Case Summaries – North Carolina Court of Appeals (June 16, 2020)

This post summarizes published criminal cases issued by the North Carolina Court of Appeals on June 16, 2020.

As always, these summaries will be added to Smith’s Criminal Case Compendium, a free, searchable database of case annotations from 2008 to today.

Thanks to Chris Tyner for preparing the majority of these summaries.

(1) Error, but no prejudice, in admitting field test results on suspected cocaine in assault and attempted robbery case; (2) Defendant waived variance issue with habitual felon indictment.

State v. Cobb, __ N.C. App. __, __ S.E.2d __ (June 16, 2020)

An officer initiated a voluntary encounter with the defendant sitting in the driver’s seat of a parked car. The officer detected a marijuana odor, and the defendant admitted he was smoking a blunt and handed it to the officer. Once backup arrived, the officer asked the defendant to step out of the car and searched him incident to arrest. Upon discovering a “wad of money” totaling thousands of dollars and asking defendant about it, the defendant fled on foot. During the resulting pursuit and takedown, the defendant attempted to take the officer’s firearm and also placed a bag of white powder in his mouth. Believing the defendant was destroying evidence and putting himself at risk, the officer forcibly removed the bag from the defendant’s mouth. The defendant resisted and bit the officer’s finger hard enough to break the skin. The powder later field-tested positive for cocaine. At the defendant’s subsequent trial for assault inflicting serious injury on an officer and attempted common law robbery, testimony about the bag of white powder and the positive field test was admitted. The defendant was convicted of lesser charges, and pleaded guilty to attaining habitual felon status.

The appellate court held that admission of evidence about the field test result was error. The test result was irrelevant since the test was conducted after the assault and attempted robbery were over, and defendant was not charged with any controlled substance offenses. Testimony about the officer’s belief that the powder was cocaine was relevant to explain why the officer believed it was necessary to remove the bag from the defendant’s mouth, but the confirmatory test had no relevance to establishing any of the elements of the charged offenses. However, the error was not prejudicial in light of all the other evidence of defendant’s guilt as to the charged offenses.

Defendant’s remaining argument, alleging a fatal variance in the habitual felon indictment, was waived since the defendant pleaded guilty. The error, which incorrectly listed one of the defendant’s convictions as occurring in superior court rather than district court, did not constitute an exceptional circumstance that warranted allowing discretionary review under Rule 2.

The state presented sufficient evidence of first-degree kidnapping based upon the defendant terrorizing the victim and also presented sufficient evidence of misdemeanor assault with a deadly weapon.

State v. English, ___ N.C. App. ___, ___ S.E.2d ___ (June 16, 2020)

In this case involving convictions for first-degree kidnapping and misdemeanor assault with a deadly weapon, among other offenses, the state presented sufficient evidence of the offenses and the trial court did not err by denying the defendant’s motion to dismiss on that basis.  With regard to the kidnapping conviction, the defendant argued that the state failed to present substantial evidence the defendant’s purpose was to terrorize the victim.  Recounting evidence that the defendant hid in the backseat of the victim’s car holding a knife while he waited for her to get off work, forced her to remain in the car and drive by choking her and threatening her with the knife, and forcefully struck her on the head when she attempted to scream for help, the court rejected this argument and bolstered its position by describing her frantic efforts to escape.

The court also found sufficient evidence of misdemeanor assault with a deadly weapon under both the show of violence theory of assault and the act or attempt to do injury to another theory of assault.  The State’s evidence tended to show that after two men scuffled with the defendant in an attempt to aid the victim, the defendant jumped into the driver’s seat of the victim’s car and attempted to run the men over and nearly did so.  This was sufficient evidence of assault under either theory.

Court order for historical cell-site location information was equivalent to a search warrant, so the defendant’s rights under the state constitution were not violated by an unreasonable search and seizure; good faith exception applied to defendant’s rights under the federal constitution.

State v. Gore, __ N.C. App. __, __ S.E.2d __ (June 16, 2020)

The defendant in this case pleaded guilty to manslaughter and armed robbery, while preserving his right to appeal the denial of his motion to suppress historical cell site location information (“CSLI”) that the state obtained without a search warrant. Evidence at the suppression hearing showed that police responded to a homicide and learned that a white Altima was seen leaving the scene. Officers soon located and boxed in the car but the driver fled on foot, discarding a bloody handgun as he ran. Inside the car officers found drugs, a gun, and a blood-covered cell phone belonging to the defendant. Officers applied for a court order to obtain the records of the phone, including five days of CSLI from around the time of the homicide. The application was sworn under oath and supported by affidavit, and the order was issued based on a finding of probable cause. The phone records revealed the defendant was in the area of the shooting at the time it occurred, and near the location of the white Altima when it was abandoned. The defendant moved to suppress the records on the basis that they were not obtained pursuant to a search warrant based on probable cause, violating his state and federal constitutional rights. The trial court denied the motion, finding that the court order in this case was the equivalent of a search warrant supported by probable cause. Upon review, the Court of Appeals affirmed the trial court’s ruling.

