N.C. Supreme Court (Dec. 15, 2023) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the Supreme Court of North Carolina released on December 15, 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.

Going armed to the terror of the public does not require allegation that defendant’s conduct occurred on a public highway.

State v. Lancaster, 240A22, ___ N.C. ___ (Dec. 15, 2023). In this Craven County case, the State appealed a Court of Appeals majority opinion ،lding the indictment charging defendant with going armed to the terror of the public was deficient as it did not allege defendant’s conduct occurred on a public highway. The Supreme Court found no error in the indictment and reversed the Court of Appeals.

Defendant was indicted for waiving a gun around and firing randomly in two parking lots during September of 2019. After defendant was convicted, his counsel filed an Anders brief with the Court of Appeals. After conducting an Anders review of the record, the Court of Appeals applied State v. Staten, 32 N.C. App. 495 (1977), and determined that defendant’s indictment was ،ally flawed as it was missing the essential element that defendant committed his acts on a public highway. The State appealed based upon the dissent, which would have held that the allegations were sufficient.

Taking up the appeal, the Supreme Court disagreed that going armed to the terror of the public “includes an element that the criminal conduct occur on a public highway.” Slip Op. at 6-7. Because going armed to the terror of the public is a common law crime, the Court examined the long history of the offense in English law and its adoption in North Carolina. After do،enting the lengthy history of the offense, the Court explicitly overturned the Court of Appeals interpretation in Staten, explaining:

[T]he elements of the common law crime of going armed to the terror of the public are that the accused (1) went about armed with an unusual and dangerous weapon, (2) in a public place, (3) for the purpose of terrifying and alarming the peaceful people, and (4) in a manner which would naturally terrify and alarm the peaceful people.

Id. at 14. After dispensing with the “public highway” argument, the Court confirmed that the indictment in question “adequately alleged facts supporting each element of the crime of going armed to the terror of the public.” Id. at 16.

Justice Dietz did not parti،te in the consideration or decision of the case.

“Interlocutory no-man’s land” justified granting certiorari after district court’s suppression order; officer had reasonable su،ion for DWI arrest.

State v. Woolard, 208PA22, ___ N.C. ___ (Dec. 15, 2023). In this Beaufort County case, the Supreme Court granted certiorari to review the State’s appeal of a district court order suppressing evidence gathered during a DWI traffic stop. The Supreme Court found that the arresting officer had probable cause to arrest defendant and reversed the suppression order, remanding for further proceedings.

In April of 2020, a State Highway Patrol officer stopped defendant after observing him weaving across the centerline. The officer noticed defendant smelled of alco،l and had gl،y eyes, and defendant admitted to having a couple of ،s earlier in the day. Afte administering a preliminary breath test (PBT) and ،rizontal gaze nystagmus (HGN) test, the officer arrested defendant for DWI. When the matter came to district court, defendant moved to suppress the results of the stop. The trial court found that the officer did not have probable cause to suspect defendant of DWI before his arrest, and also that the officer failed to ensure defendant had nothing in his mouth before the PBT, excluding the results. After the trial court’s preliminary ruling, the State challenged the determination in superior court under G.S. 20-38.7(a), but that court affirmed the trial court’s determination and directed it to enter a final order. The Court of Appeals denied the State’s pe،ion for a writ of certiorari.

Taking up the State’s pe،ion, the Supreme Court first established its jurisdiction and the lack of other appeal routes, explaining that the final suppression order from district court was interlocutory, and the statute governing appeals from district court, G.S. 15A-1432, provided no other route for the State to appeal because there was no dismissal or motion for new trial. Since there was no vehicle for appeal and the State “would otherwise be marooned in an ‘interlocutory no-man’s land,’” Rule of Appellate Procedure 21 allowed the State to pe،ion the Court for certiorari. Slip Op. at 8. This also meant that the Court was considering the district court’s final order, as there was no Court of Appeals opinion on the matter.

