State v. Nobles

• Decision Date: 03 July 2018
• Docket Number: No. COA17-516,COA17-516
• Citation: 818 S.E.2d 129,260 N.C.App. 289
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. George Lee NOBLES

260 N.C.App. 289

818 S.E.2d 129

STATE of North Carolina

v.George Lee NOBLES

No. COA17-516

Court of Appeals of North Carolina.

Filed: July 3, 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.

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

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 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.

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

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-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, 57 L.Ed.2d 489 (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 .

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, 122 L.Ed.2d 457 (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 " § 1153 ordinarily is pre-emptive of state jurisdiction...