This post summarizes opinions issued by the Court of Appeals of North Carolina on May 5, 2020.
Superior court judge’s order directing the State to disclose contents of criminal investigative file in any criminal matter in which the State intends to call a specified law enforcement officer as a witness was an improper advisory opinion that exceeded the scope of the judge’s power
In re Washington County Sheriff’s Office, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
The elected district attorney for prosecutorial district 2, which includes Washington County, filed an ex parte motion in superior court to determine whether a criminal investigative file contained potentially exculpatory information involving a Washington County law enforcement officer that the State would be required to disclose in cases in which it intended to call the officer as a witness. The motion was not filed in connection with any particular criminal prosecution. A superior court judge reviewed the file and ordered the district attorney’s office to disclose to defendant and/or defense counsel the contents of the investigative file in any criminal matter in which the State intended to call the officer as a witness.
The law enforcement officer was notified of the order and appealed.
Over a dissent, the Court of Appeals determined that the judge exceeded the limits of the court’s jurisdiction by entering an advisory opinion and vacated the order. The court reasoned that the order was an anticipatory judgment providing for the contingency that the officer would be called as a witness in a future criminal case. The order was “purely speculative” and amounted to an advisory opinion that the parties might “put on ice to be used if and when occasion might arise.” Slip op. at 6 (internal citations omitted). The court stated that the advisory nature of the order was especially evident if one considered the alternative scenario in which the judge ruled that the State was not required to disclose information contained in the investigative report. Such an order would not bind trial courts from independent determinations of disclosure obligations in future cases.
A dissenting judge would have concluded that the trial court had authority to enter the order and that the appellate court was without jurisdiction to reach the merits of the petitioner’s claims as the petition was not an aggrieved party to the proceeding from which he appealed.
Defendant’s possession of 6.51 grams of methamphetamine after leaving a residence under surveillance for drug-related complaints, defendant’s plans to visit a person charged with trafficking drugs, and his possession of plastic baggies were sufficient to show that defendant possessed with intent to sell or deliver methamphetamine
State v. Blagg, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
Defendant was stopped by law enforcement officers after leaving a house under surveillance for suspected drug activity. A trained narcotics dog alerted to defendant’s vehicle, which was subsequently searched. Officers discovered a bag containing 6.51 grams of methamphetamine, smaller baggies containing smaller amounts of an off-white crystalline substance that was not tested, unused syringes, a loaded syringe, cotton balls and additional plastic baggies. The officers did not find cash, weapons, cutting agents, scales, or business ledgers on defendant’s person or in the vehicle. After he was arrested, the defendant offered to provide information about a person wanted for drug trafficking, who we said he was going to meet. The defendant argued that this evidence was insufficient to establish that he had the intent to sell or deliver methamphetamine.
Over a dissent, the Court of Appeals rejected this argument, finding that the evidence supported an inference that Defendant had the intent to sell or deliver methamphetamine. While the quantity of methamphetamine could have been for defendant’s personal use, it was “not a small amount” and was sufficiently substantial to support an inference that the defendant possessed the drugs for purposes of distributing them. This inference was supported by testimony from a law enforcement officer that the typical transaction for methamphetamine was “anywhere from half a gram to one gram.” Using this standard, the defendant had more than six times, and up to 13 times, the amount of methamphetamine typically purchased.
In addition, the defendant was stopped after leaving a residence that had been under surveillance multiple times for drug-related complaints. Defendant thereafter admitted that he had plans to visit an individual charged with trafficking drugs. Finally, the officers seized plastic baggies that the jury could have reasonably inferred were used for the packaging and distribution of methamphetamine.
A dissenting judge would have concluded that the trial court erred in denying defendant’s motion to dismiss charges that he possessed methamphetamine with the intent to sell or deliver it. The dissent viewed the evidence as demonstrating “nothing more than possession of an amount of methamphetamine consistent with personal use, packaged in a single bag,” along with a few empty plastic bags and paraphernalia that indicated only drug use, not intended distribution.
Trial court did not abuse its discretion in (1) determining that a witness for the State was competent to testify despite his impairment and (2) denying the defendant’s motion for a mistrial based on the testimony from the impaired witness.
State v. Burgess, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
At the defendant’s trial for drug charges, a witness who purchased drugs from the defendant testified for the State. After the witness testified, the trial court expressed concern that the witness appeared to be impaired by drugs or alcohol. The court ordered the witness’s probation officer to drug-test the witness. The test was positive for amphetamines and methamphetamine. The probation officer testified before the jury about the testing of the witness and the positive results.
