A common point of confusion among law enforcement and the public is about the use of unlabeled pill bottles. Is it legal to possess prescription medicine in a container other than the original bottle with the prescription affixed? Does discovering an unlabeled pill bottle justify seizing and searching it to see if it contains contraband? Can a pill bottle be removed from a pocket during a frisk based on plain feel? Does it provide reasonable suspicion or probable cause to search or arrest a suspect? A case decided by the Court of Appeals earlier this month, State v. Jackson, No. COA23-727; ___ N.C. App. ____; ___ S.E.2d ___ (Mar. 19, 2024), sheds some light on these questions. Read on for the details.
Statutory Rights to Appeal Orders in Delinquency Matters: What, When, Who, and Impact on Juvenile Court
The right to appeal an order in a delinquency matter is established in G.S. 7B-2602 (Right to appeal) and G.S. 7B-2603 (Right to appeal transfer decision). These statutes do not identify every order that is entered in a delinquency action. Instead, there is a right to appeal after entry of specified final orders and any order transferring jurisdiction to superior court for trial as an adult. This post explains when there is a statutory right to appeal an order in a delinquency matter, who has the right to appeal, and restrictions on juvenile court jurisdiction while an appeal is pending.
News Roundup
Nationally, the biggest criminal law story this week was the sentencing of James and Jennifer Crumbley. They’re the parents of Ethan Crumbley, who was a student at Oxford High School in Michigan in 2021 when he murdered four classmates and injured seven other people in a mass shooting. James and Jennifer Crumbley were each convicted, in separate trials, of four counts of involuntary manslaughter as a result of their son’s acts. The prosecution contended that they ignored a host of warning signs about Ethan’s mental state and ultimately enabled the shooting by purchasing him a handgun. This week, they were sentenced at a joint sentencing hearing to 10 to 15 years in prison. The Associated Press has the story here. Read on for more news.
Does Waiver by Conduct Remain a Third Way to Lose the Right to Representation?
The North Carolina Court of Appeals first recognized the concept of waiver by conduct in State v. Blakeney, 245 N.C. App. 452 (2010). There, the Court set forth three ways in which a criminal defendant might lose his right to representation by counsel: (1) the defendant may knowingly, intelligently, and voluntarily waive the right to counsel; (2) the defendant may engage in such serious misconduct that he forfeits the right to counsel; and (3) following a warning that the defendant may lose his right to representation if he continues to engage in dilatory tactics, the defendant continues to engage in behavior designed to delay or disrupt court proceedings. This third way, which was acknowledged but not applied in Blakeney, has been called “waiver by conduct.”
While a knowing, voluntary and intelligent waiver of counsel has long been recognized by both the North Carolina Supreme Court and the North Carolina Court of Appeals as authorizing a defendant to proceed unrepresented, only recently has the state’s highest court expressly held that a defendant may forfeit his right to counsel. In State v. Simpkins, 373 N.C. 530 (2020), the North Carolina Supreme Court — citing consistent precedent from the court of appeals — held for the first time that a defendant may forfeit the right to counsel by engaging in egregious misconduct that frustrates the purpose of the right to counsel itself and prevents the trial court from moving the case forward. Simpkins recognized two types of conduct that may be sufficiently egregious to warrant forfeiture: (1) serious obstruction of the proceedings (for example, refusing to obtain counsel after multiple opportunities to do so, refusing to say whether he wishes to proceed with counsel, refusing to participate in the proceedings, or continually hiring and firing counsel and thereby significantly delaying the proceedings); and (2) assaulting one’s attorney. Id. at 538. The Simpkins Court expressly declined, however, to consider whether “waiver by conduct” is a method by which a defendant may be required to proceed without counsel. Id. at 535 n. 4.
