State v. NoblesÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-516
Filed: 3 July 2018
Jackson County, Nos. 12 CRS 51720, 1362–63
STATE OF NORTH CAROLINA
v.
GEORGE LEE NOBLES
Appeal by defendant from judgments entered 15 April 2016 by Judge Bradley
B. Letts in Jackson County Superior Court. Heard in the Court of Appeals 21 March
2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N.
Bolton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
Gomez, for defendant.
ELMORE, Judge.
Defendant George Lee Nobles, a non-enrolled member of any federally
recognized Native American1 tribe but a first descendant of an enrolled member of
the Eastern Band of Cherokee Indians (“EBCI”), appeals from judgments sentencing
him to life in prison after a North Carolina jury convicted him of armed robbery, first-
degree felony murder, and firearm possession by a felon.
1 While we use the terms “Native American” and “Indian” interchangeably, we often use “Indian” to
comport with the language used in the federal statute at issue in this case.
STATE V. NOBLES
Opinion of the Court
He argues the trial court erred by (1) denying his motions to dismiss the
charges on the grounds that the State of North Carolina lacked subject-matter
jurisdiction to prosecute him because he is an “Indian” and thus criminal jurisdiction
lie exclusively in federal court under the Indian Major Crimes Act (“IMCA”), 18
U.S.C. § 1153 (2013); (2) denying his request to submit the question of his Indian
status to the jury for a special verdict on subject-matter jurisdiction; and (3) denying
his motion to suppress incriminating statements he made to police during a custodial
interview after allegedly invoking his right to counsel. Defendant has also (4) filed a
motion for appropriate relief (“MAR”) with this Court, alleging that his convictions
were obtained in violation of his constitutional rights. Finally, defendant (5) requests
we remand the matter to the trial court with instructions to correct a clerical error in
its order arresting judgment on the armed-robbery conviction, since although that
order lists the correct file number of 12 CRS 1363, it lists the wrong offense of firearm
possession by a felon.
As to the first three issues presented, we hold there was no error. As to the
MAR, we dismiss the motion without prejudice to defendant’s right to file a new MAR
in the superior court. As to the clerical error, we remand the matter to the trial court
with instructions to correct its order by listing the accurate offense of armed robbery.
I. Background
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Opinion of the Court
On 30 September 2012, Barbara Preidt, a non-Indian, was robbed at gunpoint
and then fatally shot outside the Fairfield Inn in the Qualla Boundary, land held in
trust by the United States for the EBCI. On 30 November 2012, officers of the
Cherokee Indian Police Department arrested defendant, Dwayne Edward Swayney,
and Ashlyn Carothers for Preidt’s robbery and murder. Soon after, tribal, federal,
and state prosecutors conferred together to determine which charges would be
brought and in which sovereign government criminal jurisdiction was proper for each
defendant. After discovering that Swayney was an enrolled tribal member of the
EBCI, and that Carothers was an enrolled tribal member of the Cherokee Nation of
Oklahoma, authorities brought these two defendants before an EBCI tribal
magistrate. After discovering that defendant was not an enrolled member of any
federally recognized tribe, the three sovereignties agreed that North Carolina would
exercise its criminal jurisdiction to prosecute him, and authorities brought defendant
before a Jackson County magistrate, charging him with armed robbery, murder, and
firearm possession by a felon.
In August 2013, defendant moved to dismiss those charges for lack of
jurisdiction. He argued North Carolina lacked subject-matter jurisdiction because he
was an Indian, and thus the offenses were covered by the IMCA, which provides for
exclusive federal jurisdiction over “major crimes” committed by “Indians” in “Indian
Country.” See 18 U.S.C. § 1153. After a two-day pretrial jurisdictional hearing, the
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Opinion of the Court
state trial court judge, applying a Ninth Circuit test to determine if someone qualifies
as an Indian for purposes of criminal jurisdiction, see United States v. Bruce, 394 F.3d
1215 (9th Cir. 2005), concluded in a detailed forty-two page order entered on 26
November 2013 that defendant was not an Indian and thus denied defendant’s
motion to dismiss for lack of subject-matter jurisdiction. On 18 December 2013, the
trial court granted defendant’s motion to stay criminal proceedings pending
resolution of his appeal from its 26 November 2013 order. On 30 January 2014,
defendant petitioned our Supreme Court for certiorari review of that order, which it
denied on 11 June 2014. On 23 June 2014, the trial court dissolved the stay.
In March 2016, defendant moved to suppress incriminating statements he
made to police during a custodial interview, which the trial court denied by an order
entered nunc pro tunc on 24 March. Also in March, defendant renewed his motion to
dismiss the charges for lack of state criminal jurisdiction and moved, alternatively,
to submit the issue of his Indian status to the jury for a special verdict on subject-
matter jurisdiction. By another order entered nunc pro tunc on 24 March, the trial
court denied both motions, reaffirming its prior ruling that criminal jurisdiction
properly lie in North Carolina, and concluding that a special instruction to the jury
on defendant’s Indian status as it implicated North Carolina’s subject-matter
jurisdiction was unwarranted.
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Opinion of the Court
From 28 March until 15 April 2016, defendant was tried in Jackson County
Superior Court, yielding jury convictions of armed robbery, first-degree felony
murder, and firearm possession by a felon. The trial court arrested judgment on the
armed-robbery conviction; entered a judgment on the murder conviction, sentencing
defendant to life imprisonment without parole; and entered another judgment on the
firearm-possession-by-a-felon conviction, sentencing defendant to an additional
fourteen to twenty-six months in prison. Defendant appeals.
