District Court is in Session . . . But for How Long?

November 20th, 2009

by School of Government faculty member and Defender Educator Alyson Grine

A district court session usually lasts one day, so many court actors have gotten in the habit of thinking that a district court session is a day as a matter of law. Some North Carolina publications refer to this day-long rule as if it were a foregone conclusion. However, “session” is not defined statutorily and there is authority to suggest that a district court session may span days. For those of you who can’t stand the suspense, see the last paragraph. For those of you who are less intrigued, this is not an academic exercise! Consider how the definition of “session” comes into play in sentencing.

Under G.S. 15A-1340.21(d), if a defendant is convicted of more than one offense in a single session of district court, only one of the convictions can be used to determine the prior conviction level for misdemeanor sentencing. By way of illustration, let’s say Donald Defendant’s record reflects that he was convicted of 8 counts of Resisting Officers on August 11, 2009, and has no other prior convictions. He is being sentenced today for Assault on a Government Official, a Class A1 misdemeanor. Donald is a prior conviction level II; only one of the Resists can be used because he was convicted of all of them in a single session of court. He can therefore receive a sentence of up to 75 days. If the district court judge erroneously counted the Resists as 8 prior convictions and treated Donald as a prior conviction level III, he could receive an active sentence of 150 days, twice as many days.

The rule for calculating multiple prior convictions could have even more impact if Donald were being sentenced for a felony in superior court a few weeks from today. In the context of determining prior record level for felony sentencing, the same rule applies: only one conviction counts where the defendant was convicted of more than one offense in a single session of district court. G.S. 15A-1340.14(d). New legislation tweaking the felony sentencing grid provides that for offenses committed on or after December 1, 2009, an offender with either 0 points or 1 point will be considered a Prior Record Level I for felony sentencing. S.L. 2009-555, amending G.S. 15A-1340.14(c) and 15A-1340.17(c). So, if Donald is in superior court on December 1 for sentencing on a felony, he would be sentenced as a prior record level I in spite of the 8 counts of Resisting Officers on his record. Assuming Donald were being sentenced for Assault with a Deadly Weapon Inflicting Serious Injury, a Class E felony, the statutory change would reduce his potential sentence by about 6 months. Rather than facing 36 to 53 months imprisonment as a Prior Record Level II, he faces 31 to 47 as a Record Level I. If the superior court judge were unfamiliar with G.S. 15A-1340.14(d) and mistakenly determined that the 8 Resists constituted 8 points, Donald could face 42 to 60 months as a Prior Record Level III.

Here is a question that is arising as a result of innovative district court calendaring practices. Some chief district judges are scheduling week-long sessions of DWI court for efficiency purposes. How will multiple prior convictions be calculated in this scenario? Assume Donald is hailed into district court on Tuesday where he is convicted of DWI 1, and is hailed in again on Wednesday, where he is convicted of DWI 2. Does this count as one prior conviction because both offenses were handled in one district court session spanning multiple days? I think the answer has to be yes. Defendants are placed on notice that their case will be reached some time during the DWI court week making these sessions analogous to week-long sessions of superior court, and only one conviction can be used from a given week of superior court to determine the conviction or record level. G.S. 15A-1340.21(d); G.S. 15A-1340.14(d). As we have seen, the answer will have a big impact for any future sentencing Donald may confront. Taking this scenario to an extreme, a person with five prior convictions of DWI could potentially be treated the same for felony sentencing purposes as a person who has no prior convictions, after December 1.

The DWI court model leaves me wondering: 1) Are there other district court scheduling practices that give rise to an argument that we are in fact dealing with one session spanning multiple days? Maybe other specialized courts, such as domestic violence court, function similarly in that one judge is assigned to the session and defendants are noticed that their case will be heard on “Monday or Tuesday,” or whatever may be the case; and 2) How in the world are defenders going to determine whether their clients’ prior convictions occurred in one extended session of district court or multiple single-day sessions? Do defenders have an obligation whenever they see that their client had two convictions in one calendar week to investigate the nature of the session(s)? Is it possible to make a person’s record reflect that two district court convictions on different days were actually part of the same session?

