Episode 10: NC Criminal Debrief

[00:00:00.858] [SPEAKER_00] Welcome everybody to episode 10 of the North Carolina Criminal Debrief podcast. This is a show dedicated to covering criminal and related law news from North Carolina and beyond. I'm your host, Phil Dixon. I'm a faculty member here at the School of Government and director of the public defense education team for the school. I'm here in the studio as always with my friend and studio wizard, Paul Bonner. The show would not be possible without his expertise, so big thanks as usual to Paul. We've got tons of stuff to cover this episode, so let's dive right in. First, I wanted to touch base on something we've talked about a couple of times before on the show. There's an update on the Diaz-Thomas case. This is the case where it deals with the state's practice of putting a case into VL status or dismissed with leave status. That's when the state basically takes it off the calendar. It's no longer pending in court, but the charge is still out there for if and when the defendant reappears, he can be rearrested and process be reinstituted and the statute of limitations is told. This dealt with that issue and really whether and to what extent the defendant has a way to sort of force the case to be put back on the calendar. Apparently, Wake County has a policy of refusing to reinstate these cases if it's a DWI, if it's a driving while impaired charge or some other implied consent offense. If the defendant misses court and this case gets put into VL status, they will only put it back on the calendar if the defendant agrees to plead guilty as charged, and they have to waive any and all rights to an appeal of the conviction from district court to Superior, where you would normally be entitled to what's known as trial de novo in front of a jury. Mr. Diaz-Tomas found himself in this situation. He actually missed court a couple of times. And when he showed back up, this was the situation he found himself confronted with. He challenged this practice as a violation of his speedy trial rights under the Sixth Amendment, as well as a due process violation. And, you know, also pointing to a statute in Chapter 20 that says case has to be recalendared after the defendant reappears. All of these challenges were rejected at the trial court level, the court of appeals level, and the state Supreme Court. They all rejected this argument and basically said, you had your chance, they put it on once for you, and then you missed court a second time, that's it. So Mr. Diaz-Tomas sought review at the U.S. Supreme Court. That's what we've talked about before. I and I think others had high hopes that the high court was going to take a bite at this. There was two amicus briefs filed by sort of national level organizations in support of the Supreme Court reviewing the matter. And I thought the defendant's brief at the U.S. Supreme Court was just excellent and very well written by a prominent Supreme Court litigator. But recently-ish over the summer, the court denied review. So apparently there were not four votes to hear the matter. So that North Carolina State Supreme Court opinion in D.S. Thomas stands. It will not be challenged at the U.S. Supreme Court. That's the law of the land for now. Now, we talked before about the state attorney general's argument at the Supreme Court against review, why the court should not hear the matter. Their argument, I think, can be boiled down to the defendant just used the wrong procedure here. He doesn't get to come in and demand that the state put the recalendar the matter for trial, but he can move to dismiss the matter at any time. Should have done that. Didn't do it. So that's really nothing to really see here. And that's true as far as it goes. Mr. Diaz-Thomas in the trial court level, he argued he was entitled and constitutionally entitled to have the case put back on and tried to have his trial. He didn't specifically move to dismiss as far as I'm aware. Now, at the time, that struck me as kind of a strange distinction that the AG was making. Moving to dismiss is sort of an adequate substitute for a trial in district court and a trial de novo in superior court. But I think that's what we're left with for the time being. And, you know, I want to clarify, too, the fact that the U.S. Supreme Court denied cert, you know, refused to review the state Supreme Court's decision. That's not necessarily an endorsement of the opinion or of the AG's argument in the state's brief in opposition. But it does mean that defenders now have to work within these lines of the Diaz-Thomas case. And my guess is that given it's out there now in a published opinion, sort of endorsing to some extent this practice, we will likely see the practice expand. So what do we do? Well, the court in D.S. Thomas noted, hey, the defendant is free to pursue any other legal remedies that we're not addressing here. So, you know, again, he was basically saying, you got to put it back on as a matter of the Fifth and Sixth Amendment. And the statute requires that you put it back on. And the court said no. But, hey, you might have other legal remedies. We're not going to decide what those are or how those work right now. But there are other things you can do. That leaves a little door open. If you take that and couple it with the Attorney General's brief in opposition at the U.S. Supreme Court, where they explicitly argue, hey, you have to move to dismiss for speedy trial or any other constitutional violation in the trial court, and you do that under 15A-954, that's the statute that says, you know, here are the grounds for motions to dismiss. It includes flagrant violations of the defendant's constitutional rights. So if you're dealing with this issue, defendant fails to appear, the state takes a dismissal with leave, and then refuses to recalendar after the defendant shows back up, that apparently is what you needed to do. You need to move to dismiss, you know, perhaps after some period of time, perhaps after asking a couple of times to sort of get the speedy trial clock running again and, you know, have enough time pass where the delay is no longer overwhelmingly the defendant's fault. And I think that's going to vary case to case depending on the facts. point to that language in Diaz-Thomas about other legal remedies, and then point to that AG's argument against cert that they made to the U.S. Supreme Court, and then try to distinguish your facts from the facts of Diaz-Thomas. You know, Mr. Diaz-Thomas missed court twice, I think, before getting stuck with this VL indefinitely or finding himself in this situation where it's like plead or leave it hanging forever, right? There still may be some analogies to the cases that really the defendant was pointing to in support of his arguments here. There was Klopfer v. North Carolina. That's an old speedy trial case from North Carolina. Striking down our former practice of what was called NOLI PROS. That's where the state does something very similar to what we're talking about here. Basically takes the case off the calendar. and can put it back on in its discretion and only in its discretion. The defendant has no way to force it. Well, in Klopfer, the U.S. Supreme Court struck that practice