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N.C. Supreme Court (May 23, 2024) – North Carolina Criminal Law

By admin May30,2024

This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on May 23, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Supreme Court holds that constitutional and statutory defects in indictments do not deprive the trial court of jurisdiction, unless the indictment wholly fails to allege a crime.

State v. Singleton, 318PA22, ___ N.C. ___ (May 23, 2024). In this Wake County case, the Supreme Court reversed the Court of Appeals decision vacating defendant’s conviction for second-degree rape due to a fatal defect in the indictment. The Court held that a defect in an indictment does not deprive the courts of jurisdiction unless the indictment wholly fails to allege a crime.

In November of 2017, the victim, a college student home for thanksgiving break, went out in downtown Raleigh with her friends and became intoxicated. At some point during the night, the victim blacked out, and woke up in defendant’s car with him on top of her. Defendant was subsequently convicted of second-degree forcible rape and first-degree kidnapping. On appeal, defendant argued for the first time that the trial court lacked jurisdiction over the second-degree forcible rape charge because the indictment did not allege that defendant knew or should have known that the victim was physically helpless at the time of the act. The Court of Appeals agreed and vacated the rape conviction, holding that the indictment failed to allege an essential element of the crime.

Taking up the State’s petition for discretionary review, the Supreme Court first gave a broad historical overview of the jurisdictional indictment rule, beginning with common law and walking through North Carolina constitutional and statutory provisions. The Court ultimately concluded that “[o]ur Constitution and General Statutes, not an indictment, confer the general courts of justice with jurisdiction over criminal laws and the defendants accused of violating such laws.” Slip Op. at 40. Having established that constitutional or statutory defects do not deprive the trial court of jurisdiction, the Court explained that “[a]s these species of errors in a charging document are not jurisdictional, a defendant seeking relief must demonstrate not only that such an error occurred, but also that such error was prejudicial.” Id. at 42. The Court pointed to G.S. 15A-1443 for the appropriate prejudicial error tests.

The Court then examined the indictment at issue in this case, concluding that “[a] plain reading of [G.S.] 15-144.1(c) demonstrates that the indictment here clearly alleged a crime and was not required to allege actual or constructive knowledge of the victim’s physical helplessness.” Id. at 46. Here the Court noted that the language used in the indictment was simply a modern version of the short-form indictment language, and concluded that the indictment was not deficient.

Justice Earls, joined by Justice Riggs, concurred in the conclusion that the indictment in this case was not deficient, but dissented from the holding “that constitutional and statutory defects in an indictment are non-jurisdictional” and provided a lengthy dissent supporting this argument. Id. at 49.

Prosecutor’s closing argument statements and jury instructions regarding defense of habitation were not misstatements of law; lying-in-wait instruction was erroneous but did not justify new trial where defendant was convicted on two theories of first-degree murder.

State v. Copley, 195A19-2, ___ N.C. ___ (May 23, 2024). In this Wake County case, the Supreme Court modified and affirmed a Court of Appeals decision upholding defendant’s conviction for first-degree murder. The Court held that the trial court erred when providing the lying-in-wait instruction to the jury, but because defendant was convicted on two theories of first-degree murder, his conviction was upheld and no new trial was necessary.

In 2016, the victim attended a party in defendant’s neighborhood. During the night, crowds of people gathered outside defendant’s house, and he became angry, yelling at some of the people outside. Defenant called 911 and claimed the people outside were vandalizing his property, and he went to his garage with a shotgun. Later, as the victim crossed defendant’s yard near the curb, defendant shot and killed him. Defendant was convicted of first-degree murder by premeditation and deliberation, and by lying in wait. He appealed, reaching the Supreme Court for the first time in State v. Copley, 374 N.C. 224 (2020), arguing the prosecutor improperly mentioned race in closing arguments. The Court found no prejudicial error and remanded to the Court of Appeals to consider the remaining arguments. The Court of Appeals considered defendant’s three remaining arguments and found no error, leading to the current appeal.

The Supreme Court first considered defendant’s argument that the trial court should have intervened during closing argument when the prosecutor suggested defendant could not invoke the defense of habitation because he was the aggressor. The Court explained the standard of review was gross impropriety because defendant did not object at trial; this standard requires that the remarks be both improper and prejudicial. Here, the Court held that the prosecutor did not misstate the law, as “the prosecutor never labeled him the ‘aggressor’ for purposes of self-defense, but instead characterized discrete actions as ‘aggressive.’” Slip Op.at 11.

