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No. COA07-1438 TWENTY-EIGHTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA )
)
v. ) From Buncombe
)
BRIAN CRAIG SEXTON )
****************************************************
DEFENDANT-APPELLANT‟S BRIEF
****************************************************
SUBJECT INDEX
TABLE OF AUTHORITIES...........................................ii
QUESTIONS PRESENTED.............................................1
STATEMENT OF THE CASE AND GROUND FOR APPELLATE REVIEW...........1
STATEMENT OF THE FACTS..........................................2
ARGUMENT........................................................5
I. DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE THE FINDING OF THE “TRUST OR CONFIDENCE”
AGGRAVATING SENTENCING FACTOR IS NOT SUPPORTED BY
THE EVIDENCE..........................................5
II. DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE HE DID NOT RECEIVE REASONABLE NOTICE THE
AGGRAVATING SENTENCING FACTOR WAS GOING TO BE
SUBMITTED TO THE JURY DURING GUILT-PHASE
DELIBERATIONS IN VIOLATION OF THE SIXTH AMENDMENT.....9
III. DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE THE JURY INSTRUCTIONS ABOUT THE “TRUST OR
CONFIDENCE” AGGRAVATING SENTENCING FACTOR WERE
INADEQUATE IN LAW AND PLAIN ERROR....................13
IV. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
TRIAL COURT‟S DENIAL OF HIS CHALLENGE FOR CAUSE OF
JUROR PORTER WAS ERRONEOUS IN LAW....................17
V. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
PROSECUTOR MADE SEVERAL IMPROPER OPENING AND
CLOSING ARGUMENTS....................................21
VI. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
TRIAL COURT ERRONEOUSLY FAILED TO RESOLVE MATERIAL
DISPUTED ISSUES OF FACT IN DENYING HIS MOTION TO
SUPPRESS EVIDENCE....................................27
VII. THE TRIAL COURT‟S FINDING IN THE SEX OFFENSE CASE
THE OFFENSE IS A REPORTABLE CONVICTION INVOLVING A
MINOR MUST BE VACATED BECAUSE IT IS ERRONEOUS IN
LAW..................................................33
CONCLUSION.....................................................35
CERTIFICATE OF FILING AND SERVICE..............................36
ii
TABLE OF AUTHORITIES
CASES
Bumper v. North Carolina,
391 U.S. 543, 20 L.Ed.2d 797 (1968)...................... 33
Piedmont Triad v. Urbine,
354 N.C. 336, 554 S.E.2d 331 (2001)...................... 10
State Bar v. Brewer,
___ N.C. App. ___, 644 S.E.2d 573, 576 (2007)............ 34
State v. Abraham,
338 N.C. 315, 451 S.E.2d 131 (1994)...................... 22
State v. Barnes,
253 N.C. 711, 117 S.E.2d 849 (1961)...................... 11
State v. Blackwell,
361 N.C. 41, 638 S.E.2d 452 (2006)....................... 14
State v. Bogle,
324 N.C. 190, 376 S.E.2d 745 (1989)...................... 14
State v. Booker,
306 N.C. 302, 293 S.E.2d 78 (1982)....................... 32
State v. Boyd,
311 N.C. 408, 319 S.E.2d 189 (1984)...................... 22
State v. Campbell,
133 N.C. App. 531, 515 S.E.2d 732 (1999)................. 24
State v. Cobb,
295 N.C. 1, 243 S.E.2d 759 (1978)........................ 33
State v. Cunningham,
333 N.C. 744, 429 S.E.2d 718 (1993)...................... 21
State v. Daniel,
319 N.C. 308, 354 S.E.2d 216 (1987)....................... 6
State v. Farlow,
336 N.C. 534, 444 S.E.2d 913 (1994)....................... 7
State v. Ghaffar,
93 N.C. App. 281, 377 S.E.2d 818 (1989).................. 27
State v. Hunt,
357 N.C. 257, 582 S.E.2d 593 (2003)...................... 11
iii
State v. Lang,
309 N.C. 512, 308 S.E.2d 317 (1983)...................... 30
State v. Lee,
292 N.C. 617, 234 S.E.2d 574 (1977)...................... 20
State v. Mann,
355 N.C. 294, 560 S.E.2d 776 (2002)....................... 6
State v. Marecek,
152 N.C. App. 479, 568 S.E.2d 237 (2002).................. 9
State v. Maske,
358 N.C. 40, 591 S.E.2d 521 (2004)....................... 16
State v. Matthews,
358 N.C. 102, 591 S.E.2d 535 (2004)...................... 24
State v. Midyette,
87 N.C. App. 199, 360 S.E.2d 507 (1987)................... 9
State v. Morocco,
99 N.C. App. 421, 393 S.E.2d 545 (1990).................. 33
State v. Mundy,
265 N.C. 528, 144 S.E.2d 572 (1965)...................... 16
State v. Nicholson,
169 N.C. App. 390, 610 S.E.2d 433 (2005).................. 5
State v. Odom,
307 N.C. 655, 300 S.E.2d 375 (1983)...................... 16
State v. Reed,
355 N.C. 150, 558 S.E.2d 167 (2002)...................... 19
State v. Richardson,
316 N.C. 594, 342 S.E.2d 823 (1986)...................... 31
State v. Robinson,
355 N.C. 320, 561 S.E.2d 245 (2002)...................... 25
State v. Rogers,
157 N.C. App. 127, 577 S.E.2d 666 (2003).................. 7
State v. Scott,
314 N.C. 309, 333 S.E.2d 296 (1985)...................... 22
State v. Smathers,
287 N.C. 226, 214 S.E.2d 112 (1975)...................... 13
iv
State v. Wells,
290 N.C. 485, 226 S.E.2d 325 (1976)...................... 24
STATUTES
N.C. Gen. Stat. § 14-208.6................................. 23,34
N.C. Gen. Stat. § 14-208.6(4)................................. 34
N.C. Gen. Stat. § 14-208.6(5)................................. 34
N.C. Gen. Stat. § 14-208.20................................... 24
N.C. Gen. Stat. § 14-208.21................................... 24
N.C. Gen. Stat. § 14-208.22................................... 24
N.C. Gen. Stat. § 14-208.23................................... 24
N.C. Gen. Stat. § 14-208.24................................... 24
N.C. Gen. Stat. § 15A-233..................................... 27
N.C. Gen. Stat. § 15A-977(d).................................. 30
N.C. Gen. Stat. § 15A-1212(h)................................. 19
N.C. Gen. Stat. § 15A-1214.................................... 21
N.C. Gen. Stat. § 15A-1231.................................... 14
N.C. Gen. Stat. § 15A-1232.................................... 14
N.C. Gen. Stat. § 15A-1340.16(a)............................... 6
N.C. Gen. Stat. § 15A-1340.16(a6)............................. 13
N.C. Gen. Stat. § 15A-1340.16(d)(15).......................... 10
OTHER AUTHORITIES
N.C.P.C.I. 204.25............................................. 15
Session Law 2006-247, §§ 1(b) and (c)......................... 35
CONSTITUTIONAL PROVISIONS
U.S. Const., Amend. IV........................................ 27
U.S. Const., Amend. VI................................... 9,11,13
U.S. Const. Amend. XIV...................................... 9,21
No. COA07-1438 TWENTY-EIGHTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
****************************************************
STATE OF NORTH CAROLINA )
)
v. ) From Buncombe
)
BRIAN CRAIG SEXTON )
****************************************************
DEFENDANT-APPELLANT‟S BRIEF
****************************************************
QUESTIONS PRESENTED
I. WHETHER DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE THE FINDING OF THE “TRUST OR CONFIDENCE” AGGRAVATING
SENTENCING FACTOR IS NOT SUPPORTED BY THE EVIDENCE?
