This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on December 16, 2022. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Trial court’s procedure for consenting to defendant’s waiver of jury trial complied with G.S. 15A-1201(d)(1) and did not represent abuse of discretion.
State v. Rollinson, 2022-NCSC-139, ___ N.C. ___ (Dec. 16, 2022). In this Iredell County case, the Supreme Court affirmed the Court of Appeals decision finding that the trial court complied with G.S. 15A-1201(d)(1) when consenting to defendant’s waiver of the right to a jury trial for habitual felon status.
After the 2014 amendment to the North Carolina constitution permitting defendants to waive their right to a jury trial in non-death penalty cases with the consent of the trial court, the General Assembly enacted G.S. 15A-1201(d), outlining the process for judicial consent to a defendant’s jury trial waiver. Defendant argued that trial court erred by permitting his counsel to respond on his behalf to the trial court’s inquiry as to whether he understood the consequences of waiving his right to a jury trial.
The Supreme Court considered the interpretation of G.S. 15A-1201(d) de novo, and noted that while the statute mandates who to address (defendant) and what must be determined (whether defendant understands the consequences of waiving a jury trial), the statute does not specify the procedure the trial court must follow. Because the statute is silent, the appropriate procedure is left to the discretion of the trial court. Here, the trial court asked defendant if he wished to waive the right to jury trial on the habitual felon issue; after asking the court for time and consulting with defendant, defense counsel responded that defendant wished to do so. After this exchange with the trial court, defendant signed a form confirming he understood the consequences and waived his right to a jury trial. The court found that these steps did not represent an abuse of the trial court’s discretion under the statute.
Justice Ervin, joined by Justices Hudson and Earls, dissented and would have granted a new trial for defendant’s habitual felon status. Slip Op. at 12.
Trial Court possessed jurisdiction and did not abuse its discretion when revoking defendant’s probation after the term of probation had expired.
State v. Geter, 2022-NCSC-137, ___ N.C. ___ (Dec. 16, 2022). In this Buncombe County case, the Supreme Court affirmed the Court of Appeals decision finding no error with the trial court’s revocation of defendant’s probation over a year after the end of the probation term.
In January of 2017, the Asheville Police Department executed a search warrant of defendant’s residence, recovering marijuana, a digital scale, a firearm, and cash, including $40 used in a previous controlled buy of narcotics from defendant. At the time of the search warrant, defendant was already on supervised probation. Defendant was subsequently charged with possession of marijuana and related drug offenses and possessing a firearm by a felon. Defendant’s probation officer prepared violation reports identifying defendant’s offenses while on probation and filed them in February of 2018, more than two weeks before defendant’s probation expired on February 28, 2018. Although defendant successfully filed a motion to suppress the results of the search warrant, leading to the state dismissing the charges against him, the probation violations reached the trial court in April of 2019. The trial court found that defendant committed a new criminal offense while on probation and revoked defendant’s probation.
The Supreme Court first considered whether the trial court had jurisdiction to revoke defendant’s probation, examining the question de novo. The three requirements of G.S. 15A-1344(f) determine if a trial court has jurisdiction to revoke a defendant’s probation after it has expired; here the court found that all three were satisfied, but examined the adequacy of the “good cause shown and stated” to satisfy the requirement in (f)(3). Slip Op. at 10. The court turned to similar uses of “good cause” such as continuance motions, and examined related precedent to find that the trial court’s determination was not an abuse of discretion and was justified under the circumstances. The court also rejected defendant’s argument that the state must show “reasonable efforts” to schedule the probation revocation hearing at an earlier time, explaining the caselaw referenced by defendant examined a version of G.S. 15A-1344(f) no longer in effect. Id. at 19.
Justice Earls, joined by Justice Hudson, dissented and would have found that the trial court did not possess good cause to revoke defendant’s probation. Id. at 21.
Defendant did not “effectively waive” her right to counsel; forfeiture of counsel requires “egregious misconduct” by defendant.
State v. Atwell, 2022-NCSC-135, ___ N.C. ___ (Dec. 16, 2022). In this Union County case, the Supreme Court reversed the Court of Appeals decision that defendant effectively waived her right to counsel and remanded the case for a new trial.
