News Roundup

May 24th, 2013
By Jeff Welty

The state Senate passed its budget this week. It’s different from the Governor’s budget and also from the House budget, so nothing is final and there’s plenty of negotiation left to be done. But the Senate budget has quite a few noteworthy features. It would eliminate Prisoner Legal Services, instead giving inmates access to computer terminals for legal research. (The News and Observer reports on that idea here.) It would move the SBI from the Attorney General’s control to the Department of Public Safety. (More on that proposal here; so far, it appears that the AG, the Governor, and the law enforcement community oppose it.) It would eliminate special superior court judges; would not restore drug treatment court funding; would provide no raises for state employees; and would make Class 3 misdemeanors punishable only by a fine in most cases, apparently in an effort to save money by eliminating the necessity for appointed counsel for most Class 3 misdemeanors. The entire budget is available here.

In other news:

  • Caylee’s Law, HB 149, has been passed and signed by the Governor. Among other things, it makes it a felony to fail to report a child that has been missing for more than 24 hours. The bill was named after Caylee Anthony.
  • ProPublica just released this interesting article about why the pace of executions has slowed down across the country. Essentially, the piece contends that death penalty opponents have pressured the chemical suppliers that manufacture or distribute the drugs used in executions to stop supplying them to state prison systems. It’s a fascinating story and one that raises questions about whether North Carolina would be able to resume executions even if the various legal barriers to executions were removed.
  • O.J. Simpson, serving a long prison term after being convicted of armed robbery (or something) in connection with an attempt to recover sports memorabilia items (or something) in Nevada (or somewhere) is back in court (again), arguing that his attorneys rendered ineffective assistance. The Juice apparently has plans for a law school speaking tour upon his (possible) release, saying “They teach the trial of the century in law school. So, who better to talk about it than me?” See more at Above the Law if you’re not tired of OJ by now.
  • The Volokh Conspiracy reports here on a former Texas prosecutor, now a judge, who was arrested and charged criminally for allegedly failing to disclose exculpatory evidence in a murder trial over 25 years ago.
  • Finally, while there’s nothing funny about murder, there is something funny about a murder defendant who was apprehended as a result of butt dialing 911, enabling law enforcement to record him saying that he planned to kill the victim. WSJ Law Blog.

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The Sniffer

May 23rd, 2013
By Shea Denning

The National Transportation Safety Board’s recommendation that states lower their per se blood alcohol concentrations for impaired driving from 0.08 to 0.05 grabbed headlines last week. But the BAC reduction wasn’t NTSB’s only recommendation.  Overlooked in the 0.05 hullabaloo was NTSB’s endorsement of the Sniffer.

That’s right.  The Sniffer.  It’s more powerful than a nose. Let me explain.

The second recommendation in the NTSB’s report—immediately following the BAC bombshell—is high visibility enforcement of DWI laws. High visibility enforcement involves well-publicized media campaigns (think, Booze it and Lose it), visible enforcement efforts such as saturation patrols and sobriety checkpoints, and swift and certain penalties for drivers arrested for DWI (a la civil license revocations under G.S. 20-16.5). Checkpoints, however, have some limitations. And that’s where the Sniffer comes in.

Turns out that a lot of folks who are impaired by alcohol aren’t detected even when stopped by a checkpoint. The NTSB report cites studies showing that officers employing traditional methods of determining driver impairment at a sobriety checkpoint identify less than half of all drivers with BACs above the per se limit. (NTSB at 25). So the NTSB recommends that officers use passive alcohol sensors (the Sniffer is the brand name for one such sensor), which can tip them off to the presence of alcohol. These sensors, housed James-Bond-style in a flashlight or a clipboard, detect alcohol vapor. When a police officer holds the Sniffer near a driver, it samples the driver’s exhaled breath as well as the air in the car, analyzes the sample for alcohol and provides some information about the relative amount of alcohol detected. The display ranges from green to red, colors that correspond to BAC ranges. See Kim Han, The Technological Sniffing Out of Constitutional Rights: Assessing the Constitutionality of the Passive Alcohol Sensor III, 9 J.L. & Pol’y 835, 858-59 (2001).

Sniffer devices have been used by law enforcement officers across the country for more than a decade, including, apparently, in North Carolina. Id. Because such devices haven’t been approved by the Department of Health and Human Services, however, G.S. 20-16.3 appears to prevent law enforcement officers from relying upon them in determining whether there is probable cause to believe that a driver has committed an implied-consent offense.

