State v. Bursell , 372 N.C. 196 ( 2019 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 124A18
Filed 10 May 2019
STATE OF NORTH CAROLINA
v.
JOSEPH CHARLES BURSELL
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, ___ N.C. App. ___, 813 S.E.2d 463 (2018), vacating an order for
satellite-based monitoring entered on 10 August 2016 by Judge Ebern T. Watson III
in Superior Court, New Hanover County. Heard in the Supreme Court on 28 August
2018.
Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney
General, for the State-appellant.
Meghan Adelle Jones for defendant-appellee.
NEWBY, Justice.
On its merits, this case asks whether the trial court erred when it failed to
determine if the lifetime satellite-based monitoring (SBM) imposed upon defendant
constitutes a reasonable search under the Fourth Amendment. Contrary to the Court
of Appeals’ conclusion, however, defendant failed to specifically object to the
imposition of SBM on constitutional grounds, thereby waiving his ability to raise that
issue on appeal. Nonetheless, where the State concedes that the trial court
committed error relating to a substantial right, the Court of Appeals did not abuse
STATE V. BURSELL
Opinion of the Court
its discretion when it invoked Appellate Rule 2 to review the unpreserved
constitutional issue. Accordingly, we reverse in part and affirm in part the decision
of the Court of Appeals.
On 10 August 2016, defendant Joseph Charles Bursell pled guilty to statutory
rape and taking indecent liberties with a minor. At the sentencing hearing, the State
requested that the court find that defendant committed an aggravated, sexually
violent offense and order lifetime registration as a sex offender and lifetime SBM.
Defendant’s counsel objected to the State’s request concerning the imposition of
lifetime sex offender registration and lifetime SBM:
[Defense Counsel]: . . . I would object on two
grounds. I know the status of the law is pretty clear as to
the [sex offenders] register, but for purposes of preserving
any record if that were to change, I would submit that it is
insufficient under Fourth Amendment grounds and due
process grounds to place him on the registry in its entirety.
Alternatively, that the lifetime requirement be a little
excessive in this case and would ask you to alternatively
consider putting him on the 30-year list.
As to satellite-based monitoring, I think the Court
needs to hear some additional evidence other than the
[recitation] of the facts from the attorney or from the
district attorney as to satellite-based monitoring. And
since that evidentiary issue has not been resolved, there
[aren’t] any statements from the victim or otherwise from
law enforcement that you ought not to order satellite-based
monitoring in this case, and that the registry alternative
would satisfy those concerns. And we leave it at that, your
Honor.
The trial court responded:
All noted exceptions made on the record by [defense
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counsel] on behalf of the defendant as to his constitutional
standing, as to the standing of the current law, and as to
the future references in implication that you have made in
your arguments. All those are noted for the record. All of
those at this point in time are taken under consideration
by the Court.
The trial court sentenced defendant to 192 to 291 months of imprisonment. Finding
that he had committed an aggravated, sexually violent offense, the court further
ordered defendant to register as a sex offender for life and enroll in SBM for life upon
his release from prison unless monitoring is terminated under N.C.G.S. § 14-208.43.
Defendant appealed from the trial court’s order regarding the registry and SBM.
Before the Court of Appeals, defendant argued that the trial court improperly
imposed lifetime SBM because it failed to determine whether the monitoring
effectuated a reasonable search under the Fourth Amendment. See Grady v. North
Carolina, ___ U.S. ___, 135 S. Ct. 1368, 191 L. Ed. 2d 459 (2015) (per curiam) (holding
that the State’s SBM program “effects a Fourth Amendment search” that implicates
the privacy expectations of the defendant and therefore must be reasonable to
withstand constitutional scrutiny). The State asserted that defendant failed to
preserve this Fourth Amendment challenge below, thereby waiving his ability to
challenge the issue on appeal. The State noted, however, that if defendant properly
preserved this argument, it would concede that the SBM order should be vacated and
remanded for a determination of reasonableness consistent with Grady.
