2013 felony defender training

2013 New Felony Defender Training February 13‐15, 2013 / Chapel Hill, NC

ELECTRONIC PROGRAM MATERIALS*

*This PDF file contains "bookmarks," which serve as a clickable table of contents that allows you to easily skip around and locate documents within the larger file. A bookmark panel should automatically appear on the left‐hand side of this screen. If it does not, click the icon—located on the left‐hand side of the open PDF document—that looks like a dog‐eared page with a ribbon hanging from the top.

*IDS employees may not claim reimbursement for lunch

2013NewFelonyDefenderTrainingFebruary13‐15

UNCSchoolofGovernment,ChapelHill,NCCosponsoredbytheUNC‐ChapelHillSchoolofGovernment&

OfficeofIndigentDefenseServices

Wednesday,February1312:15to1:00 Check‐in1:00to1:30 WelcomeandWhattheSchoolofGovernmentCanDoforYou AlysonGrine,DefenderEducator

UNCSchoolofGovernment,ChapelHill,NC

1:30to2:00 What’sDifferentaboutPracticeinFelonyCases?(shortfilm)(30min.) AlysonGrine2:00to2:45 What’sintheFelonyFile;OrganizingaTrialNotebookandExhibits (45min.) ManiDexter,Attorney AmosGrangerTyndall,P.A.,ChapelHill,NC 2:45to3:00 Break(snackprovided) 3:00to4:00 TheCriminalIndictment:WhatFelonyDefendersNeedtoKnow(60min.)

JessicaSmith,ProfessorofPublicLawandGovernment UNCSchoolofGovernment,ChapelHill,NC

4:00to5:00 LabReportsandtheLegalIssuesSurroundingThem(60min.) SarahRackley,ForensicResourceCounsel OfficeofIndigentDefenseServices,Durham,NC; AlysonGrine 5:00 Adjourn


Thursday,February149:00to10:15 DevelopinganInvestigationandDiscoveryPlan(75min.) MikeKlinkosum,Attorney Cheshire,Parker,Schneider,&Bryan,Raleigh,NC10:15to10:30 Break10:30to12:00 WORKSHOP:DevelopinganInvestigationandDiscoveryPlan(90min.)12:00to1:00 Lunch(providedinbuilding)*1:00to2:30 SentencinginSuperiorCourt(90min.)

JamieMarkham,AssistantProfessorofPublicLawandGovernment UNCSchoolofGovernment,ChapelHill,NC

2:30to2:45 Break(snackprovided)2:45to3:45 VoirDireandDemonstration(60min.) RebeccaWiggins,AssistantPublicDefender OfficeofthePublicDefender,Durham,NC 3:45to4:00 Break4:00to5:00 PreservingtheRecord(60min.)

StaplesHughes,NCAppellateDefender OfficeoftheAppellateDefender,Durham,NC

5:00 Adjourn6:00 OptionaldinneratCarolinaBrewery


Friday,February159:00to9:45 EvidenceBlocking(45min.)

JohnRubin,ProfessorofPublicLawandGovernment UNCSchoolofGovernment,ChapelHill,NC

9:45to10:45 MotionstoSuppress:Statements,Property,andIdentification(60min.) SusanSeahorn,AssistantPublicDefender OfficeofthePublicDefender,OrangeCounty,NC 10:45to11:00 Break11:00to12:30 WORKSHOP:MotionstoSuppressandEvidenceBlocking(90min.) 12:30to1:30 Lunch(providedinbuilding)*1:30to2:15 JuryInstructions(45min.) PhoebeDee,AssistantCapitalDefender

OfficeoftheCapitalDefender,Durham,NC

2:15to2:30 Break(snackprovided)2:30to3:30 RecordsGatheringandSentencingAdvocacy(60min.) BertKemp,ChiefPublicDefender OfficeofthePublicDefender,Greenville,NC; BethWinston,Investigator OfficeoftheCapitalDefender,Durham,NC

3:30to4:30 EthicsforFelonyDefenders(60min.) TomMaher,ExecutiveDirector OfficeofIndigentDefenseServices,Durham,NC4:30to4:35 ClosingRemarks 4:35 Adjourn

CLEHOURS:15.5**Includes1hourofethics/professionalresponsibility

INDICTMENTS

The author is a School of Government faculty member who specializes in criminal law and procedure.

ADMINISTRATION OF JUSTICE BULLETIN NUMBER 2008/03 | JULY 08

The Criminal Indictment: Fatal Defect, Fatal Variance, and AmendmentJessica Smith

Contents

I. Introduction 3

II. General Matters 4

A. Date or Time of Offense 41. Homicide 4

2. Burglary 5

3. Sexual Assault 5

4. Failure to Register as a Sex Offender 7

5. Larceny 7

6. False Pretenses 8

7. Possession of a Firearm by a Felon 8

8. Impaired Driving 8

9. Conspiracy 8

10. Habitual and Violent Habitual Felon 8

11. Sexual Exploitation of a Minor 9

B. Victim’s Name 9C. Defendant’s Name 11D. Address or County 12E. Use of the Word “Feloniously” 13F. Statutory Citation 14G. Case Number 15H. Completion By Grand Jury Foreperson 15I. Prior Convictions 15J. “Sentencing Factors” 16

III. Offense Specific Issues 16

A. Homicide 16B. Arson 18C. Kidnapping and Related Offenses 18D. Burglary, Breaking or Entering, and Related Crimes 20

1. Burglary and Breaking or Entering 20

2. Breaking into Coin- or Currency-Operated Machine 23

E. Robbery 23F. Assaults 25

1. Generally 25

2. Injury Assaults 26

3. Deadly Weapon Assaults 26

4. Assault on a Government Official 28

5. Habitual Misdemeanor Assault 28

6. Malicious Conduct by Prisoner 28

G. Stalking 28H. Resist, Delay, and Obstruct Officer 29I. Disorderly Conduct 29J. Child Abuse 29K. Sexual Assault 29L. Indecent Liberties 32M. Larceny, Embezzlement, and Related Crimes Interfering with Property Rights 32N. Receiving or Possession of Stolen Property 38O. Injury to Personal Property 38P. False Pretenses and Forgery 38

1. False Pretenses 38

2. Identity Theft 39

3. Forgery 40

Q. Perjury and Related Offenses 40R. Habitual and Violent Habitual Felon 40S. Drug Offenses 43

1. Sale or Delivery 43

2. Possession and Possession With Intent to Manufacture, Sell, or Deliver 44

3. Trafficking 45

4. Maintaining a Dwelling 45

5. Drug Paraphernalia 45

6. Obtaining Controlled Substance by Fraud or Forgery 46

7. Amount of Controlled Substance 46

8. Drug Name 47

T. Weapons Offenses and Firearm Enhancement 481. Shooting into Occupied Property 48

2. Possession of Firearm by Felon 48

3. Possession of Weapon of Mass Destruction 50

4. Firearm Enhancement 50

U. Motor Vehicle Offenses 501. Impaired Driving 50

2. Habitual Impaired Driving 50

3. Speeding to Elude Arrest 51

4. Driving While License Revoked 51

V. General Crimes 521. Attempt 52

2. Solicitation 52

3. Conspiracy 52

4. Accessory After the Fact to Felony 52

W. Participants in Crime 53

2 UNC School of Government Administration of Justice Bulletin

This bulletin replaces Administration of Justice Bulletin No. 2004/03.

I. Introduction

To pass constitutional muster, an indictment “must allege lucidly and accurately all the essen-

tial elements of the [crime] . . . charged.”1 This requirement ensures that the indictment will

(1) identify the offense charged; (2) protect the accused from being twice put in jeopardy for the

same offense; (3) enable the accused to prepare for trial; and (4) enable the court, on conviction

or plea of nolo contendere or guilty, to pronounce sentence according to the rights of the case.2 If

the indictment satisfies this requirement, it will not be quashed for “informality or refinement.”3

However, if it fails to meet this requirement, it suffers from a fatal defect and cannot support a

conviction.

As a general rule, an indictment for a statutory offense is sufficient if it charges the offense in

the words of the statute.4 However, an indictment charging a statutory offense need not exactly

track the statutory language, provided that it alleges the essential elements of the crime charged.5

If the words of the statute do not unambiguously set out all of the elements of the offense, the

indictment must supplement the statutory language.6 Statutory short form indictments, such as

for murder, rape, and sex offense, are excepted from the general rule that an indictment must state

each element of the offense charged.7

Although G.S. 15A-923(e) states that a bill of indictment may not be amended, the term

“amendment” has been construed to mean any change in the indictment that “substantially alter[s]

the charge set forth in the indictment.”8 Thus, amendments that do not substantially alter the

charge are permissible.

Even an indictment that is sufficient on its face may be challenged. Specifically, an indictment

may fail when there is a fatal variance between its allegation and the evidence introduced at trial.

In order for a variance to be fatal, it must pertain to an essential element of the crime charged.9 If

the variance pertains to an allegation that is merely surplusage, it is not fatal.10

Fatal defects in indictments are jurisdictional, and may be raised at any time.11 However, a dis-

missal based on a fatal variance between the indictment and the proof at trial or based on a fatal

defect does not create a double jeopardy bar to a subsequent prosecution.12

1. State v. Hunt, 357 N.C. 257, 267 (2003) (quotation omitted). See generally G.S. 15A-924 (contents of

pleadings).

2. See Hunt, 357 N.C. at 267; State v. Hines, 166 N.C. App. 202, 206-07 (2004).

3. G.S. 15-153.

4. See, e.g., State v. Wade, 161 N.C. App. 686, 692 (2003).

5. See, e.g., State v. Hunter, 299 N.C. 29, 40-42 (1980) (although kidnapping indictment did not track the

language of the statute completely, it did charge every necessary element).

