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[00:00:11.708] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief. I'm your host, Phil Dixon. I'm a faculty member here at the UNC School of Government, and this is a podcast devoted to criminal law issues in North Carolina and beyond. As usual, we've got a ton of material to cover, and we're going to jump right in. This first case, you know, I rarely cover cases that are out of circuit. We occasionally cover a Fourth Circuit case. That's the Federal Circuit Appellate Court that North Carolina is in. But there's one out of the Eighth Circuit that combines two issues that we talk about a lot on the show, those being guns and cannabis. And U.S. v. Cooper was recently released out of the Eighth Circuit that combines both of these issues. No citation yet on this case, but it was released by the Eighth Circuit on February 5th. of 2025. And hat tip to Professor Jeff Welty, who mentioned this in a news roundup item, and that's what brought it to my attention. This is an as-applied Second Amendment challenge to 18 USC 922 . Regular listeners probably know 922 is, generally speaking, the federal gun prohibition. It restricts certain categories of folks from possessing firearms, so people with a felony conviction, people who are subject to a domestic violence restraining order, people under indictment, and the like. This specific subsection of 922G, G3, talks about unlawful users of controlled substances or those who are addicted to the use of controlled substances. If you qualify as an unlawful user or a person addicted to controlled substances, federal law 922G3 says you are not to possess firearms. It is a separate and new felony if you do. The defendant, Mr. Cooper, here was a fairly regular user of marijuana. He lived in Iowa. Iowa is a state that has not legalized marijuana, so it's still illegal under state law. And the evidence showed basically that this defendant smoked about three to four times a week, and he had smoked two days before the traffic stop in question here that led to the discovery of a gun in his car. leading to these charges. He's charged under 922G3 with being an unlawful user of controlled substances in possession of a firearm. Because I guess his lawyer was keeping up with all this Second Amendment stuff, he brought a facial and as applied challenge under the Second Amendment, basically saying, hey, this law is completely unconstitutional in all respects under the Second Amendment. That's the facial challenge. And as applied, meaning, well, even if it can be constitutionally applied to some people, it can't be so constitutionally applied to me on the facts of my case. The district court here denied the challenge and just basically found, look, drug users as a class, categorically, they cannot possess firearms, does not matter what the circumstances are, how frequent it is, or what the drug is, across the board. So denied basically, denied both the facial and as applied challenge. Well, in an earlier Eighth Circuit case called U.S.V. Veasley, that's V-E-A-S-L-E-Y, that's 98F4906, a 2024 case from the Eighth Circuit, Feasley rejected a facial challenge to this part of 922 and said, look, the federal prohibition on possession of guns by people who are users, unlawful users of controlled substances or addicted to the use of controlled substances, it's going to have some effect. constitutional applications. It can be constitutionally applied to at least some people covered by the law. And so the panel here in Cooper pointed to that part of Easley and said well hey we're bound by that and that takes care of this facial challenge that Mr. Cooper has brought. But that case Veasley expressly left open the possibility that there would be some room for as-applied challenges to 922 . And the Veasley court expressly gave as an example Hey, you know, we wonder, could 922G3 be constitutionally applied to, say, an elderly grandmother who uses medicinal marijuana for a serious chronic condition while she was also, you know, had a shotgun in her home for self-defense? Would that be consistent with the Second Amendment? So the Eighth Circuit takes up this question for Mr. Cooper and ultimately finds the district court erred by categorically rejecting the as-applied challenge. So it's not a win for Mr. Cooper, but the Eighth Circuit did say, district court, we're sending it back. You need to go through the Bruin analysis, district court, in other words. Is this limitation of 922 does it affect conduct that is protected by the Second Amendment? Seemingly so. If so, is that limitation or regulation consistent with our historical national tradition of firearms regulations? That's Bruin. After Bruin, we have Rahimi, which we covered on this show. And per Rahimi, this historical analog, it doesn't have to be an exact fit in the language of Rahimi. It doesn't need to be a historical twin regulation. Rather, the question is, is this challenged law analogous to some historical tradition of regulation? Is there anything close? And the court notes here, obviously, there's a historical tradition of disarming the mentally ill. or people who are dangerous. Dangerous people or mentally ill people who were dangerous not only got disarmed at the time of the founding, but they would often be subject to more significant restrictions on their liberties, like being confined in a mental institution. But the court notes there was plenty of mentally ill people who were unquestionably not well and mentally ill, but they were not deemed dangerous. And when they weren't dangerous, they weren't subject to commitment in a mental institution. They usually just stayed home with their families. And the court says this is the similar idea with drug users, we think. Some drug users will be dangerous in all likelihood, but not necessarily all people who use controlled substances are. Do you smoke PCP every day of your life? That's likely to be a problem. Meth use, PCP, synthetic cannabinoids, these are drugs that can induce psychosis. People have extreme reactions to them. And I would think many of those people using those categories of drugs on