This post summarizes an opinion issued by the Supreme Court of the United States on April 20, 2020, and opinions issued by the Court of Appeals of North Carolina on April 21, 2020.
The Sixth Amendment establishes a right to a unanimous jury verdict that applies to the state courts.
Ramos v. Louisiana, ___ U.S. ___ (2019). The Supreme Court reversed a Louisiana state court and held that the Sixth Amendment gives defendants a right to a unanimous jury verdict that applies to the states. The defendant was convicted of murder in 2016 based on a 10–2 jury verdict, which was a sufficient basis for conviction under then-existing Louisiana state law. (Oregon is the only other state that allows convictions based on nonunanimous verdicts.) Justice Gorsuch wrote a majority opinion joined in full by Justices Ginsburg and Breyer and in part by Justices Sotomayor and Kavanaugh, concluding based on the historical context in which the Sixth Amendment was adopted that the entitlement to an impartial jury included the right, applicable in both the federal courts and the state courts, to a unanimous jury to be convicted. The Court disclaimed the precedential value of Apodaca v. Oregon, 406 U.S. 404 (1972), a case in which a four-Justice plurality plus a lone Justice resolving the case on other grounds upheld an Oregon conviction that was based on a nonunanimous verdict. Justice Sotomayor wrote a concurring opinion saying that Apodaca must be overruled, not only because of its dubious reasoning, but also because of the racially discriminatory origins of the Louisiana and Oregon laws the case upheld. Justice Kavanaugh likewise wrote separately to concur and to share more extended thoughts on the application of stare decisis in this case. Justice Thomas concurred in the judgment, noting his agreement that the requirement for a unanimous jury verdict applies to the states, but under his own view that it applies through the Fourteenth Amendment Privileges or Immunities Clause, not the Due Process Clause. Justice Alito wrote a dissent, joined by Chief Justice Roberts and joined in part by Justice Kagan, arguing that the lower court should have been affirmed under Apodaca.
Though a defendant who pled guilty may seek post-conviction DNA testing under G.S. 15A-269, the defendant failed to establish that the testing results would be material to his defense.
State v. Alexander, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). In 1992, the defendant pled guilty to second-degree murder for the killing of a gas station attendant during a robbery. In 2016, after learning that an informant implicated another person in the crime, the defendant filed a motion to test the DNA and fingerprints on evidence found at the scene. The trial court denied the motion and the defendant appealed. The Court of Appeals affirmed. As a threshold matter the court said that the defendant was not barred from seeking testing under G.S. 15A-269 because he pled guilty. It rejected the State’s argument that the statute’s reference to the defendant’s “defense” and the requirement for a “verdict” meant that the law only applied to defendants found guilty after a trial. On the merits, though, the court concluded that the defendant failed to meet his burden of showing that the results of the requested testing would be material to his defense. With the “high bar” required to establish materiality after a guilty plea, even the presence of another’s DNA on the evidence would not necessarily exclude the defendant’s involvement in the crime in light of the substantial evidence of his guilt. A judge concurring in the result would have concluded that the Supreme Court’s decision in State v. Sayre, 255 N.C. App. 215 (2017), aff’d per curiam, 371 N.C. 468 (2018), bars a defendant who pled guilty from post-conviction DNA testing under G.S. 15A-269.
A probation condition requiring the defendant to comply with drug treatment recommended as a result of an evaluation by TASC was proper under G.S. 15A-1343(b1)(10).
State v. Chadwick, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). The defendant was convicted and placed on probation for several crimes, including drug-related crimes. The trial judge ordered as a special condition of probation that the defendant “[r]eport for initial evaluation by TASC” and “participate in all further evaluation, counseling, treatment, or education programs recommended as a result of that evaluation.” The Court of Appeals upheld the condition, rejecting the defendant’s argument that it was an improper delegation of the trial court’s authority to require participation in treatment dictated by the TASC evaluation and not specifically ordered by the court. The appellate court concluded that the condition was reasonably related to his drug-related conviction and his rehabilitation, and therefore proper as a discretionary condition under G.S. 15A-1343(b1)(10).
In the absence of conflicting evidence on an essential element, the trial court did not commit plain error by not instructing on a lesser-included offense.
