Case Summaries: North Carolina Supreme Court (Feb. 11, 2022)

This post summarized published criminal and related decisions from the North Carolina Supreme Court released on February 11, 2022. These summaries will be added to the Criminal Case Compendium.

Absent physical evidence of abuse, it was plain error to admit expert testimony that sexual abuse had occurred and that identified the defendant as the perpetrator; new trial

State v. Clark, ___ N.C. ___, 2022-NCSC-13 (Feb. 11, 2022). The defendant was convicted at trial of indecent liberties with a minor in Pitt County. The trial court allowed an expert witness for the State to testify the minor child had been sexually abused, despite a lack of physical evidence. The defendant did not object at the time. The same expert testified about her treatment recommendations for the minor victim, which included that the child have no contact with the defendant, again without objection. The defendant argued that the admission of this evidence was plain error, or alternatively that the record showed ineffective assistance of counsel based on trial counsel’s failure to object to the challenged testimony. A divided Court of Appeals affirmed in an unpublished decision. The majority found that admission of this testimony, though error, did not amount to plain error. The dissent at the Court of Appeals would have found ineffective assistance of counsel based on trial counsel’s failure to object to the expert testimony. A majority of the North Carolina Supreme Court reversed and granted a new trial.

An expert may not testify that a child has been sexually abused without physical evidence of sexual abuse, and admission of such testimony is plain error where the case turns on the victim’s credibility. See State v. Towe, 366 N.C. 56 (2012). While evidence was presented concerning the victim’s behavioral and social changes following the alleged crime (and such evidence may properly be circumstantial evidence of abuse), this did not amount to physical evidence of sexual abuse. The expert testimony here that the child was sexually abused despite a lack of physical evidence was therefore improper vouching for the victim’s credibility. Given the lack of physical evidence in the case, this was plain error and required a new trial.

The expert’s testimony that she recommended the victim to stay away from the defendant improperly identified the defendant as the perpetrator and similarly constituted plain error. While an expert in a child sex case may testify that physical symptoms of a victim are consistent with the victim’s report, an expert cannot explicitly or implicitly identify the defendant as the perpetrator. See State v. Aguallo, 322 N.C. 818 (1988). “[S]ince this case turns on the credibility of the victim, even an implicit statement that the defendant is the one who committed the crime is plain error necessitating a new trial.” Clark Slip op. at 18.

Given its ruling on these points, the Court declined to address the defendant’s ineffective assistance argument, which it dismissed without prejudice. The Court of Appeals was therefore reversed in part and the matter remanded for a new trial.

Chief Justice Newby dissented, joined by Justice Barringer. The dissenting Justices would have found no plain error and would have affirmed the Court of Appeals.

Where the prosecutor’s race-neutral explanations for use of a peremptory strike were unsupported by the record, the defendant should have prevailed on his Batson challenge; order denying defense Batson challenge reversed on the merits

State v. Clegg, ___ N.C. ___, 2022-NCSC-11 (Feb. 11, 2022). The defendant was tried for armed robbery and possession of firearm by felon in Wake County. When the prosecution struck two Black jurors from the panel, defense counsel made a Batson challenge. The prosecution argued the strikes were based on the jurors’ body language and failure to look at the prosecutor during questioning. The prosecution also pointed to one of the juror’s answer of “I suppose” in response to a question on her ability to be fair, and to the other juror’s former employment at Dorothea Dix, as additional race-neutral explanations for the strikes. The trial court initially found that these reasons were not pretextual and overruled the Batson challenge. After the defendant was convicted at trial, the Court of Appeals affirmed in an unpublished opinion, agreeing that the defendant failed to show purposeful discrimination. The defendant sought review at the North Carolina Supreme Court. In a special order, the Court remanded the case to the trial court and retained jurisdiction of the case.

