Episode 2: NC Criminal Debrief

[00:00:00.925] [UNKNOWN] Bye.
[00:00:11.218] [SPEAKER_00] Welcome to episode two of the North Carolina Criminal Debrief Podcast. This is a podcast dedicated to covering criminal law developments affecting North Carolina. My name is Phil Dixon. I'm a faculty member here at the UNC School of Government and the Defender Educator. My hope here is to provide something for everyone, whether you're a court system actor or a regular resident of the state. Special thanks to Paul Bonner, our studio extraordinaire, for his technical wizardry in recording and producing these episodes. Special thank you too goes out to Monica Yelverton, associate director of programs and services for our public defense education team for all of her logistical support. A final shout out to my brother, David Dixon, who composed our theme music. You can check out David's music on Facebook or Instagram at David Dixon Music. If you like what you hear, please like and subscribe the podcast. Please feel free to share it. If you have questions, concerns, or suggestions for topics, please email me. I can be reached anytime at dixon at sog.unc.edu. In our inaugural podcast, I covered some legislative changes, a whole bunch of cases as well, and we talked about the new general rule of practice, Rule 28. That rule is about the equitable imposition of monetary obligations. And in case you missed that episode or you just want some more detail on Rule 28 and getting relief from criminal monetary debt, note that I just released a free webinar on that subject. You can find that on our blog. That's the NC Criminal Law blog or nccriminallaw.sog.unc.edu. Check it out if you are handling clients with criminal debt or if you are a pro se defendant with some criminal debt that you need to get out from under. Today's episode is going to be strictly cases and we're going to dive right in. We'll cover as much as we can. The first case I wanted to talk to you all about was State v. Jordan. This is a case from Guilford County. A confidential informant makes a report to law enforcement that the defendant is selling drugs from his girlfriend's apartment. The police get this informant to go make a controlled purchase of drugs from the defendant and he is identified again as the seller. Apparently, the police are watching this apartment and a couple of weeks go by. They do see high levels of traffic in and out of the apartment, which they think is consistent with drug dealing. On this particular day, law enforcement sees the defendant and his girlfriend leave in her car. She's driving, he's the passenger, and they're speeding 47 and a 35. Law enforcement promptly stops them. As the officer approaches, he sees the defendant sort of reaching towards the center console, making what the officer thinks is a furtive movement. And as he approaches, he immediately notices a strong odor of marijuana. So he asks both occupants out of the car. They search the car based on that odor and they find two half-burned blunts or marijuana cigarettes in the ashtray and a small bag of marijuana. The stopping officer then calls the lead drug investigator and says, hey, you know, we've got your suspect stopped. We know you're conducting a larger investigation into him. We've got him right now on the side of the road with some marijuana. Do you want us to go ahead and pull the trigger? Should we let the defendant know that he's involved in a more serious investigation? That phone call between the stopping officer and the lead drug investigator is approximately five to seven minutes. And they decide to tell the defendant, so they inform him, hey, you know, in addition to what's going on here right now, we're also looking at you for drug sales. They say, listen, you know, to the girlfriend, we think we have probable cause to go get a search warrant to search your apartment. We can try to do that, or you, girlfriend, can consent. So she ultimately agrees, provides that consent. She actually signs a written consent form. Now the defendant and the girlfriend are handcuffed outside of the car at the time and a search of the home turns up cocaine and a gun. So the man is ultimately charged with possession of firearm by felon and possession of cocaine. He moves to suppress, arguing that the traffic stop had really been completed before the search or the search warrant was obtained. So speeding, you know, you were investigating me for speeding, you searched the car, at that point you had the marijuana and you had all the proof you needed to do the speeding citation. So the defendant argued there was really no reason to detain me past that point and he argued that it was an unlawful extension of the stop under Rodriguez. Of course Rodriguez is a US Supreme Court case that says the officer really needs to stay on the mission of the stop and not even a slight delay, even a de minimis delay, can violate the Fourth Amendment unless the officer has reasonable suspicion or valid consent. So the trial court denied this motion. It found that the defendant could have been arrested for the marijuana and alternatively that the police really likely had probable cause to arrest him for the sale of drugs for which he was under investigation. So this goes up to the Court of Appeals and they affirm. To the Court of Appeals they said the stop was really not complete at the time that the girlfriend consented. The defendant argued that, well, they never cited me for speeding. They never even cited me for the marijuana by the time the girlfriend consented. So, you know, the stop was necessarily complete and this was a deviation from the mission. The officer was just off into another larger drug investigation. and that had nothing to do with the speeding or the marijuana. The court firmly disagreed. They said, we don't know if that officer was planning to cite him or not. We're not going to speculate about that. This was all a very quick call in the middle of the stop. there's no evidence at the time that consent was sought that the stop had been concluded. And if there was that evidence that you know the citation had been written and the license had been returned, that might be a different result. One case, Bettier I believe is how you pronounce it, you know, the officer had given a written warning to the person and said, okay, you can be on your way, but then, hey, do you mind if we search? And there the court said, you know, the mission of the stop was truly over because the warning had been given, all the incidences of the traffic stop had been complete. But here, there was no warning, there was no ticket, the stop was really still ongoing, so the court said, no unlawful extension, And really, even if the original mission of the stop was complete here, these officers had reasonable suspicion to believe that the defendant was involved in drug sales. I mean, when you look at the confidential informant's tip, the confidential informant's controlled by all of this surveillance with lots of visitors, that probably gets you to probable cause to arrest or search the defendant's home. which is, you know, an even higher standard than reasonable suspicion. So, you know, he also challenged the validity of the consent and