N.C. Court of Appeals (Dec. 19, 2023, and Jan. 2, 2024) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on December 19, 2023, and January 2, 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.

Defendant’s traumatic brain injury and subsequent memory loss did not render him incompetent to stand trial.

State v. Bethea, COA22-932, ___ N.C. App. ___ (Dec. 19, 2023). In this Scotland County case, defendant appealed his convictions for attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, assault with a firearm on an officer, and carrying a concealed gun, arguing abuse of discretion in finding him competent to stand trial. The Court of Appeals disagreed, finding no error.

In May of 2018, defendant walked up to a crime scene and passed under the police tape into the secured area. Two officers on the scene moved to arrest defendant, and in the ensuing confrontation, defendant drew his firearm and shot at one of the officers. Defendant attempted to flee but was struck by shots from one of the officers. At the hospital, defendant was diagnosed with a traumatic brain injury. Before trial, defendant’s counsel filed a motion for capacity hearing due to his alleged memory loss from the brain injury. The trial court held a competency hearing, where a doctor provided by the defense testified that defendant could not remember the days leading up to the confrontation with police or the events of the day in question, but that defendant had a “rational understanding” of the legal proceedings against him. Slip Op. at 3. The trial court ruled defendant was competent to stand trial, and he was subsequently convicted.

Taking up defendant’s appeal, the Court of Appeals noted that “our Supreme Court has explained that even when a defendant’s ability to participate in his defense is limited by amnesia, it does not per se render him incapable of standing trial.” Id. at 6. Although defendant argued his memory loss made him unable to participate in his defense, the court disagreed, explaining “he was able to understand the nature and object of the proceedings against him and able to comprehend his own situation in reference to the proceedings.” Id. The court found no abuse of discretion by the trial court when weighing the testimony and concluding that defendant was competent to stand trial.

State’s circumstantial evidence was sufficient to sustain conviction; evidence of State’s expert making a mistake in a previous trial did not justify granting MAR; evidence of defendant previously removing his electronic monitoring device was properly admitted.

State v. Burnett, COA23-246, ___ N.C. App. ___ (Dec. 19, 2023). In this New Hanover County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denying his motion to dismiss for lack of evidence he was the perpetrator; (2) overruling his objection that the trial court did not make necessary findings on reliability for expert testimony; (3) denying his post-conviction motion for appropriate relief (MAR) based upon newly-discovered evidence; (4) admitting evidence of his prior removal of an electronic monitoring device; and (5) overruling his objections to the State’s closing argument. The Court of Appeals found no error.

In January of 2016, officers responded to a call about a fourteen-year-old being shot. While accompanying the ambulance to the hospital, they received a report of additional shots fired, and diverted to the scene, where the officers found defendant running from the area. After arresting defendant, officers found he was carrying a 9mm handgun. The State Crime Laboratory later matched the bullet that killed the victim to this handgun. Defendant was subsequently convicted and appealed.

Taking up defendant’s argument (1), the Court of Appeals explained that because the evidence that defendant was the perpetrator was circumstantial, proof of motive, opportunity, and means were necessary to support the inference that defendant committed the crime. Here, the State admitted evidence that the shooting was in retaliation for a previous shooting two weeks prior, and that the shell casing found at the scene, the bullet in the victim, and defendant’s statements to police all tied him to the murder. As a result, “[a] reasonable juror could find Defendant had the opportunity and means to commit the murder.” Slip Op. at 8.

Turning to (2), the court noted that trial courts enjoy wide latitude when determining admissibility of expert testimony. Here, defendant argued that the State’s firearm expert did not utilize “reliable principles and methods” in violation of Rule of Evidence 702, as the State’s expert utilized a micro-analysis test instead of a lands and grooves test on the projectile, a method disputed by the defense’s expert. Id. at 10. The court found no abuse of discretion as “[t]he superior court made supported findings to resolve purported contradictions between the competing experts.”

Reviewing (3), the court explained defendant’s newly discovered evidence concerned the history of the State’s expert receiving a complaint from a superior court judge as well as a mistake during a firearm examination in a previous case. The court noted that the State was not in possession of the expert’s personnel records and was not aware of the purported mistake, and under Brady v. Maryland, 373 U.S. 83 (1963), the State had not suppressed material evidence. The court further noted that defendant was not entitled to a new trial as the newly discovered evidence “merely questions the expert witness’ past, not the State’s evidence at this trial.” Id. at 14.

