This post summarizes cases from the North Carolina Supreme Court from February 28, 2020.
In narrow circumstances, the common law defense of justification may be an affirmative defense to a charge of possession of a firearm by a felon under G.S. 14-415.1
State v. Mercer, ___ N.C. ___, ___ S.E.2d ___ (Feb. 28, 2020). Confronting a question of first impression, the court held that “in narrow and extraordinary circumstances” the common law defense of justification may be an affirmative defense to a charge of possession of a firearm by a felon under G.S. 14-415.1. Noting that justification is an affirmative defense which a defendant carries the burden of proving at trial, the court joined the Court of Appeals in adopting an analysis from United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) and held that a defendant invoking justification as a defense to a violation of G.S. 14-415.1 must show:
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
Having established that justification is a defense to a violation of G.S. 14-415.1, the court examined whether the defendant in this case was entitled to a jury instruction on the defense. Such an instruction is required, the court explained, when each of the four “Deleveaux factors” is supported by evidence taken in the light most favorable to the defendant. The defendant’s evidence suggested that he was under a qualifying threat as it showed that he and two friends, J and Wardell, arrived to his home to find that a group of fifteen people, some of whom were armed, had assembled at the home intending to fight the defendant. As tensions elevated towards violence, the defendant took Wardell’s gun as Wardell seemed unfamiliar with it and, in the defendant’s view, would be unable to use it in their defense. The court concluded that there was evidence of each of the Deleveaux factors under these facts and that the trial court committed prejudicial error by denying the defendant’s request to instruct the jury on the defense.
A dissenting justice, Justice Morgan, “welcom[ed] the establishment of the justification defense” for this criminal offense but did not believe that the evidence in the instant case was sufficient to require the trial judge to give the instruction.
The definition of the term “sexual act” provided in Article 7B of G.S. Chapter 14 is limited in applicability to its own article and, consequently, does not apply to felony child abuse under G.S. 14-318.4
State v. Alonzo, ___ N.C. ___, ___ S.E.2d. ___ (Feb. 28, 2020). Contrary to the conclusion of the Court of Appeals below, the trial court did not err in this felony child abuse case under G.S. 14-318.4 by failing to instruct the jury that the term “sexual act” for purposes of the offense is the definition provided for the term in what is now Article 7B of G.S. Chapter 14 (Rape and Other Sex Offenses). Conducting a statutory construction analysis, the Supreme Court concluded that the legislative history of the Article 7B definitions statute, G.S. 14-27.20, indicated that the provided definition of “sexual act” was intended by the legislature to apply within its own article and, consequently, not to the offense of felony child abuse. The court noted that since its enactment and throughout numerous legislative changes the definitions statute in Article 7B consistently has stated that its applicability is limited to its own article. As neither the defendant nor the state presented the issue for the court in their petitions for discretionary review, the court declined to reach the defendant’s argument that the trial court’s instruction on the term “sexual act,” which seemed to match the definition of indecent liberties under G.S. 14-202.1, was erroneously overbroad.
A defendant charged with felony indecent exposure under G.S. 14-190.9(a1) for exposing himself or herself “in the presence of” another person less than 16 years of age is not entitled to a jury instruction requiring the jury to find that the victim could have seen the exposed private part had the victim looked.