II. WHETHER DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE HE DID NOT RECEIVE REASONABLE NOTICE THE AGGRAVATING
SENTENCING FACTOR WAS GOING TO BE SUBMITTED TO THE JURY
DURING GUILT-PHASE DELIBERATIONS IN VIOLATION OF THE SIXTH
AMENDMENT?
III. WHETHER DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE THE JURY INSTRUCTIONS ABOUT THE “TRUST OR
CONFIDENCE” AGGRAVATING SENTENCING FACTOR WERE INADEQUATE IN
LAW AND PLAIN ERROR?
IV. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
TRIAL COURT‟S DENIAL OF HIS CHALLENGE FOR CAUSE OF JUROR
PORTER WAS ERRONEOUS IN LAW?
V. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
PROSECUTOR MADE SEVERAL IMPROPER OPENING AND CLOSING
ARGUMENTS?
VI. WHETHER DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
TRIAL COURT ERRONEOUSLY FAILED TO RESOLVE MATERIAL DISPUTED
ISSUES OF FACT IN DENYING HIS MOTION TO SUPPRESS EVIDENCE?
VII. WHETHER THE TRIAL COURT‟S FINDING IN THE SEX OFFENSE CASE
THE OFFENSE IS A REPORTABLE CONVICTION INVOLVING A MINOR
MUST BE VACATED BECAUSE IT IS ERRONEOUS IN LAW?
STATEMENT OF THE CASE AND GROUND FOR APPELLATE REVIEW
On August 7, 2006, the Buncombe County Grand Jury indicted
defendant-appellant Brian Sexton for statutory rape and statutory
2
sex offense of 14-year-old Samantha Ward. (Rpp. 4-5) These 2
cases came on to be tried together on defendant‟s not guilty plea
at the January 22, 2007 Criminal Session of Buncombe County
Superior Court before Superior Court Judge Mark E. Powell. (Rp.
1) The jury found defendant guilty as charged. (Rpp. 33-34)
The jury also found the aggravating sentencing factor the
defendant took advantage of a position of trust or confidence to
commit the offense. (Rpp. 35-36) On January 26, 2007, Judge
Powell made sentencing findings, found aggravating and mitigating
sentencing factors, entered Judgment and Commitment in both
cases, sentenced defendant to 360 months (30 years) minimum
imprisonment in each case, and ordered the sentences to run
concurrently. (Rpp. 37-46) Defendant appealed. (Rpp. 47-49)
The ground for appellate review is G.S. 7A-27(b).
STATEMENT OF THE FACTS
In the early 1990s, Elaine Ward was married to another
person and had 2 daughters, including a daughter named Samantha
Ward. (Tpp. 269-270) At that time, defendant was Elaine Ward‟s
husband‟s friend and met the whole family. (Tpp. 270, 343)
Subsequently, Elaine Ward and her husband divorced. (Tp. 270)
Very occasionally in the next several years, Elaine Ward and
defendant dated. (Tpp. 270-271, 279, 500) In 2004, Elaine Ward
and defendant had a disagreement and stopped seeing each other.
(Tpp. 499-500) In June 2005, Elaine Ward had a boyfriend and
lived with her daughters in a mobile home in Buncombe County.
3
(Tpp. 270, 439, 514) At that time, Samantha Ward was 14 years
old. (Tp. 270)
On the night of June 12-13, 2005, Elaine Ward left her
daughters at home alone and spent the night elsewhere: Samantha
slept in one room and her sister and sister‟s boyfriend slept in
another room in the home. (Tpp. 271-273, 280, 316) Samantha
Ward testified that she woke up sometime in the early morning
hours of June 13; that defendant came to the front door of her
home and said he was having car trouble; that she let defendant
inside the home, gave defendant a beer, watched television with
defendant for a while in the living room, got nervous and
uncomfortable, and asked defendant to leave; that defendant did
not leave; that she pushed defendant; that defendant then hit her
on the head, choked her on the floor, pulled off her pants,
touched her vagina with his tongue, had sexual intercourse with
her against her will, and left the home; and that she did not
yell, scream, or fight back during the alleged sexual assault.
(Tpp. 273, 278-287, 297-305, 316-317) Ward testified she woke up
her sister and went to a local hospital. (Tpp. 288, 307, 316)
Nurse Katherine Toomy examined Ward at the hospital at about 9:00
a.m. on June 13 and took a rape kit including swabs and smears of
Ward‟s internal vaginal, external rectal, and external genitalia
areas. (Tpp. 413-416, 426-427, 367-371, 389-390) Subsequently,
Ward gave 2 statements to police: in one she did not claim
defendant had any type of oral sex with her; and in the other she
said defendant “dozed off” when he was inside the home and her
4
mother was inside the trailer during the alleged assault. (Tpp.
431, 456, 464, 470-471, 511)
Detective Richard Baird testified defendant gave a voluntary
statement on September 5, 2005 in which he said he “had nothing
to do with” any sexual assault. (Tp. 501) Baird testified
defendant said he had “dated” Elaine Ward “off and on for 10
years” but “broke up with Ward” and “hadn‟t seen Elaine Ward in 6
to 9 months.” (Tp. 499) Defendant said he “didn‟t get along too
well with” Samantha Ward because “Samantha hate[d] him.” (Tpp.
499-500) Defendant said that he went to the Ward home on June
13, learned Elaine Ward was not there, and started drinking; that
Samantha Ward “got in his face and started screaming at him;”
that he “pushed” Samantha; that Samantha fell and hit her head on
the kitchen table; and that he “made sure” Samantha “was okay”
and then left. (Tp. 500) Over objection, Baird testified he
took cheek swabbings from defendant‟s mouth on October 18, 2005.
(Tpp. 503-507)
SBI Agent Jody West testified the internal vaginal, external
rectal, and external genitalia swabs and smears in Ward‟s rape
kit showed the presence of sperm but did not show the presence of
saliva. (Tpp. 559-566, 573-581) SBI Agent Karen Whittingham
testified the DNA profile from the sperm on the swabs and smears
in Ward‟s rape kit match matched the DNA profile from the cheek
swabbings obtained from defendant in October 2005. (Tp. 598)
5
ARGUMENT
I. DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE THE FINDING OF THE “TRUST OR CONFIDENCE”
AGGRAVATING SENTENCING FACTOR IS NOT SUPPORTED BY
THE EVIDENCE.
Assignments of Error Nos. 17, 28, Rpp. 58, 60
Defendant is entitled to a new sentencing hearing in both
cases because the Trial Court‟s and jury‟s finding of the
aggravating sentencing factor “the defendant took advantage of a
position of trust or confidence, including a domestic
relationship, to commit the offense” is not supported by the
evidence; the Trial Court‟s imposition of aggravated-range
sentences based on this factor was error. On appeal, a finding of
a sentencing factor must be supported by the evidence. State v.
Nicholson, 169 N.C. App. 390, 395, 610 S.E.2d 433, 436 (2005).
The record contains the following evidence about the relationship
between defendant and Samantha: Samantha met defendant in the
mid-1990s when she was 5 years old because defendant was friends
with her mother Elaine Ward‟s then-husband. (Tpp. 270, 343) This
husband was not Samantha‟s father. (Tp. 49) Samantha‟s mother
and the husband then separated. (Tp. 270) Samantha testified
that during the next 10 years her mother dated defendant “a couple
of times.” (Tpp. 270-271) When Samantha was asked “how long had
it been” since she had last seen defendant and her mother and
defendant had dated, Samantha answered “it‟s been a while.” (Tp.
