This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 5, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Testimony by lead detective vouching for victim’s credibility was improperly admitted, justifying new trial.
State v. Aguilar, COA23-556, ___ N.C. App. ___ (March 5, 2024). In this Mecklenburg County case, defendant appealed his convictions for sexual battery, assault on a female, and false imprisonment, arguing error in allowing the State’s witness to vouch for the alleged victim’s credibility. The Court of Appeals agreed, ordering a new trial.
In October of 2019, defendant allegedly assaulted the victim at a Mexican restaurant where they both worked. At trial, the State called the lead detective to testify regarding her investigation of the case. During direct examination, the State asked the detective if she questioned the validity of the victim’s story; defense counsel objected, but the trial court overruled the objection and allowed the questioning to proceed. The State asked the detective several more questions regarding the credibility of the victim’s statements, and defense counsel renewed their objection, which was again overruled. Defendant was subsequently convicted, and appealed.
Taking up defendant’s argument, the Court of Appeals noted that “a detective or other law enforcement officer may testify as to why they made certain choices in the course of an investigation, including their basis for believing a particular witness[,]” but here “the challenged testimony was clearly unrelated to [the detective’s] investigatory decision-making.” Slip Op. at 8-9. The court pointed to State v. Taylor, 238 N.C. App. 159 (2014), and State v. Richardson, 346 N.C. 520 (1997), as examples of testimony related to investigatory decisions, and contrasted these with the current case. The State argued that Rule of Evidence 608(a) permitted bolstering the victim’s testimony, but the court rejected this argument, explaining that defendant’s cross-examination of the victim did not implicate Rule 608(a). The court concluded defendant was prejudiced by the admission of the detective’s testimony, and remanded for a new trial.
Sight and smell of possible marijuana represented reasonable suspicion to extend traffic stop.
State v. George, COA22-958, ___ N.C. App. ___ (March 5, 2024). In this Sampson County case, defendant appealed his convictions for trafficking heroin by possession and by transport, possession with intent to sell or deliver heroin and cocaine, and resisting a public officer, arguing (1) insufficient findings of fact, and (2) error in denying his motion to suppress the results of a traffic stop. The Court of Appeals found no error.
In July of 2017, an officer pulled defendant over for driving 70 mph in a 55 mph zone. When the officer approached defendant’s car, he noticed the smell of marijuana and what appeared to be marijuana residue on the floorboard. After a long search for registration, defendant finally produced his documents; when the officer returned to his vehicle, he called for backup. After checking defendant’s registration and returning his documents, the officer asked defendant if any illegal drugs were in the vehicle, and defendant said no. Defendant declined the officer’s request to search the vehicle, but during a free-air sniff around the vehicle, a canine altered at the driver’s side door. A search found various narcotics. Defendant filed a pre-trial motion to suppress the results of the search, but the trial court denied the motion after a suppression hearing.
Both of defendant’s points of appeal depended upon the underlying argument that the officer unconstitutionally prolonged the traffic stop. Beginning with (1) the findings of fact to support the trial court’s conclusion of law that the traffic stop was not unconstitutionally extended, the Court of Appeals explained that “our de novo review examining the constitutionality of the traffic stop’s extension shows that the challenged legal conclusion is adequately supported by the findings of fact.” Slip Op. at 8.
The court then proceeded to (2), performing a review of the traffic stop to determine whether the officer had reasonable suspicion to extend the stop. Because defendant argued that the legalization of hemp in North Carolina meant the smell and sight of marijuana could not support the reasonable suspicion required to extend the stop, the court looked to applicable precedent on the issue. The court noted several federal court decisions related to probable cause, and the holding in State v. Teague, 286 N.C. App. 160 (2023), that the passage of the Industrial Hemp Act did not alter the State’s burden of proof. Slip Op. at 13. After considering the circumstances, the court concluded “there was at least ‘a minimal level of objective justification, something more than an unparticularized suspicion or hunch’ of completed criminal activity—possession of marijuana.” Id. at 13, quoting State v. Campbell, 359 N.C. 644, 664 (2005). Because the officer had sufficient justification for extending the stop, the trial court did not err by denying defendant’s motion to suppress.
(1) Absolute impasse was not clearly indicated by cold record, and not established as a structural error; (2) defense counsel’s statements in closing argument were not Harbison error; (3) indictment for habitual misdemeanor assault was not fatally flawed as “serious injury” incorporated concept of “physical injury.”
