Under general statute 15 a dash nine thirty one, a prosecutor may dismiss charges by entering an oral dismissal in open court before or during trial or by filing a written dismissal with the clerk at any time. The court of appeals has now held that a prosecutor has no authority to dismiss charges once a jury renders a verdict and the charge results in a conviction. We'll be discussing that case state v. Lofton today. I'm Joseph Hyde with the University of North Carolina School of Government.
Speaker 1:And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina.
Speaker 2:So, Joe, we had a lot of decisions that were issued in August. I think about a dozen from the, North Carolina Supreme Court. But before we get to that one about the prosecutor's authority to dismiss charges, tell us about State versus Williams.
Speaker 1:State v. Williams, this was another Castle Doctrine case. You may remember we discussed this in its earlier rendition from the Court of Appeals a few months ago, case out of Wake County. To recount those facts again, back in August 2020, defendant and a woman named Miracle Lewis were sitting in defendant's car in front of her home talking when her ex boyfriend, a guy named Martin Penny, approached the car. Penny apparently opened the passenger side door, leaned in, and he began punching defendant who was in the driver's seat.
Speaker 1:Defendant exited the car. Penny came around the front and met defendant in the street. There's conflicting evidence, but it appears this assault was still going on. They're tussling in the street. Penny continued his attack.
Speaker 1:Defendant then produced a firearm and shot Penny twice, killing him. Defendant then got in the car and drove away. Defendant was charged with first degree murder and possession of a firearm by a felon. Matter came on for trial by jury in February 2023. At the charge conference, defendant requested an instruction on the Castle Doctrine.
Speaker 1:That's the statute 14 dash 51.2 that basically says a person who is a lawful occupant of a home, a motor vehicle, or a workplace has these additional protections when it comes to defending themselves. He requested an instruction on the Castle Doctrine presumptions. The trial court declined, reasoning that defendant was not actually an occupant of the vehicle at the time that he used deadly force. He had been forced out of the car by the assault of of this other, his assailant, Martin Penny. The trial court did instruct the jury on perfect and imperfect self defense, but not the Castle Doctrine.
Speaker 1:Defendant was convicted of voluntary manslaughter and then appealed. Before the Court of Appeals, defendant argued that the trial court erred by denying his request for an instruction on that Castle Doctrine defense. The court of appeals recognized that the Castle Doctrine instruction under general statute 14 dash 51.2 requires the defendant to show, one, that at the time he used deadly force, he was a lawful occupant of the vehicle, and two, that the victim was unlawfully and forcefully entering and that the defendant knew or had reasonable grounds to know that. Construing general statute 14 dash 51.2, the court of appeals found that the term occupant was ambiguous, but it concluded that the term could include a person who was no longer within home, the vehicle, or the workplace. And then applying that interpretation, the Court of Appeals majority found that the defendant was an occupant of the car when he used deadly force despite the fact that he was outside of the car at the time, entitling him to a Castle Doctrine instruction.
Speaker 1:Court of Appeals found that the failure to give that instruction was prejudicial and it ordered a new trial. Judge Stroud concurred in the result. She rejected the majority's interpretation of 14 dash 51.2. In her opinion, an occupant is a person inside of the premises at the time of the unlawful or forcible entry. She said the statute was not ambiguous, but still the defendant should have gotten this Castle Doctrine instruction.
Speaker 1:The state then sought review before the North Carolina Supreme Court by petition for discretionary review, contending that the trial court did not by denying the Castle Doctrine instruction. So the North Carolina Supreme Court started with that statute 14 dash 51.2. It says it applies to a lawful occupant of a home, motor vehicle, or workplace. It recognized that the statute does not define the term occupant, and it looked to the normal ordinary definition. It cites the Black's Law Dictionary.
Speaker 1:It says occupant is defined as someone who has possessory rights in or control over certain property or premises or someone who is rightfully present on certain property or premises as opposed to a trespasser. The Supreme Court said under either definition that would make the defendant a lawful occupant in this case because he was seated inside the car when Penny approached the car and assaulted him. The legislature, it said, plainly intended the protection of the castle doctrine to extend to a lawful occupant, even one who is forced to leave the protection of the vehicle. It said the occupant does not lose their lawful occupant status when the occupant only chooses to leave because of an unlawful and forcible action of the intruder. The North Carolina Supreme Court disagreed, therefore, with the Court of Appeals majority that the statute 14 dash 51 was ambiguous, but it agreed with the Court of Appeals result that defendant was a lawful occupant of the vehicle and entitled to a Castle Doctrine instruction.
