Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes. Continue reading
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In State v. Friend, ___ N.C. App. ___, 724 S.E.2d 85 (2012), the Court of Appeals addressed the district court’s authority when, after the court refuses to allow a continuance, the State takes a voluntary dismissal and subsequently refiles the case. In Friend, the State voluntarily dismissed an impaired driving charge after the district court denied the State’s motion for a continuance; and when the State filed a new impaired driving charge nine days later based on the same incident, the district court dismissed the charge in light of its earlier refusal to grant the State a continuance. The Court of Appeals found that dismissal was not a proper remedy. The court found that the State’s taking of a voluntary dismissal and reinstitution of the charges after the district court’s denial of a continuance did not interfere with the district court’s authority over the calendar and therefore did not constitute a separation of powers violation. The court also found in the circumstances of the case that proceeding with prosecution of the charges did not violate the defendant’s speedy trial and due process rights. My colleague Shea Denning summarized the case here.
In State v. Sheppard, ___ S.E.2d ___ (Feb. 19, 2013), the Court of Appeals in an unpublished opinion further considered the problem of delay in district court, this time upholding dismissal of the charges on speedy trial grounds. In Sheppard, as in Friend, the defendant was charged with impaired driving. Also as in Friend, when the district court denied the State’s request for a continuance (in this case after an 11-month delay following arrest), the State took a voluntary dismissal and, later the same day, refiled the charges and rearrested the defendant. The district court denied the defendant’s motion to dismiss for a speedy trial violation, and the defendant was tried and convicted in district court, but on appeal for a trial de novo the superior court granted the motion to dismiss for a speedy trial violation. The Court of Appeals affirmed the superior court’s ruling, holding that the fourteen-month delay from the defendant’s arrest to her trial in district court supported the motion. In reaching its conclusion, the Court of Appeals rejected the State’s argument that the defendant waived her speedy trial right by objecting to the chemical analyst’s affidavit and asserting her right to confront the analyst at trial, recognizing that a defendant may not be required to give up one constitutional right to assert another.
The general takeaways from Friend and Sheppard on calendaring in district court can be summarized as follows:
1. The district court has ultimate authority over its calendar and may refuse to grant a request for a continuance by the State. Friend recognized this authority in light of Simeon v. Hardin, 339 N.C. 358 (1994), which addressed the limits on prosecutorial control over the criminal calendar, and Sheppard reinforces the principle. See also Michael Crowell, Control of the Calendar in Criminal District Court (UNC School of Government, July 2010). (Note that G.S. 20-139.1(e2) contains special provisions on continuances in impaired driving cases involving testimony by a chemical analyst; the statute was not directly at issue in either case.)
2. If the district court refuses to grant a continuance, the State must proceed with the case or take a voluntary dismissal. Because the court has ultimate authority to manage cases on its calendar, the State may not ignore the court’s order denying a continuance and unilaterally reschedule the case to a different date. See generally Crowell at 4. If the State does not take a voluntary dismissal, the district court may order the State to call its first witness and, if the State does not proceed, may acquit the defendant for a failure of proof. See State v. Watts, 35 So.3d 1, 7 (Ala. Crim. App. 2009); People v. Mooar, 416 N.E.2d 81, 84 (Ill. App. Ct. 1981).
3. If the State takes a voluntary dismissal and subsequently refiles the charges, the district court may not dismiss the case solely because the court previously denied the State’s request for a continuance. Although refiling of the charges may seem in derogation of the court’s previous scheduling orders, Friend found that refiling does not unconstitutionally interfere with the court’s authority over the calendar.
4. A district court has the authority to dismiss a case after refiling if prosecution of the charges violates other of the defendant’s rights. (Note that G.S. 20-38.6 contains special provisions on dismissal motions in impaired driving cases.) Thus:
- If the two-year statute of limitations for misdemeanors has run (measured from the offense date to the refiling date), the defendant is entitled to dismissal. See generally State v. Madry, 140 N.C. App. 600 (2000).
