STATE v. CAMPBELL
No. 252PA14-2
IN THE SUPREME COURT OF NORTH CAROLINA
9 June 2017
[369 N.C. 599 (2017)]
REVERSED.
STATE OF NORTH CAROLINA v. THOMAS CRAIG CAMPBELL
Appeal and Error—Rule of Appellate Procedure 2—invoked by Court of Appeals without discussion of merits
The Court of Appeals erred in this case (Campbell II) by invoking Rule 2 of the Rules of Appellate Procedure to review defendant‘s fatal variance argument. The panel in Campbell II merely noted that a previous panel of that court had, for the same case (Campbell I), invoked Rule 2 to review a similar fatal variance argument and then, without further discussion or analysis regarding Rule 2, the Campbell II panel addressed the merits of defendant‘s argument. The panel failed to exercise its discretion when it did not consider whether defendant‘s case was one of the rare instances meriting exercise of the court‘s supervisory power under Rule 2. The case was reversed and remanded to the Court of Appeals for an independent determination of whether the facts and circumstances merited the exercise of the court‘s discretion to review the case under Rule 2.
On discretionary review pursuant to
Glenn Gerding, Appellate Defender, by Hannah Hall Love, Assistant Appellate Defender, for defendant-appellee.
MORGAN, Justice.
This is the second time that this case has made its way to this Court, and yet our resolution of the present appeal does not represent a final ruling on the merits. Instead, for the reasons discussed herein, we reverse and remand this case to the Court of Appeals for an independent assessment of whether that court need and should invoke its discretion under Rule 2 of the North Carolina Rules of Appellate Procedure in order to reach the merits of one of defendant‘s substantive issues on appeal.
In light of the several previous opinions from this Court and the Court of Appeals in this matter, we will not recount the factual background of this case in detail. The evidence at trial tended to show the following: Overnight on 15 August 2012, certain sound equipment disappeared from Manna Baptist Church in Shelby, North Carolina, and defendant‘s wallet was found in the area of the church near where some of the missing equipment was kept. Defendant testified that, in the throes of a personal crisis, he entered the unlocked church seeking comfort and sanctuary, spent the night there praying and sleeping, and left the following morning without taking anything except some water. After defendant left the church, he experienced symptoms that led him to believe he was having a heart attack, so he called for emergency services. The emergency medical technician (EMT) who responded to defendant‘s call for help testified that defendant did not have any sound equipment with him when the EMT arrived. Nonetheless, defendant was subsequently indicted for (1) breaking or entering a place of religious worship with intent to commit a larceny therein and (2) larceny after breaking or entering.
The procedural history of this case warrants lengthier review. The matter came on for trial at the 10 June 2013 session of Superior Court, Cleveland County, the Honorable Linwood O. Foust, Judge presiding. Defendant moved to dismiss the charges against him at the close of the State‘s evidence and again at the close of all the evidence. The trial court denied each motion, and the jury returned guilty verdicts on both charges. Defendant appealed, making six arguments of error. The Court of Appeals addressed only two of defendant‘s contentions, but vacated
In that initial appeal, this Court held
that the larceny indictment alleging ownership of stolen property of Manna Baptist Church sufficiently alleged ownership in a legal entity capable of owning property[,] . . . that the State presented sufficient evidence of defendant‘s criminal intent to sustain a conviction for felony breaking or entering a place of religious worship, and [thus] the trial court properly denied defendant‘s motions to dismiss.
State v. Campbell, 368 N.C. 83, 88, 772 S.E.2d 440, 444-45 (2015). Accordingly, we reversed the decision below and remanded the case to the Court of Appeals for consideration of defendant‘s four remaining issues on appeal. Id. at 88, 772 S.E.2d at 445.
Defendant‘s remaining issues were that
he was deprived of effective assistance of counsel, because his counsel failed to object to the admission of evidence that defendant had committed a separate breaking or entering offense; [that] the trial court erred in failing to dismiss the larceny charge due to a fatal variance as to the ownership of the property; [that] insufficient evidence supports his larceny conviction; and [that] the trial court violated his constitutional right to a unanimous jury verdict with respect to the larceny charge.
See State v. Campbell, ___ N.C. App. ___, 777 S.E.2d 525, 528 (2015) (Campbell II). The court found “that the trial court committed no error in convicting defendant of breaking or entering a place of religious
The Court of Appeals first observed that, because his trial counsel had failed to raise the fatal variance issue in the trial court, defendant sought review under North Carolina Rule of Appellate Procedure 2. Id. at ___, 777 S.E.2d at 530. Ordinarily, “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.”
As this Court has repeatedly stated, “Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest or to prevent injustice which appears manifest to the Court and only in such instances.” Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d 358, 362 (1986)) (emphases added); see also Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). This assessment—whether a particular case is one of the rare “instances” appropriate for Rule 2 review—must necessarily be made in light of the specific circumstances of individual cases and parties, such as whether “substantial rights of an appellant are affected.” State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007) (citing, inter alia, State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per curiam) (“In view of the gravity of the offenses for which defendant was tried and the penalty of death which was imposed, we choose to exercise our supervisory powers under Rule 2 of the Rules of Appellate Procedure and, in the interest of justice, vacate the judgments entered and order a new trial.” (emphasis added)). In simple terms, precedent cannot create an automatic right to review via Rule 2. Instead, whether an appellant has demonstrated that his matter is the rare case meriting suspension of our appellate rules is always a discretionary determination to be made on a case-by-case basis.3 See Dogwood Dev. & Mgmt. Co., 362 N.C. at 196, 657 S.E.2d at 364; Hart, 361 N.C. at 315-17, 644 S.E.2d at 204-06; Steingress, 350 N.C. at 66, 511 S.E.2d at 299-300.
Here, the Court of Appeals did not reach the merits of defendant‘s fatal variance argument after an independent determination of whether the specific circumstances of defendant‘s case warranted invocation of Rule 2, but rather, based upon a belief that “this type of error” automatically entitles an appellant to review via Rule 2. See Campbell, ___ N.C. App. at ___, 777 S.E.2d at 530. The court thus acted under the erroneous belief that, because defendant presented a fatal variance argument, the court lacked the ability to act otherwise than to reach the merits of
Accordingly, we reverse and remand this case to the Court of Appeals so that it may independently and expressly determine whether, on the facts and under the circumstances of this specific case, to exercise its discretion to employ Rule 2 of the North Carolina Rules of Appellate Procedure, suspend
REVERSED and REMANDED.
STATE OF NORTH CAROLINA v. WILLIAM EDWARD GODWIN III.
No. 167PA16
Filed 9 June 2017
1. Witnesses—expert—officer implicitly qualified
The trial court did not err in an impaired driving prosecution by allowing a police officer to testify about the Horizontal Gaze Nystagmus (HGN) test and about defendant‘s impairment even though the officer was not explicitly qualified as an expert. The trial court implicitly found that the officer was qualified to give expert testimony. Moreover, it is evident that the General Assembly envisioned this scenario and made clear provision to allow testimony from an individual who has successfully completed training in HGN and meets the criteria set forth in
2. Motor Vehicles—driving while impaired—instructions
The standard jury instruction on credibility was sufficient in an impaired driving prosecution, and the trial court adequately conveyed the substance of defendant‘s requested instructions.