This post summarizes criminal decisions released by the Supreme Court of North Carolina on June 11, 2021.
Prosecutor’s improper comments on defendant’s decision to plead not guilty during closing arguments were not prejudicial.
State v. Goins, 2021-NCSC-65, ___ N.C. __, ___ S.E.2d ___ (June 11, 2021). The defendant was convicted of attempted first-degree murder for shooting a law enforcement officer who was attempting to serve a warrant for the defendant’s arrest for violating probation. During closing argument, the prosecutor stated:
[You m]ight ask why would [defendant] plead not guilty? I contend to you that the defendant is just continuing to do what he’s done all along, refuse to take responsibility for any of his actions. That’s what he does. He believes the rules do not apply to him.
. . .
[Defendant’s] not taking responsibility today. There’s nothing magical about a not guilty plea to attempted murder. He’s got to admit to all the other charges. You see them all on video. The only thing that’s not on video is what’s in his head. He also knows that those other charges carry less time. There’s the magic.
Slip op. at ¶ 8.
The defendant did not object to the State’s closing argument, and he was convicted of attempted murder and other charges. On appeal, the defendant argued that the trial court’s failure to intervene during the State’s improper argument was reversible error. The majority of the Court of Appeals panel agreed, holding that the prosecutor’s commentary on defendant’s decision to plead not guilty was so unfair it violated defendant’s due process rights and ordering a new trial. The dissenting judge would have required a showing of prejudice by defendant because he failed to object at trial. Based on the record, the dissenting judge would have held that the State’s closing argument was improper, but that defendant was not prejudiced by the error. The State appealed on the basis of the dissenting opinion, conceding that the argument was improper but arguing that it was not prejudicial.
On appeal, the Supreme Court held that the Court of Appeals erred by failing to analyze prejudice. The high court undertook this review considering the entirety of the closing argument, the evidence, and the jury instructions. The Court noted that the prosecutor made the improper remarks in the context of explaining the intent required for attempted first-degree murder and after emphasizing the deliberate nature of the shooting. The Court characterized the improper argument as a “small portion” of the State’s closing argument and not the “primary” or “major focus.” Slip op. at ¶ 14. The Court noted that the State presented evidence that the defendant told his relatives that he would rather kill himself or be killed by law enforcement than go back to jail. Witnesses testified that the defendant’s gun was loaded with bullets designed to cause more serious injuries. After the officer identified himself, the defendant turned around and fired at the officer. The shootout between the defendant and the officer was captured on hotel surveillance video, which was played for the jury at trial. The Court reasoned that between the video and testimony from eyewitnesses who corroborated the State’s account of events, “‘virtually uncontested’” evidence of the defendant’s guilt was submitted to the jury. Slip op. at ¶ 15. In addition, the trial court instructed the jury that the defendant’s decision to plead not guilty could not be taken as evidence of his guilt, that the defendant was presumed innocent, and that the State was required to prove the defendant’s guilt beyond a reasonable doubt. Finally, the jury asked to re-watch the surveillance video of the shooting during its closing argument. The Court stated that this tended “to show that the jury based its decision on the evidence rather than on passion or prejudice resulting from the prosecutor’s improper argument.” Slip op. at ¶ 16. For these reasons, the Court concluded that the defendant was not prejudiced by the prosecutor’s “undeniably improper” closing argument. Slip. op. at ¶ 17. The Supreme Court reversed the Court of Appeals and remanded for consideration of remaining issues.
Trial court did not err by determining that gaming enterprise was an unlawful sweepstakes in violation of G.S. 14-306.4.
Crazie Overstock Promotions v. State of North Carolina, 2021-NCSC-57, ___ N.C. __, ___ S.E.2d ___ (June 11, 2021). The plaintiff filed a complaint seeking a determination, among other things, that its video gaming enterprise did not constitute an unlawful sweepstakes in violation of G.S. 14-306.4. The trial court granted summary judgment for the defendants. The plaintiff appealed, and the Court of Appeals affirmed the granting of summary judgment with respect to the issue of whether the gaming enterprise violated G.S. 14-306.4 while reversing the trial court’s decision to grant summary judgment in defendants’ favor with respect to the issue of whether the gaming enterprise violated G.S. 14-306.1A. The Supreme Court granted discretionary review.