State v. Jackson, COA22-280, ___ N.C. App. ___ (March 5, 2024). In this Wake County case, defendant appealed his convictions for forcible rape, sex offense, kidnapping, various assault charges, and interfering with emergency communication, arguing (1) he was deprived of his right to autonomy in the presentation of his defense, (2) he was deprived of effective assistance of counsel when his attorney admitted guilt during closing argument, and (3) the trial court lacked jurisdiction to sentence him for habitual misdemeanor assault due to a facially invalid indictment. The Court of Appeals majority disagreed, finding no error.
In April of 2020, defendant came to trial for assaulting and raping a woman he was dating at the time. During the trial, defense counsel informed the court that defendant would not testify or present evidence, and the trial court conducted a colloquy to ensure defendant was knowingly waiving this right. During the colloquy, defendant mentioned documentary evidence he wanted to admit, but that his attorney had not admitted. The trial court did not instruct defense counsel to introduce the evidence. During closing argument, defense counsel mentioned that defendant was not guilty of kidnapping, sexual offense, or rape, but did not mention assault. Defendant was subsequently convicted, and appealed.
In (1), defendant contended that he and defense counsel had reached an absolute impasse about the documentary evidence, and the trial court committed a structural error by failing to instruct defense counsel to comply with defendant’s wishes to admit the evidence. The Court of Appeals first noted the rule that “where the defendant and his defense counsel reach an absolute impasse and are unable come to an agreement on such tactical decisions, the defendant’s wishes must control.” Slip Op. at 5. However, here the court was “unable to determine from the cold record whether there was a true disagreement, which would amount to an absolute impasse.” Id. at 7-8. Additionally, the court explained that even if there was an error, it was not a type recognized as structural by the Supreme Court, referencing the list identified in State v. Minyard, 289 N.C. App. 436 (2023).
Moving to (2), defendant argued his defense counsel committed an error under State v. Harbison, 315 N.C. 175 (1985), which would represent ineffective assistance of counsel. However, the court did not see a Harbison error, noting “defense counsel here never implied or mentioned any misconduct [by defendant]” while giving closing argument. Slip Op. at 15. Instead, the court held that “[defense counsel’s] statements cannot logically be interpreted as an implied concession of Defendant’s guilt.” Id.
Finally, in (3) defendant argued that the indictment was flawed as it failed to state the assault caused “physical injury.” Id. at 17. The court explained that here, count VIII of the indictment alleged that defendant caused “serious injury” for the assault inflicting serious injury charge. Id. at 18. The court determined that the broader term was sufficient, as “it logically follows Defendant was noticed of his need to defend against an allegation that he caused physical injury as ‘serious injury’ is defined to include physical injury.” Id. at 21.
Judge Murphy concurred in part and dissented in part by separate opinion, and would have held that the indictment for habitual misdemeanor assault in (3) was insufficient as physical injury and serious injury were not synonymous.
(1) Out-of-court statements were corroborative and not hearsay; (2) closing argument statements were not improper vouching for victim’s credibility; (3) during bench trial, trial court is presumed to ignore inadmissible evidence unless evidence is admitted showing otherwise.
State v. Lindsay, COA23-563, ___ N.C. App. ___ (March 5, 2024). In this Gaston County case, defendant appealed his convictions for forcible sexual offense, assault on a female, and sexual battery, arguing error in (1) admitting out-of-court hearsay statements, and (2) failing to intervene ex mero motu during the State’s closing argument. The Court of Appeals found no error.
In April of 2021, Defendant was staying with a family while visiting from New York, where he forced his way onto the eighteen-year-old daughter while she was sleeping. When the matter came to trial, the State called an officer who had interviewed the victim and her mother after the assault. The officer testified at trial about what the mother and the victim had told her during the interview. The State also offered recorded versions of interviews conducted by the police department. Defense counsel did not object to the testimony or the recorded interviews. Defendant was convicted after a bench trial and appealed.
