This post provides summaries of the opinions of the Supreme Court of North Carolina published on August 16, 2019.
(1) The trial court erred when it admitted the defendant’s affidavit of indigency into evidence, violating his right against self-incrimination; (2) The error was harmless beyond a reasonable doubt.
State v. Diaz, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). (1) On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 808 S.E.2d 450 (2017), the court affirmed the Court of Appeals’ conclusion that the trial judge erred by admitting the defendant’s affidavit of indigency into evidence over the defendant’s objection to show his age, which was an element of the charged crimes in this abduction of a child and statutory rape case. The trial judge had ruled that the affidavit of indigency was admissible under Rule 902 of the Rules of Evidence as a self-authenticating document, but the Supreme Court concluded that allowing the document into evidence impermissibly compelled the defendant to surrender one constitutional right—his Fifth Amendment right against self-incrimination—in order to complete the paperwork required for him to assert his Sixth Amendment right to the assistance of counsel as an indigent defendant. (2) The Supreme Court deemed the trial judge’s error to be harmless beyond a reasonable doubt, reversing the Court of Appeals on that issue. Other trial testimony from victim—who knew the defendant sufficiently well to provide a competent opinion on his age—sufficed to prove the defendant’s age to the requisite level of precision and left no reasonable possibility that the exact birth date shown on the defendant’s affidavit of indigency contributed to his conviction.
Jeopardy continues after a mistrial, and the State’s entry of a voluntary dismissal under G.S. 15A-931 after jeopardy has attached terminates jeopardy in the defendant’s favor, regardless of the reason the State gives for entering the dismissal.
State. v. Courtney, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___ (2018), the court affirmed the Court of Appeals’ decision vacating the defendant’s conviction on double jeopardy grounds. In this murder case, the defendant’s first trial ended in a mistrial due to a deadlocked jury. After two status hearings, the State entered a dismissal on form AOC-CR-307, checking the “dismissal” box and writing “hung jury, state has elected not to re-try case” on the form. Several years later, the discovery of additional evidence led to the defendant being re-indicted. The defendant’s motion to dismiss on double jeopardy grounds was denied and the defendant was convicted of second-degree murder.
On appeal, the Supreme Court applied a two-pronged analysis to evaluate the defendant’s double jeopardy claim: (1) did jeopardy attach, and (2) if so, did the proceeding end in such a manner that the Double Jeopardy Clause bars his retrial. As to the first prong, the court said jeopardy clearly attached when the first jury was empaneled and sworn. Further, under Richardson v. United States, 468 U.S. 317 (1984), jeopardy continued following the mistrial. The court rejected the State’s argument that mistrial created a legal fiction under which jeopardy is deemed never to have attached at the first trial, and that there was thus no jeopardy to terminate at the time the State dismissed the initial charge. To the contrary, the court read Richardson as contemplating a “continuing jeopardy doctrine,” where jeopardy continued from its initial attachment in the first trial through the end of the case. As to the second prong of the analysis, the court concluded that the State’s dismissal of the charge under G.S. 15A-931 was binding on the State and tantamount to an acquittal, and that it was thus a jeopardy-terminating event for double jeopardy purposes. As a result, the defendant’s second trial was barred by double jeopardy, and the Supreme Court affirmed the Court of Appeals’ decision vacating it.
Justice Newby authored a dissent, joined by Justice Ervin, which would have concluded under State v. Tyson, 138 N.C. 627, 629 (1905), that the mistrial returned the case to pretrial status where the State could dismiss the charge without prejudice. The majority’s rule, the dissent argued, “places the State in the impossible position of choosing to proceed to a new trial with what one jury deemed insufficient evidence or lose any opportunity to hold the defendant accountable for the crime.”
The trial courts’ findings of fact failed to support the legal conclusion that the investigating officer lacked the probable cause needed to place defendant under arrest for impaired driving.