The Court then moved to the challenged jury instructions, beginning with defendant’s argument that the trial court erred by instructing the jury that the defense of habitation is unavailable to an aggressor. The Court explained that the instruction came from footnote 4 of N.C. Pattern Jury Instruction 308.80, and dealt with provocation, not with the aggressor doctrine. The Court also noted that defense counsel requested aggressor language in the self-defense instruction, inviting the error defendant then referenced on appeal.

Finally, the Court reached the lying-in-wait instruction for first-degree murder, explaining that the castle doctrine was relevant to the consideration of defendant’s case. The Court explained that “[i]f the statutory castle doctrine applies, it disclaims the elements of lying in wait and displaces that offense.” Id. at 20. In the current case, the Court held that “the trial court’s lying-in-wait instruction distorted the interplay between the crime and the castle doctrine” and deprived defendant of his right to defend his home. Id. at 22. However, because defendant was also convicted under the premeditation and deliberation theory, this error did not merit a new trial.

Defendant was not required to give advance notice of his intent to appeal prior to pleading guilty when plea was not part of a plea agreement.

State v. Jonas, 433PA21, ___ N.C. ___ (May 23, 2024). In this Cabarrus County case, the Supreme Court upheld the Court of Appeals decision that defendant was not required to give notice of his intent to appeal the denial of his motion to suppress prior to entering an open guilty plea.

Defendant was charged with possession of a controlled substance and filed a motion to suppress, arguing the officer who stopped and searched him lacked reasonable suspicion. The trial court denied defendant’s motion, and defendant subsequently pleaded guilty. Notably, defendant confirmed to the trial court that he was not pleading guilty as part of a plea arrangement. After sentencing, defense counsel gave notice of appeal on the record. The Court of Appeals panel unanimously held that defendant was not required to give notice of intent to appeal prior to entering his plea.

Taking up the State’s discretionary petition, the Supreme Court first noted that under State v. Reynolds, 298 N.C. 380 (1979), defendant would normally be required to give notice of his intent to appeal to the prosecutor and court “to ensure fundamental fairness in the plea negotiation process.” Slip Op. at 1. The Court noted that here, defendant did not receive any benefit from the State, and the issue of fairness was not in play. Concluding it would not advance the interests of justice and fairness to extend the Reynolds rule to open guilty pleas, the Court affirmed the Court of Appeals decision.

Chief Justice Newby, joined by Justice Berger, dissented, and would have held that State v. Tew, 326 N.C. 732 (1990), controlled and required application of the Reynolds rule to open pleas. Slip Op. at 14.

Failure of indictment to include language on use of force in sexual battery charge did not render the indictment invalid.

State v. Stewart, 23PA22, ___ N.C. ___ (May 23, 2024). In this Mecklenburg County case, the Supreme Court reversed the unpublished Court of Appeals opinion vacating defendant’s conviction for sexual battery. The Court applied the holding in State v. Singleton when determining that the failure of the indictment to allege defendant used force during the sexual battery did not make the indictment invalid.

In January of 2016, the victim celebrated her birthday by going to a massage therapist in Charlotte. During the massage, the therapist digitally penetrated the victim’s vagina. Defendant was subsequently convicted of sexual battery and appealed. At the Court of Appeals, defendant argued that the trial court lacked subject matter jurisdiction because the indictment omitted that his act was committed “by force.” The Court of Appeals agreed, determining G.S. 14-27.33 required the indictment to allege the act was committed by force and against the will of another.

The Supreme Court accepted the State’s petition for discretionary review, and the Court took the opportunity to apply the reasoning from Singleton that the defendant must show “that the indictment contained a statutory or constitutional defect and that such error was prejudicial.” Slip Op. at 6. Walking through the analysis, the Court noted that in the juvenile case In re J.U., 384 N.C. 618 (2023), the Court held the element of force was inferable from the allegation that the act was nonconsensual. This led the Court to conclude “[t]he element of force is inferable from the language of the indictment such that a person of common understanding might know what was intended” and that the indictment was facially valid. Slip Op. at 9.

Justice Earls, joined by Justice Riggs, concurred in the result by separate opinion and explained that the Court’s precedent in In re J.U. and Singleton bound her to concur in the result. Id. at 10.

Rule of Evidence 412 bars admission of prior nonconsensual sexual activity.

State v. Washington, 34PA22, ___ N.C. ___ (May 23, 2024). In this Orange County case, the Supreme Court affirmed an unpublished Court of Appeals decision upholding defendant’s convictions for sexual offense and indecent liberties with a child. The Court determined that Rule of Evidence 412 bars admission of prior nonconsensual sexual activity.

