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News Roundup

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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.

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Just Say No to Commenting on the Defendant’s Failure to Testify

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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).

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News Roundup

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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.

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Updated Content Now Available in the Digital Version of Arrest, Search, and Investigation in North Carolina

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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.

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What is the Maximum Commitment Period That Must be Noticed at Disposition in a Delinquency Case?

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When the court issues an order of disposition committing a juvenile to a youth development center (YDC), that commitment is almost always required to be for an indefinite period of time that lasts at least six months. G.S.7B-2513(a). The court cannot order an end date for these commitments. However, the court is required to determine the maximum period the juvenile may remain committed before an extension would have to be filed or the juvenile must be released, and to notify the juvenile of that determination at the time disposition is ordered. G.S.7B-2513(a4). How should this maximum period of commitment be calculated? And is every commitment eligible for an extension? This post addresses these questions.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part I, Roviaro v. U.S.

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Today I begin a series of blog posts discussing the law around confidential informants, motions to reveal identity, and discovery. Technological developments have made it more common for law enforcement to document the activity of a confidential informant (“CI”) through video and audio recording. This change raises challenging legal questions, such as whether the identity of the confidential informant must be revealed to the defense and what must be turned over in discovery. Today’s post discusses the landmark case of Roviaro v. U.S. and introduces the basic issues, focusing on the factors that weigh toward or against the disclosure of the CI’s identity to the defense. Future posts will discuss the relevant statutes, key state cases, and federal courts’ analysis of these questions, along with procedural and strategic considerations.

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News Roundup

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The first criminal trial of a former U.S. president began this week in Manhattan. Donald Trump faces 34 felony counts of falsifying business records, based on allegations that he dishonestly classified payments to porn actor Stormy Daniels and Playboy model Karen McDougal as legal expenses, when they were in fact hush-money payments to hide affairs. Falsifying business records is a misdemeanor in New York, but the crime is elevated to a felony when done with intent to conceal a second crime. District Attorney Alvin Bragg has stated that the evidence will show that Trump falsified the records with the intent to conceal campaign finance and tax crimes.

On Monday, the proceedings began with pre-trial evidentiary arguments, and presiding Judge Juan Merchan excluded certain pieces of evidence as too prejudicial. For example, prosecutors will not be permitted to play the audio recording of the “Access Hollywood” tape to the jury, but they will be permitted to introduce the campaign emails discussing the tape.

Jury selection is well underway. 50 of the original 96 prospective jurors were excused immediately after stating they could not be fair and impartial. The lawyers have scrutinized jurors’ prior social media posts to uncover potential biases as they decide whom to strike. As of today, 12 jurors and one alternate have been selected, with five more alternates to be picked.

Read on for more criminal law news.

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