State v. Parisi, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On appeal from a divided panel of the Court of Appeals, State v. Parisi, ___ N.C. App. ___, 817 S.E.2d 228 (2018) (discussed in an earlier blog post by Shea Denning, https://nccriminallaw.sog.unc.edu/got-probable-cause-for-impaired-driving/), the Supreme Court held that the trial court erred by granting the defendant’s motion to suppress in this impaired driving case. The Supreme Court considered whether the trial courts’ findings—which are conclusive on appeal if supported by competent evidence—supported the ultimate conclusions of law. Here, where the trial courts made findings that the defendant admitted to consuming three beers, that defendant’s eyes were red and glassy, that a moderate odor of alcohol emanated from defendant’s person, and that the defendant exhibited multiple indicia of impairment while performing various sobriety tests, the Supreme Court had “no hesitation” in concluding that those facts sufficed, as a matter of law, to support the officer’s decision to arrest the defendant for impaired driving.
The lack of a scientifically valid chemical analysis of a substance identified by officers as heroin did not require the trial court to grant the defendant’s motion to dismiss for insufficiency of the evidence.
State v. Osborne, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 821 S.E.2d 268 (2018), the Supreme Court concluded that the Court of Appeals misapplied State v. Ward, 356 N.C. 133 (2010), when it held that the absence of a scientifically valid chemical analysis meant that the State had not established beyond a reasonable doubt that the seized substance was heroin, and that the trial court therefore erred when it denied the defendant’s motion to dismiss for insufficiency of the evidence. Ward, the Supreme Court clarified, was a case about the admissibility of evidence under Rule of Evidence 702, not sufficiency. In this case, the defendant did not object to officers’ trial testimony that they found the defendant with syringes, spoons, and a rock substance that officers visually identified and twice field tested as heroin. An officer also testified without objection that when the defendant regained consciousness, she confirmed that she had ingested heroin. The Supreme Court concluded that the Court of Appeals erred by applying Ward’s high bar for the admissibility of evidence relating to the identity of a controlled substance to a motion to dismiss for insufficiency of the evidence. The court emphasized that
[F]or purposes of examining the sufficiency of the evidence to support a criminal conviction, it simply does not matter whether some or all of the evidence contained in the record should not have been admitted; instead, when evaluating the sufficiency of the evidence, all of the evidence, regardless of its admissibility, must be considered in determining the validity of the conviction in question.
The court also disapproved of language in State v. Llamas-Hernandez, 363 N.C. 8 (2009), which had suggested that expert testimony is required to establish the identity of a controlled substance in the context of a motion to dismiss.
Applying the appropriate standard of review, and assuming without deciding that some of the evidence might have been excluded if the defendant had objected to its admission, the court determined that there was ample evidence showing that the substance the defendant allegedly possessed was heroin. The court therefore reversed the Court of Appeals and remanded the case for consideration of the defendant’s remaining arguments.
Justice Earls wrote a concurring opinion questioning whether the Good Samaritan law in G.S. 90-96.2, which came into effect in 2013, placed a limit on the trial court’s jurisdiction to prosecute the defendant in this case.
The evidence presented at trial concerning defendant’s possession of goods was sufficient to support defendant’s conviction under the doctrine of recent possession.
State v. McDaniel, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 6 (2018), the Supreme Court determined that the evidence presented at trial supported the defendant’s conviction under the doctrine of recent possession. Pursuant to a tip, a detective discovered stolen property from the victim’s house at another house on nearby Ridge Street. Several days later, another detective saw the defendant across from the Ridge Street house, sitting in a white pickup truck. The truck matched the description of one that had reportedly been used to deliver the previously discovered property to the Ridge Street house, and now contained more items from the victim’s house. After the trial judge denied the defendant’s motion to dismiss for insufficiency of the evidence and instructed the jury on the doctrine of recent possession, the jury found the defendant guilty of felony breaking or entering and felony larceny for the first incident, and guilty of felony larceny for the second incident.
On appeal, the defendant argued that the evidence was insufficient to send the charges to the jury as to both her culpable possession of the items allegedly stolen in the first incident and the recency of her possession of those items. Considering the trial court ruling on a motion to dismiss de novo and with all evidentiary conflicts resolved in favor of the State, the court determined that the defendant’s acknowledgment that she had been in control of the victim’s items found at the Ridge Street house two weeks after the first incident brought her within the doctrine of recent possession. Though she claimed to have been acting at the direction of another man—a co-defendant also charged in connection with the initial offense—“exclusive possession” within the meaning of the doctrine of recent possession can, the court said, include joint possession of co-conspirators or persons acting in concert. As a result, the court concluded that there was substantial evidence of exclusive possession, and that the Court of Appeals majority erred by holding to the contrary and vacating the defendant’s convictions. The court thus reversed the decision of the Court of Appeals and remanded the case for consideration of the defendant’s remaining arguments.