Arriving at (4), the court explained that the trial court’s decision to admit evidence of defendant removing his electronic monitoring device fifteen days before the shooting under Rule of Evidence 404(b) was not error. Defendant “disabled his electronic monitoring device approximately an hour after another murder was committed two weeks earlier in the same area of Wilmington . . . [t]he evidence and timing of these incidents and Defendant’s actions are part of the chain of events that contextualize the crime.” Id. at 16.

Finally, the court dispensed with (5), explaining that the prosecutor’s closing argument did not shift the burden onto defendant, as the statements merely referenced defendant’s failure to refute the evidence admitted at trial. Likewise, the prosecutor’s reference to a link between the murder and retaliation for a previous murder was not an improper reference to “gangs” and was supported by evidence and testimony admitted at the trial.

Trial court failed to exercise gatekeeping function under Rule 702 but error did not rise to plain error standard; prosecutor’s improper comment during closing argument did not represent error.

State v. Figueroa, COA23-313, ___ N.C. App. ___ (Dec. 19, 2023). In this Guilford County case, defendant appealed her conviction for trafficking methamphetamine, arguing (1) plain error in admitting testimony from an expert without a sufficient foundation for reliability under Rule of Evidence 702, and (2) error in failing to intervene ex mero motu when the prosecutor made improper remarks during closing argument about her past convictions. The Court of Appeals found no plain error in (1), and no error in (2).

In November of 2018, law enforcement officers set up an undercover investigation of a suspected drug dealer. At a meeting set up by an undercover officer to purchase methamphetamine, defendant was the driver of the vehicle with the drug dealer. After officers found methamphetamine in the vehicle, defendant was charged and ultimately convicted of trafficking methamphetamine by possession.

Looking to (1), the Court of Appeals found error in admitting the State’s expert testimony under Rule 702, as “the court failed to exercise its gatekeeping function” when admitting the expert’s testimony. Slip Op. at 7. Although the expert offered testimony about the type of analysis she performed to identify the methamphetamine, “she did not explain the methodology of that analysis.” Id. However, the court noted that this error did not rise to the level of plain error as the expert “identified the tests she performed and the result of those tests,” and she did not engage in “baseless speculation.” Id.

Turning to (2), the court noted that defendant testified on her own behalf and opened the door to character evidence about her past convictions, and that she did not object at trial to the improper argument. The court found the majority of the closing argument to be unobjectionable, but did agree that the prosecutor “improperly suggested that Defendant was more likely to be guilty of the charged offenses based on her past convictions.” Id. at 9. However, this improper suggestion was only “a few lines of the prosecutor’s eighteen-page closing argument” and “was not so grossly improper that it warranted judicial intervention.” Id.

Limitation on cross-examination related to Sell hearing was not error; trial court properly denied defendant’s request for special instruction on insanity.

State v. Gregory, COA22-1034, ___ N.C. App. ___ (Dec. 19, 2023). In this Wake County case, defendant appealed his convictions for first-degree murder, rape, kidnapping, robbery, and associated crimes, arguing error in (1) the limitation of his cross-examination of the State’s psychiatry expert, and (2) denial of his request for a special jury instruction on insanity. The Court of Appeals majority found no error.