II. Arguments
On appeal, defendant asserts the trial court erred by (1) denying his motions
to dismiss the state-law charges for lack of subject-matter jurisdiction because North
Carolina was preempted from prosecuting him under the IMCA; (2) denying his
request to submit the issue of his Indian status to the jury for a special verdict on
subject-matter jurisdiction because he presented sufficient evidence at the
jurisdictional hearing from which a jury could find that he is an Indian, and he thus
raised a factual issue as to jurisdiction; and (3) denying his motion to suppress the
incriminating statements he made to police during his custodial interview because
he invoked his right to counsel. Defendant also asserts (4) the case must be remanded
to correct a clerical error.
III. Denial of Motion to Dismiss
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Opinion of the Court
Defendant first asserts the State of North Carolina lacked criminal jurisdiction
to prosecute him because he is an “Indian” and thus the IMCA applied to preempt
state criminal jurisdiction. See 18 U.S.C. § 1153 (providing for exclusive federal
jurisdiction when an “Indian” commits certain enumerated “major crimes” in “Indian
Country”). The State asserts North Carolina enjoys concurrent criminal jurisdiction
over all crimes committed in the Qualla Boundary, regardless of whether a defendant
is an Indian. Alternatively, the State argues that even if the IMCA would preempt
North Carolina from exercising criminal jurisdiction over these major crimes if they
occurred in the Qualla Boundary, it is inapplicable here because defendant is not an
“Indian.”
A. Review Standard
“Whether a trial court has subject-matter jurisdiction is a question of law,
reviewed de novo on appeal.” State v. Herman, 221 N.C. App. 204, 209, 726 S.E.2d
863, 866 (2012) (citing State v. Abbott, 217 N.C. App. 614, 616, 720 S.E.2d 437, 439
(2011)).
B. IMCA Preempts State Criminal Jurisdiction
The State first argues that Fourth Circuit and North Carolina precedent
establishes that “North Carolina at least has concurrent criminal jurisdiction over
the Qualla Boundary without regard to whether the defendant is an Indian or non-
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Opinion of the Court
Indian.” Among other distinguishing reasons, those cases2 are not controlling
because they were decided before United States v. John, 437 U.S. 634, 98 S. Ct. 2541(1978) (holding that the State of Mississippi lacked criminal jurisdiction over a
Choctaw Indian for a major crime committed on the Choctaw Reservation pursuant
to the IMCA, regardless of Choctaw Indians’ dual status as citizens of Mississippi and
members of a federally recognized Indian tribe). Cf. Eastern Band of Cherokee
Indians v. Lynch, 632 F.2d 373, 380 (4th Cir. 1980) (relying on John’s rationale to
hold that, although EBCI Indians enjoy dual status as “citizens of North Carolina
and Indians living on a federally held reservation,” North Carolina lacked authority
to impose an income tax on EBCI tribal members who derived their income from
activities on the reservation).
“[T]he exercise of state-court jurisdiction . . . is preempted by federal law. . . .
upon a showing of congressional intent to ‘occupy the field’ and prohibit parallel state
action.” Jackson Cty. v. Swayney, 319 N.C. 52, 56, 352 S.E.2d 413, 415–16 (1987)
(citations omitted). The IMCA provides in pertinent part:
(a) Any Indian who commits against . . . [any] other person
. . . murder, . . . [or] robbery[ ] . . . within . . . Indian country,
shall be subject to the same law and penalties as all other
persons committing any of the above offenses, within the
exclusive jurisdiction of the United States.
2United States v. Hornbuckle, 422 F.2d 391 (4th Cir. 1970) (per curium); State v. McAlhaney, 220 N.C.
387, 17 S.E.2d 352, 354 (1941); State v. Ta-Cha-Na-Tah, 64 N.C. 614 (1870).
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Opinion of the Court
18 U.S.C. § 1153(a) (emphasis added). This language demonstrates clear
Congressional intent for “exclusive” federal criminal jurisdiction ousting parallel
state action when the IMCA applies. See Negonsott v. Samuels, 507 U.S. 99, 102–03,
113 S. Ct. 1119, 1121–22 (1993) (“As the text of § 1153[ ] . . . and our prior cases make
clear, federal jurisdiction over the offenses covered by the [IMCA] is ‘exclusive’ of
state jurisdiction.” (citations omitted)); see also John, 437 U.S. at 651, 98 S. Ct. at
2550 (affirming that Ҥ 1153 ordinarily is pre-emptive of state jurisdiction when it
applies”).
Accordingly, when an “Indian” commits one of the enumerated “major crimes”
in the “Indian Country” of the Qualla Boundary, the IMCA would ordinarily oust
North Carolina’s criminal jurisdiction. Murder and armed robbery are “major crimes”
under the IMCA, and the offenses here were committed in undisputed “Indian
Country.” See Lynch, 632 F.2d at 380. At issue is whether defendant qualifies as an
“Indian,” such that the IMCA applied to preempt North Carolina from exercising its
state criminal jurisdiction.
C. The Rogers Test
Defendant claims Indian status with the EBCI. Both parties concede the issue
of whether someone qualifies as an Indian under the IMCA is an issue of first
impression for both the Fourth Circuit and our state appellate courts. While the
ICMA does not explicate who qualifies as an “Indian” for federal criminal jurisdiction
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Opinion of the Court
purposes, to answer this question federal circuit courts of appeal employ a two-
pronged test suggested by United States v. Rogers, 45 U.S. 567, 573, 11 L. Ed. 1105(1846). To satisfy the first prong, a defendant must have some Indian blood; to satisfy
the second, a defendant must be recognized as an Indian by a tribe and/or the federal
government. See, e.g., United States v. Zepeda, 792 F.3d 1103, 1106–07 (9th Cir.