said that was, the defendant argued, you know, you really coerced the consent from my girlfriend. Even if it was within the mission of the stop, this was not valid, voluntary, knowing consent. And the court rejected that idea, too. They validly obtained the consent during the lawful course of the stop, and it was voluntarily given. There was this threat, implied threat that said, we believe we can get a warrant. And if you don't consent, we're going to try to do that. But the court said that's okay. You know, the only time that that's been struck down, of which I'm aware, is where officers lie and say, hey, we have a search warrant, so you better consent, when in fact they don't have a search warrant. But merely stating, hey, we think we can get a warrant or we intend to apply for a warrant unless you consent, those may be factors. It is a totality of circumstances analysis when looking at the validity of consent. But here it was fine. The officer merely said he was going to seek one and that he believed he had probable cause. There was no threats, no weapons drawn, no harsh language or any other coercion. And here the woman who consented, the girlfriend, she was actually told, you don't have to consent. And they let her out of the handcuffs at some point. And I also thought it was significant and somewhat noteworthy that there was written consent form used here. I think that is a helpful tool for law enforcement and the public at large to get that consent in writing. This is not a requirement, but I know it was something that was recommended by the Task Force on Racial Equity as a potential law enforcement reform to reduce the coercive effect by police, especially on people of color. So I would love to hear about where this is being used. Again, it sounds like they're using them in Guilford County. I know they're not used everywhere, but you know, I think when law enforcement is trying to later claim, oh, they validly gave consent, it sure helps when you have the defendant's signature on that form and it informs them, hey, defendant, you don't have to consent, but by signing this, you are voluntarily consenting. And likewise, that I think reassures the public a little bit more that, you know, we can, that at least the defendant was given some information. And again, that is another factor that you can look at with consent is, you know, was the defendant told they could refuse? So here you kind of had all of that. On some level, I don't think this is really that significant of a development. It seems to me that the officers likely had been sitting on probable cause for some time. Given the ongoing surveillance, I don't think it was very stale. And this argument keeps popping back up in these Rodriguez cases that says, well, the officer never wrote that ticket or they never cited me for the thing they pulled me over for. Well, again, when we're talking about extensions of stops and missions of the stop, I think that is a factor again. Was the ticket written? Did the officer diligently pursue the mission? So depending on the timing and what other factors are going on, The fact that the ticket was or wasn't written or when it was written can be a factor and might even be significant, but it's not dispositive. If I pull you for a seatbelt violation and then develop reasonable suspicion of another crime, I think our courts are pretty clearly saying we're not going to find the officer lacked reasonable suspicion simply because the seatbelt ticket wasn't written. So maybe again not a shocking result. I did think it was an opportunity though just to have a little mention of where we are on cannabis within the state. If you follow our blog you will know that that's a subject I write a lot on and we've been in a conundrum really since 2019 or so with smokable hemp and now delta-aid and intoxicating hemp products. Still nothing from our General Assembly or our courts on the impact of legal hemp as far as probable cause issues or drug identification issues. I do know of a couple of cases that are in the pipe, so to speak, at the Court of Appeals, so we may get some judicial guidance as well. Notably, all of our hemp legalization statutes expire on June 30th, 2022, which is in just a few short weeks from here. There is a new farm bill that I believe has already passed the Senate that is designed to basically maintain the status quo. We'll see if that is amended or modified to address things like Delta-8 or anything else, but in the current iteration, it would simply make permanent the hemp statutes that we have now without really a whole lot of tweaking. We've also seen medicinal marijuana passed by the State Senate. Looks like it may get stalled in the House. Okay, that was Jordan and a slight little cannabis update. Moving on to another State v. Jordan. This is a different Jordan, but same name. This one's from Mecklenburg County. Now, the facts here are a lot, and it's a little much, but follow me if you can. This time, the police get a call about a stolen Infiniti, the vehicle. And the caller says, you know, I'm pretty sure the car is at this location. So the police go to check it out. It's a weird little split residence. It's half a home, half a hair salon. And they drove to where they could see the parking lot in the back, and there's several cars there, including the stolen Infiniti. As they sit there and watch, they see a man, it's not the defendant, a third party, exits the house, comes out the door and around the side of the house, and it looks like he has the key to the Infiniti in his hand, and he walks right up to the driver's side of the car, starts to reach for the door, but then he notices the police. He stares at them a second, and then he quickly turns around, goes right back into the house, goes right back towards the house. The officers think, okay, we got to detain him. We think he might be involved in this stolen car. And the man is knocking on the door and saying, hey, police are here, police are here. The defendant is inside, and he opens the door to let this man in, but leaves the door wide open. And apparently it's raining. Officers approach and say, hey, we need to speak to that guy who was approaching the car. And while they're talking, the officer just walks into the house, steps right in. Once he's inside, he sees the defendant standing beside a safe. He sees the defendant lock the safe and put the key in his pocket. Now, more officers are on scene and start arriving, and from outside the residence, they notice drug paraphernalia, apparently cocaine, sitting out inside. Now, to be clear, the officer who had already entered the home had not noticed this drug paraphernalia and drugs sitting out, but other officers felt said, well, we see that in plain view, even from outside. They then do a sweep of the residence. They do find a gun in the back room. There's another man on scene who they determine is either the owner of this property or is leasing it. And they eventually get him to consent to a search of the place. It's got a similar situation to the last case. hey, we think we can get a search warrant. Are you going to let us search or not? Eventually the man relents and says yes, but he qualifies that consent and