The defendant moved for a mistrial and to disqualify the witness under Rule of Evidence 601(b) and strike his testimony. The trial court denied both motions. The defendant was convicted of several drug charges and appealed.
The Court of Appeals found no error.
(1) Impairment by drugs does not render a witness incompetent if the witness is able to express himself well enough to be understood and is able to understand the obligation to testify truthfully. The Court of Appeals determined that the defendant failed to demonstrate that the witness did not meet this standard. The witness’s testimony was corroborated by other evidence, which, while not directly showing his competency, indicated that he was able to recall dates and events. The trial judge, who was in the best position to assess the competency of the witness, determined that he could understand the witness’s testimony and that the witness was generally understandable by the jurors. Given the trial court’s ample opportunity to observe the witness, it was not required to conduct a voir dire to assess the witness’s competency. Finally, the Court of Appeals noted that evidence of the witness’s impairment was presented to the jury, and jurors were free to determine whether they found the witness’s testimony credible. The Court of Appeals thus concluded that the trial judge did not abuse its discretion in denying the defendant’s motion to exclude and strike the witness’s testimony.
(2) A mistrial is a drastic remedy warranted only for serious improprieties that make it impossible to obtain a fair and impartial verdict. The Court of Appeals rejected the defendant’s argument that the giving of testimony by a key witness for the State who was impaired met this standard. The witness was competent to testify despite his impairment and the jury was informed of his impairment. Thus, the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.
A finding of no plain error does not preclude a finding of ineffective assistance of counsel
State v. Lane, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
Defendant was convicted in December 2016 of trafficking in opium or heroin and related offenses He appealed, arguing that the trial court erred by failing to instruct the jury that possession pursuant to a valid prescription was a defense to trafficking by possession. The Court of Appeals in State v. Lane, 257 N.C. App. 262 (2017) (unpublished), held the trial court did not commit plain error because defendant could not show that he was prejudiced by the lack of such an instruction. The defendant subsequently filed a motion for relief alleging ineffective assistance of counsel claim based on his trial counsel’s failure to request a jury instruction on the definition of “unlawful” in the context of trafficking by possession or an instruction that possession pursuant to a valid prescription was a defense to trafficking in possession.
The trial court denied relief, concluding that because the defendant was not prejudiced under the plain error standard, his ineffective assistance of counsel claim must also fail. The defendant sought certiorari review, which the Court of Appeals granted.
(1) The Court of Appeals held that the plain error standard and ineffective assistance of counsel test are not so similar that a finding of no plain error precludes a finding of ineffective assistance of counsel. Noting that neither the Court of Appeals nor the North Carolina Supreme Court has thoroughly examined and compared the two standards, the Court of Appeals took the opportunity to do so in Lane II.
Prejudice under plain error requires that the trial court’s error have had a probable impact on the jury’s finding of guilt. The plain error rule requires a defendant to show that the error in question tilted the scales and caused the jury to convict the defendant.
In contrast, prejudice under the ineffective assistance of counsel test requires a showing of reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Under the reasonable probability standard, a defendant does not have to show that counsel’s deficient conduct more likely than not altered the outcome in the case. The defendant does need to demonstrate, however, that at least one juror would have struck a different balance. While under the reasonable probability standard the likelihood of a different result must be substantial, not just conceivable, it is something less than that required under plain error.
There are other significant differences between the standards. Plain error is applied to trial court errors. Ineffective assistance of counsel applies to counsel errors and takes into account the objective reasonableness of counsel’s performance. Plain error relief requires there be settled precedent at the time of appellate review; the ineffective assistance standard considers available authority at the time of the allegedly deficient representation and may require that counsel raise material issues even absent decisive precedent.
Thus, the court concluded that when deficient performance by counsel creates a fundamentally unfair trial whose results are unreliable, an ineffective assistance of counsel claim will be successful despite the absence of plain error.
(2) Under the facts of the case, the Court of Appeals determined that trial counsel’s failure to request that the jury be instructed on the definition of “unlawful” and on the defense of possession pursuant to a valid prescription did not undermine confidence in the result and did not create a reasonable probability that the result of the proceeding would have been different.
Trial court erred in sentencing defendant for assault by strangulation (Class H felony) when defendant also was convicted of and sentenced for assault with a deadly weapon with intent to kill inflicting serious injury (Class C felony) based on the same conduct
State v. Prince, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
The defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury (Class C felony) and assault by strangulation (Class H felony) based on his assault of his wife. The defendant’s wife was rendered unconscious during the assault and was hospitalized for three days as a result of her injuries, which include bruises around her neck, brain bleed, multiple contusions, and burst blood vessels in her eyes.