2015) (en banc) (interpreting Rogers as requiring the “government [to] prove that the
defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated
with, the federally recognized tribe”); United States v. Stymiest, 581 F.3d 759, 762
(8th Cir. 2009) (“The [IMCA] does not define Indian, but the generally accepted test—
adapted from . . . Rogers[ ] . . . —asks whether the defendant (1) has some Indian
blood, and (2) is recognized as an Indian by a tribe or the federal government or
both.”). Here, the trial court found, and neither party disputes, that Rogers’ first
prong was satisfied because defendant has an Indian blood quantum of 11/256 or
4.29%. At issue is Rogers’ second prong.
While the Fourth Circuit has not addressed how to apply Rogers to determine
whether someone qualifies as an Indian, there is a federal circuit split in assessing
Rogers’ second prong. The Ninth Circuit considers only the following four factors and
“in declining order of importance”:
(1) enrollment in a federally recognized tribe; (2)
government recognition formally and informally through
receipt of assistance available only to individuals who are
members, or are eligible to become members, of federally
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Opinion of the Court
recognized tribes; (3) enjoyment of the benefits of affiliation
with a federally recognized tribe; (4) social recognition as
someone affiliated with a federally recognized tribe
through residence on a reservation and participation in the
social life of a federally recognized tribe.
Zepeda, 792 F.3d at 1114. The Eighth Circuit also considers these factors but assigns
them no order of importance, other than tribal enrollment which it deems dispositive
of Indian status, and allows for the consideration of other factors, such as whether a
defendant has been subjected to tribal court jurisdiction and whether a defendant has
held himself out as an Indian. See Stymiest, 581 F.3d at 763–66.
Here, the trial court applied the Ninth Circuit’s test and determined defendant
was not an Indian for criminal jurisdiction purposes. Because defendant would not
qualify as an Indian under either test, we find no error in the trial court’s denial of
his motion to dismiss. Cf. State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650
(1987) (“A correct decision of a lower court will not be disturbed on review simply
because an insufficient or superfluous reason is assigned. The question for review is
whether the ruling of the trial court was correct and not whether the reason given
therefor is sound or tenable.” (citing State v. Blackwell, 246 N.C. 642, 644, 99 S.E.2d
867, 869 (1957)).
D. Rogers’ Second Prong
Rogers’ second prong “asks whether the defendant . . . is recognized as an
Indian by a tribe or the federal government or both.” Stymiest, 581 F.3d at 762.
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Opinion of the Court
Defendant first argues he satisfied this prong as a matter of law because he presented
evidence that he is a first descendant of an enrolled member of the EBCI, and the
EBCI recognizes all first descendants as Indians for purposes of exercising tribal
criminal jurisdiction.
Defendant relies on the Cherokee Court of the EBCI’s decision in Eastern Band
of Cherokee Indians v. Lambert, No. CR 03-0313, 2003 WL 25902446, at *2–3 (EBCI
Tribal Ct. May 29, 2003) (holding that the EBCI had tribal criminal jurisdiction over
a non-enrolled first descendant), and its subsequent decisions interpreting Lambert
as “[h]olding that First Lineal Descendants are Indians for the purposes of the
exercise of this Court’s [tribal criminal] jurisdiction,” Eastern Band of Cherokee
Indians v. Prater, No. CR 03-1616, 2004 WL 5807679, at *1 (EBCI Tribal Ct. Mar. 18,
2004); see also In re Welch, No. SC 03-13, 2003 WL 25902440, *4 (Eastern Cherokee
Ct. Oct. 31, 2003) (interpreting Lambert as holding that “first lineal descendants,
children of enrolled members who do not possess sufficient blood quanta to qualify
for enrollment themselves[,] are nevertheless subject to the criminal jurisdiction of
the Court”). Additionally, defendant relies on Rule 6 of the Cherokee Rules of
Criminal Procedure that instructs tribal magistrates when determining jurisdiction
that tribal criminal jurisdiction exists if a suspect is a first descendant. See Cherokee
Code § 15-8, Rule 6(b).
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Opinion of the Court
The State argues in relevant part that even if the EBCI recognizes all first
descendants as Indians for purposes of exercising its tribal criminal jurisdiction, this
is only one factor to consider when assessing Rogers’ second prong. We agree.
While exercising tribal criminal jurisdiction over first descendants reflects a
degree of tribal recognition, the Ninth Circuit has determined that “enrollment, and,
indeed, even eligibility therefor, is not dispositive of Indian status.” Bruce, 394 F.3d
at 1225. As tribal enrollment has been declared insufficient to satisfy Rogers’ second
prong as a matter of law, it follows that the exercise of criminal tribal jurisdiction
over first descendants is also insufficient. Cf. United States v. Cruz, 554 F.3d 840,
851 (9th Cir. 2009) (“[A] showing that a tribal court on one occasion may have
exercised jurisdiction over a defendant is of little if any consequence in satisfying the
[Indian] status element [beyond a reasonable doubt] in a § 1153 prosecution.”). As
the Ninth Circuit’s application of the Rogers test contemplates a balancing of multiple
factors to determine Indian status, we reject defendant’s argument that the EBCI’s
decision to exercise its criminal tribal jurisdiction over first descendants satisfies
Rogers’ second prong as a matter of law.