Some commentators have questioned whether use of the Sniffer violates a person’s Fourth Amendment rights. See Han, supra, at 860-867. I’m skeptical about that claim. If having a dog sniff around the perimeter of a person’s car during a traffic stop is not a Fourth Amendment search, see Illinois v. Caballes, 543 U.S. 405 (2005), and an officer’s own olfactory perceptions don’t invade a person’s reasonable expectation of privacy, it isn’t a stretch to conclude that use of a passive alcohol screening device likewise is not a search that implicates the protections of the Fourth Amendment. On the other hand, the device has to be held within inches of a person’s face to measure his or her breath. So perhaps the invasion is more like a dog sniffing a person than a dog sniffing a car. And if the Sniffer has to be inserted into a car’s interior to get a good whiff, it might constitute a physical intrusion into an area in which a person has a privacy interest (his or her car) in much the same way that bringing a drug dog to a person’s front door physically intrudes into an area in which a person has a reasonable expectation of privacy. See Florida v. Jardines, __ U.S. __ (2013) (discussed here).

Relevant to the constitutional inquiry is whether this sort of sense-enhancing technology is in general public use. See Kyllo v. United States, 533 U.S. 27 (2001) (holding that law enforcement officers’ use of thermal imaging device to detect relative amounts of heat within a private home was a Fourth Amendment search; stating that obtaining by sense-enhancing technology information regarding the interior of a home that could not have otherwise been obtained without physical intrusion into a constitutionally protected area is a search, at least where “the technology in question is not in general public use.”).

So, tell us, public. Have you used the Sniffer or similar passive alcohol sensing technology? Been Sniffed? Proffered the Sniffer as proof?

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Are Mug Shots Public Records?

May 22nd, 2013
By Jeff Welty

[Editor's Note: My colleague Frayda Bluestein is the author of this post, which she wrote for the School of Government's blog about local government law. Because she's not a regular contributor to this blog, she's not set up in the software as an author, which is why it is posted under my name and picture. Thanks to Frayda for allowing us to run this interesting post.]

This may seem like a silly question. Mug shots (more formally, “booking photographs”) are everywhere, posted for free, searchable on line, sold in magazines at convenience stores, and regularly provided by law enforcement agencies. I never considered the question of whether North Carolina law enforcement agencies could withhold mug shots until a lawyer at the North Carolina Justice Center asked me to look at an analysis he prepared, arguing that mug shots are not subject to public access. There is no North Carolina case on this point, but now that I have looked into it, I believe that mug shots are criminal investigation records and that local law enforcement agencies have the authority to deny access to them.  I’m not arguing that agencies should deny access, but I think it’s important for public agencies to understand that they can. I also think agencies have the authority to release some photographs and not others, if there is a legitimate law enforcement purpose for doing so.

As I’ve discussed in an earlier post, records made or received in the transaction of public business are subject to public access under our broad public records law, unless an exception allows or requires the public agency to deny access. A broad exception, G.S. 132-1.4, allows (but does not require) law enforcement agencies to withhold records of criminal investigations and records of criminal intelligence information. Criminal investigation records include all records “compiled by public law enforcement agencies for the purpose of attempting to prevent or solve violations of the law, including information derived from witnesses, laboratory tests, surveillance, investigators, confidential informants, photographs, and measurements.” GS. 132-1.4(b)(1).

Although it might be possible to argue the point, it seems to me that mug shots meet the definition of “criminal investigation records.”  Arguments to the contrary are that the photograph is not obtained for the purpose of solving or preventing crimes – after all, at that point, a crime has already been committed and presumptively solved. Perhaps the photographs are “jail records” or “booking records” that document the results of law enforcement efforts, rather than constituting records of the efforts themselves. These are reasonable points, but upon review of the statute and case law, I don’t find them to be persuasive.

Law enforcement agencies use mug shots to solve crimes in many ways following the initial booking of a person who is alleged to have committed a crime. First of all, the person photographed has not yet been convicted. The law enforcement agency may still have to strengthen its case. Law enforcement agencies may also use the photographs to identify witnesses to or collaborators in the alleged crime. Mug shots may serve as a deterrent to future criminal activity by the suspect and others, and may be used to prevent or solve a future crime committed by the same person.

A review of the whole statute also suggests that mug shots are a type of record that is within the scope of the exception. Subsection (c) of the statute lists information that is subject to public access. This list creates an exception to the criminal records exception. Mug shots are not on the list of information that must be released to the public, but that list includes types of information that are similar to mug shots. Subsection (c)(2), for example, includes the name, sex, age, address, and employment of a person arrested, charged, or indicted. This information seems akin to a photograph in the sense that it simply documents information about the person. David Lawrence notes in his book on North Carolina’s Public Records law that “the listing of investigative material that is public also offers assistance in determining the kinds of records that are excluded from public access by the statute.” He also includes mug shots as an example of records that have been held to be law enforcement records under comparable statutes in other states. See, Lawrence, Public Records Law For North Carolina Local Governments, p. 199. Since mug shots are similar to things that are listed as law enforcement records, but are not on the list of such records that must be made public, I conclude that they are law enforcement records that are within the exception and need not be made public.