On remand, the defense noted that the “I suppose” answer used to justify the prosecutor’s strike was in fact a mischaracterization of the juror’s answer—the juror in question responded with that answer to a different question about her ability to pay attention (and not about whether she could be fair). The defense argued this alone was enough to establish pretext and obviated the need to refute other justifications for the strike. As to the other juror, the defense noted that while the juror was asked about her past work in the mental health field, no other juror was asked similar questions about that field. The defense argued with respect to both jurors that the prosecutor’s body language and eye contact explanations were improper, pointing out that the trial court failed to make findings on the issue despite trial counsel disputing the issue during the initial hearing. It also noted that the prosecutor referred to the two women collectively when arguing this explanation and failed to offer specific reasons for why such alleged juror behavior was concerning. This evidence, according to the defendant, met the “more likely than not” standard for showing that purposeful discrimination was a substantial motivating factor in the State’s use of the strikes.

The State argued that it struck the juror with a history in mental health as someone who may be sympathetic to the defendant but did not argue the juror’s body language or eye contact as explanations for its use of that strike at the remand hearing. As to the other juror, the State reiterated its original explanations of the juror’s body language and eye contact. It also explained that the mischaracterization of the juror’s “I suppose” answer was inadvertent and argued that this and another brief answer of “I think” from the juror during voir dire indicated a potential inability of the juror to pay attention to the trial.

The trial court ruled that the strike of the juror with previous employment in the mental health field was supported by the record, but that the prosecution’s strike of the other juror was not. It found it could not rely on the mischaracterized explanation, and that the body language and eye contact justifications were insufficient explanations on their own without findings by the trial court resolving the factual dispute on the issue. The trial court therefore determined that the prosecutor’s justifications failed as to that juror. The trial court considered the defendant’s statistical evidence of racial discrimination in the use of peremptory strikes in the case and historical evidence of racial discrimination in voir dire statewide. It also noted disparate questioning between Black and White jurors on the issue of their ability to pay attention to the trial but found this factor was not “particularly pertinent” under the facts of the case. The trial court ultimately concluded that this evidence showed the prosecutor’s explanation was improper as to the one juror, but nonetheless held that no purposeful discrimination had occurred, distinguishing the case from others finding a Batson violation.  Thus, the objection was again overruled, and the defendant again sought review at the North Carolina Supreme Court.

A majority of the Court reversed, finding a Batson violation by the State. The prosecutor’s shifting and mischaracterized explanation for the strike of the juror who answered “I suppose”—initially argued as an indication the juror could not be fair, but later argued as going to her ability to pay attention—indicated the reason was pretextual, and the trial court correctly rejected that justification for the strike. The trial court also correctly determined that the demeanor-based explanations for the strike of this juror were insufficient without findings of fact on the point. However, the trial court erred in several critical ways. For one, when the trial court rejects all of the prosecutor’s race-neutral justifications for use of a strike, the defendant’s Batson challenge should be granted. According to the Court:

If the trial court finds that all of the prosecutor’s proffered race-neutral justifications are invalid, it is functionally identical to the prosecutor offering no race-neutral justifications at all. In such circumstances, the only remaining submissions to be weighed—those made by the defendant—tend to indicate that the prosecutor’s peremptory strike was ‘motivated in substantial part by discriminatory intent.’ Clegg Slip op. at 47.

Further, while the trial court correctly recited the more-likely-than-not burden of proof in its order, it failed to meaningfully apply that standard. While the present case involved less explicit evidence of racial discrimination in jury selection than previous federal cases finding a violation, it is not necessary for the defendant to show “smoking-gun evidence of racial discrimination.” Id. at 41. The trial court also erred in reciting a reason for the strike not offered by the prosecution in its order denying relief. Finally, there was substantial evidence that the prosecutor questioned jurors of different races in a disparate manner, and the trial court failed to fully consider the impact of this evidence. Collectively, these errors amounted to clear error and required reversal. Because the Court determined that purposeful discrimination occurred as to the one juror, it declined to consider whether discrimination occurred with respect to the strike of the other juror.

