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Case Summaries – N.C. Court of Appeals (September 1, 2020)

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This post summarizes opinions issued by the North Carolina Court of Appeals on September 1, 2020.

The trial court did not abuse its discretion by denying a mistrial and issuing a curative instruction in response to the State’s objectionable questioning of a witness; Defense counsel was not ineffective by admitting an element of the charged offense in closing argument and the admission did not constitute structural error under McCoy v. Louisiana

State v. Crump, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 1, 2020).  In this sex offense case, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial and instead giving a curative instruction to the jury in response to the State’s objectionable questioning of a witness.  Defense counsel did not admit the defendant’s guilt over his objection in violation of State v. Harbison or McCoy v. Louisiana by admitting an element of the charged offense in closing argument.

(1) Prior to trial in response to the defendant’s motion to exclude certain potential testimony, the State agreed to refrain from asking a detective about the victim’s grandmother allegedly pressuring the victim not to testify.  At trial, the State asked the victim about the manner in which she had been pressured not to testify and the defendant objected.  The trial court sustained the objection but denied the defendant’s motion for a mistrial, instead issuing a curative instruction striking the testimony from the record and from the jury’s consideration.  The Court of Appeals determined that the trial court did not abuse its discretion in denying a mistrial and properly exercised its discretion and cured any potential prejudice by issuing the curative instruction and polling the jury.

(2) Even if defense counsel admitted an element of second-degree forcible sexual offense by saying in closing argument that the State would have had a “slam-dunk incest case” if the defendant and the victim were related to each other and referring to an issue of consent under the “dirty and unpalatable” facts of the case, counsel did not violate the defendant’s Sixth Amendment rights by admitting the defendant’s guilt without his consent.  The court explained that defense counsel’s statements may have constituted admissions of the “sexual act with another person” element of the crime, but did not constitute an admission of guilt because counsel “vociferously argued” that the defendant did not perpetrate the sexual contact “by force and against the will” of the victim, another element of the crime.  First addressing the issue through the lens of ineffective assistance of counsel, the court explained that an admission of an element does not constitute an admission of guilt and consequently counsel’s comments were not a Harbison violation.  The court then distinguished defense counsel’s admission of “at most” an element of the offense from the situation in McCoy v. Louisiana, ___ U.S. ___, 138 S. Ct. 1500 (2018) where defense counsel admitted his client’s guilt and found that no Sixth Amendment structural error occurred.

 

The trial court erred by summarily denying the defendant’s Batson challenge; Any violation of the statutory mandate that prospective jurors be randomly selected did not prejudice the defendant

State v. Hood, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 1, 2020).  In a first-degree felony murder case, the trial court did not err by denying the defendant’s motion to strike the initial jury panel and the Court of Appeals remanded the case to the trial court for a proper Batson hearing consistent with State v. Hobbs, 374 N.C. 345 (2020).  Before jury selection, the clerk provided the State and the defendant with a list of the first 12 prospective jurors to be called from the master jury list – 11 had surnames beginning with the letter “B” and the twelfth had a surname beginning with the letter “C.”  After defense counsel’s oral motion on the first day of voir dire to strike the first 12 prospective jurors based on concerns about whether they had been randomly selected in accordance with relevant statutes was denied, defense counsel made a motion in writing on the second day of voir dire to strike the jury panel for lack of randomness.  The trial court denied that written motion.  On the third day of voir dire, the trial court summarily denied the defendant’s Batson challenge to the State’s exercise of a peremptory strike against an African-American prospective juror.  With respect to the denial of the written motion to strike the jury panel, the Court of Appeals determined that even if the mandatory statutory procedure for calling jurors had been violated, the defendant did not show that any such violation was prejudicial because he did not strike any of the first 12 jurors for cause or with a peremptory challenge.  With respect to the Batson challenge, the court reviewed Hobbs, other precedent, and the proceedings in the trial court on its way to determining that the trial court erred by summarily denying the challenge without making specific findings of fact and conclusions of law.  The court remanded the case with instructions to the trial court to conduct a proper Batson hearing.

 

The trial court did not err by denying the defendant’s motion for a continuance to review rebuttal evidence that the State announced its intention to use on the day before trial

[Author’s Note: The Court of Appeals withdrew an opinion in this matter filed on June 16, 2020 and filed a new opinion solely to address the defendant’s Motion for Appointment of Counsel for any further proceedings in the appellate court system.  Footnote 1 of this opinion, granting the motion, is the only substantive change.  The summary prepared for the June 16 opinion appears below with a revised date.]