a regular basis might qualify as dangerous. A grandma smoking marijuana in her home for pain is categorically a much different situation. The court strongly implies here, unless the government can show that this marijuana use makes a person either mentally ill and dangerous or causes them to act in some kind of way that causes terror for the public, it would not be consistent with our historical tradition to apply this firearms ban to Mr. Cooper. I thought this was really interesting. So much of this Bruin litigation, the Second Amendment stuff, is going back and looking at what was happening at the time of the founding, what was happening at the common law. And they said, we think drug use here is more akin to the kinds of restrictions that were imposed on intoxicated people in historical times. There were limits on when and how and where intoxicated people could use guns, but there was no categorical ban that said if you get drunk every Friday night, you're not ever allowed to possess guns. Perhaps occasional, even frequent, marijuana use is more like someone who drinks a lot, and maybe you can't bring your gun into the bar, maybe you should not have a gun while drinking, But having a gun in your home while being a frequent consumer of alcohol should not be a felony any more than perhaps the same situation for marijuana use. Of course, marijuana remains a Schedule I under federal law and is categorically illegal, but there is a process underway to reclassify its schedule for what that's worth. So anyways, Mr. Cooper gets a win of the Eighth Circuit. This goes back to the district court for a full analysis and we'll keep you updated once this inevitably comes right back to the Eighth Circuit. Folks may remember we've talked about this subsection of 922G a little bit in connection with Hunter Biden, former President Biden's son. He was charged with being an unlawful user of controlled substances in possession of a firearm. and was convicted, he had a post-trial motion still out there pending on an as-applied Second Amendment challenge, but of course was ultimately pardoned. And as far as I know, that challenge was never heard and ruled upon. I'm tying it a little bit closer back home, but staying with the Eighth Circuit for just a second, the Eighth recently went the complete other direction on felons in possession. That's 922G1. the federal ban on possessions of firearms by a person convicted of a felony. The court here rejected the idea that really there could ever be a successful as-applied challenge to 921 under the Second Amendment because felons, perhaps unlike unlawful users of controlled substances, felons can be, across the board, banned consistent with the historical tradition. That is USV Jackson. That's 110F 4th, 1120, 2024 8th Circuit case. This drug user ban was not such a neat fit, but felons, they say, as a class, may be disarmed. I raise that to say the Fourth Circuit just adopted that reasoning from the Jackson case in a case called U.S. v. Hunt. That's 123 F. 4th, 697, December 8th, 2024 case. out of the Fourth Circuit. They said, yep, we agree with the Eighth Circuit and Jackson as far as firearm bond felon. Just categorical disarmament of felons is fully consistent with the historical tradition. There is no need to do a case-by-case analysis of the type of felony conviction. Doesn't matter what felony you have, as applied challenges have been shut down in the Fourth and the Eighth Circuit. I'm not going to do a deep dive on this, at least today, this USV Hunt case out of the Fourth Circuit, but I would just note I summarized relevant Fourth Circuit decisions on the North Carolina Criminal Law blog. I wrote up a summary of it here. There is some interesting historical analysis here talking about the ability of legislatures to disarm whole classes of people such as Indians or religious minorities. And sort of without approving of that sort of targeting on the basis of gender, ethnicity, or associations, they say, well, the legislature had the power then, and this is like that in some way. So felons are like the kinds of people who were disarmed because they were deemed dangerous, even if that determination by early legislatures had its motive in some kind of discriminatory intent. categorically no as-applied challenges under the Second Amendment in the Fourth or Eighth Circuits. This is in direct conflict with the Third, Sixth, and Ninth Circuits, where they've said as-applied challenges to 922 may take place. We do have to have case-by-case analysis. The type of felony does matter, and sometimes it's going to be unconstitutional. There's just no way to reconcile that kind of split. And my guess is in the coming years, we will see the U.S. Supreme Court have to jump into the fray on this question. Folks may be familiar with USV range. I'm not sure if that's already at the Supreme Court or if there's a petition waiting to be heard. But when the right vehicle comes along, this split is going to have to be addressed by the U.S. Supreme Court. We'll keep an eye out there as well and we will be updating you here on the blog and in our webinars. Oh, and we're having a webinar on Friday the 21st of February this year. We will talk about some of this Second Amendment stuff as well as other things we're covering here today. If you're interested, you need some CLE credit or you just like learning about the law, you can watch that by registering on the School of Government website. We also post those webinars after the fact to be watched either for credit, for a small fee, or for free if you just want to watch it to learn. Folks, this is a criminal law podcast, of course, and we sometimes talk about somewhat disturbing things, fact patterns, horrible crimes, that sort of thing. I don't think this one's too, too bad, but I would just say if you've got little kids in the car and you're playing this or something to that effect, a little bit of content warning. There's some sexual content that we're going to talk about over the next couple of cases. And these are Andrew V. White, a U.S. Supreme Court decision from late January of this year, 2025, and State V. Hicks, a