Ensuing opinions from the state supreme court have reinforced the high bar for the misconduct required to constitute forfeiture and have extended the second category of misconduct recognized in Simpkins to include other types of aggressive, profane or threatening behavior. See State v. Harvin, 382 N.C. 566, 587 (2022); State v. Atwell, 383 N.C. 437, 449 (2022); see also Brittany Bromell, N.C. Supreme Court Weighs in, Again, on Forfeiture of Counsel, N.C. Criminal Law Blog (Feb. 7, 2023). They have not, however, mentioned waiver by conduct as an alternative way of dispensing with the right to counsel. Indeed, in Atwell, the Court wrote that there can be “no ‘effective’ waiver” of the right to counsel, emphasizing that “waiver of counsel is a voluntary decision by a defendant and that where a defendant seeks but is denied appointed counsel, a waiver analysis upon appeal is both unnecessary and inappropriate.” Id. at 448.
Thus, following Atwell, there was some question as to whether waiver by conduct remained even a potentially viable theory under North Carolina law. Two recent opinions from the North Carolina Court of Appeals reflect that court’s view that it does. This post will review the concept of waiver by conduct and its recent application in State v. Moore, 290 N.C. App. 610 (2023) and State v. Jones, No. COA23-647, ___ N.C. App. ___, ___ S.E.2d ___ (2024).
Spring 2024 Cannabis Update (Part II)
In Part I of my Spring 2024 cannabis update, I discussed the search and seizure issues arising in North Carolina courts around cannabis. Part II explores drug identification evidence issues surrounding marijuana prosecutions and examines potential challenges defenders might raise. This post will also cover recent developments on the state, federal, and tribal levels impacting cannabis.
One Unbroken Chain of Events: The Doctrine of Continuous Transaction in State v. Jackson
Robbery is larceny from the person by violence or intimidation. The exact relationship between the taking and the violence is vexing. There is authority for the proposition that the use of force must be such as to induce the victim to part with the property. State v. Richardson, 308 N.C. 470, 476, 302 S.E.2d 799, 803 (1983). A recent opinion of the Court of Appeals reminds us, however, that the violence need not coincide with the taking when there is a continuous transaction. See State v. Jackson, No. COA23-636, 2024 WL 1172327 (N.C. Ct. App. Mar. 19, 2024). In such cases, the evidence may support a conviction for robbery, even if the victim is incapacitated, unconscious, or dead. This post explores the doctrine of continuous transaction.
Spring 2024 Cannabis Update (Part I)
It has been a while since my last post on cannabis and criminal law issues, and it is past time for an update. In addition to a number of state cases grappling with search and seizure issues surrounding cannabis, there have been recent developments in the area on the federal and tribal levels. Today’s post will focus on search and seizure issues in marijuana prosecutions. Part II will cover drug identification issues and other recent issues affecting the state of cannabis law.
News Roundup
Reuters reports that threats against federal judges have substantially increased over the last several years. Threats deemed “serious” by the U.S. Marshals Service rose from 179 incidents in 2019 to more than 450 in 2023. A majority of these threats seem to be motivated by politics and are coming from people without a direct connection to any litigation before the judges. The phenomenon is not unique to federal court judges. A 2022 survey by the National Judicial College of primarily state-court judges revealed that almost 90% of the 398 judges polled expressed concerns for their physical safety. A “true threat” is punishable under state and federal law under any number of different statutes, but many disturbing or offensive comments are protected speech under the First Amendment, as my former colleague Jonathan Holbrook discussed here. Read on for more criminal law news.
Case Summaries: N.C. Court of Appeals (April 2, 2024)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on April 2, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
North Carolina 2024 Public Defender Expansion
In 2023, the North Carolina General Assembly approved funding to create eight new public defender districts. The eight new districts will cover twenty-two counties. Once they are in place, sixty of North Carolina’s 100 counties will be served by a public defender. Seven of the new districts were fully funded starting January 1, 2024; for the eighth, full funding is effective July 1, 2024. Because new public defender offices need time to hire and train staff, they will not start taking cases right away.