The Old Portable Breath Test Ain’t What She Used to Be

September 16th, 2014
By Shea Denning

Portable breath tests don’t go very far anymore in proving whether a suspect is impaired from alcohol.  That’s because the legislature amended G.S. 20-16.3(d) in 2006 to provide that the alcohol concentration results from such a test, termed an alcohol screening test by statute, are not admissible in court— not even for purposes of determining probable cause—and may not be relied upon by a law enforcement officer. An officer may rely upon, and a court may receive evidence of, whether the result from such a test was positive or negative. But since a positive result merely establishes the presence of alcohol, and driving after drinking by a person who is over 21 is not a crime, such evidence doesn’t add much proof of impairment.

The court of appeals applied this rule in two cases decided today:  State v. Overocker and State v. Townsend. In Overocker, the court concluded that evidence that a defendant smelled “faint[ly]” of alcohol, had consumed drinks at a bar, registered a positive result on a portable breath test and backed over a motorcycle in a parking lot that was parked illegally behind his sports utility vehicle were not sufficient to establish probable cause that the defendant was driving while impaired. In Townsend, the court determined that though the trial court erred in admitting the numerical results of the portable breath test at a pre-trial hearing on the defendant’s motion to suppress, other evidence was sufficient to establish probable cause that the defendant was driving while impaired, and the violation did not entitle the defendant to a new trial.

Somewhat oddly, the alcohol concentration results of a portable breath test are admissible for purposes of establishing probable cause in the one context in which evidence of a positive or negative result would be just as probative, namely to prove any of the several zero tolerance offenses under State law.  See G.S. 20-138.2A(b2), 20-138.2B(b2), 20-138.3(b2).  It is unclear why the General Assembly amended G.S. 20-16.3 to preclude reliance upon and admission of alcohol concentration results from portable breath testing instruments at pre-trial hearings for other offenses. The amendments were part of an Act that otherwise facilitated the State’s prosecution of impaired driving offenses and broadened the rules governing the admissibility of evidence by, for example, approving the admission of expert testimony regarding the result of a Horizontal Gaze Nystagmus (HGN) test when the test is administered by a person trained in HGN.  Presumably the reliability of portable breath test results was the General Assembly’s concern.  See, e.g.,  People v. Aliaj, 36 Misc. 3d 682, 693 (N.Y. Sup. Ct. 2012) (noting that “tests given in the field are prone to multiple possibilities for interference which may not exist at police stations” including varying lighting conditions, radio interference, temperature, and the location’s physical layout).

Former G.S. 20-16.3 (2005), like the current statute, required that tests be made on approved devices and in accordance with applicable regulations and permitted the admission of alcohol concentration results only for purposes of determining probable cause.  Other courts have considered those safeguards sufficient. See, e.g., Der v. Connolly, 666 F.3d 1120, 1131 (8th Cir. 2012) (noting that while a portable breath test lacks sufficient reliability to be admitted as substantive evidence, it is admissible to establish probable cause). North Carolina is not, however, alone in further limiting the use of such evidence.  See Greene v. Commonwealth, 244 S.W.3d 128, 134-35 (Ky. Ct. App. 2008) (concluding that though the results of a portable breath test are inadmissible to prove guilt or for sentencing purposes, the pass/fail result of a portable breath test is admissible for the limited purpose of establishing probable cause for an arrest at a hearing on a motion to suppress). Whatever the legislature’s reasoning, the limits exist and they unquestionably diminish the probable value of evidence from portable breath tests.

Overocker highlights the effect of this limitation. Though there was no dispute that the defendant in Overocker had consumed alcohol, he showed no outward signs of impairment and performed satisfactorily on field sobriety tests.  Indeed, he only came into contact with law enforcement officers because of a traffic accident that was not his fault.  Because of the rule in G.S. 20-16.3(d), no evidence appears in the record or was introduced in court of the alcohol concentration result that registered on the portable breath test. One might speculate, based on the officer’s subsequent arrest of the defendant, that the result approached a minimum level of 0.08.  If there was in fact such a result, and it had been admitted, one might have expected a different ruling from the trial court.  Under G.S. 20-16.3(d), however, the precise results were inadmissible, and the positive result revealed nothing that was not already known, i.e. that the defendant had consumed alcohol. Thus, there was no probable cause for the arrest.

Evidence and Arguments about Prison Life in Capital Cases

September 15th, 2014
By Jeff Welty

During the second phase of a capital trial, the jury must decide whether to sentence the defendant to death or to life in prison. The jury’s perception of prison life may influence that decision. If the jury believes that prison life is comfortable, it may be more inclined to impose a death sentence, while if it believes that prison life is difficult, it may be more likely to return a verdict of life in prison. But is the quality of prison life relevant to any aggravating or mitigating circumstance? Should the parties be permitted to introduce evidence about, and to argue about, what prison life is like? This post tackles those questions.

What is prison life evidence? Prison life evidence concerns the quality of life in prison, including the amenities and activities that are available, or are not available, to inmates. Either party may seek to introduce such evidence, and the witnesses through whom it might be introduced include correctional officials, prison consultants, and inmates. As noted at the end of this post, prison life evidence is not the same as evidence about the defendant’s ability to adapt to prison life.

