News Roundup

August 1st, 2014
By Jamie Markham

Jeff is away today, so I will round up the week’s legal news on his behalf.

UNC-Chapel Hill professor killed. This story broke last week, but campus is still reeling from the news that beloved pharmacy professor Feng Liu was killed when he was robbed during a lunchtime walk near campus. He was apparently beaten over the head with a landscaping stone by assailants who stole his wallet. Two suspects, both with felony records, were quickly arrested and charged with armed robbery and murder. One had just finished a term of post-release supervision a few weeks ago and the other was wearing an electronic monitor as a condition of pretrial release for pending charges in Durham. The dynamics of the case obviously call to mind the murder of UNC’s Eve Carson in 2008. The case will surely raise questions about pretrial release and risk management (this local Chapel Hill story already raised some of them), but for now my thoughts are with the family and friends of Professor Liu, who was by all accounts a wonderful man.

Lovette acquitted. One of the men convicted of murdering Eve Carson, Laurence Lovette Jr., was found not guilty this week of the murder of Duke graduate student Abhijit Mahato. Mr. Mahato was robbed and shot in the head in his Durham apartment in 2008. Though testimony of a purported confession and links to the Carson case were allowed at trial, Lovette’s counsel focused on the lack of physical evidence tying him to the crime. The Herald-Sun thoughtfully praised the judicial system—prosecution, defense, judge, and jury—for its integrity in the handling of the case. Meanwhile Mr. Mahato’s family, who had earlier sent a moving letter to the district attorney’s office about their son’s case, understandably lamented their inability to find closure after the acquittal. Lovette is serving a sentence of life without parole for Carson’s murder.

General Assembly winding down. Let’s move on to lighter, but still important, news. With a budget agreement in place the legislative session is quickly coming to an end. The main sticking points in the budget were related to teacher pay, but there is a lot of criminal justice action in the bill (S 744) too. Among other things, the bill:

  • Transfers the SBI from the Department of Justice to the Department of Public Safety;
  • Eliminates grant support to the N.C. Victims Assistance Network;
  • Removes all misdemeanants, including impaired drivers, from the state prison system; expanding on changes made in 2011, all misdemeanor sentences in excess of 90 days and all DWI sentences, regardless of length, will be served through the Statewide Misdemeanant Confinement Program; and
  • Creates two “behavior modification facilities,” one in Burke County, one in Robeson, for the housing of all probationers ordered to a term of confinement in response to violation (CRV).

The latest money report on the bill is available here.

Chief Judge McGee. Effective today, Chief Justice Parker has designated Judge Linda McGee as chief judge of the North Carolina Court of Appeals. Chief Judge McGee replaces John Martin, who retired today after a distinguished career. Congratulations and best wishes to Chief Judge Martin in his retirement, and to Chief Judge McGee in her new role! In related news, Chief Judge Martin’s retirement leaves a vacancy on the court that will be filled by election this fall. A special one-week filing period for the seat opens today and runs through August 8. Details from the State Board of Elections are available here. The $1,331 filing fee seems a small price to pay for a chance to have know-it-all School of Government faculty members comment on your work on a blog!

Resentencing on Eighth Amendment Grounds

July 31st, 2014
By Jamie Markham

Some inmates are serving long sentences for older crimes that would receive a much shorter sentence under today’s law. It is clear at this point that they cannot have today’s law applied to them retroactively, as Jessie discussed in this prior post. That’s true for inmates who received longer sentences under Fair Sentencing, State v. Whitehead, 365 N.C. 444 (2012), or earlier versions of Structured Sentencing, State v. Lee__ N.C. App. __, 745 S.E.2d 73 (2013). And it is so because the legislature has always made changes to the sentencing law apply prospectively.

That’s all well and good as a matter of legislative intent, but do those inmates have a constitutional argument that their sentences violate the Eighth Amendment’s prohibition on cruel and unusual punishment? After all, the amendment is informed by the “evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97 (1976). Does a downward change in the way the legislature punishes an offense demonstrate an evolved standard? Two recent cases conclude it does not.

In State v. Stubbs, __ N.C. App. __, 754 S.E.2d 174 (2014), the defendant received a life sentence for a second-degree burglary committed in 1973. He filed an MAR arguing that after almost forty years in prison, he had already served “nearly ten times the length of time that any defendant could be ordered to serve today.” (The maximum possible sentence today for second-degree burglary, a Class G felony, is 47 months.) The trial judge agreed, granted the motion, and resentenced the defendant to 30 years, which made him due for immediate release. The State filed a petition for a writ of certiorari with the court of appeals.

A divided court of appeals reversed, concluding that the trial judge applied the wrong test to determine whether the sentence violated the Eighth Amendment. A prison sentence does not become cruel and unusual by virtue of ordinary disproportionality. Rather, it must be grossly disproportionate. Harmelin v. Michigan, 501 U.S. 957 (1991) (Kennedy, J., concurring). After a quick review of the leading cases—Hamerlin, 501 U.S. at 961 (upholding a life sentence for possession of 650 grams of cocaine; Ewing v. California (upholding a sentence of 25 years to life for felony grand theft under California’s three strikes law)—the court concluded that Stubbs’ sentence did not meet that high standard.