Speaker 1:It went on to find that defendant did show that he was prejudiced by the failure to give that instruction. It said the jury apparently found excessive force. That's how they got to the voluntary manslaughter conviction. But from this case, State v Phillips, which was decided within the last couple years, excessive force is a legal impossibility when the Castle doctrine applies. Properly instructed, the jury might have acquitted the defendant, the North Carolina Supreme Court said.
Speaker 1:So ultimately, the North Carolina Supreme Court agrees with the Court of Appeals' result, which is that the defendant is entitled to a new trial for failure to instruct on the Castle Doctrine presumption. There was a dissent from Justice Burger. He would have find that the statute is not ambiguous, basically, interpreting the statute the same way that the trial court did. Either you're inside the vehicle or the home or you're not. And once the person is outside of the home, they're not entitled to this Castle Doctrine protection.
Speaker 2:Joe, I I understand how the court is getting there in this case, but, you know, this is... Has there has there been any of the cases on these podcasts that we are just totally satisfied and have no questions when it's done? I have so many questions coming out from this, though. I mean, I I totally understand what they're saying of... In a case like this where he's...
Speaker 2:I mean, he's basically punched out the driver door, you know, I mean, at least according to the facts under that view, that he's punched out the door, and then the guy's coming around the other side, and I'm standing up. I'm defending myself. The idea that I haven't lost my occupant status by being forced out of the car. But what are the limits to that? You know what mean?
Speaker 2:Mean, in terms of the distance or the time or the intervening circumstances. Or what does it mean to say that he was forced out of the car? I mean, is it actually physical force, or is it a threat, or is it a fear? I I understand it on these facts, but what kind of guidance are we getting here in terms of how we apply that to the next set of facts that isn't exactly like this?
Speaker 1:Yeah. And the guidance we got from the Supreme Court is, well, not entirely satisfying to say the least. The majority says this is not to say that there are no bounds to what might reasonably be seen as a forced removal or that the lawful occupant has a license to kill even if he has fled to a substantial distance from his safe vehicle. But those bounds of the statute's protection are not presented by the facts of this case. So they basically say they're they're not gonna examine sort of the perimeters of that, the very far bounds of that protection.
Speaker 1:But suffice to say, when the lawful occupant is forced out by an attack of an intruder, clearly that person doesn't lose their protected status when they actually get out of the car. Now query whether that would be true if it were a house. The statute doesn't distinguish. It provides protection for the home, motor vehicle, or workplace. Back when it was just the Court of Appeals opinion that we had on Williams, I had written a post for the criminal law blog contrasting with this case with that Court of Appeals case, Carwile.
Speaker 2:Right.
Speaker 1:Carwile was the case where the defendant was in his home, an intruder came in. The defendant chased the intruder out of the house, across his yard, and onto an adjoining car lot where he beat the intruder to death. And the court of appeals says, you don't get the castle doctrine instruction. Right? You were clearly beyond the protection of the house.
Speaker 1:You were outside of the house, and not just that, but the intruder had clearly exited the premises and indicated that he was no longer interested in pursuing this unlawful entry.
Speaker 2:Right.
Speaker 1:But you can't tell from the Supreme Court opinion in Williams whether it's really a distance thing or a time thing. The facts in Williams were that the defendant was forced out of the car by this physical attack. But what about a situation in a house or maybe a larger vehicle where the defendant just jumps out when somebody else comes in? Is that occupant still entitled to the protection where he has removed himself from the premises but not as a result of a physical attack?
Speaker 2:Right. Was he truly forced or was it just a, I don't know, a strategic choice to get the jump on the guy? I I mean, you know, what...
Speaker 1:Had he stayed within, he might be entitled to the castle doctrine presumption by its plain terms because there's been an unlawful, enforceable entry. But he jumped out before he was ever actually under attack. We don't have an answer to that question.
