In recent weeks we’ve had a number of posts that demonstrate the inherent authority and broad power of our appellate courts. See here and here. Another example of that power was on display in a criminal case decided last week by the Court of Appeals. In State v. Sandy, the Court invoked Rule 2 of the North Carolina Rules of Appellate Procedure to consider material outside the Record on Appeal in ruling on the appellants’ (criminal defendants who had been convicted in the trial court) motions for appropriate relief (MARs) that were filed in the Court of Appeals. Among the outside-the-record materials considered by the Court were email communications between an assistant district attorney and a police detective that were discovered by counsel for the appellants after their convictions and after the filing of the Record on Appeal. According to the Court, these emails demonstrated that the appellants had been deprived of their constitutional right to due process because the ADA failed to disclose evidence that would have been favorable to the appellants in their trial. As a result of this determination, the Court granted the MARs, vacated the judgments against the appellants, and remanded.
In rendering this decision, the Court noted that “[n]ormally, any matter on appeal is decided solely on information contained in the record on appeal.” The Court further noted, however, that Rule 2 of the Appellate Rules allowed it to consider the emails because “the substantial rights of criminal defendants [were] implicated.” Rule 2, entitled “Suspension of Rules,” states
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
At first blush, it would appear that the situation presented by Sandy is the exact type of situation that Rule 2 was designed to address–a criminal defendant bringing to the Court’s attention newly discovered evidence of constitutional violations that is not included in the Record on Appeal. But since this arose in the context of ruling on MARs, which are governed by their own statute, consider whether the Court actually needed to invoke Rule 2 at all.
Pursuant to N.C. Gen. Stat. § 15A-1415(b)(3), a criminal defendant may move for appropriate relief when “[t]he conviction was obtained in violation of the Constitution of the United States or the Constitution of North Carolina.” The Court of Appeals has the authority under N.C. Gen. Stat. § 15A-1418(b) to rule on an MAR filed during the course of an appeal. However, according to the statute, “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…” Arguably, the Sandy Court could not determine the motion on the materials before it–at least not the materials before it in the Record on Appeal. Thus, it invoked Rule 2 to allow it to consider the newly discovered emails and rule that the constitutional rights of the appellants had been violated. The Court reasoned that there was no need to remand to the trial court for further proceedings because the emails were self-explanatory and there was no dispute regarding their authenticity; therefore, the Court could, and did, decide the MARs.
However, section 15A-1418(b) simply states that the appellate courts may rule on an MAR if the determination can be made on “basis of the materials before [the Court].” The statute itself makes no reference to these materials having to be before the Court in the record on appeal. So, were the emails “before” the Court of Appeals in Sandy? At least from the plain wording of the statute, the mere existence of the materials in the MARs filed with the Court would seem to be sufficient to allow the Court to have appropriately ruled on the MARs without needing to “suspend” the Rules of Appellate Procedure. Or is there an implication in the statute that to dispose of an MAR, the Court of Appeals must be able to confirm the authenticity of or other possible evidentiary issues relating to the “materials?” And is that why the Court felt it necessary to look to Rule 2? Thoughts?