Justice Earls dissented, writing that the evidence to support the defendant’s conviction was insufficient in that the defendant was never found in possession of the items allegedly stolen in the first incident. To the contrary, she only admitted to having the items at the behest of her employer (the co-defendant), and her possession was therefore not that of herself but of her employer.
An officer’s warrantless search of a USB drive was not valid under the private-search doctrine in the absence of a finding of “virtual certainty” that the device contained nothing of significance beyond what had already been discovered by a private party.
State v. Terrell, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E. 2d 719 (2018) (discussed in an earlier blog post by Shea Denning, https://nccriminallaw.sog.unc.edu/state-v-terrell-private-search-doctrine/), the Supreme Court affirmed the Court of Appeals’ decision that an officer’s warrantless search of a defendant’s USB drive following a prior search by a private individual violated the defendant’s Fourth Amendment rights. While examining a thumb drive belonging to the defendant, the defendant’s girlfriend saw an image of her 9-year-old granddaughter sleeping, exposed from the waist up. Believing the image was inappropriate, the defendant’s girlfriend contacted the sheriff’s office and gave them the thumb drive. Later, a detective conducted a warrantless search of the thumb drive to locate the image in question, during which he discovered other images of what he believed to be child pornography before he found the photograph of the granddaughter. At that point the detective applied for and obtained a warrant to search the contents of the thumb drive for “contraband images of child pornography and evidence of additional victims and crimes.” The initial warrant application relied only on information from the defendant’s girlfriend, but after the State Bureau of Investigation requested additional information, the detective included information about the images he found in his initial search of the USB drive. The SBI’s forensic examination turned up 12 images, ten of which had been deleted and archived in a way that would not have been viewable without special forensic capabilities. After he was charged with multiple sexual exploitation of a minor and peeping crimes, the defendant filed a pretrial motion to suppress all of the evidence obtained as a result of the detective’s warrantless search. The trial court denied the motion, finding that the girlfriend’s private viewing of the images frustrated the defendant’s expectation of privacy in them, and that the detective’s subsequent search therefore did not violate the Fourth Amendment. After his trial and conviction, the defendant appealed the trial court’s denial of his motion to suppress.
The Supreme Court agreed with the Court of Appeals that the girlfriend’s opening of the USB drive and viewing some of its contents did not frustrate the defendant’s privacy interest in the entire contents of the device. To the contrary, digital devices can retain massive amounts of information, organized into files that are essentially containers within containers. Because the trial court did not make findings establishing the precise scope of the girlfriend’s search, it likewise could not find that the detective had the level of “virtual certainty” contemplated by United States v. Jacobsen, 466 U.S. 109 (1984), that the device contained nothing else of significance, or that a subsequent search would not tell him anything more than he already had been told. The search therefore was not permissible under the private-search doctrine. The court affirmed the decision of the Court of Appeals and remanded the case for consideration of whether the warrant would have been supported by probable cause without the evidence obtained through the unlawful search.
Justice Newby dissented, writing that the majority’s application of the virtual certainty test needlessly eliminates the private-search doctrine for electronic storage devices unless the private searcher opens every file on the device.
The trial court committed prejudicial error in limiting the defendant’s ability to cross-examine the State’s principal witness, violating the defendant’s Sixth Amendment right to confront the witnesses against him.
State v. Bowman, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 818 S.E.2d 718 (2018), the Supreme Court held that the trial court violated the defendant’s Sixth Amendment right to confront witnesses against him. In this murder, robbery with a dangerous weapon, and possession of a firearm by a felon case, the trial judge erred by limiting the defendant’s ability to question the State’s principal witness about whether she expected to receive a favorable plea offer for drug trafficking charges pending in Guilford County in exchange for her testimony against the defendant in Forsyth County. In a voir dire hearing, the defendant showed that prosecutors in the two counties had been in touch by email and discussed a possible plea deal for the witness in Guilford based on her testimony at the defendant’s trial. By limiting the witness’s testimony about this possible deal, the trial court prohibited the jury from considering evidence that could have shown bias on the witness’s part, and thus violated the defendant’s confrontation rights. The court distinguished previous cases in which it had deemed similar errors harmless, reasoning that this involved a limit on the testimony of the State’s principal witness. Moreover there was no physical evidence linking the defendant to the crime and no other witness placing him at the scene. As a result, the court concluded that the trial judge’s error was not harmless beyond a reasonable doubt and affirmed the Court of Appeals’ decision to vacate the verdict and order a new trial.
