Earlier this month, the North Carolina Supreme Court decided State v. Golder, ___ N.C. ___, ___ S.E.2d ___, 2020 WL 1650899 (April 3, 2020). Before that decision, there were somewhat tricky rules about how to preserve appellate review of all issues in a motion to dismiss for insufficiency of the evidence. No more. The Golder decision clarifies that all sufficiency issues are preserved with a properly timed motion to dismiss at trial. This decision overrules a line of cases holding otherwise and simplifies the process of preserving sufficiency issues at trial for defense counsel. Read on for the details. Continue reading
Tag Archives: motion to dismiss
On Jan. 7, 2020, the Court of Appeals decided State v. Schalow (“Schalow II”), ___ N.C. App. ___, 837 S.E.2d 593, temp. stay allowed, ___ N.C. ___, 837 S.E.2d 123 (Jan. 27, 2020), ruling that the State’s third prosecution of the defendant was vindictive and violated the rules for joinder of offenses. I previously wrote about the Court of Appeals decision in Schalow I regarding a double jeopardy issue (on which the defendant also prevailed), here. The vindictive prosecution holding of Schalow II is itself significant, and I encourage everyone to read the opinion in full for that part of the case alone. In this post, though, I wanted to focus on the joinder issue. This issue in the Schalow II opinion represents the first time that our appellate division has ever granted relief for a joinder of offenses violation. Continue reading →
Two weeks ago, the SOG hosted over 50 public defenders, contract attorneys, and private assigned counsel at its annual Felony Defender training. The training provides guidance to lawyers transitioning to superior court about handling a felony case from start to finish. Topics include discovery and investigation, pretrial motions, voir dire, and jury instructions, among others. On a personal note, it was my first training in my role as Defender Educator and my first behind-the-scenes look at the effort required to plan and execute a successful course. Without the hard work of the faculty and support staff from the SOG, as well as volunteers from IDS and the private bar, the program would not have been possible. Thanks to everyone that participated. I truly enjoyed the training, especially speaking with the lawyers that attended, and I hope they found it worthwhile as well.
Criminal procedure aficionados, close your red books and riddle me this:
A district court judge in a DWI case preliminarily grants a defendant’s motion to suppress. The State appeals to superior court. The superior court affirms the district court’s determination and remands the case for entry of an order suppressing the evidence and dismissing the charges. The district court enters the order. Does the State have the right to appeal?
That’s what I said to my husband during the breakfast hour this morning, while I was working as a short-order cook and waitress for three rather demanding customers (our children). To his credit, he complied and asked how he could help. As a result, I not only got relief, but I got to pick the form it arrived in (my husband packing lunches).
Defense counsel are in a far different posture when they ask a judge for relief in DWI cases. Sure, they might get a remedy, but they don’t get to choose its form. Instead, the legislature and the courts have prescribed the relief available for various types of violations of a defendant’s constitutional or statutory rights. Despite the abundance of law on these issues, confusion abounds about the appropriate remedies for the State’s misdeeds, particularly when they occur in an impaired driving case.
So, if you’re looking for relief in the following circumstances, here’s your remedy.
The State failed to inform the defendant of her statutory implied consent rights before conducting a chemical analysis.
The results of the chemical analysis must be suppressed. State v. Shadding, 17 N.C. App. 279 (1973) (reasoning that “[s]uch rights of notification, explicitly given by statute, would be meaningless if the breathalyzer test results could be introduced into evidence despite non-compliance with the statute,” and holding that the State’s failure to offer evidence regarding whether the defendant was advised of his rights under G.S. 20-16.2(a) rendered results of the breath test inadmissible); see also State v. Fuller, 24 N.C. App. 38 (1974) (commenting that if the failure to advise of the rights set forth in G.S. 20-16.2 “is not going to preclude the admission in evidence of the test results, the General Assembly must delete the requirement”).
The State denied the defendant the statutory right to have a witness observe the chemical analysis.
If a live witness was turned away or denied access to the defendant after timely arriving and making reasonable efforts to gain access to the defendant, the results of the chemical analysis must be suppressed. See State v. Buckheit, 735 S.E.2d 345 (N.C. App. 2012) (holding that breath test results should have been suppressed when witness arrived less than 30 minutes after defendant was advised of his implied consent rights and made reasonable efforts to gain access to the defendant, but was not admitted to the breath testing room); State v. Hatley, 190 N.C. App. 639 (2008) (same); State v. Myers, 118 N.C. App. 452 (1995) (holding that breath tests results were improperly admitted as the defendant was denied the right to have his wife witness the breath test). There is no requirement that the defendant show he was prejudiced by the lack of a witness.
The State requested that the defendant submit to a chemical analysis sooner than 30 minutes from the time she was notified of her implied consent rights.
This allegation, without more, is insufficient to warrant any relief. A defendant must indicate at the time he or she is requested to submit to a chemical analysis that she desires to contact an attorney or have a witness present; otherwise, she waives the statutory right to delay the test. McDaniel v. DMV, 96 N.C. App. 495 (1989). Moreover, to be entitled to relief for a violation of the right to delay, the defendant must demonstrate that a witness was on the way and would have timely arrived, see State v. Buckner, 34 N.C. App. 447 (1977), or that he would have consulted with an attorney during this additional time, see Rock v. Hiatt, 103 N.C. App. 578 (1991) (distinguishing, in a refusal case, circumstances in which a defendant clearly did not intend to exercise right to contact an attorney or have a witness present from those in which the defendant was awaiting the timely advice of an attorney).
The State violated the defendant’s statutory rights to pretrial release by impermissibly holding him without clear and convincing evidence that his impairment posed a danger. The defendant asked to see his brother, who arrived at the jail within an hour of his arrest, and was not permitted to see him. The defendant was released from jail the next day, having seen no counsel, friends, or family since the time of his arrest, some 8 hours earlier.