State v. Coleman, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). The defendant was convicted of trafficking in opium among other crimes. He argued on appeal that the trial court committed plain error when, despite the lack of a request by the defendant, it failed to instruct the jury on the lesser-included offense of selling hydrocodone. The Court of Appeals found no error. The court applied the rule that the trial judge should instruct the jury on any lesser included offense supported by any version of the evidence when there is conflicting evidence on an essential element of the charged. Here, there was no conflicting evidence. An analyst testified that the total weight of the drug tablets sold by the defendant was over 8 grams, while another witness testified that the defendant sold twenty “10-milligram hydrocodone” pills. The testimony was not conflicting, however, because only the total weight of the pill mixture mattered in establishing the elements of the charged offense. In the absence of conflicting evidence, the trial judge did not err by not instructing on a lesser-included offense.
(1) The trial court did not err by denying the defendant’s petition for writ of certiorari; (2) The defendant’s writ of mandamus was an improper substitute for appeal, and filed in the wrong court.
State v. Diaz-Tomas, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). In 2015, the defendant was charged with impaired driving and driving without an operator’s license. He failed to appear on the charges in 2016, which prompted the district court to issue an order for arrest and the State to dismiss the case with leave. In 2018 the defendant was arrested on the OFA, ordered to appear, and then arrested again for once more failing to appear. In January 2019 he filed a motion in district court seeking to reinstate the charges that had been dismissed with leave, which the district court denied. In July 2019, the defendant filed a petition for writ of certiorari in superior court, seeking review of the district court’s denial of his motion to reinstate the charges. The superior court denied the petition, leading the defendant to file a petition for writ of certiorari in the Court of Appeals. The Court of Appeals concluded that the superior court did not err by denying the petition. Certiorari is a discretionary writ, and the defendant did not show that the superior court’s decision was unsupported by reason or otherwise entirely arbitrary.
(2) The defendant also filed two other petitions in the Court of Appeals: a writ of mandamus seeking to compel the district court to grant his motion to reinstate the charges, and a motion asking the court to take judicial notice of the Wake County Local Judicial Rules. As to the writ of mandamus, the Court of Appeals concluded over a dissent that it was improper for two reasons—first, that it was being used as a substitute for an appeal or certiorari, and second that it should have been filed in superior court, not the appellate division. As to the motion to take judicial notice, the court did not need to resolve it to decide the case. Finally, the Court of Appeals declined to consider the defendant’s argument that the district court erred by denying his motion to reinstate charges, unanimously concluding that the issue was not properly before the court.
A judge dissenting in part included additional facts about the procedural history of the case. After the defendant’s initial failures to appear, he did appear when his case was calendared as an “add-on” case in December 2018, but the State declined to reinstate the charges. The dissenting judge agreed with the majority that mandamus was not the proper remedy, but she would have concluded that the superior abused its discretion by denying the petition for writ of certiorari. In the absence of an order from superior court revealing the basis for its rationale in denying the petition, and in light of the defendant’s allegations, which she described as “cogent” and “well-supported,” she would have remanded the case for a hearing and decision on the merits.
(1) The trial court retained jurisdiction to amend a sentence until the time for notice of appeal expires; (2) Amendment of a drug trafficking sentence to include the maximum term that corresponds to the mandatory minimum sentence was a clerical correction that the trial court could make outside of the defendant’s presence.
State v. Lebeau, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). (1) When the defendant was convicted of drug trafficking, the sentence initially announced by the trial judge was “a mandatory 70 months” of active imprisonment. The following Monday (five days later), without the defendant being present, the court entered an amended judgment stating both the minimum and maximum sentence: 70 to 93 months. The defendant argued on appeal that the trial court lacked jurisdiction to amend the sentence when it did because the defendant had already appealed by that point. The Court of Appeals disagreed, concluding that, under G.S. 15A-1448(a)(3), the jurisdiction of the trial court is divested when notice of appeal has been given and the time for giving notice of appeal has expired. For an appeal to the appellate division, that time period is 14 days. N.C. R. App. P. 4(a)(2). Because only 5 days had passed at the time of change, the time for appeal had not expired, and the trial court therefore retained jurisdiction. (2) The defendant argued in the alternative that amending the judgment in her absence deprived her of her right to be present at sentencing. The appellate court again disagreed, concluding that the amended judgment did not amount to a “substantive change” to the original sentence. Because the 93-month maximum that accompanies a 70-month minimum is statutorily required under G.S. 90-95(h)(4), it was not the product of judicial discretion. The record showed that the trial court understood from the outset that the sentence was statutorily mandatory, and the amendment was therefore clerical in nature and not a substantive change.
Failure to appoint counsel or secure a valid waiver of counsel for more than a year after the defendant was charged violated the defendant’s Sixth Amendment right to counsel.
