This post summarizes published criminal decisions (and two other decisions of note) from the North Carolina Court of Appeals decided on October 15, 2019.
Admission of firearms expert testimony was not abuse of discretion or plain error
State v. Griffin, ___ N.C. App. ___ (October 15, 2019). In this Pasquotank County case, the defendant was convicted of first-degree murder. Upon discovering the body of the victim, police found five shell casings at the scene and two bullets on the victim’s body. At trial, an agent from the State Crime Lab was qualified as an expert in “forensics firearms examinations and analysis” without objection. She opined that the shell casings matched a gun recovered from a field next to the defendant’s property, again without objection. On appeal, the defendant argued that this testimony should have been excluded under Rule of Evidence 702 and relevant case law, and that admission of the testimony was plain error. The court disagreed.
According to the defendant, the analyst’s testimony failed to demonstrate that her opinion was based on sufficient data, that it was the product of reliable methods, or that the methods were reliably applied to the case. Rejecting that argument, the court observed: “Defendant severely misrepresents [the agent’s] opinion testimony by briefly summarizing a few lines of testimony while omitting the bulk of the testimony, and bases his argument on the unsupported and conclusory allegation that the testimony was insufficient to satisfy Daubert.” Slip op. at 9. Reviewing the analyst’s testimony in full, the court found that the expert was qualified by her education in the field, she examined the casings in accordance with her training, she analyzed the data generated from her tests, and described her source of information and conclusions in a peer-reviewed report. Concluding, the court stated:
As [the agent’s] testimony shows her opinion was the product of reliable principles and methods, and that she reliably applied the principles and methods to the facts of the case, we conclude that the trial court did not abuse its discretion, much less plainly err, in admitting [the analyst’s] expert opinion testimony on forensic firearms examination. Id. at 17.
There was therefore no error in admitting the expert testimony, and conviction was unanimously affirmed.
(1) Trial court has authority to consider propriety of mistrial order when defendant moves for dismissal for double jeopardy at subsequent trial; (2) Where defendant opposed mistrial request and argued against it, the issue was preserved for appellate review; (3) Missing witnesses did not support a finding of manifest necessity for mistrial; double jeopardy prevents retrial
State v. Resendiz-Merlos, ___ N.C. App. ___ (October 15, 2019). In this Watauga County case for indecent liberties, the defendant was accused of improper contact with a child in an incident allegedly witnessed by the child’s sister and mother. The State sought to compel the mother and two daughters to testify at trial. After jury was impaneled and opening statements were given, the court released the jury for the day. The State sought a show-cause order for the mother of the alleged victim, stating that the witness and her children were not present despite having been personally served with a subpoena. The State recounted efforts to reach the witnesses at the mother’s home and work, as well as at the children’s school. The defense opposed the show-cause order and sought to have trial proceed. The trial court issued the show-cause for the mother and set the matter for hearing the next morning. The mother and children again did not appear in court the next day and the trial court received more information that the witnesses could not be found. The State then sought an order for the mother’s arrest. Defense counsel again opposed the request, asking that the trial proceed or be dismissed and opposing any mistrial. The trial court issued the order for the mother’s arrest and held the proceedings open until later in the afternoon. When the witnesses were still not present, the State moved for a mistrial, arguing that the witnesses were “necessary and essential” and that trial could not proceed without them. The defendant again opposed a mistrial. The trial judge granted the mistrial, finding that the witnesses were not available due to no fault of the parties and “that their absence ‘deprived the State of its ability to present its case and to meet its burden of proof.’” Slip op. at 4. At retrial, the defendant filed a motion to dismiss, arguing that a second trial would violate double jeopardy. The trial court denied the motion, ruling that because an earlier Superior Court judge had found a manifest necessity supporting the mistrial order, the present trial court could not overrule that earlier decision. The motion was therefore denied. The defendant sought review in the Court of Appeals by way of petition for writ of certiorari, which was granted. The Court of Appeals reversed.
(1) The State first argued that appellate review should be limited to the motion to dismiss and should not consider the propriety of the mistrial order. The court disagreed. Under State v. Odom, 316 N.C. 306 (1986), “where the order of mistrial has been improperly entered over a defendant’s objection, defendant’s motion for dismissal at a subsequent trial must be granted.” Id. at 7. In order to determine whether the motion to dismiss should have been granted, the court must also determine the propriety of the mistrial order. The court observed that it reviewed both the order denying the motion to dismiss and the mistrial order in the recent case of State v. Schalow, 215 N.C. App. 334 (2016), disc. rev. improvidently allowed, 370 N.C. 525 (2018), on similar facts.
(2) The State also alleged that the constitutional issue was unpreserved, because the defendant failed to object to the mistrial. Rejecting this contention, the court noted:
Although Defendant never formally recited the word “objection” or noted any “exception” to the trial court’s declaration of a mistrial, he did ‘present the trial court with a timely request’ to deny the State’s motion for a mistrial, ‘stating the specific grounds for the ruling sought.’ Id. at 10.
