Neither snow nor rain nor heat nor gloom of night stays the School of Government from swift completion of their case summaries. This post summarizes opinions issued by the North Carolina Court of Appeals on February 18, 2020. Everyone stay safe during this wintry weather. Continue reading
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This post summarizes criminal and related decisions published by the Fourth Circuit Court of Appeals in January, 2020. Decisions of interest to state practitioners will be posted on a monthly basis. Previous Fourth Circuit case summaries are available here. Continue reading →
This post summarizes criminal and related decisions published by the Fourth Circuit Court of Appeals in December, 2019. Decisions of interest to state practitioners will be posted on a monthly basis. Previous Fourth Circuit case summaries are available here. Continue reading →
This post summarizes opinions issued by the North Carolina Court of Appeals on December 3, 2019.
Appeal of district court’s denial of defendant’s motion to enter judgment on PJC was not properly before Court of Appeals
State v. Doss, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
In 1999, the defendant was found guilty of assault on a female, and the trial judge entered a prayer for judgment continued (PJC) with a condition that the defendant pay costs of court. In 2017, the defendant was denied a concealed carry permit in West Virginia on the ground that his 1999 case resulted in a conviction for domestic violence and that he misstated in his permit application that he had never been convicted of an act of violence or act of domestic violence. In 2018, the defendant filed a motion in North Carolina to enter judgment in the 1999 case, which he then would be able to appeal to superior court for a trial de novo. The district court denied the motion, and the defendant appealed to the Court of Appeals. The Court found that the defendant did not have a right to appeal and refused to treat the defendant’s brief as a petition for a writ of certiorari. The Court therefore dismissed the defendant’s appeal. In addition to its holding, the Court made several other observations. (1) The District Attorney’s office that handled the defendant’s 1999 assault on a female case advised West Virginia that the case involved domestic violence even though the remaining records in ACIS indicated that the case did not involve domestic violence. (2) The Court recognized that it could be argued that the defendant’s representation on his permit application was not a misrepresentation about whether he had a conviction because the question is ambiguous and he could have believed in good faith that a PJC was not a conviction. (3) The Court observed that although a PJC with a condition that the defendant pay costs is not a condition that converts a PJC into a final judgment, a trial judge may not impose that condition without the defendant’s consent. When a defendant consents to a PJC, the defendant waives any right to appeal. (4) In support of its refusal to treat the defendant’s brief as a petition for a writ of certiorari, the Court stated that it would be unfair to the State to allow the defendant to renege on a twenty-year-old deal for a PJC with costs, ask the trial court to enter judgment, and appeal the judgment to superior court, which would most certainly result in dismissal of the charges because the State no longer has the evidence to proceed. (5) The court observed that G.S. 15A-1416(b)(1) gives the State the right to move for appropriate relief to enter a final judgment on a PJC, presumably when a defendant has not satisfied the conditions of a PJC, but the defendant does not have the same statutory right. (6) The court noted that the defendant can petition the superior court for a writ of certiorari under Rule 19 of the North Carolina Rules of Superior and District Court.
Criminal contempt upheld for recording court proceedings in violation of courtroom policy and warnings not to do so; the judge was not required to recuse himself in hearing the contempt proceeding and had the authority to sentence the defendant to probation
In re Eldridge, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The trial judge in this case issued a show cause order for defendant to appear and show cause why he should not be held in criminal contempt for recording the proceedings before the trial judge and posting them on Facebook, contrary to courtroom policy and warnings. (1) The Court of Appeals affirmed the trial judge’s denial of the defendant’s motion to recuse, finding no evidence to suggest that the trial judge could not preside over the contempt hearing in an objective, impartial manner. (2) The evidence supported the trial judge’s finding of criminal contempt; it showed that the defendant understood the courtroom policy and warnings not to record inside the courtroom and willfully disregarded them. (3) The Court of Appeals held that the trial judge was authorized to impose a suspended sentence of imprisonment with conditions of probation, including the condition that the defendant write an essay about respect for the courtroom and publish it on his social media and internet accounts. The dissent found that although this condition had a reasonable relationship to the defendant’s criminal contempt and was permissible, it was impermissible—because not reasonably related to the contempt and potentially a violation of the First Amendment—to require the defendant to monitor comments by third parties on his accounts and delete negative ones.
