GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2023

SESSION LAW 2023-54

SENATE BILL 327

AN ACT to conform the general statutes to the north carolina rules of appellate procedure by updating obsolete references to assignments of error and exceptions and to make other technical changes, as recommended by the general statutes commission.

The General Assembly of North Carolina enacts:

SECTION 1.  G.S. 1‑186 is repealed.

SECTION 2.  G.S. 1‑271 reads as rewritten:

§ 1‑271.  Who may appeal.

Any party aggrieved may appeal or cross‑appeal in the cases prescribed in this Chapter. A The term party aggrieved includes a party who cross assigns error in challenging the grant or denial of a motion under the Rules of Civil Procedure is a party aggrieved.Procedure.

SECTION 3.  G.S. 1‑277 reads as rewritten:

§ 1‑277.  Appeal from superior or district court judge.

(a)        An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which that affects a substantial right claimed in any action or proceeding; or which that in effect determines the action, action and prevents a judgment from which an appeal might be taken; or discontinues the action, action or grants or refuses a new trial.

(b)        Any interested party shall have has the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant defendant, or such the party may preserve his exception the party's objection for determination upon any subsequent appeal in the cause.

SECTION 4.  G.S. 1‑286 reads as rewritten:

§ 1‑286.  Justification of sureties.

The Any written undertaking on appeal under G.S. 1‑285 must be accompanied by the an affidavit of one of the sureties that he the surety is worth double the amount specified therein. in the undertaking. The respondent may except object to the sufficiency of the sureties within ten 10 days after the notice of appeal; and unless they or other sureties justify a surety justifies within the ten 10 days thereafter, after the objection, the appeal shall be regarded as if no undertaking had been given. The justification must be upon a notice of not less than five days.

SECTION 5.  G.S. 1A‑1, Rule 46, reads as rewritten:

Rule 46. Objections and exceptions.Objections.

(a)        Rulings on admissibility of evidence. – Formal exceptions are unnecessary. An objection is deemed in the following circumstances:

(1)        When there is objection to the admission of evidence on the ground that the witness is for a specified reason incompetent or not qualified or disqualified, it shall be is deemed that a like objection has been made to any subsequent admission of evidence from the witness in question. Similarly, when there is objection to the admission of evidence involving a specified line of questioning, it shall be is deemed that a like objection has been taken to any subsequent admission of evidence involving the same line of questioning.

(2)        If there is proper objection to the admission of evidence and the objection is overruled, the ruling of the court shall be is deemed excepted objected to by the party making the objection. If an objection to the admission of evidence is sustained or if the court for any reason excludes evidence offered by a party, the ruling of the court shall be is deemed excepted objected to by the party offering the evidence.

(3)        No objections are necessary with respect to questions propounded to a witness by the court or a juror but it shall be is deemed that each such question has been properly objected to by all parties to the action and that the objection has been overruled and that an exception has been taken to the ruling of the court by all parties to the action.overruled.

(b)        Pretrial rulings, interlocutory orders, trial rulings, and other orders not directed to the admissibility of evidence. – With respect to a pretrial rulings, ruling, an interlocutory orders, order, a trial rulings, and other orders ruling, or another order of the court not directed to the admissibility of evidence, formal objections and exceptions are unnecessary. In order to preserve an exception objection to any such the ruling or order or to the court's failure to make any such the ruling or order, it shall be is sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party's objection to the action of the court or makes known the action that the party desires the court to take and the party's grounds for its position. If a party has no opportunity to object or except to a ruling or order at the time it is made, the absence of an objection or exception does not thereafter prejudice that party.

(c)        Repealed by Session Laws 2001‑379, s. 6.

SECTION 6.  G.S. 15‑173 reads as rewritten:

§ 15‑173.  Demurrer to the evidence.Motion to dismiss based on the evidence.

When on the trial of any criminal action in the superior or district court, the State has introduced its evidence and rested its case, the defendant may move to dismiss the action, or for judgment as in case of nonsuit. action. If the motion is allowed, judgment shall be entered accordingly; and such the judgment shall have has the force and effect of a verdict of not guilty as to such the defendant. If the motion is refused and the defendant does not choose to introduce evidence, the case shall be submitted to the jury as in other cases, and the defendant may on appeal urge as ground for reversal, reversal the trial court's denial of his the motion without the necessity of the defendant's having taken exception objected to such the denial.