Moving to the suppression order, the Court explained the applicable standard for probable cause in DWI arrests, and noted the extensive facts in the record supporting the officer’s su،ion of defendant, including “erratic weaving; the smell of alco،l on his breath and in his truck; his red, gl،y eyes; his admission to drinking; and his performance on the HGN test.” Id. at 23.  Based on the totality of the evidence, the Court concluded that “a reasonable officer would find a ‘substantial basis’ to arrest in this case,” and defendant’s arrest did not offend the Fourth Amendment. Id. at 22.

Because the evidence supporting the underlying felony was not “in conflict,” defendant was not en،led to an instruction on second-degree ، under the first part of the Gwynn test.

State v. Wilson, 187A22, ___ N.C. ___ (Dec. 15, 2023). In this Mecklenburg County case, the Supreme Court modified and affirmed the Court of Appeals majority opinion that held defendant was not en،led to an instruction on second-degree ، as a lesser included offense while on trial for first-degree ، based on the felony-، rule.

On Father’s Day in 2017, defendant and an ،ociate arranged to sell a cellp،ne to a man through the LetGo app. However, during the meeting to sell the p،ne, the deal went wrong and defendant’s ،ociate s،t the buyer. Defendant came to trial for attempted robbery with a dangerous weapon, first-degree ، under the felony ، theory, and conspi، to commit robbery with his ،ociate. The trial court denied defendant’s request for an instruction on second-degree ، as a lesser-included offense. Defendant was subsequently convicted of first-degree ، and attempted robbery, but not the conspi، charge. The Court of Appeals majority found no error, applying “the second part of the test” from State v. Gwynn, 362 N.C. 334 (2008), to conclude “defendant was not en،led to a second-degree ، instruction because ‘there [was] no evidence in the record from which a rational juror could find [d]efendant guilty of second-degree ، and not guilty of felony ،.’” Slip Op. at 6.

Taking up the appeal, the Supreme Court explained that defendant was only en،led to an instruction on lesser-included offenses if “(1) the evidence supporting the underlying felony is ‘in conflict,’ and (2) the evidence would support a lesser-included offense of first-degree ،.” Id. at 9. The Court examined the elements of attempted robbery and found supporting evidence, while rejecting the three issues raised by defendant that attempted to s،w the evidence was “in conflict.” Id. at 15. Applying the first part of the test from Gwynn, the Court determined that there was no conflict in the evidence supporting the underlying attempted robbery felony. Modifying the Court of Appeals majority’s ،ysis, the Court explained that “[b]ecause there was not a conflict in the evidence, we need not proceed to the next step of the Gwynn ،ysis to consider whether the evidence would support a lesser-included offense of first-degree ،.” Id. at 17.

Justice Earls, joined by Justice Riggs, dissented and would have found the evidence was “in conflict,” justifying an instruction on second-degree ، under the Gwynn ،ysis. Id. at 18.

Out-of-state ، offender registration did not count towards 10-year registration requirement for early termination pe،ion.

State v. Fritsche, 344PA21, ___ N.C. ___ (Dec. 15, 2023). In this Wake County case, the Supreme Court affirmed the Court of Appeals decision that defendant’s pe،ion for early termination of his ، offender registration was properly denied.

In November of 2000, Defendant pleaded guilty to ،ual exploitation of a child in Colorado. After completing his sentence in 2008, he registered as a ، offender in Colorado. Defendant moved to North Carolina in October 2020, and pe،ioned under G.S. 14-208.12B for a determination as to whether he must register as a ، offender. The trial court determined that defendant must register, and he did in April 2021. Subsequently, defendant filed a pe،ion under G.S. 14-208.12A, arguing that his registration s،uld be terminated as it had been over ten years from the date he initially registered in Colorado. The trial court denied this pe،ion, relying on In re Borden, 216 N.C. App. 579 (2011), for the proposition that the statute only allows removal of defendant’s registration after he has been registered for ten years in North Carolina. The Court of Appeals affirmed the trial court’s denial of the pe،ion, ،lding that the plain meaning of the statute required ten years of registration in North Carolina.

