Last Friday was a blockbuster appellate day for the Supreme Court of North Carolina. Not only did it effectively declare an appellate jurisdiction statute unconstitutional (see Matt’s blog post), but Justice Newby authored a concurring opinion inspired by “It’s a Wonderful Life.” (“Was Old Man Potter simply morally corrupt or was he also guilty of a crime?”).
For North Carolina’s appellate defenders, however, Friday was not a wonderful day. Out of 11 Supreme Court criminal opinions, the defendants lost 10. Indeed, they barely squeaked by for their only win, which split 4-3 in the defendant’s favor. As this is not a criminal blog, I will not hedge a guess as to the “whys” of this losing streak.
As an appellate practice blog, however, we are mindful that criminal opinions can portend new storms of appellate practice and procedure. (Remember Oglesby and Biddix . . .to name only two?) For both criminal and civil appeals, the Supreme Court’s 7-0 opinion in State v. Campbell could signal a sea change in Appellate Rule 2 jurisprudence.
Campbell dealt with a criminal defendant’s argument that a fatal variance existed between the allegations in the indictment and the evidence the State presented at trial. Problem: the defendant’s trial counsel did not raise the argument below as required by Appellate Rule 10. Instead, the Campbell defendant asked the Court of Appeals to invoke Appellate Rule 2 to reach this unpreserved issue. Utilizing Rule 2, the Court of Appeals addressed the merits of the defendant’s argument and ultimately vacated his conviction in a unanimous opinion. The Supreme Court granted discretionary review to determine whether the Court of Appeals had properly invoked Rule 2 to reach the issue.
Rule 2 recognizes the residual power of both appellate courts to consider, in exceptional circumstances, significant issues of importance to the public or to prevent manifest injustice to a party. An appellate court’s exercise of Rule 2 authority is traditionally committed to its sound discretion. Therefore, it is extremely rare for the Supreme Court to reverse a Rule 2 decision. Indeed, the last time I recall the Supreme Court striking down the Court of Appeals’ discretionary use of Rule 2 was in Viar v. North Carolina Department of Transportation. Viar launched a pre-Dogwood rules violations era that most appellate lawyers would prefer to forget. (For those too young to remember that era, see here.)
Perhaps mindful of Viar‘s unintended consequences, the Supreme Court in Campbell did not out-and-out reverse the Court of Appeals’ decision to invoke Rule 2. Instead, it held that the Court of Appeals had proceeded under a misapprehension of law by relying on a previous opinion, rather than its own judgment, to invoke Rule 2. The Supreme Court stated:
Here, the Court of Appeals did not reach the merits of defendant’s fatal variance argument after an independent determination of whether the specific circumstances of defendant’s case warranted invocation of Rule 2, but rather, based upon a belief that “this type of error” automatically entitles an appellant to review via Rule 2. See Campbell, ___ N.C. App. at ___, 777 S.E.2d at 530. The court thus acted under the erroneous belief that, because defendant presented a fatal variance argument, the court lacked the ability to act otherwise than to reach the merits of defendant’s contention.
The Supreme Court remanded the case to the Court of Appeals to apply the correct Rule 2 standard (i.e., whether to exercise its discretion to consider the unpreserved issue under the particular facts and circumstances of the case). On its face, the Supreme Court’s decision in Campbell is not particularly worrisome. After all, everyone would agree that appellate courts should apply correct legal standards.
However, I am having trouble following the Supreme Court’s determination that the Court of Appeals believed it was required to invoke Rule 2. The Court of Appeals’ entire analysis of this issue in Campbell is set forth below:
Defendant next contends that the trial court erred in failing to dismiss the larceny charge due to a fatal variance between the indictment and the evidence as to the ownership of the stolen property. Defendant’s trial counsel failed to raise this issue at trial, so defendant requests that we invoke North Carolina Rule of Appellate Procedure 2, or, alternatively, that we review this issue for ineffective assistance of counsel. N.C. R. App. P. 2 (“To prevent manifest injustice to a party … either court of the appellate division may … suspend or vary the requirements or provisions of any of these rules in a case pending before it[.]”). In State v. Gayton-Barbosa, this Court invoked Rule 2 to review a similar fatal variance argument and held that this type of error is “sufficiently serious to justify the exercise of our authority under [Rule 2].” 197 N.C. App. 129, 134, 676 S.E.2d 586, 589-90 (2009). Accordingly, we exercise our discretion under Rule 2 to review this issue.
Id. (underline emphasis added). True, the Court of Appeals did not go into detail as to why it was exercising its discretion under Rule 2. Conventionally, neither appellate court has went into much detail as to this point. The Court of Appeals, however, explicitly stated that it was exercising its discretion under Rule 2 to review the unpreserved issue. Why was this statement inadequate to demonstrate that the Court of Appeals was exercising its discretion?
Any further guess as to why the Supreme Court determined that the Court of Appeals believed it was required to apply Rule 2? Did the defendant in Campbell argue that prior case law required application of Rule 2? Did the Court of Appeals make statements during oral argument indicating a belief that it had no discretion?
More broadly, do you foresee far-reaching consequences from this opinion? Is the Supreme Court signaling that it will take a harder look at the Court of Appeals’ exercise of its Rule 2 authority? Is it improper to cite prior case law invoking Rule 2 to reach the same issue? Does the Supreme Court want a more detailed factual analysis whenever the Court of Appeals decides to utilize Rule 2? Will the Court of Appeals be more reluctant to exercise its Rule 2 authority as a consequence of Campbell? Or will Campbell be limited to its particular facts?