279) Detective Baird testified defendant once “had been a
boyfriend to Samantha‟s mother” and “had dated” Elaine Ward “off-
and-on” for several years, but that defendant and Elaine Ward
6
“broke up” in 2004 and defendant “had not seen [the mother] for
somewhere around 6 to 9 months” before the alleged assault. (Tp.
499) In June 2005, the mother had a boyfriend named Clay and did
not know defendant‟s address. (Tpp. 472, 514) Samantha “hated”
defendant during and after the time defendant dated her mother.
(Tp. 500) Defendant and Samantha “didn‟t get along very well.”
(Tp. 499) Over defendant‟s objection, the Trial Court submitted
the question of the existence of the “trust or confidence”
aggravating sentencing factor to the jury as a special verdict
during the guilt-phase jury instructions. (Tpp. 626-629, Rpp. 26-
27) The jury found the factor in both cases. (Rpp. 35-36) In
sentencing in both cases, the Trial Court found the “trust or
confidence” aggravating sentencing factor and then relied on the
factor to sentence defendant to aggravated-range terms of
imprisonment in defendant‟s sentencing grid box. (Tpp. 709-710,
Rpp. 39-46)
G.S. 15A-1340.16(a) provides “[t]he State bears the burden of
proving beyond a reasonable doubt that an aggravating factor
exists.” The “trust or confidence” aggravating factor requires
“„the existence of a relationship between the defendant and the
victim generally conducive to reliance of one upon the other.‟”
State v. Mann, 355 N.C. 294, 319, 560 S.E.2d 776, 791 (2002),
quoting State v. Daniel, 319 N.C. 308, 311, 354 S.E.2d 216, 218
(1987). “The existence of this aggravating factor is premised on
a relationship of trust between defendant and the victim which
causes the victim to rely upon defendant.” State v. Farlow, 336
7
N.C. 534, 542, 444 S.E.2d 913, 918 (1994). Because this factor
requires more than prior knowledge and acquaintance, “[o]ur courts
have upheld a finding of [it] in very limited factual
circumstances.” State v. Mann, supra; State v. Rogers, 157 N.C.
App. 127, 131, 577 S.E.2d 666, 670 (2003).
In both instant cases, the “trust or confidence” aggravating
factor is not supported by the evidence. First, there is
insufficient evidence of the required trusting relationship.
Instead, all the evidence affirmatively shows defendant did not
occupy a position of trust or confidence with respect to Samantha.
Thus, the undisputed evidence showed defendant and Samantha did
not have a relationship in June 2005: defendant had never had a
relationship with Samantha outside of the context of dating her
mother; defendant‟s dating relationship with the mother was
infrequent, “off-and-on,” and extremely casual; defendant and the
mother “broke up” in 2004; the mother had a steady boyfriend in
June 2005; and defendant and Samantha had not even seen each other
in the 6 to 9 months before June 2005. Defendant did not have a
key to the Ward home. (Tp. 278) Further, to the extent defendant
and Samantha had a relationship, the State‟s own evidence showed
it was antagonistic: Samantha “hated” defendant and “didn‟t get
along very well” with defendant at that time. Still further,
there is not a scintilla of evidence defendant was Samantha‟s
father, knew Samantha‟s father, was related to Samantha in any
way, ever lived with Samantha or her mother, ever cared for or did
anything with Samantha, ever held any legal, quasi-legal, or de
8
facto step-father or parenting role over Samantha, ever was
responsible for Samantha‟s welfare, ever gave money to Samantha,
or ever was Samantha‟s friend or playmate. Similarly, there is
not a scintilla of evidence Samantha ever lived with defendant,
went to defendant‟s home, relied on defendant for anything,
depended on defendant, considered defendant to be an authority
figure, or was consciously trustful of defendant. Significantly,
Samantha testified “I wasn‟t supposed to open the door for”
defendant. (Tp. 317) Despite opportunity, Samantha never
testified she held defendant in a position of confidence or let
defendant inside the house on June 5 because she trusted him.
(Tp. 279) Indeed, the evidence showed Samantha distrusted
defendant, “felt uncomfortable with [defendant] there,” pushed
defendant, and “wanted [defendant] to leave” minutes after she let
him inside on June 5. (Tpp. 280-281, 318) Accordingly, there is
no evidence defendant and Samantha had a relationship generally
conducive to reliance upon each other or a relationship of trust
which caused Samantha to rely on defendant.
Second, even if there was sufficient evidence of a trusting
relationship, there was insufficient evidence defendant took
advantage of or abused any such relationship in order to commit
the offense. The State‟s theory of the case was that defendant
came to the Ward home to visit Elaine Ward, not Samantha (Tp.
658), and the evidence showed defendant was inside the house
sleeping, watching television, and waiting for Elaine Ward for
some time before he ever entertained an idea of having sex.
9
Defendant‟s alleged actions were not a result of taking advantage
of any trusting relationship. Third, this Court‟s prior decisions
show there is insufficient evidence of the “trust or confidence”
factor here. See State v. Nicholson, 169 N.C. App. at 394-397,
610 S.E.2d at 436-437; State v. Marecek, 152 N.C. App. 479, 513-
514, 568 S.E.2d 237, 259 (2002); State v. Midyette, 87 N.C. App.
199, 203, 360 S.E.2d 507, 509 (1987). In sum, the record shows
nothing more than prior knowledge or acquaintance and the finding
of the “trust or confidence” aggravating sentencing factor is not
supported by the evidence. The erroneous imposition of
aggravated-range sentences based on this unsupported factor
entitles defendant to a new sentencing hearing in both cases.
II. DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE HE DID NOT RECEIVE REASONABLE NOTICE THE
AGGRAVATING SENTENCING FACTOR WAS GOING TO BE
SUBMITTED TO THE JURY DURING GUILT-PHASE
DELIBERATIONS IN VIOLATION OF THE SIXTH AMENDMENT.
Assignments of Error Nos. 17, 29-30, Rpp. 58, 60
Defendant is entitled to a new sentencing hearing in both
cases because the Trial Court erroneously overruled his objection
to submission of the “trust or confidence” aggravating sentencing
factor to the jury during guilt-phase jury deliberations on the
ground he did not have sufficient prior notice of the factor‟s
potential use; the Trial Court‟s submission of the factor in these
circumstances violated the Sixth and Fourteenth Amendments to the
United States Constitution. In appeals where constitutional
rights are implicated, “de novo review is ordinarily appropriate.”
Piedmont Triad v. Urbine, 354 N.C. 336, 338, 554 S.E.2d 331, 332
10
(2001). Because the occurrence date of the alleged offenses was
June 13, 2005, these cases fell into a “no man‟s land” with
respect to sentencing: much of the applicable statutory
sentencing law had been held unconstitutional; and the remedial
“Blakely Bill” did not apply. Both bills of indictment, which
were returned in August 2006 five months before the cases were
called for trial, alleged elements of the charged substantive
offense and also contained the following writing: “Aggravating
Factor - G.S. 15A-1340.16(d)(15) The defendant took advantage of
a position of trust or confidence to commit the offense.” (Rpp.
