State v. Thomas, COA23-210, ___ N.C. App. ___ (Sept. 3, 2024)

In this Wake County case, defendant appealed his convictions for second-degree murder and assault with a deadly weapon, arguing (1) the substitution of an alternate juror after deliberation began justified granting him a new trial, and (2) error in denying his motion to suppress the results of GPS tracking from his ankle monitor. The Court of Appeals granted a new trial due to the substitution in (1) but affirmed the order denying the motion for (2). 

In November of 2019, surveillance footage caught a red car at a convenience store where a shooting occurred. An informant linked defendant to being an occupant of the car, and police determined that defendant was under post-release supervision (PRS) and wearing a GPS ankle monitor. A Raleigh police officer accessed the location history of defendant’s monitor, and found results tying him to the scene of the shooting. Defendant was subsequently indicted for the shooting and came to trial in December of 2021. During jury selection, one of the jurors informed the court that he had a scheduled vacation but could serve if the trial concluded before that date. The juror was seated, but due to the trial schedule, the jury was still in deliberations when his scheduled vacation arrived. Neither the State nor defendant objected when the trial court released the juror and replaced him with an alternate. The jury subsequently returned a verdict of guilty. 

Taking up (1), the Court of Appeals pointed to State v. Chambers, 898 S.E.2d 86 (N.C. App. 2024), as controlling precedent. Under Chambers, any substitution of a juror after deliberation violated defendant’s constitutional right to a unanimous verdict. The court noted “[a]lthough the Supreme Court of North Carolina has granted discretionary review of Chambers, this Court remains bound by Chambers and we are therefore required to grant Defendant’s request for a new trial based upon the juror substitution.” Slip Op. at 8. 

Because the issue would arise again in the new trial, the court next considered (2). Defendant argued “the State exceeded the scope of the search allowed by [G.S.] 15A-1368.4 because the law enforcement officer who accessed the data from his ankle monitor was not his supervising officer under his PRS.” Id. at 9. The court first established defendant was subject to PRS and outlined the statutory basis under G.S. 15A-1368.4 for his ankle monitor. In particular, the court noted “subsection (e)(13) does not limit the access to electronic monitoring data to the supervisee’s post-release supervision officer or any particular law enforcement agency[. . .] a supervisee can be required to ‘remain in one or more specified places’ at specific times and to ‘wear a device that permits the defendant’s compliance with the condition to be monitored electronically[.]’” Id. at 18. The limitations for warrantless searches of a PRS supervisee’s person and vehicle are different than those imposed on electronic monitoring, and the court concluded that “under these circumstances, [the police officer’s] accessing the ankle monitor data was not a ‘search’ as defined by law.” Id. at 20-21. The court also clarified that “[a]s a supervisee under PRS under [G.S.] 15A-1368.4, Defendant had a lower expectation of privacy than the offenders subject to lifetime SBM under the [State v. Grady, 259 N.C. App. 664 (2018)] caselaw.” Id. at 23.