The conviction was therefore vacated, and the matter remanded to the trial court for any further proceedings. A Batson violation typically results in a new trial. The defendant here had already served the entirety of his sentence and period of post-release, and the Court noted the statutory protections from greater punishment following a successful appeal in G.S. 15A-1335. In conclusion, the Court observed:

[T]he Batson process represents our best, if imperfect, attempt at drawing a line in the sand establishing the level of risk of racial discrimination that we deem acceptable or unacceptable. If a prosecutor provides adequate legitimate race-neutral explanations for a peremptory strike, we deem that risk acceptably low. If not, we deem it unacceptably high. . . Here, that risk was unacceptably high. Clegg Slip op. at 56-57.

Justice Earls wrote separately to concur. She would have considered the Batson challenge for both jurors and would have found clear error with respect to both. She also noted that this is the first case in which the North Carolina Supreme Court has found a Batson violation by the State. Her opinion argued the State has been ineffective at preventing racial discrimination in jury selection and suggested further action by the Court was necessary to correct course.

Justice Berger dissented, joined by Chief Justice Newby and Justice Barringer. The dissenting Justices would have affirmed the trial court’s finding that a Batson violation did not occur in the case.

Probation violation properly alleged absconding and provided sufficient notice to the defendant of the charges

State v. Crompton, ___ N.C. ___, 2022-NCSC-14 (Feb. 11, 2022). In this probation revocation case from Buncombe County, the defendant failed to contact his probation officer for nearly three months until his arrest. After more than month of not being able to contact the defendant, the probation officer filed a violation report accusing him of absconding and other violations. The absconding violation alleged that the defendant failed to report to the probation office, failed to return his probation officer’s calls, failed to provide his current address, failed to make himself available for supervision, and noted that the last in-person contact with the defendant was more than a month ago. The defendant represented himself at hearing, admitted the violations, and was revoked. At the Court of Appeals, a divided panel affirmed the revocation (summarized here). A dissenting judge there would have held that the violation report did not sufficiently plead absconding and that the State’s evidence was insufficient to establish willful absconding. The defendant appealed based on the dissent, and the North Carolina Supreme Court affirmed.

The Court found that the defendant had adequate notice that he was accused of absconding probation. The allegation of violation need only describe the defendant’s conduct in violating probation and need not state the condition of probation violated by the conduct. The allegations here described the defendant’s conduct with appropriate specificity. That the conduct described in the absconding violation also violated regular, non-revocable conditions of probation did not render the allegation improper—an argument the Court called “meritless.” Crompton Slip op. at 12. The defendant’s admission to absconding at the hearing and argument to the trial judge to run his suspended sentences concurrent further demonstrated that the defendant had effective notice of the allegations. In the words of the Court:

[The] defendant here was sufficiently and properly informed by the probation violation reports of his alleged violations and his alleged conduct which constituted the alleged violations, including the alleged absconding behavior which defendant admitted. Id. at 13.

The trial court therefore did not abuse its discretion in revoking the defendant’s probation.

Justice Earls dissented. She would have found that the violation report only alleged violations of regular, non-revocable conditions of probation and that the defendant only admitted to as much.

(1) Statutory self-defense provisions of G.S. 14-51.3 and 14-51.4 abolished the common law right of perfect self-defense; (2) Defendant’s argument that the felony disqualification required a causal nexus was preserved; (3) Felony disqualification provisions of G.S. 14-51.4 require a causal nexus between the felony and the need for defensive force (4) Based on the jury’s guilty verdict for armed robbery, the trial court’s failure to instruct on a causal nexus did not prejudice the defendant

