This post summarizes opinions issued by the Court of Appeals of North Carolina on October 20, 2020.
(1) The trial court did not make a record adequately addressing its consideration of the totality of the circumstances in ruling on the defendant’s Batson claim. (2) The trial court erred by assessing costs in each of four judgments against the defendant in violation of State v. Rieger.
State v. Alexander, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 20, 2020). (1) The defendant, on trial for multiple drug charges, challenged the prosecutor’s peremptory strike of the only Black juror in the venire under Batson v. Kentucky. The trial court overruled the defendant’s objection, finding that although the “100 percent rejection rate of African American jurors” established a prima facie showing of discrimination, the State gave credible race-neutral reasons for striking the prospective juror, and the defendant therefore did not prove purposeful discrimination. The defendant appealed, arguing that the trial court erred in denying his Batson challenge or, in the alternative, failed to make adequate findings of fact as required by State v. Hobbs, 374 N.C. 345 (2020). The Court of Appeals rejected the State’s argument that the defendant had not preserved the issue because the record did not disclose direct evidence of the race of the challenged juror and the jury selection process was not recorded. The Court held that the record sufficed to permit appellate review when the record of the Batson hearing included express statements, undisputed by the State, that the defendant was African American and that the lone African American in the jury pool was excluded. On the merits of the Batson challenge, the Court concluded that the trial court failed to make sufficient findings of fact on its comparative analysis of the answers regarding prior criminal history given by the stricken Black juror (who had a previous child abuse charge dismissed) and a White juror passed by the State (who had a prior drug charge dismissed). The trial court also failed to make findings of fact on the defendant’s argument that the State’s purported concern about the defendant’s “tone of voice” suggested racial bias. The Court remanded the matter to the trial court for specific findings, including, but not limited to the details of the court’s comparative juror analysis and on the defendant’s assertion that the prosecutor’s statements regarding the defendant’s answers to questions and tone of voice evinced racial bias. (2) The trial court erred by assessing costs in each of the four judgments against the defendant. Under State v. Rieger, ___ N.C. App. ___, 833 S.E.2d 699 (2019), the trial court should assess costs only once for cases adjudicated together in the same hearing or trial regarding multiple charges arising from the same underlying event or transaction.
(1) Based on the facts of this case, an officer had reasonable suspicion to believe the defendant was using a cell phone while driving in a manner proscribed by law. (2) The defendant was sentenced at the incorrect prior record level.
State v. Dalton, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 20, 2020). A police officer stopped the defendant for suspected texting while driving. When the officer returned to his vehicle to check on the defendant’s identity, the defendant fled. (1) Before his trial on charges of texting while driving and felony fleeing to elude, the defendant moved to suppress the evidence obtained during the stop. At the suppression hearing, the officer testified that he did not stop the defendant for merely using the phone, but rather for using it in a manner that he reasonably believed ran afoul of G.S. 20-137.4A(a), North Carolina’s prohibition on texting and emailing while driving. The officer testified that the defendant was using and handling the phone in a manner more consistent with texting or reading text messages than with using a mapping system. The trial court denied the defendant’s motion and the defendant was convicted of felonious fleeing to elude. On appeal, the defendant argued that the trial court committed plain error by concluding that the officer was justified in stopping his car solely based on his observation that the operator was using a cell phone while driving. The Court of Appeals disagreed, holding that under the specific facts of this case, which included additional indicia of criminal activity beyond mere phone use, the trial court did not err by finding that the officer had reasonable, articulable suspicion to believe that the defendant was using the phone in a manner proscribed by law. The Court emphasized that its holding should not be viewed as establishing a test for meeting the reasonable suspicion requirement in other texting while driving cases. (2) The Court remanded the case for the defendant to be sentenced at prior record level two instead of level three, as his prior record level worksheet improperly counted a point for a prior misdemeanor. The Court rejected the State’s argument that the improperly counted point could be offset by adding for the first time an additional point under G.S. 15A-1340-14(b)(7) for the defendant being on probation at the time of the offense, as the State did not comply with the statutory notice procedures for that point.
The trial court did not err when it declined to instruct the jury on the defense of habitation.
State v. Dilworth, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 20, 2020). In this assault with a deadly weapon inflicting serious injury case, the trial court did not err by declining to instruct the jury on the defendant’s requested instruction on the defense of habitation. The victim was riding on his ATV when the defendant attacked him from behind and stabbed him with a steak knife, thinking the victim was on his (the defendant’s) property. During the attack, the victim said “I don’t know who you are.” After the victim identified himself and told the defendant he had permission to ride on the property, the defendant renewed his attack. The defendant testified that the purpose of the attack was get an intruder off his premises, although he also said that he was not aware of the property line. The trial court denied the defendant’s request to instruct the jury on self-defense and defense of habitation, based on the fact that the the victim was not operating the ATV in the curtilage of the defendant’s home and the defendant did not even know where the property line was. The Court affirmed the trial court’s denial of the defendant’s request for an instruction on defense of habitation when there was no evidence that the victim had entered or was in the process of entering his home as required by G.S. 14-51.2(b)(1). Though the definition of “home” includes the home’s curtilage, it does not include an area 200–250 feet away from the defendant’s residence, and apparently not on the defendant’s property at all.