State v. Hoyle, ___ N.C. ___, ___ S.E.2d ___ (Feb. 28, 2020). A defendant in a felony indecent exposure case under G.S. 14-190.9(a1) (person at least 18 years of age exposing private parts in the presence of a person less than 16) is not entitled to an instruction requiring the jury to find that the victim could have seen the exposed private part had the victim looked. Rather, it is sufficient for the instruction to explain that the jury must find beyond a reasonable doubt that the exposure was in the presence of another people. In this case, the defendant exposed himself to a woman while sitting in the driver’s seat of his car. Her child was playing nearby and the defendant was charged with felony indecent exposure for exposing himself in the presence of the child. The trial court refused to give the defendant’s requested jury instruction that for it to find that the defendant exposed himself in the presence of the child it must find that the child “could have seen [the exposure] had [he] looked,” and instead instructed that the element of the offense was satisfied if it found that the exposure “was in the presence of at least one other person.” Examining its analysis of a prior version of G.S. 14-190.9 in State v. Fly, 348 N.C. 556 (1998) and the plain language of the current statute, the court held:
[T]he requirement that the exposure be “in the presence of” the victim does not require a jury to find that the victim could have seen the exposed private parts had he or she looked. The statutory requirement that the exposure be in the presence of another focuses on where a defendant places himself relative to others; it concerns what the defendant does, not what the victim does or could do. See, e.g., Fly, 348 N.C. at 561, 501 S.E.2d at 659 (“The statute does not go to what the victim saw but to what defendant exposed in her presence without her consent.”). If a defendant exposes himself in public and has positioned himself so he is sufficiently close to someone under the age of sixteen, the presence element of subsection 14-190.9(a1) is satisfied.
The court went on to find that there was sufficient evidence in this case that the defendant’s exposure was in the presence of the child victim where the child was about twenty feet away from the defendant playing in the yard of the child’s home.
In a per curiam opinion, the court affirmed the determination of the Court of Appeals that the defendant’s sentence of life with the possibility of parole for his conviction of felony murder when he was 16 years old was not grossly disproportionate to his crime; the defendant’s Eighth Amendment arguments that he has no meaningful opportunity for parole were not ripe for resolution
State v. Seam, ___ N.C. ___, ___ S.E.2d ___ (Feb. 28, 2020). The court per curiam affirmed the decision of the Court of Appeals, which had held that his sentence of life in prison with the possibility of parole for his conviction of felony murder when he was 16 years old was not grossly disproportionate to his crime under the both the Eighth Amendment and the state constitution. The Court of Appeals also had rejected the defendant’s argument that because G.S. 15A-1340.19B (the post-Miller first-degree murder sentencing scheme for juveniles) did not exist at the time he committed his crime, his sentence under that statute violated the prohibition against ex post facto laws.
The Supreme Court further concluded that the defendant’s Eighth Amendment arguments asserting that he has no meaningful opportunity for parole were not ripe for determination because the time at which he is eligible to apply for parole has not yet arrived. The court “recognize[d] that the potential for parole constitutionally cannot be illusory for offenders sentenced to life with the possibility of parole and noted that the defendant was not precluded from raising such claims at a later date, in the event they become ripe for resolution. A summary of the Court of Appeals opinion is available in the compendium here.
In a per curiam opinon, the court affirmed the decision of the Court of Appeals holding that no reasonable suspicion supported a warrantless traffic stop based on an anonymous tip.
State v. Carver, ___ N.C. ___, ___ S.E.2d ___ (Feb. 28, 2020). The court per curiam affirmed the decision of the Court of Appeals, which had held over a dissent that no reasonable suspicion supported a warrantless traffic stop based on an anonymous tip.
A sheriff’s deputy received a dispatch call, originating from an anonymous tipster, just before 11 PM. The deputy was advised of a vehicle in a ditch on a specified road, possibly with a “drunk driver, someone intoxicated” and that “a truck was attempting—getting ready to pull them out.” The tip provided no description of the car, truck or driver, nor was there information regarding the caller or when the call was received. When the deputy arrived at the scene about 10 minutes later, he noticed a white Cadillac at an angle partially in someone’s driveway. The vehicle had mud on the driver’s side and the deputy opined from gouges in the road that it was the vehicle that had run off the road. However he continued driving and saw a truck traveling away from his location. He estimated that the truck was travelling approximately 15 to 20 miles below the posted 55 mph speed limit. He