New Look and Feel for the Blog

This blog is more than five years old, has had over 3 million visitors, and is still growing. Until today, it has never had a redesign.

Starting now, you’ll notice a new look and feel. It’s not a radical departure from the past, but it is a cleaner design, and it is optimized for mobile use. Perhaps the biggest change is one that won’t show up until tomorrow. As we add new posts going forward, the front page of the blog will display just one paragraph of each post, so that occasional visitors don’t have to scroll down to see whether any recent posts are of interest. The web design folks here tell me that’s the “best practice” for blogs these days, and I can see the advantages.

As always, we welcome your comments. Let us know how you like the new look. As the new structure rolls out, let us know how that works for you. The point of this blog is to serve the criminal justice community in North Carolina, so we are keenly interested in your feedback and your perspective. Here’s looking forward to the next five years!

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News Roundup

Nationally, the news of the moment is that Attorney General Eric Holder will resign as soon as a successor is confirmed. California Attorney General Kamala Harris and Manhattan United States Attorney Preet Bharara are among those reputed to be candidates for the position. Holder is keeping busy even as he plans his departure. His resignation comes the same week that he delivered a speech advocating criminal law reform and stating that “the United States will never be able to prosecute or incarcerate its way to becoming a safer nation.”

In other news:

Former state judge nominated to the federal bench. President Obama nominated Loretta Biggs to be a United States District Judge for the Middle District of North Carolina. Ms. Biggs is in private practice in Winston-Salem. She previously served as a state district court judge, and briefly on the court of appeals. If confirmed, I believe that she would be the first black woman to serve on the Middle District bench. The Winston-Salem Journal has the story here.

Federal court records to be restored. Speaking of the federal courts, Ars Technica reports here that the Administrative Office of the United States Courts has reversed course. It previously planned to delete 10 years’ worth of electronic filings from several circuit courts as part of an upgrade and unification of the PACER system. After public outcry and political pressure, the filings will instead be incorporated into the new system.

FBI study on active shooter incidents. The McClatchy Washington Bureau reports here on a just-released FBI study of “[a]ctive shooter incidents, in which gunmen try to kill people in a populated area.” The takeaway is that such incidents are becoming more common – up from about 6 per year in the early 2000s to over 16 per year since. In part, the FBI blames the copycat phenomenon for the increase.

Cary teen charged with misdemeanor death by vehicle. Shea wrote this week about the death of 15-year-old Laura Yost. She was a passenger in her friend Spencer Saunders’s car when he apparently turned left in front of a truck, resulting in a fatal accident. Shea pondered the possibility of criminal charges, and WRAL reports here that Saunders has indeed been charged. WRAL also has an article here about how the greatest risk factor for teen drivers is not texting while driving, but teen passengers.

DOC rolling out new uniforms . . . The Charlotte Observer reports here on the new uniforms soon to be worn by corrections officers in North Carolina’s prison system. They look sharp! Clip-on ties up the sartorial ante without compromising officer safety, and the fabrics used will apparently perform better than those in the current getups.

. . . and mountains of veggies. Inmates at the Caledonia Prison Farm in Halifax County grew a bumper crop of squash this year. According to this report, they have donated 4,500 cases of canned squash to the Food Bank of Central and Eastern North Carolina. Guessing that each case contains 12 cans, that’s 54,000 cans of squash, or enough to feed a family a can of squash per day for 148 years!

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90-96 for Everything

G.S. 90-96 sets out a conditional discharge option for certain drug offenses. A conditional discharge is different from a deferred prosecution. In a conditional discharge program, the defendant is convicted (either after a trial or by pleading guilty), but then placed on probation without the court actually entering judgment in the case. If the defendant succeeds on probation, the court completes a “discharge and dismissal” and the defendant is left without a conviction. If the defendant fails on probation, the court enters judgment and sentences the defendant—often to probation again, but this time regular, post-conviction probation.

I’ve said it before and I’ll say it again: G.S. 90-96 is complicated. I get as many questions about it as any other law. Justice Reinvestment made G.S. 90-96 mandatory for consenting defendants in 2011, but that requirement turned out to be troublesome enough in practice that the law was made discretionary again in 2013 (as described here).

