Shea Denning, Author at North Carolina Criminal Law

State v. Courtney: Retrying the Defendant after Charges Have Been Dismissed

May 16, 2018 Shea Denning

James Courtney was charged with first degree murder in 2009 for shooting and killing James Deberry outside Deberry’s Raleigh apartment. Courtney was tried on those charges in December 2010. The jury deadlocked, and the judge declared a mistrial. Four months later, the State dismissed the murder charges, stating on the dismissal form that it had elected not to retry the case. Four years later, the State changed its mind. After gathering new evidence, it sought and received a 2015 indictment once again charging Courtney with first degree murder for killing Deberry. Courtney moved to dismiss the charges, arguing that the State’s dismissal of the initial murder charges following the mistrial precluded the State from recharging him. Was he right?

Brawley, Belk’s, and Charging Crimes in Modern, Southern Style

May 9, 2018 Shea Denning

Belk Department Stores are the Bloomingdales of North Carolina. If someone says they are going to Belk (or, more often, “Belk’s”), you know that they are heading into town to pick up some modern, southern style (or, more likely, something off the wedding registry). And if you hear that so-and-so stole something from your local Belk’s, you can generally picture the scene of crime, since, outside of the big cities, there is generally just one Belk’s in town. So when the court of appeals held last year that a Rowan County indictment alleging that the defendant stole shirts belonging to “Belk’s Department Stores, an entity capable of owning property,” was invalid because it failed to adequately identify the victim of the larceny, it may have left some people in Salisbury (where there is only one Belk’s) scratching their heads.

The state supreme court recently reversed that determination in a per curiam opinion that rejected this kind of technical pleading requirement for larceny of personal property.

State v. Eldred: Court of Appeals Evaluates Sufficiency of Circumstantial Evidence of DWI

May 2, 2018 Shea Denning

Consider whether the following facts are sufficient to support a conviction for DWI:

The scene. Law enforcement officers in Avery County respond to a reported accident on the highway leading to Grandfather Mountain around 8:30 p.m. They find a Jeep Cherokee on the side of the highway, with a damaged side panel. Tire impressions indicate that the vehicle traveled about 100 feet after leaving the roadway. A large rock embankment along the roadway is scuffed. No one is in the car, which is registered to Paul Eldred.

The defendant. A law enforcement officer finds Eldred walking along the side of the highway two or three miles north of the accident. Eldred has a mark on his forehead, is twitching, and is unsteady on his feet. The officer asks Eldred why he is walking on the highway. Eldred responds: “I don’t know, I’m too smoked up on meth.” The officer calls for medical help, and Eldred is taken to the hospital.

The interview. Another officer questions Eldred at the hospital around 10 p.m. Eldred explains that he was driving his car when it ran out of gas. He then says “‘he was hurt bad and was involved in a wreck a couple of hours ago.’” Eldred tells the officer that he had not been drinking alcohol. The officer asks whether Eldred has taken any medications, and Eldred says he is “on meth.” During the interview, Eldred is twitching, appears dazed and has difficulty answering questions. He does not know the date, the day of the week, or the time.

When May the District Attorney be Taken Off the Case?

May 9, 2023April 25, 2018 Shea Denning

North Carolina is divided into 44 prosecutorial districts. Each is headed by an elected district attorney or, the case of a mid-term vacancy, a district attorney appointed by the governor. District attorneys are constitutionally and statutorily charged with prosecuting criminal actions in their districts. Each district attorney employs a number of assistant district attorneys who assist in carrying out this work. A district attorney may even, as Jonathan discussed in this earlier post, employ a private attorney to assist with prosecution.

When a district attorney identifies a conflict of interest associated with his or her prosecution of a case, the district attorney may seek assistance with the prosecution from another prosecutorial district, the Attorney General’s Special Prosecution Division, the Administrative Office of the Courts, or the Conference of District Attorneys.

Sometimes, however, the district attorney decides to proceed with prosecuting a case notwithstanding a defendant’s insistence that a conflict of interest exists. When that occurs, the defendant may ask the court to remove the prosecutor from the case. May the court do so? If so, what standard governs the court’s determination of whether the prosecutor is disqualified from the case?

State v. Fincher: No Foundation Required for DRE Testimony

April 18, 2018 Shea Denning

The court of appeals held yesterday in State v. Fincher, ___ N.C. App. ___, ___ S.E.2d ____ (2018), that the trial court did not abuse its discretion when it permitted a drug recognition expert to testify in a DWI trial that the defendant was under the influence of a central nervous system depressant. The defendant argued that the State failed to lay a sufficient foundation to establish the reliability of the drug recognition examination, but the court determined that no such foundation was required as the General Assembly had legislatively sanctioned the admission of this type of evidence under Rule 702(a1)(2).

Is Your Neighborhood’s 17 MPH Speed Limit Enforceable?

April 4, 2018 Shea Denning

I was out for a run the other day when I saw signs posted on a private pathway advising me not to exceed 7.5 miles per hour since children were playing. Sadly for my split times (but happily for the children at play), I was in no danger of exceeding this limit. Those signs reminded me, however, of a question that I’m asked from time to time: Are the speed limits posted on private subdivision streets enforceable?

Field Trip to Community Corrections

March 21, 2018 Shea Denning

This morning Jamie Markham and I loaded a passenger van with a group of district court judges who had come to the SOG for a week-long orientation course. We hauled them (through the snow) over to the offices of Community Corrections on Yonkers Road in Raleigh. Jamie lectured while I drove.

We took the judges over to probation headquarters so that in addition to learning about the law of probation from the expert (Jamie, obvi), they could meet, hear from, and question the people who set, write, and administer probation policy and who supervise probationers. The experience was amazing.

Could Gun Violence Restraining Orders Prevent Another Parkland?

March 14, 2018 Shea Denning

One month ago today, a gunman who police say was armed with an AR-15 rifle walked into Marjory Stoneman Douglas High School in Parkland, Florida and opened fire, killing 17 people. Today, in schools across the country, including many in North Carolina, students plan to recognize the Parkland victims by walking out of class for 17 minutes. Some participants also plan use the walkout as a platform to advocate for stricter gun control. Debate over the appropriate legislative response to this tragedy has raged—and ranged—over the past several weeks. Some have called for arming teachers. Others have advocated for barring a person under 21 from purchasing an assault rifle. And last week, an op-ed in the Washington Post advocated a relatively new variety of weapons restriction: Gun violence restraining orders.

Is Necessity a Defense to DWI?

March 7, 2018 Shea Denning

After a bad break-up, Dan drives to a local bar, where he begins drinking. He hasn’t planned in advance how he is going to get home. If he drinks too much to drive, he thinks, he will summon a ride on his smart phone. Dan is on his seventh drink in two hours when a man storms through the front door of the bar, waving an assault rifle and threatening to shoot up the place. Dan bolts for the nearest exit, jumps in his car, and drives away. Less than a half-mile away from the bar, Dan runs through a red light and is stopped by a law enforcement officer. Dan is subsequently charged with driving while impaired. At trial, he asks the judge to instruct the jury on the defense of necessity. Is Dan entitled to that instruction?