As Chris Tyner explained here a few weeks ago, the School of Government will be continuing Professor Smith’s practice of summarizing recent North Carolina appellate cases on criminal law. The summaries will be posted here on the blog, and also sent out to the criminal law listserv. This post provides summaries of the North Carolina Court of Appeals opinions published on July 2, 2019.
1) Trial court did not err by refusing to give defendant’s requested jury instructions or intervene ex mero motu during prosecutor’s closing argument.
State v. Cagle, __ N.C. App. __ (July 2, 2019).
The trial court did not err in this murder case by declining to: (i) include a special jury instruction on specific intent in the final mandate; (ii) use the defendant’s requested special instruction on deliberation; or (iii) intervene ex mero motu to strike prosecutor’s comments during closing arguments.
(i) On the issue of specific intent, the trial judge gave the jury an instruction regarding voluntary intoxication and its effect on specific intent, but did not repeat the instruction as part of the final mandate. The appellate court held that the defendant failed to preserve the issue by not objecting, and further held that it was not plain error because the trial judge was not required to restate the specific intent instruction in the final mandate.
(ii) The defendant also requested a special jury instruction that paraphrased a passage from State v. Buchanan, 287 N.C. 408 (1975) to explain the concept of deliberation. The trial judge did not err by refusing that request and using the pattern jury instruction on deliberation instead. The pattern jury instruction was a correct statement of the law, and it embraced the substance of the defendant’s request.
(iii) Finally, citing case precedent, the court held that neither the prosecutor’s characterization of the defendant as “evil” nor a brief reference to the defense experts as “hacks” were so grossly improper that the judge erred by failing to intervene ex mero motu during the closing argument.
2) Waiver of indictment that did not include defense attorney’s signature was invalid, depriving the trial court of jurisdiction.
State v. Futrelle, __ N.C. App. __ (July 2, 2019).
The defendant pled guilty to controlled substance offenses pursuant to a bill of information and waiver of indictment. In an MAR, the defendant argued that the pleadings were defective and the trial court lacked jurisdiction because the waiver of indictment was not signed by his attorney. The trial court denied the MAR, finding that the pleadings substantially complied with the statute, but the appellate court reversed and remanded with instructions to grant the MAR and vacate the judgment. The requirements listed in G.S. 15A-642 for a waiver of indictment, including the signature of the defendant’s attorney, are mandatory. Therefore, the waiver in this case was “invalid without Defendant’s attorney’s signature, depriving the trial court of jurisdiction to accept Defendant’s guilty plea and enter judgment.”
3) Trial court did not err by refusing to allow defendant to withdraw his no contest plea more than two months after defendant was advised of what his sentence would be, even though final judgment had not been entered.
State v. Lankford, __ N.C. App. __ (July 2, 2019).
Pursuant to a plea agreement, the defendant entered a no contest plea to charges including fleeing to elude and being an habitual felon, and in return several other charges were dismissed by the state. The defendant was advised of what his sentence would be, but was released on conditions until his sentencing date two months later. The defendant failed to appear for sentencing, and an order for his arrest was issued. At the next court hearing, the defendant asked to withdraw his no contest plea. The trial court denied the request and entered judgment.
As a matter of first impression, the Court of Appeals held that when a defendant has been advised of what his or her sentence will be, the standard for evaluating whether the defendant should have been allowed to withdraw from the plea is the same as the standard used after a defendant has been sentenced: “it is appropriate to review the trial court’s denial of Defendant’s motion only to determine whether it amounted to a manifest injustice, and not according to the ‘any fair and just reason’ standard.” The court reasoned that the same considerations (e.g, the possibility that the defendant will view the plea as a ‘tactical mistake’ once he learns the sentence, the state’s detrimental reliance on the plea, and the policy of protecting the finality of convictions) are present in both situations, so the same standard should apply.
Alternatively, even under the lower ‘any fair and just reason’ standard that applies to requests to withdraw a guilty or no contest plea prior to sentencing, the particular facts of this case did not warrant relief.
4) Defendant was guilty of taking indecent liberties with a minor for attempting to send an 11 year-old girl a letter asking her to have sex with him.
State v. Southerland, __ N.C. App. __ (July 2, 2019).
The defendant, a 69 year-old male, wrote a letter to an 11 year-old girl and asked her grandmother to deliver the letter. The grandmother read the letter, in which the defendant asked the girl to have sex with him to make him “feel young again,” and called the police. The defendant was charged and convicted of engaging in indecent liberties with a minor under G.S. 14-202.1(a)(1). A person is guilty of this offense if he “[w]illfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire[.]”
On appeal, the defendant argued that it was error to deny his motion to dismiss at trial because there was insufficient evidence to show that he was ever “with” the minor as contemplated by the statute, or that he took any steps beyond mere preparation sufficient to constitute an “attempt” under the statute. The Court of Appeals rejected both arguments, citing to similar facts and holdings in State v. McClary, 198 N.C. App. 169 (2009). The statute does not require actual physical touching to constitute a taking or attempted taking of indecent liberties, and the delivery of the letter in this case was sufficient evidence of an attempt. Additionally, the letter itself provided adequate circumstantial evidence of the defendant’s unlawful purpose.
5) Statute of limitations was tolled by filing of charges in district court, so presentment and indictment obtained more than two years after the date of the offense were not time-barred.
State v. Stevens, __ N.C. App. __ (July 2, 2019).
Defendant was charged with two counts of misdemeanor death by motor vehicle by citation on December 24, 2013. On December 21, 2015, the state filed a misdemeanor statement of charges alleging the same offenses. While those charges were pending in district court, the grand jury issued a presentment for the offenses on March 7, 2016, and the state obtained a corresponding indictment on March 21, 2016. The defense filed a motion to dismiss, arguing that the superior court indictments were obtained after the two-year statute of limitations for the offense had run. The trial court granted the motion.
The Court of Appeals reversed and remanded. Pursuant to State v. Curtis, 371 N.C. 355 (2018), the citation and misdemeanor statement of charges filed in district court tolled the statute of limitations. The court rejected the defendant’s argument that the presentment and indictment “annulled” the original district court prosecution, thereby making the new charges in superior court untimely. The original charges were still pending in district court at the time the state obtained the indictment, and “[i]f an action in District Court was properly pending, as it was here, the statute of limitations continued to be tolled.”