Court of Appeals decision from New Year's Eve 2024. These are about, respectively, due process and irrelevant evidence and prejudicial evidence rising to the level of plain error. Now both of these are kind of in weird procedural posture, but they are great reminders to defenders about both evidentiary and constitutional limits on improperly prejudicial and irrelevant evidence. Over the years, the U.S. Supreme Court has sometimes recognized that highly prejudicial evidence being admitted against a defendant at a criminal trial may so fundamentally taint the fairness of the proceedings that a due process violation occurs and at some point the defendant is going to be entitled to a new trial. The case at the sort of center of this was Payne v. Tennessee, 501 U.S. 808. That's a 1991 case where at least by there, it was pretty clearly established that you have this due process protection against highly prejudicial evidence. That's what the court was applying in this Andrew v. White case. And as far as I know, this is the first criminal case of the term, or at least the first one that has created a blip on my radar. She is Ms. Andrew and Hicks, the state case we'll talk about in a second. These have really similar facts, and that's why I'm covering them together. Let's start with Andrew V. White. Again, no citation yet, but January 21st, 2025, U.S. Supreme Court per curiam decision. Ms. Andrew was charged with murdering her husband in 2001. She was tried capitally in Oklahoma State Court a few years later. Now, she had separated from her husband at the time, and she was dating another man, but she and her husband had children together, and they continued interacting during the period of separation. A husband turns up dead, shot to death, and she and the new boyfriend quickly become the suspects into the investigation of the husband's death. And both are eventually charged with capital murder. Now, ostensibly in an effort to corroborate evidence of a conspiracy between Andrew and her boyfriend, the prosecution presented a considerable amount of evidence relating to really seemingly unconnected, intimate details of Andrew's personal life. I'm quoting from the opinion now. Among other things, The prosecution elicited testimony about Andrew's sexual partners reaching back two decades, about outfits she wore to dinner or during grocery runs, about underwear she packed for vacation, and about how often she had sex in her car." Two witnesses for the prosecution were called to the stand strictly to discuss the defendant's provocative attire. Other witnesses were called just to offer an opinion on whether a good mother would dress or behave the way Andrew had. The prosecution emphasized this salacious evidence during both the guilt innocence phase of the trial and the death penalty phase of the trial, with at one point during closing arguments, the prosecutor was waving around to the jury a pair of the defendant's thong underwear. Perhaps unsurprisingly, the jury convicted Andrew of first-degree murder, and she received the death penalty. So she appeals on up. This, again, is an Oklahoma state court decision. She goes to the Oklahoma Court of Appeals. They rejected that argument. A majority of them rejected that argument. The state appellate court said, you know, some of this was OK. Some of this relating to her extramarital sex was relevant to show that she had a tendency to seduce men and that, you know, her seduction of the co-defendant. was somehow relevant here. But the court acknowledged that a lot of this stuff was irrelevant. And the state, to its credit, was conceding this on appeal at this late point, saying, yes, you know, we agree this probably went too far, but we think it was harmless. And a majority of the court of Oklahoma Court of Appeals agreed, harmless error. She did get two dissents, one of whom would have given her a new trial. The other would have at least given her a new sentencing. So she goes to federal habeas, making the same arguments. Federal District Court denies her habeas petition. She appeals that up to the 10th Circuit. The 10th Circuit affirms Andrew seeks review at the U.S. Supreme Court, and she scores a victory there. In this per curiam opinion, the U.S. Supreme Court reverses, sends the case back to the Tenth Circuit, and tells it, you need to reconsider your earlier opinion, affirming the denial of the habeas petition. Court notes that Payne v. Tennessee case I just mentioned. They say, we've recognized the potential for due process violations based on this kind of stuff going back to at least 1974. They cite a case Donnelly v. DeChristophoro, 416 U.S. 637, 1974. In the interest of disclosure, I mean, the court has never actually overturned a conviction based on this due process principle. And Note, they did not do so here. Andrew still has to go convince the 10th Circuit to rule in her favor. But I thought it was really significant and sort of the first time I've seen it in a good long while that the court expressly reaffirms this due process limitation on prejudicial evidence and allows for the possibility that a new trial or a new sentencing hearing may be required when it's violated. a huge win for Andrew in getting her habeas denial re-examined and reopened. But the question now for the 10th Circuit is, did the Oklahoma State Appellate Court unreasonably apply this clearly established federal constitutional right, this due process protection, in ruling against her? Under the federal habeas rules for state convictions, that's 28 U.S.C. 2254, A state conviction can only be overturned in federal habeas if the underlying decision involved an unreasonable determination of the facts or an unreasonable application of clearly established federal law. And unreasonable here means no fair-minded judges would disagree. When Andrew originally took her habeas petition before the Tenth Circuit, they really refused to even do this reasonableness analysis. They found there is no clearly established federal right at issue here. Andrew went to the Supreme Court. She won. Supreme Court says that's wrong, Tenth Circuit. This is clearly established. It's