Episode 11: NC Criminal Debrief

[00:00:00.908] [UNKNOWN] Thank you.
[00:00:11.657] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief. This is a podcast devoted to covering criminal law issues in North Carolina and beyond. I'm Phil Dixon, a faculty member here at the UNC Chapel Hill School of Government. I'm here with studio wizard Paul Bonner on the ones and twos. It's been a minute since our last episode. Apologize. Both Paul and I had a lot going on over the last few months, but I promise you won't have to wait as long for the next episode. And with that, we've got, as usual, a ton of stuff to cover, and I want to jump right in. I will say a lot of this stuff I did recently cover in a webinar format. We were able to offer a free webinar for folks called Current Developments in Criminal Law. And if you're better at a visual learner, we should have that posted on the Public Defense Education website soon, and you can check it out there. That said, I do have some new stuff sprinkled in here, so... As we want to do, I'm going to start with some legislation. We have an amended 15A211 that went into effect on October 1st, 2023. So this is the law now, and this is about electronic recording of interrogations. This law has been on the book for a while, but traditionally it only applied to Murder, B1 or B2 crimes, felony crimes, that serious alphabet assault, assault with a deadly weapon with intent to kill, inflicting serious injury, or any Class C sex crimes. So murder, B1s, B2s, alphabet assault, Class C sex crimes, and all juveniles. If they're in custody, they have to have any interrogation of the person recorded. Now, that was the rule. This has now been expanded to cover all felonies. So, a vast expansion of what is covered by this law. Any interrogation of a person in custody. So, I mean, sort of like your Miranda standard, right? They're in custody, like they're in a jail or they're not free to leave and they're being interrogated for a felony offense or any delinquency offense for a juvenile. The rule is the whole interrogation should be recorded from start to finish. It should include the Miranda warnings. The statute says it can be done by audio or video and whenever possible, whenever feasible in the words of the law, both. You know, at least it says when it's video, you have to at least show the full face of the suspect and the person doing the questioning. And in all cases, it should be captured in its entirety. The statute provides this video shall be provided in discovery. And there's some sort of remedies built in here. It says when the statute's not followed, you know, that is a complete record was not made, then any statements by the defendant that the state now wants to offer from that interrogation at a trial or hearing, it says those statements can be questioned as to their reliability and whether they were really voluntarily given. That may be redundant, it strikes me, because the defense can always challenge these things, whether or not the statement is recorded. But this is sort of an extra layer of protection for the defense and another source of authority to point to and say, well, no, judge, if they did not follow the statute, then we get to call into question the reliability and voluntariness of it. There is sort of a good faith exception written in where the state can show that the statement was in fact voluntary and reliable, and they can show that by clear convincing evidence. They still may be able to admit those statements even when it wasn't recorded, but it's really a pretty narrow set of circumstances where that kicks in. It says only where there's good reason for the failure to record. And it gives an example where the defendant refuses to be recorded. And even then, the defendant's refusal should be recorded. So his refusal to submit to video recording should itself be recorded. Or where there's an unforeseen equipment failure and no feasible way to get replacement equipment. especially that later one, unforeseen equipment failures with no feasible alternative. That could pop up in your smaller districts and counties where maybe the police department only has one camera or one set of recording equipment. I do think it has to be unforeseen and where the mistake is caught and there is a feasible alternative, this would seem to take it outside the realm of this exception. But, you know, what exactly is feasible probably varies from place to place. And we'll have to watch and see how this gets rolled out. Interestingly, you know, it's got even more teeth and where it says, you know, whether the state complies with this statute or not is a factor the court should consider in any motion to suppress the statements produced from this custodial interrogation. My favorite part, it says the jury must be instructed on the compliance with or noncompliance with the statute and told, hey, jury, you should consider the fact that the state did or did not comply with this law when you're considering how much weight to give the statement. Interesting stuff does also has a sort of preservation requirement in that the the police or law enforcement entity making this recording is supposed to keep it until one year after all appeals or post convictions proceedings have have been concluded, which. As practitioners know, that could be quite some time when we add both the direct appeal and the post-conviction. I mean, of course, many people may not appeal or may not seek post-conviction relief, but in serious cases, they often do both. And that can be a, you know, sometimes decade-long process. So, interesting stuff there.
[00:06:17.798] [UNKNOWN] Okay.
[00:06:18.266] [SPEAKER_00] Sort of in the same vein, we have a whole new statute, 15A-981, and it's entitled corroboration of in custody informant statements. So before we were talking about interrogation of the suspect, the defendant. or the juvenile who's suspected of committing some offense. Here, we're really talking about jailhouse informants, you know, to cut it down, jailhouse snitches. So, this is the person's in jail. This person, it can't be a co-defendant or accomplice or co-conspirator of the, you know, defendant. So, they're in jail with this person, basically, and not connected to their case, and they're coming forward to the police or to the prosecution saying, hey, the defendant that you're prosecuting for this other crime, he made some statements to me while we were in jail together, and I want to tell you about him. This happens a lot. It's traditionally viewed with some suspicion, but certainly jailhouse informant testimony is something that does come up a lot. Like we saw before with the defendant interrogations, there's supposed to be a, well, here it just says visual recording is required. There is no exception for audio or exceptions. It says this has to be recorded on tape, has to show the face of the informant and the