The Court of Appeals for the Sixth Circuit ruled last week that city parking enforcement officers’ use of chalk to mark the tires of parked vehicles to track how long they have been parked is a Fourth Amendment search. And, on the facts before it, the court held that the city failed to show that the search was reasonable.
Tag Archives: taylor
N.C. Court of Appeals Rules That Defendant Did Not Make An Unambiguous Assertion of Right to Counsel Under Miranda to Bar Officer’s Custodial Interrogation
The United States Supreme Court and North Carolina appellate courts have ruled that a defendant must make an unambiguous request for counsel under Miranda to bar an officer’s custodial interrogation. A week ago, the North Carolina Court of Appeals in State v. Taylor (April 19, 2016), ruled that the defendant did not make an unambiguous request for counsel under Miranda. This post provides the background to this issue and discusses the Taylor ruling. Continue reading →
In State v. Cooper, issued last week, the Court of Appeals reversed the defendant’s conviction for first-degree murder of his wife and ordered a new trial. The case has drawn considerable media attention; recent news reports indicate that the State intends to petition the state Supreme Court for review. This blog post focuses on one aspect of the decision by the Court of Appeals—the constitutional limits on discovery sanctions against the defendant, which previous North Carolina decisions had not closely examined.
In Taylor v. Illinois, 484 U.S. 400 (1988), the U.S. Supreme Court considered the appropriateness of sanctions against the defendant for discovery violations. The Court recognized that the Compulsory Process Clause of the Sixth Amendment gives defendants the right to present a defense. The Court then found that preclusion of a defense witness’s testimony as a sanction for a discovery violation may violate this right (rejecting the State’s argument that a discovery sanction would never violate the right to present a defense) but that preclusion is not automatically a violation (rejecting the defendant’s argument that preclusion would never be an appropriate sanction). The Court declined to announce a “comprehensive set of standards to guide the exercise of discretion in every possible case” (id. at 414), but it provided some direction about when preclusion, perhaps the most drastic sanction against the defense, may be permissible. In upholding the sanction imposed by the trial court, the Court stated that this “case fits into the category of willful misconduct in which the severest sanction is appropriate.” Id., 484 U.S. at 417.
In Cooper, the appropriateness of discovery sanctions against the defendant arose in connection with evidence obtained from the defendant’s laptop computer. Forensic examiners for the State testified that they had recovered temporary internet files from the defendant’s laptop, which showed that the day before his wife’s death someone had conducted a Google map search from the defendant’s home to the place where his wife’s body was later found. In response, the defendant attempted to call an expert to testify that the internet files had been planted, but the State objected that the expert did not have sufficient training and experience to give this opinion and the trial court allowed the expert to give only general testimony about the ease with which computer files could be altered or planted. The defendant immediately located a second computer expert, who reviewed the first expert’s work and was prepared to give a similar opinion. The State objected to the second expert, however, arguing that the defendant had violated the discovery statutes by failing to list the second expert on his witness list and failing to provide a copy of the second expert’s report and qualifications to the State before trial. The trial court agreed and precluded the second expert from testifying as a sanction for the discovery violation. As a result, the defendant was unable to present any expert testimony that the Google map files were corrupted or tampered with. The Court of Appeals reversed, finding among other things that the trial court erred by precluding the second expert from testifying as a discovery sanction. (The Court of Appeals also found merit in the defendant’s arguments that the trial court erred by limiting the first expert’s testimony and by denying the defendant’s motion to compel information about FBI computer protocols used in analyzing the defendant’s computer.)
Relying on Taylor v. Illinois and other decisions, the Court of Appeals in Cooper recognized that the sanction of preclusion against the defendant should be reserved for the most serious discovery violations. The Court found that the defendant sought out a second expert only after the State objected, for the first time at trial, to the qualifications of the defendant’s first expert. The defendant was not seeking a tactical advantage, and the record showed no willful misconduct. In finding the preclusion sanction disproportionate to the alleged discovery violation, the Court considered the fundamental nature of the right to present a defense, the importance of the excluded testimony to the issues in the case, and the minimal prejudice to the State by a lesser sanction, such as a continuance or recess. The Court concluded that the trial court abused its discretion in imposing the “harsh sanction” of preclusion. The Court found in the alternative that the sanction violated the defendant’s rights under the United States and North Carolina constitutions.