at least been clearly established since Payne in 91. And so back to you, 10th Circuit, for you to actually conduct an analysis of whether the Oklahoma State Appellate Court unreasonably applied this, what is clearly established federal law. Good reminders to defenders about this due process protection against unduly prejudicial evidence. And I'll come back to it in a minute after we get through Hicks as far as some takeaways from the decision. But as I mentioned, on New Year's Eve, the Court of Appeals released State v. Hicks. And this is really State v. Hicks, Roman numeral II, Hicks II. Hicks has already gone up to the state Supreme Court once on a self-defense jury instruction issue. She got some relief there back at the Court of Appeals for some remaining challenges, and this is what's left. To give you the facts, and they're a little bit convoluted, so stick with me here for a moment. Another female on mail killing. The defendant was married but was seeing another man. The guy she was seeing, I'm going to refer to him as boyfriend. Boyfriend was also married to someone else, but... Both the defendant and boyfriend also had quote-unquote intimate relationships with other third parties as well. The boyfriend introduces defendant to meth and they start using meth together. There's some evidence that the boyfriend often gets really angry when he uses meth, which we just kind of touched on in that 922G3 discussion. Social media, nothing good happens on social media. One day, the defendant posts a photo of her and her boyfriend kissing each other on Facebook. Wonder of all wonders, the boyfriend's wife sees that post and she gets upset. And she confronts her husband, again, the defendant's boyfriend. And he's like, well, that's not me. That's not me. Blah, blah, blah. Fast forward a few weeks and the defendant, apparently mad at boyfriend, she reaches out to the wife of her boyfriend and tells her that he's using drugs and that he's having an affair. A few days after that, boyfriend and defendant see each other. They get into some arguments. He visits her trailer at one point and threatens to hit her. The daughter hears them yelling. That night, he comes by again and picks up some drugs. She, the defendant, texts him later and is like, I'm going to tell your wife about us and I'm going to send her some of the explicit photos we've taken together because I guess you're doing me dirty. And in fact, she does. She follows through on that, at least partway. She calls the wife that night, her boyfriend's wife, and reveals, hey, I have a relationship with your husband. And she also expressed some concern for her safety. She asked the wife, has he ever been violent around you? Has he ever threatened you? Because he's made some threats to me recently, and I'm kind of I'm worried that he's going to hurt me. I don't understand this part. It sounds like maybe somebody was trying to collect drug debt or something, but somebody comes to her house this same night in the middle of the night and is looking for the boyfriend. In response to some strange man yelling for the boyfriend in her yard, she tries contacting him several times. He responds at one point with a pretty threatening text message that I'm going to put you in a ditch or words to that effect. He comes over at about 6.30 in the morning and they get into a scuffle. He tries to take her phone. He grabs her gun when she won't give him the phone. Apparently there's just a gun on the bedside table. She grabs the gun back, tries to get by him. He grabs her arm. He prevents her from moving. out of the room and she ends up shooting him twice, killing him, dead. She's charged with second degree murder here. She claims self-defense. There were some inconsistencies in the various versions of the facts that she gave to law enforcement, but the bottom line that she was scared that they were fighting, he was in her house, and that she shot him in self-defense, the outline of that stayed the same. Originally, the police didn't notice any bruising on her, the defendant, but as they continued talking to her throughout the evening, the rest of the day, I guess, she did apparently have some bruising on her that corroborated her story that this guy, the deceased, had assaulted her. On appeal, she says, I shouldn't have been convicted. There was two exhibits that were admitted at trial that were completely improper. They were totally imprejudicial. And the defense attorney in this case did not object to this evidence at all. So not only was there no due process prohibits this, there was no, hey, this is irrelevant. Hey, 403, this is prejudicial. So no objection at all means that the defendant now has to ask the appellate court to review for plain error only. That's a much higher burden on the defendant to show that the prejudicial effect of the evidence probably means that the jury would have done something altogether different, that the jury would have entered a different verdict but for this improper evidence. To my surprise, I mean, we see plain error wins on evidence grounds like never. But she wins. Again, this is all being analyzed pursuant to rules of evidence 401, relevant evidence, and rule of evidence 403, prejudicial evidence. The exhibits at issue here were downloads of the text from her phone and downloads of the pictures from her phone. Just like we saw with Andrew, tons of irrelevant and prejudicial information. Here, the defendant was, you know, sometimes it was just really innocuous. Like she's talking about her Facebook profile. She's chatting with her son about her day. She's bragging about her relationship with her boyfriend, how much she loves them, sometimes talking about other affairs that she's having. But then there's stuff about, you know, their meth use. I think at one point her son is stopped by the police and he texts her and she sort of texts back, you know, remarks that generally indicate a disrespect for law enforcement, just sort of like dissing police. At one point discusses with her teenage son, you know, sort of very crude language about his sex life and what he's doing with a girl. She at one point is having