Case Summaries: N.C. Court of Appeals (Sept. 12, 2023)

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 12, 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.

Trial court erroneously checked box 4 on form AOC-CR-343 when revoking defendant’s probation, but error did not justify reversal of judgment revoking probation.

State v. Daniels, COA22-756, ___ N.C. App. ___ (Sept. 12, 2023). In this Pitt County case, defendant appealed the revocation of her probation, arguing the trial court improperly considered all of defendant’s probation violations as bases to revoke her probation in violation of G.S. 15A-1344(a). The Court of Appeals found that the trial court committed error in one of its findings, but affirmed the revocation of defendant’s probation.

In June of 2021, while defendant was on probation for a driving while intoxicated offense, the probation officer filed a violation report with the trial court identifying (1) positive drug screens for marijuana, (2) failure to pay court costs, and (3) commission of a new criminal offense. At the revocation hearing, defendant admitted to the violations and requested confinement in response to a violation (CRV) rather than revocation. The trial court declined this request and revoked her probation due to willful and intentional violations. When filling out form AOC-CR-343 after the judgment, the trial court checked box 4, which represented a finding that “each violation is, in and of itself, a sufficient basis upon which [the trial court] should revoke probation and activate the suspended sentence.” Slip Op. at 4.

Reviewing defendant’s argument, the Court of Appeals first explained that G.S. 15A-1344(a) only permitted revocation of defendant’s probation after the new criminal offense, not the other two violations in the report. To revoke defendant’s probation under this provision, the trial court was required to exercise discretion in determining that there was a willful violation of the terms of probation when defendant committed the new criminal offense. Here the trial court made just such a finding by checking box 5(a) on form AOC-CR-343. The court determined that checking box 4 was error, but that “[the trial court] properly considered and understood the statutory basis for revoking Defendant’s probation and properly exercised its discretion.” Slip Op. at 8. As a result, the court reversed the finding represented by checking box 4, but affirmed the judgment revoking probation.

Appellant counsel’s decision not to advance an Irick fingerprint evidence argument did not represent ineffective assistance of counsel where fingerprint evidence was not standing alone and record contained sufficient evidence of guilt.

State v. Todd, COA22-680, ___ N.C. App. ___ (Sept. 12, 2023). In this Wake County Case, defendant appealed the denial of his motion for appropriate relief (MAR), arguing ineffective assistance of appellate counsel. The Court of Appeals affirmed the denial of his MAR.

This matter has a complicated procedural history, outlined by the court in pages 2-8 of the current opinion. Defendant first came to trial for robbery in 2012. The day before trial was set to commence, the State provided a copy of fingerprints found at the scene to defense counsel, although the State had previously provided a report stating that defendant’s fingerprints were found at the scene. Defense counsel moved for a continuance, but the motion was denied. Defense counsel cross-examined the State’s fingerprint expert during trial, but did not call a fingerprint expert and did not offer any other evidence during the trial. Defendant was convicted and appealed. The matter reached the Court of Appeals for the first time with this direct appeal, where his appellate counsel argued error in denying the motion for continuance and ineffective assistance of trial counsel, but the Court of Appeals found no error.

After defendant’s first appeal was unsuccessful, he filed a MAR for ineffective assistance of appellate counsel, arguing his counsel should have raised the issue of dismissal for lack of evidence based on State v. Irick, 291 N.C. 480 (1977), and related precedent. The reviewing court denied defendant’s MAR. The defendant appealed this denial, reaching the Court of Appeals a second time in State v. Todd, 249 N.C. App. 170 (2016), where the court reversed the MAR denial. This decision was appealed by the State, leading to the Supreme Court’s decision in State v. Todd, 369 N.C. 707 (2017), where the Court determined that the record was insufficient to evaluate the ineffective assistance of counsel claim. After the Supreme Court’s decision, the matter was remanded to the MAR court, but the court failed to act from 2017 until 2021. After finally holding a hearing in February of 2021 and receiving testimony from defendant’s appellate counsel, the MAR court determined it could not establish that counsel was unreasonable by failing to raise an Irick argument on appeal. Defendant again appealed, leading to the current case.

