This post summarizes published criminal decisions from the North Carolina Court of Appeals released on May 4, 2021. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
(1) Trial court did not commit reversible error by failing to cause the defendant to be timely served with the indictment; (2) Trial court did not err by denying defendant’s motion for standby counsel, which was made following multiple waivers of counsel and after the jury was empaneled.
State v. Crudup, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021).
The defendant was charged and convicted of felonious breaking and entering, felonious larceny after breaking and entering, and attaining the status of habitual felon for breaking into a neighbor’s house on April 24, 2018 and stealing a coffee canister of cash.
(1) The defendant, who had been arrested two days after the crime, did not receive copies of the initial indictment or a superseding indictment until December 17, 2018 – the day his trial began. After receiving the indictment, the defendant said he was ready to proceed with trial. The defendant argued on appeal that the trial court’s failure to follow the timely notice requirements of G.S. 15A-630 undermined his ability to prepare for trial and to assert certain statutory rights. The Court of Appeals disagreed, reasoning that although the defendant was not timely served with the indictment, the delay was not jurisdictional, and the defendant did not show that he was prejudiced by the delay. The record established that the defendant was aware of the charges, had viewed the evidence against him, including home surveillance footage, and had ample opportunity to prepare an adequate defense.
(2) The defendant, who had waived counsel twice before in the case, requested standby counsel on the second day of trial. The trial court denied the request, noting that the jury was empaneled and there were no attorneys in the courtroom other than prosecutors. The defendant then changed into his orange jail jumpsuit and refused to participate in the trial. On appeal, the defendant argued that the trial court erred in denying his request. The Court of Appeals disagreed, determining that the trial court properly exercised its discretion to deny the request.
The trial court did not err in summarily denying the defendant’s petition for habeas corpus in which the petitioner alleged that his continued imprisonment during the COVID-19 pandemic was cruel and unusual punishment
State v. Daw, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021).
The defendant, who was serving prison sentences for obtaining property by false pretenses, filed a petition for habeas corpus on June 15, 2020 alleging that his continued imprisonment during the COVID-19 pandemic violated the state and federal constitutional guarantees against cruel and unusual punishment. The trial court summarily denied the petition the same day on the basis that the defendant was held pursuant to a valid final judgment in a criminal case entered by a court with proper jurisdiction, citing G.S. 17-4(2).
The Court of Appeals granted certiorari review. Six days after oral argument, the defendant was released to serve the remainder of his sentence outside of prison. Notwithstanding the defendant’s release, the Court addressed the merits of the petition pursuant to the public interest exception to the mootness doctrine.
Applying de novo review, the Court of Appeals determined that the trial court’s summary denial of the petition was proper even though its reasons for doing so were legally incorrect. After reviewing the origins, evolution and limits of the writ of habeas corpus under state law, the Court concluded that the general rule in G.S. 17-4(2) is subject to the exception in G.S. 17-33(2),which provides that discharge of a lawful term of imprisonment may be based upon “some act, omission or event” that takes place after the judgment is entered.
The Court determined, however, that the defendant failed to make a threshold showing of evidence individualized to the circumstances of his case that such an act, omission or event had occurred. While the defendant averred that he had a “long history of respiratory illness” and submitted information about the risks of COVID-19 for prisoners, he did not submit materials that showed how his medical conditions put him at an elevated risk for serious illness or other medical complications from COVID-19. Affidavits submitted by defendant and his wife in which they opined about the risks COVID-19 posed to the defendant based on his medical history and diagnoses were insufficient to bridge the gap between the defendant’s individual circumstances and the general information regarding the dangers of COVID-19 to people with respiratory conditions and confined in prison since neither defendant nor his wife had the requisite expert qualifications. In addition, the defendant’s medical records, which showed that the Division of Public Safety first learned of the defendant’s history of respiratory illness after news of the pandemic was widespread, did not provide a colorable basis for concluding that the defendant’s claims had merit.
Trial court failed to ensure that the defendant validly waived his right to counsel before a resentencing hearing
State v. Doisey, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021).
The defendant was convicted in 1997 of two counts of first-degree statutory sex offense and was sentenced as a prior record level IV to 339 – 416 months in prison. He filed a motion for appropriate relief (MAR), arguing that he should have been sentenced at prior record level III. Before the hearing on the MAR, the trial judge asked the defendant whether he wanted to continue representing himself. The defendant said he did. The trial court asked the defendant to sign a waiver indicating that he had been apprised of his right to have counsel and indicating that he would like to represent himself. The trial court then proceeded with the hearing, which culminated in the defendant being resentenced as a prior record level III to 336 – 413 months imprisonment. The defendant appealed.
