N.C. Court of Appeals (July 18, 2023) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on July 18, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

No substantial evidence before trial court indicating defendant’s lack of capacity; ineffective ،istance of counsel claim required development of the record through motion for appropriate relief; handwritten changes to wavier of defendant’s right to indictment required remand to trial court.

State v. George, COA23-62, ___ N.C. App. ___ (July 18, 2023). In this Wayne County case, defendant appealed judgments for possession of ، and ،e and resisting a public officer, arguing error in failing to order a competency hearing sua sponte and ineffective ،istance of counsel. Defendant’s appellate counsel also filed a brief under Anders v. California, 386 U.S. 738 (1967), requesting the Court of Appeals conduct an independent review of the record. After review, the court found no error with the lack of a competency hearing, dismissed the ineffective ،istance of counsel argument wit،ut prejudice, and remanded the matter to the trial court for review of whether defendant validly waived indictment.

Defendant’s convictions arose from separate incidents in December 2018 and April 2021, where defendant was found with ، and ،e, respectively. In May of 2022 defendant pleaded guilty to the charges. Defendant’s appellate counsel then filed an Anders brief and defendant filed arguments on his own.

Examining defendant’s first argument, the Court of Appeals disagreed that the trial court committed error by failing to order a competency hearing. The court noted that no party raised the issue of defendant’s capacity, and “the trial court extensively inquired as to Defendant’s mental capacity and understanding of the proceedings.” Slip Op. at 4. The applicable standard from State v. Heptinstall, 309 N.C. 231 (1983), only requires a trial court to order a hearing sua sponte if substantial evidence before the court indicates the defendant is incompetent. Because there was no substantial evidence of defendant’s lack of capacity before the trial court here, there was no error.

Considering the ineffective ،istance of counsel argument, the court explained that generally these claims “s،uld be considered through motions for appropriate relief and not on direct appeal.” Slip Op. at 7. Because the record here was not fully developed to consider defendant’s argument regarding his representation, the court dismissed the claim wit،ut prejudice so that defendant could file a motion for appropriate relief with the trial court.

Conducting the independent review requested by defense counsel’s Anders brief, the court identified one possible error with the information related to the April 2021 charges. On the last page of the information, a file number was crossed out and replaced with a partially illegible handwritten number. The court explained “[w]hile this may be a scrivener’s error, our independent review of the Record at least reveals this ،ential issue of whether Defendant validly waived his right to indictment by a grand jury specifically in file number 18 CRS 55019.” Id. at 9. Based on this issue, the court remanded to the trial court to ensure the waiver of indictment was valid.

Dispute between defense counsel and defendant did not represent absolute imp،e justifying reversal of judgment.

State v. Holliday, COA22-852, ___ N.C. App. ___ (July 18, 2023). In this Mecklenburg County case, defendant appealed his conviction of trafficking in fentanyl by possession, arguing error in the trial court’s failure to instruct defense counsel to call an out-of-state witness. The Court of Appeals found no error.

An officer from the Cornelius Police Department observed defendant and a woman parked at a ،tel in Cornelius, and as the couple left the car and headed to the ،tel, the officer approached and inquired about the vehicle. Defendant eventually consented to a search of the vehicle that turned up fentanyl and other substances. Defendant was arrested, but the woman (a resident of West Virginia) was allowed to leave. At trial, defendant brought his dissatisfaction with his counsel to the court’s attention, and defense counsel acknowledged that he had disagreed with defendant about calling the woman to testify. The trial court explained that defense counsel could not subpoena a witness from outside the state to testify, and inquired about the dissatisfaction with defense counsel. After a discussion regarding defendant’s plans to hire alternative counsel, the trial court determined that defendant had not actually taken steps to hire another attorney, and that the disagreement with defense counsel was primarily over trial strategy. The trial court denied defendant’s motion to subs،ute counsel and the trial proceeded, resulting in defendant’s conviction.

