This post summarizes published criminal decisions from the North Carolina Supreme Court released on December 17, 2021, and decisions from the North Carolina Court of Appeals released on January 4, 2022.
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.
North Carolina Supreme Court – December 17, 2021:
(1) Court of Appeals erred in finding that the trial court should have granted defendant’s motions to dismiss for vindictive prosecution and failure to join; (2) remanded for reconsideration of defendant’s double jeopardy argument.
State v. Schalow, 2021-NCSC-166, __ N.C. __ (Dec. 17, 2021). The facts of this case were previously summarized following the Court of Appeals decision in State v. Schalow, 269 N.C. App. 369 (2020) (“Schalow II“), available here. The defendant was initially charged with attempted murder and several counts of assault against his wife, but the state only proceeded to trial on attempted murder and dismissed the assault charges. After discovering the indictment for attempted murder failed to allege malice, the court granted the state a mistrial over the defendant’s objection. The defendant was subsequently tried for that charge on a new indictment and convicted. On appeal, the defendant argued in State v. Schalow, 251 N.C. App. 354 (2018) (“Schalow I”) that the mistrial was granted in error because it sufficiently alleged manslaughter as written, and therefore the second prosecution violated double jeopardy. The appellate court agreed and vacated the conviction. In addition to seeking discretionary review of the decision in Schalow I (which was ultimately denied), the state obtained several new indictments against the defendant for felony child abuse and the related assaults against his wife. The defendant’s pretrial motion to dismiss the new charges on the basis of vindictive prosecution, double jeopardy, and failure to join charges under G.S. 15A-926 was denied, and the defendant sought discretionary appellate review, which was granted. The Court of Appeals held that the trial court erred by denying the defendant’s motion to dismiss in Schalow II, finding that the defendant was entitled to a presumption of prosecutorial vindictiveness and also met his burden of showing that the state withheld the prior indictments to circumvent the joinder requirements of G.S. 15A-926, which required dismissal of the charges. Based on those holdings, the appellate court did not reach the double jeopardy issue.
The state sought discretionary review of the appellate court’s rulings in Schalow II, which was granted and resulted in the current decision. On review, the state Supreme Court court reversed the Court of Appeals on the two issues it decided, and remanded the case to the lower court to reconsider the remaining double jeopardy argument.
First, regarding vindictive prosecution, the higher court explained that North Carolina v. Pearce, 395 U.S. 711 (1969) and Blackledge v. Perry, 417 U.S. 21 (1974) establish a presumption of vindictiveness when a defendant receives a more serious sentence or faces more serious charges with significantly more severe penalties after a successful appeal, but noted that subsequent cases have declined to extend that presumption to other contexts. The filing of new or additional charges after an appeal, without more, “does not necessarily warrant a presumption of prosecutorial vindictiveness,” even when there is “evidence that repeated prosecution is motivated by the desire to punish the defendant for his offenses.” The Court of Appeals erred in concluding that the defendant faced a more severe sentence for substantially the same conduct under the new set of charges, since G.S. 15A-1335 independently prohibits imposing a more severe sentence in these circumstances, making that outcome a “legal impossibility” in this case. The court also rejected the defendant’s argument that under U.S. v. Goodwin, 457 U.S. 368 (1982), the presumption of vindictiveness applies whenever there has been a change in the charging decision after an initial trial is completed. The language in Goodwin regarding the lower likelihood of vindictiveness in pretrial charging decisions did not establish “that such a presumption was warranted for all post-trial charging decision changes,” and given the harshness of imposing such a presumption, the court was unwilling to find that it applied here. Additionally, although the prosecutor in this case made public statements about his intent to pursue other charges against the defendant if the ruling in Schalow I were upheld, those statements indicated an intent to punish the defendant for his underlying criminal conduct, not for exercising his right to appeal. Concluding that the presumption of vindictiveness did not apply and actual vindictiveness was not established, the state Supreme Court reversed the appellate court on this issue.
