State v. Nobles

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-516

Filed: 3 July 2018

Jackson County, Nos. 12 CRS 51720, 1362–63

STATE OF NORTH CAROLINA

v.

GEORGE LEE NOBLES

Appeal by defendant from judgments entered 15 April 2016 by Judge Bradley

B. Letts in Jackson County Superior Court. Heard in the Court of Appeals 21 March

2018.

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 American1 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.

1 While we use the terms “Native American” and “Indian” interchangeably, we often use “Indian” to

comport with the language used in the federal statute at issue in this case.

STATE V. NOBLES

Opinion of the Court

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

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Opinion of the Court

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

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Opinion of the Court

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.

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Opinion of the Court

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

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Opinion of the Court

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-

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Opinion of the Court

Indian.” Among other distinguishing reasons, those cases2 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.

2United States v. Hornbuckle, 422 F.2d 391 (4th Cir. 1970) (per curium); State v. McAlhaney, 220 N.C.

387, 17 S.E.2d 352, 354 (1941); State v. Ta-Cha-Na-Tah, 64 N.C. 614 (1870).

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Opinion of the Court

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 Ҥ 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

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Opinion of the Court

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

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Opinion of the Court

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’ Second Prong

Rogers’ second prong “asks whether the defendant . . . is recognized as an

Indian by a tribe or the federal government or both.” Stymiest, 581 F.3d at 762.

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Opinion of the Court

Defendant first argues he satisfied this prong as a matter of law because he presented

evidence that he is a first descendant of an enrolled member of the EBCI, and the

EBCI recognizes all first descendants as Indians for purposes of exercising tribal

criminal jurisdiction.

Defendant relies on the Cherokee Court of the EBCI’s decision in Eastern Band

of Cherokee Indians v. Lambert, No. CR 03-0313, 2003 WL 25902446, at *2–3 (EBCI

Tribal Ct. May 29, 2003) (holding that the EBCI had tribal criminal jurisdiction over

a non-enrolled first descendant), and its subsequent decisions interpreting Lambert

as “[h]olding that First Lineal Descendants are Indians for the purposes of the

exercise of this Court’s [tribal criminal] jurisdiction,” Eastern Band of Cherokee

Indians v. Prater, No. CR 03-1616, 2004 WL 5807679, at *1 (EBCI Tribal Ct. Mar. 18,

2004); see also In re Welch, No. SC 03-13, 2003 WL 25902440, *4 (Eastern Cherokee

Ct. Oct. 31, 2003) (interpreting Lambert as holding that “first lineal descendants,

children of enrolled members who do not possess sufficient blood quanta to qualify

for enrollment themselves[,] are nevertheless subject to the criminal jurisdiction of

the Court”). Additionally, defendant relies on Rule 6 of the Cherokee Rules of

Criminal Procedure that instructs tribal magistrates when determining jurisdiction

that tribal criminal jurisdiction exists if a suspect is a first descendant. See Cherokee

Code § 15-8, Rule 6(b).

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Opinion of the Court

The State argues in relevant part that even if the EBCI recognizes all first

descendants as Indians for purposes of exercising its tribal criminal jurisdiction, this

is only one factor to consider when assessing Rogers’ second prong. We agree.

While exercising tribal criminal jurisdiction over first descendants reflects a

degree of tribal recognition, the Ninth Circuit has determined that “enrollment, and,

indeed, even eligibility therefor, is not dispositive of Indian status.” Bruce, 394 F.3d

at 1225. As tribal enrollment has been declared insufficient to satisfy Rogers’ second

prong as a matter of law, it follows that the exercise of criminal tribal jurisdiction

over first descendants is also insufficient. Cf. United States v. Cruz, 554 F.3d 840,

851 (9th Cir. 2009) (“[A] showing that a tribal court on one occasion may have

exercised jurisdiction over a defendant is of little if any consequence in satisfying the

[Indian] status element [beyond a reasonable doubt] in a § 1153 prosecution.”). As

the Ninth Circuit’s application of the Rogers test contemplates a balancing of multiple

factors to determine Indian status, we reject defendant’s argument that the EBCI’s

decision to exercise its criminal tribal jurisdiction over first descendants satisfies

Rogers’ second prong as a matter of law.