Is it admissible? Courts generally have ruled that prison life evidence is not admissible. At a capital sentencing hearing, the rules of evidence don’t apply, and any evidence that is “probative” may be admitted. G.S. 15A-2000(a)(3). The jury’s task is to identify and weigh aggravating and mitigating circumstances, so “probative” evidence means evidence that is relevant to one or more such circumstances. Prison life evidence doesn’t bear on any of the enumerated aggravating factors in the statute, so I don’t see any basis for the State to introduce such evidence. Nor does such evidence relate to any of the enumerated mitigating circumstances. And although the statute contains a catchall mitigating circumstance, G.S. 15A-2000(f)(9) (“Any other circumstance arising from the evidence which the jury deems to have mitigating value.”), prison life evidence doesn’t seem to fit there, either. The Supreme Court has held that a defendant is entitled to present, as a mitigating circumstance, “any aspect of a defendant’s character or record and any of the circumstances of the offense” that may serve to support a sentence less than death. Lockett v. Ohio, 438 U.S. 586 (1978). But prison life evidence has nothing to do with the defendant’s character or record or the circumstances of the offense, and so appears to fall outside the scope of mitigation.

I am not aware of a North Carolina case on point, but courts in at least three other states have addressed this issue, and all have ruled that evidence about prison life is inadmissible:

  • State v. Kleypas, 40 P.3d 139 (Kan. 2001) (trial court correctly excluded “evidence regarding the conditions and effects of a life sentence in the Kansas correctional system”; such evidence was not mitigating in itself and was “too far removed” from the defendant’s ability to adapt to prison life to be admissible in support of that mitigating circumstance; the court did note that “[s]uch evidence might be admissible in rebuttal to counter . . . evidence produced by the State showing that life in prison is . . . easy”)
  • People v. Ervin, 990 P.2d 506 (Cal. 2000) (citing previous California precedents and ruling that the trial court correctly excluded testimony from a “prison consultant” concerning “the security, classification, and management of inmates sentenced to prison for life without possibility of parole”)
  • Cherrix v. Commonwealth, 513 S.E.2d 642 (Va. 1999) (defendant sought to introduce evidence regarding “the general nature of prison life” through “an expert penologist, several Virginia corrections officials, a criminologist, a sociologist, and an individual serving a life sentence”; the trial court properly excluded this evidence as “not relevant mitigation evidence”)

A few readers may be interested in this motion in limine by the prosecution in a Colorado case, seeking to exclude prison life evidence.

What about arguments related to prison life? There are a number of North Carolina cases about the propriety of closing arguments referring to the quality of prison life. All of the cases I found concern remarks made by the prosecutor, though the courts’ rulings appear to apply equally to remarks by defense counsel. I’ve summarized the cases below, but in general, (1) arguments about prison life that aren’t supported by the evidence are improper, and (2) absent an objection, they aren’t normally so improper as to require the trial judge to intervene or to require reversal on appeal.

My sense is that the more detailed the arguments are, and the more they refer to specific activities and amenities, or to specific privations and hardships, that are not in evidence, the more troubling they are. General remarks that are obviously true are not very concerning. For example, an argument by the State that “in prison, the defendant will enjoy nutritious meals and an opportunity to interact with other inmates” is relatively benign, as is a defense argument that “in prison, the defendant will be behind bars, locked away from the free world with time to think about what he has done.” On the other hand, detailed and possibly erroneous recitations of leisure activities that will be available to the defendant, or of difficulties that the defendant will face, are more likely to be objectionable.

Here are the cases on point, from older to newer. The newer cases seem to reflect a bit more skepticism about arguments about prison life.

  • State v. Reeves, 337 N.C. 700 (1994) (during closing argument, the prosecutor stated that if the defendant were sentenced to life in prison, he would enjoy a “cozy little prison cell” with television, “air conditioning and three meals a day”; the defendant did not object at trial but on appeal argued that there was no evidence in the record to support these claims; the supreme court ruled that “[t]he prosecuting attorney was arguing that the defendant would lead a comfortable life in prison” and that “[i]f he used some hyperbole to describe that life it was not so egregious as to require the court to intervene ex mero motu”)
  • State v. Alston, 341 N.C. 198 (1995) (during closing argument, the prosecutor denigrated life in prison by stating that it is “difficult to be penitent with televisions, and basketball courts, and weight rooms”; this was not improper and simply “emphasized the prosecution’s position that life in prison was not an adequate punishment”)
  • State v. Holden, 346 N.C. 404 (1997) (at a capital resentencing hearing, “a prison guard testified that defendant was permitted to watch television, play cards, lift weights, play basketball, go to the music room, and eat lunch with other inmates”; the admissibility of this evidence was not addressed in the opinion; at closing argument, over a defense objection that the argument was irrelevant and speculative, the prosecutor contended that “if the jury recommended life imprisonment, defendant would be able to watch television, play cards, play basketball, listen to music, and eat lunch with fellow inmates”; the supreme court found the argument permissible under Alston and stated that it was reasonable to infer that the defendant would continue to enjoy the privileges to which the guard testified)
  • State v. Smith, 347 N.C. 453 (1998) (briefly, citing Alston, the supreme court ruled that the trial judge did not err by failing to intervene ex mero motu when the prosecutor argued “that if defendant were sentenced to life in prison, he would spend his time comfortably doing things such as playing basketball, lifting weights, and watching television”)
  • State v. May, 354 N.C. 172 (2001) (citing Smith and Alston, the supreme court ruled that although “the prosecutor improperly argued facts not in the record” by asserting that the defendant would play cards, go the gym, and watch TV while in prison, the impropriety was not so severe as to require the trial judge to intervene without a defense objection)
  • State v. Taylor, 362 N.C. 514 (2008) (although the prosecutor argued facts outside the record by remarking “that defendant would potentially be able to do the following while in prison: visit with his mother and sisters, eat his meals and drink his coffee, watch the sun rise, exercise, watch television, read, draw, receive an education, and enjoy the fresh air,” the comments were not so grossly improper as to require ex mero motu intervention by the trial judge)

Ability to adapt to prison life is a separate question. Evidence of the defendant’s ability to adapt to prison life is admissible generally is admissible in mitigation. Skipper v. South Carolina, 476 U.S. 1 (1986) (explaining that “a defendant’s disposition to make a well-behaved and peaceful adjustment to life in prison is itself an aspect of his character that is by its nature relevant to the sentencing determination”); State v. Green, 336 N.C. 142 (1994) (trial court erred in refusing to submit the nonstatutory mitigating circumstance that the defendant “will continue to adjust well to prison life and be a model prisoner”). Some facts about prison life might be admissible in support of this mitigating circumstance, but this post doesn’t attempt to identify or classify the facts that would be admissible for that purpose.