down as a Sixth Amendment speedy trial violation. The defendant in D.S. Thomas was also pointing to Simeon v. Hardin. That's our case in North Carolina from the state Supreme Court about due process rights of the defendant in the context of the prosecutor's calendaring authority. And it says, When the state is intentionally abusing its authority to calendar the cases in a way that's designed to force pleas or coerce the defendant to do something or give up some right, that can become a due process violation. You'll make your motion, you'll distinguish your facts, analogize to these cases, and then just argue those speedy trial factors. What's the length of the delay? What are the reasons for delay? When did the defendant assert his right? And what, if any, prejudice can you show? How do you tee this up the best? Again, I think you need to ask and ask again for reinstatement in writing, make a record, file something with the court asking for the matter to be reinstated. Even though you're not entitled to that necessarily under the logic and holding of Diaz-Thomas, you're at least asserting your right to tee up the motion later. And then, as I mentioned, you want to compare the time that the defendant was in the wind versus the time that he's been back and asking actively to have a trial. And once you've done that and asserted that, then you're at least getting that third factor of the defendants asserted the right. And then point out whatever facts you can in support of a prejudice argument. These are the common grounds for prejudice that I think that'll exist in almost any case like this that existed for Mr. D.S. Thomas where my license is indefinitely suspended. I can't get a license until this case is resolved. I'm under this cloud of constant suspicion where I have a pending charge. Someone looks and checks my record and I see I have an unresolved driving while impaired charge. And that all affects my ability to travel, get to work, to get a job in the first place. In individual cases, there may be other things as well. file this motion to dismiss. I think, you know, it's reasonable depending on how distinct your case is from the facts in D.S. Thomas. You could also say if the court's not inclined to go all the way to dismissal for a speedy trial violation, maybe we could just reinstate the case and put it back on the calendar. Another potential angle here is the trial courts have this inherent authority to dismiss a matter just for failure to prosecute. We saw this in a recent-ish case, probably 2017 or so, State v. Loftus. This was a case from my home district of Pitt County where I think the state lost a suppression motion at the district court level and was ordered to call the case for trial, and they just refused to. They were like, I'm not calling the case. where the prosecution just refused to call the case despite the court ordering it to, the trial court dismissed it. And that was affirmed on appeal with the Court of Appeals pointing to this inherent authority to say, if they're not going to prosecute it at some point, it has to go away. So, combining all these arguments, you know, any due process argument you can put together, the speedy trial factors, the failure to prosecute, I think that's the way to sort of try and deal with this issue, file your motions to dismiss, and then keep filing it. And after some period of time, that speedy trial clock will have run. And at that point, the constitutional remedy will be to dismiss the case. That's funny to me that that was the state's argument and that's what the state would want as a result. I mean, I can see on one hand where they don't want to deal with having to try some DWI three, four, five, six, seven years later because that may greatly prejudice their team. But on the other hand, you know, dismissal outright of the case, regardless of the strength of the evidence, strikes me as extreme result when perhaps it's not been that long. Perhaps the evidence is still around. A trial is still feasible. And, you know, perhaps it's perhaps the prosecutors are taking this into account when deciding whether to proceed and reinstate a case that's NBL status or whether not to. Listeners, I'd love to hear from you, prosecutors, defenders, judges, anyone, what you've seen with this, how this goes in practice. So we'll see. To the extent you can show that the state is using its calendar authority like this in an effort to obtain an unfair advantage or basically as a litigation tactic, that reason for the delay counts heavily against the state, at least in the traditional speedy trial analysis. When you have your motion to dismiss, I think you have to demand a hearing. And I think you need to be prepared to present evidence. I mean, that was part of what the AG argued, argued against the defendant's position at the U.S. Supreme Court was like, well, we don't really have a lot of record evidence here. There wasn't much that had really been developed below. There were some affidavits that had been submitted in support. And affidavits are good. Don't get me wrong. But I think calling witnesses at a hearing and actually getting a transcription of the hearing That would be the best way to get this sorted up to see if we could get the state appellate courts to either distinguish this case or provide a little more context for what a defendant is supposed to do when they're left in this limbo situation. I know this issue is not going away soon. I know this is still going on in Wake County. My strong suspicion is that this will be back before the state appellate division before too long. not all groundbreaking stuff. We've talked about this a couple of times, but this is just an interesting case and it's really jam packed with legal issues and something I think that is continuing to develop. So it's something I'll be continuing to keep an eye on. So that's your Diaz-Thomas update. Speaking of denials of review, many in the defense community were saddened to see the recent movement in the case of State v. Arthur from the state Supreme Court. This case involves the visual identification of marijuana as such without any chemical analysis. So this is where basically, and this happens, my sense is, every day in the trial courts in North Carolina, an officer gets up, takes the stand. He's not... He's not admitted as an expert witness or anything like that. He just gets up and is permitted to testify. Hey, I've been trained. I have experience as an officer. I know what marijuana looks like. I'm familiar with it. In my opinion, based on its sight, its smell, its texture, this is marijuana. And under court of appeals precedent, that is fair game. We have cases going back, State v. Fletcher, talking about the visual identification of marijuana is fine. That's different. It's not like cocaine or heroin or methamphetamine where there really should be a chemical analysis and most all the time. We've talked about this issue a couple times before as well, and I know I'd have flagged this case, but the argument in Arthur effectively was, hey, one, we've got all this legal hemp now, and that surely affects the old precedent. Seems like that stuff should be overruled in a world where legal cannabis that looks and smells and tastes