This post provides summaries of the opinions of the North Carolina Court of Appeals published on August 20, 2019.
Order imposing lifetime satellite-based monitoring was not supported by evidence of reasonableness
State v. Anthony, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 20, 2019).
The court reversed the trial court’s order requiring the defendant to submit to lifetime satellite-based monitoring (SBM) on the basis that it ordered an unreasonable search. Though the State mentioned statistics and studies related to the risk of recidivism posed by sex offenders in its argument, it did not present those studies to the trial court, and they were not subject to judicial notice under Rule 201. In addition, the State presented no evidence on the efficacy of SBM to reduce recidivism.
Facts alleged in detective’s application for a search warrant established probable cause that evidence of unlawful drug activity would be found in the residence ordered searched
State v. Bailey, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 20, 2019).
Carteret County Sheriff’s deputies observed what they believed to be a drug transaction in the parking lot of an apartment complex. Two individuals known to one of the detectives to have previously been involved in the sale of unlawful drugs drove into the parking lot in a blue Jeep. After they arrived, a woman got out of a white Mercury parked in the lot, got into the blue Jeep for 30 seconds, and then walked back to the Mercury. Both cars then quickly left the parking lot. The Jeep traveled back to the apartment complex where the driver and passenger lived. Officers stopped the Mercury for traffic violations shortly after it left the parking lot. During the stop, the female driver said she had purchased a $20 bag of heroin from the male passenger in the Jeep that she snorted while driving down the road. A search warrant to search the apartment where the occupants of the blue Jeep lived was issued based on an affidavit setting forth these facts.
Over a dissent, the court held that the affidavit established “more than a fair probability” that evidence of illegal drug activity would be discovered at the apartment. The affidavit alleged that the occupants of the Jeep traveled directly from the scene of the alleged drug transaction to the apartment. The magistrate could reasonably have inferred that the twenty dollars the woman paid for the heroin would be in the apartment and that the two known “drug dealers whom the investigators had just observed deal heroin” would have additional drugs or paraphernalia stored there.
The dissent viewed the case as controlled by State v. Campbell, 282 N.C. 125 (1972) (invalidating search warrant for known residence of drug dealers that was issued based on an affidavit that failed to establish probable cause that unlawful drugs were possessed or sold in or about the residence).
(1) The defendant’s act of gesturing in the direction of a law enforcement officer with his middle finger extended while also in the midst of traffic gave rise to reasonable suspicion to conduct an investigatory stop of the vehicle in which the defendant was traveling; (2) A defendant may not stipulate to the use in calculating his or her prior record level of a prior offense that is classified as an infraction at the time of the current offense
State v. Ellis, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 20, 2019) (This opinion replaces an August 6, 2019 opinion that was withdrawn.)
While assisting a stalled motorist, a trooper observed the defendant gesture towards him “in an up-and-down pumping motion with his middle finger extended,” which caused the trooper to pursue the defendant’s vehicle and pull it over. The trooper was unclear as to whether the defendant was gesturing to him or someone in a nearby vehicle. After he stopped the vehicle, the trooper asked the defendant for his identification but the defendant refused to comply.
(1) Over a dissent, the court held that the traffic stop was justified based on reasonable suspicion. The court concluded that “[w]hile it may be reasonable for the trooper to suspect that the gesturing was, in fact, meant for him, and therefore maybe constitutionally protected speech, it was also objectively reasonable for the trooper to suspect that the gesturing was directed toward someone in another vehicle and that the situation was escalating.” The court explained that such a “continuous and escalating gesturing directed at a driver in another vehicle, if unchecked, could constitute the crime of ‘disorderly conduct.’”
The dissent would have held that the facts did not support a determination that the defendant’s gesture was an attempt to provoke a violent retaliation in violation of the disorderly conduct statute. And, the dissent concluded, “extending one’s middle finger to a police officer from a moving vehicle, while tasteless and obscene is . . . protected speech under the First Amendment and therefore cannot give rise to a reasonable suspicion of disorderly conduct.”
