N.C. Court of Appeals (June 4, 2024) – North Carolina Criminal Law

N.C. Court of Appeals (June 4, 2024) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on June 4, 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.

Order of specific performance for plea agreement was error where defendant did not show detrimental reliance on the agreement.  

State v. Ditty, COA23-141, ___ N.C. App. ___ (June 4, 2024). In this Cumberland County case, both the State and defendant filed petitions for writ of certiorari after the trial court issued an order to enforce a plea agreement between the parties. The Court of Appeals held that the trial court had jurisdiction to enter the order, but reversed the order’s requirement for specific performance because defendant did not show detrimental reliance on the agreement prior to the State’s withdrawal, remanding for further proceedings.

In March of 2016, defendant was charged with child abuse and first-degree murder in connection with the death of her daughter. Defendant negotiated a plea agreement based upon the argument that her romantic partner caused the injuries to the child, ultimately reaching an agreement to plead guilty to accessory after the fact to first-degree murder. The State requested defendant submit to a polygraph and not to move for bond reduction or seek a probable cause hearing during its investigation, which defendant did. Defendant also submitted to a second interview with investigators. After all this, the State provided a plea agreement for accessory after the fact to first-degree murder, which defendant signed in January 2018, with a plea hearing set for March 2018. However, before the plea hearing, the district attorney’s office cancelled the hearing, and then withdrew as counsel for the State due to a conflict. The newly appointed special prosecutor then cancelled the plea agreement in April 2018 and made a new offer which defendant rejected. Defendant filed a motion to enforce the prior plea agreement, which the trial court denied in November 2018. Defendant proceeded to trial on the charges, and filed a second motion seeking specific performance of the plea agreement. In November 2021, a second judge acting as the trial court granted this second motion to enforce the agreement, leading to the present appeal prior to any judgment in defendant’s case.

The Court of Appeals first took pains to explain the complicated procedural history of the case, noting it arose from an interlocutory order reviewed under N.C. Rule of Appellate Procedure 21(a)(1). The court then moved to the issue of the trial court’s jurisdiction, explaining that the initial ruling of November 2018 was not properly entered in the record. The court turned to State v. Oates, 366 N.C. 264 (2012), for the proposition that in criminal cases a judgment is entered “when the clerk of court records or files the judge’s decision.” Slip Op. at 12. Although the trial court announced a November 2018 ruling in open court, the record did not show any file stamp or entry by the clerk recording the order, leading the court to conclude it was never entered. This meant that the second judge acting as trial court had jurisdiction to enter an order in November 2021.

Having established jurisdiction, the court moved to the enforceability of the plea, concluding that the trial court mistakenly determined defendant’s due process rights were violated. The court reviewed Supreme Court precedent on the issue including State v. Collins, 300 N.C. 142 (1980), and articulated the applicable rule:

The State may be bound to an offer which has not resulted in the actual entry and acceptance of the defendant’s guilty plea only when the defendant is necessarily prejudiced by changing her position in detrimental reliance upon that agreement prior to judicial sanction or the State’s withdrawal.

Slip Op. at 20. Here, the court did not find the necessary detrimental reliance, explaining the terms of the plea agreement did not require defendant to submit to the interview or forego the bond reduction or probable cause hearings, and those events took place prior to the plea agreement offer. The trial court’s findings did not show detrimental reliance by defendant after the presentation of the plea agreement in January 2018, leading the court to conclude it was error to order specific performance of the agreement.

Trial court judge properly denied request for recusal under G.S. 15A-291.

State v. Guzman, COA23-412, ___ N.C. App. ___ (June 4, 2024). In this Forsyth County case, defendant appealed the denial of his request for the trial court judge’s recusal due to the judge’s issuance of several tracking and cell site location orders. The Court of Appeals majority affirmed the denial of the request for recusal.

In 2019 and 2020, law enforcement obtained several orders to intercept cell phone calls and conversations between defendant and co-conspirators from a judicial review panel under G.S. 15A-291. After obtaining these orders, law enforcement sought three more orders allowing a GPS tracking device, a pen register and trap and trace device, and cell site location information and call detail records for two target phones relevant to defendant. These three orders were issued in December 2019 and January 2020 by the same judge who would later preside over the trial and form the basis of the request for recusal. After defendant was indicted for trafficking cocaine, he raised the issue of recusal with the trial court, pointing to G.S. 15-291(c). The trial court refused the request for recusal, as “the orders were authorized pursuant to sections 15A-262 and 15A-263 of Article 12, not pursuant to section 15A-291 of Article 16, and [the trial court judge] was not part of a judicial review panel as stated in the plain language of section 15A-291(c).” Slip Op. at 3. After defendant’s conviction, he appealed, arguing recusal was required.