The court first addressed defendant’s federal constitutional claim. Citing Carpenter v. United States, 201 L.Ed.2d 507 (2018), the appellate court agreed that obtaining historical CSLI constituted a search, which requires a warrant supported by probable cause. A court order issued pursuant to the Stored Communications Act (“SCA”) based only on “reasonable grounds” to believe the records would be “relevant and material” to the investigation would not satisfy that standard. However, the order in this case was obtained two years before Carpenter was decided, and it was issued in compliance with the law at that time. Therefore, as in Carpenter, “even assuming law enforcement did conduct a warrantless search in violation of defendant’s Fourth Amendment rights, the federal good faith exception to the exclusionary rule would apply.”

Turning to the state constitutional claim, and noting that the state right at issue must be interpreted at least as broadly as the federal right, the court held that “a warrantless search of historical CSLI constitutes an unreasonable search in violation of a defendant’s rights under the North Carolina Constitution as well.” But after reviewing the statutory requirements for a search warrant and the probable cause standard, the court concluded that the order in this case did satisfy the warrant requirement. First, although it was denominated a court order rather than a warrant, it nevertheless “contained all of the information required in a search warrant” such as the applicant’s name, sworn allegations of fact to support the applicant’s belief, and a request to produce the records. Second, although a court order issued under the SCA is only required to meet a “reasonable grounds” standard akin to reasonable suspicion, the order in this case was actually based upon a finding that there was “Probable Cause that the information sought is relevant and material to an ongoing criminal investigation, involving a First Degree Murder.” That finding of probable cause was “a significant distinction which compels a different outcome than that of Carpenter. Accordingly, because the trial court determined there was probable cause to search defendant’s historical CSLI, the requirements for a warrant were met and defendant’s constitutional rights were not violated.” Since it held that the warrant requirement was met, the majority declined to address whether a good faith exception could have applied under state law.

In a partial concurrence, Judge Dillon disagreed with the majority’s holding that the court order in this case was the equivalent of a search warrant. In his view, the application failed to provide a sufficient basis for finding probable cause to believe that evidence of a crime would be discovered in the particular place to be searched. However, he concurred in the result on the grounds that both the federal and state constitutional claims were refuted by the good faith exception. He would have held that North Carolina does have a good faith exception, pursuant to the 2011 amendment to G.S. 15A-974, which provides legislative authority for the exception that was lacking when State v. Carter, 322 N.C. 709 (1988) was decided. Alternatively, pursuant to state case law, he would have held that obtaining historical CSLI did not constitute a “search” for state constitutional purposes.

Defendant’s waiver of his right to a jury trial was sufficient and defendant suffered no prejudice, despite trial court’s failure to fully comply with statutory procedures for taking waiver.

State v. Hamer, __ N.C. App. __, __ S.E.2d __ (June 16, 2020)

The defendant was convicted in district court of a Class III misdemeanor for speeding 94 mph in a 65 mph zone. The defendant filed a pro se appeal for trial de novo in superior court, which the trial court treated as a petition for writ of certiorari and allowed. It was “unclear how Defendant first provided notice of his intent to waive his right to a jury trial” in superior court, as required by G.S. 15A-1201(c), but it was “evident […] that all parties were aware of Defendant’s intent, as this was the initial matter raised before trial.” The trial judge confirmed that the defendant wished to waive his right to a jury trial, with no objection by the state, and a bench trial commenced. After the state rested, the trial judge noted that he was also statutorily required to personally address the defendant and confirm that he understands his right to a jury trial and wishes to waive it, in accordance with G.S. 15A-1201(d). The judge engaged in a brief colloquy with the defendant, who stated he understood and consented. The trial then resumed, and the defendant was convicted of the misdemeanor offense.

On appeal, defendant argued that he was prejudiced by the trial court’s failure to fully comply with G.S. 15A-1201, the statute implementing the constitutional amendment that allows a defendant to waive the right to a jury trial. In particular, the trial court failed to comply with subsection (d), which requires the judge to personally address the defendant about the waiver, determine whether the state objects, and consider all arguments of the parties before trial commences. The appellate court agreed that the trial judge erred regarding this portion of the statute, but ultimately held that the subsequent colloquy with the defendant, “although untimely,” still “satisfied the procedural requirements of subsection (d)(1).” Additionally, the defendant failed to show any prejudice resulting from the error. Considering the strong evidence against the defendant, the defendant did not establish a reasonable possibility that a different result would have been reached without the error. Therefore, the trial court’s judgment was affirmed.