The court also rejected the Mr. Stubbs’ argument that the Supreme Court’s more recent guidance in Graham v. Florida, 560 U.S. 48 (2010) (discussed here), dictated a different result. In Graham the Court barred sentences of life without parole for non-homicide offenses committed by defendants under 18 at the time of their offense. Mr. Stubbs was 17 years old at the time of his burglary, but he was not sentenced to life without parole. Rather, as a life-sentenced inmate from 1973 he was eligible for parole after 10 years. In fact, he was paroled in 2008. But his parole was revoked and he was returned to prison after a DWI conviction in 2010. With that in mind, the court of appeals determined that Stubbs did have a “meaningful opportunity to obtain release,” and that his sentence was therefore not unconstitutional under Graham.

The second case is State v. Wilkerson, __ N.C. App. __, 753 S.E.2d 829 (2014). In Wilkerson the defendant was originally sentenced in 1991 to a total of 50 years on 10 felonies (one second-degree burglary and several larceny, breaking or entering, and stolen property crimes). He was 16 at the time of the crimes and had no criminal record. Mr. Wilkerson filed an MAR in 2012 arguing that his 50-year sentence was grossly disproportionate to the sentence a first-time offender could receive for the same crimes today. (By my estimation the maximum possible consecutive sentence for the same crimes today would be around 17 years.) The trial court granted the motion and resentenced Mr. Wilkerson to 21 years, which was the time he had already served. As in Stubbs the state petitioned the court of appeals for a writ of certiorari.

And as in Stubbs the court of appeals reversed. The appellate court held that the trial court erred by first comparing the sentence the defendant received with the sentence a person would receive for the same crimes committed today. The proper first step in the analysis, the court said, is to weigh the gravity of the offense and the severity of the sentence—and that step must be completed “without taking subsequent sentencing amendments into account.” Only when that threshold test gives rise to an inference of gross disproportionality should you continue to the step of comparing the defendant’s sentence with the sentences of other offenders. Harmelin, 501 U.S. at 1005. The court concluded that under the proper analytical framework the trial court never would have made it past step one in Wilkerson’s case. Yes, the defendant was young and his crimes were nonviolent. But there were still 10 felony convictions, one of which (the burglary) was “particularly serious.” With that in mind the court of appeals found “no basis for concluding that this is one of the ‘exceedingly rare noncapital cases’ in which the sentence imposed is ‘grossly disproportionate’ to the crimes.”

Stubbs and Wilkerson reaffirm something we already knew: it’s hard to succeed on an Eighth Amendment claim.  Recent Supreme Court cases like Graham and Miller v. Alabama (discussed here) may have broadened our understanding of “cruel and unusual,” but they don’t appear to have started a full-blown Eighth Amendment revolution. Occasionally our appellate courts have said things like “as long as the judge sentences within the limits established by the legislature, the Eighth Amendment is not offended.” State v. Streeter, 146 N.C. App. 594 (2001). That probably goes a little too far (at some extreme, the Constitutional obviously trumps the General Statutes), but it’s still true to say that a sentence will be found to violate the Eighth Amendment “only in exceedingly unusual non-capital cases.” State v. Ysaguire, 309 N.C. 780 (1983).

Finally, these cases also raised—and perhaps resolved—an important procedural question about the court of appeals’ jurisdiction to issue a writ of certiorari related to a trial court order granting a motion for appropriate relief. Rule 21 of the Rules of Appellate Procedure mentions only orders denying MARs, and a prior case, State v. Starkey, 177 N.C. App. 264 (2006) (discussed here by Jeff) appeared to limit the state’s ability to obtain review. Obviously both the Wilkerson and Stubbs courts saw things differently, as they issued the writ and reversed the new sentences. Wilkerson expressly distinguished Starkey. 753 S.E.2d at 833 (“As a result, however, of the fact that Starkey conflicts with several decisions of the Supreme Court that authorize review of trial court decisions granting motions for appropriate relief filed by a defendant, our decision in Starkey does not stand as an obstacle to the allowance of the State’s certiorari petition.”). This post is far too long so I’ll leave it at that for now, but it’s a topic worth revisiting soon.

 

Riley and Good Faith

July 30th, 2014
By Jeff Welty

The Supreme Court ruled in Riley v. California that cell phones can’t be searched incident to arrest. Jessie explained in yesterday’s post that Riley applies to cases that were pending when it was decided. Does that mean that the results of all the cell phone searches incident to arrest conducted before Riley was decided must be suppressed? Maybe not, as I explain below.

Round 1: the State argues the good faith exception. The State’s first move will be to argue that such searches were conducted in good faith reliance on existing precedent, namely State v. Wilkerson, 363 N.C. 382 (2009) (ruling briefly that “in the case at bar, the seizure and the search of the telephone were properly accomplished pursuant to a lawful arrest”). The Supreme Court has ruled that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis v. United States, __ U.S. __, 131 S.Ct. 2419 (2011).

