Is lack of consent an element of burglary? This post arises from a conversation I had with a colleague who asserted that the homeowner’s consent could legitimize an entry that would otherwise constitute a burglary. Insofar as a defendant might introduce evidence at trial to establish a lawful entry, that’s certainly correct. But does the State affirmatively have to allege and prove a lack of consent? One of the nine common law felonies, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. 4 Bl. *224. North Carolina statute divides the crime into degrees – it’s first-degree if the home is occupied – but otherwise retains the common law definition. N.C.G.S. § 14-51. Whatever the State might now have to prove at trial to obtain a conviction, the common law elements did not explicitly include a lack of consent. This post explores the issue of consent in our criminal law and attempts to determine how consent operates to prove or disprove a burglary.
Women in Policing
Think about the officers involved in some of the recent high-profile incidents involving police use of excessive force. The officers involved in George Floyd’s death were Derek Chauvin, Alexander Keung, Thomas Lane, and Tou Thao. The officers involved in Tyre Nichols’s death were Tadarrius Bean, Demetrius Haley, Emmitt Martin, Desmond Mills, and Justin Smith. Walter Scott was shot by Michael Slager. These officers vary in age, race, and education. But they have one thing in common: they’re all men.
News Roundup
The most shocking story of the week involves four residents of South Carolina who travelled to Mexico, where two were killed and the other two abducted and eventually rescued. At least one member of the group was apparently planning a cosmetic medical procedure while abroad. It initially appeared that the four had been accidentally caught in the middle of a shootout between rival cartels, but more recent reporting has suggested that they may have been targeted after being mistaken for Haitian drug traffickers – or even may have been involved in drug trafficking themselves. WRAL has an updated story here, and the New York Post has one here scrutinizing the criminal history of the victims. It is certainly an evolving story. Read on for more news.
Case Summaries – N.C. Court of Appeals (March 7, 2023)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on March 7, 2023. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
Spring 2023 Update on the Constitutionality of Gun Laws
Last fall, I wrote a post about the litigation over the constitutionality of various firearms restrictions in the wake of New York State Rifle & Pistol Association v. Bruen, 597 U.S. __, 142 S. Ct. 2111 (2022). Recall that in Bruen, the Supreme Court announced a new interpretive approach for Second Amendment claims: courts must determine whether the challenged regulation is “consistent with the Nation’s historical tradition of firearm regulation.” Litigants have subsequently come forward with numerous challenges to gun laws, and courts have struggled with how to apply the new test. As detailed below, the Fifth Circuit recently issued a major federal appellate case decided under the Bruen framework, and we are awaiting another from the Third Circuit on an even more important issue.
News Roundup
Next door in South Carolina, disgraced personal injury attorney and part-time prosecutor Alex Murdaugh has been convicted of the murders of his wife and son. The case has been in the news partly because of what some see as the exotic lifestyle of the Murdaugh family, with the murders taking place on the family’s 1700 acre lowcountry hunting estate. (The property has recently been put up for sale and is under contract – you can see the listing here.) Murdaugh testified in his own defense, admitting that he regularly stole money from his clients and that he lied to police during the investigation of the crimes. Closing arguments took place on Wednesday and Thursday, with deliberations lasting under three hours on Thursday afternoon. The Associated Press covers the verdict here. NPR has a story here that addresses some of the major revelations of the trial. Keep reading for more news.
Right to a Public Trial
The Sixth Amendment provides that a person accused of a crime “shall enjoy a public trial.” This right is grounded in the belief that judges and prosecutors will carry out their duties more responsibly in open court than they might in secret proceedings as well as the notion that a public trial encourages witnesses to come forward and discourages perjury. See Waller v. Georgia, 467 U.S. 39, 46 (1984).
The right to open trial proceedings is not absolute; it operates as a strong presumption rather than a guarantee. The presumption may be overcome in rare cases by other compelling rights and interests, such as the defendant’s right to a fair trial, the government’s interest in limiting the disclosure of sensitive information, and the need to protect the personal dignity of a testifying and vulnerable witness. See id. at 45; Bell v. Jarvis, 236 F.3d 149, 167-68 (4th Cir. 2000) (en banc).
Before a judge may close criminal trial proceedings to the public, (1) the party seeking to close the courtroom must advance an overriding interest that is likely to be prejudiced by open proceedings; (2) the trial court must consider reasonable alternatives to closing the proceeding; and (3) the trial court must make findings that are adequate to support the closure. Waller, 467 U.S. at 48. Finally, even if justified, (4) the closure must be no broader than necessary to protect the identified interest. Id. This four-part inquiry is referred to as the Waller test.
The North Carolina Court of Appeals in the recent case of State v. Miller, COA22-561 ___ N.C. App. ___ (Feb. 21, 2023) considered whether a trial court’s order closing the courtroom satisfied the Waller test and thus the Sixth Amendment.
Juveniles and the Law of Impaired Driving
What law applies when a juvenile is suspected of impaired driving? If the juvenile is 16- or 17-years-old, the criminal law applies in the same way that it applies to someone aged 18 or older. These offenses are carved out of juvenile jurisdiction (G.S. 7B-1501(7)b.) They are therefore criminal matters from their inception. However, if the juvenile is under age 16 at the time of the offense, the case is a juvenile matter from its inception. This blog explains how cases alleging impaired driving under the age of 16 should proceed pursuant to the Juvenile Code.
Fourth Circuit Rules that the First Amendment May Protect a Vehicle Occupant’s Right to Livestream a Traffic Stop
Several years ago, two officers working for the Winterville Police Department stopped a car for a traffic violation. Dijon Sharpe was a passenger in the vehicle. Sharpe had some prior negative interactions with police, so he began using his phone to livestream the stop on Facebook Live. One of the officers saw what Sharpe was doing and attempted to grab the phone, saying “We ain’t gonna do Facebook Live, because that’s an officer safety issue.” Sharpe held on to the phone and continued to livestream the stop. One of the officers told him that recording the stop was fine, but that livestreaming was not permissible and that “in the future,” if he attempted to livestream a stop, his phone would be taken from him. Sharpe subsequently sued, contending that the officers violated his First Amendment rights by trying to prevent him from livestreaming the stop. A federal district court dismissed his complaint. Sharpe appealed, and the Fourth Circuit recently issued a significant opinion in the case. Read on to find out what the court said.
News Roundup
Things are going full tilt at the General Assembly. One new bill of interest this week would reduce the per se impairment blood alcohol content from .08 to .05. If the bill passes, this 50-state comparison chart suggests that North Carolina would be the second state, after Utah, to adopt the lower limit. The National Highway Traffic Safety Administration reports that Utah’s adoption of the .05 standard has saved lives and recommends that other states follow suit. Keep reading for more news.