The plaintiff’s video gaming enterprise consists of two electronic games. The first is the Reward Game, which is a game of chance. Customers use Reward Points from that game to play the Dexterity Test, which involves some skill, as it rewards Dexterity Points based on how closely the customer stops a stopwatch to the designated number. Dexterity Points may be redeemed for cash.
The Supreme Court stated that the relevant test for determining whether the operation of an electronic gaming device violates G.S. 14-306.4(a) is whether the results produced by that 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 or the extent of the player’s skill and dexterity. Applying that test, the Supreme Court agreed with the Court of Appeals that the plaintiff’s gaming enterprise violated G.S. 14-306.4. First, given that the number of Reward Points increases the dollar value of the prizes that a player is entitled to win in the course of the Dexterity Test, Reward Points are a “‘[ ]thing . . . of value’” pursuant to G.S. 14-306.4(a)(4). Slip op. at ¶ 24. For that reason, the Court concluded that the Reward Game violates G.S. 14-306.4.
The Court reached the same conclusion when considering the Reward Game and the Dexterity Test in conjunction. Even though the Dexterity Test, viewed in isolation, involves skill or dexterity, a customer’s ability to win more than a minimal amount of money is controlled by the outcome of the Reward Game. A person who is wholly unsuccessful in playing the Reward Game cannot win more than $1.00 regardless of how well he or she performs while playing the Dexterity Test. The Court reasoned that this fact established that the amount of a player’s winnings is primarily dependent upon chance rather than skill or dexterity as required by G.S. 14-306.4. Because chance predominates over the exercise of skill or dexterity in plaintiff’s games, the Court concluded that they are properly classified as a game of chance rather than a game of dexterity or skill.
Thus, the Court held that the plaintiff’s gaming enterprise is an unlawful sweepstakes in violation of G.S. 14-306.4. The court concluded that this determination obviated the need to decide other issues on remand, and accordingly modified and affirmed the decision of the Court of Appeals.
(1) Trial court did not err by denying defendant’s motion to dismiss first-degree murder charge where State’s evidence provided ample expert support to establish that the child victim died of starvation; (2) Trial court did not commit plain error by failing in bench trial to instruct itself to make a separate finding of malice or err by failing to make a separate determination that defendant acted maliciously as the act of starving another person to death suffices to show malice; (3) Starvation for purposes of G.S. 14-17(a) does not require proof that the defendant subjected the alleged victim to a complete deprivation of food and hydration; (4) Trial court’s determinations that the defendant allowed the child victim to remain in soiled diapers resulting in open sores and ulcers and kept the child in a playpen for so long that bed sores formed on the child’s legs and knees were consistent with the indictment’s allegations that the defendant deprived the child of medical treatment, resulting in the infliction of serious bodily injury.
State v. Cheeks, 2021-NCSC-69, ___ N.C. __, ___ S.E.2d ___ (June 11, 2021). The defendant was convicted in a bench trial of first-degree murder and negligent child abuse inflicting serious injury for starving and failing to provide medical treatment to his four-year-old disabled stepson, Malachi. The defendant appealed, and the Court of Appeals affirmed. The Supreme Court granted discretionary review. The defendant argued on appeal that: (1) the trial court erred by failing to dismiss the first-degree murder charge because the record failed to contain sufficient evidence to support a finding that Malachi’s death was proximately caused by starvation; (2) the State was required to make a separate showing of malice in order to prove defendant’s guilt of murder on the basis of starvation; (3) if malice is implied, then starving must be defined as the complete deprivation of food and water; and (4) his conviction for negligent child abuse inflicting serious bodily injury rested upon findings that Malachi suffered from bedsores, ulcers, and diaper rash, which differed from the indictment’s allegations that he failed to provide the child with medical treatment and proper nutrition. The Supreme Court rejected each of the defendant’s arguments and affirmed his convictions.
