A couple of weeks ago, I wrote about the prohibition against the State commenting on a defendant’s failure to testify, or, in other words, a defendant’s silence at trial. Such comments are disallowed as they abridge a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence. This post addresses a related issue: When and how may the State in a criminal trial use evidence of a defendant’s silence before trial to establish a defendant’s guilt or impeach a defendant’s credibility? (This is not the first time we have written about this topic on the blog. Jessie Smith did so here in 2012; nevertheless, a few relevant cases have been decided since then, and I thought it would be helpful to revisit the issue.)
Procedure
Sufficient to Allege: Short-circuiting Short-forms in State v. Singleton and State v. Crowder
Statutes prescribing simplified charging language were intended to alleviate the burdensome pleading requirements of the common law. See Wayne R. LaFave, et al., Criminal Procedure § 19.1(c). Indeed, where a short-form pleading is statutorily authorized, it is not necessary to allege all the elements of the offense. See State v. Jerrett, 309 N.C. 239, 259, 307 S.E.2d 339, 350 (1983). But how closely must a short form track the language prescribed by statute? The Court of Appeals recently decided a couple of cases that address the issue. This post considers those cases.
Just Say No to Commenting on the Defendant’s Failure to Testify
While a prosecutor in a criminal trial may comment on a defendant’s failure to produce witnesses or evidence to contradict or refute the State’s case, a prosecutor may not make any reference to or comment on a defendant’s failure to testify. Such remarks violate both a defendant’s federal and state constitutional rights not to be compelled to give self-incriminating evidence (see U.S. Const. Amend. V, N.C. Const. art. I, § 23) and G.S. 8-54, which provides that no person charged with a crime may be compelled to testify or “answer any question tending to criminate himself.” This rule rests on the notion that allowing extended reference by the court or counsel concerning the defendant’s failure to testify would “nullify the policy that failure to testify should not create a presumption against the defendant.” State v. Randolph, 312 N.C. 198, 206 (1984).
The prohibition against such remarks encompasses even those that parrot the pattern jury instructions by acknowledging that a defendant may elect not to testify and that such an election may not be used against him. See State v. Reid, 334 N.C. 551, 554 (1993). Thus, when a prosecutor makes such remarks and the defendant objects, the trial court must undertake curative measures to inform the jury both that the remarks were improper and that the defendant’s failure to testify may not be used against him. Id. at 556. If the trial court fails to take such remedial measures and an appellate court deems the error prejudicial, a new trial will be ordered. Id. at 557. The Court of Appeals applied these principles recently in State v. Grant, No. COA23-656, ___ N.C. App. ___ (2024).
Does Waiver by Conduct Remain a Third Way to Lose the Right to Representation?
The North Carolina Court of Appeals first recognized the concept of waiver by conduct in State v. Blakeney, 245 N.C. App. 452 (2016). There, the Court set forth three ways in which a criminal defendant might lose his right to representation by counsel: (1) the defendant may knowingly, intelligently, and voluntarily waive the right to counsel; (2) the defendant may engage in such serious misconduct that he forfeits the right to counsel; and (3) following a warning that the defendant may lose his right to representation if he continues to engage in dilatory tactics, the defendant continues to engage in behavior designed to delay or disrupt court proceedings. This third way, which was acknowledged but not applied in Blakeney, has been called “waiver by conduct.”
While a knowing, voluntary and intelligent waiver of counsel has long been recognized by both the North Carolina Supreme Court and the North Carolina Court of Appeals as authorizing a defendant to proceed unrepresented, only recently has the state’s highest court expressly held that a defendant may forfeit his right to counsel. In State v. Simpkins, 373 N.C. 530 (2020), the North Carolina Supreme Court — citing consistent precedent from the court of appeals — held for the first time that a defendant may forfeit the right to counsel by engaging in egregious misconduct that frustrates the purpose of the right to counsel itself and prevents the trial court from moving the case forward. Simpkins recognized two types of conduct that may be sufficiently egregious to warrant forfeiture: (1) serious obstruction of the proceedings (for example, refusing to obtain counsel after multiple opportunities to do so, refusing to say whether he wishes to proceed with counsel, refusing to participate in the proceedings, or continually hiring and firing counsel and thereby significantly delaying the proceedings); and (2) assaulting one’s attorney. Id. at 538. The Simpkins Court expressly declined, however, to consider whether “waiver by conduct” is a method by which a defendant may be required to proceed without counsel. Id. at 535 n. 4.
Ensuing opinions from the state supreme court have reinforced the high bar for the misconduct required to constitute forfeiture and have extended the second category of misconduct recognized in Simpkins to include other types of aggressive, profane or threatening behavior. See State v. Harvin, 382 N.C. 566, 587 (2022); State v. Atwell, 383 N.C. 437, 449 (2022); see also Brittany Bromell, N.C. Supreme Court Weighs in, Again, on Forfeiture of Counsel, N.C. Criminal Law Blog (Feb. 7, 2023). They have not, however, mentioned waiver by conduct as an alternative way of dispensing with the right to counsel. Indeed, in Atwell, the Court wrote that there can be “no ‘effective’ waiver” of the right to counsel, emphasizing that “waiver of counsel is a voluntary decision by a defendant and that where a defendant seeks but is denied appointed counsel, a waiver analysis upon appeal is both unnecessary and inappropriate.” Id. at 448.
