Episode 12: NC Criminal Debrief

[00:00:00.908] [UNKNOWN] Thank you.
[00:00:11.050] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief podcast. This is a podcast devoted to covering criminal law issues in North Carolina and beyond. I'm Phil Dixon. I'm the director of the public defense education team here at the School of Government at UNC Chapel Hill. I'm also a faculty member here. I'm here in the studio with Paul Bonner, studio technician and wizard. We're going to jump right in. I've missed being in the studio, so I'm trying to catch up with a couple of episodes. You may have heard the last episode we talked about State v. McDonald, and that was a case dealing with PJCs, specifically the entry of judgment on a PJC after seven years. I recently put out a blog post about that. You can read more about that on the North Carolina Criminal Law blog if you're interested. I thought that was a good tie to one of the legislative changes I wanted to cover, which was the elimination of an appeal of right based on a dissent at the Court of Appeals. So formerly, if you got a dissent at the Court of Appeals, you had an automatic right to get heard in the North Carolina Supreme Court. And if you recall in that State v. McDonald case, then Judge, now Justice Riggs, penned a dissent. And so Mr. McDonald in that PJC case, and that was decided last August, At that time, he had an appeal of right to the North Carolina Supreme Court. But as of October 1st last year, he would not anymore. And in Mr. McDonald's case, he chose not to exercise that right. So he didn't seek further review. So that court of appeals decision is going to stand as we covered last episode and as I cover on the blog. That may have slipped past a bunch of people, and I think it's a pretty significant change. Formerly, our general statute 7A-30 permitted this appeal of right to the Supreme Court. Now, the only appeal of right is if it involves what is considered a substantial state or federal constitutional question. And that, of course, is up to the justices on the Supreme Court to decide whether something is, in fact, implicate a substantial state or federal constitution. constitutional question. And traditionally, my sense is that has not been an avenue where a lot of defenders are able to get hurt. Defendants can still argue that and try to get hurt in the state Supreme Court. And there's, of course, always also the option for petition for discretionary review. That's under 7A-31. But again, that is completely within the discretion of the Supreme Court justices. And at least over the last year or so, that's not something where we're seeing the court grant a lot of petitions for discretionary review from criminal defendants. A more narrow path, I think, to review of routine court of appeals decisions with a dissent. something we always hit on this show, but another good reminder for defenders to be sure and constitutionalize your arguments to the extent you can, whenever you can, under both the state and federal constitutions, because then at least you're giving an appeal lawyer grounds to make that argument that the case involves a substantial federal or state constitutional question. But my guess is most folks are going to be getting discretionary review granted to the extent they're getting review at all in the Supreme Court. So kind of a big change. There was also changes permitting. There was some sort of, I think, technical tweaks to the statute permitting felony pleas in district court. Formerly, it required the consent of the presiding judge to establish jurisdiction. That is not the case anymore under the statute. That, I think, is perhaps a solution in search of a problem because if the judge isn't going to hear the case, he's not going to hear the cases. So while the statute no longer expressly requires the consent of the presiding judge, presumably the judges are doing this stuff willingly. I do know there has been a push from the Supreme Court and Chief Justice Newby for district courts to embrace This process of taking felony pleas for H&I class felonies, lower level felonies in district court in an effort to sort of expedite the system to make for cases to be resolved more quickly. It's something in my home district of Pitt County, apparently we did a long time ago before I was ever practicing and I started in 08. But we've recently resumed that. And basically, and this was a question I had from a judge in regards to those district court felony pleas, what process do we need? And I think the best practice, you need a bill of information where the defendant has signed it, the defense counsel has signed it, the prosecutor has signed a bill of information saying, we waive the right to a grand jury indictment and we consent to the jurisdiction of the district court to hear this matter. then the case is on solid jurisdictional grounds. The district court goes ahead and acts as if it's a felony court. Probation violations stemming from that kind of case, they may be heard in district court with the consent of all the parties, but they normally will go straight to superior court, all things equal. So keep that in mind. You need a bill of information for felony district court, please. And the probation revocation hearing usually is going to still be in superior court unless there's consent of everybody to do it in district court. A small bit of legislative update, and that again is from last fall. The felony plea stuff went into effect December 1st. I believe the appeal of rights stuff went into effect back in October 1st. In other news, we have expanded our public defender system quite a bit. It's not a secret that most counties in the state have not been covered by public defender offices, or I think we're close to half, but we have rolled out seven new offices. Those districts include one in Sampson, Jones, and Duplin counties, big one in Bertie, Halifax, Hertford, and Northampton counties, Got one in Alamance, one in Union, one in Alexander and Iredell. Another big one in Bladen, Brunswick and Columbus counties. Another big one in Cherokee, Graham, Clay, Haywood, Jackson, Macon and Swain. Again, that's one district. And Johnston County will be getting one come the summer. I think it's July 1st or so that that kicks in. So That's going to cover 21 new counties from all over the state, from the mountains to the sea. That gets us closer to, I think, somewhere like 60% or so, maybe a little higher than that coverage