interviewer. And like we saw before, you have to keep that video for one year until the conclusion of all appeals and post-conviction matters. This too kicked in on October 1st, 2023. So it's the law now. Just a couple, you know, I think maybe notable differences. This does not have the same exceptions as before. So there's no sort of good faith exception for the person doesn't want to be recorded or, you know, there's some unforeseen equipment failure. And it also doesn't speak to remedies for noncompliance. So I think then that puts that ball back in the defense court to say, I want to fashion some remedy here. I'm entitled to have this recorded. If it's not recorded, that noncompliance with the statute. Perhaps by reference to the one we just covered, you could say that should be a factor the court should consider when weighing whether to exclude this. Can you suppress it for a violation? Is it maybe arguably a substantial violation of 15A in addition to potentially maybe a due process problem? And again, by analogy to the one we just covered, perhaps you could fashion a jury instruction so that even if the court isn't willing to suppress it altogether, they could say, Ladies and gentlemen of the jury, you heard testimony about this jailhouse informant evidence, and it should have been recorded under 15A-981. It wasn't. And ladies and gentlemen, you should consider that noncompliance with the statute when deciding how much weight to give that opinion. So two interesting things here. These are both arguably defendant-friendly in that they are providing added layers of protection so that it's not just an officer's word when an in-custody defendant is being interrogated. And it's not an officer's word when a jailhouse informant is giving a statement against a defendant. Again, both effective October 1st, 2023. So that's the law now. And just be aware of that stuff. Plugging right along, everybody's favorite topic is the rules of evidence. I know, especially business records. But we did have an important change. I think it's significant, and I wanted to cover it. The 803 subsection 6, that's the business hearsay exception for business records. We got a little tweak to that. If you haven't been practicing or you don't deal with business records a lot, you may not know, but we changed this rule years ago to say you don't always have to bring in the custodian of records to authenticate a pile of records. If they're regularly made in the regular course of business, something the business does just on its own, That's a business record. Back in the day, you needed a custodian of the records to come in and attest that, yes, these are business records. We regularly made them in the regular course of our business. But we lowered that bar substantially years ago where we said, no, now it can just be an affidavit from the records custodian. So it's got to be a sworn statement that is typically notarized. Or you can provide the document, the business records under seal and have a notarized certificate of acknowledgement that says these documents are in fact authentic. They are what they purport to be. That change, which is probably eight years in the making now at this point, that still can trap the unwary sometimes. So I see that happen. So, you know, if you're if you're new to practice or you're new to Superior Court, Keep in mind, under the existing rule or the former rule, they could do this by affidavit or by a document under seal that's notarized. We have now brought this additional step whereby these records can be authenticated by certification. The change says, you know, if you certify them in compliance with 28 USC, you know, United States Code 1746, then you're good to go. Well, that federal law says if you can establish something by a sworn declaration, like an affidavit or a sealed sworn certificate, that same thing can equally be established by an unsworn certificate, statement, verification, declaration, whatever. when it's made under the penalty of perjury. So now, a records custodian, let's say, they could choose the affidavit route, they could choose the sealed, notarized certificate route, or they could just write out a statement that says, Under penalty of perjury, I'm telling you, these records are authentic. And if so, that can come in another way for this stuff to come for the state typically to get this stuff. And of course, it is a two way street. If the defense is trying to offer business records, the same applies for for y'all as well. Just something to keep in mind. We talk a lot on the show about confrontation clause issues. And I just note typically and we're going to talk about a confrontation clause issue and some business records here in a minute. So maybe I'll just come back to this question then. Sticking with legislation for a few more minutes, we've got a new law authorizing the aggregation of certain financial crimes. This is the brand spanking new 15A 1340.16F. That's a capital F. It only applies to a limited set of offenses. So here we're talking about either any form of embezzlement, and there's several forms of embezzlement, like six or seven at least, but any embezzlement or obtaining property by false pretense or exploitation of an older adult. It's only for those offenses. So it doesn't apply to, say, larceny or some other thing. I'm just talking about those specific financial crimes. And the law says if you're convicted of two or more of the same crime, then where there's more than one victim or the offenses are committed in more than one county, you can sort of add up the amounts of the property that's taken to get to a more serious offense. Traditionally with these crimes, I know it's the case with embezzlement. I know it's the case with obtaining property. I'm pretty sure it's the case... off the top of my head with an exploitation offense. But, you know, traditionally we had two versions of it. It was like under $100,000, it's a Class H. Over $100,000, it's a Class C felony. Well, now we've got sort of these grades if you're convicted of two or more of the same crime. And I do think, you know, reading it, the most natural reading is that they mean the same crime. So it's not an embezzlement over here in Orange County and an obtaining property by false pretense over here in Durham, right? You would need an embezzlement in one place and an embezzlement in the other, presumably. That's not crystal clear to me, but the language of the statute is same crime. So, if you've got two or more of these same crimes, there's more than one victim or the offenses are committed in more than one county, you can add the property amounts together. Anything really under $20,000 is going to be a Class H felony. Once you get over $20,000, and again, that's the aggregate value of the loss to the victim or victims, we're talking a Class G felony. Now, new Class G embezzlement and obtaining