E. St. Cloud Factors

Alternatively, defendant argues, he satisfied Rogers’ second prong under the

Ninth Circuit’s test as applied by the trial court. In St. Cloud v. United States, 702

F. Supp. 1456, 1461 (D.S.D. 1988), the Central Division of the United States District

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Opinion of the Court

Court of South Dakota set forth four factors to be considered in declining order of

importance when evaluating Rogers’ second prong. The Ninth Circuit adopted these

“St. Cloud” factors, see Bruce, 394 F.3d at 1223, and its later en banc articulation of

its test instructs that “the criteria are, 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.

1. First St. Cloud Factor

The first and most important St. Cloud factor asks whether a defendant is an

enrolled member of a federally recognized tribe. Id. Here, the trial court found, and

defendant concedes, he is not an enrolled tribal member of the EBCI or any federally

recognized tribe, nor is he eligible to become an enrolled member of the EBCI, as his

4.29% Indian blood quantum fails to satisfy the minimum 16% necessary for

enrollment.

Nonetheless, defendant argues, this factor weighs in his favor because “he has

been afforded a special status as a First Descendant.” The Ninth Circuit has stated

that while descendant status “does not carry similar weight to enrollment, and should

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Opinion of the Court

not be considered determinative, it reflects some degree of recognition.” United States

v. Maggi, 598 F.3d 1073, 1082 (9th Cir. 2010), overruled on other grounds by United

States v. Zepeda, 792 F.3d 1103 (9th Cir. 2015). However, we find defendant’s first

descendant status carries little weight in this case.

First descendants are eligible for certain tribal benefits unavailable to non-

members or members of other tribes. While the evidence showed that defendant

would qualify for designation as a first descendant, it also showed that he is not

classified by the EBCI as a first descendant, and he is thus currently ineligible to

receive those benefits. The trial court’s unchallenged findings established that

individuals designated as first descendants are issued a “Letter of Descent” by the

EBCI tribal enrollment office, which is used to establish eligibility for first

descendant benefits, and that no “Letter of Descent” for defendant was found after a

search of the official documents in the tribal enrollment office. Cf. Cruz, 554 F.3d at

847 (concluding that “mere eligibility for benefits is of no consequence under [the St.

Cloud factors]” and rejecting “the dissent’s argument that mere descendant status

with the concomitant eligibility to receive benefits is effectively sufficient to

demonstrate ‘tribal recognition’ ”). Accordingly, the trial court properly determined

the evidence presented failed to satisfy the first St. Cloud factor.

2. Second St. Cloud Factor

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Opinion of the Court

The second St. Cloud factor asks whether a defendant has been recognized by

the government “through receipt of assistance available only to individuals who are

members, or are eligible to become members, of federally recognized tribes.” Zepeda,

792 F.3d at 1114. Defendant argues this factor was satisfied because he received

health care services reserved only for Indians. The record evidence indicated that

defendant received free health care services on five occasions—31 October 1985, 1

October 1987, 12 March 1989, 16 March 1989, and 28 February 1990—from the

Cherokee Indian Hospital (“CIH”), which at the time was a federally funded Indian

Health Service (“IHS”).

Applying this evidence to the second St. Cloud factor, the trial court found:

264. . . . [U]nder the second St. Cloud factor the only

evidence of government recognition of the Defendant as an

Indian is the receipt of medical services at the CIH. The

Federal government through the Indian Health Service

provide[s] benefits reserved only to Indians arising from

the unique trust relationship with the tribes. Also, the

government of the Eastern Band of Cherokee provides

additional health benefits to the enrolled members. The

only evidence Defendant presents of the receipt of health

services available only to Indians is medical care at the

CIH more than two decades ago as documented in his

medical chart. While it is true that he did receive care from

the CIH it is likewise true he sought acute care, this care

was when he was a minor and he was taken for treatment

by his mother. Since becoming an adult he has never

sought further medical care from the providers in

Cherokee. Moreover, the last time he sought care from the

CIH was over 23 years ago.