in terms of counties with a public defender operating within the county. Hannah Turner works with the North Carolina Criminal Justice Innovation Lab, and she recently put out a blog post on the new public defender districts on the North Carolina Criminal Law blog. You can check that out there. So I believe, you know, the idea is to eventually get every single county covered by a public defender district. And I think that generally would probably be a good thing. I mean, we've seen and continue to see attorney deserts across the state and counties where there are very few people willing and able to take appointed cases. There are some counties I know of right now where there are zero attorneys within the district who are willing to take appointed cases. This is a particular problem with high-level felony cases. And then there's this related problem of perhaps there are people willing to take the cases, but their qualifications are not great. The public defender system is meant to sort of standardize the quality of representation, provide some floor. All of these counties, they'll still have to rely on appointed attorneys to handle conflict cases, multi-defendant cases, that sort of thing. but a vast expansion. And I think the momentum is towards more of this. So we'll continue keeping an eye on this legislation. But the hope and expectation is we're going to keep rolling out the public defender office I think right now we've got 92 new attorneys in the mix. I'm not sure if that includes the eight new chiefs or not, but I think most of these places have already found their chief public defenders and they're in the process of hiring. I don't believe anybody's taken cases yet, and some are further along than others, but they are staffing up those offices. We'll start training them soon. They will go forth and do the good work. Another follow-up from last episode is a case I wanted to cover called State v. Lester. In the last episode, we talked about a tweak to the business records hearsay exception, whereby as of, I think, March 1st, you can just do a certification under the penalty of perjury that business records are true and accurate copies, and that is going to be just as good as an affidavit or a certification under SEAL. which was formerly what was required to authenticate with business records without a live witness. Now we've made this change where you just got to basically write out, I promise, under the penalty of perjury, they're accurate. That's good. I was hoping to get to this case in the last episode. I just ran out of time. But that's sort of tied into this Stavey Lester case. And I think this is one to keep an eye on. The defendant got relief here on a compensation clause violation. But the Supreme Court, state Supreme Court, has issued a temporary stay. So I'm anxious to see if they take up this issue or not. Here's what's going on in Leicester. This was a Wake County case. We've basically got statutory rape, statutory sex offense charges. The victim was a 13-year-old girl. She had some serious mental health issues. She ends up at Duke Hospital one day. And in the process of being interviewed by a social worker, she acknowledges... Yeah, I've had a sexual relationship before. It was this guy around 30. She really kind of didn't see it as a big deal, minimized it. But that, of course, is a report of child abuse and specifically of statutory rape and sex offense. Social workers have a and all of us have a mandatory duty to report child abuse to DSS and to law enforcement. So that's what happens. Social worker makes a report. Law enforcement starts investigating. They quickly figure out who the suspect is. They quickly figure out they already have him in jail on unrelated matter. And they learn that these two, the defendant and the victim, have texted and talked on the phone a whole lot. So law enforcement, as they frequently do in these kinds of cases, they get an order authorizing Verizon to release phone records of the defendant. Importantly, they didn't say, give me all the defendant's phone records for the last 12 months or whatever the relevant period of time was. Instead, they said, Verizon, we want you to cull them down. We just want the communications, the records that show communication between this person, this victim and the defendant. So leave everything else out. Verizon complies, and they produce all these records. They're limited to only texts and calls between these two. They show that there's been a ton of communication, again. And over the defendant's confrontation clause and hearsay objections, the trial court allows these records to come in at trial. And this was really pretty substantial evidence because it was the only thing that corroborated the victim's story that the two had been engaged in sexual activity. There was no physical evidence. There was no DNA, you know, no confession. It was her story plus these records corroborating it. And there was a big old fight about admissibility at trial. You know, the trial court looked at this, these records, and they came under the former version of the business records exception. As far as hearsay goes, this is Rule 803, Subsection 6. The defendant argued, hey, those don't qualify for admission. You don't have a live witness to get these in. There is no affidavit attached to the business records, and there is no certificate under seal, like a notarized statement under a sealed document. Those are what you needed to get in a business record without a witness, and you don't have them here. And the trial court looked at it and they agree. It's like, yeah, there's no affidavit. It's not sealed. It's not notarized. There's no live witness. This doesn't come in as a business record. But the trial court did something kind of weird and was like, well, you know, if we read the catch all exception, the residual exception, it's known as Rule 803, subsection 24. If we read that alongside the business records exception. I think they should come in. The residual is where it's not admissible under any other rule, but this is really good evidence. It's really probative evidence. You can't find something similar to it anywhere else. The state or whomever's the proponent of the evidence has to provide written notice to their opposing counsel. Hey, I'm going to try and use this. It has to be material evidence. It's not otherwise available, and it has, you know, otherwise has signs of trustworthiness and reliability. And