State v. Foushee

NO. COA13-846
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
Durham County
v.
No. 12 CRS 56936
SHARKEEM JAMMARCUS FOUSHEE
Appeal by the State from order entered 19 February 2013 by
Judge R. Allen Baddour in Durham County Superior Court. Heard
in the Court of Appeals 9 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Teresa M. Postell, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Kathleen M. Joyce, for Defendant.
ERVIN, Judge.
The State has sought appellate review of an order
dismissing two counts of obtaining property by false pretenses
that had been lodged against Defendant Sharkeem Jammarcus
Foushee and precluding the State from calling certain witnesses
to testify at the trial of a separate felonious larceny charge
that had been lodged against Defendant, with both of these
decisions resting on the trial court’s determination that the
State had violated the provisions of N.C. Gen. Stat. § 15A-903.
On appeal, the State argues that the trial court erroneously
dismissed the obtaining property by false pretenses charges on
-2-
the grounds that the State had not, in fact, violated the
applicable discovery statutes. After careful consideration of
the State’s challenge to the trial court’s order in light of the
record and the applicable law, we conclude that the trial
court’s order should be reversed and that this case should be
remanded to the Durham County Superior Court for further
proceedings not inconsistent with this opinion.
I. Factual Background
On 17 July 2012, a warrant for arrest charging Defendant
with one count of felonious larceny and two counts of obtaining
property by false pretenses was issued. According to the
allegations contained in the warrant, Defendant took twenty-six
rings and a pair of earrings with a total value of $17,655
belonging to Alfreda Andrews and pawned four of the rings at
Friendly Jewelry and Pawn Shop based upon a representation that
he owned the property in question. On 17 September 2012, the
Durham County grand jury returned a bill of indictment charging
Defendant with one count of felonious larceny and two counts of
obtaining property by false pretenses based on the same factual
allegations set out in the earlier warrant for arrest.
On 24 September 2012, Defendant filed a request for formal
arraignment, a motion to preserve evidence, and a request for
voluntary discovery. On 26 September 2012, Defendant filed a
motion for discovery. On 3 October 2012 and 13 February 2013,
-3-
respectively, the State responded to Defendant’s discovery
requests.
On 13 February 2013, Defendant filed two motions in limine.
In the first motion, Defendant requested that the trial court
(1) order the State to certify that it had complied with the
provisions of N.C. Gen. Stat. § 15A-903; (2) prohibit the State
from introducing evidence that had not been provided to
Defendant; and (3) order the State to comply with N.C. Gen.
Stat. §§ 15A-903(a)(1)(a) and 15A-903(a)(1)(c) by providing
Defendant with a copy of any new statements made by any witness
before that witness was called to testify. In the second
motion, Defendant requested that the trial court prohibit the
State from introducing or referring to any extra-judicial
statements made by any person who was not going to testify at
trial. On 13 February 2013, the State provided Defendant with a
supplemental discovery response and a certification that all
materials subject to discovery had been provided to Defendant.
On 18 February 2013, Defendant filed two dismissal motions.
In the first of these motions, Defendant requested that all of
the charges that had been lodged against him be dismissed as the
result of alleged discovery violations stemming from the State’s
failure to interview and provide statements from certain
witnesses. More specifically, Defendant alleged in the first
dismissal motion that the State had been made aware that Ms.
-4-
Andrews’ children, Chynna Andrews and Carlston Andrews, had been
on the premises of the family home at the time that the stolen
jewelry had become missing, that Chynna and Carlston Andrews
might possess potentially exculpatory information, and that the
State had wilfully failed to interview them. In the second of
these motions, Defendant requested that all of the charges that
had been lodged against him be dismissed as the result of
certain alleged discovery violations stemming from the State’s
failure to obtain and preserve a surveillance video from the
pawn shop. More specifically, Defendant alleged in the second
dismissal motion that, despite having knowledge that a
potentially exculpatory surveillance video had been made at
Friendly Jewelry and Pawn, the State had negligently failed to
obtain the video prior to its destruction, which had occurred
approximately six months after the date upon which the stolen
jewelry was pawned there.