testified that the truck was the only one on the highway and that it was big enough to pull the car out. He did not see any chains, straps, or other devices that would indicate it had just pulled the vehicle out of the ditch. He initiated a traffic stop. His sole reason for doing so was “due to what was called out from communications.” The truck was driven by Griekspoor; the defendant was in the passenger seat. When the deputy explained to the driver that there was a report of a truck attempting to pull a vehicle out of the ditch, the driver reported that he had pulled the defendant’s car out of the ditch and was giving him a ride home. The deputy’s supervisor arrived and went to talk with the defendant. The defendant was eventually charged with impaired driving. At trial he unsuccessfully moved to suppress, was convicted and appealed. The court found that the stop was improper. As the State conceded, the anonymous tip likely fails to provide sufficient reliability to support the stop. It provided no description of either the car or the truck or how many people were involved and there is no indication when the call came in or when the anonymous tipster saw the car in the ditch with the truck attempting to pull it out. The State argued however that because nearly every aspect of the tip was corroborated by the officer there was reasonable suspicion for the stop. The court disagreed. When the deputy passed the Cadillac and came up behind the truck, he saw no equipment to indicate the truck had pulled, or was able to pull, a car out of the ditch and could not see how many people were in the truck. He testified that it was not operating in violation of the law. “He believed it was a suspicious vehicle merely because of the fact it was on the highway.” The details in the anonymous tip were insufficient to establish identifying characteristics, let alone allow the deputy to corroborate the details. The tipster merely indicated a car was in a ditch, someone was present who may be intoxicated, and a truck was preparing to pull the vehicle out of the ditch. There was no description of the car, the truck, or any individuals who may have been involved. After the deputy passed the scene and the Cadillac he noticed a truck driving under the posted speed limit. He provided no testimony to show that the truck was engaging in unsafe, reckless, or illegal driving. He was unable to ascertain if it contained a passenger. The court concluded: “At best all we have is a tip with no indicia of reliability, no corroboration, and conduct falling within the broad range of what can be described as normal driving behavior.” (quotation omitted). Under the totality of the circumstances the deputy lacked reasonable suspicion to conduct a warrantless stop of the truck.
A “flash bang” grenade is a weapon of mass death and destruction as defined in G.S. 14-288.8(c)(1)
State v. Carey, ___ N.C. ___, ___ S.E.2d ____ (Feb. 28, 2020). In this impersonating a law enforcement officer and possession of a weapon of mass death and destruction case, the Court of Appeals erred by concluding that “flash bang” grenades did not constitute weapons of mass death and destruction as defined in G.S. 14-288.8(c)(1). The defendant had argued that the intended purpose of a flash bang grenade is “to merely stun, disable or disorient others.” The Supreme Court examined the language of G.S. 14-288(c)(1), which explicitly provides that “[a]ny explosive or incendiary . . . [g]renade” is a weapon of mass death and destruction, and determined that the General Assembly did not intend to differentiate between different types of grenades for purposes of the offense. The Court of Appeals erred by engaging in a fact-intensive examination of the extent to which any particular weapon is capable of causing mass death and destruction, and instead should have simply referred to the “straightforward list of [prohibited] weapons,” which includes any “explosive or incendiary” grenade.
A trooper unlawfully extended a traffic stop initiated for speeding by asking the defendant additional investigatory questions and for consent to search after the trooper had returned the defendant’s paperwork, issued him a warning ticket, and stated that the stop had ended
State v. Reed, ___ N.C. ___, ___ S.E.2d ___ (Feb. 28, 2020). In this drug trafficking case arising out of a traffic stop, the court affirmed the conclusion of the Court of Appeals that the law enforcement officer who arrested the defendant violated the Fourth amendment by prolonging the stop without the defendant’s consent or a reasonable articulable suspicion of criminal activity. Highway Patrol Trooper Lamm, a member of the Patrol’s Criminal Interdiction Unit who was assigned to aggressively enforce traffic laws while being on the lookout for other criminal activity including drug interdiction and drug activity, clocked the black male defendant’s vehicle by radar being operated at a speed of 78 miles per hour in a 65 mile-per-hour zone. Lamm initiated a traffic stop and observed at its outset that there was a black female passenger and a female pit bull dog inside the vehicle. The defendant provided Lamm with his New York driver’s license and the rental agreement for the vehicle, which indicated that the female passenger, Usha Peart who also was the defendant’s