Case Summaries – N.C. Court of Appeals (June 7, 2022)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on June 7, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.

A defendant has no right to appeal a probation modification. The court of appeals may or may not have the power to review probation modifications through certiorari. The defendant was properly held in contempt for cursing at a judge and a probation officer.

State v. Ore,  2022-NCCOA-380, __ N.C. App __, __ S.E.2d __ (June 7, 2022). In this Davidson County case, the defendant pled guilty to a drug offense and received 12 months of supervised probation. His probation officer filed a violation report alleging positive drug screens and other violations. At the violation hearing, the defendant chose to represent himself. The court found a willful violation and agreed to extend probation by six months and to hold the defendant in custody for up to two weeks until he could begin drug treatment at a treatment center. The defendant said “that’s crazy,” accused the court of activating his sentence, and suggested that the court be “f—king honest with [him].” After being warned about his language, he accused his probation officer of “start[ing] this sh— all over again.” The court began contempt proceedings, found the defendant in direct criminal contempt and sentenced him to 30 days. He sought appellate review.

As to the probation modification, the Court of Appeals first found that he had no right to appeal. In criminal cases, appellate rights are provided entirely by statute, and G.S. 15A-1347(a) allows an appeal of a probation violation only when the court activates a sentence or imposes special probation. The trial court did neither in this case.

The defendant therefore sought certiorari review. The lead opinion, relying on State v. Edgerson, 164 N.C. App. 712 (2004), concluded that certiorari review is not available for probation modifications. Two judges concurred separately, each disagreeing with the lead opinion on that point, but the panel was unanimous that even if such authority exists, the defendant’s petition was “wholly frivolous” and so certiorari review should be denied.

As to the contempt finding, the Court agreed to review the matter under its certiorari jurisdiction. After finding the defendant in contempt, the trial court stated, “Enter notice of appeal for his contempt citation,” to which the defendant responded, “Thank you.” Although this was not a proper notice of appeal, the defendant’s intent to appeal was obvious so certiorari review was justified. The court proceeded to uphold the contempt conviction, finding that the defendant’s “words and actions willfully interrupted the proceedings and impaired the respect due the [trial] Court’s authority” in violation of G.S. 5A-11(a).

Under State v. McLymore, a murder defendant was entitled to a jury instruction on defense of another; the trial court wrongly concluded that he was disqualified because of his unlawful gun possession.

State v. Williams, 2022-NCCOA-381, __ N.C. App. __, __ S.E.2d __  (June 7, 2022). In this Guilford County case, the defendant and the victim were cousins. They went out for an evening together, each accompanied by a girlfriend. The victim had a history of assaulting his girlfriend, and again that night became enraged and began beating her. The defendant shot the victim twice in the chest. He was charged with first-degree murder, possession of a firearm by a convicted felon, and being a violent habitual felon. He pled guilty to the gun charge and went to trial on the others. The jury convicted him of second-degree murder and of being a violent habitual felon. He was sentenced to life in prison and appealed.

The principal issue concerned the jury instructions. The defendant asked for an instruction on the defense of another. The trial court ruled that he was disqualified from claiming the defense under G.S. 14-51.4, which makes that defense off-limits to a person who “[w]as attempting to commit, committing, or escaping after the commission of a felony,” in this case possession of a firearm by a convicted felon. The trial judge therefore gave only a “limited” instruction on defense of others. The reviewing court said that this was error under State v. McLymore, 2022-NCSC-12, __ N.C. __ (2022), a case decided after the defendant’s trial. McLymore ruled that a person is disqualified under G.S. 14-51.4 only if there is a causal nexus between the felony and the need to use defensive force. There was no such nexus here, so the defendant was not disqualified and the jury should have been instructed on the defense of another.

The Court of Appeals rejected the defendant’s argument that the trial court erred in denying his motion to dismiss based on defense of another. There was sufficient evidence that the defendant did not act in defense of another to submit the case to the jury, including evidence that the defendant was frustrated with the victim and that the victim’s girlfriend did not suffer severe injuries. Therefore, the court ordered a new trial with proper jury instructions.