Round 2: the defense argues Carter and the state constitution. The defense response will be to argue (1) that the state constitution protects citizens from unreasonable searches and seizures to at least the same extent as the Fourth Amendment, State v. Garner, 331 N.C. 491 (1992) (stating that the two constitutions protect the “same fundamental right to be free from unreasonable searches and seizures”); State v. Gwyn, 103 N.C. App. 369 (1991) (“North Carolina’s law of search and seizure and the requirements of the Fourth Amendment to the Constitution of the United States are the same.”), and (2) that under the state constitution, there is no good faith exception to the exclusionary rule, State v. Carter, 322 N.C. 709 (1988). So, the argument goes, even if the results of a cell phone search incident to arrest need not be suppressed under the federal exclusionary rule, they must be suppressed under the state exclusionary rule.

Round 3: the State argues that Carter is inapplicable. The rejoinder by the State might be to argue that Carter was decided in the context of the exception to the federal exclusionary rule regarding good faith reliance on a search warrant, see United States v. Leon, 468 U.S. 897 (1984), and that Carter doesn’t apply to good faith reliance on prior appellate precedent. There’s plenty in Carter to feed both sides of the argument.

The defense may point out that Carter actually didn’t involve a search warrant, but rather a wrongly issued nontestimonial identification order, so it can’t quite be limited to the Leon holding. More importantly, the majority opinion in Carter can easily be read as a full-throated defense of a broad exclusionary rule. It argues that North Carolina “justifies its exclusionary rule not only on deterrence [of police misconduct] but upon the preservation of the integrity of the judicial branch of government and . . . the expressed public policy of the state.” And it asserts that “[u]nder the judicial integrity theory, our constitution demands the exclusion of illegally seized evidence. The courts cannot condone or participate in the protection of those who violate the constitutional rights of others.”

But the State may respond that anything in Carter not involving search warrants and nontestimonial identification orders is dicta. And some parts of Carter might not apply to the Riley analysis. For example, “judicial integrity” may not be compromised by the admission of evidence that was obtained under binding appellate precedent, i.e., the law as judges declared it to be.

Round 4: the State challenges Carter on appeal. If the State can’t distinguish Carter at the trial court level, its final move would be to appeal the issue and to ask the state supreme court to overrule Carter. That strikes me as a real possibility. The composition of the state supreme court today is different than it was in 1988. The United States Supreme Court has curtailed the application of the Fourth Amendment exclusionary rule greatly since then. And, while Carter relied in part on the existence of a statutory exclusionary rule in North Carolina as evidence of the state’s commitment to the rule, the statutory exclusionary rule now itself includes a good faith exception. G.S. 15A-974 (“Evidence shall not be suppressed under this subdivision if the person committing the violation of the . . . provisions under this Chapter acted under the objectively reasonable, good faith belief that the actions were lawful.”). Would the current state supreme court reaffirm Carter? We may soon find out.

Riley and Retroactivity

July 29th, 2014
By Jessica Smith

Last month the U.S. Supreme Court held that under the Fourth Amendment to the U.S. Constitution, officers can’t search a cell phone as a search incident to arrest. Riley v. California, __ U.S. __, 134 S.Ct. 2473 (2014). For background on those cases, see the blog post here. Since then I’ve had a bunch of calls asking: Does Riley apply retroactively to my trial if the search was done pre-Riley? My answer: Riley applies but it’s not a retroactivity issue.

Under Griffith v. Kentucky, 479 U.S. 314, 328 (1987), new rules apply to all cases that are pending on direct review or yet not final. See Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (citing Griffith, 479 U.S. at 328). As a general rule, a conviction is final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari to the U.S. Supreme Court has elapsed or a timely petition for certiorari has been finally denied. See Griffith, 479 U.S. at 321 n.6. For our purposes, that means if the trial hasn’t occurred yet, the case isn’t final and Riley applies. But defense lawyers don’t get too excited! The State will likely argue for application of the good faith exception to the exclusionary rule, an issue Jeff will address in a follow up post.

But back to retroactivity. Retroactivity comes into play when the question is whether the new rule applies to cases that became final before the rule was issued. Thus, retroactivity doesn’t become an issue until the post-conviction stage—in N.C., typically a motion for appropriate relief (MAR). While all of the questions I’ve gotten so far have dealt with pending cases, it’s only a matter of time until the first Riley MAR gets filed. And when that happens, retroactivity will be front and center. Here’s your cheat sheet.