In October of 2018, the victim told her mother that defendant, her stepfather, was sexually abusing her. During the investigation, the victim was interviewed by a SAFEChild social worker. In this SAFEChild interview, the victim recounted another incident where she was sexually abused by a teenager. At trial, defendant moved to admit the portion of the SAFEChild interview that referenced the teenager. The trial court denied this motion under Rule 412. At the Court of Appeals, defendant argued prejudicial error by excluding the interview as “sexual abuse does not fall within the definition of sexual behavior under Rule 412.” Slip Op. at 4 (cleaned up). The Court of Appeals disagreed, upholding the conviction in an unpublished decision.

Considering defendant’s argument, the Supreme Court noted that “[s]exual activity . . . is not defined in Rule 412 or elsewhere in the North Carolina Rules of Evidence.” Id. at 6. However, the Court concluded that when looking at the relevant definition of “sexual behavior” in Rule 412, it was clear the intent was to differentiate between the sex acts at issue and all other activity, and “the definition does not differentiate between consensual and nonconsensual sex acts, nor does it tend to exclude nonconsensual sex.” Id. This led the Court to determine that “generally, all evidence of a complainant’s sexual behavior, other than the sexual act at issue, is irrelevant regardless of whether that sexual behavior was consensual or nonconsensual.” Id. at 7.

Trial court’s ambiguous statement when denying jury request to review transcripts was not evidence of lack of discretion when considered in context.

State v. Vann, 157PA22, ___ N.C. ___ (May 23, 2024). In this New Hanover County case, the Supreme Court reversed the unpublished Court of Appeals decision granting defendant a new trial on his convictions of first-degree murder, murder of an unborn child, and robbery with a dangerous weapon. The Court determined that the trial court properly exercised its discretion under G.S. 15A-1233 when denying the jury’s request to review partial transcripts.

In August of 2016, Wilmington Police responded to a dead woman at a local hotel. An investigation of the victim’s phone and hotel surveillance determined that defendant came to the hotel looking for sexual services. When police interviewed defendant, he admitted that he had struck the victim but denied killing her. During subsequent testimony, defendant changed his story and no longer admitted he struck the victim. At trial, the jury made multiple requests to review evidence, including one request to review transcripts of a police detective’s testimony, defendant’s testimony, and the medical examiner’s testimony. The trial court denied this request for transcripts, informing the jury that it was their duty to recall the testimony and “[w]e’re not – we can’t provide a transcript as to that.” Slip Op. at 7. After defendant was convicted, he appealed and argued that the language from the trial court suggested that it had not exercised the discretion granted by G.S.15A-1233 to allow the jury to review transcripts. The Court of Appeals agreed, finding the trial court failed to exercise discretion and that the error was prejudicial, granting a new trial.

Taking up the State’s petition for discretionary review, the Supreme Court first explained that normally the presumption is that a trial court exercised its discretion when ruling on a jury request, unless the trial court makes a statement that expresses it has no discretion as to the request in unambiguous terms. The Court emphasized that appellate courts must review the record to determine the context of statements alleged to show lack of discretion. The court found ambiguity here in the combination of the trial court’s statement’s “we’re not” and “we can’t,” explaining “[w]hile the word ‘can’t,’ if read alone, could be indicative of a lack of discretion, the phrase ‘we’re not’ indicates the exercise of discretion.” Id. at 14. This ambiguity plus the trial court’s conduct when considering the previous requests indicated it had exercised the appropriate discretion, and the Court reversed the decision granting a new trial.

Justice Riggs concurred in the result only, and would have held that the trial court erred but the error was not prejudicial. Id. at 18.

Justice Earls dissented, and would have held the trial court failed to exercise discretion. Id. at 21.

Superior court order disqualifying DA’s office did not identify actual conflict of interest to support disqualification.

State v. Giese, 309PA22, ___ N.C. ___ (May 23, 2024). In this Onslow County case, the Supreme Court vacated a superior court order disqualifying the prosecutors from the Fifth Prosecutorial District and remanded for further proceedings. The Court determined that the district and superior court orders disqualifying the district attorney and his staff did not identify an actual conflict of interest or legitimate due process concerns.