The trial court consolidated the offense for judgment and sentenced the defendant to a minimum of 73 and a maximum of 100 months imprisonment.
The assault by strangulation statute, G.S. 14-32.4(b), provides that “[u]nless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts physical injury by strangulation is guilty of a Class H felony.” Id. (emphasis added).
The defendant argued that on appeal that because his assaultive conduct was covered by a statute providing greater punishment – namely, the offense of assault with a deadly weapon with intent to kill inflicting serious injury, for which he was convicted – the trial court violated the statutory mandate in G.S. 14-32.4(b) when it sentenced him for assault by strangulation.
The State argued that there were two separate assaults supporting each of the charges. The assault leading to the more serious offense was with fists. The other assault was by strangulation.
Over a dissent, the Court of Appeals agreed with the defendant. It rejected the State’s argument on the basis that there was no evidence of a distinct interruption between the assaultive conduct. Instead, the evidence showed that the victim’s injuries resulted from a single, if prolonged, assaultive act. The appellate court held that because the two offenses arose from the same conduct, the trial court erred in sentencing the defendant for assault by strangulation. The court vacated the defendant’s conviction for assault by strangulation and remanded the case to the trial court for resentencing.
A dissenting judge would have found no error on the basis that an assault by intentionally strangling the victim is not the same conduct as intentionally striking the victim with fists or hands.
(1) Defendant waived appellate review of Fourth Amendment claim by failing to move to suppress evidence before the trial court; (2) Trial court erred by entering civil judgments for fees without first providing the defendant with notice and an opportunity to be heard
State v. Ray, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
The defendant was convicted of trafficking in opium or heroin. He argued on appeal that the trial court committed plain error by allowing the State to introduce into evidence the drugs found in his vehicle. The Court of Appeals concluded that the defendant waived appellate review of this claim because he did not move before the trial court to suppress evidence of the hydrocodone tablets and there was no suppression hearing. In such circumstances, the appellate court lacks the fully developed record necessary to conduct plain error review.
The Court of Appeals further held that the trial court improperly imposed attorney’s fees and an attorney-appointment fee against Defendant without providing him with notice and an opportunity to be heard. Thus, the court vacated the civil judgments imposing attorney’s fees and the attorney-appointment fee, and remanded for further proceedings.
(1) Trial court did not err in denying the defendant’s motion to suppress evidence of a show-up identification as the show-up was carried out in accordance with the North Carolina Eyewitness Identification Reform Act and was not impermissibly suggestive; (2) Because officers complied with the show-up procedures in G.S. 15A-284.52(c1), defendant was not entitled to a jury instruction on noncompliance with the Act
State v. Reaves-Smith, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
Two men attempted to rob the victim in a McDonald’s parking lot. One of the suspects fired a gun, and both suspects fled. The victim ran to a nearby parking lot, where he found a law enforcement officer. The victim told the officer what had occurred and described the suspects. Two suspects matching the description were located nearby a few minutes later. When officers approached, the defendant ran. He was apprehended a few minutes later. The victim was taken to the location where the defendant was apprehended, and the victim identified the defendant as the person with a gun who had tried to rob him earlier. The identification was recorded on one of the officer’s body cameras.
The defendant was indicted for attempted robbery with a dangerous weapon. He moved to suppress the victim’s show-up identification. The trial court denied the motion, and the defendant was convicted at trial. The defendant appealed, arguing that the trial court erred when it denied his motion to suppress evidence of the show-up identification and when it failed to instruct the jury about purported noncompliance with the North Carolina Eyewitness Identification Reform Act (“the Act”).
(1) G.S. 15A-284.52(c1) of the Act provides that
- A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness;
- A show-up may only be performed using a live suspect; and
- Investigators must photograph a suspect at the time and place of the show-up to preserve a record of the suspect’s appearance at the time of the show-up.
The Court of Appeals determined that the trial court made findings that supported each of these requirements. The defendant, who matched the victim’s description, was detained less than a half-mile from the site of the attempted robbery. He was suspected of a violent crime that involved the discharge of a firearm and he fled when officers first attempted to detain him. These circumstances required an immediate display of the defendant. An armed suspect who is not detained poses an imminent threat to the public. And had the victim determined that the defendant was not the perpetrator, officers could have released the defendant and continued their search. Finally, the show-up involved a live suspect and was recorded on camera.