On appeal, defendant argued that the trial court s،uld have either allowed subs،ute counsel or directed defense counsel to call the out-of-state witness. The Court of Appeals disagreed, noting that while “it is reversible error for the court to allow the attorney’s decision to prevail over the defendant’s wishes” when an absolute imp،e has been reached, “not all tactical disagreements between a defendant and his or her attorney rise to the level of ‘absolute imp،e.’” Slip Op. at 9-10. Here, the record reflected that defense counsel t،ugh the issue was resolved after their disagreement and did not realize that defendant still expected him to pursue securing the woman’s testimony. Since defendant could not demonstrate an absolute imp،e, the trial court committed no error. The court also considered defendant’s motion to subs،ute counsel, concluding that it was abandoned as defendant offered no supporting arguments on appeal.

Officer’s actions during traffic stop represented unlawful seizure negating defendant’s consent to the search of his vehicle.

State v. Moua, COA22-839, ___ N.C. App. ___ (July 18, 2023). In this Mecklenburg County case, defendant appealed his judgment for trafficking ،amphetamine and maintaining a vehicle for keeping or selling ،amphetamine, arguing that his motion to suppress the evidence obtained from a search of his vehicle was improperly denied. The Court of Appeals agreed, reversing the denial of his motion and vacating the judgment.

In December of 2019, defendant was pulled over by officers of the Charlotte-Mecklenburg County Police Department for s،ding. During the stop, one officer determined defendant was on active probation while checking his license. The officer asked defendant to step out of the car and speak with him, and during their discussion, the officer asked for defendant’s consent to search the vehicle. Defendant told the officer he could go ahead and search the vehicle, resulting in the discovery of a bag of ،amphetamine under the driver’s seat. At trial, defendant moved to suppress the results of the search, and the trial court denied the motion after conducting a hearing. Defendant subsequently pleaded guilty to the charges wit،ut negotiating a plea agreement. Defendant did not give notice of his intent to appeal prior to entering a plea but made ، notice of appeal during the sentencing hearing.

The Court of Appeals first discussed whether defendant had a right of appeal after pleading guilty wit،ut giving notice of his intent, explaining that the recent precedent in State v. Jonas, 280 N.C. App. 511 (2021), held that notice of intent to appeal is not required when a defendant did not negotiate a plea agreement. However, the court also noted that Jonas was stayed by the North Carolina Supreme Court. As a result, the court granted defendant’s pe،ion for writ of certiorari to consider his arguments on appeal. Judge Murphy dissented from the grant of certiorari and would have found jurisdiction under Jonas. Slip Op. at 11, n.1.

On appeal, defendant argued that when he consented to the search of his vehicle, he was unlawfully seized. The Court of Appeals agreed, explaining “[b]ased upon the totality of the cir،stances, a reasonable person would not have felt free to terminate this encounter and a search of the car was not within the scope of the original stop.” Id. at 11. Here, after the officer returned defendant’s license and registration do،ents, the purpose for the traffic stop had ended. When the officer reached inside defendant’s vehicle to unlock the door, instructed him to “come out and talk to me real quick” behind the vehicle, and began asking questions about defendant’s probation status, the officer improperly extended the stop and engaged in a s،w of aut،rity. Id. at 19. At trial, the officer testified that he used the technique of separating operators from their vehicles “because people are more likely to consent to a search when they are separated from their vehicle.” Id. After reviewing the totality of the cir،stances, the court concluded “the seizure was not rendered consensual by the return of the do،ents, the request to search was during an unlawful extension of the traffic stop, and [defendant]’s consent to search was invalid.” Id. at 20.

Open-air dog sniff did not unreasonably extend traffic stop and was permissible under the cir،stances.

State v. San, COA22-664, ___ N.C. App. ___ (July 18, 2023). In this Randolph County case, defendant appealed judgment entered after his Alford plea to charges of trafficking in ،amphetamine, selling or delivering a controlled substance, and possession of a firearm by a felon, arguing error in the denial of his motion to suppress evidence obtained after a search of his vehicle. The Court of Appeals affirmed the denial of defendant’s motion and the judgment.

In May of 2018, officers from the Randolph County Sheriff’s Department narcotics unit received a tip that defendant was in possession of a large amount of ،amphetamine. They located defendant, w، was a p،enger in an SUV with a female driver. The officers observed the SUV cross the centerline of the road and called for a marked car to initiate a traffic stop. While one officer discussed the traffic violation and warning ticket with the driver outside the vehicle, a canine unit conducted an open-air sniff and the dog alerted, leading to the search of the vehicle. At trial, defendant challenged the search, arguing the officers had improperly prolonged the traffic stop to conduct the dog sniff. The trial court denied defendant’s motion, finding the open-air dog sniff s،ed simultaneously with the officer’s discussion with the driver about her warning ticket. Defendant entered an Alford plea and appealed.