Despite the waxing and waning of G.S. 90-96, similar conditional discharge options have recently popped up elsewhere in the law. In 2013, a 90-96–style conditional discharge was made mandatory for defendants convicted of prostitution for the first time. G.S. 14-204(b). A bill signed into law week, S.L. 2014-119 (H 369), took things even further, authorizing conditional discharge for any misdemeanor or Class H or I felony that would be eligible for a deferred prosecution. This broad conditional discharge authorization is set out in new G.S. 15A-1341(a4). As under the existing statutory deferred prosecution law, a defendant is eligible for a conditional discharge only when the court finds that (1) all victims have been notified, (2) the defendant has not been convicted of any felony or any misdemeanor involving moral turpitude, (3) the defendant has not previously been placed on probation, and (4) the defendant is unlikely to commit another offense other than a Class 3 misdemeanor. New G.S. 15A-1341(a5) grants similar authorization for defendants eligible for drug treatment court. The new law is effective December 1, 2014, and apparently may be applied to any conviction before the court on or after that date, regardless of the date of offense.

The new law includes some additional technical and conforming changes related to conditional discharges. Under amended G.S. 15A-1342, the probation that accompanies the conditional discharge may not exceed two years. Interestingly, that language is written into a statute that applies to all conditional discharges, not just those authorized by the new law (except those for prostitution under G.S. 14-204, which are subject to a one year maximum term). That means the probation period in G.S. 90-96 cases is now capped at two years. Previously I would have said it could be as long as five years, so the two-year limitation is a big change in theory. It may not make much difference in practice, though; my sense is that 12 months is the typical term of probation in a 90-96 case (please correct me if I’m wrong about that).

A change to G.S. 15A-1342(a1) makes clear that supervised probation is authorized for a conditional discharge imposed under new G.S. 15A-1341(a4) (conditional discharge for any misdemeanor or Class H or I felony), (a3) (conditional discharge for prostitution), and (a5) (conditional discharge for drug treatment court). The law makes no mention of G.S. 90-96, perhaps giving rise to an argument that supervised probation is no longer authorized in those cases. I have always assumed that supervised probation is authorized in G.S. 90-96 cases under the general theory that, unless otherwise provided by law, G.S. 90-96 probation is just like any regular probation case. State v. Burns, 171 N.C. App. 759 (2005) (“In the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.”). But now that the law makes specific provision for supervised probation for other enumerated types of conditional discharges, G.S. 90-96 becomes conspicuous in its absence. I doubt the legislature intended to de-authorize supervised probation for G.S. 90-96 defendants, however.

Speaking of legislative intent, what was the motivation behind this expansion of the conditional discharge law? I don’t know for sure. An earlier version of the bill styled the change as “conditional discharge in lieu of deferred prosecution,” substituting the former for the latter in G.S. 15A-1341(a1). A benefit of the conditional discharge approach from the State’s point of view—flagged by a legislator in a media report—is that there is a guilty plea in advance “in case they don’t meet the conditions set by prosecutors to have the charge dropped.” In a traditional deferral there is no guilty plea in advance, State v. Ross, 173 N.C. App. 569 (2005)—which sometimes leads to frustration when a defendant who does not satisfy the terms of the agreement ultimately declines to plead guilty. Nevertheless, the final version of the law added the conditional discharge option but left the deferred prosecution option in place, giving prosecutors apparent flexibility to choose between the two options.

I am interested to hear your thoughts on how this broad authorization for conditional discharges might change things in practice. It strikes me as potentially helpful statutory authority to do some of the things people have tried to do with PJCs over the years—sometimes with results that left everyone unhappy. On the other hand, all the sticky questions about revocations and appeals and collateral consequences that arise in the context of G.S. 90-96 will now be expanded to a broader set of cases.

When Tragic Accidents Also Are Crimes

The fields of the Capital Area Soccer League were a sea of blue again last night.  Players of all ages shelved their regulation orange jerseys and wore blue—Laura Yost’s favorite color—instead. They wore blue last week too.  Last week’s blue was to support fellow soccer player Laura, who was hospitalized after she was critically injured in a car accident on her way to school.  Sadly, last night’s blue was to honor her memory.  Fifteen-year-old Laura died early Tuesday morning.

Laura, a sophomore at Panther Creek High School in Cary, rode in the back seat of her friend Spencer Saunders’ car last Tuesday.  Her older brother Ryan rode in the front passenger seat.  Spencer was turning left off of Highway 55 onto McCrimmon Parkway in Cary when a dump truck traveling in the other direction crashed into the passenger side of his vehicle.  Reports indicate that the accident was Spencer’s fault as he failed to yield to the oncoming dump truck when turning left as required by G.S. 20-155(b). No charges have yet been filed in the case, but police reportedly have talked to the district attorney about charging Spencer.

