FILED SENATE
Mar 16, 2023
GENERAL ASSEMBLY OF NORTH CAROLINA
S.B. 327
SESSION 2023 PRINCIPAL CLERK
S D
SENATE BILL DRS15100-MUz-5
Short Title: GSC Assignments of Error. (Public)
Sponsors: Senators Galey and Overcash (Primary Sponsors).
Referred to:
1 A BILL TO BE ENTITLED
2 AN ACT TO CONFORM THE GENERAL STATUTES TO THE NORTH CAROLINA
3 RULES OF APPELLATE PROCEDURE BY UPDATING OBSOLETE REFERENCES TO
4 "ASSIGNMENTS OF ERROR" AND "EXCEPTIONS" AND TO MAKE OTHER
5 TECHNICAL CHANGES, AS RECOMMENDED BY THE GENERAL STATUTES
6 COMMISSION.
7 The General Assembly of North Carolina enacts:
8 SECTION 1. G.S. 1-186 is repealed.
9 SECTION 2. G.S. 1-271 reads as rewritten:
10 "§ 1-271. Who may appeal.
11 Any party aggrieved may appeal or cross-appeal in the cases prescribed in this Chapter. A
12 The term "party aggrieved" includes a party who cross assigns error in challenging the grant or
13 denial of a motion under the Rules of Civil Procedure is a party aggrieved.Procedure."
14 SECTION 3. G.S. 1-277 reads as rewritten:
15 "§ 1-277. Appeal from superior or district court judge.
16 (a) An appeal may be taken from every judicial order or determination of a judge of a
17 superior or district court, upon or involving a matter of law or legal inference, whether made in
18 or out of session, which that affects a substantial right claimed in any action or proceeding; or
19 which that in effect determines the action, action and prevents a judgment from which an appeal
20 might be taken; or discontinues the action, action or grants or refuses a new trial.
21 (b) Any interested party shall have has the right of immediate appeal from an adverse
22 ruling as to the jurisdiction of the court over the person or property of the defendant defendant,
23 or such the party may preserve his exception the party's objection for determination upon any
24 subsequent appeal in the cause."
25 SECTION 4. G.S. 1-286 reads as rewritten:
26 "§ 1-286. Justification of sureties.
27 The Any written undertaking on appeal under G.S. 1-285 must be accompanied by the an
28 affidavit of one of the sureties that he the surety is worth double the amount specified therein. in
29 the undertaking. The respondent may except object to the sufficiency of the sureties within ten
30 10 days after the notice of appeal; and unless they or other sureties justify a surety justifies within
31 the ten 10 days thereafter, after the objection, the appeal shall be regarded as if no undertaking
32 had been given. The justification must be upon a notice of not less than five days."
33 SECTION 5. G.S. 1A-1, Rule 46, reads as rewritten:
34 "Rule 46. Objections and exceptions.Objections.
35 (a) Rulings on admissibility of evidence. – Formal exceptions are unnecessary. An
36 objection is deemed in the following circumstances:
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1 (1) When there is objection to the admission of evidence on the ground that the
2 witness is for a specified reason incompetent or not qualified or disqualified,
3 it shall be is deemed that a like objection has been made to any subsequent
4 admission of evidence from the witness in question. Similarly, when there is
5 objection to the admission of evidence involving a specified line of
6 questioning, it shall be is deemed that a like objection has been taken to any
7 subsequent admission of evidence involving the same line of questioning.
8 (2) If there is proper objection to the admission of evidence and the objection is
9 overruled, the ruling of the court shall be is deemed excepted objected to by
10 the party making the objection. If an objection to the admission of evidence is
11 sustained or if the court for any reason excludes evidence offered by a party,
12 the ruling of the court shall be is deemed excepted objected to by the party
13 offering the evidence.
14 (3) No objections are necessary with respect to questions propounded to a witness
15 by the court or a juror but it shall be is deemed that each such question has
16 been properly objected to by all parties to the action and that the objection has
17 been overruled and that an exception has been taken to the ruling of the court
18 by all parties to the action.overruled.
19 (b) Pretrial rulings, interlocutory orders, trial rulings, and other orders not directed to the
20 admissibility of evidence. – With respect to a pretrial rulings, ruling, an interlocutory orders,
21 order, a trial rulings, and other orders ruling, or another order of the court not directed to the
22 admissibility of evidence, formal objections and exceptions are unnecessary. In order to preserve
23 an exception objection to any such the ruling or order or to the court's failure to make any such
24 the ruling or order, it shall be is sufficient if a party, at the time the ruling or order is made or
25 sought, makes known to the court the party's objection to the action of the court or makes known
26 the action that the party desires the court to take and the party's grounds for its position. If a party
27 has no opportunity to object or except to a ruling or order at the time it is made, the absence of
28 an objection or exception does not thereafter prejudice that party.
