This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on June 18, 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.

Trial court erred by allowing a potential juror to reference defendant’s time in prison in front of other potential jurors.

State v. Bruer, COA23-604, ___ N.C. App. ___ (June 18, 2024). In this Stanly County case, defendant appealed his convictions for possession with intent to sell and deliver methamphetamine, possession of cocaine, and possession of a firearm by a felon, arguing error in (1) denying his motion for a mistrial, (2) denying his motion to dismiss the possession of a firearm by a felon charge, and (3) failing to comply with the statutory requirements regarding shackling during the trial. The Court of Appeals agreed with defendant regarding (1) and granted a new trial.

In April of 2018, law enforcement officers executed a search warrant at the auto repair shop where defendant worked, finding methamphetamine, cocaine, and firearms. Defendant was arrested along with several coworkers. When defendant came for trial in August of 2022, the State asked prospective jurors if they knew anyone involved in the trial. One juror, a prison guard, responded that he knew defendant from his time in prison. Defendant moved for a mistrial, arguing the jury pool had been tainted by hearing this statement. The trial court denied the motion. During the trial, defendant’s ankles were shackled. Defense counsel did not object to the shackling, but requested that defendant be seated at the witness stand before the jury was brought into the room so they would not see him walk awkwardly due to the shackles.

Taking up (1), the Court of Appeals noted the State conceded the trial court erred in denying the motion for a mistrial. The court explained that the prejudicial effect of having an employee of the justice system make a statement regarding defendant’s former imprisonment justified a mistrial under State v. Mobley, 86 N.C. App. 528 (1987), and State v. Howard, 133 N.C. App. 614 (1999). Here, it was clearly error that the trial court failed to inquire whether the other prospective jurors heard the prison guard’s statement, and an abuse of discretion to deny defendant’s motion.

Moving to (2), the court explained that substantial evidence showing defendant constructively possessed the firearm justified denial of defendant’s motion to dismiss. Specifically, defendant was in front of the office where three firearms were found, and one of the firearms was found in a cabinet next to a bill of sale for a truck defendant purchased.

Finally, in (3) the court found that defendant invited error and did not preserve his challenge to the shackling issue. Defense counsel failed to object and even requested accommodations for the shackling so that the jury would not see defendant walking awkwardly.

For purposes of G.S. 14-315.1, “in a condition that the firearm can be discharged” means when the firearm is loaded.

State v. Cable, COA23-192, ___ N.C. App. ___ (June 18, 2024). In this McDowell County case, defendant appealed her convictions for involuntary manslaughter and two counts of failure to store a firearm to protect a minor, arguing error in denying her motion to dismiss for insufficient evidence. The Court of Appeals agreed, reversing the two counts of failure to store a firearm to protect a minor and vacating the conviction for involuntary manslaughter based upon the underlying misdemeanor.

In July of 2018, defendant’s son had a friend over to their house to spend the night. Defendant left an unloaded .44 magnum revolver and a box of ammunition on top of a gun safe in her bedroom. Early in the morning, defendant’s son retrieved the revolver and ammunition and took it to his room, where he and his friend decided to play Russian roulette. The friend was killed when he pulled the trigger and a round was fired. At trial, defendant waived her right to a jury trial and was convicted after a bench trial.

The Court of Appeals first considered the failure to store the revolver to protect a minor conviction, explaining that defendant’s argument was not based on the evidence admitted, but on statutory interpretation of G.S. 14-315.1, as “an unloaded gun with a double safety is not in a condition that it can be discharged.” Slip Op. at 8. This required the court to conduct an analysis of the statute and what “discharge” means for purposes of G.S. 14-315.1. Here, the court concluded that “a firearm is ‘in a condition that the firearm can be discharged’ when it is loaded.” Id. at 14. The court also noted that it did not reach additional ambiguities such as firearm safety mechanisms. Because the revolver in question was not loaded, there was insufficient evidence to support the first count against defendant. The court then explained that the State conceded its failure to show the minors gained access to any other firearms stored in the home, meaning there was insufficient evidence to support the second count against defendant.

Having reversed the two failure to store a firearm to protect a minor convictions, the court turned to the involuntary manslaughter conviction, explaining “there are two theories under which the State may prove involuntary manslaughter—an unlawful act or a culpably negligent act or omission.” Id. at 17. Although this was a bench trial with no jury instruction, the record indicated the State and trial court presumed the conviction was based on the underlying misdemeanor of failure to store the revolver to protect a minor. Because the record did not show any discussion of the alternate theory of a culpably negligent act or omission by defendant, the court presumed the conviction was based on the now-reversed misdemeanor, and vacated the conviction for involuntary manslaughter.

Defendant’s objection to being charged by citation was improperly filed with the superior court, instead of the district court.