(2) The court determined that the trial court erred in calculating the defendant’s prior record level (PRL) based on the defendant’s stipulation that a prior conviction for expired operators’ license was a Class 2 misdemeanor. At the time of the instant offense, driving with an expired license had been reclassified as an infraction. G.S. 15A-1340.21(b) provides that an offense may be included in determining a defendant’s PRL only “if it is either a felony or misdemeanor at the time the offense for which the offender is being sentenced is committed.” Distinguishing State v. Arrington, ___ N.C. ___, 819 S.E.2d 329 (2018), which held that a defendant’s stipulation regarding the classification of a prior felony conviction was binding as a factual determination where two possible classifications existed for the offense at issue, the court explained that because “no misdemeanor category crime for possession of an expired operators’ license existed” at the relevant time, as a matter of law the defendant could not stipulate as he did.
(1) State presented substantial evidence to withstand a motion to dismiss for conspiracy to commit robbery with a dangerous weapon; (2) Trial court did not commit plain error in allowing officer to testify about the modus operandi of the crime and similar incidents in the area; (3) Trial court did not err in instructing the jury with respect to the identity theft charges that a person’s name, date of birth, and address are personal identifying information.
State v. Miles, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 20, 2019).
(1) The evidence showed that the defendant was in a car with two other men that arrived in a church parking lot near the victim’s house at the same time as another car driven by a female. The female then drove to the victim’s home and beeped her car horn. Shortly after the victim came out of his house and told the woman to leave, the defendant approached the victim with a gun and said, “Don’t f**kin’ move.” After the victim and the defendant exchanged gunfire, the defendant and two other man ran from the victim’s house. The defendant got back into the car in the parking lot. This evidence was sufficient to show that the defendant agreed with at least one other person to commit robbery with a dangerous weapon. Defendant’s actions were substantial evidence of his intent to rob the victim, and his arrival at the victim’s home with the weapon was an overt act to carry out his intentions.
(2) An officer testified at trial, without objection by the defendant, that the modus operandi of the crime was to use a female in a car by herself to gain access to the home for the purpose of committing an armed robbery. He further testified that there had been similar incidents in the area around the same time. The court explained that a lay witness may testify about “details ‘helpful to the fact-finder in presenting a clear understanding of [the] investigative process’ as long as such details are rational to the lay witness’s perception and experience.” Moreover, given that the State presented substantial evidence supporting the charge of criminal conspiracy, the court of appeals concluded that the trial court did not commit plan error in admitting the testimony.
(3) When the defendant was treated at the hospital for gunshot wounds he sustained in his altercation with the victim, he provided another person’s name, date of birth, and address. A warrant for his arrest was issued under this false identity, and he was subsequently charged with identity theft. The trial court instructed the jury that a person’s name, date of birth, and address “would be personal identifying information” under the identity theft statute.
G.S. 14-113.20 sets forth fourteen examples of “identifying information,” none of which specifically reference the appropriation of a person’s name, date of birth, and address. A catch-all category incorporates “[a]ny other numbers or information that can be used to access a person’s financial resources.” The court rejected the notion that identifying information under the identity theft statute includes only the types of information listed by example. It also concluded that even if the list was exclusive, the defendant’s use of another person’s name, date of birth, and address would fall under the catch-all category. Thus, the court found no error in the trial court’s jury instruction.
Trial court did not commit prejudicial error by allowing defendant to waive his right to a jury trial on the day of trial and by immediately proceeding to a bench trial
State v. Rutledge, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 20, 2019).
At the start of his trial on drug charges, the defendant, through counsel, requested to waive his right to trial by jury in favor of a bench trial. The trial judge advised the defendant of the charges and the maximum punishment and asked several questions about the defendant’s request for a bench trial. Specifically, the trial judge asked the defendant whether he wished to waive a jury trial and have a bench trial, whether he understood the difference between a jury trial and bench trial, and whether he had discussed his rights and the ramifications of the waiver with his attorney. The court then granted the defendant’s motion for a bench trial. The court and the defendant signed AOC-CR-405, the Waiver of Jury trial form.