Thus, following Atwell, there was some question as to whether waiver by conduct remained even a potentially viable theory under North Carolina law. Two recent opinions from the North Carolina Court of Appeals reflect that court’s view that it does. This post will review the concept of waiver by conduct and its recent application in State v. Moore, 290 N.C. App. 610 (2023) and State v. Jones, No. COA23-647, ___ N.C. App. ___, ___ S.E.2d ___ (2024).
Criminal Processes in the Context of the Pretrial Integrity Act
By now, court officials are familiar with the pretrial release laws as amended by the Pretrial Integrity Act. The application of G.S. 15A-533(b) regarding defendants charged with certain high-level felonies has been fairly straightforward. Application of the 48-hour provision, G.S. 15A-533(h), has not been as simple and has given rise to several questions, including what procedures to apply when a criminal process other than an arrest warrant is used.
Under the new law, when a defendant is arrested for a new offense while on pretrial release for a pending proceeding, a judge—rather than a magistrate—must set conditions of release for the new offense within the first 48 hours after arrest. This post addresses the application of this provision with regard to citations, summonses, orders for arrest, and indictments.
Court of Appeals Holds that State Constitution Prohibits Substitution of Alternate Jurors After Deliberations Begin
When a deliberating juror in Eric Chambers’ April 2022 murder trial told the presiding judge that he could not be available in court the next day because of a medical appointment, the trial judge discharged the juror, substituted an alternate juror, and instructed the jury to restart its deliberations. In doing so, the trial judge followed the procedures set forth in G.S. 15A-1215(a) for substituting an alternate juror after deliberations have begun. Chambers, who represented himself at trial, did not object. The reconstituted jury subsequently found Chambers guilty of first-degree murder and a related felony assault, and the judge sentenced Chambers to life in prison.
Chambers failed to properly enter a notice of appeal and subsequently sought certiorari review by the North Carolina Court of Appeals. The Court granted review and reversed Chambers’ conviction based on the substitution of the alternate juror. State v. Chambers, No. COA22-1063, ___ N.C. App. ___ , ___ S.E.2d ___ (2024). The Court held that notwithstanding statutory amendments to G.S. 15A-1215(a) enacted in 2021 to authorize the substitution of alternate jurors after deliberations begin, it was bound by the North Carolina Supreme Court’s holding in State v. Bunning, 346 N.C. 253 (1997), that substitution of an alternate juror in a capital sentencing proceeding after deliberations began was structural error. This post will review the holding in Chambers, the precedent upon which it relied, and the provisions of G.S. 15A-1215(a) that Chambers, if it remains undisturbed, effectively eviscerates.
Within the Four Corners: Scouring Indictments for Missing Elements in State v. Jackson and State v. Coffey.
Two recent opinions from the Court of Appeals illustrate the remarkable controversy currently underway over the specificity required of indictments. In State v. Coffey, No. COA22-883, 2024 WL 675881 (N.C. Ct. App. Feb. 20, 2024), our Court of Appeals ruled an indictment for felony obstruction of justice was facially defective for failure to allege an essential element of the offense: the purpose of hindering or impeding a judicial or official proceeding or investigation. By contrast, in State v. Jackson, No. COA22-280, 2024 WL 925480 (N.C. Ct. App. Mar. 5, 2024), our Court of Appeals ruled an indictment for habitual misdemeanor assault was sufficient though it failed explicitly to allege an element: causing physical injury. This post attempts to reconcile the divergent analytical approaches taken in Coffey and Jackson.
State v. C.K.D.: Knoll What?
I have written before about the cache associated with a handful of unpublished opinions from the North Carolina Court of Appeals. Sure, they aren’t binding, but they can be persuasive. My guess is that the Court’s December 2023 opinion in State v. C.K.D.. No. COA23-204, 2023 WL 8748032, ___ N.C. App. ___, 895 S.E.2d 923 (2023) (unpublished), has been used as a persuasive tool in more than a few impaired driving cases since it was decided.
The C.K.D. Court upheld the dismissal of impaired driving charges based on the detention of the defendant for 11 hours following his initial appearance pursuant to an impaired driving hold. The Court determined that (1) there was no clear and convincing evidence that the defendant who had registered a 0.17 alcohol concentration posed a danger, and (2) holding the defendant for 11 hours irreparably prejudiced the defendant’s case by depriving him of the opportunity to have others observe his condition, even though the defendant indicated he did not wish to call anyone to witness his condition in the jail or to assume responsibility for him as a sober, responsible adult. I was a bit surprised by the outcome. I would have thought that the alcohol concentration standing alone would have been sufficient to support the hold. I also would have thought that the defendant’s failure to attempt to contact anyone from jail would have defeated his claim of irreparable prejudice. As noted, I would have been wrong on both counts.
This post will discuss C.K.D., explore how it differs from other court of appeals decisions following Knoll, and consider what the takeaways may be for magistrates imposing such holds.
Does a Magistrate Have the Discretion to Refuse to Issue Criminal Process When Probable Cause Exists?
If I had to answer the question in the title of this post in the briefest possible way, I would say: not usually. But there’s a lot of uncertainty and nuance packed into that short answer. This post gets into the details.