State v. Carpio, COA23-987, ___ N.C. App. ___ (June 18, 2024). In this Dare County case, defendant appealed her conviction for reckless driving, arguing the superior court lacked jurisdiction to enter judgment due to a fatally defective citation, and error in instructing the jury on reckless driving that created a fatal variance between the citation and the jury charge. The Court of Appeals held the superior court had jurisdiction and found no error.

In March of 2021, defendant was driving a van on a highway in Dare County, and she made several aggressive gestures and movements towards another vehicle. Eventually, after speeding along the highway for several miles, defendant pulled in front of the other vehicle and “intentionally brake-checked” the other driver, leading to a collision. Slip Op. at 3. Defendant was cited for reckless driving, and at district court defendant was found guilty. On appeal to the superior court, defendant moved to dismiss the charge, arguing the citation failed to include specific factual details. The superior court denied the motion, and during trial at superior court, body cam footage from the responding officer showed defendant admitted to intentionally brake-checking the other driver. During the charge conference, defendant objected, arguing the alleged conduct in the instruction was not present in the pleading. The superior court denied the motion and defendant was subsequently found guilty by the jury.

Taking up defendant’s first argument that the citation lacked specific descriptions of the actions, the Court of Appeals explained that under G.S. 15A-922, a defendant charged by a citation may move to be charged with a new pleading. However, the appropriate venue for the motion is the district court division. Here, defendant failed to make a motion before the district court, and “[p]er North Carolina law . . . for a defendant to properly object to a trial by citation, [they] must make such objection before the court of original jurisdiction.” Id. at 8. Because defendant made her motion before the superior court, she waived her right to appeal the issue.

Moving to defendant’s argument regarding a fatal variance between the citation and the jury charge, the court first explained that defendant failed to preserve the argument and the standard of review was plain error. Here, defendant argued that the specific conduct of slamming on her brakes was not mentioned in the citation. The court pointed out that the citation specifically incorporated the officer’s crash report which contained details of the alleged conduct. Based on the reference to the crash report in the citation, and the evidence showing defendant admitted to intentionally brake-checking the other driver, the court found no plain error by the superior court.

State’s evidence did not demonstrate constructive possession for purposes of possession of a firearm by a felon.

State v. Norris, COA23-889, ___ N.C. App. ___ (June 18, 2024). In this Rutherford County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in denying his motion to dismiss for insufficient evidence. The Court of Appeals agreed, reversing the denial and remanding to the trial court for dismissal.

In July of 2020, law enforcement officers approached the house where defendant’s girlfriend and her children resided to execute a search warrant against defendant for a different charge not relevant to the current case. During a search of the house, officers found a firearm in the bedroom, in a dresser drawer containing the girlfriend’s personal items and feminine products. At trial, the State argued that defendant was a co-occupant of the bedroom and that he constructively possessed the firearm, as no evidence showed defendant physically possessing the firearm.

Taking up defendant’s argument, the Court of Appeals explained the body of law around constructive possession where the defendant does not have exclusive control over the location. When a defendant does not have exclusive control, “the State is required to show other incriminating circumstances in order to establish constructive possession.” Slip Op. at 6, quoting State v. Taylor, 203 N.C. App. 448, 459 (2020). Here, the court could not find sufficient incriminating circumstances in the State’s evidence, concluding no evidence of “ownership, registration, fingerprints, DNA, nor any other evidence ties Defendant to the gun, which [his girlfriend] asserted belonged to her, was located inside a closed drawer, was found with her other property, and was found in a closed drawer in her bedroom located inside the home she rents.” Id. at 10.

Acquittal at district court deprived superior court of jurisdiction to try defendant; superior court did not adequately conduct colloquy to determine if defendant knowingly waived his right to jury trial.

State v. Rager, COA23-848, ___ N.C. App. ___ (June 18, 2024). In this Haywood County case, defendant appealed his convictions for making harassing phone calls and being intoxicated and disruptive in public, arguing the superior court lacked jurisdiction to try him for the intoxicated in public charge, and that he did not knowingly waive his right to a jury trial. The Court of Appeals agreed, vacating defendant’s conviction for being intoxicated and disruptive in public and granting a new trial for the harassing phone calls charge.

Beginning in the late evening hours of April 9, 2022, and continuing to the early morning, defendant called the Waynesville Police Department over fifty times to inquire about the investigation into an assault where he was the victim. Dispatchers told defendant that the assigned detective was not on duty, but defendant kept calling, eventually speaking with the sergeant in charge at that hour. After that call, defendant walked up to the police department parking lot and confronted the sergeant, exhibiting clear signs of being intoxicated. Defendant was subsequently arrested, and appeared pro se in district court on the charges. The district court found defendant guilty of making harassing phone calls and not guilty of being intoxicated and disruptive in public, and defendant appealed to superior court. Defendant again appeared pro se before the superior court and was tried in a bench trial, being found guilty of both charges.