Cases decided under the federal Freedom of Information Act (FOIA) have consistently held that mug shots are law enforcement records. For example, in World Publishing Co. v. U.S. Dep’t of Justice, 672 F.3d 825 (10th Cir. 2012), a federal appeals court held that booking photos of pretrial detainees fall within the section 7(C) exception in FOIA for “records or information compiled for law enforcement purposes.” In Times Picayune Publishing Corp. v. U.S. Dep’t of Justice, 37 F.Supp.2d 472, (E.D. La. 1999), a federal district court held that the booking photographs of a well-known businessman were law enforcement records even though the suspect had pleaded guilty and been sentenced. The processing of individuals charged with federal crimes, the court held, is clearly a law enforcement function.

I reviewed the legal issue of whether mug shots may be withheld from public access, but I haven’t studied the policy issue of whether they should be withheld. The North Carolina Justice Center makes an argument against their release here. In doing research on the legal issue, I noted that there is significant case law about the admissibility of mug shots in criminal trials, which reflects their potential to be prejudicial to the defendant. And under the federal FOIA exception, law enforcement records may be withheld only if their release “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” It appears that the stigma associated with mug shots has generally satisfied the test under the exception.  [The Sixth Circuit, in Detroit Free Press, Inc. v. Dep’t of Justice, 73 F.3d 93, 97 (6th Cir.1996) has held to the contrary, in a case involving defendants whose names had already been divulged and who had already appeared in open court.]

Businesses, public access advocates, and some law enforcement agencies, which regularly make mug shots widely available, argue that it helps solve crimes, provides transparency, and operates as a deterrent. For example, in support of proposed legislation that would guarantee public access to mug shots, the company mugshot.com says:

Public access to mugshots is undoubtedly in the public interest. Publishing mugshots helps avoid confusion and misidentification of who has been arrested, alerts residents to who is living in their community, helps law enforcement keep people safe, and helps hold government accountable.

Press organizations also advocate for public access, recently urging a probe of the United States Department of Justice policy of denying access under the 7(C) FOIA exception.

Yet another dimension of the issue arises when companies who publish mug shots also provide the service of removal, for a fee. Concerns about this practice are discussed in a Wired article here. These concerns are part of a broader discussion about the extent to which private companies should be allowed to use public information for profit. As to records that are clearly public, however, North Carolina’s statute does not allow consideration of privacy concerns, and prohibits a public agency from requiring a person to disclose the purpose or motivation behind a request for public records.

This brings me to a few final questions for law enforcement agencies to consider. If mug shots are indeed law enforcement records, agencies are allowed, but not required, to withhold them from public access. Could an agency decide to release them only selectively, on a case-by-case basis? And could an agency release them only for certain uses, for example, for media use but not commercial use for mass release?

I think a law enforcement agency may selectively release some mug shots and withhold others for reasonable, law enforcement purposes. An agency may certainly face pressure to release mug shots for other reasons, for example, in high profile arrests, but I’m not aware of any limitation on the agency’s discretion to refuse to release records when it has no law enforcement reason for doing so. Lawrence notes, in his public records book, that courts have imposed liability for selective release of records that are not open to public access, but the cases cited involve invasion of privacy and tort liability based on the impact of the release on individuals who were the subject of the records. See, Public Records Law at p. 110-111. Agencies should be careful to consider these interests in making decisions about whether and when to release specific mug shots.

Selective release of particular records to some members of the public but not others is probably not allowed under our statutory scheme. Given the strong policy of open access, and the prohibition on consideration of purpose or motive, I would be wary of a policy that allows release of the same material to one requester and denies it to another. Cases have held that a public agency waives its ability to withhold a record from public access if the record is released to some but not all members of the public. See, City of Riverdale, v. Diercks, 806 N.W.2d 643,658 (Iowa 2011)(“It is untenable for Riverdale to play the video for a reporter covering the dispute between the parties and yet withhold the same video from the defendants who requested it…It is axiomatic that disclosure to a third party waives confidentiality.”)

Law enforcement agencies have choices. They may routinely release all mug shots, they may release none, or they may choose to release some, when necessary or appropriate for law enforcement purposes. Agencies that wish to release some but not all mug shots should develop a policy outlining the justifications for withholding or releasing them.

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Rule 404(b): The Requirement of Temporal Proximity

May 21st, 2013
By Jessica Smith

As I noted in my last post on Rule 404(b) evidence, even when the evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 (2002)). In this, my final post on Rule 404(b) evidence, I’ll explore the requirement of temporal proximity.