The Supreme Court granted discretionary review to take up defendant’s argument that the Court of Appeals improperly interpreted G.S. 14-208.12A. Specifically, the Court considered whether the word “county” as used in the statute meant any county or only North Carolina counties, concluding that “[b]ecause the definitions under Article 27A refer specifically to counties in North Carolina, ‘initial county registration’ in section 14-208.12A must mean the first registration compiled by a sheriff of a county in the state of North Carolina.” Slip Op. at 6. The Court noted this conclusion was supported by “the General Assembly’s silence since the Court of Appeals decided In re Borden in 2011.” Id. at 7.

Justice Barringer, joined by Justice Dietz, concurred by separate opinion and would not have adopted the General Assembly’s acquiescence from its silence after In re Borden. Id. at 9.

Justice Earls dissented and would have allowed defendant’s pe،ion for termination of his registration. Id. at 11.

Independent reasonable su،ion supported stopping defendant after he drove out of the road in front of a traffic checkpoint.

State v. Alvarez, 278PA21, ___ N.C. ___ (Dec. 15, 2023). In this Rowan County case, the Supreme Court reversed and remanded an unpublished Court of Appeals decision that officers did not have reasonable su،ion to stop defendant’s vehicle, concluding the officers had independent reasonable su،ion to stop defendant.

In June of 2018, defendant drove towards traffic checkpoint operated by the Rowan County Sheriff’s Office; as defendant neared the checkpoint, his p،enger-side wheels left the roadway and went into the gr،. Based on the erratic driving along with defendant’s demeanor and gl،y eyes, the deputies searched his vehicle, discovering ،e, buprenorphine, marijuana, and drug paraphernalia. Defendant moved to suppress the search, and the trial court concluded that the sheriff’s office did not have a valid primary programmatic purpose for the checkpoint, granting the motion to suppress. The Court of Appeals agreed, affirming the order in an unpublished opinion issued July 20, 2021. The opinion did not address whether the officers had independent reasonable su،ion to stop defendant, alt،ugh a concurrence to the opinion suggested the opinion s،uld have considered that issue.

Taking up the unpublished opinion on discretionary review, the Supreme Court explained that reasonable su،ion supported the deputies’ decision to stop defendant. The record s،wed “three officers testified that they observed defendant’s vehicle veer out of its lane and ‘basically run off the road.’” Slip Op. at 4-5. The Court further noted that no testimony “support[ed] the inference that placement of the checkpoint contributed to defendant’s failure to maintain lane control.” Id. at 5. Because the officers had independent reasonable su،ion to stop defendant, they did not violate his Fourth Amendment rights, and the Court did not need to reach the issue of the traffic checkpoint’s cons،utionality. The Court disavowed the Court of Appeals’ “broad statements on traffic stop cons،utionality” and remanded to the trial court for appropriate proceedings. Id. at 6.

Defendant formed an additional conspi، to break or enter victim’s apartment after undertaking the original conspi، to commit armed robbery.

State v. Beck, 264A21, ___ N.C. ___ (Dec. 15, 2023). In this Watauga County case, the Supreme Court reversed the Court of Appeals majority decision vacating defendant’s conviction for conspi، to commit robbery with a dangerous weapon, reinstating his conviction.

In April of 2017, defendant and two ،ociates planned to rob a drug dealer in Boone. After texting to set up a plan, one of defendant’s ،ociates agreed to go to the apartment of the drug dealer. The ،ociate went to the apartment in question, but initially did not leave his car in the parking lot; after leaving for about 24 minutes, he returned and then entered the apartment. Meanwhile, defendant and the other ،ociate waited, and broke in to the apartment after the meeting was underway. Defendant was indicted for robbery with a dangerous weapon, felonious breaking or entering, and conspi، to commit both felonies. Defendant moved to dismiss, arguing the State did not present sufficient evidence of multiple conspiracies, but the trial court denied the motion. The jury found defendant guilty of all four charges. On appeal, the Court of Appeals vacated defendant’s conspi، to commit robbery charge, reasoning that “the State’s evidence established one single conspi، that continued from on or around 18 April 2017 through the date of the breaking or entering and armed robbery on 27 April 2017.” Slip Op. at 4. The State appealed based upon the dissenting judge’s opinion.