6. See State v. Greer, 238 N.C. 325, 328-31 (1953); State v. Partlow, 272 N.C. 60, 65-66 (1967).

7. See Hunt, 357 N.C. at 272-73; see also infra pp. 16-17 (discussing short form for murder in more

detail) and pp. 29-32 (discussing short forms for rape and sex offense in more detail).

Also, G.S. 20-138.1(c) allows a short form pleading for impaired driving. G.S. 20-138.2(c) does the same

for impaired driving in a commercial vehicle.

8. See State v. Price, 310 N.C. 596, 598 (1984) (quotation omitted).

9. See, e.g., State v. Langley, 173 N.C. App. 194, 197 (2005).

10. See infra pp. 4-53 (citing many cases distinguishing between fatal and non-fatal defects).

11. See, e.g., State v. Snyder, 343 N.C. 61, 65 (1996); State v. Sturdivant, 304 N.C. 293, 308 (1981).

12. See State v. Stinson, 263 N.C. 283, 286-92 (1965) (prior indictment suffered from fatal variance); State

v. Whitley, 264 N.C. 742, 745 (1965) (prior indictment was fatally defective); see also State v. Abraham, 338

N.C. 315, 339-41 (1994) (noting that proper procedure when faced with a fatal variance is to dismiss the

The Criminal Indictment: Fatal Defect, Fatal Variance, and Amendment 3

The sections below explore these rules. For a discussion of the use of the conjunctive term “and”

and the disjunctive term “or” in criminal pleadings, see Robert Farb, The “Or” Issue in Criminal

Pleadings, Jury Instructions, and Verdicts; Unanimity of Jury Verdict (Faculty Paper, July 1, 2008)

(available on-line at www.iogcriminal.unc.edu/verdict.pdf).

II. General Matters

A. Date or Time of OffenseG.S. 15A-924(a)(4) provides that a criminal pleading must contain “[a] statement or cross reference

in each count indicating that the offense charged was committed on, or on or about, a designated

date, or during a designated period of time.” Also, G.S. 15-144 (essentials of bill for homicide),

G.S. 15-144.1 (essentials of bill for rape), and G.S. 15-144.2 (essentials of bill for sex offense)

require that the date of the offense be alleged.13 However, a judgment will not be reversed when

the indictment fails to allege or incorrectly alleges a date or time, if time is not of the essence of

the offense and the error or omission did not mislead the defendant.14 Likewise, when time is not

of the essence of the offense charged, an amendment as to date does not substantially alter the

charge. Time becomes of the essence when an omission or error regarding the date deprives a

defendant of an opportunity to adequately present his or her defense,15 such as when the defendant

relies on an alibi defense16 or when a statute of limitations is involved.17 The cases summarized

below apply these rules.

1. Homicide

State v. Price, 310 N.C. 596, 598-600 (1984) (no error to allow the State to amend date of

murder from February 5, 1983—the date the victim died—to December 17, 1982—the

date the victim was shot).

State v. Wissink, 172 N.C. App. 829, 835-36 (2005) (trial court did not err by allowing

the State to amend a murder indictment on the morning of trial; the original indict-

ment alleged that the murder occurred on or about June 26, 2000, and the evidence

showed that the murder actually occurred on June 27, 2000), rev’d in part on other

grounds, 361 N.C. 418 (2007).

charge and grant the State leave to secure a proper bill of indictment); State v. Blakney, 156 N.C. App. 671

(2003) (noting that although the indictment was fatally defective, the State could re-indict).

13. The short forms for impaired driving also require an allegation regarding the time of the offense. See

G.S. 20-138.1(c) (impaired driving); G.S. 20-138.2(c) (impaired driving in a commercial vehicle).

14. See G.S. 15-155; G.S. 15A-924(a)(4); Price, 310 N.C. at 599.

15. Price, 310 N.C. at 599.

16. See State v. Stewart, 353 N.C. 516, 518 (2001). But see State v. Custis, 162 N.C. App. 715 (2004)

(explaining that time variances do not always prejudice a defendant, even when an alibi is involved; such is

the case when the allegations and proof substantially correspond, the alibi evidence does not relate to either

the date charged or that shown by the evidence, or when the defendant presents an alibi defense for both

dates).

17. See State v. Davis, 282 N.C. 107, 114 (1972) (variance of one day “is not material where no statute of

limitations is involved”).


2. Burglary

State v. Davis, 282 N.C. 107, 114 (1972) (no fatal variance when indictment alleged that

offense occurred on November 13 but evidence showed it took place on November 14 of

the same year; “variance between allegation and proof as to time is not material where

no statute of limitations is involved”) (quotation omitted).

State v. Mandina, 91 N.C. App. 686, 690 (1988) (“[a]lthough nighttime is clearly ‘of the

essence’ of the crime of burglary, an indictment for burglary is sufficient if it avers that

the crime was committed in the nighttime”; failure to allege the hour the crime was

committed or the specific year does not render the indictment defective).

State v. Campbell, 133 N.C. App. 531, 535-36 (1999) (no error to allow the State to

amend burglary indictment to change date of offense from June 2, 1997 to May 27,

1997; time is not an essential element of the crime; defendant was neither misled nor

surprised by the change—in fact, defendant was aware that the date on the indictment

was incorrect).

3. Sexual Assault

In a sexual assault case involving a child, leniency is allowed regarding the child’s memory of spe-

cific dates of the offense.18 The rule of leniency is not limited to very young children, and has been

applied to older children as well.19 Unless the defendant demonstrates that he or she was deprived

of his or her defense because of the lack of specificity, this policy of leniency governs.20 The follow-

ing cases illustrate these rules.

Cases Finding a Fatal Defect or Variance/Error With Respect to an Amendment

State v. Stewart, 353 N.C. 516, 517-19 (2001) (indictment alleged that statutory sex

offense occurred between July 1, 1991 and July 31, 1991; the State’s evidence encom-

passed a 2 1/2 year period but did not include an act within the time period alleged

in the indictment; defendant relied on the dates in the indictment to prepare an alibi

defense and presented evidence of his whereabouts for each of those days; noting that a

rule of leniency generally applies in child sexual abuse cases but holding that the “dra-

matic variance” between the dates resulted in a fatal variance).

State v. Whittemore, 255 N.C. 583, 592 (1961) (time was of the essence in statutory rape

case in which indictment alleged that offenses occurred on a specific date and in its

case in chief, the State’s witnesses confirmed that date; after defendant presented an

alibi defense, the State offered rebuttal evidence showing that the crime occurred on

a different date; the rule that time is generally not an essential ingredient of the crime

charged cannot be used to “ensnare” a defendant).

State v. Custis, 162 N.C. App 715 (2004) (fatal variance existed between dates alleged

in sex offense and indecent liberties indictment and evidence introduced at trial; the

indictment alleged that the defendant committed the offenses on or about June 15,

2001; at trial there was no evidence of sexual acts or indecent liberties occurring on

or about that date; evidence at trial suggested sexual encounters over a period of years

18. See, e.g., State v. Stewart, 353 N.C. 516, 518 (2001).

19. See, e.g., State v. Ware, __ N.C. App. __, 656 S.E.2d 662 (2008) (applying the rule to a case involving a

15-year-old victim).

20. See Stewart, 353 N.C. at 518.


some time prior to the date listed in the indictment; defendant relied on the date

alleged in the indictment to build an alibi defense for the weekend of June 15).

Cases Finding No Fatal Defect or Variance/No Error With Respect to an Amendment

State v. Sills, 311 N.C. 370, 375-77 (1984) (variance between actual date of rape, March

14, 1983, and the date alleged in the indictment as “on or about March 15, 1983” was

not fatal; defendant was not deprived of his ability to present his alibi defense; defen-

dant had notice that the offense date could not be pinpointed due to the victim’s youth).

State v. Baxley, 223 N.C. 210, 211-12 (1943) (although indictment charged that offense

was committed in April, 1942, victim testified at trial that the acts took place about

September, 1942, in December, 1941, and in April, 1942; time is not of the essence of

the offense of rape of a female under the age of sixteen).

State v. Ware, __ N.C. App. __, 656 S.E.2d 662 (2008) (in a case involving statutory rape

and incest, the court applied the rule of leniency with respect to a 15-year-old victim;

the court noted that on all of the dates alleged, the victim would have been 15 years

old).

State v. Wallace, 179 N.C. App. 710, 716-18 (2006) (trial judge did not err by allowing

a mid-trial amendment of an indictment alleging sex offenses against a victim who

was 13, 14, or 15 years old; original dates alleged were June through August 2000, June

through August 2002, and November 2001; amendment, which replaced the date of

November 2001 with June through August 2001, did not substantially alter the charges

against defendant when all of the alleged acts occurred while the victim was under the

age of fifteen; although the defendant presented evidence that the victim was in another

state during November 2001, no other alibi or reverse alibi evidence was presented).

State v. Whitman, 179 N.C. App. 657, 665 (2006) (trial court did not err by allowing, on

the first day of trial, the State to amend the dates specified in the indictment for statu-

tory rape and statutory sexual offense of a 13, 14, or 15-year-old from “January 1998

through June 1998” to “July 1998 through December 1998”; because the victim would

have been fifteen under the original dates and under the amended dates, time was not

of the essence to the State’s case; the amendment did not impair the defendant’s abil-

ity to present an alibi defense because the incest indictment, which was not amended,

alleged dates from “January 1998 through June 1999,” a time span including the entire

1998 calendar year, and thus the defendant was on notice that if he wished to present an

alibi defense, he was going to have to address all of 1998).

State v. Locklear, 172 N.C. App. 249, 255 (2005) (no fatal variance in incest case when

the defendant did not assert a defense of alibi).