During a violent period in August of 2015, defendant stole two vehicles, robbed and shot a man at a motel, robbed and shot another man at a pawn shop, kidnapped and raped a fifteen-year-old girl, and robbed a food store. Defendant was ultimately arrested in New York driving one of the stolen vehicles, and extradited back to North Carolina, where he was committed to Central Regional Hospital for an examination on his capacity to proceed to trial. Initially defendant was found incapable of proceeding, and he was involuntarily committed in February of 2018. In February of 2020, the State moved to have defendant forcibly medicated, and the trial court held a hearing under Sell v. United States, 539 U.S. 166 (2003). At the Sell hearing, the State’s expert testified about defendant’s mental illness and whether he should be forcibly medicated, but the hearing was continued, and defendant began voluntarily taking his medication again before the hearing was concluded. Defendant came to trial in July 2020 and presented the defense of insanity. Defense counsel sought to cross-examine the State’s expert on her testimony during the Sell hearing. The State objected under Rule of Evidence 403, and the trial court directed defense counsel to avoid any questions related to the Sell hearing or forcible medication. When the parties met for the charge conference, defense counsel requested an addition to N.C.P.I. – Crim. 304.10 (regarding insanity), referring to commitment procedure if he was found to be not guilty by reason of insanity. The State objected to this addition, and agreed to avoid misrepresenting how quickly defendant might be released during closing argument. Defense counsel went on to provide the same argument requested in the special jury instruction during closing argument. Defendant was found guilty of all charges, and appealed.

Taking up (1), the Court of Appeals noted that defendant’s argument was focused on “[the expert’s] testimony that defendant needed to be forcibly medicated to regain his capacity to proceed.” Slip Op. at 13. The State used this expert’s testimony to rebut defendant’s defense of insanity, and defense counsel had attempted to impeach the expert with her testimony from the Sell hearing that defendant needed forcible medication. The court rejected defendant’s argument that excluding this line of questioning violated defendant’s Confrontation Clause rights, pointing out the jury was aware of defendant’s mental illness and the expert’s history of evaluating defendant, and “defendant was not limited in attacking [the expert’s] credibility or asking about the differences between her previous testimony at the hearing and her subsequent testimony at trial.” Id. at 16. The court went further, explaining that even if the Sell hearing and forcible medication were relevant, the risk of unfair prejudice substantially outweighed its probative value.

Reviewing (2) defendant’s special jury instruction request, the court again disagreed, noting “[h]ere, the pattern jury instruction on commitment procedures, N.C.P.I. – Crim. 304.10, sufficiently encompasses the substance of the law.” Id. at 18. Holding that defendant’s situation did not justify altering the instruction, the court explained “[d]efendant’s case is neither so exceptional nor extraordinary such that the pattern jury instruction on commitment procedures fails to adequately encompass the law or risks misleading the jury.” Id.

Judge Hampson dissented and would have allowed cross-examination on the Sell hearing.

Defendant’s use of a price label sticker from another product did not represent larceny by product code under G.S. 72.11(3).

State v. Hill, COA22-620, ___ N.C. App. ___ (Dec. 19, 2023). In this Onslow County case, defendant appealed his convictions for larceny from a merchant by product code and misdemeanor larceny, arguing error in (1) denying his motion to dismiss, and (2) ordering him to pay an incorrect amount of restitution. The Court of Appeals found no error with the misdemeanor larceny conviction, but vacated the larceny by product code conviction and remanded for resentencing and a new order of restitution.

In February of 2020, a Walmart manager saw defendant putting a sticker with a product code for a Tupperware container over the product code on a sewing machine box. The manager followed defendant, noticing that he went to the electronics department and several other areas of the store and placed things in his backpack, then headed to the self-checkout. At the self-checkout, defendant scanned the sticker, which resulted in a $7.98 charge for a $227 sewing machine. Defendant also had placed electronics into his backpack that he did not scan or pay for, and fled the store when the manager attempted to confront him. At trial, proof of the product code sticker, along with receipts for the merchandise stolen, were admitted into the record.

The Court of Appeals first considered the larceny by product code charge, looking to G.S. 14-72.11(3), specifically the meaning of “created” in the sentence “[b]y affixing a product code created for the purpose of fraudulently obtaining goods or merchandise from a merchant at a reduced price.” Slip Op. at 6. Explaining that this was a matter of first impression, the court looked to the plain meaning of “create,” as well as its use in context of the section, to weigh whether this language contemplated repurposing an existing product code as defendant had done here. The court pointed out that G.S. 14-72.1(d) seemed to more appropriately reflect the repurposing done by defendant in this case, as it considered transferring a price tag for obtaining goods at a lower price. Id. at 15. This led the court to agree with defendant that the charge was not applicable, concluding:

Because the larceny [statutes] are explicit about the conduct which constitutes each level of offense, we conclude the word “created” in Section 14-72.11(3) applies to the specific scenario where (1) an actor (the defendant or another person) created a false product code “for the purpose of fraudulently obtaining goods or merchandise at a reduced price” and (2) the defendant affixed it to the merchandise.  Section 14-72.11(3) does not apply where a defendant transfers a legitimate product code printed on the price tag from one product to another, which is already punishable as a misdemeanor under Section 14-72.1.