(1) Judge had the authority to call a weekend recess and extend the session for a felony trial that was not completed by the last Friday of the session; (2) The defendant failed to show prejudice from the trial judge’s procedure of communicating with the jury by written message, conveyed by a bailiff to the jury, rather than in open court
State v. Evans, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was tried for armed robbery, conspiracy to commit armed robbery, and possession of a firearm by a person previously convicted of a felony. The trial was not over by Friday, and the trial judge called a weekend recess. The trial resumed on the following Monday, the jury convicted the defendant of all charges, and the trial judge sentenced the defendant. (1) The defendant argued that the trial judge failed to extend the session of court in which the trial began, violating the rule against judgments entered out of session. The Court of Appeals rejected this argument in reliance on G.S. 15-167, which allows a trial judge to extend a session if a felony trial is in progress on the last Friday of the session. The Court held that such an extension is valid when the trial judge announces a weekend recess without objection by the parties, as here. Although the trial judge was asked and declined to make written findings to support the extension, her decision not to make findings did not constitute a refusal to extend the session. (2) In response to written questions asked by the jury during deliberations, the trial judge sought clarification by writing out a short message and having the bailiff go to the jury room and read the message. The judge directed the bailiff not to communicate any other information, respond to questions by the jury, or remain for any discussion by the jury. The defendant argued that this procedure violated the requirements of G.S. 15A-1234 and G.S. 15A-1236, which require that responses to jury questions and additional instructions be in open court and which prohibit speaking to the jury. The Court held that assuming the trial judge committed statutory error, the defendant failed to show prejudice. The Court found that the trial judge’s message was clear and unambiguous, did not relate to guilt or innocence, and did not amount to an instruction to the jury. Absent evidence to the contrary, the Court stated that it would presume that both the bailiff and jurors understood and followed the judge’s directive to the bailiff to deliver the message and not to be present for or engage in any colloquy with the jury.
(1) Trial judge had jurisdiction to enter written order granting motion to suppress after State gave notice of appeal at the conclusion of the hearing on the motion; (2) Trial judge was free to give no weight to officer’s testimony in his findings of fact, which were supported by other evidence; (3) State failed to show that the defendant was driving and that probable cause existed to arrest him for impaired driving
State v. Fields, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was charged with impaired driving, was convicted in district court, appealed to superior court, and prevailed on a motion to suppress at a pretrial hearing in superior court. The State appealed. (1) The Court of Appeals rejected the State’s argument that the superior court judge lacked jurisdiction to enter a written order after the State gave oral notice of appeal at the conclusion of the hearing at which the judge granted the motion to suppress. At the hearing, the trial judge stated that the State could not establish a nexus between the person the officer saw driving and the defendant who later walked up to the officer. The Court found that the judge’s written order was a chronicle of the findings and conclusions he decided at the motion hearing and was not a new order affecting the merits of the case. (2) The Court rejected the State’s argument that certain findings of fact were not supported by the evidence. In regard to the green pickup truck that the defendant was allegedly driving, the trial judge found that the arresting officer testified that he did not see the truck park or anyone get in or out of the truck. The State asserted that the officer testified that he observed a video at the mini-mart where the truck was parked showing the defendant getting out of the truck. The Court found that the officer testified that the video was lost because he left the flash drive containing the video in his patrol car when he took the car to a mechanic. The Court held that the trial judge determines the credibility of witnesses, the weight to be given to testimony, and reasonable inferences. “The trial court was free to give no weight to [the officer’s] testimony regarding viewing the Mini-mart video.” (3) The Court rejected the State’s argument that probable cause existed to arrest the defendant for impaired driving. The Court found that the trial judge’s findings supported his conclusion that the State failed to show that the defendant was driving and, although the truck was registered to the defendant, failed to establish a connection between the driver of the truck and the defendant.