Defendant was subject to a Domestic Violence Prevention Order (DVPO) entered against her in 2013; the terms of the order required her to surrender all firearms and ammunition in her position, and forbid her from possessing a firearm in the future, with a possible Class H felony for violation. In 2017, defendant attempted to buy a firearm in Tennessee while still subject to the DVPO and was indicted for this violation. Initially defendant was represented by counsel, but over the course of 2018 and 2019, defendant repeatedly filed pro se motions to remove counsel and motions to dismiss. The trial court appointed five different attorneys; three withdrew from representing defendant, and defendant filed motions to remove counsel against the other two. The matter finally reached trial in September of 2019, where defendant was not represented by counsel. Before trial, the court inquired whether defendant was going to hire private counsel, and she explained that she could not afford an attorney and wished for appointed counsel. The trial court refused this request and determined defendant had waived her right of counsel. The matter went to trial and defendant was convicted in January of 2020, having been mostly absent from the trial proceedings.
Examining the Court of Appeals opinion, the Supreme Court noted that the panel was inconsistent when discussing the issue of waiver of counsel verses forfeiture of counsel, an issue that was also present in the trial court’s decision. The court explained that “waiver of counsel is a voluntary decision by a defendant and that where a defendant seeks but is denied appointed counsel, a waiver analysis upon appeal is both unnecessary and inappropriate.” Slip Op. at 16. Here the trial court, despite saying defendant “waived” counsel, interpreted this as forfeiture of counsel, as defendant clearly expressed a desire for counsel at the pre-trial hearing and did not sign a waiver of counsel form at that time (although she had signed several waivers prior to her request for a new attorney).
Having established that the proper analysis was forfeiture, not waiver, the court explained the “egregious misconduct” standard a trial court must find before imposing forfeiture of counsel from State v. Harvin, 2022-NCSC-111, and State v. Simpkins, 373 N.C. 530 (2020). Slip Op. at 18. The court did not find such egregious misconduct in this case, explaining that defendant was not abusive or disruptive, and that the many delays and substitutions of counsel were not clearly attributable to defendant. Instead, the record showed legitimate disputes on defense strategy with one attorney, and was silent as to the reasons for withdrawal for the others. Additionally, the state did not move to set the matter for hearing until many months after the indictment, meaning that defendant’s counsel issues did not cause significant delay to the proceedings.
Chief Justice Newby, joined by Justices Berger and Barringer, dissented and would have found that defendant forfeited her right to counsel by delaying the trial proceedings. Id. at 28.
Indictment did not specifically identify facilitating flight following commission of felony as purpose of kidnapping; underlying felony of rape was completed before the actions of kidnapping occurred, justifying dismissal.
State v. Elder, 2022-NCSC-142, ___ N.C. ___ (Dec. 16, 2022). In this Warren County case, the Supreme Court affirmed the Court of Appeals decision finding that the second of defendant’s two kidnapping charges lacked support in the record and should have been dismissed because the rape supporting the kidnapping charge had already concluded before the events of the second kidnapping.
The two kidnapping charges against defendant arose from the rape of an 80-year-old woman in 2007. Defendant, posing as a salesman, forced his way into the victim’s home, robbed her of her cash, forced her from the kitchen into a bedroom, raped her, then tied her up and put her in a closet located in a second bedroom. The basis for the kidnapping charge at issue on appeal was tying up the victim and moving her from the bedroom where the rape occurred to the second bedroom closet. Defendant moved at trial to dismiss the charges for insufficiency of the evidence, and argued that there was no evidence in the record showing the second kidnapping occurred to facilitate the rape.
The Supreme Court agreed with the Court of Appeal majority that the record did not support the second kidnapping conviction. The court explored G.S. 14-39 and the relevant precedent regarding kidnapping, explaining that kidnapping is a specific intent crime and the state must allege one of the ten purposes listed in the statute and prove at least one of them at trial to support the conviction. Here, the state alleged “that defendant had moved the victim to the closet in the second bedroom for the purpose of facilitating the commission of rape.” Slip Op. at 30. At trial, the evidence showed that defendant moved the victim to the second bedroom “after he had raped her, with nothing that defendant did during that process having made it any easier to have committed the actual rape.” Id. Because the state only alleged that defendant moved the victim for purposes of facilitating the rape, the court found that the second conviction was not supported by the evidence in the record. The court also rejected the state’s arguments that State v. Hall, 305 N.C. 77 (1982) supported interpreting the crime as ongoing, overruling the portions of that opinion that would support interpreting the crime as ongoing. Slip Op. at 42.
Chief Justice Newby, joined by Justice Berger, dissented and would have allowed the second kidnapping conviction to stand. Id. at 45.