(1) The Supreme Court determined that the trial court had ample justification for concluding that Malachi died as a proximate result of starvation, despite findings in an amended autopsy report attributing Malachi’s death to asphyxia caused by strangulation. Witnesses who were responsible for providing treatment to Malachi and his sibling during the last two years of his life testified that Malachi was not fed even though he was ravenously hungry and looked considerably thinner in the months leading up to his death. Emergency medical technicians who responded to the 911 call for Malachi’s death noticed the malnourished state of Malachi’s body, which some of them initially mistook for a doll. The physical evidence in the autopsy report demonstrated that Malachi was severely malnourished and dehydrated. A pediatric neurologist who had treated Malachi testified that the only thing that “‘would cause Malachi or any child to look like’” the child described by the emergency medical technicians and depicted in the autopsy report and related photographs was “‘starvation.’” Slip op. at ¶ 44. Although the autopsy was amended to attribute Malachi’s death to asphyxia secondary to strangulation, the record demonstrates that the forensic pathologist made those amendments based on the defendant’s statements to a detective that he had strangled Malachi, statements that the trial court found not credible.
(2) The Supreme Court concluded that the trial court did not commit plain error or err by failing to (a) instruct itself concerning the issue of malice or (b) make a separate finding that defendant acted with malice in connection with killing Malachi. The Court reasoned that the intentional withholding of the nourishment and hydration needed for survival resulting in death when the victim is unable to provide these things for himself or herself shows a reckless disregard for human life and a heart devoid of social duty. Thus, the malice necessary for guilt of murder is inherent in the intentional withholding of hydration or nutrition sufficient to cause death. As a result, the Court held that the act of starving another person to death for purposes of G.S. 14-17(a), without more, suffices to show malice, so that the trial court did not commit plain error by failing to instruct itself to make a separate finding of malice or err by failing to make a separate determination that defendant acted maliciously in its findings of fact and conclusions of law.
The Court further held that the record and the trial court’s findings demonstrated that the defendant proximately caused Malachi’s death by intentionally depriving him of needed hydration and nutrition, a showing that supported the conviction of murder by starvation. Witnesses testified that there was food in the house and that Malachi’s siblings received sufficient nutrition and hydration to survive. The evidence depicted Malachi as hungry and dehydrated during the months leading to his death; yet the defendant, who was Malachi’s primary caregiver, did not seek medical attention for Malachi and fed Malachi, at the most, no more than once each day.
(3) The Supreme Court rejected the defendant’s argument that starvation for purposes of G.S. 14-17(a) required proof that the defendant subjected the victim to a complete deprivation of food and hydration. The Court explained that the discussion in State v. Evangelista, 319 N.C. 152 (1987) did not suggest otherwise; instead, Evangelista simply indicated that murder by starvation occurs in the event that the defendant completely deprives the victim of food and drink. The Court reasoned that the adoption of the defendant’s definition of starvation for purposes of G.S. 14-17(a) would produce the absurd result that a person who kills another by withholding virtually all, but not all, food and drink would not be guilty of murder by starvation.
(4) The Supreme Court held there was no fatal discrepancy between the allegations of the indictment charging defendant with negligent child abuse inflicting serious injury and the trial court’s factual justification for convicting defendant of that offense. The indictment charged the defendant with negligent child abuse inflicting serious injury for failing to provide Malachi “‘with medical treatment’” for over one year, “‘despite the child having a disability,’” and with failing to “‘provid[e] the child with proper nutrition and medicine, resulting in weight loss and failure to thrive.’” Slip op. at ¶ 50. The Court deemed the trial court’s determinations that defendant “‘allow[ed] the child to remain in soiled diapers until acute diaper rash formed on the [child’s] groin and bottom,’” resulting in “‘open sores and ulcers,’” and that defendant kept “‘the child in a playpen for so long a period of time that bed sores formed on [his] legs and knees’” to be fully consistent with the allegations in the indictment. Slip op. at ¶ 50.