E. St. Cloud Factors
Alternatively, defendant argues, he satisfied Rogers’ second prong under the
Ninth Circuit’s test as applied by the trial court. In St. Cloud v. United States, 702
F. Supp. 1456, 1461 (D.S.D. 1988), the Central Division of the United States District
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Opinion of the Court
Court of South Dakota set forth four factors to be considered in declining order of
importance when evaluating Rogers’ second prong. The Ninth Circuit adopted these
“St. Cloud” factors, see Bruce, 394 F.3d at 1223, and its later en banc articulation of
its test instructs that “the criteria are, in declining order of importance”:
(1) enrollment in a federally recognized tribe; (2)
government recognition formally and informally through
receipt of assistance available only to individuals who are
members, or are eligible to become members, of federally
recognized tribes; (3) enjoyment of the benefits of affiliation
with a federally recognized tribe; (4) social recognition as
someone affiliated with a federally recognized tribe
through residence on a reservation and participation in the
social life of a federally recognized tribe.
Zepeda, 792 F.3d at 1114.
1. First St. Cloud Factor
The first and most important St. Cloud factor asks whether a defendant is an
enrolled member of a federally recognized tribe. Id. Here, the trial court found, and
defendant concedes, he is not an enrolled tribal member of the EBCI or any federally
recognized tribe, nor is he eligible to become an enrolled member of the EBCI, as his
4.29% Indian blood quantum fails to satisfy the minimum 16% necessary for
enrollment.
Nonetheless, defendant argues, this factor weighs in his favor because “he has
been afforded a special status as a First Descendant.” The Ninth Circuit has stated
that while descendant status “does not carry similar weight to enrollment, and should
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Opinion of the Court
not be considered determinative, it reflects some degree of recognition.” United States
v. Maggi, 598 F.3d 1073, 1082 (9th Cir. 2010), overruled on other grounds by United
States v. Zepeda, 792 F.3d 1103 (9th Cir. 2015). However, we find defendant’s first
descendant status carries little weight in this case.
First descendants are eligible for certain tribal benefits unavailable to non-
members or members of other tribes. While the evidence showed that defendant
would qualify for designation as a first descendant, it also showed that he is not
classified by the EBCI as a first descendant, and he is thus currently ineligible to
receive those benefits. The trial court’s unchallenged findings established that
individuals designated as first descendants are issued a “Letter of Descent” by the
EBCI tribal enrollment office, which is used to establish eligibility for first
descendant benefits, and that no “Letter of Descent” for defendant was found after a
search of the official documents in the tribal enrollment office. Cf. Cruz, 554 F.3d at
847 (concluding that “mere eligibility for benefits is of no consequence under [the St.
Cloud factors]” and rejecting “the dissent’s argument that mere descendant status
with the concomitant eligibility to receive benefits is effectively sufficient to
demonstrate ‘tribal recognition’ ”). Accordingly, the trial court properly determined
the evidence presented failed to satisfy the first St. Cloud factor.
2. Second St. Cloud Factor
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Opinion of the Court
The second St. Cloud factor asks whether a defendant has been recognized by
the government “through receipt of assistance available only to individuals who are
members, or are eligible to become members, of federally recognized tribes.” Zepeda,
792 F.3d at 1114. Defendant argues this factor was satisfied because he received
health care services reserved only for Indians. The record evidence indicated that
defendant received free health care services on five occasions—31 October 1985, 1
October 1987, 12 March 1989, 16 March 1989, and 28 February 1990—from the
Cherokee Indian Hospital (“CIH”), which at the time was a federally funded Indian
Health Service (“IHS”).
Applying this evidence to the second St. Cloud factor, the trial court found:
264. . . . [U]nder the second St. Cloud factor the only
evidence of government recognition of the Defendant as an
Indian is the receipt of medical services at the CIH. The
Federal government through the Indian Health Service
provide[s] benefits reserved only to Indians arising from
the unique trust relationship with the tribes. Also, the
government of the Eastern Band of Cherokee provides
additional health benefits to the enrolled members. The
only evidence Defendant presents of the receipt of health
services available only to Indians is medical care at the
CIH more than two decades ago as documented in his
medical chart. While it is true that he did receive care from
the CIH it is likewise true he sought acute care, this care
was when he was a minor and he was taken for treatment
by his mother. Since becoming an adult he has never
sought further medical care from the providers in
Cherokee. Moreover, the last time he sought care from the
CIH was over 23 years ago.
....
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Opinion of the Court
266. [E]xcept for the five visits to the CIH, there is no other
evidence Defendant received any services or assistance
reserved only to individuals recognized as Indian under the
second St. Cloud factor.
Defendant relies on United States v. LaBuff, 658 F.3d 873 (9th Cir. 2011), to
argue that receipt of free health care services from an IHS satisfies the second St.
Cloud factor. LaBuff is distinguishable because the defendant there, “since 1979, . . .
was seen at the Blackfeet Community Hospital for Well Child care services, walk-in
visits, urgent care, and mental health assistance[,]” and “since 2009, [he] sought
medical care approximately 10 to 15 times.” Id. at 879 n.8. Here, defendant only
sought medical care from the CIH five times when he was a minor, his last visit
occurring approximately twenty-two years before he was arrested on the charges at
issue in this case. Cf. Zepeda, 792 F.3d at 1113 (“In a prosecution under the IMCA,
the government must prove that the defendant was an Indian at the time of the offense
with which the defendant is charged.” (emphasis added)). The trial court properly
determined this evidence failed to sufficiently satisfy the second St. Cloud factor.
