This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 19, 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.
Testimony from police officer that he smelled marijuana in defendant’s vehicle was not “inherently incredible” and supported reasonable suspicion for traffic stop.
State v. Jacobs, COA22-997, ___ N.C. App. ___ (Sept. 19, 2023). In this New Hanover County case, defendant appealed the denial of his motion to suppress the results of a search of his vehicle, arguing error in finding reasonable suspicion for the traffic stop leading to the search. The Court of Appeals found no error.
In March of 2019, a Wilmington police officer was following defendant on a city street when he smelled the strong odor of marijuana coming from defendant’s vehicle. The officer eventually pulled defendant over, based solely on the smell coming from the vehicle. During the stop, the officer continued to smell marijuana, and asked defendant to step out of the vehicle; when defendant stepped out, the officer saw white powder and an open alcohol container. A search of the vehicle found heroin, MDNA, cocaine, and marijuana. At trial for possession and trafficking charges, defendant moved to suppress the results of the search, arguing he was not smoking marijuana while driving, and all the windows of his vehicle were closed, suggesting the officer could not have smelled marijuana coming from his vehicle and had no reasonable suspicion to initiate a stop. The trial court denied the motion, defendant pleaded guilty and appealed.
Taking up defendant’s arguments, the Court of Appeals first noted that normally the appeals court defers to the trial court’s determination of witness credibility when looking at testimony establishing reasonable suspicion. However, when the physical circumstances are “inherently incredible” the deference to a trial court’s determination will not apply. Slip Op. at 8, quoting State v. Miller, 270 N.C. 726, 731 (1967). Relevant to the current matter, applicable precedent held that “an officer’s smelling of unburned marijuana can provide probable cause to conduct a warrantless search and seizure, and that an officer’s smelling of such is not inherently incredible.” Id. Because the circumstances here were not “inherently incredible,” the court deferred to the trial court’s finding that the officer’s testimony was credible, which in turn supported the finding that the officer had reasonable suspicion to initiate the traffic stop.
Proximity and indica of control supported finding that defendant constructively possessed firearm for possession of a firearm by a felon conviction.
State v. Livingston, COA22-678, ___ N.C. App. ___ (Sept. 19, 2023). In this Brunswick County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in the denial of his motion to dismiss for insufficient evidence. The Court of Appeals found no error.
In June of 2020, deputies with the Brunswick County Sheriff’s Office began observing a vehicle that entered a known drug area. After the vehicle ran a stop sign and went 70 mph in a 55 mph zone, they pulled the vehicle over. Defendant was in the passenger seat when the deputies approached, and they observed marijuana on both the driver and defendant, leading to a search of the vehicle. The search found a bag containing a gun and a smaller crown royal bag containing three identification cards with defendant’s name and picture on them. Defendant admitted to the police he was a felon, and he was arrested for possessing a gun. At trial, defendant moved to dismiss, arguing the evidence had not established the gun was his. The trial court denied the motion and defendant was subsequently convicted.
The Court of Appeals first explained that “possession” for purposes of defendant’s conviction could be actual or constructive; here defendant was not in actual possession, so the caselaw regarding constructive possession in a vehicle applied to defendant’s appeal. To show constructive possession in this situation, the State is required to show “other incriminating circumstances” to allow a finding of constructive possession. Slip Op. at 7. The court noted that two common factors used to satisfy the “incriminating circumstances” inquiry were (1) proximity, and (2) indicia of control. Id. Here, (1) the bag containing the gun was located behind the passenger seat where defendant was sitting, and (2) the gun was touching a crown royal bag containing a wallet with defendant’s identification cards in it. The combination of these two factors supported the finding that defendant constructively possessed the gun.
Allowing prosecutor to mention probation as possible sentence during voir dire was not error; defense counsel’s failure to object to jury instructions on self-defense and failure to request a jury poll were not ineffective assistance.
State v. Lynn, COA22-990, ___ N.C. App. ___ (Sept. 19, 2023). In this Mecklenburg County case, defendant appealed his convictions for assault with a deadly weapon and discharging a weapon into a building and vehicle in operation, arguing error by (1) allowing the prosecutor to tell potential jurors that probation was within the potential sentencing range and (2) substituting an alternative juror after deliberations began, and (3) ineffective assistance of counsel. The Court of Appeals found no prejudicial error.
In December of 2019, defendant was involved in an altercation at a Cook Out in Charlotte, eventually firing several shots that hit a car and the exterior wall of the Cook Out. The matter came for trial in March of 2022. On the second day of deliberations, one of the jurors was ill and did not report for jury duty. The trial court substituted an alternate juror and directed the jury to restart deliberations under G.S. 15A-1215(a). Defendant was subsequently convicted and appealed.
