The court of appeals decided State v. Shelton, ___ N.C. App. ___ (2019) yesterday, determining that the evidence of the defendant’s impairment was sufficient when he took impairing drugs hours before crashing his vehicle into a pedestrian after his brakes failed. Two aspects of the case are of particular interest: (1) the court’s evaluation of the sufficiency of the evidence in a case where no one opined that the defendant was impaired; and (2) how the State obtained evidence that drugs remained in the defendant’s system in the first place.
Shea Denning
U.S. Supreme Court Grants Review on Issue of Implied Consent
The United States Supreme Court granted certiorari a few weeks ago to consider whether a state statute authorizing the withdrawal of blood from an unconscious driver suspected of impaired driving provides an exception to the Fourth Amendment warrant requirement. The case, Mitchell v. Wisconsin, arose in Wisconsin, but the issue may sound familiar to practitioners in North Carolina. Our state supreme court held in State v. Romano, 369 N.C. 678 (2017) (discussed here) that the warrantless withdrawal of blood from an unconscious DWI suspect pursuant to state statute when there was no exigency violated the Fourth Amendment. The Supreme Court of Wisconsin reached a different conclusion in Mitchell. The case provides the United States Supreme Court with an opportunity to tie up the ends it left loose in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160 (2016) by clarifying how implied consent laws authorizing blood draws without a suspect’s consent do or do not comport with the Fourth Amendment.
What May an Officer Do When a Suspect Runs Onto the Scene of a Search?
When law enforcement officers execute a search warrant authorizing the search of a private residence, they may detain, while the search is carried out, any occupant they discover on the premises. Michigan v. Summers, 452 U.S. 692 (1981). Officers do not need individualized suspicion that such a person is engaged in criminal activity justify his or her detention. The person’s mere presence on the premises subject to the search is sufficient to justify the seizure under this categorical rule. Muehler v. Mena, 544 U.S. 93 (2005).
If a person leaves the immediate vicinity of the premises just before officers execute the warrant, the person may not be detained based on the search warrant alone. Instead, any such detention must be supported by reasonable suspicion that criminal activity is afoot. Bailey v. United States, 568 U.S. 186 (2013).
But what about a person who approaches a house while a warrant is being executed? Is that person an occupant who may be detained without particularized suspicion? The North Carolina Supreme Court recently considered that question in State v. Wilson, ___ N.C. ___, 821 S.E.2d 811 (2018).
May a Presentment and Indictment be Issued the Same Day?
A few short years ago, a criminal law practitioner could be forgiven for not knowing what a presentment was—much less how it might properly be utilized. Presentments rarely preceded indictments before 2016. But after the court of appeals held in State v. Turner, ___ N.C. App. ___, 793 S.E.2d 287, 290 (2016), reversed, ___ N.C. ___, 817 S.E.2d 173 (2018), that citations and magistrate’s orders did not toll the two-year statute of limitations for misdemeanors, presentments in impaired driving cases proliferated. By obtaining a presentment from a grand jury, followed by an indictment, the State could ensure the statute of limitations was tolled. That, in turn, eliminated any requirement that the charges be resolved by trial or plea within two years of the date of the alleged offense. Though Turner was reversed by the state supreme court in 2018, the rising use of presentments following the court of appeals’ decision led to increased scrutiny of the procedure.
Some questioned whether a so-called presentment drafted by a district attorney and presented to a grand jury simultaneously with an indictment really was a presentment within the meaning of the state constitution and the criminal procedure act. Last December, the court of appeals in State v. Baker, ___ N.C. App. ___ (2018), considered this argument and weighed in on the proper use of presentments.
The Duties and Discretionary Power of District Attorneys
Jonathan wrote last month about reform-minded sheriffs in North Carolina and the actions they can and cannot take with respect to enforcement of federal immigration laws. Reform-minded prosecutors also have been in the news of late. Prosecutors in St. Louis and Kansas City announced last year their plans not to prosecute marijuana possession cases, subject to certain exceptions. Boston’s newly elected district attorney, Rachel Rollins, campaigned on a promise to decline to prosecute fifteen enumerated charges, including shoplifting, larceny under $250, trespassing, and stand-alone resisting arrest charges, absent exceptional circumstances. Closer to home, new Durham district attorney Satana Deberry has said that she does not want her office to prosecute misdemeanors or low-level felonies that originate in schools. The national discussion about these and other suggested reforms has included debate about the extent of district attorneys’ discretion to determine which cases will be prosecuted in their districts. Just what are the duties of a district attorney in North Carolina? And how much discretion may a district attorney exercise in carrying out those duties?
An Appreciation of the Many Roles and Responsibilities of a District Court Judge
In December, the School of Government held the first week of orientation for new district court judges. The class included thirty-one new judges. Most of the judges took the bench January 1, though a handful were sworn in last year to fill vacancies by gubernatorial appointment. One of the challenges in creating an orientation program … Read more
What Happens When the Jury Is Instructed on the Wrong Theory?
Suppose the trial court, over the defendant’s objection, instructs the jury on a theory of a crime that is not supported by the evidence. Is the defendant entitled to automatic reversal on appeal? Or, alternatively, must the appellate court evaluate whether the erroneous instruction prejudiced the defendant? The North Carolina Supreme Court answered these questions in State v. Malachi, ___ N.C. ___ (2018), published last Friday, and applied its answer in State v. Fowler, ___ N.C. ___ (2018), decided the same day.
New Districts and District Attorneys in 2019
2019 won’t be the only new number you’ll need to adjust to come January 1. On that date, most of North Carolina’s prosecutorial districts also will have new numbers. Several of them will also have newly elected district attorneys.
New Crime Covers Threats of Mass Violence at School
Schools across the country experienced a “dramatic uptick” in threats of school-related violence following the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida in February 2018. One set of researchers reported that in the thirty days after the Parkland shooting, threats and incidents of violence in schools nationally increased by more than 300 percent–from an average of 13.2 threats and incidents per day to 59.4 per day. The national trend played out in North Carolina as well, with schools in several North Carolina counties responding to several reported threats of violence in the weeks following the Parkland massacre. When such threats were made, it wasn’t always clear whether they amounted to a crime. The actions often were a poor fit for the two most obvious candidates: communicating threats (because the threat was not always communicated to the person threatened) and making a false report concerning mass violence on educational property (because it wasn’t always clear that the person who made the threat had made a report that the person knew to be false).
The General Assembly responded last June to this gap in the criminal code by enacting a new crime, communicating a threat of mass violence on educational property, effective for offenses committed on or after December 1, 2018.
Citation for Open Container Violation that Omitted Elements Was Sufficient to Confer Jurisdiction
The North Carolina Supreme Court decided State v. Jones, ___ N.C. ___ (2018) on Friday, affirming the court of appeals’ determination that the citation that charged the defendant with transporting an open container of alcoholic beverage, but left out several elements, was legally sufficient to invoke the trial court’s subject matter jurisdiction.