STATE OF NORTH CAROLINA v. JAMES DWAYNE BARNES
No. COA20-597
IN THE COURT OF APPEALS OF NORTH CAROLINA
Filed 6 July 2021
2021-NCCOA-304
Alamance County, Nos. 18 CRS 52424, 52553, 52554; 19 CRS 268
Attorney General Joshua H. Stein, by Special Deputy Attorney General Brenda Menard, for the State.
Mark Montgomery for the defendant.
ARROWOOD, Judge.
James Dwayne Barnes (“defendant“) appeals by writ of certiorari from the trial court‘s order imposing lifetime satellite-based monitoring (“SBM“). Defendant contends the order should be vacated because “[t]here was no hearing of any kind, no argument by the State, nothing to support the trial court‘s order.” For the following reasons, we vacate the order without prejudice to the State‘s ability to file a subsequent SBM application.
On 2 July 2018, defendant was indicted for assault by strangulation, first-degree rape, first-degree kidnapping, two counts of first-degree sexual offense, and attaining habitual offender status. The matter came on for trial at the 21 October 2019 criminal session of Alamance County Superior Court, the Honorable D. Thomas Lambeth, Jr., presiding. The State‘s evidence tended to show as follows.
In May 2018, defendant, who is white, was dating “Cindy,”1 also white. Cindy was engaging in prostitution to earn “[m]oney for cocaine[,]” as well as to provide defendant to “do whatever we had to live. Live by it and buy cigarettes and dope.” On or around 7 May 2018, Cindy prostituted herself to an African American man, “Brian.” When defendant discovered Cindy in bed with Brian, defendant became angry and started beating Cindy, eventually choking Cindy until she lost consciousness. After Cindy regained consciousness, defendant anally raped Cindy and continued to beat her. Cindy later fell asleep, but defendant periodically woke her and beat her, and also forced her to perform oral sex.
The following morning, defendant and Cindy went to a Wal-Mart to panhandle. Officer Justin Jolly (“Officer Jolly“) of the Burlington Police Department received a call about Cindy‘s apparent injuries and went to the Wal-Mart to investigate. After
On 8 May 2018, Cindy was interviewed by Sharon Staley (“Ms. Staley“), a forensic nurse, and Lindsey Strickland (“Ms. Strickland“), a forensic nurse examiner. Both Ms. Staley and Ms. Strickland testified that Cindy‘s physical injuries were consistent with her account. Cindy was also interviewed by Detective Kevin King (“Detective King“) with the Burlington Police Department, and Justin Parks (“Mr. Parks“), a special victims investigator with the Iredell County Sheriff‘s Office. Recordings of Cindy‘s interviews with Detective King and Mr. Parks were played for the jury.
On 25 October 2019, a jury found defendant guilty of assault by strangulation, first-degree rape, first-degree kidnapping, one count of first-degree sexual offense, and of being a habitual offender. The trial court consolidated the convictions and imposed a sentence of 420 to 564 months imprisonment. The trial court determined that defendant had committed a sexually violent offense and an aggravated offense, and accordingly ordered defendant to enroll in SBM for life.
Defendant gave oral notice of appeal in open court on 25 October 2019. Defendant filed petition for writ of certiorari on 9 November 2020.
II. Discussion
Defendant contends the trial court erred in ordering lifetime SBM where the trial court did not conduct a hearing on whether lifetime SBM was reasonable and
A. Appellate Jurisdiction
Because of the civil nature of SBM hearings, a defendant must file a written notice of appeal from an SBM order pursuant to Appellate Rule 3.
Defendant asserts that the trial court erred in ordering that defendant enroll in lifetime SBM upon his release from prison because the State failed to meet its burden of proving the imposition of lifetime SBM is a reasonable search under the Fourth Amendment. See Grady v. North Carolina (“Grady I“), 575 U.S. 306, 310, 135 S. Ct. 1368, 191 L. Ed. 2d 459, 462 (2015). However, defendant did not raise any constitutional challenge or otherwise preserve this constitutional claim at any point during his sentencing hearing. Pursuant to Rule 10 of the North Carolina Appellate Rules of Procedure, “to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.”
