Shea blogged here about State v. Heien, the case in which the court of appeals ruled that having one burned-out brake light was not a violation of G.S. 20-129 and so did not support a vehicle stop. (The stop led to a consent search of the defendant’s vehicle, which led to the discovery of drugs and to drug trafficking charges.) The prosecution sought review in the state supreme court. That court assumed that the court of appeals was correct about the scope of the statute but determined (1) that an officer might reasonably think otherwise, given ambiguities in the statute, and (2) that reasonable suspicion may be based on a reasonable mistake of law. Conclusion (2) was the subject of a split of authority across the country, so the United States Supreme Court agreed to review the case. It issued its opinion yesterday.
US Supreme Court to Decide Whether Child’s Statements to Teacher Were Testimonial
In early October the Supreme Court granted certiorari in an Ohio case, State v. Clark, 999 N.E.2d 592 (Ohio 2013), cert. granted __ U.S. __, 135 S. Ct. 43 (2014), that will require it to decide two questions. First, whether a person’s obligation to report suspected child abuse makes the person an agent of law enforcement for purposes of the confrontation clause. And second, whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements. The case is important for a number of reasons. One is that like Ohio, North Carolina has a mandatory child abuse reporting statute. G.S. 7B-301. North Carolina’s statute is incredibly broad—it applies to everyone, not just teachers and doctors but also to family members, neighbors, and friends. Id. (“[a]ny person or institution”). Thus, an answer to the first question could have significant impact in North Carolina. The case also is important because Crawford has raised difficult questions in child abuse prosecutions about the testimonial nature of children’s statements to a host of people, including teachers, nurses, doctors, and social workers. Clark is the Court’s first Crawford case involving child abuse and many hope that its decision will provide answers to those questions.
News Roundup
The nation and the state continue to discuss events in Ferguson, Missouri and in Staten Island, New York. One direct impact of the controversy in North Carolina is that the Legislative Black Caucus plans to introduce legislation in the 2015 session that would require law enforcement officers to wear body cameras, according to this WRAL story. The details of the proposal are not yet clear.
Go Ahead, Test Me
Most people stopped on suspicion of impaired driving would rather avoid the trip to the police station. Some suspects attempt to dispel officers’ suspicions by answering questions about whether they have been drinking and how much they’ve had to drink. Others perform field sobriety tests. A few cut right to the chase, demanding that officers transport them immediately to the station for breath testing. That way, the person who is not impaired by alcohol can resolve the encounter without the indignity–and the record–that accompanies arrest.
New Ethics Opinion on Incarcerated Defendants’ Right to Review Discovery
Many criminal defense lawyers are reluctant to give incarcerated clients copies of discovery materials. Lawyers may worry that the materials will be stolen by other inmates, who will then use the information in the materials to bolster false claims that the defendant confessed to them. And lawyers may believe that certain clients simply should not have access to certain materials, such as the addresses and phone numbers of witnesses or alleged victims. But what if a client insists on having a copy of discovery materials? A new State Bar ethics opinion addresses this issue.
The Right to Be Present at Sentencing
A North Carolina defendant has a common law right to be personally present when a criminal sentence is pronounced. That right is separate from the constitutional right to be present at trial, State v. Pope, 257 N.C. 326 (1962), and a waiver of the sentencing right should not be inferred from the defendant’s absence at trial. When a defendant is tried and found guilty in absentia (because he or she fled in the middle of the trial, or perhaps behaved in a disorderly fashion), we generally recommend that prayer for judgment be continued until the defendant can be brought before the court for sentencing. See Jessica Smith, N.C. Superior Court Judges’ Benchbook: Trial in the Defendant’s Absence. In one case the court of appeals held that a trial judge did not err by proceeding to sentence a defendant after he fled the courthouse, primarily because his lawyer remained and did not ask for a continuance. State v. Miller, 142 N.C.App. 435 (2011). But in light of earlier cases, the better practice is to wait. See, e.g., State v. Stockton, 13 N.C. App. 287 (1971) (citing several supreme court cases deeming sentences entered in a defendant’s absence to be defective).
Free Legal Research
Now that I have your attention . . . .
Ever wonder what happens to those case summaries that you receive from me by email? (If you’re not getting them you’re not on my listserv; sign up for free here). I sort them by subject and add them to my Criminal Case Compendium, an online, fully searchable resource. The Compendium, now a whopping 514 pages long, turned six years old this month. [Editor’s note: Actually, last month — I was a little slow in getting this post up!] In honor of the Compendium’s birthday, here’s quick primer on using this free legal research tool.
News Roundup
Several grand juries have recently considered whether to charge white police officers with killing black men. We’ve already discussed the case in Ferguson, Missouri on this blog. Wednesday, a Staten Island, New York grand jury declined to indict officer Daniel Pantaleo in the death of Eric Garner. The New York Times has the story here. Then a South Carolina grand jury indicted officer Richard Combs for murder in the fatal shooting of Bernard Bailey, as Time reports here. Is it a small sample? A historic moment? A coincidence? An epidemic? Some or all of the above, depending on your point of view.
Assembly Line Justice
Have you ever been convicted of or pleaded nolo contendere (no contest) to any violation of the law other than minor traffic tickets?
Millions of people, many of whom were convicted of petty crimes, must answer this question (a favorite of employers) in the affirmative. Indeed, the Wall Street Journal reported in a recent article on the processing of misdemeanor crimes that nearly 1 in 3 Americans has a criminal record. While those records are based on arrests, not convictions, a substantial percentage of people charged with misdemeanor offenses are convicted. North Carolina’s district courts, for example, disposed of more than 450,000 misdemeanor (non-traffic) criminal cases in the 2013-2014 fiscal year. A third of those cases resulted in convictions.
Handling Jury Trial Waivers
As of December 1, 2014, North Carolina criminal defendants may waive their right to a jury trial in superior court and instead opt for a bench trial. This is because of the state constitutional amendment that voters approved this fall. (I wrote about the amendment here.) But how exactly is waiver supposed to work?