Finally found time to blog on one of my favorite topics: exceptions and qualifications to the error preservation requirements of Appellate Rule 10! (Um, I heard those groans!). A few weeks ago the North Carolina Supreme Court issued two new opinions shedding additional light on this semi-fascinating topic.
Under the Statutory Mandate Exception to Appellate Rule 10, Trial Judges Generally are Not Required to Supervise the Conduct of “Outside” State Actors
In re E.D. involved a woman (let’s call her “Edna”) who was involuntary committed to a State health facility. Under N.C. Gen. Stat. §122C-262(a), Edna could be temporarily committed if she was examined and certified for involuntary commitment by a “physician or eligible psychologist.” Upon arriving at UNC Wakebrook, a physician certified that Edna met the criteria for involuntary commitment.
A different statute, however, required that a second “physician” examine Edna within 24 hours and certify that she met the criteria for commitment. See N.C. Gen. Stat. § 122C-266(a). Edna was examined a second time, but the second examination was conducted by a psychologist—not a physician—as required by N.C. Gen. Stat. § 122C-266.
At the district court hearing following Edna’s initial commitment, her trial counsel did not object to Edna’s second examination by a psychologist, rather than a physician. Her appellate counsel, however, noticed the issue on appeal and raised it for the first time.
The Court of Appeals vacated the commitment order, holding that (1) trial counsel’s failure to object to Edna’s second examination by a psychologist was not fatal under Appellate Rule 10’s “statutory mandate” exception, and (2) that Edna was entitled to relief without having to showing prejudice.
After granting discretionary review, the Supreme Court reversed. The Supreme Court explained that under the statutory-mandate exception, “when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby, the right to appeal the court’s action” is preserved notwithstanding a party’s failure to object at trial. State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (first recognizing statutory mandate exception to Appellate Rule 10). While the statutory mandate exception may sound handy, the Supreme Court has interpreted the exception fairly restrictively. And In re E.D. was no exception.
The Supreme Court rejected Edna’s argument that the statutory mandate exception applied whenever a statute “implicitly requires the trial court ‘to supervise the conduct of other state actors.’” Slip op. at 12. Rather, the Supreme Court held that the statutory mandate exception applies only when a statute “(1) requires a specific act by a trial judge” or “(2) leaves no doubt that the legislature intended to place th[e] responsibility on the judge presiding at the trial or at specific courtroom proceedings that the trial judge has authority to direct.” Slip op. at 16-17 (internal quotations and citations omitted). In other words, although N.C. Gen. Stat. § 122C-266 mandates that the second examination be conducted by a physician, because the statute did not require the presiding judge to take any specific act or place any direct responsibility on the judge, the statutory-mandate exception was inapplicable–and the error was not preserved.
Not reached by the Supreme Court was whether Edna was also exempt from having to show that she was prejudiced by the error. I will note that the Supreme Court said way back in State v. Ashe, that the statutory mandate applies “when a trial court acts contrary to a statutory mandate and a defendant is prejudiced thereby.” Id. at 39, 331 S.E.2d at 659.
Court of Appeals Majority Does Not Abuse Its Discretion By Using Appellate Rule 2 to Address Unpreserved, Prejudicial Errors—As Long As No Blanket Application of Appellate Rule 2
State v. Bursell began with a divided Court of Appeals panel. The majority determined that the defendant had preserved a Fourth Amendment challenge to a satellite-based monitoring (“SBM”) order. But in the event the issue was not properly preserved, the majority voted to invoke Appellate Rule 2 to reach the issue because the State had conceded that the SBM order had not been properly entered. The dissent argued that the error was not properly preserved and voted not to invoke Appellate Rule 2 to reach the issue.
Reviewing the case on appeal as of right, the Supreme Court held that the SBM argument had not been properly preserved under Appellate Rule 10. The Court explained that it was not enough for trial counsel to argue generally that the SBM argument was improper. Rather, defense counsel was required to assert specifically that the SMB order was improper on the particular Fourth Amendment grounds being asserted on appeal. Slip op. at 6.
Nonetheless, the Supreme Court upheld the Court of Appeals majority’s decision to invoke Appellate Rule 2 to reach the unpreserved issue. The Supreme Court explained that “when, as here, the State concedes that the trial court committed error relating to a substantial right,” the Court of Appeals majority had not abused its discretion in granting Appellate Rule 2 relief.
For those following the State v. Campbell saga (previously blogged about here and here), Bursell signals that
- At least in this case, the Supreme Court treated the Court of Appeals dissent as to whether to invoke Appellate Rule 2 as creating an appeal of right to the Supreme Court—statements in Steingress v. Steingress notwithstanding. See id. 350 N.C. 64, 67, 511 S.E.2d 298, 300 (1999) (“Thus, it appears the dissenting opinion in this case presents no dividing issue and is merely a vote in favor of the exercise of discretion to suspend the rules.”).
- As long as the Court of Appeals considers the facts and circumstances of each appeal and does not create automatic categories of review under Appellate Rule 2, the Supreme Court will review “each application of Rule 2 for abuse of discretion regardless of whether the Court of Appeals invokes it or declines to invoke it.” Slip op. at 6 (citing State v. Campbell, 369 N.C. 599, 603, 799 S.E.2d 600, 602 (2017)).
- While Appellate Rule 2 should be exercised sparingly and cautiously, when substantial, prejudicial error is conceded in a criminal appeal, it’s probably not an abuse of discretion to grant Appellate Rule 2 relief.
This last principle aligns with Justice Edmunds’ theory that in deciding whether to conduct Appellate Rule 2 review, the appellate courts often sneak a “peek at the merits.”
Does Bursell create a disincentive for the State to concede error? Should a dissent as to whether to exercise discretion under Appellate Rule 2 create an appeal of right? Predictions as to the outcome of State v. Campbell Round IV?
Let me know if the comments below!