Temporal proximity is part of the analysis because, as a general rule, the probative value of the other crime, wrong, or act diminishes as the event becomes more remote. See, e.g., State v. Barnett, __ N.C. App. __, 734 S.E.2d 130, 134 (2012). There are no bright line rules regarding temporal proximity for purposes of Rule 404(b) admissibility. State v. Maready, 362 N.C. 614, 623-24 (2008). Compare, e.g., State v. Jones, 322 N.C. 585, 587–91 (1988) (in a child sex case, a seven-year gap between the last act on the witness and the first act on the victim made the event too remote to show common plan or scheme), with State v. Carter, 338 N.C. 569, 588–89 (1994) (in a murder case, an eight-year gap between a prior assault and the homicide at issue did not make the incident too remote for purposes of establishing identity). The North Carolina Supreme Court has instructed that remoteness must be considered in light of the specific facts of each case. State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 160 (2012).

The proffered purpose of the 404(b) evidence affects the temporal proximity analysis. Beckelheimer, 726 S.E.2d at 160. For example, remoteness in time may be significant when the 404(b) evidence is introduced to show that the crime arose out of a common scheme or plan. State v. Lloyd, 354 N.C. 76, 91 (2001); State v. Carter, 338 N.C. 569, 588 (1994); State v. Mobley, 200 N.C. App. 570, 577 (2009). On the other hand it may be less significant when the evidence is proffered to show

  • modus operandi, Beckelheimer, 726 S.E.2d at 160;
  • state of mind, such as malice, State v. Maready, 362 N.C. 614, 624 (2008);
  • motive, State v. Locklear, 363 N.C. 438, 448 (2009); State v. Haskins, 104 N.C. App. 675, 682 (1991); or
  • lack of accident, Locklear, 363 N.C. at 448.

In these instances, remoteness goes to the weight of the evidence rather than to its admissibility. Beckelheimer, 726 S.E.2d at 160; Locklear, 363 N.C. at 448; Maready, 362 N.C. at 624.

When the 404(b) acts occurred some time ago but show a pattern of similar activity over time, courts have found that the passage of time can actually reinforce rather than undercut the value of the evidence. State v. Shamsid–Deen, 324 N.C. 437, 445 (1989) (prior sexual acts occurring over a 20–year period were not too remote to be considered as evidence of defendant’s common scheme to abuse the victim sexually; “[w]hen similar acts have been performed continuously over a period of years, the passage of time serves to prove, rather than to disprove the existence of a plan”); State v. Khouri, __ N.C. App. __, 716 S.E.2d 1, 8-9 (2011) (in a child sex case, 404(b) evidence that the defendant sexually assaulted another child from 2001 to until she turned eighteen in 2007 was admissible where the defendant’s sexual assault on the child victim at issue began in 2007; once the defendant discontinued his acts on the first girl, he initiated contact with the victim). This rule applies with special force in second-degree murder cases where the 404(b) evidence is a pattern of prior motor vehicle offenses being offered to show malice. State v. Maready, 362 N.C. 614, 622-24 (2008) (no plain error occurred when the trial judge admitted 404(b) evidence of the defendant’s six prior DWI convictions where four occurred in the sixteen years before the events at issue, including one within six months of the event at issue; the convictions “constitute part of a clear and consistent pattern of criminality that is highly probative of his mental state”). However, that does not mean that any combination of prior motor vehicle offenses will be admissible as part of a pattern of behavior to show malice for purposes of second-degree murder. See, e.g., State v. Davis, 208 N.C. App. 26, 43-46 (2010) (the trial court committed prejudicial error by admitting evidence of three of the defendant’s four prior DWI convictions to show malice; three of her convictions occurred eighteen or nineteen years prior to the accident at issue and one occurred two years prior; given the gap between the older convictions and the more recent one, there was not a clear and consistent pattern of criminality and the older convictions were too remote to be admissible).

The age of a conviction may be discounted for periods when the defendant’s activity was interrupted by, for example, a prison sentence or lack of access to victims. See, e.g., State v. Barnett, __ N.C. App. __, 734 S.E.2d 130, 134 (2012) (five year gap between incidents of rape was explained by the defendant’s lack of access to the victim for three years); State v. Brooks, 138 N.C. App. 185, 200 (2000) (17 year gap between incidents of assaults on his wives was explained by the defendant’s incarceration and lack of marital discord); State v. Frazier, 121 N.C. App. 1, 11 (1995) (gaps between the defendant’s acts of sexual abuse on children were explained by the defendant’s lack of access to victims). However, in order for a period of time to be excluded from the analysis, the proponent must introduce competent evidence of the period of the interruption. State v. Gray, 210 N.C. App. 493, 509 (2011) (declining to toll the time period during the defendant’s incarceration because the State failed to offer competent evidence as to the length of his incarceration); State v. Delsanto, 172 N.C. App. 42, 51-52 (2006) (State failed to establish interruption).

