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State v. Nobles

Court of Appeals of North Carolina

July 3, 2018

STATE OF NORTH CAROLINA
v.
GEORGE LEE NOBLES

          Heard in the Court of Appeals 21 March 2018.

          Appeal by defendant from judgments entered 15 April 2016 by Judge Bradley B. Letts in Jackson County Nos. 12 CRS 51720, 1362-63 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kathleen N. Bolton, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M. Gomez, for defendant.

          ELMORE, JUDGE.

         Defendant George Lee Nobles, a non-enrolled member of any federally recognized Native American[1] tribe but a first descendant of an enrolled member of the Eastern Band of Cherokee Indians ("EBCI"), appeals from judgments sentencing him to life in prison after a North Carolina jury convicted him of armed robbery, first-degree felony murder, and firearm possession by a felon.

         He argues the trial court erred by (1) denying his motions to dismiss the charges on the grounds that the State of North Carolina lacked subject-matter jurisdiction to prosecute him because he is an "Indian" and thus criminal jurisdiction lie exclusively in federal court under the Indian Major Crimes Act ("IMCA"), 18 U.S.C. § 1153 (2013); (2) denying his request to submit the question of his Indian status to the jury for a special verdict on subject-matter jurisdiction; and (3) denying his motion to suppress incriminating statements he made to police during a custodial interview after allegedly invoking his right to counsel. Defendant has also (4) filed a motion for appropriate relief ("MAR") with this Court, alleging that his convictions were obtained in violation of his constitutional rights. Finally, defendant (5) requests we remand the matter to the trial court with instructions to correct a clerical error in its order arresting judgment on the armed-robbery conviction, since although that order lists the correct file number of 12 CRS 1363, it lists the wrong offense of firearm possession by a felon.

         As to the first three issues presented, we hold there was no error. As to the MAR, we dismiss the motion without prejudice to defendant's right to file a new MAR in the superior court. As to the clerical error, we remand the matter to the trial court with instructions to correct its order by listing the accurate offense of armed robbery.

         I. Background

         On 30 September 2012, Barbara Preidt, a non-Indian, was robbed at gunpoint and then fatally shot outside the Fairfield Inn in the Qualla Boundary, land held in trust by the United States for the EBCI. On 30 November 2012, officers of the Cherokee Indian Police Department arrested defendant, Dwayne Edward Swayney, and Ashlyn Carothers for Preidt's robbery and murder. Soon after, tribal, federal, and state prosecutors conferred together to determine which charges would be brought and in which sovereign government criminal jurisdiction was proper for each defendant. After discovering that Swayney was an enrolled tribal member of the EBCI, and that Carothers was an enrolled tribal member of the Cherokee Nation of Oklahoma, authorities brought these two defendants before an EBCI tribal magistrate. After discovering that defendant was not an enrolled member of any federally recognized tribe, the three sovereignties agreed that North Carolina would exercise its criminal jurisdiction to prosecute him, and authorities brought defendant before a Jackson County magistrate, charging him with armed robbery, murder, and firearm possession by a felon.

         In August 2013, defendant moved to dismiss those charges for lack of jurisdiction. He argued North Carolina lacked subject-matter jurisdiction because he was an Indian, and thus the offenses were covered by the IMCA, which provides for exclusive federal jurisdiction over "major crimes" committed by "Indians" in "Indian Country." See 18 U.S.C. § 1153. After a two-day pretrial jurisdictional hearing, the state trial court judge, applying a Ninth Circuit test to determine if someone qualifies as an Indian for purposes of criminal jurisdiction, see United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), concluded in a detailed forty-two page order entered on 26 November 2013 that defendant was not an Indian and thus denied defendant's motion to dismiss for lack of subject-matter jurisdiction. On 18 December 2013, the trial court granted defendant's motion to stay criminal proceedings pending resolution of his appeal from its 26 November 2013 order. On 30 January 2014, defendant petitioned our Supreme Court for certiorari review of that order, which it denied on 11 June 2014. On 23 June 2014, the trial court dissolved the stay.