State v. Poston, 162 N.C. App. 642 (2004) (no fatal variance between first-degree sexual

offense indictment alleging that acts took place between June 1, 1994, and July 31, 1994

and evidence at trial suggesting that the incident occurred when the victim “was seven”

or “[a]round seven” and that victim’s seventh birthday was on October 8, 1994; no fatal

variance between first-degree sexual offense indictment alleging that acts took place

between October 8, 1997 and October 16, 1997, and evidence at trial suggesting that it

occurred when victim was “[a]round 10” and maybe age eleven, while she was living at

a specified location and that victim turned ten on October 8, 1997 and lived at the loca-

tion from 1997 until August 1999).


State v. McGriff, 151 N.C. App. 631, 634-38 (2002) (no error to allow amendment of the

dates of offense in statutory rape and indecent liberties indictment; indictment alleged

that the offenses occurred on or between January 1, 1999 though January 27, 1999;

when the evidence introduced at trial showed that at least one of the offenses occurred

between December 1, 1998 and December 25, 1998, the trial court allowed the State to

amend the indictment to conform to the evidence; rejecting the defendant’s argument

that the change in dates prejudiced his ability to present an alibi defense).

State v. Crockett, 138 N.C. App. 109, 112-13 (2000) (indictments charging statutory rape

during the period from November 22, 1995 to February 19, 1996, were not impermis-

sibly vague; evidence showed that the act occurred in January 1996 when the victim

was fourteen years old; “the exact date that defendant had sex with [the victim] is

immaterial”).

State v. Campbell, 133 N.C. App. 531, 535-36 (1999) (no error to allow the State to

amend a statutory rape indictment to change date of offense from June 2, 1997 to May

27, 1997; time is not an essential element of the crime; the defendant was neither misled

nor surprised by the change).

State v. Hatfield, 128 N.C. App. 294, 299 (1998) (first degree sexual offense and indecent

liberties indictments were not impermissibly vague, although they alleged that the acts

occurred “on or about dates in August 1992” and required defendant to explain where

he was during the entire summer in order to present an alibi defense).

State v. McKinney, 110 N.C. App. 365, 370-71 (1993) (first-degree rape indictments alleg-

ing the date of the offenses against child victims as “July, 1985 thru July, 1987” were

not fatally defective; time is not an element of the crime and is not of the essence of the

crime).

State v. Norris, 101 N.C. App. 144, 150-51 (1990) (no fatal variance between indictment

alleging that rape of child occurred in “June 1986 or July 1986” and child’s testimony

that rape occurred in 1984 or 1985; child’s mother fixed the date as June or July, 1986,

and the date is not an essential element of the crime).

State v. Cameron, 83 N.C. App. 69, 71-74 (1986) (no error in allowing the State to amend

date of offense in an incest indictment involving a child victim from “on or about 25

May 1985,” to “on or about or between May 18th, 1985, through May 26th, 1985”;

change did not substantially alter the charge; no unfair surprise because defendant

knew that the conduct at issue allegedly occurred during a weekend when an identified

family friend was visiting).

4. Failure to Register as a Sex Offender

State v. Harrison, 165 N.C. App. 332 (2004) (an indictment charging failure to register as

a sex offender is not defective for failing to allege the specific dates that the defendant

changed residences).

5. Larceny

State v. Osborne, 149 N.C. App. 235, 245-46 (no fatal variance between the date of the

offense alleged in the larceny indictment and the evidence offered at trial; indictment

alleged date of offense as “on or about May 3, 1999,” the date the item was found in the

defendant’s possession; defendant argued that the evidence did not establish that the


item was stolen on this date; variance did not deprive the defendant of an opportunity

to present a defense when defendant did not rely on an alibi), aff’d 356 N.C. 424 (2002).

6. False Pretenses

State v. May, 159 N.C. App. 159, 163 (2003) (no error by permitting amendment of the

date in a false pretenses indictment to accurately reflect the date of the offense rather

than the date of arrest; time is not an essential element of the crime).

State v. Simpson, 159 N.C. App. 435, 438 (2003) (trial court did not err in granting

the State’s motion to amend the false pretenses indictment to change the date of the

offense), aff’d, 357 N.C. 652 (2003).

State v. Tesenair, 35 N.C. App. 531, 533-34 (1978) (no error in granting the State’s

motion to amend date of offense in a false pretenses indictment from November 18,

1977, a date subsequent to the trial, to November 18, 1976; time was not of the essence

of the offense charged and defendant was “completely aware” of the nature of the charge

and the dates on which the transactions giving rise to the charge occurred).

7. Possession of a Firearm by a Felon

State v. Coltrane, __ N.C. App. __, 656 S.E.2d 322 (2008) (trial court did not err in

allowing the State to amend an indictment that alleged the offense date as “on or about

the 9th day of December, 2004” and change it to April 25, 2005; the date of the offense

is not an essential element of this crime).

8. Impaired Driving

For cases pertaining to date issues with respect to prior offenses alleged for habitual impaired

driving, see infra p. 50.

State v. Watson, 122 N.C. App. 596, 602 (1996) (no fatal variance caused by Trooper’s

mistaken statement at trial that events occurred on June 25 when they actually

occurred on June 5; defendant himself testified that the events occurred on June 5; “this

mistake on the part of the officer was just that and not a fatal variance”).

9. Conspiracy

State v. Christopher, 307 N.C. 645, 648-50 (1983) (fatal variance existed and resulted

in “trial by ambush”; conspiring to commit larceny indictment alleged that the offense

occurred “on or about” December 12, 1980; defendant prepared an alibi defense; the

State’s trial evidence indicated the crime might have occurred over a three month

period from October, 1980 to January, 1981).

State v. Kamtsiklis, 94 N.C. App. 250, 254-55 (1989) (no error in allowing amendment

of conspiracy indictments to change dates of offense from “on or about May 6, 1987

through May 12, 1987” to “April 19, 1987 until May 12, 1987”; “[o]rdinarily, the precise

dates of a conspiracy are not essential to the indictment because the crime is complete

upon the meeting of the minds of the confederates”).

10. Habitual and Violent Habitual Felon

In habitual felon and violent habitual felon cases, date issues arise with respect to the felony sup-

porting the habitual felon indictment (“substantive felony”) as well as the prior convictions. The

court of appeals has allowed the State to amend allegations pertaining to the date of the substantive


felony, reasoning that the essential issue is whether the substantive felony was committed, not its

specific date.21

G.S. 14-7.3 provides, in part, that an indictment charging habitual felon must, as to the prior

felonies, set forth the date that the prior felonies were committed and the dates that pleas of guilty

were entered or convictions returned. Similarly, G.S. 14-7.9 provides, in part, that an indictment

charging violent habitual felon must set forth that prior violent felonies were committed and the

conviction dates for those priors. Notwithstanding these provisions, the court of appeals has

allowed amendment of indictment allegations as to the prior conviction dates and has held that

errors with regard to the alleged dates of the prior felonies do not create a fatal defect or fatal

variance.22

11. Sexual Exploitation of a Minor

In State v. Riffe,23 indictments charging the defendant with third-degree sexual exploitation of a

minor in violation of G.S. 14-190.17A alleged the date of the offense as August 30, 2004. At trial,

the defense established that on that date, the computer in question was in the possession of law

enforcement, and not the defendant. Nevertheless, the trial court allowed a mid-trial amendment

to the allegation regarding the offense date. On appeal, the court held that this was not error, not-

ing that no alibi defense had been presented and thus that time was not of the essence.

B. Victim’s NameSeveral general rules can be stated regarding errors in indictments with respect to the victim’s

name: (1) a charging document must name the victim;24 (2) a fatal variance results when an

21. State v. May, 159 N.C. App. 159, 163 (2003) (no error in allowing amendment of the date of the felony

offense accompanying the habitual felon indictment; the date of that offense is not an essential element of

establishing habitual felon status); State v. Locklear, 117 N.C. App. 255, 260 (1994) (no error by allowing the

State to amend a habitual felon indictment to change the date of the commission of the felony supporting

the habitual felon indictment from December 19, 1992 to December 2, 1992; the fact that another felony

was committed, not its specific date, was the essential question).

22. State v. Lewis, 162 N.C. App. 277 (2004) (no error in allowing the State to amend habitual felon

indictment which mistakenly noted the date and county of defendant’s probation revocation instead of the

date and county of defendant’s conviction for the prior felony; because the indictment correctly stated the

type of offense and the date of its commission, it sufficiently notified defendant of the particular prior being

alleged; also, defendant stipulated to the conviction); State v. Gant, 153 N.C. App. 136, 142 (2002) (error

in indictment that listed prior conviction date as April 16, 2000 instead of April 16, 1990 was “technical

in nature”); State v. Hargett, 148 N.C. App. 688, 693 (2002) (trial court did not err in allowing the State

to amend conviction dates); State v. Smith, 112 N.C. App. 512, 516 (1993) (habitual felon indictment that

failed to allege the date of defendant’s guilty plea to a prior conviction was not fatally defective; indictment

alleged that defendant pled guilty to the offense in 1981 and was sentenced on December 7, 1981); State v.

Spruill, 89 N.C. App. 580, 582 (1988) (no fatal variance when indictment alleged that one of the three prior

felonies occurred on October 28, 1977, and defendant stipulated prior to trial that it actually occurred on

October 7, 1977; time was not of the essence and the stipulation established that defendant was not sur-

prised by the variance).

23. ___ N.C. App. ___, ___ S.E.2d ___ (June 17, 2008).