If the defendant introduces evidence, he the defendant thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have to dismiss that the defendant made prior to the introduction of his the defendant's evidence and cannot urge such the prior motion as ground for appeal. The defendant, however, may make such the motion at the conclusion of all the evidence in the case, irrespective of whether or not he the defendant made a motion for dismissal or judgment as in case of nonsuit theretofore. to dismiss beforehand. If the motion is allowed, or shall be is sustained on appeal, it shall has in all cases have the force and effect of a verdict of not guilty. If the motion is refused, the defendant may on appeal, after the jury has rendered its verdict, urge as ground for reversal the trial court's denial of his the motion made at the close of all the evidence without the necessity of the defendant's having taken exception objected to such the denial.

SECTION 7.  G.S. 15A‑1446 reads as rewritten:

§ 15A‑1446.  Requisites for preserving the right to appellate review.

(a)        Except as provided in subsection (d), (d) of this section, error may shall not be asserted upon appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection or motion. No particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court. Formal exceptions are not required, unnecessary, but when evidence is excluded a record must be made in the manner provided in G.S. 1A‑1, Rule 43(c), in order to assert upon appeal error in the exclusion of that evidence.

(b)        Failure to make an appropriate and timely motion or objection constitutes a waiver of the right to assert the alleged error upon appeal, but the appellate court may review such any errors affecting substantial rights in the interest of justice if it determines it appropriate to do so.

(c)        The making of post‑trial motions is not a prerequisite to the assertion of error on appeal.

(d)       Errors based upon any of the following grounds, which are asserted to have occurred, grounds may be the subject of appellate review even though no objection, exception objection or motion has been made in the trial division.division:

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(3)        The criminal pleading charged acts which, that, at the time they were committed, did not constitute a violation of criminal law.

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(15)      The defendant was not present at any proceeding at which his the defendant's presence was required.

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SECTION 8.  G.S. 15A‑2000 reads as rewritten:

§ 15A‑2000.  Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.

(a)        Separate Proceedings on Issue of Penalty. –

(1)        Except as provided in G.S. 15A‑2004, upon conviction or adjudication of guilt of a defendant of a capital felony in which the State has given notice of its intent to seek the death penalty, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. A capital felony is one which that may be punishable by death.

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(3)        In the proceeding there shall not be any is no requirement to resubmit evidence presented during the guilt determination phase of the case, unless a new jury is impaneled, but all such this evidence is competent for the jury's consideration in passing on punishment. Evidence may be presented as to any matter that the court deems relevant to sentence, sentence and may include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (e) and (f) of this section. Any evidence which that the court deems to have probative value may be received.

(4)        The State and the defendant or his the defendant's counsel shall be permitted to present argument for or against sentence of death. The defendant or defendant's counsel shall have has the right to the last argument.

(b)        Sentence Recommendation by the Jury. – Instructions determined by the trial judge to be warranted by the evidence shall be given by the court in its charge to the jury prior to its deliberation in determining sentence. The court shall give appropriate instructions in those cases in which evidence of the defendant's intellectual disability requires the consideration by the jury of the provisions of G.S. 15A‑2005. In all cases in which the death penalty may be authorized, the judge shall include in the judge's instructions to the jury that it must consider any aggravating circumstance or circumstances or mitigating circumstance or circumstances from the lists provided in subsections (e) and (f) of this section which may be that are supported by the evidence, evidence and shall furnish to the jury a written list of issues relating to such the aggravating or mitigating circumstance or circumstances.

After hearing the evidence, argument of counsel, and instructions of the court, the jury shall deliberate and render a sentence recommendation to the court, based upon all of the following matters:

(1)        Whether any sufficient aggravating circumstance or circumstances as enumerated in subsection (e) of this section exist.exists.

(2)        Whether any sufficient mitigating circumstance or circumstances as enumerated in subsection (f) of this section, which that outweigh the aggravating circumstance or circumstances found, exist.exists.

(3)        Based on these considerations, whether the defendant should be sentenced to death or to imprisonment in the State's prison for life.

The sentence recommendation must be agreed upon by a unanimous vote of the 12 jurors. Upon delivery of the sentence recommendation by the foreman of the jury, the jury shall be individually polled to establish whether each juror concurs and agrees to the sentence recommendation returned.

If the jury cannot, within a reasonable time, unanimously agree to its sentence recommendation, the judge shall impose a sentence of life imprisonment. The judge shall in no instance impose the death penalty when the jury cannot agree unanimously to its sentence recommendation.