Failing to yield when turning left is an infraction, not a crime.  The maximum penalty is $100.  A person cited for this offense may pay a $35 fine and court costs and resolve the charge without having to appear in court.  But now that Laura has died, Spencer might be charged with a more serious offense—misdemeanor death by vehicle—a Class A1 misdemeanor, for which a first-time offender could receive up to 60 days imprisonment.  Because Spencer is 16, he may be charged with this crime and tried as an adult.

Anecdotally, I’ve heard district court judges say that misdemeanor death by vehicle is among the most difficult misdemeanor crimes to sentence. By its very definition, the crime involves a violation of any State traffic law or local traffic ordinance, other than impaired driving, that causes the death of another.  On one side of the scale, there often rests a defendant with no criminal intent. On the other, there is a lost life.  Sometimes the victim’s family views a harsh sentence as necessary to justice.  Sometimes the victim’s family sees the ends of justice differently.  I’ve never been a prosecutor, so I don’t know how much the initial charging decision is based on the wishes of family members.  In my time as an assistant federal public defender, I learned that there were rules of thumb about certain degrees of loss.  If a client was alleged to have fraudulently obtained money that exceeded a certain amount, pleas for reduced charges or deferred prosecution were rebuffed, regardless of the client’s youth, lack of criminal history, or other mitigating circumstances.  It may be the same for district attorneys when a life is lost as a result of traffic violations that otherwise would not even cross the threshold of criminal culpability.  But perhaps the lines are not so clearly drawn.

One might expect that regardless of what charges may come, Spencer Saunders already is suffering mightily. He has expressed profound remorse in posts to his Twitter account that have been reprinted in the news. Spencer is 16. He is an inexperienced driver. He made a mistake that turned out to be fatal for his friend. Should criminal charges follow?

The prospect of criminal charges against Spencer would be no different under the raise the age bill that passed the NC House last session.  While House Bill 725, if enacted, would have expanded juvenile jurisdiction to 17 year olds in its first year and 18 year olds in its second, it would have done so only for misdemeanors and infractions other than violations of the state’s motor vehicle laws.

Cary Police Lieutenant Steve Wilkins said that they were going to allow the “dust [to] settle” with the families before proceeding with any charges.  So we don’t yet know the State’s view of what justice requires in this tragic case.

Proving That Larceny of a Motor Vehicle Is a Felony

In some states, theft of an automobile is a felony regardless of the value of the vehicle. See, e.g., Fla. Stat. § 812.014. Not so in North Carolina. Motor vehicles don’t have any special status under our larceny statute, G.S. 14-72. Therefore, theft of an automobile is a misdemeanor unless the vehicle is worth more than $1,000, or the theft falls under one of the other felony provisions of G.S. 14-72(b).

In this post, I’ll summarize the appellate cases that consider whether there was sufficient evidence that a vehicle was worth more than $1,000.

No presumption that motor vehicles are worth more than $1,000. If the State presents no evidence of a vehicle’s value, that is insufficient to sustain a felony conviction. In other words, there’s no presumption that a motor vehicle is worth more than $1,000. State v. McRae, __ N.C. App. __, 752 S.E.2d 731 (2014) (reversing a conviction based on felony larceny of a vehicle because the State introduced no evidence of the vehicle’s value; the vehicle belonged to a high school student and the indictment alleged that it was worth $2500). Cf. In re Mecklenburg County, 191 N.C. App. 246 (2008) (vacating a juvenile adjudication based on an admission to felony larceny; while the juvenile acknowledged stealing a truck, the “prosecutor’s statement of facts does not contain any statement or evidence that the pickup truck was worth more than $1,000,” so there was no factual basis for the felony admission).

Evidence that an older vehicle is well-kept is not sufficient. In State v. Holland, 318 N.C. 602 (1986), the state supreme court found insufficient evidence of value where “the State offered no direct evidence of the [stolen] Cordoba’s value,” even though there was “evidence tending to show that the victim owned two automobiles and that the 1975 Chrysler Cordoba was his favorite one of which he took especially good care, always keeping it parked under a shed,” and “a picture of this automobile was exhibited to the jury for the purpose of establishing the location of the automobile when discovered after its theft.” Interesting aside: I checked Hemmings Motor News and a couple of other websites, and a 1975 Cordoba in good condition could be worth $10,000 today.

Evidence that a vehicle is shiny and new is sufficient. By contrast, in State v. Dobie, 2014 WL 3824257 (N.C. Ct. App. Aug. 5, 2014) (unpublished), the court of appeals ruled that there was sufficient evidence of felony larceny where photographs of the vehicle in question showed that it was a “late model BMW sedan that ha[d] no exterior defects.” The holding makes sense on the facts presented, but I wonder how far it extends. I have a previous-generation Toyota Camry that looks pretty good except for some scuffing on the trunk lid. Does that count? How about my wife’s minivan, which runs well but has several dents and is missing a hubcap?