What authority supports that a session of district court session may last multiple days? In this bulletin, “Out-of-Term, Out-of-Session, Out-of-County,” School of Government faculty member Michael Crowell notes that a day of district court is commonly considered a session because chief district judges, who have the authority to arrange schedules and assign district judges under G.S. 7A‑146(1), typically assign judges by the day. However, Crowell cites Routh v. Weaver, 67 N.C. App. 426 (1984), in support of the proposition that a chief district judge may also assign a district judge to hear a particular motion or case. “[T]he hearing of that single case, however long it lasts, constitutes a session as well.” Crowell at 1. The Routh court adopts the following expansive definition of “session” from Black’s Law Dictionary:

The sitting of a court, Legislature, council, commission, etc., for the transaction of its proper business. Hence, the period of time, within any one day, during which such body is assembled in form, and engaged in the transaction of business, or, in a more extended sense, the whole space of time from its first assembling to its prorogation or adjournment.

Routh at 431. So, how long is district court in session? In the absence of any parameters from the chief district judge, the answer appears to be “until it is over.”

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Heller . . . Britt . . . What’s Next for Gun Laws?

November 19th, 2009

We’ve seen several significant cases concerning gun laws in the past few years. The two biggest, of course, are District of Columbia v. Heller, 554 U.S. ___ (2008), in which the United States Supreme Court struck down the District of Columbia’s ban on handgun possession as inconsistent with the Second Amendment, and Britt v. North Carolina, discussed in this prior post, in which the North Carolina Supreme Court ruled, under the state constitution’s analogue to the Second Amendment, that a particular convicted felon, whose single, non-violent conviction was many years in the past, could not be prohibited from possessing a gun.

More changes may be afoot in this area, and lawyers on both sides should be aware of the legal landscape. For starters, the United States Supreme Court will hear, this Term, McDonald v. Chicago, a case that asks whether the Second Amendment applies to the states, either through selective incorporation under the Fourteenth Amendment’s due process guarantee or (more radically) because selective incorporation is wrong and all of the bill of rights apply to the states. This question wasn’t relevant in Heller, because the District of Columbia is a federal jurisdiction, but it’s a critical question because if the Second Amendment only applies to the federal government, the practical importance of Heller will be quite limited. A brief discussion of McDonald is here; a gun rights group’s website about the case, with links to some briefs, is here. I don’t think that a date has been set yet for the argument, but it looks like it won’t be until February, at least, based on the briefing schedule. If the Court rules that the Second Amendment applies to the states, that will open the door to Second Amendment challenges to an array of state and local firearm regulations.

An example of the type of litigation that we might see post-McDonald at the state level is the Seventh Circuit’s recent decision in United States v. Skoien. The defendant in that case was convicted of possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). He appealed, arguing that his motion to dismiss the indictment under Heller should have been granted. The Seventh Circuit remanded the case for further consideration by the district court. It slapped the prosecution’s wrist in this passage, which gives a flavor of how seriously the court views the defendant’s claim:

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke Heller’s language about certain “presumptively lawful” gun regulations—notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies.

Again, if the Second Amendment applies to the states, we can expect to see similar arguments in state courts. (Or maybe we should be seeing them now, under Britt.) For example, what about the requirement that people who are subject to a domestic violence protective order surrender their firearms, under G.S. 50B-3.1? Farther afield, what of gun laws such as the prohibition against weapons at parades and similar events, under G.S. 14-277.2? What of municipal ordinances prohibiting high-capacity firearms, e.g., Durham County Code of Ordinances § 17-71, or the display of certain handguns, e.g., Chapel Hill Code of Ordinances § 11-134? Suffice it to say, Heller, Britt, and McDonald — however it comes out — will be reshaping the legal landscape regarding firearms for years to come.

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Drug Dogs

November 18th, 2009

The court of appeals issued a batch of opinions yesterday. Among them is State v. Washburn, a drug dog case. An extremely compressed summary of Washburn is that an informant told the police that the defendant was a drug dealer and kept drugs at his house and at a storage unit. Based on the tip, the police took a drug dog to the storage facility, which was a climate-controlled building with storage units opening off an indoor hallway, and got the consent of the facility’s owner to walk the dog through the hallway. The dog alterted at the defendant’s unit, which led the police to get a search warrant for it, and things went downhill for the defendant pretty quickly after that.