(c)        Findings in Support of Sentence of Death. – When the jury recommends a sentence of death, the foreman of the jury shall sign a writing on behalf of the jury that shows all of the following:

(1)        The statutory aggravating circumstance or circumstances which that the jury finds beyond a reasonable doubt.

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(d)       Review of Judgment and Sentence. –

(1)        The judgment of conviction and sentence of death shall be is subject to automatic review by the Supreme Court of North Carolina pursuant to procedures established by the Rules of Appellate Procedure. In its review, the Supreme Court shall consider the punishment imposed as well as any errors assigned arguments raised on appeal.

(2)        The sentence of death shall be overturned and a sentence of life imprisonment imposed in lieu thereof by the Supreme Court upon a finding that the record does not support the jury's findings of any aggravating circumstance or circumstances upon which the sentencing court based its sentence of death, or upon a finding that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, or upon a finding that the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The Supreme Court may suspend consideration of death penalty cases until such time as the court determines it is prepared to make the comparisons required under this section.

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(e)        Aggravating Circumstances. – Aggravating circumstances which that may be considered are limited to the following:

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(8)        The capital felony was committed against a law‑enforcement officer, employee of the Department of Adult Correction, an employee of the Division of Juvenile Justice of the Department of Public Safety, jailer, fireman, judge or justice, former judge or justice, prosecutor or former prosecutor, juror or former juror, or witness or former witness against the defendant, while engaged in the performance of his official duties or because of the exercise of his official duty.

(9)        The capital felony was especially heinous, atrocious, or cruel.

(10)      The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which that would normally be hazardous to the lives of more than one person.

(11)      The murder for which the defendant stands convicted was part of a course of conduct in which the defendant engaged and which that included the commission by the defendant of other crimes of violence against another person or persons.

(f)        Mitigating Circumstances. – Mitigating circumstances which that may be considered include, but are not limited to, the following:

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(9)        Any other circumstance arising from the evidence which that the jury deems to have mitigating value.

SECTION 9.  G.S. 62‑90 reads as rewritten:

§ 62‑90.  Right of appeal; filing of exceptions.appeal.

(a)        Any party to a proceeding before the Commission may appeal from any final order or decision of the Commission within 30 days after the entry of such the final order or decision, or within such an additional time thereafter as may be fixed by the Commission, not to exceed 30 additional days, and by order made within 30 days, if the party aggrieved by such the decision or order shall file files with the Commission a notice of appeal and exceptions which shall set that sets forth specifically the ground or grounds on which the aggrieved party considers said decisions the decision or order to be unlawful, unjust, unreasonable or unwarranted, and including unreasonable, or unwarranted and that includes the errors alleged to have been committed by the Commission.

All other parties may give a notice of cross appeal and set out exceptions which shall set cross‑appeal that sets forth specifically the grounds on which the said party considers said the decision or order to be unlawful, unjust, unreasonable or unwarranted, and including unreasonable, or unwarranted and that includes the errors alleged to have been committed by the Commission. Such The notice of cross appeal and exceptions cross‑appeal shall be filed with the Commission within 20 days after the first notice of appeal and exceptions has been filed, or within such an additional time thereafter as may be fixed by the Commission, not to exceed 20 additional days by order made within 20 days of the first filed notice of appeal and exceptions.appeal.

(b)        Any party may appeal from all or any portion of any final order or decision of the Commission in the manner herein provided. provided in this section. Copy of the notice of appeal shall be mailed by the appealing party party, at the time of filing with the Commission, to each party to the proceeding to the addresses as they appear in the files of the Commission in the proceeding. The failure of any party, other than the Commission, to be served with or to receive a copy of the notice of appeal shall does not affect the validity or regularity of the appeal.

(c)        The Commission may on motion of any party to the proceeding or on its own motion set the exceptions objections to the final order upon which such the appeal is based for further hearing before the Commission.

(d)       The appeal shall lie lies to the appellate division of the General Court of Justice as provided in G.S. 7A‑29. The procedure for the appeal shall be as is provided by the rules of appellate procedure.

(e), (f) Repealed by Session Laws 1975, c. 391, s. 12.

(g)        Repealed by Session Laws 1983, c. 526, s. 5.

SECTION 10.  G.S. 62‑94 reads as rewritten:

§ 62‑94.  Record on appeal; extent of review.

(a)        On appeal the court shall review the record and the exceptions and assignments of error issues raised in accordance with the rules of appellate procedure, and any alleged irregularities in procedures before the Commission, not shown in the record, shall be considered under the rules of appellate procedure.