in some cases causes impairment just like regular marijuana, but our legal products that this Fletcher rule allowing visual identification of marijuana, surely it doesn't make sense anymore. But there was also this sort of more nuanced legal argument that's like, hey, all of those court of appeals precedents allowing this practice, those are actually in conflict with state Supreme Court precedent under State v. Ward, You generally have to have a chemical analysis to identify drugs. And Ward didn't carve out marijuana. It didn't recognize any exceptions to that general rule. It does permit some other reliable methods of identification. And we've seen that applied in really unique circumstances. But for the most part, in any kind of drug case, except marijuana, the state has to provide a chemical analysis. And the argument in Arthur was that That rule actually extends to marijuana, and the Court of Appeals has been wrong all these years in distinguishing marijuana in this way. So I mentioned before on the podcast that this was going to be an opportunity for the state high court to clarify the issue. Obviously, this and the probable cause issue in the realm of cannabis, marijuana, legal hemp are things that I've written a lot on and talked a lot on about this show. And so I was personally hopeful that we were going to get some clarity one way or another. But that didn't happen. And just to back up a bit, this is the officer did exactly what I just described. He presented lay opinion at trial based on his training and experience that this substance was marijuana. Unfortunately, there was no objection at trial to that opinion. So the defendant loses at the Court of Appeals. They didn't even publish the opinion. The Supreme Court granted the defendant's petition for discretionary review. That's pretty rare itself these days. I'm not sure how many petitions for discretionary review or PDRs by a defendant have been granted in the past year or so in a criminal case, but it's not a lot. So just the grant of the PDR itself was somewhat significant, I thought. And then B, you know, again, the defense community from the trial lawyers to the appellate bar really wanted some clarity on this issue. When the Court of Appeals ruled against the defendant, they pointed in part to this NRA civil penalty case. And that's the case that says, hey, you know, when a panel of the Court of Appeals has already decided an issue, then we're bound by that earlier Court of Appeals precedent unless and until the state Supreme Court overrules it. And they said, you know, this is just not error. It's not plain error or anything else. Sort of unexpected, I think, when the petition for discretionary review was granted at the state Supreme Court. I think they may have even held oral argument in the case. I'm not sure about that, and I wasn't able to verify prior to recording, but in the last batch of state Supreme Court decisions, they issued a per curiam decision affirming the Court of Appeals and ordering the PDR to be dismissed as improvidently allowed. In other words, we never should have granted this in the first place, and we are not going to decide the merits of this issue here. So, the Court of Appeals ruling that it's not plain error stands. That's an unpublished decision, but it's, of course, consistent with the line of published Court of Appeals decisions on this issue. And no more clarity, no further clarity one way or the other from the state Supreme Court. As a quick aside, I think I may have mentioned this before in an earlier episode, but there's a funny acronym for that sort of this sort of phenomenon of dismissing as improperly granted in at the U.S. Supreme Court and in federal court. When they say this, they call it it's a dig, a D.I.G. dismissed as improvidently granted. The case was digged. That doesn't quite work for our terminology where we say dismissed as improvidently allowed and I wasn't able to come up with a DIA acronym that seemed quite as fitting. But there you go. That's what happened. So what does this mean? Still no clear answer to this question that folks are having about marijuana identification evidence in the age of hemp. Is the identification of marijuana by sight and odor still the proper subject of lay opinion? It occurs to me that Arthur was maybe not the best vehicle for this because again, without any objection at trial, it was under a plain error standard on review, which is much more difficult for the defendant to meet. I think, you know, all of this is a good reminder to defenders. Don't let that happen in your case. You know, if the officer is testifying, something is marijuana and there's not been a proper lab, a proper lab, not just a lab saying, yeah, it's got Delta nine, but a lab saying, hey, it's got Delta nine levels in excess of point three percent. then you've gotta be objecting to the arguably improper lay opinion or arguably improper expert opinion, and you've gotta object each time the opinion is mentioned. Folks will recall there was a case a while back where an officer testified he could smell the different THC levels between THC and hemp, which of course is a scientific impossibility, but there wasn't an objection in that case, not once. So again, if this is coming into your marijuana trial, you need to object, you need to object again, you need to state these grounds. While we're on it, I'll hit something I also have hammered on this show, but you got to keep in mind the distinctions between admissibility and sufficiency. I got a whole blog post on that on the North Carolina Criminal Law blog if you want to read about it, admissibility versus sufficiency. Any opinion like that that comes in at trial, like, yeah, I believe this is marijuana based on its smell, and I can tell it's not hemp. Let's say that's the opinion. Well, that's always going to be sufficient evidence to survive a motion to dismiss because Under our rules, basically any evidence, whether it should have been admitted or not, if any evidence is admitted, that's sufficient to get the state past the motion to dismiss stage. So it's not a sufficiency issue. It's an admissibility issue. And to preserve the admissibility objection, you have to make those specific objections under the rules of evidence, Rule 702, that the opinion is not the proper subject of lay opinion and is not reliable as an expert opinion. I think you should consider taking the witness on voir dire about this issue. Many, many officers, and I think all of the state crime lab analysts are candid about acknowledging this problem and about the limitations of their testing and the limitations of visual identification evidence. If an officer or analyst isn't so inclined to sort of acknowledge these scientific difficulties, I think that's when you maybe need to be prepared to have your own expert come in and really present some of the science at that 702 hearing of, you know, this is not a reliable opinion. That's the question that really needs to be presented to the appellate division is, does this meet the rigorous Daubert standard of Rule 702 as an expert opinion? And we just still don't have it, still not getting it for now. One day, I hope we get a merits resolution of the issue. In the meantime, that