No abuse of discretion by trial court when declining to adjust defendant’s mandatory minimum sentence downward for defendant’s substantial assistance to law enforcement.
State v. Robinson, 2022-NCSC-138, ___ N.C. ___ (Dec. 16, 2022). In this Guilford County case, the Supreme Court affirmed the Court of Appeals majority that found no abuse of discretion by the trial court when declining to adjust defendant’s sentence downward for defendant’s substantial assistance to law enforcement.
Defendant was first arrested in 2016 after a search of his home, leading to charges of trafficking a controlled substance and possession of a firearm by a felon. In 2018, after defendant was released but before the charges reached trial, defendant was arrested and indicted with a second trafficking charge. Defendant ultimately pleaded guilty to two trafficking a controlled substance charges and a firearm possession charge. During sentencing, defense counsel argued that defendant had provided substantial assistance to law enforcement and deserved a downward deviation in the required minimum sentences. The trial court acknowledged that defendant had provided substantial assistance but declined to lower the sentences, instead choosing to consolidate the three offenses to one sentence of 90 to 120 months.
The Supreme Court agreed with the opinion of the Court of Appeals majority that the actions of the trial court did not represent abuse of discretion, explaining that G.S. 90-95(h)(5) granted complete discretion to the trial court. The court noted two decision points, (1) whether the defendant provided substantial assistance, and (2) whether this assistance justified a downward adjustment in the mandatory minimum sentencing. Further, the court noted that this assistance could come from any case, not just the case for which the defendant was being charged; this was the basis of the dissent in the Court of Appeals opinion, but the Supreme Court did not find any evidence that the trial court misinterpreted this discretion. Slip Op. at 15. Instead, the court found that the trial court appropriately exercised the discretion granted by the statute, as well as G.S. 15A-1340.15(b), to consolidate defendant’s offenses.
Justice Earls dissented and would have remanded for resentencing. Id. at 20.
Defendant’s actions when reporting his change of address and homeless status to the sex offender registry did not show an intent to deceive, justifying dismissal of the charge.
State v. Lamp, 2022-NCSC-141, ___ N.C. ___ (Dec. 16, 2022). In this Iredell County case, the Supreme Court reversed the Court of Appeals majority decision affirming defendant’s conviction for failure to comply with the sex offender registry.
Defendant is a registered sex offender, and in June 2019 he registered as a homeless in Iredell County. Because of the county’s requirements for homeless offenders, he had to appear every Monday, Wednesday, and Friday to sign a check-in log at the sheriff’s office. On June 21, 2019, defendant moved into a friend’s apartment, but the apartment was under eviction notice and defendant vacated this apartment sometime on the morning of June 26, 2019. Defendant reported all of this information at the sheriff’s office and signed a form showing his change of address on June 21; however, due to the way the form was set up, there was way to indicate defendant planned to vacate on June 26. Instead, defendant signed the homeless check-in log. A sheriff’s deputy went through and attempted to verify this address, unaware that defendant had since vacated; compounding the confusion, the deputy went to the incorrect address, but did not attempt to contact defendant by phone. As a result, the deputy requested a warrant for defendant’s arrest, defendant was indicted, and went to trial for failure to comply with the registry requirements. At trial defendant moved to dismiss the charge, arguing that there was no evidence of intent to deceive, but the trial court denied the motion.
Examining the appeal, the Supreme Court agreed with defendant that the record did not contain sufficient evidence of defendant’s intent to deceive. The court examined each piece of evidence identified by the Court of Appeals majority, and explained that none of the evidence, even in the light most favorable to the state, supported denial of defendant’s motion to dismiss. Instead, the court noted the record did not show any clear intent, and that the state’s theory of why defendant would be attempting to deceive the sheriff’s office (because he couldn’t say he was homeless) made no sense, as defendant willfully provided his old address and signed the homeless check-in log at the sheriff’s office. Slip Op. at 16.
Justice Barringer, joined by Chief Justice Newby and Justice Berger, dissented and would have held that sufficient evidence in the record supported the denial of defendant’s motion to dismiss. Id. at 18.
Admission of testimony that principal witness was “rock solid” was improper but did not represent plain error justifying a new trial.
State v. Caballero, 2022-NCSC-136, ___ N.C. ___ (Dec. 16, 2022). In this Durham County case, the Supreme Court modified and affirmed the Court of Appeals decision finding no plain error when admitting testimony regarding the strength of the state’s principal witness.