the trial court here got past the hearsay objection by really mashing up the business records exception and the residual exception and saying, if I look at all of this together, I think this basically qualifies. I'm going to admit it in. overrules the hearsay and the confrontation clause objection. It comes in, as I said, it was pretty significant evidence in the case, and the defendant is convicted and sentenced to, convicted on both counts, sentenced to 340 months in prison. The Court of Appeals unanimously reverses for a confrontation clause violation and also says the hearsay ruling was wrong. It's kind of funny for my confrontation clause nerds out there, the original version of this case that came out had that result. Confrontation clause violation, it's not harmless, it's prejudicial, new trial to the defendant. But it applied the old test, the pre-Crawford test from Ohio v. Roberts. Under Ohio v. Roberts, we looked at, you know, did the admitted statement fall within a firmly established hearsay exception? And that's exactly the test that the U.S. Supreme Court overruled in Crawford. I think in like 2006, if my memory serves. So originally, a unanimous panel of the Court of Appeals put out an opinion finding a Confrontation Clause violation, but did so under old law that hasn't been the law in more than 15 years. They caught their mistake after a week or so and withdrew that opinion. and put it back out applying the correct standard, which is the Crawford test. Under Crawford, we look at, is the statement that's at issue, is it testimonial? Was it prepared for purposes of litigation? Was it given under formal circumstances where we could expect it's going to be used at trial? Or was it non-testimonial? If it's non-testimonial, like say I'm calling for emergency help, that just doesn't implicate the confrontation clause because that kind of statement isn't designed to be used at trial. So we look at whether it's testimonial, then we look at, you know, is the witness unavailable? Because if you got the witness to come in and say, this is the statement and I'm here to be cross-examined on it, again, no confrontation clause problem. No witness though, you got a problem. The only way it comes in then is if the defendant had previously a chance and a motive to cross-examine the declarant on that statement. And if it's a testimonial statement with an unavailable witness and the defendants not have that prior motive and opportunity to cross, it doesn't come in. Except maybe in rare instances where the defendant has somehow waived their confrontation clause rights or forfeited it by wrongdoing. But those don't come up a ton. And this was court looked at this as a pretty straightforward application. They said, you know, those phone records and they didn't go into this discussion, but I think this is really the meat of it. And this is the part that I expect the state Supreme Court, if they hear the case, may hone in on. Phone records are sort of your quintessential business records, and they're usually non-testimonial because phone records aren't prepared for use at trial, right? They're just being collected by the phone company. Every time you send a text, every time you receive a call, it's a call outgoing. The phone company, presumably some software program or algorithm, is just collecting, cataloging that data, and making a list. That apparently was all the difference here, that instead of getting all of the defendant's records for the relevant time frame, they had the phone company cull them down to just the records between the defendant and the victim. And by doing so, the court said this became testimonial. That was prepared. The summary of the phone records, that was prepared for trial. So the court treated it as testimonial. and said that was a problem. Thin read, in a way. But prosecutors, you might watch out for that trap. If you alter or modify the phone records, that could convert what would normally be a non-testimonial record into a testimonial record. And then you're going to need a live witness or to meet some other exception where the defendant at least has not had a prior motive and opportunity to cross-examine. So, again, we see the unanimous court. They said these were looking at the primary purpose of the statement. These were prepared for trial. There was no prior opportunity for the defendant to cross-examine any witness about them. And that is a confrontation clause violation. Now, a confrontation clause violation on its own might still be harmless. But here it was not. This was major evidence in the case showing this communication. It was the only thing corroborating the victim's testimony, as we mentioned. No other direct or physical evidence. So this guy gets a new trial. Really good reminder about the basic confrontation clause principles. I'm interested to see if there's further movement on this whole issue of, you know, taking what would normally be a non-testimonial business record and sort of creating a summary or a condensed version of it, whether that truly stands as something that can convert them into from non-testimonial to testimonial. But that was the issue here, sort of curating or manipulating the records, got them made across the line. Again, sort of machine generated, you know, automated systems that are collecting records. That kind of stuff is typically non-testimonial. And had they had the complete records and just tabbed them up and directed the jury to, you know, on page 124, you can see the communications. I think that would have been fine. That would have been non-testimonial. This comes in. Tying it back to the last episode and the change to the business records exception, moving forward, you might see the complete phone records. They would still need to be authenticated as a matter of evidence rules. That can now be done with just a certification. So both things might come up. Just something I wanted to flag for folks. I'm not going to cover it, but Danny Spiegel, one of our newest faculty members here at the School of Government, somebody who's working on evidence issues and defender issues, he recently did a blog post diving into an unpublished case that really gets into the prior mode of an opportunity to cross-examine. I wish that case was published because all of the law we have on that subject so far is really... Well, it all finds that the defendant had a sufficient opportunity and motive. Say he had a chance to cross-examine