This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on September 3, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Dismissal of juror for taking home notes did not justify granting motion for mistrial.
State v. Galbreath, COA 24-48, ___ N.C. App. ___ (Sept. 3, 2024). In this Wake County case, defendant appealed his convictions for statutory rape of a child, sex offense with a child, and indecent liberties with a child, arguing error in denying his motion for a mistrial after one juror was dismissed for taking home notes during the trial. The Court of Appeals found no error.
Defendant sexually abused his daughter from November of 2018 to August of 2019, when the daughter called police after defendant struck her. At trial, the daughter testified as to the repeated sexual abuse she experienced. During the State’s case, a bailiff noticed that Juror 4 tore out pages of notes and took them with her when court recessed for the day. One of the DA’s legal assistants also noticed Juror 4 discussing research she did, including possibly child or psychological development. The trial court questioned Juror 4, who denied having conversations about development but admitted to tearing out pages of notes; the trial court removed her and appointed an alternate juror in her place. Defense counsel moved for a mistrial, and the trial court examined each juror individually, inquiring about their contact with Juror 4. After the examination, the trial court concluded the other jurors could serve impartially and denied the motion for a mistrial.
Considering defendant’s argument, the Court of Appeals noted that “[b]ecause the trial court is in the best position to examine the facts and circumstances, we give great weight to its determination of whether juror misconduct occurred and whether to declare a mistrial.” Slip Op. at 6. Here, the other jurors did not overhear discussions about child development from Juror 4, and the testimony from the remaining jurors showed they could remain impartial. The court did not agree that defendant was prejudiced, and determined “the trial court properly discharged its duty to investigate possible juror misconduct.” Id. at 10.
Potential juror’s refusal to wear mask in jury assembly room did not justify finding of direct criminal contempt.
State v. Hahn, COA23-238, ___ N.C. App. ___ (Sept. 3, 2024). In this Harnett County case, defendant appealed the trial court order finding him in direct criminal contempt, arguing that his actions did not represent a contemptuous act. The Court of Appeals agreed, reversing the order.
In October of 2022, defendant was summoned for jury duty at the Harnett County Courthouse; during this time, a local emergency order allowed presiding judges to decide whether masks were required in their courtrooms. When defendant assembled with other jurors in the jury assembly room, a court employee told him to wear a mask. Defendant refused, and he was then removed from the jury assembly room and taken to a courtroom in front of the judge. Defendant again declined to wear a mask, even after the judge informed him it was a requirement and that if he refused, he would be subject to contempt of court. The judge entered an order finding that defendant refused to wear a mask after being ordered to do so three times and imposed a 24-hour jail sentence.
The exclusive grounds for criminal contempt are outlined in G.S. 5A-11, and “direct” criminal contempt is defined in G.S. 5A-13(a). Here, the trial court’s order pointed to G.S. 5A-11(a)(1)-(2), finding that defendant’s actions interrupted the trial court’s proceedings and impaired the respect due its authority. The Court of Appeals disagreed, noting that defendant “was not a participant in ongoing proceedings in a courtroom,” and “the judge summoned Defendant from the jury assembly room to his courtroom.” Slip Op. at 9. The court saw no disruption in defendant’s actions, noting he responded to the judge’s inquiries and “was respectful to the trial court.” Id. This led the court to conclude defendant’s refusal “was not a contemptuous act.” Id.
The court then moved to the State’s arguments that G.S. 5A-11(a)(3) or (7) applied, considering whether defendant could be held in contempt “for willful disobedience of the trial court’s lawful process, order, directive, or instruction pursuant to a valid local emergency order.” Id. at 10. This required the court to consider the validity of the local emergency order, and the court concluded “[t]he authority underlying the local emergency order at issue was revoked” as the Chief Justice of the North Carolina Supreme Court revoked the emergency directive authorizing local officials to address face coverings in June of 2021. Id. at 12.
Finally, the court determined defendant’s actions were not willful, noting “a misapplication of the local emergency order served as the impetus of the conflict” as the local order made masks optional in meeting rooms, and defendant had not yet been called to the courtroom to serve as a juror. Id. at 13. The court explained “[t]here are no findings, nor evidence in the record sufficient to support findings, that Defendant could have known his discussion with the courthouse employee in the jury assembly room might directly interrupt proceedings or interfere with the court’s order or business.” Id. at 14.
Judge Griffin concurred in the result by separate opinion, and would have held that defendant’s actions were not likely to interrupt or interfere with matters before the trial court.
