This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on November 15, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
COVID-19 emergency order did not deprive superior court of jurisdiction; modified jury selection procedure did not represent error; exhibits containing Facebook messages and firearm documentation were relevant and not barred as hearsay.
State v. Woodley, 2022-NCCOA-746, ___ N.C. App. ___ (Nov. 15, 2022). In this Pasquotank County case, defendant appealed his conviction for first-degree murder, arguing the trial court erred in several matters related to the COVID-19 pandemic and by admitting irrelevant and hearsay testimony. The Court of Appeals found no error.
In May of 2018, defendant was in an altercation in Elizabeth City; defendant pulled a gun as the victim ran away and shot him several times in the back. The matter reached trial on January 11, 2021, after delays related to COVID-19. On the first day of trial, defense counsel made a motion to continue, arguing that she did not feel safe proceeding due to COVID-19. The trial court denied the motion to continue. The trial was subject to capacity limitations and modified jury selection procedures to limit the proximity of those in the courtroom, leading to additional issues on appeal.
Defendant first argued that the trial court lacked subject-matter jurisdiction to hear the case, pointing to the emergency orders from then-Chief Justice Beasley issued on December 14, 2020, forbidding jury trials for the next thirty days unless a jury was already empaneled. The Court of Appeals noted that Chief Justice Newby was sworn in on January 1, 2021, and a commission to the superior court hearing the matter was issued on January 5. The new chief justice also issued an order effective January 14, 2021, allowing the emergency directives in question to expire. The court found that the emergency order did not remove the superior court’s jurisdiction, and “[t]he 5 January 2021 AOC commission for this session and the 13 January 2021 order from Chief Justice Newby effectively repudiated and superseded the 14 December 2020 order.” Slip Op. at 9.
Moving to defendant’s trial-related issues, the court first considered denial of the motion to continue, explaining that defendant could not show prejudice justifying a new trial because defense counsel “was legally prepared to try the case, but was solely worried about potential COVID-19 risks,” and defendant made “no showing of any deficient representation throughout trial.” Id. at 14. The court next considered the argument that defense counsel should have been barred under Emergency Directive 2 from the December 14, 2020, emergency orders, as this order forbid persons likely exposed to COVID-19 from entering the courthouse. Rejecting this argument, the court noted that defense counsel did not identify her likely exposure to the clerk or mention it in her motion to continue, meaning she never presented the issue to the court for consideration prior to her motion. Examining defendant’s argument that the courtroom closure for capacity reasons violated his right to a public trial, the court explained that he failed to preserve this issue on appeal and declined to apply Rule of Appellate Procedure 2 to revive it. Finally, the court rejected defendant’s challenge to jury selection, holding:
While the jury selection procedure the court utilized here may have varied the express requirement of N.C. Gen. Stat. § 15A-1214(d) requiring the State to pass a full panel of twelve prospective jurors . . . [d]efendant was not forced to accept any undesirable juror as a result of the passing of less than twelve prospective jurors during jury selection procedure under these circumstances.
Id. at 21-22, citing State v. Lawrence, 365 N.C. 506 (2012).
The court last turned to defendant’s challenge to the admission of Exhibits 54, 55, and 57. Exhibits 54 and 55 were Facebook messages, and Exhibit 57 was documentation of a handgun purchase. Noting the exhibits “were probative to issues of [d]efendant’s guilt, [d]efendant’s opportunity to acquire a weapon, and [d]efendant’s possible motive for the killing,” the court rejected defendant’s challenge to relevancy. Slip Op. at 25. The court then looked at the admission of Exhibit 54, a Facebook message exchange between defendant’s sister and the victim’s sister describing a dispute between defendant and the victim over payment for a gun. The court found no error in admitting this exchange, and noted that North Carolina law “permits declarations of one person to be admitted into evidence for the purpose of showing that another person has knowledge or notice of the declared facts and to demonstrate his particular state of mind.” Id. at 27, quoting State v. Swift, 290 N.C. 383, 393 (1976).
Defendant failed to show merit or prejudice justifying issuance of writ of certiorari where trial court excluded expert’s testimony after Rule 702 inquiry.
State v. Hawkins, 2022-NCCOA-744, ___ N.C. App. ___ (Nov. 15, 2022). In this Wake County case, defendant appealed his convictions for statutory rape and taking indecent liberties with a child, arguing the trial court improperly excluded testimony from his expert. The Court of Appeals dismissed defendant’s appeal.