24. State v. Powell, 10 N.C. App. 443, 448 (1971) (in order to charge an assault, there must be a victim

named; by failing to name the person assaulted, the defendant would not be protected from subsequent

prosecution); see also State v. Scott, 237 N.C. 432, 434 (1953) (indictment that named the assault victim in

one place as George Rogers and in another as George Sanders was void on its face).


indictment incorrectly states the name of the victim;25 and (3) it is error to allow the State to

amend an indictment to change the name of the victim.26

The appellate courts find no fatal defect or variance or bar to amendment when a name error

falls within the doctrine of idem sonans. Under this doctrine, a variance in a name is not mate-

rial if the names sound the same.27 Other cases hold that the error in name is immaterial if it can

be characterized as a typographical error or if it did not mislead the defendant. The cases sum-

marized below illustrate these exceptions to the general rules stated above. Note that when these

cases are compared to those cited in support of the general rules, some inconsistency appears.

State v. Williams, 269 N.C. 376, 384 (1967) (indictment alleged victim’s first name as

“Mateleane”; evidence at trial indicated it was “Madeleine”; there was no uncertainty

as to victim’s identity, the variance came within the rule of idem sonans, and was not

material).

State v. Gibson, 221 N.C. 252, 254 (1942) (variance between victim’s name as alleged in

indictment—“Robinson”—and victim’s real name—“Rolison”—came within the rule of

idem sonans).

State v. Hewson, 182 N.C. App. 196, 211 (2007) (no error in allowing the State to amend

first-degree murder and shooting into an occupied dwelling indictment to change vic-

tim’s name from “Gail Hewson Tice” to “Gail Tice Hewson”).

State v. Holliman, 155 N.C. App. 120, 125-27 (2002) (no error to allow the State to

change name of murder victim from “Tamika” to “Tanika”).

State v. McNair, 146 N.C. App. 674, 677-78 (2001) (no error by allowing the State to

amend two of seven indictments to correct typographical error and change victim’s

name from Donald Dale Cook to Ronald Dale Cook; victim’s correct name appeared

twice in one of the two challenged indictments and the defendant could not have been

misled or surprised as to the nature of the charges).

State v. Wilson, 135 N.C. App. 504, 508 (1999) (no fatal variance between indictment

that alleged assault victim’s name as “Peter M. Thompson” and the evidence at trial

indicating that the victim’s name was “Peter Thomas”; arrest warrant correctly named

victim, defendant’s testimony revealed that he was aware that he was charged with

assaulting Peter Thomas, and the names are sufficiently similar to fall within the doc-

trine of idem sonans).

25. State v. Call, 349 N.C. 382, 424 (1998) (fatal variance between indictment charging defendant with

assault with a deadly weapon with intent to kill inflicting serious injury upon Gabriel Hernandez Gervacio

and evidence at trial revealing that the victim’s correct name was Gabriel Gonzalez); State v. Bell, 270 N.C.

25, 29 (1967) (fatal variance existed between the robbery indictment and the evidence at trial; indictment

alleged that the name of the robbery victim was Jean Rogers but the evidence showed that the victim was

Susan Rogers); State v. Overman, 257 N.C. 464, 468 (1962) (fatal variance between the hit-and-run indict-

ment and the proof; indictment alleged that Frank E. Nutley was the victim but the evidence showed the

victim was Frank E. Hatley).

26. State v. Abraham, 338 N.C. 315, 339-41 (1994) (error to allow the State to amend an assault with a

deadly weapon with intent to kill indictment to change name of victim from Carlose Antoine Lattter to

Joice Hardin; “[w]here an indictment charges the defendant with a crime against someone other than the

actual victim, such a variance is fatal”; court notes that proper procedure is to dismiss the charge and grant

the state leave to secure a proper bill of indictment).

27. See Black’s Law Dictionary p. 670 (5th ed. 1979).


State v. Bailey, 97 N.C. App 472, 475-76 (1990) (no error in allowing the State to amend

the victim’s name in three indictments from “Pettress Cebron” to “Cebron Pettress”; the

errors in the indictments were inadvertent and defendant could not have been misled or

surprised as to the nature of the charges against him”).

State v. Marshall, 92 N.C. App. 398, 401-02 (1988) (no error to allow amendment of

rape indictment to change victim’s name from Regina Lapish to Regina Lapish Foster;

defendant was indicted for four criminal violations, three indictments correctly alleged

the victim’s name, and only one “inadvertently” omitted her last name).

State v. Isom, 65 N.C. App. 223, 226 (1983) (no fatal variance between indictments nam-

ing the victim as Eldred Allison and proof at trial; although victim testified at trial that

his name was “Elton Allison,” his wallet identification indicated his name was Eldred

and the defendant referred to the victim as Elred Allison; the names Eldred, Elred, and

Elton are sufficiently similar to fall within the doctrine of indem sonans and the vari-

ance is immaterial).

The courts have recognized other exceptions to the general rules that an indictment must cor-

rectly allege the victim’s name and that an amendment as to the victim’s name substantially alters

the charge. For example, State v. Sisk,28 held that the State properly could amend an indictment

charging uttering a forged instrument, changing the name of the party defrauded or intended to

be defrauded from First Union National Bank to Wachovia Bank. Sisk reasoned that the bank’s

name did not speak to the essential elements of the offense charged and that the defendant did not

rely on the identity of the bank in framing her defense. Also, State v. Bowen29 held that the trial

court did not err in allowing the state to change the victim’s last name in a sex crimes indictment

to properly reflect a name change that occurred because of an adoption subsequent to when the

indictment was issued. And finally, State v. Ingram30 held that it was not error to allow the State to

amend a robbery indictment by deleting the name of one of two victims alleged.

For a discussion of defects regarding the victim’s name for larceny, embezzlement, and other

offenses that interfere with property rights, see infra pp. 32–36.

C. Defendant’s NameG.S. 15A-924(a)(1) provides that a criminal pleading must contain a name or other identifica-

tion of the defendant. Consistent with this provision, State v. Simpson31 held that an indictment

that fails to name or otherwise identify the defendant, if his or her name is unknown, is fatally

defective. Distinguishing Simpson, the court of appeals has found no error when the defendant’s

name is omitted from the body of the indictment but is included in a caption that is referenced

in the body of the indictment.32 Similarly, that court has found no error when the defendant’s

name is misstated in one part of the indictment but correctly stated in another part. In State v.

Sisk,33 for example, the court of appeals held that it was not error to allow the State to amend the

defendant’s name, as stated in the body of an uttering a forged instrument indictment. In Sisk, the

28. 123 N.C. App. 361, 366 (1996), aff’d in part, 345 N.C. 749 (1997).

29. 139 N.C. App. 18, 27 (2000).

30. 160 N.C. App. 224, 226 (2003), aff’d, 358 N.C. 147 (2004).

31. 302 N.C. 613, 616-17 (1981).

32. See State v. Johnson, 77 N.C. App. 583, 584-85 (1985).

33. 123 N.C. App. 361, 365-66 (1996), aff’d in part, 345 N.C. 749 (1997).


indictment’s caption correctly stated the defendant’s name as the person charged, the indictment

incorporated that identification by reference in the body of the indictment, and the body of the

indictment specifically identified defendant as the named payee of the forged document before

mistakenly referring to her as Janette Marsh Cook instead of Amy Jane Sisk. The Sisk court also

noted that the defendant was not prejudiced by the error.

As with errors in the victim’s name, the courts have applied the doctrine of idem sonans to

errors in the defendant’s name, when the two names sound the same.34 The court of appeals has

allowed amendment of the defendant’s name when the error was clerical.35

D. Address or CountyG.S. 15A-924(a)(3) provides that a pleading must contain a statement that the offense was com-

mitted in a designated county. This allegation establishes venue. In State v. Spencer,36 the court of

appeals held that the fact that the indictment alleged that the crime occurred in Cleveland County

but the evidence showed it occurred in Gaston County was not a fatal defect, because the variance

was not material. When the issue arose in another case, the court looked to the whole body of the

indictment to hold that the county of offense was adequately charged.37

A related issue was presented in State v. James,38 where the defendant argued that a mur-

der indictment was fatally defective because it omitted the defendant’s county of residence.

G.S. 15-144 sets out the essentials for a bill of homicide and provides that the indictment should

state, among other things, the name of the person accused and his or her county of residence.

That provision also states, however, that in these indictments, it is not necessary to allege matter

not required to be proved at trial. Relying on this language, James held that “[s]ince the county of

. . . residence need not be proved, the omission of this fact does not make the indictment fatally

defective.”

The following cases deal with other issues pertaining to incorrect county names or addresses or

omission of one of those facts.39

State v. Harrison, 165 N.C. App. 332 (2004) (indictment charging failure to register as a

sex offender was not defective by failing to identify defendant’s new address).

34. See supra pp. 10–11 (discussing idem sonans); State v. Vincent, 222 N.C. 543, 544 (1943) (Vincent

and Vinson); see also State v. Higgs, 270 N.C. 111, 113 (1967) (Burford Murril Higgs and Beauford Merrill

Higgs).

35. See State v. Grigsby, 134 N.C. App. 315, 317 (1999) (trial court did not err in allowing the State to

amend the indictment to correct the spelling of defendant’s last name by one letter; “[a] change in the spell-

ing of defendant’s last name is a mere clerical correction of the truest kind”), reversed on other grounds, 351

N.C. 454 (2000).

36. __ N.C. App. __, 654 S.E.2d 69 (2007).

37. See State v. Almond, 112 N.C. App. 137, 147-48 (1993) (false pretenses indictments not fatally defec-

tive for failing to allege the county in which the offense occurred; indictments were captioned as from

Wilkes County and all but one contained the incorporating phrase “in the county named above”; although

the name of the county was not in the body of the indictment, the indictment contained sufficient infor-

mation to inform defendant of the charges; as to the one indictment that did not include incorporating

language, it is undisputed that the named victim was located in Wilkes County and thus defendant had full

knowledge of the charges against him; finally, when all of the indictments are taken together, there is no

question that the activities for which defendant was charged took place within Wilkes County).