State v. Lindsey, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). In March 2018 the defendant was charged with multiple crimes after breaking into a gas station. In August 2018, the trial court first addressed the defendant’s right to counsel. The defendant said that he did not want a lawyer, but then, when asked by the judge, “You’re not just waiving court appointed counsel, you’re waiving all counsel; is that correct?,” the defendant replied that he was “simply waiving court appointed counsel.” The defendant signed a waiver of counsel form, checking only box one, waiving his right to assigned counsel. The trial judge appointed standby counsel. The defendant argued several preliminary motions without the assistance of counsel between August 2018 and when his case came on for trial in March 2019. At that point, a different judge presiding over the trial noticed that the defendant had waived court-appointed counsel but not all counsel. After a full colloquy with the judge, the defendant checked box 2 on a new form, waiving his right to all assistance of counsel. The defendant was convicted and sentenced.
On appeal, the defendant argued that the trial court erred by failing to appoint counsel or secure a valid waiver of counsel until more than a year after the defendant’s initial arrest. Over a dissent, the Court of Appeals agreed with him and ordered a new trial. The majority first established that the issue was properly preserved for appellate review, noting that prejudicial violations of a statutory mandate (here G.S. 15A-1242) are preserved for appeal notwithstanding the defendant’s failure to object at trial, and the Supreme Court of North Carolina has recently reviewed unobjected-to Sixth Amendment denial of counsel claims. The court then concluded that the trial court erred by allowing the defendant to proceed unrepresented without first obtaining a proper waiver of all counsel after a proper inquiry under G.S. 15A-1242. The August 2018 colloquy was flawed to the extent that the trial court did not ask whether the defendant understood and appreciated the consequences of his decision to proceed without representation, and in any event resulted only in a waiver of assigned counsel. The State failed to establish that the defendant’s self-representation through the pretrial period from August 2018 until the proper waiver colloquy in March 2019 was harmless beyond a reasonable doubt—which the court noted would have been difficult even if the State had tried, given the many issues addressed during the uncounseled period (possible plea negotiations, discovery, and evidentiary issues).
A dissenting judge would have concluded that the defendant failed to preserve the issue for appellate review.
(1) Trial evidence did not support the charge of displaying an expired registration plate; (2) The propriety of a jury instruction was not properly before the Court of Appeals; (3) The defendant’s sentence to probation was improper when a fine only sentence was required.
State v. Money, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). The defendant was charged with driving while license revoked, operating a motor vehicle without displaying a current approved inspection certificate (G.S. 20-183.8(a)(1)), and displaying an expired registration plate (G.S. 20-111(2)) after being pulled over for driving his truck without a license plate. He was convicted of all three offenses, first in district court and then by a jury in superior court. (1) On appeal, the State conceded and the Court of Appeals agreed that the trial court erred by denying the defendant’s motion to dismiss the charge of displaying an expired registration plate. The defendant’s truck had no plate whatsoever, and so he was not displaying an expired one. (The court noted that the evidence would have supported a conviction under G.S. 20-111(1), driving without a current registration plate.) (2) As to the inspection certificate infraction, the defendant argued that there was insufficient evidence to support his conviction when the jury was instructed on a theory of guilt—here, display of an expired inspection certificate—that did not apply in his case when, again, he did not display any certificate. The Court of Appeals disagreed, concluding that display of an expired inspection is not one of multiple theories of guilt for this offense. As such, the jury instruction referencing display was erroneous, but the defendant did not object on that basis, and the issue was therefore not properly before the appellate court. (3) Finally, the State conceded and the Court of Appeals agreed that the defendant’s sentence was erroneous. Despite being Prior Conviction Level I with no prior convictions, the defendant received a 10-day suspended sentence with probation for this Class 3 misdemeanor. Under G.S. 15A-1340.23(d), unless otherwise provided for a specific offense, a Class 3 misdemeanor sentence for a defendant with no more than three prior convictions may consist of a fine only. The appellate court remanded for resentencing.
(1) The State is not required to file a superseding information before trial in order to retain the trial court’s subject matter jurisdiction; (2) The trial court did not commit plain error by failing to give a guilty knowledge instruction when the defendant’s defense was that the drugs belonged to someone else.