....

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Opinion of the Court

266. [E]xcept for the five visits to the CIH, there is no other

evidence Defendant received any services or assistance

reserved only to individuals recognized as Indian under the

second St. Cloud factor.

Defendant relies on United States v. LaBuff, 658 F.3d 873 (9th Cir. 2011), to

argue that receipt of free health care services from an IHS satisfies the second St.

Cloud factor. LaBuff is distinguishable because the defendant there, “since 1979, . . .

was seen at the Blackfeet Community Hospital for Well Child care services, walk-in

visits, urgent care, and mental health assistance[,]” and “since 2009, [he] sought

medical care approximately 10 to 15 times.” Id. at 879 n.8. Here, defendant only

sought medical care from the CIH five times when he was a minor, his last visit

occurring approximately twenty-two years before he was arrested on the charges at

issue in this case. Cf. Zepeda, 792 F.3d at 1113 (“In a prosecution under the IMCA,

the government must prove that the defendant was an Indian at the time of the offense

with which the defendant is charged.” (emphasis added)). The trial court properly

determined this evidence failed to sufficiently satisfy the second St. Cloud factor.

3. Third St. Cloud Factor

The third St. Cloud factor asks whether a defendant has “enjoy[ed] . . . the

benefits of affiliation with a federally recognized tribe.” Zepeda, 792 F.3d at 1114.

Defendant argues he satisfied this factor based on the same five CIH visits when he

was a minor.

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Opinion of the Court

As to this third factor, the trial court found:

267. . . . [U]nder the third St. Cloud factor the Court must

examine how Defendant has benefited from his affiliation

with the Eastern Band of Cherokee. The Defendant

suggests he has satisfied the third factor under the St.

Cloud test in that Cherokee law affords special benefits to

First Descendants. To be sure the Cherokee Code as

developed over time since the ratification of the 1986

Charter and Governing Document does afford special

benefits and opportunities to First Descendants. Whilst it

is accurate the Cherokee Code is replete with special

provisions for First Descendants in areas of real property,

education, health care, inheritance, employment and access

to the Tribal Court, save however for use of medical services

a quarter of a century ago Defendant has not demonstrated

use of any of his rights as a First Descendant of the Eastern

Band of Cherokee.

268. . . . [T]he third St. Cloud factor is ‘enjoyment’ of the

benefits of tribal affiliation. Enjoyment connotes active and

affirmative use. Such is not the case with Defendant.

Defendant directs the undersigned to no positive, active and

confirmatory use of the special benefits afforded to First

Descendants. Defendant has never ‘enjoyed’ these

opportunities which were made available for individuals

similarly situated who enjoy close family ties to the

Cherokee tribe. Rather, Defendant merely presents the

Cherokee Code and asks the undersigned to substitute

opportunity for action. To ascribe enjoyment of benefits

where none occurred would be tantamount to finding facts

where none exist.

(Emphasis added.)

In his brief, defendant challenges the following factual finding on this factor:

275. . . . [A]ccordingly after balancing all the evidence

presented to the undersigned using the Rogers test and

applying the St. Cloud factors in declining order of

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Opinion of the Court

importance, . . . while Defendant does have, barely, a small

degree of Indian blood he is not an enrolled member of the

Eastern Cherokee, never benefited from his special status

as a First Descendant and is not recognized as an Indian

by the Eastern Band of Cherokee Indians, any other

federally recognized Indian tribe or the federal

government. Therefore, the Defendant for purposes of this

motion to dismiss is not an Indian.