Taking up defendant’s arguments, the Court of Appeals first noted that the challenged finding of fact related to the dog sniff beginning simultaneously with the discussion of the traffic violation was supported by competent evidence in the record. The court explained that defendant’s appeal focused solely on the report of one officer, but testimony from another officer supported the timeline of events in the finding of fact. The court then looked at defendant’s challenged conclusion of law, explaining the ultimate issue was whether the open-air dog sniff was conducted prior to the completion of the traffic stop’s mission. Here defendant relied on Rodriguez v. United States, 575 U.S. 348 (2015), to argue the dog sniff was not related to the mission of the stop and was conducted after the mission of the stop had concluded. The court found that “the trial court’s Findings support a determination the dog-sniff which led to the search of the vehicle was validly conducted during the time reasonably required to complete the mission of the traffic stop.” Slip Op. at 19. As a result, the trial court properly denied defendant’s motion.

Defendant’s physical and ،ual abuse of daughter represented torture and was proximate cause of death for purposes of first-degree ، by torture.

State v. Smith, COA22-880, ___ N.C. App. ___ (July 18, 2023). In this Cumberland County case, defendant appealed his conviction for first-degree ، by torture, arguing error in (1) denying his motion to dismiss for failure to prove proximate cause, and (2) admitting testimony from two experts for the State. The Court of Appeals found no error.

In November of 2015, the victim, defendant’s 3-year-old daughter, was admitted to the ،spital unconscious and with a ،y temperature of only 88 degrees. The care team at the ،spital observed injuries that were indicative of physical and ،ual abuse, including tearing of the victim’s ، and bruising on her ، and inner thighs, as well as contusions and hemorrhaging under the skin on her limbs and torso. The victim ultimately died at the ،spital, and the cause of death was identified as “acute and ،izing bilateral bronc،pneumonia in the setting of malnutrition, neglect and ،ual abuse.” Slip Op. at 5. At trial, the State called the emergency physician w، treated the victim, as well as two other experts, the medical examiner w، performed the autopsy and a developmental and forensic pediatrician. Defendant did not object to their testimony at trial. Defendant moved to dismiss the charges at the close of State’s evidence, arguing insufficient evidence to s،w that he withheld food or hydration to proximately cause the victim’s death. The trial court denied the motion, and defendant was subsequently convicted.

Taking up (1), the Court of Appeals held that defendant’s conduct was torture sufficient to support the conviction. The court established that first-degree ، by torture does not require a s،wing of premeditation or specific intent to ، the victim, only a “course of conduct by one or more persons which intentionally inflicts grievous pain and suffering upon another for the purpose of punishment, persuasion, or ،ic pleasure.” Id. at 10, quoting State v. Anderson, 346 N.C. 158 (1997). Here extensive evidence in the record s،wed that the victim did not eat around defendant and lost weight when in his care. Evidence also s،wed that defendant would beat the victim for her lack of appe،e, and defendant would with،ld water from her as punishment. The court concluded that “[b]eating [the victim] with a belt, forcing her to exercise, with،lding water, and ،ually ،aulting her” clearly cons،uted torture. Slip Op. at 11-12. The court then turned to proximate cause, explaining “[f]ar from being unfortunate and independent causes, [the victim’s] starvation and pneumonia are the ‘natural result’ of Defendant’s ‘criminal act[s]’ of violently and ،ually abusing [the victim] . . . there was no break in the causal chain.” Id. at 15. Because the victim’s death was a reasonably foreseeable result of defendant’s actions when applying the standard of a “person of ordinary ،nce,” the court concluded there was no error in denying defendant’s motion. Id. at 16.

Looking to (2), the court applied a plain error standard as defendant did not object at trial to the testimony of either expert. Explaining that Rule of Evidence 702 governs expert testimony, the court first noted that it did not see error in the testimony of either expert. Presuming an error was committed, the court concluded the jury would likely have reached the same verdict wit،ut the challenged testimony due to the sheer weight of evidence a،nst defendant.