The charges must be dismissed. The defendant was denied pre-trial release despite the absence of a basis for an impaired driving hold under G.S. 15A-534.2. This statutory violation resulted in the confinement of the defendant during the crucial period in which friends and family could have observed him to form opinions as to his condition following arrest. See State v. Ham, 105 N.C. App. 658 (1992) (stating that to warrant dismissal, the defendant must prove that he was denied access to witnesses and friends during the crucial period during which exculpatory evidence could have been gathered); State v. Knoll, 322 N.C. 535 (1988) (holding that the violation of a defendant’s statutory right to pretrial release in an impaired driving case that prejudices the defendant requires dismissal). While detained, the defendant was denied access to his brother, who was present at the jail, and who could have been a witness for the defense. Cf. State v. Labinski, 188 N.C. App. 120 (2008) (concluding that substantial violation of the defendant’s right to pretrial release did not establish basis for dismissal since defendant was not denied access to family and friends while in jail).
Suppose the defendant in the example above was lawfully detained because he could not post bond. He asked to see his brother, who arrived at the jail within an hour of his arrest, and was not permitted to see him. He was released from jail the next day, having seen no counsel, friends, or family since the time of his arrest, some 8 hours earlier.
The defendant may be entitled to dismissal of the charges based upon a flagrant violation of his constitutional rights, even though he was not unlawfully detained. G.S. 15A-954(a)(4). G.S. 15A-954(a)(4) codifies the North Carolina Supreme Court’s holding in State v. Hill, 277 N.C. 547 (1971) that the denial of a defendant’s constitutional right to communicate with counsel and friends at a time when the denial deprives him of the opportunity to confront the State’s witnesses with other testimony requires dismissal of the charges. The Hill court held that the defendant’s constitutional rights were violated when his brother-in-law, who also was his attorney, was not allowed to see him after his arrest for impaired driving. The jailer holding the defendant refused to release him after his brother-in-law posted bond and further refused to allow the brother-in-law to see the defendant. From the time the defendant was arrested at 11 p.m. until 7 a.m. the next morning, only law enforcement officers saw or had access to him.
The Hill court recognized that for offenses “of which intoxication is an essential element,” the denial of immediate access to witnesses may deprive “a defendant of his only opportunity to obtain evidence which might prove his innocence.” Because the guilt or innocence of a defendant charged with impaired driving “depends upon whether he was intoxicated at the time of his arrest,” such a defendant “must have access to his counsel, friends, relatives, or some disinterested person within a relatively short time after his arrest” in order to have “witnesses for his defense.” The court held that in the Hill defendant’s case “the right . . . to communicate with counsel and friends implies, at the very least, the right to have them see him, observe and examine him, with reference to his alleged intoxication.” Under these circumstances, the court concluded that “to say that the denial was not prejudicial is to assume that which is incapable of proof.” See also State v. Ferguson, 90 N.C. App. 513 (1988) (applying Hill to circumstances in which defendant’s wife was denied access to the breath testing room and in which the defendant did not see his wife until he was release from jail an hour and a half later).
At the defendant’s initial appearance on DWI charges, the magistrate failed to inform the defendant, who was committed to the sheriff’s custody, of the established procedures for having others appear at the jail to observe his condition or to administer an additional chemical analysis as required by G.S. 20-38.4(a)(4). The magistrate also failed to ask the defendant to complete AOC-CR-271, the Implied Consent Offense Notice form, or to provide the form and jail procedures to the defendant.
Absent additional facts, no relief is warranted. The failure to inform the defendant of the procedures for contacting people from jail is a statutory violation related to the defendant’s pre-trial release. It is unclear whether such a violation is substantial. Even if the magistrate’s dereliction of this statutory duty were deemed a substantial statutory violation, the defendant must demonstrate prejudice resulting from the violation to be entitled to relief. See Knoll, 322 N.C. 535. A defendant who successfully contacts a person from jail or meets with a witness while jailed likely could not demonstrate prejudice resulting from this violation. It also seems unlikely that a defendant who was advised generally at his initial appearance of the right to communicate with counsel and friends and who was granted access to a telephone or witness while jailed could establish the requisite prejudice.
After being charged with DWI and advised of his implied consent rights, the defendant refused to submit to a chemical analysis of his blood. The defendant subsequently was restrained by two officers while a trained phlebotomist withdrew a vial of blood. The arresting officer testified that he did not attempt to obtain a warrant authorizing the withdrawal of the defendant’s blood, though he estimated that the delay associated with obtaining a warrant would have been about 20 minutes. The officer said he instead relied on the exigency exception to the Fourth Amendment.
The defendant likely is entitled to suppression of the blood test results on these facts. The U.S. Supreme court in Missouri v. McNeely, 133 S. Ct. 1552 (2013) (discussed here), established that there is no per se exigency exception to the warrant requirement in impaired driving cases that authorizes the warrantless withdrawal of blood over a defendant’s objection. Instead, courts must look to the totality of the circumstances to determine whether the police can reasonably obtain a warrant without significantly undermining the efficacy of the search. If they can, the Fourth Amendment mandates that they do so. Assuming that a delay of 20 minutes is insufficiently long to undermine the efficacy of the search, cf. State v. Fletcher, 202 N.C. App. 107 (2010) (finding an exigency based on a delay of two to three hours), the warrantless withdrawal of the defendant’s blood in these circumstances violated the Fourth Amendment; thus the exclusionary rule bars the admission of the test results. See G.S. 15A-974 (requiring suppression if exclusion is required by the state or federal Constitution).