Episode 9: NC Criminal Debrief

[00:00:11.118] [SPEAKER_00] Welcome, everybody, to the North Carolina Criminal Debrief Podcast. This is a podcast dedicated to covering criminal law developments in North Carolina and beyond. Here, as always, with Paul Bonner on the ones and twos. This wouldn't be possible without Paul, so a big thank you, Paul. I mentioned the new abortion law recently passed in North Carolina last episode. That's SB 20. We covered a new crime relating to unlicensed abortion clinics and a new infraction regarding medication abortions and whether they're promoting or providing that outside the structures of the law. I meant to mention some big things are tucked into, some big criminal law things are tucked into the back of SB20. We've got some radical changes to our satellite-based monitoring program, SBM as it's known. So folks handling felony cases, particularly sex cases, I'm sure people are familiar. In case you didn't know, satellite-based monitoring has been the subject of extensive litigation in our state. It's made it all the way to the U.S. Supreme Court, where it was found to implicate the Fourth Amendment, sent back down to North Carolina courts. That was, of course, Grady v. North Carolina, basically saying the state has to establish that this is reasonable under the Fourth Amendment. There was tons of fallout after that Grady decision, with the state mostly trying and failing to prove that the search effectuated by these SBM devices was reasonable. So in response to losing a bunch of those cases, the legislature substantially reworked the SBM law in 2021. Folks might remember formally, categories of folks would get it for life. You couldn't really get off of it in a meaningful way. You had to go before the parole commission to ask for termination of the program. They had never once granted anybody that relief. Jamie Markham did a great blog post on that around that time when that came out in 2021. Among the other changes, they made a legislative finding that it's efficient. That is, that it works to protect the public and help solve crimes. This had been a factor identified by our courts previously when conducting that reasonableness analysis. And no more. The legislature has spoken and said we find that it's efficient. And as Jamie points out in his post, I don't know that courts would necessarily defer to that kind of legislative finding automatically. But as it turns out, our courts indeed have. and have accepted that as basically an established fact. These 2021 changes also reworked what was formerly known as the recidivist category. People that recidivate, they commit the same or similar crime twice. And we changed that. It used to be any two registrable offenses makes you a recidivist, therefore triggers your eligibility for SBM. Under those 2021 changes, it was moved to reoffender, reclassified, excuse me, as reoffender. And cabined, it was narrowed to include only repeat felony registrable offenses. which was a big deal because that formerly meant, under the former law, misdemeanor sexual battery plus a second subsequent misdemeanor sexual battery from a different term of court, that'll get you to SBM. Likewise, any misdemeanor sexual battery plus a felony registrable offense from separate terms of court would get you to SBM. So when they changed it to reoffender in 2021, no longer would a misdemeanor sexual battery which is, I believe, the only misdemeanor that has mandatory sex offender registration, no longer could that ever get you into SBM as a quote-unquote reoffender. You'd need two separate felonies. Other changes trying to make this program more constitutional included that every defendant has to have a risk assessment done. So it's not just, hey, you've got these predicate convictions, you're therefore being placed on SBM. No. Under 2021 changes, everyone has to have a risk assessment. You can only impose SBM when the court determines in consultation with the risk assessment and any other evidence before the court that this offender requires the highest possible level of supervision and monitoring. Then and only then can SBM be imposed, and that's for everybody. For certain categories of offenders, those classified as sexually violent predators, the re-offenders, or those convicted of aggravated offenses, who are then also found to require the highest possible level of supervision and monitoring, they will be placed on SBM for 10 years. For everybody else, and that's basically people convicted of offenses involving the abuse of a minor, but not otherwise falling into the aforesaid categories, it was a term of years to be determined by the judge in the judge's discretion not to exceed 10 years. So you could get anything from, you know, say a month or three to 10 years, depending on how the judge felt. Well, all that is about to change again because effective October 1st, those numbers as far as the terms of time periods that you can be on SBM are about to change in a huge way. Under the revised GS 14-208.40A, And those people who would have previously gotten the mandatory 10 years when they're determined to be eligible, that'll now be life. So sexually violent predators, reoffenders, those convicted of aggravated offenses who require the highest level of monitoring and supervision will be put on SBM for life. For everybody else, those people convicted of abuse of minor offenses, but not otherwise falling in one of those categories that just went over, that is a term of years