In NC, there are two rules for retroactivity: One for new rules based on federal law (as Riley is) and one for new rules based on state law. For new federal rules, the Teague anti-retroactivity test applies. Teague v. Lane, 489 U.S. 288, 311 (1989) (Teague was a plurality decision that later became a holding of the Court. See Gray v. Netherland, 518 U.S. 152 (1996); Caspari v. Bohlen, 510 U.S. 383 (1994)). Under Teague, a new rule isn’t retroactive unless it’s substantive or it’s a watershed rule of criminal procedure. A substantive rule is one that “narrow[s] the scope of a criminal statute by interpreting its terms” and “place[s] particular conduct or persons covered by the statute beyond the State’s power to punish.” Schriro, 542 U.S. at 352. This exception should cover decisions like Lawrence v. Texas, 539 U.S. 558, 578 (2003), which held that criminalizing consensual adult sodomy was unconstitutional. It’s pretty clear that Riley isn’t a substantive rule.

Nor is Riley likely to fall within the second Teague exception for “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” O’Dell v. Netherland, 521 U.S. 151, 157 (1997) (quotation omitted). The Court has said that it’s “unlikely” that such rules have yet to emerge. Teague, 489 U.S. at 313; Tyler v. Cain, 533 U.S. 656, 666 n.7 (2001); Beard v. Banks, 542 U.S. 406, 417 (2004) (quotation omitted). And although the Court repeatedly has referred to Gideon v. Wainwright, 372 U.S. 335 (1963) (establishing an affirmative right to counsel in all criminal trials for serious offenses), as the type of rule that would fall within this exception, see, e.g., Gray, 518 U.S. at 170, the Court has never once held a rule to fall within this Teague exception. See Beard, 542 U.S. at 417. Meanwhile it has repeatedly rejected arguments that particular rules constitute watershed rules. See, e.g., Whorton v. Bockting, 549 U.S. 406, 416-21 (2007) (Crawford is not a watershed rule of criminal procedure); Schriro, 542 U.S. at 356-58 (same as to Ring rule); Beard, 542 U.S. at 418-20 (same as to Mills rule); O’Dell, 521 U.S. at 167 (same as to Simmons rule); Lambrix v. Singletary, 520 U.S. 518, 539-40 (1997) (no retroactivity for rule of Espinosa v. Florida, 505 U.S. 1079 (1992)); Goeke v. Branch, 514 U.S. 115, 120 (1995) (same as to rule relating to fugitive dismissal); Sawyer v. Smith, 497 U.S. 227, 241-45 (1990) (same as to Caldwell v. Mississippi, 472 U.S. 320 (1985)); Gray, 518 U.S. at 170 (same as to rule concerning notice of evidence to be used against defendant); Caspari, 510 U.S. at 396 (same as to new rule that Double Jeopardy Clause prohibits successive non-capital sentence proceedings); Graham v. Collins, 506 U.S. 461, 477-78 (1993) (same as to rule regarding mitigating evidence in capital sentencing); Gilmore v. Taylor, 508 U.S. 333, 345 (1993) (same as to new rule regarding jury instructions); Butler v. McKellar, 494 U.S. 407, 416 (1990) (same as to Arizona v. Roberson, 486 U.S. 675 (1988)); Saffle v. Parks, 494 U.S. 484, 495 (1990) (same as to rule that a judge in a capital case was barred from telling the jury to avoid any influence of sympathy). Thus, while there is a chance that Riley will be held to be a watershed rule of criminal procedure, most wouldn’t be willing to put a lot of money on that bet.

As noted, Riley was decided under the Fourth Amendment to the U.S. Constitution. The N.C. Supreme Court has expressly adopted the Teague test for determining whether new federal rules apply retroactively in state court MAR proceedings. State v. Zuniga, 336 N.C. 508, 513 (1994). However, should a defendant assert a “Riley claim” under the N.C. Constitution, the retroactivity issue might come out differently. That’s because State v. Rivens, 299 N.C. 385 (1980), sets out the relevant retroactivity test for rules grounded in North Carolina law. See Zuniga, 336 N.C. at 513. Under Rivens, overruling decisions are presumed to operate retroactively unless there is a compelling reason to make them prospective only. See Rivens, 299 N.C. at 390. And that’s clearly a more permissive test than the Teague rule. For more on Rivens retroactivity, see my blog post here.

When Are Children Old Enough to Be Left Alone?

July 28th, 2014
By Shea Denning

The prosecution of a South Carolina mother who left her 9-year-old child unattended in a park several days in a row while the mother worked her shift at a nearby McDonald’s has been widely covered and roundly criticized.  The mother reportedly was charged as a result of the incident with unlawful neglect of a child, a felony under South Carolina law.

I thought about that mother last night as I was reading Ramona the Pest, a Beverly Clearly classic, to my daughter at bedtime.  In last night’s chapter, Ramona Quimby’s mother leaves Ramona at home alone one school morning and instructs her to begin walking to school at 8:15 a.m.  Ramona is in kindergarten.  Ramona’s mother is portrayed throughout the book as a reasonable and caring parent, and her decision to leave Ramona at home while she takes her older daughter to the doctor is written about as though it is a perfectly reasonable choice.  I flipped to the front of the book to see the copyright date.  1968.  That explains it, I thought.

In 2014, I’m pretty sure that most people would consider it unreasonable to leave a kindergarten age child at home unattended, even without instructing the child to later walk herself to school.  I’m less sure about the public consensus on the decision the South Carolina mother made.  My guess is that nearly everyone would view it as not ideal; some might call it unreasonable; and an even smaller number might consider it criminal.

