Back in May, a divided Court of Appeals affirmed the trial court’s ruling that the defendant was not entitled to a jury instruction on entrapment in an online solicitation of a minor case. Entrapment isn’t exactly a common defense (as Jeff noted here). When it comes up, it’s often in drug cases, but it can also arise in computer solicitation cases where law enforcement officers pretend to be underage. State v. Keller, ___ N.C. App. ___, 828 S.E.2d 578 (May 21, 2019), review allowed, ___ N.C. ___ (August 14, 2019), is an example of such a case and appears to be the second reported decision dealing directly with the defense in this context, so I wanted to flag it for readers. Fair warning, this post recounts some of the sexually graphic discussions at issue in the case. Continue reading
Tag Archives: affirmative defenses
The court of appeals recently addressed an issue that has divided courts elsewhere: whether defense counsel may present an insanity defense without the defendant’s consent. The court ruled that defense counsel may not do so, stating that “because the decision of whether to plead not guilty by reason of insanity is part of the decision of what plea to enter, the right to make that decision is a substantial right belonging to the defendant.” Continue reading →
George Zimmerman, a neighborhood watch volunteer in Sanford, Florida, recently shot and killed Trayvon Martin, an unarmed black 17-year-old who was walking through Zimmerman’s neighborhood. Martin was returning from a convenience store to the home of his father’s fiancee. The shooting has been in the news so much, and has stirred such strong emotions, that I am reluctant to wade into it, but the case raises at least two interesting legal issues.
I’ll start by noting that there are two competing narratives about what happened. Those who believe that Zimmerman was a vigilante who approached, assaulted, and then shot Martin emphasize (1) that Zimmerman contacted police upon seeing Martin, then, even though the dispatcher told him that “we don’t need you to do that,” chose to follow Martin, (2) that Martin was talking on his cell phone to his girlfriend, and told her that he was being followed and that he was afraid, and (3) that Martin carried nothing more threatening than a bag of Skittles. ABC News has a story here that confirms most of those facts.
However, the Sanford police did not charge Zimmerman with a crime, apparently accepting Zimmerman’s very different version of events. The New York Times reports here that Zimmerman told the police after the shooting that he had failed to locate Martin and was returning to his vehicle when Martin confronted him, punched him, and then repeatedly slammed his head into the sidewalk. There is at least some evidence corroborating Zimmerman’s claims. The Orlando Sentinel reports here that a witness “told police he saw Zimmerman on the ground with [Martin] on top, pounding him,” and that Zimmerman was crying for help. Zimmerman’s lawyer says that Zimmerman suffered a broken nose. Paramedics treated Zimmerman at the scene of the incident, though Zimmerman declined to go to the hospital. A police report states that the back of Zimmerman’s clothes were wet and stained as if he had been struggling on his back on the ground.
I don’t know enough about the case to have an opinion about which narrative is more plausible. The case is being investigated by a Florida grand jury, so perhaps we will have more information soon. However, the case did get me thinking about the following legal issues.
- The significance of stand your ground laws. The Martin/Zimmerman case has led to a tremendous amount of discussion about Florida’s stand your ground law, which allows a person who is threatened with deadly force to respond with deadly force without a duty to retreat. A few examples of criticism of the law spurred by this case are here, here, and here. North Carolina now has a similar statute, as my colleague John Rubin discussed here. But it’s pretty clear that this case has nothing to do with whether Zimmerman could stand his ground or had a duty to retreat. If the vigilante version of the facts is true, then Zimmerman was the aggressor, didn’t face a deadly threat, and can’t claim self-defense even under the stand your ground law. If Zimmerman’s version of the facts is true, he was on the ground getting a brutal beating, and had no opportunity to retreat. For a more detailed analysis along the same lines, see Professor David Kopel’s discussion here. More generally, I suspect that the impact of stand your ground laws is quite limited, for two reasons. First, such laws apply only when a person is threatened with deadly force, and it is usually not possible to retreat safely from situations in which deadly force is being threatened, so the laws apply to a small universe of cases. Second, even before the recent wave of statutory stand your ground laws, often accompanied by expanded gun rights, most states rejected a duty to retreat. John’s prior post suggests that North Carolina generally did not impose a duty to retreat.
- Should affirmative defenses be considered when determining probable cause? When I teach new magistrates about making probable cause determinations, I generally teach them to disregard possible defenses unless a defense is a slam dunk. My reasoning has been (1) that the burden is on the defendant to establish an affirmative defense, (2) that he or she will have an opportunity to do so in court, and (3) that magistrates generally are not trained in the law of affirmative defenses. But the police in the Zimmerman case declined to arrest Zimmerman because they concluded that he was protected by an affirmative defense, namely, self defense. And law professor Eugene Volokh argues here that officers were correct to consider the defense, as probable cause “should be probable cause to believe that the conduct was indeed criminal, and if the self-defense case is strong enough, that negates probable cause to believe that a crime (as opposed to a justifiable homicide) was committed.” That got me thinking further about how strong the evidence of an affirmative defense needs to be before an officer or a magistrate may or must consider it. I went looking for case law. I didn’t find anything in North Carolina, and cases elsewhere don’t quite agree. Here is what I found:
- Holman v. City of York, 564 F.3d 225 (3rd Cir. 2009) (holding that an arresting officer was not required to consider the defense of necessity when assessing probable cause for trespass because that would present “daunting issues . . . [and] countless factual permutations,” and citing a previous case reaching a similar conclusion about the statute of limitations defense; the court stopped short of holding that officers need never consider affirmative defenses)
- Fridley v. Horrighs, 291 F.3d 867 (6th Cir. 2002) (summarizing Sixth Circuit law as precluding arrest when an officer conclusively knows that an affirmative defense applies to a suspect’s conduct, though officers are not required to investigate possible affirmative defenses)
- Pickens v. Hollowell, 59 F.3d 1203 (11th Cir. 1995) (“[P]olice officers have no responsibility to determine the viability of a statute of limitations defense when executing a valid arrest warrant. The existence of a statute of limitations bar is a legal question that is appropriately evaluated by the district attorney or by a court after a prosecution is begun, not by police officers executing an arrest warrant.”)