property and exploitation. If you go over $50,000, that's a Class F felony. And as was traditional, over $100,000 is a Class C felony. There does have to be some connection between these crimes. So same act or transaction or a series of acts or transactions that are connected or that constitute a same plan or scheme. Now, if the state wants to try this, wants to aggregate the offenses and the losses together to get to a more serious penalty, they do have to plead that to say these crimes were part of the same series of acts and transactions. It was a common plan and scheme. and the defendant in total caused X dollars of loss, therefore we're proceeding on the, let's say, Class G felony. And interestingly, like with aggravating factors, the defendant could plead guilty to these crimes and still insist on a jury trial just on this separate issue of aggregation. And the statute says that, it contemplates that as a thing. There's no time limit on when two acts no longer can be considered part of a common plan or scheme. I imagine we could look to the joinder of offenses law to give some gauge with the more time that has passed and the less similar the offenses are. the better argument the defendant has that this should not be considered part of one common plan or scheme. But I also think that that's usually going to be pretty loose and fast as far as what the state can sweep in. You may see this popping up. Defenders, you should be aware, this went into effect on March 1st, 2024. So it too is current law. And that again is 15A1340.16F. Really similar, but with some important distinctions. We've done something similar to breaking or entering of motor vehicles. That has always been, I believe, a class I felony under 1456. You know, you break or enter a motor vehicle containing things of value. Then you've committed a class I felony. Well, we've amended that law substantially, and this went into effect December 1st. Just like we just saw, now there's a range of punishments depending on the value of any property that's taken. So a couple things. Unlike with financial crimes, there's a 90-day cap on this one. So that's one important distinction. There is no timeline built into that financial crimes aggregation law, whereas with B or E of motor vehicle, it's got to be within a 90-day period of time. But likewise, it would apply to... Well, interesting. I just caught this preparing for this podcast, but here it really seems to be limited to crimes that are taking place in different counties only. There is no similar language like we just went over where it's, you know, are there different victims or was it in different counties? Here, this just talks about if there are these crimes that can be considered transactionally related in different counties, then those can be aggregated. So Under 1,500, you're in normal Class I territory. If you get over 1,500 of value of goods, you know, aggregated, you're in Class H territory. Over 20, Class G. Over 50, Class F. Over 100,000, Class C. So, we now have a, you know, at least the potential for a Class C break-in or entering of motor vehicles. It would obviously involve more than one conviction. While it doesn't spell it out, I think probably too, like with the financial crimes aggregation, we can consider this sort of like an aggravating factor and something that the defendant is entitled to have the jury instructed on and potentially is entitled to a bifurcated trial on it. This effectively adds an element of taking to the crime of B or E of motor vehicle. Traditionally, you don't need to take anything to commit that offense. If you break or enter a motor vehicle containing things of value with intent to steal or commit a felony therein, that's a completed crime. If you actually steal from the car, then you're getting the related larceny charge. Here, though, even whether they're presumably there would be larcenies also tacked on because this contemplates that property with some value was taken from the car. But I think that's another thing defenders should keep in mind is that with this aggregation, they're going to have to show not just that the person broke into cars with the requisite intent, but that they did so and walked away with some goods of value, which can then be aggravated. So again, a 90-day cap on it seems to be limited to just crimes taking place in different counties. You know, my first instinct on this was just I wonder who got $100,000 worth of goods taken out of their car because this is not something I would normally see in my experience with these crimes. You know, it's often change. or a pack of cigarettes or something like that. When someone strikes big on a theft from a car, it's usually that they got a gun. And even that is not going to be worth a ton of money. But I guess this is designed for the person. And we often see that with this offense. Many times, somebody who's breaking into a car, they're breaking into a bunch of cars. And This, at least when they're in different counties, is going to allow the amounts of the property value taken to be aggregated. And I suppose it's going to be a rare set of circumstances where somebody is getting more than $20,000 or more than $50,000 or more than $100,000 worth of goods from a car. But that's a possibility now, so just be aware. Turning to some case law, I first wanted to cover State v. Julius. Our state Supreme Court recently released this case. My colleague, Shay Denning, did a really excellent blog post about it. So if you get a chance, you want to read more about it, check out the NC Criminal Law blog. Check out Shay's recent post on State v. Julius. This is out of McDowell County up in the mountains. There was a car accident and the car is submerged in a ditch on the side of the road. It is not drivable. It's not going anywhere. The driver apparently had some warrants out and knew it. So he takes off before police can ever arrive. The female passenger is still present. It's apparently her parent's car. She wasn't the driver. She knew the driver, but she only knew him as Kyle. No last name, no other information about it. The police decide, well, we could arrest Kyle for hit and run, so therefore we can search the car incident to his arrest that'll happen at some point. So they don't have her consent. They don't have probable cause to believe a crime's being committed inside the car. or anything like that, they just search it. They find a bag of meth and some paraphernalia inside. That leads to a search of the passenger, where they find more drugs, some cash, some paraphernalia, and a gun. So this woman is ultimately charged with trafficking meth and some related offenses, and she moves to suppress, complaining, this was an illegal search, and it's not really a search incident to arrest. I think you should throw the evidence out. The trial court denied that motion, reasoning how I just explained. The