The Court of Appeals rejected the defendant’s argument that the Act requires law enforcement officers to obtain a confidence statement and information related to the victim’s vision. G.S. 15A-284.52(c2) requires the North Carolina Criminal Justice Education and Training Standards Commission to develop a policy regarding standard procedures for show-ups. The policy must address “[c]onfidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.” The court reasoned that because G.S. 15A-284.52 does not place additional statutory requirements on law enforcement, but instead requires the North Carolina Criminal Justice Education and Training Standards Commission to develop nonbinding guidelines, only G.S. 15A-284.52(c1) sets forth the requirements for show-up identification compliance.
The court further determined that the show-up did not violate the defendant’s due process rights as it was not impermissibly suggestive and did not create a substantial likelihood of misidentification.
(2) G.S. 15A-284.52(d)(3) provides that when evidence of compliance or noncompliance with “this section” of the Act is presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications. The defendant argued on appeal that he was entitled to a jury instruction on noncompliance with the Act because the officer did not obtain an eyewitness confidence level under G.S. 15A-284.52(c2)(2). The Court of Appeals rejected that argument on the basis that G.S. 15A-284.52(c2) concerns policies and guidelines established by the North Carolina Criminal Justice Education and Training Standards Commission, not the requirements for show-up identifications. Because the officers complied with the show-up procedures in G.S. 15A-284.52(c1), the defendant was not entitled to a jury instruction on noncompliance with the Act.
(1) Defendant was not prejudiced by remarks made by the prosecutor in closing argument given the evidence of guilt presented by the State; (2) Trial court’s order imposing lifetime satellite-based monitoring was unconstitutional
State v. Ricks, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
The defendant was convicted in a jury trial of multiple counts of statutory rape of a child, statutory sex offense with a child, and taking indecent liberties with a child. The trial court sentenced the defendant to 300 to 420 months of imprisonment and ordered lifetime satellite-based monitoring (“SBM”) upon his release from prison. The defendant appealed from his conviction, arguing that the State made improper closing arguments. He also argued that the trial court erred in imposing lifetime SBM because the State failed to establish that SBM constitutes a reasonable search under the Fourth Amendment.
(1) The defendant argued on appeal that several of the prosecutor’s statements in closing argument were improper and prejudicial, identifying five sets of objectionable arguments.
(a) The defendant argued that the prosecutor’s statements to the jury that they “cannot consider what they did not hear” and could not “speculate about what people that did not come into court and did not put their hand on the Bible and did not swear to tell you the truth might have said” improperly commented on the defendant’s exercise of his Fifth Amendment right not to incriminate himself. Assuming without deciding that these comments referred to the defendant’s exercise of his Fifth Amendment right not to testify, the Court of Appeals concluded that arguments were harmless beyond a reasonable doubt given the overwhelming evidence of defendant’s guilt.
(b) The defendant argued that the prosecutor improperly commented, in reference to the juvenile victims’ testimony, that “[a]dults have to bring them into court and ask them to tell a roomful of strangers about these sexual acts to try and prevent them from occurring in the future to others.” The defendant contended that this comment impermissibly (1) criticized his exercise of the right to a jury trial, and (2) suggested that the juvenile victims had to testify to prevent him from committing future crimes. Assuming without deciding that the prosecutor’s comment referred to the defendant’s right to trial, the Court of Appeals concluded that any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt. As for the second basis of the defendant’s objection, the court noted that specific deterrence arguments are proper and determined that the trial court did not abuse its discretion in overruling the defendant’s objection to this comment in closing argument.
(c) The defendant contended that the prosecutor impermissibly told the jury that if they acquitted the defendant, “You will be telling [the juvenile victims] it was their fault.” The defendant argued that the statement improperly focused the jury’s attention on how the juvenile victims would interpret a verdict of not guilty rather than on determining whether the State had proven its case against the defendant. The Court of Appeals determined that given the evidence of defendant’s guilt, the prosecutor’s statement was not so grossly improper as to justify a new trial.
(d) The defendant argued that the prosecutor presented an argument that was calculated to mislead or prejudice the jury when he referred to expert testimony about the probability of a random match for the defendant’s DNA profile. The prosecutor told the jury: “If you saw that statistical number [one in 9.42 nonillion] and thought there was still a chance that’s not the defendant’s DNA found in [N.M.], that’s an unreasonable doubt.” Assuming without deciding that the prosecutor’s statement improperly conflated the “chance that’s not the defendant’s DNA found in [N.M.]” with the one in 9.42 nonillion chance of a random match, the Court of Appeals did not find that the statement rendered the conviction fundamentally unfair.