Specifically, defendant challenges as unsupported by the evidence the part of

this finding that he “never benefited from his special status as a First Descendant

and is not recognized as an Indian by the EBCI . . . or the federal government” because

he was recognized by the federal government when he was benefited from his first

descendant status by receiving federally-funded services from an IHS. To the degree

defendant may have benefited from his first descendant status and was recognized

by the federal government by receiving free medical care from the CIH on those five

instances last occurring when he was a minor twenty-three years before the hearing,

we conclude it is irrelevant in assessing this factor in light of the absence of evidence

that defendant enjoyed any other tribal benefits he may have been eligible to receive

based on his first descendant status. Accordingly, the trial court properly determined

this evidence failed to satisfactorily satisfy the third St. Cloud factor.

4. Fourth St. Cloud Factor

The fourth and least important St. Cloud factor asks whether a defendant is

“social[ly] recogni[zed] as someone affiliated with a federally recognized tribe through

residence on a reservation and participation in the social life of a federally recognized

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Opinion of the Court

tribe.” Zepeda, 792 F.3d at 1114. Defendant asserts he satisfied this factor because

he “lived on or near the Qualla Boundary for significant periods of time,” attended

Cherokee schools as a minor, and, after leaving prison in Florida in 2011, he

“returned to living on or near the Qualla Boundary, often with enrolled tribal

members,” “got a job on the reservation, and lived on the reservation with Carothers,

a member of another tribe.” Defendant also argues his two tattoos—an eagle and a

Native American wearing a headdress—“show an attempt to hold himself out as an

Indian.”

As to this factor, the trial court issued, inter alia, the following finding:

271. . . . [T]he Defendant simply has no ties to the Qualla

Boundary. . . . [U]nder the fourth St. Cloud factor

Defendant points to no substantive involvement in the

fabric of the Cherokee Indian community at any time. The

Defendant did reside and work on or near the Cherokee

reservation for about 14 months when his probation was

transferred from Florida to North Carolina. Yet in these

14 months near Cherokee the record is devoid of any social

involvement in the Cherokee community by the Defendant.

While the record evidence showed defendant returned to the Qualla Boundary

in 2011 for about fourteen months, resided on or near the Qualla Boundary with an

enrolled member of another tribe, and worked for a restaurant, Homestyle Fried

Chicken, located within the Qualla Boundary, no evidence showed he participated in

EBCI cultural or social events, or in any EBCI religious ceremonies during that time.

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Opinion of the Court

Myrtle Driver Johnson, a sixty-nine-year old enrolled EBCI member who has

lived on the Qualla Boundary her entire life and was bestowed the honor of “Beloved

Woman” by tribal leaders for her dedication and service to the EBCI, testified about

EBCI social and cultural life, and EBCI religious ceremonies. The trial court’s

unchallenged findings establish that Johnson is “richly versed in the history of the

Eastern Cherokee” and “deeply involved in and a leader of the Cherokee community

regarding the language, culture and tradition of the [EBCI].” Johnson testified she

participated in various EBCI social and cultural events and ceremonies on the Qualla

Boundary over the years and was unfamiliar with defendant or his enrolled mother.

Johnson also testified about the potential EBCI cultural symbolism of defendant’s

tattoos, opining that “[a]ll Native American Tribes honor the eagle” and it thus

represented nothing unique to the EBCI, and that the headdress depicted on

defendant’s tattoo was worn not by the Cherokee but by “western plains Native

Americans.” The trial court properly determined this evidence carried little weight

under the fourth St. Cloud factor.

F. Sufficiency of Factual Findings

Defendant also challenges the evidentiary sufficiency of ten of the trial court’s

278 factual findings, and eight subsections of another finding. However, most of those

findings either recite the absence of evidence pertaining to defendant’s tribal

affiliation with the EBCI as to assessing his Indian status under Rogers, or were

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Opinion of the Court

based on probation documents indicating defendant’s race was “white/Caucasian,”

which were presented after the jurisdictional hearing. Erroneous or irrelevant

findings that do not affect the trial court’s conclusions are not grounds for reversal.