the witness at probable cause, then the witness is a no-show at trial. Well, that was a sufficient motive and opportunity. And in this case that Danny covered, it wasn't in part because the state changed the charges, upped the charges between probable cause hearing and trial. And a really good deep dive. So if you're getting these confrontation clause issues in your case, You want to probably go check out that blog by Danny. It ties into a blog I wrote about, and I think we covered on this show some time ago, a case, State v. Joyner, where testimony from a civil 50C hearing where the defendant didn't show up and obviously didn't have a right to counsel. That testimony was admissible at the guy's subsequent criminal trial on the premise that this 50C hearing, protective order hearing, was his motive and opportunity. And by skipping that hearing, he waived. Interesting stuff. I love some confrontation clause. Moving right along, I published a update on the state of cannabis law, or I published part one of an update on the state of cannabis law just this morning. And I want to talk about a couple of those cases that I covered there. Part one is focusing on search and seizure, where we are with that. The answers are not very clear. Still, you can look forward to part two where I'm going to do a deep dive into drug identification evidence, lab reports, and some other developments that are out there. First case up is State v. Guerrero. This is a Union County case. This is all about a canine sniff and what value does that still have in probable cause analysis in the age of legal hemp. Here, there was a confidential informant tip to the police that said, hey, the defendant is leaving this heroin dealer's house. He might be holding drugs, letting you know. So officers go find this guy. They surveil him. And the defendant apparently runs a red light right in front of the officer. So by no coincidence, a canine officer makes the traffic stop. The dog alerts. a bag with brown powder suspected to be heroin is found inside the car. It was indeed heroin, and it was a trafficking amount of heroin. That's four grams or more in North Carolina. And the defendant raises this argument of, well, that dog is trained to hit on cannabis. That dog detects, I think it's really the terpenes from the cannabis plant, but that dog's going to alert on both legal hemp and illegal marijuana. That's problematic if we're depending on the probative value of this dog sniff, and it could be alerting on non-contraband. The trial court denied the motion here, in part finding that the canine's inability to distinguish hemp from marijuana wasn't really an issue in the case. I mean, here at no point did officers say during the interaction, I smell what I think to be marijuana or there's odor or sight of suspected cannabis. The dog, they were looking for other drugs, you know, heroin. The dog was trained to detect heroin. There's also a tip here that sort of corroborated all of this. So the trial court thought that was probable cause to search on the facts. On appeal, the court of appeals unanimously agrees. I mean, they just flat out say a dog alert by a trained canine remains probable cause. The legalization of hemp does not change that. They pointed to a previous case from 2022 where a similar argument was raised, State v. Walters. In both Walters and the Square Arrow case, the parties were arguing really about State v. Teague. There's all this dicta in Teague that hemp legalization changed nothing. The state's burden hasn't changed. The court said that's not really the issue here. Teague is not controlling. We think Walters is controlling. And Walters is really similar facts. They were looking for meth. They actually found Hemp, what was actually hemp, but it was in a bag alongside some meth. That's what they were looking for. That's what they found. That's what they suspected to find. And they just said, that's dispositive here where we're looking for something else. And there's the odor of marijuana isn't isn't relevant in the circumstances. We're not going to weigh in on this. We're not going to bite on the issue of, well, we have to throw out all these canine sniffs now. So maybe that's debatable. I mean, just like all of these cases, there are other facts like we had a tip here. There's reasons for the stop. I don't think the argument is totally dead. What I would say is dicta that's harmful to the whole hemp, cannabis, marijuana arguments being made in this context by defenders is. where they're citing to Teague and another earlier case, Johnson, that basically say that hemp has no bearing on any of our search and seizure law. Probable cause is a probability. It doesn't require proof. Now, I tend to agree this is less relevant, this issue of the dog potentially alerting on legal hemp. That is less of an issue when police are looking for different substances I don't love this concept that what they find sort of justifies the search on the front end. But where they're looking for different stuff and find different stuff, that is, I think, a little bit different of a situation than say, you know, straight up. It's we smell suspected marijuana. We're looking for marijuana and we're using an alert from a canine who's trained to detect just cannabis, both legal and illegal forms of cannabis. Because as the next case shows, I mean, this stuff is still live, even though this, I think, really ups the ante for defenders trying to challenge the canine sniffs. I mean, keep in mind, you can always challenge the canine sniff, but it's the defendant's burden to come in and attack the reliability of that animal. And I think normally you're going to need an expert witness to establish that. And you have to get specialized discovery about the dog's training, the dog's reliability record. I don't think it's dead, this issue, but Guero and the earlier case Walters, you know, I think really put it on defenders to say you're going to have to come forward with some different facts and potentially, you know, your own evidence to try and attack canine sniffs. And whether you want to say it's a part of the holding or not, the state is certainly going to be arguing this language of. Canine sniffs are the same as they ever were, so just be ready to contend with that. By contrast, we have State v. Springs out of Mecklenburg County. The defendant has a bad tag. He's stopped for that basis. He seems really nervous and is fumbling with his