In North Carolina, it is a Class 1 misdemeanor for a person who is at least 16 years old to knowingly or willfully cause a juvenile to be in a place or condition where the juvenile could be adjudicated neglected.  See G.S. 14-316.1.  This crime, which also applies to circumstances in which the minor could be adjudicated delinquent, undisciplined or abused, is commonly referred to as “contributing to the delinquency of a minor.”

The North Carolina Juvenile Code defines a “neglected juvenile” in part as one who does not receive proper care, supervision, or discipline from the juvenile’s parent, guardian, custodian, or caretaker. G.S. 7B-101(15).  While North Carolina’s appellate courts have considered young children who are left unattended to be neglected within the meaning of this provision, the cases in which they have done so have also involved other types of neglectful behavior.  See, e.g., In re Gleisner, 141 N.C. App. 475, 478-79 (2000) (finding substantial evidence of neglect based in part on mother’s act of leaving her eight-year-old daughter alone for three and a half hours as a form of discipline); In re Bell, 107 N.C. App. 566, 567-69 (1992) (noting that county Department of Social Services first became involved when it received a report stating that four children under the age of six had been left alone overnight, and affirming trial court’s adjudication of neglect based on the mother’s failure to ensure that her children received proper treatment from the county health department, to use her food stamps so as to keep an adequate supply of food in the house, and to take full advantage of free day care); see also In re D.M., 185 N.C. App. 159, 647 S.E.2d 689 (2007) (noting that trial court had adjudicated children neglected following petition alleging, among other neglectful acts, that children ages seven, six and four had been left alone for three days while their mother traveled out of town).

Indeed, in In re Stumbo, 357 N.C. 279, 284 (2003), the North Carolina Supreme Court noted that “not every act of negligence on the part of parents or other care givers constitutes “neglect” under the law and results in a “neglected juvenile” as “[s]uch a holding would subject every misstep by a care giver to the full impact of [the Juvenile Code],” including mandatory investigations by the Department of Social Services.

And, contrary to pervasive lore, no statute establishes a presumptive age at which a child may be left unattended.  Cf. G.S. 14-318 (making it a Class 1 misdemeanor to go away from a building, leaving any child under 8 locked or otherwise confined “so as to expose the child to danger by fire” without leaving some person of the age of discretion in charge of the child).

Readers, what’s your view?  Was prosecution of the South Carolina mom warranted?  And at what age is it appropriate to leave a child home alone?  From what I hear, once children are old enough to be left at home without risking allegations of neglect, you can’t leave them unattended for fear of other consequences.

News Roundup

July 25th, 2014
By Jeff Welty

For the second week in a row, a death penalty story from the West is the headliner. Arizona executed convicted murderer Joseph Wood on Wednesday afternoon by lethal injection. His death took almost two hours. Some believe that Wood was gasping and snorting throughout and view it as a botched execution (see this Slate article), others argue that Wood was sedated in the first few minutes and did nothing but snore thereafter (see this Arizona DOC news release). Last-minute litigation in the case focused on Arizona’s refusal to reveal the precise drugs to be used to execute Wood. Perhaps presciently, Judge Kozinski of the Ninth Circuit wrote in the course of that litigation that “[t]he enterprise [of lethal injection] is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful . . . . But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. . . . If some states and the federal government wish to continue carrying out the death penalty, they must turn away from this misguided path and return to more primitive—and foolproof—methods of execution. The guillotine is probably best but seems inconsistent with our national ethos. . . . The firing squad strikes me as the most promising. Eight or ten large-caliber rifle bullets fired at close range can inflict massive damage, causing instant death every time. There are plenty of people employed by the state who can pull the trigger and have the training to aim true.”

In other news:

Federal drug guidelines reduced retroactively. Anyone who practices in federal court is likely aware of this already, but the United States Sentencing Commission recently concluded that changes to the federal sentencing guidelines that apply in drug cases should apply retroactively to defendants who have already been sentenced. Congress could disapprove the amendment but if it doesn’t, sentences could be changed starting November 1, 2015. It’s a big deal, and Doug Berman at Sentencing Law & Policy wonders here whether the federal public defenders will be able to handle the onslaught of cases. The folks at Crime & Consequences disapprove here.

No new trial for Jeffrey MacDonald. The former Army doctor convicted of killing his wife and two daughters was denied a new trial by a federal judge yesterday. WRAL has the story here.

Why does all the goofy stuff happen in Florida? (OK, and Italy.) As to Florida, the headline of this story pretty much says it all: Man in Road Rage Incident Run Over by Own Truck. Actually, it doesn’t quite say it all. The man, who was hit by his truck when he got out of it to confront another motorist but neglected to put the vehicle in park, smelled strongly of alcohol and had an open beer in the cab. He “told [an investigating] officer that he does not drink and drive,” but “[w]hen asked about the beer cans in his truck, he said he was only drinking while he drove home.” Meanwhile, across the pond in Italy, a women’s prison apparently has been providing inmates with “happy hours which ran until ‘late at night’ with ‘external guests.’ Prisoners were provided with a catering service and offered alcohol.” No word on the quality of the vintages available. The story is here.