State v. McLymore, ___ N.C. ___, 2022-NCSC-12 (Feb. 11, 2022). Under G.S. 14-51.4, a person may not claim self-defense if the person was attempting a felony, committing a felony, or escaping from the commission of a felony at the time of the use of force. The defendant was charged with first-degree murder, armed robbery, and fleeing to elude in Cumberland County. He claimed self-defense and testified on his behalf. Evidence showed that the defendant had multiple prior felony convictions and that he possessed a weapon at the time of the murder. The trial court gave a general instruction on statutory self-defense and instructed the jury that the defendant could not claim self-defense if he was committing the felony of possession of firearm by a felon at the time of his use of force. The jury convicted on all counts and the defendant was sentenced to life without parole. On appeal, the Court of Appeals affirmed, finding that the defendant was disqualified from claiming statutory self-defense under State v. Crump, 259 N.C. App. 144 (2018) (strictly interpreting the felony disqualification) and determining that G.S. 14-51.4 supplanted the common law right in the situations covered by the statute. On discretionary review, the Supreme Court modified and affirmed.

(1)  The trial court and Court of Appeals correctly rejected the defendant’s argument that the statutory self-defense disqualification did not apply because the defendant was claiming common law, rather than statutory, self-defense. The Court agreed with the lower courts that G.S. 14-51.3 and 14-51.4 were intended to abolish the common law right to perfect self-defense in the circumstances identified by the statute, noting that the language of G.S. 14-51.3 closely followed the common law definition of self-defense and that the legislature had failed to express an intent to retain the common law (unlike other parts of the statutory self-defense laws, where such an intention was expressly stated). In the words of the Court:

[A]fter the General Assembly’s enactment of G.S. 14-51.3, there is only one way a criminal defendant can claim perfect self-defense: by invoking the statutory right to perfect self-defense. Section 14-51.3 supplants the common law on all aspects of the law of self-defense addressed by its provisions. Section 14-51.4 applies to the justification described in G.S. 14-51.3. Therefore, when a defendant in a criminal case claims perfect self-defense, the applicable provisions of G.S. 14-51.3—and, by extension, the disqualifications provided under G.S. 14-51.4—govern. McLymore Slip op. at 8-9 (cleaned up).

The trial court therefore did not err by instructing the jury on statutory self-defense, including on the felony disqualifier.

(2) The defendant’s objections to the jury instructions were sufficient to preserve his arguments relating to a “causal nexus” requirement for the felony disqualification provisions of G.S. 14-51.4, and his arguments were also apparent from the record. Among other reasons, the State argued, and the trial court relied on, the Crump decision (finding no causal nexus requirement for the felony disqualifier) in rejecting the defendant’s proposed jury instruction.

(3) The Court agreed that G.S.14-51.4 must be read to require a nexus between the defendant’s use of force and felony conduct used to disqualify the defendant from use of defensive force. A strict interpretation of this statute would lead to absurd and unjust results and would also contract the common law right to self-defense. “[A]bsent a causal nexus requirement, each individual [committing a felony not related to the need for defensive force] would be required to choose between submitting to an attacker and submitting to a subsequent criminal conviction.” McLymore Slip op. at 18. The Court also noted that a broad interpretation of the felony disqualifier may violate the North Carolina Constitution’s protections for life and liberty. N.C. Const. art. I, sec. 1. The Court therefore held that the State has the burden to demonstrate a connection between the disqualifying felony conduct and the need for the use of force, and the jury must be instructed on that requirement. Crump and other decisions to the contrary were expressly overruled. In the Court’s words:

[W]e hold that in order to disqualify a defendant from justifying the use of force as self-defense pursuant to N.C.G.S. § 14-51.4(1), the State must prove the existence of an immediate causal nexus between the defendant’s disqualifying conduct and the confrontation during which the defendant used force. The State must introduce evidence that ‘but for the defendant’ attempting to commit, committing, or escaping after the commission of a felony, ‘the confrontation resulting in injury to the victim would not have occurred.’ McLymore Slip op. at 20.

(4) Though the trial court’s instructions on the felony disqualification were erroneous, this error did not prejudice the defendant under the facts of the case. The jury convicted the defendant of armed robbery based on his theft of the victim’s car immediately after the murder. This necessarily showed that the jury found the defendant was committing or escaping from the commission of a felony related to his need to use force. The Court observed:

Based upon the outcome of McLymore’s trial, it is indisputable that there existed an immediate causal nexus between his felonious conduct and the confrontation during which he used assertedly defensive force, and the felony disqualifier applies to bar his claim of self-defense. Id. at 23.