fiancée, was the renter and that the defendant was an additional authorized driver. Trooper Lamm ordered the defendant out of the vehicle, which Lamm characterized as displaying “signs of . . . hard [continuous] driving,” and into the front seat of Lamm’s patrol car, where he further ordered the defendant to close the door of the patrol car, which the defendant did after expressing some reluctance. Trooper Lamm did not consider the defendant to be free to leave at this point and began to question the defendant about his travel and other activities. Upon confirming that things were sufficiently in order regarding the rental car, Lamm completed the traffic stop and returned all paperwork to the defendant, telling him that the stop was concluded. About 20 minutes had elapsed at this point. After telling the defendant that the stop had ended, Lamm said “I’m going to ask you a few more questions if it is okay with you,” and construed the defendant’s continued presence in his patrol car as voluntary. Lamm testified that despite informing the defendant that the stop had ended, defendant would still have been detained, even if he denied consent to search the vehicle and wanted to leave. Lamm asked the defendant for consent to search the vehicle, to which he replied “you could break the car down,” but further explained that Lamm should seek consent from Peart since she had rented the car. Lamm told the defendant to “sit tight” in the patrol vehicle as Lamm went to confer with Peart. At this time, Trooper Ellerbe, also a member of the Criminal Interdiction Unit, arrived at the scene in response to Lamm’s request for backup where he was informed by Lamm that Lamm was going to attempt to obtain consent to search from Peat. Ellerbe then stationed himself next to Lamm’s passenger seat where the defendant remained seated with the door closed. Lamm proceeded to talk with Peart and obtained her signature on the State Highway Patrol form “Written Consent to Search,” which he had completed himself. Lamm then discovered cocaine in the backseat area of the vehicle and directed Ellerbe to place the defendant in handcuffs.
With this recitation of the factual circumstances surrounding the stop and search, the court proceeded to analyze, under the two-pronged analysis of Terry v. Ohio, 392 U.S. 1 (1968), (1) whether the stop was reasonable at its inception, and (2) whether the continued stop was “sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” Focusing on the second prong of the analysis because the defendant conceded that the stop was lawful at is inception, the court cited its previous decision in State v. Bullock, 370 N.C. 256 (2017) while explaining that “the duration of a traffic stop must be limited to the length of time that is reasonably necessary to accomplish the mission of the stop,” and that a law enforcement officer may not detain a person “even momentarily without reasonable, objective grounds for doing so.” The critical question on this second prong in the traffic stop context is whether Trooper Lamm “diligently pursued a means of investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it was necessary to detain the defendant” or whether Lamm unlawfully extended an otherwise-completed stop. Reviewing its own precedent and that of the U.S. Supreme Court, the court explained that all of Trooper Lamm’s investigative activities until the point where Lamm returned the defendant’s paperwork, issued the warning ticket, and told the defendant that the stop had ended were lawful. At that point, however, the mission of the stop was accomplished and Lamm unlawfully prolonged it by detaining the defendant in his patrol car and asking the defendant further questions without reasonable suspicion. As to whether reasonable suspicion existed to prolong the stop, the court found that inconsistencies in Lamm’s testimony demonstrated that he was unable to articulate an objective basis for his purported reasonable suspicion and was unable to articulate the time at which he formulated such suspicion. The court disagreed with dissenting justices who took the view that the defendant’s nervousness, his explanation of travel plans, the condition of the rental car, and the fact that it had been paid for in cash provided reasonable suspicion, saying that these circumstances were generally consistent with lawful travel and were unremarkable. The court concluded by agreeing with the Court of Appeals that the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of the defendant’s unlawful detention.
Justice Newby dissented, explaining that in his view, and as the trial court had found, the defendant consented to the prolonging of the stop in order to allow Trooper Lamm to ask him a few more questions.
Justice Davis, joined by Justices Newby and Ervin, also dissented, expressing the view that even is the defendant’s consent to search was not voluntary, Trooper Lamm possessed reasonable suspicion to extend the stop. In finding that reasonable suspicion existed, Justice Davis noted the defendant and his passenger’s inconsistent statements regarding their travel plans, certain features of the rental car agreement, the fact that the car had been paid for in cash, and the condition of the interior of the car, including that dog food was strewn about and that air fresheners were present.