Id. at 18. However, because the indictment still alleged the essential elements of larceny, defendant’s argument of a fatal variance failed when applied to the misdemeanor larceny charge. Additionally, the court noted that the sewing machine was left behind when defendant fled the store, justifying a reduction in the value of restitution. The court remanded to the trial court for resentencing and recalculation of restitution.

Judge Tyson concurred by separate opinion to address the appropriate charge of shoplifting by substitution of tags under G.S. 14-72.1(d).

Judge Standing concurred in the result only.

State admitted sufficient evidence to support conviction under death by distribution statute; testimony regarding previous drug sales was admissible under Rule 404(b).

State v. McCrorey, COA23-592, ___ N.C. App. ___ (Dec. 19, 2023). In this Cabarrus County case, defendant appealed his death by distribution conviction, arguing error in (1) denial of his motion to dismiss, and (2) improperly admitting Rule of Evidence 404(b) evidence. The Court of Appeals found no error.

In March of 2020, defendant sold drugs, purportedly heroin and cocaine, to two women. After taking the drugs, one of the women died, and toxicology determined she had both cocaine and fentanyl in her bloodstream. The level of metabolites for both cocaine and fentanyl were determined to be in the fatal range. When defendant came to trial on charges of death by distribution, the trial court allowed the surviving woman to testify about defendant’s prior sales of drugs to her as Rule 404(b) evidence to show defendant’s “intent, identity, and common scheme or plan.” Slip Op. at 5.

Considering (1) defendant’s motion to dismiss, the Court of Appeals addressed defendant’s arguments in relation to the elements of G.S. 14-18.4(b), the death by distribution statute. The court explained that circumstantial evidence supported the conclusion that defendant sold fentanyl instead of heroin to the victim. The court also noted “[w]hile the evidence does not foreclose the possibility that fentanyl may not have been the sole cause of [the victim’s] death, there is ample evidence to support a conclusion that it was, in fact, fentanyl that killed [the victim].” Id. at 9. Rejecting defendant’s argument that he could not foresee that the victim would consume all the drugs at once, the court found sufficient evidence to submit the question of proximate cause to the jury.

Moving to (2) the Rule 404(b) evidence, the court noted that the trial court engaged in a lengthy analysis of whether to admit the testimony related to previous drug sales. Here, the testimony “demonstrate[d] not only the common plan or scheme of Defendant’s drug sales, but also his intent when transacting with [the woman],” and also served to confirm his identity. Id. at 13. Because the court could not establish a danger of unfair prejudice outweighing the probative value of the testimony, it found no error.

Sufficient evidence supported conclusion that defendant consented to search of his vehicle; evidence of other incriminating circumstances supported constructive possession of cocaine.

State v. Michael, COA22-846, ___ N.C. App. ___ (Dec. 19, 2023). In this Davidson County case, defendant appealed his conviction for possession of a controlled substance, arguing error in (1) denying his motion to suppress the evidence obtained from a search of his vehicle, and (2) denying his motion to dismiss for insufficient evidence that he knowingly possessed cocaine. The Court of Appeals found no error.

In July of 2019, defendant was driving with two passengers when he was pulled over for failing to yield. After the officers had returned ID cards to defendant and his passengers, one officer asked for permission to search the vehicle. Defendant told the officer that he was on probation and had to allow the search. The officers discovered cocaine and drug paraphernalia during a search of the vehicle. Before trial, defendant filed a motion to suppress, which was denied. Defendant failed to object during trial when the State admitted evidence obtained through the search.