a conversation with like another relative about someone in the community who got stabbed. And again, you sort of saw this like really callous attitude of like person deserved it, served him right, that sort of thing. There's some discussion of like sexual bondage and other like kink practices with just like other people in her phone. These weren't tied to the victim, but just a lot of intimate details, most of which had kind of basically already been covered, at least the relevant parts of that had already been covered by actual testimony. These text messages were all printed out Each juror was given a copy to hold. They were able to hold it the rest of the trial and through deliberations, and a detective got on the witness stand and read through all of the text messages, had the jury read along on the printouts. Court said, this is a problem. We think just on these texts alone, the jury probably convicted just based on their emotional revulsion at the defendant. It was wrong to admit this evidence, and it was doubly wrong to give it to the jurors to hold indefinitely for the rest of the trial without so much as a limiting instruction as to how they were to be used. So she wins on that alone. But the photos are really like worse. Somehow the state felt it was appropriate to admit photos of not only the defendant and victim kissing from her phone, which, you know, fine. There's close ups of her genitals. There was pictures of them having anal sex together. There was close ups of the defendant performing oral sex on the victim. These pictures were blown up. They were printed on 8x10 pictures, paper I mean, and again, given to the jurors to hold and keep throughout the remainder of the trial without so much as a limiting instruction. The DA had an officer go through each photo, describe each photo in detail, and name each of the sexual acts depicted in the photos, which I have a hard time time fathoming how there could be a proper purpose behind admitting that kind of evidence in this kind of case. Needlessly prejudicial, needless to say, very prejudicial, very cumulative of other evidence. Court says there was no purpose here other than to shock and disgust the jury. Unless you're a regular consumer of pornography, this stuff would have really freaked you out, the court says. Its purpose here was really to show that the defendant was just a bad and immoral person. Just like with the text messages, not only should this not have been admitted at all, but you doubled the mistake by giving it to the jury to see all of this blown up, unrestricted, without a limiting instruction for the whole trial. A couple of takeaways that I thought was really interesting about Hicks, this emphasis on the manner in which the prejudicial evidence was presented. It's not just the content of the evidence that might be objectionable, but how it gets given to the jury can also matter. So you might object, judge, we think this is irrelevant, we think this is prejudicial, and we think blowing up these photos or giving the jury read-alongs of these texts without any limitation on how it's going to be used and without any time limits on how long they're going to have to consider it, that could be its own objection right there. I'm sure my regular listeners know, you know, the follow-up point is you got to object on all the grounds. And that's why we started with Andrew. If you have a 401 relevance or a 403 prejudice objection, then you probably should be making both at the same time, right? This is both irrelevant and prejudicial. And this is so unfair, it violates due process under the state and federal constitution, a la Andrew V. White. That was a big deal. I think here, again, no objection whatsoever to the evidence here. But had the attorney made those kinds of objections, we might have seen, well, I think the ruling would be more insulated from potentially being overturned somewhere down the road. I'm getting a little bit out of the realm of evidence and due process evidence and evidentiary rules principles here. But this Hicks case in particular sort of tickled my brain when it comes to these phone dumps. I think we've talked about it before on the show, but an issue that hasn't really developed yet in our Fourth Amendment state case law is, are these phone dumps even legal in the first place? If I'm looking for text messages between the defendant and the victim, does that mean I get to download the whole phone that may have years or decades of information on it across a wide variety of platforms with many, many different communications, pictures, a lot of which is going to be irrelevant. And of course, it may depend on what you're looking for, what the crime is, but I think defenders should be making motions to suppress warrants or warrantless searches of digital devices where it's just unlimited like this. There's no limitation on scope, time, or content. If we know, hey, the defendant's suspected of communicating with this minor through Snapchat or Discord or whatever it is, can you get the Discord messages for that relevant time? Yeah. Should you be able to go through every social media app on the phone for all time immemorial? Probably not. That starts sounding a bit like an unreasonably broad search or what we would call a general warrant under the North Carolina Constitution. One, when you see these kinds of like massive data dumps and the state just turns it over and said, you know, here's a terabyte of data and we downloaded it from your phone and we're going to use some of that at trial. That I think is this is a reminder you got to review that stuff. You might have a motion to suppress that that kind of phone dump is too broad or of such a broad scope that it's unreasonable under the Fourth Amendment and under state protections against unreasonable search. And, you know, you might get creative, like file something saying, hey, state, I want you to identify what parts of the phone dump you plan to use because I'm a busy solo practitioner. I don't have time to go through 25,000 pages of what's mostly going to be irrelevant evidence in the case. hey, judge, I want to limit the use