Trial judge erred in finding that the defendant forfeited his right to counsel and requiring the defendant to represent himself at trial
State v. Harvin, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was convicted of first-degree murder, attempted first-degree murder, attempted robbery with a dangerous weapon, assault with a deadly weapon with intent to kill inflicting serious injury, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. The Court of Appeals found that the trial judge erred in finding that the defendant forfeited his right to counsel and in requiring the defendant to represent himself at trial. In a lengthy colloquy at trial, the defendant requested the judge to activate or replace his standby counsel, who previously had been appointed as standby counsel when the defendant expressed a desire to represent himself. When the trial judge did not grant that request, the defendant stated that he did not want to represent himself and wanted to be represented by counsel. The Court found that the request was clear and unequivocal. The Court further found that when the trial judge previously appointed standby counsel, the judge did not make any note of dilatory tactics by the defendant or inform him that requesting that standby counsel be activated or replaced could result in forfeiture of his right to counsel; rather, the judge advised him that standby counsel could be activated as counsel. Although the defendant had five previous attorneys, only two withdrew for reasons related to the defendant and then not because of a refusal by the defendant to participate in his defense but instead due to differences related to preparation of the defendant’s defense. The Court concluded that the record failed to show that the defendant intentionally delayed or obstructed the process. A dissenting judge would have found that the trial judge’s forfeiture ruling was not erroneous.
(1) Conspiracy to commit attempted first-degree murder is a cognizable offense in North Carolina; (2) The evidence was sufficient to go to the jury on the attempt and conspiracy charges
State v. Lyons, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was convicted of attempted first-degree murder and conspiracy to commit attempted first-degree murder. (1) The defendant argued that the latter charge is invalid because it alleges a non-existent crime. The defendant argued that an attempt requires that the act fail; therefore, it is an illogical impossibility and a legal absurdity to criminalize an agreement to commit a failed act, which in this case would be an agreement not to commit murder. The Court of Appeals rejected the argument, holding that under North Carolina law “failure” is not an element of attempted first-degree murder and that conspiracy to commit that offense is a cognizable charge. (2) The defendant argued that the evidence was insufficient to support attempted first-degree murder or conspiracy because the evidence showed only that he fired a pellet gun to try scare away the officer who was in pursuit. The Court found that the evidence was sufficient for the jury to find that the defendant fired a gun at the officer, not merely a pellet gun, with the intent to kill.
Defendant received ineffective assistance of counsel where counsel advised him that deportation “may” result from the plea and not that the defendant was facing presumptive deportation; case remanded for a determination of whether the defendant was prejudiced.
State v. Marzouq, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant, a lawful permanent resident, was charged with various drug offenses and pled guilty under Alford to the charges of possession of heroin and maintaining a vehicle or dwelling, for which the trial judge imposed a two-year suspended sentence. About one year into his sentence, the defendant was seized by Immigration and Customs Enforcement (ICE) and placed into detention and removal proceedings. He filed a motion for appropriate relief (MAR), arguing that had he known the plea would affect his immigration status and result in deportation, he would not have taken it. The trial judge denied the MAR. The Court of Appeals granted certiorari and ordered the trial judge to review whether the defendant’s Alford plea was induced by misadvice of counsel and whether the misadvice resulted in prejudice. The trial judge again denied the MAR. He found that the defendant had been advised that he might be deported if he pled guilty and that he should speak to an immigration attorney. The Court of Appeals granted certiorari a second time. Relying on Padilla v. Kentucky, 559 U.S. 356 (2010), and State v. Nkiam, 243 N.C. App. 777 (2015), the Court recognized that it is not sufficient for an attorney to advise a client that there is a risk of deportation where, as here, deportation is presumptively mandatory. The Court stated: “Waffling language suggesting a mere possibility of deportation does not adequately inform the client of the risk before him or her, and does not permit a defendant to make a reasoned and informed decision.” The Court remanded the case to the trial judge to determine prejudice—that is, whether there is a reasonable probability that but for counsel’s ineffective assistance, the result of the proceeding would have been different. The Court specifically directed the trial court to consider the impact of other charges against the defendant. The Court recognized that a defendant cannot show a different outcome, as required by the prejudice standard, if deportation would still result from other charges. The Court found the record insufficient on this issue. The defendant had a prior drug paraphernalia conviction, but that offense does not render him presumptively deportable, and other pending charges, but the record did not contain findings as to whether any other convictions made the defendant deportable.
