This post summarizes published criminal opinions from the North Carolina Court of Appeals decided yesterday, Jan. 7, 2020.
Where defendant did not stipulate to her prior record level and the State presented no evidence beyond the prior record level worksheet, the State did not meet its burden of proving the defendant’s record level
State v. Braswell, ___ N.C. App. ___; ___ S.E.2d ___ (Jan. 7, 2020). The defendant pled guilty to various offenses in Wilson County and the State offered a prior record level (“PRL”) worksheet alleging 12 points, making her a Level IV for felony sentencing purposes. The defendant did not expressly stipulate to the prior convictions and neither she nor her attorney signed the worksheet. The trial court sentenced the defendant as a record level IV without objection. The court then adjourned immediately without asking the parties if they wished to be heard. The defendant appealed, complaining that the State failed to prove her prior record level by a preponderance of the evidence. The Court of Appeals granted certiorari and reversed.
While the defendant did not object at sentencing, an error in prior record level calculation is automatically preserved under G.S. 15A-1444(a2)(1). A bare prior record level worksheet is insufficient to establish the defendant’s criminal record by a preponderance of the evidence, but “an explicit stipulation is not necessary for the State to carry its burden.” Slip op. at 6. The court reviewed precedent regarding when and how the State meets its burden to prove prior record level. Where the defendant’s counsel acknowledged the worksheet and directed the court’s attention to it during sentencing, those acts were deemed a stipulation to the accuracy of the PRL worksheet. State v. Alexander, 359 N.C. 824 (2005). “[A] stipulation need not follow any particular form, [but] its terms must be definite and certain.” Slip op. at 6. Silence can be deemed a stipulation if the trial court or prosecutor states the alleged record level and the defense is clearly given an opportunity to object but fails to do so. On the other hand, where the defendant is not clearly given an opportunity to object and does not otherwise acknowledge the PRL, “[n]either defense counsel’s lack of objection . . . nor the PRL worksheet, alone or in combination, is sufficient to meet the State’s burden.” Id. at 8.
Here, there was no stipulation and counsel did not have an opportunity to object to the record level. That the defendant had signed a plea transcript with a notation “IV” under the “Pun. Cl.” (punishment class) column on the plea transcript next to a list of the offenses to which she was pleading did not amount to a stipulation.
[I]t was the State’s burden to prove by a preponderance of the evidence that these roman numerals on the plea transcript indicated that Defendant stipulated to the sentencing level, and we cannot find here that this ambiguous evidence amounts to a ‘definite and certain’ stipulation, as required. Id. at 10.
Similarly, a reference by the defendant to her “criminal record” during the plea colloquy did not rise to the level of a stipulation. The State therefore failed to meet its burden and the matter was vacated and remanded for resentencing.
Judge Tyson would have denied the defendant’s petition for certiorari, finding no merit to the defendant’s arguments on appeal.
(1) Sufficiency arguments not made in the trial court were waived on appeal; (2) Defendant did not receive ineffective assistance of counsel based on waived sufficiency argument; (3) No error for court to instruct jury on the defendant’s false and contradictory statements under the facts
State v. Carter, ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 7, 2020). In this Duplin County case, the defendant was convicted by a jury of financial card fraud, obtaining property by false pretenses, identity theft, and habitual felon. She appealed, arguing that her motion to dismiss for insufficiency of the evidence should have been granted as to the identity theft and that she received ineffective assistance of counsel. The Court of Appeals unanimously affirmed. (1) The evidence showed that the defendant used the credit cards of two other people to make purchases for herself, representing herself as the owner of the cards. The defendant eventually admitted to police that she used the credit cards and provided a full written confession. At the close of evidence, the defendant asked the trial court to dismiss two (of six) counts of identity theft regarding Victim #1 based on a lack of proof that the defendant acted without that victim’s permission. On appeal, the defendant challenged all six identity theft convictions, contending that there was no evidence she meant to represent herself as the two victims. This was a different argument than the one made to the trial court and was not preserved under State v. Walker, 252 N.C. App. 409 (2017) (holding that, without a “global” motion to dismiss, sufficiency arguments not raised in the trial court are waived on appeal).