The defendant first argued that “the dog sniff of the hallway outside of his locked storage unit constitute[d] an illegal warrantless search because he had a reasonable expectation of privacy in the storage facility, including the hallway area.” In other words, he argued that the police couldn’t come into the hallway at all. The court rejected that argument, noting that (1) the hallway wasn’t very private, since all the facility’s tenants had access to it, and (2) in any event, the facility’s owner consented.

The defendant’s second argument was that even if the police were lawfully in the hallway, the dog sniff itself was a search, supported neither by a search warrant nor an exception to the warrant requirement. The opinion says that the defendant cited United States v. Thomas, 757 F.2d 1359 (2nd Cir. 1985) (holding that use of a dog to sniff outside a suspect’s apartment was a Fourth Amendment search), as support for his contention. Of course, the United States Supreme Court has told us that using a drug dog to sniff luggage at an airport isn’t a search, United States v. Place, 462 U.S. 696 (1983), and that using a drug dog to sniff a vehicle during a traffic stop isn’t a search, Illinois v. Caballes, 543 U.S. 405 (2005). The rationale of those cases is that drug dogs detect only contraband, which cannot lawfully be possessed, and therefore invade no reasonable, i.e., legitimate, privacy interest. Following those cases, the court of appeals rejected the defendant’s argument and declined to distinguish storage unit sniffs from vehicle sniffs. (Some of this is reading between the lines, since the court’s treatment of this issue is rather brief.) The fact that Thomas predates Caballes probably didn’t help the defendant, though a leading commentator has argued that even after Caballes, sniffs of private premises, possibly including storage units, should count as searches. 1 Wayne R. LaFave, Search and Seizure § 2.2 (4th ed. 2004 & pocket part) (arguing the point and collecting a few cases, including State v. Davis, 732 N.W.2d 173 (Minn. 2007), adopting his view on state constitutional grounds); see also State v. Guillen, 213 P.3d 230 (Ariz. Ct. App. 2009) (similar, also on state constitutional grounds).

It appears that Washburn closes the door on the argument that dog sniffs of private premises are searches. Perhaps one could try to distinguish a sniff of a residence from a sniff of a storage unit, but nothing in the Washburn opinion suggests that the court would view the two situations as different for Fourth Amendment purposes. So is there any circumstance under which a drug dog sniff is a search? The most likely scenario is using a drug dog to sniff a person, which may be so physically intrusive that it is a search. There is pre-Caballes authority on point, such as United States v. Kelly, 302 F.3d 291 (5th Cir. 2002), and Caballes is not necessarily to the contrary, as the driver in that case was no longer in his car at the time of the sniff. It seems to me that the defendant’s argument in such a case is much stronger than Washburn’s, but as always, I’d welcome others’ thoughts.

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Another Batch of Satellite-Based Monitoring Cases

November 17th, 2009

by School of Government faculty member Jamie Markham

The last round of opinions from the court of appeals included three related to satellite-based monitoring (SBM) of sex offenders. None of them broke any major new ground, but two more dissents show that nothing is fully settled in this rapidly evolving area.

In State v. Gardner, the court found the defendant, who was recently released from prison to post-release supervision, to be a recidivist and ordered him to enroll in SBM for life. At the determination hearing, the defendant argued that SBM was an invalid ex post facto punishment and violated double jeopardy principles. The trial court acknowledged in its order that Mr. Gardner might have a point, but said the issue wouldn’t be ripe for review until he finished his term of post-release supervision. The court’s idea, I think, was that because post-release supervisees are required to submit to SBM as a condition of supervision under G.S. 15A-1368.4(b1)(6), SBM for life-the regime that defendants have been arguing adds to their punishment-doesn’t actually begin until formal supervision ends. It’s not a bad argument, although as it turns out it may yet violate the Ex Post Facto Clause to add a mandatory condition of supervision to cases based on crimes that occurred after passage of the legislation adding the condition-that’s what happened in Commonwealth v. Cory, 911 N.E.2d 187 (Mass. 2009), as discussed in my comment to this post. Regardless, the appellate court’s problem with the trial court order in Gardner was with its clarity, not its constitutionality. In one place the order said SBM was for life, in another place it said SBM was just a condition of post-release supervision. The court of appeals remanded the case for the trial court to clear up the ambiguity.