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The DSM V

May 20th, 2013
By Jeff Welty

DSM VThe American Psychiatric Association is about to release the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly abbreviated DSM-V and pronounced “DSM five.” This is important to criminal lawyers because mental health issues are litigated in so many criminal cases, and the DSM is the generally accepted authority on mental health diagnoses. By all accounts, the new DSM will be a significant departure from prior editions. There are several implications of interest to criminal lawyers:

  • The new DSM is controversial. While previous editions of the DSM have been widely accepted, the new version has received considerable criticism. Dr. Allen Frances, a Duke psychiatry professor who chaired the committee that produced the previous edition of the DSM, wrote in Psychology Today that the approval of the DSM-V was the saddest moment in his professional career. He views the DSM-V as “deeply flawed . . . unsafe and scientifically unsound.” In his view, the new DSM paves the way for overdiagnosis and overmedication by creating new disorders and expanding existing ones without justification. Furthermore, the National Institutes of Mental Health, which administers federal grants for research into mental illness, has announced that it will be “re-orienting its research away from DSM categories,” because of the manual’s “lack of validity” and the fact that DSM diagnoses are not “based on any objective laboratory measure,” but instead reflect the collective judgment of a group of practitioners. Scientific American reports on NIMH’s stance here. The President of the APA argues for the excellence of the new DSM here. NPR has a terrific 8-minute report on the new DSM here.
  • The controversy may spill over into criminal cases. Whether a defendant suffers from a particular mental disorder, and if so, how that relates to his or her sanity, capacity, or appropriate sentencing, are familiar issues in criminal cases. But they have generally been litigated within the framework established by the DSM. The disagreement about the validity of the new DSM may result in an increasing number of disputes about whether a particular mental disorder listed in the book even exists, or whether the diagnostic criteria in the DSM properly define the disorder. These would largely be new frontiers. (Of course, it is also possible that the controversy will blow over and the book will continue in its role as “the Bible” of the mental health community.)
  • More mental illnesses may mean more litigation about mental illness. Because it expands the number and scope of diagnoses, more people, including more criminal defendants, will be classified as mentally ill. This will lead to more disputes about sanity, capacity, and mitigation, including whether a defendant is eligible for the mitigating circumstance set forth in G.S. 15A-1340.16(e) (“suffering from a mental or physical condition [that] . . . significantly reduced the defendant’s culpability”). In other words, mental health concerns likely will play an ever-larger role in criminal litigation.
  • The new definition of mental retardation may impact capital cases. The DSM-V changes the definition of intellectual disability, the disorder formerly called mental retardation. Reuters summarizes: “Earlier editions of the DSM defined mental retardation as an IQ score below 70 accompanied by an inability to meet certain developmental norms . . . . Based on that IQ benchmark, the . . . Supreme Court ruled in Atkins v. Virginia . . . that it is illegal to execute a mentally handicapped person. But the editors of DSM-V have dropped the 70 IQ score as an indicator of mental retardation and instead recommend that clinicians consider IQ scores while analyzing an individual’s behavior to determine if he or she meets the developmental standards.” Litigation over mental retardation in North Carolina capital cases has focused heavily on IQ scores. Because G.S. 15A-2005(a)(1) defines mental retardation for purposes of the state’s statutory ban on executing the mentally retarded as an IQ of 70 or below plus limitations in “adaptive functioning,” that strain of litigation will continue. But the more flexible definition in the DSM-V may make it easier for defense attorneys to argue that a defendant with an IQ above 70 is still mentally retarded for purposes of the Supreme Court’s constitutional prohibition on executing the intellectually disabled. And that argument may find some support in the current definition of intellectual disability adopted by the American Academy of Intellectual and Developmental Disability. As explained here, the Academy believes that “[g]enerally, an IQ test score of around 70 or as high as 75 indicates a limitation in intellectual functioning.”

I’m sure that others are more versed on the intersection of criminal law and mental health than I am, may have followed the evolution of the new DSM more closely than I have, and may have additional or different thoughts about the issues presented by the new edition. If so, please post a comment about the significance of the new manual.

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News Roundup

May 17th, 2013
By Jeff Welty

There was lots of news this week about judges new and old, so let’s start with that, then move on to the rest:

  • Jeff Hunt, until now the elected district attorney for district 29B (Henderson, Polke, and Transylvania counties), has been named a special superior court judge. Assistant district attorney Doug Pearson will be the acting district attorney. Congratulations to both. Details here.
  • Superior Court Judge Gary Trawick became just the seventh judge to hold court in all 100 counties. Chief Justice Parker was on hand to mark the milestone, which, as explained in this article from the Ashe Mountain Times, may never be reached again as budget realities constrain judges’ travel.
  • The National Law Review has this interview with new court of appeals judge Mark Davis. His top pet peeve? Tyops.
  • Sentencing Law and Policy notes here that a career federal public defender – and Duke alumna – has been confirmed to a seat on the Eighth Circuit and is already generating talk about a possible future Supreme Court nomination.
  • Turning from judges to legislators, today is “crossover day” at the General Assembly. Basically, bills that don’t pass at least one chamber by today get put on the shelf for this session. The News and Observer has this rundown of what’s still alive, including a possible repeal of the Racial Justice Act and a bill expanding prosecutors’ authority to convene investigative grand juries, as they are able to do in the federal system.
  • The National Traffic Safety Board issued a recommendation that states set .05 as the new blood alcohol limit for impaired driving, down from the .08 that is uniformly the threshold under current law. The USA Today has the story here, including the response from the American Beverage Institute (opposed) and an assessment of the likelihood of states adopting the lower limit (low for now).
  • The Justices of the Supreme Court are increasingly diverse, at least in terms of race and sex. The lawyers who appear before the court? Not so much. This Huffington Post article begins, “In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the [J]ustices, and for just over 11 minutes.” It goes on to discuss Latino lawyers, female lawyers, and whether this issue will solve itself over time. (Side note about diversity among the Justices: Unless I am mistaken, all of the sitting Justices went to law school at Harvard or Yale, with Justice O’Connor, who slummed it at Stanford, being the last Justice who went elsewhere.)
  • Finally, check out this story from the Shelby Star. It begins: “A Kings Mountain woman was arrested Saturday and charged with assault inflicting serious injury after beating another woman with a Bible, according to arrest warrants.” I knew that the Good Book had many uses, but that’s one I hadn’t thought of. (It sounds like the victim wasn’t hurt too badly, and I certainly hope that’s the case.)

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Alleging Probation Violations in a Post-JRA World

May 16th, 2013
By Jamie Markham

How specific does a probation violation report need to be about which condition the probationer allegedly violated? Until last week, I would have said “not very.” A new case from the court of appeals has made me change my answer.

The case is State v. Tindall. In it, a woman was ordered to attend a substance abuse program as a condition of probation. Less than a month into the program the defendant was caught partying and doing drugs with other program residents. She admitted to “snorting ten lines of cocaine.” Slip op. at 3. In response, her probation officer filed a violation report alleging two violations: (1) a violation of the “not use, possess or control any illegal drug or controlled substance” condition; and (2) a violation of the “participate in . . . treatment . . . and comply with all further therapeutic requirements” condition.  Both violations occurred in February 2012—well after December 1, 2011, and thus subject to the revocation limitations of the Justice Reinvestment Act. Under the JRA, revocation is allowed only for a new criminal offense, absconding, or for a defendant who has already received two periods of confinement in response to violation. The trial court nonetheless revoked the defendant’s probation, recasting one of the alleged technical violations (the drug use) as a new criminal offense (probably possession of a controlled substance) and then using it as a justification for revocation.

The court of appeals reversed, holding that revocation was not allowed because the defendant was not on notice that revocation was a possible outcome of the hearing. The court rejected the State’s contention that the violation report put the defendant on notice of the alleged offending conduct (possessing drugs), even if it didn’t peg the behavior to the precise condition ultimately violated. That argument found support in State v. Hubbard, 198 N.C. 154 (2009), which you can read about here. The court of appeals distinguished Hubbard because it was decided at a time when any single violation was a sufficient grounds for revocation. After Justice Reinvestment, the court said, the defendant may only be revoked if he or she receives (or waives) notice of a revocation-eligible violation.

Suppose the notice had been proper, or that the defendant had waived her right to notice of a “new criminal offense” violation at the hearing. Would it have been okay to reframe a technical violation as a new criminal offense to set the table for revocation? I am asked about that all the time. The most common example I hear about is a positive drug screen being recast as the crime of possession of a controlled substance. A positive drug screen, standing alone, is not sufficient to support a conviction for possession of a controlled substance, State v. Harris, 361 N.C. 400 (2007), but it might suffice to prove a violation of probation premised on the commission of that crime, given the lower standard of proof at a probation violation hearing. More generally, our existing case law suggests that Community Corrections and the State may pursue a “new criminal offense” probation violation based on a pending criminal charge or even uncharged conduct (an issue I discussed at length here). Nevertheless, I wouldn’t be shocked if the appellate courts revised their take on that rule in a post-JRA world—just as they refined the rule on proper notice in Tindall.

But that’s just speculation. For now, the practical bottom line from Tindall is that revocation is improper without notice of a revocation-eligible violation, two prior CRV periods, or a waiver.

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New Edition of the Capital Case Law Handbook Now Available

May 15th, 2013
By Jeff Welty

CCLHAlthough the number of capitally-tried cases has declined in recent years, capital cases remain important, complex, and hotly contested. So I’m happy to announce that a new edition of the North Carolina Capital Case Law Handbook is now available. I’m the author, though the new edition is built upon the sturdy foundation of the previous versions, which were written by my colleague Bob Farb.