Speaker 2:Right.
Speaker 1:I think the majority's result here is more in keeping with the larger scope of protection that was intended by the legislature. But the dissent and and the trial court's interpretation at least has the benefit of clarity. A bright line rule makes it really easy to say, was the defendant in the premises or out?
Speaker 2:Right.
Speaker 1:We're we're back to sort of a burglary analysis. Was there a breaking of the plane? Was he inside or was he not? The result we get here is a more nuanced test, but as the Supreme Court certainly recognizes, it leaves certain questions unanswered going forward.
Speaker 2:I think even after this opinion, though, I mean, we would say, surely there are bounds to the statute. Right? I I don't think this is overruling Carwile. I mean, some... Right.
Speaker 2:If it's a mile away and an hour later, Carwile would say, then we are now outside of it. Yeah. Versus think that's here, just falling out the door and then turning around and firing, you know, that we would say maybe he was forced out. He's still protected. But where the line is between those two points, I guess, is somewhat to be determined.
Speaker 1:That's right. I think the next case we had on for today was State v. Farook.
Speaker 2:Kinda like Williams, this is a name some of our listeners might recognize. We have talked about this Farook case a couple different times as made its way up and down through the appellate courts. We went through all of this one time really dealing with speedy trial issues, and that was ultimately resolved in the state's favor. But there were other arguments that had been made after his original conviction that were not addressed because it was resolved, on that speedy trial issue. So now these are back before the court.
Speaker 2:And what we've got now is the North Carolina Supreme Court's opinion that was issued on 08/14/2026 addressing this other Harbison claim, that was lingering out there. So just as a brief reminder, this was a case originally out of Rowan County. It all arose out of a crash that happened back on 06/17/2012. The defendant's vehicle crossed over the center line, collided with a motorcycle that was being ridden by Tommy and Suzette Jones, both of whom were killed as a result of the crash. And the defendant was ultimately went to trial, was charged with driving while impaired, felony hit and run, violent habitual felon, and two counts of second degree murder.
Speaker 2:Before trial, he had pled to one thing, to that driving while license revoked, but also made a number of admissions, and stipulations in the case. He had made an admission prior to trial that he was the one operating the vehicle, that he was driving it on that date, that it was involved in this crash, that it did result in the deaths of Tommy and Suzette Jones, that his license was revoked at that time for a prior DWI, further stipulated that he was the driver and operator of the vehicle involved in the crash at the time of the crash and that, at that moment, he knew his license had been revoked previously for driving while impaired. And then in a colloquy with the trial court, affirmed that his counsel had permission to concede, all of these elements to these various offenses that were being charged. And, Joe, it goes on. Mean, as they get into the evidence at trial, he then comes back further stipulating that, for example, blood evidence that was found at the scene on the driver's airbag was in fact his, you know, that that would be his DNA that matched up to it.
Speaker 2:And then after the close of the state's evidence, further stipulated that he was not still at the scene of the collision when law enforcement arrived, that he had, left and, once again agreed that his counsel, had made all these stipulations with his consent. So why is all of this happening? Well, I mean, all of that sort of becomes clear at the closing argument. During closing arguments, his attorney is essentially standing up before the jury saying, ladies and gentlemen, we're not asking you to find that he's not guilty of anything, but we're asking you to find that he is guilty, of these lesser offenses. The counsel's words are, we've admitted to several different things.
Speaker 2:We're admitting that certain things are happening, but is arguing to the jury that they should convict him of misdemeanor death by motor vehicle, for example, or misdemeanor hit and run, not these murder charges or these more serious offenses. The jury is not convinced. They ultimately do convict the defendant of two counts of second degree murder and one count of felony, failure to remain at the scene of the crash. He then pleads no contest to the violent habitual felon status offense and is sentenced to life without the possibility of parole. So as I mentioned, he appealed, and the appeal sort of worked its way through the first time dealing with speedy trial.