Defendant requests that this Court exercise its discretion to invoke Rule 2 of the Rules of Appellate Procedure to reach the merits. Under Rule 2, “[t]o prevent manifest injustice to a party . . . either court of the appellate division may . . . suspend or vary the requirements or provisions of any of these rules in a case pending before it . . . upon its own initiative[.]”
In Bursell II, our Supreme Court affirmed this Court‘s decision to invoke Rule 2 and review the unpreserved constitutional issue. Bursell II, 372 N.C. at 197, 827 S.E.2d at 303 (affirming State v. Bursell (“Bursell I“) 258 N.C. App. 527, 813 S.E.2d 463 (2018)). First noting that the Fourth Amendment right implicated in such cases is a substantial right, the Bursell II Court affirmed this Court‘s suspension of the appellate rules after examining “the specific circumstances of [the] individual case[] and parties,” including “defendant‘s young age, the particular factual bases underlying his pleas, and the nature of those offenses, combined with the State‘s and the trial court‘s failures to follow well-established precedent in applying for and imposing SBM, and the State‘s concession of reversible Grady error.” Id. at 201, 827 S.E.2d at 306.
Here, as in Ricks, the State and trial court had the benefit of even more guidance than in Bursell I. The multiple cases referenced above clearly state a Grady hearing must be conducted and the State must present any evidence regarding the reasonableness of the search. Although the trial court in this case had the benefit of the precedent referenced above, it did not conduct a Grady hearing and the State failed to offer any evidence regarding the reasonableness of the search. For these reasons, we exercise our discretion and invoke Rule 2 to reach the merits of defendant‘s appeal.
B. Lifetime SBM
Defendant contends the trial court erred in imposing lifetime SBM without first conducting a hearing to “consider whether the warrantless, suspicionless search here is reasonable when its intrusion on the individual‘s Fourth Amendment interests is balanced against its promotion of legitimate governmental interests.” Grady III, 372 N.C. at 527, 831 S.E.2d at 557 (citation omitted). We agree.
As previously discussed, before imposing lifetime SBM, the trial court must conduct a Grady hearing and the State must present evidence regarding the reasonableness of the search. Determining the constitutionality of an SBM order “depends on the totality of the circumstances, including the nature and purpose of
In the present case, defendant‘s substantial rights under the Fourth
III. Conclusion
For the forgoing reasons, we vacate the trial court‘s order imposing lifetime SBM and remand without prejudice to the State‘s ability to file a subsequent SBM application.
Judge INMAN concurs.
Judge TYSON dissents by separate opinion.
Defendant‘s constitutional challenge was not presented, preserved, nor ruled upon by the trial court. As such, his petition for writ of certiorari to obtain appellate jurisdiction and to seek review of the imposition of SBM in violation of the appellate rules is properly dismissed. I respectfully dissent from the majority opinion to allow defendant‘s petition to review the SBM order.
I. No Jurisdiction
An appellant is required to file a written notice of appeal to invoke appellate jurisdiction on an appeal from the imposition of SBM, pursuant to North Carolina Rule of Appellate Procedure 3. See
Defendant, recognizing his failure to appeal, filed a petition for a writ of certiorari to invoke this Court‘s jurisdiction and to seek review of the imposition of lifetime SBM. This Court, in its discretion, should grant such writs only if the petition “show[s] merit or that [prejudicial] error was probably committed.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation omitted).
II. Constitutional Error Not Preserved
Defendant never raised any constitutional challenge before the trial court nor otherwise preserved his constitutional claim. When asked by the trial court if he wished to enter a notice of appeal, defendant‘s counsel simply and orally noted that
“[T]o preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.”
It is long and well established that constitutional arguments not raised at trial are not preserved and are barred from review direct appeal. See State v. Valentine, 357 N.C. 512, 525, 591 S.E.2d 846, 857 (2003) (“The failure to raise a constitutional issue before the trial court bars appellate review.“); see also State v. Bishop, 255 N.C. App. 767, 770, 805 S.E.2d 367, 370 (2017) (holding constitutional arguments are barred on direct appeal when not properly preserved).