State’s evidence was sufficient to allow jury to infer that the defendant intended to sell or deliver methamphetamine.
State v. Blagg, 2021-NCSC-66, ___ N.C. __, ___ S.E.2d ___ (June 11, 2021). The defendant was stopped for a traffic violation after leaving a Buncombe County house that officers were surveilling due to complaints of illegal drug activity. Officers recovered from the defendant’s car one large bag and several smaller bags of a white crystalline substance, a bag of a leafy green substance believed to be marijuana, a baggie of cotton balls, several syringes, rolling papers, and a lockbox containing several smoked marijuana blunts and a number of plastic baggies. When he was arrested, the defendant offered to provide information about a woman he was supposed to meet who was involved in heroin trafficking.
The defendant was indicted for several drug charges including possession of methamphetamine and possession with intent to sell or deliver methamphetamine and for attaining habitual felon status. At trial, a forensic analyst from the State Crime Lab testified that that the white crystalline substance in the large plastic baggie was 6.51 grams of methamphetamine. The arresting officer testified that a typical methamphetamine sale for personal drug use was usually between one-half of a gram to a gram, and that two of the smaller baggies containing white crystalline substances (which were not analyzed) weighed 0.6 and 0.9 grams. The officer also testified that the baggies found in the car were consistent with those used in drug sales.
The defendant moved at the close of the State’s evidence to dismiss the charge of possession with intent to sell or deliver methamphetamine on the basis that the search of his person and vehicle yielded no cash, guns, financial records or other evidence to show that the defendant was a drug dealer as opposed to a drug user in possession of drugs. The trial court denied the motion, and the defendant was convicted of this charge and others and of being a habitual felon. The defendant appealed. Over a dissent, the Court of Appeals concluded that the trial court did not err in denying the defendant’s motion to dismiss the possession with intent to sell or deliver charge. The majority opined that “‘[w]hile it is possible that [d]efendant had 13 hits of methamphetamine solely for personal use, it is also possible that [d]efendant possessed that quantity of methamphetamine with the intent to sell or deliver the same’” and that the issue was thus “‘properly resolved by the jury.’” Slip op. at ¶ 8.
On appeal, the Supreme Court considered whether the State presented sufficient evidence that the defendant intended to sell or deliver methamphetamine. The Court applied the following factors from State v. Nettles, 170 N.C. App. 100 (2005), to evaluate whether the defendant’s intent to sell or deliver could be inferred from the evidence: (1) the packaging, labeling and storage of the controlled substance, (2) the defendant’s activities, (3) the quantity of the drugs found, and (4) the presence of cash or drug paraphernalia including plastic baggies. The Court determined that the State’s evidence satisfied every factor and that the trial court properly denied the defendant’s motion to dismiss. Specifically, the court pointed to the following evidence: (1) the packaging of the confirmed methamphetamine and the untested white crystalline substances and the presence of clear plastic baggies in the car; (2) the storage of the methamphetamine in the center console after leaving a house where drug activity was suspected and while having a pending meeting with a drug trafficker; (3) the driving to a suspected drug house, entering and remaining inside for ten minutes, planning to meet with a drug trafficker, and driving a car with a large bag of methamphetamine inside and other items that appeared to be drug-related; and (4) the more than 8 grams of white crystalline substances in the defendant’s car, with 6.51 grams confirmed as methamphetamine (23.3 percent of the threshold amount to establish trafficking in methamphetamine), combined with evidence that the typical packaging of such a substance is one-half of a gram to a gram; and (5) the loaded syringe, bag of new syringes and baggie of cotton balls in the defendant’s car along with a lock box with plastic baggies in the back floorboard of the car. Focusing on the presence of evidence that could reasonably support an inference that the defendant possessed methamphetamine with intent to sell or deliver, the Court concluded that the State presented sufficient evidence of the defendant’s intent to sell or deliver methamphetamine.