38. 321 N.C. 676, 680 (1988).

39. See also infra pp. 21–23 (discussing burglary and related crimes).


State v. Hyder, 100 N.C. App. 270, 273-74 (1990) (trial court did not err by allowing the

State to amend a delivery of a controlled substance indictment; top left corner of indict-

ment listed Watauga as the county from which the indictment was issued; amendment

replaced “Watauga County” with “Mitchell County”; error was typographical and in no

way misled the defendant as to the nature of the charges).

State v. Lewis, 162 N.C. App. 277 (2004) (State was properly allowed to amend a habitual

felon indictment, which mistakenly noted the date and county of defendant’s probation

revocation instead of the date and county of defendant’s previous conviction; there also

was an error as to the county seat).

State v. Grady, 136 N.C. App. 394, 396 (2000) (trial court did not err in allowing amend-

ment of address of dwelling in maintaining dwelling for use of controlled substance

indictment).

E. Use of the Word “Feloniously”The use of the word “feloniously” in charging a misdemeanor will be treated as harmless surplus-

age.40 However, felony indictments that do not contain the word “feloniously” are fatally defective,

“unless the Legislature otherwise expressly provides.” 41 State v. Blakney42 explored the meaning of

the phrase “unless the Legislature otherwise expressly provides.” In that case, the defendant was

charged with possession of more than one and one-half ounces of marijuana, among other charges.

Although the possession charge did not contain the word “feloniously,” the defendant pleaded guilty

to felony possession of marijuana. The defendant then appealed, challenging the sufficiency of the

possession charge, arguing that because it did not contain the word “feloniously,” it was invalid.

Reviewing the case law, the court of appeals indicated that the rule regarding inclusion of the word

feloniously in felony indictments developed when a felony was defined as an offense punishable by

either death or imprisonment. This definition made felonies difficult to distinguish from misde-

meanors, unless denominated as such in the indictment. In 1969, however, G.S. 14-1 was amended

to define a felony as a crime that: (1) was a felony at common law; (2) is or may be punishable by

death; (3) is or may be punishable by imprisonment in the state’s prison; or (4) is denominated as a

felony by statute. The court noted that “[w]hile the felony-misdemeanor ambiguity that prompted

the [older] holdings . . . remains in effect today with respect to subsections (1) through (3), subsec-

tion (4) now expressly provides for statutory identification of felonies.” Thus, it concluded, subsec-

tion (4) affords a defendant notice of being charged with a felony, even without the use of the word

“feloniously,” provided the indictment gives notice of the statute denominating the alleged crime

as a felony. The court added, however, it is still better practice to include the word “feloniously” in a

felony indictment.

Turning to the case before it, the court noted that the indictment charging the defendant with

possession referred only to G.S. 90-95(a)(3), making it “unlawful for any person . . . [t]o possess a

controlled substance,” but not stating whether the crime is a felony or a misdemeanor. Because the

indictment stated that defendant possessed “more than one and one-half ounces of marijuana[,] a

controlled substance which is included in Schedule VI of the North Carolina Controlled Substances

40. See State v. Higgins, 266 N.C. 589, 593 (1966); State v. Wesson, 16 N.C. App. 683, 686-87 (1972).

41. State v. Whaley, 262 N.C. 536, 537 (1964) (per curiam); see also State v. Fowler, 266 N.C. 528, 530-31

(1966) (noting that the State may proceed on a sufficient bill of indictment).

42. 156 N.C. App. 671 (2003).


Act,” it contained a reference to G.S. 90-95(d)(4). That provision states that if the quantity of the

marijuana possessed exceeds one and one-half ounces, the offense is a Class I felony. The court

concluded, however, that although the indictment’s language would lead a defendant to G.S.

90-95(d)(4), it failed to include express reference to the relevant statutory provision on punishment

and therefore did not provide defendant with specific notice that he was being charged with a fel-

ony. Because the indictment failed to either use the word “feloniously” or to state the statutory sec-

tion indicating the felonious nature of the charge, the court held that the indictment was invalid.

Finally, the court noted that the State could re-indict defendant, in accordance with its opinion.

F. Statutory CitationG.S. 15A-924(a)(6) provides that each count of a criminal pleading must contain “a citation of

any applicable statute, rule, regulation, ordinance, or other provision of law” alleged to have been

violated. That subsection also provides, however, that an error in the citation or its omission is not

ground for dismissal of the charges or for reversal of a conviction.43 The case law is in accord with

the statute and holds (1) that there is no fatal defect when the body of the indictment properly

alleges the crime but there is an error in the statutory citation;44 and (2) that a statutory citation

may be amended when the body of the indictment puts the defendant on notice of the crime

charged.45

43. For pleading city ordinances, see G.S. 160A-79 (codified ordinances must be pleaded by both section

number and caption; non-codified ordinances must be pleaded by caption). See also State v. Pallet, 283 N.C.

705, 712 (1973) (ordinance must be pleaded according to G.S. 106A-79).

44. State v. Lockhart, 181 N.C. App. 316 (2007) (an indictment that tracked the statutory language of

G.S. 148-45(g) properly charged the defendant with a work-release escape even though it contained an

erroneous citation to G.S. 148-45(b)); State v. Mueller, __ N.C. App. __, 647 S.E.2d 440 (2007) (indictments

cited G.S. 14-27.7A (statutory rape of a 13, 14, or 15 year old) as the statute allegedly violated but the body

of the instrument revealed that the intended statute was G.S. 14-27.4 (first-degree statutory rape of a child

under 13); citing Jones and Reavis (discussed below), the court noted that “although an indictment may

cite to the wrong statute, when the body of the indictment is sufficient to properly charge defendant with

an offense, the indictment remains valid and the incorrect statutory reference does not constitute a fatal

defect” and held that the indictments were valid and properly put the defendant on notice that he was being

charged under G.S. 14-27.4); State v. Jones, 110 N.C. App. 289, 291 (1993) (indictment sufficiently charged

arson; “Even though the statutory reference was incorrect, the body of the indictment was sufficient to

properly charge a violation. The mere fact that the wrong statutory reference was used does not constitute

a fatal defect as to the validity of the indictment.”). Cf. State v. Reavis, 19 N.C. App. 497, 498 (1973) (“[E]ven,

assuming arguendo, that reference to the wrong statute is made in the bill of indictment . . . , this is not a

fatal flaw in the sufficiency of the bill of indictment.”); see also State v. Anderson, 259 N.C. 499, 501 (1963)

(“Reference to a specific statute upon which the charge in a warrant is laid is not necessary to its validity.

Likewise, where a warrant charges a criminal offense but refers to a statute that is not pertinent, such refer-

ence does not in validate the warrant.”); State v. Smith, 240 N.C. 99, 100-01 (1954) (warrant erroneously

cited G.S. 20-138 when it should have cited G.S. 20-139; “reference . . . to the statute is not necessary to the

validity of the warrant”) (citing G.S. 15-153); In Re Stoner, 236 N.C. 611, 612 (1952) (warrant erroneously

cited G.S. 130-255.1 when correct provisions was G.S. 130-225.2; “reference . . . to a statute not immediately

pertinent would be regarded as surplusage”).

45. State v. Hill, 362 N.C. 169 (2008) (trial court did not err by allowing the State to amend indictments

to correct a statutory citation; the indictments incorrectly cited a violation of G.S. 14-27.7A (sexual offense

against a 13, 14, or 15 year old), but the body of the indictment correctly charged the defendant with a vio-

lation of G.S. 14-27.4 (sexual offense with a victim under 13)).


G. Case NumberThe court of appeals has held that the State may amend the case numbers included in the

indictment.46

H. Completion By Grand Jury ForepersonG.S. 15A-623(c) requires the grand jury foreperson to indicate on the indictment the witness or

witnesses sworn and examined before the grand jury. It also provides, however, that failure to

comply with this requirement does not invalidate a bill of indictment. The cases are in accord with

this statutory provision.47

G.S. 15A-644(a) requires that the indictment contain the signature of the foreperson or acting

foreperson attesting to the concurrence of twelve or more grand jurors in the finding of a true

bill. However, failure to check the appropriate box on the indictment for “True Bill” or “Not a

True Bill” is not a fatal defect, when there is either evidence that a true bill was presented or no

evidence indicating that it was not a true bill, in which case a presumption of validity has been

applied.48

I. Prior ConvictionsG.S. 15A-928(a) provides that when a prior conviction increases the punishment for an offense

and thereby becomes an element of it, the indictment or information may not allege the previous

conviction. If a reference to a prior conviction is contained in the statutory name or title of the

offense, the name or title may not be used in the indictment or information; rather an improvised

name or title must be used which labels and distinguishes the crime without reference to the prior

conviction.49 G.S. 15A-928(b) provides that the indictment or information for the offense must be

accompanied by a special indictment or information, filed with the principal pleading, charging

that the defendant was previously convicted of a specified offense. At the prosecutor’s option, the

special indictment or information may be incorporated into the principal indictment as a separate

count.50 Similar rules apply regarding the requirement of a separate pleading for misdemeanors

tried de novo in superior court when the fact of the prior conviction is an element of the offense.51

46. See State v. Rotenberry, 54 N.C. App. 504, 510 (1981) (no error to allow the State to amend the case

number listed in the indictment).

47. See State v. Wilson, 158 N.C. App. 235, 238 (2003) (indictment for common law robbery was not

fatally defective even though grand jury foreperson failed to indicate that the witnesses identified on the

face of the indictment appeared before the grand jury and gave testimony; failure to comply with G.S.