Defendant failed to preserve any argument as to the four charges of identity theft pertaining to [Victim #2]. Likewise, the defendant failed to preserve the specific argument—that there was insufficient evidence that Defendant intended to represent that she was [Victim #1]. We thus decline to reach the merits of her argument. Slip op. at 7.
The court declined to invoke its discretionary authority under Rule 2 of the Appellate Rules of Procedure to consider the unpreserved arguments.
(2) The defendant argued that she received ineffective assistance of counsel based on her trial lawyer’s failure to preserve the above issues, arguing that the motion to dismiss for insufficiency would have been granted if had her trial lawyer made the argument. While ineffective assistance claims should normally be litigated through a motion for appropriate relief, here, the “cold record” was sufficient to allow appellate review of the claim. The defendant’s argument that the State failed to present evidence that she represented herself as the victims was meritless under State v. Jones, 367 N.C. 299, 304 (2014) (rejecting interpretation of identity theft statute to require use of the victim’s name, which would cause “absurd” results). The defendant’s use of the victims’ credit card numbers was sufficient “identifying information” under the statute and it was not error for defense counsel to fail to make this argument. The defendant did not therefore receive ineffective assistance of counsel.
(3) The trial court instructed the jury on false or conflicting statements of the defendant under N.C. P. I.—Crim. 105.21. The defendant originally told police that an ex-boyfriend was responsible for the fraud before later admitting to the conduct. On appeal, she argued that this instruction to the jury prejudiced her trial by impugning her character. The court disagreed.
[This] instruction is proper not only where defendant’s own statements contradict each other but also where the defendant’s statements flatly contradict relevant evidence. The instruction is inappropriate if it fails to make clear to the jury that the falsehood does not create a presumption of guilt. Id. at 15.
The statements of the defendant to law enforcement were contradictory and conflicting, “tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [her]self.” Id. at 17. The instruction was given in accordance with the considerable warnings in the commentary to that pattern instruction, was supported by the evidence, and was therefore proper under these facts.
Where defendant elicited challenged testimony, any error was invited and appellate review of the issue was waived
State v. Crane, ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 7, 2020). The defendant was convicted of impaired driving in Macon County and appealed. The defendant was driving a moped and collided with a car. A trooper responded, investigating and preparing a crash report (and later charging the defendant). At trial, the trooper testified during cross-examination by the defense about his investigation into the accident, recounting his impression of when and how the crash occurred without objection. The defendant complained on appeal that this testimony amounted to improper lay opinion since the trooper did not see the accident occur and was not tendered as an expert. Because no objection was made at trial, the defendant claimed plain error. The State argued that the defendant invited any error, and the Court of Appeals agreed. “Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law.” Slip. op. at 4 (citations omitted). Because this testimony was elicited by the defendant, any appellate review of the issue (including plain error review) was waived. The trial court was therefore unanimously affirmed.
(1) Sufficient evidence supported each of the defendant’s convictions; (2) Trial court properly denied motion to suppress; (3) Any error in the admission of the vodka bottle found in the defendant’s lap was abandoned on appeal; (4) No Brady violation on the facts of the case
State v. Hoque, ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 7, 2020). The defendant was found guilty by a Cleveland County jury of impaired driving and resisting a public officer and was found responsible for possession of open container. He appealed, challenging the denial of his motion to dismiss, the denial of his mid-trial motion to suppress, an evidentiary ruling, and alleging constitutional violations for lost evidence. The Court of Appeals unanimously affirmed.
(1) The defendant claimed there was insufficient evidence that he operated the vehicle while impaired. As to operation, the defendant was found asleep behind the wheel with the car running in the middle of the road and had a bottle of vodka between his legs. No passengers were present, and the defendant asked the officer if he could move the car, revving the engine several times. He also used the driver side door to exit the vehicle. This was sufficient to establish operation. “An individual who is asleep behind the wheel of a car with the engine running is in actual physical control of the car, thus driving the car within the meaning of the statute.” Slip op. at 9. As to impairment, while the defendant’s blood alcohol content was only 0.07, the defendant’s blood revealed the presence of marijuana, amphetamine and methamphetamine. In addition to the blood test, the defendant “failed” horizontal and vertical gaze nystagmus tests, refused a breath test, had a strong odor of alcohol, was “confused and disoriented,” and exhibited other signs of impairment. This was sufficient evidence of impairment.