Second, the state Supreme Court also disagreed with the Court of Appeals’ conclusion that the defendant’s motion to dismiss should have been granted for failure to join offenses under G.S. 15A-926. The statute provides that after a defendant has been tried for one offense, his pretrial motion to dismiss another offense that could have been joined for trial with the first offense must be granted unless one of the enumerated exceptions applies. Pursuant to State v. Furr, 292 N.C. 711 (1977), this statute does not apply to charges that were not pending at the time of the earlier trial. However, under State v. Warren, 313 N.C. 254 (1985), the later-filed charges must nevertheless be dismissed if the prosecutor withheld those charges in order to circumvent the statutory requirement. If either or both of two circumstances are present — (i) during the first trial the prosecutor was aware of evidence that would support the later charges, or (ii) the state’s evidence at the second trial would be the same as the first trial — those factors will “support but not compel” a finding that the state did withhold the other charges to circumvent the statute. At the trial level, the defendant in this case only argued that dismissal was required by the statute, but did not argue that dismissal was required under Warren even though the charges were not pending at the time of the prior trial; therefore, the argument presented by the defendant on appeal was not properly preserved for review, and the appellate court erred by deciding the issue on those grounds. Additionally, the Court of Appeals erred by holding that the trial court was required to dismiss the charges upon finding that both Warren factors were present. Even if one or both Warren factors were found, that will “support” a dismissal by the trial court, but it does not “compel” it. The appellate court incorrectly converted “a showing of both Warren circumstances into a mandate requiring dismissal,” contrary to case precedent.
The case was remanded for reconsideration of the defendant’s remaining argument that prosecution for the assault charges would also violate double jeopardy, which the Court of Appeals declined to address.
(1) Conviction for making a threat under G.S. 14-16.7(a) requires proof that it was a “true threat,” meaning that the statement was both objectively threatening to a reasonable recipient and subjectively intended as a threat by the speaker; (2) the state presented sufficient evidence of such a threat to withstand defendant’s motion to dismiss, but conviction was vacated and remanded for new trial where the jury was not properly instructed on this issue consistent with the First Amendment.
State v. Taylor, 2021-NCSC-164 (Dec. 17, 2021). The facts of this case were previously summarized following the Court of Appeals decision in State v. Taylor, 270 N.C. App. 514 (2020), available here. Briefly, the defendant in this case wrote several social media posts allegedly threatening an elected district attorney over her decision not to seek criminal charges in connection with the death of a child. The defendant was convicted of threatening a court officer under G.S. 14-16.7(a), and appealed. The Court of Appeals held that the defendant’s convictions were in violation of the First Amendment and vacated the conviction. The state sought and obtained discretionary review at the state Supreme Court. The higher court concluded that the defendant’s conviction was properly vacated, but remanded the case for a new trial rather than entry of a judgment of acquittal.
The Supreme Court began its analysis by reviewing the events that prompted the defendant’s Facebook posts, the contents of those posts, and the state’s evidence purportedly supporting the charges, such as evidence that the prosecutor was placed in fear by the threats. Next, the higher court summarized the opinion of the Court of Appeals, which held that the offense required proof of both general and specific intent on the part of the defendant. The appellate court held that the defendant could only be constitutionally convicted under this statute if he made a “true threat,” meaning that the defendant not only made a statement that was objectively threatening (i.e., one which would be understood by those who heard or read it as a serious expression of intent to do harm), but also that he made that statement with the subjective intent that it be understood as a threat by the recipient. Finding that the state failed to make a sufficient showing of those requirements, the Court of Appeals held the statements were protected speech under the First Amendment and vacated the conviction.
Undertaking its own review, the state Supreme Court noted that the First Amendment broadly protects the fundamental right of free speech, and only certain limited categories of speech involving obscenity, defamation, incitement, fighting words, and “true threats” can be constitutionally restricted. The court reviewed Watts v. United States, 394 U.S. 705 (1969), which distinguished true threats from other types of protected speech. The court identified three factors from Watts that were relevant to evaluating the case at hand, although no single factor is dispositive: (i) the statute at issue must be interpreted with the First Amendment in mind; (ii) the public’s right to free speech is even more substantial than the state’s interest in protecting public officials; and (iii) the court must consider the context, nature and language of the statement, and the reaction of the listener. Next, the court reviewed the fractured opinions from another true threats case, Virginia v. Black, 538 U.S. 343 (2003). After considering the contrasting interpretations offered by the state and the defendant in the present case as to how Black’s holdings should be construed, the court ultimately concluded that “a speaker’s subjective intent to threaten is the pivotal feature separating constitutionally protected speech from constitutionally proscribable true threats.” Based on the precedent above and reiterating the importance of the free speech interest at stake, the court held that a true threat is defined as “an objectively threatening statement communicated by a party which possesses the subjective intent to threaten a listener or identifiable group,” and “the State is required to prove both an objective and a subjective element in order to convict defendant under N.C.G.S. § 14-16.7(a).”