I think procedurally is what you can do. I was just advising somebody on a marijuana trial earlier this week. Same issue. In part, one of the issues of the case was that they didn't have a proper lab of the marijuana. And the attorney actually was ready and made all the objections and preserved the issue, took the witness on voir dire. The witness acknowledged, yeah, I can't tell hemp apart from marijuana, and we didn't do the test, but I still think this is marijuana. Well, despite that coming in at the 702 hearing, the testimony was still permitted and the jury was able to hear it, that the officer, in his opinion, thought it was marijuana. You know, this is another thing really important, I think, to keep in mind for defenders. All of those questions that you ask on voir dire about the reliability of the opinion and, you know, the assumptions going into it, the science behind it. Those are all questions that you can ask again in front of the jury or the fact finder to attack the weight of that opinion. And that, my understanding, is in part what happened in this trial. The defendant lost the 702 challenge but was able to question the detective or officer in front of the jury on these hemp-related issues and how it was really difficult or impossible to distinguish hemp from illegal marijuana, legal hemp from illegal marijuana. and then argued about the weight of his opinion to the jury and said, you can't trust that opinion. You shouldn't believe it, ladies and gentlemen. And the jury came back not guilty. So great result for that attorney. Great result for that defendant. A good example of holding the state to their burden on these things. But the fact that he wins also means that we're not getting the case appealed up to the appellate division for more law to be made on this question one way or another. Interesting stuff. I know that's stuff we've also talked about before, but I couldn't help covering Arthur because I, for one, had been holding out for it. Let's see. We've had a cert denial and a dismissal as improvidently granted. Let's move on to a grant of cert by the U.S. Supreme Court. Recently did a blog post about this substitute analyst testimony and the case of Smith v. Arizona. A short 11 years ago or so, the U.S. Supreme Court weighed in on this question. The question is, does the use of a substitute analyst at trial, does that fly for purposes of the Sixth Amendment Confrontation Clause? Confrontation Clause says I get to question and cross-examine my accusers in person, subject to some exceptions. And this substitute analyst issue comes up when some kind of forensic report is prepared for use in a criminal case. And then the person who did the testing, for whatever reason, is not available for trial. So instead of admitting that report through the testing analyst, they have some substitute expert, a different expert, one who's not necessarily involved in the original testing, comes in and offers an opinion about the accuracy of the forensic report. That's a substitute analyst. North Carolina and many other places allow this kind of testimony, but there's a split among it. And as I was saying, the US Supreme Court took on this question 11 years ago in a case called Williams v. Illinois. In Williams, they got nowhere with it. We ended up with a 4-4-1 decision, really confusing, doesn't give anybody a whole lot of clarity. The four justices would have found that, and there was exactly that situation. It was a DNA report linking the defendant to the crime. DNA analyst was not present, but a second analyst came in and testified. I think the report is right. It's something I rely on. We're not admitting the report for the truth of its matter. It's only the basis of my opinion. Or perhaps we're using it to corroborate my opinion. But we're not actually admitting it, so no confrontation clause problem. That's the logic of this substitute analyst stuff. It's being admitted as basis of opinion. We're not actually admitting it for the truth of its matter. And if it's not being used for the truth... then that doesn't implicate the Confrontation Clause. I mean, that's another sort of just fundamental point to remember and go back to. The Confrontation Clause is really designed to protect against hearsay statements, out-of-court statements that are being offered for the truth of the matter. But if you think about this, it's a funny thing, right? The forensic report, the test, is only being used for a basis of opinion but is not actually offered for the truth. Well, doesn't the basis of the opinion depend on the truth of the report, right? That's the argument. I think that's Mr. Smith's complaint here. Last check in that Williams v. Illinois case, there was five justices that agreed this stuff violates the confrontation clause. You know, four of them upheld it. Thomas joined those four in result, basically saying, I think the defendant should lose in Williams, but for different reasons. And I totally, Justice Thomas said, you know, I totally disagree with this basis of opinion stuff. And then you had four dissenters who at the time included Scalia, who said, yeah, that basis of opinion stuff, like that's just legal gymnastics. That doesn't make any sense. And we think it violates the confrontation clause. You know, my colleague Jesse Smith has done some writing on this case, on the Williams case and on substitute analyst. People have been hoping that this was going to they were going to offer some clarity on this a lot sooner, like the North Carolina case that permits this. Or there's a couple of I think Brewington is one Ortiz Zapp is another. You know, Mr. Ortiz Zapp, he sought cert back in 2013 on the issue of substitute analysts. And so so had a bunch of other people, because, again, there is a split. I think most jurisdictions allow this, but some have some don't. The Supreme Court has finally granted review in this case. This Smith v. Arizona tees up this question exactly. Supreme Court has granted review. It should be heard later this term, assuming it's not digged or something like that. If we get a merits resolution, then it's going to provide a lot of clarity to this question that's been hanging out there since 2012 with the Williams plurality. Of the justices that are still on the court, we know Alito and Chief Justice Roberts believe in this basis of opinion logic. We know Thomas rejects it. We know Kagan, Sotomayor reject it. Gorsuch has indicated in a dissent from denial of cert that he disagrees with it. So there's definitely four votes, assuming everyone still holds the same views that they did in Williams of the justices that are still on the court and with the new ones, counting what we know about Gorsuch based on something he wrote a few years back. It looks to me like we've got four votes against substitute analyst testimony that would find the substitute analyst testimony violates the confrontation clause. That means we just the defense would need one of the other new ones, Kavanaugh, Barrett or Brown Jackson. So we'll see. You get strange bedfellows in these cases. They don't tend to line up along ideological lines. That's how it was in Williams. That's how it is in Smith if we get there. But a really interesting case and, you