Copyright 2002 School of Government University of North Carolina at Chapel Hill Criminal Law Update...

Copyright 2002 School of Government University of North Carolina at Chapel Hill

Criminal Law Update & Review

Jessica Smith, Institute of Government, School of Government, UNC-Chapel Hill

email: [email protected] phone: (919) 966-4105

• Probation

• Waiver & Forfeiture of Counsel

• Jury Argument

• Double Jeopardy


PROBATION

Warrantless searches pursuant to a probation condition

Jurisdiction to hear probation violations


U.S. v. Knights,

122 S.Ct. 587 (12/10/01)

p.1

Facts:

D on probation

Condition says D must submit to a search at any time w/ or w/out a search/arrest warrant or reasonable cause by any probation/law enforcement officer

An officer searched D’s apartment

Officer had reasonable suspicion that evidence of a crime was inside


U.S. v. Knights continued

Issue: Was the search—pursuant to the condition & supported by reasonable suspicion—consistent with the 4th Amendment?

Held: Yes

Search was reasonable under the totality of the circumstances

Balance of privacy interests v. legitimate gov’t interests requires “no more than reasonable suspicion”

Warrant unnecessary



G.S. 15A-1343(b1)(7) provides:

Submit at reasonable times to warrantless searches by a probation officer of . . . person[,] . . . vehicle and premises . . . .



G.S. 15A-1343(b1)(7) provides:

Submit at reasonable times to warrantless searches by a probation officer of . . . person[,] . . . vehicle and premises . . . . By statute, condition

can require warrantless searches only by probation officers, not law enforcement officers


State v. Robinson

(NC App. 2/5/02) p. 18

Facts:

D on probation

Law enforcement gets anonymous call saying D is growing marijuana at home

Law enforcement contacts probation & learns D has a condition consenting to warrantless searches

Law enforcement & probation decide probation officer will try to do warrantless search & if D refuses he’ll be arrested; law enforcement will be nearby if assistance is needed . . .


State v. Robinson continued

D refuses to allow search, probation officer arrests him & takes him to jail

Law enforcement officers subsequently search the home & find drugs


State v. Robinson continued

Issue: Did law enforcement officers illegally try to have the probation officer do a warrantless search as part of their investigation & not part of probation?

Held:

Citing Knights, the court found no violation

It furthered the supervisory goals of probation for probation officer to seek consent to search

Fact that officers were waiting in the wings doesn’t affect the legality of the conduct


PROBATION

Warrantless searches pursuant to a probation condition

Jurisdiction to hear probation violations


State v. Moore, NC App. 2/5/02 p.14

6/3/94 D pleads guilty; gets 6-year term suspended, probation for 5 years

11/3/95 Probation violation report signed & dated; given to clerk but not file stamped

6/3/99 Probationary term expires

8/6/96 Order for arrest

5/9/00 Return of service on order for arrest

6/6/00 Probation revocation hearing


State v. Moore continued

Issue: Did trial court have jurisdiction to hear the probation violation?

Held: No,

citing G.S. 15A-1344(f)



G.S. 15A-1344(f)

Once the period of probation has ended, the court may revoke probation only if:

(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and

(2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier



6/3/94 D pleads guilty; gets 6-year term suspended, probation for 5 years

11/3/95 Probation violation report signed & dated; given to clerk but not file stamped

6/3/99 Probationary term expires

8/6/96 Order for arrest

5/9/00 Return of service on order for arrest

6/6/00 Probation revocation hearing



G.S. 15A-1344(f)

Once the period of probation has ended, the court may revoke probation only if:

(1) Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and

(2) The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier



Thus the court held:

Violation report not file stamped

No other record evidence it was filed prior to expiration of probation

State failed to satisfy 15A-1344

Trial court lacked jurisdiction


Waiver of the Right to Counsel


State v. Fulp, N.C. 2/1/02 p.2

The case:

D indicted for felony possession of stolen goods & as an habitual felon

Moves to suppress prior conviction arguing it was obtained in violation of right to counsel; D was indigent @ time of prior conviction