says, you know, the safe is not mine and I don't have the ability to consent to that. Eventually the officers get to the defendant and ask him about the safe and he says, I don't have anything to do with anything here. You know, I don't have, it's not my house. denies owning the safe, but also tells them, hey, you know, you don't really have any reason to search the safe, which was maybe a little suspicious. And remember, that first officer saw the defendant next to the safe. He saw him put the key in his pocket and lock it. So based on the drugs, the gun in the home, all of these facts and circumstances, the police go get a search warrant for the safe. And inside they find trafficking levels of cocaine, another gun, a bunch of money, scales, some syringes, and other paraphernalia. He is, the defendant, excuse me, is charged with drug trafficking, possession of firearm by felon, and habitual felon. He moves to suppress, and there's several grounds argued, which we'll get into, but the trial court denies the motion. Unfortunately, the trial court did not do a written order, just sort of made these statements in the transcript denying it. Trial court remarks seem to really skip over that initial entry by the first police officer into the home and really starts with when the second group of officers arrived and saw drugs in plain view. The drugs in the home were probable cause to get the safe, the warrant for the safe, so motion denied. He's tried, convicted, and ultimately the trial court gives him consecutive sentences on all these offenses. So it's quite a lot of time. I want to say somewhere in the range of 200 months. This goes up to the Court of Appeals and it's unanimously reversed. The court says that motion to suppress should have been granted. I gotta give it to the state here. They really argued about everything they could. And that is going to probably be the main takeaway for the defense here, which we'll come back to in a second. But first they started with standing. You know, the state argued defendant doesn't have any grounds to challenge this stop. It's not his house. You know, he said he didn't own the safe. He doesn't have any expectation of privacy. And the court said, that's wrong. You know, guests at a home, even if they're not the owner or lessor, they still retain some expectation of privacy. Now, merely being present somewhere is not enough, but here there was enough to show that the defendant really did have a reasonable expectation of privacy. The court pointed to the fact that the defendant was one of only a few guests in the home, and it was late at night when the man who had approached the infinity, who then sort of fled back into the home. When he came back, it was the defendant who opened the door when the guy knocked, so that shows that he had some authority over the place. And it was the same with the safe. You know, he was there. His presence and his apparent authority over the home indicated he was legitimately present in the home. And, you know, if he's keeping his safe there, that's okay. He doesn't have to be the owner to still have an interest in that property. And the state argued, well, he abandoned this property, right? I mean, if you, you know, if I say I've never seen that before in my life, that's not mine. Generally, that's considered abandonment and officers can treat it as lost or abandoned property. But the court said, you know, no, here, this is not abandonment. He only disclaimed ownership of that safe after the police illegally entered. And but for that illegal entry, you know, we wouldn't be here. So the court said he has standing. He can challenge the stop, the search, excuse me, and the search warrant. So next the state argued, well, the entry and everything here was justified by exigent circumstances. There was the potential flight of the man with the infinity key, who knows where he could have run off to, and there's the potential for the evidence in the car key evidence to be lost or destroyed. Again, the court was just not buying that argument. They said exigent circumstances are a narrow exception to the warrant requirement and it's really to prevent imminent destruction of the evidence, to prevent flight, or to render emergency aid, or to address ongoing threats to the public or the officer. That's it. And they just didn't have that here. I thought it was interesting the court said, you know, you got to have both knowledge that the car is stolen and possession of the stolen car to prove possession of a stolen motor vehicle. For all we know, the suspect here might not have even known that the car was stolen. And, you know, I don't think they addressed it in the opinion, but it sure strikes me as it seems unlikely that he was gonna flee either when the police are watching the home and are, you know, within minutes surrounding there. And they did note that the car key really has low evidentiary value. The officers saw him with it, you know, you could prove that part of the element with or without the car key just based on the officer testimony. You can prove the offense by both actual possession or constructive possession. But I think the main thing and what the court really hung their hat on was that the officer was inside the apartment within really moments, maybe even seconds, but they left the door open. That is not an imminent destruction of evidence kind of situation. It's not really a flight situation either. So no exigent circumstances. The state then argued, but well, you know, fine. But once we all got in the house and we saw the drugs, we found the gun after the sweep, then we talked to the owner, right? We spoke to that owner or lessor and we got his valid consent. that should have attenuated any initial illegality. There's that attenuation doctrine where even if police do violate the Fourth Amendment and commit some illegal detention or search, if, you know, there's an intervening act or some circumstances in the middle that can sort of break, you know, a break in time and sort of separate out the illegality from the discovery of evidence, sometimes this can still be okay. But the court said, no, that's not the case here. This was absolutely close in time between the violation of police illegally entering and obtaining of consent. There were no intervening circumstances, such as the defendant committing a new crime. And they said this was flagrant misconduct by the police. When I said the officer stepped right in the house, I mean, those of you who are lawyers or judges and trained in Fourth Amendment law, you know, of course that's misconduct. You can't just walk into someone's house and they didn't have enough here. So that was not valid consent since it was only obtained after the illegal entry. And finally, the state argued, well, we did go get a search warrant for the safe and that should be okay. The court rejected that as well. You know, look, the car was in the parking lot. It was reported stolen and you had a man approaching the car and then going back to the house after he saw the police. That's all they had if we take away everything that occurred after the illegal entry. They said that was not probable cause for the house or the safe. No go. This gets