- If there was delay in prosecution of the case before the State took a dismissal, the district court may consider that delay along with any delay after refiling of the case in ruling on a motion to dismiss for violation of the right to a speedy trial. See United States v. Columbo, 852 F.2d 19, 23–24 (1st Cir. 1988) (“Were it otherwise, the government would be able to nullify a defendant’s speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution.”). In Friend, the court stated that it did not need to consider the delay in district court because the defendant did not make a speedy trial demand until after he appealed for a trial de novo in superior court; therefore, only the delay in superior court was relevant. This interpretation seems inconsistent with the four-factor analysis for speedy trial claims in Barker v. Wingo, 407 U.S. 514 (1972), under which a request for a speedy trial is one factor and not determinative. (Notwithstanding its initial statement, the court in Friend went on to consider the entire delay in assessing and ultimately rejecting the defendant’s speedy trial claim.) Friend’s view of the applicable period of delay was not at issue in Sheppard, in which the defendant made eight speedy trial requests in district court and another four requests in superior court.
- A due process violation may also provide grounds for dismissal. In Simeon v. Hardin, 339 N.C. at 377–78, a civil action for declaratory and injunctive relief, the Court found that the plaintiff’s allegations about the district attorney’s calendar practices were sufficient to state a claim of a due process violation (and potentially other constitutional violations), and the case was remanded for further proceedings. The plaintiffs alleged that the practices included, among other things: manipulating the calendar to exact pretrial punishment on incarcerated defendants and pressure defendants to plead guilty; calling cases for trial without adequate notice, thereby impairing the quality of representation; and calendaring cases repeatedly and causing defendants unnecessary expense and inconvenience. Friend found no violation of due process; Sheppard did not address the issue.
5. If the State refiles the charges after taking a voluntary dismissal and issues an arrest warrant rather than a criminal summons, rearrest may lend support to a claim of a speedy trial violation per the prejudice factor in Barker v. Wingo or a due process violation per Simeon v. Hardin. While the court probably could not dictate the criminal process to be used by the State should it decide to refile, the court certainly could unsecure any bond for a defendant if rearrested.
Friend and Sheppard are probably not the last words on calendaring in district court, but they advance our understanding of the applicable principles and procedures.
State v. Friend: Dismissal and Re-filing of DWI Charges Did Not Violate Defendant’s Constitutional Rights
Jeff wrote here about State v. Fields, ___ N.C. App. ___ (March 6, 2012), a case in which the officer’s observation of the defendant’s vehicle as moving within its lane “like a ball bouncing in a small room” provided reasonable suspicion for a traffic stop that culminated in an impaired driving charge. Another recent court of appeals decision, State v. Friend, ___ N.C. App. ___ (2012) addresses a different kind of bouncing in connection with an impaired driving case, namely the bouncing of cases between district and superior courts and the effect it has on a defendant’s right to due process and a speedy trial.
The defendant in Friend initially was charged with impaired driving on March 7, 2006. The case was continued eleven times, several times based on the unavailability of the State’s witnesses and several times upon the defendant’s request. On July 18, 2007, the State again moved to continue on the basis that the arresting officer was not in court. When the district court judge denied the State’s motion, the state voluntarily dismissed the charge. Nine days later, the state filed new charges based on the same March 7, 2006 incident of impaired driving. The defendant filed a motion to dismiss, which was granted by the district court on October 24, 2007. The State appealed this ruling to the superior court, which remanded the matter for entry of a written order, which the district court judge entered on April 4, 2008. The district court concluded that “a dismissal pursuant to NCGS 15A-931, after the prosecution, in control of the calendar, called the case at its own discretion and asked the Court for a decision [on the] Motion to Continue, involved the inherent authority of the Court, and to exercise a dismissal and reinstatement based on the facts and history of the case . . . violates the separation of powers clause and intrudes upon the authority of the Court, and violates the equal protection and due process rights of the Defendant.” (Record on Appeal at 22.) The State again appealed to superior court. This time, the superior court reversed the district court’s order dismissing the case and remanded for trial. The defendant was convicted in district court of driving while impaired on April 13, 2009. He appealed to superior court for trial de novo and moved in that forum for dismissal of the charges. On February 15, 2010, the superior court denied the defendant’s motion to dismiss. Defendant was convicted in superior court on the impaired driving charges on February 17, 2010, nearly four years after the offense occurred.
