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Case Summaries: N.C. Court of Appeals (Mar. 16, 2021)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on March 16, 2021. Gabrielle Supak and Christopher Tyner 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.

A traffic checkpoint had a valid programmatic purpose regardless of the fact that the location of the checkpoint moved throughout the evening

State v. Macke, ___ N.C. App. ___, 2021-NCCOA-70 (Mar. 16, 2021).  In this DWI case, the court held that a traffic checkpoint had a valid programmatic purpose and that G.S. 20-16.3A is constitutional.  Troopers testified that the primary purpose of the checkpoint, which was conducted with prior approval from a supervisor, with an established plan, and without narcotics officers or drug dogs, was to check for driver’s licenses and evidence of impairment.  The defendant’s primary challenge to the programmatic purpose of the checkpoint was that its location changed throughout the evening.  Given that changing the location was planned prior to establishing the checkpoint and was authorized by the supervisor, the trial court properly determined that the checkpoint had a valid programmatic purpose.  The court went on to hold G.S. 20-16.3A constitutional, specifically finding that the statute does not violate the right to free travel and does not impermissibly foreclose equal protection challenges arising from the placement of checkpoints.

 

The trial court did not err by failing to intervene ex mero motu with respect to an alleged misstatement of law regarding the aggressor doctrine in the prosecutor’s closing argument; the trial court did not err by instructing the jury on murder by lying in wait

State v. Copley, ___ N.C. App. ___, 2021-NCCOA-68 (Mar. 16, 2021).  On remand from the North Carolina Supreme Court’s decision (summary here) that there was no prejudicial error in the prosecutor’s closing argument with respect to race in this murder trial, the Court of Appeals considered the defendant’s remaining arguments regarding jury argument and jury instructions.  Largely based on its view that the prosecutor’s jury argument was made in the context of self-defense rather than, as the defendant maintained, the habitation defense, the court disagreed with the defendant’s argument that the trial court erred by failing to intervene to correct an alleged incorrect statement of law regarding the aggressor doctrine in the prosecutor’s closing argument to which the defendant did not object.  The court went on to decline to reach the defendant’s argument that the trial court plainly erred with respect to jury instructions on the aggressor doctrine in the context of the defense of habitation, finding the argument waived by the defendant’s active participation in the formulation of the jury instructions during the charge conference and failure to object at trial.  Finally, the court held that the trial court did not err by instructing the jury on murder by lying in wait because the instruction was supported by sufficient evidence even if it was assumed that the defendant offered evidence of a conflicting theory of defense of habitation.  The court noted with respect to lying in wait that the State’s evidence showed that the defendant concealed himself in his darkened garage with a suppressed shotgun and fired through a garage window, bewildering unwarned bystanders.

Judge Tyson dissented, expressing the view that the trial court erred with respect to instructing the jury on murder by lying in wait given that the defendant was wholly inside his home with his family as an armed intruder approached the home and given shortcomings in the trial court’s instructions regarding the State’s burden of disproving the defendant’s assertion of self-defense and the jury’s responsibility to evaluate evidence and inferences on that issue in the light most favorable to the defendant.

 

The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree kidnapping and did not commit plain error by failing to instruct the jury on the confinement theory of kidnapping alleged in the indictment

State v. Stokley, ___ N.C. App. ___, 2021-NCCOA-71 (Mar. 16, 2021).  The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree kidnapping and did not commit plain error by failing to instruct the jury on the confinement theory of kidnapping alleged in the indictment.  The second-degree kidnapping indictment alleged that the defendant unlawfully confined the victim without consent and for the purpose of facilitating felony armed robbery.  In moving to dismiss the kidnapping charge, the defendant argued that the victim was not restrained to a degree over that inherent in the underlying robbery, which involved the defendant entering the victim’s bedroom while brandishing a gun and motioning for the victim to move from that room to another and ordering the victim to lie on the ground upon moving rooms.  Noting the State’s acknowledgement that the question of whether confinement or restraint is of a degree beyond that inherent in robbery such that a kidnapping conviction also is proper involves “a very tangled area of the law,” the court reviewed relevant precedent on its way to determining that there was no error in the defendant’s kidnapping conviction.  The court explained that the movement of the victim from his bedroom to the other room was not essential to complete the robbery, that the victim was held in the other room for some time, and was exposed to greater danger by being moved and held at gunpoint.

In response to the defendant’s argument that the trial court plainly erred by instructing the jury on kidnapping by restraint or removal but not confinement despite the indictment alleging kidnapping based solely on confinement, the court conducted a “highly fact sensitive” analysis and concluded that the defendant failed to show a possibility that a reasonable jury would have found that the victim in this case was removed or retrained but was not confined.