Up next is State v. Hagerman, in which a defendant was ordered to enroll in SBM for life after the trial court determined his indecent liberties convictions were aggravated offenses. The defendant argued that the court’s determination violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), by increasing his punishment based on facts not presented in an indictment, admitted to, or found by a jury beyond a reasonable doubt. Because SBM is not punishment, the court of appeals held, Mr. Hagerman’s sentence was not increased, and Apprendi wasn’t implicated. Judge Elmore dissented, noting his continued belief (expressed in other dissents, including one I’ll discuss in a moment) that SBM is punishment, and is therefore subject to Apprendi’s jury-proof requirements. Hagerman does not address the question of whether aggravated offense determinations may rest only on the elements of the conviction offense, or whether the court may also look to the facts behind the conviction. (I discussed this issue, which is a question of statutory interpretation, in an earlier post.) The trial court in Mr. Hagerman’s case must have looked to the facts (indecent liberties does not include penetration as an element), but the defendant did not raise the statutory interpretation argument on appeal, and the court of appeals therefore did not discuss it. The issue will be more squarely before the court soon.

Finally comes State v. Vogt, a case involving a recidivist offender ordered to enroll in SBM for life, in which the court of appeals once again rejected a defendant’s argument that monitoring is ex post facto punishment. Mr. Vogt also argued that the trial court’s SBM order rendered his guilty plea invalid because “he could not have been advised that he would be subjected to lifetime satellite-based monitoring . . . since such monitoring did not exist at the time that he entered his guilty plea.” A problem with that argument, the court of appeals noted, is that the defendant’s plea to his most recent sex crime was entered in June of 2008, almost two years after the SBM statute became effective. Judge Elmore dissented, again taking judicial notice of the Division of Community Correction’s interim policy on sex offender management to conclude that SBM amounts to ex post facto punishment. The majority did not question the dissent’s authority to take judicial notice of the DCC policy, but it did express concern about introducing “a large volume of additional information which has not been subjected to adversarial testing in the trial courts.”  Such testing would, I think, sort out which provisions in the interim policy are applicable to sex offenders on probation or post-release supervision (warrantless searches, curfews, and notification of church officials), and which actually apply to offenders enrolled in SBM (a distinction I wrote about here). In a footnote, the majority practically invited a monitored offender to “challenge the validity of specific provisions of the interim guidelines . . . on the grounds that they violate state or federal law”-it just asked that the challenge come in an “appropriate proceeding” in the trial division, not through judicial notice on appeal.

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Using Other Bad Acts to Prove Malice in a Vehicular Homicide Case

November 16th, 2009

by School of Government faculty member Shea Denning

Among the most recent batch of opinions issued by the Court of Appeals was State v. Tellez, in which the court upheld the defendant’s conviction of two counts of second-degree murder and one count of felonious hit and run arising from a fatal car crash. Here are the facts: Defendant went to a party in Coats, NC around 1 p.m. on March 4, 2007, where he drank three beers. Three hours later, defendant and his friends, Castro and Childers, left the party in Castro’s car. Defendant drove and, while he was driving, began to drink a fourth beer. As defendant approached an intersection with a state highway, he slowed, but did not stop. Indeed, defendant drove around a car that had stopped at the intersection and drove straight into the path of a truck driven by Dwayne Braswell and in which Braswell’s nine-year-old son, Jerry, was a passenger. After the collision, the truck rolled several times and caught on fire. Paramedics were unable to help Mr. Braswell or his son because of the fire. Their bodies burned beyond recognition. Defendant ran from the scene. Childers told the trooper who arrived on the scene that the defendant “was drunk and ran, got scared.” But Childers testified at trial that she did not know whether Tellez “was intoxicated” and “didn’t think he was.”

Tellez argued on appeal that the trial court erred in denying his motion to dismiss the second-degree murder charge because there was no evidence that he was driving while impaired. The court rejected this contention. Noting that second-degree murder is an unlawful killing with malice but without premeditation and deliberation, the court explained that there must be an intentional act sufficient to show malice. To prove malice in operating a motor vehicle, the State must prove that the defendant intended to drive in a reckless manner that reflected knowledge that injury or death would likely result, thus evidencing depravity of mind. Conduct other than impaired driving can arise to this level of recklessness.

The Tellez court concluded that the evidence of defendant’s (1) reckless driving, (2) consumption of alcohol before and during driving, (3) prior convictions for impaired driving and driving while license revoked, and (4) flight and elusive behavior after the collision constituted substantial evidence of malice based upon depravity of mind.