News Roundup

September 12th, 2014
By Jeff Welty

Ray Rice is, or was, an NFL player. He punched his then-fiancee, now wife, at a New Jersey casino, knocking her unconscious. He was charged with a felony assault but entered a deferred prosecution program, and the NFL suspended him for two games . . . and then the video hit the internet, and a firestorm erupted. Because there are so many important and complex issues around the case, this roundup is all about Ray Rice.

The video. TMZ obtained and published the video. It is here.

The reaction. Rice was cut by his team, the Baltimore Ravens, and suspended indefinitely by the NFL. He’s even being removed from the Madden NFL 15 video game. The NFL is investigating itself, to see where it went wrong in dealing with the matter. Local prosecutors are defending their handling of the case as consistent with how other domestic violence cases are handled, particularly in cases like this one where the victim does not support criminal prosecution. Nonetheless, the media is asking whether Rice can be kicked out of his deferred prosecution agreement and prosecuted. It sounds like he can’t.

The call for zero tolerance. Sixteen female senators, among others, are calling for a “real zero tolerance” policy that would have first-time domestic violence offenders banned from the NFL for life. As a private organization, I assume that the NFL has wide authority to determine who can and can’t play in the league. But the call for zero tolerance raises some questions. Should all employers have zero-tolerance policies? If so, a first-time domestic violence offender would effectively be rendered unemployable. If not all employers should have such policies, which ones should? And should such policies truly involve lifetime bans, even for offenders who have shown remorse, completed treatment, and changed their behavior?

What about other players? Ray Rice isn’t the only NFL player to be accused of domestic violence. The Carolina Panthers’ Greg Hardy, for example, was convicted of assault on a female in district court, though he has appealed for trial de novo in superior court. The victim in that case testified that Hardy “flung her from the bed, threw her into a bathtub, then tossed her on a futon covered with rifles” before “ripp[ing] a necklace he had given her off her neck, thr[owing] it into a toilet and slam[ing] the lid on her arm when she tried to fish it out.” Hardy allegedly followed that up by “dragg[ing] her by the hair room to room . . . putting his hands around her throat,” and threatening to kill her. The Panthers and the league have taken the position that the legal process must play out before they will take action based on the allegations. Is that the right position, particularly given the district court adjudication? The league isn’t required to apply the criminal courts’ standard of innocent until proven guilty beyond a reasonable doubt.

The importance of video. A key distinction between Rice’s case and other cases is that his acts were caught on video while others’ were not. Assuming that Greg Hardy’s accuser is telling the truth, his conduct is far worse than the single punch thrown by Rice, and a video of those events would make the Rice video look tame by comparison. But shouldn’t our outrage be based on the severity of the conduct in question, not on whether it happens to be caught on video?

Beyond football. Domestic violence isn’t the exclusive purview of football players. Consider another high profile abuser: federal judge Mark Fuller was arrested not long ago in Atlanta and charged with beating and kicking his wife in a hotel. He, too, received a deferral. This article argues for zero tolerance of domestic violence in the federal judiciary, and for the impeachment of Judge Fuller.

Conclusion. I am genuinely conflicted about how to think about the Ray Rice matter. His actions were egregious. That’s true of virtually all the violent crimes that come into the criminal justice system. How Rice’s actions fit in the spectrum of violent crimes, and what sort of punishment he deserves from the courts and from his employer, seem to me questions that aren’t easy to answer. As always, I welcome others’ insights.

Death Sentences Increase Slightly in North Carolina

September 11th, 2014
By Jeff Welty

I spent a few minutes this morning looking at death penalty data. As most readers know, North Carolina hasn’t had an execution since 2006, as a result of litigation over lethal injection and the Racial Justice Act. But the death penalty remains on the books, the State may seek it, and juries may impose it. How often do they do so?

In recent years, not very often. In the 1990s, the death penalty was imposed 20 times or more in most years. Since 2000, the norm has been just a handful of death sentences annually. (For more detail, see the graph here, produced by the Death Penalty Information Center.) In fact, in 2012, not a single death sentence was imposed in the state.

Since then, however, there has been a slight uptick. In 2013, one death sentence was imposed, on Mario McNeill  in Cumberland Co., for killing 5-year-old Shaniya Davis. A WRAL story about the case is here.

In 2014, so far, juries have sentenced three defendants to death:

  • Bernard Lamp (Iredell Co., for killing Bonnie Lou Irvine, local story here)
  • Juan Rodriguez (Forsyth Co., for killing his wife, Maria Rodriguez, local story here)
  • Jonathan Richardson (Johnston Co., for killing 4-year-old Teghan Skiba, WRAL story here)

I don’t know whether other capital trials are scheduled this year. If readers are aware of any, please post a comment.

There may be a slight uptick nationally as well. After a steep decline from the 1990s through the 2000s, there were just 77 death sentences imposed nationally in 2012. In 2013, there were 80. I couldn’t find year-to-date data for 2014.