While the defendant is generally not entitled to plead double jeopardy when he fails to object to the mistrial, here, the trial court heard arguments and ruled on the issue. This was sufficient to preserve the issue for appellate review.
(3) The trial court erred in denying the motion to dismiss based on its perceived inability to overrule another Superior Court judge. Under Odom, the court faced with a double jeopardy motion must determine whether the mistrial order was appropriate. While a mistrial normally does not support a double jeopardy claim, a mistrial must be supported by a manifest necessity when the defendant objects. A mistrial may be declared due to “physical necessity”—such as when a juror can no longer participate in the trial—or due to the “necessity of doing justice”—to protect the court system from “fraudulent practices” or where a fair trial has become impossible. Where the State seeks a mistrial, it has a “heavy” burden to carry in justifying the order. When the mistrial is based on missing or unavailable evidence, the “strictest scrutiny” applies under Arizona v. Washington, 434 U.S. 497 (1978). The inquiry looks at what the State knew at the time that trial began, and close cases should be resolved “in favor of the liberty of the citizen. . . “ Id. at 17. Here, “it is clear the State took a chance by impaneling the jury ‘without first ascertaining’ that its witnesses . . . were present and available to testify.” Id. There was no record evidence of any misconduct on the defendant’s part causing the witnesses to be absent, and all three witnesses were under subpoena before trial. The State assumed the risk that its witnesses would not appear, and that jeopardy would attach once the jury was impaneled. These circumstances did not constitute a manifest necessity. The court therefore unanimously reversed the trial court, remanding for the trial court to grant the motion to dismiss. [Note: I previously blogged about this issue in a similar Fourth Circuit case, here.]
(1) Motion to suppress properly denied when the evidence was sufficiently attenuated from any illegality; (2) Motion to dismiss kidnapping properly denied where evidence showed restraint and danger to the victim beyond the acts inherent to the contemporaneous robbery ; (3) No error to admit evidence of prior bad acts to show defendant’s identity
State v. Thomas, ___ N.C. App. ___ (October 15, 2019). The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed.
(1) The offenses occurred in 2005, although the defendant was not tried until 2017. As a part of the investigation into the homicides and other crimes, law enforcement obtained an order authorizing the use of a pen register to obtain 60 days of cell-site location information (“CSLI”) on a phone connected to the defendant in 2005. Law enforcement acted under G.S. 15A-262, requiring a showing only of “relevance” to an investigation, and did not obtain a search warrant. The defendant alleged this violated U.S. v. Carpenter, __U.S. __, 201 L. Ed. 2d 507 (2018). Rejecting this argument, the court first noted Carpenter’s scope: “Carpenter only established the government must obtain a warrant before it can access a phone company’s historical CSLI; it did not extend its holding to the issue of government acquisition of real-time or prospective CSLI.” Slip op. at 9. Here, the State sought both types of data, and it was unclear which category of information was used to actually locate the defendant. Carpenter would only control as to the historical data (but did indeed apply to that category of data, despite having been decided 13 years after the events in question, since Carpenter was decided while this matter was on direct appeal).
Here, it was unnecessary to decide the extent of protections for real-time or prospective CSLI, given that the evidence was sufficiently attenuated from any illegality (an alternative ground found by the trial court to justify the search). “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.’” Id. at 14.
The Supreme Court has identified three factors to aid in determining whether there was a sufficient intervening event to break the casual link between the government’s unlawful act and the discovery of evidence: (1) the ‘temporal proximity’ of the unconstitutional conduct and the discovery of evidence, (2) the ‘presence of intervening circumstances’, and (3) ‘particularly, the purpose and flagrancy of the official misconduct.’ Id.
Here, three days had passed between the court order authorizing the CSLI and law enforcement locating the defendant. That amount of time was not substantial and weighed in favor of suppression. However, the intervening circumstances here weighed heavily in favor of attenuation—the defendant was found with guns and ammo, threatened to shoot at officers when they attempted to apprehend him, and actually fired a gun at officers during the course of his arrest. “[T]his constituted an intervening circumstance sufficient to attenuate the connection between any unconstitutional police conduct and the discovery of evidence.” Id. at 16-17. Finally, the purpose of the exclusionary rule would not be served by suppression here because the misconduct was “neither purposeful nor flagrant.” Officers acted according to the law and common understanding of pen registers in 2005 and no reasons existed at the time to believe those procedures were unconstitutional. The trial court did not therefore err in denying the motion to suppress.
(2) The defendant objected that a charge of kidnapping should have been dismissed for failure to show confinement or restraint beyond that necessary for the accompanying robbery. “Whether a restraint was more than that which is an inherent or inevitable part of another felony depends on ‘whether the victim is exposed to greater danger than is inherent in the armed robbery itself.’” Id. at 18. Here, the defendant assaulted, robbed, and murdered the victim’s boyfriend before walking her through the house at gunpoint and attempting to twice shoot her in the head before leaving (the gun malfunctioned). This was sufficient removal beyond what was necessary to accomplish the robbery. Those acts were not “inherent” to the robbery, and “increased [the victim’s] vulnerability and helplessness beyond what was necessary to enable the defendant to rob her.” Id. at 20. The motion to dismiss was therefore properly denied.