The marketing blurb: “A research reference for North Carolina judges and lawyers who handle capital cases, this 300-page book is designed to help them understand statutes and case law affecting the trial and sentencing of defendants charged with first-degree murder in which the state seeks the death penalty. Although its primary focus is the sentencing process, it also discusses selected pretrial and trial issues that commonly arise in first-degree capital murder trials. The third edition updates and builds on previous editions and includes the following features:

  • Summaries of appellate cases rendered through the end of 2012
  • Relevant statutory law that has also been updated
  • More expanded analysis and discussion than previous versions
  • A new chapter on the Racial Justice Act
  • The book also contains an index of cases cited and a subject index”

Information about AOC purchases: Some court employees will get a copy through the Administrative Office of the Courts. The AOC has advised us that “a bulk purchase [of the book] has been made by using funds available. Upon receipt of the books, distribution will be made to the Senior Resident Superior Court Judges and the District Attorneys by inclusion in the regularly scheduled supply deliveries. Distribution should be complete by the end of June. Indigent Defense Services (IDS) has arranged to participate in this project, and deliveries will be made to IDS/Public Defenders also by inclusion in the regular supply deliveries. Distribution should be complete by the end of June.” I don’t know exactly how many copies each office will receive.

More information: You can get more information, and buy the book if you are so inclined, here. I welcome feedback of all kinds about the organization and content of the book.

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Street Names and Nicknames

May 14th, 2013
By Jeff Welty

Suppose that a murder defendant goes by the street name “Hit Man.” The prosecution wants the investigating officer to testify that she received a tip that “Hit Man” committed the crime, and that she knew that the defendant used the nickname “Hit Man.” Defense counsel moves to prohibit all references to the nickname during the trial, arguing that it is de facto character evidence, which is generally prohibited under Rule 404(a), and that it is in any event far more prejudicial than probative and so barred under Rule 403. How should the judge rule?

Case law suggests that a brief reference to a defendant’s unflattering street name is permissible. However, the officer and the prosecutor should not unduly emphasize the nickname.

North Carolina cases. Our appellate courts have decided several nickname cases, and in every case, the courts have ruled in favor of the state:

  • In State v. Bonnett, 348 N.C. 417 (1998), the court ruled that a witness’s references to defendant’s nickname, “Homicide,” were not prejudicial given that defense counsel and the defendant used the same term. In any event, the court stated, it is not error to refer to the defendant by the name by which he is generally known.
  • In State v. Swift, 290 N.C. 383 (1976), the court said, “we do not believe it would have been error to refer to defendant by the name by which he was generally known [in this case, “Poison Ivy” or “Poison”]. The fact that his nickname may have been demeaning does not create error per se. Defendant had an opportunity to explain his nickname.”
  • In State v. Riley, 159 N.C. App. 546 (2003), the court concluded that an officer’s reference to defendant’s nickname, “Dirty,” was not prejudicial in light of the overwhelming evidence of the defendant’s guilt and so was not plain error.

These cases don’t completely close the door to defense objections about nicknames. The nicknames in Swift and Riley, while unflattering, were not unambiguous references to criminal activity. The nickname at issue in Bonnett was much worse, but the defendant’s appeal was undermined by the fact that defense counsel and the defendant used the name themselves.

National cases. Although the vast majority of decisions nationally have rejected appeals based on references to defendants’ nicknames, a few cases have found the use of a defendant’s nickname to be so prejudicial as to require a new trial. The leading case is United States v. Farmer, 583 F.3d 131 (2d Cir. 2009), where the Second Circuit condemned the prosecution’s repeated references to the defendant’s nickname, “Murder.” The court distinguished other nickname cases in which no prejudicial error was found, noting that those cases generally involved less damning nicknames, fewer references to the nicknames, or limiting instructions regarding the nicknames. See also Taylor v. State, 23 A.2d 851 (Del. 2011) (awarding a new trial on other grounds to a murder defendant and recommending that “in the retrial, the court should make an effort to delete all references to [the defendant’s nickname, “Murder”] if possible”). But see Com. v. Williams, 58 A.3d 795 (Pa. Super. 2012) (no error in allowing prosecutor and prosecution witnesses to refer to the defendant by his nickname, “Killa”; prosecution “did not use [the] nickname to suggest [the defendant] had a violent character, but used it to show that the witnesses recognized [him] . . . even though the witnesses did not know [his] real name”); Burtts v. State, 499 S.E.2d 326 (Ga. 1998) (no error where witnesses identified the defendant as “Killer Corey” because they did not know his full name; “the use of a nickname does not place the character of an accused in issue”).

Practice pointers. The upshot for the prosecution is to exercise restraint. The more frequently a defendant’s nickname is used, the more closely it relates to criminal activity, and the more careful the defendant is to avoid using the nickname himself and to object when it is used by others, the more likely that the use of the nickname will be deemed improper. If a defendant’s nickname is likely to feature prominently in a trial, it would be wise to ask the judge to give a limiting instruction.

The defense should tread carefully, too. Sometimes the shoe is on the other foot and the defense wants to make the defendant’s nickname known to the jury. But that can carry unintended consequences, as in State v. Berry, 356 N.C. 490 (2002). In that case, a murder defendant elicited testimony that his nickname was “Crazy K,” “apparently in an attempt to tie the nickname to defendant’s purported lack of mental stability.” But that “gave the State the opportunity to establish the source of the nickname,” which was gang-related.