Speaker 2:That's now been resolved in the state's favor, so it comes back through the court of appeals on this other issue about ineffective assistance of counsel, which is conceding the defendant's guilt to these charges without his consent. And, really, the the argument that's sort of coming before the court of appeals on this issue was even if it were true that he was admitting to all these different individual elements of these things, that that I was the driver, there was a crash, you know, that this person did die as a result of the crash, that even if he was admitting to these elements, that that is fundamentally different from a defendant's perspective than straight up admitting guilt to the offense, you know, that I am guilty of murder or felony hit and run or whatever it may be. That there's a difference, between really understanding the elements versus the whole.
Speaker 1:So the categorical difference being that defense counsel in closing arguments said perhaps more than defendant had anticipated.
Speaker 2:Exactly. That it's one thing for the defendant, you know, in a colloquy, even with the judge, to say, I'm stipulating to facts a, b, c, for then the defense attorney to be standing up and closing saying, and therefore, find him guilty of this lesser criminal offense. You know, that that might be a little bit of a surprise to a defendant, notwithstanding some case law indicating that, you know, admitting to those elements is, in fact, admitting guilt to the whole. But, so the court of appeals wanted to remand this back down for another hearing at the trial court level, saying, we need some clarity. We need to have a hearing.
Speaker 2:We need to get some testimony about what the defendant really understood his counsel was admitting to, what his intent was.
Speaker 1:Even though there had been a Harbison inquiry at trial, court of appeals still says, send it back, and let's go into some more about what the defendant thought his counsel was doing.
Speaker 2:Exactly. We need more clarity about what his counsel had permission to say, so they remanded for an evidentiary hearing. The state petitioned the North Carolina Supreme Court for discretionary review to say, we think that's necessary. Really premised on this argument of if he's admitted to all the elements, he has admitted to the offense. But what we got from the North Carolina Supreme Court was something of a surprise that they really sort of revamp our understanding of what is ineffective assistance of counsel and what is going on in these Harbison cases.
Speaker 2:The basic review, generally, ineffective assistance of counsel, that normally means under this two pronged Strickland test that the defendant has to show two things. He's got to show his counsel's performance was deficient, you know, falling below this, reasonable standard that he could expect. And then second, that that deficient performance in some way prejudiced the defense. And the case law has recognized that's a pretty high bar. They But
Speaker 1:this is where Harbison comes in. Right? Because North Carolina had this peculiar test that said where defense counsel gets up and admits the defendant's guilt without his knowledge, that's somehow per se ineffective assistance of counsel.
Speaker 2:Exactly. In this opinion, they're kind of going back and working through some of this US Supreme Court case that has sort of set this stuff out. They're going back to this case, really starting with a US Supreme Court case called Chronic, and they are talking about how the the US Supreme Court has eased this usually high burden in certain narrow circumstances or narrow instances. And they say that's based on the idea that some circumstances are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. You know, this would be one of them.
Speaker 2:Kronick gave several examples of what would rise to that level. One of those being, for example, the total denial of counsel at a critical stage of the trial or when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, things like that. And so, you know, what we're getting at in this Harbison case was that idea. In Harbison, the idea that if the defense attorney is gonna just stand up to the surprise of the defendant Just roll over. Roll over, and admit guilt, they say that that's functionally no different than just pleading guilty, you know, without his consent.
Speaker 2:And that's sort of what was going on, in that Harbison case. In Harbison, if folks don't recall, defense position was self defense. I mean, they were they were arguing self defense in the case until, in closing argument, to the surprise of the defendant, defense counsel says, well, just find him guilty of the lesser, you know, sort of abandoning this, this self defense claim. And so that was in that case. Harbison acknowledged the normal Strickland test, but sort of based on this idea coming from chronic that in some cases, there's gonna be a presumption of this prejudice.
Speaker 2:And they said that applied in Harbison. The quote is, when counsel, to the surprise of his client, admits his his client's guilt, the harm is so likely and so apparent that the issue of prejudice need not be addressed.
Speaker 1:But the US Supreme Court case law has moved on. Right? I feel like The US... Because I remember when I was at DOJ, we were making the argument once in a while that Harbison was no longer in keeping with current US Supreme Court case law.
Speaker 2:And that's really what our state Supreme Court is wrestling with here is do we need to square this with a case that actually... It's, from 2,004 Florida v. Nixon. Exactly. This US Supreme Court case from 2004.
