This post summarizes published criminal decisions from the North Carolina Court of Appeals released on September 21, 2021. As always, these summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
The jury’s verdict convicting the defendant of first-degree forcible rape and second-degree forcible sex offense was at most inconsistent rather than contradictory and there was sufficient evidence of each offense
State v. Brake, ___ N.C. App. ___, 2021-NCCOA-496 (Sept. 21, 2021). In this first-degree rape and second-degree sexual offense case, the trial court did not err in accepting the jury’s verdicts finding the defendant guilty of both offenses despite the fact that first-degree rape requires a finding of infliction of serious personal injury while second-degree rape does not. Responding to the defendant’s argument that if the jury determined that he had inflicted serious injury on the victim it should have convicted him of first-degree forcible sexual offense rather than the lesser included offense of second-degree forcible sexual offense, the court explained that the verdicts were at most inconsistent rather than mutually exclusive and that there was sufficient evidence of each offense. The court went on to reason that it was possible that the jury could have determined that the defendant’s infliction of serious personal injury upon the victim was done to accomplish the forcible rape but not the forcible sex offense.
(1) the trial court did not err by admitting Rule 404(b) evidence of the disappearance of a person the defendant had been previously convicted of murdering, (2) the defendant was not prejudiced by alleged improper remarks by the prosecution during closing argument, and (3) the trial court did not err by denying the defendant’s motion to dismiss a first-degree murder charge for insufficient evidence of premeditation and deliberation
State v. Bradley, ___ N.C. App. ___, 2021-NCCOA-495 (Sept. 21, 2021). In this first-degree murder case, (1) the trial court did not err by admitting under Rule 404(b) evidence of the disappearance of a person the defendant had been previously convicted of murdering, (2) the defendant was not prejudiced by alleged improper remarks by the prosecution during closing argument, and (3) the trial court did not err by denying the defendant’s motion to dismiss the murder charge for insufficient evidence of premeditation and deliberation.
(1) At the defendant’s murder trial for killing victim Tucker, the state introduced evidence concerning law enforcement investigation into the disappearance of victim Rippy, a woman the defendant had been previously convicted of murdering but whose body had never been found. Tucker’s body was discovered during a search of property associated with the defendant by investigators who were looking for Rippy. The trial court admitted evidence concerning the investigation of Rippy’s disappearance under Rule 404(b) to show the course of the investigation of Tucker’s death, identity, motive, and modus operandi. On appeal, the defendant argued under the standard of plain error that the evidence concerning Rippy was not sufficiently similar and was so voluminous as to be more prejudicial than probative under Rule 403. The court first explained various ways in which the challenged evidence of Rippy’s disappearance was introduced for a proper purpose under Rule 404(b), including that it helped provide a full picture of the course of the investigation of Tucker’s death, related to the credibility of witnesses, and cast certain physical evidence in a probative light. The evidence concerning Rippy also was sufficiently similar to that concerning Tucker as both victims lived around Wilmington; were of the same sex; disappeared within nine months of each other; had legal, financial, and substance abuse problems; relied on the defendant for transportation; had relationships with the defendant; and were subjects of his sexual attention. Distinguishing State v. Hembree, 368 N.C. 2 (2015), the court further found that the trial court did not abuse its discretion in admitting the evidence under Rule 403, pointing to the trial court’s deliberate weighing of its probative and prejudicial qualities and appropriate limiting instructions to the jury.
(2) The defendant made several arguments pertaining to alleged trial court errors during the prosecution’s closing arguments. (a) Certain statements about the presence of Tucker’s blood in the defendant’s car were a reasonable inference from evidence introduced at trial, though no DNA samples were recoverable from sections of carpeting that had been shown through testing to contain human blood. (b) Statements that Rippy was deceased did not violate the trial court’s limitation on the state’s use of the defendant’s conviction for her murder and were not made for an improper purpose. (c) The trial court cured improper statements suggesting that defendant bore the burden of proving his own innocence and was responsible for the inclusion of second-degree murder as a lesser-included offense on the verdict sheet, and did not err by denying the defendant’s motion for a mistrial based upon those statements. (d) The trial court did not err by failing to intervene ex mero motu when the prosecution referred to “evil” during closing while displaying a poster that showed the Black defendant alongside the white victims. (e) The alleged improper remarks did not amount to cumulative prejudice.
(3) Viewing the evidence in the light most favorable to the State, there was substantial evidence of premeditation and deliberation to support the conviction of first-degree murder. The nature of Tucker’s injuries from blunt force trauma suggested that the manner of her killing was brutal and thus indicative of premeditation and deliberation. Premeditation and deliberation also was suggested by evidence of postmortem concealment and undignified treatment of Tucker’s body, as well as the defendant’s efforts to destroy evidence of the murder.