paperwork, and the officer notices an odor of cannabis. He also discovers that the defendant has a revoked license, is not legally licensed to drive. He's asked and the defendant says, no, I don't have any marijuana and I haven't smoked any marijuana. But, you know, I did just get the car back from my friend and he might have smoked in here. We don't know. I think I think he said my friend may have smoked a blunt in here. I can just tell you right now, folks, that kind of language, blunt weed, you know, anything like that. I think the courts are going to pretty much treat that as an admission to smoking marijuana, although, you know. If we want to get technical about it, you know, you could have a blunt of THCA or Delta eight flower product or something like that. You could be smoking a blunt of hemp, in other words. But I don't doesn't look to me like the appellate division is going to sink their teeth too far into those kinds of distinctions. So you get this, you know, the officer smells the odor. Guy makes this admission that a blunt may have been smoked in the car earlier by someone else. So he's asked out of the car. He gets out. And strangely, he brings his Crown Royal bag that he's got nearby with him. The officer pats him down and then searches the bag. What's in the bag? Scales, some cannabis, some powders, some pills. So this leads to a bunch of drug charges and he moves to suppress. And interestingly, the trial court says, you know, I think the standard here as to whether the officer had probable cause based on the odor of marijuana, it should be odor plus. And that's something we've talked about before on the show. That's something I've blogged about before. That's something a lot of these cases have been sort of applying without expressly adopting it. I mean, this all stems from the Parker case. In Parker, the court said, this may be an issue, this whole confusion over hemp and marijuana. And they look the same. They smell the same. We understand that. Is it still probable cause? Well, it might be a problem. We might have to go back and revisit some of our old precedent, but we don't have to decide it in this case because in this case, there were other incriminating circumstances. Well, that's the standard that the trial court applied here. They said, you need odor plus. I don't think the trial court said, I don't think you have the plus. You just had the odor. That wasn't enough to search the defendant's belongings. So motion is suppressed. Granted, all this evidence is out. And that's one takeaway for defenders is these motions do get granted at the trial court level when it's odor or sight only or odor only plus not really much else, which I think would probably describe the case here. Trial court again said no plus here, therefore no probable cause. I'm kicking the case, you know, motion to suppress granted. Well, the state didn't like that and they appealed. And when it gets up to the court of appeals, they reverse. Once more, to my great consternation, I've been waiting on an issue, a ruling on this issue, a square, straightforward ruling on this issue for several years now. And every time one of these cases comes out, I'm like, this is going to be the case. But no, no, yet again, we see the court ducking the issue. They said, look, we acknowledge the odor issue has not been squarely decided. They point to Parker. and said, we're not going to decide it here because just like in Parker, here the officer did have the plus. So even if we assume that's the standard, that standard was met here. But again, we're not actually deciding the issue today. Court said defendant basically admitted that marijuana had been smoked in the car and he never claimed it was hemp. Which, that's a bit odd, right? To say it's the defendant's obligation to come forward with some evidence to rebut what is otherwise ambiguous evidence of a crime. But that's not the first time we've seen the court point to that. So, I mean, I think that's one thing defenders should be aware of, and certainly any people who are out there in the community using these hemp products, is if the officer's saying he smelled marijuana and you know that it's coming from a legal hemp product, If you want to try and avoid charges, you might come forward with that. You might need to volunteer that. And I mean, of course, you don't have any obligation to answer those kinds of questions from an officer. You always have the right to remain silent. But, you know, you got a receipt from the hemp store. It's in a packaging that indicates it's a legal hemp product. That may be one way to nip these kinds of encounters in the bud, so to speak. The defendant, you know, extreme nervousness, his hands were shaking and an admission in a blunt was smoked and no claim it was hemp. The court said that was enough. I mean, that doesn't sound like a ton of plus to me, but my review is the courts aren't requiring a lot of plus, just sort of something more than the odor. And we've seen courts again and again say, you know, nervousness is really not a strong factor in the analysis. You can't put a ton of emphasis on that in a PC question analysis because everybody gets nervous when they're stopped by the police. But extreme nervousness certainly can. Again, like we saw in the last case, they go out of their way to say, we're not deciding this odor plus question. We're not going to decide what the impact of legal hemp is on marijuana. But then go on to cite that language from Teague and Johnson and other cases where they They say, but really, it also hasn't changed anything and all of our search and seizure rules still apply and things are fine. Things are as they always have been. As I wrote in the update that I put out this morning, that's tough to square. I mean, they can't say we're not deciding the issue and then go on and purport to decide the issue. Again, I think defenders have to be ready for the state to point to this dicta and argue, hey, you know, this has been decided. Nothing changed. And defenders are going to have to educate their judges on the issue and say, you know, that's not actually what springs or works. These cases say they say we've left the decision open, but here there was enough. And Springs, the dissent in Springs is actually can can make that case for you. I mean, Judge Murphy dissents. He's really writing separately to say the state's appeal here was so jacked up. I would have dismissed the state's appeal of this case