know, one that's got a lot of potential to change the practice of North Carolina. What could happen? I mean, one, you might have five votes that just says, yeah, this is fine. And if so, then we've been right all along. We're doing it right. We'll continue to do it right. You'd probably see uses substitute analysts expand. If we have five votes against it, then I could see the court doing a couple, you know, going a couple different ways. I mean, you might have a bright line rule that says it's just not allowed. It's not allowed under any circumstances. That's that. Get the testing analyst there or have somebody retest it. While that might be a little cumbersome for the state, I don't think it's that huge of a burden to impose as far as meeting this constitutional requirement of confrontation. You know, I also could see them drawing, finding a little more nuanced approach where, you know, it may depend. I mean, if I supervised two out of the three stages of testing and I work in the same lab, I'm familiar with lab procedures, I'm familiar with lab maintenance logs and calibration and that sort of thing. That strikes me as a whole lot stronger argument for admission of a substitute analyst testimony, somebody that was partially involved or that was supervising or is at least familiar with the lab policies versus somebody who has nothing to do with anything and didn't have anything to do with the testing. Defenders, for you all, a couple of things. As an initial matter, don't waive your Confrontation Clause rights inadvertently. North Carolina has a whole bunch of notice and demand statutes. That's where if the state gives you timely written notice that they're going to use a they want to admit a forensic report without the analyst, you have to file a timely written objection saying, no, no, no, I want the analyst there. If you don't do that or you do it too late, the forensic report is coming in without any witness at all. Don't do that. Make sure you know the relevant notice and demand procedures. And there's a bunch of them. I mean, I think the most common ones are the one we see in Chapter 20 for implied consent cases and the one we see in Chapter 90 for drug cases. But there's one in Chapter 8. There's a lot of different ones, and some of them have slightly different rules and timelines. Be familiar with those. Know them cold. Do not fail to make your demand for the analyst testimony. Failure to make the demand after the state's made a proper notice means all confrontation and calls to rights, they don't even have to produce the substitute analyst. And keep in mind too, the state has to provide proper notice. It's not just some notice at some point in time. There's a timeline they have to meet too and there's some form requirements for what has to be in there and they have to provide you the report as well as the notice. You scrutinize the state's notice, see if it really complies with the statute. And I'd say really, whether it does or not, you probably want to file your demand just to be on the safe side. But this is something to keep in mind if, say, you have found yourself in a situation where you have inadvertently or negligently, whatever, you forgot to file your demand on time. If you go back and really look at that notice and you find, man, wait, the notice wasn't timely or the notice, you know, I didn't get the report in the time window or there's some other defect in the notice where it doesn't comply with the statute. Then I think you have a good argument to say that notice is null and void. It doesn't count to trigger this whole process. They didn't give a proper notice. So it doesn't matter whether I gave a demand or not. Again, best practice, file your demand, file it on time. If you do fall into that trap, one possible out would be. See if there's a way to attack the state's notice. Otherwise, while we've got this matter pending at the U.S. Supreme Court, again, you're going to lose your constitutional objections to this in the trial court for the time being. But if you want it preserved for appellate review or post-conviction down the road, let's say the Supreme Court next year sometime decides this in the defendant's favor. If you don't raise those constitutional objections now at trial, they will be waived on appeal regardless of what happens with the law later. So be sure you make a Sixth Amendment Confrontation Clause objection to the substitute analyst testimony. There's a comparable state right of confrontation in Article 1, Section 23 of the state constitution. State those specific constitutional grounds each time. Restate them again and again each time the analyst testifies until the judge makes you stop. Then it'll be preserved for appellate review. And if the law changes here as a matter of federal constitutional law, your defendant will be well positioned to obtain some relief on appeal or possibly on post-conviction. Last thing I'll say about the substitute analyst stuff, go read Ortiz's app. If you can't read his app, then read my blog post on it, because there are some arguably complicated foundational requirements that have to be met before this can come in. And I could see where the state isn't able to lay that foundation, or if they lay the foundation in a way where the judge isn't convinced that it's reliable independent opinion, you may be able to keep it out just right there as a matter of the rules of evidence. At a minimum, the substitute analyst is supposed to say, that forensic report is something that experts in my field normally and typically rely on. The opinion I'm offering about the report, that is my own independently formed opinion. At a bare minimum, they have to establish that. But Ortiz's app also points out, hey, best practice of laying this foundation would be to get into, are you familiar with the lab, with the testing policies, the procedures, the quality control mechanisms, accreditation of the analysts? all that sort of stuff. And I think all of that is fair game for the defendant to ask when the substitute analyst is they're trying to qualify the substitute analyst as an expert. So, you know, in addition to being sure to file your demand for the analyst testimony, in addition to making these constitutional objections that the substitute analyst is allowed to testify. Don't forget, you can also voir dire the expert, challenge them, challenge the omission of their expert testimony just as a matter of 702. Have they showed that this is a reliable expert opinion that's going to be helpful to the jury? And just like we talked about a second ago in the marijuana case, challenging the lay opinion And I mentioned, you know, you could take those arguments, even if you lose on the evidence issue, you might be able to take those same questions and make them go to the weight of the opinion. And as far as arguing to the jury, whether the case has been proved or not, the same thing here. You know, if they're offering the substitute expert opinion and you know that the expert or you've already brought out on voir dire and in the 702 hearing trying to exclude the evidence that, hey, This person has nothing to do with the testing. They're not familiar with this lab. They're not familiar with this procedures. They