This post summarizes published criminal decisions from the North Carolina Court of Appeals released on February 2, 2021. Gabrielle Supak and Jamie Markham prepared these summaries. As always, they will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
Double jeopardy barred retrying the defendant when his first trial ended in a mistrial that was not justified by manifest necessity.
State v. Grays, ___ N.C. App. ___, ___ S.E.2d ___ (Feb. 2, 2021). In this Bertie County case, the defendant was charged with first-degree murder and felony possession of a weapon by a prisoner for an alleged fight at Bertie Correctional Institution that left another inmate dead. After court adjourned on the first day of the defendant’s trial, one of the State’s witnesses, the prison’s assistant superintendent, told the prosecutor for the first time that the defendant’s blood-stained clothes from the day of the alleged incident were at the prison and had never been turned over to law enforcement. (The prosecutor was clearly frustrated by the oversight and the trial judge called it “ridiculous.”) The next morning, the State moved for a mistrial, arguing that it would be unfair to proceed with the trial without first testing the evidence, because it could be either corroborative or exculpatory depending what DNA testing showed. After a hearing on the issue, the trial court granted the State’s motion, concluding as a matter of law that “it is in the public’s interest in a fair trial” to enter a mistrial and give the SBI time to test the clothing. Almost 3 years later the case came on for a second trial before a different judge. That judge denied the defendant’s motions to dismiss both charges on double jeopardy grounds. The defendant was convicted of possession of a weapon by a prisoner, but the jury deadlocked on first-degree murder, resulting in another mistrial on that charge. On appellate review, the Court of Appeals concluded that the second trial judge erred by denying the defendant’s motion to dismiss on double jeopardy grounds. To grant the motion, the appellate court said, would have required a showing that the first mistrial had been properly entered for “manifest necessity.” Manifest necessity can be based on physical necessity (like when a juror falls ill), or the necessity of doing justice (like when there is evidence of jury tampering). Here, the court concluded, there was no evidence of physical necessity or misconduct by any party—just new evidence that was already in the possession of State officials, but of which the prosecution was unaware. Because the State bore the risk of proceeding to trial based on an incomplete investigation of evidence already in its possession, there was no manifest necessity justifying the mistrial in the first case. Jeopardy therefore attached and barred the State from further prosecuting the defendant. The Court of Appeals vacated the weapon possession conviction and remanded the case for dismissal of both charges.
(1) The trial court erred in finding the out-of-state offenses were substantially similar to North Carolina misdemeanors without comparing the elements of each statute. (2) The trial court erred in assigning attorney’s fees without providing the defendant notice and the opportunity to be heard.
State v. Black, ___ N.C. App. ___, ___ S.E.2d ___ (Feb. 2, 2021). (1) In this Buncombe County case, the State prepared the defendant’s prior record level worksheet and calculated that the defendant had fourteen prior record points based on ten out-of-state felony and misdemeanor convictions. The defendant and her counsel stipulated to these prior convictions by signing the sentencing worksheet. At the plea hearing, the state provided “the trial court with copies of each out-of-state misdemeanor statute as evidence that the offenses were ‘substantially similar’ to a North Carolina offense to support their classification as Class 1 misdemeanors.” Slip op. at ¶ 5. Upon accepting the copies, the trial court did not review them further, and only asked the defendant’s counsel whether they objected to the trial court finding that the out-of-state misdemeanors were of similar status in North Carolina. The defendant’s counsel did not respond because of an interruption by the prosecutor, but following the interruption, the defendant and her counsel agreed to “14 prior record points and a prior record level, therefore, of five for felony sentencing purposes.” Id. at ¶ 5.
On appeal, the defendant claimed that the trial court erred by failing to consider whether each conviction was substantially similar to any North Carolina Class A1 or Class 1 misdemeanor, and thus miscalculated her prior sentencing points. The Court of Appeals agreed that the trial court may not accept a stipulation that an out-of-state conviction is “substantially similar” to a particular North Carolina felony or misdemeanor. Instead, the trial court must compare the elements of the out-of-state statute with the elements of the North Carolina statute to determine as a matter of law whether they are substantially similar. The Court of Appeals remanded the case for resentencing.
(2) Prior to sentencing, the defendant’s counsel told the trial court that they were appointed, their hours on the case, and that it totaled to $990 in attorney’s fees. The trial court did not, however, ask the defendant herself about the attorney’s hours or fees. Under State v. Friend, 257 N.C. App. 516 (2018), indigent defendants have a right to notice and the opportunity to be heard before civil judgments are entered against them for court-appointed attorney’s fees. The trial court did not offer the defendant an opportunity to be heard and thus erred. The Court of Appeals vacated the imposed civil judgment for attorney’s fees.