(3) The trial court did not err in admitting evidence of a prior similar crime to prove the defendant’s identity under Rules of Evidence 401, 403, and 404. Evidence was presented at trial showing that the defendant committed crimes similar to those for which he was being tried (although he was not formally charged with these other bad acts). The defendant argued there was insufficient evidence that he committed the alleged acts and that the evidence violated the ban on propensity evidence in Rule 404(b). Rejecting this contention, the court found that the modus operandi of the prior crime was substantially similar to the current case and was admissible to show the defendant’s identity as the perpetrator. Specifically, the incidents shared the following characteristics:
(1) [T]he perpetrator wore a Jason-style white hockey mask with holes in it, similar to the one seized from defendant in Colorado; (2) the targets were all suspected drug dealers or living with suspected drug dealers; (3) the attacks all took place at night in the victims’ homes; (4) defendant had an accomplice; and (5) the incidents had both temporal and geographic proximity, most of them taking place within a month or two of each other, and within the same city. Id. at 23.
Additionally, forensics from the incident recounted by the 404(b) witness matched the gun found on the defendant in Colorado. “All of this evidence supports a reasoned conclusion defendant was the perpetrator in this incident, and the common modus operandi helps establish his identity in the crimes he was charged with.” Id. This was relevant evidence, and the court did not abuse its discretion in determining the evidence was more probative than prejudicial. The conviction was therefore unanimously affirmed.
Other cases of potential interest:
Denial of carry concealed permit violated petitioner’s procedural due process rights
In re: Duvall, ___ N.C. App. ___ (October 15, 2019). The petitioner appealed the district court’s denial of his concealed weapon permit. The Mecklenburg County Sheriff’s Department denied his application, citing information received from the Veteran’s Affairs (“V.A.”) that indicated the petitioner was disqualified due to substance abuse issues. The petitioner had been diagnosed with post-traumatic stress disorder in 2016 and had experienced some suicidal ideation following the death of his young son (although he never attempted suicide). He also had some history of alcohol abuse and “concern over his drinking behavior,” but had not been treated for substance abuse specifically. The V.A. provided documentation to the petitioner indicating they did not agree with the Sheriff’s justification, and the petitioner provided that communication to the district court in his appeal. At hearing, the district court determined that the petitioner was disqualified under the substance abuse subsection and that he suffered a mental infirmity that prevented him from safely handling a firearm. He appealed, alleging due process violations.
G.S. 14-415.15 requires that the Sheriff notify an application of the reasons for denial of a concealed carry permit and explain the reason for the denial. A “bare bones” denial does not meet the requirement of the statute. Here, the Sheriff’s denial failed to contain sufficient information about the alleged substance abuse to afford the petitioner an opportunity to challenge that conclusion. The petitioner further had no notice whatsoever that his mental health beyond potential substance abuse issues would be considered at the hearing, or that his ability to safely handle a firearm would be at issue. The court rejected the argument that the Sheriff’s denial letter referencing the V.A. records provided notice that any matter within his V.A. records were potentially at issue. Because the denial letter referenced a specific subsection of the statute, the petitioner could not have known that other issues were in play. “Petitioner had no meaningful notice his mental health history would be either at issue or a basis for denial for inability to safely handle a firearm before the trial court.” Slip op. at 10.
The petitioner also argued that the district court’s finding of substance abuse was unsupported by the record. Because no transcript of the hearing was contained in the record on appeal, the court was unable to review the oral evidence at the hearing. Normally it is the burden of the appealing party to establish the record on appeal, but here “the burden shifted to [the Sheriff] to show the alleged violation had no impact on the remainder of the proceedings, because [the Sheriff] violated Duvall’s due process rights. Without a transcript or narrative of what occurred at the hearing, [the Sheriff] cannot meet that burden.” Id. at 11. However, the district court was ordered to apply the definition of “addict” from 21 U.S.C. 802 when determining whether the petitioner was disqualified for the permit under the substance abuse subsection. The case was therefore unanimously reversed and remanded for a new hearing. One judge wrote separately to concur in judgment.
Plaintiff’s gaming machines were an “entertaining display” in violation of G.S. 14-306.4; permanent injunction against the State prohibiting enforcement of gambling and sweepstakes law reversed
Gift Surplus, LLC v. State of North Carolina, ___ N.C. App. ___ (October 15, 2019). The trial court entered a permanent injunction prohibiting the State from enforcing the sweepstakes and gambling bans against the plaintiff, having determined the plaintiff’s machines did not violate the applicable statute, G.S. 14-306.4. On appeal, the court determined that the machines qualified as an “entertaining display” in violation of G.S. 14-306.4(a)(3) and reversed the injunction. Two judges wrote separately to concur in judgment.