Odor and appearance of marijuana provided probable cause to search defendant’s vehicle despite the legalization of hemp.
State v. Little, COA23-410, ___ N.C. App. ___ (Sept. 3, 2024). In this Hoke County case, defendant appealed the denial of his motion to suppress the evidence seized after a traffic stop, arguing the odor and appearance of marijuana did not support probable cause to search his vehicle. The Court of Appeals disagreed, affirming the denial.
In May of 2020, a Hoke County deputy sheriff stopped defendant after seeing defendant’s truck cross the centerline of the road at least three times. When the deputy approached defendant’s window, he smelled marijuana and saw marijuana residue on the passenger side floorboard. When asked about the marijuana, defendant said it was from his cousin, but did not claim that it was legal hemp. Officers from the sheriff’s office searched the vehicle and found a firearm, bullets, sandwich bags, and $10,000 in cash. Defendant was subsequently indicted for possession of a stolen firearm, possession of a firearm by a felon, and carrying a concealed firearm. Defendant filed a motion to suppress, arguing “the odor or appearance of marijuana, standing alone, after the legalization of hemp was insufficient to establish probable cause.” Slip Op. at 3. The trial court denied the motion and defendant pleaded guilty to the charges, reserving his right to appeal the denial.
The Court of Appeals first noted defendant’s argument leaned heavily on the State Bureau of Investigation (SBI) memo considering the Industrial Hemp Act and the “impossibility” of distinguishing legal hemp from illegal marijuana by sight or smell. Id. at 5. The court then gave a brief overview of the Industrial Hemp Act and the SBI memo. Defendant argued that the Court of Appeals considered the SBI memo in State v. Parker, 277 N.C. App. 531 (2021), and State v. Teague, 286 N.C. App. 160 (2022), but the court noted that “neither Parker nor Teague accorded the Memo the status of binding law.” Slip Op. at 11.
To establish applicable probable cause requirements for a search of defendant’s vehicle, the court looked to the Fourth Amendment and the plain view doctrine, noting the requirement that it be “immediately apparent” a substance was contraband to justify a search. Id. at 13. Applicable precedent provides that the plain view doctrine also includes the plain smell of marijuana, and the N.C. Supreme Court held (prior to the Industrial Hemp Act) that “the smell of marijuana gives officers the probable cause to search an automobile.” Id. at 14. The court took pains to explain the requirement that contraband be “immediately apparent” under the plain view doctrine, looking to Texas v. Brown, 460 U.S. 730 (1983), for the concept that it was “no different than in other cases dealing with probable cause,” despite the phrase’s implication of a higher degree of certainty. Slip Op. at 15.
Having established the applicable law, the court moved to the facts of defendant’s appeal, noting again that defendant did not claim the substance in his vehicle was legal hemp or that he was transporting or producing hemp. The court likened the situation to prescription medication, where “[i]t is legal for a person to possess certain controlled substances with a valid prescription . . . [but a] law enforcement officer may have probable cause to seize a bottle of pills in plain view if he reasonably believes the pills to be contraband or illegally possessed.” Id. at 19. Emphasizing that the issue at hand was not proving beyond a reasonable doubt that the substance was illegal marijuana, the court focused instead on “whether the officer, based upon his training and experience, had reasonable basis to believe there was a ‘practical, nontechnical’ probability that incriminating evidence would be found in the vehicle.” Id. at 21 (cleaned up). The court then summarized its reasoning:
Even if industrial hemp and marijuana look and smell the same, the change in the legal status of industrial hemp does not substantially change the law on the plain view or plain smell doctrine as to marijuana. The issue is not whether the substance was marijuana or even whether the officer had a high degree of certainty that it was marijuana, but “whether the discovery under the circumstances would warrant a man of reasonable caution in believing that an offense has been committed or is in the process of being committed, and that the object is incriminating to the accused.” In addition, even if the substance was hemp, the officer could still have probable cause based upon a reasonable belief that the hemp was illegally produced or possessed by Defendant without a license . . . . Either way, the odor and sight of what the officers reasonably believed to be marijuana gave them probable cause for the search. Probable cause did not require their belief that the substance was illegal marijuana be “correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.”
Id. at 21-22 (cleaned up). This conclusion led the court to affirm the denial of defendant’s motion to suppress.
Defendant’s waiver of indictment was valid despite proceeding pro se.