See, e.g., State v. Hernandez, 170 N.C. App. 299, 305, 612 S.E.2d 420, 424 (2005)

(“[A]n order ‘will not be disturbed because of . . . erroneous findings which do not

affect the conclusions.” (citation omitted)); Goodson v. Goodson, 145 N.C. App. 356,

360, 551 S.E.2d 200, 204 (2001) (“[I]rrelevant findings in a trial court’s decision do

not warrant a reversal of the trial court.” (citations omitted)). Because we conclude

the trial court’s other factual findings adequately supported its conclusions, we

decline to address the sufficiency of those findings.

G. Conclusion

Because the evidence presented did not demonstrate that defendant is an

“Indian” or that he sufficiently satisfied any of the St. Cloud factors, the trial court

properly concluded defendant did not qualify as an Indian for criminal jurisdiction

purposes when applying the Ninth Circuit’s test. Accordingly, the trial court properly

denied defendant’s motion to dismiss the charges for lack of jurisdiction.

III. Denial of Motion for Special Jury Verdict

Defendant next asserts the superior court erred by denying his pretrial motion

to submit the issue of his Indian status to the jury for a special verdict on subject-

matter jurisdiction.

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Opinion of the Court

“[W]hen jurisdiction is challenged[ ] . . . the State must carry the burden [of

proof] and show beyond a reasonable doubt that North Carolina has jurisdiction to

try the accused.” State v. Batdorf, 293 N.C. 486, 494, 238 S.E.2d 497, 502–03 (1977).

In the territorial jurisdiction context, our Supreme Court has explained:

When jurisdiction is challenged, the defendant is

contesting the very power of this State to try him. We are

of the view that a question as basic as jurisdiction is not an

‘independent, distinct, substantive matter of exemption,

immunity or defense’ and ought not to be regarded as an

affirmative defense on which the defendant must bear the

burden of proof. Rather, jurisdiction is a matter which,

when contested, should be proven by the prosecution as a

prerequisite to the authority of the court to enter judgment.

Id. at 493, 238 S.E.2d at 502 (internal citation omitted); see also State v. Rick, 342

N.C. 91, 100–01, 463 S.E.2d 182, 186 (1995) (“[T]he State, when jurisdiction is

challenged, [is required] to prove beyond a reasonable doubt that the crime with

which defendant is charged occurred in North Carolina.” (citing Batdorf, 293 N.C. at

494, 238 S.E.2d at 502–03); other citation omitted)). However, unless sufficient

evidence is adduced to create a jury question on jurisdiction, “a jury instruction

regarding jurisdiction is not warranted.” State v. White, 134 N.C. App. 338, 340, 517

S.E.2d 664, 666 (1999) (citation omitted). The “preliminary determination that

sufficient evidence exists” to create a jury question on the factual basis of jurisdiction

is a question of law for the court. Rick, 342 N.C. at 100–01, 463 S.E.2d at 187

(citations omitted).

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Opinion of the Court

Here, defendant filed a pretrial motion to dismiss the charges against him for

lack of state criminal jurisdiction. But his motion was grounded not in a challenge to

North Carolina’s territorial jurisdiction, but in a challenge to its subject-matter

jurisdiction, based on his claim that he was an Indian. After the pretrial

jurisdictional hearing, the trial court entered an order denying defendant’s motion on

the basis that defendant was not an Indian for criminal jurisdiction purposes and the

State therefore satisfied its burden of proving jurisdiction beyond a reasonable doubt.

Upon defendant’s renewed jurisdictional motion to dismiss or, in the alternative, to

submit the issue of his Indian status to the jury for a special verdict on subject-matter

jurisdiction, the trial court entered another order denying both motions.

In this second order, the trial court reaffirmed its prior ruling that North

Carolina had criminal jurisdiction and thus denied the renewed jurisdictional motion

to dismiss on that basis. As to defendant’s alternative motion for a special

jurisdictional instruction to the jury, the trial court concluded that because the crimes

undisputedly occurred within North Carolina, and the only special instruction on

jurisdiction concerned territorial jurisdiction, such an instruction was unwarranted.