to be set by the court not to exceed 50 years. People in the first category, if they're eligible, it's life. For everybody else, it's up to 50 years. In some cases, you know, that means it's not necessarily going to be a longer period of time, just like before for where the trial court has the discretion on the term. They could set the term at six months or one year or five years or seven years, whatever. They could also set it at 45 or 50 years, though. That change is going to apply to all SBM determinations on or after October 1st of this year. The other biggie here, and this is confusing the way it's written in the statute, and I've got a blog post that will soon be out on all of these SBM changes, is that they sort of put sexual battery back in the mix without really coming out and saying so. So I mentioned before we changed in 2021 the definition of recidivist to reoffender. and we made it limited to just felony convictions. Well, that still says that. If you go to the definition section of this article and you look at reoffender, it's somebody with two or more separate, from different terms of court, reportable felony convictions. In this reworking of the terms that can be set, the trial court is now directed to consider in the discretionary category, they say, you gotta consider trial court when you're trying to determine, make this SBM determination, is the person a reoffender of these very particular offenses? And they list them out and sexual battery is in that list. So it appears to me that somebody with multiple, but from different terms of court, convictions for misdemeanor sexual battery can effectively be considered a reoffender and be at least in the discretionary category. Likewise, if they have a misdemeanor sexual battery and a felony registrable offense, even if the felony on its own wouldn't get you to SBM, it looks to me like now it will when you have a separate sexual battery conviction as well. So those are pretty big changes, both the terms of years and the fact that sexual battery is back in the mix to potentially trigger SBM. That may be an incentive for any defenders out there to, if you've got one of these you're waiting around to do, you might try and get it done before 10 years. Right now it's capped at 10 years for everybody and people are entitled to get off it at 10 years, but I'm not sure that will be the case moving forward. So heads up. A couple other things we're still covering SB20. Two other things I meant to mention briefly. There's a new crime in there of assault on a pregnant woman. This has been added to 14-33, our general assault statute. Practitioners will know we, of course, have the offense of assault on a female. We have an offense regarding battery of an unborn child. We have in Chapter 90, our medicines and drugs rules, enhancements that can be added on if you sell drugs to a pregnant person. But we really didn't have this specific statute, you know, assaulting a pregnant woman. We do now. It's effective December 1st. It will be an A1 misdemeanor. Another assault to add to the mix. And keep in mind with those assaults, there's that sort of limiting language in 14-33 that says, unless otherwise covered by a greater provision of the law. And our courts have interpreted that to say, you really only get one. I don't think it would fly to say you've committed assault on female and you've committed assault on a pregnant woman when the female is pregnant because of that limiting language. But my colleague Brittany recently wrote about what our next topic is. She pointed out that all of those cases that we have on this limiting language really deal with a greater offense. So like, could I be convicted of assault with a deadly weapon and assault by strangulation, you know, felony and a misdemeanor for the same conduct at the same time? Our courts have said, no, you can't. But it may be a fair open question as to whether that really prohibits the state from charging them both when they're the same level. And this is relevant to our next topic. In addition, we've got a new crime in the assaults article of Chapter 14, a totally new offense called misdemeanor crime of domestic violence. That's going to be codified in the new 14-32.5. It goes into effect December 1st. creates an A1 misdemeanor offense for the use or attempted use of physical force against a partner with whom the defendant is in a qualifying domestic relationship. The crime also covers if a deadly weapon is threatened in any kind of altercation between two people in one of these qualifying domestic relationships. I'm not going to go over the relationship stuff in detail because I don't think it's typically that big of an issue. If you're dating, if it's a parent, a spouse, a guardian, a person acting in those roles, I think that's usually going to get you there. As I mentioned, Brittany has a great blog post on this that came out recently. I wanted to flag a couple things about this new crime for listeners. Under our current law, as folks know, when a man hits a woman, it is going to be assault on female, an A1 misdemeanor, most serious misdemeanor. But if a man hits a man, or if a woman hits a woman, or if a woman hits a man, all things equal, those are typically simple assaults, class two misdemeanor. I'm assuming there's no enhancement involved, there's no deadly weapon involved, that sort of thing, no super injury or whatever. You know, we see this in cross-warrants cases in domestic violence court all the