In a divided decision, the Court of Appeals concluded that defendant had
properly preserved the issue of whether his SBM was reasonable under the Fourth
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Amendment. State v. Bursell, ___ N.C. App. ___, ___, 813 S.E.2d 463, 468 (2018).
Alternatively, the Court of Appeals majority determined that “[a]ssuming, arguendo,
this objection was inadequate to preserve a constitutional Grady challenge for
appellate review, in our discretion we would invoke Rule 2 to relax Rule 10’s issue-
preservation requirement and review its merits.” Id. at ___, 813 S.E.2d at 466-67.
As a result, the Court of Appeals vacated the SBM order “without prejudice to the
State’s ability to file a subsequent SBM application.” Id. at ___, 813 S.E.2d at 468.
The dissent argued that defendant failed to properly preserve the constitutional issue
for appeal and further asserted that the court should have declined to invoke Rule 2
to review it. Id. at ___, 813 S.E.2d at 468 (Berger, J., dissenting). The State appealed
to this Court as of right based upon the dissenting opinion.
At the outset, we reiterate that “failure of the parties to comply with the rules,
and failure of the appellate courts to demand compliance therewith, may impede the
administration of justice.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362
N.C. 191, 193, 657 S.E.2d 361, 362 (2008). Accordingly, “the Rules of Appellate
Procedure are ‘mandatory and not directory.’ ” State v. Hart, 361 N.C. 309, 311, 644
S.E.2d 201, 202 (2007) (first quoting Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497,
500 (2005); and then quoting Pruitt v. Wood, 199 N.C. 788, 789, 156 S.E.2d 126, 127
(1930)). Our appellate rules state that “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
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specific grounds were not apparent from the context.” N.C. R. App. P. 10(a)(1).
Furthermore, the objecting party must “obtain [from the trial court] a ruling upon
the party’s request, objection, or motion.” Id.
The specificity requirement in Rule 10(a)(1) prevents unnecessary retrials by
calling possible error to the attention of the trial court so that the presiding judge
may take corrective action if it is required. Dogwood Dev., 362 N.C. at 195, 657 S.E.2d
at 363 (citations omitted). Moreover, a specific objection “discourages
gamesmanship,” State v. Meadows, 371 N.C. 742, 746, 821 S.E.2d 402, 405-06 (2018),
and prevents parties from “allow[ing] evidence to be introduced or other things to
happen during a trial as a matter of trial strategy and then assign[ing] error to them
if the strategy does not work,” id. at 746, 821 S.E.2d at 406 (quoting State v. Canady,
330 N.C. 398, 402, 410 S.E.2d 875, 878 (1991)). Practically speaking, Rule 10(a)(1)
contextualizes the objection for review on appeal, thereby enabling the appellate
court to identify and thoroughly consider the specific legal question raised by the
objecting party. N.C. R. App. P. 10 drafting committee note, cmt., para. 2, reprinted
in 287 N.C. 698, 700-01 (1975) (After an objection at trial, “the fact that error will be
asserted on appeal in respect of particular judicial action must be noted in the record
on appeal, first for the benefit of the adverse party, then for the reviewing court.”).
“It is well settled that an error, even one of constitutional magnitude, that
defendant does not bring to the trial court’s attention is waived and will not be
considered on appeal.” State v. Bell, 359 N.C. 1, 28, 603 S.E.2d 93, 112 (2004) (quoting
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State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002), cert. denied, 537 U.S. 1117,
123 S. Ct. 882, 154 L. Ed. 2d 795 (2003)), cert. denied, 544 U.S. 1052, 125 S. Ct. 2299,
161 L. Ed. 2d 1094 (2005). As a result, even constitutional challenges are subject to
the same strictures of Rule 10(a)(1). 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.”); State v. Smith, 352 N.C. 531, 557, 532 S.E.2d 773, 790
(2000) (opining that the defendant waived his right to appellate review of an alleged
due process violation “because he failed to raise it as constitutional error before the
court”), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360 (2001).
