blankShea Denning

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New Publication on Driver’s License Revocations, Restorations and Privileges

I am thrilled to announce the availability of a new publication, Driver’s License Revocations, Restorations, and Limited Driving Privileges in North Carolina. This is the first School of Government publication that combines information on triggering events and convictions that lead to the revocation of a person’s North Carolina driver’s license, how and when driving privileges may … Read more

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2024 Changes to Laws Governing Limited Driving Privileges and Requiring Ignition Interlock

In July, the General Assembly enacted S.L. 2024-43 (H 25), legislation that makes three significant changes to the laws governing driving by person following a conviction for driving while impaired (DWI) and certain related offenses.

First, the act expands the categories of defendants who may receive a limited driving privilege following a DWI conviction. Second, it broadens the categories of defendants who must install an ignition interlock device (IID) as a condition of having their driver’s licenses restored following revocation for DWI-related convictions. Third, it extends revocation periods and IID restriction periods when an IID violation is committed during the last 90 days of the period.

The changes applicable to limited driving privileges are effective for limited driving privileges issued on or after December 1, 2024. The changes applicable to IID restrictions on restored licenses are effective for driver’s licenses that are revoked on or after December 1, 2024.

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Welcome, Belal Elrahal!

I am pleased to announce that Belal Elrahal joined our faculty earlier this month. Belal is working in the field of criminal law and procedure and will specialize in impaired driving and motor vehicle law. Belal joins our colleague Melanie Crenshaw as co-faculty lead for the School of Government’s work with the state’s nearly 700 … Read more

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News Roundup

The biggest news story of the week is a gunman’s attempt to assassinate former president and current presidential candidate Donald Trump during a campaign rally in Butler, Pennsylvania on Saturday. The gunman, identified as 20-year-old Thomas Matthew Crooks, fired eight rounds from a semiautomatic AR-style rifle in Trump’s direction. Trump was struck in the ear, rally attendee Corey Comperatore was killed, and two other men were critically wounded in the attack. The New York Times analyzed video, audio, and photographs of the event and created this narrative video timeline. The Times video ends with this question: Why was the former president allowed to remain on stage when the threat emerged minutes before shots rang out?

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Fearrington v. City of Greenville:  North Carolina Supreme Court Reverses Court of Appeals and Upholds City’s Red Light Camera Enforcement Program as Constitutional

Two men fined in 2018 for failing to stop at red light camera locations in Greenville, NC filed declaratory judgment actions arguing that the program violated the Fines and Forfeitures Clause of the North Carolina Constitution because the local school board received less than the clear proceeds of the civil penalties the city collected. The Court of Appeals in Fearrington v. City of Greenville, 282 N.C. App. 218 (2022) (discussed here), agreed, concluding that the funding framework violated the state constitution. The North Carolina Supreme Court granted discretionary review and, in an opinion issued on May 23, 2024, reversed the court of appeals ruling on the constitutional issue. Fearrington v. City of Greenville, ___ N.C. ___, 900 S.E.2d 851 (2024).

This post will discuss red light camera programs, their relationship to the Fines and Forfeiture Clause, and the Supreme Court’s decision in Fearrington.

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NC Supreme Court Holds that Media Entities May Seek Access to Law Enforcement Recordings by Filing a Petition

In March 2021, several news organizations filed a petition in Alamance County Superior Court seeking the release of law enforcement recordings of an “I Am Change” march that took place in Graham, North Carolina in October 2020. Marchers and law enforcement had clashed, and several people were arrested. The superior court held a hearing and ultimately ordered all of the requested recordings released without redaction.

After assessing the eight statutory considerations, the superior court explained that even though the release of the recordings would reveal highly sensitive and personal information that could harm a person’s reputation or safety, it did “not have the authority to [c]ensor this information absent a legitimate or compelling [] state interest to do so.”  In re The McClatchy Co., No. 29A23, ___ N.C. ___ (May 23, 2024). The court noted that it gave “great weight to transparency and public accountability with regard to police action” and that failure to release the information could “undermine the public interest and confidence in the administration of justice.” Id. The Graham Police Department (GPD) appealed.

The Court of Appeals, over a dissent, vacated the release order and remanded for additional findings of fact. The petitioners appealed. On appeal, the GPD argued that the trial court lacked subject matter jurisdiction over the petition because the media companies were required to file a civil action rather than a petition. See In re Custodial L. Enf’t Agency Recording, 288 N.C. App. 306, 311 (2023) (so holding).

The North Carolina Supreme Court, in an opinion authored by Justice Allen, rejected GPD’s contention that the trial court lacked subject matter jurisdiction because the petitioners filed a petition instead of a complaint. The Court then proceeded to hold that the trial court misunderstood the scope of its authority in ordering release, explaining that a trial court granting such release may place any conditions or restrictions on the release that it deems appropriate.

This post will review G.S. 132-1.4A, the North Carolina Supreme Court’s opinion in In re The McClatchy Co., ___ N.C. ___ (May 2024) [hereinafter McClatchy], and will consider McClatchy’s import for those seeking and considering release.

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News Roundup

Three years ago, the North Carolina Supreme Court in State v. Corbett, 2021-NCSC-18, ___ N.C. ___, 855 S.E.2d 228, 252 (2021), affirmed the court of appeals’ reversal of the defendants’ convictions for second degree murder. The case garnered national and international attention. The victim, Jason Corbett, was a citizen of Ireland, who had relocated to Davidson County, North Carolina, in 2011 following the 2006 death of his first wife, who was the mother of his two children. Jason moved to North Carolina with his two children and his then-romantic partner, Molly Martens, who had been his children’s au pair in Ireland. Jason and Molly married later that year.

Molly’s parents, Thomas and Sharon Martens, who lived in Tennessee, visited the Corbett home on August 1, 2015. Thomas, a retired FBI agent and former attorney, testified that he awoke to the sounds of a struggle in the middle of the night and discovered Jason choking Molly. Thomas said he attempted to stop Jason by hitting him with an aluminum baseball bat. Molly also hit Jason with a brick paver. Jason’s skull was fractured from multiple blows, and he died at the scene. Both Thomas and Molly were charged with murder. The North Carolina Supreme Court determined that the trial court erred by (1) excluding hearsay statements from the children that their father was abusive toward Molly and that their father had become angry that evening upon his daughter awakening him, and (2) by excluding testimony from Thomas that he heard Molly yell “don’t hurt my dad” during the altercation.

Molly and Thomas were released from prison on Thursday: Molly from the the North Carolina Correctional Institution for Women in Raleigh and Thomas from the Caldwell Correctional Center in Lenoir. Following the state supreme court’s decision, each entered pleas to voluntary manslaughter and served about seven more months behind bars.

Keep reading for more criminal law news.

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When May the State Use Evidence of a Defendant’s Silence Before Trial?

A couple of weeks ago, I wrote about the prohibition against the State commenting on a defendant’s failure to testify, or, in other words, a defendant’s silence at trial. Such comments are disallowed as they abridge a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence. This post addresses a related issue:  When and how may the State in a criminal trial use evidence of a defendant’s silence before trial to establish a defendant’s guilt or impeach a defendant’s credibility? (This is not the first time we have written about this topic on the blog. Jessie Smith did so here in 2012; nevertheless, a few relevant cases have been decided since then, and I thought it would be helpful to revisit the issue.)

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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.

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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).

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