Trial court denies motion, finding D waived right to counsel

On appeal, NC App. says trial court’s conclusion not supported by the record

State appeals to NC Supreme Court


State v. Fulp continued

Held: Reversed

Trial court’s findings of fact supported its conclusion that there was a knowing, voluntary & intelligent waiver

The “in writing” requirement of GS 7A-457 is directory (7A-457 provides: an indigent may waive in-court representation in writing after court considers D’s age, education, English ability, mental condition & complexity of the crime charged)

Trial court is required to consider the 7A-457 factors (age, etc.) but is not required to expressly state that it did so


Waiver: “The Basics”

1) Included in the right to counsel is the right to waive counsel & proceed pro se (Fulp, -- NC -- (2/1/02), Gerald, 304 NC 511; Thacker, 301 NC 348; Faretta, 422 U.S. 806)

2) To pass constitutional muster, waiver must be knowing, intelligent & voluntary (Fulp, -- NC -- (2/1/02), Thacker, 301 NC 348; Faretta, 422 U.S. 806)

3) Compliance with GS 15A-1242 ensures a knowing, voluntary & intelligent waiver (Fulp, -- NC – (2/1/02), Gerald, 304 NC 511; Thacker, 301 NC 348)

4) Failure to make the 15A-1242 inquiry requires reversal (Dunlap, 318 NC 384; Bullock, 316 NC 180)


G.S. 15A-1242

A defendant may proceed pro se “only after the trial judge makes thorough inquiry and is satisfied” that defendant:

(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;

(2) Understands and appreciates the consequences of this decision; and

(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments



5) If D is indigent, GS 7A-457 says

D may waive in-court representation in writing; court must consider age, education, English, mental condition, complexity of crime (7A-457(a))

BUT Fulp said “in writing” requirement is directory, not mandatory

Waiver of out-of-court representation can made in writing or orally (7A-457(c))



Waiver of assigned counsel IS NOT a waiver of the right to counsel

An indigent must waive BOTH to be allowed to proceed pro se

(McCrowre, 312 NC 478)

AOC-CR-227


Certificate of Judge

Indicate whether defendant voluntarily, knowingly and intelligently elected in open court to be tried in this action:

(check only one)

_ 1. without the assignment of counsel

_ 2. without the assistance of counsel, which includes the right to assigned counsel and the right to assistance of counsel


Waiver continued

Do I need to get a waiver if I appoint standby counsel?

Yes (Dunlap, 318 NC 384)

Does D have a right to standby counsel is he/she waives counsel?

No; no right to hybrid representation (Lawrence, 161 F.3d 250 (4th Cir.)

How long does the waiver remain in effect?

Until proceeding terminates or D indicates wants to withdraw it (Sexton, 141 NC App. 344)


Waiver continued

Do I have to question D personally if the waiver form was filled out?

Yes (Wells, 78 NC App. 769 (“written waiver . . . no substitute for actual compliance . . . with

G.S. 15A-1242”))

When D has problems w/counsel, do I have to inform D of his/her right to proceed pro se?

No, so long as there has been “no intimation” that D wants to be pro se; BUT “better practice” is to inquire re: whether D wishes to be pro se (Gerald, 304 NC 511)


Forfeiture of the Right to Counsel

Right to counsel is not absolute; can be forfeited

Forfeiture is not the same as waiver


Forfeiture of the Right to Counsel

When can forfeiture occur?

1) Indigent D demands specific counsel

Indigent’s right to counsel DOESN’T include the right to counsel of choice (Thacker, 301 NC 348; McFadden, 292 NC 609; Dunlap, 318 NC 384)


When can forfeiture occur?

continued

2) D uses the right to counsel to delay/obstruct trial

“[A]n accused may lose his constitutional right to be represented by counsel of his choice when he perverts that right to a weapon for the purpose of obstructing and delaying his trial” (McFadden, 292 NC 609 (recognizing but not applying principle to the case before it))

Example of delay/obstruct case . . .