New trial where State Crime Lab forensic scientist was required to testify about DNA sample despite her insistence that the testimony was not scientifically valid
State v. Phillips, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was convicted of statutory rape of C.C., a 13-year-old child. This was the second trial of the defendant; at the first trial involving the events of that evening, the jury acquitted him on some charges and there was a mistrial on the statutory rape charge. At the second trial, the State called a forensic biologist, Dr. Wilson, from the North Carolina State Crime Lab and qualified her as an expert in DNA analysis. She testified that she tested DNA samples from swabs taken from C.C. and compared them to the DNA profiles from C.C., the defendant, and another person, Eckard, who was present that evening. Dr. Wilson testified she had found a mixture of contributors: two major contributors and one minor contributor. She presumed that one of the major contributors was C.C. and determined that the defendant’s DNA profile was consistent with the other major contributor. She testified that the minor contributor’s profile was “inconclusive due to complexity and/or insufficient quality of recovered DNA.” The prosecutor asked whether Dr. Wilson was able to see anything about the minor contributor’s profile. Dr. Wilson testified that when a profile is inconclusive as in this case, it is not permissible as a matter of State Crime Lab policy to do any comparison because such a comparison is not scientifically accurate. At a hearing outside the presence of the jury, the prosecutor said his purpose in asking the question was to counter the defendant’s potential argument that Eckard, with whom the defendant had sex that evening, may have been the source of the DNA and may have transferred the defendant’s DNA to C.C. The trial judge ruled that the prosecutor could direct Dr. Wilson to look at the alleles shown in the records and testify about them. Before the jury, she then testified that three of the alleles in the minor contributor’s profile were the same as Eckard’s profile but the other three alleles were different. The Court of Appeals found that this testimony violated Rule 702 of the North Carolina Rules of Evidence. The Court found, first, that the testimony was expert opinion and, contrary to the State’s argument, was not merely a statement of what Dr. Wilson could “see.” The Court found, second, that the expert testimony violated Rule 702. The testimony was not based on sufficient facts or data because the recovered DNA for the minor contributor was inconclusive, and it was not the product of reliable principles and methods because Dr. Wilson said that the comparison was scientifically inaccurate. The Court of Appeals found the admission of this testimony was prejudicial and ordered a new trial. A dissenting judge agreed that the testimony was improper because it was irrelevant under Evidence Rule 402 and unduly prejudicial under Evidence Rule 403. However, the dissent would have reviewed the case under the plain error standard for prejudice, which the dissent did not find, because the defendant based his objection on Evidence Rule 702 only and, although he objected initially before the jury and during the voir dire hearing before the trial judge, failed to renew his objection when Dr. Wilson resumed her testimony.
New trial based on plain error where DSS investigator testified that DSS substantiated sexual abuse by the defendant against the complainant
State v. Warden, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 3, 2019)
The defendant was convicted of sexual offense with a child by an adult, child abuse by a sexual act, and taking indecent liberties with a child. At trial, a DSS Child Protective Services Investigator testified, without objection, that DSS had substantiated the allegations of sexual abuse against the defendant. The investigator explained that when DSS believes the allegations are true, it substantiates the case and that in this case “[w]e substantiated sexual abuse naming [the defendant] as the perpetrator.” The defendant testified and denied having committed any sexual act against the complainant. Citing previous cases addressing substantiation testimony, the Court found that the testimony improperly bolstered and vouched for the victim’s credibility and that admission of the testimony was plain error in this case. The Court stated that where, as argued by the State in its closing argument, the credibility of the complainant is the central if not the only issue to be decided by the jury, the error is prejudicial and requires a new trial. A dissenting judge agreed that it was error to allow the testimony but would have found that the error did not meet the prejudice standard for plain error review.