Taking up (1), the Court of Appeals noted the standard of review was plain error as defendant did not object to the admission of evidence during the trial. Here, the search of the vehicle occurred after the traffic stop had concluded. Because defendant was on probation, he is presumed to “have given consent to a search where an officer has reasonable suspicion of a crime.” Slip Op. at 5. The trial court did not provide justification in writing, but in open court stated that she concluded the officer “had reasonable suspicion to conduct the search.” Id. at 6. The court noted that, although the trial court did not consider defendant freely giving consent in the absence of reasonable suspicion, “there was sufficient evidence from which the trial court could have found as fact at trial that Defendant voluntarily consented to the search had Defendant objected when the evidence was offered by the State.” Id. at 7. As a result, defendant could not show plain error from the failure to suppress.

Dispensing with (2), the court noted that the State presented “evidence of other incriminating circumstances, including the placement of the cocaine in the driver’s door, as well as the Defendant’s nervous behavior,” to support the inference that defendant constructively possessed the cocaine. Id. at 8.

Judge Arrowood concurred by separate opinion, writing to address the analysis of the trial court related to the officer’s reasonable suspicion to extend the stop and conduct a search.

Defendant was not entitled to a jury instruction on voluntary intoxication or second-degree murder while on trial for first-degree murder.

State v. Rubenstahl, COA23-314, ___ N.C. App. ___ (Dec. 19, 2023). In this Cumberland County case, defendant appealed his first-degree murder conviction, arguing error in failing to instruct the jury on (1) the affirmative defense of voluntary intoxication, and (2) the lesser-included offense of second-degree murder. The Court of Appeals disagreed, finding no error.

Defendant’s wife was found dead in their home in February of 2021. Leading up to the discovery, defendant’s wife had expressed fears that he would shoot her, and told family and friends that defendant kept a handgun on the nightstand. The wife’s pastor and deacon from her church noticed bruises on her neck, and she admitted to them that they came from defendant. Early in the morning on the day defendant’s wife was found dead, defendant called his daughter to confess that he had killed her. At trial, an expert testified that the wife was shot ten times with a single-action revolver, which required the shooter to cock the hammer and pull the trigger each time it was fired. The revolver also held only six rounds, requiring a reload for the ten rounds fired into the wife’s body. Defendant testified at trial and claimed that his wife’s niece had shot her. At the charge conference, defense counsel requested a jury instruction on second-degree murder, but the trial court denied this request. Defendant did not request an instruction on voluntary intoxication.

Considering (1) defendant’s defense of voluntary intoxication, the Court of Appeals noted the standard of review was plain error, as “the trial court explicitly asked if Defendant wanted to include voluntary or involuntary intoxication instructions, to which his counsel declined.” Slip Op. at 4. The court could not find plain error, as defendant was a heavy drinker and testified that he had consumed a normal amount of alcohol for his tolerance, and “[i]n his own testimony, Defendant said he ‘got drunk’ after the killing because his wife was dead, indicating he was not already drunk during the killing.” Id. at 6. Additionally, he recalled the events of the day and night, and was clear-headed enough to attempt to hide the revolver before law enforcement arrived.

Turning to (2), the court explained that a defendant is entitled to an instruction on second-degree murder “where the State’s evidence, if believed, is capable of conflicting reasonable inferences either that (1) the defendant premeditated/deliberated a specific intent to kill or, alternatively, (2) the defendant merely premeditated/deliberated an assault.” Id. at 9. Here, the court found only one possible conclusion, that “Defendant specifically intended to kill his wife.” Id. The court arrived at this conclusion based on the number of shots fired with a cumbersome weapon, the lack of defensive wounds, the history of defendant’s threats, and defendant’s history of physical abuse towards his wife.

Defendant’s lack of understanding related to collateral consequences from federal immigration law did not justify withdrawal of his guilty plea.

State v. Saldana, COA23-51, ___ N.C. App. ___ (Dec. 19, 2023).  In this Wayne County case, defendant appealed the order denying his motion to withdraw his guilty plea to felony possession of cocaine. The Court of Appeals affirmed the trial court’s order.