time. The guy's alleged to have hit the woman. The woman's alleged to have hit the guy back. She's charged with the class two. He's charged with the A1. Now, under this new law, once it goes into effect in December, if you're in a dating relationship, everybody's going to get the A1. If there's a qualifying relationship piece is met, and there's the use or threatened use of physical force against each other, or the threatened use of a deadly weapon, you're going to be looking at A1 misdemeanor territory. So now, if let's say I'm in a dating relationship with another man, My boyfriend hits me. I'm alleged to have hit my boyfriend back. We'd both be charged with not simple assault. We'd be charged with A1 misdemeanor crime of domestic violence. Same thing with girlfriend against girlfriend. Same thing with girlfriend against boyfriend. Those aren't gonna be class two misdemeanor situations anymore, they're gonna be A1 misdemeanors. So that's significant, and I'm sure we'll see this being used a lot right as it goes into effect. The other aspect of this new crime is that it seems designed as a fix to this Fourth Circuit case called Vinson, U.S. v. Vinson. Vinson is from 2015, and Vinson was dealt with under federal law, as I've mentioned on this podcast before. One of the ways you lose your rights to possess a gun legally is if you've been convicted of what the federal law classifies as, take a guess, a misdemeanor crime of domestic violence. In Vinson, the question was, do North Carolina assaults really count as as misdemeanor crimes of domestic violence for purposes of that federal gun disqualification. And the court in Vinson held they did not. Jeff Welty wrote a blog about this back in 2015 or 16. You know, the court basically looked at how assaults can be committed in North Carolina and said, you know, they don't really require intent in North Carolina. And you can commit an assault without necessarily using physical force. And the way that phrase, misdemeanor crime of domestic violence, has been interpreted in federal law, that meant that our assaults didn't count. So this means that when somebody is convicted of assault on female and it's marked domestic or simple assault, it's marked domestic, Folks in courtrooms around the state are often told, because this is an assault and because you've been found to be a domestic violence situation, you've lost your right to possess a gun because you've been convicted of a misdemeanor crime of domestic violence. Now, there's a whole separate issue that I think we've talked about before briefly about enforcement of that kind of disqualification. But the fact is, those people are not disqualified in the Fourth Circuit. A federal prosecution for crime by felon based on, I say, simple assault conviction that's been marked domestic in North Carolina goes nowhere because it does not count as a misdemeanor crime of domestic violence. It seems to me that our new misdemeanor crime of domestic violence is designed to remedy that problem so that if folks... become convicted under this new crime, it much more neatly fits the requirements of Vinson and of the federal MCDB. Now, there's some question about that. I mean, I think it's designed that way. We'll see if that holds. It does not use language of assault. Again, it uses the language of use or attempted use of physical force. I wonder if they need an intentional use of force requirement added in there Or perhaps our courts will read in that additional requirement. But I think at most that's about as much as I can quibble with it. Otherwise, I think it's designed to trigger the federal disqualification ban for people who are convicted of the offense. And I think it's likely to accomplish that. Again, Brittany's got a great post on that. You can check it out if you're interested. I'd encourage you to always go read the North Carolina Criminal Law blog. Okay, that's it for legislative update. A couple of state cases I wanted to cover as well. One was a very recent case of State v. Sharp out of Nash County from our Court of Appeals. This dealt with constructive possession of a firearm in a firearm by felon case. Really interesting stuff. Here you had a special response team in Rocky Mount. They knew there had been multiple shootings in the area recently. They're concerned there was going to be retaliatory shootings. They had identified the defendant, Mr. Sharp, as somebody who was potentially involved in all this mess. And they were following him on social media. Just as a tangent, I see this more and more that we had a recent Fourth Circuit case on it separately. You know, the police saw the guy flashing a gun or threatening his opposition gang with... a gun and stating that he was armed, either on Twitter or Facebook, some kind of social media, and that the cops were following the account and saw it and just promptly went and met the guy in public and frisked him and found his gun and he got 10 years. On some level, this is another in a trend of cases spawned by police following social media, but they're watching this guy's social media. Defendant gets on social media and posts pictures or video of himself in a store looking at guns and ammunition. The police can tell it's a local store, but that's it. Based on that information, when the defendant leaves the store, officers go and stop the car he's in. He's the front seat passenger. There's three other people in the car. They try to frisk him, the defendant, but he resists, and he ultimately