for violating the appellate rules. I believe the state got taxed for cost of the appeal. in this case because they violated the appellate rules so strongly. But he drops a footnote in his dissent that's like, hey, we still haven't decided the probable cause issue based on odor. So I think that's pretty good evidence that the issue is still live. This case is certainly a good indication that the issue is live at the trial level. Something that was recently pointed out to me as one of the arguments folks are starting to make in these situations is the landscape is still evolving here. I mean, the hemp shops continue to proliferate. We see more and more of these cannabinoid products, THCA. is ostensibly a legal hemp product that's just sort of everywhere out there. There's many places and many jurisdictions where people are openly using what they claim to be hemp products. And I think the more that is the situation on the ground, the more these products are around, the more popular they are, the more they're being consumed openly. All of that factors into the totality of circumstances. Still not a clear answer on this PC issue, but some harmful dicta out there, but also some good signs that folks are raising this issue. Sometimes they're winning the issue. I know sometimes the state does not appeal these rulings. think my takeaway is just we're still in the land of undecided courts are de facto applying a odor plus standard with the plus really not being very high of a plus but i'm waiting for that case where it's odor only the person claims it was him the person produces documentation that it was hemp and the officer still arrests the person and charges them i think that's a much different case That would squarely tee it up in a way where I think the court may have to decide the issue until we get a clear answer. And I think that clear answer probably is going to have to come from the state Supreme Court. Just keep raising and litigating these things and. I'll talk more about the drug ID issue perhaps in the next episode. Again, I'm going to publish something shortly on that part. But I think that is as strong an issue, if not stronger, of, you know, you can't really say something is marijuana versus hemp without the proper lab test. And as I'll go over in the forthcoming piece, even a proper lab test sometimes the value of the testing can be debated sometimes the testing can convert what is otherwise lawful cannabinoids into illegal ones you run into all sorts of evidentiary issues and i'm going to walk through soon on you know attacking lay opinions in these cases attacking expert opinion cases and attacking the lab results and the testing So still a very rich area for defenders to try and make some hay in. But I think Guero sets a high bar for canine sniffs. And Springs is a good indication that the issue is still live. Odor plus seems to be what they're applying, but the plus may not be a whole lot. So keep in mind, these cases are fact specific. It's always a totality of circumstances question. So I think it's far from dead, but what it's worth, these two things are out there. These are both 2024 cases. I want to hit a couple of sentencing questions, or perhaps this is a plea bargain question. We got a case last fall, I believe, State v. Robertson. This was out of Cabarrus County. Guy pled guilty to felony flee to elude. And on his plea transcript, you know, there's a little box on the plea transcript that says, what is the, you know, write out your deal. What are you pleading to and what are you getting in exchange for it? The plea transcript read, defendant will plead guilty to felony fleeing to elude and shall receive a suspended sentence. That was the quoted language from the plea transcript. The defendant shall receive a suspended sentence. And the judge says, cool, I accept the plea and defendant, you're ordered onto probation. But I'm adding as a special condition of probation that you serve a 30 day split sentence of active time in the jail. Well, the defendant wasn't planning on that and didn't like it. So he objected and said, judge, that's not that's not what we were agreeing to. It was supposed to just be straight suspended sentence. I move to withdraw my plea. Even the ADA, to their credit, speaks up. The assistant district attorney says, no, judge, we didn't want him to get a split. We weren't planning on him getting a split. The deal was for straight-up probation. We'd like you to just give him straight-up probation. And the judge says, the deal was for a suspended sentence, and I gave him a suspended sentence. And you don't like the split? Too bad. I can do that, and that's still a suspended sentence? That's within my authority. But no dice. The court said your motion to withdraw the plea is denied. Go do your time. Well, the defendant appealed and the court of appeals unanimously reversed. They said, which this shocked me because this would happen to me in my home district when I was practicing, especially early on when I was getting up to superior court. We sort of my local bar had learned the hard way. That kind of language, defendant shall receive a suspended sentence, that ain't gonna get you there. That's not gonna protect your client from that kind of surprise split sentence. If you wanted to nail it down, your agreement would have to say the defendant shall receive a suspended sentence with no additional active jail time. That is what it would take to sort of tie the judge's hands. And that's what I always did. That's what I have trained people in the past to do. Be as specific as possible in your plea transcripts. If you leave something up for interpretation or you leave some ambiguity in there, it might come back and bite your client. Well, to my great surprise, the Court of Appeals sided with the defendant on this one and said, look, no, plea bargains are contracts. They involve waivers of basic constitutional rights under constitutional law. And as a matter of due process, the defendant is entitled to strict adherence to whatever deal he he enters. And under 15A, 1023, you can agree to a specific sentence. And when a deal does that, the court has to say whether they're going to accept the deal or not. And that's an important statute to keep in mind, just as an aside. Under 1023, if you don't have a deal, it's just I'm pleading guilty as charged straight up and sentencing is in the discretion of the judge, the judge has no authority to reject that