kicked back down for presumably a either a new trial without all the drug evidence or dismissal. So quite a big impact on Mr. Jordan here. As I mentioned at the start of it, you know, I think it's just a really good case, both for a Fourth Amendment review, we've got standing, exigent circumstances, valid consent and fruit of the poisonous tree, attenuation and consent, all of this stuff is packed up in here. And I think it's a great point for defenders, or, you know, possibly the state too, that these arguments will be layered. I mean, the state did a good job of really arguing. They threw the kitchen sink at it. They argued everything they could. And defenders, y'all have to be ready for those sort of scattershot arguments. So don't forget about standing. I think we covered a couple of standing cases in episode one. But, you know, I recommend reading this case. It was unanimous opinion by Judges Collins, Hampson, and Carpenter. And I think a strong win for the Fourth Amendment. Okay, moving on. We talked a little bit last time about some First Amendment issues. I think we covered State v. Taylor about the true threats doctrine and how we saw that true threats doctrine applied in a juvenile case called NRAE-ZP. Taylor involved threatening court officials. In Ray Z.P. they applied that true threats analysis to threats of mass violence on educational property. It's a little unclear to me rereading Z.P. whether they were actually applying that to the communicated threats in that case, but there the mass violence threat was found insufficient and not to be a true threat. but the court said the communicating threats there was sufficient evidence of that. I mention that again to say communicating threats is one of those we still don't have a clear answer on whether like does our statute already comply with true threats doctrine or does it need an additional jury instruction. I encourage defenders to think about that. We've had a couple more developments since then. So let's talk about that. We did have another juvenile case, Nray JAD, that came out. This would, and here the defendant was charged with extortion, or excuse me, the juvenile was adjudicated delinquent for extortion. And these were all, you know, I think high school or middle school students. Apparently the juvenile and another couple of juveniles had obtained some sort of risque or revealing photos of another student. and began extorting that student saying, hey, we want you to buy us cookies at the cafeteria, you know, do or help me with my homework or do my work for me or else I'm gonna release these photos. He's adjudicated delinquent and on appeal argued, well, there is no proof that there was a true threat here. And really, we think true threats means threats of physical harm. And here, it was just a threat to disclose. The court assumed without deciding that, OK, we'll take you at your words. Let's assume true threats applies to extortion. this was met here because they seriously, it seemed that they intended this as a threat, and certainly the person being threatened took it seriously. And there's no requirement that that sort of threat be, the threats are not limited to threats of physical harm. I'm just squarely rejecting that argument. There's no requirement that it be just on physical harm. Threats to reveal embarrassing information or put someone else in a compromising position, have them lose their job or whatever, That's going to count too under those threats analysis. But that case really left open this question of does extortion apply? Does the true threats doctrine apply to extortion? And we got that answer really quickly. It does not. In a case called State v. Bowen, this was an adult criminal case. A female was charged with extortion and she made a very similar argument. So let's talk about the facts of that case really, really quickly. Ms. Bowen met a man on a website called Seeking Arrangements This is apparently a sugar daddy, sugar baby relationships site where typically an older man with money agrees to date younger women in exchange for providing them gifts and money and travel. sort of prostitution adjacent but not quite not quite illegal. Of course this man was married with children and unsurprisingly his marriage did not work out but you know they have this relationship, they carry on an affair for a little bit and then time passes. He ends up divorcing his wife, he remarries a new woman And it's been years and this woman pops back up again, his old sugar baby girlfriend. She claims that she's writing a book about her experiences as an escort and plans to include very specific details of their relationship in the book. While they're communicating, she threatens to tell his ex-wife, eventually threatens to tell his current wife about their trysts. And this is all culminating in, hey, other men that I was involved with, they've purchased confidentiality agreements from me. And for the low, low price of anywhere between $100,000 and $500,000, I'd be happy to keep all of this quiet. But if not, you know, it's going in my book, and actually I have a deal with Dr. Phil. You know, his people from the TV show Dr. Phil may be reaching out soon because they're going to be promoting my book, and they want to interview you. And she gives him a deadline by which, if he doesn't pay, the opportunity will have passed. Well, he misses the deadline, I think, just trying to ignore this situation. But she really keeps at it and is harassing him and threatening to, again, you know, sort of contact his wife. And so he eventually goes to the police. They investigate and decide to charge her with extortion. And when they search her apartment, it turns out she does have confidentiality. a confidentiality agreement ready for this guy to sign and a bunch of others for other men. But there is no book. There's no book deal. There's certainly no TV show deal. So she's charged with extortion. She's convicted at trial. And on appeal, she said, hey, the evidence here is insufficient. There was no evidence that these were true threats. And under State v. Taylor, the state had the burden to show it was a true threat. Court of Appeals rejected that. True threats just does not apply here. This falls into a different category of unprotected speech. So remember we've got, you know, true threats is one category of unprotected speech, obscenity, child pornography, incitement to violence, defamation, There's a very questionable exception for fighting words, whether that still exists. And then there's the one that's relevant here. It is the category of speech that is itself a crime or speech integral to criminal conduct. So just by threatening somebody with the intention to wrongfully obtain something, that's extortion. And just the mere speaking of those extortive words is the crime of extortion. And I think the same goes for solicitation. That's not protected speech. If I say, Hey, Phil, I need somebody to murder my brother. That is itself a crime. And probably similarly with some fraud offenses. I've got a bridge I can sell you. I just need your $10,000 deposit. That itself would be a fraud or an attempted fraud and would be unprotected speech. This is consistent with pretty much how