A hearing was held with respect to Defendant’s dismissal
motions before the trial court on 18 February 2013. After
hearing arguments concerning the merits of Defendant’s dismissal
motions, the trial court entered an order concluding that the
State had failed to “use reasonable diligence to investigate,
preserve, document, or make [the surveillance video] available”
“or [to obtain] any relevant evidence” from two witnesses who
had been present at the time that one of the alleged offenses
-5-
was committed in violation of the State’s discovery obligations
as prescribed in N.C. Gen. Stat. § 15A-903. Based upon this set
of determinations, the trial court sanctioned the State by
dismissing the two counts of obtaining property by false
pretenses that had been lodged against Defendant and ordering
that the State be precluded from calling Chynna or Carlston
Andrews to testify at Defendant’s trial for felonious larceny.
After the trial court denied a motion to continue the trial of
the felonious larceny charge, the State took a voluntary
dismissal with respect to that charge. The State noted an
appeal to this Court from the trial court’s order.
On 7 October 2013, Defendant filed a motion to dismiss the
State’s appeal or, in the alternative, a motion to strike the
record on appeal and portions of the State’s brief on the basis
that the State had committed numerous violations of the North
Carolina Rules of Appellate Procedure. On 16 October 2013, the
State filed a response to Defendant’s motion and an alternative
petition seeking the issuance of a writ of certiorari
authorizing appellate review of the trial court’s order. On 18
October 2013, Defendant filed a response to the State’s
certiorari petition.
II. Substantive Legal Analysis
A. Motion to Dismiss Appeal
-6-
As an initial matter, we must address Defendant’s motion to
dismiss the State’s appeal or, in the alternative, to strike the
record on appeal and portions of the State’s brief. Although
Defendant is certainly correct in contending that the State has
violated numerous provisions of the North Carolina Rules of
Appellate Procedure,1 “we dismiss appeals ‘only in the most
egregious instances of nonjurisdictional default[.]’” Carolina
Forest Ass’n, Inc. v. White, 198 N.C. App. 1, 6, 678 S.E.2d 725,
729 (2009) (quoting Dogwood Dev. & Mgmt. Co., LLC v. White Oak
Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008)); see
also 5 Am.Jur.2d Appellate Review § 804, at 540 (stating that
“it is preferred that an appellate court address the merits of
an appeal whenever possible,” so that “a party’s failure to
comply with nonjurisdictional rule requirements normally should
not lead to dismissal of the appeal”). As a result of the fact
that the State’s violations of the North Carolina Rules of
1
Among the rules violations upon which Defendant’s motion
was predicated are that (1) Defendant’s dismissal motions and
“other papers” were missing a critical page and were treated as
attachments rather than included in the record on appeal; (2) a
number of other important documents were treated as attachments
rather than included as part of the record on appeal; (3) the
pages in the record on appeal and attachments were not
individually and consecutively numbered; (4) Defendant’s social
security number was not redacted from the documents included in
the record on appeal; (5) the State failed to provide the court
reporter with the appellate docket number or request that the
transcript be electronically filed; and (6) the State’s brief
failed to “define clearly the issues presented to the reviewing
court.”
-7-
Appellate Procedure are nonjurisdictional in nature and, while
troubling, do not rise to the level of a “substantial failure”
to comply with or a “gross violation” of the applicable rule
provisions, we conclude, in the exercise of our discretion, that
we should review the State’s challenge to the validity of the
trial court’s order on the merits rather than dismissing the
State’s appeal. Dogwood, 362 N.C. at 199, 657 S.E.2d at 366.
Put another way, “we believe [that] the fundamental principle of
Dogwood, to ‘promote public confidence in the administration of
justice in our appellate courts[,]’ does not necessitate
dismissal in the instant case.” Carolina Forest, 198 N.C. App.
at 6-7, 678 S.E.2d at 729. As a result, although we deny
Defendant’s motion to dismiss the State’s appeal, we strongly
admonish counsel for the State to strictly adhere to all
applicable provisions of the North Carolina Rules of Appellate
Procedure in the future.
B. Appealability of Orders Imposing Discovery Sanctions
Secondly, we must determine the extent to which the trial
court’s order is subject to appeal by the State. “The right of
the State to appeal in a criminal case is statutory, and
statutes authorizing an appeal by the State in criminal cases
are strictly construed.” State v. Elkerson, 304 N.C. 658, 669,
285 S.E.2d 784, 791 (1982). “The State’s right of appeal is
granted by [N.C. Gen. Stat.] § 15A-1445.” State v. Watkins, 189
-8-
N.C. App. 784, 785, 659 S.E.2d 58, 60 (2008). “N.C. Gen. Stat.