(b)        So far as necessary to the decision and where presented, the court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of any Commission action. The court may affirm or reverse the decision of the Commission, declare the same decision null and void, or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission's findings, inferences, conclusions conclusions, or decisions are:are any of the following:

(1)        In violation of constitutional provisions, orprovisions.

(2)        In excess of statutory authority or jurisdiction of the Commission, orCommission.

(3)        Made upon unlawful proceedings, orproceedings.

(4)        Affected by other errors of law, orlaw.

(5)        Unsupported by competent, material material, and substantial evidence in view of the entire record as submitted, orsubmitted.

(6)        Arbitrary or capricious.

(c)        In making the foregoing these determinations, the court shall review the whole record or such the portions thereof as may be of it that are cited by any party party, and due account shall be taken of the rule of prejudicial error. The appellant shall not be permitted to rely upon any grounds for relief on appeal which that were not set forth specifically in his the appellant's notice of appeal filed with the Commission.

(d)       The court shall also compel action of the Commission unlawfully withheld or unlawfully or unreasonably delayed.

(e)        Upon any appeal, the rates fixed or any rule, regulation, finding, determination, or order made by the Commission under the provisions of this Chapter shall be is prima facie just and reasonable.

SECTION 11.  G.S. 105‑345 reads as rewritten:

§ 105‑345.  Right of appeal; filing of exceptions.appeal.

(a)        No party to a proceeding before the Property Tax Commission may appeal from any final order or decision of the Commission unless within 30 days after the entry of such the final order or decision the party aggrieved by such the decision or order shall file files with the Commission a notice of appeal and exceptions which shall set that sets forth specifically the ground or grounds on which the aggrieved party considers said the decision or order to be unlawful, unjust, unreasonable  or unwarranted, and including unreasonable, or unwarranted and that includes the errors alleged to have been committed by the Commission.

(b)        Any party may appeal from all or any portion of any final order or decision of the Commission in the manner herein provided. provided in this section. Copy of the notice of appeal shall be mailed by the appealing party party, at the time of filing with the Commission, to each party to the proceeding to the addresses as they appear in the files of the Commission in the proceeding. The failure of any party, other than the Commission, to be served with or to receive a copy of the notice of appeal shall does not affect the validity or regularity of the appeal.

(c)        The Commission may on motion of any party to the proceeding or on its own motion set the exceptions objections to the final order upon which such the appeal is based for further hearing before the Commission.

(d)       The appeal shall lie lies to the Court of Appeals as provided in G.S. 7A‑29. The procedure for the appeal shall be as is provided by the rules of appellate procedure.

(e)        The Court of Appeals shall hear and determine all matters arising on such the appeal, as in this Article provided, and may in the exercise of its discretion assign the hearing of said the appeal to any panel of the Court of Appeals.

SECTION 12.  G.S. 105‑345.2 reads as rewritten:

§ 105‑345.2.  Record on appeal; extent of review.

(a)        On appeal the court shall review the record and the exceptions and assignments of error issues raised in accordance with the rules of appellate procedure, and any alleged irregularities in procedures before the Property Tax Commission, not shown in the record, shall be considered under the rules of appellate procedure.

(b)        So far as necessary to the decision and where presented, the court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of any Commission action. The court may affirm or reverse the decision of the Commission, declare the same decision null and void, or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the appellants have been prejudiced because the Commission's findings, inferences, conclusions conclusions, or decisions are:are any of the following:

(1)        In violation of constitutional provisions; orprovisions.

(2)        In excess of statutory authority or jurisdiction of the Commission; orCommission.

(3)        Made upon unlawful proceedings; orproceedings.

(4)        Affected by other errors of law; orlaw.

(5)        Unsupported by competent, material material, and substantial evidence in view of the entire record as submitted; orsubmitted.

(6)        Arbitrary or capricious.

(c)        In making the foregoing these determinations, the court shall review the whole record or such the portions thereof as may be of it that are cited by any party party, and due account shall be taken of the rule of prejudicial error. The appellant shall not be permitted to rely upon any grounds for relief on appeal which that were not set forth specifically in his the appellant's notice of appeal filed with the Commission.

SECTION 13.  This act is effective when it becomes law.

In the General Assembly read three times and ratified this the 15th day of June, 2023.

                                                                    s/  Phil Berger

                                                                         President Pro Tempore of the Senate

                                                                    s/  Jeff Zenger

                                                                         Presiding Officer of the House of Representatives

                                                                    s/  Roy Cooper

                                                                         Governor

Approved 3:40 p.m. this 23rd day of June, 2023