of evidence obtained from the defendant's phone to the categories of relevant evidence that the state is going to identify. I'm just thinking about that because we talked about a couple of cases a while back, U.S. v. Chattery out of the Fourth Circuit, and I think I'm not sure I'm going to remember the name, but it was a social media Facebook warrant case. And Jeff Welty and I blogged about it, but kind of talking about the same things like how does plain view work in this context? And some of these social media searches in that case are just it's one thing to say I want targeted messages for a targeted period of time. It's another to say I'm going to go through your whole Facebook back to 2014, for instance. I digress, but an interesting reminder about these phone dumps because that's how the state got this stuff in the first place. Back to Hicks and this Andrews case. With Hicks, the jury probably would have acquitted, the majority said. Don't forget, this guy busted into her house at 6.30 in the morning. He had threatened her a couple days earlier. He threatened her that evening. He's the one that allegedly started the physical contact with the defendant. He was high on meth. I'm not sure I mentioned that, but he had some significant amount of methamphetamine in his blood. On the toxicology report, the daughter of the woman was in the house at the time, and the daughter said that this guy started yelling, started raising his voice, started a fight, basically. The court said this was reasonable evidence of self-defense. We think the jury probably would have done something different. We're giving her a new trial, even on the hard, difficult standard that is plain error. There is a dissent that says, I agree, this was erroneous. I don't think it rises to the level of plain error though. A win, I think at the end of the day for Hicks. Now we'll say the state has sought and obtained a temporary stay of this decision at the North Carolina Supreme Court. So we may have one more round of Hicks up there. Already came back down from the state Supreme Court once, as I mentioned. And if I was going to read the tea leaves, I could see the Supreme Court take an issue with the plain error part of it. It's never hard to say, well, yes, this was improper, but does it rise to the level of plain error in light of other evidence, blah, blah, blah. The fundamental analysis by the Court of Appeals here, though, I think is sound. And had there been 401 and 403 relevance and evidence, prejudiced objections at the time, I think they would have properly been sustained. And had those objections been made at trial, the defendant would have been in a much stronger posture on appeal, even better if the defendant had also made those constitutional objections to this irrelevant prejudicial evidence under the due process clauses of the state and federal constitution. Am I right about this soon? I've got a little bit of a draft, so stand by. Check it out on the blog if I do get around to doing that. But it reminds me, we just had new felony defender school here at the School of Government, had a whole host of mostly younger, newer attorneys that are moving up to superior court or they're wanting to handle felony cases and that was something that just gets hammered into them over and over at different sessions. Layer your objections. If you have a relevance objection, you probably also have a prejudice objection. If you have a prejudice objection, you probably also have a due process objection. These cases are good reminders of those principles. For our last case, I want to talk about State v. Lester. This is a decision released by the state Supreme Court on January 31st of this year. Big Confrontation Clause case. We're going to talk about it. As I think regular listeners know, we talk about the Confrontation Clause at some length in this show before. Just as a reminder, under the Sixth Amendment, as well as a comparable provision of the state constitution, Article 1, Section 23, You can't use testimonial hearsay statements against a defendant at a criminal trial if they're made by an unavailable witness, usually. A statement is testimonial within the meaning of the confrontation clause when its primary purpose, the primary purpose behind its creation, was to establish some past fact for use at a later criminal prosecution. Non-testimonial statements are those that have some other primary purpose. They're not created to establish past facts for use at prosecution, and if they're non-testimonial, they're not protected by the Confrontation Clause. This recent decision, State v. Lester, was looking at these principles in the context of summarized phone records. The defendant in this case was charged with some sex crimes with a minor, the state obtained his phone records from Verizon as a part of their investigation. And just like we just talked about here, law enforcement limited the records to the relevant three month timeframe of messages they were looking for. So good officer there. They get these records. It's all the numbers called and received during that time period, how long the calls were, the times and dates of those calls. And once they received these phone records, they ran it through a computer software program. I think it might've been Cellbrite. I'm not sure if it was something else. It might've been something else. Anyways, they condensed the records down to only show the communications between the defendant and the victim. So this summarized version, this condensed version of the phone records shows about 100 phone calls between the two over this time period. And it becomes important evidence at the trial. I think we covered this Court of Appeals decision here in an earlier episode. The victim testifies at trial and says what happened, that the two had sex, but there was no physical evidence corroborating her account. And so the phone records became really key to proving, hey, what the victim says happened is probably true. The defendant objects at trial saying, hey, those phone records are hearsay. We don't think they qualify as a business record. And we also think we think they're