearing, however he did not