- State v. Reid, 988 P.2d 1038 (Wash. Ct. App. 1999) (stating that “[a]t the time of arrest, the officer cannot know and it would be unreasonable to require him to estimate the likelihood of success of a potential affirmative defense,” that “an affirmative defense is properly a matter for the ultimate trier of fact,” and that therefore a court may not consider affirmative defenses when assessing the legality of an arrest in the context of a motion to suppress, and citing similar cases from two other states)
I’m inclined to stick to the idea that affirmative defenses shouldn’t be considered unless they’re slam dunks, which seems to be pretty close to what Fridley says. But I’m open to persuasion, so let me know if you’re aware of additional authority or think I’ve got it wrong.
The automatism defense is discussed briefly on page 14 of the current version of North Carolina Crimes. Because I’ve had a couple of questions about it, I thought I’d write about it in a little more detail.
Automatism is the “absence of consciousness[, which] not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.” State v. Fields, 324 N.C. 204 (1989). So automatism appears to be a complete defense to all crimes, presumably even the strict liability offenses discussed here. I know of only two exceptions to this rule. The first is felony murder. State v. Boggess, 195 N.C. App. 770 (2009) (the defendant kidnapped and killed the victim; the kidnapping was committed voluntarily; the defendant’s evidence suggested that he was in a dissociative state when he killed the victim; trial court’s refusal to instruct the jury on automatism with respect to the murder was proper; where the underlying felony is voluntary, automatism is not a defense to felony murder). The second is when “the crime charged can be committed recklessly or negligently and the defendant, knowing of his tendency to black out, put himself in a position where a manifestation of this tendency would be especially dangerous, such as driving an automobile alone.” N.C.P.I. – Crim. 302.10 n. 1.
Generally, the “burden is on the defendant to establish the [automatism] defense to the satisfaction of the jury.” State v. Andrews, 154 N.C. App. 553 (2002). Pacing the burden on the defendant does not violate due process, because automatism is an affirmative defense. State v. Jones, 137 N.C. App. 22 (2000). However, if the defense “arises out of the State’s own evidence,” it appears that the burden is on the state to prove the defendant’s consciousness beyond a reasonable doubt. State v. Caddell, 287 N.C. 266 (1975). See also N.C.P.I. – Crim. 302.10.
Despite some early authority to the contrary, “unconsciousness as a result of voluntary ingestion of alcohol or drugs will not warrant the instruction [for automatism] requested here by defendant.” State v. Fisher, 336 N.C. 684 (1994). See also State v. Morganherring, 350 N.C. 701 (1999) (holding that automatism and voluntary intoxication are “fundamentally inconsistent” defenses). But see State v. Smith, 59 N.C. App. 227 (1982) (“Under the law of this State, unconsciousness, or automatism, can be a complete defense to a criminal charge. . . Delirium from drugs or drunkenness is recognized as a source of unconsciousness for purposes of this defense.”).
Cases holding that an automatism instruction should have been given include State v. Connell, 127 N.C. App. 685 (1997) (plain error to fail to instruct on automatism in indecent liberties case where “there [was] no direct evidence that the defendant was awake at the time of the alleged touching” and “the victim admitted she did not know whether the defendant was asleep or awake”), and State v. Fields, 324 N.C. 204 (1989) (trial court erred in failing to instruct on automatism where the defendant’s expert witness testified that the defendant was in a “dissociative state” as a result of PTSD when he shot the victim)
Cases holding that an automatism instruction was properly denied include Andrews, supra (evidence insufficient to require an instruction where defense expert testified that the defendant “was suffering from a condition known as serotonergic syndrome as a result of simultaneously taking both Effexor and Prozac,” and that the syndrome could cause “anterograde amnesia; in other words, they go through something, they realize they have done it, and afterwards, they don’t realize, again, the weight of their actions”), and State v. Boyd, 343 N.C. 699 (1996) (defendant’s testimony that “he could not remember many of his actions on the day of the crimes” was insufficient to require a jury instruction on automatism, given his complete recollection of events during an earlier statement to police and his failure to tell police that he suffered from automatism at the time of the crime; his limited recollection at trial may have been “attributable to nothing but the passage of time”).
Finally, a procedural note. Under G.S. 15A-905(c), if the state provides discovery to the defendant, “the court must, upon motion of the State, order the defendant to . . . [g]ive notice to the State of the intent to offer at trial a defense of . . . automatism.”