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News Roundup

Raleigh is ending its red-light camera program after two decades of operation. The News and Observer has the story here. Red-light camera programs across North Carolina have steadily folded following court rulings that their funding model (in which the camera vendor is paid more than 10 percent of the net proceeds of fines) runs afoul of the fines and forfeiture clause of the state constitution.

Of course, the city still wants people to stop at red lights. Last year, it installed reflective backplates, a border on traffic signals to make them stand out, at red-light-camera-intersection signals.

Keep reading for more local, national, and international criminal and court-related news.

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Court of Appeals Holds that State Constitution Prohibits Substitution of Alternate Jurors After Deliberations Begin

When a deliberating juror in Eric Chambers’ April 2022 murder trial told the presiding judge that he could not be available in court the next day because of a medical appointment, the trial judge discharged the juror, substituted an alternate juror, and instructed the jury to restart its deliberations. In doing so, the trial judge followed the procedures set forth in G.S. 15A-1215(a) for substituting an alternate juror after deliberations have begun. Chambers, who represented himself at trial, did not object. The reconstituted jury subsequently found Chambers guilty of first-degree murder and a related felony assault, and the judge sentenced Chambers to life in prison.

Chambers failed to properly enter a notice of appeal and subsequently sought certiorari review by the North Carolina Court of Appeals. The Court granted review and reversed Chambers’ conviction based on the substitution of the alternate juror. State v. Chambers, No. COA22-1063, ___ N.C. App. ___ , ___ S.E.2d ___ (2024). The Court held that notwithstanding statutory amendments to G.S. 15A-1215(a) enacted in 2021 to authorize the substitution of alternate jurors after deliberations begin, it was bound by the North Carolina Supreme Court’s holding in State v. Bunning, 346 N.C. 253 (1997), that substitution of an alternate juror in a capital sentencing proceeding after deliberations began was structural error. This post will review the holding in Chambers, the precedent upon which it relied, and the provisions of G.S. 15A-1215(a) that Chambers, if it remains undisturbed, effectively eviscerates.

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State v. C.K.D.: Knoll What?

I have written before about the cache associated with a handful of unpublished opinions from the North Carolina Court of Appeals. Sure, they aren’t binding, but they can be persuasive. My guess is that the Court’s December 2023 opinion in State v. C.K.D.. No. COA23-204, 2023 WL 8748032, ___ N.C. App. ___, 895 S.E.2d 923 (2023) (unpublished), has been used as a persuasive tool in more than a few impaired driving cases since it was decided.

The C.K.D. Court upheld the dismissal of impaired driving charges based on the detention of the defendant for 11 hours following his initial appearance pursuant to an impaired driving hold. The Court determined that (1) there was no clear and convincing evidence that the defendant who had registered a 0.17 alcohol concentration posed a danger, and (2) holding the defendant for 11 hours irreparably prejudiced the defendant’s case by depriving him of the opportunity to have others observe his condition, even though the defendant indicated he did not wish to call anyone to witness his condition in the jail or to assume responsibility for him as a sober, responsible adult. I was a bit surprised by the outcome. I would have thought that the alcohol concentration standing alone would have been sufficient to support the hold. I also would have thought that the defendant’s failure to attempt to contact anyone from jail would have defeated his claim of irreparable prejudice. As noted, I would have been wrong on both counts.

This post will discuss C.K.D., explore how it differs from other court of appeals decisions following Knoll, and consider what the takeaways may be for magistrates imposing such holds.

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Book Review: The Other Dr. Gilmer

It may have something to do with my day-job, but in my free time I generally prefer to read fiction. I made an exception recently for Dr. Benjamin Gilmer’s 2022 nonfiction work, The Other Dr. Gilmer: Two Men, A Murder, and an Unlikely Fight for Justice. I’m glad I did.

The book is a page-turning memoir and legal thriller chock full of North Carolina people and places (Governor Cooper even has a cameo). It also is an indictment of how American society treats (or leaves untreated) the mentally ill, particularly those who are imprisoned.

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News Roundup

Jennifer Crumbley was convicted on Tuesday of four counts of involuntary manslaughter, one count for each student her 15-year-old son Ethan shot and killed at his Michigan High School in November 2021. The pistol Ethan used to kill his classmates was a gift from his parents. The New York Times described the trial, in which the State focused on warning signs they said Ms. Crumbley ignored, as a “significant test case” for prosecutors. While parents whose children have carried out gun violence have pled guilty to less serious charges in other state cases, Ms. Crumbley faces a maximum sentence of 15 years in prison for the four counts of which she was convicted.

Ms. Crumbley’s husband and Ethan’s father, James Crumbley, will be tried in March. Ethan Crumbley previously pled guilty to multiple charges, including first degree murder, and is serving a life sentence without the possibility of parole. He did not testify at his mother’s trial.