The defendant argued on appeal that the State’s dismissal of the original charges following the district court’s denial of the State’s motion for a continuance violated the separation of powers provision of the state constitution; therefore, the defendant contended, the superior court erred in not dismissing the subsequent charges. The defendant argued that the district attorney was an executive branch official who was obligated to proceed with trial when the district court denied the State’s continuance motion. Allowing the State to voluntarily dismiss the charge allowed the executive branch to subvert the courts’ ultimate authority to manage its trial calendar, he contended. The appellate court disagreed on two alternative bases. First, the court cited Simeon v. Hardin, 339 N.C. 358 (1994), for the proposition that the district attorney is a judicial or quasi-judicial officer; thus, no separation of powers issue arises. Second, the court noted that Simeon deemed constitutional G.S. 15A-931’s allocation of the power to dismiss charges upon the district attorney and opined that, notwithstanding the dismissal, “[t]he trial court retained ultimate control over its calendar.” Slip op. at 5. Therefore, the court reasoned, even if two branches of government are at work in the setting of the trial calendar, the defendant’s separation of powers claim fails.
The court then addressed the defendant’s claims that the filing of the post-dismissal charges violated his rights to due process and a speedy trial. The time limitations imposed by the two-year statute of limitations applicable to misdemeanor criminal offenses was significant in the court’s rejection of both constitutional claims. With respect to the defendant’s due process claim, the court noted that G.S. 15A-931(b) provides that dismissal of a charge does not toll the statute of limitations. Thus, while the State’s dismissal in Friend did not preclude the filing of new charges, the statute of limitations set an outer time limit for when those charges could be filed. In the case of the Friend defendant, any misdemeanor charges arising from the March 7, 2006 incident had to be filed by March 7, 2008. Noting that the defendant failed to show bad faith on the part of the State or prejudice to his defense, the Friend court determined that the filing of a new charge within the statute of limitations did not violate due process.
The defendant further argued that the delay in his trial, which he characterized as running from the offense date until his conviction in superior court infringed upon his constitutional right to a speedy trial. Pursuant to the four-factor analysis established in Barker v. Wingo, 474 U.S. 514 (1972), for evaluating such a claim, the court first considered the length of the delay. The court noted that the additional factors—the reason for the delay, the defendant’s assertion of his right to a speedy trial, and prejudice to the defendant—only were considered if the delay was for a year or more. Given that the defendant in Friend made his sole speedy trial demand in superior court, the court computed the delay as consisting of the time that elapsed between the defendant’s appeal to superior court (April 13, 2009) and his trial in superior court (February 15, 2009). Because this period was less than one year, the court stated that it was unnecessary to consider additional factors.
Nevertheless, assuming for the sake of argument that the delay exceeded one year, the court applied the additional factors, and again concluded the defendant’s claim lacked merit. Even though the State’s dismissal resulted from its failure to procure witnesses in court on the day of trial, the court noted that more than half of the earlier continuances were granted at the defendant’s behest. The court considered the delays associated with the “bounc[ing] back and forth between District Court and Superior Court” based on the State’s appeal of the order dismissing the case and the recusal of the original district court judge to be neutral factors. Slip op. at 10. The court weighed against the defendant’s claim his failure to demand a speedy trial until nearly four years after the offense and a year after his conviction in district court. Finally, the court found that the defendant failed to demonstrate that he was prejudiced by the delay. While the defendant argued that he suffered “‘anxiety and concern’ during the delay,” the court noted that the State filed the subsequent charge nine days after dismissing the original charge and “well within the two year statute of limitations for misdemeanors.” Slip op. at 12. The court considered the defendant’s anxiety as “limited by the statute of limitations” and determined that the prejudice factor weighed against the defendant’s claim. Id.
While Friend does not preclude or render without merit all constitutional challenges arising from the dismissal and re-filing of misdemeanor charges when the State is denied a desired continuance, it indicates that such claims are not likely to succeed absent extenuating circumstances such as bad faith or prejudice to the defendant. Thus, prosecutors can continue to tactically use the dismissal authority conferred by G.S. 15A-931 to circumvent the denial of a motion to continue in a misdemeanor prosecution. Friend suggests there is little risk that this dismissal and re-filing maneuver will be deemed to usurp the court’s ultimate authority to manage its trial calendar or to otherwise jeopardize prosecution on the re-filed charges.