don't know this analyst. They never work together. Those kind of things might be something the jury might really hang its hat on or, you know, think defenders should, you know, strongly think about bringing that stuff out when it's relevant to the case and then arguing, hey, this opinion that the DNA is a match or that, You know, the blood is the defendant's or whatever, whatever the forensic report is about. You know, defendant blew a tin. You shouldn't believe that because you heard the expert acknowledge X, Y and Z, that they really don't have any familiarity, that they really didn't, you know, weren't involved. I think that's fair game. You should also maybe think about asking for a limiting instruction on how the jury's to use that report. You aren't to treat it as offered for the truth of the matter. It's only the testifying expert's opinion that you're to attach any real substantive weight to. So I know that's all a bit technical. In part, that's why I wrote a blog post about it. It's laid out there in a little bit more discreet ways on the blog, but check it out if you like. I think it's a really exciting issue for us confrontation claw nerds in the world. Fingers crossed that this one gets a merits resolution. One way or the other, we've needed clarity on this for at least the past 11 years, and it looks like Smith v. Arizona is poised to maybe give us some. All right, I wanted to do a couple of quick hits on some legislative updates. Expunctions. We have extended the pause on automatic expunctions. Folks may be aware that, you know, we rolled out some extensive expunction revisions in 2021, I believe. I know John Rubin did a post about that on our blog. And one of the changes was, hey, if all your charges are dismissed or you're found not guilty in a setting of court, those are just automatically gonna be expunged. And the idea was to make that relief more equitable, more available, not a separate step that the defendant has to do. I mean, I know in many places, it's like if you have a public defender They might get all your charges dismissed and they say, hey, you're eligible for expunction, but we don't do that as public defenders. You're going to have to go hire a private lawyer or figure out how to do it yourself. And I think that's probably easier in some places than others as far as getting an affordable counsel to do that for you or to pull it off yourself. I think, you know, it was well-intentioned, but this turned into a disaster where, you know, the records disappeared overnight. People found that they didn't have any way of showing, you know, their boss or immigration authorities or whomever else, you know, hey, my case has been resolved. It was dismissed. I was found not guilty. The records were gone. That was paused for a year. It's been paused another year. So at least until sometime, I think, August 2024, automatic expungements continue to be paused. But the real biggie with expunctions is that I think this kicks in December 1st. If not, it's kicking in soon. Felony B&E, at least a version, the normal version of felony breaking or entering the This has always been a categorical exclusion from the expunction statutes. It's just one of those things, you know, that's like, hey, for nonviolent misdemeanor or felony convictions, you can get an expungement when you meet certain requirements, except for, you know, A through J or whatever it is. And it's, you know, murder, assault crimes, sex offender registration crimes, DWI is one of them, and breaking or entering, felony breaking or entering has always been one of them. Interestingly, as I understand it, felony breaking or entering of a motor vehicle is not categorically excluded. So keep that distinction in mind. That's a different offense. But felony breaking or entering, which is, you know, breaking or entering any building with intent to commit a felony therein. That's always been something you could not expunge. Well, that changes with this new legislation. After a 15-year waiting period, so the defendant has to be a good boy or girl for that whole 15 years, after being convicted of felony breaking or entering, they may be eligible to expunge this conviction under 15A-145.5. Again, that's for nonviolent felony and misdemeanor convictions. Note, it's only for regular breaking or entering. We have made an amendment a few years back to the breaking or entering statute that added a prong of felony breaking or entering if the breaking or entering is done with intent to terrorize or assault the person therein. So, you know, think of a situation, I guess, something that's short of a burglary, but sort of more nefarious than just breaking into steel. If I'm breaking in to hurt you or scare you, that's its own type of felony breaking or entering. And that remains categorically excluded. A felony breaking or entering with intent to harm or terrorize cannot be expunged. That conviction cannot be expunged no matter how long you wait. But the regular old felony break-in or entering, that can be after the waiting period. John will be writing about this again. Look for an expunction blog to come out sometime probably around the end of the year. All of these procedures are just far more complicated than they used to be. I've got to admit, I'm thankful I'm not doing this. I used to love doing expunction work. I mean, it's a great way to help people. And sort of once you get the process down, it's not super complicated usually. But it's become a lot more complicated than it used to be. And I admire you lawyers that are still out there doing it. I look at the Sentencing Commission report every year. They give you all kinds of interesting data. How many people are, you know, what percentage of felonies break down into what categories? How many people are committing what crimes? And we consistently see felony breaking or entering is in the top five most common felony convictions. So it affects a lot of people. It's one of the most common convictions and consistently the most common class H felony conviction. So that's a whole bunch of people every year who are getting charged with and convicted of felony breaking and entering. And again, I don't think that this is not going to apply to somebody who's a habitual breaking and entering offender or somebody who's done it over and over again year after year after year. But it's sort of the dumb teenager or the one-off mistake that results in a felony B or E. That person will one day be able to expunge their record if they've stayed out of trouble you know, all of the attendant consequences that go with that, you know, regaining your gun rights is probably the biggie. felony breaking hearing was 13% of all felonies, actually, all felony convictions in 2021. That's how prevalent the crime is in the system. So that's your expunction update. This one slipped by me, but we amended the second degree trespass statute this year. And second degree trespass now has a new prong that says, if you enter or remain on the curtilage of another person's property between the hours of midnight and 6 a.m., That is second degree trespass. Just walking across somebody's yard is entering the curtilage. Now, this this seems cleanest to me where it's like, hey, there's