3. Third St. Cloud Factor
The third St. Cloud factor asks whether a defendant has “enjoy[ed] . . . the
benefits of affiliation with a federally recognized tribe.” Zepeda, 792 F.3d at 1114.
Defendant argues he satisfied this factor based on the same five CIH visits when he
was a minor.
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Opinion of the Court
As to this third factor, the trial court found:
267. . . . [U]nder the third St. Cloud factor the Court must
examine how Defendant has benefited from his affiliation
with the Eastern Band of Cherokee. The Defendant
suggests he has satisfied the third factor under the St.
Cloud test in that Cherokee law affords special benefits to
First Descendants. To be sure the Cherokee Code as
developed over time since the ratification of the 1986
Charter and Governing Document does afford special
benefits and opportunities to First Descendants. Whilst it
is accurate the Cherokee Code is replete with special
provisions for First Descendants in areas of real property,
education, health care, inheritance, employment and access
to the Tribal Court, save however for use of medical services
a quarter of a century ago Defendant has not demonstrated
use of any of his rights as a First Descendant of the Eastern
Band of Cherokee.
268. . . . [T]he third St. Cloud factor is ‘enjoyment’ of the
benefits of tribal affiliation. Enjoyment connotes active and
affirmative use. Such is not the case with Defendant.
Defendant directs the undersigned to no positive, active and
confirmatory use of the special benefits afforded to First
Descendants. Defendant has never ‘enjoyed’ these
opportunities which were made available for individuals
similarly situated who enjoy close family ties to the
Cherokee tribe. Rather, Defendant merely presents the
Cherokee Code and asks the undersigned to substitute
opportunity for action. To ascribe enjoyment of benefits
where none occurred would be tantamount to finding facts
where none exist.
(Emphasis added.)
In his brief, defendant challenges the following factual finding on this factor:
275. . . . [A]ccordingly after balancing all the evidence
presented to the undersigned using the Rogers test and
applying the St. Cloud factors in declining order of
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Opinion of the Court
importance, . . . while Defendant does have, barely, a small
degree of Indian blood he is not an enrolled member of the
Eastern Cherokee, never benefited from his special status
as a First Descendant and is not recognized as an Indian
by the Eastern Band of Cherokee Indians, any other
federally recognized Indian tribe or the federal
government. Therefore, the Defendant for purposes of this
motion to dismiss is not an Indian.
Specifically, defendant challenges as unsupported by the evidence the part of
this finding that he “never benefited from his special status as a First Descendant
and is not recognized as an Indian by the EBCI . . . or the federal government” because
he was recognized by the federal government when he was benefited from his first
descendant status by receiving federally-funded services from an IHS. To the degree
defendant may have benefited from his first descendant status and was recognized
by the federal government by receiving free medical care from the CIH on those five
instances last occurring when he was a minor twenty-three years before the hearing,
we conclude it is irrelevant in assessing this factor in light of the absence of evidence
that defendant enjoyed any other tribal benefits he may have been eligible to receive
based on his first descendant status. Accordingly, the trial court properly determined
this evidence failed to satisfactorily satisfy the third St. Cloud factor.
4. Fourth St. Cloud Factor
The fourth and least important St. Cloud factor asks whether a defendant is
“social[ly] recogni[zed] as someone affiliated with a federally recognized tribe through
residence on a reservation and participation in the social life of a federally recognized
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Opinion of the Court
tribe.” Zepeda, 792 F.3d at 1114. Defendant asserts he satisfied this factor because
he “lived on or near the Qualla Boundary for significant periods of time,” attended
Cherokee schools as a minor, and, after leaving prison in Florida in 2011, he
“returned to living on or near the Qualla Boundary, often with enrolled tribal
members,” “got a job on the reservation, and lived on the reservation with Carothers,
a member of another tribe.” Defendant also argues his two tattoos—an eagle and a
Native American wearing a headdress—“show an attempt to hold himself out as an
Indian.”
As to this factor, the trial court issued, inter alia, the following finding:
271. . . . [T]he Defendant simply has no ties to the Qualla
Boundary. . . . [U]nder the fourth St. Cloud factor
Defendant points to no substantive involvement in the
fabric of the Cherokee Indian community at any time. The
Defendant did reside and work on or near the Cherokee
reservation for about 14 months when his probation was
transferred from Florida to North Carolina. Yet in these
14 months near Cherokee the record is devoid of any social
involvement in the Cherokee community by the Defendant.
While the record evidence showed defendant returned to the Qualla Boundary
in 2011 for about fourteen months, resided on or near the Qualla Boundary with an
enrolled member of another tribe, and worked for a restaurant, Homestyle Fried
Chicken, located within the Qualla Boundary, no evidence showed he participated in
EBCI cultural or social events, or in any EBCI religious ceremonies during that time.
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Opinion of the Court
Myrtle Driver Johnson, a sixty-nine-year old enrolled EBCI member who has
lived on the Qualla Boundary her entire life and was bestowed the honor of “Beloved
Woman” by tribal leaders for her dedication and service to the EBCI, testified about
EBCI social and cultural life, and EBCI religious ceremonies. The trial court’s
unchallenged findings establish that Johnson is “richly versed in the history of the
Eastern Cherokee” and “deeply involved in and a leader of the Cherokee community
regarding the language, culture and tradition of the [EBCI].” Johnson testified she
participated in various EBCI social and cultural events and ceremonies on the Qualla
Boundary over the years and was unfamiliar with defendant or his enrolled mother.