ends up cuffed and detained under suspicion of resisting arrest. The car is searched, and they find bullets, a bottle of Hennessy, and a whole rifle in the back seat. There's no DNA on the rifle. There's no fingerprints on the rifle. What happens? Defendant who is a felon is charged with firing by felon for the rifle. He goes to trial and puts on some evidence. The driver comes in. Remember, the defendant here was the passenger. The driver comes in for the defendant and says, you know, that gun was not the defendant's. It belonged to so-and-so, you know, Mr. Smith, some other person. Then the defendant took the stand and testified and said, you know, that's not my car. That's my mom's car. I don't even have a license and my mom only lets me use it. If I have somebody else to drive, you know, in fact, she had seen again, I think on social media, the defendant driving the car earlier in the day. And it apparently, you know, called up and fussed at him and been like, bring my car home right now. You know, I don't let you drive it without a license. And he did. But he, now he's back out with somebody else driving and he, That's that. So that's the evidence. Police found this gun in the back seat with three people. That's the defense evidence that it's his mom's car. It's somebody else's gun. Well, this gets past the motion to dismiss stage. Trial court denies the motion to dismiss for insufficient evidence. And the jury convicts on everything, which is a resist and firing by felon. Court of Appeals unanimously reverses in one of the more interesting opinions I've seen in a while. Constructive possession, of course, requires that a person is aware of the thing, the contraband, and that they have the power and intent to control it. Well, this is not an actual possession case because it wasn't on the defendant. The state's argument here was, well, he was aware of that. He had the power and intent to control it. But, you know, the rule is where there's not exclusive possession. Like this would be a much different scenario if it was the defendant alone in his mom's car with the rifle in the backseat. Right. Instead, we've got multiple people in the car, all who are potentially victims. have power and control over that. So our long-standing rule in constructive possession cases is that if there's not exclusive possession, like the circumstances here, the state has to have some other incriminating circumstances that connect that gun to this defendant. They just did not have that here according to the Court of Appeals. The state tried to argue this was exclusive possession because he was the custodian of the car. They point to cases that say an inference of constructive possession is permissible even if you're driving a borrowed car because when you're the driver of the car, you have control of that car in the moment and therefore you have the power and intent to control anything in the car at that moment. Drivers have control over the things in the car. Remember, the defendant here was not the driver, and he wasn't the owner. All of those cases, the court looks at all this and looks at the state's argument and says, you know, all the cases here that the state cites are about drivers, and they're rooted in older cases talking about drivers are custodians, even when they're not the owner. The court observes it's possible a passenger could also be a custodian. Maybe the defendant was a custodian here along with the person actually driving the car, but that's not exclusive possession still, right? They would be co-custodians, co-custodial possession. That's a new one for me. And they cite to this case about a husband and a wife who were in a borrowed car. There's a gun in the front seat console. I believe the husband, you know, was a felon and could not, it would have been illegal for him to possess it. So he's charged with firing by felon. And the court there said, you can have joint possession, but that requires more than the person's mere presence or association. Nothing showed who had actual control, custody, or possession of this gun. And that, just like in that case, so here. The gun was in the back. The defendant was in the front. He's not the owner. He's not the driver. There's no state evidence of who owned the gun. There's nothing linking the defendant to the gun. You know, I think as a last gasp, the state was making pointing to the fact that, well, we knew there's sort of this, you know, sounds like some kind of gang war going on in the area. And what about what about the fact the defendant was looking at guns in a store earlier? And, you know, he admitted to driving the car earlier. Is that's enough. Right. Those are those extra incriminating circumstances that we need. Of course, said no. You know, the fact he was looking at guns earlier in the day. and admitted to driving the car much earlier in the day, that is not enough. That is pure speculation and conjecture. There's no evidence that he made a purchase at the store of a gun or ammo. There's nothing linking this gun to that store. Again, no DNA or fingerprints on it. The state's evidence here, according to the unanimous court, raised no more than a suspicion, and the motion to dismiss for insufficient evidence therefore should have been granted. The case is vacated. The matter is remanded for sentencing on the misdemeanor resist only. Really good case for the defense. Good, good case on the limits and requirements to establish a constructive possession where