all the federal courts have treated extortion. And the court here noted, some extortion statutes might sweep too broadly. It's possible that an extortion statute could violate the First Amendment and start sweeping in some of that protected speech. But ours doesn't. Ours is constitutional. It really requires a wrongful threat plus an intent to wrongfully obtain something, that intention to extort. So we know from the Court of Appeals true threats analysis does not apply to extortion. I think it's likely you can extrapolate that to solicitation, blackmail, and fraud at least. There are still a ton of other questions about all the other threats offenses that we have on the books and whether Taylor does apply, whether that true threats analysis does apply. But you know this is a pretty logical result to me and I think I think the court got this right, but I do think where you're dealing with pure threats and pure language, where it's not falling into this sort of category of the words themselves are a crime, defenders should be pressing for it and judges, you know, you have an obligation to instruct on any substantial feature of the case and where you think that the threats analysis may be applicable, that may be something to include in the jury instructions whether or not the defense asked for it. So really interesting First Amendment issues as well. And we've been seeing a lot of those. I don't remember if I mentioned it last time, but the past few years we have seen a ton of First Amendment issues come up from State v. Bishop, where our cyberbullying ban was struck down. There was State v. Packingham, the case that went all the way up to the U.S. Supreme Court, basically finding that the social media ban on sex offenders was unconstitutional. There was some harassing speech sort of being yelled into the void of the internet in State v. Shackelford and his stalking conviction was overturned on First Amendment grounds. Of course we just had Taylor, ZP, JAD that I talked about today and now Bowen. So kind of a really big evolving area. I encourage all the court system actors to really keep in mind those First Amendment concerns. Okay, moving on, I wanted to briefly flag State v. Clegg. This is from February 2022. I'm sure many of our listeners are aware, but this was the first Batson violation found against the state ever. Of course, Batson refers to the seminal U.S. Supreme Court case of Batson v. Kentucky, where the court held it is an equal protection violation to improperly strike a black juror on the basis of race. And the holding in Batson has been extended to gender as well, so that You cannot make peremptory strikes where you have, you know, where the trial attorneys have discretion to say, you know, we just don't want this juror. That's a peremptory strike. And you can exercise your peremptory strikes however you like, but not in a racially discriminatory manner or not in a way that discriminates against on the basis of gender. as a matter of 14th Amendment equal protection. And, you know, this is remarkable by itself in just that how far behind the times we have been here. I mean, all throughout the South and pretty much every other state that I'm aware of, there's a record of Batson violations being found against the state. We have never had one. The only Batson violation that's ever been found prior to Clegg was against the defense, saying the defense violated Batson and that the state's rights were somehow violated. So I think this brings us a little bit more into the mainstream. It really, I think people that are closely watching the court system have known this was coming. We've seen a lot of remands lately where Batson challenges were making it up to the Court of Appeals or the State Supreme Court and being sent back down to the trial courts for further findings. So I'm not going to go into a detailed discussion of Batson. I would just say if defense lawyers when you're trying your cases you do need to be prepared to make a Batson challenge during jury selection. Batson and the line of cases that follows it, its progeny, it makes clear that the improper strike of even one black juror is a Batson violation. So you don't need, I mean, you know, the strike rates and the composition of the jury, all of these things are relevant, but where the prosecution is striking somebody for a reason that is not race neutral, you know, I think you have to make the challenge. And CDPL, the Center for Death Penalty Litigation, puts out a really excellent checklist on how to make your Batson objection, how to preserve it, and what the arguments are at each step of the challenge, and how to best marshal your evidence. We've provided a copy of that pretty much to all of the public defenders at our recent conference in May. But if anybody needs it, you know, again, email me and let me know. I would be happy to provide you a Batson cheat sheet. As this right has traditionally been really hard to enforce and sort of infamously the district attorneys have trained. There was a top gun training that basically was. teaching a generation of district attorneys or more on how to get around a Batson challenge. So I think this is helpful. I think you're going to see more Batson challenges. I think you're going to see more litigation on Batson. And, you know, I guess another point I would want to make just on the merits of this Batson stuff is that if it's even motivated, if a strike is even motivated in part by improper reasons that is too a Batson violation. So Clegg is a detailed really long opinion that really walks you through and you know here the court really rejected the state's reasonings but ultimately declined to find a Batson violation and when it got before the Supreme Court at least the solid majority said, you know, trial court, you really walked through all the steps correctly. You did the right analysis. You only erred by concluding that there wasn't a, that's in violation because here there was. It seemed that race was a substantial motivating factor in both, in at least one of the strikes. And he gets a new trial. And that's significant because this was an armed robbery and firing by felon in Wake County. And I believe the guy got quite a bit of time. So He is getting a new trial. I do want to briefly contextualize this and just say this, you know, I think this is a significant development and it's also one in a line of cases where we are seeing the courts grapple with these race and criminal justice issues. You know, I mentioned a second ago that this right has been hard to enforce. I know one new thing that we've got, and it may sort of, well, I guess I would just flag for people. There is a new video on implicit bias training for jurors that is being played. There's a version of it being played in Buncombe County. I believe one is now being used in Wake, where jurors are shown a video and told, hey, think about your own biases and think about any assumptions you might be making before you decide to hear this case. And there's evidence that shows just doing that can really improve outcomes. and lead to more fair results. But as I was saying, in addition to the implicit bias video that's out that I think touches on some of these