Latest posts in category Procedure on North Carolina Criminal Law Blog

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.

Shortly after I published last week’s post on State v. Babich, an astute reader asked about the court’s harmless error analysis. How, he inquired, could the improper admission of expert testimony that the defendant had an alcohol concentration of 0.08 be harmless error? Did the jury’s verdict indicate that it found the defendant guilty only under the “under the influence” prong of impairment rather than under the “alcohol concentration of 0.08 or more” prong? To answer these questions, I had to dig into the record on appeal and provide a bit of background on the requirement for jury unanimity in DWI cases. I thought others might be interested in my response.

[Editor’s note: Today’s post was written by Alyson Grine and Emily Coward. Until last year, Alyson was the Defender Educator at the School of Government. She is now an Assistant Professor of Law at NCCU, but she continues to work with the School of Government’s Indigent Defense Education team on the NC Racial Equity Network. Emily is a Research Attorney with the Indigent Defense Education team at the School of Government.]

Summary: In its March 6 opinion in Pena-Rodriguez v. Colorado, the U.S. Supreme Court carved out an exception to the “no impeachment” rule for cases in which a juror makes a clear statement that he or she relied on racial bias in voting to convict a criminal defendant. In such cases, the evidentiary rule preventing the court from hearing juror testimony about statements made during deliberations must give way so that the court may consider whether the alleged racial bias violated the defendant’s Sixth Amendment right to a fair trial. We may be opening ourselves up to accusations that we are seeking to extend our moment in the spotlight by blogging about this case: as mentioned in last week’s News Roundup, the manual we co-authored, Raising Issues of Race in North Carolina Criminal Cases, was cited by Justice Alito in his dissenting opinion. However, as this opinion marks the beginning of a new chapter in the centuries old “no impeachment” rule, it’s important for North Carolina practitioners to understand its implications.

Two months ago, the North Carolina Supreme Court in State v. Saldierna, ___ N.C. ___, 794 S.E.2d (Dec. 21, 2016), reversed the North Carolina Court of Appeals, State v. Saldierna, ___ N.C. App. ___, 775 S.E.2d 326 (2015), and ruled that a juvenile’s request to call his mother during custodial interrogation was not a clear invocation of the statutory right to consult a parent or guardian that would bar officers from conducting or continuing to conduct interrogation. This post discusses this ruling.

In State v. Harbison, 315 N.C. 175 (1985), the North Carolina Supreme Court held that when defense counsel admits the defendant’s guilt to the jury without the defendant’s consent per se ineffective assistance of counsel occurs. The Harbison Court reasoned that when counsel admits guilt without consent, it is essentially the same as entering a guilty plea on the defendant’s behalf without the defendant’s consent. It concluded: “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id. at 180.

Criminal procedure aficionados, close your red books and riddle me this:

A district court judge in a DWI case preliminarily grants a defendant’s motion to suppress. The State appeals to superior court. The superior court affirms the district court’s determination and remands the case for entry of an order suppressing the evidence and dismissing the charges. The district court enters the order. Does the State have the right to appeal?

Can a court order a suspect to use the suspect’s fingerprint to unlock his or her smartphone? Or would that violate the suspect’s Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion.

Author’s Note: The North Carolina Supreme Court reversed the court of appeals decision in State v. Brice, which is discussed in the body of this post.  You can read about the state supreme court’s ruling here.  

Everyone knows that having a criminal history is bad. John wrote earlier this week about C-CAT, an on-line, searchable database that helps folks identify many of the non-criminal consequences of a conviction—like losing a professional license. The criminal consequences of an earlier conviction are, in contrast, much easier to figure out. A criminal record generally results in greater punishment for new crimes. For a handful of North Carolina crimes, a prior conviction for a similar offense increases the grade of the new offense – sometimes converting what would otherwise be a misdemeanor to a felony. Special rules govern the charging, arraignment, and trial for such offenses. The failure to follow them is the subject of considerable case law from our state’s appellate courts, including two recent opinions from the North Carolina Court of Appeals.

Judges are lawyers, and lawyers are subject to discipline by the State Bar. Does that mean that judges are subject to discipline by the State Bar? Generally not, according to a recent ruling by the Supreme Court of North Carolina.

The court of appeals held last month in State v. Turner, __ N.C. App. __, 793 S.E.2d 287 (2016), temp. stay allowed, __ N.C. __ (2016), that the issuance of a magistrate’s order charging a defendant with driving while impaired did not toll the two-year statute of limitations applicable to misdemeanors. The court reasoned that the provision setting forth the statute of limitations, G.S. 15-1, was explicit in requiring that an indictment or presentment be issued within two years. The court said that only one extension of this rule had been recognized: Pursuant to State v. Underwood, 244 N.C. 68 (1956), a defendant may be tried upon a misdemeanor charged by a warrant within two years of the offense. Because Turner was not charged by presentment, indictment or warrant and the State failed to “commence the prosecution of its case” within two years of the offense, the court of appeals ruled that the trial court properly dismissed the charges.

Last month’s blog commentary included a lively dispute about whether trial courts are bound to follow Turner given the state supreme court’s issuance of a stay. Regardless of whether Turner is binding precedent (and I don’t think it yet is, given the stay), trial courts may rely on its reasoning.  Moreover, the state supreme court may ultimately decline to review the opinion or, if it does grant review, may affirm its holding. Thus, prosecutors across the state are considering whether and how the State may satisfy or toll the statute of limitations for misdemeanors charged by citation or magistrate’s order.

There are at least four categories of such misdemeanors, and the implications for each are discussed below.