Case Summaries: N.C. Court of Appeals (May 18, 2021)

This post summarizes published criminal decisions from the North Carolina Court of Appeals released on May 4, 2021. These summaries, which were written by Shea Denning and Jamie Markham, will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.

(1) There was no speedy trial violation despite a seven-year delay between the defendant’s arrest and trial; (2) The trial court properly denied the defendant’s motion for a mistrial based on juror misconduct; (3) The defendant received ineffective assistance of counsel at his satellite-based monitoring determination hearing.

State v. Spinks, 2021-NCCOA-218, ___ N.C. App. ___, ___ S.E.2d ___ (May 18, 2021). In this Guilford County case, the defendant was convicted by a jury of indecent liberties with a child in May 2019 for a 2011 incident involving his daughter’s 6-year-old friend. He was sentenced to 28-43 months in prison and ordered to enroll in satellite-based monitoring for life. (1) The defendant argued on appeal that his right to a speedy trial was violated by the seven-year delay between his arrest and trial. Applying the four-factor test from Barker v. Wingo, 407 U.S. 514 (1972) (the length of delay; the reason for the delay; the defendant’s assertion of his right; and prejudice to the defendant), the Court of Appeals concluded that there was no speedy trial violation. The seven-year delay undoubtedly triggered the need to continue the Barker inquiry. As to the second factor, however, the record showed that the vast majority of the delay was attributable to the defendant’s motions to remove counsel—he had four lawyers before eventually proceeding pro se—or to a good faith delay on the part of the State resulting from the serious illness of the lead investigator. As to the third factor, the defendant did repeatedly, albeit improperly, assert his right to a speedy trial, but that alone, the Court of Appeals said, did not entitle him to relief. As to the fourth factor, the defendant asserted two ways he was prejudiced by the delay in his trial: that he hadn’t seen his daughter since his arrest, and that it was difficult to contact witnesses. The Court rejected the defendant’s assertion regarding his daughter, because the defendant was also incarcerated on other charges during the pendency of the charges at issue in this case, and he would therefore have been unable to see his daughter regardless. The Court likewise rejected the defendant’s assertion regarding witness availability, concluding that the defendant had merely asserted that the witnesses were “hard to get up with,” but not shown that they were actually unavailable. Weighing all the factors, the Court found no speedy trial violation.

(2) The defendant also argued that the trial court erred by denying his motion for a mistrial based on a juror’s contact with his mother during jury deliberations. The Court rejected that argument, concluding that the trial court properly determined through a thorough examination of the juror that the juror had not been improperly influenced by his conversation with his mother.

(3) Finally, the defendant argued that the trial court erred in imposing lifetime SBM because the State failed to establish that SBM was a reasonable search under the Fourth Amendment. The Court of Appeals declined to invoke Rule 2 of the Rules of Appellate Procedure to consider the merits of the argument, which was not raised in the trial court. As to the defendant’s alternative argument that his lawyer provided ineffective assistance by failing to object to SBM in the trial court, the Court of Appeals concluded that a constitutional claim of ineffective assistance was unavailable under earlier precedent, but a statutory claim was available under G.S. 7A-451(a)(18), because the statutory right to counsel includes the right to effective counsel. Applying the requisite analytical framework, the Court held that the defendant’s lawyer’s performance was deficient, and that the deficiency prejudiced the defendant. The Court therefore reversed the SBM order and remanded the matter for a hearing on the reasonableness of SBM.

 

(1) State presented substantial evidence of forgery of an endorsement and uttering a forged check; (2) Photocopy of check was properly admitted to illustrate the testimony of a witness.