issues, we've got this new Batson case and the courts have been going back and forth on this. Not too long ago we had the Racial Justice Act litigation. This was that gave death penalty defendants a way to get off death row if they could show racial discrimination was a factor in their verdict or sentence. That existed for a little while, then the legislature repealed it and left a bunch of these defendants sort of in the lurch. And the state Supreme Court, when they finally got their hands on it, reinstated that right for many of those defendants and found that the change in law by the legislature to then to first grant this right to challenge your death verdict with evidence of racial discrimination and then to take it away while many of the cases were midstream, the court found that to be, again the majority I believe, found that to be an ex post facto violation where you don't get to change the rules after the fact and apply it later. We had a case out of, I think, Guilford County recently called State v. Campbell, where I think you had an African-American judge. There was an African-American potential juror, and they expressed that due to their, I believe, Baptist or Methodist religion, that they didn't feel... They felt like they could not sit in judgment of someone else. And the trial judge made some comments, basically, I think, along the lines of, we need black jurors. And every time I excuse a black juror, there's less jurors of color. And you, members of the black community, You're not doing your duty and you're contributing to this issue of predominantly white jurors. And I think the trial judge absolutely meant well there. I think she was really encouraging other persons of color to serve on the jury. And I think she was a little suspicious of this explanation that I think she even said, I too am raised in that religion. and there's nothing about that religion that prevents you from serving on a jury fairly. But when the guy is convicted after the jury is ultimately impaneled and after the jury convicts him on appeal, he argues this was improper. The judge shouldn't have been making these kind of racial remarks and that could have intimidated other black jurors. or intimidated other jurors all around from really truly expressing their feelings or speaking up their beliefs and the court agreed and said that was structural error. That just rendered the whole trial unfair, new trial. So there was a trial judge sort of trying to encourage persons of color to serve more on juries and to be more involved in the judicial process as jurors and did it in a way that the Court of Appeals found was improper. A case we haven't covered, but I think was 2020, was Stavey Johnson. This was a seatbelt stop that quickly escalated into a white officer searching a black man and finding a little bit of cocaine. The defendant in that case argued on appeal hey, you know, there's inherently coercive dynamics at play here. We know we have data on sort of what it's like for black men to encounter white officers. And, you know, court, you should take into consideration some of this empirical data on race and bias and how it impacts people of color. The defendant won on that case and the unanimous court agreed and said this was an illegal search under the facts of what happened. The officer stopped him for a seatbelt, immediately pulled him out of the car, asked to frisk him, and then reached in his pocket, which is not a frisk. So he won on the Fourth Amendment, but two judges wrote separately to say the defendant was wrong to even raise these arguments. Those are improper race-based arguments, and they have no place in this system. Our system is fair, and there's no problem with racial equity in our court systems. We're lucky to live in a world where the law applies equally to everyone. So there you had several appellate judges basically saying, we don't really think this is much of a problem. And of course there was also a couple years back in I think 2018, we had State v. Copley, another Wake County case that was a murder case. It involves a white man shooting a younger black man. from his garage as the man cut across his driveway and he was convicted of first-degree murder for that but there was in the closing arguments the prosecutor made the argument that you know he thought race was at issue here and that if that the victim in that case had been a white man he never would have been shot. And that, you know, we saw the Court of Appeals and the State Supreme Court really grapple with what's the proper role of race in closing argument. You know, when it's a factor in the case or where there's a reasonable inference that it was a factor in the case, it's okay. You know, it should not be injected gratuitously or improperly and certainly no race baiting arguments are permitted. But, you know, it can be a tricky line and I sort of recount all of that, the Racial Justice Act, Campbell, Johnson, Copley, Batson, even, you know, the implicit bias stuff to say this is all, you know, evolving and I think our courts really are grappling with it. we're still trying to determine in many of these contexts what the proper role of race is and how it fits in the criminal justice system and how to make things more fair for everybody. So if you're not thinking about those issues I encourage you to. Of course we had Peña Rodriguez from the US Supreme Court maybe four or five years ago as well that said, you know, they gave that man a new trial where there was evidence that racial discrimination played a role in the jury selection, jury deliberation process, and typically deliberations are secret, but they carved out this big exception that said, well, if racial discrimination was a factor in the deliberations, you can impeach with that, you can get into that with the jurors, and it might be grounds for a new trial. So I just say these are evolving and important issues. And I think you see a lot of difference of opinion amongst different judges and justices on it. So it's an interesting time for that. I wanted to quickly hit another first in the state, State v. Alexander. This involves post-conviction DNA testing. Under 15A-269, someone who's already convicted, serving their time, it says they shall be entitled to post-conviction DNA testing where There's some material evidence that's relevant to the case that's untested. The defendant has to swear that he's innocent, sign an affidavit of innocence, and there has to be a reasonable probability that the verdict would be different if this stuff had been tested before trial. So something that wasn't tested before, the defendant's claiming he goes to his or her innocence and reasonably could have affected the verdict. Here there were fingerprints on some shell casings found at the scene. The gun was never recovered in this case, it was a murder, but the defendant wanted the DNA from those shell casings and they never been tested for DNA. According to the defendant, the DNA on the shell casings would show it was somebody else. Well, and remember, you know, that the statute says, has that requirement of a reasonable probability of a different verdict. And that's what we got hung up on here. That's kind of what this case