4-5) The record shows the State did not give any notice to
defendant any time before trial of any intent to submit any
aggravating sentencing factor to the jury. (Rp. 16) In
particular, the State did not provide written notice at least 30
days before trial of intent to prove any aggravating factor. The
trial transcript further shows the State did not give any notice
at arraignment, when the cases were called for trial on January
22, 2007, or at any time during the 4 days of trial before the
pre-charge-conference lunch recess after both parties had rested
their cases on January 25, 2007. (Tpp. 2-625) Sometime during
this recess, the prosecutor apparently mentioned submitting the
“trust or confidence” factor. (Tpp. 625-626) Shortly after this
recess during the charge conference, defense counsel stated:
To be perfectly honest, Judge, during the
prosecution of the State‟s case-in-chief, I really
wasn‟t considering defending [defendant] on the
aggravating factors . . . and I didn‟t ask questions
or cross-examine as to this issue.
11
(Tpp. 626-627) Defendant then objected to submitting the
aggravating factor to the jury during the guilt-phase
deliberations and moved to delay submitting any factor until a
“whole different” later proceeding. (Tp. 628) The Trial Court
overruled defendant‟s objection, stated “this aggravating factor
was alleged in the indictment and proper notice was given to the
defendant,” and submitted the “trust or confidence” aggravating
factor to the jury during the guilt-phase jury deliberations.
(Tpp. 628-629, Rpp. 26-27)
The Sixth Amendment to the United States Constitution
provides “[i]n all criminal prosecutions the accused shall enjoy
the right to . . . be informed of the nature and cause of the
accusation.” This constitutional right to notice is “one of the
chief glories of the administration of the criminal law in our
courts.” State v. Barnes, 253 N.C. 711, 714, 117 S.E.2d 849, 851
(1961). A criminal defendant has the right “to „reasonable
notice‟ . . . of the nature and cause of the accusation against
him . . . sufficient to ensure [he is] afforded an opportunity to
defend against the charge.” State v. Hunt, 357 N.C. 257, 271, 582
S.E.2d 593, 602 (2003).
In both instant cases, defendant did not have reasonable
notice the aggravating factor was going to be submitted to the
jury and submission of the factor violated the Sixth Amendment.
Thus, it is undisputed the State did not give any notice at any
time prior to the January 25 pre-charge-conference lunch recess of
12
its intent to submit an aggravating factor to the jury at any
point in the proceedings, much less during guilt-phase jury
deliberations. It is also clear defendant did not in fact know
the State planned to submit the factor during guilt-phase
deliberations until after both parties had rested their
evidentiary cases. As a result, defendant did not cross-examine
State witnesses about the factor, present evidence about the
factor, or address the factor at all in the pre-trial, jury
selection, or evidentiary parts of the trial. Defendant
immediately objected to submission of the factor as soon as he
learned the State wanted to submit it and asked the Trial Court to
defer submission until he had a opportunity to present evidence
about and litigate the factor. In these circumstances, defendant
did not have reasonable notice of the accusation against him
sufficient to prepare for trial and present a defense. The
writing of the aggravating factor in the indictments was not
reasonable notice here: the indictments themselves merely cited
the statutory number and language of the factor, did not give any
explanation for why the factor was cited, and did not give any
notice of how, when, or where the factor might be used during any
subsequent prosecution. At most, the appearance of the factor in
the indictments might have given defendant notice the Grand Jury
thought the factor might be relevant sometime during future
litigation; it did not give defendant notice the factor would
actually be submitted at trial, and it certainly did not give
defendant reasonable notice the factor would be submitted when it
13
was - - during guilt-phase jury deliberations of an unbifurcated
trial when he had not previously had notice or opportunity to
litigate the factor. Significantly, the “notice” the State gave
here would not have been sufficient notice in a case tried under
the Blakely Bill. See G.S. 15A-1340.16(a6) (requiring 30 days
advance written notice). Finally, this Sixth Amendment violation
was not harmless beyond a reasonable doubt. Because defendant did
not know this factor was going to be an issue, he did not prepare
to defend against it before trial and did not litigate against it
at trial. The jury found the factor and the Trial Court relied on
the factor to impose aggravated-range sentences. Accordingly,
defendant did not have a reasonable opportunity to defend against
the charges; the Trial Court‟s submission of the factor during
guilt-phase jury deliberations over his objection was prejudicial
constitutional error; and defendant is entitled to a new
sentencing hearing in both cases.. See State v. Smathers, 287
N.C. 226, 231, 214 S.E.2d 112, 115 (1975).
III. DEFENDANT IS ENTITLED TO A NEW SENTENCING HEARING
BECAUSE THE JURY INSTRUCTIONS ABOUT THE “TRUST OR
CONFIDENCE” AGGRAVATING SENTENCING FACTOR WERE
INADEQUATE IN LAW AND PLAIN ERROR.
Assignment of Error No. 19, Rp. 58
Defendant is entitled to a new sentencing hearing in both
cases because the Trial Court‟s jury instructions about the “trust
or confidence” aggravating sentencing factor were inadequate in
law, insufficiently particular, and plain error. The standard of
review is plain error. The Trial Court submitted the “trust or
14
confidence” factor to the jury via a special verdict under the
following jury instructions (Rpp. 26-27):
The way it works is if you find the defendant
guilty, for example, of statutory rape, then you go
to the second page and it says “Do you unanimously
find from the evidence beyond a reasonable doubt the
existence of the following aggravating factor: That
the Defendant took advantage of a position of trust
or confidence to commit the offense?” The State has
the burden of proof as to that aggravating factor. .
. . And you are to consider whether the State has
proven this aggravating factor beyond a reasonable
doubt. If you unanimously agree that they have, you
put “Yes.” If you don‟t think they have or you
don‟t unanimously agree you put “No.” . . .
It‟s the same procedure with the . . . statutory
sex offense charge . . . If you find the defendant
guilty of this charge then you will then determine
the aggravating factor which the State must prove
beyond a reasonable doubt. After you consider the
aggravating factor, you will put your answer “Yes”
or “No” on this sheet.
“A trial judge is required by G.S. 15A-1231 and 1232 to
instruct the jury on the law arising on the evidence . . . Failure
to instruct upon all substantive or material features of the crime
charged is error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d
745, 748 (1989). Jury instructions on non-capital aggravating
sentencing factors, like those given here, must comply with
certain “limitations.” State v. Blackwell, 361 N.C. 41, 48, 638
S.E.2d 452, 457 (2006), cert. denied, ___ U.S. ___, 167 L.Ed.2d
1114. “[T]rial courts using special verdicts in criminal cases
must require juries to apply law to the facts they find” and
“address . . . material issues of fact in the case.” Id. at 47-
48, 638 S.E.2d at 457. Our pattern jury instructions recognize
15
that some existing patterns on non-capital aggravating sentencing
factors may “require additional explanation” over and above what
is in them. See N.C.P.C.I. 204.25.
In both instant cases, the Trial Court‟s jury instructions
about the aggravating factor - - stating the bare statutory
language of the factor, merely telling the jury “you are to
consider whether the State has proven this aggravating factor,”
and directing the jury to answer “yes” or “no” - - were inadequate
in law and plain error. First, the instructions failed to explain
the substantive law of the factor. As shown in Argument 1, there
is considerable case law construing and narrowing this factor to
ensure it is found only in appropriate “limited factual
circumstances.” However, the instructions did not explain any of
this law relating to this factor, including the legal requirements
there must be a relationship between the defendant and the victim,
the relationship must be conducive to reliance and trust, and the
relationship must have been abused in order to commit the
offense. The instructions did not define the law, set forth
component elements of the factor, clarify legal issues, or define
terms used. In the absence of any explanation of substantive law,
jurors did not understand the law, know how to apply the law to
the evidence, or comprehend the material issues in the case.
