Case Summaries: N.C. Supreme Court (Nov. 4, 2022)

This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on November 4, 2022. This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Defendant preserved his challenge to trial court’s denial of requested jury instruction on self-defense even though defendant did not object during jury instruction conference.

State v. Hooper, 2022-NCSC-114, ___ N.C. ___ (Nov. 4, 2022). In this Rockingham County case, the Supreme Court modified and affirmed the Court of Appeals decision that defendant had waived appellate review of the denial of his request for a self-defense instruction to the jury.

In March of 2017, defendant and the mother of one of his sons had an altercation at a hotel in Reidsville. Defendant struck and choked the female victim; eventually the victim grabbed a pistol in the hotel room to defend herself. Testimony differed on whether the victim intentionally fired the pistol into the floor of the hotel or if it went off in a struggle, but defendant was struck in the calf by a bullet. After the altercation, the victim left the hotel room and filed a report with police. Defendant was indicted on several assault and firearm charges. At trial, defendant did not give notice that he planned to argue self-defense, and did not testify on his own behalf; during the jury instruction conference defendant’s counsel agreed with the proposed instructions, which did not include self-defense. However, on the morning after the jury instruction conference, defense counsel requested that the court include an instruction on self-defense, a request that the trial court denied.

The Court of Appeals held that defendant failed to preserve his challenge to the denial of his requested instruction because he did not object during the jury instruction conference or after instructions were given to the jury, representing invited error. The Supreme Court disagreed with this conclusion, explaining that N.C. Rule of Appellate Procedure 10(a)(2) does not require objection specifically during the jury instruction conference, only an objection “before the jury retires to consider its verdict,” meaning defendant’s challenge was sufficient. Slip. Op. at 20-21. Because defendant made his request prior to the jury retiring, and the trial court denied defendant’s request, the court held that “defendant’s challenge . . . was properly preserved for purposes of appellate review even though defendant did not raise the self-defense issue at the jury instruction conference, expressed initial agreement with the trial court’s proposed instructions, and did not lodge any sort of objection to the instructions that the trial court actually gave . . . .” Id. at 21-22. The court also noted that defendant’s failure to provide notice of his intention to argue self-defense as required by G.S § 15A-905(c)(1) did not alter the result, as that requirement is a discovery-related obligation, and the record did not reflect imposition of a discovery sanction precluding the self-defense argument. Id. at 23-24.

Moving to the substantive issue of whether the trial court erred by denying the self-defense instruction, the Supreme Court agreed with the Court of Appeals that the record did not support defendant’s argument of self-defense. Applying the self-defense standard from G.S. § 14-51.3(a), the court found that “the record contains no evidence tending to show that defendant assaulted [the victim] for the purpose of defending himself from the use of unlawful force on the part of [the victim].” Id. at 27.

Chief Justice Newby, joined by Justices Berger and Barringer, concurred in part and dissented in part, disagreeing with the opinion regarding whether defendant preserved his request on appeal but agreeing with the majority that the trial court properly denied the instruction on self-defense. Id. at 30.

Justice Earls concurred in part and dissented in part, agreeing with the opinion that defendant preserved the issue of his request for appellate review, but disagreeing with the majority regarding the trial court’s denial of defendant’s request for the self-defense instruction. Id. at 37.

District Attorney holds exclusive discretionary power to reinstate criminal charges dismissed with leave; trial court does not have authority to compel district attorney to reinstate charges dismissed with leave.

State v. Diaz-Tomas, 2022-NCSC-115, ___ N.C. ___ (Nov. 4, 2022). In this Wake County case, the Supreme Court affirmed the Court of Appeals decision denying defendant’s petition for writ of certiorari, and dismissed as improvidently allowed issues related to defendant’s petition for discretionary review and the denial of his petition for writ of mandamus.

This matter has a complicated procedural history as detailed on pages 4-10 of the slip opinion. Defendant was originally charged with driving while impaired and driving without an operator’s license in April of 2015. Defendant failed to appear at his February 2016 hearing date; an order for arrest was issued and the State dismissed defendant’s charges with leave under G.S. § 15A-932(a)(2). This meant defendant could not apply for or receive a driver’s license from the DMV. Defendant was arrested in July of 2018, and given a new hearing date in November of 2018, but he again failed to appear. In December of 2018, defendant was arrested a second time, and given another new hearing date that same month. However, at the December 2018 hearing, the assistant DA declined reinstate the 2015 charges, leading to defendant filing several motions and petitions to force the district attorney’s office to reinstate his charges and bring them to a hearing. After defendant’s motions were denied by the district court, and his writ for certiorari was denied by the superior court and the Court of Appeals, the matter reached the Supreme Court.

The court first established the broad discretion of district attorneys, as “[s]ettled principles of statutory construction constrain this Court to hold that the use of the word ‘may’ in N.C.G.S. § 15A-932(d) grants exclusive and discretionary power to the state’s district attorneys to reinstate criminal charges once those charges have been dismissed with leave . . . .” Slip Op. at 13. Due to this broad authority, the court held that district attorneys could not be compelled to reinstate charges. The court next turned to the authority of the trial court, explaining that “despite a trial court’s wide and entrenched authority to govern proceedings before it as the trial court manages various and sundry matters,” no precedent supported permitting the trial court to direct the district attorney in this discretionary area. Id. at 16. Because the district attorney held discretionary authority to reinstate the charges, and the trial court could not interfere with the constitutional and statutory authority of the district attorney, the court affirmed the denial of defendant’s motions for reinstatement and petition for writ of certiorari.

The court also considered defendant’s various petitions for writ of mandamus, noting they were properly denied under the applicable standard because “[defendant] does not have a right to compel the activation of his charges which have been dismissed with leave or to require the exercise of discretionary authority to fit his demand for prosecutorial action regarding his charges.” Id. at 22.