The Court of Appeals held that the trial court failed to ensure that the defendant validly waived his right to counsel before the resentencing hearing. The Court explained that the colloquy between the trial court and the defendant did not comply with the requirements for a valid waiver under G.S. 15A-1242. That statute requires a trial judge to make a thorough inquiry to determine whether the defendant: (1) has been clearly advised of his right to counsel, including appointed counsel; (2) understands and appreciates the consequences of the decision to waive counsel; and (3) comprehends the nature of the charges and proceedings and the range of permissible punishments. The surface inquiry conducted by the trial court in this case did not suffice.
The Court did not consider the State’s argument on appeal that the trial court erred in granting the MAR in the first place. The Court explained that the State failed to cross-appeal or seek discretionary review of this issue; nor did it oppose the defendant’s MAR before the trial court.
Finally, the Court rejected the State’s argument that the defendant was required to show prejudice resulting from the invalid waiver of counsel for resentencing on an MAR, which the State characterized as denial of a statutory rather than a constitutional right. The Court held that a constitutional right to counsel attaches at a resentencing proceeding; thus, the defendant was not required to show prejudice resulting from the invalid waiver.
(1) Trial court did not abuse its discretion by considering evidence from officer regarding the HGN test he administered to the defendant and his experience with HGN testing; (2) Competent evidence supported the trial court’s findings of fact, which supported its conclusion that the officer had probable cause to arrest the defendant for driving while impaired.
State v. Ezzell, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021).
The defendant was convicted of driving while impaired and appealed. He argued that the trial court erred by denying his motion to suppress evidence gathered following his arrest on the basis that his arrest was not supported by probable cause. The Court of Appeals found no error.
(1) The Highway Patrol trooper who arrested the defendant testified about his training in the administration of the horizontal gaze nystagmus test (HGN) for the detection of impairment and the interpretation of the results on the test. He testified about performing the HGN test on the defendant and his observation of all six indications of impairment.
The defendant argued on appeal that the rules of evidence applied to the suppression hearing and the trial court erred by permitting the trooper to testify as an expert witness on HGN because he was not qualified under Rule 702. The Court of Appeals rejected the defendant’s argument, citing Rules 104(a) and 1101(b)(1), which explicitly state that the evidence rules do not apply to the determination of preliminary questions concerning the admissibility of evidence—the very issues presented in a hearing on a motion to suppress. The Court further held that the trooper’s testimony regarding the HGN test was relevant to the determination of probable cause and the trial court did not abuse its discretion by considering this evidence.
(2) The defendant argued that several findings of fact were not supported by the evidence. The Court rejected the defendant’s argument, as to all but one objected-to finding. The trial court’s finding that the trooper noted a strong odor of alcohol on the defendant’s person was supported by the trooper’s testimony and the affidavit and revocation report he prepared. The finding that the defendant “deceptively denied” consuming alcohol was supported by the trooper’s testimony that the defendant denied having anything to drink as contrasted with the evidence that the defendant had consumed alcohol. The finding that the alcosensor was in proper working order and properly calibrated was supported by the trooper’s testimony. The finding that the trooper formed an opinion that the defendant was appreciably impaired was supported by the trooper’s testimony that the defendant was impaired; the trooper’s omission of the modifier “appreciably” was “a mere slip of the tongue.” (Slip op at ¶ 19.) And the trial court’s findings regarding the HGN test were supported by competent evidence.
The Court did not find evidentiary support for the finding that no other field tests were performed as a result of potential dangers from traffic.
The Court determined that the findings supported the trial court’s conclusion that the trooper had probable cause to arrest the defendant. Specifically, the Court pointed to the strong odor of alcohol, the positive alcosensor tests, and the HGN test revealing all six indications of impairment.
(1) Trial court properly denied defense counsel’s motion to conduct an additional inquiry into defendant’s capacity to proceed after the defendant jumped from a second-floor mezzanine during trial; (2) The trial court’s jury instruction on first-degree sexual offense, which can be committed by multiple acts, did not deprive the defendant of his right to a unanimous jury verdict.
State v. Flow, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021).
The defendant was tried for possession of a firearm by a felon, first-degree kidnapping, burglary, DVPO violations with a deadly weapon, first-degree rape and first-degree forcible sexual offense arising from the violent kidnapping and rape of his former girlfriend.
(1) The morning before the sixth day of the trial, the defendant jumped feet first from a second-floor mezzanine in the jail, injuring his left leg and ribs. The defendant was taken to the hospital for surgery. After a hearing, the trial court determined that the defendant’s absence from trial was voluntary and announced that the trial would proceed without him. The trial court considered and denied defense counsel’s motion that the court inquire into defendant’s capacity to proceed. The trial continued, and the defendant was convicted. He appealed, arguing that the trial court erred by denying defense counsel’s motion for an inquiry into capacity.