The defendant also claimed there was insufficient evidence to support his conviction for resisting a public officer. Specifically, he argued that he was merely confused and in pain at the time of his interactions with the officers, and that this was the cause of his “negative interactions” with the officers. The court rejected this argument, noting: “The conduct proscribed under [N.C. Gen. Stat. §] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in discharge of his duties.” Id. at 13. Here, the defendant committed multiple acts that obstructed the officer’s duties. The defendant would not roll down his window when asked by the officer, he repeatedly tried to start his car after being commanded to stop, he refused a breath test at least 10 times, and repeatedly put his hands in his pockets during the nystagmus testing after being instructed not to do so. He also refused to get into the patrol car once arrested and refused to voluntarily allow his blood to be drawn after a search warrant for it was obtained. In the court’s words:
Through these actions and his inactions, Defendant directly opposed the officers in their efforts to discharge their investigative duties of identifying him, speaking with him, and performing field sobriety tests. Thus, Defendant resisted the officers within the meaning of the statute. Id. at 14.
The motion to dismiss for insufficient evidence of resisting a public officer was therefore properly denied.
The defendant also claimed his motion to dismiss for insufficiency as to the possession of open container of alcohol should have been granted. He pointed out that the bottle found in his car was not missing much alcohol and the officer admitted to emptying the bottle on the side of the road. Rejecting this argument, the court observed:
[T]he amount of alcohol missing from the container is irrelevant for purposes of this offense, because a contained is opened ‘[i]f the seal on [the] container of alcoholic beverages has been broken.’ Additionally, the fact that [the officer] poured out the contents of the container goes to the weight of the evidence, not its sufficiency. Id. at 17.
The trial court therefore did not err in denying the motion for insufficient evidence for this offense.
(2) As to the suppression motion, the issue was preserved despite the motion being untimely because the court considered and ruled on the motion. The defendant argued that the forcible blood draw violated his rights to be free to unreasonable force. He did not challenge the validity of the search warrant authorizing the blood draw. Claims of excessive force are evaluated under the Fourth Amendment reasonableness standard. Graham v. Conner, 490 U.S. 386 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 22 (citations omitted). Here, the officer had a valid warrant (obtained after the defendant’s repeated refusals to provide a breath sample), and the blood draw was performed by medical professionals at a hospital. Any acts of force by police to obtain the blood sample were the result of the defendant’s own resistance. The court observed:
Defendant had no right to resist the execution of a search warrant, and in fact, his actions rose to the level of criminal conduct under N.C. Gen. Stat. § 14-223, for resisting a public officer. . . Defendant ‘cannot resist a lawful warrant and be rewarded with the exclusion of the evidence.’ Id. at 25.
The force used to effectuate the blood draw was reasonable under the circumstances and did not violate the Fourth Amendment.
The defendant also argued that his motion to suppress should have been granted for failure of the State to show that his blood was drawn by a qualified professional. G.S. 20-139.1(c) provides that doctor, registered nurse, EMT, or other qualified person shall take the blood sample. “An officer’s trial testimony regarding the qualifications of the person who withdrew the blood is sufficient evidence of the person’s qualifications.” Id. at 26. Here, the officer testified that a nurse drew the blood, although he could not identify her by name and no other proof of her qualifications was admitted. This was sufficient evidence that the blood was drawn by qualified person, and this argument was rejected.
(3) The trial court admitted into evidence the bottle found between the defendant’s legs at the time of arrest. According to the defendant, this was an abuse of discretion because the officers admitted to destroying the content of the bottle (by pouring it out) before trial. The defendant argued this was prejudicial and required a new trial. Because the defendant offered no authority that admission of the bottle into evidence was error, this argument was treated as abandoned and not considered.
(4) During the arrest, the stopping officer forgot to turn on his body camera and only began recording the investigation mid-way through. The officer also failed to record interactions with the defendant during processing after arrest in violation of department policy. The trial court found no constitutional violation. The defendant complained on appeal that the “intentional suppression” of this camera footage violated his Sixth and Fourteenth Amendment rights and sought dismissal or a new trial. However, the defendant only argued the Fourteenth Amendment Brady violation on appeal. His Sixth Amendment argument was therefore abandoned and waived.