Taking up defendant’s first argument, the Court of Appeals explained that the State conceded the superior court lacked jurisdiction to try him on the intoxicated and disruptive in public charge because he was acquitted at district court. The court explained that there was significant confusion about the charges before the superior court, and “the superior court incorrectly explained to Defendant that he was facing a trial de novo for both charges.” Slip Op. at 6. Because the superior court lacked jurisdiction, the court vacated the conviction for being intoxicated and disruptive in public.

Moving to the jury trial waiver issue, the court explained that under G.S. 15A-1201(d), the trial court must conduct a colloquy with a defendant before allowing waiver of a jury trial. Here, the court looked to applicable precedent for the substance of that colloquy, and determined there was “no record evidence that the superior court personally addressed Defendant or conducted any colloquy whatsoever to determine whether he fully understood and appreciated the consequences of his decision to waive his right to a jury trial.” Id. at 15. Additionally, defendant was pro se and no evidence in the record showed he was aware of his right to request a jury trial. Having established the failure to comply with the applicable standard, the court also held that the error was prejudicial, as there was a reasonable possibility that at least one juror would have found defendant’s conduct was not a violation. This led the court to grant a new trial on the harassing phone calls charge.

Defendant’s jailhouse phone calls, including his silence in response to accusations he was the perpetrator, were admissible and not prejudicial; failure to inform defendant that testifying officer was under investigation for embezzlement did not represent prejudicial prosecutorial misconduct.

State v. Saddler, COA22-989, ___ N.C. App. ___ (June 18, 2024). In this Scotland County case, defendant appealed his conviction for second-degree murder, arguing error in admitting several jailhouse phone calls, and appealed the denial of his motion for appropriate relief (MAR) based on prosecutorial misconduct in withholding exculpatory evidence. The Court of Appeals found no error with the conviction and affirmed the denial of the MAR.

In October of 2017, a victim at a party in Laurinburg was shot from a car parked on the street. Eyewitness testimony put defendant in the car, and defendant was subsequently convicted of second-degree murder. After his conviction but prior to the current appeal, defendant filed an MAR arguing the prosecutor withheld evidence that a law enforcement officer who testified at defendant’s trial was under investigation for embezzlement at the time of the trial. The Court of Appeals remanded the case to the trial court for a hearing on the MAR, and the trial court conducted a hearing and denied the MAR. Both matters form the basis of the current case.

Considering defendant’s arguments regarding the jailhouse calls, the Court of Appeals explained that under Rule of Evidence 401, the calls were relevant because they showed defendant discussing the circumstances around the shooting and a possible motivation for defendant to kill the victim. The court also pointed out that “[defendant’s] silence when told by the female caller that others in the neighborhood were saying that he fired the fatal shot is some evidence of guilt.” Slip Op. at 4-5. Applying Rule of Evidence 403, the court did not see the calls as unfairly prejudicial, especially in light of the limiting instruction given by the trial court regarding hearsay statements in the calls. The court also dispensed with defendant’s constitutional arguments as his “silence was not in response to questions by State actors” and the jury was free to make reasonable inferences from defendant’s statements and silence. Id. at 7.

Moving to the MAR, the court explained that while a former district attorney in the office was aware of the investigation into the officer, those working on defendant’s case were not aware until after the trial. Although the court acknowledged U.S. Supreme Court precedent that knowledge from the former district attorney was likely imputed to those working the case, the court did not find any prejudicial effect from the failure to disclose the investigation. To support this conclusion the court pointed out the abundance of evidence supporting defendant’s guilt outside of the officer’s testimony, such as the jailhouse calls and eyewitness testimony.

Substitution of juror after deliberations began as provided in G.S. 15A-1215(a) was a violation of defendant’s constitutional rights under State v. Chambers, justifying new trial.

State v. Watlington, COA22-972, ___ N.C. App. ___ (June 18, 2024). In this Alamance County case, defendant appealed his convictions for assault by pointing a gun and discharging a weapon into an occupied vehicle, challenging the juror substitution provision G.S. 15A-1215(a) as unconstitutional. The Court of Appeals agreed, vacating defendant’s convictions and remanding for a new trial.

In November of 2017, defendant was involved in a dispute after a near-collision with another driver. After exchanging words, defendant and his passenger pulled out guns, and eventually shots were fired at the other vehicle. Defendant came to trial in April of 2022. After the presentation of all evidence and when the jury had begun deliberations, one of the jurors went missing due to a foot injury. After learning the juror suffered an injury that required a trip to the emergency room, the trial court spoke to defense counsel and the prosecutor, and then appointed an alternate juror. The trial court followed the procedures required by G.S. 15A-1215(a), including an instruction to begin deliberations anew. Defendant was subsequently convicted.