Taking up (1), the Court of Appeals explained that it reviewed a trial court’s management of jury selection for abuse of discretion. Here, the State’s choice to mention probation during voir dire was “questionable” as “a probationary sentence under these facts requires the trial judge to find extraordinary mitigation,” but the statement was “technically accurate” as a statement of law. Slip Op. at 5. The court concluded there was no abuse of discretion in these circumstances as it was not a totally unsupported possibility. Turning to (2), the court explained that defendant argued that “more than twelve persons” were involved in the jury verdict, but defendant failed to preserve the issue for review and the court dismissed it.
Reaching (3), the court explained that defendant’s ineffective assistance of counsel argument contained two points, (a) that defense counsel should have objected to the trial court’s jury instructions on self-defense, and (b) that counsel should have requested a jury poll. Looking at (3)(a), defendant argued that the instruction did not require the jury to consider whether other patrons at the Cook Out had guns. The court explained that the instruction closely tracked the applicable language of the statute and directed the jury to consider whether “defendant reasonably believed that deadly force was necessary,” which would encompass the consideration of whether other people at the scene had guns. Id. at 9. The court could not conclude that a different instruction specifically mentioning a gun would have led to a different result, meaning the argument could not support the ineffective assistance claim. The court likewise dispensed with (3)(b), explaining that the trial court was not required to poll the jury unless requested, but “both the jury foreman and the other jurors, as a group, affirmed—in open court—that their verdicts were unanimous.” Id. at 10. Because there was no evidence of coercion or inducements to the jury, there was no reasonable probability a jury poll would have created a different result for defendant.
Testimony of probation officer and arrest warrants were sufficient evidence to revoke probation; defendant’s inability to cross examine a probation officer who filed reports against her was not prejudicial error.
State v. Singletary, COA22-1068, ___ N.C. App. ___ (Sept. 19, 2023). In this Wilson County case, defendant appealed the revocation of her probation, arguing (1) insufficient evidence to support the finding she committed a new crime on probation and (2) violation of her right to confront the probation officer who filed the violation reports against her. The Court of Appeals found no error.
Defendant’s probation officer “W” filed two probation violation reports against her from November and December 2021. The reports alleged defendant was committed new crimes while on probation as she was charged with obtaining property by false pretenses and uttering a forged instrument. When the matter came before the trial court in May 2022, probation officer W was replaced by probation officer “H,” who testified regarding the two 2021 reports, as well as a third report from February 2022 that officer H prepared alleging a second uttering a forged instrument offense. Defendant objected to the absence of officer W, as she wished to cross-examine the officer who filed the 2021 reports against her. The trial court noted the objection in the record but otherwise proceeded with the hearing. At the conclusion of the hearing the trial court revoked defendant’s probation and activated her prison sentences.
For (1), defendant argued “the State needed to call law enforcement witnesses to present evidence about the investigations relating to the crimes, civilian victim witnesses, or [bank] employees” to support the alleged crimes committed by defendant. Slip Op. at 10. The Court of Appeals disagreed, explaining that the violation reports, arrest warrants, and testimony from officer H supported the conclusion that defendant was the person on security camera footage committing the crimes. The court explained “[a] probation revocation hearing is not a trial, and the State need not present evidence sufficient to convict Defendant nor call as witnesses the investigating officers of the crimes alleged.” Id. at 12.
Turning to (2), the court noted that the Sixth Amendment did not apply to a probation revocation hearing, and that G.S. 15A-1345(e) was the basis for confrontation rights in the proceeding. Because G.S. 15A-1345(e) controlled, the issue before the court was “whether the trial court committed prejudicial error by not making an explicit finding that good cause existed for not allowing Defendant to confront [officer W].” Id. at 14. The court referenced State v. Terry, 149 N.C. App. 434 (2002), explaining that failure to require an adverse witness to testify is not error if “(1) the adverse witness’s testimony would have been merely extraneous evidence in light of other competent evidence presented through the probation officer’s testimony and (2) defendant failed to request the professor be subpoenaed.” Slip Op. at 14. Here, the court found the testimony of officer W would have been extraneous in light of the other evidence in the record supporting defendant’s commission of the crimes. Additionally, defendant did not subpoena Officer W. This led the court to conclude the trial court did not abuse its discretion in allowing the hearing to proceed without officer W. Finally, the court noted that if any error occurred, it was not prejudicial, as sufficient competent evidence before the trial court supported the revocation of defendant’s probation without the testimony from officer W.