Speaker 2:And the opinion that we have here goes into some length about that Florida v. Nixon. But, I mean, in general, what's going on is that a defense attorney in that case was doing the same thing of essentially, we're not really gonna challenge the facts of the case at trial because I wanna preserve your credibility of, you know, we're acknowledging the wrongdoing to try to argue for leniency at sentencing. I mean, a reasonable approach to take. But the defendant in that case is really not responsive, so it's not clear that he's got full consent to do that.
Speaker 1:And the US Supreme Court refused to apply per se ineffective. They said that's not a chronic situation.
Speaker 2:Exactly. The Florida Supreme Court kind of approached it the way it sounds like our courts would. You know? Well, hey, listen. You're you're admitting guilt, you don't clearly have his consent to do that.
Speaker 2:We're gonna find that to be per se error. And that was sort of how it worked its way through the Florida courts. To... Then it gets up to the US Supreme Court, and they unanimously reversed the Florida Supreme Court on that, saying presumption of prejudice was not in order based solely on the defendant's failure to provide express consent to a tenable strategy that counsel had adequately disclosed to and discussed with the defendant. Instead, they should have just used the normal Strickland test.
Speaker 1:Strickland test.
Speaker 2:Mean, you know, was this deficient, and and was he prejudiced by it?
Speaker 1:So so, Jonathan, I I expect the next thing you're gonna tell me is that the North Carolina Supreme Court has now overruled Harbison. So is that the outcome?
Speaker 2:I I would say that we have certainly modified it. Right? I mean, that we are going back to this idea of it is only gonna be this per se presumption of prejudice when it's clear that the defendant is wholly surprised by what's going on. And we do not have that here. I mean, there there are clear indications from from the admissions, from the stipulations, from the discussions, the colloquies.
Speaker 2:The opening statement, I mean, know, it was obvious that that was sort of where this came to
Speaker 1:has has limited Harbison but not overruled it. Is that fair to say?
Speaker 2:I I I think that would be a way to look at it. They have said that our our Harbison opinion, this is what they're saying. Harbison turned what the United States Supreme Court intended to be a narrow exception in chronic into a blanket per se rule applying to every criminal case in which the defendant's counsel admits the defendant's guilt to the jury without the defendant's consent. And they say that instead, the chronic exception has a high threshold. For it to apply, defense counsel must fail meaningfully to oppose the prosecution's case, entirely fail to function as a client's advocate, entirely fail to subject the prosecution's case to meaningful adversarial testing or fail to function in any meaningful sense as the government's adversary, the failure must be complete.
Speaker 2:I mean, I'm not saying that we are completely abandoning this. Right? Mean, if we still have, like, a a Harbison kind of scenario. Right? Hey.
Speaker 2:Hey, defense attorney. I I thought we agreed we were arguing self defense. And now, you know, to my surprise, here you are standing up in court saying, on second thought, ladies and gentlemen, just find him guilty of second degree but not first degree. I mean, I think you might still have that. But in these kind of cases where, you know, we're gonna apply the traditional Strickland test, right, if he's not wholly surprised by this, position that his defense attorney is taking, they sort of acknowledge that under these facts, what he have to...
Speaker 2:He would have to show that the counsel's performance was deficient and that he was thereby prejudiced. And the remainder of this opinion... We can talk about it, but the remainder of the opinion is sort of walking through those two things and saying it does not apply in this case. They are not finding ineffective assistance of counsel. Arguably, if it were true, in this case that the defense attorney was making concessions without the full knowledge and understanding of the defendant, they say assuming arguedo that defendant's counsel performed deficiently in making concessions without the defendant's knowing consent, he still cannot show prejudice in this case.
Speaker 2:And so they sort of explain...
Speaker 1:Well, that is a check on Harbison. Right? Because that would fly right in the face of what Harbison had said.
Speaker 2:Right. I mean, he would he would have to still show prejudice under the Strickland standard. I mean, that that, you know, it's this rare exception, and we're taking it back to sort of how it should have been a rare exception.
