Shea Denning, Author at North Carolina Criminal Law

News Roundup

February 9, 2024 Shea Denning

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.

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

January 25, 2024 Shea Denning

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).

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

January 11, 2024 Shea Denning

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.

News Roundup

January 8, 2024January 5, 2024 Shea Denning

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.

Annual Report from the Judicial College (2022-2023)

December 14, 2023 Shea Denning

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.

News Roundup

November 17, 2023 Shea Denning

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.

State v. Julius, the Automobile Exception, and the Exclusionary Rule

November 16, 2023 Shea Denning

Joanna Julius was riding as a passenger in her parents’ car in McDowell County when the person driving the car crashed it into a ditch filled with water. The driver fled the scene. Law enforcement officers responded and searched the car for evidence of the driver’s identity. When they found drugs inside, they arrested Julius and searched her backpack. There, they found more drugs, a pistol, and cash.

Julius was indicted for drug trafficking and related offenses. She moved to suppress the evidence gathered at the scene on the basis that the car was unlawfully searched. The trial court disagreed, and Julius was convicted. She appealed. A divided panel of the Court of Appeals affirmed. Last month, the North Carolina Supreme Court reversed, holding that the search violated the Fourth Amendment. See State v. Julius, ___ N.C. ___, 892 S.E.2d 854 (2023). This post will discuss the court’s analysis of whether the search was lawful and its remanding of the case for consideration of whether the exclusionary rule barred admission of the resulting evidence.

General Assembly Appoints Seven New Special Superior Court Judges

October 30, 2023 Shea Denning

A few weeks ago I wrote about provisions of the 2023 Appropriations Act that affect the judiciary. Among those changes was the creation of ten new special superior court judgeships to be filled by legislative appointment. The General Assembly made seven of those appointments last week. See S.L. 2023-148 (S 761). The list of special superior court judges who are appointed to eight-year terms effective January 1, 2024, follows.

State v. McKoy and Opening the Door

October 27, 2023 Shea Denning

Suppose the defendant is on trial for murder. He argues he shot the victim in self-defense.

The State elicits testimony from the victim’s father that the victim, who lived at home with his parents, was “always a happy guy.” The father states that he does not allow guns in his home and that, to his knowledge, the victim did not have a gun with him on the day he was shot or have a gun at any other time.

Counsel for the defendant then asks the father: After your son died, did you see pictures on his cell phone of him with his friends holding guns?

The State objects. The defendant argues that, while the evidence would otherwise be inadmissible, the State opened the door to its admission.

How should the trial court rule?

New Pattern Jury Instructions Available Along with Updated Online Library

October 12, 2023 Shea Denning

Each year the School of Government publishes new and revised pattern jury instructions for civil, criminal, and motor vehicle negligence cases. Those instructions are created and compiled by the North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions. The 2023 updates are available for free download here. Among this year’s changes are new civil instructions related to breach of fiduciary duty and new and revised criminal instructions for the arson offenses created by S.L. 2022-8 and for the changes to organized retail theft crimes enacted by S.L. 2022-30.

Keep reading to learn about improvements to the School’s online library of pattern jury instructions and about the School’s plan to publish comprehensive, searchable electronic versions of pattern jury instructions in future years.