Trends in the death penalty are often scrutinized closely and trumpeted loudly by advocates on both sides, so I’ll close by emphasizing that the uptick is quite small and may be the result of random variation. We’ll see what happens in 2015.

Sentencing the Worst Kind of DWI

September 10th, 2014
By Shea Denning

Most impaired drivers arrive at their destinations without harming themselves or anyone else.  And few such drivers are actually stopped by police.  That may explain why eight percent of people nationwide who were over 16 years old reported riding in a vehicle with a driver they thought may have consumed too much alcohol to drive safely.  Young adult males were even more likely to engage in this behavior, with 24 percent of men aged 21 to 24 reporting having done so in the past year.

Though most impaired drivers don’t crash, newspapers are replete with tales of those who do, often with tragic consequences.  Four hundred and two people died in alcohol-impaired driving fatalities in North Carolina in 2012.  Nationwide that year, more than 10,000 people were killed in crashes involving an impaired driver—31 percent of the total traffic fatalities for the year. Impaired drivers themselves are killed most often in such crashes, comprising 65 percent of the deaths in 2012, with passengers in their vehicles a distant second, making up 16 percent of the deaths.  Occupants of other vehicles accounted for 11 percent of fatalities.

When a person drives while impaired in North Carolina and proximately causes the death of another, the person may be charged with one or more felony offenses, including second-degree murder, aggravated felony death by vehicle, felony death by vehicle, and involuntary manslaughter as well as misdemeanor impaired driving.  In 2013, 23 charges of aggravated felony death by vehicle and 130 charges of felony death by vehicle were filed in North Carolina.

Questions often arise at sentencing regarding whether a person may be separately punished for multiple felony convictions when each is based upon the defendant’s driving while impaired and causing the death of a single other person, as well as the underlying crime of misdemeanor DWI.

Below are the rules governing sentencing for such convictions.

Second degree murder. When a person is convicted of second degree murder based upon driving while impaired, the court must arrest judgment for a conviction of involuntary manslaughter, aggravated felony death by vehicle or felony death by vehicle based on the same incident and the same death. The person may not be sentenced for involuntary manslaughter because the offense is a lesser-included offense of second degree murder, and the legislature has not sanctioned cumulative punishment for such offenses.  The person may not be sentenced for aggravated felony death by vehicle or felony death by vehicle, both Class D felonies, because the governing statute, G.S. 20-141.4(b), authorizes punishment under that statute “unless the conduct is covered under some other provision of law providing greater punishment.” State v. Davis, 364 N.C. 297, 304 (2010). Thus, punishment may be imposed for the greater offense of second-degree murder, a Class B2 felony in this circumstance, but not the lesser offenses of aggravated felony death by vehicle or felony death by vehicle.  In addition to imposing a sentence for second-degree murder in such cases, the court may sentence the defendant for the underlying misdemeanor DWI, which is an offense with elements distinct from those required to support a conviction for second-degree murder.

Felony death by vehicle. If a person is convicted of aggravated felony death by vehicle or felony death by vehicle (both Class D felonies, though the former conviction must be punished in the aggravated range) and involuntary manslaughter based upon a single incident of driving while impaired that results in the death of another, the court must sentence the defendant pursuant to G.S. 20-141.4 and may not impose a sentence for involuntary manslaughter based on the same death.  Instead, the court must arrest judgment for the conviction for involuntary manslaughter, a Class F felony, which merges into the conviction of felony death by vehicle.  State v. Lopez, 363 N.C. 535, 536, 681 S.E.2d 271, 272 (2009).

The court may not impose a sentence for a conviction of misdemeanor impaired driving based on the same incident either, since it is a lesser included offense of both aggravated felony death by vehicle and felony death by vehicle, and is not an offense for which the legislature has not authorized cumulative punishment.

Similar sentencing questions arise in less serious cases when person is convicted of several misdemeanor offenses arising from a single incident of impaired driving, such as impaired driving under G.S. 20-138.1, impaired driving in a commercial motor vehicle under G.S. 20-138.2, or driving after consuming by a person under 21 under G.S. 20-138.3.

Impaired driving in a commercial motor vehicle.  When a person is convicted of misdemeanor impaired driving and impaired driving in a commercial motor vehicle based on a single incident of driving, the person must be sentenced for both offenses but the aggregate punishment imposed by the court may not exceed the maximum punishment applicable to the offense involving impaired driving under G.S 20-138.1.

Driving after consuming. Driving by a person under 21 years old after consuming alcohol in violation of G.S. 20-138.3 is not a lesser included offense of impaired driving under G.S. 20-138.1.  Thus, a person convicted of G.S. 20-138.3 (a Class 2 misdemeanor) and an offense involving impaired driving based on a single incident of driving may be sentenced for both offenses. The aggregate punishment imposed by the court, however, may not exceed the maximum applicable to the offense involving impaired driving.

General Deterrence. Those are the rules for dealing with compounded punishment for a compounded crime.  It is difficult to know their general deterrent effect.  And general—rather than specific—deterrence seems the appropriate focus as most drivers involved in fatal impaired driving crashes do not have a previous DWI conviction—at least not in the recent past as measured by the federal government.  The National Highway Traffic Safety Administration reported in December 2013 that 93 percent of the drivers involved in fatal crashes had no previous DWI convictions, based on Fatality Analysis Reporting System data that reports DWI convictions occurring up to three years before the date of the crash.

Court of Appeals Allows Sweepstakes Preliminary Injunction to Stand

September 9th, 2014
By Jeff Welty

On Friday, a panel of the court of appeals decided an interesting electronic sweepstakes case. The case is Sandhill Amusements, Inc. v. Sheriff of Onslow Co. It generally upheld a preliminary injunction against the Onslow County Sheriff and the District Attorney, barring them from enforcing the electronic sweepstakes statute against certain businesses.

