Case Summaries: N.C. Court of Appeals (Feb. 1, 2022)

This post summarizes criminal decisions from the North Carolina Court of Appeals published on February 1, 2022. 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) A general objection with no request for a voir dire does not preserve the defendant’s right to appellate review of a motion to suppress. (2) The trial court did not err by denying codefendants’ motions to dismiss when, viewed in the light most favorable to the State, there was substantial evidence of each element of the charges. (3) A defendant’s motion for judgment notwithstanding the verdict was not preserved for appellate review when trial counsel did not state the specific grounds for the motion.

State v. Draughon, 2022-NCCOA-58, ___ N.C. App.  ___, ___ S.E.2d ___ (Feb. 1, 2022). In this Hoke County case, defendant Stanley Draughon was found guilty by a jury of assault with a deadly weapon with the intent to kill inflicting serious injury (AWDWIKISI) and conspiracy to commit AWDWIKISI, and defendant Phyllis Mull was found guilty of conspiracy to commit AWDWIKISI. The charges arose from an incident in which Draughon and an unidentified man beat a victim, McBryde, with an object and tased him, breaking several bones in his arms and legs, among other injuries. At trial, Draughon’s lawyer objected to the State’s questioning related to Draughon’s cell phone, which had been seized from the vehicle of the person who drove Draughon to the sheriff’s office to turn himself in. Evidence from the phone indicated that Draughon and Mull had exchanged many text messages and calls. Additional testimony indicated that Mull wound up in possession of a box cutter that McBryde typically carried and had used in self-defense when he was assaulted.

(1) On appeal, Draughon argued that the evidence related to his cell phone should have been suppressed. The Court of Appeals disagreed, concluding that Draughon’s lawyer made only a general objection to the evidence at trial without specifying that he was making a motion to suppress or requesting a voir dire, as required by G.S. 15A-977. As a result, the defendant waived appellate review of the issue.

(2) Defendant Draughon also challenged the trial court’s denial of his motion to dismiss the conspiracy to commit AWDWIKISI charge at the close of the State’s evidence and at the close of all evidence. The Court of Appeals disagreed, concluding that, viewed in the light most favorable to the State, there was sufficient evidence of each element of the conspiracy charge. The numerous calls and texts between Draughon and Mull reflected that they had a relationship, and the facts that Mull was standing behind Draughon when he assaulted McBryde and that Mull wound up with McBryde’s box cutter constituted substantial evidence that Draughon had conspired to assault McBryde. Defendant Mull likewise argued that the trial court erred by denying her motion to dismiss. Again, the Court of Appeals disagreed, citing evidence indicating that Mull had agreed to invite Draughon and the other assailant into her house so they could wait for McBryde to assault him.

(3) Finally, the Court of Appeals concluded that Defendant Mull’s argument regarding the trial court’s denial of her motion for judgment notwithstanding the verdict was not preserved for appeal, because her trial lawyer did not state the basis for the motion. The Court went on to decline Mull’s request to invoke Rule 2 of the Rules of Appellate Procedure to consider the issue, reasoning that Mull’s not guilty verdict on her AWDWIKISI charge was neither contradictory to nor mutually exclusive with her conviction for conspiracy to commit AWDWIKISI, as the conspiracy was complete when there was a meeting of minds between the conspirators, without any requirement for an overt act.

The defendant was not prejudiced by any error related to the exclusion of evidence from the victim’s cell phone when there was not, in light of the other evidence, a reasonable possibility that the jury would have reached a different result had the evidence been admitted.

State v. McKoy, 2022-NCCOA-60, ___ N.C. App. ___, ___ S.E.2d ___ (Feb. 1, 2022). In this Durham County case, the defendant was found guilty by a jury of voluntary manslaughter. The charge arose out of the defendant’s shooting of Augustus Brandon, a long-time acquaintance that the defendant generally tried to avoid because of his perceived criminal and gang activity. In December 2016, the defendant was driving when he saw Brandon drive past him. Brandon turned his car around, followed the defendant, pulled in front of him, and then stopped his car in front of the defendant’s. When Brandon began approaching the defendant’s car, which had become stuck in a ditch, the defendant “just panicked” and fired his semi-automatic rifle three times, hitting Brandon once in the back and once in the back of the head, killing him. Mr. Brandon was unarmed. At trial, the jury was instructed on first-degree murder, second-degree murder, and voluntary manslaughter. The jury returned a verdict of voluntary manslaughter.

