State v. Jones, 85PA20

Docket Nº85PA20
Citation2022 NCSC 103
Case DateAugust 19, 2022
CourtUnited States State Supreme Court of North Carolina




No. 85PA20

Supreme Court of North Carolina

August 19, 2022

Heard in the Supreme Court on 10 May 2022.

On discretionary review pursuant to N.C. G.S. § 7A-31 from a unanimous decision of the Court of Appeals, 269 N.C.App. 440, 838 S.E.2d 686 (2020), affirming judgments entered on 23 October 2017 by Judge James K. Roberson in Superior Court, Durham County.

Joshua H. Stein, Attorney General, by Christine Wright, Assistant Attorney General, for the State.

Glenn Gerding, Appellate Defender, by Nicholas C. Woomer-Deters, Assistant Appellate Defender, for defendant-appellant.

BERGER, Justice.

¶ 1 Defendant's probation was revoked following a determination that he had committed new criminal offenses. On appeal to the Court of Appeals, defendant argued that the trial court deprived him of his right to confront witnesses against him at the probation revocation hearing. The Court of Appeals disagreed and upheld the revocation of defendant's probation. For the reasons stated below, we modify and affirm the decision of the Court of Appeals.


I. Factual Background

¶ 2 Defendant was placed on probation after pleading guilty to discharging a weapon into occupied property and possession of a firearm by a convicted felon in August 2015. Defendant was subsequently alleged to have violated terms of probation in reports filed on December 21, 2016,[1] June 7, 2017, August 10, 2017, and August 18, 2017. Relevant here are the 2017 violation reports which alleged that defendant absconded supervision, committed new criminal offenses, and failed to pay restitution and other costs and fees. The allegation that defendant violated probation by committing new criminal offenses stemmed from an April 1, 2016 incident in which defendant was charged with possession of a firearm by a felon and carrying a concealed weapon.

¶ 3 When these charges come on for trial, defendant filed a motion to suppress evidence obtained as a result of a traffic stop in which a pistol was recovered during a search of the vehicle operated by defendant. During the suppression hearing, the State called Sergeant Casey Norwood, the officer who initiated the traffic stop that led to discovery of the firearm in defendant's vehicle. In its order denying the motion to suppress, the trial court found that Sergeant Norwood first observed defendant in an area known for criminal activity. Sergeant Norwood followed defendant in his


patrol unit when defendant left the area. After pacing defendant's vehicle at 50 miles per hour in a 35 miles per hour zone, Sergeant Norwood activated his lights and siren to initiate a traffic stop. Defendant "did not stop right away," and Sergeant Norwood observed defendant "slouch . . . toward the center console" as the vehicle slowed down. The trial court found that defendant's behavior "indicated [to Sergeant Norwood that] the driver might try to conceal something."

¶ 4 After stopping the vehicle, Sergeant Norwood found that defendant was the only occupant. Defendant became "defensive and belligerent" when Sergeant Norwood informed him that the traffic stop was initiated because he was exceeding the speed limit. After defendant was asked to step out of the vehicle, a Smith and Wesson pistol was discovered between the driver's seat and the center console, with "2 to 3 inches of grip showing." Sergeant Norwood testified that he "reached into the vehicle to remove the weapon [and] secured [it]."

¶ 5 The trial court concluded that defendant's constitutional rights had not been violated by the search or seizure and denied defendant's motion to suppress in an order dated July 12, 2017. At trial, the jury was unable to reach a unanimous verdict and a mistrial was declared on July 14, 2017.

¶ 6 On September 14, 2017, the trial court held a probation revocation hearing regarding the violation reports, including the allegation that defendant had committed new criminal offenses. At the outset, the State moved to admit the


July 12, 2017 order denying defendant's motion to suppress and a transcript of the suppression hearing which included Sergeant Norwood's testimony. The State indicated that Sergeant Norwood was present and that the State was "prepared to present [Sergeant Norwood] again." Defendant did not call on Sergeant Norwood to testify or otherwise request that Sergeant Norwood remain available for the probation revocation hearing.

