Statutes prescribing simplified charging language were intended to alleviate the burdensome pleading requirements of the common law. See Wayne R. LaFave, et al., Criminal Procedure § 19.1(c). Indeed, where a short-form pleading is statutorily authorized, it is not necessary to allege all the elements of the offense. See State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983). But how closely must a short form track the language prescribed by statute? The Court of Appeals recently decided a couple of cases that address the issue. This post considers those cases.
News Roundup
The first criminal trial of a former U.S. President continues to dominate the news. Trump’s trial on state charges of falsifying business records in furtherance of a felony in New York is now several weeks along. However the trial shakes out, the former president has already been adjudicated guilty of ten counts of criminal contempt for violating a gag order prohibiting him from talking about jurors and witnesses in the case. The trial judge has expressly warned Trump that further violations may result in jail (while also noting the practical difficulties that a jail term would entail). Politico has the latest on the contempt cases here.
Meanwhile, one of Trump’s other criminal cases involving the alleged mishandling of classified records in federal court in Florida is currently in limbo. While a trial date of May 20 had previously been set, the judge recently ruled that more time was needed to resolve pending pretrial motions and removed the case from the trial calendar without setting a new date for trial. It now seems likely that the Florida trial will not occur before the presidential election in November, as this story reports. Read on for more criminal law news.
Case Summaries: N.C. Court of Appeals (May 7, 2024)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on May 7, 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.
Lethality Assessment Protocol
Intimate partner violence is abuse or aggression that occurs in a romantic relationship, usually between current or former spouses or current or former dating partners. According to the NC Coalition Against Domestic Violence, 1 in 3 women and 1 in 4 men in the United States have experienced some form of intimate partner violence. In North Carolina, 35.2% of women and 30.3% of men experience domestic violence and stalking in their lifetime.
Since 2018, the North Carolina Department of Justice (NCDOJ) has partnered with several communities across the state by sharing and helping implement the Lethality Assessment Protocol (LAP). The LAP, which was originally created in 2005 by the Maryland Network Against Domestic Violence, is a program designed to prevent intimate partner homicides and serious abuse by connecting high-risk victims with safety resources. This post gives a brief introduction of how the LAP works and information for NC communities that may wish to participate.
Grant’s Pass, Homelessness, and the Constitutionality of Anti-Sleeping and Anti-Camping Ordinances
Homelessness is a challenging problem. Some cities have attempted to address it, in part, by prohibiting sleeping or camping in public places. The Supreme Court of the United States is currently considering whether, and under what circumstances, such ordinances are constitutional. I recently listened to the oral arguments in the case. Those who are currently litigating violations of anti-sleeping or anti-camping ordinances may be interested in this summary of the issues, as may those responsible for shaping municipal policy.
News Roundup
The week began with tragedy. Four law enforcement officers were killed Monday afternoon in Charlotte when they attempted to serve arrest warrants on 39-year-old Terry Clark Hughes, Jr., who shot at the officers when they arrived at his East Charlotte home. Officers returned fire, and Hughes was eventually shot and killed.
The slain officers are Deputy U.S. Marshal Thomas Weeks, CMPD Officer Joshua Eyer, and Sam Poloche and Alden Elliott of the Department of Adult Correction. Four other CMPD Officers were injured, but are expected to make a full recovery.
Two women, one of whom is 17, were in the home during the shooting. They were taken into custody, but neither has been charged with a crime, and it is unclear whether more than one person fired shots. An AR-15 rifle and a .40 caliber handgun were recovered from the scene. The Charlotte Observer has the story here.
Just Say No to Commenting on the Defendant’s Failure to Testify
While a prosecutor in a criminal trial may comment on a defendant’s failure to produce witnesses or evidence to contradict or refute the State’s case, a prosecutor may not make any reference to or comment on a defendant’s failure to testify. Such remarks violate both a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence (see U.S. Const. Amend. V, N.C. Const. art. I, § 23) and G.S. 8-54, which provides that no person charged with a crime may be compelled to testify or “answer any question tending to criminate himself.” This rule rests on the notion that allowing extended reference by the court or counsel concerning the defendant’s failure to testify would “nullify the policy that failure to testify should not create a presumption against the defendant.” State v. Randolph, 312 N.C. 198, 206 (1984).
The prohibition against such remarks encompasses even those that parrot the pattern jury instructions by acknowledging that a defendant may elect not to testify and that such an election may not be used against him. See State v. Reid, 334 N.C. 551, 554 (1993). Thus, when a prosecutor makes such remarks and the defendant objects, the trial court must undertake curative measures to inform the jury both that the remarks were improper and that the defendant’s failure to testify may not be used against him. Id. at 556. If the trial court fails to take such remedial measures and an appellate court deems the error prejudicial, a new trial will be ordered. Id. at 557. The Court of Appeals applied these principles recently in State v. Grant, No. COA23-656, ___ N.C. App. ___ (2024).
News Roundup
A lawsuit has been filed against the North Carolina Department of Health and Human Services and its secretary, asserting that the state’s lack of assessment and treatment services has resulted in people with severe mental disabilities suffering in county jails while waiting months for psychiatric services. The complaint—which can be accessed here—centers on those who sit in jail for months or years if there are concerns about their capacity to proceed in their criminal case. The lawsuit contends that they wait, on average, two months for an assessment to be completed and nearly five months for treatment at a state psychiatric hospital. While waiting, they remain in jail, sometimes longer than they would be if convicted.
Updated Content Now Available in the Digital Version of Arrest, Search, and Investigation in North Carolina
Most readers of this blog are familiar with Arrest, Search, and Investigation in North Carolina. For those who are not, it is a treatise on search and seizure law. It covers stops, arrests, warrantless searches, search warrants, and much more. The most recent (sixth) edition was published in 2021 and was authored by long-time School of Government faculty member Robert L. Farb and research attorney Christopher Tyner. However, the law is never static, and the intervening years have seen major developments concerning issues such as digital searches, strip searches, the recording of interrogations, the automobile exception to the warrant requirement, and more. I’ve updated the treatise, and this post details how to access the new content.