This post summarizes published criminal decisions from the North Carolina Supreme Court decided on May 1, 2020.
Middle finger gesture from passing car did not create reasonable suspicion of disorderly conduct
State v. Ellis, ___ N.C. ___, ___ S.E.2d ___ (May 1, 2020). In this Stanly County case, no reasonable suspicion existed when a trooper, already conducting a traffic stop, observed the defendant gesturing with his middle finger from the passenger side of a car driving past the stop. The Court of Appeals unanimously rejected the State’s argument that the stop of the defendant was justified by the community caretaking exception to the Fourth Amendment, but a majority of the panel found that the stop was supported by reasonable suspicion of disorderly conduct (here). Judge Arrowood dissented and would have ruled that the act was protected speech under the First Amendment and that the trooper lacked reasonable suspicion [Jeff Welty blogged about that decision here].
On appeal to the Supreme Court, the State waived oral argument and conceded that the trooper lacked reasonable suspicion. The court agreed. The State’s evidence at suppression showed that the trooper saw the defendant waving from the car, and then begin “flipping the bird,” perhaps vigorously. The trooper did not know for whom the gesture was intended, and otherwise observed no traffic violations or other suspect activities. This failed to establish reasonable suspicion of a crime. In the court’s words:
The fact that [the trooper] was unsure of whether defendant’s gesture may have been directed at another vehicle does not, on its own, provide reasonable suspicion that defendant intended to or was plainly likely to provoke violent retaliation from another driver. . .Based on the facts in the record, we are unable to infer that, by gesturing with his middle finger, defendant was intending to or was likely to provoke a violent reaction from another driver that would cause a breach of the peace. Slip op. at 6-7.
The court did not consider the defendant’s First Amendment arguments in light of its ruling, and the matter was unanimously reversed and remanded.
Insufficient evidence existed to support conspiracy to intimidate jurors; denial of motion to dismiss reversed
State v. Mylett, ___ N.C. ___, ___ S.E. 2d ___ (May 1, 2020). The defendant was the twin brother of another criminal defendant and was attending his brother’s trial for assault on a government official in Watauga County (itself the subject of a published opinion, here). Following the guilty verdict in his brother’s case, the defendant made comments to several jurors as they exited the courthouse. These included statements that the jurors “got it wrong,” that his brother was innocent, that the jurors had “ruined his [brother’s] life,” that he “hoped they slept well,” and similar remarks. Before those comments, the defendant’s brother’s girlfriend exited the courtroom visibly upset, and courthouse video footage showed the defendant briefly comforting her before approaching the jurors. The defendant was charged with six counts of intimidating jurors and conspiracy to intimidate jurors with his brother and his brother’s girlfriend under G.S. 14-225.2(a)(2). That subsection provides that a defendant is guilty of juror harassment when he “threatens . . . or intimidates [a] former juror or spouse [of a juror] . . . as a result of the prior official action of [the] juror in a grand jury proceeding or trial.”
The trial court denied pretrial motions challenging the jury intimidation statute as unconstitutional under the First Amendment, denied the motion to dismiss for insufficient evidence, and declined to instruct the jury on the definition of “intimidate.” The defendant was convicted of conspiracy to intimidate jurors at trial and acquitted on the other counts. A majority of the Court of Appeals rejected the defendant’s First Amendment arguments, finding the statute constitutional. The majority also found that the conviction was supported by sufficient evidence, and that the trial court did not err in failing to give the requested jury instructions (here). Chief Judge McGee dissented on each point. The Supreme Court agreed that the evidence was insufficient to support a conspiracy and reversed.
A criminal conspiracy is an agreement between two or more people to commit a crime with intent to carry out the agreement. While such agreement may be proven by circumstantial evidence, the evidence must show either an express agreement between the conspirators, or facts warranting an inference of the agreement. On the other hand, “[c]onspiracies cannot be established by mere suspicion, nor [by] evidence of mere relationship between the parties . . .” Slip op. at 8. The State’s evidence here raised no more than a conjecture of guilt, and the motion to dismiss for insufficient evidence should have been granted. “The record is almost entirely devoid of any interactions between defendant and [his brother] or defendant and [the girlfriend] from which the formation of any agreement can be inferred.” Id. at 13. The court acknowledged that “synchronized, parallel conduct” among defendants can support an inference of criminal agreement but rejected the State’s argument that such circumstances existed here. According to the court:
. . . [S]uch an inference would be far stronger where the conduct at issue is more synchronized, more parallel, and more clearly in furtherance of a crime. . .Moreover, while defendant was acquitted of the charges of harassment of a juror by threats or intimidation and we express no opinion on the sufficiency of the evidence with respect to those charges, the evidence was far from overwhelming. Put simply, this is not a situation like a drug transaction or bank robbery where it is evident that an unlawful act has occurred, and where the degree of coordination associated with those unlawful acts renders an inference of ‘mutual, implied understanding’ between participants far more reasonable. Id. 13-14 (citations omitted).