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Rule 404(b): The Requirement of Similarity

May 13th, 2013
By Jessica Smith

Even when Rule 404(b) evidence is relevant to an issue other than propensity or disposition, admissibility is “constrained by the requirements of similarity and temporal proximity.” State v. Beckelheimer, __ N.C. __, 726 S.E.2d 156, 159 (2012) (quoting State v. Al-Bayyinah, 356 N.C. 150, 154 (2002)). In this, my fourth post on Rule 404(b) evidence, I’ll explore the requirement of similarity.

As a general rule, 404(b) evidence must be sufficiently similar to the act in question. The evidence is sufficiently similar if there are unusual facts present in both incidents. Beckelheimer, 726 S.E.2d at 159. However, the similarities need not “rise to the level of the unique and bizarre.” Id. (quotation omitted). Nor must the incidents be identical. Id. at 160. As the North Carolina Supreme Court has stated: “near identical circumstances are not required; rather, the incidents need only share some unusual facts that go to a purpose other than propensity.” Id. (quotation and citation omitted); see also State v. Khouri, __ N.C. App. __, 716 S.E.2d 1, 8 (2011) (in a child sex case, rejecting the defendant’s argument that the defendant’s sex acts with another child were different from those charged because one occurred in private and the other occurred in public).

By the same token, for most 404(b) purposes, some degree of similarity is required; when the requisite similarity is lacking, the evidence is inadmissible. See State v. Davis, __ N.C. App. __, 731 S.E.2d 236, 239-42 (2012) (in a child sex case in which the defendant was charged with assaulting his six-year-old son, the trial court committed reversible error by admitting evidence of the defendant’s writings in a composition book about forcible, non-consensual anal sex with an adult female acquaintance; the events described in the book were not sufficiently similar to the case at bar given that “the only overlapping fact was anal intercourse”; the actual force described in the book was “not analogous to the constructive force theory that applies with sexual conduct between a parent and child”; aside from anal intercourse, “the acts bore no resemblance to each other, involving different genders, radically different ages, different relationships between the parties, and different types of force”); State v. Flood, __ N.C. App. __, 726 S.E.2d 908, 913-14 (2012) (in a case involving a 2007 drug-related murder, the trial court committed reversible error by admitting evidence that the defendant was involved in a 1994 homicide in which he broke into an apartment, found his girlfriend in bed with the victim, and shot the victim to show identity; the acts where not sufficiently similar); State v. Gray, 210 N.C. App. 493, 510-13 (2011) (in a child sex case involving a five-year-old female victim and allegations of digital penetration, the trial court committed prejudicial error by admitting evidence that the defendant had anal intercourse with a four-year-old male 18 years earlier; although the incidents both involved very young children and occurred at a caretaker’s house where the defendant was a visitor, the nature of the assaults was very different).

When the prior acts are very old, the requirement of similarity may be heightened. See, e.g., State v. Webb, 197 N.C. App. 619, 623 (2009) (in a child sexual abuse case, evidence that the defendant abused two witnesses 21 and 31 years ago was improperly admitted requiring a new trial; in light the fact that the prior incidents were decades old, more was required in terms of similarity than that “the victims were young girls in the defendant’s care, the incidents happened in [the defendant’s] home, and [the defendant] told the [victims] not to report his behavior”).

By contrast, in certain circumstances, the requirement of similarity may not apply, such as when the 404(b) evidence establishes

  • identity by connecting the defendant to the weapon used in the current offense, State v. Dean, 196 N.C. App. 180, 191-92 (2009) (in a murder case, evidence of an assault committed by the defendant two days before the murder at issue was admissible to show identity when ballistics evidence established that the same weapon was used in both incidents; the court rejected the defendant’s argument that the incidents were dissimilar);
  • motive, State v. Haskins, 104 N.C. App. 675, 682-83 (1991); and
  • chain of events leading up to the incident in question, State v. Golden, __ N.C. App. __, 735 S.E.2d 425, 429-32 (2012) (in perpetrating a hoax by use of a false bomb case, the trial court did not err by admitting evidence of the defendant’s acts against his estranged wife where those incidents were part of the chain of events leading up to the crime and thus completed the story of the crime for the jury; the court rejected the defendant’s argument that the prior acts were not sufficiently similar to the act charged on grounds that similarity was “not pertinent to the purpose for which the evidence was admitted”).

Finally, “[a]lthough the decision to join offenses for trial often involves considerations similar to those reviewed when determining whether to admit evidence of a prior offense under Rule 404(b), the decision to join or not to join offenses does not determine admissibility of evidence under Rule 404(b).” State v. Locklear, 363 N.C. 438, 446 (2009).

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