 

State v. Nunez, 2022-NCSC-112, ___ N.C. ___ (Nov. 4, 2022). The Supreme Court affirmed per curiam the order denying defendant’s petition for writ of certiorari issued by a Wake County Superior Court judge. The court allowed a petition for discretionary review prior to determination by the Court of Appeals and combined this matter with State v. Diaz-Tomas, 2022-NCSC-115, for oral argument. The court affirmed the order for the reasons stated in Diaz-Tomas.

 

Defendant’s dismissal of two court-appointed attorneys, attempts to represent himself, and requests for assistance in trial preparation did not represent conduct justifying forfeiture of counsel.

State v. Harvin, 2022-NCSC-111, ___ N.C. ___ (Nov. 4, 2022). In this New Hanover County case, the Supreme Court affirmed the Court of Appeals majority decision vacating the judgments against defendant and ordering a new trial because he was denied his constitutional right to counsel.

In May of 2015, defendant was indicted for first-degree murder and associated robbery charges. Over the course of the next three years, defendant had several court-appointed attorneys, and then chose to represent himself with stand-by counsel. When the charges reached trial in April of 2018, defendant expressed uncertainty about his ability to represent himself, leading to an exchange with the trial court regarding his capacity and desire to continue without counsel or obtain appointed counsel from the court, as well as defendant’s confusion about an ineffective assistance of counsel claim. After considering arguments from the State regarding defendant’s termination of his previous counsel and delay of the proceedings, the trial court concluded that defendant had forfeited his right to counsel for the trial. Defendant was subsequently convicted on all counts.

The Supreme Court majority found that defendant had not engaged in behavior justifying forfeiture of his right to counsel. The court explained that forfeiting the right to counsel is a separate concept from voluntary waiver of counsel, and generally requires (1) aggressive, profane, or threatening behavior; or (2) conduct that represents a serious obstruction of the proceedings. Slip Op. at 32-33. Although defendant cycled through four court-appointed attorneys before choosing to represent himself, two of those attorneys withdrew for reasons totally unrelated to defendant’s case, and the other two withdrew at defendant’s request, with leave of the court. Applying the relevant standards to defendant’s conduct, the majority could not find any behavior rising to the level required for forfeiture, noting that “defendant’s actions, up to and including the day on which his trial was scheduled to begin, did not demonstrate the type or level of obstructive and dilatory behavior which allowed the trial court here to permissibly conclude that defendant had forfeited the right to counsel.” Id. at 41.

Justice Berger, joined by Chief Justice Newby and Justice Barringer, dissented and would have upheld the decision of the trial court that defendant forfeited his right to counsel. Id. at 43.

Defendant’s false statement to SBI agent regarding an employee’s workload represented sufficient evidence to support obstruction of justice conviction.

State v. Bradsher, 2022-NCSC-116, ___ N.C. ___ (Nov. 4, 2022). In this Wake County case, the Supreme Court reversed the Court of Appeals decision vacating defendant’s conviction, reinstating the conviction for felony obstruction of justice.

At trial, the State introduced evidence showing that in 2015, defendant was the elected district attorney for Caswell and Person Counties (District 9A), and he employed a woman married to the elected district attorney for Rockingham County (District 17A). Defendant did not assign an adequate workload to the wife of the Rockingham County district attorney, and eventually reports were filed with the SBI that she was attending nursing school during work hours and was not taking leave. An SBI agent interviewed defendant, who told the agent that the woman in question was working on special projects and conflict cases.

Reviewing the case, the Supreme Court found adequate evidence supported the conclusion that defendant’s statements were false, and that “a reasonable jury could conclude that defendant’s false statements . . . obstructed, impeded, and hindered the investigation and public and legal justice.” Slip Op. at 21. Although the question asked by the SBI agent did not clarify if he meant “currently” when asking about projects, the court explained “there was ample evidence from which a reasonable jury could conclude that he asked defendant that question or questions to that effect and defendant knowingly and intentionally answered falsely.” Id. at 20-21. The court noted that the knowing and willful act to respond falsely supported the jury’s verdict, justifying the reinstatement of the conviction.

Justice Earls, joined by Justice Morgan, dissented, would have dismissed the conviction “because the State did not produce substantial evidence of actual obstruction.” Id. at 32.

Defendant’s conduct failed the four-part test for a justification defense, supporting denial of his requested jury instruction.

State v. Swindell, 2022-NCSC-113, ___ N.C. ___ (Nov. 4, 2022). In this Bladen County case, the Supreme Court reversed the Court of Appeals majority decision overturning defendant’s conviction and ordering a new trial. The Supreme Court found no error with the denial of defendant’s request for a jury instruction on justification as a defense to possession of a firearm by a felon.

Defendant went to trial for first degree murder and possession of a firearm by a felon in November of 2018. Defense counsel requested an instruction on the affirmative defense of justification to the firearm possession charge, and the trial court denied this request. Explaining the basis for the defense, the Supreme Court noted that justification has four elements outlined by State v. Mercer, 373 N.C. 459 (2020), and only two, the second and third elements, were in question in the immediate case. Slip Op. at 6-7.  The court outlined the second element under Mercer, that defendant “did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct,” and concluded that defendant failed to meet this burden by returning to the apartments where an altercation had occurred. Id. at 8. Because defendant placed himself in a situation where criminal conduct could occur, he could not meet this burden, and the court did not conduct any further analysis on the third Mercer factor.

Justice Morgan, joined by Justices Hudson and Earls, dissented, and would have affirmed the Court of Appeals majority decision. Id. at 10.