State v. Pierce, COA23-348, ___ N.C. App. ___ (Sept. 3, 2024). In this Durham County case, defendant appealed after pleading guilty to crimes against nature and sexual battery, arguing his waiver of indictment was invalid because he was not represented by counsel at the time. The Court of Appeals disagreed, affirming the judgment against defendant.
Defendant was indicted for statutory rape, kidnapping, and related charges in February of 2017. From his first appearance to the trial, defendant was provided five court-appointed attorneys, either as representation or standby counsel after defendant decided to represent himself. At the time defendant signed a waiver of indictment, he was not represented by counsel but had standby counsel available; the standby counsel did not sign the waiver.
Defendant’s argument relied on G.S. 15A-642, specifically the provisions in subsection (b) that prohibit waiver of indictment when “the defendant is not represented by counsel” and subsection (c) that reference signature by defendant and his attorney. The court reviewed the three cases cited by defendant to support his argument, holding “[defendant’s] case is distinguishable because he had previously waived multiple appointed counsels and had elected to proceed pro se.” Slip Op. at 6-7. Moving to the statute, the court first explained that defendant had used the appointed counsel system to delay his trial and had knowingly proceeded without counsel when waiving the indictment. The court also determined that any prejudicial error by the trial court was invited by defendant, explaining that defendant “created any purported error of proceeding unrepresented through his own demands when signing the Waiver of Indictment after he deliberately chose to proceed pro se.” Id. at 10.
Substitution of alternate juror during deliberations justified new trial; use of post-release supervision GPS ankle monitor data by police department was not illegal search.
State v. Thomas, COA23-210, ___ N.C. App. ___ (Sept. 3, 2024). In this Wake County case, defendant appealed his convictions for second-degree murder and assault with a deadly weapon, arguing (1) the substitution of an alternate juror after deliberation began justified granting him a new trial, and (2) error in denying his motion to suppress the results of GPS tracking from his ankle monitor. The Court of Appeals granted a new trial due to the substitution in (1) but affirmed the order denying the motion for (2).
In November of 2019, surveillance footage caught a red car at a convenience store where a shooting occurred. An informant linked defendant to being an occupant of the car, and police determined that defendant was under post-release supervision (PRS) and wearing a GPS ankle monitor. A Raleigh police officer accessed the location history of defendant’s monitor and found results tying him to the scene of the shooting. Defendant was subsequently indicted for the shooting and came to trial in December of 2021. During jury selection, one of the jurors informed the court that he had a scheduled vacation but could serve if the trial concluded before that date. The juror was seated, but due to the trial schedule, the jury was still in deliberations when his scheduled vacation arrived. Neither the State nor defendant objected when the trial court released the juror and replaced him with an alternate. The jury subsequently returned a verdict of guilty.
Taking up (1), the Court of Appeals pointed to State v. Chambers, 898 S.E.2d 86 (N.C. App. 2024), as controlling precedent. Under Chambers, any substitution of a juror after deliberation violated defendant’s constitutional right to a unanimous verdict. The court noted “[a]lthough the Supreme Court of North Carolina has granted discretionary review of Chambers, this Court remains bound by Chambers and we are therefore required to grant Defendant’s request for a new trial based upon the juror substitution.” Slip Op. at 8.
Because the issue would arise again in the new trial, the court next considered (2). Defendant argued “the State exceeded the scope of the search allowed by [G.S.] 15A-1368.4 because the law enforcement officer who accessed the data from his ankle monitor was not his supervising officer under his PRS.” Id. at 9. The court first established defendant was subject to PRS and outlined the statutory basis under G.S. 15A-1368.4 for his ankle monitor. In particular, the court noted “subsection (e)(13) does not limit the access to electronic monitoring data to the supervisee’s post-release supervision officer or any particular law enforcement agency[. . .] a supervisee can be required to ‘remain in one or more specified places’ at specific times and to ‘wear a device that permits the defendant’s compliance with the condition to be monitored electronically[.]’” Id. at 18. The limitations for warrantless searches of a PRS supervisee’s person and vehicle are different than those imposed on electronic monitoring, and the court concluded that “under these circumstances, [the police officer’s] accessing the ankle monitor data was not a ‘search’ as defined by law.” Id. at 20-21. The court also clarified that “[a]s a supervisee under PRS under [G.S.] 15A-1368.4, Defendant had a lower expectation of privacy than the offenders subject to lifetime SBM under the [State v. Grady, 259 N.C. App. 664 (2018)] caselaw.” Id. at 23.