Second, the instructions failed to explain other critical aspects
of sentencing law. Thus, in both cases, the instructions never
charged on many critical legal issues, including the definition of
reasonable doubt, credibility, weight of the evidence, and the
16
rule prohibiting use of evidence necessary to prove an element of
the offense to prove an aggravating factor. Further, in the sex
offense case, the instructions never charged the identity of the
factor submitted, that the State had the burden of proof, or that
the jury had to find the factor unanimously. In all of the
instructions, the Trial Court identified the aggravating factor
being submitted only once, and that was in its bare statutory
language. Third, the single reading of the factor‟s statutory
language was not a sufficient explanation of the law. The purpose
of jury instructions is to structure and inform decision-making.
It is well settled that “[o]rdinarily the reading of the pertinent
statute without further elaboration is not sufficient.” State v.
Mundy, 265 N.C. 528, 529, 144 S.E.2d 572, 573 (1965). Here, the
bare reading of the statutory language did not give any guidance
to the jury and was insufficiently particular to enable the jury
to understand the law and apply the law to the evidence. As the
pattern jury instruction itself suggests, “additional explanation”
was “required.” The jury instructions were error. See State v.
Maske, 358 N.C. 40, 54-57, 591 S.E.2d 521, 531-532 (2004) (jury
instruction on capital aggravating factor was error).
The inadequate jury instructions were plain error because
they “had a probable impact on the jury‟s finding” of the factor.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
Although defendant never had notice and an opportunity to litigate
this factor, the State‟s own evidence about the factor was
insufficient and sketchy. Officer Baird‟s evidence showed
17
Samantha “hated” and “didn‟t get along with” defendant. The
failure of the jury instructions to contain any definition of the
law allowed the jury to go on a frolic of its own and caused the
jury to return an arbitrary verdict not supported by the evidence
or law. Defendant is entitled to a new sentencing hearing in both
cases.
IV. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
TRIAL COURT’S DENIAL OF HIS CHALLENGE FOR CAUSE OF
JUROR PORTER WAS ERRONEOUS IN LAW.
Assignment of Error No. 25, Rp. 59
Defendant is entitled to a new trial in both cases because
the Trial Court‟s ruling denying his challenge for cause of
potential juror Catherine Porter was an abuse of discretion;
Porter‟s close relationship with the State‟s chief investigator
and other concerns rendered her unable to be a fair and impartial
juror. The standard of review is abuse of discretion. During
jury selection, Porter was seated as a potential juror and
immediately volunteered she and Sheriff Detective Richard Baird,
the State‟s chief investigator in this case, had been friends for
10 to 15 years. (Tpp. 147-148, 187) Officer Baird had been
Porter‟s pastor at her church, Trinity Baptist. (Tpp. 148, 155)
Porter referred to Baird as “my former pastor” and “Richard,”
acknowledged Baird “was very important to me at a particularly
hard time in my life,” and stated she and Baird had “visited at
home,” were “together at church functions quite a bit,” and knew
each other “fairly well.” (Tpp. 148-149, 187-190) Although Baird
was no longer pastor of her church, Porter stated: “We still see
18
each other. We run into each other and we do carry on
conversations . . . I have seen him at church frequently . . . I
see Richard frequently . . . He‟s a pastor and a friend.” (Tpp.
187-189) Porter also stated: 1) she knew “some of the people”
sitting in the courtroom, including defendant‟s mother Sheila, who
she said were “on the opposite side;” 2) she was once “robbed at
gunpoint making a bank drop” and then testified for the State at
the subsequent criminal trial held in that very Buncombe County
courtroom; and 3) she was a juror at another criminal trial in
1987 involving a charge of child sex abuse. (Tpp. 155-158, 188)
When asked if she could be a fair juror in this case, Porter
stated: “I would do my best . . . I would want to think I would
be, but I‟d rather not do it. . . . I‟d rather not [serve]
knowing the 2 people, if that‟s possible . . . I think it
would . . . be better [if I did] not serve on this jury.” (Tpp.
149, 188-189)
Defendant challenged Porter for cause on the ground she could
not be “fair and impartial.” (Tp. 190) The Trial Court denied
defendant‟s challenge. (Tp. 190) Subsequently, defendant
peremptorily challenged Porter, exhausted his peremptories by
challenging 5 other jurors, renewed his challenge for cause
against Porter before passing on the twelfth juror, requested an
additional peremptory challenge under G.S. 15A-1214(h) to
challenge twelfth juror Margaret Kamisal, and stated he would use
the additional peremptory against juror Kamisal. (Tpp. 202, 230,
240-241, 246-248, Rp. 16) The Trial Court denied all of
19
defendant‟s motions and Kamisal sat as a juror at defendant‟s
trial. (Tpp. 241, 248)
G.S. 15A-1212(h) provides a potential juror should be excused
for cause if she “is unable to render a fair and impartial
verdict.” A juror must be excluded for cause if the juror‟s
concern “would prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his
oath.” State v. Reed, 355 N.C. 150, 156, 558 S.E.2d 167, 171
(2002).
In both instant cases, the Trial Court‟s ruling denying
defendant‟s challenge for cause of juror Porter was prejudicial
error and an abuse of discretion because Porter‟s close
relationship with Baird and other concerns substantially impaired
her ability to fairly perform her duties as a juror. First,
Porter herself recognized she could not be an impartial juror in
this case. When Porter was seriously answering questions about
her ability to be impartial, the most she could say was she “would
want to think” she could and “would do [her] best” to be fair.
Porter frankly admitted she did not want to serve and “it would be
better” for everyone if she did not serve. Second, Porter‟s
statement defendant‟s family members were “on the opposite side”
(Tpp. 155-156) shows Porter could not be a fair juror. Because
she was Baird‟s friend and a violent crime victim, Porter
identified so closely with the State she believed she and
defendant were on opposite sides in this case. Third, Porter‟s
20
close and unique relationship with Detective Baird shows Porter
could not be impartial. Baird was Porter‟s trusted former pastor
and a person who had been “very important to [Porter] at a
particularly hard time in [Porter‟s] life.” Baird and Porter were
such intimate friends they knew each other‟s feelings without
having to communicate. (Tp. 189) Moreover, Baird was the State‟s
chief police investigator in this case and a key State witness at
trial (Tpp. 461-532); Baird sat next to the prosecutor at the
State‟s table in the courtroom throughout the trial facilitating
the State‟s prosecution of defendant; and the prosecutor admitted
he “consistently rel[ied] on [Baird] to assist [him] in multiple
matters [at trial] because [he] d[idn‟]t have someone else sitting
here with [him].” (Tp. 9) In short, Porter was too partial and
interested in favor of Baird to be able to give defendant a fair
trial. See State v. Lee, 292 N.C. 617, 619-625, 234 S.E.2d 574,
576-579 (1977). Fourth, Porter‟s status as a prior victim of a
violent crime, a witness for the State in another criminal
prosecution, and a juror in a previous child sex offense case also
showed Porter was not able to be an impartial juror in this case.
The erroneous ruling was prejudicial because it forced
defendant to exhaust his peremptory challenges and caused
defendant to accept a juror he did not want, twelfth juror
Kamisal. During jury voir dire, Kamisal expressed substantial
doubt about her ability to be fair and defendant would have used a
peremptory against her if he had one. (Tpp. 231-237) Finally,
this error is fully preserved for normal appellate review because
21
defendant unsuccessfully challenged Porter for cause, peremptorily
challenged Porter, exhausted his peremptory challenges, renewed
his challenge to Porter before juror Kamisal was accepted, asked
for an additional peremptory challenge, and stated he would use
the additional peremptory on Kamisal. See G.S. 15A-1214. In sum,
the Trial Court‟s ruling denying defendant‟s challenge for cause
was error and defendant is entitled to a new trial in both cases.