The Court of Appeals first explained defendant’s arguments, noting the primary point that Article 16 of G.S. Chapter 15A, and G.S. 15-291 itself, both reference “electronic surveillance,” seemingly showing that the recusal requirement from the statute controls all requests for surveillance involving electronic means. The court rejected this conclusion, explaining “[t]he plain language of section 15A-291(c) only disqualifies judges who enter orders as part of a judicial review panel that authorize ‘any manner related to information gained pursuant to a lawful electronic surveillance order.’” Id. at 7. The court also noted that defendant failed to preserve a challenge to the validity of the orders, meaning its conclusion was solely on the recusal issue.

Judge Hampson concurred by separate opinion, expressing concern about the scope of the order issued by the judge permitting the collection of cell site location information under Article 12 of G.S. Chapter 15A.

Judge Arrowood dissented, and would have held that defendant adequately preserved the challenge to the validity of the orders issued by the judge, and that G.S. 15A-291(c) was applicable to the orders and required the judge’s recusal.

Exclusion of handwritten note from alleged victim justified granting new trial.

State v. Lail, COA23-845, ___ N.C. App. ___ (June 4, 2024). In this Catawba County case, defendant appealed his convictions for statutory rape, indecent liberties with a child, and incest with a child, arguing error in excluding a handwritten note that defendant attempted to introduce to attack the alleged victim’s credibility. The Court of Appeals majority agreed with defendant, ordering a new trial.

In April of 2020, the alleged victim ran away from home, eventually telling police that she left because she was angry at defendant for cancelling a sleepover with her friends. She alleged several incidents of sexual abuse by defendant, and a forensic examination found evidence of past sexual trauma. At trial, defendant attempted to attack the victim’s credibility by introducing a handwritten note that she snuck out of her bedroom window one night to meet her boyfriend. Defendant argued the note showed (1) lack of credibility and (2) a possible perpetrator of the assaults, the boyfriend. After voir dire about the note and an extended discussion with the parties, the trial court held the note was inadmissible, noting it was more prejudicial than probative.

Taking up the defendant’s argument, the Court of Appeals majority first established that defendant adequately preserved the objection to the trial court’s ruling, despite a confusing exchange between defense counsel and the trial court regarding the objection. The court then explained the abuse of discretion, holding that “[t]he trial court applied the wrong legal standard because: (1) it failed to engage in the requisite [Rule] 403 balancing; and (2) it failed to find that the Note’s probative value was substantially outweighed by the possibility of unfair prejudice.” Slip Op. at 12 (cleaned up). Because the credibility of the alleged victim was the primary issue at trial, impeachment of her was central to defendant’s case, and “[t]he contradictions within the Note and created by the Note are highly probative of Complainant’s credibility.” Id. at 13. As a result of the trial court’s error, defendant was prejudiced and the court ordered a new trial.

Judge Tyson dissented, and would have applied the plain error standard to reviewing defendant’s argument as it was not properly preserved; the judge also would have held that the Rule 403 conclusion excluding the note was not an abuse of discretion had it been preserved. The lengthy dissent also discusses Rule 412 and defendant’s objections to certain expert testimony.

Defendant had constructive possession of FedEx package containing methamphetamine to support conviction.

State v. McNeil, COA 23-977, ___ N.C. App. ___ (June 4, 2024). In this Randolph County case, defendant appealed his conviction for trafficking methamphetamine by possession, arguing error in denying his motion to dismiss and denying his request for a jury instruction on the lesser-included offense of attempted trafficking. The Court of Appeals found no error.

In October of 2019, a detective for the Asheboro Police Department learned that the Department of Homeland Security had intercepted a package testing positive for liquid methamphetamine. The detective and other officers set up a plan to execute a controlled delivery of the package, and when the package was delivered, a resident of the home called defendant to come and retrieve his package. When defendant arrived, he was arrested. Subsequently, two more packages arrived at the home containing marijuana, and defendant pleaded guilty to charges related to those packages. The guilty plea transcript was admitted into evidence in the current case. After the close of State’s evidence, defendant moved to dismiss the charges against him, and the trial court dismissed one charge of trafficking by transportation, but denied the motion for the trafficking by possession charge. Defendant was subsequently convicted, and appealed.

Beginning with defendant’s motion to dismiss, the Court of Appeals first reviewed the precedent around constructive possession, as defendant argued he never possessed or controlled the package of methamphetamine as he was arrested before he could retrieve it from the home. The court found sufficient constructive possession, explaining “[d]efendant was within close juxtaposition to the seized package; had knowledge about the details of the delivery, including the carrier service and name on the package; arrived at the house as soon as he learned it had been delivered; and had subsequent packages containing contraband sent to the house.” Slip Op. at 9.

The court then considered the jury instruction argument, noting that the plain error standard applied as defendant did not object to the instructions at trial. Here, the State presented sufficient evidence of all elements of the offense as noted in the constructive possession discussion, and “an attempt instruction was not required as the offense was complete when Defendant arrived at the house and walked through the door.” Id. at 11.