Johnson also testified about the potential EBCI cultural symbolism of defendant’s
tattoos, opining that “[a]ll Native American Tribes honor the eagle” and it thus
represented nothing unique to the EBCI, and that the headdress depicted on
defendant’s tattoo was worn not by the Cherokee but by “western plains Native
Americans.” The trial court properly determined this evidence carried little weight
under the fourth St. Cloud factor.
F. Sufficiency of Factual Findings
Defendant also challenges the evidentiary sufficiency of ten of the trial court’s
278 factual findings, and eight subsections of another finding. However, most of those
findings either recite the absence of evidence pertaining to defendant’s tribal
affiliation with the EBCI as to assessing his Indian status under Rogers, or were
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Opinion of the Court
based on probation documents indicating defendant’s race was “white/Caucasian,”
which were presented after the jurisdictional hearing. Erroneous or irrelevant
findings that do not affect the trial court’s conclusions are not grounds for reversal.
See, e.g., State v. Hernandez, 170 N.C. App. 299, 305, 612 S.E.2d 420, 424 (2005)
(“[A]n order ‘will not be disturbed because of . . . erroneous findings which do not
affect the conclusions.” (citation omitted)); Goodson v. Goodson, 145 N.C. App. 356,
360, 551 S.E.2d 200, 204 (2001) (“[I]rrelevant findings in a trial court’s decision do
not warrant a reversal of the trial court.” (citations omitted)). Because we conclude
the trial court’s other factual findings adequately supported its conclusions, we
decline to address the sufficiency of those findings.
G. Conclusion
Because the evidence presented did not demonstrate that defendant is an
“Indian” or that he sufficiently satisfied any of the St. Cloud factors, the trial court
properly concluded defendant did not qualify as an Indian for criminal jurisdiction
purposes when applying the Ninth Circuit’s test. Accordingly, the trial court properly
denied defendant’s motion to dismiss the charges for lack of jurisdiction.
III. Denial of Motion for Special Jury Verdict
Defendant next asserts the superior court erred by denying his pretrial motion
to submit the issue of his Indian status to the jury for a special verdict on subject-
matter jurisdiction.
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Opinion of the Court
“[W]hen jurisdiction is challenged[ ] . . . the State must carry the burden [of
proof] and show beyond a reasonable doubt that North Carolina has jurisdiction to
try the accused.” State v. Batdorf, 293 N.C. 486, 494, 238 S.E.2d 497, 502–03 (1977).
In the territorial jurisdiction context, our Supreme Court has explained:
When jurisdiction is challenged, the defendant is
contesting the very power of this State to try him. We are
of the view that a question as basic as jurisdiction is not an
‘independent, distinct, substantive matter of exemption,
immunity or defense’ and ought not to be regarded as an
affirmative defense on which the defendant must bear the
burden of proof. Rather, jurisdiction is a matter which,
when contested, should be proven by the prosecution as a
prerequisite to the authority of the court to enter judgment.
Id. at 493, 238 S.E.2d at 502 (internal citation omitted); see also State v. Rick, 342
N.C. 91, 100–01, 463 S.E.2d 182, 186 (1995) (“[T]he State, when jurisdiction is
challenged, [is required] to prove beyond a reasonable doubt that the crime with
which defendant is charged occurred in North Carolina.” (citing Batdorf, 293 N.C. at
494, 238 S.E.2d at 502–03); other citation omitted)). However, unless sufficient
evidence is adduced to create a jury question on jurisdiction, “a jury instruction
regarding jurisdiction is not warranted.” State v. White, 134 N.C. App. 338, 340, 517
S.E.2d 664, 666 (1999) (citation omitted). The “preliminary determination that
sufficient evidence exists” to create a jury question on the factual basis of jurisdiction
is a question of law for the court. Rick, 342 N.C. at 100–01, 463 S.E.2d at 187(citations omitted).
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Opinion of the Court
Here, defendant filed a pretrial motion to dismiss the charges against him for
lack of state criminal jurisdiction. But his motion was grounded not in a challenge to
North Carolina’s territorial jurisdiction, but in a challenge to its subject-matter
jurisdiction, based on his claim that he was an Indian. After the pretrial
jurisdictional hearing, the trial court entered an order denying defendant’s motion on
the basis that defendant was not an Indian for criminal jurisdiction purposes and the
State therefore satisfied its burden of proving jurisdiction beyond a reasonable doubt.
Upon defendant’s renewed jurisdictional motion to dismiss or, in the alternative, to
submit the issue of his Indian status to the jury for a special verdict on subject-matter
jurisdiction, the trial court entered another order denying both motions.
In this second order, the trial court reaffirmed its prior ruling that North
Carolina had criminal jurisdiction and thus denied the renewed jurisdictional motion
to dismiss on that basis. As to defendant’s alternative motion for a special
jurisdictional instruction to the jury, the trial court concluded that because the crimes
undisputedly occurred within North Carolina, and the only special instruction on
jurisdiction concerned territorial jurisdiction, such an instruction was unwarranted.
As to defendant’s specific request that his Indian status be submitted to the jury, the
trial court concluded that because it “already determined the Defendant is not an
Indian for purposes of criminal jurisdiction” and “there exists no requirement that in
order to convict the Defendant in the North Carolina state court of murder the State
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Opinion of the Court
must prove beyond a reasonable doubt that the defendant is an Indian,” submitting
that issue to the jury was unwarranted. We conclude the trial court did not err in
denying defendant’s motion for a special instruction on the issue of his Indian status
as it related to state criminal jurisdiction.