As to defendant’s specific request that his Indian status be submitted to the jury, the

trial court concluded that because it “already determined the Defendant is not an

Indian for purposes of criminal jurisdiction” and “there exists no requirement that in

order to convict the Defendant in the North Carolina state court of murder the State

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Opinion of the Court

must prove beyond a reasonable doubt that the defendant is an Indian,” submitting

that issue to the jury was unwarranted. We conclude the trial court did not err in

denying defendant’s motion for a special instruction on the issue of his Indian status

as it related to state criminal jurisdiction.

Defendant’s cited authority concerns factual matters implicating territorial

jurisdiction, not subject-matter jurisdiction. Unlike IMCA prosecutions, under which

Indian status is a jurisdictional prerequisite that the Government must prove beyond

a reasonable doubt, see Zepeda, 792 F.3d at 1110 (“Under the IMCA, ‘the defendant’s

Indian status is an essential element . . . which the government must allege in the

indictment and prove beyond a reasonable doubt.’ ” (quoting Bruce, 394 F.3d at

1229)), neither have our General Statues nor our state appellate court decisions

burdened the State when prosecuting major state-law crimes that occurred in Indian

Country to prove a defendant is not an Indian beyond a reasonable doubt. But even

if the State had such a burden, in this particular case, we conclude defendant failed

to adduce sufficient evidence to create a jury question on his Indian status.

The record evidence established that defendant failed to satisfy the first and

most important St. Cloud factor of tribal enrollment, or even eligibility for tribal

enrollment. While defendant presented evidence that on five instances during his

childhood he received free health care based on his first descendant status, he

presented no evidence he received or enjoyed any other tribal benefits based on that

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Opinion of the Court

status. Indeed, the evidence showed that while defendant would qualify to be

designated by the EBCI as a first descendant for purposes of receiving such benefits,

he was not currently recognized by the EBCI as a first descendant based on his failure

to apply for and obtain a “Letter of Descent.” While defendant returned to living on

or near the Qualla Boundary in 2011 for fourteen months, he presented no evidence

that during that time he was involved in any EBCI cultural or social activities or

events or activities, or any EBCI religious ceremonies. Finally, while defendant is

tattooed with an eagle and a Native American wearing a headdress, the State

presented evidence that the EBCI affords no unique significance to the eagle, and

that headdress was never worn during any EBCI ritual or tradition but was worn by

western plain Native Americans.

Based on defendant’s showing at the jurisdictional hearing, we conclude he

failed to adduce sufficient evidence to create a jury question as to whether he qualifies

as an Indian for criminal jurisdiction purposes. Accordingly, the trial court properly

denied defendant’s motion to submit the issue of his Indian status to the jury for a

special verdict on subject-matter jurisdiction.

IV. Denial of Motion to Suppress

Defendant contends the trial court erred by denying his motion to suppress

incriminating statements he made to police during a custodial interview after

allegedly invoking his constitutional right to counsel.

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Opinion of the Court

Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions of

law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).

Conclusions of law are reviewed de novo. State v. McCollum, 334 N.C. 208, 237, 433

S.E.2d 144, 160 (1993) (citation omitted).

The objective standard used to determine whether a custodial suspect has

unambiguously invoked his right to counsel is whether “a reasonable police officer in

the circumstances would understand the statement to be a request for an attorney.”

Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994). “But if a

suspect makes a reference to an attorney that is ambiguous or equivocal in that a

reasonable officer in light of the circumstances would have understood only that the

suspect might be invoking the right to counsel, our precedents do not require the

cessation of questioning.” Id. (citing McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.

Ct. 2204, 2209 (1991)). For instance, “if a suspect is ‘indecisive in his request for

counsel,’ the officers need not always cease questioning.” Id. at 460, 114 S. Ct. at

2356 (quoting Miranda v. Arizona, 384 U.S. 436, 485, 86 S. Ct. 1602, 1633 (1966)).