police had probable cause to arrest the driver. Therefore, surely they could search the car for evidence of his ID. You know, who who was he? Where might we find him? So treating it effectively as a search incident to a yet to be had arrest, which led to the discovery of this drug drugs, which led to probable cause to search the woman. This goes up to the Court of Appeals and a divided panel affirms, the trial court, they agree with the trial court that this is a search incident, justified by search incident to Kyle's future and still forthcoming arrest. Um, they, they mentioned, you know, maybe officers could have done a reasonable, uh, protective sweep of the car based on reasonable suspicion. Uh, or, you know, they could have just towed the car and done an inventory search, but they don't exactly, the, the court of appeals opinion didn't explain, you know, how might this actually apply? They just sort of threw out those as some possibilities. You had Judge Inman at the Court of Appeals dissenting, and she would have reversed the trial court's order. And she would have found that this was not a search incident to arrest when Kyle had yet to be arrested. And she also would have held the automobile exception where, you know, just if it's on the road, it's capable of being moved, officers have probable cause, they don't have to go get a warrant. That's enough under the automobile exception, just probable cause of a mobile vehicle. She said that that wasn't applicable either because this car couldn't have been operated. And so the justification for the automobile exception did not apply. So this goes up to the North Carolina Supreme Court based on that dissent. And the majority here reverses and remands. The majority of the state Supreme Court agreed that this was not a search incident to arrest when there is no possibility of the arrestee. And again, that would have been Kyle, the guy who's fled. There's no possibility of him reaching inside the car. He was neither within reaching distance, nor was there likely to be evidence of the crime inside that car. At that point, you know, they only really had evidence of a hit and run. The court noted, you know, the order of a search following an arrest, you know, search incident to arrest following an arrest, whether the search happens first or the arrest happens first, that's usually not a critical factor. They could search first if there is grounds to arrest. But there does have to be a lawful arrest somewhere in there as a basic predicate. And the court pointed out, you know, that's not the case when there is no arrest at all. There's not about to be an arrest there. It's only a speculative possibility that the defendant might soon be arrested. So when that's the case, you don't get to rely on search incident to arrest. They also agreed there was no evidence that the police were going to find something relating to the crime of suspicion, the hit and run, which is all they have before they actually search the car. The search here was not contemporaneous with the arrest of Kyle, so this didn't apply. And then they threw out this important limit on the automobile exception. It did not apply, they said, because the car's mobility, you know, agreeing with Judge Inman, the car's mobility is an essential element of the justification for that exception. And where the car is not capable of moving, they said the automobile exception is inapplicable. no justification for warrantless search under the automobile exception for immobile cars now shea wrote about this in her blog post and she noted that's not exactly consistent with you know all the case law that we have for that exception many of it has also said you know inability to move the car doesn't affect the validity of a search some earlier court of appeals cases have discounted that as an issue But it seems like the North Carolina Supreme Court just brought it back in a really important way that, you know, mobility is a, quote unquote, fundamental prerequisite to application of the automobile exception. Instead of reversing fully and just saying the motion of suppress should have been granted, they said, you know, send this back down. And trial court, you need to determine whether, you know, is the application of the exclusionary rule really appropriate here? Because the exclusionary rule is really only designed to deter police misconduct. And as Shay noted in her post, sometimes they do this. You know, sometimes the court will just say reversed. You should have granted the motion of suppress. You didn't. We're reversing. Sometimes they say, you know, send it back and let the trial court think about it some more. They may have had some other justifications here, like maybe he abandoned the car. Maybe it could have been an inventory search, like the majority of the Court of Appeals said. But none of that was argued here. And typically, if the state had a chance to argue that stuff at the trial level and didn't, they can't bring it back up on the back end. An interesting one. Really good sort of discussion of search incident to arrest and the automobile exception. And I think, you know, really a significant development with that automobile exception where, you know, I mean, I think I would read this as saying, you know, is the car on cinder blocks and it really can't be driven? That's not going to get you there. You know, police in that situation, if they have grounds to search that car, they should get a warrant or valid consent. But they've they've laid down this rule that if the car is completely immobile, no automobile exception. So I thought that was noteworthy. I also like the discussion of search incidents to arrest and this idea on the limitation of, you know, if the guy that police are purporting to arrest isn't even present on the scene and, you know, they only can hope to arrest him. That, too, means the search incident to arrest doctrine does not apply. So really interesting Fourth Amendment stuff there. Sticking with the Fourth Amendment for a little bit longer, maybe my favorite recent case was State v. Wright. Jeff Welty, my colleague here, recently blogged about this one, and that's a great post if you want to check it out. So I'll lay it out for you. This is a Mecklenburg County case. It's a cold January night and officers are on patrol at around midnight. They get a tip from a known informant that there's a person on a bicycle who has an illegal gun. They describe the person. And what do you know? Police find somebody pretty quickly nearby who matches that description. They stop him. He's coming off of a dirt path. There's like a bridge over some water and there's a no trespassing sign on the bridge. And before they stop the defendant, there's some discussion among the officers about, you know, is this going to be reasonable, reasonable suspicion stopped for supposed trespassing or is this just a