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State v. Forney: Chewing Gum, Breath Tests, and Prejudice

In impaired driving cases, the results of a breath test of the defendant are admissible at trial when the testing is performed in accordance with statutory requirements and applicable administrative regulations. G.S. 20-139.1(b). When the testing is not carried out as required, however, the results are inadmissible. See State v. Davis, 208 N.C. App. 26, 34 (2010).

Among the testing requirements is that the law enforcement officer carrying out the test observe the defendant to determine that he or she “has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” See 10A NCAC 41B .0101(6) (defining “observation period” and specifying further that “[d]ental devices or oral jewelry need not be removed”); 10A NCAC 41B .0322 (requiring that observation periods be met before breath test is conducted). The purpose of the observation period is to ensure that the test results reflect the concentration of alcohol in a sample of the person’s deep lung breath rather than an alcohol concentration based on alcohol in the person’s mouth.

Last week, the Court of Appeals in State v. Forney, ___ N.C. App. ___, ___ S.E.2d ____ (January 16, 2024), considered whether tests results from a defendant who had chewing gum in his mouth during the observation period were admissible under G.S. 20-139.1(b).

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State v. Woolard: DWI, Probable Cause, and Motions Procedures

Because the State’s ability to prove impairment in prosecutions for driving while impaired often turns on whether the officer had probable cause to arrest — and thereafter test — the defendant, probable cause to make a warrantless arrest is a frequently litigated issue in DWI cases. While for many years there was a dearth of case law exploring the hard calls in this area, that trend has changed. In several arguably close cases over the past decade, the appellate courts have considered whether impaired driving arrests by law enforcement officers were supported by probable cause. See State v. Parisi, 372 N.C. 639 (2019) (driver’s admission to drinking, his red and glassy eyes, his odor of alcohol, and multiple indicators of impairment on field sobriety tests established probable cause; affirming court of appeals’ opinion reversing trial court); State v. Lindsey, 249 N.C. App. 516 (2016) (odor of alcohol on driver’s breath, red and glassy eyes, admission to drinking, and five clues of impairment from horizontal gaze nystagmus test provided probable cause; affirming trial court order denying motion to suppress); State v. Overocker, 236 N.C. App. 423 (2014) (light odor of alcohol and consumption of three alcoholic drinks in four-hour period were insufficient to establish probable cause; affirming trial court order granting motion to suppress); and State v. Townsend, 236 N.C. App. 456 (2014) (driver’s odor of alcohol, positive results on portable breath test, bloodshot eyes, and signs of impairment while performing field sobriety tests established probable cause; affirming trial court’s denial of motion to suppress).

Last December, the North Carolina Supreme Court added to that list with its opinion in State v. Woolard, ___ N.C. ___, 894 S.E.2d 717 (2023) reversing, upon certiorari review, the trial court’s determination that an arresting officer lacked probable cause for impaired driving. This post will review Woolard, its holding, and its path to the state’s highest court.

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News Roundup

Criminal law news is seldom cheery. That said, I am particularly saddened to begin the first news roundup of 2024 with a story of a school shooting.

School was set to resume yesterday in Perry, Iowa, following the winter break. But before the opening bell rang at Perry High School on Thursday morning, authorities say 17-year-old Dylan Butler, a student at the school, opened fire, killing a sixth-grader and wounding five others. Law enforcement officials reported that Butler was armed with a pump-action shotgun and a small handgun and that he was found dead inside the school with a self-inflicted gunshot wound.

The Associated Press reports that the shooting “occurred in the backdrop of Iowa’s looming first-in-the-nation presidential caucuses.” GOP candidate Vivek Ramaswamy had a campaign event that was scheduled to occur yesterday morning less than two miles away from Perry High School. He canceled the event to hold a prayer and discussion with area residents.

Continue reading for more criminal law news.

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Annual Report from the Judicial College (2022-2023)

The North Carolina Judicial College was founded in 2005 to expand the education and training the School of Government has provided for judicial branch officials since the 1930s. Through the Judicial College, the School now offers more courses of interest to mid-and later-career officials and provides that training in small group, interactive educational settings.

We highlight some of those courses, the judicial officials who have participated in them, and our award-winning faculty in our latest annual report. We thought you might like to check it out.

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News Roundup

The Supreme Court announced on Monday its adoption of a Code of Conduct setting out the ethics rules and principles that guide the justices. In a statement accompanying the rules, the Court stated that for the most part, the provisions were not new as the Court historically has been governed by “common law ethics rules” derived from a variety of sources. The Court stated that it was adopting the Code to “dispel” the “misunderstanding” that justices regard themselves as unrestricted by ethics rules. Adoption of the ethics rules did not quell the criticism related to recent reports of gifts and benefits bestowed on some justices and critics were quick to point out that the new code lacks an enforcement mechanism. 

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