Fair Sentencing in a Nutshell

July 24th, 2014
By Jamie Markham

North Carolina’s first attempt at a presumptive sentencing law was the Fair Sentencing Act (FSA). The law was in effect for offenses committed from July 1, 1981 to September 30, 1994, and it continues to apply to offenses committed during that date range. A defendant being sentenced now for a crime of that vintage is not entitled to a sentence under today’s law, even if doing so would result in a far lower sentence. State v. Whitehead, 365 N.C. 444 (2012) (holding that the legislature did not intend for Structured Sentencing to apply retroactively, and rejecting the defendant’s argument that retroactive application was required under the Eighth Amendment). Almost every week I am asked about Fair Sentencing—either for an older crime being prosecuted now for the first time, or in relation to the resentencing of an inmate serving a Fair Sentencing sentence. This post addresses some of the most frequently asked questions about the FSA.

Can you send me the FSA sentencing grid? The FSA didn’t use a grid like we have today. It did, however, organize felonies into different offense classifications based on their seriousness (Class A through J), and set presumptive and maximum sentences for each class of offense. Many offenses were the same offense class under Fair Sentencing as they are today, but if you ever need to know for sure, please don’t hesitate to ask. Here is a table of presumptive and maximum terms for each class of offense.

FSA presumptive-maximum table

The presumptive sentence applies by default. The judge could deviate from the presumptive if he or she made written findings of aggravating or mitigating factors. It was mandatory under the FSA for the judge to consider the list of factors set out in G.S. 15A-1340.4(a)(1) and (2). With findings of a single aggravating factor the judge could impose a sentence up to the statutory maximum set out above. No findings were required in support of a non-presumptive sentence if (1) it was imposed pursuant to a plea agreement, or (2) the aggregate prison term of certain consolidated judgments fell between the presumptive and maximum terms for the most serious felony and did not exceed the sum of the presumptive terms of all the consolidated crimes. G.S. 15A-1340.4(a) (1983). (The first exception seems a little more user-friendly than the second!)

As written, the FSA required aggravating factors to be proved to the judge by a preponderance of the evidence. But for any case sentenced or resentenced today, the Sixth Amendment jury trial right described by the Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004), would surely require any aggravating factor other than a prior conviction to be proved to the jury beyond a reasonable doubt, unless the defendant admitted to it.

How does a person’s prior record count under the FSA? There was no formulaic calculation of a “prior record level” under the FSA. Rather, it was a statutory aggravating factor to have a prior conviction for an offense punishable by more than 60 days’ confinement. Under the FSA’s definition, judgment had to be entered before a prior conviction counted, and so a PJC did not qualify. State v. Southern, 314 N.C. 110 (1985).

How did probation work under the FSA? In general, a judge could suspend the sentence and place a defendant on probation for any crime not punishable by a minimum term of life imprisonment. G.S. 15A-1341(a) (1983). Some specific crimes also required an active term of imprisonment, like armed robbery. The longest permissible probation period was 5 years. A split sentence was allowed for any crime with a maximum penalty not exceeding 10 years, with the active portion of the split not to exceed six months or one-fourth the maximum permissible penalty for the crime, whichever was less. G.S. 15A-1351 (1983).

Does the prison system really cut FSA sentences in half? Yes. By statute, FSA non-life sentences received Good Time credit at the rate of one day deducted for every day in custody without a major infraction, which essentially cuts a sentence in half. G.S. 15A-1340.7(b) (1983). Further reductions were possible through Gain Time (awarded for working or participation in other prison programs) and Meritorious Time (for heroism or exemplary acts beyond normal expectations).

Wiretapping Data — And a Question

July 23rd, 2014
By Jeff Welty

In connection with an ongoing research project, I recently reviewed the 2013 Wiretap Report, prepared by the Administrative Office of the United States Courts. It contains some information that may be of interest to readers, including:

  • 3,576 wiretaps were authorized by federal or state courts in 2013, about twice the number authorized a decade earlier.
  • It appears that a single wiretap application was declined in 2013, by a state judge.
  • About 60% were issued by state courts, mainly in California, New York, Nevada, New Jersey, Georgia, and Florida.
  • 22 were issued by North Carolina federal judges, and 22 more by North Carolina state judge panels, under the procedure set forth in G.S. 15A-291.
  • 97 percent of all wiretaps involved “portable devices,” i.e., cellular phones, rather than fixed locations.
  • 87 percent were for drug offenses.
  • The use of encryption to defeat wiretapping is on the rise, though still uncommon. 41 wiretaps involved encryption, which was unbreakable by law enforcement in 9 instances.