However, the Court rejected the State’s argument that the defendant would be categorically barred from self-defense with a firearm due to this status as a convicted felon. The defendant was not charged with possession of firearm by felon in the case and had no opportunity to defend against that charge. Additionally, the jury was not instructed on a causal connection between the defendant’s mere possession of the firearm and his need for use of force. According to the Court:

To accept the State’s argument on this ground would be to effectively hold that all individuals with a prior felony conviction are forever barred from using a firearm in self-defense under any circumstances. This would be absurd. Id. at 22.

The Court of Appeals was therefore modified and affirmed. Chief Justice Newby wrote separately to concur in result only, joined by Justice Barringer. They would have found that the causal nexus argument was not preserved and should have not been considered. Alternatively, they would have ruled that the felony disqualification does not require a causal nexus.

Assuming the admission of substitute analyst testimony and 404(b) evidence was error, the defendant was not prejudiced in light of overwhelming evidence of his guilt

State v. Pabon, ___ N.C. ___, 2022-NCSC-16 (Feb. 11, 2022). The defendant was charged with second-degree rape and first-degree kidnapping in Cabarrus County and was convicted at trial. Benzodiazepines were found in the victim’s urine, and the State presented expert testimony at trial on the urinalysis results. The expert witness did not conduct the forensic testing but independently reviewed the test results. The defendant’s hearsay and Confrontation Clause objections were overruled. Expert testimony from another witness established the presence of a muscle relaxant in the victim’s hair sample and indicated that the two drugs in combination would cause substantial impairment. There was additional evidence of a substantial amount of the defendant’s DNA on the victim, as well as evidence of prior similar sexual assaults by the defendant admitted under Rule 404(b) of the North Carolina Rules of Evidence. He was convicted of both charges and appealed. A divided Court of Appeals affirmed, finding no error (summarized here). Among other issues, the majority rejected the defendant’s arguments that the admission of the substitute analyst testimony and the 404(b) evidence was error. The defendant appealed the Confrontation Clause ruling and the North Carolina Supreme Court later granted discretionary review on the Rule 404(b) issue.

Assuming without deciding that admission of the substitute analyst testimony was error, the error was harmless beyond a reasonable doubt. Testimony from the substitute analyst established the presence of benzodiazepines in the victim’s blood based first on a preliminary test, and then a confirmatory test. While the defendant objected to all of this testimony at trial, only the testimony regarding the confirmatory test was challenged on appeal. Thus, “[e]ven in the absence of [the substitute analyst’s] subsequent testimony regarding the confirmatory testing, there was still competent evidence before the jury of the presence of Clonazepam in [the victim’s] urine sample.” Pabon Slip op. at 23. The Court noted that evidence from the other analyst established a different impairing substance in the victim’s hair which could have explained the victim’s drugged state on its own. In light of this and other “overwhelming” evidence of guilt, any error here was harmless and did not warrant a new trial.

As to the 404(b) evidence, the Court likewise assumed without deciding that admission of evidence of the previous sexual assaults by the defendant against other women was error but determined that any error was not prejudicial under the facts. Unlike a case where the evidence amounts to a “credibility contest”—two different accounts of an encounter but lacking physical or corroborating evidence—here, there was “extensive” evidence of the defendant’s guilt. This included video of the victim in an impaired state soon before the assault and while in the presence of the defendant, testimony of a waitress and the victim’s mother regarding the victim’s impairment on the day of the offense, the victim’s account of the assault to a nurse examiner, the victim’s vaginal injury, the presence of drugs in the victim’s system, and the presence of the a significant amount of the defendant’s DNA on the victim’s chest, among other evidence. “We see this case not as simply a ‘credibility contest,’ but as one with overwhelming evidence of defendant’s guilt.” Id. at 34. Thus, even if the 404(b) evidence was erroneously admitted, it was unlikely that the jury would have reached a different result. The Court of Appeals decision was therefore modified and affirmed.