State v. McSwain, 2021-NCCOA-216, ___ N.C. App. ___, ___ S.E.2d ___ (May 18, 2021). In this Cleveland County case, the defendant was convicted of forgery of an endorsement pursuant to G.S. 14-120, uttering a forged check pursuant to G.S. 14-120 and attaining habitual felon status pursuant to G.S. 14-7.1. (1) The defendant argued on appeal that the State failed to prove the falsity of the instrument. The Court of Appeals determined that the State presented substantial evidence to show that the defendant wrote and signed a check on the account of John McGinnis without McGinnis’s authority. The State’s evidence tended to show that the defendant wrote a check on McGinnis’s account weeks after his house and car were broken into. A driver’s license and phone number handwritten on the check were similar to defendant’s. The defendant falsely told the person to whom she wrote the check that McGinnis was her father and had given her permission to use the check. McGinnis was hospitalized when the check was written and had no children. Malcom Parker was the sole power of attorney for McGinnis and handled all of his financial matters.

(2) The trial court properly admitted a photocopy of the forged check pursuant to G.S. 8-97 to illustrate the testimony of the witness to whom the check had been provided. The Court found no indication that the photocopy was used as substantive evidence, and further concluded that the State put forth substantial evidence that the defendant had forged and uttered an instrument as defined by G.S. 14-119.

 

(1) Trial court properly denied motion to suppress evidence because officer had probable cause to search car based on the odor of burnt marijuana, the passenger’s admission that he had smoked marijuana, and the passenger’s producing of a partially smoked marijuana cigarette from his sock; (2) The trial court did not err in instructing the jury that Cyclopropylfentanyl and N-ethylpentylone were controlled substances; (3) The trial court did not err by refusing to provide a special jury instruction on knowing possession of a controlled substance as the defendant denied knowing that the vehicle he was driving contained drugs.

State v. Parker, 2021-NCCOA-217, ___ N.C. App. ___, ___ S.E.2d ___ (May 18, 2021). In this Cabarrus County case, the defendant was convicted of two counts of felony possession of Schedule I controlled substance and having attained habitual felon status. The charges arose from substances recovered from the vehicle defendant was driving when he was stopped for failing to wear his seatbelt. The officer who approached the car smelled the odor of burnt marijuana emanating from the car. The officer told the defendant and his passenger that if they handed over everything they had, he would simply cite them for possession of marijuana. The passenger in the car then admitted that he had smoked a marijuana joint earlier and retrieved a partially smoked marijuana cigarette from his sock. The officer then searched the car and discovered gray rock-like substances that when tested proved to be Cyclopropylfentanyl (a fentanyl derivative compound) and a pill that was N-ethylpentylone (a chemical compound similar to bath salts).

(1) At trial, the defendant moved to suppress evidence of the drugs recovered from his car. The trial court denied the motion. The defendant appealed, arguing that the trial court erred by failing to issue a written order and in finding that the search was supported by probable cause. The Court of Appeals determined that the trial court did not err by failing to enter a written order denying the defendant’s motion to suppress as there was no material conflict in the evidence and the trial court’s oral ruling explained its rationale. The Court further held that regardless of whether the scent of marijuana emanating from a vehicle continues to be sufficient to establish probable cause (now that hemp is legal and the smell of the two is indistinguishable), the officer in this case had probable cause based on additional factors, which included the passenger’s admission that he had just smoked marijuana and the partially smoked marijuana cigarette he produced from his sock. The Court also considered the officer’s subjective belief that the substance he smelled was marijuana to be additional evidence supporting probable cause, even if the officer’s belief might have been mistaken. The Court rejected the defendant’s contention that the probable cause had to be particularized to him, citing precedent establishing that if probable cause justifies the search of a vehicle, an officer may search every part of the vehicle and its contents that may conceal the object of the search.

(2) The defendant argued on appeal that the trial court erred by instructing the jury that Cyclopropylfentanyl and N-ethylpentylone were controlled substances since those substances are not specifically listed as named controlled substances under Schedule I in G.S. 90-89.  The Court rejected the defendant’s argument on the basis that the classification of these substances was a legal issue within the province of the trial court.  Furthermore, the Court determined that even if the classification was a factual issue, the defendant was not prejudiced because the undisputed evidence demonstrated that the substances were controlled substances fitting within the catch-all provision of Schedule I.