15A-623(c) does not vitiate a bill of indictment or presentment) (citing State v. Mitchell, 260 N.C. 235 (1963)

(indictment is not fatally defective when the names of the witnesses to the grand jury are not marked));

State v. Allen, 164 N.C. App. 665 (2004) (citing Mitchell).

48. See State v. Midyette, 45 N.C. App. 87, 89 (1980) (“an indictment is not invalid merely because there

is no specific expression in the indictment that it is a “true bill”; record revealed that indictments were

returned as true bills); State v. Hall, 131 N.C. App. 427 (1998) (because the parties provided no evidence of

the presentation of the bill of indictment to the trial court, the court relied on the presumption of validity

of the trial court’s decision to go forward with the case; defendant provided no evidence that the trial court

was unjustified in assuming jurisdiction), aff’d, 350 N.C. 303 (1999).

49. G.S. 15A-928(a).

50. G.S. 15A-928(b).

51. G.S. 15A-928(d).


In one case, the court of appeals held that the trial court did not err by allowing the State to

amend a felony stalking indictment that had alleged the prior conviction that elevated the offense

to a felony in the same count as the substantive felony.52 The trial court had allowed the State to

amend the indictment to separate the allegation regarding the prior conviction into a different

count, thus bringing the indictment into compliance with G.S. 15A-928.53 Other cases dealing

with charging of a previous conviction are discussed in the offense specific sections below under

section III.

J. “Sentencing Factors”In Blakely v. Washington54 the United States Supreme Court held that any factor, other than a prior

conviction, that increases a sentence above the statutory maximum must be submitted to a jury

and proved beyond a reasonable doubt. The case had significant implications on North Carolina’s

sentencing procedure. For a full discussion of the impact of Blakely on North Carolina’s sentencing

schemes, see Jessica Smith, North Carolina Sentencing after Blakely v. Washington and the Blakely

Bill (September 2005) (available on-line at http://www.iogcriminal.unc.edu/Blakely%20Update.pdf).

Post-Blakely, the new statutory rules for felony sentencing under Structured Sentencing provide

that neither the statutory aggravating factors in G.S. 15A-1340.16(d)(1) through (19) nor the prior

record point in G.S. 15A-1340.14(b)(7) need to be included in an indictment or other charging

instrument.55 However, the “catch-all” aggravating factor under G.S. 15A-1340.16(d)(20) must be

charged.56 Additionally, other notice requirements apply.57 For the pleading and notice requirements

for aggravating factors that apply in sentencing of impaired driving offenses, see G.S. 20-179.

III. Offense Specific Issues

A. Homicide 58

G.S. 15-144 prescribes a short-form indictment for murder and manslaughter. It provides:

In indictments for murder and manslaughter, it is not necessary to allege matter not

required to be proved on the trial; but in the body of the indictment, after naming the

person accused, and the county of his residence, the date of the offense, the averment

“with force and arms,” and the county of the alleged commission of the offense, as is

now usual, it is sufficient in describing murder to allege that the accused person feloni-

ously, willfully, and of his malice aforethought, did kill and murder (naming the person

killed), and concluding as is now required by law; and it is sufficient in describing man-

slaughter to allege that the accused feloniously and willfully did kill and slay (naming

52. See generally Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of

Crime pp. 136-37 (6th ed. 2007) (describing stalking crimes).

53. State v. Stephens, __ N.C. App. __, 655 S.E.2d 435 (2008).

54. 542 U.S. 296 (2004).

55. G.S. 15A-1340.16(a4) through (a5).The statute sets out other prior record points, see G.S.

15A-1340.14(b), but only this one must be pleaded.

56. G.S. 15A-1340.16(a4).

57. G.S. 15A-1340.16(a6).

58. For case law pertaining to the date of offense in homicide indictments, see supra p. 4.


the person killed), and concluding as aforesaid; and any bill of indictment containing

the averments and allegations herein named shall be good and sufficient in law as an

indictment for murder or manslaughter as the case may be.

A murder indictment that complies with the requirements of G.S. 15-144 will support a con-

viction for first- or second-degree murder.59 A first-degree murder indictment that conforms to

G.S. 15-144 need not allege the theory of the offense, such as premeditation and deliberation,60 or

aiding and abetting.61 It also will support a conviction for attempted first-degree murder,62 even if

the short-form has been modified with the addition of the words “attempt to.” 63 If the indictment

otherwise conforms with G.S. 15-144 but alleges a theory, the State will not be limited to that

theory at trial.64 A short-form murder indictment will not support a conviction for simple assault,

assault inflicting serious injury, assault with intent to kill, or assault with a deadly weapon.65

The North Carolina appellate courts repeatedly have upheld the short form murder indict-

ment as constitutionally valid.66 That does not mean, however, that short-form murder indict-

ments are completely insulated from challenge. In State v. Bullock,67 for example, the court held

that although the short form murder indictment is authorized by G.S. 15-144, the indictment

for attempted first-degree murder was invalid because of the omission of words “with malice

aforethought.”68

The following cases deal with other types of challenges to homicide pleadings.

State v. Hall, 173 N.C. App. 735, 737-38 (2005) (magistrate’s order properly charged

the defendant with misdemeanor death by vehicle; the order clearly provided that the

charge was based on the defendant’s failure to secure the trailer to his vehicle with

safety chains or cables as required by G.S. 20-123(b)).

State v. Dudley, 151 N.C. App. 711, 716 (2002) (in a felony murder case, the State is not

required to secure a separate indictment for the underlying felony) (citing State v. Carey,

288 N.C. 254, 274 (1975), vacated in part by, 428 U.S. 904 (1976)).

59. See, e.g., State v. King, 311 N.C. 603, 608 (1984).

60. See, e.g., State v. Braxton, 352 N.C. 158, 174-75 (2000); see generally G.S. 14-17 (proscribing first-

degree murder).

61. State v. Glynn, 178 N.C. App. 689, 694-95 (2006).

62. State v. Jones, 359 N.C. 832, 835-38 (2005); State v. Watkins, 181 N.C. App. 502, 506 (2007); State v.

Reid, 175 N.C. App. 613, 617-18 (2006); State v. McVay, 174 N.C. App. 335, 337-38 (2005).

63. Jones, 359 N.C. at 838.

64. See, e.g., State v. Moore, 284 N.C. 485, 495-96 (1974).

65. State v. Parker, __ N.C. App. __, 653 S.E.2d 6 (2007) (assault); State v. Whiteside, 325 N.C. 389,

402-04 (1989) (assault, assault inflicting serious injury, and assault with intent to kill).

66. See, e.g., State v. Hunt, 357 N.C. 257 (2003); State v. Squires, 357 N.C. 529, 537 (2003); State v.

Wissink, 172 N.C. App. 829, 834-35 (2005), rev’d in part on other grounds, 361 N.C. 418 2007); State v.

Hasty, 181 N.C. App. 144, 146 (2007).

67. 154 N.C. App. 234, 243-45 (2002).

68. Note the contrast between this case and State v. McGee, 47 N.C. App. 280, 283 (1980), which dealt

with a charge of second-degree murder. Id. In McGee, the court rejected the defendant’s argument that a

bill for second-degree murder should be quashed because it did not contain the word “aforethought” modi-

fying malice. Id. (while second-degree murder requires malice as an element, it does not require malice

aforethought; “aforethought” means “with premeditation and deliberation” as required in murder in the

first-degree; aforethought is not an element of second-degree murder) (citing State v. Duboise, 279 N.C. 73

(1971)).


State v. Sawyer, 11 N.C. App. 81, 84 (1971) (indictment charging that defendant “did,

unlawfully, willfully and feloniously kill and slay one Terry Allen Bryan” sufficiently

charged involuntary manslaughter).

B. ArsonConsistent with the requirement that the indictment must allege all essential elements of the

offense, State v. Scott 69 held that a first-degree arson indictment was invalid because it failed to

allege that the building was occupied. Also consistent with that requirement is State v. Jones,70

holding that an indictment alleging that the defendant maliciously burned a mobile home that was

the dwelling house of a named individual was sufficient to charge second-degree arson.

An indictment charging a defendant with arson is sufficient to support a conviction for burning

a building within the curtilage of the house; the specific outbuilding need not be specified in the

indictment.71

C. Kidnapping and Related OffensesIn order to properly indict a defendant for first-degree kidnapping, the State must allege the

essential elements of kidnapping in G.S. 14-39(a),72 and at least one of the elements of first-degree

kidnapping in G.S. 14-39(b).73 An indictment that fails to allege one of the elements of first-degree

kidnapping in G.S. 14-39(b) will, however, support a conviction of second-degree kidnapping.74

69. 150 N.C. App. 442, 451-53 (2002).

70. 110 N.C. App. 289 (1993).

71. State v. Teeter, 165 N.C. App. 680, 683 (2004).

72. G.S. 14-39(a) provides:

Any person who shall unlawfully confine, restrain, or remove from one place to another, any

other person 16 years of age or over without the consent of such person, or any other person

under the age of 16 years without the consent of a parent or legal custodian of such person, shall

be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

(1) Holding such other person for a ransom or as a hostage or using such other person as a shield;

or

(2) Facilitating the commission of any felony or facilitating flight of any person following the com-

mission of a felony; or

(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or

any other person; or

(4) Holding such other person in involuntary servitude in violation of G.S. 14-43.12.

(5) Trafficking another person with the intent that the other person be held in involuntary servi-

tude or sexual servitude in violation of G.S. 14-43.11.

(6) Subjecting or maintaining such other person for sexual servitude in violation of G.S. 14-43.13.

