Suppose the trial court, over the defendant’s objection, instructs the jury on a theory of a crime that is not supported by the evidence. Is the defendant entitled to automatic reversal on appeal? Or, alternatively, must the appellate court evaluate whether the erroneous instruction prejudiced the defendant? The North Carolina Supreme Court answered these questions in State v. Malachi, ___ N.C. ___ (2018), published last Friday, and applied its answer in State v. Fowler, ___ N.C. ___ (2018), decided the same day.
Often, when the defendant complains on appeal of a constitutional violation at trial, there must be some showing of prejudice in order for the defendant to obtain relief. Even if a defendant shows that a violation occurred, the State usually has an opportunity to demonstrate that the error is harmless beyond a reasonable doubt. If the error is unlikely to have affected the result within the greater context of the trial, the defendant is not entitled to relief under harmless error review. Chapman v. California, 386 U.S. 18 (1967). Some errors, however, are deemed so serious and capable of affecting the fundamental integrity of the trial that harmless error review does not apply. These types of “structural” errors typically entitle the defendant to a new trial without any showing of prejudice and without regard to how the error may have affected the verdict.
Shortly after I published last week’s post on State v. Babich, an astute reader asked about the court’s harmless error analysis. How, he inquired, could the improper admission of expert testimony that the defendant had an alcohol concentration of 0.08 be harmless error? Did the jury’s verdict indicate that it found the defendant guilty only under the “under the influence” prong of impairment rather than under the “alcohol concentration of 0.08 or more” prong? To answer these questions, I had to dig into the record on appeal and provide a bit of background on the requirement for jury unanimity in DWI cases. I thought others might be interested in my response.