§ 15A–1445(a)(1) allows the State to appeal from a ‘decision or
judgment dismissing criminal charges as to one or more counts.’”
State v. Dorman, __ N.C. App. __, __, 737 S.E.2d 452, 470
(quoting N.C. Gen. Stat. § 15A–1445(a)(1)), disc. review denied,
__ N.C. __, 743 S.E.2d 206 (2013). “The General Statutes do not
provide a similar right of appeal with regard to the imposition
of lesser discovery sanctions upon the State.” Id. at __, 737
S.E.2d at 470-71. As a result, the State has the right to
appeal a trial court order dismissing a criminal charge while
lacking the authority to appeal an order imposing a lesser
sanction.
Although the trial court granted Defendant’s motion to
dismiss the two counts of obtaining property by false pretenses
that had been lodged against Defendant, it simply precluded the
State from offering the testimony of certain potential witnesses
in the felonious larceny case. Moreover, the State voluntarily
dismissed the felonious larceny charge after the trial court
denied its continuance motion. Although the State’s notice of
appeal stated that it was appealing from the order “in which the
Court dismissed two counts of Obtaining Property by False
Pretenses and prohibited the State from introducing the
testimony of two witnesses” and although the State clearly has
the right to seek appellate review of that portion of the trial
-9-
court’s order challenging the dismissal of the obtaining
property by false pretenses charges, see State v. Newman, 186
N.C. App. 382, 385, 651 S.E.2d 584, 587 (2007) (stating that
“under the plain language of N.C. Gen. Stat. § [15A–]1445(a)(1),
the State has a right to appeal the dismissal of one count and
this appeal is not interlocutory”), disc. review denied, 362
N.C. 478, 667 S.E.2d 234 (2008), the fact that “[t]he General
Statutes do not provide a similar right of appeal with regard to
the imposition of lesser discovery sanctions upon the State,”
Dorman, __ N.C. App. at __, 737 S.E.2d at 470-71, necessitates a
determination that the State lacks the right to seek appellate
review of that portion of the trial court’s order precluding the
presentation of any testimony from Chynna and Carlston Andrews
at the trial of the felonious larceny case. As a result, we
will limit our review of the State’s challenge to the trial
court’s order to a consideration of the lawfulness of the trial
court’s decision to dismiss the two obtaining property by false
pretenses charges.2
2
The State candidly concedes that, despite the reference to
the portion of the trial court’s order precluding it from
presenting certain testimony at the trial of the felonious
larceny charge in its notice of appeal, it has no right to
appeal from that portion of the trial court’s order imposing
sanctions in the felonious larceny case, stating that,
“[a]lthough the trial court’s order regarding the larceny charge
was also incorrect, the State has not attempted to appeal that
order.”
-10-
C. Validity of the Trial Court’s Dismissal Decision
In its brief, the State contends that the trial court erred
by dismissing the two counts of obtaining property by false
pretenses based upon the State’s failure to comply with the
provisions of N.C. Gen. Stat. § 15A-903. More specifically, the
State contends that certain of the trial court’s findings of
fact lacked adequate evidentiary support3 and that the trial
court erroneously concluded as a matter of law that the failure
to obtain and preserve the surveillance video taken at the
establishment at which Ms. Andrews’ jewelry was pawned
constituted a violation of Defendant’s rights under the
applicable discovery statutes. The State’s argument has merit.
1. Standard of Review
A determination of the extent, if any, to which the State
failed to comply with its obligation to provide discovery to a
criminal defendant is a decision left to the sound discretion of
the trial court. State v. Jackson, 340 N.C. 301, 317, 457
S.E.2d 862, 872 (1995). For that reason, this Court “review[s]
a [trial court’s] ruling on discovery matters for an abuse of
discretion.” State v. Pender, __ N.C. App. __, __, 720 S.E.2d
3Although the parties have expended considerable energy
debating the sufficiency of the record support for the trial
court’s findings of fact in their briefs, we need not address
those contentions given our ultimate determination that, in
light of the facts found in the trial court’s order, no
discovery violation occurred.