73. See State v. Bell, 311 N.C. 131, 137 (1984). G.S. 14-39(b) provides:

There shall be two degrees of kidnapping as defined by subsection (a). If the person kid-

napped either was not released by the defendant in a safe place or had been seriously injured or

sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C

felony. If the person kidnapped was released in a safe place by the defendant and had not been

seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is

punishable as a Class E felony.

74. See Bell, 311 N.C. at 137.


The victim’s age is not an essential element of kidnapping.75 Therefore, if an indictment alleges that

the victim has attained the age of sixteen but the evidence at trial reveals that the victim was not

yet sixteen, there is no fatal variance.76

Kidnapping requires, in part, that the defendant confine, restrain, or remove the victim. A

number of cases hold that the trial judge only may instruct the jury on theories of kidnapping

alleged in the indictment.77 Although contrary case law exists,78 it has been called in question.79 If

the indictment alleges confinement, restraint, and removal (in the conjunctive), no reversible error

occurs if the trial court instructs the jury on confinement, restraint, or removal (the disjunctive).80

In addition to the element described above, kidnapping requires that the confinement, restraint,

or removal be done for one of the following purposes: holding the victim as a hostage or for

ransom, using the victim as a shield, facilitating the commission of a felony or flight following

commission of a felony, doing serious bodily harm to or terrorizing the victim or any other person,

holding the victim in involuntary servitude, trafficking a person with the intent that the person

be held in involuntary or sexual servitude, or subjecting or maintaining the person for sexual ser-

vitude.81 If the evidence at trial regarding the purpose of the kidnapping does not conform to the

indictment, there is a fatal variance.82 Thus, for example, a fatal variance occurs if the indictment

75. State v. Tollison, __ N.C. App. __, 660 S.E.2d 647 (2008).

76. Id. The court viewed the victim’s age as a factor that relates to the State’s proof regarding consent;

if the victim is under sixteen years old, the State must prove that the unlawful confinement, restraint, or

removal occurred without the consent of a parent or guardian.

77. State v. Tucker, 317 N.C. 532, 536-40 (1986) (plain error to instruct on restraint when indictment

alleged only removal); State v. Bell, 166 N.C. App. 261, 263-65 (2004) (trial court erred in instructing on

restraint or removal when indictment alleged confinement and restraint but not removal); State v. Smith,

162 N.C. App. 46 (2004) (trial court erred in instructing the jury that it could find the defendant guilty of

kidnapping if he unlawfully confined, restrained, or removed the victim when the indictment only alleged

unlawful removal); State v. Dominie, 134 N.C. App. 445, 447 (1999) (when indictment alleged only removal,

trial judge improperly instructed that the jury could convict if defendant confined, restrained, or removed

the victim).

78. See State v. Raynor, 128 N.C. App. 244, 247-49 (1998) (although indictment alleged restraint, there

was no plain error in the instructions that allowed conviction on either restraint or removal).

79. The later case of State v. Dominie, 134 N.C. App. 445, 449 (1999), recognized that Raynor is inconsis-

tent with Tucker, discussed above.

80. State v. Anderson, 181 N.C. App. 655, 664-65 (2007); State v. Quinn, 166 N.C. App. 733, 738 (2004).

81. See G.S. 14-39.

82. State v. Tirado, 358 N.C. 551, 574-75 (2004) (the trial court erred when it charged the jury that it

could find the defendants guilty if they removed two named victims for the purpose of facilitating the

commission of robbery or doing serious bodily injury when the indictment alleged only the purpose of

facilitating the commission of a felony; the trial court also erred when it instructed the jury that it could

find the defendant guilty of kidnapping a third victim if they removed the victim for the purpose of facili-

tating armed robbery or doing serious bodily injury but the indictment alleged only the purpose of doing

serious bodily injury; errors however did not rise to the level of plain error); State v. Morris, __ N.C. App.

__, 648 S.E.2d 909 (2007) (the trial court erred when it allowed the State to amend an indictment changing

the purpose from facilitating a felony to facilitating inflicting serious injury; rejecting the State’s argument

that the additional language in the indictment stating that the victim was seriously injured charged the

amended purpose and concluding that such language was intended merely to elevate the charge to first-

degree kidnapping); State v. Faircloth, 297 N.C. 100, 108 (1979) (fatal variance between indictment alleging

purpose of facilitating flight and evidence that showed kidnapping for the purpose of facilitating rape);

State v. Morris, 147 N.C. App. 247, 250-53 (2001) (fatal variance between indictment alleging purpose of


alleges a purpose of facilitating flight from a felony but the evidence at trial shows a purpose of

facilitating a felony.83

When the indictment alleges that the purpose was to facilitate a felony, the indictment need not

specify the crime that the defendant intended to commit.84 The fact that the jury does not convict

the defendant of the crime alleged to have been facilitated does not create a fatal variance.85

Regarding the related offense of felonious restraint, State v. Wilson86 held that transportation by

motor vehicle or other conveyance is an essential element that must be alleged in an indictment in

order to properly charge that crime, even if the indictment properly charged kidnapping.87

D. Burglary, Breaking or Entering, and Related Crimes1. Burglary and Breaking or Entering

Both burglary and felonious breaking or entering require that the defendant’s acts be commit-

ted with an intent to commit a felony or larceny in the dwelling or building. Indictments for

these offenses need not allege the specific felony or larceny intended to be committed therein.88

However, if the indictment alleges a specific felony, that allegation may not be amended and a

variance between the charge and the proof at trial will be fatal. For example, in State v. Silas,89

the indictment alleged that the defendant broke and entered with the intent to commit the felony

of murder. At the charge conference, the trial judge allowed the State to amend the indictment

to allege an intent to commit assault with a deadly weapon with intent to kill inflicting serious

injury or assault with a deadly weapon inflicting serious injury. On appeal, the court held that

because the State indicted the defendant for felonious breaking or entering based upon a theory of

facilitating the commission of a felony and evidence that showed purpose was facilitating defendant’s flight

after commission of a felony), aff’d 355 N.C. 488 (2002).

83. Faircloth, 297 N.C. 100.

84. State v. Freeman, 314 N.C. 432, 434-37 (1985) (rejecting defendant’s argument that first-degree kid-

napping indictment was defective because it failed to specify the felony that defendant intended to commit

at the time of the kidnapping); State v. Escoto, 162 N.C. App. 419 (2004) (burglary and kidnapping indict-

ments need not allege the specific felony a defendant intended to commit at the time of the criminal act;

Apprendi does not require a different result). As discussed in the section that follows, the appellate division

has held, in a breaking or entering case, that if an intended felony that need not be alleged is in fact alleged,

that allegation may not be amended.

85. State v. Quinn, 166 N.C. App. 733 (2004) (the indictment alleged that the defendant’s actions were

taken to facilitate commission of statutory rape; the court rejected the defendant’s argument that because

the jury could not reach a verdict on the statutory rape charge, there was a fatal variance; the court

explained that the statute is concerned with the defendant’s intent and that there was ample evidence in the

record to support the jury’s verdict).

86. 128 N.C. App. 688, 694 (1998).

87. The court rejected the State’s argument that its holding circumvented the provision in G.S. 14-43.3

that felonious restraint is a lesser included offense of kidnapping.

88. State v. Parker, 350 N.C. 411, 424-25 (1999) (indictment alleging that defendant broke and entered

an apartment “with the intent to commit a felony therein” was not defective; a burglary indictment need

not specify the felony that defendant intended to commit); State v. Worsley, 336 N.C. 268, 279-81 (1994)

(rejecting defendant’s argument that the indictment charging him with first-degree burglary was defective

because it failed to specify the felony he intended to commit when he broke into the apartment); Escoto, 162

N.C. App. 419 (2004) (burglary and kidnapping indictments need not allege the specific felony a defendant

intended to commit at the time of the criminal act; Apprendi does not require a different result).

89. 360 N.C. 377 (2006).


intended murder, it was required to prove defendant intended to commit murder upon breaking

or entering the apartment and that, therefore, the amendment to the original indictment was a

substantial alteration.90

If the indictment alleges a specific intended felony and the trial judge instructs the jury on an

intended felony that is a greater offense (meaning that the intended felony that was charged in the

indictment is a lesser-included offense of the intended felony included in the jury instructions), the

variance does not create prejudicial error.91

When the intended felony is a larceny, the indictment need not describe the property that the

defendant intended to steal,92 or allege its owner.93

At least one case has held that indictments for these offenses will not be considered defective

for failure to properly allege ownership of the building.94 However, the indictment must identify

the building “with reasonable particularity so as to enable the defendant to prepare [a] defense and

plead his [or her] conviction or acquittal as a bar to further prosecution for the same offense.”95

Ideally, indictments for these offenses would allege the premise’s address.96 Examples of cases on

point are summarized below.


State v. Miller, 271 N.C. 646, 653-54 (1967) (fatal variance between indictment charging

felony breaking and entering a building “occupied by one Friedman’s Jewelry, a corpora-

tion” and evidence that building was occupied by “Friedman’s Lakewood, Incorporated”;

evidence showed that there were three Friedman’s stores in the area and that each was a

separate corporation).

State v. Smith, 267 N.C. 755, 756 (1966) (indictment charging defendant with breaking

and entering “a certain building occupied by one Chatham County Board of Education”

was defective; although “it appears . . . that he actually entered the Henry Siler School

in Siler City but under the general description of ownership in the bill, it could as well

been any other school building or other property owned by the Chatham County Board

of Education”).