voluntary encounter? One officer said to the other, well, it's a known drug area, but that's all I got. I think we're in voluntary encounter territory. But as suppression, a different officer testified, well, no, it was based on the tip. So sort of some shifting justifications for the initial contact. But in any event, they approach Mr. Wright and say, you know, hey, do you mind giving us your ID? Which Mr. Wright does. They say, we got a report. Somebody might have a gun. Do you mind if we frisk you? And he agrees and allows officers to frisk him. At this point, officers say, cool, we'd like to search your book bag as well. And the defendant initially is like, sure, I don't mind. But as they go to begin that search of the bag, he says, hey, you know what? Actually, I've changed my mind. I don't want to agree to that. I don't want to be searched. You know, he goes on to tell the officers, look, I'm cold. It's late. I'm homeless. I really don't like police. Y'all make me nervous. I'm just trying to get to my storage unit for the night. You know, just just let me go. And this is all happening while one officer still had his ID and two other officers are sort of flanking him on each side. The officers don't take that no. They ask him four more times for consent to search this book bag, all within the course of about a minute and a half. They tell the defendant, look, we feel like you're being deceptive. We just want to take you off the list of people that we're looking we may be looking for. You know, we have our suspicions and we want to make sure you're not you're not doing anything wrong. You're not the guy. But this goes on until the defendant finally agrees to the search. What do they find? A stolen gun. This guy's a felon. So he is charged with both possession of stolen firearm, firearm by felon. And there's some drugs in there. And he's indicted as a habitual felon as well. Trial court denies the motion to suppress here. They said, well, I think this was a voluntary encounter. That initial stop was supported by reasonable suspicion. And from there, the defendant was free to not consent or not to agree to pat downs or not to agree to talk to the police, but he just agreed to it. So he waived any Fourth Amendment objections. This bounced back once from the Court of Appeals already for more findings by the trial court, but the trial court still, you know, second go around, denies it again. So it comes up on the merits at the Court of Appeals this time, and here the Court of Appeals unanimously reverses. There were findings of fact made by the trial court that the defendant was likely trespassing, and those weren't right. The sign there, the no trespassing sign, that was for the bridge over the water. There was no evidence that was talking about the path that the defendant was seen coming off of. There were no signs on the path, in fact, and the officers didn't think that they had reasonable suspicion of trespassing at the time. So something else had to justify that initial detention. The trial court also found that the defendant had been given back his I.D. at the time he consented to the search, and that just wasn't true. So here the Court of Appeals strikes all those findings from the trial court's order and looks at what's left to say, you know, was this stop supported by reasonable suspicion, was the frisk, and if so, was this consent valid? And they said, yeah, that stop was supported by reasonable suspicion, and so was the frisk. They had a tip, and there was some corroboration by the officers. It was a known tipster. It was corroborated by them. This guy looked like he matched the part. And reasonable suspicion's a low bar. So there was reasonable suspicion that a crime was being committed. There was reasonable suspicion to believe the defendant might be armed and dangerous. That search of the book bag was well beyond the scope of any Terry stop or frisk, and the police did not have probable cause at that point to search it. So the state's last hope here is that, well, you know, the defendant validly consented to this. And they said, no, this was not voluntary consent. The defendant only agreed to the search of his bag after four or five rapid fire questions by the officer in the middle of the night with three officers around him. You know, he kept refusing until it seemed to him like he just wasn't going to be let go until he agreed. And that's what the court said. You know, looking at the totality, this purported consent was coerced. I loved this quote from the opinion. They said, quote, unquote, officers had a duty to respect the defendant's assertion of his Fourth Amendment right to refuse a search. The officer's words and acts communicated to the defendant that he wasn't free to leave until he until he agreed. They pointed that this guy was, you know, subjectively in a vulnerable state. He repeatedly refused consent. This is a really interesting issue to me because they don't say, you know, asking twice is going to per se violate the Constitution or render consent involuntary. But, you know, asking four or five times might. And that's really striking because I've typically told people like my teenage son You're going to have to not only should you refuse any request to consent to refuse requests to submit to a search by law enforcement, you know, you may have to tell them three or four or five times until they really get it in their heads. Because in my experience, that's what many officers do. They're going to not just ask once. They're going to ask you once. They're going to ask you again. They're going to try a little bit, at least, to talk you into it. I've heard this again and again. I've seen it on videos of stops. It's like, well, if you really want to get out of here quickly, then I just need you to agree to this. If you're not hiding anything, then just let me take a quick peek around and I'll send you on your merry way. Or just give me anything that you might have in the car. And, you know, we can work it out or I'll still let you go about your business today, even if you've got something you shouldn't have. Really great case on the voluntariness of consent and what those limits should be. Consent is a tough one for defenders to litigate. A lot of times, traditionally at least, it's been the defendant's word versus the officer's word. I'm pretty sure body camera was playing a big role in this opinion. That's how the court was able to review the details of the stop and say some of these findings by the trial court weren't correct. That may change it a little bit, but, you know, oftentimes I think the defendant may need to get up on the stand at suppression and talk about, you know, hey, I really did refuse five times and I didn't agree to this. I didn't feel like I was free to leave. I didn't feel like they were going to let me go until I consented. So here the motion to suppress should