         In March 2016, defendant moved to suppress incriminating statements he made to police during a custodial interview, which the trial court denied by an order entered nunc pro tunc on 24 March. Also in March, defendant renewed his motion to dismiss the charges for lack of state criminal jurisdiction and moved, alternatively, to submit the issue of his Indian status to the jury for a special verdict on subject-matter jurisdiction. By another order entered nunc pro tunc on 24 March, the trial court denied both motions, reaffirming its prior ruling that criminal jurisdiction properly lie in North Carolina, and concluding that a special instruction to the jury on defendant's Indian status as it implicated North Carolina's subject-matter jurisdiction was unwarranted.

         From 28 March until 15 April 2016, defendant was tried in Jackson County Superior Court, yielding jury convictions of armed robbery, first-degree felony murder, and firearm possession by a felon. The trial court arrested judgment on the armed-robbery conviction; entered a judgment on the murder conviction, sentencing defendant to life imprisonment without parole; and entered another judgment on the firearm-possession-by-a-felon conviction, sentencing defendant to an additional fourteen to twenty-six months in prison. Defendant appeals.

         II. Arguments

         On appeal, defendant asserts the trial court erred by (1) denying his motions to dismiss the state-law charges for lack of subject-matter jurisdiction because North Carolina was preempted from prosecuting him under the IMCA; (2) denying his request to submit the issue of his Indian status to the jury for a special verdict on subject-matter jurisdiction because he presented sufficient evidence at the jurisdictional hearing from which a jury could find that he is an Indian, and he thus raised a factual issue as to jurisdiction; and (3) denying his motion to suppress the incriminating statements he made to police during his custodial interview because he invoked his right to counsel. Defendant also asserts (4) the case must be remanded to correct a clerical error.

         III. Denial of Motion to Dismiss

         Defendant first asserts the State of North Carolina lacked criminal jurisdiction to prosecute him because he is an "Indian" and thus the IMCA applied to preempt state criminal jurisdiction. See 18 U.S.C. § 1153 (providing for exclusive federal jurisdiction when an "Indian" commits certain enumerated "major crimes" in "Indian Country"). The State asserts North Carolina enjoys concurrent criminal jurisdiction over all crimes committed in the Qualla Boundary, regardless of whether a defendant is an Indian. Alternatively, the State argues that even if the IMCA would preempt North Carolina from exercising criminal jurisdiction over these major crimes if they occurred in the Qualla Boundary, it is inapplicable here because defendant is not an "Indian."

         A. Review Standard

         "Whether a trial court has subject-matter jurisdiction is a question of law, reviewed de novo on appeal." State v. Herman, 221 N.C.App. 204, 209, 726 S.E.2d 863, 866 (2012) (citing State v. Abbott, 217 N.C.App. 614, 616, 720 S.E.2d 437, 439 (2011)).

         B. IMCA Preempts State Criminal Jurisdiction

         The State first argues that Fourth Circuit and North Carolina precedent establishes that "North Carolina at least has concurrent criminal jurisdiction over the Qualla Boundary without regard to whether the defendant is an Indian or non-Indian." Among other distinguishing reasons, those cases[2] are not controlling because they were decided before United States v. John, 437 U.S. 634, 98 S.Ct. 2541 (1978) (holding that the State of Mississippi lacked criminal jurisdiction over a Choctaw Indian for a major crime committed on the Choctaw Reservation pursuant to the IMCA, regardless of Choctaw Indians' dual status as citizens of Mississippi and members of a federally recognized Indian tribe). Cf. Eastern Band of Cherokee Indians v. Lynch, 632 F.2d 373, 380 (4th Cir. 1980) (relying on John's rationale to hold that, although EBCI Indians enjoy dual status as "citizens of North Carolina and Indians living on a federally held reservation," North Carolina lacked authority to impose an income tax on EBCI tribal members who derived their income from activities on the reservation).

