Lack of written order costs criminal defendant big

If you strike a deal, make sure to get it in writing. It’s axiomatic advice that any lawyer will say is one of the best ways to avoid litigation if the deal goes south.

But as one Orange County attorney discovered recently, that advice also applies in the courtroom.

The North Carolina Court of Appeals recently held that the trial judge overseeing a criminal case did not err by denying a continuance that another judge appeared to have granted.  Normally, one superior court judge cannot overrule another superior court judge’s judgments and orders.

But in State v. Moore, the appeals court held that because the original judge handling the case did not make an official ruling on the continuance, the second judge was not bound by the earlier agreement to delay the defendant’s trial.

“Defendant cites no authority holding that an oral statement by the judge, which is not reduced to writing or entered as an order or judgment, constitutes a ‘judicial order’ that may not be overruled by another judge,” Judge Valerie Zachary wrote in the court’s May 16 opinion.

Controversial continuance

The appeals court’s ruling stemmed from the trial against Pierre Moore, who was facing felony and misdemeanor charges related to an alleged attempt to evade arrest.

Moore was arrested on May 22, 2015, and George Doyle was appointed to represent him. Moore was later charged with first-degree murder and Kellie Mannette was appointed to represent him on that charge.

The two attorneys eventually asked an Orange County judge to assign both cases to Mannette. At a March 9, 2016, pretrial hearing, Mannette told the judge that she could take both of Moore’s cases but she would not be ready for trial in a month and requested a continuance. The case related to Moore’s felony count of fleeing to elude arrest and other misdemeanors was set for April 18, 2016.

After some back and forth, court records say the judge said, “It’s going to get continued. That’s the bottom line.”

Mannette did not ask the judge to put that in writing.

When Moore’s case was called for trial by a different judge on April 18, Mannette orally moved for a continuance.

She told the judge she had taken Moore’s case “with the understanding” that if a plea deal could not be reached, she “would not be prepared to try the case.” She also said she had not interviewed a witness or conducted the legal research needed to support her pretrial motions.

The trial judge denied the motion for a continuance.

Moore was ultimately convicted and sentenced to a term of eight to nineteen months in prison, would begin once another sentence he was already serving expired.

Direct admission

On appeal, Moore argued the trial court had erred by not granting the continuance because it deprived him of his constitutional right to effective assistance of counsel.

The appeals court determined that Moore’s argument lacked merit because he had failed to establish at the pretrial hearing that the denial of the continuance motion would violate his rights. The appeals court also found that he had failed to show that his case was prejudiced by the trial court’s decision.

“The charges lodged against defendant all arose from a single incident of high speed driving and the only factual issue that was seriously contested at trial was the identity of the driver,” Zachary said. “In his appellate brief, defendant does not identify a specific factual issue that might have been resolved differently had his counsel conducted further investigation or interviewed witnesses.”

Separately, the appeals court found that the trial court had erred by allowing the jury to watch a police officer’s cell phone recording of the gas station’s video surveillance footage from the night of the incident. But again, the court held that Moore’s case was not prejudiced by the video.

Zachary said the appeals court reached that decision because of a statement Moore made while sitting in the back of a police car after being arrested.

During the trial, prosecutors provided evidence that the police car driving Moore talked to his supervisor over the radio, Moore piped up to say, “the only reason he ran from officers the night of 5/21/2015 was because he had been drinking and did not want to deal with the driving while impaired charges.”

Zachary said that was a direct admission by Moore that he was driving the Altima the night of the police chase.

“We have evaluated the degree to which the admission of the video may have played a role in the jury’s decision to convict defendant, particularly given that the defendant essentially confessed to being the driver of the car, and conclude that there is no reasonable possibility that the jury would have failed to convict defendant absent the video evidence,” Zachary said.

Moore was represented on appeal by Meghan Jones, a solo practitioner in Raleigh. Jones did not return calls seeking comment.

The 25-page opinion is State v. Moore (Lawyers Weekly No. 011-157-17). An opinion digest is available at nclawyersweekly.com.

Follow Jeff Jeffrey on Twitter @NCLWJeffrey