The matter was therefore reversed and remanded for the conviction to be vacated. In light of its holding, the court declined to consider the First Amendment challenges to the statute.
Justice Ervin dissented, joined by Justices Davis and Newby. According to the dissent, the majority failed to view the evidence in the light most favorable to the State, and the trial court should have been affirmed as to the sufficiency of evidence. Without expressing an opinion on the merits of the issue, the dissenters would have therefore proceeded to examine the defendant’s First Amendment challenges.
(1) Once trial court rules on the merits of a Batson challenge, the question of whether the defendant made a prima facia case is moot; (2) Multiple errors in Batson analysis required new Batson hearing; trial court failed to consider historical evidence of discrimination, failed to conduct comparative analysis of juror answers, and improperly weighed the defendant’s use of peremptory challenges
State v. Hobbs, ___ N.C. ___, ___ S.E.2d ___ (May 1, 2020). The defendant was tried capitally in Cumberland County and convicted of first-degree murder (among other offenses). On appeal, he argued the trial court erred in denying his Batson challenges to three peremptory strikes used by the State against black jurors during jury selection. The Court of Appeals unanimously affirmed (here). On discretionary review, the North Carolina Supreme Court reversed in a 6-1 divided opinion.
Under Batson v. Kentucky, 476 U.S. 79 (1986), when a defendant objects that the State has struck a juror for racially discriminatory reasons, the court undertakes a three-step hearing. First, the court determines whether the defendant made a prima facia showing that the exercise of the peremptory strike was discriminatory. The defendant meets that hurdle “by showing that the totality of the relevant facts give rise to an inference of racial discrimination [and] is not intended to be a high hurdle . . .” Slip op. at 8-9. At this stage, the defendant’s burden is one of production, not persuasion. If the defendant meets that burden, the State must then provide a race-neutral justification for the use of the strike. If the State provides facially neutral explanations, then the court proceeds to the third step, allowing the defendant an opportunity to rebut the State’s explanation and show purposeful discrimination by the State in its exercise of the strike. At this stage, the court must consider all of the evidence and determine whether the prosecution’s use of the strike “was motivated in substantial part by discriminatory intent.” Id. at 12.
(1) As to the defendant’s first two Batson objections, the trial court ruled against the defendant at the first stage, finding that he did not make a prima facia case. However, the trial court proceeded to the second and third steps of the analysis, asking the State to justify its use of the strikes and then denying the Batson challenge on the merits. The Court of Appeals held that the issue of whether the defendant made a prima facia case was not moot and agreed with the trial court that a prima facia case had not been established. This was error, as that issue was moot. See, e.g. State v. Robinson, 330 N.C. 1, 17 (1991) (so holding). “When the trial court has already ruled that a defendant failed in his ultimate burden of proving purposeful discrimination, there is no reason to consider whether the defendant has met the lesser burden of establishing a prima facia case of discrimination.” Hobbs slip op. at 13. These circumstances were distinguishable from other cases cited in the Court of Appeals decision where the trial court ruled on the first step but did not conduct a complete Batson analysis.
(2) The trial court and the Court of Appeals failed to properly weigh the defendant’s evidence of purposeful discrimination. As to the first two challenges, the Court of Appeals did not consider purposeful discrimination at all, ruling only that the defendant did not make a prima facia showing. Since that issue was moot, the Court of Appeals should have conducted a full Batson analysis. While the trial court purported to conduct a “full hearing” on the Batson claims for the first two challenged jurors, its analysis of purposeful discrimination also failed to consider all of the evidence. The trial court noted the races of the defendant, the victims, and witnesses, and observed that the State had used three-fourths of its peremptory challenges on black venire members. It also noted that the defendant had exercised nearly half of his peremptory challenges to excuse black venire members. The trial court listed the State’s race-neutral justifications and stated that it “considered” the defendant’s argument that comparative answers between jurors struck and jurors kept by the State rebutted those justifications. It concluded no discrimination had occurred and did not specifically address the defendant’s argument regarding historical evidence of discrimination in jury selection in the county. Multiple errors in this analysis required a new Batson hearing.