Applying that definition and framework, the state Supreme Court then considered whether the trial court erred by denying the defendant’s motion to dismiss. On a motion to dismiss, the question for the trial court is whether there is substantial evidence, when viewed in the light most favorable to the state, to support each element of the offense and find that the defendant was the perpetrator. In this case there was no dispute that the defendant wrote the posts at issue, and they contained ostensibly threatening language that was not clearly “political hyperbole” or other protected speech. The state Supreme Court acknowledged that cases raising First Amendment issues are subject to an independent “whole record review,” but explained that this supplements rather than supplants traditional appellate review, and it is not inconsistent with the traditional manner of review on a motion to dismiss. Under this standard of review, the trial court did not err by ruling that the state had presented sufficient evidence to withstand a motion to dismiss and submit the case to the jury.
However, because the trial court did not properly instruct the jury on the charged offense consistent with the the subjective intent requirement under the First Amendment, the conviction was vacated and the case was remanded to the trial court for a new trial and submission of the case to a properly instructed jury.
Justice Earls concurred with the majority’s conclusion that the First Amendment requires the state to prove both the objective and subjective aspects of the threat, but dissented on the issue of whether the state’s evidence was sufficient to withstand a motion to dismiss in this case, and disagreed with the majority’s interpretation and application of whole record review. In Justice Earls’ view, the defendant’s Facebook posts could not have been viewed as a serious intent to inflict harm when considered in context by a reasonable observer, and even if they could, the state offered insufficient evidence to show that this was the defendant’s subjective intent.
(1) Denial of defense motion for continuance compromised defendant’s right to effective counsel in this case; (2) error was harmless in conviction for general intent offense, but warranted reversal on specific intent offense, where the evidence at issue related only to negating affirmative defenses to specific intent.
State v. Johnson, 2021-NCSC-165 (Dec. 17, 2021). The state obtained recordings of several hundred phone calls that the defendant made while he was in jail awaiting trial on charges of murder, armed robbery, and assault on a government official. The charges arose out of a robbery at a gas station where the clerk was killed and an officer was threatened with a firearm. The defendant gave notice of the affirmative defenses of diminished capacity, mental infirmity, and voluntary intoxication (insanity was also noticed, but not pursued at trial). Copies of the jail calls were provided to the defense in discovery, but the recordings could not be played. Defense counsel emailed the prosecutor to request a new copy of the calls, and asked the state to identify any calls it intended to use at trial. The prosecutor provided defense counsel with new copies of the calls that were playable, but also indicated that the state did not intend to offer any of the calls at trial, so defense counsel did not listen to them at that time. The evening before trial, the prosecutor notified defense counsel that the state had identified 23 calls that it believed were relevant to showing the defendant’s state of mind and memory at the time of the murder. At the start of trial the next morning, the defense moved for a continuance on the basis that it had not had time to review the calls or asses their impact on the defendant’s experts’ testimony, and argued that denial of a continuance at this point would violate the defendant’s state and federal constitutional rights to due process, effective counsel, and right to confront witnesses. The trial court denied the continuance, as well as defense counsel’s subsequent request to delay opening statements until Monday (after jury selection concluded mid-day Friday) in order to provide the defense an opportunity to listen to the calls and review them with the defendant’s experts.
The defendant was subsequently convicted of armed robbery, assault on a government official, and felony murder based on the assault. He was sentenced to life imprisonment for the murder and 60-84 months for the robbery; judgment was arrested on the assault. The defendant appealed, and a divided Court of Appeals found that the trial court did not err in denying the continuance, and furthermore any error would not have been prejudicial because the felony murder was a general intent crime and the calls were only offered by the state as rebuttal evidence regarding defendant’s diminished capacity. The dissent concluded that the majority applied the wrong standard of review, since the denial of the motion to continue was based on constitutional grounds, and would have found error and ordered a new trial. The defendant appealed to the state Supreme Court based on the dissent.
The higher court found no prejudicial error regarding the felony murder conviction, but vacated the armed robbery judgment. First, regarding the correct standard of review, a trial court’s decision on a motion to continue is normally reviewed only for abuse of discretion, but if it raises a constitutional issue it is reviewed de novo; however, even for constitutional issues, denial of a motion to continue is only reversible if the error was prejudicial. In this case, the trial court erred because the time allowed to review the calls was constitutionally inadequate. Defense counsel relied on the state’s representation that it would not use the calls until receiving a contrary notice the evening before trial began, and defense counsel did not have an opportunity to listen to the nearly four hours of recordings or consult with his expert witnesses before starting the trial. Under the circumstances of this case, the impact this had on defense counsel’s ability to investigate, prepare, and present a defense demonstrated that the defendant’s right to effective counsel was violated. Additionally, the defendant was demonstrably prejudiced by this violation, since defense counsel could not accurately forecast the evidence or anticipated expert testimony during the opening statements.
