North Carolina’s appellate courts have recently issued two important opinions on the use of drug dogs, and the United States Supreme Court has granted certiorari in another drug dog case. This post summarizes these recent developments.
Sex Crimes and Penetration
In the recent court of appeals case In re J.F., ___ N.C. App. ___, ___S.E.2d ___ (Nov. 18, 2014), the defendant argued that penetration is an essential element of sexual offense and crime against nature. Following prior case law, the court held that penetration is required for crime against nature, and that in the case presented, the evidence wasn’t sufficient on that issue. Turning to the sexual offense conviction, the court noted that offense covers different types of sexual acts, specifically, cunnilingus, fellatio, analingus, anal intercourse, and the penetration, however slight, by any object into the genital or anal opening of another person’s body. Id. (citing G.S. 14-27.1(4)). In the case before it, the relevant conduct was fellatio, a “touching” act, which the court held doesn’t require penetration.
News Roundup
An organization called Concerns of Police Survivors has designated today the first National Law Enforcement Appreciation Day. The organization argues that “[i]n light of recent negativity directed toward law enforcement nationally, there is a need to show law enforcement officers that our citizens recognize the difficult and sometimes impossible career they have chosen, in public service to us all.” It suggests taking steps like thanking an officer, wearing blue, or posting a positive story about police on social media.
Officers have a tremendous amount of power, and as a result face constant scrutiny. In my view, such scrutiny is entirely appropriate. At the same time, it is a great idea to recognize and to be grateful for the many officers who are doing their very best to perform a tough job. Especially given the recent assassination of two officers in New York and the overall increase in officer deaths in 2014 (discussed here in the Washington Post), today seems like a good a day to do so.
There Is a Tolling Donut Hole
Last year, I wrote this post asking whether the probation tolling law in former G.S. 15A-1344(d) survived a 2009 statutory change. In State v. Sitosky, decided on the last day of 2014, the court of appeals held that it does not.
Failing to advise a defendant of his implied consent rights requires suppression of the test results . . . except when it doesn’t
In opinions spanning four decades, North Carolina’s appellate courts have suppressed chemical analysis results in impaired driving cases based on statutory violations related to their administration. When the violation consists of the State’s failure to advise a defendant of her implied consent rights, the appellate courts’ jurisprudence has been straightforward and consistent: The results of an implied consent test carried out without the defendant having first been advised of her implied consent rights are inadmissible. Indeed, the court of appeals reaffirmed that principle last June in State v. Williams, __ N.C. App. ___, 759 S.E.2d 350 (2014), holding that the State’s failure to re-advise the defendant of his implied consent rights before conducting a blood test under the implied consent statutes required suppression of the test results. A court of appeals opinion issued in the waning hours of 2014 indicates, however, that the rule is subject to at least one exception.
Competency and the Residual Hearsay Exception
I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue.
New Year’s Resolutions for Lawyers
Still looking to make a new year’s resolution or two, besides reading this blog daily? This post recaps several suggestions from the ABA and NC Lawyers Mutual.
News Roundup
This will be the last blog post of 2014. It is also a full and interesting post — if I do say so myself — as it has been quite a busy news week, from the Supreme Court on down.
Most Serious Offense for Consolidation Purposes
When a defendant is convicted of more than one offense at the same time, the court may consolidate the offenses for judgment. The sentence for that judgment is driven by the “most serious offense” among the consolidated convictions. G.S. 15A-1340.15(b). Today’s post considers some issues related to the determination of which offense in a consolidated judgment is the most serious.
DWLR + DWI Does Not (Automatically) Equal a Grossly Aggravating Factor
Author’s note: The law was amended in 2015 to alter this analysis. The amendments are discussed here.
Grossly aggravating factors matter in DWI sentencing. And there’s one factor that seems to be confusing folks, particularly when it comes to ignition interlock violations. Here’s hoping this post clears it up.