Facts. After officers visited a business that featured several sweepstakes kiosks, the Onlsow County Sheriff and the District Attorney wrote a letter to the president of Sandhill Amusements, informing him of their opinion that the kiosks were unlawful, and stating that they could be seized as evidence and their owners could be charged criminally.

Civil suit. That prompted Sandhills and another company to sue the sheriff and the district attorney, in their official capacities. The plaintiffs sought a declaration that the kiosks were lawful and an injunction against the enforcement of the electronic sweepstakes statute, G.S. 14-306.4, and related laws against owners and operators of the kiosks.

Evidence. A superior court judge held a hearing on the plaintiffs’ request for a preliminary injunction. It appears that the kiosks work as follows: a patron approaches a kiosk and uses the kiosk to purchase gift cards. The cards may be redeemed for merchandise on the Gift Surplus website. As a promotional incentive, the patron receives a certain amount of sweepstakes entries for each dollar spent. A limited number of free entries are also available.

The patron may then use the entries to attempt to win cash prizes in one of five “game themes” that are available on the kiosk. It sounds as though the patron surrenders the sweepstakes entries, selects a game theme, and then learns the maximum potential prize that he or she can win in that game. That amount could be zero, or it could be, for example, $5. The patron is then presented with the appearance of three slot machine reels, two of which match and one of which does not (e.g., cherry-cherry-lemon). In order to win the prize, the patron must use the touchscreen to rotate the non-matching reel to match the others (e.g., cherry-cherry-cherry). If the patron correctly matches the symbols, the patron wins the prize. An expert witness testifying for the plaintiffs concluded that the matching requirement rendered the games ones of skill or dexterity, rather than chance. The plaintiffs argued that this took the kiosks outside the purview of G.S. 14-306.4.

Trial court’s ruling. The trial court ruled that the kiosks did not violate the electronic sweepstakes statute or other gambling laws and entered a preliminary injunction against the enforcement of those statutes against the plaintiffs or business that used their kiosks. The injunction was limited to the parties and to Onslow County businesses that used four or fewer kiosks.

The appeal. The Onslow County Sheriff appealed. Judge Hunter, joined by Judge Elmore, mostly affirmed.

First, they considered the sheriff’s claim that sovereign immunity justified an interlocutory appeal and barred the suit. The majority agreed that the sheriff was entitled to raise the sovereign immunity defense through an interlocutory appeal. However, it concluded that the defense did not bar the suit: although “sovereign immunity acts as a bar to Plaintiffs’ ability to seek redress through monetary damages,” the “declaratory judgment procedure is the only method by which Plaintiffs have recourse to protect their property interests in the kiosks,” so sovereign immunity cannot trump that procedure.

Then the majority considered whether the preliminary injunction was an appropriate subject of an interlocutory appeal. Such appeals are allowed when necessary to protect a party’s substantial right. The majority stated that generally, an injunction against enforcing the law affects a substantial right, and concluded that the trial judge’s ruling was such an injunction to the extent that it declared the kiosks “lawful” and “valid,” findings that could “cast doubt upon every prosecution by the State throughout North Carolina.” However, the majority determined that those findings were not a necessary part of the trial court’s ruling. The standard for a preliminary injunction is simply that the plaintiff demonstrates a likelihood of success on the merits, and the judge’s order found that standard satisfied even without the statements about lawfulness and validity. The court of appeals therefore struck those findings, and ruled that without them, the preliminary injunction does not affect the sheriff’s substantial rights. The court emphasized the limited scope of the injunction: it is limited to Onslow County businesses with four or fewer machines, and doesn’t affect non-parties. Therefore, the court reasoned, “Sheriff Brown was not enjoined from enforcing the criminal laws of North Carolina by the remainder of the trial court’s preliminary injunction; Sheriff Brown was enjoined from enforcing certain criminal laws against parties to the litigation until the resolution of this case.”

The dissent. Judge Ervin dissented. He agreed with the majority’s disposition of the sovereign immunity issue, but would have ruled (1) that the preliminary injunction does affect the sheriff’s substantial rights and so is reviewable in its entirety, and (2) that the plaintiffs failed to demonstrate a likelihood of success on the merits, so the preliminary injunction should be reversed.

As to the first issue, Judge Ervin wrote, “[a]s I read the relevant decisions, this Court has recognized that the entry of a preliminary injunction precluding a state or local agency from enforcing the law affects a substantial right and is immediately appealable.” He found no support in the case law for the majority’s exception for a temporary injunction that is limited in scope.

As to the second issue, Judge Ervin thought that the trial judge erred in agreeing with the plaintiffs’ expert that the kiosks present games of skill and dexterity. He reasoned that even if there is some element of skill in the games, chance predominates: “As was the case with the video poker game at issue in [a previous case], the machines and equipment at issue here only permitted a predetermined number of winners. For that reason, a player who plays after the predetermined number of winners has been reached will be unable to win a prize no matter how much skill or dexterity he or she exhibits. In addition, use of the equipment at issue here will result in the playing of certain games in which the player will be unable to win anything of value regardless of the skill or dexterity that he or she displays.”

Where does this leave us? For now, in Onslow County, the injunction is still in place, and is limited in scope as noted by the majority opinion. Outside Onslow County, the injunction appears to have no effect: the court of appeals emphasized its lack of applicability outside the county.