there is no exclusive possession by the defendant. Kudos to the appellate lawyer there. Next one I wanted to cover is a right to counsel case, a Harbison case out of Duplin County. This is State v. Hester. The defendant was charged with larceny, breaking and entering, and possession of stolen goods, felony versions of all three. This was apparently property taken from some non-operational power plant around Keenansville, I believe. And it wasn't great for the defendant. He's caught inside, inside the power plant with what didn't sound like a great story to me. But he goes to trial on this offense and these offenses, and he's not happy with his lawyer from the start. He mentions repeatedly to the trial court, I don't think my lawyer can really hear, like he's having auditory difficulties. And he mentions that again throughout the trial. And then he later complains, you know, hey, I told my lawyer to ask these certain questions of state witnesses. He didn't do it. Trial court's sort of like, yeah, okay, I hear your complaints. There's no follow-up or anything like that, either on the questions the defendant wanted asked or the apparent hearing difficulties that the defense lawyer was having. But here's where the real error occurs. At closing argument, the defense lawyer gets up, says this choice quote. He starts his argument with, let me level with you, members of the jury. I agree with you. It's not good to be caught in the act. He repeats the words caught in the act at least five times throughout his argument. Again, the defendant actually does okay as far as it goes. There's a mixed verdict, some guilties, some not guilties, but he is a habitual and pleads as such after the guilt and innocence stage. 97 to 129 months is what he ended up with, but he's getting a new trial because the court found that that was a harbison error. The Court of Appeals said this language from the defense attorney in closing was an admission of guilt, at least to the lesser included offense of misdemeanor breaking and entering and misdemeanor PSG. That he was caught in the act was effectively a concession that he was not entitled to have that property and that he was not entitled to be in that building. You need the defendant's consent to do that, and there's nothing in the record showing that he had the defendant's consent. Like we saw with the Wilkins case in our last episode, this gets remanded for a retroactive determination of whether the defendant consented to this strategy. I'm going to go out on a limb here and predict that the defendant is going to say he probably did not consent to this. given all these circumstances. When this happens, if the trial court does determine, in fact, on remand that the defendant did not consent, that'll be per se error. That'll be an automatic do-over, reversible without regard to prejudice. When your attorney admits your guilt without your express permission, that is going to be reversible without regard. I just thought it was an interesting one. This is one in a sort of a string of cases where, you know, I don't know if this would really be considered explicit admission of guilt or the line of more along the lines of these implied Harbison errors that we've seen. Couple things for the defenders here. The client has the absolute right to control their defense. I mean, we know that from State v. Ali. It has been reinforced by the U.S. Supreme Court in the past few years in a case called, I believe, McCoy v. Louisiana. They have to affirmatively consent to any admission of guilt to any charged crime or any greater or lesser included offense. It's important, though, to keep in mind the parameters of this rule. It is not a harbison error to admit to an element, to admit that the state has proven one element of the crime. It's also not a harbison error to admit to some other uncharged element totally unrelated offense. I think this came up in a case a few years back where the person was charged with rape and various sexual assault offenses. It was with a relative. Incest was not charged though. And so the argument the defense attorney made was that while this might have been incest, it was not a sexual assault. And that was actually okay because incest was not a lesser included offense and it was not a charged offense. So you can admit guilt to some other offense that's not a lesser included or that's not charged and not a lesser included. And you can admit to an element. It's always going to be best practice to have your client's consent to any of that, I think. But as far as Harbison goes, an actual admission of guilt without your client's permission, you can't do that unless it's on the record that they consent and Judges are usually really good about this. They'll often make some pretrial inquiries about, is the defendant going to testify? What's the argument? What kind of argument do you expect? Do I need to do a Harbison inquiry? Whether or not the judge does that, defenders, you all have an obligation, I think, to tell the court if you plan to, you know, hey, I'm going to admit that we're guilty of the misdemeanor B&E, but not the felony B&E. Or we're guilty of misdemeanor drug possession, but not felony drug possession. We're guilty of possession, not possession with intent to sell. For those kind of things, you have to have the affirmative consent of the defendant. And Hester out of Duplin is a reminder about those rules. Okay, for our last case in this episode, I'm going to cover State v. Graham. This