As the Daily Tar Heel reports, this week a group of protesters on UNC campus used ropes to pull down the controversial Confederate monument known as Silent Sam; the protesters then covered the statue in dirt before it was removed by heavy equipment from McCorkle Place. Chancellor Carol Folt explained in a statement that the monument “has been divisive for years” but criticized the “unlawful and dangerous” act of vandalism. Time magazine published a story about the history of the statue that recounts decades of protests involving Silent Sam and includes excerpts of the speech delivered at the dedication of the statue in 1913 by Julian Carr. Carr’s full remarks, including a personal anecdote where he boasted of violently assaulting a black woman within 100 yards of the site of the monument, are available here. Keep reading for more news.
State v. Murphy and Restitution for Unconvicted Conduct
In 2010, I wrote a post asking, “Can a defendant be ordered to pay restitution based on offenses that did not result in a conviction?” The court of appeals answered that question this week in State v. Murphy.
The License Revocation that Immediately Follows Arrest for DWI
I spent much of the afternoon teaching magistrates, and one of the topics we covered was the immediate license revocation that often is ordered upon a person’s arrest for impaired driving.
Court of Appeals Approves Justification Defense for Firearm by Felon
For several years now, it has been an open question in North Carolina whether a justification defense to possession of firearm by felon is available. John Rubin blogged about the issue back in 2016, here. Our courts have assumed without deciding that the defense might apply in several cases but have never squarely held the defense was available, finding instead in each previous case that defendants didn’t meet the admittedly rigorous standards for the defense. This month, the Court of Appeals unanimously decided the issue in favor of the defendant. In State v. Mercer, ___ N.C. App. ___ (August 7, 2018), the court found prejudicial error in the trial judge’s refusal to instruct the jury on justification in a firearm by felon case and granted a new trial. Read on for more details.
Turner Reversed
Last week, the state supreme court unanimously reversed State v. Turner, __ N.C. App. __, 793 S.E.2d 287 (2016), and held that any “any criminal pleading that establishes jurisdiction in the district court should toll the two-year statute of limitations” set forth in G.S. 15-1. It did so in a case named State v. Curtis. This post recaps the Turner controversy and unpacks the ruling in Curtis.
News Roundup
This week a Pennsylvania grand jury released a report of an investigation into six of the state’s eight Catholic dioceses which says that there is credible evidence that more than 300 “predator priests” sexually abused more than 1000 children over decades. The report further alleges that the church orchestrated a sophisticated cover-up of the sex crimes. The New York Times has an overview of the report here, and the full report, thorough and unflinching, is available here. The statute of limitations has expired for the majority of the crimes detailed in the report. Keep reading for more news.
Criminal Monetary Obligations Bench Card Available
The School of Government has published a new resource on Monetary Obligations in North Carolina Criminal Cases.
May the State Rely on an ACIS Printout to Prove Habitual Felon Status?
A person who has previously been convicted of three non-overlapping felonies who commits a new felony in North Carolina may be indicted for the new felony and may be separately indicted for obtaining habitual felon status. If the person is convicted of the new felony and of obtaining habitual felon status, the person is subject to more severe punishment for the new felony.
In State v. Waycaster, __ N.C. App. ___ (2018), the court of appeals considered whether the State could prove a prior conviction underlying the defendant’s habitual felon status by offering a printout from the state’s Automated Criminal/Infraction System (“ACIS”) into evidence.
G.S. 15A-928: One crime, two charges, one judgment?
Whenever a prior offense “raises an offense of lower grade to one of higher grade and thereby becomes an element” of the current offense (e.g., habitual larceny, habitual misdemeanor assault, habitual DWI, and second or subsequent charges for certain other offenses such as stalking, shoplifting, or carrying a concealed firearm), the state must plead and try the case in compliance with G.S. 15A-928. In short, this statute requires that: (i) an “improvised” name for the alleged offense must be used to avoid referring to any prior convictions; (ii) any prior offenses must be alleged in a separate indictment (or at least as a separate count within the indictment); (iii) the defendant must be separately arraigned on the alleged priors outside the presence of the jury; and (iv) if the defendant admits to the prior convictions, then that element has been proved and the state may not present evidence on it, nor will it be submitted to the jury.
Shea Denning has previously posted about G.S. 15A-928 and some of the key cases interpreting its requirements here and here, but last week I received an interesting procedural question on this topic.
When the state complies with these pleading rules, the result will be two separate indictments (or counts) pending in court, but of course there is really only one criminal offense being charged, and the defendant may only receive one punishment for it. What is the recommended procedure for how the charge(s?) and sentence(s?) should be reflected in the plea transcript or verdict form, and how should the court structure its judgment? This post offers a few thoughts and suggestions.
Does a Search Warrant for a Person Authorize a Strip Search?
Most search warrants are for homes or offices. Some are for vehicles. Less often, a search warrant is for a person. See generally G.S. 15A-241 (defining a search warrant as an order authorizing the search of “designated premises, vehicles, or persons”). When a search warrant authorizes the search of a person, how intensive may the search be? Specifically, may the executing officer conduct a strip search?