This post summarizes opinions issued by the Court of Appeals of North Carolina on November 19, 2019.
Trial court did not err in denying defendant’s motion to suppress evidence obtained from a search of the defendant’s purse when officer testified that the defendant voluntarily consented to the search, notwithstanding contradictory testimony from the defendant.
State v. Hall, ___ N.C. App. ___, ___ S.E.2d ____ (Nov. 19, 2019).
An officer patrolling the parking area of a park just before closing discovered the defendant asleep in her car. Based on the defendant’s positioning, he was concerned there might be a medical emergency, so he knocked on the window of her car. After he knocked several times, the defendant sat up, looked at him, and opened the driver’s side door. She said she was camping in the park with her son and decided to take a nap in her car. Her speech was slurred, her eyes were bloodshot, and she was unsteady on her feet when she got out of her car. The officer also saw track marks on her arms that were consistent with heroin use. The officer asked for the defendant’s license, and, while holding it, asked for consent to search the defendant’s car and her purse, which was sitting in the front seat of the car.
The State and defendant presented conflicting evidence about what happened next. The officer said that defendant responded, “Sure.” The defendant said the officer asked three times for permission to search her car and each time she said, “I would really rather you not.” She said she only consented to the search after the officer threatened to arrest her.
The officer searched the defendant’s purse and found several syringes in its top section. He then asked the defendant whether she was carrying anything illegal. The defendant asked whether she was going to jail. The officer told her that he would not take her to jail if she cooperated. The defendant told him she had a syringe containing heroin in the side compartment of her purse. The officer found the syringe there, along with a burnt spoon and two grams of heroin.
The defendant was not arrested that evening, but subsequently was indicted for possession of heroin and possession of drug paraphernalia. She filed a motion to suppress the evidence obtained from the search, which the trial court denied. She pled guilty, preserving her right to appeal. On appeal, she argued that she did not voluntarily consent to the search of her purse, and that the trial court’s findings on that issue were insufficient. The court of appeals disagreed. Rejecting the defendant’s argument to the contrary, the court explained that the question of whether consent to search was voluntary is one of fact, not law.
The trial court determined that the defendant freely gave consent to the officer to search her vehicle and her purse. This finding was supported by the officer’s testimony at the suppression hearing that he asked defendant for consent to search her car and purse, and she said, “Sure.” The court of appeals concluded, therefore, that the trial court’s finding that the defendant’s consent was “freely given” was supported by competent evidence and was binding on appeal. Though the trial court failed to make a specific finding that the search did not violate the defendant’s Fourth Amendment rights, the appellate court reached that conclusion based on the finding of fact that the defendant voluntarily consented to the search. Thus, the court of appeals concluded that the trial court did not err in denying the defendant’s motion to suppress.
(1) Trial court erred in imposing 36 months of probation in misdemeanor case without special findings. (2) Jury instructions on possession of drug paraphernalia departed from indictment but did not constitute plain error
State v. Lu, ___ N.C. App. ___, ___ S.E.2d ____ (Nov. 19, 2019).
The defendant was a passenger in a car stopped at a traffic checkpoint. An officer smelled marijuana emanating from the vehicle. The defendant told the officer that the marijuana was located in a bag behind the driver’s seat. The officer found a drawstring bag there, which the defendant said was his. Inside the bag, the officer found two plastic bags containing marijuana, a hookah, a snort straw, and a beer can. The beer can was altered to be a container that could be unscrewed. Inside the beer can the officer found two white crystallized substances later identified as Methylone and a Lorazepam tablet.