State failed to enter proof of the value of victim’s car, invalidating underlying felony for first-degree murder conviction.

State v. Montanino, COA23-409, ___ N.C. App. ___ (June 4, 2024). In this Durham County case, defendant appealed his conviction for first-degree murder based on the felony-murder rule, arguing insufficient evidence of the underlying felony because the State did not admit evidence establishing the value of the victim’s car. The Court of Appeals agreed, reversing defendant’s conviction and remanding for the trial court to enter judgment on the lesser-included offense of involuntary manslaughter.

In July of 2018, police found the victim dead in her apartment; the police noted the apartment looked as if there had been a party, as it was in disarray. Defendant was known to have spent time drinking with the victim, and his fingerprints were found on beer cans in the apartment. Later that day, police found defendant in Chapel Hill near defendant’s car, and defendant asked “is she dead?” when he was arrested. Police found the victim’s driver’s license and debit card in defendant’s wallet and determined defendant sold the victim’s smartphone in Burlington. Defendant was subsequently convicted based on the felony-murder rule as the determination was that the victim died while defendant was stealing her car.

The Court of Appeals first considered defendant’s argument that the jury instruction sheets were flawed as they did not have a selection for “not guilty.” The court noted defendant did not raise this objection during trial, and that the plain error standard applied. Because the jury selection sheet had a space for “no” for each charge, the court determined this did not represent plain error. The court noted this was not ideal, but when combined with the jury instructions from the trial court, the issue did not rise to the level of plain error.

Moving to the felony murder argument, the court explained that “in order to prove felony larceny, the State had the burden of proving that the victim’s car was worth over $1,000.00.” Slip Op. at 8. Here, “the State did not offer any opinion evidence regarding the vehicle’s value, evidence of what the victim paid for the vehicle, or any other evidence which included a dollar amount from which the jury could make a value determination.” Id. at 10. Although the State referenced various pieces of evidence in the record that could have supported the value was over $1,000, the court noted this was insufficient. Under State v. Holland, 318 N.C. 602 (1986), providing information about the vehicle’s make and year, a picture of the vehicle, and evidence the vehicle was operational did not represent sufficient evidence for a jury to establish a monetary value, and the court noted that here, the State presented even less evidence than in Holland.

The court also provided an explanation of the basis for entering judgment or retrying defendant for lesser-included offenses, explaining “[a] retrial for second-degree murder and/or voluntary manslaughter is one of ‘continuing jeopardy,’ as the original indictment in this case embraced second-degree murder and involuntary manslaughter as lesser-included offenses of first-degree premeditated murder and also embraced misdemeanor manslaughter as a lesser-included offense of first-degree felony murder.” Slip Op. at 14.

Judge Stroud concurred as to the insufficiency of the evidence related to the car’s value, but dissented from the conclusions related to the jury selection sheet, and would have granted defendant a new trial.

Circumstantial and direct evidence supported conclusion that defendant knew child was under 16 years of age when he solicited her via Snapchat.

State v. Primm, COA23-949, ___ N.C. App. ___ (June 4, 2024). In this Iredell County case, defendant appealed his conviction for solicitation of a child by an electronic device, arguing he did not know the victim was under sixteen years old. The Court of Appeals found no error.

In September of 2019, defendant exchanged snapchat messages with a fourteen-year-old girl he had met when he was giving a roofing estimate to her parents. Defendant’s messages to the girl became sexually explicit, and he set up a time to meet with her, driving to her home. At that point, the girl became scared and told her parents, who called police to report the situation. Defendant never met with the victim, but snapchat messages were later retrieved from her phone and used by officers in the investigation. Defendant moved to dismiss the charges, arguing insufficient evidence was admitted that he knew the victim’s age before traveling to meet her, but the trial court denied the motion.

Taking up defendant’s argument, the Court of Appeals explained substantial evidence, both circumstantial and direct, supported denial of defendant’s motion. Circumstantially, defendant knew that the girl was taking dual-enrollment community college classes while still in high school. For direct evidence, the girl messaged defendant that she was under fourteen after she went into her parents’ room to tell them of the situation, and in her message, she asked defendant if that was a problem. Defendant responded “naw,” which was ambiguous, but the court explained “in the light most favorable to the State, Defendant’s response indicated he did not care that [the victim] was fourteen and chose to proceed with the plan to meet with her to engage in sexual activity regardless of her age.” Slip op. at 10.

District court retained jurisdiction to alter pretrial release bond after defendant announced his intention to appeal to superior court; district court erred by not making written findings when imposing secured bond but this error did not justify dismissal of charges.