However, the state Supreme Court concluded that as to the felony murder conviction, the error was harmless beyond a reasonable doubt. The murder conviction was based on the underlying assault, a general intent crime “which only require[s] the doing of some act,” unlike specific intent offenses “which have as an essential element a specific intent that a result be reached.” The recorded calls were only offered as rebuttal evidence on this issue of intent, and therefore the error was harmless as to the assault and felony murder offenses as a matter of law, since “any evidence in this case supporting or negating that defendant was incapable of forming intent at the time of the crime is not relevant to a general-intent offense.” But the defendant’s conviction for armed robbery, a specific intent offense, was vacated and remanded for a new trial.
North Carolina Court of Appeals – January 4, 2022:
Trial court did not err in denying defendant’s motion to dismiss for insufficiency of the evidence on a charge of fleeing to elude; there was sufficient evidence that officers were engaged in lawful performance of their duties where they had reasonable suspicion to detain defendant and probable cause to arrest him, and they complied with statutory arrest requirements.
State v. Thompson, 2022-NCCOA-6, __ N.C. App. __ (2022). The defendant in this case “yelled, cursed, and argued with school staff” in the front office about the school’s tardy slip policy after bringing his child to school late, and the school called the police after the defendant initially refused to go outside. When officers arrived, the defendant was outside getting back into his truck with his child, and bystanders were staring at the defendant. Concluding that the disturbance call likely involved the defendant, the first officer approached the truck and told the defendant he was being detained. After the officer talked to the principal, who asked to have the defendant banned from the property, a second officer approached the vehicle and asked for the defendant’s identification. The defendant refused to provide any identification other than his name. When the defendant raised his voice and demanded to know what laws he was violating and the basis for his detention, the officer told him he would be arrested for obstructing their investigation if he did not comply. When the defendant moved to put the vehicle in gear, the officer reached in and attempted to remove the keys from the ignition. The defendant pulled forward, briefly pinning the officer’s arm in the car, before reversing and then driving away. Officers initially pursued the car, but broke off the chase due to the presence of a child in the vehicle. The defendant crashed his vehicle a short time later and was arrested. The defendant was charged with felony fleeing to elude an officer engaged in the lawful performance of his duties under G.S. 20-141.5. The defendant filed a pretrial motion to suppress all evidence on the grounds that his arrest was unlawful, which was denied, and later made a motion to dismiss at trial for insufficiency of the evidence, which was also denied. The defendant was convicted, received a suspended 6-17 month sentence, and appealed.
On appeal, the defendant argued that his motion to dismiss should have been granted because there was insufficient evidence that the officers were acting in the lawful performance of their duties. Specifically, the defendant argued on appeal that the officers had no reasonable suspicion to detain him and no probable cause to arrest him, and the attempted arrest also failed to comply with statutory requirements. The appellate court rejected all three arguments. First, although the officers had only briefly spoken with the principal and were still investigating the matter, under the totality of the circumstances (including the initial phone call, the defendant’s behavior upon seeing the officers, and the fact that bystanders and others inside the school were staring at the defendant) the officers had reasonable and articulable suspicion that the defendant may have been interrupting or disturbing the operation of the school in violation of G.S. 14-288.4(a)(6) (“Disorderly conduct”). Second, since the defendant was operating a motor vehicle but refused to provide his identification to the officers, there was probable cause to arrest him for a misdemeanor under G.S. 20-29 (“Surrender of license”). Finally, the appellate court rejected the defendant’s argument that the officers failed to comply with G.S. 15A-401 during the attempted arrest. The defendant argued that the officers did not provide the defendant with “notice of their authority and purpose for arresting him” as required by the statute, and unlawfully used force to enter his vehicle. The officer testified at trial that he told the defendant he would be arrested for obstructing an investigation, and was only prevented from further citing to G.S. 20-29 because the defendant was arguing with and talking over the officer. Similarly, the officer’s forcible entry only occurred because the defendant locked the doors and refused to exit the vehicle, and the officer reasonably believed that attempting to take the keys was necessary to prevent his escape. Viewed in the light most favorable to the state, this was sufficient evidence for a jury to find that the officers were acting in lawful performance of their duties, and the motion to dismiss was properly denied.
Trial court did not abuse its discretion by declining to excuse a juror for cause, despite her initial acknowledgement of bias, where juror also indicated that she could follow the law.