The defendant was charged with felony possession of a Schedule I controlled substance (Methylone), misdemeanor possession of marijuana, and misdemeanor possession of drug paraphernalia based on his possession of the altered beer can. He was convicted and sentenced to 6 to 17 months for the felony and 120 days (to run consecutively) for each misdemeanor offense. Each sentence was suspended, and the defendant was placed on probation for 36 months. He also was ordered to serve 12 days of special probation for the felony.
(1) The defendant argued on appeal that the sentences for the misdemeanor offenses were unlawful because the trial court did not make finding that a longer period of probation was necessary. The court of appeals agreed.
G.S. 15A-1343.2(d)(2) provides that “[u]nless the court makes specific findings that longer or shorter periods of probation are necessary,” the probationary period for a misdemeanant sentenced to intermediate punishment (which includes any suspended sentence that requires supervised probation) must be not less than 12 nor more than 24 months. The record supported the defendant’s argument that the trial court made no specific findings; therefore, the court of appeals vacated the misdemeanor judgments and remanded for resentencing.
(2) The defendant also argued that the trial court erred by giving jury instructions that did not identify the item that served as the basis for the defendant’s drug paraphernalia charge (the altered beer can) and that referred to marijuana in addition to Methylone. The defendant was charged with possession of drug paraphernalia under G.S. 90-113.22, not possession of marijuana paraphernalia, a separate crime under G.S. 90-113.22A. The defendant argued that the reference to marijuana may have caused the jury to consider the items associated with the marijuana, including the drawstring bag and the plastic bags containing the marijuana. Because the defendant did not object to the jury instructions at trial, the court of appeals reviewed for plain error.
The court of appeals determined that naming marijuana in the instructions varied from the indictment and was error. However, the appellate court found that the facts presented during trial undercut any perceived probable impact on the jury. The officer gave substantially more testimony about the altered beer can and its contents than the other containers. The other bags were not discussed in detail, while the beer can was the subject of focused and specific questions, and the jury was given a demonstration of how it unscrewed. The marijuana was entered into evidence inside the plastic bags, “indicating that the bag was part and parcel of the marijuana possession.” Slip op. at 11. The beer can, in contrast, was its own exhibit, and the drawstring bag was not entered into evidence at all. In addition, the jury convicted the defendant of possessing Methylone, a drug contained exclusively in the beer can, suggesting that the jury also believed the defendant possessed the can itself, which, unlike the other items, was designed for the specific purpose of containing and concealing drugs. Thus, the court concluded that the defendant failed to show that the trial court’s error had a probable impact on the jury’s finding of guilt and, as such, was not plain error.
(1) State’s appeal of trial court’s order suppressing blood test result on the basis that the evidence was essential to its case did not preclude it from proceeding to trial without the suppressed evidence; thus, trial court did not err in denying defendant’s motion to dismiss on the basis that the State was estopped from adjudicating its case against the defendant because the trial court suppressed the blood test result. (2) Trial court did not err in admitting defendant’s medical records, including results of the blood alcohol test performed by the hospital, and the admission of those records did not prejudice defendant’s case.
State v. Romano, ___ N.C. App. ___, ___ S.E.2d ____ (Nov. 19, 2019).
The defendant was arrested for impaired driving. Because of his extreme intoxication, he was taken to a hospital for medical treatment. The defendant was belligerent and combative at the hospital, and was medicated in an effort to calm his behavior. After the defendant was medically subdued, a nurse withdrew his blood. She withdrew some blood for medical purposes and additional blood for law enforcement use. No warrant had been issued authorizing the blood draw. The defendant moved to suppress evidence resulting from the warrantless blood draw on constitutional grounds. The trial court granted the motion, suppressing evidence of the blood provided to law enforcement and the subsequent analysis of that blood. The State appealed from that interlocutory order, certifying that the evidence was essential to the prosecution of its case. The North Carolina Supreme Court, in State v. Romano, 369 N.C. 678 (2017), affirmed the trial court’s ruling suppressing the State’s blood analysis, and remanded the case for additional proceedings.