plea unless it lacks a factual basis or there's some other problem with it. But they They can't say, I don't like this. I'm not taking it. They are under 1023 required to take that deal. Where somebody's trying to tie the judge's hands, though, you know, hey, judge, we agree to bottom of the mitigated range active sentence. That's what we agree to. The judge has the discretion to reject that plea. But if he rejects it, he's supposed to give the defendant notice. I'm not going to accept this and allow him to withdraw the plea. And typically that can get put back on in front of someone else to sort of try again. And we had an earlier case from the state Supreme Court, State v. Chandler, that emphasized this. I mean, there's also a state Supreme Court decision now that backs you up on this, backs up defenders on this argument that, hey, the judge does not have discretion to reject a plea when there is no agreement as to sentencing and a factual basis exists. In Chandler, the judge didn't like that the defendant was pleading Alford and was like, I'm just not accepting the plea because I don't like Alford pleas. The Supreme Court reversed and said, you didn't have any authority to reject that plea. You need to go accept that plea. Under 1023, there was no agreement. That was that. Well, here, of course, there was this agreement, you know, shall receive a suspended sentence. Presumably he was in a box on the grid, the sentencing grid, where he could have gotten active time or probation time. They said the judge should have allowed the motion to withdraw the plea here. The court said this deal was ambiguous as to whether a special condition of probation would be imposed, that being the split sentence. And they said, particularly where, like here, both parties raised concerns that the defendant was not getting his intended benefit, the trial court then had a responsibility to clarify the intent of the parties. And then the trial court could either accept or reject the plea. But if he's rejecting it, the plea gets to be withdrawn and the defendant's entitled to a continuance. And there's a place on the front page, the first page of the transcript of plea. There's a box for this for the judge to check and say, I reject this plea and I'm recording my rejection. I encourage defenders to, you know, push to get that filled out when they're in this situation, because in my experience, a lot of time the judge would just tell you, I'm not doing it and you need to come up with something else right now. Well, that's not how that's supposed to work. There's supposed to be documentation on the plea transcript that a judge considered this plea and rejected it and the defendant should be allowed a continuance. So don't feel forced into, you know, coming up with some other deal on the spot and let your judge off the hook by not having them document their rejection on the form. Your trial court should have clarified the deal and either accepted it or allowed it to be withdrawn. Great case for defenders on this issue. I mean, this is not something that never comes up. This comes up a lot. I still think best practice, you know, spell things out, be as specific as possible. You know, if your judge is willing to let you negotiate closed pleas, you know, pleas where We know exactly what the sentence is going to be. The judge doesn't have any discretion to modify the terms. That's what you want. You want it to be unambiguous and completely clear. But where an ambiguity creeps into the plea bargain, then no, you are entitled to withdraw the plea if the judge does something unexpected. And Robertson can help you with that. The plea was vacated, the case was sent back down, and he'll get a chance to try again. Again, a surprising one to me, but I think an important one and a really good case for defenders in dealing with this sort of surprise split sentences that comes up more than you'd think. All right. Last one of the day, we covered the court of appeals decision at this case sometime back, probably a few episodes back. This was a Wake County case. It's really a sentencing and a due process case. The first time we covered it, trust me, you really don't want to read the facts in this case. And I'll just reiterate, you really don't want to read the facts in this case. It's one of the most disturbing things I've ever had the displeasure of reading, but I can Briefly, just tell you it involved pretty awful sexual abuse of a young child by a teacher at a school. This defendant goes to trial and is and I'm sorry, did I say it as state v. Pickens? This guy was convicted of three very serious sex crimes at trial. During sentencing, the trial court made some remarks before imposing a very long sentence, three consecutive 300-month minimum sentences, so a minimum of 900 months, certainly the rest of the guy's life. The trial court said to the defendant during sentencing, you had a choice, Mr. Pickens. You could have pled to something. You could have worked something out. But when you chose to go to and I'm paraphrasing here, it wasn't quite so explicit, but the gist of it was you had a choice. But the underage witnesses, the child victims, and there was multiple ones because he'd done it before. They didn't have a choice about coming in here and testifying at trial. And but you you had a choice. And because of your choice, you know, presumably to go to trial. You forced these children to come in court and testify and be re-traumatized. As a result, you know, I'm giving you every day I can give you. Or at least that was the defendant's argument. He's like, hey, these comments from the trial court, that amounts to punishing me for exercising my right to trial. And due process says you can't do that. And that's true. You cannot be punished extra by the trial court just for exercising your right to trial. And I think this is something that comes up often. I know I saw it as a young lawyer. And sometimes I would just get we'd go conference a case ahead of trial. And the judge would say to the defense lawyer, you know, if you try this case and lose, I'm going to I'm going to absolutely light your guy up. I'm going to give him every day I can give him. I'm going to run everything consecutive, whatever. I'm not sure that's appropriate. I mean, I think there's a really good argument that that is punishing the defendant for exercising his or her right to a jury trial. I mean, it's one thing to say this is a serious case and if the