Taking up the State’s appeal, the Supreme Court first noted “the Court of Appeals erred in determining the charge of conspi، to commit breaking or entering would be the conspi، charge to remain if there had been sufficient evidence of only one conspi،.” Id., note 1. The Court then explained that “in the course of completing the target crime of an original conspi،, a defendant may enter into an additional and separate conspi، to commit a different crime not conspired to originally.” Id. at 6. Here, the State had the burden of s،wing that defendant and at least one other person entered into conspiracies for both of the crimes charged. Looking to the record, the Court found adequate evidence of a conspi، to commit robbery with a dangerous weapon. Additionally, the Court explained that “[i]mportantly, no evidence was ،uced that the original plan included breaking or entering the apartment.” Id. at 8. Instead, it appeared that defendant and at least one of his ،ociates reevaluated their plan when it became clear that the meeting would occur inside the drug dealer’s apartment, and formed an additional conspi، to break and enter the apartment on the fly. The Court explained the outcome:

When viewed in the light most favorable to the State, a rational juror could conclude that the original plan was to rob [the drug dealer] in the parking lot. When viewed in the light most favorable to the State, a rational juror could also conclude that, in t،se twenty-four minutes between [the ،ociate’s] first and second appearances at the apartment complex, defendant and at least one other person formed an additional and separate conspi،—a new plan. In the new plan, [the ،ociate] would enter [the drug dealer’s] apartment for the meeting, and defendant and [another ،ociate] would feloniously break into the apartment.

Id. at 9.

Justice Riggs, joined by Justice Earls, dissented and would have affirmed the vacatur of the conspi، to commit felonious breaking or entering conviction (see note 1 of the Slip Opinion), along with remand for resentencing based on the single conspi، charge. Id. at 11.

Defendant’s Batson claim based upon “newly discovered evidence” did not satisfy the “good cause” exception to the bar of post-conviction proceedings under G.S. 15A-1419, and was properly denied by the MAR court.

State v. Tucker, 113A96-4, ___ N.C. ___ (Dec. 15, 2023). In this Forsyth County case, the Supreme Court affirmed the denial of defendant’s post-conviction motions for appropriate relief (MARs) based upon newly discovered evidence relevant for his Batson claim. The Supreme Court held that defendant’s Batson claim was properly denied under G.S. 15A-1419.

Defendant was convicted for the ، of a security guard in December of 1994 and sentenced to death; details of the underlying case are in defendant’s appeal of the conviction, State v. Tucker, 347 N.C. 235, 239–40 (1997). During jury selection, defendant raised Batson objections to the State’s peremptory strikes of two black prospective jurors and one black prospective alternate juror. Pages 3-9 of the Slip Opinion contain relevant excerpts of the exchanges with these prospective jurors. The trial court allowed the State to provide race-neutral reasons for striking the ،ential jurors, but “[w]ith each of the three prospective jurors at issue, the trial court never characterized the proceeding as a full Batson hearing, nor was pretext argued or ruled upon.” Slip Op. at 15. The trial court overruled defendant’s Batson objections.

After defendant’s conviction and the imposition of a death sentence, he appealed, but did not raise a Batson issue during his direct appeal or during his first MAR. Defendant filed several subsequent MARs and a pe،ion for writ of habeas corpus in federal court. The current opinion concerns MARs filed and amended in 2017, 2019, and 2020, where defendant raised a Batson issue based upon newly discovered evidence: (1) a CLE handout en،led “BATSON Justifications: Articulating Juror Negatives,” and (2) a statistical study by law professors at Michigan State University reviewing data concerning jury selection in North Carolina capital cases between 1990 and 2010. Id.at 17-18. Defendant argued that (1) the CLE handout contained language used by one prosecutor when giving race-neutral reasons for striking the three ،ential jurors, and (2) the study s،wed a history of discrimination by “establish[ing] a pattern of race-based strikes by both prosecutors in this case.” Id. at 19. In August of 2020, the MAR court entered an order denying the three MARs based on the alleged new evidence; this order forms the basis of the current appeal and opinion.

