The North Carolina Task Force for Racial Equity in Criminal Justice recommended in a 2020 report that state and local law enforcement agencies enact policies requiring officers to intervene in and report about circumstances in which a law enforcement officer witnesses excessive use of force or abuse of a suspect or arrestee. The North Carolina Sheriff’s Association similarly recommended in a 2020 report that all law enforcement agencies and the North Carolina Law Enforcement Accreditation Program adopt a policy requiring an officer to intervene when necessary to prevent another officer from using excessive force and to report any such intervention. This session, the General Assembly imposed such duties as a matter of state law rather than agency policy. This post will discuss current statutory law governing officer’s use of force and recent amendments enacted by S.L. 2021-137 (H 536) and S.L. 2021-138 (S 300).
Shea Denning
Prosecutors Beware: State v. Newborn Provides a Word of Caution for Felon In Possession Indictments
Author’s Note: The opinion discussed below was reversed by the North Carolina Supreme Court in State v. Newborn, 330PA21, ___ N.C. ___ (June 16, 2023). The North Carolina Supreme Court’s opinion is discussed here.
The first sentence of State v. Newborn, ___ N.C. App. ___, 2021-NCCOA-426 (Aug. 17, 2021) sums up the issue: “When the charge of possession of a firearm by a felon is brought in an indictment containing other related offenses, the indictment for that charge is rendered fatally defective and invalid, thereby depriving a trial court of jurisdiction over it.”
Even after I read it that straightforward statement, I questioned my understanding. This rule struck me as inconsistent with recent caselaw holding that the violation of statutory pleading rules for prior convictions does not deprive the trial court of jurisdiction. See State v. Brice, 370 N.C. 244 (2017). But (ipso facto) that is the rule for felon in possession indictments, which prosecutors ignore at the case’s peril.
An Update on Caitlyn’s Courage DV Prevention Pilot
Last year, the General Assembly appropriated $3.5 million from federal Coronavirus Aid, Relief, and Economic Security (CARES) Act funding to the Department of Public Safety to be used as a grant for Caitlyn’s Courage, Inc. See S.L. 2020-80 as modified by S.L. 2020-78. The non-profit was to use the funds to conduct pilot programs in at least nine judicial districts through which it would provide GPS electronic monitoring devices to be used as a condition of pretrial release for defendants charged with crimes related to stalking, sexual assault, domestic abuse, and violations of a domestic violence protective order. The legislation directed Caitlyn’s Courage to report back to the General Assembly on the effectiveness of the programs and on recommendations for expansion. This post discusses the Caitlyn’s Courage programs, reviews highlights from its April 2021 report to the legislature (“the Report”), and cites a legislative proposal to allocate substantially more funding to expand this type of programming statewide.
Replacing a Juror After Deliberations Begin
Suppose a juror falls ill during the second day of deliberations following a two-week trial and is unable to continue her service. What are the trial court’s options?
A. Replace the juror with an alternate juror.
B. Declare a mistrial.
C. Either A or B, in the trial court’s discretion.
2021 Legislation Amends Rules for Modified Utility Vehicles
Last year, I wrote about new legislation defining and regulating modified utility vehicles. The legislature returned to that subject again this year in S.L. 2021-33 (S 241), amending that definition and modifying the rules governing the use of such vehicles.
The Judicial Standards Commission and Judicial Discipline
Judgeships in North Carolina’s trial and appellate courts are elected offices. Thus, it often is said that the ballot box is the mechanism for holding the state’s judicial officials accountable. There is, however, another way in which judges may be held to account for misconduct: through disciplinary proceedings initiated by the Judicial Standards Commission. Those proceedings led to the North Carolina’s Supreme Court’s imposition of public discipline for three judges in 2020 and two more judges in 2021. The Judicial Standards Commission’s recently released annual report describes the nature of its work, its composition, and its increasing workload.
Warrantless Home Entry After Lange v. California
A few weeks ago the United States Supreme Court decided Lange v. California, 594 U.S. ___, ___ S. Ct. ___ (June 23, 2021), holding that the flight of a person suspected of a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home. Today’s post reviews how Lange fits into the landscape of Fourth Amendment cases establishing when an officer may forcibly enter a suspect’s home without a warrant.
Applying the Statute of Limitations to Failure to Appear for an Implied Consent Offense
Nearly 15 years ago, the General Assembly created the misdemeanor offense of failing to appear for two years for an implied consent offense. See S.L. 2006-253 (enacting new G.S. 20-28(a3), effective for offenses committed on or after December 1, 2006). The new provision was proposed by the Governor’s Task Force on Driving While Impaired in order to impose special sanctions for a person who fails to appear in court for this particular kind of motor vehicle offense. Those sanctions include driver’s license revocation for a person convicted of a violation of G.S. 20-28(a3)(2).
In the early years after the statute was enacted, there were many questions about which offenses it applied to. Offenses charged before December 1, 2004 for which the person had already failed to appear for two years before the statute’s effective date? Arguably not, for ex post facto reasons, as Jeff opined here. What about offenses charged a bit later for which the defendant already had failed to appear before December 1, 2006? Perhaps not, given the presumption of prospective application, as I wrote here. More recently questions have arisen about how to calculate the two-year statute of limitations for such an offense. Suppose, for example, a defendant was charged with DWI on January 1, 2017. The defendant failed to appear in court. On June 2, 2021, the State charged the defendant with failure to appear for two years after being charged with an implied consent offense. Does the two-year statute of limitations in G.S. 15-1 bar the prosecution?
Case Summaries — United States Supreme Court (June 23, 2021)
This post summarizes the United States Supreme Court’s decision in Lange v. California, 594 U.S. ___, ___ S. Ct. ___ (June 23, 2021). This summary will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
With Enactment of SB 255, COVID-19 Emergency Directives Come to an End
Earlier today, Chief Justice Paul Newby rescinded the two remaining COVID-19 Emergency Directives. The Chief Justice determined that the enactment of S.L. 2021-47 (Senate Bill 255) on Friday rendered unnecessary Emergency Directive 3, which authorized judicial officials to conduct proceedings that include remote audio and video transmissions and Emergency Directive 5, which permitted verification of pleadings and other documents by affirmation of the subscriber.