allegations are proven, my inclination is going to be to impose a harsh sentence. Or I'm willing to, you know, agree to a lesser sentence in the event the defendant. Here's what I'm willing to do if the defendant pleads guilty instead of going to trial. But where the judge, you know, expressly spells it out and says, if you go to trial, I'm going to punish you worse. That's a problem. And I think that kind of stuff gets set at the bench. It gets set in chambers or, you know, in conference rooms. You know, I know when I was a young lawyer, I was just like, oh, yeah, it makes sense. I guess I got to live with it. I'll go tell my guy, hey, judge said if we lose, he's going to light you up. I think if that happened to me now, though, I would be pushing back and I would make a record of it and say, I need to be heard on the record. And judge, you just indicated in chambers that you were going to punish the person worse if they exercise their right to a trial and were convicted. But it's a thin line. The bottom line is that cannot be a factor at sentencing that the defendant chose to go to trial. It should not be taken into account. And doing so violates the right to a jury trial under the state and federal constitutions. The Court of Appeals gave this guy a new sentencing hearing saying this was inappropriate, sounds like the judge was punishing this guy for exercising his right to a trial, remand, and let the trial court conduct a new sentencing hearing. I said back then when we originally covered this case that yeah, I really didn't think he was gonna get any better of a sentence on re-sentencing because the facts are just utterly horrific. But he was going to at least have his day in court again and try to argue, you know, this first sentence was so extraordinary, so excessive, in part based on improper motivations to punish me for exercising my right to trial. But before any of that ever happens, the state seeks further review of this issue. It gets up to the there might have been a dissent at the Court of Appeals. I don't remember, but it gets up to the state Supreme Court and they reverse the Court of Appeals. yes, this is a thing, you cannot punish the defendant for exercising his or her right to a trial, but here, these remarks were really about the defendant's decision to commit this horrific crime, not about the defendant's exercising his right to a trial. They went through the cases that have found violations of this, And it's basically where the trial court comes out and says, hey, I'm going to punish you more if you go to trial or I'm punishing more because you went to trial. And they agree. The state Supreme Court says you cannot do that. Trial courts, if it does happen, defenders, you got to object. And like I said, if it's said off the record, you got to put it on the record. You have a responsibility to make that record. But here, the court pointed to what they called the presumption of regularities of judgments. And they said, you know, judgments of the trial courts, they're presumed to be regular. They're presumed to be lawful. And if we applying that presumption of regularity here, The underage witnesses didn't have a choice, but you did, Mr. Pickens. That comment, according to the state Supreme Court, was ambiguous. It was equally possible that the trial court was punishing the defendant for going to trial as it was that he was condemning the defendant's horrific actions. that were the reason for the prosecution in the first place. So the Supreme Court said, we can't say it's improper on these facts. These kinds of claims, you've got to look at all the context, potentially a valid claim when the trial court is explicit that they are punishing the defendant for exercising this right. But here it was not enough. So an important update and a little bit of clarification on the trial penalty case. I think that's how I categorized it in the first podcast episode where we covered this. Still something to look out for for defenders. And I said, again, this is the kind of thing where it might get said in chambers and defenders, you need to go in and put it on the record. I think that's probably grounds to recuse a judge if they have told you we're going to punish this defendant for exercising this right to trial and you catch it before a sentence has been imposed. If it happens at or during sentencing like it did in Pickens, you need to object. You need to raise due process and the right to a jury trial under both state and federal constitution. So this is preserved for appeal. Man, it feels good to be back in the studio. We've done two episodes back to back over the last few weeks, and I'm hoping to get back in here for a third. So I know I have a lot of makeup to do. Check out the criminal law blog for the latest stuff. We'll get these episodes out the door as soon as we can. I also recently did a podcast episode with Rod Kight. That's K-I-G-H-T. He's a international business cannabis lawyer in Asheville. He has a website, Kite on Cannabis, that you can find anywhere you have an internet connection. And if you go to his blogs and podcast page, you can see we've got a YouTube video or podcast video where we talk about even more cannabis issues. That is all cannabis all the time. Some of it overlaps with what we talked about on this episode today, but a lot of it is stuff that is really beyond the scope of criminal law. But if you're interested, it's good stuff. It's out there. Now, Rod is obviously an advocate and I am politically and partisan neutral on policy issues, but it is a thought provoking discussion. So if you're itching for even more cannabis podcast, check that out. Otherwise, until next time, big thanks to all of you listeners. A big thanks to Paul Bonner on the ones and twos in the studio. Thanks to Monica Yelverton, our associate director of programs and services for the public defense education team. Thank you to my brother, David Dixon, for composing our theme music. You can find him at David Dixon Music on Facebook or Insta. call me, email me. Let me know if you have questions, comments, concerns, feedback. And I love hearing from listeners and I appreciate all the encouragement I've gotten from listeners so far. We're going to keep doing this for the foreseeable future whenever I can get my butt into the studio. The email is dixon at sog.unc.edu. Again, that's d-i-x-o-n at sog.unc.edu. Again, I'd love to hear from you. See you again soon. Thanks, everybody.