As to the alleged Brady violation, the defendant did not seek dismissal in the trial court. “We are therefore precluded from reviewing the denial of any such motion, and Defendant’s request that this Court ‘dismiss the prosecution against him’ is itself dismissed.” Id. at 31. However, the defendant’s argument at suppression that the failure to record the blood draw violated due process and warranted suppression was preserved. Under Brady v. Maryland, 373 U.S. 83 (1963), suppression of material evidence relevant to guilt or punishment violates due process, regardless of the government’s good or bad faith. Here though, there was no evidence that the State suppressed anything—the video footage was simply not created. Brady rights apply to materials within the possession of the State. “Defendant essentially asks this Court to extend Brady’s holding to include evidence not collected by an officer, which we decline to do.” Id. at 33. There was also no indication that the video footage would have been helpful to the defendant. The court therefore rejected this claim. “Although the officers’ failure to record the interaction violated departmental policy, such violation did not amount to a denial of Defendant’s due process rights under Brady in this case.” Id.
Third prosecution based on same alleged conduct was (1) vindictive and (2) violated the defendant’s rights to joinder of offenses under G.S. 15A-926
State v. Schalow (“Schalow II”), ___ N.C. App. ___, ___S.E.2d ___ (Jan. 7, 2020). The defendant was charged with attempted first-degree murder and various other assaults against his wife in Henderson County. The State proceeded only on the attempted murder at trial. After the jury was empaneled, the trial court discovered that the indictment failed to allege malice, an essential element for attempted first-degree murder. The trial court ordered a mistrial over the defendant’s objection and dismissed the indictment. At retrial, the defendant’s double jeopardy argument was overruled and the defendant was convicted of attempted murder. On appeal in that case (“Schalow I”), the Court of Appeals determined that the second prosecution violated the Double Jeopardy Clause and vacated the conviction (Phil Dixon blogged about that case, here). Following that ruling, the State sought discretionary review in the Supreme Court and indicted the defendant on 14 counts of felony child abuse relating to the assaults on his wife. In remarks to the media, the District Attorney stated as follows:
If . . . the Supreme Court refuses to take up the case, then I have a plan to address that circumstance and will take additional action to see that [Defendant] is held accountable for his actions. . . . I will do everything that I can do to see that [Defendant] remains in custody for as long as possible. Slip op. at 4.
The N.C. Supreme Court declined to review the Court of Appeals decision in Schalow I, and the DA posted on social media about his intentions to ensure the defendant stayed in custody, that he received a sentence similar to his first, and to prosecute the defendant again. Additional indictments for assaults against his wife were brought. All of the new charges in the third prosecution were based on the same alleged assaults against the defendant’s wife that constituted the basis for the first prosecution.
At trial, the defendant again moved to dismiss. He claimed the prosecution violated double jeopardy, constituted a vindictive prosecution, and was in violation of his rights to joinder of offenses. The trial court denied the motion, and the defendant sought certiorari review of that decision pretrial, which was granted. [The defendant had previously sought pretrial review of the denial of his motion to dismiss for double jeopardy in Schalow I and was denied.] The court granted relief on the vindictive prosecution and joinder claims.
(1) Under North Carolina v. Pearce, 395 U.S. 711 (1969), it is a due process violation for the court to impose penalties on the defendant in response to the defendant’s successful appeal or collateral attack. Blackledge v. Perry, 417 U.S. 21 (1974) later extended the protection from vindictive acts to charging decisions by the prosecution, so that the State could not try the defendant for more serious charges following the defendant’s successful appeal from the original charges of conviction. “The Blackledge court clarified that a defendant need not show that the prosecutor actually acted in bad faith; instead, where the reviewing court determines that ‘a realistic likelihood of ‘vindictiveness’’ exists, a presumption of vindictiveness may be applied.” Id. at 7. To demonstrate a vindictive prosecution, the defendant must show that either actual intent to punish the defendant for the lawful exercise of his rights, or that the facts support presuming vindictiveness and the State failed to rebut that presumption. If a prosecution is found to be vindictive, the conviction must be vacated.