Some North Carolina decisions, without discussing constitutional considerations, have taken a similar approach in assessing the appropriateness of sanctions, examining the seriousness of the violation and weighing it against other interests. For example, in State v. Lane, 365 N.C. 7 (2011), in which the court upheld the trial court’s exclusion of the defendant’s expert testimony, the defendant failed to provide a report of his expert to the State despite repeated requests, orders by the court, and extensions of time to produce the report. The trial judge also found that the expert’s testimony was irrelevant. In State v. McDonald, 191 N.C. App. 782 (2008), the court upheld the trial court’s exclusion of two of four defenses for the defendant’s failure to give any notice of defenses despite repeated motions by the State. The defendant’s counsel, who had substituted into the case, professed not to have been served with any of the motions, but the State produced four or five motions, some of which had been served on counsel. The court found that the two excluded defenses would have required substantial, unanticipated preparation by the State. In State v. Gillespie, 180 N.C. App. 514 (2006), aff’d as modified, 362 N.C. 150 (2008), the Court of Appeals found that the preclusion sanction imposed against the defendant exceeded constitutional limits, but on appeal the Supreme Court reversed the sanction on statutory grounds and found that it was unnecessary for the Court of Appeals to have reached the constitutional issues.
Some North Carolina decisions have upheld preclusion sanctions for what appear to be lesser violations, but the results may be explainable by other aspects of those cases. See State v. Pender, ___ N.C. App. ___, 720 S.E.2d 836 (2012) (defendant not entitled to jury instruction on involuntary manslaughter based on imperfect self-defense where defendant did not provide State with notice of intent to assert self-defense; appellate court concluded in alternative that evidence was insufficient to support an instruction so any error in precluding defense was harmless); see also State v Leyva, 181 N.C. App. 491 (2007) (trial court did not abuse discretion in denying defendant’s request to allow him to call expert on reliability of confidential informants whom defendant failed to include on witness list; appellate court rejected defendant’s claim that he needed expert because of officers’ testimony about reliability of informant, finding that potential testimony was not required by interest of justice).
Ultimately, the best protection against discovery sanctions for both the defendant and the State is to use their best efforts to comply with discovery requirements. The cases suggest an additional caution for defense counsel. If the trial court is considering discovery sanctions against the defendant, defense counsel should raise any constitutional issues with the trial court; otherwise, the appellate court may decline to consider those issues on appeal. See State v. McDonald, 191 N.C. App. at 785 (so ruling).
If I were to compile guidance for law enforcement officers and judges on “what not to do” in an impaired driving case, I’d be sure to include excerpts from two cases decided by the court of appeals this week: State v. Petty and State v. Taylor.
Let’s start with Taylor, reserving discussion of Petty for a later post. The defendant in Taylor, then the chief deputy of the Lincoln County Sheriff’s Department, interfered with the criminal processing of a doctor arrested for impaired driving. The doctor, whose medical practice employed the defendant’s girlfriend, was stopped after he drove past a checkpoint. The doctor smelled of alcohol, admitted to consuming several alcohol beverages, showed signs of impairment, and refused to blow into an Alco-Sensor. He was arrested for impaired driving and taken to the sheriff’s office for a chemical analysis of his breath. That chemical analysis never occurred, however. Instead, when the doctor arrived at the sheriff’s department, the defendant (who upon hearing of the doctor’s arrest left his home for the sheriff’s department in the early morning hours) took the doctor into his office. The two spent twenty minutes alone before the defendant emerged and requested that the arresting officer bring to him an Alco-Sensor (a device the defendant was not trained to use). After obtaining the Alco-Sensor, the defendant returned to his office, where he and the doctor remained for another twenty minutes. The defendant then informed the arresting officer that the doctor had blown a 0.07 on an Alco-Sensor and that he had been released.