A six-year delay from the defendant’s arrest until his trial violated the his right to a speedy trial when the State failed to present valid reasons for the delay.
State v. Farook, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 20, 2020). In June 2012, the defendant was driving a vehicle that collided with a motorcycle, killing two victims. He was initially charged in 2012 with felony death by vehicle, reckless driving to endanger, driving left of center, driving while license revoked, and felony hit and run resulting in death. His first appointed lawyer withdrew in 2012, and his second appointed lawyer withdrew in 2017. Shortly thereafter in 2017, he was indicted for two counts of second-degree murder and attaining the status of violent habitual felon. In 2018, the defendant’s third lawyer filed a motion to dismiss on speedy trial grounds. The trial court denied the motion and in October 2018 the defendant was tried, convicted, and sentenced to life without parole. On appeal, the defendant argued that the six-year delay between his initial charge and his trial violated his right to a speedy trial under the federal and state constitutions. Analyzing his claim under the four-factor balancing test set forth in Barker v. Wingo, 407 U.S. 514 (1972), the Court of Appeals agreed. As to the first factor, the length of the delay, the Court held that the six-year delay here was clearly sufficient to create a presumption of prejudice to the defendant. As to the second factor, the reason for the delay, the Court first noted that the trial court did not properly recognize that in light of the presumption raised by the first factor, the burden shifted to the State to offer explanations for the delay. As to the substance of the information offered regarding the delay, the Court held that the trial judge plainly erred in allowing the defendant’s second lawyer to testify on behalf of the State to explain the delay when the defendant had not waived attorney-client privilege regarding his communications with that lawyer. Disregarding the evidence from that lawyer, the State offered no explanation or excuse for the delay, and thus failed to meet its burden. The Court declined to rely on factual findings from an earlier appellate case, State v. Farmer, ___ N.C. App. ___, 822 S.E.2d 556 (2018), regarding a “crowded docket” in Rowan County to support the State’s argument, as the record here lacked supporting evidence and in any event failed to account for more than two years of the six-year delay. As to the third factor, the defendant’s assertion of his right to a speedy trial, the Court concluded that the factor carried little weight. And as to the final factor, prejudice, the Court concluded that the defendant’s longtime imprisonment, lengthy delay before the most serious charges were even brought, and far greater sentence exposure supported his claim of prejudice, as he was unable to assist in his trial preparation and attempt to find potential witnesses and other information that would have been available earlier. Indeed, the court said, the delay was so substantial that its duration alone speaks to prejudice. The trial court erred in considering any alleged prejudice to the State due to the delay; the Sixth Amendment protects the defendant, not the State. Considering all of the Barker factors, the Court reversed the trial court’s order denying the defendant’s motion to dismiss and vacated the defendant’s judgments due to a violation of his constitutional rights to a speedy trial.
The defendant was not seized by the activation of an officer’s blue lights.
State v. Nunez, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 20, 2020). The defendant was charged with impaired driving after being involved in a single car accident in a Biscuitville parking lot. The trial court denied the defendant’s motion to suppress the evidence obtained by the arresting officer, who was actually the second officer to arrive on the scene. The defendant argued that the first officer who arrived on the scene and activated the blue lights on her patrol vehicle lacked reasonable suspicion to seize him. The Court of Appeals held that the defendant was not seized by the mere activation of the first officer’s blue lights, and that the trial court therefore did not err by denying the motion to suppress. Activation of an officer’s blue lights is a factor in determining whether a seizure has occurred, but where, as here, there was no other action on the part of the officer to stop the vehicle or otherwise impede the defendant, he was not seized.
The record before the court was not sufficient to review defendant’s speedy appeal and ineffective assistance of appellate counsel claims on direct appellate review.