Judge Murphy concurred in result only, expressing the view that the majority improperly equated removal and confinement when analyzing the defendant’s motion to dismiss the kidnapping charge.  Judge Murphy also expressed the view that the trial court erred in its jury instruction on kidnapping because the instruction did not track the indictment, but found that the error did not rise to the level of plain error.

 

The trial court did not err by accepting the defendant’s waiver of counsel because the defendant clearly and unequivocally expressed his desire to waive his right to counsel and the trial court conducted a thorough inquiry, in compliance with G.S. 15A-1242, to ensure that his waiver was knowing, intelligent, and voluntary

State v. Bannerman, ___ N.C. App. ___, 2021-NCCOA-67 (Mar. 16, 2021). On appeal, the defendant’s sole argument was that the trial court erred because his waiver of counsel was not voluntary and was a result of the defendant’s belief that representing himself was the only way to avoid delaying his trial. On May 19, 2019, the defendant requested that his first appointed counsel be removed. The defendant was appointed new counsel on June 3, 2019. On October 10, 2019, the defendant’s second appointed counsel filed a motion to withdraw because the defendant asked him to and the defendant was threatening to file a complaint with the state bar.

After the trial court granted the motion to withdraw and announced new appointed counsel, the ADA told the trial court that the trial would need to be pushed back from the calendared date of December 16, 2019, to February 24, 2020, so that the new appointed counsel had time to become familiar with the case. Upon hearing this, the defendant stated to the court: “Excuse me, Your Honor. I withdraw for an attorney if we can have this date of December the 16th. I withdraw, and I will represent myself if I can have a date in court,” and “I would withdraw counsel if I could have my date in court.” Slip op. at ¶ 10. The trial court asked the defendant if he wanted to represent himself and the defendant responded, “Yes, I’m ready. I’ll represent myself.” Slip op. at ¶ 11. Following this response, the defendant signed a waiver of counsel form.

The defendant later sent a letter to the trial court requesting a “co-counselor” for trial and the defendant was brought back to court on December 10, 2020 to address this matter. The trial court again asked the defendant if he wanted to represent himself, to which he responded “yes”. The ADA asked the court to further go over with the defendant what it would mean to represent himself. The court ensured the defendant was competent and that he understood that he had a right to an attorney, that one would be appointed to him if he couldn’t afford one, that he would be required to follow the same rules of evidence and procedure if he represented himself, the nature of the charges against him, and the potential punishment. The trial court also explained that the defendant would not be given a co-counsel and explained the purpose of standby counsel. Following this conversation, the trial court again asked whether the defendant was waiving his right to be represented by counsel at trial to which the defendant said “Yes. I don’t want my court date pushed back. I don’t want the court date pushed back.” The defendant also said, “I’ll waive that if I could have a standby, if you don’t mind, for some legal issues.” Slip op. at ¶ 16. The trial court then accepted the Defendant’s waiver and appointed standby counsel.

Noting that the trial court’s questions mirrored a fourteen-question checklist published by the School of Government cited approvingly in State v. Moore, 362 N.C. 319, 327 (2008), the Court of Appeals determined that “[t]hese exchanges show that on several occasions, Defendant clearly and unequivocally stated his desire to waive counsel and represent himself.” Slip op. at ¶ 18. The Court of Appeals also distinguished the defendant’s situation from that of the defendants in State v. Bullock, 316 N.C. 180 (1986) and State v. Pena, 257 N.C. App. 195 (2017). The Court of Appeals reasoned that “[u]nlike in Bullock and Pena where the trial court was unwilling to allow defendants more time to secure attorneys and, thus, defendants had no option but to represent themselves at trial, the trial court in this case had just announced that it would appoint” the defendant a new attorney. Slip op. at ¶ 22. The defendant then “voluntarily waived counsel to accommodate his own desire to keep a December trial date. His understanding, either correct or incorrect, that his trial could be delayed until February if he accepted the appointment of the third attorney did not make his choice to waive counsel involuntary. His motivation simply explains why he chose to voluntarily waive counsel and proceed pro se with standby counsel.” Slip op. at ¶ 22.