The trial court erred by denying the defendant’s motion to suppress drug evidence that was discovered pursuant to a consent search where the request for consent and the search measurably extended a traffic stop without reasonable suspicion in violation of Rodriguez v. United States
State v. Johnson, ___ N.C. App. ___, 2021-NCCOA-501 (Sept. 21, 2021). In this felony possession of cocaine case, the trial court erred by denying the defendant’s motion to suppress evidence that was discovered pursuant to a consent search where the request for consent and the search measurably extended a traffic stop without reasonable suspicion in violation of Rodriguez. An officer made a traffic stop of the defendant after observing him driving without wearing a seatbelt. “Almost immediately,” the officer asked the defendant to exit the vehicle and accompany him to his patrol car. As they walked, the officer asked if the defendant possessed anything illegal and whether he could search the defendant. The defendant raised his hands above his waist and the officer reached into the defendant’s sweatshirt pocket, discovering a plastic wrapper containing soft material he believed to be powder cocaine.
The court first determined that the defendant had preserved his undue delay argument for appellate review by generally arguing to the trial court that the stop was unsupported by reasonable suspicion and the search was unreasonable under the Fourth Amendment, regardless of the fact that the defendant’s precise Fourth Amendment argument on appeal differed slightly from his argument to the trial court. The court went on to say that it would exercise Rule 2 discretion to address the merits in any event.
Addressing the merits, the court determined that while it may have been permissible on the grounds of officer safety to conduct an external frisk if the officer had reasonable suspicion that the defendant was armed and dangerous, the search in this case went beyond such a frisk, lasting almost thirty seconds and appearing to miss areas that would be searched in a safety frisk. The State also made no argument that reasonable suspicion of being armed and dangerousness justified the search. The court proceeded to distinguish case law the State argued supported the position that officers need no additional reasonable suspicion to request consent to search during a traffic stop as a universal matter, explaining that in the case at hand the request for consent and the full search were not related to the mission of the stop and were not supported by additional reasonable suspicion beyond the observed seatbelt violation. The court concluded that any consent the defendant gave for the search was involuntary as a matter of law, reversed the trial court’s denial of the defendant’s motion to suppress, and vacated the judgement entered against the defendant based on his guilty pleas.
Judges Carpenter and Griffin concurred with separate opinions, each agreeing with the Fourth Amendment analysis. Judge Griffin wrote to address an argument in the defendant’s brief “raising a question of impartiality in traffic stops, and our justice system generally, based on the color of a person’s skin and their gender.” Judge Griffin rejected that argument, characterizing it as “inflammatory and unnecessary.” Judge Carpenter wrote that “[c]hoosing to inject arguments of disparate treatment due to race into matters before the Court where such treatment is not at issue . . . does not further the goal of the equal application of the law to everyone.”
The trial court properly declined to resolve the defendant’s castle doctrine defense before trial, properly denied the defendant’s motion to dismiss, and properly instructed the jury on the elements of the castle doctrine
State v. Austin, ___ N.C. App. ___, 2021-NCCOA-494 (Sept. 21, 2021). In this first-degree murder case, the trial court properly declined to resolve the defendant’s castle doctrine defense before trial, properly denied the defendant’s motion to dismiss, and properly instructed the jury on the elements of the castle doctrine.
The defendant argued that the trial court erred by refusing to resolve her castle doctrine defense prior to trial because the language of G.S. 14-51.2(e) providing that a person is “immune from civil or criminal liability” when he or she satisfies the castle doctrine criteria suggests that the issue of whether a person qualifies for the defense must be resolved by judge rather than a jury. Engaging in statutory construction, the court explained through various examples that in the context of the criminal law, the General Statutes use the phrase “immunity from prosecution” when describing the traditional form of immunity equating to a right not to be forced into court to defend oneself. In contrast, the court explained that the immunity provided by the castle doctrine is “immunity from a conviction and judgment, not the prosecution itself.” The court bolstered this conclusion by noting that traditional immunities from prosecution typically involve little or no fact determination while the castle doctrine “can involve deeply fact-intensive questions.”
The court went on to conclude that there was sufficient evidence from which the jury could determine that the State had rebutted the castle doctrine’s presumption of reasonable fear and also sufficient evidence of premeditation and deliberation. The State’s evidence showed that a bystander saw the defendant in her driveway with a gun standing over the unarmed victim as he pleaded “Please, please, just let me go. Let me go.” The bystander then saw the defendant take several steps back and shoot the victim in the head from three to six feet away. In the light most favorable to the State, this was sufficient evidence to overcome the defendant’s motions to dismiss based on both the castle doctrine and a lack of premeditation and deliberation.