The defendant was charged by indictment with felonious obstruction of justice and convicted by the jury of the lesser-included offense of misdemeanor obstruction of justice. He filed a motion for appropriate relief (MAR), which was denied by the trial court. Defendant appealed his conviction and the denial of the MAR. The court of appeals found no error at trial and affirmed the denial of the MAR.
Most of the court’s analysis is dedicated to its rejection of the defendant’s contention that enactment of G.S. 14-233, (which defines the offense of resisting, delaying or obstructing an officer, a Class 2 misdemeanor), eviscerated the common law offense of obstruction of justice along with its rejection of defendant’s contention that the statute of limitations barred his conviction of the lesser included misdemeanor offense.
What’s interesting in terms of impaired driving law is the court’s rejection of defendant’s argument that the court by failing to instruct the jury that “‘it should find the defendant not guilty unless it was convinced beyond a reasonable double that [the arresting officer] had sufficient legal justification to process [the doctor] for impaired driving,’” since “‘[t]here is nothing illegal about obstructing the processing of an illegal arrest.’” (Slip op. at 22.) (The defendant did not request this instruction at trial.)
Even assuming, for purposes of discussion, that the defendant had the legal right to intervene to prevent further processing of the doctor based on his conclusion that the arresting officer lacked probable cause, the court held there was insufficient evidence to permit a jury determination that probable cause was lacking. While the evidence pointed to by the defendant, such as the 0.07 Alco-Sensor result and testimony from the doctor that the arresting officer told him that he “did fine” on a field sobriety test and that defendant administered additional field sobriety tests, would have been admissible at the doctor’s trial (if there had been one), it did not demonstrate that the arresting officer lacked probable cause. The court deemed significant the time lapse between the arresting officer’s observations of the doctor at the checkpoint and the defendant’s observations in his office. Incidentally, the time delay doesn’t strike me as overly significant, given that the defendant took the doctor into his office immediately upon the doctor’s arrival and spent only forty minutes there. After all, the arresting officer planned to administer a chemical analysis of the defendant’s breath, which would have required at least a fifteen minute delay to satisfy the observation period requirements.
Furthermore, the court found no evidence that defendant had any right or obligation to determine whether a subordinate had arrested a suspect without probable cause and to take corrective action, characterizing the record has “devoid of any evidence testing to show that Defendant had the responsibility for ‘un-arresting’ the doctor.” Thus, the court held that the defendant failed to demonstrate the record evidence would have supported delivery of this instruction, even if it was a correct statement of the law, an issue the court made clear it was not deciding.
I’ve heard the term “un-arrest” used before though I’m not sure the act described can actually be carried out (at least by an ordinary Muggle). The term is used to distinguish an arrested person’s release by an officer before an initial appearance from the release of such a person after an initial appearance (based either on a finding of no probable cause or upon the satisfaction of conditions of release). Are officers ever permitted to carry out such pre-initial appearance releases or, in other words, to “un-arrest” people? G.S. 15A-501(2) provides that a law enforcement officer must take a person who is arrested “before a judicial official without unnecessary delay.” A literal reading of this provision would require that when a law enforcement officer arrests someone and later determines that probable cause is lacking that he nevertheless proceed to take the person before a magistrate. My colleague and Fourth Amendment guru Bob Farb has opined that, notwithstanding this statutory requirement, “federal constitutional law appears to require that officers must release an arrestee when probable cause clearly no longer exists.” Robert L. Farb, Arrest, Search, and Investigation in North Carolina 45 & n. 365 (3rd ed. 2003) (citing federal cases). Thus, Bob advises that in such a situation, officers “release the arrestee in a safe place.” Id.
In any event, the requirement that a defendant be released when it becomes clear that probable cause no longer exists was of no moment in Taylor’s case, where the record was replete with evidence that supported the arresting officer’s determination.
The “what not to do” lesson from Taylor is rather obvious: Don’t use your official position to hinder the arrest and processing of a defendant for impaired driving when the arrest is supported by probable cause.