III. Rule 2
In addition to his Rule 3 jurisdictional defect, defendant also requests this Court to further suspend the appellate rules and to invoke Rule 2 of the Rules of Appellate Procedure to reach the unpreserved merits of his claim. See
“Rule 2 relates to the residual power of our appellate courts to consider, in
“[P]recedent cannot create an automatic right to review via Rule 2.” Id. at 603, 799 S.E.2d at 603. Similarities between previous instances in which this Court has discretionally invoked Rule 2 are not independently sufficient to justify doing so here. Defendant must present specific evidence demonstrating obvious injustice in his case.
When a defendant seeking discretionary review is “no different from other defendants who failed to preserve their constitutional arguments in the trial court, and . . . has not argued any specific facts that demonstrate manifest injustice” this Court should decline to invoke Rule 2. Bishop, 255 N.C. App. at 770, 805 S.E.2d at 370.
Our Supreme Court has stated “if the Rules [of Appellate Procedure] are not applied consistently and uniformly, federal habeas tribunals could potentially conclude that the Rules are not an adequate and independent state ground barring review. Therefore, it follows that our appellate courts must enforce the Rules of Appellate Procedure uniformly.” State v. Hart, 361 N.C. 309, 317, 644 S.E.2d 201, 206 (2007).
The majority‘s opinion relies upon State v. Ricks, 271 N.C. App. 348, 843 S.E.2d 652, writ allowed, 375 N.C. 281, 842 S.E.2d 602 (2020) to buttress its assertion that this Court should invoke Rule 2. The majority‘s opinion correctly notes this Court‘s divided opinion in State v. Ricks has been appealed to the Supreme Court of North Carolina. The opinion and the mandate in Ricks have been stayed. State v. Ricks, 374 N.C. 749, 842 S.E.2d 88 (2020). As acknowledged in the majority‘s opinion, Ricks is neither precedential nor binding on the case before us.
Defendant has not presented any evidence demonstrating “exceptional circumstances.” See Campbell, 369 N.C. at 603, 799 S.E.2d at 602. Defendant has not demonstrated he is any “different from other defendants who failed to preserve their constitutional arguments in the trial court” nor has he “argued any specific facts that demonstrate manifest injustice.” Bishop, 255 N.C. App. at 770, 805 S.E.2d at 370. This Court should dismiss defendant‘s petition and decline to invoke Rule 2. Id.
IV. No Showing of Merit
It is uncontested the trial court properly found the multiple offenses the jury convicted defendant of committing were sexually violent and aggravated offenses pursuant to
I do find that this was a sexually violent offense. That the defendant has not been classified as a sexually violent predator. That the defendant is not a recidivist. And that the offense of conviction is an aggravating offense. Based on the above findings, the Court does order registration as a sex offender for the defendant‘s natural life.
Defendant‘s appellate counsel now attempts to raise a purported and barred constitutional violation on appeal. In the absence of a demand, preservation, or objection from defendant, his petition for writ of certiorari to invoke jurisdiction to fix his admitted failure to comply with Appellate Rule 3, and, if granted, to invoke Rule 2 is properly dismissed and denied.
Defendant‘s counsel‘s frivolous appellate argument hinges on the notion and assertion that the trial court or this Court should sit as a “second chair” to his defense counsel.
[A judge‘s] job [is] to call balls and strikes, and not to pitch or bat . . . [t]he role of an umpire and a judge is critical. They make sure everybody plays by the rules . . . we are a Government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans.
Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the Committee on the Judiciary United States Senate, 109 Cong. 56 (Statement of John G. Roberts, Jr.).
“It is not the role of the appellate courts . . . to create an appeal for an appellant.” Viar v. N. Carolina Dep‘t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Defendant cannot raise a constitutional argument for the first time on
V. Conclusion
Defendant failed to argue, raise, or preserve his constitutional challenge to his SBM order. Defendant may not raise this issue for the first time on appeal. Dismissal of his petition is the only proper ruling. I respectfully dissent.