Finally, the court determined that the trial court did not err in its instruction to the jury concerning the castle doctrine. The jury instruction used language mirroring that of G.S. 14-51.2 and was crafted with significant input from the parties. While the instruction specifically identified only the criteria of G.S. 14-51.2(c)(5) as an avenue for rebutting the defendant’s presumption of fear, it did not, consistent with state law on the issue, instruct that the criteria of subsection (c)(5) was the only means of rebuttal and instead left the issue for the jury’s determination based on the facts of the case.
The duration of a traffic stop was not impermissibly prolonged under Rodriguez v. United States
State v. France, ___ N.C. App. ___, 2021-NCCOA-498 (Sept. 21, 2021). In this case involving drug offenses, the trial court did not err by denying the defendant’s motion to suppress evidence arising from a traffic stop because the duration of the stop was not impermissibly prolonged under Rodriguez v. United States, 575 U.S. 348 (2015). Two officers with the Winston-Salem Police Department conducted a traffic stop of a vehicle based upon observing its broken taillight. One officer requested identification from the occupants of the car, informed them of the reason for the stop, and returned to the patrol car to conduct warrant checks. During this time the other officer requested that a canine unit respond to the stop. The officer conducting warrant checks learned that a passenger had outstanding arrest warrants and placed him under arrest, at which time the officer discovered that the passenger was carrying a pistol and disarmed him. The other officer immediately returned to the patrol car to begin the process of issuing a citation for the taillight and finish warrant checks on the remaining occupants. While drafting the citation, the canine unit arrived and indicated a positive alert after walking around the vehicle. The officers then searched the vehicle and found drug evidence. The court determined that at all times prior to the canine alert the officers were diligently pursuing the purpose of the stop, conducting ordinary inquiries incident to the stop, or taking necessary safety precautions. The court further determined that the request for the canine unit did not measurable extend the stop. Assuming for argument that any of the officers’ actions unrelated to the initial purpose of the stop did extend its duration, they were justified by reasonable suspicion because a stopping officer encountered the defendant’s vehicle earlier in the evening and witnessed a hand-to-hand drug transaction, the stop occurred in a high crime area late at night, and a passenger with outstanding arrest warrants was armed with a loaded gun.
The court vacated a civil judgment for attorney’s fees because the trial court erred by not providing the defendant notice and an opportunity to be heard before entering the judgment.
Certain evidentiary and jury instruction assumed errors did not rise to the level of plain error given the Supreme Court’s prior opinion in this case
State v. Goins, ___ N.C. App. ___, 2021-NCCOA-499 (Sept 21, 2021). On remand from the Supreme Court’s opinion in State v. Goins, 2021-NCSC-65 (2021) directing the Court of Appeals to address the defendant’s remaining issues on appeal, the court determined that even if the trial court erred by allowing an investigator to interpret certain video footage or in failing to instruct on a lesser-included offense, those assumed errors did not rise to the level of plain error. The court noted that the Supreme Court already had interpreted under a less taxing standard certain other evidence in the case as “virtually uncontested” evidence of the defendant’s guilt and that it would create a paradox for the Court of Appeals to collaterally undermine that analysis by finding plain error with respect to the assumed errors at issue.
The trial court did not err by denying the defendant’s request for an instruction on self-defense where any such error was invited
State v. Hooper, ___ N.C. App. ___, 2021-NCCOA-500 (Sept 21, 2021). The defendant was indicted for assault by strangulation, assault on a female, and other offenses after an incident in a hotel where evidence at trial tended to show that the defendant had an altercation with the mother of his child that left her with visible injuries and the defendant with a gunshot wound. Immediately before jury instructions were to be given, and after not requesting an instruction on self-defense or otherwise objecting to proposed instructions at a charge conference the preceding day, the defendant requested for the first time that an instruction on self-defense be given. In denying the request, the trial court noted that the defendant did not give notice of the defense and that there was no evidence of the defendant’s thoughts or beliefs at the time of the altercation. After the instructions were given, both parties informed the trial court that they had no objections to the instructions as given. Based on these events, the court determined that any error in not giving a self-defense instruction was invited, and that even if an error occurred the defendant could not show prejudice because the evidence against him was overwhelming and uncontroverted.