Speaker 1:So so then the question becomes, how how do we tell when Harbison applies? I mean, you said it the defendant has to show that he was wholly surprised, and maybe it's not here because you've got these recurring Harbison inquiries and the defendant agrees to stipulation after stipulation. Maybe that wholly surprise standard is satisfied in a case where there hadn't been that kind of colloquy back and forth on the record?
Speaker 2:To some extent, I think we may just sort of have to see how the cases flowing from this shake out. You know, kind of as we've said about a number of these, I... This is a... I think a pretty significant change to the doctrine. So there's gonna be definitely some period of figuring it out and shaping, as we go.
Speaker 2:But, I mean, here, in this case, just to kinda wrap this one up, I mean, essentially, they're saying is that even if we're finding that he was admitting, to example, the misdemeanor hit and run, the elements he's admitting to is not really even setting up his guilt that the jury found of the other offenses anyway. There's no way for him to show prejudice by admitting to these elements when what the jury actually convicted him of was, for example, the second degree murder. Right? You know, there's there's just, they say the the separate admissions that he made were not an implication of counsel's concession of defendant's guilt to the lesser included offense, and that stuff was not being separately challenged on appeal. So they say, ultimately, because we determine as a matter of law the defendant cannot show prejudice from counsel's concession of his guilt to the lesser included offenses, we reverse, the court of appeals and, and that remand back for an evidentiary hearing.
Speaker 2:So, certainly a big change. There is a concurrence, from justice Berger who feels like, kinda to your point, that this is getting a little bit murky. You know, mean, does it mean to say somebody's wholly surprised? He says, for clarity, that, what he would have preferred we do is just say that we are just following the existing federal law. Right?
Speaker 2:Mean, just just say that we're overturning Harbison or McAllister or these other cases and and just say we're just following federal law. And then justice Riggs, actually dissents, basically saying, you know, we had Florida v Nixon twenty years ago, and we've been applying Harbison since then. This is our kind of our state law doctrine, and, you know, we we should continue to follow our own precedent. But that is not ultimately what the majority is doing. So a big change, in this Harbison realm for sure.
Speaker 2:Absolutely. And then, Joe, we've got one last case, this State versus Lofton.
Speaker 1:Last case on for today is Staphy Lofton. This is a court of appeals case decided back in 08/05/2026, case out of Cumberland County. Back in April 2021, defendant and his girlfriend Kayla Mitchell got into an altercation down in Myrtle Beach. That night, defendant broke into Mitchell's home while she was asleep inside with her children and attacked her, apparently pinning her down on the bed, keeping her from being able to breathe. Mitchell escaped from the home and found a police car outside.
Speaker 1:Defendant was then seen fleeing the scene. Police located defendant a little while later at a nearby shopping center, and defendant was arrested. In August 2023, defendant was charged with first degree burglary, second degree kidnapping, assault with a deadly weapon with intent to kill, assault inflicting physical injury by strangulation, assault on a female, and habitual felon. The matter came on for trial by jury in February 2024, and significantly, apparently during jury selection, defendant got up and left and did not return. So in his absence, defendant was convicted of second degree kidnapping and assault on a female.
Speaker 1:He was acquitted of the other charges. At the prosecutor's request, the trial court agreed to hold the matter open until defendant was apprehended. That is to say, when it came time for sentencing, prosecutor felt like she couldn't move forward on the habitual felon charge because defendant was not present in court. So asked the trial court to hold it open. There's a little bit of an interesting disagreement between the prosecutor and defense attorney as to whether that is a PJC.
Speaker 1:Prayer for judgment continued because there's a statute that puts time limits on how long a PJC can be, carried on. But suffice to say, the trial court agreed to hold the matter open. Defendant was not sentenced at that time. And then in March 2024, the prosecutor took a voluntary dismissal of the habitual felon charge. It was a paper document that was filed, and that written dismissal form included both the habitual felon charge and the assault on a female charge, that is the charge that the defendant had already been convicted of by a jury.