In January of 2005, defendant was indicted for felony possession of cocaine; subsequently defendant “entered a plea of guilty to felony possession of cocaine in order to receive a conditional discharge pursuant to [G.S.] 90-96.” Slip Op. at 2. In February of 2006, the trial court determined defendant had satisfied the conditions imposed for a conditional discharge and dismissed the charges under G.S. 90-96. During these events, defendant was an undocumented immigrant married to an American citizen and father to one child through the marriage. In 2021, defendant was detained by immigration officials and sent to a detention center in Georgia, where he was held without bond as a result of his guilty plea to a felony in 2005. In January of 2022 defendant filed a motion to withdraw his guilty plea to the possession charge, arguing he was “confused” and did not know the guilty plea would continue to constitute a conviction for federal immigration purposes. Id. at 3. After holding a hearing, the trial court denied defendant’s motion, treating it as a motion for appropriate relief (MAR).

The Court of Appeals first established that the trial court was correct in interpreting the motion as a MAR, explaining the dismissal of charges in 2006 was “final judgment” in the matter, and defendant’s subsequent motion was “a post-sentence MAR requiring Defendant to show manifest injustice in order to withdraw his guilty plea.” Id. at 9. The court then noted the six factors recognized in North Carolina case law justifying withdrawal of a plea, and that defendant argued “misunderstanding the consequences of the guilty plea, hasty entry, confusion, and coercion.” Id.at 10. Here, while the court expressed sympathy to defendant’s situation, it explained that he had not shown manifest injustice, as the federal immigration consequences were collateral, not direct consequences of entering his plea that he failed to understand. Sumarizing the situation, the court stated “[w]hile Defendant may now regret the consequences of his guilty plea in light of its implications under federal law, his remorse does not reflect a misunderstanding of the guilty plea at the time he entered into it.” Id. at 15.

“In operation” has a common meaning, when a person is in the driver’s seat of vehicle and engine is running, and jury did not need specific instruction on that meaning.

State v. Shumate, COA23-256, ___ N.C. App. ___ (Dec. 19, 2023).  In this McDowell County case, defendant appealed his conviction for discharging a firearm into an occupied vehicle in operation and possessing a firearm as a felon, arguing error in (1) not instructing the jury on the lesser included offense of discharging a firearm into an occupied vehicle; (2) not defining “in operation” during the jury instructions; and (3) denying defendant’s motion to dismiss. The Court of Appeals disagreed, finding no error.

In June of 2022, defendant’s ex-girlfriend and two accomplices drove a vehicle onto his property to take a puppy from his home. Testimony from the parties differed, but a firearm was discharged into the rear passenger side window of the vehicle as the ex-girlfriend and her accomplices attempted to drive away with the puppy. The engine of the vehicle was running, but it was stopped when the shot was fired through the window. Defendant did not object to the jury instructions during the trial.

Reviewing  (1) for plain error, the Court of Appeals noted that “in operation” is undefined in G.S. 14-34.1, but looking to the plain meaning of the words and consideration from a previous unpublished case, the court arrived at the following: “A vehicle is ‘in operation’ if it is ‘in the state of being functional,’ i.e., if it can be driven under its own power. For a vehicle to be driven, there must be a person in the driver’s seat, and its engine must be running.” Slip Op. at 6. Because all the evidence indicated someone was in the driver’s seat of the vehicle and the engine was running, the trial court did not err by not instructing on the lesser included offense. Likewise, this dispensed with (2), as the trial court did not need to provide instruction on the meaning of “in operation” due to the phrase carrying its common meaning. Resolving (3), the court noted that testimony in the record would allow a reasonable juror to conclude defendant fired a shot into the vehicle, representing substantial evidence to survive a motion to dismiss.

January 2, 2024, Opinions

Juvenile defendant’s life without parole sentence complied with G.S. 15A-1340.19B, and did not violate U.S. or N.C. constitutions.

State v. Borlase, COA22-985, ___ N.C. App. ___ (Jan. 2, 2024). In this Watauga County case, defendant appealed his convictions for first-degree murder for killing his parents one month before he turned eighteen years old, arguing error in sentencing him to two consecutive life sentences without parole. The Court of Appeals majority found no error.

On one day in April of 2019, defendant attacked and killed both of his parents in separate attacks, using a large knife to stab both of them to death. He then spent several hours cleaning the crime scene and attempting to conceal his crimes. Then defendant picked up his younger brother from his grandmother’s house, dropped him off in the home, and stayed with a friend that night. The next day defendant attempted to flee but was caught after crossing into Tennessee. Defendant was found guilty of both counts of first-degree murder by a jury, and the judge sentenced him to consecutive life sentences without parole.