         "[T]he exercise of state-court jurisdiction . . . is preempted by federal law. . . . upon a showing of congressional intent to 'occupy the field' and prohibit parallel state action." Jackson Cty. v. Swayney, 319 N.C. 52, 56, 352 S.E.2d 413, 415-16 (1987) (citations omitted). The IMCA provides in pertinent part:

(a) Any Indian who commits against . . . [any] other person . . . murder, . . . [or] robbery[ ] . . . within . . . Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

18 U.S.C. § 1153(a) (emphasis added). This language demonstrates clear Congressional intent for "exclusive" federal criminal jurisdiction ousting parallel state action when the IMCA applies. See Negonsott v. Samuels, 507 U.S. 99, 102-03, 113 S.Ct. 1119, 1121-22 (1993) ("As the text of § 1153[ ] . . . and our prior cases make clear, federal jurisdiction over the offenses covered by the [IMCA] is 'exclusive' of state jurisdiction." (citations omitted)); see also John, 437 U.S. at 651, 98 S.Ct. at 2550 (affirming that "§ 1153 ordinarily is pre-emptive of state jurisdiction when it applies").

         Accordingly, when an "Indian" commits one of the enumerated "major crimes" in the "Indian Country" of the Qualla Boundary, the IMCA would ordinarily oust North Carolina's criminal jurisdiction. Murder and armed robbery are "major crimes" under the IMCA, and the offenses here were committed in undisputed "Indian Country." See Lynch, 632 F.2d at 380. At issue is whether defendant qualifies as an "Indian," such that the IMCA applied to preempt North Carolina from exercising its state criminal jurisdiction.

         C. The Rogers Test

         Defendant claims Indian status with the EBCI. Both parties concede the issue of whether someone qualifies as an Indian under the IMCA is an issue of first impression for both the Fourth Circuit and our state appellate courts. While the ICMA does not explicate who qualifies as an "Indian" for federal criminal jurisdiction purposes, to answer this question federal circuit courts of appeal employ a two-pronged test suggested by United States v. Rogers, 45 U.S. 567, 573, 11 L.Ed. 1105 (1846). To satisfy the first prong, a defendant must have some Indian blood; to satisfy the second, a defendant must be recognized as an Indian by a tribe and/or the federal government. See, e.g., United States v. Zepeda, 792 F.3d 1103, 1106-07 (9th Cir. 2015) (en banc) (interpreting Rogers as requiring the "government [to] prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, the federally recognized tribe"); United States v. Stymiest, 581 F.3d 759, 762 (8th Cir. 2009) ("The [IMCA] does not define Indian, but the generally accepted test- adapted from . . . Rogers[ ] . . . -asks whether the defendant (1) has some Indian blood, and (2) is recognized as an Indian by a tribe or the federal government or both."). Here, the trial court found, and neither party disputes, that Rogers' first prong was satisfied because defendant has an Indian blood quantum of 11/256 or 4.29%. At issue is Rogers' second prong.

         While the Fourth Circuit has not addressed how to apply Rogers to determine whether someone qualifies as an Indian, there is a federal circuit split in assessing Rogers' second prong. The Ninth Circuit considers only the following four factors and "in declining order of importance":

(1) enrollment in a federally recognized tribe; (2) government recognition formally and informally through receipt of assistance available only to individuals who are members, or are eligible to become members, of federally recognized tribes; (3) enjoyment of the benefits of affiliation with a federally recognized tribe; (4) social recognition as someone affiliated with a federally recognized tribe through residence on a reservation and participation in the social life of a federally recognized tribe.

Zepeda, 792 F.3d at 1114. The Eighth Circuit also considers these factors but assigns them no order of importance, other than tribal enrollment which it deems dispositive of Indian status, and allows for the consideration of other factors, such as whether a defendant has been subjected to tribal court jurisdiction and whether a defendant has held himself out as an Indian. See Stymiest, 581 F.3d at 763-66.

         Here, the trial court applied the Ninth Circuit's test and determined defendant was not an Indian for criminal jurisdiction purposes. Because defendant would not qualify as an Indian under either test, we find no error in the trial court's denial of his motion to dismiss. Cf. State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650 (1987) ("A correct decision of a lower court will not be disturbed on review simply because an insufficient or superfluous reason is assigned. The question for review is whether the ruling of the trial court was correct and not whether the reason given therefor is sound or tenable." (citing State v. Blackwell, 246 N.C. 642, 644, 99 S.E.2d 867, 869 (1957)).

         D. Rogers&#39 ...


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