Chief Justice Newby concurred separately. He joined in the result but would not have discussed the defendant’s arguments in light of the Court’s assumption of error.

Sufficient evidence existed for the jury to find that the defendant was aware of a DVPO; Court of Appeals erred in failing to view the evidence in the light most favorable to the State

State v. Tucker, ___ N.C. ___, 2022-NCSC-15 (Feb. 11, 2022). In this case from Mecklenburg County, the defendant was convicted of violating a domestic violence protective order (“DVPO”) while in possession of a deadly weapon, as well as felony breaking or entering in violation of the DVPO, assault with a deadly weapon, and assault on a female. The defendant was served with an ex parte DVPO and a notice of hearing on the question of a permanent DVPO. He failed to attend the hearing, and a year-long DVPO was entered in his absence. On appeal, a unanimous Court of Appeals vacated the breaking or entering and DVPO violation convictions, finding that the defendant lacked notice of the permanent DVPO and therefore could not have willfully violated that order (summarized here). On discretionary review, the North Carolina Supreme Court reversed.

The ex parte DVPO was served on the defendant and indicated that a hearing would be held to determine whether a longer order would be entered. Though the defendant was not present at the hearing, he acknowledged his awareness of the DVPO during his arrest in the victim’s apartment the day after the hearing on the permanent order by stating he knew the plaintiff had obtained a DVPO—a remark captured on an officer’s bodycam. While this remark could have referred to the ex parte DVPO, it was sufficient evidence of the defendant’s knowledge of the permanent order when viewed in context in the light most favorable to the State. The Court of Appeals erred by failing to apply that standard. According to the unanimous Court:

Defendant’s statement, ‘I know,’ in addition to his other statements, conduct, and the timing of such conduct, supports this holding. The existence of evidence that could support different inferences is not determinative of a motion to dismiss for insufficient evidence. The evidence need only be sufficient to support a reasonable inference. Tucker Slip op. at 10 (citations omitted).

The Court of Appeals was therefore reversed, and the defendant’s convictions reinstated.

Video sweepstakes games as modified remain games of chance under the predominant factor test and violate the sweepstakes ban statute

Gift Surplus, LLC v. State of North Carolina, ___ N.C. ___, 2022-NCSC-1 (Feb. 11, 2022). The plaintiffs sought a declaratory judgment that their sweepstakes video games were lawful and did not violate G.S. 14-306.4 (banning certain video sweepstakes games). For the third time, the North Carolina Supreme Court held that the video games at issue are primarily games of chance in violation of the statute. While the games were modified to award more nominal money prizes and to allow players to “double nudge” game symbols into place to win, these changes did not alter the chance-based character of the games. The question of whether a game falls within the prohibition on games of chance in G.S. 14-306.4 is a mixed question of law and fact and is subject to de novo review where there is no dispute about how the game is played. Applying that standard, the Court unanimously held the modified games remained games of chance. In its words:

After considering plaintiffs’ game when viewed in its entirety, we hold that the results produced by plaintiffs’ equipment in terms of whether the player wins or loses and the relative amount of the player’s winnings or losses varies primarily with the vagaries of chance and not the extent of the player’s skill and dexterity. Gift Surplus Slip op. at 22 (cleaned up).

Because the Court determined the games at issue violated G.S. 14-306.4, it declined to consider whether the games also constituted illegal gambling.

The Court of Appeals majority opinion below held that the games violated the statute regardless of whether or not they were games of chance because the games constituted an “entertaining display” under the statute. This was error, as entertaining displays are not banned under the statute unless the game is one of chance. “Any doubt about whether the statute is only concerned with games of chance is resolved by subsection (i), the statute’s ‘catch-all provision,’ which prohibits sweepstakes through ‘[a]ny other video game not dependent on skill or dexterity.’” Id. at 12. The Court of Appeals was consequently affirmed as modified.