Going forward, the Sheriff could appeal further based on the dissent, or could simply let the litigation play out in superior court and appeal any permanent injunction that is entered. As to the prospects of any such future appeal, it may be worth noting that the only judge on the court of appeals who reached the merits was Judge Ervin – and he concluded that the plaintiffs were not likely to prevail on the merits, i.e., that the kiosks likely violate the electronic sweepstakes statute. As always, stay tuned.

Sentencing Legislation Review Part I: New Credit Rules for CRV

September 8th, 2014
By Jamie Markham

My next few posts will discuss this session’s legislative changes related to sentencing and corrections. Today’s post covers some pending changes related to confinement in response to violation (CRV, sometimes referred to as a “dunk”).

CRV is incarceration ordered in response to a technical violation of probation—meaning a violation other than a new crime or absconding. The CRV concept was created in 2011 as a centerpiece of the Justice Reinvestment Act. Drafters of that legislation noted that revoked probationers made up a big portion—over half—of North Carolina’s prison population. How to reduce that population? Change the law so that technical violators can be locked up for no more than 90 days. G.S. 15A-1344(d2).

There are many technical details associated with CRV—where it is served, how it works when a person is on probation for multiple convictions, and how jail credit gets applied to it, among others. I tried to address some of those issues in the FAQ post here. The CRV law has been amended multiple times since 2011 to clarify various things about it. In 2012: to remove the apparent requirement of a “terminal dunk” in short misdemeanor cases. In 2013: to make clear that CRV confinement must be served in one big chunk, not on weekends or other noncontinuous intervals.

That brings us to the changes for 2014, which relate to the rules for applying jail credit to a CRV. Under existing G.S. 15A-1344(d2), the rule for felonies and misdemeanors alike is that credit for any time spent awaiting a violation hearing at which a CRV is ordered must first be applied to the CRV. For example, if a person was held in jail for 20 days in advance of a violation hearing at which a 90-day felony CRV is ordered, the judge is required under existing law to credit the 20 days to the CRV, and the person will serve only 70 additional days. That prehearing credit cannot be “banked” to be applied only in the event of a later revocation. The law never said anything about whether other jail credit, such as pretrial confinement or time spent at DART-Cherry, could be applied to a later-imposed term of CRV, but that frequently happens in practice.

That crediting of time—especially the gathering up of credits beyond the mandatorily-credited prehearing confinement—was frustrating the Division of Adult Correction’s plan for CRV periods by making them too short. With credits applied, the average length of a felony CRV is around 75 days. And that is apparently not enough time for CRV to be the program-based behavior modification that DAC envisioned. They were hoping for a full three months to allow the offender to complete a tailored curriculum involving cognitive behavioral intervention, substance abuse treatment, and other programming as appropriate.

And so DAC sought and obtained a change to the law. A provision in the budget bill (section 16C.8.(a) of S.L. 2014-100) amends G.S. 15A-1344(d2) to provide that the 90-day period of CRV ordered for a felony “shall not be reduced by credit for time already served in the case.” Instead, “[a]ny such credit shall . . . be applied to the suspended sentence”—which means it will only be applied if the offender ever gets revoked. There’s nothing inherently wrong with that; it happens to every probationer with pretrial jail credit who completes probation without getting revoked. But it is a 180-degree turn from the original CRV rule, which was designed to cap the total incarceration (pre- and post-hearing) for a technical violation at 90 days.

For misdemeanors, the revised rule is different. In fact, the revised rule for misdemeanor CRV is that there is no rule. Amended G.S. 15A-1344(d2) neither requires nor forbids the crediting of any sort of confinement (pretrial or prehearing), giving the judge apparent flexibility to do what he or she would like. The change was made in recognition of the fact that for most misdemeanor probationers, the first CRV usually winds up being a “terminal” one, either because it uses up the entire suspended sentence or because the judge orders probation terminated upon its completion.

This change to G.S. 15A-1344(d2) is effective October 1, 2014, and applicable to probation violations occurring on or after that date. I read that applicability clause to refer to the date of the defendant’s offending behavior, not to the date of the violation hearing. If an offender is before the court for a string of technical violations that cross that effective-date threshold, the court should take care to note the particular violation(s) to which it is responding, and apply the appropriate credit rule accordingly.

To the extent that the change disadvantages a probationer by limiting the judge’s authority to apply credit, there may be some argument that it violates the Ex Post Facto Clause. On the other hand, if one views the suspended sentence as setting the total punishment in a given case, a change to the manner in which the time is served may not register as an increase in the defendant’s exposure. After all, regardless of the technicalities of the credit rules, the judge must always see to it that the defendant’s total time behind bars does not exceed his or her suspended sentence.

Finally, these changes to the credit rules should be viewed in the context of DAC’s broader plan with respect to CRV. For example, the Division has legislative approval to create two prison facilities devoted exclusively to CRV inmates—the “treatment and behavior modification facilities” mentioned in section 16C.10 of the budget. For men, a western facility in Burke County is on track to open in November, while an eastern facility in Robeson County should come online early next year. The plan for women is still under development. These facilities will apparently have a unique approach to staffing and security designed to facilitate the programmatic interventions described above—which CRV offenders will, after October 1, have a full 90 days to complete.

News Roundup

September 5th, 2014
By Jeff Welty

In North Carolina, the top story is the exoneration of Henry McCollum and Leon Brown, who were incarcerated for over 30 years in connection with the rape and murder of 11-year-old Sabrina Buie. DNA evidence links another man to the crime, and the prosecutor is reportedly considering bringing charges against him. McCollum was on death row. WRAL has the story here. One interesting sidebar is that in Callins v. Collins, 510 U.S. 1141 (1994), Justice Scalia referenced the case as an example of a particularly appropriate one for the death penalty.