While the case was pending before the state supreme court, the State filed a motion for disclosure of the defendant’s medical records on the date of his arrest, which included records of the hospital’s analysis of his blood. The motion was granted, and the medical records were disclosed.
After the case was remanded, the State proceeded to try the defendant on charges of habitual impaired driving and driving while license revoked for impaired driving. The defendant moved to dismiss the charges and to suppress the evidence of his medical records. The trial court denied the motions, and the defendant was convicted.
(1) The defendant argued on appeal that the trial court erred by denying his motion to dismiss. Noting that the State appealed the order suppressing evidence from the warrantless blood draw on the basis that the State’s analysis of his blood was essential to its case, the defendant argued that the State should not have been permitted to try the case against him on remand because that evidence was ordered suppressed. The court rejected the defendant’s argument, stating that the supreme court’s decision simply upheld the suppression of the evidence. It did not preclude the State from proceeding to trial without the suppressed evidence on remand. Thus, the court of appeals concluded that the trial court did not err in denying defendant’s motion to dismiss.
(2) The defendant also argued on appeal that the trial court erred when it denied his motion to suppress and admitted his medical records, which contained the results of a blood alcohol test performed by the hospital. A manager from the hospital’s records department testified regarding the management of hospital records, and a medical technologist testified about the hospital’s methods and procedures for conducting laboratory tests. In addition, an expert witness in blood testing testified for the State that he relied upon the medical records in forming a conclusion about the defendant’s blood alcohol level. The court determined that the records were properly admitted because (1) they were created for medical treatment purposes and kept in the ordinary course of business and thus were nontestimonial for purposes of the Confrontation Clause; (2) even if the records were testimonial, they were admissible as the basis of a testifying expert’s independent opinion; and (3) the admission of the records was not prejudicial in light of the substantial additional evidence that the defendant was driving while impaired.
Trial court erred by dismissing DWI charges for the destruction of dash cam video that was only potentially useful to the defendant without assessing whether the footage was destroyed in bad faith.
State v. Taylor, ___ N.C. App. ___, ___ S.E.2d ____ (Nov. 19, 2019).
The defendant was cited for misdemeanor driving while impaired on November 27, 2016. His attorney requested discovery in July 2017, specifically asking for dash cam and body camera footage. The defendant was subsequently indicted for habitual impaired driving and other traffic offenses based on the November 27, 2016 incident. In January 2018, the defendant’s attorney again requested dash cam footage. The defendant’s attorney was informed in February 2018 that the dash cam video had been deleted from the local server, and the Highway Patrol was attempting to locate it from other sources. In March 2018, defense counsel was informed that the video had been purged and was not available for release.
The defendant moved to dismiss the charges based on the destruction of the dash cam video. The trial court granted the motion, concluding that the destruction of the dash cam video footage violated the defendant’s right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and required dismissal of the charges. The State appealed.
The court of appeals noted that suppression of evidence favorable to an accused violates due process when the evidence is material to guilt or punishment, regardless of the good faith or bad faith of the prosecution. But when the evidence is only potentially useful, the State’s failure to preserve the evidence does not violate the defendant’s constitutional rights unless the defendant shows bad faith on the part of the State.
Though the trial court concluded that the destruction of the dash cam video footage was a Brady violation, it made no findings on what the dash cam video footage would have shown. Indeed, it could not have made such findings because there was no record of what the footage may have shown. The dash cam footage was not material exculpatory evidence; instead, it was only potentially useful. To establish a constitutional violation based on the destruction of potentially useful evidence, the defendant must show bad faith. The trial court erred by concluding that destruction of the footage warranted dismissal, regardless of bad faith on the part of the State. The court of appeals remanded the case to the trial court for a determination of whether the footage was destroyed in bad faith. A dissenting judge would have reversed the trial court on the basis that the evidence presented could not support a finding of bad faith.