That the defendant’s reckless driving and his consumption of alcohol would be considered evidence of driving in such a way that reflects knowledge that injury or death would likely result-in other words, malice-seems rather obvious. This post is focused on the latter two categories of evidence, the defendant’s prior convictions and his post-crash conduct.

North Carolina’s appellate courts have consistently held that a defendant’s prior driving convictions are admissible to pursuant to Rule 404(b) to show malice in a second-degree murder prosecution based on the defendant’s driving. See, e.g., State v. Maready, 362 N.C. 614 (2008); State v. Goodman, 147 N.C. App. 57 (2002) (Greene, J., dissenting), rev’d, 357 N.C. 43 (2003) (per curium, adopting dissenting opinion); State v. Rich, 351 N.C. 386 (2000).

As most readers know, Rule 404(b) of the NC Rules of Evidence provides that evidence of other crimes, wrongs and acts by a defendant may not be admitted to prove that the defendant acted in conformity with that bad character in committing the instant offense. In other words, a prior impaired driving conviction may not be considered by the jury as evidence that, since the defendant previously drove while impaired, he did so on this occasion as well. Despite its provisions excluding the introduction of relevant evidence of other crimes, wrongs or acts by a defendant, Rule 404(b) otherwise is a rule of inclusion. Evidence of other bad acts and crimes, if relevant, may be introduced for other purposes, including establishing the defendant’s state of mind.

While 404(b) evidence must bear similarity and temporal proximity to the instant offense, courts generally have viewed a defendant’s entire record of traffic convictions to be relevant to whether the defendant exhibited malice by driving a manner that caused a fatal accident. In Tellez, the trial court admitted evidence that defendant had previously been convicted of driving while license revoked and impaired driving.

It is not entirely clear whether North Carolina’s appellate courts would sanction the admission of evidence of a prior impaired driving conviction as evidence of malice if the conduct giving rise to the murder charge did not involve driving after consuming alcohol or some other impairing substance. In State v. Lloyd, 187 N.C. App. 174 (2007), the defendant was charged with second-degree murder after he stole a van, fled from police, drove recklessly, and crashed into another car, killing both of its occupants. Lloyd was sober, but his driver’s license was revoked. The State introduced evidence of Lloyd’s prior refusal to submit to a breath test and his accompanying arrest and conviction of impaired driving. The trial court instructed the jury that this evidence “was received solely for the purpose of showing that the defendant had the knowledge that his license was suspended” on the date of the offense and, further, that driving with a suspended license suspension was evidence of malice. The court of appeals characterized the evidence that defendant drove knowing his license revoked as “fundamental” to proving malice and held that the danger of unfair prejudice was mitigated by the trial court’s limiting instruction. The appellate court failed to explain how driving with a revoked license evidences reckless-rather than simply unlawful-behavior.

Evidence of Tellez’s behavior after the collision likewise is admissible under Rule 404(b) as probative of his depravity of mind since post-offense conduct, like prior bad acts, can be relevant to establishing the defendant’s state of mind at the time of the offense. Cf. State v. Grice, 131 N.C. App. 48 (1998) (characterizing comments by trial court at sentencing that defendant’s “total lack of remorse” as evidenced by his failure to ask whether someone was hurt in the car he crashed into “implies . . . a lack of consciousness [and] total disregard for the laws of this State” as drawing a parallel between defendant’s lack of remorse and the malice necessary to support a second-degree murder conviction).

Tellez doesn’t change the landscape of the law applicable to murder prosecutions arising from vehicle crashes, though it does provide one more set of tragic facts held to establish malice. The last portion of the opinion explains that Childers’ statements to the trooper at the scene of the crash that Tellez “was drunk” were properly admitted into evidence, notwithstanding Childers’ testimony at trial that she did not think Tellez was intoxicated. I’ve waxed on too long already, so I won’t attempt to explain how the court concluded that these statements amounted to corroboration rather than inadmissible hearsay. (Plus, I can’t figure out what these statements corroborated.) Can any of our loyal readers explain this reasoning? Anyone? Anyone? Bueller?

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Blog Outage!

