Attorneys practicing in criminal superior court are likely familiar with the process of giving notice of appeal to the appellate division. Under Rule 4(a) of the North Carolina Rules of Appellate Procedure, a defendant can give notice by either (1) giving oral notice of appeal “at trial,” or (2) by filing a written notice of appeal within 14 days after entry of judgment and serving it on the State. A recent case explains what counts as “at trial” for purposes of giving notice of appeal. Under State v. McLean, COA 23-100, ___ N.C. App. ___ (Aug. 6, 2024), oral notice of appeal is considered made “at trial” and therefore timely as long as it is given within the session of superior court, which is typically one week. “[T]he period of time for Defendant to provide timely notice of appeal at trial commenced following sentencing and ended when the court session adjourned sine die.” McLean Slip op. at 8 (citation omitted) (emphasis in original). Although the defendant in McLean gave oral notice of appeal the morning after the pronouncement of the judgment in his case, the timing of the notice was proper, because the session had not yet ended. This post examines the holding and implications of the McLean decision.
Phil Dixon
News Roundup
The most significant criminal law story this week was the mass shooting at Apalachee High School in Barrow County, Georgia. Tragically, two teachers and two students were killed, and at least nine others were wounded. The people injured are expected to live. The suspect, a 14-year-old student at the school, is in custody facing murder charges. The AP reports that the juvenile was previously interviewed by law enforcement in connection with alleged online threats of a school shooting over a year ago. The juvenile’s father has also been charged with second-degree murder and involuntary manslaughter in connection with the shootings. The story notes that this is the 30th mass killing in the United States in 2024. Read on for more of the latest criminal law news.
Advice for Defenders Handling H & I Felonies in District Court
Shea wrote about changes to the law around the practice of entering low-level felony pleas in district court last fall, here. More and more districts have begun adopting the practice of accepting guilty pleas to class H and I felonies in district court since then. In light of the expansion of the practice across North Carolina, I wanted to remind defenders of the rules and best practices when entering a felony guilty plea in district court. Read on for the details.
Court of Appeals Holds Sight or Odor of Cannabis = Probable Cause
Author’s Note: The Court of Appeals withdrew the decision on which this post is based on August 30, 2024.
The Court of Appeals recently settled an issue that has been unresolved in the state for several years: In light of legal hemp, does the sight or odor of cannabis still provide probable cause to justify a search or arrest? Hemp and marijuana—both varieties of the cannabis plant—are indistinguishable by sight or smell. Since State v. Parker, 277 N.C. App. 531 (2021), the Court of Appeals has wrestled with the issue. Parker and subsequent cases repeatedly declined to decide the question, holding instead that officers had probable cause under the facts of each case based on the officer’s observation of suspected marijuana “plus” additional incriminating circumstances. Some trial courts had sometimes granted motions to suppress when the probable cause was based solely or primarily on the odor or sight of cannabis. See, e.g., State v. Springs, 292 N.C. App. 207 (2024) (reversing the trial court’s grant of motion to suppress). It seems we finally have an answer. According to In Re: J.B.P., No. COA23-269, ___ N.C. App. ___ (Aug. 6, 2024), the sight or smell of cannabis, standing alone, provides an officer with probable cause to believe marijuana may be found, just as it did before the advent of legal hemp. This post discusses the implications of the J.B.P. case and offers thoughts on defending marijuana prosecutions in its wake. Read on for the details.
Smith v. Arizona and Retroactivity
My colleagues have covered the retroactivity rules many times before on the blog but the analysis for determining the retroactivity of new federal rules has changed in the last few years. Considering that and the recent Confrontation Clause rule for substitute analyst testimony announced in Smith v. Arizona, 602 U.S. ___; 144 S.Ct. 1785 (2024) (summarized here), an update is in order. Today’s post reviews the federal retroactivity analysis and examines how it may be applied to Smith. Read on for the details.
News Roundup
The lead criminal law story this week relates to the Illinois deputy charged in connection with the fatal shooting of Sonya Massey in her Springfield, Illinois home on July 6. After the 36-year-old woman called 911 to report a suspicious person nearby, local deputies responded. Once deputies were inside the home, Massey reportedly acted strangely and seemed confused. At one point, she moved a pot of boiling water from the stove to the sink, prompting the officers to back away from her. Massey asked the officers where they were going, and one stated that they were moving away from the water. Massey replied with a religious rebuke. Deputy Grayson responded to this by drawing his pistol, pointing it at her, and threatening to shoot her. The woman apologized, put her hands up, and ducked, but Grayson quickly fired his weapon multiple times, hitting Massey in the head and killing her. When another deputy suggested getting a medical kit to help, Grayson advised that medical assistance was futile. The full incident was captured on body camera. Grayson has been charged with first-degree murder (and other charges) and was fired from the department. Another story reports that Grayson worked for six different law enforcement agencies over the last four years. Read on for more criminal law news.
U.S. Supreme Court Curtails Substitute Analyst Testimony
The U.S. Supreme Court recently decided Smith v. Arizona, 602 U.S. ___; 2024 WL 3074423 (June 21, 2024) (Kagan, J.). The case settled a lingering question in Sixth Amendment Confrontation Clause jurisprudence: Does the Confrontation Clause permit substitute analyst testimony?
Courts have been split on the question, with North Carolina and Arizona among the jurisdictions that have generally allowed this type of expert testimony. Substitute analyst testimony arises when the person who performed forensic testing for use in a criminal trial is not available to testify, and the prosecution uses a substitute expert—one who was not necessarily involved in the testing—to present an independent opinion based on the original analyst’s forensic report. This practice derives from the evidentiary rule that an expert is allowed to rely on otherwise inadmissible information when it is used to form the basis of the expert’s opinion. N.C. R. Evid. 703. The underlying forensic report is treated as non-hearsay, offered only as the basis of the testifying expert’s opinion, not as substantive evidence. Instead, it is the testifying analyst’s independent opinion that is admitted substantively, and the defendant is only entitled to cross-examine the testifying expert (and not the person who performed the testing). This practice does not offend the Confrontation Clause, the argument has gone, because only testimonial hearsay statements are covered by the Confrontation Clause. Since the underlying forensic report is not offered for its truth when used as the basis of opinion, it is not hearsay and does not implicate the Confrontation Clause. State v. Ortiz-Zape, 367 N.C. 1 (2013)
Not so, according to the U.S. Supreme Court. “Today, we reject that view. When an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” Smith Slip op. at 1-2. Smith thus overrules Ortiz-Zape and its progeny on this question, and represents a significant shift in state law. (If this topic sounds familiar, I wrote a blog post last year previewing the Smith case.) Today’s post examines the impact and reach of Smith in North Carolina and offers advice for defenders facing substitute analyst issues. Read on for the details.