(e) Finally, the defendant argued that the trial court erred in failing to intervene when the prosecutor said, “The DNA tells the truth. The girls told the truth.” The defendant contended that this statement was a prohibited expression of the prosecutor’s personal opinion about the veracity of evidence and witness credibility. The Court of Appeals noted that while an attorney may not express his personal belief as to the truth or falsity of the evidence or as to the guilt or innocence of the defendant, a prosecutor may argue that the State’s witnesses are credible. Considering the record as a whole, the court concluded that the comment did not rise to the level of fundamental unfairness given the evidence presented at trial. The court noted that the State presented the testimony of both juvenile victims, the testimony of the victims’ family members that corroborated their testimony, and the testimony of forensic experts that showed that Defendant’s DNA matched the sperm collected from one of the juvenile victim’s rape kit. Given this overwhelming evidence of guilt, the court was unable to conclude that the prosecutor’s comments prejudiced the defendant.
(2) Over a dissent, the Court of Appeals granted certiorari review of the trial court’s order imposing lifetime SBM and invoked Rule 2 of the Rules of Appellate Procedure to consider the defendant’s constitutional claim, which was not raised before the trial court.
The trial court determined at sentencing that the defendant was convicted of reportable convictions pursuant to G.S. 14-208.6(4) and that statutory rape of a child by an adult and statutory sex offense were sexually violent offenses and aggravated offenses involving the sexual abuse of a minor. Pursuant to these findings, the court ordered that the defendant enroll in lifetime SBM upon his release from imprisonment.
The trial court did not, however, conduct a hearing to determine the constitutionality of ordering the defendant to enroll in SBM, as required by State v. Grady, 259 N.C. App. 664 (2018), aff’d as modified, 372 N.C. 509 (2019), and the State did not present any evidence regarding the reasonableness of an SBM search, which would be carried out following the defendant’s release from prison in 25 to 35 years.
The Court of Appeals held that the trial court’s failure to hold a hearing to determine the reasonableness of lifetime SBM for the defendant rendered the SBM order unconstitutional. The court thus vacated the imposition of lifetime SMB without prejudice to the State’s ability to file a subsequent SBM application.
A dissenting judge would have dismissed the defendant’s petition for certiorari review of the SBM order based on his failure to raise the constitutional challenge before the trial court.
(1) The trial court did not abuse its discretion in revoking defendant’s supervised probation based on a finding that the defendant willfully absconded; (2) Judgment inaccurately stating that defendant waived a violation hearing for which he appeared contained a clerical error that may be corrected on remand
State v. Rucker, ___ N.C. App. ___, ___ S.E.2d ___ (May 5, 2020)
(1) The defendant was convicted of drug offenses in Gaston County on July 5, 2017 and was sentenced to 24 months of supervised probation. After reporting for his intake visit with a Gaston County probation officer, the defendant avoided probation officers for several months. Probation officers attempted on six separate occasions to verify defendant’s residence at the address he provided. He was not present for any of these visits. On two of the visits, individuals who knew the defendant told the officers that the defendant no longer lived at the residence or that he planned to move from the residence.
Despite being on notice to maintain regular contact with probation officers, no probation officer met with the defendant in person following his initial intake visit before the first violation report alleging absconding was filed on September 14, 2017. On the few occasions that a probation officer could reach the defendant by phone, the officer notified the defendant that a home visit was scheduled. The defendant was absent from the home on those occasions and failed to apprise his probation officer of his whereabouts.
Even after the defendant was released from custody after being arrested for alleged probation violations relating to absconding, he failed to report to his probation officer within 24 hours as instructed. After defendant’s case was transferred from Gaston County to Lincoln County in March 2018, officers continued to have difficulty contacting him. And he failed to notify officers upon getting evicted from his listed residence.
An addendum was filed to the defendant’s probation violation report on May 31, 2018 alleging an additional incident of absconding. The trial court found that the defendant violated his probation by absconding and ordered his probation revoked. The defendant appealed, arguing that the trial court erred in revoking his probation based on its finding that he willfully absconded from supervision.
The Court of Appeals found the State’s allegations and supporting evidence––reflecting defendant’s continuous, willful pattern of avoiding supervision and making his whereabouts unknown––sufficient to support the trial court’s exercise of discretion in revoking defendant’s probation for absconding.
(2) The trial court checked the box on the judgment form stating that the defendant waived a violation hearing and admitted the violations. This was inaccurate, as the record reflects that the defendant was present for his probation hearing and testified as a witness. The Court of Appeals determined that the trial court committed a clerical error when it checked the box indicating otherwise and remanded the case to allow the trial court to correct the error.