was about. What does verdict mean in this context? This guy had been, he's already been in 20 years on second degree murder. He applies for this relief and the trial court denies it, finding that it's not material evidence to the case. So he appeals and on appeal, the state argues, The defendant doesn't have any right to this testing because the statute talks about a verdict and this was a guilty plea. A guilty plea is not a verdict in the same sense that a plea results in a judgment by the court whereas a jury returns an actual verdict. So this goes up to the Court of Appeals and the court sided with the defendant. They rejected that argument from the state. They did affirm the trial court and said this was not material. This defendant is not entitled to relief on this evidence, on these facts. But verdict in the context of post-conviction DNA testing means the final judgment, the disposition of the case. And they noted it has to mean that or else bench trials wouldn't qualify. We're not just talking about guilty pleas, but what about where the judge hears the case in place of a jury? That's a bench trial, and they said, you know, under the state's interpretation, that wouldn't qualify, and that would be absurd. There were dissents. Justice Earls dissented in part and would have said, you know, they agree he has the right to this relief, and he was entitled to actually go get the testing done. She would have given him the relief. He saw it. Justices Barringer and Newby concurred in result, but only insofar as it denied the defendant relief. They would have said the plea extinguishes any right to post-conviction DNA testing. So that had gone all the way up to the state Supreme Court, and we did get that answer that a plea does not waive your right to post-conviction DNA testing. So interesting for my post-conviction and appellate folks. I want to do two more and we'll wrap up for the day. But a quick interesting mashup of the right to counsel and probation in a state called, I think it's Gwin, G-U-I-N-N, or Gwin. This was a Gaston County probation case. The defendant is convicted of some felony offense and put on probation. He is violated at some point, a probation violation is filed for his failure to pay some monies, which practitioners know that's a common violation. And at that hearing, the defendant signs a waiver of counsel, and the judge signs the form indicating the defendant waived his rights to all counsel. But there's also a certification section on that waiver of counsel form that says, you know, which type of waiver is it? Is it the waiver of appointed counsel or the waiver of all counsel? And the trial judge didn't check anything in the certification section. And I think that might have been okay, but when you look at the transcript of this initial violation hearing, and it results in his probation being extended, right? He's given more time to be on probation to complete the payment. But when you look at it, the judge never conducted the waiver of counsel colloquy. It's really not enough to just have the defendant sign the form. There's a statute, 15A-1242, that requires the judge to walk them through and say, you know, do you understand what you're waiving? This is what you want to do. There's certain questions and remarks that have to be made to conduct a valid waiver of all counsel and to allow somebody to proceed representing themselves, which is what he did at this initial hearing. So the trial court, again at the initial hearing, finds him in violation, extends probation 12 months. What happens? He gets a more serious violation during that period of extension. So here was positive drugs, drug screens, leaving the jurisdiction without permission, still behind on his money, missing appointments, and eventually they tack on an absconding violation, meaning, you know, he's fled, fled supervision, and absconding of course is one of those, along with a new criminal offense, that can result in immediate revocation of your probation. And here at this hearing, the defendant does have counsel, but he is found in violation and revoked. So he appeals and says, I didn't have, you know, there was no valid waiver of counsel at the extension hearing, the initial hearing. And so all of this should be void. You know, the extension wasn't good. I'm really off probation. Now the state argued this is improper. He is trying to attack the underlying judgment as a collateral attack and this is not permitted. The court rejected that. They said there is no appeal from an order extending probation. That was the initial thing, right? He went in for He's behind on the failure to pay. They found him in violation. They extend him 12 months. But there's no right of appeal from that. And so you can't say he waived it. He didn't have, there was no opportunity for him to challenge that order until now. So he can challenge that order, that extension order now. And the defendant here is not attacking the underlying judgment, putting him on probation. He's just attacking that initial extension order. Now as to the waiver of counsel issue, The lack of a colloquy on the record I think is the most significant thing. I did sort of learn this rule. There is a rule that, you know, where the defendant has signed the waiver of counsel form, you can presume that that is a voluntarily given, intelligently given, knowingly made waiver. But the court said that that presumption does not apply where the record contradicts that, and that's what we had here. They said as a statutory matter under 15A-1242 and as a constitutional matter, this was not sufficient to establish that the defendant knowingly, voluntarily, intelligently waived counsel. Because the original extension was invalid, And the new probation violations were filed past the time of the original probationary period. The trial court lacked jurisdiction, had no subject matter jurisdiction to revoke. So, you know, reversed and vacated. And he goes home. Now Judge Tyson did dissent, so I expect this will be reviewed at the North Carolina Supreme Court unless the state just forgoes their appeal. This was, I think it is the right result though, and kudos to the appellate lawyer here. I think this was very creative lawyering to sort of dig and find the, you know, sort of subtle right to counsel violation even despite there being a signed waiver in the file. That was a great win and an interesting reminder about that right to counsel and how to waive it. We're going to wrap up with a Cabarrus County case, State v. Pavon or Pavan. This was rape and kidnapping. The defendant was accused of rape and kidnapping of an adult victim. Apparently it was a pattern that he had with women where he would befriend them, get to know them, gain their trust. And when the opportunity presented itself, he would drug them and rape them. The state presented other victims as 404 witnesses to show the defendant's other propensity for this kind of behavior and how he had the same modus operandi, same MO with each victim. And there was a ton of evidence that this happened. I mean, there was physical injuries on the victim consistent with the sexual assault. His DNA was all over her in large amounts and places it probably shouldn't