Justice Ervin, joined by Justice Newby, dissented, writing that the trial judge allowed ample cross-examination of the witness about her pending charges in Guilford County, and that the limitations the court imposed were an appropriate exercise of its discretion to control the scope and extent of cross-examination to prevent confusion and eliminate undue repetition.
North Carolina’s satellite-based monitoring program is unconstitutional as applied to all individuals subject to mandatory lifetime SBM based solely on their status as a recidivist who have completed their prison sentences and are no longer on probation, parole, or post-release supervision.
State v. Grady, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 18 (2018), the Supreme Court affirmed the Court of Appeals’ decision finding satellite-based monitoring (SBM) to be an unreasonable and therefore unconstitutional search in the defendant’s case. The court modified the lower court decision to apply it not just to the defendant, but also to all sex offenders subject to mandatory lifetime SBM based solely on their status as recidivists who are no longer on probation, parole, or post-release supervision. In this case, the trial judge conducting the defendant’s SBM determination hearing (on remand from the Supreme Court of the United States, Grady v. North Carolina, 135 S. Ct. 1368 (2015)), considered the State’s evidence of the defendant’s prior sex crimes, the defendant’s full criminal record, copies of G.S. 14-208.5 and -208.43, photographs of the equipment the State uses to administer the SBM program, and testimony from a probation supervisor on the operation of the SBM equipment and the nature of the program. The defendant presented statistical reports, Community Corrections policy governing SBM, and an excerpt of SBM training materials for probation staff. Based on the totality of the circumstances, the trial judge entered an order concluding that SBM was a reasonable search as applied to the defendant and that the statute is facially constitutional, and ordered the defendant to enroll in SBM for life.
On appeal, the Court of Appeals concluded that although the defendant’s expectation of privacy was appreciably diminished as a sex offender, the State failed to prove that SBM was a reasonable search as applied to him under the Fourth Amendment. The State appealed as of right.
The Supreme Court declined to address the facial constitutionality of North Carolina’s SBM program in its entirety, instead addressing the program as applied to the narrower category of recidivists to which the defendant belongs. The court rejected the State’s argument that SBM was valid as a special needs search, because the State never identified any special need beyond the normal need for law enforcement, and because the defendant was no longer on probation or parole.
The court also found SBM unconstitutional under a reasonableness analysis, concluding that, given the totality of the circumstances, SBM’s intrusion into the defendant’s Fourth Amendment interests outweighed its promotion of legitimate governmental interests. As to the nature of the privacy interest, the court deemed SBM to be uniquely intrusive—presenting even greater privacy concerns than the cell-site location information at issue in Carpenter v. United States, 138 S. Ct. 2206 (2018). The court rejected the State’s arguments that felons generally and sex offenders in particular who have fully served their sentences have a diminished expectation of privacy. Regarding the character of the complained of intrusion, the court noted the absence of front-end discretion on the part of the judge who imposes SBM and the limited relief available on the back end through the Post-Release Supervision and Parole Commission, which has thus far declined all sixteen requests to terminate SBM filed under G.S. 14-208.43. Finally, as to the nature and purpose of the search, the court noted the State’s failure to provide evidence about how successfully the SBM program advances its stated purpose of protecting the public or any evidence regarding the recidivism rates of sex offenders. The court contrasted that lack of evidence with the copious evidence of student drug use the Supreme Court of the United States found critical in upholding random drug screening in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995). Balancing those factors, the court determined that the State did not meet its burden of establishing the reasonableness of SBM for recidivists who have completed their sentence. The court concluded by emphasizing the limited scope of its holding, reiterating that it does not apply to SBM enrollees in other categories (for example, those enrolled based on an aggravated offense), regardless of whether they also happen to be a recidivist, or to enrollees still on parole, post-release supervision, or probation.
Justice Newby dissented, joined by Justice Morgan, arguing that the State’s paramount interest in protecting children outweighed the intrusion into the defendant’s diminished Fourth Amendment privacy interests, and that the SBM program is thus constitutional, both facially and as applied to the defendant.