Here, the district attorney charged the defendant three different times for the same conduct. Each time, the district attorney increased the seriousness and number of charges, resulting in greater sentencing exposure to the defendant at each prosecution. The first case charged attempted manslaughter (based on the flawed indictment for attempted first-degree murder); the second case involved attempted first-degree murder; the third case involved 14 counts of child abuse, three class C assaults, two class F assaults, and one class H assault, with aggravating factors alleged in each. The defendant was facing over 35 years more time in prison in the third case, compared to the second. “[W]here a defendant is indicted on charges carrying a ‘significantly increased potential period of incarceration’ after the defendant ‘does what the law clearly permits him to do’—here, appealing from the judgment in the Second Prosecution—a reviewing court may presume prejudice.” Id. at 10. The presumption here was “particularly appropriate here” due to the involvement of the same prosecutor at each stage. The court rejected the State’s argument that no presumption of vindictiveness should apply, because the State was only attempting to correct pleadings errors. The defendant was exposed to 19 more charges in the third prosecution, carrying significantly increased penalties. This was not rectifying pleading defects and warranted a presumption of vindictiveness.
The State also failed to rebut the presumption of vindictiveness. The only evidence showed that the DA charged in response to the outcome of its appeal of Schalow I and that the DA was determined to ensure the defendant stayed in custody “as long as possible.” Even if this did not amount to actual vindictiveness (which the court did not decide), the defendant showed that his case warranted a presumption of vindictiveness which the State failed to overcome. “[T]o hold such evidence can be sufficient to overcome a presumption of vindictiveness would effectively eviscerate the presumption altogether, and thereby render Pearce and its progeny nugatory.” Id. at 12. The new charges were therefore dismissed.
(2) Under G.S. 15A-926, related offenses may be joined for trial. If a defendant is tried on a joinable offense and thereafter is put on trial for another related offense, he may move for dismissal for failure to join offenses, subject to the exceptions in the statute. Under State v. Warren, 313 N.C. 254 (1985), where the prosecution withholds additional charges in an effort to avoid statutory joinder of offenses, the new charges must be dismissed. In the words of the Warren court:
If a defendant can show, for example, that during the first trial the prosecutor was aware of substantial evidence that the defendant committed the crimes for which he was later indicted, this would be some evidence that the delay in bringing the later indictment was for the purpose of circumventing the statute. A showing that the State’s evidence at the second trial would be the same as the evidence presented in the first trial would also tend to show that the prosecutor delayed the indictment on the additional crimes for such purpose. A finding of either or both circumstances would support but not compel a determination by the trial court that the prosecutor withheld the additional indictment in order to circumvent the statute. Id. at 15.
Here, the new charges were all based on the same conduct as the original assault charges that were dismissed before trial, and the child abuse allegations were apparently based on the theory that the defendant assaulted his wife in the presence of the child, causing mental injury. The State also represented to the trial court in a pretrial hearing that there had been no new investigation and would be no new substantive evidence at trial. The defendant therefore met both prongs of Warren—the prosecutor knew about substantial evidence of the assaults and child abuse during the earlier prosecutions, and the evidence necessary to prove those offense was no different than the evidence presented in the earlier trial. While these findings “support but do not compel” the conclusion that the State purposefully held back additional charges to circumvent joinder rights (and no prior case has ever reversed the denial of motion to dismiss based on Warren), here, it was appropriate. According to the court:
[B]ecause (1) Defendant has shown that both Warren circumstances are present, (2) the State has had multiple previous opportunities to join the offenses on which it now seeks to try Defendant, (3) the State has neither argued that it was somehow unable to try the offense at an earlier time nor proffered any explanation for why the offenses were not tried along with the earlier charge, we hold that the Warren exception should apply. Id. at 21.
The defendant was therefore entitled to dismissal of the new charges for violation of his rights to statutory joinder of offenses. The court did not rule on the defendant’s double jeopardy argument because it granted relief on the other two claims. The matter was reversed and remanded for the motion to dismiss to be granted.