The Court of Appeals explained that defendant’s argument rested upon G.S. 15A-1340.19B, the statute providing appropriate procedure for sentencing a juvenile to life without the possibility of parole, and that his sentencing violated the Eighth Amendment of the federal constitution and Article 1, Section 27 of the state constitution. The court first looked at the Eighth Amendment issue and applicable U.S. Supreme Court precedent, concluding “[t]he procedure employed by the sentencing judge met the requirements of the Eighth Amendment as articulated by the United States Supreme Court in [Jones v. Mississippi, 141 S. Ct. 1307 (2021),] and was at least as robust as the procedure employed by the Mississippi judge in Jones.” Slip Op. at 7.

Moving to the North Carolina statute and constitutional concerns, the court noted that G.S. 15A-134019B provides the defendant with the opportunity to offer evidence towards eight specific, non-exclusive mitigating factors. Here the court reviewed six factors provided by defendant in his brief and concluded “the sentencing judge considered the evidence presented concerning mitigating factors, including those enumerated in the sentencing statute” and complied with G.S. 15A-1340.19B. Id. at 13. Finally, looking at the North Carolina constitution’s prohibition on cruel and unusual punishment and applicable caselaw, applying State v. Kelliher, 381 N.C. 558, (2022), for the concept that the North Carolina constitution offers broader protection of juvenile offenders than the federal constitution. Id.at 14. Despite this broader protection, defendant was not entitled to reversal, as “the trial court expressly found that ‘it did not believe that there is a likelihood of rehabilitation in confinement’ and that Defendant’s crimes ‘demonstrate a condition of irreparable corruption and permanent incorrigibility.’” Id.

Judge Arrowood provided a lengthy dissent discussing the applicable constitutional requirements and caselaw precedent, and would have vacated and remanded for resentencing because the trial court violated G.S. 15A-1340.19B, the Eighth Amendment, and Article 1, Section 27.

Trial court took appropriate steps after being informed victim was drinking alcohol before her testimony, and did not abuse discretion in denying defendant’s motion for mistrial.

State v. Thompson, COA22-1036, ___ N.C. App. ___ (Jan. 2, 2024). In this Chatham County case, defendant appealed his convictions for first-degree forcible rape, first-degree kidnapping, sexual battery, and assault of a female, arguing the trial court abused its discretion by denying his motion for a mistrial. The Court of Appeals found no error.

In April of 2019, defendant came to the victim’s house and offered her drugs and alcohol. The two consumed the drugs and defendant eventually forced himself upon the victim, forcibly raping her while punching her repeatedly. When defendant came to trial, the victim took the stand to testify about the events. During her testimony, defense counsel took issue with the victim’s “streamed sort of consciousness” testimony, and the State requested to be allowed more leading questions on direct examination. Slip Op. at 2. The trial court allowed voir dire to determine whether the victim’s mental health issues necessitated more leading questions, and during this voir dire it was revealed that the victim had either bipolar or borderline personality disorder, PTSD, and a substance use or abuse disorder, and the victim had recently relapsed and was released from rehab the week before her testimony. She was also on medication for certain medical conditions. On the fourth day of the trial, the State informed the trial court that the bailiffs believed the victim had consumed alcohol that morning, and the victim took a portable breathalyzer, which resulted in a 0.0 BAC reading. However, the victim admitted she had “a sip of vodka” because of her nerves. Id.at 3. Later on recross, “[the victim] disclosed to the jury that she took a shot of alcohol that was in her purse upon arriving to the courthouse.” Id. at 4. She also admitted to having a beer at lunch the day before.

Considering defendant’s argument, the Court of Appeals noted “given the trial court’s knowledge and consideration of the result of the breathalyzer test, we cannot conclude the trial court abused its discretion.” Id. at 7. Instead, the trial court took “immediate and reasonable steps” to address the victim’s behavior, and the trial court’s decision to deny defendant’s motion for a mistrial was a reasonable decision. Id. at 8.

Leave a Reply

Your email address will not be published. Required fields are marked *