testimonial. This summary, at least, was created for use at trial. Defendant gets convicted of all the charges. He appeals on up. The Court of Appeals says, yeah, we agree with the defendant. These were testimonial hearsay. When law enforcement started meddling with these records, To be clear, the Court of Appeals analysis is brief, but the import is that, well, the summary was created for use at trial. That made them testimonial. Because they were testimonial, the defendant should have had an opportunity to question the records custodian of Verizon and not harmless under the facts of the case because, again, such a significant role in corroborating the victim's account. They didn't rule on the evidence challenges in light of the Confrontation Clause ruling, so they just say new trial. Well, the state seeks and obtains review by the North Carolina Supreme Court, and they reverse. They said these records are non-testimonial because they are purely machine-generated data. The opinion goes through the purpose and history of the Confrontation Clause and talks about what it really is designed to protect against, which is, again, the admission of testimonial hearsay statements. And that's a particular type of hearsay, according to the court. It's an out-of-court statement by a declarant that is offered for the truth of the matter and made to establish past facts for future criminal prosecution. The computer generated data here, like phone records, that's made by an automated process. There's no human involvement whatsoever. I'll give you a block quote from the court. Computer generated data represent the self-generated record of a computer's operations resulting from its programming. The evidence is unique because it is created entirely by a machine without any help from humans. When triggered, the computer mechanically processes inputs, extracts information, and generates results. The response is encoded in the machine's programming. It is the product of ones and zeros rather than independent choice."
[00:43:48.469] [UNKNOWN] End quote.
[00:43:48.650] [SPEAKER_00] The court compared the phone records at issue in Leicester to other records generated without human involvement, such as seismograph machines, you know, the things that pick up earthquake activity. Or how about an airplane black box? Airplane comes on, black box starts recording. There's no human input. Cars these days often have a similar device, like a car data event recorder. That's just, it's tracking what the car is doing. You don't have to turn it on. You cannot turn it on or off as far as I know. Not very easily, anyways. These are all machines that operate without human involvement, and they record activity as it happens in real time. It is just the machines work. And those kinds of records generated as a result of automated processes, the court says, well, these are neither hearsay nor testimonial for purposes of the Confrontation Clause, because Think about it. A machine is not and could not be a declarant within the meaning of what we think of as hearsay. And a machine does not and could not intend that the records be used at a later prosecution. Verizon is just collecting the records for its own record keeping purposes. The court says, and I quote, we hold this kind of machine generated data if truly machine generated are neither hearsay nor testimonial under the confrontation clause. Since the Court of Appeals erred on that point, they reversed the Court of Appeals decision. They send it back to the Court of Appeals for it to consider the defendant's other evidence-based challenge. So two things. If we did cover this on an earlier show, I'm sure it was me noting, hey, that's really funky how the Court of Appeals thought you could take what otherwise is a non-testimonial record, something that's a business record, it's automatically created by Verizon as a part of their internal record keeping. That does not sound like it would be testimonial normally. But how interesting you can convert non-testimonial records into testimonial records by condensing them down, by summarizing them, by editing them. That was the part where it was prepared for trial. And that's what the Court of Appeals latched on to. I thought that was one interesting angle here is the Supreme Court clearly said, nope, that's not the case. The primary purpose behind the creation of the records is what matters. And you look to all the circumstances at the time the records were made. It doesn't change the fact that Verizon turned these over in response to a court order. order, and presumably it doesn't matter that the officer condensed them and summarized them down. If the statements are non-testimonial at the time of their creation, they do not do not transform into testimonial statements just by virtue of their packaging. Interesting takeaway there. The other implication here, though, is a little strange to me. I mean, the court seems to be taking a very broad view of what counts as machine-generated data. Now, this part of the opinion is dicta, right? The holding here in Lester is, hey, phone records automatically generated by Verizon as a part of its internal recordkeeping process, completely machine-generated, those are non-testimonial. That's the holding of the case. But during the discussion of these principles, the court goes on to say, yeah, it's like a seismograph or airplane black box, and it's also like a gas chromatography machine. Well, gas chromatography is commonly used for testing controlled substances. They say, well, yeah, that spits out raw data too, just like these other things. And I find that very, very much muddling the waters and raising really significant potential implications for substitute analyst cases. The opinion goes out of its way to distinguish. It's like, well, the raw data is non-testimonial. Sometimes you're going to need a human to come along and interpret that data. And the opinion interpreting the data might be testimonial. It will be when the opinion is being prepared for trial. But they say in regards to gas chromatography machines, the key point, no human judgment contributes to producing this