See State v. Cunningham, 333 N.C. 744, 746-756, 429 S.E.2d 718,
719-723 (1993).
V. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
PROSECUTOR MADE SEVERAL IMPROPER OPENING AND
CLOSING ARGUMENTS.
Assignments of Error Nos. 18, 27, Rpp. 58, 60
Defendant is entitled to a new trial in both cases because
the prosecutor made several improper opening statements and
closing arguments; the Trial Court‟s failure to intervene was ex
mero motu error in violation of the Fourteenth Amendment to the
United States Constitution. Except for 1 objected-to argument,
the standard of review is ex mero motu error. First, the
prosecutor improperly argued the jury should find defendant guilty
because it was accountable to Samantha Ward, unnamed future
victims, and the greater community. The prosecutor argued (Tpp.
636-637, 672):
This case is about your responsibility, ladies and
gentlemen . . . to those members of our community
that would fall prey to the likes of this defendant.
The child who has already fallen prey and the ones
whom he may prey upon in the future if we don‟t
fulfill our responsibility. . . . This case is
22
about our responsibility to those members of this
community who would be preyed upon by someone who
gets aroused by violence. . . . Soon the
responsibility is going to be in your hands. . . .
Return a verdict that says to any other victim out
there who may fall prey to this defendant . . . that
we hear and recognize our responsibility to protect
this community.
It is well settled that “the jury‟s decision must [not] be based .
. . upon the jury‟s perceived accountability to . . . the victim,
to the community, or to society in general.” State v. Boyd, 311
N.C. 408, 418, 319 S.E.2d 189, 197 (1984). The prosecutor‟s
argument the jury was “responsible to” 1) people “whom [defendant]
may prey upon in the future,” 2) “members of our community,” 3)
“any other victim out there,” and 4) Samantha Ward was a grossly
improper argument the jury was accountable to others in society
and should find defendant guilty because of that accountability.
Second, through this same argument, the prosecutor improperly told
jurors to convict defendant because the community demanded
punishment. In arguing jurors should return a guilty verdict that
says “we hear” members of “our community,” the prosecutor
improperly urged jurors to lend an ear, rather than a voice, to
the community. See State v. Scott, 314 N.C. 309, 312, 333 S.E.2d
296, 298 (1985). Third, also through this argument, the
prosecutor improperly argued “general deterrence.” “[T]he
prosecution may not argue the effect of defendant‟s conviction on
others, i.e., general deterrence.” State v. Abraham, 338 N.C.
315, 339, 451 S.E.2d 131, 143 (1994). In arguing this case “was
about” the jury‟s responsibility to stop third parties, including
23
people “who get aroused by violence” and who are “the likes of
this defendant,” the prosecutor was clearly improperly arguing the
jury should find defendant guilty to deter other criminals in the
future.
Fourth, the prosecutor engaged in abusive and unsupported
name-calling by repeatedly calling defendant “a violent sexual
predator.” In opening statement and over defendant‟s unsuccessful
objection, the prosecutor argued “the evidence will show . . .
[defendant is] a violent sexual predator.” (Tp. 262) In closing
argument, the prosecutor argued (Tpp. 658, 661, 672):
Here‟s the scary thing about this: . . . once they
start getting violent [defendant] starts getting
aroused. That’s called a violent sexual predator.
He‟s aroused by violence. It‟s about power [and]
dominating this 14-year-old girl. . . . This case
is about [someone] who gets aroused by violence [and
someone who] fell prey to this defendant‟s deviant
sexual urges.
G.S. 14-208.6(6) provides that a sexually violent predator is “a
person who has been convicted of a sexually violent offense and
who suffers from a mental abnormality or personality disorder that
makes the person likely to engage in sexually violent offenses
directed at strangers or at a person with whom a relationship has
been established . . . for the primary purpose of victimization.”
Here, there is not a scintilla of evidence defendant ever was or
is a sexually violent predator. Thus, defendant plainly did not
meet the statutory definition of a sexually violent predator:
there is no evidence defendant had ever been convicted of a
sexually violent offense or ever suffered from the required
24
personality disorder. Further, defendant did not meet any common
understanding of a sexually violent predator: there is no
evidence defendant had ever committed or been convicted of any
type of sex-related crime or ever suffered from any type of
personality disorder. Samantha‟s account of defendant‟s actions
on June 13 certainly does not qualify defendant as a sexually
violent predator, show defendant gets aroused by violence, or
support the prosecutor‟s name-calling. Moreover, the prosecutor
never sought classification of defendant as a sexually violent
predator under G.S. 14-208.20-.24. Previously, this Court has had
occasion to warn prosecutors in this judicial district about
making closing arguments containing “prejudicial
characterization[s]” a defendant is a sexual predator. State v.
Campbell, 133 N.C. App. 531, 538-539, 515 S.E.2d 732, 737 (1999).
The prosecutor‟s name-calling here was unsupported, repeated,
abusive, vituperative, and grossly improper. See State v.
Matthews, 358 N.C. 102, 110-112, 591 S.E.2d 535, 541-542 (2004).
Fifth, the prosecutor improperly misstated the law. Thus, in
arguing about the legal definition of reasonable doubt, the
prosecutor stated: “[f]ully satisfied, entirely [convinced],
that‟s not the state of the law.” (Tp. 638) However, for decades
the standard North Carolina definition of proof beyond a
reasonable doubt has been “proof that fully satisfies or entirely
convinces you of the defendant‟s guilt.” See State v. Wells, 290
N.C. 485, 492, 226 S.E.2d 325, 330 (1976). Accordingly, the
prosecutor‟s argument fully satisfied and entirely convinced was
25
“not the state of the law” was itself a gross misstatement of law.
Sixth, the prosecutor improperly asserted his own personal opinion
that Samantha was telling the truth. Thus, in discussing
Samantha‟s trial testimony the prosecutor argued “that‟s called
the truth. That‟s called the truth . . . you know this is true,
every bit of it. Every bit of it.” (Tp. 663) Further, in
discussing Samantha‟s pre-trial statements the prosecutor argued
“she wasn‟t lying . . . [they are] the truth.” (Tpp. 653, 657)
G.S. 15A-1230(a) provides an attorney “may not . . . express his
personal belief as to the truth or falsity of the evidence.”
Here, the prosecutor‟s expression of his own personal opinion
Samantha‟s trial testimony and pre-trial statements were true was
improper. See State v. Robinson, 355 N.C. 320, 334-335, 561
S.E.2d 245, 255 (2002). Accordingly, the prosecutor‟s opening and
closing arguments were improper.
The Trial Court‟s erroneous ruling denying defendant‟s
objection to the prosecutor‟s argument defendant was a violent
sexual predator (Tp. 262) was prejudicial and the balance of the
prosecutor‟s closing argument was ex mero motu error. First, the
inflammatory nature of the improper argument shows it was ex mero
motu error. Thus, calling defendant a sexually violent predator
surely inflamed the jury. Further, the prosecutor‟s appeals to
general deterrence, community sentiment, and the jury‟s
responsibility to Samantha and future victims as a basis for guilt
were equally inflammatory. Second, the prosecutor‟s misstatement
of law about reasonable doubt concerned a vital trial issue.