have been granted. This goes back down presumably for, you know, the everything to get thrown out. That means this guy avoids a habitual felon sentence. Just a good one on on the voluntariness of consent. So if you've got one of these where the officer is coming up on three, four, five, six times of asking for consent, there may be a good argument. You know, and again, I think it depends on the totality. You got to look at all the factors. And here there were some sort of ones that made the defendant a little more sympathetic. His status is an unhoused person. It was late at night. It was cold. There's three officers. But, you know, they weren't threatening him. They didn't pull out their guns. It wasn't some of the things that we've traditionally required to sort of make something converted into a coercive encounter. Just know that this is out here. This may be something that defenders can incorporate into their practice to start fighting. And I think it's also a good example of breaking the search and seizure issues into multiple discrete parts. So, you know, challenge the initial stop, challenge the frisk, challenge the consent, purported consent, challenge the probable cause to search and stop. If each thing is not challenged, then that one thing you leave off is going to get waived on appeal. Just as a reminder, I know we hammer preservation here all the time, but I can't help it. Quick hit on State Beach Chambers. We passed a law a year or two ago that this was 15A-1215, and it allows the substitution of an alternate juror even after deliberations have begun. That is how it works in the federal system. That is how it works in many jurisdictions. So jury is sent back, they start deliberating, and one person gets sick or has an urgent emergency situation. can't continue deliberations. In North Carolina, you're entitled to have that jury decide your case, and an alternate was traditionally not allowed to be substituted in once deliberations have begun. If that jury falls apart, the composition of the jury falls apart, it's a mistrial, and you gotta have a whole do-over. So we passed 1215, again, a couple years ago, to remedy that and bring us in line with the federal system and say, no, and the way it's supposed to work, If this happens and an alternate has to be set back in because one of the original jurors can't finish the deliberations, then the whole jury is instructed to begin deliberations anew. They're supposed to start over from scratch. We just had our first case about this. Shea wrote a blog post when this came out, and she pointed out this 1997 case from the North Carolina Supreme Court, State v. Bunning, that said this right to have that jury, the jury who initially is sent back to deliberate, You have a state constitutional right to have that jury decide your case. She said, you know, that that case conflicts with this new statute. And it's going to be interesting to see how this plays out. Well, we just got State v. Chambers in the last month or two. And as Shea predicted, the court struck this down as unconstitutional. and said, that's exactly what happened. One of the jurors had to be substituted. One of the alternates had to be substituted in after deliberations had begun. The trial court was aware of this new law. They applied it. And this guy is complaining on appeal. Hey, I think that's a problem. And the Court of Appeals unanimously agreed. They said, we're bound by State v. Bunning, that 1997 state Supreme Court case. We unanimously agree. We also don't think we even need to show prejudice. This is per se error under our jurisprudence. This is going up to the state Supreme Court, maybe. They, of course, only are doing discretionary review now, so there was no dissent here. I could see, though, and Shea did a follow-up post basically raising this question, too, of... Well, now it's going to... Presumably, the state will seek further review in this case. And if they do, the day Supreme Court is going to be tasked with deciding, do we want to keep State v. Bunning as the law of the land, or is it time to overrule that case? Because again, this is permitted under the federal constitution. This is a state constitutional right that's developed over time. So, Something to keep an eye on for right now. I think trial courts should be wary about applying 1215 once deliberations have begun. Despite the letter of that law, unless and until State B. Bunning is overturned, I think Bunning basically says, no, the state constitution controls here. All right. I just blogged about this case, State v. McDonald. This may be all we get to for today, for the rest of today's episode. But an interesting case out of Robeson County dealing with PJCs. You get a PJC case in the Court of Appeals like never. This guy pled guilty to he was involved in a fatal accident, caused somebody's death in Robeson County back in 2014. So he's charged with misdemeanor death by motor vehicle. That's when you've just... You've broken some traffic law, but it wasn't enough to rise to the level of like involuntary manslaughter and it caused someone's death. This is an A1 misdemeanor, as practitioners know, so it's serious. It's something you can get jail time for, even if you don't have a record. But here, he worked out a deal. He went through district court trial, he appealed, gets the case in superior court, and works out a deal that says, look, if I'll accept responsibility for this accident in open court, and I'll pay the court costs, then the state will agree to a PJC, or a prayer for judgment, continued. PJCs, of course, are this weird North Carolina thing where we withhold judgment, you know, often forever. We see this in traffic cases, sometimes on low level crimes. There's a couple of different versions of this. I might say I'm withholding judgment and we're going to come back in six months and see if the defendant has been on good behavior or has offered substantial assistance or anything. There might be reasons to continue judgment for a period of time, but when we talk about it in the traffic court context, even in misdemeanor death land, I think often it's contemplated as a permanent final resolution of the case. The judgment is going to be continued indefinitely. Well, that's where McDonald landed in 2014. He gets this PJC, and what has to be the worst luck ever, he is involved in another fatal car accident in 2020. This time they charge him with involuntary manslaughter. The state then goes back in the 2014 misdemeanor death case and files a motion seeking to pray judgment to have final judgment entered. And the defendant files an objection, you know, fights against this, but the trial court ultimately does it in 2022 and sentences this guy in 22 for the 2014 misdemeanor death by motor vehicle offense. So the defendant didn't like that, and he sought cert review up at the Court of Appeals and said, you know, this