Recent Blog Posts Page 247 on North Carolina Criminal Law Blog

Last Friday, the Criminal Justice Section of the North Carolina Bar Association presented its annual awards for excellence in prosecution and criminal defense. The prosecutor award went to Assistant United States Attorney Sandra Hairston, who serves in the Middle District of North Carolina and who regularly outlawyered me when I was doing federal criminal defense work. The defense attorney award went to Mark Owens, Jr. of Greenville, who this NCBA press release describes as the “elder statesman” of the Pitt County bar. Congratulations to both winners.

Have you ever eaten cake decorated with the name of a prison facility? I hadn’t until a few weeks ago, when I attended the ribbon cutting ceremony for the Division of Adult Correction’s new CRV Center in Robeson County. I’m glad I made the trip down to Lumberton—not just because of the cake (which turned out to be pretty good), but also because of what I learned about DAC’s vision for its new form of confinement for probation violators. Today’s post is intended to pass some of that information along to the judges and prosecutors who will send probationers to the CRV centers, and to the defense lawyers who will advise their clients about what to expect there.

The 2015 North Carolina General Assembly convened earlier today, with new members sliding into place just as the first ice storm of the winter left the area. And while most folks’ attention will (as usual) be focused on the state budget, I’ll be watching over the next few months for legislation related to motor vehicle crimes. I’m particularly curious to see whether the General Assembly shows any interest in interrupting the cycle of driver’s license revocation, an issue that lately has attracted national attention.

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.

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.

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.

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.

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.

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.

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.