State v. Quick, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 20, 2020). In 2000, the defendant was convicted of felony possession of cocaine, possession of a firearm by a felon, possession of a weapon on school property, misdemeanor resisting a public officer, second-degree trespass, and carrying a concealed weapon. The defendant gave notice of appeal in open court and a lawyer was notified that he was responsible for the defendant’s appeal. That lawyer withdrew in 2002 and a new lawyer, Mr. Hinton, was appointed. Nothing was done to process the appeal until 2019 when the Appellate Defender was appointed to represent the defendant. Mr. Hinton had mistakenly allowed time to lapse for preparing the appeal. The defendant argued that he was deprived of his right to a speedy appeal and effective assistance of counsel during the nineteen years it took to process his appeal. The Court considered the following factors, derived from State v. China, 150 N.C. App. 469 (2002), in its analysis: the length of the delay; the reason for the delay; defendant’s assertion of his right to a speedy appeal; and any prejudice to defendant. The Court found that the first two factors were relatively well-established on the record because nineteen years was a very lengthy delay and the defendant’s prior appellate counsel acknowledged his mistake. However, analysis of the remaining factors required additional evidentiary development. The Court therefore dismissed the appeal without prejudice so that the Defendant could seek a Motion for Appropriate Relief in the trial court to develop the facts relevant to his claim.
(1) Violations of marine fisheries regulations are strict liability offenses. (2) The trial court did not err in failing to instruct the jury on willfulness, despite charging language alleging that the defendant acted willfully.
State v. Waterfield, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 20, 2020). The defendant, a fisherman, was charged with violating marine fisheries regulations after he left gill nets and crab pots unattended for too long. The officer that cited Defendant for these violations used a form citation indicating that the Defendant was being charged with committing these regulatory violations “unlawfully and willfully.” The defendant was convicted by a jury of the unattended gill net offense in superior court. (1) On appeal, the defendant argued that the trial court committed plain error by failing to instruct the jury that the State must prove that his violation was willful, contending that the offense was not a strict liability offense. The Court of Appeals disagreed, concluding that G.S. 113-135(a), the statute that criminalizes the conduct at issue, did not establish a mens rea for the offense. The Court rejected the defendant’s argument that the General Assembly did not authorize the creation of strict liability regulatory offenses. In light of the language of the statutes governing these “public welfare” offenses, their relatively minor punishment, and the logistical difficulty of investigating the willfulness of every such violation, the Court held that they are strict liability offenses that do not require the State to prove intent. (2) The Court also held that the trial court did not err in failing to instruct the jury on willfulness, despite the language in the charging instrument alleging that the defendant acted “willfully.” That language went beyond the elements of the offense and was properly disregarded as surplusage.
(1) The trial court erred by granting the defendant’s motion for appropriate relief based on newly discovered evidence. (2) The trial court erred in concluding as an independent ground for decision that the defendant’s due process rights would be violated if he were not allowed to present evidence at a new trial.
State v. Reid, ___ N.C. App. ___, ___ S.E.2d ___ (Oct. 20, 2020). The defendant, who was 14 years old at the time of the offense, was convicted of first-degree murder in 1997. In 2018, the trial court granted a motion for appropriate relief and vacated his conviction based on newly discovered evidence in the form of an affidavit from William McCormick indicating that other young men committed the crime. The Court of Appeals agreed with the State’s arguments that the trial court abused its discretion when it granted the defendant a new trial based on newly discovered evidence, and erred when it determined that the defendant’s due process rights would be violated if he were not allowed to present the evidence at a new trial. (1) As to the first argument, the Court held that the defendant failed to prove the purported newly discovered evidence as required under seven-factor analysis set out in State v. Beaver, 291 N.C. 137 (1976). Based on inconsistencies between McCormick’s testimony and his affidavit and internal inconsistencies in the affidavit itself, the Court could not agree with the trial court’s conclusion that the purported new evidence in it was “probably true.” Moreover, the information in McCormick’s testimony did not meet the requirement in G.S. 15A-1415(c) that newly discovered evidence “must be unknown or unavailable to the defendant at the time of trial in order to justify relief.” To the contrary, the defendant’s trial attorney had indications that McCormick may have had information about the crime but failed to use a subpoena or material witness order to secure his testimony for trial. Furthermore, despite McCormick’s known presence at the defendant’s trial, the defendant’s attorney never alerted the trial court, asked for a continuance or recess, or otherwise took steps to get information from him. As such, the evidence was not unknown or unavailable at the time of trial. The Court also concluded that McCormick’s testimony was not “competent, material, and relevant” as to the statements made by Robert Shaw about the purported true killers because that testimony was inadmissible hearsay. The Court held that the trial court abused its discretion by concluding that the evidence was admissible under the residual exception in Rule 803(24), as there was no indication in the record that the defendant satisfied the requirement to give the State notice of its intent to offer evidence pursuant to the rule. (2) As to the State’s second argument, the Court agreed that the trial court erred in concluding as an independent ground for decision that the defendant’s due process rights would be violated if he were not allowed to present McCormick’s testimony at a new trial. The Court concluded that the Beaver factors set out the test for determining whether the defendant is entitled to a new trial, and the defendant did not satisfy them. A concurring judge noted that the Court’s holding did not bar the defendant from seeking post-conviction relief through a claim for ineffective assistance of counsel.