Justice Earls, joined by Justice Hudson, dissented. Justice Earls wrote that the majority had jettisoned the requirement that the State present substantial evidence of the defendant’s specific intent to sell or deliver the controlled substance by relying on evidence that was common to any individual who possesses a controlled substance.
(1) A clinical social worker who diagnosed the victim with post-traumatic stress disorder (PTSD) did not impermissibly vouch for the victim’s credibility by addressing what types of trauma could lead to a PTSD diagnosis; (2) Expert witnesses’ use of the word “disclose” did not constitute impermissible vouching; and (3) The trial court did not plainly err by admitting evidence of the defendant’s past domestic violence incidents with the victim’s mother as they were relevant to explain why the victim delayed reporting the defendant’s crimes and aided the jury’s understanding of the victim’s PTSD diagnosis.
State v. Betts, 2021-NCSC-68, ___ N.C. __, ___ S.E.2d ___ (June 11, 2021). Defendant was convicted of three counts of indecent liberties with a child for sexually abusing M.C., the seven-year-old daughter of his then-romantic-partner. The abuse was discovered after M.C.’s sister was born with illegal drugs in her system, prompting the involvement of the Forsyth County Department of Social Services (DSS). When a DSS worker interviewed M.C., M.C. reported that the defendant had touched her inappropriately. Other interviews followed in which M.C. described incidents of domestic violence between the defendant and her mother. A clinical social worker for DSS ultimately diagnosed M.C. with post-traumatic stress disorder (PTSD).
The defendant appealed to the Court of Appeals, which in a divided opinion held that the defendant’s trial was free from prejudicial error. On appeal, the Supreme Court considered whether (1) the clinical social worker impermissibly vouched for the victim’s credibility, (2) the use of the word “disclose” by witnesses for the State constituted impermissible vouching, and (3) the trial court plainly erred by allowing evidence of his past domestic violence incidents with the victim’s mother.
(1) The defendant argued that the clinical social worker’s affirmative answers to the following questions from the State impermissibly vouched for the victim’s credibility: (A) “when you make a diagnosis of post-traumatic stress disorder, are there several types of traumatic events that could lead to that diagnosis?,” (B) “would violence in the home be one of those?,” (C) “what about domestic violence or witnessing domestic violence?,” (D) “what about sexual abuse?,” (E) “[w]ould it be fair to say that [M.C.] had experienced a number of traumas?,” and (6) “And that was the basis of your therapy?”
Because the defendant did not object to this testimony at trial, the Court reviewed for plain error.
The Court determined that the witness’s testimony was admissible as she addressed what types of trauma could lead to a PTSD diagnosis rather than indicating which if any of these traumas M.C. experienced. She did not vouch for M.C.’s credibility by testifying that M.C. was in fact sexually abused. Instead, she stated the considerations that led to her expert diagnosis. Moreover, the Court concluded that even if the testimony was admitted in error, it was not prejudicial. The trial court instructed the jury that the testimony could only be used to corroborate M.C.’s testimony or to explain M.C.’s delay in reporting defendant’s crimes.
(2) The defendant argued that witness’s use of the word “disclose” impermissibly vouched for the victim’s credibility. Reviewing for plain error, the Court rejected the defendant’s argument. First, the Court stated that “[a]n expert witness’s use of the word ‘disclose,’ standing alone, does not constitute impermissible vouching as to the credibility of a victim of child sex abuse, regardless of how frequently used, and indicates nothing more than that a particular statement was made.’” Slip op. at 20. Second, the court concluded that even if it was error to admit the testimony, the defendant did not show that the use of the word “disclose” had a probable impact on the jury’s finding that he was guilty given the substantial evidence of abuse.
(3) The defendant argued that the trial court plainly erred by introducing evidence of domestic violence which he said had little to do with the charged offenses. The Supreme Court disagreed, reasoning that the domestic violence evidence explained why M.C. was fearful of and delayed in reporting defendant’s sexual abuse and was probative of M.C.’s PTSD diagnosis. The Court further explained that the domestic violence evidence was not more prejudicial than probative because it went directly to the issue of the victim’s credibility. Because the Court concluded that the trial court did not err by admitting the evidence it held there could not be plain error.