be. The victim's blood had amphetamines, benzodiazepines, and muscle relaxants. And there was expert testimony at trial that was, hey, that combination of drugs is basically going to be Rufinol, you know, a roofie. It's going to incapacitate somebody. And that is, you know, serious medicine. Now, one of the experts who testified at trial was not the analyst who actually took the victim's blood samples or tested it. They reviewed that evidence, they reviewed the lab analysis, and they formed their own opinion. This is known as substitute analyst testimony. and kudos to trial counsel. They objected to that substitute analyst testimony, said that's hearsay judge, that's a confrontation clause violation under the Sixth Amendment. Trial court overruled it and allowed it in and of course this guy is convicted at trial. he raises this issue on appeal. And the general rule is that you can't have mere surrogate testimony. An expert can't just come in and read the report of another expert and just repeat their findings. But in North Carolina, at least, our rule is that you may independently, an expert may conduct an independent review of a lab analysis. They can form their own opinion and they're considered to be using that analysis that was conducted by other people simply as the basis for their own expert opinion. And here, you know, the Court of Appeals went with that rule that is, again, firmly established in North Carolina, the substitute analysis, substitute analyst testimony. The majority said this was not a problem. You know, the foundation, there does have to be a foundation laid And that usually looks like, hey, is the information reasonably relied upon by the experts, like the data that the expert is using or the test? What are the standard procedures for this kind of stuff? Did you participate or observe the testing? What sort of independent analysis went into you forming your opinion as the substitute analyst? What assumptions did you rely on? You know, sort of detailed foundational requirements. And the court here said those foundational, evidentiary foundation requirements were met, and the defendant was in fact able to confront and cross-examine the testifying expert. They found that the expert conducted a proper independent analysis. They said that he was not merely parroting the report of another, so no evidence or confrontation clause violation. Judge Murphy dissented and would have found a confrontation clause violation and would have required a new trial. So I think this is exciting for a couple of reasons. I mean one, well sorry, this makes it, Judge Murphy dissents at the Court of Appeals and would have found the confrontation clause violation, so this goes up to the state Supreme Court. I thought it was really interesting. The state Supreme Court said, we'll assume that this was error. We're not going to decide that it was error, but assuming it was, here any such error would have been harmless. There was overwhelming evidence of guilt. Other experts testified at trial to some of the same results. There was lay opinions about the victim's condition from friends and family who saw her in the aftermath. There was also a video of them at some restaurant, there was surveillance video from inside a restaurant where that it was either, I'm not sure if it was before or after the assault but it was after the woman had been drugged. And just watching the surveillance video, I think really anyone could tell that she was not okay. She seemed to be impaired even though I want to say it was like early in the morning or the middle of the day. You know, it wasn't like she had been out drinking or something. It was pretty clear she had been drugged. Plus you had the DNA evidence. There was just too much here for for the defendant to really say, you know, but for this error I would have been found innocent, you know, I deserve a new trial. They said, you know, you still, even though there might have been a constitutional violation, here it was harmless. So what is the takeaway from all of that? We've got Ortiz, Zapp, and other North Carolina cases. Like I said, a lot of state cases, they allow this practice of substitute analyst testimony, at least when those foundational requirements are met and it's not merely parroting the testimony. But this issue is ripe for challenge. And I think one, it's a good, I don't know that I would read too much into it, but arguably maybe it's a sign that the state Supreme Court is reconsidering some of its jurisprudence here and that they assumed without deciding error. But I think, you know, defenders should be trying to get this issue back before the US Supreme Court. One of the more recent confrontation clause cases was the 2012 case of Williams v. Illinois from the US Supreme Court. And in Williams, you had five justices that expressly rejected the logic of North Carolina's approach here. This idea that the underlying analysis by another expert when, you know, read by a substitute expert, that is not being offered for the truth of the matter asserted and is still and is instead merely the basis of the second expert's opinion. Justices Thomas, Sotomayor, Ginsburg, Scalia, and Kagan all would have said, no, that's not okay, in which case we would have to revisit our ideas on this and some of our cases on this. Three of those justices are still on the court. It's fair to say we've got a new court. I don't know, I don't have a good sense of how the newer justices may be treating these kind of confrontation clause issues, but I think it's worth getting it before them. So, you know, you never know what they're going to do and at least there are some indications that they may not agree with the approach North Carolina takes here. So trial counsel, I think, did a good job of making this confrontation clause objection and, you know, couching it in both terms of hearsay and sixth amendment confrontation clause. So defenders out there, if this is your situation, and look it comes up a lot, it comes up in drug cases, it comes up in DNA or other cases where there's forensics involved, any kind of testing and laboratory stuff, it's very common to see substitute analysts. So make your objection, state the constitutional grounds, get that issue preserved for review, and maybe your next case can be the one that makes it to the US Supreme Court and changes some law one way or the other. Okay, I think that's it for today. I'm still figuring out how frequently I'm going to podcast these things, but I'm trying to do it at least every four or six weeks, depending on what else is going on with my schedule. I would love to hear feedback from y'all, including other ideas, what we might could cover. I do plan to do one really just dedicated to those cannabis issues once we have some guidance from either the legislature, the courts, or both. but I can be reached as always at Dixon, that's D-I-X-O-N, at S-O-G, as in School of Government, dot UNC dot edu. Again, Dixon at S-O-G dot UNC dot edu. Please feel free to send me an email and let me know what you think or with any questions, concerns, or comments. And please like and subscribe and share if you've enjoyed this. I'll hope to see y'all back for episode three. Thank you.