A trial court may not revoke a defendant’s probation after it has expired without making the statutorily required finding of fact that good cause exists to do so.
State v. Morgan, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 814 S.E.2d 843 (2018), the Supreme Court considered the statutory requirements for revoking probation after it has expired. In this case the defendant’s probation officer filed a violation report on May 12, 2016 alleging, among other things, that the defendant committed a new criminal offense. His probation expired on August 28, 2016, and then came on for a violation hearing in early September. The trial court revoked the defendant’s probation based on the defendant’s admission that he absconded and committed a new criminal offense. On appeal, the defendant argued that the trial court erred by revoking his probation after expiration without making a specific finding that it was doing so for good cause shown and stated as required by G.S. 15A-1344(f)(3). The Court of Appeals held, over a dissent, that under State v. Regan, 253 N.C. App. 351 (2017), no specific findings were required. The Supreme Court reversed, concluding that the plain language of the statute does require a finding of good cause—just as former G.S. 15A-1344(f)(2) required a finding that the State had made a “reasonable effort” to notify a probationer and conduct a violation hearing earlier to give a court jurisdiction to act on a case after probation expired. See State v. Bryant, 361 N.C. 100 (2006). The court remanded the case to the trial court to make a determination of whether good cause existed to revoke the defendant’s probation after it had already expired and, if so, to make an appropriate finding of fact.
The trial courts lacked probable cause to issue search warrants for both the defendant’s residence and vehicle when the officer omitted key facts from the search warrant application.
State v. Lewis, ___ N.C. ___, ___ S.E.2d ___ (Aug. 16, 2019). On discretionary review of a consolidated appeal from two decisions of the Court of Appeals, ___ N.C. App. ___, 816 S.E.2d 212 (2018), and ___ N.C. App. ___, 812 S.E.2d 730 (2018) (unpublished), the Supreme Court affirmed in part and reversed in part the decisions of the Court of Appeals. A sheriff’s deputy arrested Robert Lewis, who had been recognized as the possible perpetrator of a string of bank robberies committed over two months. After arresting the defendant, an officer observed in plain sight a BB&T money bag on the floor of a Kia Optima that matched the description of a vehicle reportedly used to flee the scene of one of the robberies. The officer also spoke with the defendant’s stepfather, who confirmed that the defendant lived at the residence. A detective prepared a search warrant application seeking permission to search the residence where the defendant was arrested, the Kia, and another vehicle reportedly used to flee a different robbery. The affidavit accompanying the search warrant application failed to disclose several pieces of information, including that the defendant lived at the residence to be searched, that the first detective had seen the Kia parked in front of the residence, and that the Kia contained the incriminating money bag. A magistrate nonetheless issued the warrant, which led to the seizure of more evidence linking the defendant to the robberies. After the defendant was indicted on multiple counts of armed robbery, kidnapping, and common law robbery, he filed motions to suppress, arguing that there was an insufficient connection between the items sought and the property to be searched, and that the search of the Kia was not permissible under the plain view doctrine. The trial court denied the motion. The defendant pled guilty, preserving his right to appeal the denial of his motion to suppress, which he did. The Court of Appeals deemed the detective’s warrant application sufficient to establish probable cause to search the cars but insufficient to establish probable cause to search the dwelling because the supporting affidavit failed to state that the defendant resided there.
The Supreme Court granted the parties’ petitions for discretionary review. As for the warrant to search the residence, though much of the information in the affidavit linked the defendant to the robberies, it failed to set forth the circumstances of the defendant’s arrest at this particular address, including how the detective initially obtained the address from officers in Johnston County, and how the defendant’s stepfather had confirmed where the defendant resided. Absent information linking the defendant to the residence, the magistrate lacked probable cause to issue a warrant to search it, and so the court affirmed the Court of Appeals’ ruling that the defendant’s motion to suppress should have been allowed. Regarding the search of the Kia, the court concluded that the limited information actually set out in the affidavit failed to establish probable cause for the search. As a result, the court reversed the portion of the Court of Appeals’ decision concluding that there was probable cause and remanded the case for consideration of the trial judge’s alternative finding that the vehicle search was valid under the plain view doctrine.
Justice Morgan, joined by Justice Newby, dissented in part, writing that he would have found probable cause for the search of the car based on the totality of the information contained in the search warrant application.