Facts:

PD appointed; D’s family then hires Laughrun

Laughrun allowed to withdraw b/c D doesn’t want him; PD is reappointed

D’s girlfriend then hires Duncan; on trial date D twice unsuccessfully objects to Duncan as counsel, twice disrupts court, & twice found in contempt

On new trial date, D throws water on Duncan, found in contempt & charged w/assault; Duncan allowed to withdraw; trial continued

On new trial date, PD seeks reappointment & is appointed only as stand-by

State v. Montgomery, 138 NC App. 521 (2000)


Held:

D forfeited right to counsel

Trial court didn’t err in requiring him to proceed pro se

G.S. 15A-1242 inquiry wasn’t required

State v. Montgomery, 138 NC App. 521 (2000)


Jury Argument


State v. Jones, -- NC – (2/1/02) p. 8

Court says improper jury argument issue now arises in

“Virtually every” capital case

“Many” other criminal cases

“Growing number” of civil cases

Thus, the court decides to “revisit in some detail”

(1) limits of proper closings

(2) attorneys’ professional/ethical responsibilities when making such arguments

(3) judge’s duty in overseeing closing arguments

(4) possible ramifications for improper arguments


State v. Jones continued

Facts:

Capital case

During sentencing phase closing arguments, defense timely objects to prosecutor’s references to Columbine school shooting & Oklahoma City bombing

During closing, prosecutor referred to D, w/out objection, as follows: “You got this quitter, this loser, this worthless piece of – who’s mean. . . . He’s as mean as they come. He’s lower than the dirt on a snake’s belly.”



Issues:

1) Did trial judge abuse discretion in overruling objection to remarks about Columbine & Oklahoma City?

2) Was trial judge required to intervene ex mero motu when prosecutor engaged in name calling?



Held: Yes (on both issues)

(1) Court abused discretion in overruling objection to Columbine/Oklahoma comment

Referred to events o/s record; urged jurors to compare D’s acts to them; appealed to passions/prejudice

Impact “too grave to be easily removed . . . even if the trial court had attempted to do so with instructions”

(2) Insults were “grossly improper” & prejudicial warranting intervention even without objection

Shifted focus to prosecutor’s opinions & appealed to passions/prejudices



Limits on Argument & Lawyers’ Ethical/Professional Responsibilities

1) GS 15A-1230(a)

Not become abusive

Not inject “personal experiences”

Not express personal belief re: truth/falsity of evidence or D’s guilt/innocence

Not make argument on basis of matters o/s record


Limits on Lawyers . . . continued

2) Rule 12—Courtroom Decorum—General Rules of Practice for Sup. & Dist. Courts

Prohibits “abusive language” & “offensive personal references”

Requires “candor” “fairness” “dignity and propriety”

3) Professional Rules of Conduct 3.4(e)

Not allude to matter not relevant/not supported by admissible evidence

Not assert personal knowledge of facts

Not state personal opinion re: justness of cause, credibility of witness, culpability of civil litigant or guilt/innocence of accused


Judge’s Responsibility “Diligently ensure” that counsel “honor”

these obligations

Take action against “opportunists who purposely . . . violate courtroom protocol” (citing cases involving sanctions)

“Vigilantly” monitor argument

Intervene as warranted

Entertain objections

Impose remedies including but not limited to: requiring counsel to retract improper argument & issuing instructions that the jury disregard

Mistrial as a remedy?


One final note from the court:

In determining prejudice, consider the trial stage

Improper argument at guilt phase may not be prejudicial where evidence of guilt is “virtually uncontested”

Same argument “may in many instances” prove prejudicial at capital sentencing


Double Jeopardy

• Since 9/01, there have been 5 published NC appellate decisions on DJ (summarized on pp. 10-11 in the handout)

Why Discuss Double Jeopardy?

• Inquiries from judges & other public officials

• Judge’s rulings can have unintended DJ consequences


U.S. Supreme Court has described its DJ decisions as follows:

“a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator”

(Albernaz, 450 US 333)


5th Amendment to the U.S. Constitution provides:

“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb”

Art. I, Sec. 19 of N.C. Constitution also protects against DJ (Rambert, 341 NC 173)


(1) No 2nd prosecution for the “same offense” after acquittal

(2) No 2nd prosecution for the “same offense” after conviction (by trial or plea)

(3) No multiple punishments for the “same offense”

(Pearce, 395 US 711, overruled on other grounds; Gardner, 315 NC 444)

What does that mean?