November 14th, 2009

You may have noticed that the blog — along with the rest of the School of Government’s website — was down most of the day Friday. I was unable to access it, just like you, so I couldn’t post anything. It seems that the technological glitch has been resolved, so I plan to be back on schedule on Monday. I’m sorry for any inconvenience that the “blog outage” may have caused.

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Defense Access to Stored Electronic Communications

November 12th, 2009

As I mentioned last week, I have a new publication entitled Prosecution and Law Enforcement Access to Information about Electronic Communications. It’s meant to be useful on a range of topics, from phone records and wiretapping, but the most detailed discussion concerns email, text messages, and other stored electronic communications. The very, very simplified version of that section of the paper is that the state can access that type of evidence with a search warrant, and perhaps, in some cases, by other means. In my post announcing the paper, I promised to write about defense access to stored electronic communications, a topic not addressed in the publication. Here I am, making good.

Let’s take a specific example. How, if at all, may a defendant charged with rape access emails that the complainant sent from her Yahoo! email account to a friend, where there is reason to believe that (1) the emails remain on Yahoo!’s servers and (2) the emails may be exculpatory, because they may suggest that the encounter was consensual? (Remember, if the state were seeking the defendant’s incriminating emails to his brother, it could obtain them with a search warrant directed at the defendant’s email service provider, or maybe even with lesser process.)

The short answer is, the defendant can’t access the emails.

Of course, if the complainant still has access to the emails, the defendant can subpoena them from her. But if she doesn’t — for example, if she’s deleted them — or if she isn’t forthcoming with them, the defendant probably can’t obtain the emails from Yahoo!. Under 18 U.S.C. § 2702, most communications service providers, “shall not divulge  . . . the contents of” electronic communications except in specified circumstances. None of the enumerated circumstances apply to the defendant’s situation; there is no general exception for compliance with subpoenas or court orders, which are the types of instruments that the defendant would normally employ in pursuing evidence. By contrast, 18 U.S.C. § 2703 provides for compulsory disclosure to “governmental entit[ies]” with appropriate process.

A number of courts have held that the specific nondisclosure command of the statute trumps instruments like subpoenas and court orders, and simply doesn’t allow criminal defendants (or private civil litigants, for that matter) to access stored email from service providers. Apparently, most email providers are, understandably, following these cases and are refusing to produce stored emails in response to defendants’ subpoenas and court orders. A good collection of cases on point appears in Thayer v. Chiczewski, 2009 WL 2957317 (N.D. Ill. Sept. 11, 2009), while a case applying the law to bar a criminal defendant from compelling a service provider to give him his own stored email is United States v. Amawi, 552 F.Supp.2d 679 (N.D. Ohio 2008). A useful law review article discussing this issue is Marc J. Zwilliger & Christian S. Genetski, Criminal Discovery of Internet Communications . . ., 97 J. Crim. Law & Criminology 569 (2007), available online here. (That makes two useful law review articles I’ve seen this year, counting this one.)

There are a couple of possible avenues of recourse for our hypothetical defendant. First, because an email provider can produce stored communications with the consent of the account holder, our defendant could try to convince the complainant to consent. Or, he could try to get a court to order her to consent. (There’s a robust debate in the cases about the propriety of that, which I won’t summarize here, but it may be worth a try.) Next, he could try to persuade the prosecution to obtain the email on his behalf. Finally, he could try to argue that the federal statutes are unconstitutional, perhaps on due process grounds, to the extent that they put a class of evidence completely off-limits to him — especially a class of evidence that the prosecution can access. There might be something to that argument, though there aren’t any reported decisions on point, presumably because, to date, defendants have been able to get by using the other methods suggested above.

I’m keen to hear about real-world experiences with this issue. As always, feel free to post a comment or to contact me off-blog.

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News Roundup

November 11th, 2009

First off, it’s Veterans’ Day. Thanks to all who have served — including Jamie Markham, who regularly contributes to this blog — and Godspeed to those who are in harm’s way today.

In other recent news:

1. Two North Carolina judges have just been nominated to the Fourth Circuit: Jim Wynn, who currently sits on the court of appeals, and Albert Diaz, who is a business court judge in Charlotte. Both, as it happens, have substantial military experience. The News and Observer’s story is here.

2. The News and Observer also reported recently on the status of claims made under the Racial Justice Act. The gist of the story is that such claims aren’t finding much traction, but you can read all the details here.

