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S 382 Enacts Provisions that Impact the Courts

Yesterday, the General Assembly overrode Governor Cooper’s veto to enact S.L. 2024-57 (S 382). The legislation, which was focused in part on disaster recovery following Hurricane Helene, impacts the court system in several notable ways:

  • It appropriates $8.2 million to the Office of Indigent Defense Services (IDS) to ensure timely payments to private assigned counsel representing indigent defendants (Section 2D.3);
  • It creates two new special superior court judgeships to be filled by legislative appointment (Section 2D.4(a));
  • It eliminates, as of January 1, 2029, two superior court districts, one in Wake County and one in Forsyth County (Section 2D.5);
  • It modifies the process for filling vacancies on the appellate courts (Section 3C.1);
  • It abolishes the Courts Commission (Section 3C.2);
  • It provides for appointment of senior resident superior court judges by the Chief Justice of the North Carolina Supreme Court (Section 3C.3); and
  • It authorizes the Director of the Administrative Office of the Courts (AOC) to employ or retain counsel to represent judicial branch officers and employees (Section 3D.2).

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Confession and Avoidance: Self-defense in State v. Myers

The defendant presented competent evidence tending to show that he was acting in self-defense when he shot Raquan Neal, the Court of Appeals recently said in State v. Myers, No. COA24-435 (N.C. Ct. App. Nov. 19, 2024), and the trial court’s failure to instruct on self-defense was error. Reciting both the common law and the statutory test for self-defense, the opinion in Myers seems to represent a straightforward application of settled law – except for one thing. The defendant “testified he was not trying to kill Neal.” Myers, Slip Op. 3. Under the common law, a defendant was not privileged to use deadly force unless he believed at the time that it was necessary to kill his assailant. Prior cases found no error in the trial court’s denying an instruction on self-defense when the defendant thus disavowed the requisite intent. This post considers the opinion in Myers.

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News Roundup

According to this story, the CEO of United Health Care, Brian Thompson, was walking through Manhattan on his way to conference when a masked gunman fired multiple shots from a 9 mm handgun, striking Mr. Thompson from behind and killing him. The suspect fled the scene and remains at large at the time of this writing. Authorities believe the shooter was specifically targeting Thompson, a belief reinforced by the discovery that shell casings at the scene were inscribed with the words “deny,” “defend,” and “depose.” Police were able to obtain surveillance footage showing an image of the suspect from a local hostel. Thompson’s wife reported that he had received threats recently, but did not offer specifics. In addition to his wife, Thompson leaves behind two sons. Read on more for more criminal law news.

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Smith v. Arizona Comes to NC

As regular readers know, the U.S. Supreme Court decided Smith v. Arizona, 602 U.S. 779 (2024), this past June. The decision undercut the reasoning used by North Carolina courts to justify the practice of permitting substitute analysts to offer an independent opinion about the forensic report of another, nontestifying analyst (as discussed here and here). Until this week, no North Carolina court had applied Smith. The wait is now over. In State v. Clark, NCCOA-1133, ___ N.C. App. ___ (Dec. 3, 2024), the Court of Appeals delved into the impact of Smith on North Carolina law, ultimately granting the defendant a new trial for a Confrontation Clause violation. This post discusses the Clark decision and its implications for the future of substitute analysts in the state.

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There’s a New King in Town – Finding DWI Aggravating Factors

The U.S. Supreme Court held in Blakely v. Washington, 542 U.S. 296 (2004) that any contested fact that increases the defendant’s sentence beyond the statutory maximum must be submitted to the jury and found beyond a reasonable doubt. Shortly thereafter,  the General Assembly amended G.S. 20-179 to require judges in superior court cases to submit contested aggravating factors during impaired driving sentencing to the jury. Practically, this means that after a person is found guilty of impaired driving, if they are contesting properly alleged aggravating factors, there must be a sentencing hearing before the jury to determine any aggravating factors beyond a reasonable doubt. The North Carolina Supreme Court considered in State v. King, ___ N.C. ___, 906 S.E.2d 808 (2024) what happens if a judge finds contested aggravating factors without submitting them to the jury.

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President Joe Biden Pardons Hunter Biden

The Associated Press reports here that “President Joe Biden pardoned his son, Hunter, sparing the younger Biden a possible prison sentence for federal felony gun and tax convictions and reversing his past promises not to use the extraordinary powers of the presidency for the benefit of his family.” This post discusses President Biden’s decision.

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2024 Criminal Legislative Summaries

[Editor’s note: The legislative summaries linked in this post were updated on December 12, 2024, to reflect legislation enacted after this post first appeared.] Looking for some interesting topics to discuss over Thanksgiving dinner? The criminal summaries for this legislative session are now available and can be accessed here.

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Considerations When Processing Arrests of 16- and 17-year-olds Under Criminal Jurisdiction

When Session Law (S.L.) 2024-17 takes effect next Sunday, December 1, cases in which a Class A – E felony offense is alleged to have been committed at age 16 or 17 will originate under criminal jurisdiction. This means that the juveniles involved in these cases will be processed as defendants in criminal proceedings and not under the procedure for initiating a juvenile delinquency proceeding. At first blush, it may seem that this change will bring local procedure back to what it was before most offenses committed at ages 16 and 17 were brought under original juvenile jurisdiction (with the implementation of the Juvenile Justice Reinvestment Act in 2019). However, since 2019, both federal and state law changed in ways that shifted the landscape of arrest processing and confinement of minors. This blog explores these changes and their impact on implementation of S.L. 2024-17.

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Confidential Informants, Motions to Reveal Identity, and Discovery: Part VI, Motions to Suppress and the “Two Officer Rule”

For the final installment of this series on confidential informants, motions to reveal identity, and discovery, we will look at a unique statute in North Carolina concerning when the identity of a confidential informant (CI) must be revealed: G.S. 15A-978(b). This statute only applies to motions to suppress, rather than trial. Recall back to Part I of this series, which addressed Roviaro v. U.S., 353 U.S. 53 (1957). Roviaro established the basic factors to consider when deciding whether the State must disclose the identity of the CI to the defendant to ensure a fair trial. Another U.S. Supreme Court case decided ten years later, however, McCray v. State of Ill., 386 U.S. 300 (1967), addressed the separate but related question of when the defendant is entitled to learn the CI’s identity to have a fair opportunity to litigate a motion to suppress.

At a motion to suppress, the considerations are somewhat different from trial. The last several posts addressed the question of when testimony from the CI is material in determining whether or not the defendant is guilty. In contrast, the question at the motion to suppress stage is not the guilt or innocence of the defendant. The question in CI cases is usually whether a search or seizure violated the defendant’s Fourth Amendment rights. The issues to be decided may be whether law enforcement had good reason to rely on information provided by the CI, whether law enforcement corroborated the information, or whether the officers are being truthful about their interactions with the CI. G.S. 15A-978(b) addresses a related, but narrow question: can we rely on the officer’s assertion that the CI exists?

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