Under North Carolina law a criminal defendant has the right to inform the jury of the punishment for the crime being tried. In State v. McMorris, 290 N.C. 286 (1976), the North Carolina Supreme Court traced this right back to the mid-19th century. Back then, the legislature took umbrage at a judge’s refusal to allow a lawyer to argue both the law and facts to the jury and enacted what is now G.S. 7A-97. That statute states that “the whole case as well of law as of fact may be argued to the jury.” The Supreme Court in McMorris held that this provision gave the defendant the right to inform the jury of the statutory punishment in the case. The Court observed: “In a real sense the sanction prescribed for criminal behavior is part of the law of the case.” 290 N.C. at 287.
This basic right obviously has deep roots. How does it apply to the many and varied sanctions that have sprouted up in the law, including collateral sanctions for crimes? In State v. Prestwood, 211 N.C. App. 198 (2011) (unpublished), the Court of Appeals addressed one such sanction—sex offender registration—and held that the defendant has the right to inform the jury of that consequence in the trial of an offense triggering registration. I learned of the decision in readying the latest edition of the North Carolina Defender Manual (more on that below). Although the decision is a few years old, it strikes me as an important addition to the criminal law’s treatment of collateral consequences of a conviction.
In Prestwood, the defendant was charged with three counts of sexual battery against three female students at a school they all attended. The defendant was 16 years old, the female students were 16 and 17 years old. Defendant Appellant’s Brief at 3 (Nov. 29, 2010). All were students in a class for children with behavioral problems. Slip Op. at 1–2. Defendant’s counsel attempted to inform the jury that, if convicted of sexual battery, the defendant would be required to register as a sex offender. The State objected, and the trial court sustained the objection. After the judge instructed the jury about the offense, defendant’s counsel asked to readdress the jury to let the jurors know of the consequences of a conviction of sexual battery. The judge denied the request, and the jury convicted the defendant of all three counts.
The Court of Appeals held that the defendant had the right to inform the jury of the registration consequences for sexual battery and that the trial judge erred in refusing to let the defendant do so. The Court relied on the language of G.S. 7A-97 and the reasoning of cases interpreting it. The Court recognized that the provision does not permit the defendant to question the appropriateness of the punishment or argue that because of its severity the jury should acquit. In other words, the defendant cannot argue for jury nullification. However, the defendant has the right “‘to encourage the jury to give the matter its close attention and to decide it only after due and careful consideration.’” Slip Op. at 6, quoting McMorris, 290 N.C. at 288. Informing the jury of mandatory registration consequences is part of that right. Slip Op. at 7.
The holding may at first seem surprising given other decisions on sex offender registration consequences. The courts in North Carolina and elsewhere have resisted characterizing sex offender registration as punishment. Doing so would trigger a host of criminal law protections, such as constitutional protections against double punishment under the Double Jeopardy Clause and retroactive imposition of punishment under the Ex Post Facto Clause. The decision is consistent, however, with the growing recognition of the impact of collateral consequences. Whether characterized as criminal or civil, direct or collateral, they can be as or more significant than the criminal sentence itself. See, e.g., Padilla v. Kentucky, 559 U.S. 356 (2010) (finding it unnecessary to decide whether mandatory deportation following a conviction is a direct or collateral consequence; regardless of how characterized, defense counsel has a duty to advise criminal defendants about mandatory deportation as part of counsel’s Sixth Amendment obligation to provide effective assistance of counsel).
The disparity between the possible “criminal” sentence and mandatory “collateral” registration consequences is particularly striking in cases involving sexual battery charges. On the criminal side, sexual battery is a misdemeanor only, punishable by no more than 150 days imprisonment per count and, under the consecutive sentence limits in misdemeanor cases, no more than 300 days for multiple counts. In contrast on the collateral side, a person convicted of sexual battery is automatically required to register as a sex offender for at least 10 years; is subject to numerous other prohibitions and requirements, such as residence restrictions and detailed notification obligations; and faces felony charges for violations. A jury could well conclude that the offense is relatively minor if only aware of the criminal sentence. Allowing the defendant to include information about registration consequences “serves the salutary purpose of impressing upon the jury the gravity of its duty.” McMorris, 290 N.C. at 288; see also State v. Hartley, 212 N.C. App. 1, 18 (2011) (recognizing that purpose of instruction on mandatory commitment procedures in cases involving insanity defense is to eliminate confusion or uncertainty by jury regarding fate of accused if found insane and remove hesitancy in returning verdict of not guilty by reason of insanity based on fear that the defendant would be released into the community).
The Court in Prestwood concluded that the trial judge’s error did not prejudice the defendant in the circumstances of the case. Assessing the evidence presented, the Court found that there was no reasonable possibility that the jury would have reached a different result had the trial judge allowed the defendant to inform the jury of the consequences of conviction. Slip Op. at 7–8. I have reservations about this aspect of the Court’s opinion. One of the three counts involved the touching of a female student on her thigh. I don’t believe that touching that part of the body constitutes “sexual contact” within the meaning of our sexual assault laws. See G.S. 14-27.20(5) (defining sexual contact); G.S. 14-27.33 (requiring sexual contact for sexual battery). The other two counts involved sexual contact—touching the vaginal area of one student and the breasts of another student over their clothes—but the evidence was unclear or at least not conclusive that the defendant engaged in this contact “by force,” another element of sexual battery. See State v. Raines, 72 N.C. App. 300 (1985) (holding that force in sexual offense and kindred cases requires physical or constructive force separate from sexual act); see also State v. Brown, 332 N.C. 262 (1992) (stating that defendant must use “force sufficient to overcome any resistance the victim might make”; Frye, J., concurring, states that a surprise attack meets this definition).
Because Prestwood is unpublished, it does not constitute controlling authority and may not be well known in any event. Therefore, if defense counsel wants to inform the jury of the registration consequences of sexual battery and other offenses, counsel should consider making a motion to the trial judge ahead of time. Although Prestwood recognizes that the defendant has the right to inform the jury of mandatory registration consequences, counsel also may want to indicate why the information would make a difference. The argument is not that the jury should let the defendant off the hook. Rather, the argument is that the information will reinforce to the jury the importance of carefully considering disputed evidence and elements.
I want to thank Julie Lewis for letting me know about this case. An assistant public defender in Mecklenburg County as well as a legal wizard, she is the lead author of Volume 2 of the North Carolina Defender Manual, which focuses on trial procedure. All but one of the fifteen chapters have been revised and updated and are available online at no charge here. A complete, soft-bound edition will be available for sale this spring for those interested in a print version.