29 (c) Repealed by Session Laws 2001-379, s. 6."
30 SECTION 6. G.S. 15-173 reads as rewritten:
31 "§ 15-173. Demurrer to the evidence.Motion to dismiss based on the evidence.
32 When on the trial of any criminal action in the superior or district court, the State has
33 introduced its evidence and rested its case, the defendant may move to dismiss the action, or for
34 judgment as in case of nonsuit. action. If the motion is allowed, judgment shall be entered
35 accordingly; and such the judgment shall have has the force and effect of a verdict of "not guilty"
36 as to such the defendant. If the motion is refused and the defendant does not choose to introduce
37 evidence, the case shall be submitted to the jury as in other cases, and the defendant may on
38 appeal urge as ground for reversal, reversal the trial court's denial of his the motion without the
39 necessity of the defendant's having taken exception objected to such the denial.
40 If the defendant introduces evidence, he the defendant thereby waives any motion for
41 dismissal or judgment as in case of nonsuit which he may have to dismiss that the defendant
42 made prior to the introduction of his the defendant's evidence and cannot urge such the prior
43 motion as ground for appeal. The defendant, however, may make such the motion at the
44 conclusion of all the evidence in the case, irrespective of whether or not he the defendant made
45 a motion for dismissal or judgment as in case of nonsuit theretofore. to dismiss beforehand. If
46 the motion is allowed, or shall be is sustained on appeal, it shall has in all cases have the force
47 and effect of a verdict of "not guilty." If the motion is refused, the defendant may on appeal, after
48 the jury has rendered its verdict, urge as ground for reversal the trial court's denial of his the
49 motion made at the close of all the evidence without the necessity of the defendant's having taken
50 exception objected to such the denial."
51 SECTION 7. G.S. 15A-1446 reads as rewritten:
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1 "§ 15A-1446. Requisites for preserving the right to appellate review.
2 (a) Except as provided in subsection (d), (d) of this section, error may shall not be
3 asserted upon appellate review unless the error has been brought to the attention of the trial court
4 by appropriate and timely objection or motion. No particular form is required in order to preserve
5 the right to assert the alleged error upon appeal if the motion or objection clearly presented the
6 alleged error to the trial court. Formal exceptions are not required, unnecessary, but when
7 evidence is excluded a record must be made in the manner provided in G.S. 1A-1, Rule 43(c), in
8 order to assert upon appeal error in the exclusion of that evidence.
9 (b) Failure to make an appropriate and timely motion or objection constitutes a waiver of
10 the right to assert the alleged error upon appeal, but the appellate court may review such any
11 errors affecting substantial rights in the interest of justice if it determines it appropriate to do so.
12 (c) The making of post-trial motions is not a prerequisite to the assertion of error on
13 appeal.
14 (d) Errors based upon any of the following grounds, which are asserted to have occurred,
15 grounds may be the subject of appellate review even though no objection, exception objection or
16 motion has been made in the trial division.division:
17 …
18 (3) The criminal pleading charged acts which, that, at the time they were
19 committed, did not constitute a violation of criminal law.
20 …
21 (15) The defendant was not present at any proceeding at which his the defendant's
22 presence was required.
23 …."
24 SECTION 8. G.S. 15A-2000 reads as rewritten:
25 "§ 15A-2000. Sentence of death or life imprisonment for capital felonies; further
26 proceedings to determine sentence.
27 (a) Separate Proceedings on Issue of Penalty. –
28 (1) Except as provided in G.S. 15A-2004, upon conviction or adjudication of guilt
29 of a defendant of a capital felony in which the State has given notice of its
30 intent to seek the death penalty, the court shall conduct a separate sentencing
31 proceeding to determine whether the defendant should be sentenced to death
32 or life imprisonment. A capital felony is one which that may be punishable by
33 death.
34 …
35 (3) In the proceeding there shall not be any is no requirement to resubmit evidence
36 presented during the guilt determination phase of the case, unless a new jury
37 is impaneled, but all such this evidence is competent for the jury's
38 consideration in passing on punishment. Evidence may be presented as to any
39 matter that the court deems relevant to sentence, sentence and may include
40 matters relating to any of the aggravating or mitigating circumstances
41 enumerated in subsections (e) and (f) of this section. Any evidence which that
42 the court deems to have probative value may be received.