State v. Hogan, 2022-NCCOA-4, __ N.C. App. __ (2022). The defendant in this case was convicted of first-degree murder on four different theories, along with three counts each of armed robbery and kidnapping, and one count of conspiracy to commit armed robbery. The trial court sentenced the defendant for the murder and two robberies, and arrested judgment on the remaining convictions. Since the only issues raised on appeal concerned jury selection and a clerical error in one of the judgments, the appellate court declined to “recount the especially brutal and horrific factual background” leading to the defendant’s convictions. The facts are summarized in the parties’ briefs available here and here.
On appeal, the defendant argued that the trial court erred by refusing to excuse a prospective juror for cause after the juror indicated that she would not be able to apply the presumption of innocence. The defendant’s motion to excuse the juror for cause was denied at trial, so she was excused by the defense with a peremptory challenge. The motion was renewed later in the jury selection process after all the defendant’s peremptory challenges were exhausted, when the defendant was unable to excuse another juror he otherwise would have.
The appellate court reviewed the trial court’s ruling under an abuse of discretion standard, and found no error. Since this case had received extensive pretrial publicity, around 200 prospective jurors were called for jury selection. After excusing a number of jurors for hardships, the remaining 146 were divided into two panels for jury selection. Many of those potential jurors were subsequently excused for cause due to their exposure to pretrial publicity, inability to be fair and impartial, and concerns over the gruesome nature of the evidence. The juror at issue in this appeal had no prior knowledge of the facts, but during voir dire she stated that her father was retired from the Highway Patrol and acknowledged that she may have difficulty being fair to the defendant since she would be inclined to trust and give greater weight to testimony from a law enforcement witness. However, after further questioning by the attorneys and the trial judge, the prospective juror also stated that she was capable of setting her bias aside and “applying the presumption of innocence to defendant and the burden of proving guilt beyond a reasonable doubt to the State.” Viewing the juror’s answers in their entirety under case precedent such as State v. Cummings, 361 N.C. 438 (2007), along with the fact that (unlike much of the venire) this juror also had no prior knowledge of the case, the appellate court concluded that the trial court did not abuse its discretion in finding that the juror could follow the law as instructed, and did not err in declining to excuse her for cause.
The case was remanded to correct a clerical error on one of the judgments, which incorrectly listed the defendant’s active sentence as 77 to 100 months, instead of 73 to 100 months.
(1) There was no fatal variance in charge for injury to personal property where named victim was not the legal owner, but had a special interest in the property; (2) restitution amount was not speculative where it was based on evidence of fair market value.
State v. Redmond, 2022-NCCOA-5, __ N.C. App. __ (2022). Upon trial de novo in superior court, the defendant in this case was convicted of misdemeanor injury to personal property for throwing a balloon filled with black ink onto a painting during a protest at an arts event in Asheville. The defendant received a suspended 30-day sentence and was ordered to pay $4,425 in restitution. On appeal, the defendant argued that her motion to dismiss the injury to personal property charge should have been granted due to a fatal variance, and argued that the restitution amount was improperly based on speculative value. The appellate court rejected both arguments.
The charging document alleged that the defendant had damaged the personal property of the artist, Jonas Gerard, but the evidence at trial indicated that the painting was the property of the artist’s corporation, Jonas Gerard Fine Arts, Inc., an S corporation held in revocable trust, where Jonas Gerard was listed as both an employee and the sole owner. Although this evidence established that the artist and the corporation were separate legal entities, each capable of owning property, the court held that the state’s evidence sufficiently demonstrated that the artist named in the pleading was nevertheless a person who had a “special interest” in the property and was therefore properly named in the charging instrument. The painting was not yet complete, it was still in the artist’s possession at the time it was damaged, and the artist regarded himself and the corporation as functionally “one and the same” and he “certainly held out the paintings as his own.” Finding the facts of this case analogous to State v. Carr, 21 N.C. App. 470 (1974), the appellate court held that the charging document was “sufficient to notify Defendant of the particular piece of personal property which she was alleged to have damaged,” and the trial court did not err in denying the motion to dismiss for a fatal variance.
The restitution amount was also supported by competent evidence. A witness for the state testified that a potential buyer at the show asked what the painting would cost when completed and was told $8,850, which was the gallery’s standard price for paintings of that size by this artist. The artist also testified that the canvas was now completely destroyed, and the black ink could not be painted over. The trial court ordered the defendant to pay half that amount as restitution. The appellate court held that the fact that the painting “had not yet been purchased by a buyer does not mean that the market value assigned by the trial court for restitution was speculative.” The evidence presented at trial was sufficient to establish a fair market value for the painting prior to it being damaged, and the trial court’s restitution order would not be disturbed on appeal.