The owner’s testimony regarding the vehicle’s value may be sufficient. The owner may testify to the value of a vehicle under State v. Huggins, 338 N.C. 494 (1994). But note State v. Haney, 28 N.C. App. 222 (1975), where the court made clear that value means fair market value, not the price at which the owner would be willing to sell the vehicle. The court suggested that testimony that owner would not sell a vehicle for less than $2000 was “[i]ncompetent,” though sufficient given that defendant did not object to it.

Evidence of the price the owner paid for the vehicle may be sufficient. Evidence of a recent sale above the threshold amount may be adequate. State v. Rascoe, 170 N.C. App. 198 (2005) (evidence of purchase price months or years before the theft may be sufficient evidence of value where there is no reason to believe that “extraordinarily rapid depreciation” had greatly reduced the vehicle’s value).

Blue book value may be sufficient. Finally, under State v. Dallas, 205 N.C. App. 216 (2010), the NADA Guide and similar references are admissible evidence on the value of a vehicle. I glanced at cases from other jurisdictions and it appears that other states generally agree. See, e.g., Walker v. Com., 704 S.E.2d 124 (Va. 2011) (rejecting Confrontation Clause argument because such guides are not testimonial); State v. Erickstad, 620 N.W.2d 136 (S.D. 2000) (collecting cases and ruling that such guides fall within the hearsay exception for market reports and commercial publications). This seems like a sure and simple course for the State in most cases.

On another topic, regular readers may have noticed that there was no post yesterday. I’m sorry. I was caught up in other matters and just didn’t get to it. We should be back on track now.

News Roundup

Lots of interesting news this week, so let’s get right to it:

 

Constitution Day. It was Constitution Day this week, the 227th anniversary of the constitutional convention’s proposal of what became our Constitution. Why not have Constitution Day on the anniversary of ratification? Because, as Kent Scheiddeger notes in this interesting post at Crime and Consequences, the latter date is “hard to pin down.”

 

Criminal law and policy geniuses. The MacArthur Foundation announced the recipients of its genius grants this week. There are 21 new geniuses, including a Stanford psychologist who studies the connection between perceived race and perceived criminality, and a law professor who works to combat domestic violence and sexual abuse against Native American women. The New York Times has the story here.

 

Another bad week for the NFL. Minnesota Vikings running back Adrian Peterson was charged with beating his four-year-old son with a switch so badly that wounds were still visible all over his legs days later, while Arizona Cardinals running back Jonathan Dwyer was charged with breaking his wife’s nose after she refused his sexual advances. The league’s defenders say that the NFL is “just a microcosm of society,” with no more bad apples and no fewer, but I am beginning to wonder. In related news, Alabama federal judge Mark Fuller is facing calls for his resignation after his domestic violence conviction, as discussed in this local article. Perhaps the federal judiciary is also a “microcosm of society”?

Moral Monday cases to be dismissed? Wake County Senior Resident Superior Court Judge Don Stephens recently ruled that the arrest of a Moral Monday protestor violated his free speech rights. A number of Moral Monday prosecutions have also been dismissed in district court recently, apparently causing acting DA Ned Mangum to think seriously about dismissing most of the remaining cases. MSNBC has the story here.

Police testing facial recognition technology. The News and Observer has a story up this morning about how the Raleigh police will start using facial-recognition software to match crime scene surveillance photographs to “mug shots of people who have been booked into the Wake County jail.” The use of such software seems inevitable and I doubt that it will long be limited to a database of those who have been booked into the local jail. The ACLU and others are calling for a discussion of limits and safeguards.

Judge says he would let an innocent person be executed. Federal Judge Richard Kopf writes about the death penalty and innocence here. The whole post is fascinating but the line that’s garnered the most attention is this: “Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that there was precedent that compelled such a result.”

Voluntary death penalty in Belgium? Belgium has abolished the death penalty, but it has just approved euthanasia at the request of a serial murderer and rapist facing life in prison for his crimes. The offender asserts that he is “suffering unbearably,” and the state has agreed to let him end his suffering. Belgium allowed physician-assisted euthanasia in over 1800 instances last year, but this is the first request from an inmate that has been granted. A number of similar requests apparently are now in the pipeline. The fascinating story is here at Sentencing Law & Policy.