Defendant’s cited authority concerns factual matters implicating territorial
jurisdiction, not subject-matter jurisdiction. Unlike IMCA prosecutions, under which
Indian status is a jurisdictional prerequisite that the Government must prove beyond
a reasonable doubt, see Zepeda, 792 F.3d at 1110 (“Under the IMCA, ‘the defendant’s
Indian status is an essential element . . . which the government must allege in the
indictment and prove beyond a reasonable doubt.’ ” (quoting Bruce, 394 F.3d at
1229)), neither have our General Statues nor our state appellate court decisions
burdened the State when prosecuting major state-law crimes that occurred in Indian
Country to prove a defendant is not an Indian beyond a reasonable doubt. But even
if the State had such a burden, in this particular case, we conclude defendant failed
to adduce sufficient evidence to create a jury question on his Indian status.
The record evidence established that defendant failed to satisfy the first and
most important St. Cloud factor of tribal enrollment, or even eligibility for tribal
enrollment. While defendant presented evidence that on five instances during his
childhood he received free health care based on his first descendant status, he
presented no evidence he received or enjoyed any other tribal benefits based on that
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Opinion of the Court
status. Indeed, the evidence showed that while defendant would qualify to be
designated by the EBCI as a first descendant for purposes of receiving such benefits,
he was not currently recognized by the EBCI as a first descendant based on his failure
to apply for and obtain a “Letter of Descent.” While defendant returned to living on
or near the Qualla Boundary in 2011 for fourteen months, he presented no evidence
that during that time he was involved in any EBCI cultural or social activities or
events or activities, or any EBCI religious ceremonies. Finally, while defendant is
tattooed with an eagle and a Native American wearing a headdress, the State
presented evidence that the EBCI affords no unique significance to the eagle, and
that headdress was never worn during any EBCI ritual or tradition but was worn by
western plain Native Americans.
Based on defendant’s showing at the jurisdictional hearing, we conclude he
failed to adduce sufficient evidence to create a jury question as to whether he qualifies
as an Indian for criminal jurisdiction purposes. Accordingly, the trial court properly
denied defendant’s motion to submit the issue of his Indian status to the jury for a
special verdict on subject-matter jurisdiction.
IV. Denial of Motion to Suppress
Defendant contends the trial court erred by denying his motion to suppress
incriminating statements he made to police during a custodial interview after
allegedly invoking his constitutional right to counsel.
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Opinion of the Court
Our review of a trial court’s denial of a motion to suppress is “strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s ultimate conclusions of
law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).
Conclusions of law are reviewed de novo. State v. McCollum, 334 N.C. 208, 237, 433
S.E.2d 144, 160 (1993) (citation omitted).
The objective standard used to determine whether a custodial suspect has
unambiguously invoked his right to counsel is whether “a reasonable police officer in
the circumstances would understand the statement to be a request for an attorney.”
Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994). “But if a
suspect makes a reference to an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would have understood only that the
suspect might be invoking the right to counsel, our precedents do not require the
cessation of questioning.” Id. (citing McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.
Ct. 2204, 2209 (1991)). For instance, “if a suspect is ‘indecisive in his request for
counsel,’ the officers need not always cease questioning.” Id. at 460, 114 S. Ct. at
2356 (quoting Miranda v. Arizona, 384 U.S. 436, 485, 86 S. Ct. 1602, 1633 (1966)).
Further, even if a suspect unambiguously invokes his right to counsel during
a custodial interview, “he is not subject to further questioning until a lawyer has been
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Opinion of the Court
made available or the suspect himself reinitiates conversation.” Id. at 458, 114 S. Ct.
at 2354–55 (emphasis added) (citing Edwards v. Arizona, 451 U.S. 477, 484–85, 101
S. Ct. 1880, 1884–85 (1981)); see also Edwards, 451 U.S. at 484–85, 101 S. Ct. at 1885(“[A]n accused . . . [after invoking his right to counsel], is not subject to further
interrogation by the authorities until counsel has been made available to him, unless
the accused himself initiates further communication, exchanges, or conversations with
the police.” (emphasis added)).
Here, the trial court found, unchallenged on appeal, that before his custodial
interview, defendant “was advised and read his Miranda . . . rights,” that he “initialed
and signed the Miranda rights form,” that he “understood his Miranda rights and at
no time subsequent to the commencement of the interview indicated he failed to
understand his Miranda rights,” and that he “then waived his Miranda rights and
spoke with law enforcement.” The trial court also issued the following unchallenged
and thus binding findings:
80. In this case Defendant said “Can I consult with a
lawyer, I mean, or anything? I mean, I-I - I did it. I’m not
laughing, man, I want to cry because it’s f[*]cked up to be
put on the spot like this.”
81. Applying an objective standard in analyzing the
statement of Defendant, the undersigned finds there never
was an assertion of a right but rather simply a question.
Further, Defendant did not stop talking after asking the
question to allow law enforcement to respond. Defendant
did not cease talking or refuse to answer more questions
but rather continued talking to investigators for the
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Opinion of the Court
entirety of the interview. The undersigned determines that
no assertion of a right to counsel was made by Defendant.
....
83. This ambiguous statement by Defendant fails to
support a finding that Miranda rights were asserted.
84. Furthermore, the undersigned has also examined the
claimed request for counsel by Defendant in the context of
the questions posed and answers given both before and
after page 58. Again, with the expanded examination of
the statement made by Defendant and considering the
context of that section of the interview, Defendant also fails
to objectively establish he unequivocally and
unambiguously invoked his Miranda rights to counsel.