¶ 7 In objecting to admission of the order[2], defense counsel argued,

there is no evidence of guilt or innocence or any evidence or any admission from [defendant] in this order. So, therefore, there is no relevance to this probation hearing.
There is one way for them to get that violation in if he is found guilty or if he pleads guilty. I don't think we can do it by using a court order based on a suppression hearing. The court at that point in time did not have authority to render [defendant] guilty or to find guilt with regards to that charge.
I think it's important to note that [the] violation is based off of a conviction. There is no evidence of a conviction.

¶ 8 Defense counsel contended that the order was "highly prejudicial and [ ] irrelevant" to the probation revocation issue and should be excluded. The trial court admitted the transcript and the factual findings from the order denying defendant's


motion to suppress.

¶ 9 After resuming the revocation hearing on October 23, 2017, the trial court heard additional evidence from the State in the form of testimony from the probation officer related to the absconding and monetary violations. Defendant testified at the probation violation hearing that he did not know there was a firearm in the vehicle and introduced an affidavit from Lamar Alexander Thomas stating that the firearm did not belong to defendant.

¶ 10 The trial court determined that defendant had committed the criminal offenses of possession of a firearm by a felon and carrying a concealed weapon while on probation,[3] and defendant's probation was revoked. In reaching its decision, the trial court stated on the record that it had "reviewed the evidence presented, the transcript, the previous orders, affidavits - - affidavit, live testimony."

¶ 11 Defendant appealed to the Court of Appeals, arguing that admission of the transcript at the probation revocation hearing resulted in a denial of his right to confront Sergeant Norwood without a finding of good cause pursuant to N.C. G.S. § 15A-1345(e). The Court of Appeals affirmed the trial court's revocation of defendant's probation but remanded the case to the trial court for correction of a clerical error. State v. Jones, 269 N.C.App. 440, 445, 838 S.E.2d 686, 690 (2020). The Court of Appeals held that the trial court's admission of the transcript was not error and


concluded that a finding of good cause by the trial court was unnecessary because defendant did not seek to confront or cross-examine Sergeant Norwood and had failed to advance an argument related to confrontation in the trial court. Id. at 445, 838 S.E.2d at 690. Defendant appeals.

II. Analysis

¶ 12 The Sixth Amendment guarantees that “[i]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. This protection “bars admission of testimonial evidence unless the declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the declarant.” State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, 304 (2009) (citations omitted).

¶ 13 It is well settled, however, that a probation revocation proceeding is not a criminal trial. State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). Because "[a] probation revocation proceeding is not a formal criminal prosecution," a defendant is afforded "more limited due process right[s]." State v. Murchison, 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014) (cleaned up). Specifically, "[t]he Sixth Amendment, which guarantees [certain protections] to the accused 'in all criminal prosecutions,' ", does not apply to hearings on probation violations. State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973) (emphasis added). Thus, these proceedings "are often regarded as informal or summary." State v. Hewett,


270 N.C. 348, 353, 154 S.E.2d 476, 479 (1967).

¶ 14 The limited rights a defendant enjoys in a probation revocation hearing are rooted in the Due Process Clause of the Fourteenth Amendment, Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 1759-60 (1973) (citation omitted), superseded by statute, Parole Commission and Reorganization Act, Pub. L. No. 94-233, 90 Stat. 119, 228 (1976), and codified in N.C. G.S. § 15A-1345(e). To satisfy due process in this context, an individual alleged to have violated probation

is entitled to written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation.

Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 2258 (1985) (citing Gagnon, 411 U.S. at 786, 93 S.Ct. at 1761).

¶ 15 Further, N.C. G.S. § 15A-1345(e) provides that:

Before revoking or extending probation, the court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings. The State must give the probationer notice of the hearing and its purpose, including a statement of the violations alleged. The notice, unless waived by the probationer, must be given at least 24 hours before the hearing. At the hearing, evidence against the probationer

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