On appeal, the defendant argued that the trial court erred by granting the State’s motion in limine regarding text messages and photographs on the victim’s cell phone. The State had asserted that the evidence—which pertained to the victim’s past violent acts and ownership and use of guns—would be more prejudicial than probative because specific acts of conduct are impermissible to prove a victim’s propensity for violence. The defendant argued that the State had opened the door to admission of the cell-phone evidence by introducing testimony about Brandon’s personality through his parents’ testimony, and that the evidence was admissible to impeach the victim’s father’s testimony that he did not previously know his son had possessed a gun.

The Court of Appeals concluded over a dissent that even if the cell-phone evidence was excluded in error, any error would not be sufficiently prejudicial to warrant a new trial, because the defendant did not show a reasonable possibility that a different result would have been reached had the error not occurred. Other admissible evidence supported the defendant’s theory of self-defense, including the defendant’s own testimony about Brandon’s reputation for “gang bang[ing] and tot[ing] guns,” a previous incident in which Brandon showed the defendant a video of himself shooting a gun, and the fact that he was “terrified” at the time of the shooting. ¶ 23. Additionally, the evidence showed that even if the defendant was honestly in fear for his life, the degree of force he used was more than reasonably necessary—Brandon was unarmed and running away from the defendant when he was shot, and the defendant testified that he never saw Brandon holding a gun that day. In the absence of prejudicial error, the defendant’s conviction stood.

Judge Tyson dissented to say that he would have concluded that the State opened the door to the admission of the photos and texts from the victim’s phone when it introduced testimony from Brandon’s parents about his lack of guns and reputation for peacefulness and being a “happy guy.” The exclusion of that evidence, he argued, prejudiced the defendant’s right to present his defense by easing the State’s burden of proving that the defendant used unreasonable force.

(1) There was sufficient evidence of premeditation and deliberation. (2) The trial court did not err by failing to instruct the jury on automatism. (3) The trial court did not err by failing to intervene in the State’s questioning of prospective jurors when the State’s questions did not inappropriately stake jurors out. (4) The trial court did not err by failing to intervene during closing arguments when the State’s comments were not improper.

State v. King, 2022-NCCOA-59, ___ N.C. App. ___, ___ S.E.2d ___ (Feb. 1, 2022). In this Burke County case, the defendant appealed after he was found guilty by a jury of first-degree murder. The case arose out of an altercation between the defendant and his apartment neighbor, Hubert Hunter, Jr. After Hunter was found dead in his own apartment, a maintenance worker found a plastic bag containing bloodstained clothing and a kitchen knife in a dumpster behind the apartment building. DNA on the knife matched the victim and DNA on the clothing matched the defendant. A medical examination of the victim showed that he had three stabbing and slashing wounds to his neck, one of which was deep enough to fracture his spine, as well as hemorrhaging of blood vessels indicating that the ultimate cause of death was strangulation. Law enforcement interviewed the defendant multiple times. He first denied fighting with Hunter, but later said that he had gone to Hunter’s apartment to collect $3 Hunter owed him, which led to a fight in which the victim “pulled a knife.” The defendant admitted to choking the victim as they wrestled in an attempt to make him pass out and stop fighting, but said that he was struggling in self-defense after the victim grabbed the knife and that any stabbing was incidental. The defendant also claimed that he himself passed out during the struggle. The defendant was convicted of first-degree murder and appealed.

(1) The defendant first argued that the trial court erred by denying his motion to dismiss based on insufficient evidence of premeditation and deliberation. Viewing the evidence in the light most favorable to the State, the Court of Appeals concluded that the trial court did not err in dismissing the motion. The evidence showed the defendant threatened the victim, beat him severely, did not seek medical assistance after the fight, and attempted to cover up the killing by disposing of his bloodied clothes and the knife. The Court rejected the defendant’s contention that his own black out undermined the State’s theory of premeditation and deliberation and instead showed he acted in a state of passion; other evidence sufficed to submit the issue to the jury, and it was for them to weigh the evidence presented.

