This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on October 3, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Defendant knowingly and intentionally waived his right to counsel and forfeited his right to counsel through misconduct, justifying denial of his motion to continue to obtain new counsel; testimony regarding an encounter with a prostitute one day after the crime in question was relevant and admissible.
State v. Moore, COA22-714, ___ N.C. App. ___ (Oct. 3, 2023). In this Onslow County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denial of his right to counsel, (2) denial of his motion to continue, and (3) allowing a witness to testify about unrelated allegations against him. The Court of Appeals found no error.
After Thanksgiving in 2017, defendant borrowed his girlfriend’s car and drove from Florida to North Carolina, telling her that he was visiting family. After arriving in North Carolina, defendant contacted a prostitute and eventually killed her and buried her body in a remote area at the end of a dirt road. During the same December 2017 time period, defendant met with a different prostitute, who would later testify about how defendant took her to the same area, raped her, and stole all the money from her purse. When defendant indicted for murder in 2018, he was represented by his sister, a Georgia attorney who was admitted pro hac vice for the trial. Defendant also had a series of local attorneys represent him, all of whom withdrew due to disputes with defendant and his sister. During these disputes, defendant’s sister apparently filed several complaints with the N.C. State Bar against defense counsel and prosecutors. Eventually, the trial court revoked the sister’s pro hac vice admission due to her lack of experience and interference with other counsels’ ability to prepare. When the matter reached trial, defendant had another appointed counsel, but several days after opening statements, the appointed counsel moved to withdraw, explaining that defendant had asked her to stop representing him; she also informed the trial court defendant had implied she should withdraw for her own safety. The trial court conducted a colloquy with defendant, where defendant told the trial court he was not happy with the appointed counsel and understood that he would be forfeiting his right to an attorney. After the trial court allowed counsel to withdraw, the trial went forward with defendant representing himself; he did not present evidence, cross-examine witnesses, or provide a closing argument. Defendant was ultimately convicted, and subsequently filed a motion for appropriate relief (MAR). The trial court denied the MAR, finding that defendant forfeited his right to counsel by misconduct. Defendant’s appeals of his conviction and the denial of his MAR led to the current opinion.
Taking up (1), the Court of Appeals first explained the distinction between a knowing and voluntary waiver of counsel under G.S. 15A-1242, and forfeiture of counsel by misconduct, referencing State v. Blakeney, 245 N.C. App. 452 (2016). Although the record indicated that defendant signed a written waiver of counsel that was certified by the trial court, the waiver was not included on appeal. Despite this absence, the court explained that the missing waiver and certification document did not invalidate defendant’s waiver of his right to counsel. After determining the trial court clearly advised defendant of his rights and the consequences of waiving an attorney, the court found that defendant had “clearly waived and/or forfeited his right to further court-appointed counsel.” Slip Op. at 32. The court then explored the forfeiture ruling, noting that the N.C. Supreme Court had first recognized that a defendant could forfeit counsel in State v. Simpkins, 373 N.C. 530 (2020), and had expanded on the analysis in State v. Harvin, 382 N.C. 566 (2022), and State v. Atwell, 383 N.C. 437 (2022). Slip Op. at 35-36. After examining defendant’s conduct, including the interference from his sister and the seven attorneys representing him through the process, the court concluded defendant had committed “serious misconduct” sufficient to forfeit counsel, in addition to his “knowing and voluntary waivers of counsel.” Id. at 42.
Turning to (2), the court explained that defendant filed his motion intending to replace the attorney he had just fired after the jury was already empaneled and the State was presenting its case-in-chief. Because no attorney could have adequately represented him in the middle of his trial, and defendant had waived and forfeited his right to counsel in (1), the court found no error in denial of the motion.
Considering (3), the court established that the objection was not properly preserved for review, and that the review was under a plain error standard. The court then turned to the substance of the second prostitute’s testimony that defendant had raped her and the other details of the encounter, explaining that defendant asserted it was not relevant and inadmissible. Here the court disagreed, explaining that the details were admissible and relevant under Rules of Evidence 401 and 402. The court likewise found the testimony admissible under Rule of Evidence 404(b), explaining that the proximity and similarity of the events along with the prostitute’s testimony identifying defendant “far exceed” simply showing defendant had “the propensity or disposition to commit” the offense. Id. at 55. Finally, the court found no error with the trial court’s conclusion that the events described in the testimony were sufficiently similar and not too remote in time from the events of the crime to be considered prejudicial and inadmissible under Rule of Evidence 403.
Defense counsel’s statements portraying defendant’s actions as voluntary manslaughter instead of murder did not represent Harbison error; jury instruction on aggressor doctrine was justified while stand your ground doctrine instruction was not justified; prosecutor’s reference of minimum sentences was not violation of law.
State v. Parker, COA23-90, ___ N.C. App. ___ (Oct. 3, 2023). In this Gates County case, defendant appealed his conviction for first-degree murder, arguing (1) ineffective assistance of counsel, and error in (2) jury instructions and (3) failing to intervene ex mero motu during the State’s closing argument. The Court of Appeals found no ineffective assistance and no error.