Further, even if a suspect unambiguously invokes his right to counsel during

a custodial interview, “he is not subject to further questioning until a lawyer has been

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Opinion of the Court

made available or the suspect himself reinitiates conversation.” Id. at 458, 114 S. Ct.

at 2354–55 (emphasis added) (citing Edwards v. Arizona, 451 U.S. 477, 484–85, 101

S. Ct. 1880, 1884–85 (1981)); see also Edwards, 451 U.S. at 484–85, 101 S. Ct. at 1885

(“[A]n accused . . . [after invoking his right to counsel], is not subject to further

interrogation by the authorities until counsel has been made available to him, unless

the accused himself initiates further communication, exchanges, or conversations with

the police.” (emphasis added)).

Here, the trial court found, unchallenged on appeal, that before his custodial

interview, defendant “was advised and read his Miranda . . . rights,” that he “initialed

and signed the Miranda rights form,” that he “understood his Miranda rights and at

no time subsequent to the commencement of the interview indicated he failed to

understand his Miranda rights,” and that he “then waived his Miranda rights and

spoke with law enforcement.” The trial court also issued the following unchallenged

and thus binding findings:

80. In this case Defendant said “Can I consult with a

lawyer, I mean, or anything? I mean, I-I - I did it. I’m not

laughing, man, I want to cry because it’s f[*]cked up to be

put on the spot like this.”

81. Applying an objective standard in analyzing the

statement of Defendant, the undersigned finds there never

was an assertion of a right but rather simply a question.

Further, Defendant did not stop talking after asking the

question to allow law enforcement to respond. Defendant

did not cease talking or refuse to answer more questions

but rather continued talking to investigators for the

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Opinion of the Court

entirety of the interview. The undersigned determines that

no assertion of a right to counsel was made by Defendant.

....

83. This ambiguous statement by Defendant fails to

support a finding that Miranda rights were asserted.

84. Furthermore, the undersigned has also examined the

claimed request for counsel by Defendant in the context of

the questions posed and answers given both before and

after page 58. Again, with the expanded examination of

the statement made by Defendant and considering the

context of that section of the interview, Defendant also fails

to objectively establish he unequivocally and

unambiguously invoked his Miranda rights to counsel.

85. Reviewing the entire transcript, the Defendant asked

about the attorney as a question on page 58. Law

enforcement clearly and appropriately answered the

question posed. Most telling, Det. Iadonisi in response told

Defendant he had a right to have an attorney followed

immediately by SBI Agent Oaks further clarifying and

explaining that law enforcement can never make the

decision to invoke Miranda rights for a defendant. After

answering Defendant’s question, explaining he did have

and continued to possess Miranda rights and that no

person except Defendant could elect to assert and invoke

Miranda rights, the Defendant continued to talk to law

enforcement.

86. With further import, it is essential to note that for the

entire remainder of the interview the Defendant never

again mentioned an attorney or told law enforcement he

wished to stop talking.

Our review of the video recording of defendant’s interrogation comports with

the trial court’s findings and its ultimate conclusion that defendant’s statements were

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Opinion of the Court

not obtained in violation of his constitutional rights. Merely one-tenth of a second

elapsed between the time that defendant asked, “[c]an I consult with a lawyer, I

mean, or anything?” and then stated, “I mean I – I – I did it. I’m not laughing man,

I want to cry because its f[*]cked up to be put on the spot like this.” The officers then

immediately reminded defendant of his Miranda rights, that they had just read him

those rights, that defendant “ha[d] the right to have [his attorney] here,” and that the

officers “[could] never make that choice for [him] one way or another.” After police

attempted to clarify whether defendant’s question was an affirmative assertion of his

Miranda rights, defendant declined to unambiguously assert that right, continued

communications, and never again asked about counsel for the rest of the interview.