One, the defendant’s use of peremptory challenges is irrelevant to determining the State’s intention in striking the juror, and it was improper for the trial court to consider that evidence. Second, the trial court failed to address all of the defendant’s evidence of discriminatory intent, including evidence of a pattern of historical discrimination in voir dire within the county. Without explaining how this evidence was weighed, the trial court’s analysis was incomplete. Finally, the trial court erred by failing to conduct comparative analysis of the answers of the jurors struck and of those passed on by the State. The trial court examined the different questions asked by the State of the jurors but failed to meaningfully compare the jurors’ answers in response. Evidence in the record suggested that white jurors passed by the State gave answers similar to those given by similar black jurors who were excused by the State. This was relevant and should have been addressed. In the court’s words:
Evidence about similar answers between similarly situated white and nonwhite jurors is relevant to whether the prosecutor’s stated reasons for exercising a peremptory strike are mere pretext for racial discrimination. Potential jurors do not need to be identical in every regard for this to be true. ‘If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step’. Id. at 21-22 (citations omitted).
These errors required reversal and remand to the trial court for new hearing. The same errors affected the trial court’s denial of the defendant’s third Batson claim. On remand, the trial court was instructed to conduct another Batson hearing as to all three claims, taking into account the totality of the evidence, including comparative analysis of juror answers and the historical evidence regarding racial discrimination. The trial court was further instructed to make findings of fact and conclusions of law, and to certify its order to the North Carolina Supreme Court within 60 days or “within such time as the current state of emergency allows.” Id. at 24.
Justice Newby dissented and would have affirmed the trial court and Court of Appeals. [Prior to the Supreme Court’s decision, Emily Coward blogged about this case, here.]
Search warrant established nexus to residence under totality of circumstances despite lack of allegation in affidavit that drugs were being sold in the home
State v. Bailey, ___ N.C. ___, ___ S.E.2d ___ (May 1, 2020). This Carteret County drug case involved a challenge to a search warrant for the defendant’s home. A detective observed what he believed to be a drug transaction occur in a parking lot between a Jeep and another car. He knew the occupants of the Jeep and their address. The detective also knew that they had previously been involved in illegal drug sales. Both cars were followed by police. The car was stopped for traffic violations, and the woman inside ultimately admitted to having purchased heroin in the parking lot from one of the people inside the Jeep. The Jeep was separately followed to the occupants’ residence. Officers obtained a warrant to search the house, and the defendant (who lived at the house, but was not one of the occupants of the Jeep) was charged with trafficking in cocaine. His motion to suppress was denied and he pled guilty, reserving his right to appeal the denial of the motion. A divided panel of the Court of Appeals affirmed (here) [Jeff Welty blogged about that decision, here]. Judge Zachary dissented and would have found that the warrant application failed to establish a nexus to the home, comparing the facts to those of State v. Campbell, 282 N.C .125 (1972) (conclusory allegations of drug dealing without underlying facts tying the home to criminal activity were insufficient to establish nexus to search residence). The Supreme Court unanimously affirmed.
The court agreed that a search warrant for a residence must demonstrate some nexus between the suspected criminal activity and the home. “Such connection need not be direct, but cannot be merely conclusory.” Slip op. at 6. Comparing cases, the court determined that the affidavit here established a sufficient connection to the home. The detective observed a probable drug transaction and was familiar with the subjects in the Jeep, including their drug histories and address. Coupled with the close-in-time admission from the buyer that she purchased heroin from one of the men and the fact that another officer followed the Jeep from the site of the suspected buy to the residence, the search warrant affidavit supported an inference that drugs or evidence of drug dealing would be found in the home. In the court’s words:
It is true that [the detective’s] affidavit did not contain any evidence that drugs were actually being sold at the apartment. But our case law makes clear that such evidence was not necessary for probable cause to exist. Rather, the affiant was simply required to demonstrate some nexus between the apartment . . . and criminal activity. Id. at 10 (emphasis in original).
The warrant was therefore supported by probable cause and comported with the Fourth Amendment. Concluding, the court observed: “In so holding, we break no new legal ground, and instead apply well-established principles of law to the facts presented.” Id. at 11.