Speaker 1:Defendant was eventually apprehended, and then in April 2024, defendant was sentenced for kidnapping and assault on a female. Defendant appealed. Before the court of appeals, defendant argued reasonably enough that the trial court lacked jurisdiction to sentence him for the assault on a female because that charge had been dismissed at the time that the prosecutor had filed that written dismissal form. The court of appeals recognized that under the precedent called State v Murphy from 2008, it said generally a prosecutor has the authority and discretion to dismiss charges against a defendant at any stage of the proceedings. In fact, by statute, this is 15 a nine thirty one, and this is what I referred to in the opening of this episode, by statute, except as provided in general statute 20 dash one thirty eight point four, the prosecutor may dismiss any charges stated in a criminal pleading by entering an oral dismissal in open court before or during the trial or by filing a written dismissal with the clerk at any time.
Speaker 1:Here, the prosecutor dismissed the habitual felon charge by entering an oral dismissal in open court, and then the prosecutor also filed a voluntary dismissal form that listed both the habitual felon charge and the assault on a female charge. And here, the court of appeals kind of addressed the state's argument. The state's argument seemed to be, well, this was done maybe inadvertently. This wasn't really an intent to dismiss the assault on a female charge. That's not really what they were trying to do.
Speaker 1:The court of appeals rejected that, said there was a there was a written dismissal form that lists both the habitual felon charge and assault on a female. No question that the prosecutor had intended to dismiss both of those charges. So then the question becomes whether the prosecutor had the authority to dismiss that assault on a female charge after the jury had returned a conviction. And here, the Court of Appeals does this very long statutory construction analysis about the difference between a charge and a conviction and the historical role that juries play in our Anglo American jurisprudence. Ultimately, it held that under general statute 15 a dash nine thirty one, a prosecutor loses the ability to dismiss a charge once a jury renders its verdict and the charge results in a conviction.
Speaker 1:It said when the charge turns into a conviction. The Court of Appeals then had to distinguish State v. Courtney. That's a North Carolina Supreme Court case from 2019 where the North Carolina Supreme Court had held that a prosecutor's dismissal under that same statute 15 a dash nine thirty one of a charge after jeopardy had attached constituted an acquittal. Now, Courtney was a little bit different.
Speaker 1:That was a case where the jury had hung. There was a mistrial. And then in the interim, before the state had tried, the defendant again had dismissed a charge. And the North Carolina Supreme Court said that dismissal of the charge during this period where maybe the state could have proceeded again constituted an an acquittal for double jeopardy purposes. Now I've written about this elsewhere.
Speaker 1:That's maybe not entirely consistent with US supreme court precedent, but that's the rule in North Carolina. Anyway, the court of appeals distinguished Courtney and said, factually, it's distinguishable, procedurally not the same. The court of appeals concluded in this case, Lofton, that the trial court did not air by sentencing defendant for assault on a female, even though the prosecutor had tried to dismiss that charge after the defendant had been convicted.
Speaker 2:You know, Joe, when I first saw this, I I mean, I I gotta be honest. My initial reaction was, well, yeah, of course. I mean, you know, it's... Why would we think that we could do something like a dismissal after we've already moved to the point of having a conviction?
Speaker 1:Right? But Well, because the statute says at any time.
Speaker 2:At any time. And, you know, and and then, I mean, I I just started thinking, you know, for example, what about an amendment that we might make? You know? I mean, we we similarly have, at least for the misdemeanor pleadings, you know, we would have a statute that said we could make an amendment at any time. And and we might want to do that long after the conviction.
Speaker 2:What if we had a typo in the defendant's name and we just wanna make an amendment to correct the spelling, to make sure the records are gonna be right? We might do that long after the conviction is in the books.
Speaker 1:Well, the other question
Speaker 2:we would say we're allowed because it's at any time. And so
Speaker 1:Isn't it true, Jonathan? Doesn't... When a defendant is convicted in... Defendant could be convicted in district court of a number of misdemeanors and then appeal to superior court, and that superior court prosecutor could decide not to proceed on some of those misdemeanors. Right?
Speaker 1:Could dismiss the charges at that point?
Speaker 2:Yeah. I mean, I guess that would be a little different, you know, because we've appealed, right, for trial de novo. I mean, you know, they're all just pending charges again, essentially, now in superior court. Right?
Speaker 1:What makes them pending again? The fact that the defendant has appealed? I mean, how does that situation not fit into this scenario? The defendant has been convicted of those charges, and now they're back up for this determination of whether the prosecutor should dismiss them or not.
