State v. Campbell Soup Cansis a case that is proving as hard to finish off as Freddy Kreuger or Wile E. Coyote. Campbell has earned its third blog entry following yet another opinion by the Supreme Court of North Carolina.   And, like Freddy, the latest apparition gives no guarantees that Campbell’s lurking Appellate Rule 2 issue will not invade our nightmares in the future.

Although Campbell raises a number of issues relating to criminal law, the angle that has attracted the attention of appellate practitioners has been the back and forth between the Court of Appeal and the Supreme Court regarding the proper application of Appellate Rule 2, which allows an appellate court discretion to suspend or vary the requirements of the Appellate Rules in order to “prevent manifest injustice to any party.”

Our story so far: After a church realized that some of its sound equipment was missing, defendant Campbell was charged with various offenses. He admitted that he had entered the unlocked building but did not recall what he did there. At trial, defendant was convicted of felony larceny and felony breaking and entering of a place of religious worship.

The Court of Appeals reviewed two of the six issues raised by defendant and reversed his convictions.  The Supreme Court of North Carolina allowed discretionary review, reversed the Court of Appeals on the issues it had addressed, and remanded to that Court for consideration of defendant’s remaining issues.

On remand, the Court of Appeals invoked Appellate Rule 2 to address defendant’s unpreserved argument that a fatal variance existed between the allegations in the indictment and the evidence presented at trial. Finding merit in this issue, the Court of Appeals vacated defendant’s felony larceny conviction. 243 N.C. App. 563 (2015).  The Supreme Court again allowed discretionary review. That Court again reversed the Court of Appeals, noting that, in invoking Rule 2 to reach the variance issue, the Court of Appeals had merely cited a similar case. This process not only suggested that the Court of Appeals felt itself bound by that case, it also reflected an apparent failure by the Court of Appeal to exercise its discretion based on an independent review of Campbell’s facts and circumstances.  369 N.C. 599 (2017). Consequently, the Supreme Court remanded the matter for the Court of Appeals to conduct an independent review of whether Appellate Rule 2 should have been invoked.

Upon this second remand, the Court of Appeals issued a third opinion. Following a thorough analysis, the Court of Appeals reaffirmed its invocation of Appellate Rule 2, then concluded once more that the variance was fatal. However, Judge Berger dissented, arguing that the case did not merit application of Rule 2. In addition, the dissenting judge contended that sufficient substantial evidence was presented to support defendant’s larceny conviction.

Judge Berger’s dissent sent the case to the Supreme Court for the third time, where it may have been greeted with mixed emotions. The Supreme Court also allowed the State’s petition for discretionary review of additional issues. And the appellate world held its breath, waiting for the Supreme Court to reveal its views on Appellate Rule 2.

Well, we can all exhale because the Supreme Court didn’t.  It determined that it did not need to address the question “whether the Court of Appeals properly invoked Rule 2 in order to reach the fatal variance issue” because it found that “the Court of Appeals correctly held the State failed to present sufficient evidence to support the larceny charge.”

Where does this result leave us? Under Campbell II, is the Court of Appeals now required in every instance to give a detailed written analysis of its decision to invoke Appellate Rule 2? Or was the second remand’s requirement for such an analysis here occasioned by the synergistic effects of Campbell’s facts and the Court of Appeals’ rather cursory invocation of Rule 2 in its second opinion? Is a dissenting Judge’s vote against the panel’s exercise of its discretionary authority to invoke Appellate Rule 2 a reviewable issue?

We will not know until more cases flesh out this aspect of Appellate Rule 2. My hunch is that the Rule 2 analysis will settle down somewhere in the middle. The Supreme Court’s first remand on this issue was based on an interpretation that the Court of Appeals felt bound by the similar case where it previously had invoked Rule 2. As long as the Court of Appeals (1) gives a reasonable indication why it believes Appellate Rule 2 fits in the case then before it, and (2) makes it clear that the judges understand that they are not required to invoke Rule 2, I expect the Supreme Court will exercise its traditional deference to the Court of Appeals’ exercises of discretion.

But maybe not. The Supreme Court on more than one occasion has reminded the Court of Appeals that Rule 2 is to be applied only in “exceptional circumstances.” See, e.g., Dogwood Development and Management Co., Inc. v. White Oak Transport Co., Inc., 362 N.C. 191, 201, 657 S.E.2d 361, 367 (2008). Moreover, as discussed at length in my earlier post on Campbell, the Supreme Court is aware of institutional grounds for keeping Appellate Rule 2 on a leash. If the state’s appellate courts do not exhibit a consistent and restrained application of the Rules of Appellate Procedure, the federal courts can determine that our state courts are not “consistently and regularly” applying North Carolina’s procedural rules. Such a finding gives the federal courts opportunities to conclude that those procedural rules are not an adequate and independent ground barring federal review of a state habeas issue. See State v. Hart, 361 N.C. 309, 317, 644 S.E.2d 201, 206 (2007).

So questions remain unanswered. Justice Davis, who wrote the latest Campbell opinion for a unanimous Supreme Court, is known to enjoy the occasional mystery novel. Was he smiling to himself as he wrote this opinion?

Your thoughts and comments are welcomed.

–Bob Edmunds

Ed. Note: For more on these topics, see Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure, §§ 2.05, 4.03[7][a], 4.05, 4.06 (2019).