Although defendant explicitly asked if he could consult with a lawyer,

considering the totality of the circumstances, we agree that defendant’s invocation of

his Miranda rights was ambiguous or equivocal, such that the officers were not

required to cease questioning. Defendant did not pause between the time he asked

for counsel and gave his initial confession, the officers immediately reminded

defendant of his Miranda rights to clarify if he was indeed asserting his right to

counsel, and defendant declined the offered opportunity to unambiguously assert that

right but instead continued communicating with the officers. Even if defendant’s

question could be objectively construed as an unambiguous invocation of his Miranda

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Opinion of the Court

rights, it was immediately waived when he initiated further communication.

Accordingly, the trial court properly denied defendant’s motion to suppress.

V. Motion for Appropriate Relief

After defendant’s appeal was docketed, he filed a motion for appropriate relief

(“MAR”) with this Court. See N.C. Gen. Stat. § 15A-1418(a) (2017) (authorizing the

filing of MARs in the appellate division). Section 15A-1418(b), governing the

disposition of MARs filed in the appellate division, provides in relevant part that

“[w]hen a motion for appropriate relief is made in the appellate division, the appellate

court must decide whether the motion may be determined on the basis of the

materials before it, or whether it is necessary to remand the case to the trial division

for taking evidence or conducting other proceedings[.] . . .” Id. § 15A-1418(b) (2017).

Defendant’s MAR is primarily grounded in a claim that his convictions were

obtained “in violation of the Constitution of the United States or the Constitution of

North Carolina.” See N.C. Gen. Stat. § 15A-1415(b)(3) (2017). Where, as here, “[t]he

materials before [our appellate courts] are not sufficient for us to make that

determination,” our Supreme Court has instructed that despite section 15A-1418(b)’s

“suggest[ion] that the motion be remanded to the trial court for hearing and

determination, . . . the better procedure . . . is to dismiss the motion and permit

defendant, if he so desires, to file a new motion for appropriate relief in the superior

court.” State v. Hurst, 304 N.C. 709, 712, 285 S.E.2d 808, 810 (1982) (per curiam)

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Opinion of the Court

(footnote omitted). Accordingly, we dismiss defendant’s motion without prejudice to

his right to refile a new MAR in the superior court.

VI. Clerical Error

Both parties agree the matter must be remanded to the trial court to correct a

clerical error in an order. After the jury convicted defendant of first-degree felony

murder in 12 CRS 51720, armed robbery in 12 CRS 1363, and firearm possession by

a felon in 12 CRS 1362, the trial judge rendered an oral ruling arresting judgment on

the armed-robbery conviction. The written order arresting judgment reflects the

correct file number of 12 CRS 1363; however, it incorrectly lists the offense as “possess

firearm by felon,” an offense for which defendant was separately sentenced. We

remand the matter to the trial court for the sole purpose of correcting its order

arresting judgment on 12 CRS 1363 to accurately reflect the offense of armed robbery.

VII. Conclusion

Because the evidence presented at the jurisdictional hearing failed to

satisfactorily satisfy any St. Cloud factor, the trial court properly concluded under

the Ninth Circuit’s test that defendant does not qualify as an Indian for criminal

jurisdiction purposes and thus properly denied defendant’s motions to dismiss the

charges for lack of subject-matter jurisdiction. Because the evidence of defendant’s

Indian status raised no reasonable factual jury question implicating the State’s

burden of proving North Carolina’s criminal jurisdiction, the trial court properly

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Opinion of the Court

refused defendant’s request to submit the issue of his Indian status to the jury for a

special verdict on the matter of subject-matter jurisdiction. Because defendant’s

incriminating statements were not obtained in violation of his constitutional rights,

the trial court properly denied his motion to suppress. Accordingly, we conclude

defendant received a fair trial, free of error. Additionally, because the materials

before us are insufficient to decide defendant’s MAR, we dismiss his motion without

prejudice to his right to file a new MAR in the superior court. Finally, we remand

this matter to the trial court for the sole purpose of correcting the order arresting

judgment on 12 CRS 1363 to accurately reflect the offense of armed robbery.

NO ERROR IN PART; DISMISSED IN PART; REMANDED IN PART.

Judges INMAN and BERGER concur.

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