 

(1) The trial court did not err in denying the defendant’s motion to dismiss the charges of felony hit and run because there was sufficient evidence that the defendant knew or reasonably should have known, that the vehicle he was driving was involved in a crash and that someone was killed or seriously injured as a result; (2) The trial court did not err in instructing the jury on flight because flight is not an essential element of felony hit and run and the evidence supported a flight instruction

State v. Gibson, ___ N.C. ___, 2021-NCCOA-69 (Mar. 16, 2021). The State’s evidence tended to show that the defendant was driving a van with a trailer attached behind it when he cut off two motorcycles, made rude gestures, and caused one of the motorcycles to crash. The driver of the motorcycle sustained serious injuries and a passenger died as a result of the accident. The defendant slowed down briefly and then fled the scene.

(1) The trial court did not err in denying the defendant’s motion to dismiss the charges of felony hit and run because there was sufficient evidence that the defendant knew or reasonably should have known, that the vehicle he was driving was involved in a crash and that someone was killed or seriously injured as a result. First, the defendant argued that there was insufficient evidence that he knew or reasonably should have known that the vehicle he was operating was involved in a crash or that the crash had resulted in serious bodily injury because the evidence could have shown that the defendant could not have seen behind his van and trailer or that there may not have been contact between the victim’s motorcycle and the defendant’s trailer. The Court of Appeals rejected this argument for multiple reasons, largely centering on evidence of the defendant’s awareness of the position of his vehicle relative to the motorcyclists and other traffic and evidence that the defendant slowed down immediately following the crash and then sped away at a high rate of speed.

(2) The defendant argued that the trial court erred in giving the jury an instruction on flight as evidence of the defendant’s consciousness of guilt because “leaving the scene of the offense, which could be considered flight under the challenged instruction, is an essential element of felony hit and run.” Slip op. at ¶ 37. The Court of Appeals disagreed with the defendant’s assertion that flight is an essential element of felony hit and run, explaining that flight requires some evidence of a defendant taking steps to avoid apprehension while a driver’s motive for leaving the scene of a crash for purposes of felony hit and run is immaterial. The court went on to find the instruction supported by evidence of the defendant speeding away, later lying about why his tire was blown out, and asking for directions to a destination that would allow him to arrive there without traveling on the interstate.

 

(1) The defendant preserved his sufficiency of the evidence argument on appeal; (2) The trial court erred by denying the defendant’s motion to dismiss the charges of trafficking heroin by transportation and possession because the State’s evidence was insufficient to show that the defendant constructively possessed two bags of heroin found on the side of the road

State v. Walters, ___ N.C. App. ___, 2021-NCCOA-72 (Mar. 16, 2021). In this drug trafficking by possession and transportation case, the defendant fled an attempted traffic stop, was chased by officers for 3-5 miles until the defendant crashed his car, and then was pursued on foot. When the defendant was apprehended, he was searched and officers recovered a backpack containing digital scales, syringes, and small plastic bags. After the defendant was in custody and roughly thirty to forty-five minutes after the chase ended, the officers found two small plastic bags containing a “black tar substance” on the side of the highway roughly one hundred yards from where the car chase began. Collectively, the bags contained 4.66 grams of heroin. Although the bags were found on the route the defendant took, they were located “completely off of the roadway” and no officers testified that they saw anything thrown from the defendant’s vehicle. On appeal, the defendant challenged the sufficiency of the evidence.

(1) The Court of Appeals first addressed the State’s argument that the defendant failed to preserve the sufficiency issue for appellate review when he moved to dismiss the charges based upon a defect in the chain of custody, rather than for insufficiency of the evidence. The Court explained that the N.C. Supreme Court recently ruled in State v. Golder, 374 N.C. 238 (2020) that N.C. R. App. P. 10(a)(3) “does not require a defendant to assert a specific ground for a motion to dismiss for insufficiency of evidence” and the issue is preserved so long as a motion to dismiss is made at the proper time. Slip op. at ¶ 16. Therefore, the defendant preserved the argument on appeal.

(2) The trial court erred by denying the defendant’s motion to dismiss the charges of trafficking heroin by transportation and possession because the State’s evidence was insufficient to show that the defendant constructively possessed the two bags of heroin found on the side of the road. The court explained:

When the evidence is viewed in the light most favorable to the State, the bags of heroin were found on the driver’s side of the road approximately one hundred yards from the area where the car chase started. Inside Defendant’s vehicle, officers found scales, baggies, and syringes. Officers did not observe Defendant throw anything from the window while driving during the chase. Defendant was not in control of the area where the drugs were found, and there is no evidence connecting the bags of heroin to Defendant or to the vehicle he was driving. Without further incriminating circumstances to raise an inference of constructive possession, the State has failed to demonstrate substantial evidence that Defendant possessed the controlled substance.

 

 

 

 

 

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