Latest posts in category Procedure on North Carolina Criminal Law Blog

Some offenses can be proved by alternative theories. For example, impaired driving occurs when a person drives while (1) while under the influence of an impairing substance, (2) after consuming a sufficient quantity of alcohol that the person has an alcohol concentration of 0.08 or more at any relevant time after the driving, or (3) with any amount of a Schedule I controlled substance or its metabolites in his or her blood or urine. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime (7^th ed. 2012). The three options noted above constitute three separate theories upon which an impaired driving conviction can rest. Similarly, kidnapping occurs when a person (1) confines, (2) restrains, or (3) removes a person and other elements are satisfied. Id. The three options—confines, restrains, or removes—constitute three separate theories upon which a kidnapping conviction can rest. Sometimes alternative theories are bound up in the definition of an element of an offense. For example, first-degree sexual assault with a child requires, among other things, that the defendant engage in a “sexual act” with the victim. Id. The term sexual act is defined to include, in part, (1) cunnilingus, (2) analingus, (3) fellatio, and (4) anal intercourse. Id. These acts constitute separate theories that can support a sex offense conviction.

I discussed the inevitable discovery exception in my last post. This post will discuss the independent source exception, particularly the United States Supreme Court cases of Segura v. United States, 468 U.S. 796 (1984), and Murray v. United States, 487 U.S. 533 (1988), and related North Carolina cases. It should be noted that the independent source exception was initially adopted in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), and can apply to investigations involving Fourth, Fifth, or Sixth Amendment violations.

I was teaching a class about charging documents recently when the conversation turned to the rule that a charge of resisting, delaying, or obstructing a public officer in violation of G.S. 14-223 must describe the particular duty that the officer was discharging at the time of the resistance. A member of the class asked whether it would suffice to describe the duty as “protecting and serving.” I gave my best guess about the answer but I thought I would see how others react to the question. So take the poll below, then read the rest of the post for a little history about the rule, a summary of a recent case, and a discussion of authority about the sufficiency of a general description like “protecting and serving.”

[poll id=”19″]

The decision, handed down April 28, 2017, comes out of Harris County, home to Houston, Texas. If you decide to read the opinion, ODonnell v. Harris County, be prepared to spend some time with it. The opinion is 193 pages long, and one reading may not be enough. Readers will see similarities and differences between the bail practices in Harris County and North Carolina. This post doesn’t undertake to compare the two and instead does a not-so-brief review of the findings, conclusions, and relief ordered by the judge, Chief District Court Judge Lee H. Rosenthal (if you’re wondering, appointed by President George H.W. Bush in 1992). The bottom line is that the decision enjoins Harris County from “detaining indigent misdemeanor defendants who are otherwise eligible for release but are unable because of their poverty to pay a secured money bail.” Slip op. at 181.

Prosecutors have wide discretion to decide how to charge defendants. In exercising that discretion, a prosecutor certainly may consider the sentence associated with each possible charge, and may choose to pursue the charge or charges that is most likely to result in the outcome that the prosecutor sees as just. But the criminal sentence may not be the only outcome of a criminal case. A variety of collateral consequences may be imposed by law, such a change in immigration status, a requirement to register as a sex offender, or loss of professional licensure. Other consequences may also follow certain convictions, such as loss of employment or housing. May prosecutors consider collateral consequences when making charging decisions and when evaluating possible plea bargains? Should they do so? Must they?

A few weeks ago, I wrote about a Stanford University study suggesting that granting driver’s licenses to unauthorized immigrants improves overall traffic safety. That approach is not an option in North Carolina, where unauthorized immigrants have been ineligible to obtain a driver’s license, learner’s permit or identification card since 2006. Recognizing that many unauthorized immigrants drive regardless of whether they are licensed, the district attorney in Orange and Chatham Counties announced this week a new policy for disposing of no operator’s license charges against such drivers, provided they meet certain conditions.

Two weeks ago, the SOG hosted over 50 public defenders, contract attorneys, and private assigned counsel at its annual Felony Defender training. The training provides guidance to lawyers transitioning to superior court about handling a felony case from start to finish. Topics include discovery and investigation, pretrial motions, voir dire, and jury instructions, among others. On a personal note, it was my first training in my role as Defender Educator and my first behind-the-scenes look at the effort required to plan and execute a successful course. Without the hard work of the faculty and support staff from the SOG, as well as volunteers from IDS and the private bar, the program would not have been possible. Thanks to everyone that participated. I truly enjoyed the training, especially speaking with the lawyers that attended, and I hope they found it worthwhile as well.

In Moore v. Texas, which I discussed here, the Supreme Court of the United States held that courts must rely on current clinical standards when determining whether a defendant is intellectually disabled and so exempt from the death penalty. Must courts also defer to clinical standards when determining whether a defendant is insane and so exempt from criminal culpability? I don’t think so, for the reasons below.

Almost everyone knows about the trial of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman. Many people also know about a key piece of evidence introduced by the defense—taped interviews in which one of the investigating officers, Los Angeles Police Department detective Mark Fuhrman, used racial slurs. Less well known is the legal mechanism that the defense team used to obtain the tapes, which were in the possession of a North Carolina writer who refused to turn them over voluntarily. How did O.J.’s lawyers compel a resident of North Carolina to produce the tapes in faraway Los Angeles, California? This post reviews the procedure used in the O.J. case and other ways to obtain out-of-state materials in a criminal case.

In State v. Schalow (Dec. 20, 2016), the trial court’s error in declaring a mistrial led to a successful claim of double jeopardy by the defendant and allowed him to avoid further prosecution for attempted murder. Schalow sheds light on the relatively obscure (at least to me) law of mistrials and double jeopardy.