State v. Robinson, COA23-564, ___ N.C. App. ___ (June 4, 2024). In this Guilford County case, the State appealed an order granting dismissal of the assault, interfering with emergency communications, and communicating threats charges against defendant after the district court imposed a $250 secured bond when defendant announced his intention to appeal to superior court. The Court of Appeals reversed the superior court order dismissing the charges, remanding for further findings to support the imposition of a secured cash bond.

In June of 2019, defendant was charged with felony assault by strangulation, interfering with emergency communications, and communicating threats, and received a $2,500 unsecured bond for pretrial release. The State reduced the assault by strangulation charge to simple assault, and a district court bench trial was held in August 2022. Defendant was found guilty on all charges, and given a 150-day suspended sentence. Defendant then gave notice of appeal, at which point the district court modified defendant’s pretrial release to require a $250 secured bond, leading to defendant being taken into custody for a few hours while his family posted the bond. In October 2022, defendant moved at the superior court to dismiss the charges, and the superior court granted the motion, finding the district court did not properly modify defendant’s bond pursuant to statute and the denial of his right to a reasonable bond impermissibly infringed on his Fourth Amendment and Sixth Amendment rights.

Taking up the State’s appeal, the Court of Appeals first looked at the district court’s jurisdiction to modify the pretrial release bond, as defendant argued that the district court was immediately divested of jurisdiction when he announced his appeal. Looking to the language of G.S. 15A-1431, the court concluded “[g]iven that the plain language contained in Section 1431 mandates action from a magistrate or district court following a defendant giving notice of appeal, we conclude that the district court is not immediately divested of jurisdiction following ‘the noting of an appeal.’” Slip Op. at 11. This meant that the district court retained jurisdiction to modify defendant’s pretrial release. The court then looked to G.S. 15A-534 for the requirements to impose a secured cash bond, finding that the district court did not properly record its reasons in writing, meaning the superior court’s order was correct in finding the district court erred.

Having established that the district court erred by imposing a secured bond without written findings, the court moved to the question of whether defendant’s rights were flagrantly violated and whether his case suffered irreparable prejudice to support dismissal of the charges against him under G.S. 15A-954. The court concluded that defendant had not been irreparably prejudiced, looking to the superior court’s own findings, pointing to Finding No. 12 that “the court does not find, that the $250 cash bond and subsequent time in custody affected defendant’s ability to prepare his case in superior court, or otherwise to consult with counsel to be ready for trial.” Id. at 14 (cleaned up). Because the superior court’s own findings showed no prejudice and the findings were not challenged on appeal, the court determined it was error to grant defendant’s motion to dismiss.

Trial court did not err in denying defendant’s request to withdraw his plea as defendant did not provide just and fair reason for withdrawing the plea.

State v. Scott, COA23-936, ___ N.C. App. ___ (June 4, 2024). In this New Hanover County case, defendant appealed after a guilty plea to four counts of selling crack cocaine, arguing error in denying his motion to withdraw his guilty plea and failing to advise him of the consequences of pleading guilty. The Court of Appeals denied defendant’s petition for review of the trial court’s advice regarding his guilty plea, and found no error.

Between September 2017 and May 2018, defendant sold crack cocaine to confidential informants working for the Wilmington Police Department while being recorded on video. Defendant reached a plea agreement where he would plead guilty to four counts of selling crack cocaine and other charges would be dismissed, and the State prayed for judgment to be continued with defendant on pretrial release with the presumption that defendant would testify in an unrelated matter. While on pretrial release, defendant was arrested for possession of a firearm by a felon and other charges, and his pretrial release was revoked. Defendant subsequently decided not to testify for the State in the unrelated matter, and the State prayed for judgment on defendant’s plea, leading to his sentencing in January 2023. At the sentencing defendant moved to withdraw his plea, but the trial court denied his motion after reviewing the plea colloquy.

Considering defendant’s first issue, the Court of Appeals explained that defendant’s side agreement to testify for the State was not put before the trial court, and thus his argument that the trial court did not advise him of the possible consequences was not appealable. This led defendant to file a petition for writ of certiorari. Looking to the record, the court noted that it was defendant’s choice not to put the agreement for his testimony on the plea transcript, as he did not want to be seen cooperating with the State. The court noted that the trial court still attempted to advise defendant of possible consequences, and found no merit in his petition.

Moving to defendant’s motion to withdraw his plea, the court explored defendant’s argument about an “order for his arrest” that the State delayed serving on defendant before his plea, finding no clear evidence of this issue. Slip Op. at 8-9. The court did find clear evidence that defendant did not provide a just and fair reason for withdrawing his plea, as the State’s evidence against defendant was strong, defendant had ample time to review and prepare prior to entering his plea, and the trial court explained the possible outcomes from his plea prior to entering it. Instead, the record showed defendant “was dissatisfied with the outcome of his plea despite being made fully aware of said outcome prior to entering the plea.” Id. at 9.

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