information in the machine itself. simply spits it out, I'm not so sure that's right. With gas chromatography testing, I think just like with most other types of forensic testing, a person has to be involved. A person is operating that machine. A person has to handle the sample that's going to be analyzed, they have to input the sample into the machine, they have to ensure that the machine is properly maintenance and calibrated, they have to ensure that they're following proper protocols, and they have to avoid contaminating the sample at the very least. And I think that level of human involvement and interaction that is typically seen in forensics testing, like drugs and DNA analysis, arguably distinguishes it from the kinds of purely machine-generated data because you do need some level of human participation here. It's not like a black box. It's not like phone records. So again, that's maybe dicta, but it worries me a little bit because the Supreme Court has a temporary stay on our first substitute analyst case in the state, State v. Clark, and that was drug testing. And there the Court of Appeals really took a per se approach to it and said, you get to question, Confrontation Clause says you get to question the person who did the testing. No more substitute analysts under Smith v. Arizona, a case we've discussed at length on this show before. This dicta in Lester raises the specter that if the court were to take up review in Clark and say, a substitute analyst can't rely on the conclusions or the report of a non-testifying analyst, but they can rely on their raw data and still generate their own independent opinion based on their interpretation of the raw data. And you can question the person on that. Well, that starts to sound a whole lot like the kind of substitute analyst stuff that the Supreme Court kind of strongly indicated was not OK in Smith v. Arizona. Smith, of course, held that the underlying forensic notes and report created by a non-testifying analyst were being offered for their truth. They didn't quite say it's testimonial, but they said, lower court, you got to figure out if it's testimonial. But I think, again, it strongly implies the defendant has a right to question the person who did the testing, at least when the testing is being performed for use at trial, solely for use at trial. To quote from Smith v. Arizona, The substitute analyst testified to the precautions that the testing analyst said that she took, the standards that she said she followed, the test she said she performed, and the results she said she obtained. So if the statements of the non-testifying analyst were also testimonial, their admission violated the confrontation clause, Smith would then have had a right to confront the person who actually did the lab work not a surrogate merely reading from her records. Is the devil in the details here? I guess we'll see. I mean, in Smith, I guess there is some distinction. In Smith, it was a lab report and notes. In Melendez-Diaz, it was an affidavit. In Bullcoming, it was a certificate of analysis. These are all prior Confrontation Clause cases about forensic reports. None of them have specifically talked about raw data created in a laboratory as a result of a chemical analysis. And we do have all this case law out there sort of pre-Smith that says raw data is generally not going to be, raw machine-generated data is not going to be testimonial. But I question whether a lab result where a human has to interact with the lab machine really is like a seismograph or a black box or a car event data recorder. We're going to have to see. I mean, that seems like a thin read to say, well, you can rely on the raw data. That's just a hop, skip and a jump away from the practice that Smithy, Arizona seemed to shut down, which was I can form my own opinion about the results of the chemical analysis. But we'll see. I mean, again, Clark has been temporarily stayed. That's State v. Clark. That's our first state decision applying Smith v. Arizona and striking down substitute analyst testimony. Lester is not about that. And again, I don't think any of this discussion of gas chromatography is central to the holding in Lester. But you could see this kind of language from Lester being repeated in Clark where the state Supreme Court said, to take up review, and they're looking to reverse the Court of Appeals there. I'm gonna stop there. I could say more about confrontation clause cases, and I'm sure it's a topic we'll come back to soon, whether it's in the State Supreme Court, if and when they take up Clark, or just other developments here in this area. but I think we've reached our time for today. It's great to be back in the studio. Big thank you to Paul Bonner, my studio wizard on the ones and twos. Thank you to my associate director, Monica Yelverton, for all of her help with running public defense education team here at the school. Thanks to my brother, David Dixon, who composed our theme music. Big thanks to all of you for listening. Appreciate you. I love hearing from you. If you've got questions, comments, concerns, topics, suggestions, whatever, drop me a line. I can be reached at dixon at SOG.UNC.EDU. Again, that's D-I-X-O-N at SOG.UNC.EDU. I wanted to shout out for my colleague, Danielle Blass. She has created a new podcast about pending North Carolina Court of Appeals decision. That's called Playin' D. I think you could even get CLE credit for listening to that one. So check out Danielle's Playin' D podcast. And my competition here at the school has also been churning them out. If you want to check out Joe Hyde and Jonathan Holbrooks, podcast geared towards prosecutors, their podcast Turning States has now reached as almost like I think on their 10th episode or something. So I hope to talk to you all again soon. Please reach out if you have thoughts or questions for me. And otherwise, we'll see you again real soon. Take care.
Episode 17: NC Criminal Debrief
This episode covers recent Second Amendment developments, cases addressing challenges to prejudicial and irrelevant evidence, and a North Carolina Supreme Court decision on the Confrontation Clause.