The transcript from the sentencing hearing reveals that defendant did not
clearly raise the constitutional issue of whether the lifetime SBM imposed on him
constituted a reasonable search under the Fourth Amendment. Though defense
counsel specifically objected to imposition of lifetime SBM, this objection questioned
the sufficiency of the evidence supporting the SBM order. Thus, given the absence of
any reference to the Fourth Amendment, Grady or other relevant SBM case law,
privacy, or reasonableness, it is “not apparent from the context,” N.C. R. App. P.
10(a)(1), that defense counsel intended to raise a constitutional issue. As a result,
defendant failed to object to the SBM order on Fourth Amendment constitutional
grounds with the requisite specificity, thereby waiving the ability to raise that issue
on appeal. See State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)
(“Defendant may not swap horses after trial in order to obtain a thoroughbred upon
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appeal.”); see also State v. McPhail, 329 N.C. 636, 640-41, 406 S.E.2d 591, 594-95
(1991) (requiring a defendant to raise the same constitutional theory on appeal as
argued in his objection at trial).
Accordingly, we reject the Court of Appeals’ determination that defendant
properly preserved for appeal the constitutional issue of whether the search imposed
by the SBM order was reasonable. Nonetheless, we must now consider whether the
Court of Appeals, in its discretion, appropriately invoked Appellate Rule 2 to review
defendant’s unpreserved argument.
On its own motion or the motion of a party, an appellate court of North
Carolina may employ Rule 2 and suspend any part of the appellate rules “[t]o prevent
manifest injustice to a party, or to expedite decision in the public interest” except
when prohibited by other Rules of Appellate Procedure. N.C. R. App. P. 2. “Rule 2
must be applied cautiously,” and it may only be invoked “in exceptional
circumstances.” Hart, 361 N.C. at 315, 644 S.E.2d at 205. A court should consider
whether invoking Rule 2 is appropriate “in light of the specific circumstances of
individual cases and parties, such as whether ‘substantial rights of an appellant are
affected.’ ” State v. Campbell, 369 N.C. 599, 603, 799 S.E.2d 600, 602 (2017)
(emphasis omitted) (quoting Hart, 361 N.C. at 316, 644 S.E.2d at 205).
As a result, a decision to invoke Rule 2 and suspend the appellate rules “is
always a discretionary determination.” Id. at 603, 799 S.E.2d at 603 (citations
omitted). Because a court only employs Rule 2 in limited instances depending on the
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specific facts and circumstances of the case, “precedent cannot create an automatic
right to review via Rule 2.” Id. at 603, 799 S.E.2d at 603. Thus, we review each
application of Rule 2 for abuse of discretion regardless of whether the Court of
Appeals invokes it or declines to invoke it. See Steingress v. Steingress, 350 N.C. 64,
67, 511 S.E.2d 298, 300 (1999).
In the present case the Court of Appeals majority did not abuse its discretion
by invoking Rule 2. The Court of Appeals suspended the appellate rules after
examining “the specific circumstances of [the] individual case[ ] and parties.”
Campbell, 369 N.C. at 603, 799 S.E.2d at 602 (citations and emphasis omitted). The
Court of Appeals first noted that a constitutional right, such as the Fourth
Amendment right implicated here, is a substantial right. The Court of Appeals
deemed the invocation of Rule 2 appropriate “when considering 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.” Bursell, ___ N.C. App. at ___, 813 S.E.2d at 467 (majority
opinion). While Rule 2 should be invoked “cautiously,” Dogwood Dev., 362 N.C. at
196, 657 S.E.2d at 364, when, as here, the State concedes that the trial court
committed error relating to a substantial right, the Court of Appeals did not abuse
its discretion by invoking Rule 2.
Accordingly, we reverse the Court of Appeals’ conclusion that defendant
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preserved the constitutional issue when he failed to specifically object to the
imposition of SBM on constitutional grounds but nonetheless affirm its decision in
the alternative to review the issue under Rule 2 and to vacate the trial court’s SBM
order without prejudice to the State’s ability to file another application for SBM.
REVERSED IN PART; AFFIRMED IN PART; REMANDED.
Justices EARLS and DAVIS did not participate in the consideration or decision
of this case.
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