Judge Murphy dissented, stating the view that the defendant did not waive appellate review of the alleged error merely by failing to state an objection after the instructions were given because his request for the self-defense instruction constituted an objection. Judge Murphy went on to explain that the evidence at trial was sufficient to entitle the defendant to a self-defense instruction, and that the error in not giving the instruction was prejudicial as it deprived the jury of the ability to decide the issue of whether the defendant’s participation in the altercation was lawful. After determining that the trial court abused its discretion by precluding the instruction as a sanction for failing to provide notice of self-defense, presuming the trial court meant to do so, Judge Murphy stated that he would hold that the defendant was entitled to a new trial.
There was sufficient evidence that the victim was a “person within this State” as the phrase is used in G.S. 14-100 as well as sufficient evidence of the value of the property at issue in a false pretenses case
State v. Pierce, ___ N.C. App. ___, 2021-NCCOA-502 (Sept. 21, 2021). In this obtaining property by false pretenses case, there was sufficient evidence that the victim was a “person within this State” as the term is used in G.S. 14-100(a) as well as sufficient evidence of the value of the property at issue. Addressing what it characterized as an issue of first impression, the court determined that even if it is an essential element of a violation of G.S. 14-100 that the victim of the offense by “a person within this State” as that phrase is used in the statute, an issue that the court did not decide, the element was satisfied in this case involving AT&T. The defendant’s fraud scheme involved the resale of iPhones falsely obtained from AT&T, and the court reasoned that because the phones came from a store operated by AT&T located in North Carolina, AT&T was operating as “a person within this state” for purposes of the offense and the trial court properly denied the defendant’s motion to dismiss.
The court went on to conclude that the State met its burden of proving that the value of the iPhones falsely obtained by the defendant was at least $100,000. The court noted that North Carolina case law has defined the term “value” for purposes of obtaining property by false pretenses to be synonymous with “fair market value” and explained that evidence presented at trial showed that the actual retail value of the iPhones as calculated by the price AT&T paid to its supplier for the phones met or exceeded $100,000. The court discussed State v. Kornegay and State v. Hines in the process of rejecting the defendant’s argument that the value issue should take into account net value and setoffs to calculate the particular economic damage to the victim. The court explained: “Hines establishes that we are only concerned with the gross fair market valuation of the property obtained, not the net gain in value to the criminal.”
A variance between the State’s proof and its indictment for intimidating a witness was not fatal and the trial court did not err in its jury instruction for the charge; The trial court’s restitution order was unsupported by the State’s evidence
State v. Clagon, ___ N.C. App. ___, 2021-NCCOA-497 (Sept. 21, 2021). In this intimidating a witness case, the indictment alleged that the defendant told one person, Derstine, to tell another, Ramos, that the defendant would have Ramos deported if he testified against the defendant. Evidence at trial tended to show that Ramos did not actually receive this message. The court explained that while this was a variance between the indictment and the proof at trial, the variance did not relate to “the gist” of the offense of intimidating a witness, an offense concerned with “the obstruction of justice.” The court cited North Carolina case law establishing that whether a witness actually receives the threatening communication at issue is “irrelevant” to the crime of intimidating a witness, and, thus, the language of the indictment was mere surplusage. The court went on to determine that even if there was error in the trial court’s jury instruction on intimidating a witness, which did not deviate from the pattern jury instruction or from the instruction agreed upon by the parties, any such error was harmless as there was no reasonable likelihood that the alleged deviation misled the jury.
The State conceded that restitution ordered by the trial court lacked an evidentiary basis and the court remanded for a rehearing on the issue.
The trial court erred by failing to make findings of fact in its order denying motions for domestic violence protective orders
Milligan v. Crews, ___ N.C. App. ___, 2021-NCCOA-493 (Sept. 21, 2021). The trial court failed to make adequate findings of fact to support its orders denying the plaintiffs’ motions for domestic violation protective orders against the defendant, their biological father’s wife. The court noted that state supreme court precedent had interpreted N.C. Rule Civ. P. 52(a)(1) to require a trial court to make specific findings of fact and separate conclusions of law when sitting without a jury. The trial court’s failure to make any findings of fact on form AOC-CV-306, other than who was present at the hearing, precluded the Court of Appeals from conducting a meaningful review of its order denying the motions.
Fox v. Johnson is a civil case of potential interest to North Carolina criminal law practitioners
Fox v. Johnson, ___ N.C. App. ___, 2021-NCCOA-489 (Sept. 21, 2021). This factually and procedurally complex civil case involves claims for conspiracy, abuse of process, and malicious prosecution arising from activities of the Greensboro Police Department and may be of interest to North Carolina criminal law practitioners.