Yesterday, Alabama became the first state in the nation to execute a prisoner using nitrogen hypoxia. The AP reports here that “Kenneth Eugene Smith, 58, was pronounced dead at 8:25 p.m. . . . after breathing pure nitrogen gas through a face mask to cause oxygen deprivation.” Smith was sentenced to death three decades ago for his role in a contract killing. Alabama attempted to execute him by lethal injection in 2022, but the attempt failed when authorities were unable to attach an IV to his veins. The Supreme Court declined to block the nitrogen gas execution earlier this week, over a dissent from three liberal Justices. The linked story contains some details of the execution. Keep reading for more news.
State v. Forney: Chewing Gum, Breath Tests, and Prejudice
In impaired driving cases, the results of a breath test of the defendant are admissible at trial when the testing is performed in accordance with statutory requirements and applicable administrative regulations. G.S. 20-139.1(b). When the testing is not carried out as required, however, the results are inadmissible. See State v. Davis, 208 N.C. App. 26, 34 (2010).
Among the testing requirements is that the law enforcement officer carrying out the test observe the defendant to determine that he or she “has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” See 10A NCAC 41B .0101(6) (defining “observation period” and specifying further that “[d]ental devices or oral jewelry need not be removed”); 10A NCAC 41B .0322 (requiring that observation periods be met before breath test is conducted). The purpose of the observation period is to ensure that the test results reflect the concentration of alcohol in a sample of the person’s deep lung breath rather than an alcohol concentration based on alcohol in the person’s mouth.
Last week, the Court of Appeals in State v. Forney, ___ N.C. App. ___, ___ S.E.2d ____ (January 16, 2024), considered whether tests results from a defendant who had chewing gum in his mouth during the observation period were admissible under G.S. 20-139.1(b).
When Can the State Use Testimony from the Probable Cause Hearing at Trial?
My colleague, Phil Dixon, blogged about the Court of Appeals’ decision in State v. Joyner, 284 N.C. App. 681 (2022), here. In Joyner, the court ruled that the State did not run afoul of the Confrontation Clause when it introduced the victim’s testimony from a civil 50C hearing at the defendant’s criminal trial. Last year, the court decided State v. Smith, 287 N.C. App. 614 (2023) (unpublished), a case that provides an interesting counterpoint to Joyner. In Smith, the State recorded the victim’s testimony from the probable cause hearing in district court and moved to admit the testimony at trial in superior court after the victim became unavailable. The trial court admitted the testimony, but the Court of Appeals reversed. It ruled that the opportunity to cross-examine the victim at the probable cause hearing was not “adequate” to comport with constitutional requirements, vacated the convictions for first-degree kidnapping and human trafficking, and ordered a new trial.
Although the opinion is unpublished, the State did not seek further review, and the Smith decision has important implications for practitioners. This post examines those issues and offers advice for defenders when the State attempts to introduce recorded testimony from a probable cause hearing at trial.
When Juvenile Justice Matters Cross State Lines: The Interstate Compact for Juveniles (ICJ)
Imagine a case involving a juvenile who lives in North Carolina and is in secure custody because of a charge of an act of delinquency in New York comes across your desk. You look to the Juvenile Code to read the statute that governs interstate issues. You find Article 40 of Chapter 7B, “Interstate Compact for Juveniles.” But, after reading Article 40, you realize that there is no statutory guidance regarding the actual procedure in the case. Where do you turn? The law regarding interstate matters in juvenile justice cases is perhaps the best kept secret in juvenile law. The actual substance can only be found in the Rules promulgated by the Interstate Commission for Juveniles.
News Roundup
A recent study published by The Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania examines the use of presumptive field tests used by law enforcement to detect the presence of illegal drugs. It notes that field tests are “notoriously imprecise” and commonly produce a positive result even when no controlled substance is present. The study found that more than 770,000 drug arrests in the nation involved field tests and suggests that around 30,000 people are wrongfully arrested based on false positives from the tests each year. North Carolina law recognizes that field tests do not meet the standards for expert testimony under Evid. R. 702. State v. Carter, 237 N.C. App. 274 (2014). But the use of field tests on the ground—whether to establish probable cause or to determine compliance with conditions of supervision, for instance—remains a common occurrence. You can read the study here. Read on for more criminal law news.
Case Summaries: N.C. Court of Appeals (Jan. 16, 2024)
This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on January 16, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.
News Roundup
The long-awaited North Carolina sports betting law went into effect on Monday. House Bill 347, which was passed last summer, authorizes and regulates wagering on horse racing and on professional, college, and amateur sports. It allows up to twelve legal online sportsbooks and eight in-person sportsbooks to operate at professional sports venues in the state.
The law provides the following penalties for violations of its provisions:
- A Class 2 misdemeanor for knowingly engaging in wagering in violation of the new law;
- A Class 2 misdemeanor for any person under the age of 21 to engage in wagering;
- A Class G felony to influence or attempt to influence the outcome of any competition or aspect of any competition that is the subject of wagering; and
- A Class I felony for any applicant for a license under the new laws to willfully furnish, supply, or otherwise give false information on the license application.
State v. Woolard: DWI, Probable Cause, and Motions Procedures
Because the State’s ability to prove impairment in prosecutions for driving while impaired often turns on whether the officer had probable cause to arrest — and thereafter test — the defendant, probable cause to make a warrantless arrest is a frequently litigated issue in DWI cases. While for many years there was a dearth of case law exploring the hard calls in this area, that trend has changed. In several arguably close cases over the past decade, the appellate courts have considered whether impaired driving arrests by law enforcement officers were supported by probable cause. See State v. Parisi, 372 N.C. 639 (2019) (driver’s admission to drinking, his red and glassy eyes, his odor of alcohol, and multiple indicators of impairment on field sobriety tests established probable cause; affirming court of appeals’ opinion reversing trial court); State v. Lindsey, 249 N.C. App. 516 (2016) (odor of alcohol on driver’s breath, red and glassy eyes, admission to drinking, and five clues of impairment from horizontal gaze nystagmus test provided probable cause; affirming trial court order denying motion to suppress); State v. Overocker, 236 N.C. App. 423 (2014) (light odor of alcohol and consumption of three alcoholic drinks in four-hour period were insufficient to establish probable cause; affirming trial court order granting motion to suppress); and State v. Townsend, 236 N.C. App. 456 (2014) (driver’s odor of alcohol, positive results on portable breath test, bloodshot eyes, and signs of impairment while performing field sobriety tests established probable cause; affirming trial court’s denial of motion to suppress).
Last December, the North Carolina Supreme Court added to that list with its opinion in State v. Woolard, ___ N.C. ___, 894 S.E.2d 717 (2023) reversing, upon certiorari review, the trial court’s determination that an arresting officer lacked probable cause for impaired driving. This post will review Woolard, its holding, and its path to the state’s highest court.
Welcome, Daniel Spiegel!
It is my pleasure to announce that Daniel “Danny” Spiegel has joined the Courts Group faculty here at the School of Government as an expert in criminal law. We are thrilled to have him as a part of the team. Danny’s work will primarily focus on defender issues, but he will also teach and advise judicial officials and other court system actors. I expect Danny will soon be a regular voice on the blog and presenter at SOG trainings. Please join me in giving Danny a warm welcome to the SOG!