3. The United States Supreme Court heard argument this week in the Graham and Sullivan cases, which concern the constitutionality of life without parole sentences for juveniles who commit non-homicide offenses. There has been an enormous amount of media coverage of these cases. A New York Times article is here, and a collection of other pieces is here. The transcripts of the argument are available here: Sullivan, and Graham.

4. John Allen Muhammad, the “DC sniper,” was executed this morning in Virginia. Story here. At Sentencing Law and Policy, Doug Berman opines that cases like Muhammad’s are why a majority of Americans support the death penalty in at least some cases. A potentially significant procedural aspect of this case is that the state set an execution date after the federal circuit court affirmed denial of Muhammad’s habeas petition, but before the Supreme Court would have reviewed his petition for certiorari in the normal course of business. Three Justices were not too happy about that. (Hat tip: Crime and Consequences.)

5. Speaking of the death penalty, I’m lucky to have Tom Tynan, a smart and conscientious new lawyer, helping me prepare to update the Capital Case Law Handbook. (Even with Tom’s help, it’s going to take a while.) He pointed out this interesting story about dog sniff lineups. Anyone ever heard of these being used in North Carolina?

6. Finally, I can’t resist a few technology-related tidbits. A federal judge recently ruled that the media could not cover a criminal trial via Twitter. But Senator Arlen Specter (D-PA) wants the United States Supreme Court to permit television coverage of its proceedings. On a more serious note, this story reports that some collectors of child pornography are using malware to store their materials on the computers of unwitting victims.

More news in another week or so. Again, thanks to our servicemen and -women on this Veterans’ Day.

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Mello and “Loitering for Drugs” Ordinances

November 10th, 2009

Can a municipality adopt an ordinance that criminalizes loitering for the purpose of drug activity? I’ve been asked that question several times, and in fact, a number of North Carolina municipalities have such ordinances. See, e.g., Charlotte Code of Ordinances § 15-23; Hickory Code of Ordinances § 29-22(d). The answer is generally yes, though such ordinances must be drafted very carefully.

Last week, the North Carolina Court of Appeals underscored the need for careful drafting when it decided State v. Mello. Gary Mello was charged with, inter alia, violating Winston-Salem Code of Ordinances § 38-29, which is captioned “[l]oitering for purpose of engaging in drug-related activity.” The court’s opinion doesn’t describe the facts underlying the charge, so I skimmed the parties’ briefs. Generally, it appears that Mello was parked on a street in a high-drug area of Winston-Salem, engaging in what appeared to be hand-to-hand drug transactions with pedestrians.

Mello moved to dismiss the charge, arguing that the ordinance was unconstitutional. The motion was denied by the trial judge, a jury convicted Mello, and he appealed. The court of appeals agreed with Mello, finding the ordinance overbroad and vague.

The ordinance reads as follows:

It shall be unlawful for a person to remain or wander about in a public place under circumstances manifesting the purpose to engage in a violation of the North Carolina Controlled Substances Act, G.S. 90-89 et seq. Such circumstances are:
(1) Repeatedly beckoning to, stopping or attempting to stop passersby, or repeatedly attempting to engage passersby in conversation;
(2) Repeatedly stopping or attempting to stop motor vehicles;
(3) Repeatedly interfering with the free passage of other persons;
(4) Such person behaving in such a manner as to raise a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity;
(5) Such person repeatedly passing to or receiving from passersby, whether on foot or in a vehicle, money or objects;
(6) Such person taking flight upon the approach or appearance of a police officer; or
(7) Such person being at a location frequented by persons who use, possess or sell drugs.

Mello’s indictment referred specifically to subsections (4) and (7) of the ordinance.

The court of appeals began its analysis by considering overbreadth, which is a First Amendment doctrine that invalidates regulations that prohibit a substantial amount of “protected” conduct, even if the regulations have some legitimate application. The court concluded that the Winston-Salem ordinance prohibits protected activity such as conducting a survey (which would violate (1) and/or (3)), handing out leaflets (which would violate (5)), and merely being present in an area where drug arrests have taken place (which would violate (7)).