-11-
836, 841, disc. review denied, 366 N.C. 233, 731 S.E.2d 414(2012). “‘The trial court may be reversed for an abuse of
discretion in this regard only upon a showing that its ruling
was so arbitrary that it could not have been the result of a
reasoned decision.’” State v. Cook, 362 N.C. 285, 295, 661
S.E.2d 874, 880 (2008) (quoting State v. Carson, 320 N.C. 328,
336, 357 S.E.2d 662, 667 (1987)). “When discretionary rulings
are made under a misapprehension of the law, [however,] this may
constitute an abuse of discretion.” State v. Tuck, 191 N.C.
App. 768, 771, 664 S.E.2d 27, 29 (2008) (quotations omitted).
2. Basic Principles of Criminal Discovery
“It is now well settled in North Carolina that the right to
discovery is a statutory right.” Tuck, 191 N.C. App. at 771,
664 S.E.2d at 29. According to N.C. Gen. Stat. § 15A-903, “upon
a motion of the defendant, the court must order . . . [t]he
State to make available to the defendant the complete files of
all law enforcement agencies, investigatory agencies, and
prosecutors’ offices involved in the investigation of the crimes
committed or the prosecution of the defendant.” N.C. Gen. Stat.
§ 15A-903(a)(1). “The term ‘file’ includes the defendant’s
statements, the codefendants’ statements, witness statements,
investigating officers’ notes, results of tests and
examinations, or any other matter or evidence obtained during
-12-
the investigation of the offenses alleged to have been committed
by the defendant.” N.C. Gen. Stat. § 15A-903(a)(1)(a).
“The State, however, is under a duty to disclose only those
matters in its possession and ‘is not required to conduct an
independent investigation’ to locate evidence favorable to a
defendant.” State v. Chavis, 141 N.C. App. 553, 561, 540 S.E.2d
404, 411 (2000) (quoting State v. Smith, 337 N.C. 658, 664, 447
S.E.2d 376, 379 (1994)). “[W]e note that this Court has
interpreted the provisions of [N.C. Gen. Stat. §] 15A-903 to
require production by the State of already existing documents.”
Dorman, __ N.C. App. at __, 737 S.E.2d at 471. As a result,
“[t]he statute imposes no duty on the State to create or
continue to develop additional documentation regarding an
investigation.” Id.
“If a trial court determines that the State has violated
statutory discovery provisions or a discovery order, it may
impose a wide array of sanctions[,] including dismissal of the
charge with or without prejudice.” Dorman, __ N.C. App. at __,
737 S.E.2d at 470. “However, prior to imposing any []
sanctions, the trial court must ‘consider both the materiality
of the subject matter and the totality of the circumstances
surrounding an alleged failure to comply’ with the discovery
requirements.” State v. Jaaber, 176 N.C. App. 752, 755, 627
S.E.2d 312, 314 (2006) (quoting N.C. Gen. Stat. § 15A-910(b)).
-13-
“If the court imposes any sanction, it must make specific
findings justifying the imposed sanction.” N.C. Gen. Stat. §
15A–910(d). “‘Given that dismissal of charges is an ‘extreme
sanction’ which should not be routinely imposed, orders
dismissing charges for noncompliance with discovery orders
preferably should also contain findings which detail the
perceived prejudice to the defendant which justifies the extreme
sanction imposed.’” Dorman, __ N.C. App. at __, 737 S.E.2d at
470 (quoting State v. Allen, __ N.C. App. __, __, 731 S.E.2d
510, 527-28 (internal quotation marks and citations omitted),
disc. review denied, 366 N.C. 415, 737 S.E.2d 377 (2012), cert.
denied, __ U.S. __, 133 S. Ct. 2009, 185 L. Ed. 2d 876 (2013).
3. Extent to Which Discovery Violation Occurred
According to the argument that Defendant advanced in the
trial court and that the trial court accepted in its order, the
State violated the discovery-related provisions of N.C. Gen.
