My colleague Joe Hyde blogged last week about the Court of Appeals’ determination in State v. Tate, __ N.C. App. ___ (June 18, 2025), that the trial court did not err when it instructed the jury on a theory that was not alleged in the indictment. I’m returning to Tate this week to discuss another aspect of the Court’s holding, namely its determination that the defendant’s confrontation clause rights were not violated when an expert from the State Crime Lab testified to an opinion that was based in part on DNA test results generated by private third-party laboratory. This post will unpack the court’s analysis of that issue and will consider what it might mean for testimony by substitute analysts more generally.
Procedure
May a Sheriff or a Deputy Enforce a Municipal Ordinance?
Municipal police have many duties, sometimes including enforcing municipal ordinances. Municipalities without their own police departments typically rely on the county sheriff to provide law enforcement services. The sheriff certainly has territorial jurisdiction to enforce state laws within city limits. But may the sheriff and his or her deputies also enforce municipal ordinances?
Variations on State v. Singleton: Surplus Theory in State v. Tate.
After State v. Singleton, 386 N.C. 183 (2024), an indictment is not rendered facially invalid by failure to allege all the elements of a crime. One issue that remains unresolved is the consequence of failure to allege the State’s theory. Two post-Singleton cases decided last year found reversible error when the trial court instructed the jury on a theory not alleged in the indictment. See State v. Wilson, 910 S.E.2d 407 (N.C. Ct. App. Dec. 31, 2024); State v. Little, 296 N.C. App. 424 (2024). More recently, in State v. Tate, No. COA24-450 (N.C. Ct. App. June 18, 2025), the Court of Appeals cited Singleton in support of its conclusion that the trial court did not err by instructing the jury on a theory that was not alleged in the indictment. This post examines the opinion in Tate.
Grand Jurors, Impartiality, and Disqualification
In North Carolina, a person must be indicted by a grand jury or must waive the right to indictment before he or she may prosecuted in superior court for a felony offense. N.C. Const. Art. 1, § 22. The right to a grand jury determination of whether a person must stand trial for a felony has been characterized as “one of the greatest safeguards of the freedom of the citizen.” State v. Barker, 107 N.C. 913, 919 (1890)
Grand juries consist of 18 members who typically serve 12-month terms, with nine grand jurors rotating off the grand jury every six months. At least 12 grand jurors must be present for the grand jury to lawfully conduct its business.
In contrast to the time-consuming voir dire associated with the selection of petit jurors for individual criminal trials, selection of grand jurors is a relatively brief process. The superior court judge presiding over the first session of criminal superior court after each January 1 and July 1 reviews questionnaires completed by grand jurors to determine whether those jurors randomly selected from the pool of summoned jurors meet the qualifications set forth in G.S. 9-3. G.S. 15A-622(b). The judge then considers hardship excuses related to the person’s inability to carry out the service of a grand juror. The judge does not inquire into potential grand jurors’ experiences, predilections, or knowledge of those involved in the case – issues frequently explored during the selection of trial jurors. Because the matters to be presented to the grand jury are not pre-determined, it is not possible to suss out a juror’s possible connection to or knowledge of those matters in advance of grand juror’s selection.
After impaneling the grand jury, the presiding judge appoints one of the grand jurors as its foreperson. G.S. 15A-622(e). In selecting that person, the judge may consider qualities reasonably related to that leadership role such as a grand juror’s education, work experience, ability to follow instructions, and prior grand jury experience. See State v. Cofield, 324 N.C. 452, 459 (1989). The foreperson presides over grand jury hearings and may excuse individual grand jurors from attending particular sessions. See G.S. 15A-622(d); 15A-623(b).
Once the grand jury is impaneled and the foreperson selected, its work is done in secret. See G.S. 15A-623(e). Only the grand jurors may be present in the grand jury room during deliberations and voting. G.S. 15A-623(d).
So what happens when a grand juror turns out to have a connection with a witness or potential defendant or independent knowledge related to the crime alleged in a bill of indictment?