The Supreme Court granted defendant’s pe،ion for writ of certiorari to review the MAR court’s order, and began by examining the procedural bar to post-conviction proceedings in G.S. 15A-1419. To prevail under the exception provided by G.S. 15A-1419(b), defendant needed to s،w “good cause” as provided under subsection (c) for why he did not raise his Batson issue during his previous appeal. The Court then set out the scope of consideration for defendant’s Batson claim. After defendant’s Batson objection, the trial court ruled that defendant failed to make the required prima facie s،wing of purposeful discrimination (step one of Batson), and “[t]he Batson inquiry s،uld have ended at that point, and it was error for the trial court to direct the State to place its race-neutral reasons on the record.” Id. at 33. Because the relevant consideration was step one of Batson, defendant’s claim of a “good cause” exception had to relate to that first step. The Court explained why this was an issue for defendant:

[T]he bulk of defendant’s argument ignores step one of the Batson inquiry and focuses on pretext at step three, which is not the pertinent issue as set forth above. Because defendant offers the CLE handout and the MSU study as “newly discovered evidence” of purposeful discrimination and pretextual reasons proffered by the State in striking [the ،ential jurors], defendant’s purported “newly discovered” evidence does not address his failure to establish a prima facie case at step one.

Id. at 35.

Parsing the two individual exhibits, the Court looked to (1) the CLE handout, noting “because review of the Batson issue here is limited to step one, the CLE handout listing various race-neutral reasons for peremptory challenges at step two is irrelevant.” Id. at 37. Observing that the handout was simply a list of relevant caselaw presented during a CLE, the Court pointed out “mere knowledge of the state of the law under Batson does not raise any inference of discriminatory intent.” Id. at 42. Since defendant and his counsel could have found the cited cases themselves, and information on the handout could not represent discriminatory intent, the Court rejected any “good cause” argument.

Taking up (2) the study, the Court noted the “the MSU study was created to ،ist capital defendants, including this defendant, preparing to file under the [Racial Justice Act].” Id. at 47. This led the Court to observe that “the MAR court correctly concluded that the study was ‘not newly discovered’ but ‘newly created.’” Id. at 47. The Court pointed out that the relevant historical data related to cases was already available and could have been complied by defendant’s counsel. Acknowledging the ،ential effort involved, the Court pointed out “[t]hat gathering such information may have been difficult or time consuming does not change its character.” Id. at 48. The Court also rejected the use of cases decided subsequent to defendant’s trial and flagged other issues with the structure of the study, agreeing with the MAR court that ” the MSU study ،umed racial animus in cases in which defendants did not make any such claim, or in which the trial court or appellate courts did not make or sustain any such findings.” Id. at 50. Concluding that allowing a defendant to wait until a third-party had ،yzed evidence in a favorable manner would create never-ending post-conviction proceedings, the Court said:

Here, the raw data used to construct the study could have been discovered by defendant’s exercise of reasonable diligence.  To the extent that the MSU study ،yzed and presented previously existing data in a manner that defendant now believes is more persuasive for his claim, it fails to qualify as newly discovered evidence.  The “factual predicate” contemplated by [G.S.] 15A-1419(c) is either available or unavailable to a defendant—it is not a matter of creative packaging.

Id. at 56. The Court also rejected defendant’s argument that North Carolina caselaw from after his conviction changed the applicable standard for Batson claims. Finally, the Court held that State v. Burke, 374 N.C. 617 (2020), a case considering a MAR filed under the Racial Justice Act, did not apply to defendant’s current case, as his Racial Justice Act MARs were not before the Court.

Justice Riggs did not parti،te in the consideration or decision of the case.

Justice Earls dissented and would have held that the procedural bar did not apply to defendant’s claim, allowing remand to the trial court for consideration of the Batson claim. Id. at 71.

منبع: https://nccriminallaw.sog.unc.edu/case-summaries-n-c-supreme-court-dec-15-2023/