26
Third, the prosecutor‟s expressed favorable opinion about
Samantha‟s credibility impressed and swayed the jury. Fourth,
even if this Court holds the error was not prejudicial in the rape
case because of the DNA evidence, the record shows the error was
prejudicial in the sex offense case. Thus, there was absolutely
no physical evidence showing defendant committed the charged sex
offense of cunnilingus. Indeed, the physical evidence in the sex
offense case was exculpatory: although the SBI tested the swabs
and slides in Ward‟s rape kit for the presence of amylase, a
digestive enzyme in saliva, all the tests were negative. (Tpp.
576-581) The lack of amylase on the swabs from Ward‟s external
genitalia area is strong evidence the sex offense did not occur.
Further, Ward‟s statements about whether the sex offense occurred
were inconsistent. In a lengthy, detailed, and signed statement
to police taken before she left the hospital on June 13, Ward did
not say or claim defendant had oral contact with her vagina. (Tp.
456) Ward‟s failure to mention the sex offense in this statement
is further strong evidence the sex offense never happened. Fifth,
the record of jury deliberations shows the arguments were ex mero
motu error, especially in the weak sex offense case. Thus, the
jury sent the following 3 notes to the Trial Court during
deliberations: 1) “do we need physical evidence to find defendant
guilty or can we do so based on witness testimony?;” 2) “we‟re
unanimous on one verdict, not on the second, and there‟s some
indication we won‟t be in agreement on number two;” and 3) “if we
can make a decision on one charge but not on both, does that
27
result in a mistrial or hung jury? And if so, what does that
mean?” (Tpp. 695-700) Further, the jury deliberated for more
than 1 hour over parts of 2 days before it returned the verdicts.
(Tpp. 694-703) These notes and 2-day deliberations show the jury
had serious doubts in the sex offense case. Accordingly, the
improper “violent sexual predator” argument was prejudicial; the
other improper arguments were ex mero motu error; and defendant is
entitled to a new trial in both cases.
VI. DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE
TRIAL COURT ERRONEOUSLY FAILED TO RESOLVE MATERIAL
DISPUTED ISSUES OF FACT IN DENYING HIS MOTION TO
SUPPRESS EVIDENCE.
Assignments of Error Nos. 10, 12-13, 20-21, Rpp. 57, 59
Defendant is entitled to a new trial or motion to suppress
hearing in both cases because the Trial Court erroneously failed
to resolve material disputed issues of fact relating to
defendant‟s consent in denying his motion to suppress physical
evidence. The adequacy of a trial judge‟s factual findings is a
legal issue reviewable de novo. State v. Ghaffar, 93 N.C. App.
281, 288, 377 S.E.2d 818, 822 (1989). On January 22, 2007,
defendant filed a pre-trial motion to suppress in which he moved
to suppress evidence of “cheek scrapings” or “mouth swabs” police
seized from inside his mouth on October 18, 2005 and the fruit of
those scrapings on the ground the scrapings were taken during an
unconstitutional, illegal, and warrantless search and seizure of
his person without his voluntary consent while he was in custody
in violation of G.S. 15A-233 and the Fourth Amendment to the
28
United States Constitution. (Rpp. 6-10) At a pre-trial hearing
on defendant‟s motion, the State conceded officers searched
defendant without a warrant or exigent circumstances, but
contended the search and seizure was constitutional because
defendant voluntarily consented to it. (Tpp. 55-58)
Sheriff Detective Richard Baird testified at the hearing that
on October 18, 2005,1 he learned defendant was incarcerated in the
Buncombe County Jail on unrelated minor charges, decided he wanted
to take cheek scrapings from defendant‟s mouth in order to obtain
defendant‟s DNA profile to check against unknown genetic material
contained in Samantha Ward‟s rape kit, did not get a search
warrant or non-testimonial identification order authorizing any
such search and seizure, went to the jail with Sheriff Detective
Edward Davis, and talked to defendant in an interrogation room
inside the jail. (Tpp. 16-17, 24-25, 27-29) Baird testified he
asked defendant if defendant would voluntarily give cheek
scrapings. (Tpp. 17-20) Baird testified he “specifically asked
permission” from defendant to obtain cheek scrapings. (Tpp. 17,
19-20) Baird testified defendant thought for a few moments and
then “agreed. . . . He said okay . . . He agreed to it.” (Tpp.
17-18, 20, 30) Baird testified defendant “was cooperative,” never
indicated he did not want to do it, and “consented.” (Tpp. 18-19,
27) Detective Davis testified Baird “asked [defendant] if we
1
The evidence at the hearing about the exact date of the search and
seizure was vague. The subsequent evidence at trial conclusively established
the search and seizure occurred on October 18, 2005. (Tp. 506)
29
could obtain a DNA sample” and defendant “agreed to it.” (Tp. 33)
Davis testified defendant “didn‟t seem to have a problem with it”
and did not protest “in any way.” (Tpp. 33-34) Baird and Davis
testified the procedure never “became confrontational” and they
never raised their voices at, threatened, or coerced defendant at
any time during the procedure. (Tpp. 18, 29, 34) Detective Davis
then gave defendant 2 or 3 swabs; defendant scraped his cheeks;
and the officers left the jail with the scrapings and subsequently
submitted the scrapings and Ward‟s rape kit to the SBI for DNA
analysis. (Tpp. 18-19, 35)
Defendant testified Baird and David approached him in the
jail‟s interrogation room and “told” him “we want you to take the
swabbing.” (Tpp. 41-42) Defendant testified he got “pretty
nervous” and replied “shouldn‟t I have an attorney present?” (Tp.
41) Defendant testified Baird and Davis raised their voices and
Baird responded “it did not matter whether [defendant had an
attorney or not], they had a search warrant. It would take 5
minutes to get the paperwork and they would hold me down and
physically take it from me if they had to . . . [Baird] said he
would go get the piece of paper and if they had to they would
physically hold me down and take the swabs. There was nothing I
could do about it. The best thing I could do was just go ahead
and cooperate.” (Tpp. 41-42, 45) Defendant testified he was
“intimidated” by the detectives and “went ahead and did the swab”
because otherwise “as far as I know, they were going to [get a
warrant,] hold me down, and take it physically . . . I felt like I
30
was forced to do it. I didn‟t have an attorney present. I
figured I had no choice.” (Tpp. 41-45)
At the end of the hearing, the Trial Court orally dictated an
Order, found facts on uncontested matters, and stated “the
evidence is conflicting as to what happened [when defendant was
brought to the Jail‟s interrogation room]. I‟m going to go
through what [defendant] said happened although I‟m not finding it
as a fact.” (Tpp. 61-62, Rpp. 11-12) The Trial Court then
recounted defendant‟s testimony and further stated: “I‟m not
finding this as fact, but even if I did find as a fact that
[defendant] was told that a warrant could be obtained and the
swabs would be taken by force,” those facts would not make the
procedure non-consensual. (Tpp. 62-65, Rpp. 12-15) The Trial
Court then concluded as a matter of law defendant “decided freely
and by his own consent to give the swabs to the officers” and
denied defendant‟s motion to suppress. (Tpp. 64-65, Rpp. 14-15)
Subsequently at trial and over defendant‟s renewed objection, the
Trial Court admitted into evidence the cheek scrapings themselves
and testimony about the scrapings, including the results of DNA
tests on the scrapings. (Tpp. 502-507, 536-545, 571-572, 585-589,
597-609, 618)
“When there is a material conflict in the evidence on voir
dire, the judge must make findings of fact resolving any such
material conflict.” State v. Lang, 309 N.C. 512, 520, 308 S.E.2d
317, 321 (1983). See G.S. 15A-977(d). On a motion to suppress,
31
“it is the trial judge‟s duty to make findings of fact resolving
all material conflicts in the evidence as to what the defendant
and the investigating officers said and did during the relevant
time period.” State v. Richardson, 316 N.C. 594, 600, 342 S.E.2d
823, 828 (1986).
