Back in April 2017, I blogged about State v. Jacobs, ___ N.C. App. ___, 798 S.E.2d 532 (March 12, 2017) here. That post focused on the preservation aspect of the case—the defendant failed to preserve a constitutional challenge to the trial court’s exclusion of evidence in a sexual assault prosecution. The alleged victim, the defendant’s minor daughter, had two sexually-transmitted diseases (“STDs”) that the defendant did not. The defendant wished to present expert testimony about the different test results. The trial court excluded the evidence under Rule 412, the rape shield rule, and the Court of Appeals unanimously affirmed. Because no constitutional challenge to the ruling was made at trial, the Court of Appeals refused to consider the argument that the exclusion of the STD evidence violated the defendant’s right to present a defense. In a 6 to 1 opinion, the N.C. Supreme Court reversed the Court of Appeals on the Rule 412 issue early last month, granting the defendant a new trial. State v. Jacobs, ___ N.C. ___, 811 S.E.2d 579 (April 6, 2018). Today’s post summarizes the Supreme Court decision, which adds a new wrinkle to the application of Rule 412 in rape and sexual offense cases.
Phil Dixon
Shhhh! Whisper Stops and U.S. v. Bowman
I recently summarized a Fourth Circuit traffic stop case arising out of western North Carolina, U.S. v. Bowman, 884 F.3d 200 (4th Cir. 2018). It’s an interesting case in its own right as an application of U.S. v. Rodriguez, 135 S. Ct. 1609 (2015) (holding that extensions of a traffic stop must be supported by reasonable suspicion). In short, the Fourth Circuit reversed the trial court’s denial of the defendant’s motion to suppress, finding that the trooper lacked reasonable suspicion to extend the stop after the traffic stop was completed and vacating the defendant’s drug conviction. There are interesting issues in the case about when a seizure occurs and about whether the defendant consented to the extension of the stop, and readers are encouraged to check out the case, or at least the summary here (you can read all of the Fourth Circuit case updates here).
What caught my eye about it was a footnote in the opinion. Before the state trooper encountered the defendant, the Drug Enforcement Administration (“DEA”) passed along a tip to the local authorities in N.C. that the defendant’s vehicle was suspected of trafficking meth. That tip provided the vehicle’s license plate number and a description (“a red, older model Lexus”). According to the footnote, “The government agrees that the DEA tip should not be considered in any way in our legal analysis.” Slip op. at 3 n.1. Why would that be? After some digging and help from attorneys in the Charlotte Office of Federal Public Defender (thanks again to Ann Hester, Kevin Tate, and Mary Ellen Coleman from that office for talking about the case with me), I was able to determine that this was an instance of a so-called “whisper” stop. Although not exactly a new practice, its application in the digital age raises interesting questions. The tip aspect of the case is not discussed in Bowman beyond the brief mention in the footnote, but the case is a clear sign that the practice is occurring in North Carolina and elsewhere, so I wanted to cover it in today’s post.
State v. McCaster and the Recalcitrant Probationer
Suppose a defendant is convicted of a class I felony and has a prior record level of I. That’s a “C” block on the felony sentencing grid, where only community punishment is authorized. Community punishment can include a range of punishments from a fine only, up to supervised probation, but does not encompass a straight active sentence. The defendant informs the sentencing court that she wants to serve her time in prison. The defendant further explicitly states she will not accept probation and refuses to meet with probation, missing several opportunities to begin the intake process. What options does the trial court have?
Think You Know Drug ID?
A considerable amount of digital ink has been expended on this blog discussing the rules for identifying drugs at trial and related issues, although it has been several years since we covered it. It’s an important and potentially dispositive issue in drug trials. Consider the following fact pattern:
The defendant is charged with possession of methamphetamine. During her arrest and processing, she tells the officer that she has “meth” on her person, which is seized by the officers. At trial, the officer testifies to her statement about the nature of the substance, and the alleged meth is itself introduced at trial. However, no chemical analysis is introduced, nor is there any expert testimony about the substance, and the defendant presents no evidence. At the close of the State’s evidence, the defendant moves to dismiss, arguing that the State failed to provide sufficient proof of the identity of the alleged drugs. Should the motion be allowed? Read on for the answer.
New Practice Guide: Defense Motions and Notices in Superior Court
I’m happy to announce my first indigent defense practice guide, Defense Motions and Notices in Superior Court. As the title implies, it’s a court-ready guide for practitioners about common defense motions in superior court criminal cases at the trial level. While it is primarily written with non-capital felony cases in mind, the information will hopefully be useful to all criminal defense attorneys.
IDS Update with Tom Maher
For today’s post, I conducted a short interview with Tom Maher, the executive director of the Office of Indigent Defense Services (IDS), the statewide agency in North Carolina that oversees the provision of legal representation for indigent defendants in criminal and other cases. We talk about the recent raise in the rates for private assigned counsel doing high-level felony work, the status of public defense funding in North Carolina, and the importance of a robust system of indigent defense generally. Readers may be aware that I served as a private assigned counsel for many years before coming to work at the School of Government, and it’s a topic near and dear to me. Indigent defense is equally important for court actors and citizens of the state, and I hope you find the interview informative. It runs around 13 minutes, with minor edits for the sake of time and clarity. Click here to watch.
Cross-Examination on Pending Charges
Can the defense question a State’s witness about pending charges? May the State question the defendant or defense witnesses on their pending charges? The Rules of Evidence allow impeachment by conviction of a crime under Rule 609, but nothing in the rules speaks to impeachment by evidence of pending charges specifically. The question comes up frequently enough that I wanted to write about it. Read on for the answer.
Is the Court of Appeals Signaling Less Forgiveness with SBM cases?
Maybe so, if two decisions from earlier this month are any indication. They are: State v. Bishop, ___ N.C. App. ___ (Oct. 3, 2017), where the court refused to consider arguments about the reasonableness of satellite-based monitoring (“SBM”) when the issue was not preserved or properly appealed, and State v. Greene, ___N.C. App. ___ (Oct. 3, 2017), where the court refused to remand a SBM hearing when the State failed to present sufficient evidence of the reasonableness of SBM. Before I discuss those cases, some background first.
Misdemeanor Attorneys Come to the SOG
Last week we hosted nearly 30 mostly new attorneys for the Misdemeanor Defender program. The training takes place here every fall, and focuses on preparing attorneys for handling cases at the district court level. If you’d like to know more about our indigent defense education programs, jump to the end of this post to find out about available training materials and future trainings.
State v. Huddy and the Community Caretaking Exception
Huddy, ___N.C. App. ___, 799 S.E.2d 650 (April 18, 2017) was decided earlier this year and reversed the trial court’s denial of a motion to suppress. A unanimous Court of Appeals found that the search of the defendant’s home was not justified under either the knock and talk doctrine or the community caretaking exception to the warrant requirement. The knock and talk portion of the opinion is interesting (indeed, the concurring opinion is devoted solely to that topic) and invalidates the search on those grounds, but I wanted to focus on the community caretaking aspect of the opinion. Jeff previously blogged about the community caretaking exception to the warrant requirement here. Huddy doesn’t answer all of the questions raised in that post about the exception, but the opinion sheds some light on its scope and shows the balancing test for the exception in practice.