Speaker 2:Yeah. No. No. That's true.
Speaker 1:I Now I... To be fair, that's not the situation here. This was not sort of that interim between district court and superior court. And as you say, right, that appeal to the superior court wipes the slate clean. We all understand that.
Speaker 1:But the way they frame the rule here kind of leads me to question whether whether it needs to be reconciled with that practice. Because at least under one of the formulations they say here, after a charge turns into a conviction, it's beyond the bounds of the prosecutor to dismiss the charge.
Speaker 2:You know, and the other thing that I think this is... Where I could imagine this also coming up is, for example, let's say we've put a variety of charges before the jury because we don't know exactly what they may or may not be convinced of. I mean, all valid charges, different elements, not double jeopardy, right, but for them to choose. And maybe they come back on all of them. I mean, I I might, at that point, as the prosecutor, say, I would rather just have...
Speaker 2:They're all the same offense level. I would rather have one of these and have more aggravating factors to argue or, you know, something... I mean, you might be in a position where you would want to dismiss post conviction. I mean, here, maybe it seems like it was a little bit of an accident, but it's not inconceivable that a prosecutor could find themselves in that situation where they... For whatever, strategic reasons or or sentencing purposes, we say, I'd rather just proceed on this one, and not actually on these other convictions.
Speaker 2:But Lofton, I think, is saying that's not in our toolkit if the jury has already come back.
Speaker 1:That's right. And and there's some interesting language here about how sort of fundamentally unjust it would be to give one actor in this process the unilateral authority to dismiss charges, which struck me as... I mean, clearly, they're talking about the prosecutor, but it's well to keep in mind that the judge always does have that power. Right? The judge, after a conviction, can dismiss the charge finding there was insufficient evidence even after a jury has returned a conviction.
Speaker 1:I don't feel like it's fundamentally inconsistent with the way the system is set up to give a party the right to do that. It's just Lofton limits that power to the judge and not to the prosecutor.
Speaker 2:Well, that's, I guess, where we are for now. But just in the interest of completeness, I think there was one other
Speaker 1:issue in case. Issue here. Defendant argued that the trial court had erred by instructing on flight. Flight instruction is proper so long as there is some evidence supporting the theory that the defendant fled after the commission of the crime charged. Here, the court of appeals said the trial court instructed the jury in accordance with pattern jury instruction one zero four point three five, saying evidence of flight may be considered in determining whether the circumstances amount to an admission or show a consciousness of guilt.
Speaker 1:The court of appeals here found sufficient evidence to support the flight instruction. The officer testified that he observed a person wearing dark clothing running from the scene. The officer testified that his search for defendant ended when the path stopped at a fence, indicating or implying at least the defendant had jumped the fence and continued on to the shopping center where he was eventually arrested. The defendant was found a 150 to 200 yards behind the apartment complex wearing different clothing. So given all that evidence, the court of appeals concluded the trial court did not air by instructing the jury on flight.
Speaker 1:Well, that's all for today. In this episode, we discussed State v Williams holding that the occupant of a motor vehicle does not lose his protected status under the Castle doctrine when he's forced out of the vehicle. State fee Farook limiting Harbison to cases where the defendant is wholly surprised by defense counsel's concession of guilt and State fee Lofton concluding that a prosecutor has no authority to dismiss charges after the charges have resulted in a conviction. Turning State's is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in Chapel Hill.
Speaker 1:Our producer is Paul Bonner. Our graphic designer is Emily Hinkle. Our applications manager is Chance Fitzgerald. Our music was composed by Gustav Holz and our excerpt is from Jupiter, the oldest planet in our solar system. It is the third brightest natural object in the sky after the moon and Venus.
Speaker 1:If you liked what you heard today, if you have questions, comments, concerns, if there's a topic you want us to cover in a later episode, please contact us. My name is Joseph Hyde and I can be reached at jhyde@sog.unc.edu.
Speaker 2:And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook@nccourts.org.
Speaker 1:Thank you, John. That would be the showing for the state.
Speaker 2:Sounds good, Joe. Thanks. Hope it helped.