is out of MEC. This was a B&E case. This is actually a habitual B&E case, B-R-E case, this breaking or entering, of course. And actually pretty disturbing facts. This break-in apparently occurred in the middle of the day. It occurred while there was a child alone in the house at the time. Had this been nighttime, it would have been first-degree burglary, it sounds like. The defendant broke the window, took a PlayStation and some games, and was out. No harm to the child, directly at least. Police recover fingerprints on the window frame and also identify the defendant by DNA. He apparently cut his finger breaking into the window and climbing in the house. At trial, fingerprint analyst testifies as an expert. There's no objection to that testimony. The print is consistent with the defendant. There's also a DNA expert saying same thing. We recovered this DNA. It's very likely that it came from the defendant. And he's convicted. Well, on appeal, because there's no objection, appellate attorney is stuck arguing plain error. Anybody familiar with the standard knows that's usually a death knell. And it was here as far as for the defendant. What's at issue here? We're really talking about Rule 702 and the proper role of expert testimony. Testimony under 702, expert testimony, has to be based on sufficient facts and data. It has to be the product of a reliable method that was accurately and reliably applied to the facts of this case. The fingerprint analyst, he didn't give any testimony to really establish all those things. He did not testify about how accepted this method is within the scientific community, nothing about the rate of error, and nothing at all about how he applied his method to the facts of this case. When that sort of foundational testimony isn't there, there should be an objection under 702 that says they haven't established that it meets the requirements for expert testimony under 702. We object. This shouldn't come in. And that may tip off the state to ask some more questions. I think a lot of judges would be lenient there and allowing additional questioning if needed to establish basically foundational requirements. It's not going to be plain error. This was not plain error. They said there's plenty of other evidence of guilt. This was wrong because there was no testimony establishing that final prong of how it was applied to the facts. but it's not plain error because of all the other evidence. The DNA, I think, probably hurt a lot. You know, this is one in a string of cases about bad fingerprint evidence. We had McFall a few years back, we had Coyen, and now we have this Graham case. And this was actually the same analyst, same fingerprint analyst as in the Coyen case, and very similar deficiencies in his testimony. You know, he didn't meet all those foundational requirements, but I believe just like in this case, there was no objection and there was nothing really, you're under a really tough standard on appeal when there's no objection. So if you have a print case, especially with this specific fingerprint analyst, you really need to be keeping your ears wide open and listening to hear Has the state and the witness really established the foundation? And if not, be ready to object. Fingerprints, of course, they're a lot more reliable than some other forms of science out there. But I think they're really worth challenging at all levels in this day and age, because if you think back, we had the PCAST report at some time ago. really analyzing all the purported forensic sciences. And while DNA is the gold standard, at least single samples of DNA, not mixtures, are a gold standard in terms of forensics, fingerprints are probably a distant second in terms of how accurate and reliable they are. They've been around a long time. They do have some reliability when done correctly. There can be a big difference between a fingerprint analyst at the state crime lab and somebody at a local crime lab or a local officer just doing it in the field. A lot of times there are discovery deficiencies when print evidence is involved in that, you know, there may just be a report from an officer that says, I compared the prints. It looks like the defendants. Well, that's not enough. And defenders need to know that. If they're faced with a report like that, hey, I want to see copies of the print. I want to know the method. I want to know how this officer was trained. You know, object. Are they really qualified as an expert? And can they establish that their testimony meets the arguably rigorous standards of 702 and Daubert? So worth challenging, think about it. Here again, this was error to admit this testimony, but it was not plain error under the circumstances of the case. You gotta object, you gotta object on all possible grounds. Just a reminder and one more note on preservation. Folks, that is it for me today. I'm gonna wrap it up a little early. I'll be back in the studio as soon as possible. This summer should provide me ample time to record another few episodes. Thanks, as always, to Paul Bonner. Thanks, as always, to Monica Yelverton. And thanks, as always, to my brother David Dixon for our theme music. You can holler at me at Dixon at SOG.UNC.EDU. Again, that's Dixon, D-I-X-O-N at SOG.UNC.EDU. With any questions, concerns, comments, suggested topics, fan mail, hate mail, whatever. Send it my way. If you like what you hear, please like, subscribe and tell your friend. Thanks, everyone. I'll talk to you again soon.