Trial court did not abuse its discretion when it declined to intervene to correct misstatements by the prosecutor in closing argument to which the defendant did not object.
State v. Parker, 2021-NCSC-64, ___ N.C. __, ___ S.E.2d ___ (June 11, 2021). The defendant was convicted of possession of firearm by a felon for his involvement in a drug transaction in which one of the would-be-drug-buyers was shot and killed. Witnesses described the defendant, who they said pulled out a revolver and moved toward the car where the victim was sitting, as having a tattoo on his cheek. At trial, the State introduced a photograph of the defendant that showed a tattoo on his chest. During closing argument, the prosecutor stated that the men who saw the defendant draw his revolver identified him as having a tattoo on his chest. In fact, those witnesses had testified that the man had a tattoo on his cheek. The defendant did not contemporaneously object to these misstatements. The defendant appealed, and the Court of Appeals found no error, concluding that the prosecutor’s statements during closing argument were not grossly improper. The Supreme Court granted discretionary review and affirmed.
The Supreme Court characterized the misstatements as mistakes that were not intentional and were not extreme or grossly improper. The Court noted that the trial court explicitly instructed jurors that they were to be guided exclusively by their own recollection of the evidence any time their recollection differed from that of the attorneys. Stating that “[t]rials are not carefully scripted productions,” the Court reasoned that absent gross impropriety in an argument “a judge should not be thrust into the role of an advocate based on a perceived misstatement regarding an evidentiary fact when counsel is silent.” Slip op. at ¶ 26. Accepting the defendant’s argument, the Court stated, would allow attorneys to “sit back in silence during closing arguments” and then claim error on appeal if the trial court failed to correct a misstatement of the evidence. Slip op. at ¶ 26. Thus, the Court concluded that the trial court did not abuse its discretion when it declined to intervene ex mero motu.
Defendant was not entitled to relief based on the trial court’s failure to conduct the pretrial colloquy required by G.S. 15A-1201 for waiver of a jury trial as he did not show prejudice resulting from the violation.
State v. Hamer, 2021-NCSC-67, ___ N.C. __, ___ S.E.2d ___ (June 11, 2021). The defendant was convicted in a bench trial of speeding 94 miles per hour in a 65 mile-per-hour zone. A divided panel of the Court of Appeals determined that even though the trial court failed to follow the procedure set forth in N.C.G.S. § 15A-1201 for waiver of defendant’s right to a jury trial, the defendant was not prejudiced by the trial court’s noncompliance. On appeal, the defendant argued that the trial court erred in conducting a bench trial because he did not knowingly and voluntarily waive his right to a jury trial.
Counsel for the defendant requested a bench trial in superior court, and the State consented to the request. The trial court granted the request and began the trial without first addressing the defendant and determining whether he fully understood and appreciated the consequences of the jury trial waiver as required by G.S. 15A-1201(d). After the State rested, the trial court asked the defendant if he consented to the waiver of jury trial. In that exchange, the defendant said he consented to the waiver.
The Supreme Court determined that that the trial court’s failure to conduct the inquiry required by G.S. 15A-1201(d) was a statutory rather than a constitutional violation and that the defendant was required to show prejudice resulting from the violation to be entitled to relief. The Court stated that the pretrial exchange between the trial court, defense counsel, and the State, coupled with defendant’s subsequent answers to questions posed by the trial court demonstrated that he understood he was waiving his right to a trial by jury and the consequences of that decision. In addition, the Court stated there was overwhelming evidence of defendant’s guilt.
Justice Ervin, joined by Justices Hudson and Earls, dissented. Justice Ervin wrote that he would hold that the defendant did not properly waive his right to trial by jury, that the absence of a proper waiver resulted in a deprivation of his right to trial by jury, that the failure to obtain a proper waiver of defendant’s right to a jury trial constituted error per se, and that defendant was therefore entitled to a new trial.