In 2019, defendant had sex with a 15-year-old girl who he intercepted on her walk home from a bus stop. When the case reached trial, defendant attempted to have his expert, a registered nurse, testify that the victim was not penetrated by defendant. The State challenged this testimony under Rule of Evidence 704. After voir dire of the expert, the trial court would not allow her to testify regarding whether a sexual assault occurred, and defendant chose not to call her due to the limitation on her testimony. Defendant was convicted on all charges and timely appealed. Due to significant procedural errors in his notice of appeal, defendant filed a petition for writ of certiorari.
Walking through the procedural issues with defendant’s appeal, the court first noted the missing certificate of service issue was waived by the State when they failed to raise the issue and filed a reply brief. The court then pointed out defendant preserved the expert testimony issue for appeal by objecting during the trial, drawing a contrast with the procedural defect present in State v. Ricks, 378 N.C. 737, 741. Slip Op. at 10-11. However, defendant failed to “designate the judgment or order from which appeal is taken” as required by Rule of Appellate Procedure 4(b). This defect meant that defendant was required to show merit or prejudice justifying the issuance of a writ of certiorari to proceed. Id. at 12.
The court turned to the expert testimony issue under Rule of Evidence 702, explaining the two-prong test applicable to expert testimony conducted under the trial court’s discretion. The court explained the “trial court first applied the factors outlined in [Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)] when determining whether [defendant’s expert] was qualified as an expert, focusing on the absence of reliable principles and methods,” then “contemplated how to balance [defendant’s expert’s] lack of credentials and training with [d]efendant’s right to present a defense.” Id. at 15. Defendant failed to show any abuse of the trial court’s discretion during this process, leading the court to deny his petition and dismiss the appeal.
Verbal altercation did not negate first-degree murder charge when sufficient evidence showed premeditation and deliberation; trial court’s refusal of defendant’s “stand your ground” instruction was appropriate.
State v. Walker, 2022-NCCOA-745, ___ N.C. App. ___ (Nov. 15, 2022). In this Guilford County case, defendant appealed his convictions for first-degree murder and possession of a firearm by a felon, arguing the trial court erred by (1) denying his motions to dismiss, (2) giving an improper jury instruction on deliberation, and (3) failing to give defendant’s requested “stand your ground” instruction. The Court of Appeals found no error.
In 2017, defendant was at a house drinking alcohol with two other men when an argument broke out between defendant and the eventual victim. The victim yelled in defendant’s face and spit on him, threatening to kill defendant the next time he saw him. Notably, the victim’s threat was to kill defendant at a later time, and the victim stated he would not do so in the house where they were drinking. After the victim yelled in defendant’s face, defendant drew a pistol and shot the victim six times; defendant fled the scene and did not turn himself in until 18 days later.
Reviewing the trial court’s denial of defendant’s motions to dismiss, the court noted that “evidence of a verbal altercation does not serve to negate a charge of first-degree murder when ‘there was other evidence sufficient to support the jury’s finding of both deliberation and premeditation.’” Slip Op. at 8, quoting State v. Watson, 338 N.C. 168, 178 (1994). The court found such evidence in the instant case, with defendant’s prior history of quarrels with the victim, the number of gunshots, defendant’s fleeing the scene and remaining on the run for 18 days, and with defendant’s statements to his girlfriend regarding his intention to deny the charges.
The court then turned to the disputed jury instructions, first explaining that defendant’s request for an additional explanation on deliberation beyond that contained in Pattern Jury Instruction 206.1 was based on a dissenting opinion in State v. Patterson, 288 N.C. 553 (1975) which carried no force of law, and the instruction given contained adequate explanation of the meaning of “deliberation” for first-degree murder. Slip Op. at 11. The court next considered the “stand your ground” instruction, comparing the trial court’s instruction on self-defense to the version offered by defendant. Looking to State v. Benner, 380 N.C. 621 (2022), the court found that “the use of deadly force cannot be excessive and must still be proportional even when the defendant has no duty to retreat and is entitled to stand his ground.” Slip Op. at 14. The court also noted that the “stand your ground” statute requires proportionality in defendant’s situation, explaining “[d]efendant could use deadly force against the victim under [N.C.G.S. §] 14-51.3(a) only if it was necessary to prevent imminent death or great bodily harm, i.e., if it was proportional.” Id. at 16-17. Finally, the court determined that even if the trial court erred in failing to give the instruction, it was not prejudicial, as overwhelming evidence in the record showed that defendant was not under threat of imminent harm, noting “[l]ethal force is not a proportional response to being spit on.” Id. at 17.