(2) The defendant next argued that the trial court committed plain error by failing to instruct the jury on the defense of automatism in light of the defendant’s statement that he blacked out during the altercation with the victim. The Court of Appeals disagreed, noting that the only evidence of the defendant blacking out came from his own self-serving statements, which, moreover, were contradicted by his other statements and general ability to recall the details of the fight. Because the defendant’s statements about blacking out were insufficient to satisfy a reasonable jury that he lacked consciousness, the trial court did not plainly err by failing to give the instruction.

(3) Next, the defendant argued that the trial court erred by failing to intervene ex mero motu in the State’s questioning of prospective jurors. The State’s questions included hypothetical questions like “If you were in fear for your life and had a weapon, would you defend yourself or would you run away?” The Court of Appeals concluded that the trial court did not abuse its discretion in failing to intervene because the State’s questions did not stake jurors out by asking them to consider specific circumstances and forecast their ultimate verdict.

(4) Finally, the defendant argued that the trial court erred by not intervening ex mero motu during closing arguments when the State claimed that the defendant, not the victim, handled the knife, thereby misleading the jury on the central issue of self-defense. The Court of Appeals disagreed, concluding that trial court did not err when the State’s arguments drew reasonable inferences from the evidence and did not rely on evidence outside the trial record.

Having rejected each of the defendant’s arguments, the Court concluded that the defendant’s trial was free from error.

The trial court’s findings of fact in a contempt proceeding were not supported by the evidence.

State v. Robinson, 2022-NCCOA-61, ___ N.C. App. ___, ___ S.E.2d ___ (2022). In this Gaston County case, the defendant was summarily found in direct criminal contempt by a magistrate. The contempt order arose out of a situation where the defendant came to the magistrate’s office to report a death threat she had received on her cell phone. The magistrate declined to look at the phone because cell phones were not permitted in the courtroom. The magistrate then told the defendant “that she needed to leave and take the cell phone out or [he] would hold her in contempt.” ¶ 5. The magistrate sat in silence for two or three minutes while the defendant repeated her claim, and then shut the blinds to the magistrate’s window, saying “we’re finished.” Id. The defendant left and made it to her car, but by that point the magistrate had informed the sheriff’s office that he was holding the defendant in contempt. Officers returned the defendant to the courtroom where the magistrate, without any additional proceedings, passed the contempt order through the window and gave it to the defendant. On appeal, the superior court found, among other things, that the magistrate told the defendant “that she was going to have to leave the courtroom and stop arguing with him, or he would hold her in contempt of court.” ¶ 8. The superior court concluded that the magistrate twice gave the defendant summary notice of the contempt charge and the conduct on which it was based, and then gave the defendant an opportunity to respond. The superior court entered an order holding the defendant in contempt and sentenced her to 48 hours of time already served.

On appeal to the Court of Appeals, the defendant argued that some of the trial judge’s findings of fact were not supported by the evidence. The Court of Appeals agreed, concluding that the evidence did not support the finding that the magistrate told the defendant to stop arguing with him. Rather, the magistrate told the defendant to leave the courtroom on account of the phone, and did not say anything further before ultimately closing the window blinds. Additionally, the Court concluded that there was insufficient evidence to support the trial court’s finding that the defendant continued to argue with the magistrate in response to being given notice that she would be held in contempt. To the contrary, the magistrate’s own testimony indicated that the defendant was repeating her claim about the underlying death threat, not arguing with the magistrate’s contempt warning.

The Court went on to note that the superior court appeared to be reviewing validity of the proceedings leading up to the magistrate’s order rather than conducting a de novo review. Moreover, the Court noted that summary contempt proceedings by the magistrate were not appropriate in any event where the contempt was not imposed substantially contemporaneously with the offending acts. Here, the magistrate effectively closed court by closing the window blinds and did not actually hold the defendant in summary contempt until she had left the courtroom for her car. Once court was closed, there was no proceeding to be delayed or disrupted, and summary contempt proceedings were therefore inappropriate.

The Court reversed the trial court’s order.