Chief Judge McGee dissented, noting the importance of establishing precedent for jury trial waivers in future cases. She would have held that “the relevant requirements set forth in N.C.G.S. § 15A-1201 (2019) are incorporated into the constitutional mandates of N.C. Const. art. I, § 24” and “[n]othing in art. I, § 24 suggests any of the material requirements included may be waived or that violations may be subjected to regular harmless error review.” The violation of the defendant’s constitutional right to a jury trial was structural error, and the conviction should therefore be reversed.

Imposition of lifetime SBM was an unreasonable warrantless search in violation of the Fourth Amendment.

State v. Hutchins, ___ N.C. App. ___, ___ S.E.2d ___ (June 16, 2020)

In this rape and sex offense case, the Court of Appeals reversed the trial court’s order imposing lifetime SBM.  First addressing its appellate jurisdiction, the court explained that it allowed the defendant’s petition for writ of certiorari in its discretion, notwithstanding procedural defects in his notice of appeal, because of the “meritorious nature” of the defendant’s argument regarding SBM and the current “tumultuous” state of the law.  Before turning to the merits of the SBM issue, the court also dismissed a portion of the defendant’s appeal having to do with attorney’s fees because an order for those fees had not been entered as a civil judgment.

As the defendant was not a recidivist and, consequently, the order requiring lifetime SBM was not facially unconstitutional under State v. Grady, 259 N.C. App. 664 (2018) (“Grady III”), the court conducted a reasonableness analysis guided by the principles of Grady III, namely that it is the State’s burden to show that under the totality of the circumstances lifetime SBM is reasonable because its intrusion upon Fourth Amendment interests is balanced by its promotion of legitimate government interests.  As to the intrusion side of the analysis, the court likened this case to State v. Gordon, ___ N.C. App. ___, 840 S.E.2d 907 (2020) where it explained that the State’s ability to show the reasonableness of lifetime SBM is hampered in situations where it is imposed at sentencing but will not be implemented upon the defendant until he or she is released after a lengthy prison sentence.  The court also noted the deeply intrusive nature of the ET-1 monitoring device at issue and the fact that the defendant’s privacy interests will be less diminished following his completion of PRS.  As to the State’s interest in SBM and its efficacy, the court rejected the State’s argument that SBM would discourage recidivism, saying that the state had not presented evidence to support that assertion, either generally or with respect to the defendant specifically.  The court also rejected the State’s argument that lifetime SBM would serve the purpose of keeping the defendant out of “exclusion zones,” noting that his status as a registered sex offender already barred him from many such zones and that his offense involved an adult roommate.  For a lack of evidence, the court also rejected the argument that lifetime SBM would ensure that he abided by an order to have no contact with the victim.  Under the totality of the circumstances, the state did not show that lifetime SBM was a reasonable warrantless search in this case.

The trial court did not err by denying the defendant’s motion for a continuance to review rebuttal evidence that the state announced its intention to use on the day before trial.

State v. Johnson, ___ N.C. App. ___, ___ S.E.2d ___ (June 16, 2020)

In this felony murder  and armed robbery case, the trial court did not err by denying the defendant’s motion for a continuance to allow time to review evidence that the state intended to introduce to rebut the defendant’s expert testimony that he acted with diminished capacity, or in the alternative to not allow the state to introduce that rebuttal evidence.  The defendant made this motion on the first day of trial, one day after being informed of the state’s intent to use the rebuttal evidence, which consisted of jailhouse call recordings made around the time that he first met with his expert and which the state contended showed that he did not display signs of diminished capacity.

The defendant was sentenced to life imprisonment for felony murder based on the jury’s finding that his killing of a store clerk was associated with the defendant’s commission of the felony of assault with a firearm on a law enforcement officer as the defendant left the scene of the crime.  Citing precedent establishing that diminished capacity is not a defense to a felony murder conviction based on that underlying general intent felony, the court found that any error by the trial court in denying the continuance was non-prejudicial as the expert testimony was not relevant to that conviction.

The jury also convicted the defendant of armed robbery and the trial court sentenced him to a term of imprisonment to run consecutively to his life sentence for felony murder.  Because armed robbery is a specific intent crime, the expert testimony on diminished capacity was relevant to the armed robbery conviction.  The State’s jailhouse recording rebuttal evidence went to the issue of the defendant’s mental ability around the time he met with his expert and generally showed that he was capable of making plans and adding up money.  Reviewing whether the denial of the motion deprived the defendant of his constitutional right to present a defense, the court noted that defense counsel knew of the existence of the recordings for “quite a while” before trial but did not request them and, largely because the recordings did not contradict the expert’s testimony, determined that the defendant was not prejudiced by the denial of his motion for a continuance.

