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

3
Although 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.