Nor, according to the court, was the ordinance saved by the inclusion of the language, “under circumstances manifesting the purpose to engage in [a drug offense],” because under the ordinance, the listed circumstances by definition manifest the necessary intent. So here’s the first draftsmanship point: had the intent requirement said “the circumstances that may be considered in determining a person’s intent include the following” instead of “[s]uch circumstances are,” I suspect that the overbreadth analysis would have come out differently. Cf., e.g., State v. Evans, 73 N.C. App. 214 (1985) (upholding a loitering for prostitution ordinance that required the state to demonstrate that the defendant’s purpose was to violate the prostitution laws).

Next, the court considered whether the ordinance was void for vagueness. A law is unconstitutionally vague when citizens are left to guess and to speculate as to whether they are violating the law. The court concluded that subsection (4) of the ordinance is vague, because a citizen can’t be reasonably sure what conduct “raise[s] a reasonable suspicion that he is about to engage in or is engaged in an unlawful drug-related activity.” Here’s the second draftsmanship point: the court was particularly critical of the inclusion of the term “reasonable suspicion” in the ordinance, insofar as it could be read to allow a defendant to be convicted on proof less than beyond a reasonable doubt. Absent that red flag, I’m not sure that the court would have ruled the same way; courts have long recognized that a person’s intent usually must be inferred from the circumstances, and that the relevant circumstances defy easy categorization.

Mello has received some national attention, and is a must read for lawyers and judges who regularly handle cases arising under this type of ordinance. Obviously, it should also catch the eye of municipal attorneys in jurisdictions that have, or may adopt, this type of ordinance. I should note, too, that we at the School of Government are happy to consult with jurisdictions that are considering adopting or revising ordinances like this.

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The New Felony Sentencing Grid

November 9th, 2009

by School of Government faculty member Jamie Markham

For the first time since 1995 we have a new felony punishment chart for Structured Sentencing. Two pieces of legislation from the past session, S.L. 2009-555 and S.L. 2009-556, made changes that will become effective December 1, 2009 and apply to offenses committed on or after that date.

The first law restructures the point ranges for prior record level for felony sentencing. Perhaps most significantly, a person with one prior record point will, under the new law, still be considered Prior Record Level I for sentencing. The remaining levels are recalibrated so that each covers four points - under current law, Prior Record Level IV covers six points while the other levels cover four apiece. Defendants on the low end of the prior record scale will generally benefit from the change, whereas those with 14 or more points might find themselves in a higher level on the new grid.

The second law changes the minimum sentence durations for Class B1-G felonies so that they grow by a standard 15 percent increment as you move from left to right on the grid within a particular offense class. So, for example, if the minimum presumptive sentence for a Class E, Level I offender is 20 months, then the minimum presumptive sentence for a Class E, Level II is 15 percent greater than that (23 months); the minimum presumptive sentence for a Class E, Level III is 15 percent greater still (26 months); and so forth as you move across the grid. The range of minimum sentences in Prior Record Level I in each offense class is the same as under current law, and the ranges for Class H and I felonies remain unchanged. The effect of these changes on individual defendants varies depending on where they fall on the grid - sometimes the numbers are higher than they are under current law, sometimes lower.

This year’s changes to the law were motivated - at least in part - by the projected shortfall of prison beds in the state in the coming years, and a realization that prison building alone could not accommodate the increased population. The table below shows the Sentencing Commission’s projection of the combined estimated impact of the two bills. As you can see, on balance the changes result in a prison bed savings over the course of the next decade.

Fiscal year           Combined Impact

2010/11                -244

2011/12                -303

2012/13                -419

2013/14                -542

2014/15                -759

2015/16                -1,117

2016/17                -1,436

2017/18                -1,716

2018/19                -1,911

2019/20                -2,078

Longtime readers may recall that I wrote about these proposed changes back in February (here), noting that they stemmed from a Sentencing and Policy Advisory Commission report from 2002. That report discussed additional alternatives (involving the habitual felon and post-release supervision laws) that were projected to save as many as 5,000 beds over a decade. The new laws will help, but they alone won’t be able to bridge the projected difference between population and system capacity - a gap expected to grow to nearly 7,500 by 2018, even with DOC employing its expanded operating capacity. You can learn more about the Sentencing Commission’s ridiculously accurate prison population projections here. You can also read about the broader costs of incarceration in a blog post by our Dean, Mike Smith.

A printable version of the new chart is here. (Thank you to the Sentencing Commission for providing it.)

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