85. Reviewing the entire transcript, the Defendant asked
about the attorney as a question on page 58. Law
enforcement clearly and appropriately answered the
question posed. Most telling, Det. Iadonisi in response told
Defendant he had a right to have an attorney followed
immediately by SBI Agent Oaks further clarifying and
explaining that law enforcement can never make the
decision to invoke Miranda rights for a defendant. After
answering Defendant’s question, explaining he did have
and continued to possess Miranda rights and that no
person except Defendant could elect to assert and invoke
Miranda rights, the Defendant continued to talk to law
enforcement.
86. With further import, it is essential to note that for the
entire remainder of the interview the Defendant never
again mentioned an attorney or told law enforcement he
wished to stop talking.
Our review of the video recording of defendant’s interrogation comports with
the trial court’s findings and its ultimate conclusion that defendant’s statements were
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Opinion of the Court
not obtained in violation of his constitutional rights. Merely one-tenth of a second
elapsed between the time that defendant asked, “[c]an I consult with a lawyer, I
mean, or anything?” and then stated, “I mean I – I – I did it. I’m not laughing man,
I want to cry because its f[*]cked up to be put on the spot like this.” The officers then
immediately reminded defendant of his Miranda rights, that they had just read him
those rights, that defendant “ha[d] the right to have [his attorney] here,” and that the
officers “[could] never make that choice for [him] one way or another.” After police
attempted to clarify whether defendant’s question was an affirmative assertion of his
Miranda rights, defendant declined to unambiguously assert that right, continued
communications, and never again asked about counsel for the rest of the interview.
Although defendant explicitly asked if he could consult with a lawyer,
considering the totality of the circumstances, we agree that defendant’s invocation of
his Miranda rights was ambiguous or equivocal, such that the officers were not
required to cease questioning. Defendant did not pause between the time he asked
for counsel and gave his initial confession, the officers immediately reminded
defendant of his Miranda rights to clarify if he was indeed asserting his right to
counsel, and defendant declined the offered opportunity to unambiguously assert that
right but instead continued communicating with the officers. Even if defendant’s
question could be objectively construed as an unambiguous invocation of his Miranda
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Opinion of the Court
rights, it was immediately waived when he initiated further communication.
Accordingly, the trial court properly denied defendant’s motion to suppress.
V. Motion for Appropriate Relief
After defendant’s appeal was docketed, he filed a motion for appropriate relief
(“MAR”) with this Court. See N.C. Gen. Stat. § 15A-1418(a) (2017) (authorizing the
filing of MARs in the appellate division). Section 15A-1418(b), governing the
disposition of MARs filed in the appellate division, provides in relevant part that
“[w]hen a motion for appropriate relief is made in the appellate division, the appellate
court must decide whether the motion may be determined on the basis of the
materials before it, or whether it is necessary to remand the case to the trial division
for taking evidence or conducting other proceedings[.] . . .” Id. § 15A-1418(b) (2017).
Defendant’s MAR is primarily grounded in a claim that his convictions were
obtained “in violation of the Constitution of the United States or the Constitution of
North Carolina.” See N.C. Gen. Stat. § 15A-1415(b)(3) (2017). Where, as here, “[t]he
materials before [our appellate courts] are not sufficient for us to make that
determination,” our Supreme Court has instructed that despite section 15A-1418(b)’s
“suggest[ion] that the motion be remanded to the trial court for hearing and
determination, . . . the better procedure . . . is to dismiss the motion and permit
defendant, if he so desires, to file a new motion for appropriate relief in the superior
court.” State v. Hurst, 304 N.C. 709, 712, 285 S.E.2d 808, 810 (1982) (per curiam)
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Opinion of the Court
(footnote omitted). Accordingly, we dismiss defendant’s motion without prejudice to
his right to refile a new MAR in the superior court.
VI. Clerical Error
Both parties agree the matter must be remanded to the trial court to correct a
clerical error in an order. After the jury convicted defendant of first-degree felony
murder in 12 CRS 51720, armed robbery in 12 CRS 1363, and firearm possession by
a felon in 12 CRS 1362, the trial judge rendered an oral ruling arresting judgment on
the armed-robbery conviction. The written order arresting judgment reflects the
correct file number of 12 CRS 1363; however, it incorrectly lists the offense as “possess
firearm by felon,” an offense for which defendant was separately sentenced. We
remand the matter to the trial court for the sole purpose of correcting its order
arresting judgment on 12 CRS 1363 to accurately reflect the offense of armed robbery.
VII. Conclusion
Because the evidence presented at the jurisdictional hearing failed to
satisfactorily satisfy any St. Cloud factor, the trial court properly concluded under
the Ninth Circuit’s test that defendant does not qualify as an Indian for criminal
jurisdiction purposes and thus properly denied defendant’s motions to dismiss the
charges for lack of subject-matter jurisdiction. Because the evidence of defendant’s
Indian status raised no reasonable factual jury question implicating the State’s
burden of proving North Carolina’s criminal jurisdiction, the trial court properly
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Opinion of the Court
refused defendant’s request to submit the issue of his Indian status to the jury for a
special verdict on the matter of subject-matter jurisdiction. Because defendant’s
incriminating statements were not obtained in violation of his constitutional rights,
the trial court properly denied his motion to suppress. Accordingly, we conclude
defendant received a fair trial, free of error. Additionally, because the materials
before us are insufficient to decide defendant’s MAR, we dismiss his motion without
prejudice to his right to file a new MAR in the superior court. Finally, we remand
this matter to the trial court for the sole purpose of correcting the order arresting
judgment on 12 CRS 1363 to accurately reflect the offense of armed robbery.
NO ERROR IN PART; DISMISSED IN PART; REMANDED IN PART.
Judges INMAN and BERGER concur.
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