State v. Stallings, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). (1) The defendant was indicted for trafficking in MDMA, among other charges. When the case came on for trial, the trial judge called in prospective jurors and questioned them about undue hardships and conflicts with the parties and informed them of the charges against the defendant. The prosecutor then requested a bench conference at which he pointed out that the substance in the lab report showed that the relevant substance was methamphetamine, not MDMA. The prosecutor gave the defendant the choice between having the State dismiss the MDMA charge and reindict for trafficking in methamphetamine, or waiving indictment and proceeding by bill of information. The defendant chose the latter and was convicted at trial. On appeal, the defendant argued that the trial court lacked subject matter jurisdiction because the State did not file the superseding information “before . . . commencement of trial” within the meaning of G.S. 15A-646. The Court of Appeals disagreed, concluding that G.S. 15A-646 does not place any timing deadline on the State, but rather merely imposes a ministerial duty on the judge to dismiss the initial charge if a superseding indictment or information is filed before trial. The appellate court also rejected the defendant’s argument that the trial court lacked subject matter jurisdiction because the defendant was not formally arraigned on the new charge, as the lack of formal arraignment is not revisable error when the defendant does not object and assert inadequate knowledge of the charge. (2) The defendant also argued that the trial court committed plain error by failing, despite the lack of a request or objection, to instruct the jury on the requirement that the defendant have guilty knowledge of the methamphetamine. The Court of Appeals rejected the argument, distinguishing an earlier case, State v. Coleman, 227 N.C. App. 354 (2013). In Coleman, the court found plain error when the trial court failed to instruct on guilty knowledge for a defendant convicted of trafficking heroin who knew he possessed drugs, but who thought he had marijuana and cocaine, not heroin. Here, the defendant denied any knowledge about the existence of the methamphetamine and argued that it belonged to someone else. Even assuming the trial court erred by not giving the instruction, the Court of Appeals concluded it would not rise to the level of plain error given the evidence against the defendant.
(1) The defendant waived his right to severance when he did not file a motion to sever; (2) The admission of lay witness testimony on the defendant’s mental state was not reversible error; (3) The State presented sufficient evidence that the defendant attempted to kill the victim with premeditation and deliberation; (4) The trial court’s instruction on the malice element of attempted first-degree murder was not reversible error in light of the defendant’s use of a deadly weapon and the related circumstances; (5) The defendant was not entitled to a self-defense instruction.
State v. Yarborough, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 21, 2020). (1) The defendant was convicted after a jury trial of first-degree murder, attempted first-degree murder, and other serious felony charges after he shot and killed his former girlfriend and then pistol-whipped and fired a gun at another woman, a registered nurse. On appeal he argued that the that the trial court erred by joining the charges for trial. The defendant had objected to the State’s motion for joinder, but he never filed a motion to sever charges as provided in G.S. 15A-927. The Court of Appeals concluded that the defendant waived the issue, declined to review the issue in its discretion under Rule 2 of the Rules of Appellate Procedure, and further declined to consider whether he received ineffective assistance of counsel for his trial lawyer’s failure to file a motion to sever charges. The Court of Appeals deemed the latter issue more appropriate for a motion for appropriate relief filed in the trial court, and so dismissed that claim without prejudice.
(2) The defendant also argued that the trial court erred by allowing lay testimony on the defendant’s mental capacity from his second victim, a registered nurse. She answered questions from the State on how the defendant compared to “psych patients” she had dealt with, on whether the defendant was able to process his thoughts, and on whether he was in touch with reality. Though a lay witness may not offer a specific psychiatric diagnosis, the Court of Appeals—reviewing the issue for abuse of discretion—concluded in light of the evidence against the defendant that there was no reasonable possibility that the result of his trial would have been different if the trial court had excluded the testimony.
(3) Next, in light of the facts of the case, the Court of Appeals rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the attempted first-degree murder charge for insufficiency of the evidence that he acted with premeditation and deliberation. The State proved, among other things, that the defendant said he would kill her and that he shot the door near the doorknob four to six times before kicking the door and yelling, which the court deemed sufficient evidence for the jury to reasonably conclude that the defendant attempted to kill the victim with premeditation and deliberation.
(4) The appellate court also concluded that the defendant could not demonstrate prejudicial error resulting from the trial court’s deadly weapon malice instruction. The defendant argued that the instruction could have been misleading to the extent that it allowed an inference of malice on the attempted murder charge for shooting at the victim based on the injury resulting from a different crime, the pistol-whipping. Based on the defendant’s use of a weapon and the related circumstances, the court was unpersuaded that the jury would have reached a different result without the instruction.
(5) Finally, the court rejected the defendant’s argument that the trial court erred by failing to give a self-defense instruction despite the defendant’s request for instructions on both perfect and imperfect self-defense. The defendant’s testimony that he did not recall shooting the first victim and his expert’s testimony that he acted involuntarily defeated his self-defense argument.