While entering a barbershop in December of 2018, defendant ran into an acquaintance (the victim) with whom he had a contentious relationship. The two exchanged words about defendant’s newborn daughter, where the acquaintance implied that defendant was not the father. Later that night after a series of phone calls, defendant and several friends went over to the acquaintance/victim’s house. After defendant arrived, he and the victim began arguing in the driveway, leading to a fistfight. After several minutes, defendant walked backwards down the driveway while the victim continued to come towards him with his hands up; defendant then shot the victim five times. Defendant fled the scene but was later apprehended walking on the side of the road. At trial, defendant’s counsel told the jury that if they found defendant used excessive force to defend himself in the situation, that would be voluntary manslaughter, not murder. Counsel also stated in closing arguments that defendant intentionally went to the victim’s house, while defendant had testified that he had fallen asleep in his friend’s car and ended up at the house unintentionally. During the State’s closing argument, the prosecutor alerted the jury to the fact that the minimum sentence for voluntary manslaughter was 38 months, suggesting the punishment would not be severe enough for the serious crime committed. When providing jury instructions, the trial court instructed the jury on the aggressor doctrine but did not provide an instruction on stand your ground laws; defendant did not object to the instructions.
Taking up (1), the Court of Appeals explained that defendant’s first argument regarding his counsel represented conceding guilt without prior consent, a prejudicial error under State v. Harbison, 315 N.C. 175 (1985). Defendant argued that his counsel’s statements regarding use of excessive force and voluntary manslaughter represented a concession or implication of defendant’s guilt. The court disagreed, explaining that defendant was charged with first-degree murder and “the transcript reveals his counsel advocating for the jury to find Defendant either not guilty, or guilty of voluntary manslaughter.” Slip Op. at 7-8. The court also disagreed with defendant that defense counsel contradicting his testimony represented ineffective assistance. The court explained that nothing else in the record supported defendant’s testimony that he fell asleep in the car and inadvertently ended up at the victim’s house. Additionally, the purpose of this contradiction was defense counsel’s attempt to convince the jury that defendant “lacked the requisite intent to be found guilty of first-degree murder.” Id. at 10.
Reaching (2), the court explained that it reviewed the jury instructions for plain error because defendant did not object during the trial; after review, the court concluded “that jury instructions regarding the aggressor doctrine were warranted, and instructions on stand your ground laws were not.” Id. at 11. Here, testimony in the record suggested that defendant may have initiated the fight with the victim through a phone call prior to his arrival, justifying the use of the aggressor doctrine instruction. In contrast, the court could not find justification for the stand your ground laws instruction, as there was a lack of evidence supporting defendant’s lawful right to be at the residence where the conflict took place.
Finding no error in (3), the court explained that the prosecutor’s arguments were not grounds for trial court intervention, as “[w]hile suggesting that the minimum sentence would not be severe enough punishment might run afoul of the unspoken rules of courtroom etiquette, it is not, in fact, against the law.” Id. at 13.
Trial court’s inclusion of language on “excessive force” in NCPJI 308.80 represented error justifying new trial.
State v. Phillips, COA22-866, ___ N.C. App. ___ (Oct. 3, 2023). In this Cumberland County case, defendant appealed her conviction for assault with a deadly weapon inflicting serious injury, arguing error in altering a pattern jury instruction to include language on the prohibition of excessive force. The Court of Appeals majority agreed, vacating the judgment and remanding for a new trial.
Defendant and another woman got into a verbal altercation in April of 2021, leading to defendant shooting the victim. Defendant was indicted and came to trial in May of 2022. At trial, witnesses testified that the victim came onto defendant’s front porch, ending with the shooting. Defendant requested the trial court provide North Carolina Pattern Jury Instruction-Criminal (NCPJI) 308.80 on self-defense within a defendant’s home. The trial court modified NCPJI 308.80 by including language “prohibiting the use of ‘excessive force.’” Slip Op. at 2. Defendant objected to the modified instruction but the trial court provided it to the jury, and defendant was subsequently convicted.
Defendant argued on appeal that the state’s “Castle Doctrine” provided a rebuttable presumption that deadly force was necessary, meaning excessive force was impossible unless the presumption that deadly force was necessary was rebutted by the State. Reviewing defendant’s argument, the Court of Appeals noted that in North Carolina, the “Castle Doctrine” in G.S. 14-51.2 does not prohibit the use of excessive force, and “ultimate force is presumed necessary unless the presumption is rebutted.” Id. at 4. Likewise, North Carolina’s “Stand Your Ground” law in G.S. 14-51.3 permits the use of deadly force and does not require the defendant to retreat if they are in a legally occupied place. Id. Summarizing the two overlapping doctrines, the court noted:
The Stand Your Ground Doctrine overlaps with the Castle Doctrine because the Stand Your Ground Doctrine also applies in Castle Doctrine scenarios, i.e., self-defense situations within the home. So if the Castle Doctrine presumption applies, deadly force is presumed necessary, and you need not retreat. Said differently: If you reasonably believe an intruder is unlawfully entering your home, you have a presumed right to use deadly force under the Castle Doctrine, and you need not retreat under the Stand Your Ground Doctrine
Id. at 5 (citations omitted). The court also made a distinction between State v. Benner, 380 N.C. 621 (2022), and the current case, noting that Benner concerned excessive force under the Stand Your Ground doctrine, not the Castle Doctrine. Id. at 5-6. Summarizing applicable precedent, the court concluded “[u]nder the Castle Doctrine, excessive force is impossible unless the State rebuts the Castle Doctrine presumption, but under the Stand Your Ground Doctrine, excessive force is possible if the defendant acts disproportionately.” Id. at 7.
The court moved on to the instruction in this case, explaining that “[h]ere, when the trial court conclusively stated that ‘defendant does not have the right to use excessive force,’ the trial court concluded that the State rebutted the Castle Doctrine presumption.” Id. at 8. This was error as it removed the jury’s role in determining whether the Castle Doctrine presumption was rebutted by the State. The court also concluded that the instruction was confusing to the jury, and represented prejudice sufficient to overturn the judgment and order a new trial.
Judge Hampson dissented by separate opinion, and would have held that the instruction was appropriate under applicable North Carolina precedent on the use of force in self-defense scenarios.