Judge Stroud dissented, expressing the view that the trial court’s denial of the continuance erroneously denied the defendant his right to effective assistance of counsel because of defense counsel’s inability due to time constraints to review the jailhouse call recordings or prepare for their use at trial.  In Judge Stroud’s view, because the trial court’s error amounted to a violation of the defendant’s constitutional rights, it was presumptively prejudicial unless the state showed it was harmless beyond a reasonable doubt, a burden that the state did not meet.

The trial court’s order setting aside a bond forfeiture failed to identify a permissible ground for the set aside.

State v. Smith, ___ N.C. App. ___, ___ S.E.2d ___ (June 16, 2020)

Because the trial court’s order setting aside a bond forfeiture failed to make material findings of fact, conclusions of law, or any ruling as to whether a bail agent’s motion to set aside the forfeiture should be considered and set aside under G.S. 15A-544.5(b)(7), rather than under subsection (b)(6), the court vacated the order and remanded for entry of a new order addressing this issue.  On 31 October 2018 the defendant failed to appear in Cumberland County Superior Court on two criminal charges.  It was undisputed that the defendant was in federal custody in Virginia on that date.  After a Bond Forfeiture Notice was issued, the bail agent filed a motion to set aside the forfeiture and checked Box 6 on AOC-CR-213, which corresponds to G.S. 15A-544.5(b)(6), indicating that the basis for the motion was that the defendant was incarcerated within the borders of North Carolina.  As developed at a hearing on the motion, it appeared that the bail agent meant to check Box 7 of AOC-CR-213, which corresponds to G.S. 15A-544.5(b)(7) (generally providing as a basis for a motion to set aside that the defendant was incarcerated anywhere within the borders of the United States).  It also appeared that the trial court may have intended to treat the motion as one under subsection (b)(7) and to grant relief under that subsection.  The order drafted by the school board’s attorney and signed by the trial court did not reflect this apparent intent.  As entered, the order failed to identify a permissible ground for setting aside the bond forfeiture under G.S. 15A-544.5(b) and the court vacated the order for that reason and remanded for additional findings and a determination on the subsection (b)(7) issue.

(1) There was insufficient evidence that an air pistol and a pellet rifle were dangerous weapons for purposes of attempted armed robbery; (2) Any impermissible expression of opinion by the trial court did not prejudice the defendant; (3) The trial court erred by accepting the defendant’s stipulation to attaining habitual felon status without conducting a colloquy.

State v. Williamson, ___ N.C. App. ___, ___ S.E.2d ___ (June 16, 2020)

In this robbery case where the defendant was punished as a habitual felon, (1) the defendant failed to preserve a fatal variance argument; (2) there was insufficient evidence of attempted armed robbery; (3) assuming without deciding that the trial court expressed its opinion in violation of G.S. 15A-1222, the defendant was not prejudiced; and (4) the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status.

Noting that a defendant must specifically state at trial that a fatal variance is the basis for a motion to dismiss in order to preserve that argument for appellate review, the court found that the defendant waived his variance argument by basing his motion to dismiss solely on insufficiency of the evidence.

With regard to insufficiency of the evidence of attempted armed robbery, the defendant argued that there was insufficient evidence of the use of a dangerous weapon.  The defendant had threatened an associate with a pistol and rifle that appeared to be firearms but turned out to be an air pistol and a pellet rifle.  Reviewing the rules from State v. Allen, 317 N.C. 119 (1986) and related cases about sufficiency of the evidence in situations involving instruments that appear to be but may not in fact be dangerous weapons, the court said that because the evidence was conclusive that the pistol and rifle were not firearms, the state was required to introduce evidence of the weapons’ “capability to inflict death or great bodily injury” to merit submission of the attempted armed robbery charge to the jury.  As no such evidence was introduced, the trial court erred in denying the defendant’s motion to dismiss for insufficient evidence.

During the testimony of a defense witness, the trial court interjected to admonish the witness not to refer to the pistol and rifle as “airsoft” weapons because, in the trial court’s view, that terminology was not an accurate description of the items.  Assuming without deciding that this admonishment was an improper expression of opinion and accepting for argument that it may have negatively impacted the jury’s view of the witness’s testimony, there was not a reasonable probability that the jury would have reached a different verdict absent the admonishment.

Finally, the state conceded and the court agreed that the trial court erred by accepting the defendant’s stipulation to having attained habitual felon status without conducting the required guilty plea colloquy.

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