The Court of Appeals rejected the defendant’s argument. Nothing in the defendant’s prior record, conduct or actions provided the trial court with notice or evidence that the defendant may have been incompetent. For that reason, the court did not err by declining to conduct a more intensive hearing on the defendant’s capacity. The trial court had the opportunity to personally observe the defendant’s conduct and demeanor, heard arguments from the State and defense counsel, and took evidence concerning the defendant’s competency, including watching recorded footage of the defendant jumping 16 feet from the second-floor mezzanine.
(2) The trial court instructed the jury that it could find the defendant guilty of a first-degree sexual offense, if, in addition to the other required elements, it found the defendant had engaged in fellatio or anal intercourse. The defendant argued that this instruction deprived him of a unanimous jury verdict. The Court of Appeals rejected that argument, citing precedent that a jury verdict does not need to make a specific finding regarding precisely which sexual acts proscribed by G.S. 14-27.26 the defendant committed.
Trial court did not err by failing to intervene during State’s closing argument, which characterized the defendant’s explanation as ridiculous
State v. Hensley, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021).
The defendant was convicted of taking indecent liberties with a minor, charges that arose from sexual assaults against his daughters. During closing argument, the prosecutor said that the defendant’s excuse for possibly touching his daughters’ breasts—that he lacked feeling in his hands and fingers—was “ridiculous.” (Slip op. at ¶ 10). He explained that the defendant could adjust a microphone and open candy wrappers, which defendant demonstrated during the trial. The prosecutor also stated that the fight between the defendant and one of his daughters over her phone occurred because “he wanted to get in, and I guess see what was in there, what those pictures were, what those text messages were.” Id. He explained, “it makes a lot more sense when you put it in the context of a father who has a sexual attraction to his daughters.” Id. The defendant (who did not object to these statements when they were made) argued on appeal that the trial court erred by failing to intervene on its own motion to correct these statements.
The Court of Appeals rejected the defendant’s argument. The Court characterized the “ridiculous excuse” statements as a small part of an otherwise proper argument that the jury should not believe the defendant’s claim that a lack of feeling in his fingers prevented him from knowing if he had touched his daughters’ breasts. Additionally, the Court noted that the prosecutor used the word “ridiculous” only twice in his lengthy closing argument. The Court said that although the prosecutor should not have expressed his personal belief that the defendant’s testimony was false, his remarks were not so grossly improper as to render the proceeding fundamentally unfair.
The Court further determined that it was not improper for the prosecutor to argue that the defendant wanted to access his daughter’s phone to look at inappropriate photos. This was a reasonable inference based upon the evidence introduced at trial. Because the argument was not improper, the trial court was not required to intervene.
Defendant was properly convicted of felony-murder based on underlying felony of statutory rape; Verdicts of guilty for felony-murder and not guilty for statutory rape were merely inconsistent and not legally contradictory
State v. Watson, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021).
The defendant was convicted by a jury of first-degree murder under the felony-murder rule. The underlying felony was statutory rape of a child under 13. And yet the jury acquitted the defendant of the charge of statutory rape of a child under 13. The defendant appealed, arguing that statutory rape of a child under 13 could not support a felony-murder conviction because it lacks the necessary intent to support such a charge. He also argued that because the jury acquitted him of the predicate felony, his first-degree murder conviction must be vacated. The Court of Appeals rejected both arguments.
(1) The Court of Appeals determined that while the offense of statutory rape does not require that the defendant intended to commit a sexual act with an underage person, it does require that the defendant intend to commit a sexual act with the victim. The Court held that this intent satisfies the intent required for a crime to serve as the basis for a felony-murder charge. The Court distinguished the sort of intent required to engage in vaginal intercourse with a victim from the culpable negligence required to commit the offense of assault with a deadly weapon inflicting serious injury based on driving a vehicle while impaired, which the court held in State v. Jones, 353 N.C. 159 (2000), was insufficient to support a felony-murder charge. Statutory rape requires that the person be purposely resolved to participate in the conduct that comprises the criminal offense.
(2) The Court of Appeals determined that the jury verdicts finding the defendant (a) guilty of felony murder with statutory rape as the underlying felony but (b) not guilty of statutory rape were inconsistent but were not legally contradictory or, in other words, mutually exclusive. The Court of Appeals reasoned that a jury could rely on the act of committing statutory rape to support a felony murder conviction without also having a conviction of statutory rape. Indeed, the State could proceed to trial on such a felony murder theory without also charging statutory rape.
The Court noted that a defendant is not entitled to relief for a merely inconsistent verdict as it is not clear in such circumstances “‘whose ox has been gored.’” (Slip op. at ¶ 44 (quoting United States v. Powell, 469 U.S. 57, 65 (1984)). The jury may have thought the defendant was not guilty. Equally possibly, it may have reached an inconsistent verdict through mistake, compromise, or lenity. The defendant receives the benefit of the acquittal, but must accept the burden of conviction.