(3) The defendant argued on appeal that because he denied knowing the identity of the substances found in his vehicle the trial court erred in denying his request to instruct the jury that he must have known that what he possessed was a controlled substance. The Court of Appeals found no error. The Court characterized the defendant’s statements to the arresting officer as “amount[ing] to a denial of any knowledge whatsoever that the vehicle he was driving contained drugs” and noted that the defendant never specifically denied knowledge of the contents of the cloth in which the Cyclopropylfentanyl was wrapped, nor did he admit that the substances belonged to him while claiming not to know what they were. The Court concluded that these facts failed to establish the prerequisite circumstance for giving the instruction requested, namely that the defendant did not know the true identity of what he possessed. The Court further noted that defense counsel was allowed to explain to the jury during closing argument that knowing possession was a required element of the offense and the jury instructions required the State to prove that the defendant knowingly possessed the controlled substance and was aware of its presence.

 

(1) Indictment charging defendant with trafficking opium or heroin based on her transport and possession of Fentanyl was not defective as Fentanyl is an opiate within meaning of former G.S. 90-95(h)(4); (2) Trial court did not commit plain error when it departed from the statutory instructions in G.S. 15A-1235(b) in instructing the deadlocked jury; the trial court’s instructions communicated all of the core ideas of the statutory instructions.

State v. Garrett, 2021-NCCOA-214, ___ N.C. App. ___, ___ S.E.2d ___ (May 18, 2021). In this Pasquotank County case, the defendant was convicted of trafficking Fentanyl by possession and possession of Fentanyl with intent to sell or deliver, among other drug crimes. (1) The defendant argued on appeal that the indictment for these offenses was fatally defective because Fentanyl was not covered by the version of G.S. 90-95(h)(4) that was in effect at the time of her offense on December 31, 2006. The Court of Appeals determined that Fentanyl was an “opiate” within the meaning of the statute, which made it unlawful to possess or transport certain quantities of “opium or opiates.” The Court reasoned that though the term “opiate” typically refers to natural drugs derived from opium, like heroin, morphine and codeine, rather than synthetic drugs like Fentanyl, that definition was not universal. It agreed with the State that the General Assembly intended for the term “opiate” to include any drug that produces an opium-like effect by binding to opium receptors in the brain, regardless of whether the drug is naturally derived from opium or is synthetic or semi-synthetic. The Court noted that the common dictionary definition of the term opiate supported this broader reading as did the statutory definition of opiate. The Court rejected the defendant’s contention that the legislature’s 2018 amendment of the statute to replace the terms “opium or opiate” with “opium, opiate, or opioid” indicated that the term opiate did not include opioids, which are partially or wholly synthetic drugs produced in a lab to mimic the effects of opium. The Court held that the amendment was intended to clarify that opium, opiates, and opioids were all prohibited substances rather than to alter the applicability of the statute.

(2) The defendant also argued on appeal that the trial court’s instructions to the jury, which reported that it was deadlocked on the second day of deliberations, were improper as they did not recite the language from G.S. 15A-1235(b) (the statute that describes how a judge should instruct a deadlocked jury). The defendant did not object to the instruction at trial, so the Court of Appeals reviewed the issue for plain error. The Court compared the instructions given by the trial court to the statutory instruction, and determined that the instructions provided contained “all of the key elements and ideas from § 15A-1235(b).” Slip op. at § 39. Thus, the Court determined that jurors was properly instructed about their duty to deliberate and the defendant did not demonstrate plain error.

 

(1) In light of overwhelming evidence of the defendant’s guilt, the trial court did not plainly err in admitting prior act testimony; (2) Convictions under prior versions of the rape and sexual offense statutes were still reportable convictions; (3) The trial court erred by ordering satellite-based monitoring without a hearing.