somebody in my yard and I ask them to leave and they don't. That is intuitively trespass to me. The way this is written now, it's just walking across somebody's yard if it's after midnight and before 6 a.m. That itself is trespassing. It doesn't matter if it's posted. It doesn't matter if anyone asks you to leave. I thought that was really interesting. I don't know what prompted this legislation. If somebody's creeping around my yard at night like that after midnight, I don't assume too many people are doing that who are well-intentioned. And I know in a lot of places in North Carolina, that's that's a dangerous thing to be walking around somebody's property late at night in their yard or the cartilage of their home. But for whatever reason, the legislator thought that we needed to codify this. So we have sort of a new way of committing second degree trespass. And that's if you enter or remain on the cartilage of someone else's property between midnight and 6 a.m., know it's funny john rubin and i were talking about this and with under sort of normal property and trespass rules and fourth amendment law there's typically like an implied license to approach a house we get the girl scout rule right the girl scout can go to your front door and knock on your door and see if you want to buy some girl scout cookies if they do it at a reasonable time of day and use the main entrance and and that's been applied to police doing so-called knock-and-talks, where they don't have a warrant, they don't necessarily have probable cause, but they wanna talk to you. They commonly will just come up to your door, knock on it, and see if you answer. You don't have to answer, but if you answer, they're gonna ask you questions, they're gonna look around what they can see inside, they're gonna smell the air, and all of those things often produce, get them to probable cause if they didn't have it before. And that's justified by this property law concept of, well, the police, too, just like a Girl Scout, have an implied license to approach a house. But there's limits. That doesn't mean you can go in the backyard. It doesn't mean I can open a closed fence and go around the porch. It doesn't mean I can peep in the windows or vents. Doesn't mean I can go up there at a time when the public wouldn't normally come approach your door. They don't get to come do a knock and talk at 10 o'clock at night. That's just unreasonable. And it starts to become a different thing if they're not sort of following the boundaries of sort of polite society. I mean, maybe that's a digression. I don't, you know, this is limited to midnight to 6 a.m., so that's not the time that a Girl Scout would approach, typically. But I do wonder, you know, what about sort of emergency situations or... you know, friends or family or that sort of thing. Like, you know, you will have technically committed this offense by approaching the door of the nearest house after you got into a car accident or trying to contact a friend or neighbor late at night for some emergency. I'm sure that's not how it's intended. And I doubt that we would see it applied in such a, you know, sort of redundant way. But it does, you know, raise the issue of are those affirmative defenses that the defendant would have to show. Like, hey, I was only doing this out of duress or necessity because I needed help. My phone's dead. whatever else, or is that sort of written into the law itself where it's like, well, we shouldn't, you know, read into the law itself where we're not going to treat those situations as second degree trespassing. I think that that's going to come down to the officer discretion on the side of the road. And my guess is if that was raised in court, it is going to be the defendant's burden to come forward with some evidence of a defense that sort of negates the impropriety of the allegedly illegal entry. Another crime that's quite common in district courts throughout the state, second-degree trespass, and it just got a little broader. Listeners, beware. Finally, I wanted to touch on this, on some opiate law adjustments. We covered harm reduction some time ago in one of our previous episodes. These are the laws in North Carolina that are sort of authorizing needle exchanges. We have we allow drug testing kits now to test the purity of your drug. So you don't have to. That's not treated as paraphernalia anymore. We've got the Good Samaritan law that says, you know, under certain circumstances, if you're calling to report an overdose, you and the overdosing person can have immunity from any charge or arrest. That just got amended, that last one, because formerly it said only when the situation involves less than a gram of cocaine or heroin or any misdemeanor drugs. And I know I covered this before when we talked about it, but that left off the real killer, which was fentanyl. There's also sort of a gaping hole there with like drug mixtures of all kinds, because a lot of times we saw a tragic instance of this here in the triangle recently where a UNC student bought what apparently she thought was cocaine somewhere in Durham. You know, she was at Duke, I guess, when she overdosed. She bought what she thought was cocaine and she got it was laced with fentanyl and it killed her. And that is what's killing people for the moment. You can certainly overdose on heroin. I don't hear of a ton of cocaine only induced overdoses, but it's possible. But fentanyl for sure kills a lot of people. Or these other fentanyl derivatives, you know, there's about there's tons of different derivatives. I mean, people may have heard of carfentanil. That's a common one. It's like even stronger than fentanyl by a lot. But there's tons and tons of these derivatives and not all of them are well known. The testing kits don't pick up all the all of them, even if you are doing the testing. arguably under the former good samaritan law if you had a bag of half a gram of a mixture of say heroin and fentanyl the good samaritan law would not protect you because that fentanyl or any other you know adulterating controlled substance that wasn't you know the heroin or cocaine that the person thought they were getting but has some other substance in it That would take it outside the protections of the Good Samaritan Law because it was it's not going to be considered less than a gram of cocaine or heroin. And I flagged that before on the show and I flagged it in my blog post on harm reduction immunities, saying from a harm reduction standpoint, as a policy decision, you can make that choice, but adding fentanyl would probably save more people's lives. Well, we've amended that law and it now says all controlled substances if it's less than a gram. So this takes care of that mixture problem I was just describing. It takes care of the fentanyl and fentanyl derivatives problem that we were just describing. So the Good Samaritan Law is that much broader and now will protect against bag of fentanyl or a bag of mixture containing fentanyl or other things. I wanted to flag that. At the same time and in the same bill that we did this change, sort of broadening the Good Samaritan Law that much, We raised the penalties for trafficking. We raised the mandatory minimum fines for trafficking