Taking up defendant’s argument, the Court of Appeals explained that precedent from State v. Chambers, COA22-1063, ___ N.C. App. ___ (Feb. 20, 2024), controlled, and justified finding the substitution of a juror in this case as unconstitutional. The opinion of the court spent substantial time exploring the relevant caselaw, and pointing out the issues created by the Chambers holding, noting that “[t]he Chambers Court did not explain how or why a verdict delivered in open court by a properly constituted and instructed jury of twelve in compliance with [G.S.] 15A-1215(a) violates article I, Section 24 of the North Carolina Constitution.” Slip Op. at 10. After acknowledging that the Chambers case was subject to a stay and may be taken up by the North Carolina Supreme Court, the court concluded it was bound by the Chambers precedent to grant defendant a new trial.

Judge Arrowwood concurred only in the result by separate opinion, and wrote to express concern with the Chambers case itself and the possible violations of precedent in that case.

Judge Griffin concurred but wrote separately to disagree with the lead opinion’s tone and interpretation of the Chambers opinion.

(1) Defendant’s requested special instruction was not submitted in writing and was not proper application of the law; (2) allowing witness to testify to his pretrial identification of defendant at bond hearing was error, but not prejudicial error; (3) prosecutor’s statements during closing argument regarding photographs not in evidence was not grossly improper and did not justify trial court intervention.

State v. Young, COA23-608, ___ N.C. App. ___ (June 18, 2024). In this Mecklenburg County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in (1) denying his request for a special instruction, (2) allowing a witness to testify regarding pretrial identification of defendant, and (3) failing to intervene ex mero motu during the prosecutor’s closing argument. The Court of Appeals found no prejudicial error.

In February of 2020, a man was sitting in his apartment when he heard a loud noise and saw an intruder with a shotgun standing in his doorway. The intruder asked for money and jewelry, and the man complied. At that point, a struggle ensued, and the man was shot in the stomach while escaping with the shotgun. After an investigation, police arrested defendant as the likely intruder. During defendant’s bond hearing, the man was present, and approached the prosecutor to say he recognized defendant based on his appearance. The man gave a statement to the prosecutor confirming defendant was the intruder at his home that night. Defendant eventually came for trial on charges of robbery, burglary, assault, and possession of a firearm by a felon. The jury convicted defendant of possession of a firearm by a felon but acquitted him of the other charges.

Taking up (1), the Court of Appeals explained that defendant’s requested instruction focused on the palm print from the shotgun. Defendant argued that the jury should be instructed that it could only consider “evidence about fingerprints” if the jury determined the fingerprints were found in the place the crime was committed and put there when the crime occurred. Slip Op. at 9. The court pointed out that defense counsel did not submit the requested instruction in writing as required by N.C. Rule of Civil Procedure 51(b). The court went on to conclude that even if the special instruction was properly submitted, it “was not a proper application of the law to the facts of this case,” as the instruction was not clearly targeted at the possession of a firearm charge and the nature of that offense did not require the jury to find that defendant possessed the firearm at the time of the other alleged offenses related to the home invasion. Id. at 18.

Moving to (2), the court noted the substance of defendant’s argument dealt with the witness’s testimony that he identified defendant prior to the trial. Here, the court pointed out the required analysis under State v. Harris, 308 N.C. 159 (1983), regarding impermissibly suggestive pretrial identification procedures. The trial court identified several factors suggesting the information, specifically the name, provided by law enforcement to the witness set up a procedure improperly suggesting defendant was the perpetrator. Despite determining the pretrial identification procedure contained elements that were impermissibly suggestive, the trial court subsequently allowed the witness to testify. The court determined this was error, explaining that “the trial court’s factual findings did not support its conclusion of law that [the witness’s] testimony regarding pretrial identification was admissible.” Id. at 33. Despite the trial court’s attempts to separate the concept of an in-court identification from the pretrial identification, the court concluded “we are constrained to hold the trial court erred in prohibiting an in-court identification but thereafter allowing testimony about the pretrial identification.” Id. at 34. However, the court determined that this error was harmless beyond a reasonable doubt due to the evidence in the record, such as the palm print on the shotgun and other supporting circumstantial evidence.

Finally, in (3) the court rejected defendant’s argument that the trial court should have intervened in closing argument when the prosecutor mentioned photographs of defendant holding a firearm that the trial court had previously prevented the jury from viewing. The court noted that defense counsel did not object during the closing argument, and a detective had previously testified about the existence of the photographs, even though the trial court had ruled against admitting them due to their potential prejudicial effect. As a result, the court did not see grossly improper statements that would justify the trial court’s ex mero motu intervention.

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