is crazy. I've got a PJC. They can't sentence me on it seven years later. That's just totally unreasonable. One of his arguments was, well, you know, my PJC wasn't a true PJC because it had conditions on it and that converted it to a final judgment. If you require anything on a PJC beyond payment of court costs and an agreement to, you know, a requirement that the defendant follow the law, then it's not really a PJC, even if you call it that. It's now converted into a final judgment. So making the defendant pay fines, restitution, putting them in jail for any amount of time, imposing curfew, community service, school drug treatment requirements, any of that imposed on it as a part of a PJC means that PJC is not really a PJC anymore. It's a final judgment, and you are done in that situation. And here the defendant first said, you know, I think mine was really a final judgment because I had this extra condition of apologize in open court. And there was in this case State v. Pop from 2009. That was one of the conditions that was rendered that rendered the PJC into a final judgment. The defendant was ordered to compose a letter of apology. But the court rejected that and they said, no, this was different. You know, here the defendant just had to acknowledge responsibility in open court. That's different than requiring the defendant to go write a letter at some later time where the court would need additional involvement years down the road or at some later time. Then the defendant's argument shifted to, okay, fine, even if it's not a final judgment, this delay was unreasonable. And that is the sort of rule here. I mean, we have a statute, it's in the MAR statutes, it's 15A1416, and subsection B1 there says, where there's a case where a PJC was used, the state can seek to have judgment entered, quote unquote, at any time after verdict. Now, case law has limited that any time language to say, well, it has to be a reasonable time after verdict. These can be indefinite PJCs or they can be definite for a set amount of time. But in any event, if you're gonna sentence the defendant on a PJC, if you're gonna enter that final judgment, you gotta do so within a reasonable time. So the argument here was, Seven years surely is not a reasonable amount of time. And when the courts are deciding this issue of is it a reasonable delay, they look at the reasons for the delay, the length of the delay, if the defendant consented to the delay, and any prejudice that may be resulting from it. The court here, a majority of them sided with the state. They said, yeah, that's a pretty long delay and we might not tolerate one any longer. But, you know, it's a big deal that the defendant consented to this delay. He never objected to the PJC. In fact, he bargained for it. And he never asked for judgment to be entered in the case. And according to the court, that will routinely support the reasonableness of delayed entry of judgment. That I thought was significant because defendants agree to PJCs all the time and I think do so with the expectation that that's the end of the story. Judge Riggs, now Justice Riggs, but at the time Judge Allison Riggs, dissented and pointed this out. She agreed that, you know, it was not converted into a final judgment, but this delay was unreasonable and the trial court did not have jurisdiction in 2022 to enter judgment and sentence the defendant for a 2014 conviction. One of her factors she pointed to was like the length of delay here. She said, you know, he could only get 150 days on this offense at most at the highest record level. And that is, you know, like 15, 16, 17 times more than the max possible sentence, you know, has passed. and that should count as a factor. She also said this was ambiguous. Apparently the defendant believed this was the permanent resolution of his case, while the state believed this was only continued, judgment was only being continued on the condition that the defendant stayed out of trouble and didn't commit any similar crime, and only for so long as the defendant committed no new similar crimes. And she said, where the intentions behind the PJC are unclear, I would not allow this kind of delay. She also took issue with the majority's emphasis on the defendant's consent to this situation. She pointed out the majority of citing to other cases that allowed a seven-year delay, but there the defendant absconded and then fought in extradition for years. The defendant was responsible for the delay. That's a much different situation, according to Judge Riggs, than here where there's just no parameters of the bargain and the defendant wouldn't know what to expect. Finally, and I think correctly, she said, what is this about the defendant should have requested judgment? There is no statutory mechanism for a defendant to ask for judgment to be entered. And in fact, case law from the Court of Appeals seems to say there is no such option. In State v. Doss from 2019, they put that in a footnote and they said, you know, hey, this statute 15A-1416 allows the state to seek entry of judgment in PJCs, but the defendant has no comparable right. And I loved this quote from Judge Riggs. It says, how can it be the defendant is both without a path to force final judgment and deprived of his ability to complain of that delayed judgment because he did not force entry of final judgment? It's just very circular. This, I think, should give folks pause about using PJCs. Again, oftentimes this is going to be in a speeding case or reckless driving case, and maybe the stakes aren't quite as high as something like misdemeanor death. This probably varies a lot from place to place. I know when I was a practitioner, just the use of PJCs and whether you could get one in a certain district varied considerably from place to place. And I imagine the risk of the state trying to pray judgment years down the road from might vary a lot from place to place, but McDonald's is a pretty clear reminder that this can happen. They can come back, sometimes even years later, and say, that PJC you got, we're going to sentence you for it now. As I said, perhaps it's a different outcome with a longer time period or a different balance of factors, but this is a thing defenders should really be concerned about. I think looking at both the majority opinion and Judge Rigg's dissent, one thing that occurs to me is you could just make it clear on the front end, hey, this PJC is intended to be indefinite and the state will not ever try to pray judgment on it. If the records showed that, it's not ambiguous anymore. And I think that may greatly bolster the argument that this is intended as a permanent PJC or an indefinite PJC, as a true PJC, the record is clear about that, then there may not be jurisdiction to enter this judgment at a later time. And again, the case law is clear. You can do these for an indefinite period of time. It's just