I’ll close with a question for readers. The state wiretapping statutes provide that applications and orders shall be filed under seal. G.S. 15A-293(d)(2) (“must be sealed”). The statutes don’t provide much guidance about unsealing, but the contents of an intercepted communication may be used in court only if the defendant has been given a copy of the application and order authorizing the interception. G.S. 15A-294(f). So, how does that play out in practice? Does the defendant receive copies of the sealed documents? Are the documents unsealed upon the conclusion of the investigation? Neither, with the result that the intercepted communications aren’t being used in court? Some combination of those? Something else?

Is It Illegal to Make Pornography in North Carolina?

July 22nd, 2014
By Jeff Welty

Lawyers Weekly ran a brief article a couple of months ago about the above question. The article is here, behind a paywall. What follows is my own analysis of the issue.

Obscenity. The first issue, and the only one addressed by Lawyers’ Weekly, is whether making pornographic movies would violate the obscenity statutes. Specifically, G.S. 14-190.5 makes it a misdemeanor knowingly to “[p]hotograph [oneself] or any other person, for purposes of preparing an obscene film . . . for the purpose of dissemination” or knowingly to “[m]odel[], pose[], act[], or otherwise assist[] in the preparation of any obscene film . . . for the purpose of dissemination.”

At first glance, that might seem to cover the production of pornography, but Lawyers’ Weekly quoted several lawyers, most of whom waffled on the question. The waffling was entirely justified, because G.S. 14-190.1 defines material as obscene only if it depicts sexual conduct in a “prurient” and “patently offensive way” that “lacks serious literary, artistic, political, or scientific value.” Those terms are incredibly vague, but, of course, are constitutionally required. Miller v. California, 413 U.S. 15 (1973) (establishing the boundaries of obscenity for purposes of the First Amendment). Courts have often found pornographic material to fall outside the definition of obscenity, so at least some pornography probably could be produced in North Carolina without running afoul of the obscenity laws.

Prostitution. But perhaps there is another way to approach the issue. Could producing pornography involve a violation of the prostitution laws? Under G.S. 14-203, prostitution includes having sex or performing any sexual act “for the purpose of sexual arousal or gratification for any money or other consideration,” and there’s a reasonable argument that the people depicted in a pornographic video are doing just that.

Case law from other states suggests that the argument isn’t a slam dunk, though. The best-known case in this area is People v. Freeman, 46 Cal.3d 419 (Cal. 1988), where the Supreme Court of California reversed the conviction of a pornography producer under the state’s pandering for prostitution laws. The court found no evidence that the producer paid the actors for the purpose of sexual arousal or gratification. Essentially, the purpose was making money, and any sexual arousal or gratification was incidental. That strikes me as debatable. If I hire a company to trick out a food truck for my planned mobile donut business, most people would say that I paid the company for the purpose of building a truck, even if my ultimate objective is to make money by selling donuts. And Freeman itself cites cases from other states that come to other conclusions.

Even if there were a violation of the prostitution statutes, the Freeman court continued, “the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values.” I think that’s debatable too. If the conduct depicted is otherwise criminal, the First Amendment doesn’t protect it just because it is filmed. In fact, if that were the law, couldn’t a prostitute operate legally simply by being her own “director,” recording the proceedings and giving the recording to the customer?

The bottom line is more waffling. Charging those involved in producing pornography with violating the prostitution laws is a possibility but would raise legal issues. Readers, what do you think of this approach?

Further reading, no pictures. A Rutgers law professor argues that making pornography is protected by the First Amendment and doesn’t constitute prostitution here. Slate asserts here that “[p]orn stars are paid to act,” not to have sex. Also perhaps worth a look are Tonya R. Noldon, Note, Challenging First Amendment Protection of Adult Films with the Use of Prostitution Statutes, 3 Va. Sports and Ent. L.J. 310 (2004), and Jason Shachner, Note, Unwrapped, 24 Health Matrix 345 (2014) (stating that only California and New Hampshire clearly protect the right to produce pornography).

State v. Granger adds to State’s Missouri v. McNeely jurisprudence

July 21st, 2014
By Shea Denning

State v. Granger, decided last week, is the latest case in which the North Carolina Court of Appeals has considered, in light of Missouri v. McNeely, __ U.S. __, 133 S.Ct. 1552 (2013), whether an exigency supported the warrantless withdrawal of an impaired driving suspect’s blood over the person’s objection. Readers may recall that the United States Supreme Court held in McNeely that the natural dissipation of alcohol, standing alone, does not create an exigency in every impaired driving case sufficient to excuse the Fourth Amendment’s warrant requirement.  The Granger court held that exigent circumstances justified the warrantless withdrawal of the defendant’s blood about an hour and a half after he drove when it would have taken an additional 40 minutes to obtain a warrant and it was impractical for the lone investigating officer to leave the defendant unattended in the hospital.

Facts. 

The defendant in Granger was driving in Wilmington around 2:19 a.m. when he rear-ended another vehicle. Officer Eric Lippert of the Wilmington Police Department responded to the report of an accident.  When he approached the defendant’s car, he noticed that the defendant was in pain and that he smelled of alcohol. The defendant was taken to the hospital by ambulance.