Beginning with (1), the Court of Appeals explained that the out-of-court statements in question were reviewed under the plain error standard, and noted that “we give the trial court the benefit of the doubt that it adhered to basic rules and procedure when sitting without a jury.” Slip Op. at 12. Here, the court did not find the statements inadmissible, as “the out-of-court statements at issue were corroborative and not substantially different from the in-court testimony.” Id. at 14. Because the statements were corroborating evidence of the testimony from the victim and her mother given during the trial, they did not represent hearsay. Additionally, the court noted the unusual nature of the review, as “the standard in a bench trial is distinct from plain error review and requires that defendant introduce facts showing the trial judge, in fact, considered inadmissible evidence.” Id. at 15.
Looking to (2), defendant argued that the State improperly vouched for the truth of the victim’s testimony during closing argument. The court noted that the statements at issue were simply that the victim “had no reason to lie” about the assault, not direct statements vouching for her truthfulness. Id. at 16. Additionally, the court again pointed out that the matter was a bench trial, and “the trial judge presumably disregarded any personal beliefs purportedly inserted into the State’s closing argument that pertained to whether [the victim] was telling the truth.” Id. at 17.
Judge Murphy dissented in part and concurred in the result only by separate opinion, dissenting from the majority’s statement regarding plain error review in a bench trial, but agreeing that defendant did not demonstrate prejudice.
[The two State v. Smith cases below are not related.]
Failure to renew motion to dismiss at close of evidence did not represent ineffective assistance of counsel where substantial evidence supported defendant’s conviction.
State v. Smith, COA23-645, ___ N.C. App. ___ (March 5, 2024). In this Robeson County case, defendant appealed his conviction for driving while impaired (DWI), arguing error in denying his motion to dismiss and ineffective assistance of counsel. The Court of Appeals dismissed defendant’s argument regarding the motion to dismiss, and found no ineffective assistance of counsel.
In April of 2019, a trooper from the State Highway Patrol arrested defendant after responding to a collision. The trooper observed signs of intoxication and administered field sobriety tests, determining defendant showed signs of intoxication. During the trial at superior court, defendant moved to dismiss the DWI charge for insufficient evidence prior to putting on evidence, but did not renew his motion to dismiss at the close of all evidence.
The Court of Appeals first established that under Rule of Appellate Procedure 10(a)(3), defendant’s failure to renew his motion after putting on evidence waived his argument regarding denial of the motion to dismiss. The court dismissed that portion of defendant’s appeal, and moved to the ineffective assistance of counsel claim, which was predicated on defense counsel failing to renew the motion to dismiss.
To show ineffective assistance of counsel, defendant had to satisfy the two-part test from Strickland v. Washington, 466 U.S. 668 (1984), showing deficient performance and that the deficient performance prejudiced defendant. Here, the court explained that “to prevail on an ineffective assistance of counsel claim in which the defendant argues that his counsel failed to renew his motion to dismiss, the defendant must show that there is a reasonable probability that the trial court would have allowed the renewed motion.” Slip Op. at 7. The court did not find that in the current case, as “when viewing the evidence in the light most favorable to the State, there was substantial evidence that Defendant was driving while impaired.” Id. at 9.
Defendant forfeited his right to counsel after six appointed attorneys and two years of delay to the proceedings.
State v. Smith, COA23-575, ___ N.C. App. ___ (March 5, 2024). In this Stanly County case, defendant appealed the trial court’s ruling that he forfeited his right to counsel. The Court of Appeals found no error.
Defendant pleaded guilty to first degree kidnapping, second degree rape, and second degree burglary in December of 2017. However, due to a sentencing error, defendant was brought back before the trial court in July 2020, and there he requested to set aside his guilty plea. At the same time, defendant’s first attorney requested to withdraw. This began a series of six appointed attorneys that represented defendant from July 2020 to July 2022. During this time, defendant was also disruptive to the proceedings, and at one point was held in contempt by the trial court. Eventually, due to defendant’s disruptions and dispute with his sixth appointed attorney, the trial court ruled that defendant had forfeited his right to court-appointed counsel. Defendant appealed.
The Court of Appeals explained that the trial court was correct in finding that defendant forfeited his right to counsel, pointing to defendant’s “insistence that his attorneys pursue defenses that were barred by ethical rules and his refusal to cooperate when they would not comply with his requests[,]” along with defendant’s conduct that “was combative and interruptive during the majority of his appearances in court.” Slip Op. at 10. These behaviors caused significant delay in the proceedings, and justified forfeiture of counsel.