The Court of Appeals took up defendant’s current appeal and applied the two-prong analysis from Strickland v. Washington, 466 U.S. 668 (1984), looking for deficient performance of counsel and prejudice from that deficiency. Turning first to performance, the court explained that the proper analysis was whether appellate counsel failed to raise a claim on appeal that was “plainly stronger” than the ones presented in the appeal at the time the appellate brief was submitted. Slip Op. at 11, quoting State v. Casey, 263 N.C. App. 510, 521 (2019). The court first determined that because the fingerprint evidence was not the sole evidence of defendant’s guilt, Irick’s rule requiring proof the fingerprint evidence was impressed at the time the crime was committed did not apply. Having established that Irick’s rule did not apply, the court shifted back to a normal sufficiency of the evidence analysis, determining that sufficient evidence in the record showed defendant as guilty, and the Irick claim (1) would have failed on appeal, and (2) was not “plainly stronger” than the arguments actually advanced by appellate counsel. Id. at 20. This determination meant that the court did not need to reach the prejudice prong of the analysis, but the court briefly noted that since sufficient evidence was in the record to show defendant’s guilt, he could not show prejudice either.

Defendant’s consent to search backpack was not freely given and voluntary due to coercion from officers surrounding him and repeatedly asking him for consent after his refusal.

State v. Wright, COA22-996, ___ N.C. App. ___ (Sept. 12, 2023). In this Mecklenburg County case, defendant appealed denial of his motion to suppress, arguing that (1) police did not have reasonable suspicion to stop him, and (2) he did not consent to the search of his backpack. The Court of Appeals found reasonable suspicion supported the stop but that defendant did not consent to the search, and reversed the denial of defendant’s motion.

In January of 2020, defendant, a homeless man, was walking with a bicycle on a dirt path in Charlotte when two officers of the Charlotte-Mecklenburg Police Department approached him. The officers had previously received a tip that a person matching defendant’s description and riding a bike was carrying an illegal firearm. When the officers approached defendant, they gave conflicting reasons for the approach, with one officer referencing trespass and the other officer noting it was a street-level drug sales area. Defendant consented to a pat-down of his person and removed his backpack. At that point, one officer asked for permission to search the backpack; defendant initially consented to the search, but quickly told officers he did not want them to search the backpack. After an exchange with the officers where defendant told them he was cold and scared of the police, defendant eventually opened the backpack and allowed a search, resulting in the officers finding a stolen firearm. The officers arrested defendant, and in the search incident to arrest, discovered cocaine and marijuana in his pockets. At trial, defendant objected to admission of the results of the search, and the trial court denied the motion, finding that the initial contact was voluntary and defendant consented to the search of his backpack. Defendant entered an Alford plea and appealed. When defendant’s appeal was first taken up by the Court of Appeals, the court remanded for further findings of fact and conclusions of law regarding law enforcement’s belief that defendant was trespassing. The trial court entered an amended order denying the motion with new findings of fact and conclusions of law, which defendant again appealed.

Taking up defendant’s arguments in the current opinion, the Court of Appeals first looked to the findings of fact and conclusions of law challenged by defendant, finding that three findings related to trespassing and one related to the return of defendant’s identification prior to the search were not supported by evidence in the record. After striking four findings of fact, the court turned to (1) the reasonable suspicion analysis, determining that “the officers had reasonable suspicion to stop, question, and perform a protective search of [defendant] based on the informant’s tip.” Slip Op. at 12. The court noted that evidence in the record provided adequate justification for the reasonable suspicion that defendant was armed, justifying a protective search after stopping him.

Turning to (2), the court found that defendant did not voluntarily consent to the search of his backpack. Explaining the standard for voluntary consent, the court explained that “[t]o be voluntary, consent must be free from coercion, express or implied,” and when making this determination “the court must consider the possibility of subtly coercive questions from those with authority, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 17-18. Here, the officers asked defendant “five times within a period of about one and a half minutes” for permission, even though defendant continued to refuse. Id. at 18. The court went on to explain that:

The combination of multiple uniformed police officers surrounding an older homeless man and making repeated requests to search his backpack on a cold, dark night after he repeatedly asserted his right not to be searched leads us to the conclusion that [defendant’s] consent was the result of coercion and duress and therefore was not freely given.

Id. at 18-19.

After establishing the officers did not have consent, the court also established that they did not have probable cause to search the backpack based on the tip. The court explained that while the tip was sufficient to create reasonable suspicion for a frisk of defendant, it did not create sufficient probable cause for a search of the backpack. The informant “did not provide any basis for his knowledge about the criminal activity,” and “did not predict any future behavior,” elements that would have demonstrated sufficient reliability for probable cause. Id. at 21. Because the officers did not have consent or probable cause to conduct the search, the court reversed the denial of the motion to dismiss and vacated defendant’s Alford plea.