Officer Lippert spoke with the defendant at the hospital. He noticed during their exchange that the defendant’s eyes were bloodshot and glassy.  The defendant told the officer that he had been drinking.  He said he had taken “‘three shots’” between 10 p.m. and 11 p.m. and that he had taken his last shot twenty minutes before the accident, around 2 a.m. The officer administered two portable breath tests to the defendant. Both were positive for alcohol. He also administered the horizontal gaze nystagmus test, which the defendant “did not pass.”

The officer determined that he has probable cause to obtain a blood sample from the defendant. (It is not clear from the court of appeals’ opinion or the record whether the officer then charged the defendant with impaired driving.  Being charged with an implied consent offense is a prerequisite to obtaining a chemical analysis of a person pursuant to the state’s implied-consent laws. ) The officer then (at 3:10 a.m.) read the defendant his implied consent rights, and waited for a nurse to draw defendant’s blood for analysis. A nurse became available 40 minutes later, at 3:50 a.m., and the officer asked the defendant to submit to the blood draw. The defendant refused.

The officer instructed the nurse to draw the defendant’s blood over the defendant’s objection. A test of the blood sample revealed an alcohol concentration of 0.15.

Procedural History.

The defendant was convicted of DWI in district court, and appealed for trial de novo in superior court. He moved in superior court to suppress the blood test results on the basis that his Sixth Amendment right to confront witnesses had been violated by the State’s failure to prove the chain of custody of his blood sample. He also filed a motion to dismiss, arguing that his Fourth Amendment rights were violated because his blood was withdrawn at the behest of the police officer without a warrant.

The superior court determined that there were sufficient exigent circumstances to justify the warrantless withdrawal of the defendant’s blood and therefore denied the defendant’s latter motion, which it characterized as a “motion to suppress.” The superior court did not rule on the defendant’s Sixth Amendment argument. The defendant pled guilty, preserving his right to appeal the superior court’s denial of his motion to suppress.

The defendant argued on appeal that the trial court erred in denying his motion to suppress the results  of the blood test as there was no exigency sufficient to excuse the Fourth Amendment’s warrant requirement.

Court of Appeals Opinion.

The court of appeals held that the following factors supported the trial court’s conclusion that exigent circumstances existed:

  • The officer was concerned about the dissipation of alcohol from the defendant’s blood since the officer developed probable cause for DWI more than an hour after the accident.
  • The officer was concerned about dissipation “‘due to delays from the warrant application process[.]’“ (Slip op. at 15.)  The officer estimated that it would take at least 40 minutes to travel to the magistrate’s office, obtain a warrant, and return to the hospital.
  • The officer was investigating the matter alone “and would have had to call and wait for another officer to arrive before he could travel to the magistrate to obtain a search warrant.” (Slip op. at 16.)
  • The officer was concerned that if he left the defendant unattended or waited any longer for a blood draw, the hospital might administer pain medication that would “contaminat[e]” the defendant’s blood sample.

Predictable Outcome . . . But Curious Considerations.

While some of the specific facts relied upon by the appellate court are curious, the holding in Granger isn’t particularly surprising. After all, the circumstances closely resemble those held to constitute an exigency in Schmerber v. California, 384 U.S. 757 (1966). In both circumstances, the defendant was taken to a hospital for medical treatment following a vehicular accident, and time was required to investigate the accident. While the “40 plus minute delay” that would have resulted in Granger had the officer sought a warrant is not particularly lengthy (Slip op. at 11), it arguably could have, under McNeely, ”significantly undermin[ed] the efficacy of the search,” and thus amounted to the sort of circumstance in which obtaining a warrant is “impractical.” McNeely, 133 S.Ct at 1561.

As for the curious facts, I’m not sure why the officer could not have left the defendant alone in the hospital while he applied for a warrant. [Update: Though not articulated in the trial court evidence or findings, an informed reader advised that departmental procedures typically require that a law enforcement officer who has probable cause to arrest a suspect for DWI  have an officer watch the suspect patient at all times so the patient cannot leave the hospital voluntarily.] And given that the officer testified that he would not stop or interfere with a person’s medical treatment, it is not clear how his remaining in the hospital would have prevented pain medication from being administered if deemed necessary. Moreover, the State has had previous success in establishing the reliability of blood tests performed on samples obtained after pain medication had been administered.  See State v. Armstrong, 203 N.C. App. 399, 418-19 (2010) (noting that State presented three witnesses who testified that the drug administered to the defendant did not increase his blood-alcohol level; cf. BJ’s Wholesale Club v. W.C.A.B. (Pearson), 43 A.3d 559, 564 (Pa. Commw. Ct. 2012) (noting the lack of competent evidence that the prescription pain medication and narcotic taken by the claimant “in any way caused or contributed to her high blood alcohol level”).

The court’s reliance on these factors leaves me wondering whether it would have found an exigency if two officers had been present—even factoring in the same delay. Future jurisprudence will no doubt continue to clarify the parameters of exigency for warrantless blood draws.