In other news:

Ferguson police adopt body cameras. Tensions seem to have calmed a bit in Ferguson, Missouri. One concrete reform that has already resulted from the situation is the adoption of body cameras by the police. As this local story observes, companies have donated 50 body cameras to the department, and they are already in use, apparently to the satisfaction of all concerned.

Blame and celebrity nude photo hacking. It was revealed this week that hackers obtained nude photos of several celebrities, including Jennifer Lawrence, apparently by hacking into their cloud storage. That’s a crime, of course. Some have also suggested that it was foolish for the celebrities involved to take such photos, or to store them without greater safety precautions. Eugene Volokh recently posted this thoughtful piece about when using such an incident as a teachable moment about digital security bleeds into blaming the victim.

The zombie defense. Park Dietz & Associates, a forensic psychiatry outfit, has this interesting post about the Ambien defense, which the post somewhat provocatively characterizes as “the zombie defense.” I’ve previously posted about the related issue of automatism under North Carolina law.

There was hardly any left over! Finally, a woman in Arkansas was charged with stealing $144 worth of eye shadow. You can see her mug shot in this local story. I’m not saying it is conclusive evidence of guilt, but it is certainly going to be difficult for the defense to explain.

State v. Borders: Clever Police Work or Disturbing Trickery?

September 4th, 2014
By Shea Denning

Detectives investigating the rape and murder of an elderly woman in Shelby didn’t give up when suspect Donald Borders first refused to provide a sample of his DNA.  They asked again.  And again.  And again.  When Borders refused to relent after four visits to his home, investigators tried a different tack. They searched the county’s warrant repository and located a warrant for the defendant’s arrest on the misdemeanor charge of assault on a female that had been outstanding for two years. They asked another officer to serve the warrant, and, more importantly, to collect a sample of Border’s DNA in the process.  The arresting officer arrived at Borders’ home at 2 a.m., arrested Borders, and then offered him a cigarette.  After Borders took a few puffs while standing in his carport, the officer asked Borders if he wanted him to “take that and throw it away.”  Borders assented.  The officer took the cigarette from Borders’ mouth, extinguished it, and placed it in an evidence bag.  The ruse worked:  DNA collected from the cigarette butt matched the DNA profile derived from a swab in the victim’s sexual assault kit.  Borders was charged with and convicted of the rape and murder.

State v. Borders. Borders argued at trial and on appeal that the evidence of his DNA profile should be suppressed as he (1) did not willfully relinquish control of the cigarette butt to the officer; (2) had a reasonable expectation of privacy in the cigarette butt and the DNA since he gave it to the officer within the curtilage of his home; and (3) the ruse to obtain his DNA violated the Fourth Amendment. The court of appeals decided earlier this week that the trial court properly denied Borders’ motion.

Voluntarily Turned Over. First, the appellate court determined that the evidence supported the conclusion that Borders voluntarily accepted the officer’s offer to throw the cigarette away.  Even if being handcuffed prevented Borders from moving his hands, he could have “spit the cigarette from his mouth into the curtilage,” and have thereby refused the officer’s offer and prevented the officer from collecting it as evidence. See State v. Reed, 182 N.C. App. 109, 110-14 (2007) (holding that trial court erred in admitting DNA evidence obtained from cigarette butt that defendant flicked onto his patio as defendant had a reasonable expectation of privacy on his patio); State v. Rhodes, 151 N.C. App. 208, 215 (2002) (holding that defendant maintained an objectively reasonable expectation of privacy in the contents of his trash can that was within the curtilage of his home and was not placed there for collection in the usual and routine manner).

Next, the court determined that once Borders voluntarily turned over the cigarette butt to the officer, he no longer had a reasonable expectation of privacy as to that item, despite the fact that the two were standing in the carport.  Had Borders spit the butt onto the ground, put it in a trash can that was not out for collection, or left it somewhere else in the curtilage of his home, the officer could not have lawfully seized it.  However, once Borders, who was handcuffed and in the officer’s custody, permitted the butt to be placed in the officer’s hand, he no longer had a reasonable expectation of privacy in the item.

Trickery. Finally, the court of appeals considered whether the officers’ ruse ran afoul of the Fourth Amendment. Though the court said it was “troubled by the actions of [the investigating officers] in serving the earlier warrant,” it found no basis for suppression of the evidence gathered since the police carried out a valid arrest warrant and their subjective motives for arresting the defendant were not relevant. The court reasoned that Borders voluntarily abandoned the cigarette butt in the course of a lawful arrest; thus, it was properly seized by the officer. Furthermore, the court stated that “deception does not render a defendant’s confession or relinquishment of evidence inadmissible.”

The court intimated that Borders might have argued that the police impermissibly used the outstanding arrest warrant as a general warrant in violation of the prohibition against general warrants in the North Carolina Constitution.  See N.C. Const. art. I, § 20.  The court said, however, that it was unwilling to evaluate the merits of such a claim since the defendant had not raised the issue. The court further characterized the officers’ actions as “very nearly run[ning] afoul of the general prohibition that the State may not take actions having the effect of violating an individual’s constitutional rights indirectly if they could not take that same action directly.”

Though I enjoy a healthy skepticism about the propriety of police deception, I’m not particularly bothered by the law enforcement tactics in Borders.  Arresting a defendant pursuant to a valid warrant strikes me as less arbitrary than, say, stopping a person suspected of more serious crimes for a traffic violation that the police otherwise would ignore.  If subjective motives aren’t relevant in the latter context, it is hard for me to understand why they might matter in the former. In hindsight, the arresting officer’s tactics strike me as quite brilliant, particularly given that he had no firm plan in place when he arrived at the residence. He handcuffed the defendant, asked him if he’d like to smoke, provided him with an opportunity to voluntarily hand the cigarette over, and, when the defendant availed himself of that opportunity, was prepared to preserve the evidence.