here the court sort of hung its hat on the ambiguity of it and the defendant's consent to it. So say in your judgment or say on the Boykin form or the plea transcript that This is intended to be a final disposition of the case. That might be a much different situation. You also could negotiate time limits. So, hey, this is a PJC and the state retains the ability to pray judgment for a period of one year and not after. I think those would be an option. And the majority opinion says that it's like y'all can negotiate these all you want. But absent this, you know, absent clear language, we think the state could pray judgment here. You might want to be careful with PJCs. They obviously still have value, especially in traffic court, which is where they're usually going to get used. But it can come up in other contexts. It's worth trying to get some limitations put on it or have it explicit in the negotiations and the judgment that this is intended as a permanent or final or true PJC. Now, going through all that, that got me thinking to an experience I had as a lawyer where I tried this assault by pointing a gun case in district court. It was a good case. We had a strong self-defense claim. But at the end of the day, the judge found my client guilty. And as we went to give notice of appeal, the judge said, I'm praying judgment. The effect of that was that we weren't able to appeal. The case law says, in a case v. state v. pledger from 1962, when there's no final judgment, you don't have a right to appeal it up to a jury. So this does happen sometimes. Jimmy Markham, my colleague here, wrote about this back in 2009, that sometimes judges will put a PJC on someone who doesn't want it, or even over their objection, sort of as a way to just end the case in district court. Because you, again, don't have any right of appeal to superior court there. Jamie makes the argument in his way back in 2009 post. I was barely out of law school then. This may be based on a misreading of case law. I mean, modern case law says, yeah, it doesn't matter if the defendant consents to that or not. You can do it without the defendant's consent. Enter a dispositional or true PJC, just indefinitely withholding judgment. But the older cases cited in support of that proposition really don't bear that out. They talk more about the court can withhold immediate entry of judgment and can continue a case from term to term over the defendant's objection. But they weren't really talking about in those cases forever. Right. So I thought that was interesting. It was a nice throwback to get back into the 09 stuff. And it got me thinking, well, you know, Jamie mentioned this argument that the case law may be a little conflicting, that there might be due process or speedy trial issues with this sort of unwanted PJC. And that got me thinking, you know, what about the right to a jury trial? Under the federal constitution, you do have a right to a jury trial, but that's been limited to only serious offenses. And that typically means crimes punishable by more than six months. Nothing except implied consent, like drunk driving offenses in district court, are punishable by more than six months on their own. There's still an argument the federal constitutional jury trial right might apply to some serious A1 offenses. It's worth noting our state constitutional right to a jury trial is broader. It says you have the right to a jury trial in all criminal matters only subject to the misdemeanor de novo appeal process. If a judge is going to enter a PJC over the defendant's objection, among these other arguments, you might say, I'm entitled to have my day in court before jury judge under the state constitution. And if you are using the entry of this PJC to circumvent my right to a jury trial, then you're violating my state constitutional rights to that jury trial. So my advice to defenders in that post was no. Object at the time. I think that's important. If your objection is overruled, I'd still go ask the court again to enter judgment in a separate motion on the follow-up end. And if you get denied there, I'm assuming you're in district court, seek certiorari review in superior court under Rule 19. You don't have a right of appeal to superior court of the PJC, clearly, but nothing says you can't cert up the decision to impose that kind of disposition and make these same arguments. And if you lose there, you can also seek cert review at the appellate division. Now where the defendant does not object at the time, again, McDonald indicates the defendant's consent to the, even his silence will be considered consent and that that factor will be way heavy in the analysis. So I think here, you know, it, it, probably matters when the defendant is asking for entry of judgment. We talked about that Doss case a second ago. There, the defendant was coming back 12 years after the entry of his PJC and saying, hey, I'd like judgment entered now. And the court said no, in part because it's very unlikely the state could still prove the case now. You had the benefit of this. You bargained for it. It's been 12 years. It would prejudice the state to tell them they have to now put on their case or sentence you. And again, there is no statutory mechanism for it. But I think by citing these constitutional provisions, these due process, right to a jury trial, the case law analysis in the post and in Jamie's post, It may be a lot different if the defendant just stands silent at sentencing and then tomorrow says, I actually really have changed my mind. I want a jury trial. And you're still within the window of a time to appeal that district court conviction. That might be worth asking, hey, I'd like you to actually enter judgment and let me appeal up. When it's 10 years later, I don't think you're ever going to win that argument. And McDonald and Doss are pretty good indications that that's so. All right. I had way more stuff I wanted to cover, but that just means I will get back in the studio with Paul next week and we'll be turning out another episode. I know I'm behind. So appreciate all of y'all listeners. Love all the positive feedback. I can't wait to get back in the studio and we will definitely not be having such a long delay. As usual, a big thank you to Paul Bonner, our studio wizard. Thanks, too, to Monica Yelverton, the associate director of programs and services for the public defense education team here at the school for all of her logistical support. Thanks, too, to my brother, David Dixon, for composing our theme music. You can find him on David Dixon Music on Facebook or iTunes. insta thanks all of you again i love hearing from you if you have questions comments feedback want to talk to me complain uh encourage whatever i'm at dixon at sog.unc.edu again that's d-i-x-o-n at s-o-g.unc.edu happy spring everybody i will look forward to talking to you again soon until next time