43 (4) The State and the defendant or his the defendant's counsel shall be permitted
44 to present argument for or against sentence of death. The defendant or
45 defendant's counsel shall have has the right to the last argument.
46 (b) Sentence Recommendation by the Jury. – Instructions determined by the trial judge
47 to be warranted by the evidence shall be given by the court in its charge to the jury prior to its
48 deliberation in determining sentence. The court shall give appropriate instructions in those cases
49 in which evidence of the defendant's intellectual disability requires the consideration by the jury
50 of the provisions of G.S. 15A-2005. In all cases in which the death penalty may be authorized,
51 the judge shall include in the judge's instructions to the jury that it must consider any aggravating
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1 circumstance or circumstances or mitigating circumstance or circumstances from the lists
2 provided in subsections (e) and (f) of this section which may be that are supported by the
3 evidence, evidence and shall furnish to the jury a written list of issues relating to such the
4 aggravating or mitigating circumstance or circumstances.
5 After hearing the evidence, argument of counsel, and instructions of the court, the jury shall
6 deliberate and render a sentence recommendation to the court, based upon all of the following
7 matters:
8 (1) Whether any sufficient aggravating circumstance or circumstances as
9 enumerated in subsection (e) of this section exist.exists.
10 (2) Whether any sufficient mitigating circumstance or circumstances as
11 enumerated in subsection (f) of this section, which that outweigh the
12 aggravating circumstance or circumstances found, exist.exists.
13 (3) Based on these considerations, whether the defendant should be sentenced to
14 death or to imprisonment in the State's prison for life.
15 The sentence recommendation must be agreed upon by a unanimous vote of the 12 jurors.
16 Upon delivery of the sentence recommendation by the foreman of the jury, the jury shall be
17 individually polled to establish whether each juror concurs and agrees to the sentence
18 recommendation returned.
19 If the jury cannot, within a reasonable time, unanimously agree to its sentence
20 recommendation, the judge shall impose a sentence of life imprisonment. The judge shall in no
21 instance impose the death penalty when the jury cannot agree unanimously to its sentence
22 recommendation.
23 (c) Findings in Support of Sentence of Death. – When the jury recommends a sentence
24 of death, the foreman of the jury shall sign a writing on behalf of the jury that shows all of the
25 following:
26 (1) The statutory aggravating circumstance or circumstances which that the jury
27 finds beyond a reasonable doubt.
28 …
29 (d) Review of Judgment and Sentence. –
30 (1) The judgment of conviction and sentence of death shall be is subject to
31 automatic review by the Supreme Court of North Carolina pursuant to
32 procedures established by the Rules of Appellate Procedure. In its review, the
33 Supreme Court shall consider the punishment imposed as well as any errors
34 assigned arguments raised on appeal.
35 (2) The sentence of death shall be overturned and a sentence of life imprisonment
36 imposed in lieu thereof by the Supreme Court upon a finding that the record
37 does not support the jury's findings of any aggravating circumstance or
38 circumstances upon which the sentencing court based its sentence of death, or
39 upon a finding that the sentence of death was imposed under the influence of
40 passion, prejudice, or any other arbitrary factor, or upon a finding that the
41 sentence of death is excessive or disproportionate to the penalty imposed in
42 similar cases, considering both the crime and the defendant. The Supreme
43 Court may suspend consideration of death penalty cases until such time as the
44 court determines it is prepared to make the comparisons required under this
45 section.
46 …
47 (e) Aggravating Circumstances. – Aggravating circumstances which that may be
48 considered are limited to the following:
49 …
50 (8) The capital felony was committed against a law-enforcement officer,
51 employee of the Department of Adult Correction, an employee of the Division
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1 of Juvenile Justice of the Department of Public Safety, jailer, fireman, judge
2 or justice, former judge or justice, prosecutor or former prosecutor, juror or
3 former juror, or witness or former witness against the defendant, while
4 engaged in the performance of his official duties or because of the exercise of
5 his official duty.
6 (9) The capital felony was especially heinous, atrocious, or cruel.
7 (10) The defendant knowingly created a great risk of death to more than one person
8 by means of a weapon or device which that would normally be hazardous to
9 the lives of more than one person.
10 (11) The murder for which the defendant stands convicted was part of a course of
11 conduct in which the defendant engaged and which that included the
12