Stat. § 15A-903 by negligently failing to obtain and preserve
the pawn shop surveillance video.4 More specifically, Defendant
4
On appeal, Defendant has not attempted to defend the trial
court’s dismissal decision as a proper exercise of the trial
court’s authority to sanction a discovery violation by the
State. Instead, Defendant argues that the trial court’s order
should be upheld based upon a trial tribunal’s inherent
authority “to do all things that are reasonably necessary for
the proper administration of justice.” Beard v. North Carolina
State Bar, 320 N.C. 126, 129, 357 S.E.2d 694, 696 (1987). We
will not, however, address Defendant’s “inherent authority”
argument on the merits given the trial court’s failure to adopt
-14-
asserted in his dismissal motion stemming from the loss and
destruction of the surveillance video that his trial counsel
notified the State on 7 August 2012 that there was reason to
believe that Chynna Andrews had been at the pawn shop on the
date of the alleged offense and inquired if the State had
obtained a surveillance video from the pawn shop on the theory
that this video might “show Chynna Andrews at the pawn shop.”
Approximately two or three weeks before 18 February 2013, the
date upon which Defendant’s trial was scheduled to begin,
Defendant’s trial counsel made another inquiry about the extent
to which the State had obtained the pawn shop surveillance
video. As a result of this inquiry, the prosecutor spoke with
an investigator who “went down to the pawn shop and asked about
a video,” ultimately learning “that after six months it had been
destroyed.” Based upon this set of facts, Defendant argued that
the State was “aware of evidence that could be exculpatory and
acted with negligence to allow it to be destroyed” contrary to
the discovery-related obligations to which the State was subject
pursuant to N.C. Gen. Stat. § 15A-903. We do not find
such a rationale as the basis for its dismissal order. As a
result, Defendant will, of course, remain free to seek any
available relief stemming from the loss of the surveillance
video based on any theory other than an alleged violation of the
State’s statutory discovery obligations during the course of the
proceedings on remand.
-15-
Defendant’s argument, which provided the basis for the trial
court’s decision, persuasive.
A careful review of the record reveals no indication that
the surveillance video at issue here was ever in the State’s
possession. Given that “[t]he State . . . is under a duty to
disclose only those matters in its possession and ‘is not
required to conduct an independent investigation’ to locate
evidence favorable to a defendant,” Chavis, 141 N.C. App. at
561, 540 S.E.2d at 411 (quoting Smith, 337 N.C. at 664, 447
S.E.2d at 379), the State was under no statutory obligation to
obtain and provide the pawn shop surveillance video to
Defendant. As a result, given that the record contains no
support for the trial court’s determination that the State
failed to comply with the discovery-related obligations imposed
by N.C. Gen. Stat. § 15A-903 stemming from its failure to
obtain, preserve, and disclose the pawn shop surveillance video
to Defendant, the trial court’s decision that the State did not
comply with the mandates of N.C. Gen. Stat. § 15A-903 rested
upon a misapprehension of the applicable law sufficient to
render its decision to dismiss the obtaining property by false
pretenses charges that had been lodged against Defendant an
abuse of discretion. Tuck, 191 N.C. App. at 771, 664 S.E.2d at
29. As a result, given that the trial court’s decision to
dismiss the obtaining property by false pretenses charges rested
-16-
upon a misapprehension of law concerning the extent to which a
discovery violation actually occurred, the trial court’s order
should be reversed and this case should be remanded to the
Durham County Superior Court for further proceedings not
inconsistent with this opinion.5
III. Conclusion
Thus, for the reasons set forth above, we conclude that the
trial court erred by dismissing the two counts of obtaining
property by false pretenses that had been lodged against
Defendant based on the State’s alleged failure to comply with
its discovery obligations under N.C. Gen. Stat. § 15A-903. As a
result, the trial court’s order should be, and hereby is,
reversed and this case should be, and hereby is, remanded to the
Durham County Superior Court for further proceedings not
inconsistent with this opinion.
REVERSED AND REMANDED.
5
Aside from the issue discussed in the text, the trial
court’s order does not “detail the perceived prejudice to the
defendant” that would “justif[y] the extreme sanction imposed.”
Dorman, __ N.C. App. at __, 737 S.E.2d at 470. “Absent a
finding explaining the specific and continuing prejudice [the
d]efendant will suffer,” a trial court is not authorized to
dismiss a pending criminal case as a sanction for a discovery
violation by the State. Id. Thus, wholly aside from the fact
that the record does not, in fact, disclose the existence of any
discovery violation relating to the failure to obtain and
preserve the pawn shop surveillance video, we would also be
required to reverse the trial court’s dismissal order based upon
its failure to delineate the “specific and continuing” prejudice
to which Defendant would be subject as a result of the alleged
discovery violation.
-17-
Chief Judge MARTIN and Judge McCULLOUGH concur.