The defendant then was arraigned, tried, and convicted. He appealed, arguing that the trial court violated G.S. 15A-1201, which sets out the procedure for waiver of a jury trial, in granting his request for a bench trial. Specifically, the defendant argued that the trial court (1) failed to require the defendant to comply with the notice provisions in G.S. 15A-1201(c); (2) failed to solicit information required to determine that the waiver was knowing and voluntary; and (3) failed to afford the defendant 10 business days in which to revoke the waiver.
(1) The court determined that the defendant’s failure to request a separate arraignment before trial invited noncompliance with G.S. 15A-1201(c). Given that, the waiver of jury trial on the date of arraignment and trial, pursuant to notice provided on that date, with the consent of the trial court and the State was proper.
(2) The court held that the colloquy between the trial court and the defendant, which mirrored the acknowledgements on the Waiver of Jury Trial form, established that the defendant fully understood and appreciated the consequences of the decision to waive the right to trial by jury, thus satisfying the requirements of G.S. 15A-1201(d)(1).
(3) G.S. 15A-1201(e) provides that once waiver of jury trial has been made and consented to by the trial judge, the defendant may revoke the waiver one time within 10 business days of the notice. The court held that this provision does not mandate a ten-day cooling off period for a waiver made on the eve of trial. Instead, it provides a period during which a waiver made in advance of trial may be revoked.
(4) The court held that even if it presumed that the trial court erred in granting the waiver, the defendant could not show that he was prejudiced by the violation.
Defendant was not an occupant of the premises so as to justify his detention during the execution of a search warrant under Michigan v. Summers, 452 U.S. 692 (1981)
State v. Thompson, ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 20, 2019).
The defendant was cleaning his car in the street adjacent to his girlfriend’s apartment when several law enforcement officers arrived to execute a search warrant for the apartment. Before entering the apartment, a law enforcement officer approached the defendant and asked for his driver’s license. Officers remained outside with the defendant while the search warrant was executed. Defendant later consented to a search of his vehicle, where officers found marijuana, paraphernalia, and a firearm. He was charged with drug crimes and possession of firearm by a felon.
The defendant moved to suppress the evidence seized from the search of his vehicle on the basis that the officers obtained the evidence as a result of an unlawful, suspicionless seizure. The court of appeals in State v. Thompson, ___ N.C. App. ___, 809 S.E.2d 340 (2018) (Thompson I) determined, over a dissent, that the trial court’s order denying the defendant’s suppression motion did not resolve a pivotal issue of fact. Thus, the court vacated the judgment and remanded for further findings.
The North Carolina Supreme Court vacated Thompson I and remanded for reconsideration in light of State v. Wilson, 371 N.C. 920 (2018). Wilson addressed the authority of law enforcement officers to detain a person who arrives on the scene while a search warrant is being executed. Wilson held that pursuant to the rule announced by the United States Supreme Court in Michigan v. Summers, 452 U.S. 692 (1981), a search warrant authorizes the detention of (1) occupants, (2) who are within the immediate vicinity of the premises to be searched, and (3) who are presented during the execution of a search warrant for the premises. An occupant is a person who poses a real threat to the safe and efficient execution of a search warrant.
On remand, and again over a dissent, the court of appeals held that the defendant was not an occupant of the searched premises. The court noted that he remained inside his vehicle and did not attempt to approach the apartment or otherwise interfere with the search. Thus, the court found no circumstances to indicate that the defendant posed a threat to the safe and efficient execution of the search. The court therefore again vacated the trial court’s judgment and remanded the matter to the trial court for resolution of material factual disputes, pursuant to Thompson I.
The dissent would have held that the defendant was an occupant of the premises as he was within the line of sight of the apartment being searched and was a threat to enter or attempt to enter the premises.