When does jeopardy attach?

Can the state ever retry after a dismissal?

Can the state ever retry after a mistrial?

Can the state ever retry after an acquittal?

Can the state ever retry after a conviction?

How do you determine if offenses are the “same” for purposes of DJ?

Can imposition of a civil remedy bar a criminal trial?

Why can I impose multiple punishments for the “same offenses” at a single trial?

Eight Core Double Jeopardy Questions


Trials

(1) Non-jury trials: jeopardy attaches when the court begins to hear evidence (1st witness sworn) (Serfass, 420 US 377)

Ex: Dismissal after state’s opening statement

Jeopardy did not attach

If the proceeding terminates before jeopardy attaches, there can be no DJ issue (Crist, 437 US 28)


(2) Jury Trials

Jeopardy attaches when the jury is empaneled & sworn (Crist, 437 US 28; Serfass, 420 US 377)


Guilty pleas

Jeopardy attaches when the court accepts the plea

Ex: State offers 2nd-degree murder plea. Judge rejects it. Did jeopardy attach?

No (Wallace, 345 NC 462)

BUT . . .

D’s guilty plea to a lesser offense over state’s objection doesn’t bar state from prosecuting on a greater offense pending at the time of the plea (Ohio, 467 US 493)


Mid-trial dismissals on D’s own motion

Key is whether dismissal goes to “factual guilt or innocence” (Scott, 437 US 82)

If so, it’s considered an acquittal & DJ bars retrial

If not e.g., if it rests on procedural grounds, there is no DJ bar to retrial (Id.)

Yes, sometimes the state can retry after a dismissal


Mid-trial dismissals on D’s own motion . . . continued

Ex: Dismissal for insufficient evidence?

DJ—goes to “factual guilt or innocence”

Ex: Dismissal because of state’s discovery violations?

No DJ (Shedd, 117 NC App 122)

Ex: Dismissal because of fatal variance?

No DJ (Stinson, 263 NC 283)

Ex: Dismissal because of defective indictment?

No DJ (Whitley, 264 NC 742)


Mid-trial dismissals on the court’s own motion

If the court sua sponte dismisses mid-trial, DJ bars retrial (Vestal, 131 NC App. 756)(distinguishing dismissals on a D’s motion & finding a DJ bar where trial court dismissed sua sponte on grounds that the police department violated a court order)


Mistrials:

There is no DJ bar when the mistrial is for “manifest necessity” (Arizona, 434 US 497) OR is requested/consented to by defendant (Dinitz, 424 US 600)

Ex: Genuine jury deadlock (Richardson, 468 US 317 (Also note that mistrial because of deadlock on lesser offense is not an implied acquittal barring retrial on a greater charged offense (Booker, 306 NC 302))

Yes, sometimes the state can retry after a mistrial


No, the state cannot retry after an acquittal (Ball, 163 US 662) (Note that acquittals can be express or implied (e.g., by conviction on a lesser included offense) (See Justice of Boston, 466 US 294)


Where D obtains reversal on appeal

DJ bars retrial where appellate reversal is based on insufficiency of the evidence (Burks, 437 US 1);

such a reversal is equivalent to an acquittal (Richardson, 468 US 317)

BUT there is no DJ bar where conviction is set aside on grounds other than insufficiency of the evidence e.g., trial error (Scott, 437 US 82; Burks, 437 US 1)

Yes, sometimes the state can retry after a conviction


The Blockburger test:

Offenses are NOT “the same” for DJ purposes if each contains an element that is not in the other (Blockburger, 284 US 299; Dixon, 509 US 688)

Applying the test . . .