opiates when it involves fentanyl, carfentanil, or heroin only. So not other opiates. If I'm being accused of trafficking for the opiates found in, say, Percocet pills or something like that, We're just still under the regular old opiate trafficking rules and fines, which would be $50,000 at level one trafficking, $100,000 for level two trafficking, $500,000 for level three trafficking. And trafficking liability in opiates, of course, again, kicks in at four grams. But now under the amended trafficking fines, if it's heroin, fentanyl, carfentanil, or any mixture of those things, level one trafficking is going to be a $500,000 mandatory minimum fine. It's $750,000 mandatory minimum fine for level two trafficking and a cool $1 million mandatory minimum fine for level three trafficking in any of these substances. It strikes me there may be some Eighth Amendment excessive fines arguments to be had when it comes to this. The regular fines are really high. I would really be curious to see how much the state collects of the fines as they are now. I know I recently consulted on a case where the judge wanted to know, can I remit this trafficking fine? Not at the time of sentencing, of course, because it's a mandatory minimum fine. I think the only way the judge doesn't impose it on the front end is to say, yeah, I'm finding it violates the state or federal constitution as excessive under the cruel or unusual punishment clause. And I don't think that happens a whole lot. In this situation, the person was making a motion for remission of fine money under that, you know, Rule 28 of General Practice. That's something else we've talked about before, and there's a blog and a webinar on that. But, you know, getting relief from criminal monetary obligations. And the person had, you know, done their time for their trafficking conviction. They'd come out. They'd paid all their supervision fees, the court costs. lab fees, everything had been taken care of except for this monstrous $50,000 mandatory minimum fee. And the person was just like, look, I'm never going to be able to pay that. I do not have the means to pay it. I will never have the means to pay it. A couple of us here at the school were looking at that question of like, hey, like, even though it's a man, men, a mandatory minimum fine, can the judge, do they have discretion on this back end to remit it and say, you know, I'm going to find the defendant lacks the ability to pay. And that was the conclusion we came to was that, yes, the judge can remit that fine. So, I mean, one, while we're talking about these fines, keep in mind that. There's nothing that says a trafficking fine can't be remitted on the back end when the defendant has made good faith efforts to meet their obligation, but they truly lack the ability to pay it. I think that's exactly the kind of thing Rule 28 was designed for. It's good to remember that you can maybe be able to get relief for somebody in that situation. With these new fines where, I mean, from $50,000 to $500,000, from $100,000 to $750,000, from $500K to $1 million, depending on which level you're trafficking out, those are substantial exponential increases of the amounts. And I've got to say, just a personal view, I don't think people were paying the $50,000 in the first place very often. It's hard for me to imagine how somebody who's convicted of trafficking four grams, say, four and a half grams of heroin is ever going to be able to pay a $500,000 fine. But again, on the front end at sentencing, absent a constitutional challenge, the trial court doesn't have any discretion. That's what the law says. It has to be imposed. But defenders, I want you all to keep in mind, this is starting to sound a whole lot like the facts of the case at Thames v. Indiana. Mr. Thames was caught and convicted of, I believe, you know, a state offense in Indiana of possession with intent to sell and deliver heroin. And it was some amount of heroin. I don't know off the top of my head. But in response to, you know, as a part of his conviction and sentencing, the state seized his seventy five, eighty thousand dollar Range Rover. And he took that case all the way to the U.S. Supreme Court, arguing, I think this is an excessive fine in violation of the Eighth Amendment. I should look it up sometime. I don't know what happened to Mr. Thames's case on remand. The question at the state at the U.S. Supreme Court then was, hey, you know, this excessive fines clause of the Eighth Amendment, we've actually never decided whether or not that right is incorporated against the states. How about some incorporation doctrine to throw you all back to law school? But incorporation basically looks at there are certain things in the Bill of Rights that we hold are so sort of fundamental to the Constitution that the state has to follow them, too, even though Not everything has to be incorporated against the states, but many of the rights in the Bill of Rights are. And this was an issue that had never been decided before. The court ultimately decided, yes, the excessive fines clause of the Eighth Amendment applies to the states. So Mr. Thames got his case remanded all the way back down to the trial court to figure out whether the seizure of his 80 grand Range Rover was in fact excessive in light of his criminal conduct. I think a similar argument can and should be made here from the defense point of view. You know, four grams of heroin, four and a half grams of heroin, that's not an insignificant amount, but it's not $500,000 worth of heroin. It's probably not $50,000 worth of heroin. So having a criminal penalty that is so grossly disproportionate to the severity of the offense. There may be a constitutional argument there. Of course, if you're the state, you're going to say this is a crisis. This is passed as a deterrent to keep people from engaging in this behavior. You know, North Carolina is losing somewhere around eight people a day to opiate overdoses, mostly fentanyl. We think it's within the court's discretion. But That's that's a fight, I think, worth having. If anybody does, please let me know. I'd love to hear about it. That's it for this episode, everybody. Again, special thanks to Paul Bonner on the ones and twos storage studio wizard extraordinaire here at the School of Government. Thanks also to Monica Yelverton. She's our associate director of programs and services for the logistical and technical support. Thanks to IDS for their support of the public defense education team here at the School of Government. That, of course, is Indigent Defense Services. Thanks to my brother, David Dixon, for composing our theme song. You can find him under David Dixon Music at Instagram or Facebook. If you like what you hear, if you hated it, whatever, any feedback, comments, concerns, questions, please email me. Let me know. I'd love to hear from readers, listeners. If you have suggestions for topics I should cover, let me know. It's D-I-X-O-N, Dixon at S-O-G dot U-N-C dot E-D-U. And if you like the show, please give it a thumbs up, subscribe, and pass it along to your friends and family. I hope everybody's well. I hope everybody had a happy and safe Halloween. And I promise I'll be back in the studio before the end of the year.