In 2022, defendant was charged with cyberstalking and making harassing phone calls to the county manager of Onslow County. When the matter came to district court for trial, defendant moved to disqualify the district attorney and his staff, arguing they had a conflict of interest because the county manager had financial and functional links with the district attorney and his staff. The district court granted the motion, and the State appealed to superior court. The superior court left the order intact, leading the State to petition the Court of Appeals, where writ was denied, and ultimately to petition the Supreme Court, leading to the current opinion.

Allowing the State’s petition for writ of certiorari, the Supreme Court first explored the basis for disqualification, looking to State v. Camacho, 329 N.C. 589 (1991), for the appropriate balancing test. The Court noted that Camacho first required the finding of an “actual conflict of interest,” which only exists “when a member of a DA’s office once represented a defendant and obtained confidential information that “may be used to the defendant’s detriment at trial.”” Slip Op. at 11, quoting Camacho at 601. If a court finds an actual conflict, then Camacho calls for a balancing test of the competing interests of the prosecutor and defendant. However, here the Court could not find evidence of a conflict here, concluding “a county manager’s ‘inherent authority’ does not bar a DA from prosecuting a case in which that county manager is the alleged victim.” Id. at 15. As a result, the Court remanded to the superior court for further proceedings in keeping with the opinion.

Questionable cross-examination and closing argument statements did not rise to the exacting levels of plain error or grossly improper.

State v. Reber, 138A23, ___ N.C. ___ (May 23, 2024). In this Ashe County case, the Supreme Court reversed the Court of Appeals decision finding plain error in his convictions for rape of a child and sex offense with a child. The Court held that defendant’s arguments regarding admitted testimony and statements in closing argument did not rise to the level of the plain error standard.

In 2015, the victim reported that a close friend of her family had been taking her to secluded locations and sexually abusing her. In 2021 defendant was charged with the sexual offenses, and at trial both the victim and defendant testified. During defendant’s testimony, the prosecutor asked him several questions about sexual relationships he had with adult women, including a text exchange with one woman, and defendant’s approach to contraception, which was the “pull-out method.” During closing argument, the prosecutor referred back to these parts of defendant’s testimony, suggesting that defendant engaged in sexual encounters with a woman too intoxicated to recall, and that defendant could have given the victim sexually transmitted infections. Defendant did not object to any of these questions or statements. After defendant was convicted, he argued plain error in admitting the testimony and reversible error in allowing the prosecutor’s closing argument statements. The Court of Appeals majority agreed, ordering a new trial.

Taking up the State’s appeal based on the dissent, the Supreme Court first explained the purpose of the requirement for an objection at trial to preserve an issue for appeal. The Court noted that this preservation rule helps prevent “gamesmanship” of the appellate process, but “[p]lain error exists for the rare cases where the harshness of this preservation rule vastly outweighs its benefits.” Slip Op. at 7. The Court emphasized the exacting level of the plain error standard, noting:

The question is not whether the challenged evidence made it more likely that the jury would reach the same result. Instead, the analysis is whether, without that evidence, the jury probably would have reached a different result. This is a crucial distinction because something can become more likely to occur yet still be far from probably going to occur.

Id. at 11. In the current case the Court found an example of this error, as the Court of Appeals majority focused on the prejudicial nature of the testimony and how it may have made the jury more likely to convict, which was not the different result required by the plain error standard.

Moving to the closing argument statements, the Court explained that plain error is not applicable, as it is limited to evidentiary or instructional errors. Instead, the “grossly improper” standard applied, which “applies only when the prosecutor’s statements went so far beyond the ‘parameters of propriety’ that the trial court is forced to intervene to ‘protect the rights of the parties and the sanctity of the proceedings.’” Id. at 16, quoting State v. Jones, 355 N.C. 117, 133 (2002). Because the Court of Appeals majority based part of its reasoning about the closing argument on the improperly admitted evidence discussed above, that portion of the conclusion was invalidated when the Court concluded it was not plain error to admit the evidence. A second portion of defendant’s arguments hinged on inflammatory remarks from the prosecutor regarding the possibility of sexually transmitted infections, and the Court agreed that this was an ”improper appeal to the jury’s emotions, rather than an appeal to reason.” Id. at 17. However, because defendant did not object, these statements were subject to the stringent “grossly improper” standard, and the Court did not agree that they represented reversible error. The court concluded by noting that defendant could still pursue an ineffective assistance of counsel claim, as the standard was lower than that of plain error review.

Justice Earls, joined by Justice Riggs, dissented and would have held that the Rule of Evidence 404(b) evidence in the trial was improperly admitted, and represented plain error. Id. at 22.

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