In 2016, defendant was indicted for murder and related charges for the death of his neighbor. At trial, the victim’s wife was the principal witness testifying regarding defendant’s assault and stabbing of her husband. A sheriff’s deputy testified regarding this witness’s consistence when recounting the events and noted that he pressed her many times and she did not change her story, remaining “resolute and rock solid.” Defendant did not object to the testimony at trial but raised the issue on appeal.
Reviewing defendant’s appeal, the Supreme Court agreed with the Court of Appeals that admission of the deputy’s testimony did not rise to the level of plain error. The court first explained that admission of the testimony in question was improper, as having a witness vouch for the credibility of another witness is not typically allowed. Although the state argued that this testimony represented evidence of prior consistent statements, the court disagreed, noting that the admitted testimony was not simply repeating statements the deputy heard from the witness, showing consistency. Instead, the deputy’s testimony offered a full description of questioning the witness and why her consistency represented a credible account of the events. The court also explained that Rule of Evidence 608(a) did not allow the deputy’s testimony, as the witness’s credibility was not attacked by opinion or reputation. Slip Op. at 25.
Despite establishing that the deputy’s testimony was improperly admitted, the court could not find plain error. Other sources supported the consistency and credibility of the witness’s testimony, and physical evidence in the record also supported defendant’s conviction. As a result, although the court modified the decision of the Court of Appeals, the defendant’s conviction was affirmed.
Justice Barringer, joined by Chief Justice Newby and Justice Berger, dissented in part and concurred in the result, disagreeing that the admission of the deputy’s testimony was improper but agreeing that the conviction should be affirmed. Id. at 32.
Failure to provide jury instruction on involuntary manslaughter represented error justifying new trial; jury finding defendant’s offense as “especially heinous, atrocious, or cruel” did not conclusively represent a finding of malice for the offense.
State v. Brichikov, 2022-NCSC-140, ___ N.C. ___ (Dec. 16, 2022). In this Wake County case, the Supreme Court affirmed the Court of Appeals decision granting defendant a new trial because the trial court declined to provide his requested jury instruction on involuntary manslaughter.
In 2018, defendant met his wife at a motel in Raleigh known for drug use and illegal activity; both defendant and his wife were known to be heavy drug users, and defendant’s wife had just been released from the hospital after an overdose that resulted in an injury to the back of her head. After a night of apparent drug use, defendant fled the motel for Wilmington, and defendant’s wife was found dead in the room they occupied. An autopsy found blunt force trauma to her face, head, neck, and extremities, missing and broken teeth, atherosclerosis of her heart, and cocaine metabolites and fentanyl in her system. Defendant conceded that he assaulted his wife during closing arguments. Defense counsel requested jury instructions on voluntary and involuntary manslaughter, including involuntary manslaughter under a theory of negligent omission, arguing that the victim may have died from defendant’s failure to render or obtain aid for her after an overdose. The trial court did not provide instructions on either voluntary or involuntary manslaughter, over defense counsel’s objections.
On appeal, the Supreme Court considered the issues raised by the Court of Appeals dissent, (1) whether the trial court committed error by failing to provide an instruction on involuntary manslaughter, and (2) did any error represent prejudice “in light of the jury’s finding that defendant’s offense was ‘especially heinous, atrocious, or cruel.’” Slip Op. at 15. The court found that (1) the trial court erred because a juror could conclude “defendant had acted with culpable negligence in assaulting his wife and leaving her behind while she suffered a drug overdose or heart attack that was at least partially exacerbated by his actions, but that it was done without malice.” Id. at 21. Exploring (2), the court explained “where a jury convicts a criminal defendant of second-degree murder in the absence of an instruction on a lesser included offense, appellate courts are not permitted to infer that there is no reasonable possibility that the jury would have convicted the defendant of the lesser included offense on the basis of that conviction.” Id. at 22, citing State v. Thacker, 281 N.C. 447 (1972). The court did not find the “especially heinous, atrocious, or cruel” aggravating factor dispositive, as it noted “finding that a criminal defendant committed a homicide offense in an especially heinous, atrocious, or cruel way does not require a finding that he acted with malice in bringing about his victim’s death.” Id. at 24. Instead, the court found prejudicial error in the lack of involuntary manslaughter instruction.
Justice Berger, joined by Chief Justice Newby and Justice Barringer, dissented and would have upheld defendant’s conviction for second-degree murder. Id. at 27.