North Carolina Criminal Law

State v. Eldred: Court of Appeals Evaluates Sufficiency of Circumstantial Evidence of DWI

May 2, 2018 Shea Denning

Consider whether the following facts are sufficient to support a conviction for DWI:

The scene. Law enforcement officers in Avery County respond to a reported accident on the highway leading to Grandfather Mountain around 8:30 p.m. They find a Jeep Cherokee on the side of the highway, with a damaged side panel. Tire impressions indicate that the vehicle traveled about 100 feet after leaving the roadway. A large rock embankment along the roadway is scuffed. No one is in the car, which is registered to Paul Eldred.

The defendant. A law enforcement officer finds Eldred walking along the side of the highway two or three miles north of the accident. Eldred has a mark on his forehead, is twitching, and is unsteady on his feet. The officer asks Eldred why he is walking on the highway. Eldred responds: “I don’t know, I’m too smoked up on meth.” The officer calls for medical help, and Eldred is taken to the hospital.

The interview. Another officer questions Eldred at the hospital around 10 p.m. Eldred explains that he was driving his car when it ran out of gas. He then says “‘he was hurt bad and was involved in a wreck a couple of hours ago.’” Eldred tells the officer that he had not been drinking alcohol. The officer asks whether Eldred has taken any medications, and Eldred says he is “on meth.” During the interview, Eldred is twitching, appears dazed and has difficulty answering questions. He does not know the date, the day of the week, or the time.

A Lose-Lose Situation for “Felonious” Defendants Who Act in Self-Defense

May 3, 2018May 1, 2018 John Rubin

I previously wrote here about the statutory felony disqualification for self-defense in North Carolina, adopted in 2011 by the General Assembly alongside expanded castle protections and clearer stand-your-ground rights for law-abiding citizens. The felony disqualification, in G.S. 14-51.4, states that a person loses the right of self-defense if he or she “[w]as attempting to commit, committing, or escaping after the commission of a felony.” A literal interpretation of the provision places “felonious” defendants in a lose-lose situation: if they defend themselves, they can be prosecuted for their use of force even if the force is otherwise permissible; if they don’t defend themselves, they could suffer injury or even death. In my earlier blog post, I suggested that the felony disqualification may include a “nexus” requirement—that is, that the disqualification applies only if the defendant’s felony in some way creates or contributes to the assault on the defendant and the resulting need for the defendant’s use of force. The Court of Appeals in the recent case of State v. Crump took a literal approach, appearing to make the felony disqualification an absolute bar to self-defense if the defendant contemporaneously engages in a felony.

Lab Fees Are a Cost, Not Restitution

May 1, 2018April 30, 2018 Jamie Markham

Laboratory expenses for analysis of controlled substances used to be ordered as restitution. Since 2002, they have been a court cost. There is a difference.

News Roundup

April 27, 2018 Christopher Tyner

Two incidents of mass murder made national headlines this week, one occurred in Nashville, Tennessee, and the other in Toronto, Canada. Early Sunday morning, Travis Reinking killed four people and wounded two others with an AR-15 style rifle at a Waffle House in Nashville. After being disarmed by a customer, Reinking fled the scene, sparking a 34-hour manhunt that ended when he was discovered in a wooded area a few miles from the Waffle House. On Monday, Alek Minassian killed ten people and wounded many others by intentionally driving a moving van into pedestrians on a sidewalk in Toronto. Keep reading for more news.

2018 Sentencing Commission Recidivism Report Available

April 5, 2019April 26, 2018 Jamie Markham

The North Carolina Sentencing and Policy Advisory Commission recently released its biennial Correctional Program Evaluation—known better as the Recidivism Report. The report, prepared in conjunction with the Division of Adult Correction and Juvenile Justice, is available here. It covers defendants placed on probation or released from prison in Fiscal Year 2015.

When May the District Attorney be Taken Off the Case?

May 9, 2023April 25, 2018 Shea Denning

North Carolina is divided into 44 prosecutorial districts. Each is headed by an elected district attorney or, the case of a mid-term vacancy, a district attorney appointed by the governor. District attorneys are constitutionally and statutorily charged with prosecuting criminal actions in their districts. Each district attorney employs a number of assistant district attorneys who assist in carrying out this work. A district attorney may even, as Jonathan discussed in this earlier post, employ a private attorney to assist with prosecution.

When a district attorney identifies a conflict of interest associated with his or her prosecution of a case, the district attorney may seek assistance with the prosecution from another prosecutorial district, the Attorney General’s Special Prosecution Division, the Administrative Office of the Courts, or the Conference of District Attorneys.

Sometimes, however, the district attorney decides to proceed with prosecuting a case notwithstanding a defendant’s insistence that a conflict of interest exists. When that occurs, the defendant may ask the court to remove the prosecutor from the case. May the court do so? If so, what standard governs the court’s determination of whether the prosecutor is disqualified from the case?

Controlled Buys, Middlemen, and Probable Cause

April 23, 2018 Jeff Welty

Last week, the Court of Appeals of North Carolina decided State v. Frederick, a case about whether a controlled purchase of drugs provided probable cause to issue a search warrant. Before you say “the answer is yes, that fact pattern happens all the time,” be aware that Frederick presents a wrinkle. The wrinkle is that the controlled buy was conducted not by a confidential informant, but by an unknown “middleman” who the informant drove to the suspect’s home. Does the injection of an intermediary undermine probable cause? Read on to find out!

News Roundup

April 20, 2018 Christopher Tyner

Seven inmates were killed and many others were wounded during a prison riot in South Carolina on Sunday night. Columbia newspaper The State reports that a disagreement over gang territory and contraband erupted into a massive and violent fight that spanned three dormitories at Lee Correctional Institution, a maximum-security facility located between Columbia and Florence. The report from The State paints a bleak picture of Lee Correctional and other South Carolina prisons, saying that the state’s prisons as a whole “are rife with violence, illegal weapons, and gangs.” The incident is the nation’s deadliest prison riot in 25 years. Keep reading for more news.

Misdemeanor Prior Conviction Level

April 19, 2018 Jamie Markham

For felony sentencing, a defendant’s criminal history is scored as a “prior record level.” The analogous measure for misdemeanor sentencing is “prior conviction level.” There are important differences between the two measures.

State v. Fincher: No Foundation Required for DRE Testimony

April 18, 2018 Shea Denning

The court of appeals held yesterday in State v. Fincher, ___ N.C. App. ___, ___ S.E.2d ____ (2018), that the trial court did not abuse its discretion when it permitted a drug recognition expert to testify in a DWI trial that the defendant was under the influence of a central nervous system depressant. The defendant argued that the State failed to lay a sufficient foundation to establish the reliability of the drug recognition examination, but the court determined that no such foundation was required as the General Assembly had legislatively sanctioned the admission of this type of evidence under Rule 702(a1)(2).