Accomplices in Error: Improper Argument in State v. Meadows
The defendant in State v. Meadows, No. COA24-149 (N.C. Ct. App. May 7, 2025), was convicted of murder based on evidence that he and two other men broke into the victim’s home and shot the victim to death. Despite evidence that the defendant was not alone, the trial court refused to instruct on acting in concert. During closing argument, however, the prosecutor told the jury that the State need not prove the defendant “actually fired the shot that actually killed the victim. If he committed one act that contributed to the victim’s death, he is just as guilty as everybody else.” This argument, the Court of Appeals said, was improper. This post examines the opinion in Meadows.
State v. Chambers and the Substitution and Discharging of Alternate Jurors Pursuant to G.S. 15A-1215(a)
Criminal law practitioners may recall that in 2021 the General Assembly amended G.S. 15A-1215(a) to permit the substitution of an alternate juror after deliberations have begun in a criminal trial. S.L. 2021-94. When those changes became effective for jurors selected on or after October 1, 2021, North Carolina joined the federal courts and several other states that permit this practice.
The practice was, however, challenged within a few years of enactment. And the North Carolina Court of Appeals in State v. Chambers, 292 N.C. App. 459 (2024), held that notwithstanding G.S. 15A-1215(a), the state constitutional requirement for unanimous verdict of twelve jurors in a criminal case prohibited the substitution of an alternate juror after deliberations begin. Two weeks ago, the North Carolina Supreme Court reversed the Court of Appeals, upholding the statute as constitutional. This post will review the Supreme Court’s decision in State v. Chambers, No. 56PA24, ___ N.C. ___ (2025), and consider how trial courts must handle alternate jurors in future trials.
A Guide to Vehicle Seizures: Drugs and Alcohol
Later this summer, we will be publishing a new Administration of Justice Bulletin, The Law of Vehicle Seizure and Forfeiture in North Carolina. It will cover the different circumstances in which law enforcement may seize vehicles and judges may order them forfeited. This post is a preview of two circumstances that will be included in the bulletin. One circumstance is when the vehicle is used as part of an offense related to a controlled substance. Another circumstance is when a vehicle is used to unlawfully transport nontaxpaid alcoholic beverages. Read on for the preview.
Surrender, Return, and Disposal of Firearms in Civil Domestic Violence Cases
North Carolina General Statute 50B-3.1 provides that, under certain circumstances, a person who is subject to a DVPO must be ordered to surrender to the sheriff “all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms that are in the care, custody, possession, ownership, or control of the defendant.”
That statute also permits the person to seek return of the surrendered items following the expiration of the protective order and final disposition of any related criminal charges. If the person is ineligible for the return of the items or fails to request return, then a court may order disposal of the items in one of several ways set out in the statute. This post details the procedure for surrender, return, and disposal of firearms and related items in DVPO cases.
Immigration Detainers
An immigration detainer is one of the key tools that Immigration and Customs Enforcement (ICE) uses to apprehend individuals who come in contact with local and state law enforcement agencies. Sometimes, after a defendant has been arrested for a crime, an ICE officer will file an immigration detainer (Department of Homeland Security form I-247A) with the agency that has custody of the defendant. The detainer asks the agency to notify ICE when the defendant would otherwise be eligible for release and to hold the defendant for up to 48 hours thereafter to enable ICE to take custody of the defendant.
My colleague Jeff Welty blogged about immigration detainers several years ago. Recently, my colleagues and I have received a lot of questions about the scope of judicial officials’ authority when navigating immigration detainers. This post answers some of those questions.
When is Driving While License Revoked a Grossly Aggravating Factor?
There are six sentencing levels for Driving While Impaired (DWI) convictions. A defendant is only exposed to the three most severe levels (A1, 1, and 2) if a judge or jury finds the existence of one or more “grossly aggravating factors” beyond a reasonable doubt. These factors are listed in G.S. 20-179(c). One of them is “[d]riving by the defendant at the time of the offense while the defendant’s driver’s license was revoked pursuant to G.S. 20‑28(a1).” Rather than applying to all revocations, G.S. 20-28(a1) applies when person’s license is revoked for an “impaired driving revocation.” At first glance, it appears any time a person is convicted of DWI, if their license was revoked for an impaired driving revocation, this grossly aggravating factor would apply and elevate their sentencing exposure—but that may not be the case. Read on for more.