Trial court lacked subject matter jurisdiction to revoke the defendant’s probation when the violation reports were filed after the probation expired
State v. Hendricks, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021).
The defendant pled guilty to aggravated felony serious injury by vehicle, driving while impaired, and injury to real property. The trial court sentenced the defendant to 29 – 47 months imprisonment and suspended the sentence, placing the defendant on 60 months of supervised probation. The trial court also ordered the defendant to serve 330 days of imprisonment as a condition of special probation.
Defendant began to serve his term of special probation on October 7, 2014, and then served a 26-day term of imprisonment in a separate case. The defendant was released from imprisonment to supervised probation on September 28, 2015. The probation officer filed violation reports on January 23, 2020, February 5, 2020, and February 25, 2020. The trial court determined in a March 10, 2020 hearing that the defendant willfully violated the terms of his probation and activated the defendant’s suspended sentence. The defendant appealed.
The Court of Appeals determined that the trial court lacked subject matter jurisdiction to revoke the defendant’s probation. Pursuant to G.S. 15A-1351(a), the defendant’s total probationary period included his 330-day imprisonment as a condition of special probation. The Court reasoned that, at the latest, the defendant’s probationary period began on November 3, 2014, after he served his 26-day sentence in the other case. Thus, the defendant’s 60-month probationary period would have ended, at the latest, on November 3, 2019. Because the violation reports were all filed after that date, the trial court lacked subject-matter jurisdiction to revoke the defendant’s probation and activate his suspended sentence.
(1) An indictment for indecent liberties with a child that identified the victim only by her initials was not fatally defective; (2) The trial court did not commit plain error when it admitted statements from witnesses who expressed support for the victim and an opinion that the defendant committed a crime.
State v. Sechrest, ___ N.C. App. ___, ___ S.E.2d ___ (May 4, 2021). (1) In this Montgomery County case, the defendant was convicted of indecent liberties with a child and attaining the status of habitual felon. (1) The defendant argued on appeal that the indecent liberties indictment was fatally defective because it identified the alleged victim only by her initials. The Court of Appeals disagreed. First, the Court noted that State v. McKoy, 196 N.C. App. 650 (2009), held that identifying the victim by initials was sufficient for an indictment charging second-degree rape and second-degree sexual offense. The Court rejected the defendant’s argument that McKoy was overruled by State v. White, 372 N.C. 248 (2019), a case in which the North Carolina Supreme Court held that a sex offense indictment identifying the victim only as “Victim #1” was insufficient. Next, the Court considered whether the indictment would inform a person of reasonable understanding that the defendant was charged with indecent liberties with a child and whether the use of the victim’s initials protected the defendant’s constitutional rights to notice and freedom from double jeopardy. The Court found the indictment satisfied both requirements. A person with common understanding would know the intent of the indictment, and the record demonstrated that the defendant had notice of the victim’s identity. The arrest warrants listed the victim’s full name. The defendant was interviewed by officers regarding his contact with the victim, and he admitted that he knew her. The defendant did not argue that he had difficulty preparing his case because the initials were used rather than the victim’s full name. In addition, the victim testified at trial and identified herself by her full name in open court. The Court concluded there was no possibility that the defendant was confused regarding the victim’s identity; therefore the use of initials in the indictment provided the defendant with sufficient notice to prepare his defense and protect himself against double jeopardy.
(2) The defendant argued that the trial court plainly erred by admitting testimony and evidence that vouched for the victim’s credibility. The defendant objected on appeal (but not at trial) to the introduction of statements from Randolph County Department of Social Services employee Morgan Halkyer and Andrew, the victim’s uncle. Halkyer’s recorded interview with the victim was played for the jury. In that interview, Halkyer told the victim: “No kid should ever be put in that situation by an adult, you know, they’re an adult, they should know better.” The Court held that Halkyer did not impermissibly vouch for the victim’s credibility since her statements were not tantamount to an opinion that the victim was telling the truth. Instead, the statements provided the jury with the context of Halkyer’s interview. In that interview, Halkyer was not attempting to opine about whether the victim was truthful but was comforting the victim with general statements about adult behavior.
The defendant also argued that the trial court plainly erred in admitting text messages Andrew sent to the victim, in which stated that the defendant committed a crime. Among the texts was a statement that “they need to understand that a 40 year old man took you too [sic] his house and attempted inappropriate actions. It’s [sic] may not be sexual assault but it is illegal.” Considering that the jury was instructed that its role was to judge the believability of the witnesses, the victim’s extensive testimony at trial, and the defendant’s statement that “maybe things did go a little too far,” the Court found that the defendant failed to demonstrate that Andrew’s text messages had a probable impact on the jury’s verdict. Thus, the Court held that any error in the admission of this evidence was not plain error.