While a defendant may forfeit his or her right to counsel by engaging in egregious misconduct, the defendant in this case did not do so and the trial court erred by not ensuring that the defendant’s waiver of counsel was knowing, intelligent, and voluntary.
State v. Simpkins, ___ N.C. ___, ___ S.E.2d. ___ (Feb. 28, 2020). In this case where the defendant was tried without counsel for driving with a revoked license, RDO, and other charges, the Court of Appeals was correct in holding that the defendant did not forfeit his right to counsel and that the trial court therefore was required to ensure that the defendant’s waiver of counsel was knowing, intelligent, and voluntary. Noting that it had never previously held that a criminal defendant in North Carolina can forfeit the right to counsel, the court agreed with holdings of the Court of Appeals establishing that “in situations evincing egregious misconduct by a defendant, a defendant may forfeit the right to counsel.” The court reviewed decisions of the Court of Appeals where a finding of forfeiture was proper, and summarized that case law as follows:
If a defendant refuses to obtain counsel after multiple opportunities to do so, refuses to say whether he or she wishes to proceed with counsel, refuses to participate in the proceedings, or continually hires and fires counsel and significantly delays the proceedings, then a trial court may appropriately determine that the defendant is attempting to obstruct the proceedings and prevent them from coming to completion. In that circumstance, the defendant’s obstructionist actions completely undermine the purposes of the right to counsel. If the defendant’s actions also prevent the trial court from fulfilling the mandate of N.C.G.S. § 15A-1242, the defendant has forfeited his or her right to counsel and the trial court is not required to abide by the statute’s directive to engage in a colloquy regarding a knowing waiver.
Characterizing the conduct described above as “[s]erious obstruction” and disavowing previous statements by the Court of Appeals suggesting that “[a]ny willful actions on the part of the defendant that result in the absence of defense counsel [constitute] a forfeiture of the right to counsel,” the court went on to explain that “[s]erious obstruction of the proceedings is not the only way in which a defendant may forfeit the right to counsel.” The court suggested that a defendant who “intentionally seriously assaults their attorney” may also forfeit the right to counsel.
With this explanation of the law of forfeiture of the right to counsel, the court agreed with the Court of Appeals majority that the defendant in this case did not “engage in such serious misconduct as to warrant forfeiture of the right to counsel.” Conceding that some of the defendant’s conduct probably was highly frustrating, the court rejected the state’s arguments that he forfeited his right to counsel by (1) putting forward frivolous legal arguments throughout the proceeding; (2) failing to employ counsel before appearing for trial where no evidence indicated that he consistently refused to retain counsel in an attempt to delay the proceedings; (3) being generally uncooperative during the proceeding. Because the defendant did not forfeit his right to counsel, the trial court was required, under G.S. 15A-1242 and the state and federal constitutions, to advise the defendant of the right to counsel, the consequences of proceeding without counsel, and “the nature of the charges and proceedings and the range of permissible punishments” before permitting the defendant to waive counsel and proceed pro se. The trial court’s failure to do so in this case entitled the defendant to a new trial.
Justice Newby, joined by Justice Morgan, expressed his view that “[b]y continually refusing to answer the trial court’s questions and posing his own questions to the court, defendant demonstrated his unwillingness to accept the judicial process, forfeiting his right to an attorney.”
The defendant did not sufficiently demonstrate that he qualifies as an “Indian” under the federal Indian Major Crimes Act and the trial court was not required to submit that issue to the jury by means of a special verdict where the facts relevant to that issue were undisputed
State v. Nobles, ___ N.C. ___, ___ S.E.2d ___ (Feb 28, 2020). The defendant did not sufficiently demonstrate that he qualifies as an “Indian” under the federal Indian Major Crimes Act (IMCA) and, consequently, the trial court did not err in refusing to dismiss state murder, robbery, and weapons charges on jurisdictional grounds or in ruling that the jurisdictional issue was not required to be submitted to the jury by means of a special verdict. The federal Indian Major Crimes Act provides that “[a]ny Indian who commits [an enumerated major crime] against the person or property of another . . . within the Indian country shall be subject to . . . the exclusive jurisdiction of the United States.” In this case, there was no dispute that the shooting at issue took place in “Indian country” as it occurred within the Qualla Boundary and there was no dispute that the resulting charges constituted major crimes for purposes of the IMCA. The only question was whether the defendant qualified as an “Indian” under the IMCA, which does not provide a definition of that term.