State v. Johnson, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 1, 2020).  In this felony murder  and armed robbery case, the trial court did not err by denying the defendant’s motion for a continuance to allow time to review evidence the State intended to introduce to rebut the defendant’s expert testimony that he acted with diminished capacity, or in the alternative to not allow the State to introduce that rebuttal evidence.  The defendant made this motion on the first day of trial, one day after being informed of the state’s intent to use the rebuttal evidence, which consisted of jailhouse call recordings made around the time that he first met with his expert and which the State contended showed that he did not display signs of diminished capacity.

The defendant was sentenced to life imprisonment for felony murder based on the jury’s finding that his killing of a store clerk was associated with the defendant’s commission of the felony of assault with a firearm on a law enforcement officer as the defendant left the scene of the crime.  Citing precedent establishing that diminished capacity is not a defense to a felony murder conviction based on that underlying general intent felony, the court found that any error by the trial court in denying the continuance was non-prejudicial as the expert testimony was not relevant to that conviction.

The jury also convicted the defendant of armed robbery and the trial court sentenced him to a term of imprisonment to run consecutively to his life sentence for felony murder.  Because armed robbery is a specific intent crime, the expert testimony on diminished capacity was relevant to the armed robbery conviction.  The State’s jailhouse recording rebuttal evidence went to the issue of the defendant’s mental ability around the time he met with his expert and generally showed that he was capable of making plans and adding up money.  Reviewing whether the denial of the motion deprived the defendant of his constitutional right to present a defense, the court noted that defense counsel knew of the existence of the recordings for “quite a while” before trial but did not request them and, largely because the recordings did not contradict the expert’s testimony, determined that the defendant was not prejudiced by the denial of his motion for a continuance.

Judge Stroud dissented, expressing the view that the trial court’s denial of the continuance erroneously denied the defendant his right to effective assistance of counsel because of defense counsel’s inability due to time constraints to review the jailhouse call recordings or prepare for their use at trial.  In Judge Stroud’s view, because the trial court’s error amounted to a violation of the defendant’s constitutional rights, it was presumptively prejudicial unless the State showed it was harmless beyond a reasonable doubt, a burden that the State did not meet.

 

There is no statutory right to counsel under G.S. 7A-451(a)(1) in summary proceedings for direct criminal contempt

State v. Land, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 1, 2020).  In this direct criminal contempt case involving summary proceedings where the defendant was sentenced for two instances of contempt, the Court of Appeals determined as a matter of first impression that the defendant did not have a statutory right to appointed counsel under G.S. 7A-451(a)(1).  The court explained that precedent from the United States Supreme Court and the North Carolina Supreme Court establishes that there is no Sixth Amendment right to counsel in summary proceedings for direct criminal contempt.  The court further explained that discussion in Jolly v. Wright, 300 N.C. 83 (1980), overruled on other grounds by McBride v. McBride, 334 N.C. 124 (1993), suggested that the language in G.S. 7A-451(a)(1) entitling an indigent defendant to appointed counsel in “any case” in which imprisonment or a fine of $500 or more is likely to be adjudged should be construed to refer to “any criminal case to which Sixth Amendment protections apply.”  The court went on to point out that the contemporaneous nature of summary proceedings for direct criminal contempt where the trial court acts on its own first-hand observations supported the conclusion that the statutory right to counsel does not apply, but cautioned trial courts to exercise restraint in such proceedings.

The court remanded the matter to the trial court to correct a clerical error regarding the length of one of the defendant’s contempt sentences.  The court also found that the trial court’s written judgment ordering that one of the sentences run consecutive to the other violated the defendant’s right to be present at sentencing because the trial court did not specify the consecutive nature of the sentence when rendering it orally while the defendant was present in the courtroom, and remanded for the entry of a new judgment in the defendant’s presence.

 

The trial court properly denied the Surety’s motion for relief from a bond forfeiture order where the motion was made prior to entry of final judgment and was not based on one of the seven grounds for relief enumerated in G.S. 15A-544.5(b)

State v. Roulhac, ___ N.C. App. ___, ___ S.E.2d ___ (Sept. 1, 2020).  The trial court properly denied the Surety’s motion for relief from a bond forfeiture order where the motion was made prior to entry of final judgment and was not based on one of the seven grounds for relief enumerated in G.S. 15A-544.5(b).  The basis for the Surety’s motion for relief was that the clerk did not provide notice of the bond forfeiture within the 30-day period after the date the defendant failed to appear as required by G.S. 15A-544.4(e).  Failure to provide timely notice of a bond forfeiture is not among the seven “reasons for set aside” enumerated in G.S. 15A-544.5, the statute which is the exclusive avenue of relief from a bond forfeiture when the forfeiture has not yet become a final judgment.  The court noted that G.S. 15A-544.8 permits a trial court to set aside a final judgment of forfeiture on the grounds of untimely notice.

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