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You Get What You Get and You Don’t Throw a Fit

My daughter is awfully fond of this expression (when applied to one of her brothers, of course). Turns out it also is apropos for this week’s court of appeals decision in State v. Shaw.

Facts. The defendant in Shaw pled guilty to misdemeanor DWI in superior court. The trial court found one grossly aggravating factor, a prior conviction within seven years before the current offense, and imposed a Level Two punishment. Shaw was unhappy with this finding as the State had never provided her with notice of its intent to prove an aggravating factor as required by G.S. 20-179(a1). Thus, Shaw appealed her conviction to the court of appeals.

Holding. The court of appeals dismissed Shaw’s appeal on the basis that she had no statutory right to appeal. G.S. 15A-1444, which affords a defendant convicted of a crime in superior court the right to appeal in certain circumstances, did not apply to the defendant’s appeal from a judgment entered upon her plea of guilty to a misdemeanor impaired driving, an offense sentenced under G.S. 20-179 rather than the Structured Sentencing Act.

Analysis. G.S. 15A-1444(e) provides that a defendant who pleads guilty or no contest to a criminal charge in superior court generally is not entitled to appellate review as a matter of right. There are exceptions.

  1. A defendant who has filed a motion to withdraw his or her plea of guilty or no contest and whose motion has been denied may appeal to the court of appeals as a matter of right.
  2. A defendant who has pled guilty or no contest to a felony and who is sentenced outside of the presumptive range is entitled to appeal the issue of whether the sentence is supported by the evidence.
  3. A defendant who has pled guilty or no contest to a felony or misdemeanor may appeal the issue of whether the sentence imposed:
  • results from an incorrect finding of the defendant’s prior record level or prior conviction level under the Structured Sentencing Act;
  • contains a type of sentence not authorized by the Structured Sentencing Act for the defendant’s class of offense and prior record or conviction level; or
  • contains a term of imprisonment that is for a duration not authorized by the Structured Sentencing Act for the defendant’s class of offense and prior record or conviction level.

The court of appeals in Shaw concluded that none of these exceptions applied to the defendant. She had not unsuccessfully moved to withdraw her plea. She pled guilty to a felony misdemeanor, not a misdemeanor felony. And she was sentenced under G.S. 20-179 rather than the Structured Sentencing Act.

G.S. 15A-1444(e) provides that a defendant who is not entitled to appellate review as a matter of right may petition the appellate division for review by writ of certiorari.  Shaw requested on appeal that the court review the case under its certiorari jurisdiction.  The court concluded that it did not have the authority to do so under these circumstances, citing the limitations in Rule 21 of the Rules of Appellate Procedure.

Thus, unless Shaw can convince the state supreme court to grant certiorari review, or the trial court to grant relief pursuant to a motion for appropriate relief, it appears that she is stuck with the sentence imposed.

Jail, Prison, or SMCP? A Place of Confinement Chart

You know I love a chart. I’ve made sex offender charts, Justice Reinvestment charts, maximum sentence charts, and drug trafficking charts. You should see the charts I make for family vacations! Today’s post presents a new chart detailing the proper place of confinement for all sorts of incarceration that a court might order, either at sentencing or in response to a violation of probation. It is here.

The chart was prepared in response to some changes the General Assembly made to the place-of-confinement rules this year. S.L. 2014-100. Mainly, the legislature expanded the Statewide Misdemeanant Confinement Program (SMCP) to include all impaired drivers (as Shea described here) and all misdemeanor sentences in excess of 90 days (not just those from 91 to 180 days). The DWI changes become effective for sentences imposed on or after January 1, 2015. The non-DWI changes kick in for sentences imposed on or after October 1, which is when you could begin using the chart.

The legislation also changed some of the rules for special probation (a split sentence) imposed at sentencing, as set out in revised G.S. 15A-1351(a). Like the active-sentence changes described above, the main goal of the split sentence change is to shift misdemeanants from prison to jail. The technical details of the change are reflected in the chart. Curiously, the bill did not change the rules for a split sentence imposed as a modification of probation. G.S. 15A-1344(e). Some additional changes related to confinement in response to violation (CRV) and the proper place of confinement for a person’s failure to pay a fine wind up being largely technical in nature, again as reflected in the chart.

Finally, remember that these changes mostly apply to sentences imposed after a certain date. There are still thousands of probationers whose suspended sentences were entered under the old place-of-confinement rules. If those sentences are activated, they should, in general, be administered as entered. It will take a few years for all of the old-rule cases to work their way through the system, and jail and prison officials should not be surprised when they receive revoked probationers who could not be committed to their custody for offenses sentenced today.

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

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

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.