The court noted that the United States Supreme Court in United States v. Rogers, 45 U.S. 567 (1846) suggested a two-pronged test for analyzing whether a person qualifies as an Indian under the statute. To qualify as an Indian under the Rogers test, a defendant must (1) have “some Indian blood,” and (2) be “recognized as an Indian by a tribe or the federal government or both. The parties in this case agreed that the first part of this test was satisfied because the defendant possessed an Indian blood quantum of 11/256 (4.29%). Noting that it had never applied the Rogers test, the court reviewed the analyses of courts in other jurisdictions as it determined whether the second prong of the test was satisfied. Finding that a four-factor balancing test enunciated in St. Cloud v. United States, 702 F. Supp. 1456 (D.S.D. 1988) was frequently used in jurisdictions across the country with respect to the second prong of the Rogers test, though with variability in the manner of its application, the court adopted the Eighth and Tenth Circuit’s utilization of the test. It did so “based on our belief that this formulation of the test provides needed flexibility for courts in determining the inherently imprecise issue of whether an individual should be considered to be an Indian under the second prong of the Rogers test” and also recognized “that, depending upon the circumstances in a given case, relevant factors may exist beyond the four St. Cloud factors that bear on this issue.” A court applying the four-factor St. Cloud test considers the following factors:
1) enrollment in a tribe; 2) government recognition formally and informally through providing the person assistance reserved only to Indians; 3) enjoying benefits of tribal affiliation; and 4) social recognition as an Indian through living on a reservation and participating in Indian social life.
For various reasons, the court rejected the defendant’s initial arguments that his status as a first descendant of the tribe demonstrated his “tribal or federal recognition” as a matter of law. The court then proceeded to apply the four St. Cloud factors along with any additional factors relevant to the analysis, noting that the trial court’s findings regarding the defendant’s motion to dismiss had not been specifically challenged on appeal and therefore were binding. Applying the four-factor balancing test, the court found (1) it was undisputed that the defendant was not enrolled in any federally recognized tribe; (2) the only evidence of governmental assistance to defendant consisted of five incidents of free medical treatment he received as a minor; (3) though he did live and work on or near the Qualla Boundary for fourteen months prior to the murder, there was not evidence that defendant received broader benefits from tribal affiliation or that his employment on the Qualla Boundary was in any way connected to his first descendant status; (4) though the defendant was dating an enrolled tribal member at the time of the murder and had two tattoos depicting his cultural heritage, the defendant self-identified as being “white” on official documents and did not participate in Eastern Band of Cherokee Indian cultural, community, or religious activities. Turning to whether any other relevant factors existed, such as whether the defendant had ever been subjected to tribal jurisdiction in the past, the court found that there was no evidence of other relevant factors. With this analysis of the second prong of the Rogers test, a majority of the court held that the trial court properly concluded that the defendant was not an Indian for purposes of the IMCA and properly denied his motion to dismiss.
The court then turned to whether the defendant was entitled to a special jury verdict on the jurisdictional issue and whether the trial court erred by ruling on that issue as a matter of law. The court distinguished two of its prior cases involving issues of territorial jurisdiction and noted that in this case the defendant did not challenge the facts underlying the jurisdictional determination, a determination the court characterized under these facts as “an inherently legal question properly decided by the trial court.” The court concluded its analysis of this issue by observing that the dissent failed to cite any authority for the “proposition that in state court proceedings the inapplicability of the IMCA is an element of the crime that must be submitted for resolution by the jury.”
Justice Earls disagreed with the majority’s conclusion that the defendant was not entitled to a special jury verdict on the question of whether he is an “Indian” under the IMCA, and, assuming that the majority was correct that the question need not be submitted to the jury, disagreed with the majority’s conclusion that the defendant is not an Indian under the IMCA.