Vaping Behind Bars

September 3rd, 2014
By Jamie Markham

North Carolina inmates are not allowed to have tobacco products, and other people are not allowed to give tobacco products to them. This session, the legislature changed the law—twice—to address the use of vapor products (like e-cigarettes) in our prisons and jails. Today’s post discusses those changes, beginning with some background on existing law. My colleague Jill Moore, expert in public health law, previously wrote more broadly about e-cigarettes here and here, and I credit her with flagging some of the issues discussed below.

Let’s start with existing law. For the state prisons, G.S. 148-23.1 prohibits any person from using or possessing tobacco products on the premises of a State correctional facility, except for authorized religious purposes. The restriction extends to inmates, employees, and visitors, although employees and visitors may keep (but not use) tobacco products in a locked motor vehicle in the parking area. G.S. 148-23.1(b1). Inmates and employees who violate the prohibition are subject to administrative sanctions, while visitors who violate may lose visitation privileges. There is no criminal penalty for a violation. By contrast, under G.S. 14-258.1, any person who gives or sells tobacco products to a prison inmate, or to a non-inmate for delivery to an inmate, is guilty of a Class 1 misdemeanor. G.S. 14-258.1 defines “tobacco product” by reference to G.S. 148-23.1, which previously covered cigars, cigarettes, snuff, loose tobacco, and similar goods used for smoking, chewing, or dipping.

The rules for jails are similar, but not identical. The prohibition on giving or selling tobacco products under G.S. 14-258.1 applies to jails just as it does to prisons. As for possession, G.S. 14-258.1(e) makes it a Class 1 misdemeanor for any jail inmate to possess tobacco products—again defined by reference to the definition in G.S. 148-23.1—other than for authorized religious purposes. The jail prohibition on tobacco possession is different from its prison analogue in three ways: (1) it is a crime; (2) it outlaws only possession, not use; and (3) it does not apply to jail employees and visitors.

That covers the existing law. Let’s review the changes. First, in S.L. 2014-3, a tax bill, the General Assembly expanded the definition of prohibited “tobacco products” in G.S. 148-23.1 to cover “vapor products.” The bill defined vapor products to include nonlighted products that heat liquid nicotine solutions in a vapor cartridge, such as electronic cigarettes, cigars, and pipes. G.S. 148-23.1(d)(3). That revised definition, effective July 1, 2014, applies across the board to the use/possession prohibition for prisons in G.S. 148-23.1(b) and (b1); the possession prohibition for jails in G.S. 14-258.1(e); and the giving/selling prohibition for jails and prisons in G.S. 14-258.1(c). Even though the revised definition itself now covers vapor products, the bill also added clauses to the prohibitions set out in G.S. 14-258.1 to make absolutely clear that they cover all tobacco products, “including vapor products.” The old belt and suspenders approach.

After the bill was signed into law, some sheriffs and e-cigarette vendors expressed concern that the change would prohibit them from providing or selling vapor products to inmates—something that has become a nationwide trend. So they pursued another change to the law. S.L. 2014-115 amended G.S. 14-258.1 again to add a new subsection setting out an exception to the prohibition on giving or selling tobacco products to jail inmates. By virtue of the exception, jails may “give or sell vapor products or FDA-approved tobacco cessation products . . . to inmates while in the custody of the [jail.]” Earlier versions of the bill would have allowed vapor products to be given or sold to inmates only as part of an authorized smoking cessation program (see, for example, Section 23.(a) of the fourth edition of the bill). But given health professionals’ doubts as to whether vapor products should ever be a part of a cessation program, the final version of the law simply allowed jails to give or sell vapor products or cessation products.

The bill also removed the “including vapor products” clause that had been added to “tobacco products” in the possession prohibition for jails in G.S. 14-258.1(e), probably intending to pave the way for jail inmates to possess the vapor products given or sold to them by jail personnel. But recall that those “including vapor products” clauses were merely the suspenders of the aforementioned belt and suspenders approach; the belt was the revised definition of “tobacco products” in G.S. 148-23.1(d)(2), which was amended by the first session law to include vapor products. That amendment was unchanged by the second session law, and so continues to apply—arguably preventing inmates from possessing even properly obtained vapor products. At a minimum, I suspect the legislature intends for it to be a crime for a jail inmate to possess contraband vapor products (those obtained through sources other than the jail itself). Perhaps the scope of any exception to the possession prohibition could be clarified in the future. In the meantime, I doubt as a practical matter that a jail would charge (criminally, I mean) an inmate for possessing the e-cig it sold to him. And if it did, the inmate might have some sort of entrapment by estoppel defense.

So where does that leave us? Let me try to summarize:

  • As of July 1, 2014, prison inmates, employees and visitors may not use or possess vapor products on the premises of a state prison facility, except for authorized religious purposes. Those who do are subject to administrative sanctions.
  • As of December 1, 2014, it is a Class 1 misdemeanor for any person to give or sell a vapor product to a jail or prison inmate, or to a non-inmate for delivery to an inmate, except that the jail may give or sell vapor products to jails inmates. There is no similar exception for state prison inmates.
  • As of December 1, 2014, it appears to be a Class 1 misdemeanor for a jail inmate to possess a vapor product, other than for authorized religious purposes, although that prohibition might not apply to vapor products provided by the jail itself.

Whew. That’s complicated. I don’t smoke or use vapor products, but if I did, I think I might go have one now.