In the instant Order denying defendant‟s motion to suppress,
the Trial Court erroneously failed to resolve material disputed
factual issues relating to the issue of defendant‟s consent to the
October 18 search and seizure. First, the record of the voir dire
hearing shows there were many disputed issues of fact, including:
1) although defendant testified officers “told” him to “take the
swabbing,” officers testified they “asked defendant” and
“specifically asked permission” to obtain the scrapings; 2)
although defendant testified he got nervous and replied “shouldn‟t
I have an attorney present?,” officers testified defendant “said
okay [and] agreed to it,” did not protest “in any way,” and
“didn‟t seem to have a problem with it;” 3) although defendant
testified officers “raised their voices,” officers testified they
did not raise their voices; 4) although defendant testified
officers responded by telling him “there was nothing [he] could do
about it,” whether he had an attorney “did not matter,” they
either had or could quickly get a search warrant, would “hold
[him] down,” and would take the scrapings from him “physically if
they had to,” and “the best thing [to] do was cooperate,” officers
testified the procedure never became confrontational and they did
not threaten or coerce defendant; and 5) although defendant
32
testified he was “intimidated” and “forced to do it,” officers
testified defendant “consented.” The Trial Court itself
recognized (Rp. 12) “the evidence [was] conflicting” on several
factual issues. Second, the Trial Court did not resolve these
disputed factual issues: indeed, the Trial Court specifically
stated it was making recitations of testimony, not findings of
fact, on disputed issues. (Rpp. 12,14) See State v. Lang, supra
(“recitations of testimony” insufficient). Further, the Trial
Court‟s conclusions defendant “was not threatened” and “freely
consent[ed]” to the search and seizure were conclusions of law
mislabeled as findings of fact that did not resolve the disputed
factual issues. See State v. Booker, 306 N.C. 302, 310-313, 293
S.E.2d 78, 83-85 (1982). Finally, the Trial Court‟s finding Baird
“requested a cheek swab” and defendant “sat for a few moments
and . . . then said okay” is wholly inadequate to resolve all the
many pointed factual disputes raised at the hearing. Third, the
unresolved disputed factual issues were material: if defendant‟s
evidence about the October 18 encounter was found to be true as a
matter of fact, the encounter was, as a matter of law, non-
consensual. Thus, if defendant‟s account - - namely, that he was
brought to the Jail‟s interrogation room, confronted by 2 Sheriff
Detectives when he was incarcerated on unrelated minor charges,
told to give cheek scrapings, further told in raised voices it did
not matter whether he had an attorney, there was nothing he could
do about it, the best thing to do was cooperate, and officers had
or could easily get a search warrant, would physically hold him
33
down, and would physically take the scrapings from him if they had
to, and he cooperated because he was intimidated, figured he “had
no choice,” and felt like he was “forced to do it” - - was
credited, he did not as a matter of law consent to the search and
seizure. See Bumper v. North Carolina, 391 U.S. 543, 20 L.Ed.2d
797 (1968); State v. Morocco, 99 N.C. App. 421, 429, 393 S.E.2d
545, 550 (1990). It is undisputed the encounter occurred when
defendant was in custody and the detectives never told defendant
he could refuse the scrapings, never asked defendant to sign a
consent-to-search form before the search, or gave defendant any
paperwork or an inventory after the search. See State v. Cobb,
295 N.C. 1, 17-18, 243 S.E.2d 759, 769 (1978) (fact that defendant
in custody “places a greater burden upon the State to show
voluntariness”). Defendant‟s account, if credited, does not show
free and voluntary consent but mere acquiescence to a claim of
lawful authority. Bumper, supra.
In sum, the Trial Court‟s failure to resolve material
disputed issues of fact at the motion to suppress hearing was
error and defendant is entitled to a new trial or motion to
suppress hearing in both cases.
VII. THE TRIAL COURT’S FINDING IN THE SEX OFFENSE CASE
THE OFFENSE IS A REPORTABLE CONVICTION INVOLVING A
MINOR MUST BE VACATED BECAUSE IT IS ERRONEOUS IN
LAW.
Assignment of Error No. 32, Rp. 61
The Trial Court‟s finding in the statutory sex offense case
(06 CrS 454) the offense “is a reportable conviction involving a
34
minor” under G.S. 14-208.6 must be vacated because it is erroneous
in law; actually, the offense was not a reportable conviction
under the applicable law. On appeal, issues of statutory
construction are questions of law reviewable de novo. State Bar
v. Brewer, ___ N.C. App. ___, 644 S.E.2d 573, 576 (2007). The
offense at issue here - - sexual offense of a 14-year-old person
where the defendant is at least 6 years older than the person,
codified at G.S. 14-27.7A(a) - - was allegedly committed on June
13, 2005. During the proceedings below, the issue whether this
offense was a “reportable conviction” under our Sex Offender
Registration Program was never raised by any actor at any time.
Specifically, during the recorded sentencing hearing, the
prosecutor never contended and the Trial Court never found the
offense was a reportable conviction. However, the face of the
written Judgment and Commitment in the sex offense case shows “box
7” is checked and the Trial Court found the offense “is a
reportable conviction involving a minor.” (Rp. 45) The record
does not show how the box came to be checked or when the finding
was made.
During the first 11 years of our Sex Registration Statute‟s
existence (1995-2006), the offense at issue here (violation of
G.S. 14-27.7A(a)) was not a “sexually violent offense” and thus
not a “reportable conviction” under the Statute. See G.S. 14-
208.6(4) and (5)(2005). In 2006, our Legislature amended this
statute and made the offense a “sexually violent offense” and thus
a “reportable conviction.” See Session Law 2006-247, §§ 1(b) and
35
(c). However, the 2006 legislation also specifically provided the
new law was applicable only “to offenses committed on or after”
December 1, 2006. Id. In the instant case, all the evidence
showed the offense was committed before that date on June 13,
2005. Since the offense was not committed “on or after” December
1, 2006, the 2006 legislation does not apply and the pre-2006
statute controls. The offense was not a “reportable conviction”
under pre-2006 law. Accordingly, the Trial Court‟s finding the
offense is a reportable conviction is erroneous in law and must be
vacated.
CONCLUSION
For all the foregoing reasons, defendant respectfully
contends that he is entitled to a new trial in both cases.
Alternatively, defendant is entitled to a new motion to suppress
hearing and a new sentencing hearing in both cases. Finally, the
“reportable conviction” finding in the sex offense case Judgment
and Commitment must be vacated.
Respectfully submitted this the 13th day of December, 2007.
______________________________
Daniel R. Pollitt
Assistant Appellate Defender
Staples Hughes
Appellate Defender
Office of the Appellate Defender
123 West Main Street, Suite 500
Durham, North Carolina 27701
(919) 560-3334
ATTORNEYS FOR DEFENDANT
36
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Defendant-Appellant‟s
Brief has been filed by mail pursuant to Rule 26 by sending it
first-class mail, postage prepaid to the Clerk of the North
Carolina Court of Appeals, Post Office Box 2779, Raleigh, North
Carolina 27602, by placing it in a depository for that purpose.
I further hereby certify that a copy of the above and
foregoing Defendant-Appellant‟s Brief has been duly served upon
Robert C. Montgomery, Special Deputy Attorney General, North
Carolina Department of Justice, Post Office Box 629, Raleigh,
North Carolina 27602, by first-class mail, postage prepaid.
This the 13th day of December, 2007.
____________________________
Daniel R. Pollitt
Assistant Appellate Defender