State v. Mack, 2021-NCCOA-215, ___ N.C. App. ___, ___ S.E.2d ___ (May 18, 2021). In this Cumberland County case, the defendant was convicted by a jury of second-degree rape and second-degree sexual offense against a victim named Tamara. The offenses were committed in 2011, but not successfully investigated until a DNA database match in 2017. During the trial, the trial judge allowed testimony by another woman, Kesha, who alleged that the defendant had previously raped her in 2009, for the purpose of proving the identity of the assailant in Tamara’s case. (1) The defendant argued on appeal that the trial court erred in admitting the prior act testimony from Kesha under N.C. R. Evid. 404(b). Reviewing for plain error, the Court of Appeals concluded that the overwhelming evidence of the defendant’s identity and guilt made it improbable that the jury would have reached a different result even if the evidence had been admitted in error—as it may have been given that the defendant’s identity was not necessarily in issue in the case (he did not claim an alibi), and the circumstances of the two rapes were not particularly similar.

(2) The defendant also argued that the trial court erred by finding that his convictions under G.S. 14-27.3 and G.S. 14-27.5, the former statutes for second-degree rape and second-degree sexual offense, required sex offender registration, because those former statutes are not specifically listed in the current list of reportable offenses. Notwithstanding the State’s lack of a compelling argument on appeal, the Court of Appeals on its own found the effective date provision in the 2015 recodification act, which said that prosecutions for offenses committed before December 1, 2015 remain subject to the laws that would otherwise be applicable to those offenses, including the list of reportable convictions in the former version of G.S. 14-208.6(5). The trial court therefore did not err in ordering the defendant to register.

(3) Finally, the defendant argued that the trial court erred by ordering him to enroll in satellite-based monitoring for life without conducting a full determination hearing. The Court of Appeals agreed. The State specifically elected not to proceed with the hearing during the sentencing phase, and the trial court thus erred by ordering SBM. The Court of Appeals vacated the SBM orders and remanded the issue for hearing.

 

(1) Trial court did not commit plain error by admitting in defendant’s first-degree murder trial evidence of a break-in the day before the murder in which the murder weapon was stolen; (2) Defendant failed to show that the jury instruction on recent possession, even if erroneous, had a probable impact on the jury’s verdict.

State v. Washington, 2021-NCCOA-219, ___ N.C. App. ___, ___ S.E.2d ___ (May 18, 2021). In this Mecklenburg County case, the defendant was convicted of first-degree murder and possession of a firearm by a felon for shooting and killing Oren Reed. Reed’s aunt found his body in a pool of blood inside the backdoor of his home around 5 p.m. on November 21, 2013. The doorframe for the backdoor was splintered, and glass and bullet shells were on the ground. The State introduced evidence at trial that the previous day someone had kicked in the side door to Chris Townsend’s house, breaking the door frame, and had stolen a revolver and bullets. Other evidence showed that the stolen gun, found in defendant’s possession when he was arrested, was used to fire 22 of the 23 spent cartridges at Reed’s residence. An expert testified that two of the bullets recovered from Reed’s body shared similar class and characteristics as bullets fired from this gun.

(1) On appeal, the defendant argued that the trial court committed plain error by admitting evidence of the break-in at the Townsend residence. The Court of Appeals rejected that argument, reasoning that the evidence was relevant because it tended to show how the defendant gained possession of the murder weapon. The evidence also was admissible under N.C. R. Evid. 404(b) as it showed the natural development of the facts and completed the story of the murder and because there were substantial similarities between the two incidents.

(2) The defendant also argued on appeal that the trial court committed plain error by instructing the jury on the doctrine of recent possession, which allows a jury to infer that the possessor of recently stolen property stole the property. The defendant argued that this inference was not relevant to whether he broke into Reed’s house and killed him and that it likely caused the jury to convict the defendant of felony-murder based on the break-in to Townsend’s home. The Court of Appeals determined that, even presuming the trial court erred in instructing the jury that it could consider the doctrine of recent possession in deciding whether the defendant was guilty of first-degree murder, the defendant failed to show the instruction had a probable impact on the verdict. The Court reasoned that even if the recent possession instruction could have caused the jury to improperly convict the defendant of felony-murder, the instruction did not have a probable impact on first-degree murder verdict because the jury also found the defendant guilty based on malice, premeditation and deliberation.

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