Misdemeanor Larceny:

(1) Takes personal property of another

(2) Carries it away

(3) Without consent

(4) With intent to deprive permanently

(5) Knowing not entitled

Felony Larceny:


(2) Carries it away

(3) Without consent



(6) Property worth over $1000 or from the person or . . .


Misdemeanor Larceny:


(2) Carries it away

(3) Without consent



Felony Larceny:


(2) Carries it away

(3) Without consent



(6) Property worth over $1000 or from the person or . . .The same under

Blockburger


State v. Haynesworth, NC App (10/16/01) (p. 10)

Attempted 1st-degree murder is not the same as assault w/firearm on law enforcement officer

Applying the Blockburger test . . . continued


How it comes up:

Reid (p. 10): “You can’t prosecute me for DWI, I was already punished for it when my commercial license was revoked for 30 days without a limited privilege”

Beckham (p. 11): “You can’t prosecute me for larceny, I already paid for the property under GS 1-538.2

Yes, imposition of a civil remedy can bar a later criminal trial


To determine if a civil remedy is “punishment” barring criminal prosecution, 1st look at whether the legislature expressly or impliedly indicated a preference that it be labeled civil or criminal (Hudson, 522 US 93)

The fact that the legislature expressed an intention that it be civil, doesn’t end the analysis (Id.)

Even if the remedy is labeled civil, you determine whether it is “so punitive either in purpose or effect” to transform it from a civil remedy to a criminal penalty (Id.)

How do you do that? Apply the Kennedy v. Mendoza-Martinez factors (Id.)

Note: “’only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty” (Id.)


The Kennedy v. Mendoza-Martinez Factors

(1) Whether the sanction involves an affirmative disability or restraint

(2) Whether it has historically been regarded as punishment

(3) Whether it comes into play only on a finding of scienter

(4) Whether operation of the sanction will promote traditional aims of punishment (retribution & deterrence)

(5) Whether behavior to which it applies is already a crime

(6) Whether an alternative purpose to which it may rationally be connected is assignable for it

(7) Whether it appears excessive relative to the alternative purpose assigned


Fairly well litigated area -- No DJ violation found when

Criminal drug prosecution after payment of drug tax (Adams, 132 NC App. 819)

DWI prosecution after 10-day license revocation (Oliver, 343 NC 202)

DWI prosecution after 30-day license revocation (Evans, 145 NC App. 324)

DWI prosecution after 30-day commercial license revocation & disqualification for limited comm’l privilege (Reid, --NC App. – (2/5/02))

Theft prosecution after school suspension for theft (Phillips, 128 NC App. 732)

Larceny prosecution after payment for stolen goods under GS 1-538.2 (Beckham, --NC App -- (1/15/02)


Question: D is tried in a single trial for breaking or entering & felony larceny based on that breaking or entering. Can D be punished for both?

Answer: Yes Gardner, 315 NC 444 (involving those facts)

Rule: Imposing multiple punishments for the “same” offenses at a single trial is OK if legislature clearly intended to permit conviction/punishment for both (Missouri, 459 US 359; Gardner, 315 NC 444)

Explanation: Where multiple punishment is imposed in a single trial, DJ restrains only the court/prosecutor from exceeding legislative intent (Gardner, 315 NC 444; Missouri, 459 US 359)

Result: What the state can’t do by separate trials, it can do in a single trial


DJ doesn’t apply to convictions by separate sovereigns

No DJ bar if feds prosecute 1st & then NC prosecutes or vice-versa (Myers, 82 NC App 299; Abbatte, 359 US 187)

No DJ bar if separate states prosecute (Heath, 474 US 82)

BUT . . .


Watch out for relevant state statutes:

(1) GS 15A-134 (if offense occurred in part in NC & in part outside of NC, D can be tried in NC if not put in jeopardy for the same offense in the other state

(2) GS 90-97 (if violation of Art. 5 is a violation of federal law or law of another state, conviction/acquittal under federal law or law of another state bars prosecution in NC)

Copyright 2002 School of Government University of North Carolina at Chapel Hill Criminal Law Update...

Documents

Transcript of Copyright 2002 School of Government University of North Carolina at Chapel Hill Criminal Law Update...