An intriguing by-play between judges on the North Carolina Court of Appeals recently emerged into public view in the case of State v. Calvin Lee Miller.

After shooting his wife, Miller was convicted of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and possession of a firearm by a felon. One issue raised on appeal was the trial court’s admission of ballistics evidence, presented through the State’s expert witness. This issue was reviewed for abuse of discretion and the Court of Appeals majority found none. In addition, the entire panel found that, even if the ballistics evidence had been admitted erroneously, defendant was not prejudiced because other admissible evidence pointed unerringly towards his guilt.

Judge Zachary filed a separate opinion that was labeled a dissent but began with the words “I fully concur in the majority opinion.” She then took issue with the majority’s analysis of the admissibility of the expert’s ballistics testimony, discussing in some detail the history of this type of evidence. She contended that the expert’s testimony relating to the error rate in this type of evidence could have misled the jury. Accordingly, she concluded that the trial court failed to exercise its gatekeeping authority, admitted evidence of questionable value, and thus abused its discretion.

Defendant filed a notice of appeal to the Supreme Court of North Carolina based on the dissent, along with a petition for discretionary review as to additional issues. In response, the Attorney General filed a “Motion to Dismiss Defendant’s Notice of Appeal (Dissent)” and a separate motion to deny the conditional PDR.

What’s intriguing is that the Court of Appeals majority almost invited the Attorney General to file its motion to dismiss the appeal. Judge Dietz, writing for the majority, pointed out that the panel was unanimous in its holding that any error was harmless and defendant’s conviction should stand, then described the dissent as “part of a trend in this Court to issue dissents that are not actually dissents and often more closely resemble editorials than judicial opinions.” The mischief that Judge Dietz perceived in such a process is that it not only deflects the Court of Appeals from its traditional role as an error-correcting court but also requires the Supreme Court of North Carolina “to confront a legal issue of interest to our dissenting colleague although the case otherwise would not meet the criteria for review in our State’s high court.”

We will never know the basis for its decision, but the Supreme Court summarily allowed the State’s motion to dismiss the appeal and also denied defendant’s conditional PDR.      The question of “when is a dissent not a dissent” has arisen before. My colleague Pat Kane blogged on this issue last October while discussing a couple of civil cases that received similar treatment. [Link to Pat’s Oct 5, 2020 blog] What is unusual in Miller is that debate over this issue within the Court of Appeals has broken out into the open. The Supreme Court rarely explains its orders, but the pattern previously identified by Pat and followed here indicates that the Supreme Court is alert to the issue and that simply labelling a separate writing as a “dissent” is not sufficient to guarantee that the Supreme Court will address the matter raised therein.

This issue is important, not only for the jurisprudential reasons stated in Miller, but also for the inescapable fact that appeals are expensive for the litigants and time-consuming for the attorneys. For appellate practitioners, it is not safe to assume that a Court of Appeals opinion that has a separate writing labeled as a “dissent” is a guaranteed ticket to the Supreme Court. Give thoughtful consideration to filing a conditional PDR in case the separate writing from the Court of Appeals is deemed not to be a dissent. If you have not filed a conditional PDR and the purported dissent is determined by the Supreme Court to be something else, your only option then might be to file for a petition for certiorari.

Please share your thoughts, concurrences, dissents, etc. below.

–Bob Edmunds