State v. Benton, 10 N.C. App. 280, 281 (1970) (fatal variance between indictment charg-

ing defendant with breaking and entering “the building located 2024 Wrightsville

Ave., Wilmington, N.C., known as the Eakins Grocery Store, William Eakins, owner/

90. See also State v. Goldsmith, __ N.C. App. __, 652 S.E.2d 336 (2007) (because the State indicted the

defendant for first-degree burglary based upon the felony of armed robbery, it was required to prove defen-

dant intended to commit armed robbery upon breaking and entering into the residence).

91. State v. Farrar, 361 N.C. 675 (2007) (no prejudicial error when the indictment alleged that the

intended felony was larceny and the judge instructed the jury that the intended felony was armed robbery).

92. See State v. Coffey, 289 N.C. 431, 437 (1976).

93. See State v. Norman, 149 N.C. App. 588, 592-93 (2002).

94. See Norman, 149 N.C. App. at 591-92 (felonious breaking or entering indictment need not allege

ownership of the building; it need only identify the building with reasonable particularity; indictment

alleging that defendant broke and entered a building occupied by Quail Run Homes located at 4207 North

Patterson Avenue in Winston-Salem, North Carolina was sufficient). But see State v. Brown, 263 N.C. 786

(1965) (fatal variance between the felony breaking or entering indictment and the proof at trial; indictment

identified property as a building occupied by “Stroup Sheet Metal Works, H.B. Stroup, Jr., owner” and evi-

dence at trial revealed that the occupant and owner was a corporation).

95. See Norman, 149 N.C. App. at 592 (quotation omitted).

96. See id.


possessor” and evidence which related to a store located at 2040 Wrightsville Avenue in

the City of Wilmington, owned and operated by William Adkins).


State v. Coffey, 289 N.C. 431, 438 (1976) (upholding a burglary indictment that charged

that the defendant committed burglary “in the county aforesaid [Rutherford], the dwell-

ing house of one Doris Matheny there situate, and then and there actually occupied

by one Doris Matheny”; distinguishing State v. Smith, 267 N.C. 755 (1966), discussed

above, on grounds that there was no evidence that Doris Matheny owned and occupied

more than one dwelling house in Rutherford County).

State v. Davis, 282 N.C. 107, 113-14 (1972) (no fatal variance between indictment alleg-

ing breaking and entering of a “the dwelling house of Nina Ruth Baker located at 840

Washington Drive, Fayetteville, North Carolina” and evidence that Baker lived at 830

Washington Drive; an indictment stating simply “dwelling house of Nina Ruth Baker in

Fayetteville, North Carolina” would have been sufficient).

State v. Sellers, 273 N.C. 641, 650 (1968) (upholding breaking and entering indictment

that identified the building as “occupied by one Leesona Corporation, a corporation”).

State v. Ly,__ N.C. App. __, 658 S.E.2d 300 (2008) (breaking or entering indictment

sufficiently alleged the location and identity of the building entered; indictment alleged

that the defendants broke and entered “a building occupied by [the victim] used as a

dwelling house located at Albermarle, North Carolina”; although the victim owned

several buildings, including six rental houses, the evidence showed there was only one

building where the victim actually lived).

State v. Vawter, 33 N.C. App. 131, 134-36 (1977) (no fatal variance between breaking

and entering indictment that identified the premises as “a building occupied by E.L.

Kiser (sic) and Company, Inc., a corporation d/b/a Shop Rite Food Store used as retail

grocery located at Old U.S. Highway #52, Rural Hall, North Carolina” and evidence that

showed that the Kiser family owned and operated the Shop Rite Food Store located on

Old U.S. 52 at Rural Hall; no evidence was presented regarding the corporate ownership

or occupancy of the store).

State v. Shanklin, 16 N.C. App. 712, 714-15 (1972) (felonious breaking or entering indict-

ment that identified the county in which the building was located and the business in

the building was not defective; court noted that “better practice” would be to identify

the premises by street address, highway address, rural road address, or some clear

description or designation).

State v. Paschall, 14 N.C. App. 591, 592 (1972) (indictment charging breaking and

entering a building occupied by one Dairy Bar, Inc, Croasdaile Shopping Center in the

County of Durham was not fatally defective).

State v. Carroll, 10 N.C. App. 143, 144-45 (1970) (no fatal defect in felonious breaking or

entering indictment that specified a “building occupied by one Duke Power Company,

Inc”; although the indictment must identify the building with reasonable particular-

ity, “[i]t would be contrary to reason to suggest that the defendant could have . . .

thought that the building . . . was one other than the building occupied by Duke Power

Company in which he was arrested”; noting that “[i]n light of the growth in population

and in the number of structures (domestic, business and governmental), the prosecuting


officers of this State would be well advised to identify the subject premises by street

address, highway address, rural road address, or some clear description and designation

to set the subject premises apart”).

State v. Cleary, 9 N.C. App. 189, 191 (1970) (“building occupied by one Clarence

Hutchens in Wilkes County” was sufficient description).

State v. Melton, 7 N.C. App. 721, 724 (1970) (approving of an indictment that failed to

identify the premises by street address, highway address, or other clear designation;

noting that a “practically identical” indictment was approved in Sellers, 273 N.C. 641,

discussed above).

State v. Roper, 3 N.C. App. 94, 95-96 (1968) (felonious breaking or entering indictment

that identified building as “in the county aforesaid, a certain dwelling house and build-

ing occupied by one Henry Lane” was sufficient).

One case held that there was no fatal variance when a felony breaking or entering indictment

alleged that the defendant broke and entered a building occupied by “Lindsay Hardison, used

as a residence” but the facts showed that the defendant broke and entered a building within the

curtilage of Hardison’s residence.97 The court reasoned that the term residence includes build-

ings within the curtilage of the dwelling house, the indictment enabled the defendant to prepare

for trial, and the occupancy of a building was not an element of the offense charged. Thus, it

concluded that the word “residence” in the indictment was surplusage and the variance was not

material.

2. Breaking into Coin- or Currency-Operated Machine

An indictment alleging breaking into a coin- or currency-operated machine in violation of

G.S. 14-56.1 need not identify the owner of the property, as that is not an element of the crime

charged.98

E. RobberyA robbery indictment need not allege lack of consent by the victim, that the defendant knew he

or she was not entitled to the property, or that the defendant intended to permanently deprive the

victim of the property.99 Additionally, because the gist of the offense of robbery is not the taking of

personal property, but a taking by force or putting in fear,100 the actual legal owner of the property

is not an essential element of the crime. As the following cases illustrate, the indictment need only

negate the idea that the defendant was taking his or her own property.

State v. Thompson, 359 N.C. 77, 108 (2004) (rejecting the defendant’s argument that

the trial court erred in failing to dismiss the robbery indictment because it failed to

allege that the victim, Domino’s Pizza, was a legal entity capable of owning property;

an indictment for armed robbery is not fatally defective simply because it does not

correctly identify the owner of the property taken; additionally the description of the

97. State v. Jones, __ N.C. App. __, 655 S.E.2d 915 (2008).

98. State v. Price, 170 N.C. App. 672, 674-75 (2005).

99. State v. Patterson, 182 N.C. App. 102 (2007).

100. See State v. Jackson, 306 N.C. 642, 654 (1982).


property in the indictment was sufficient to demonstrate that the property did not

belong to the defendant).

State v. Pratt, 306 N.C. 673, 681 (1982) (“As long as it can be shown defendant was not

taking his own property, ownership need not be laid in a particular person to allege and

prove robbery.”).

State v. Jackson, 306 N.C. 642, 653-54 (1982) (variance between indictment charging

that defendant took property belonging to the Furniture Buyers Center and evidence

that the property belonged to Albert Rice could not be fatal because “[a]n indictment for

robbery will not fail if the description of the property is sufficient to show it to be the

subject of robbery and negates the idea that the accused was taking his own property”)

(quotation omitted).

State v. Spillars, 280 N.C. 341, 345 (1972) (same).

State v. Rogers, 273 N.C. 208, 212-13 (1968) (variance between indictment and evidence

as to ownership of property was not fatal; “it is not necessary that ownership of the

property be laid in any particular person in order to allege and prove . . . armed rob-

bery”), overruled on other grounds by, State v. Hurst, 320 N.C. 589 (1987).

State v. Burroughs, 147 N.C. App. 693, 695-96 (2001) (robbery indictment was not fatally

defective; indictment properly specified the name of the person from whose presence

the property was attempted to be taken, whose life was endangered, and the place that

the offense occurred).

State v. Bartley, 156 N.C. App. 490, 500 (2003) (robbery indictment not defective

for failure to sufficiently identify the owner of the property allegedly stolen, “the key

inquiry is whether the indictment … is sufficient to negate the idea that the defendant

was taking his own property”).

Relying on the gist of the offense—a taking by force or putting in fear—the courts have been

lenient with regard to variances between the personal property alleged in the indictment and the

personal property identified by the evidence at trial, and amendments to the charging language

describing the personal property are allowed.101

101. State v. McCallum, __ N.C. App. __, 653 S.E.2d 915 (2007) (the trial court did not err by permitting

the State to amend the indictments to remove allegations concerning the amount of money taken during

the robberies; the amendments left the indictments alleging that defendant took an unspecified amount

of “U.S. Currency”; the allegations as to the value of the property were mere surplusage); State v. McCree,

160 N.C. App. 19, 30-31 (2003) (no fatal variance in armed robbery indictment alleging that defendant

took a wallet and its contents, a television, and a VCR; the gist of the offense is not the taking of personal

property, but rather a taking or attempted taking by force or putting in fear of the victim by the use of a

dangerous weapon; evidence showed that defendant took $50.00 in cash from the victim upstairs and his

accomplice took the television and VCR from downstairs; indictment properly alleged a taking by force or

putting in fear); State v. Poole, 154 N.C. App. 419, 422-23 (2002) (no fatal variance when robbery indictment

alleged that defendant attempted to steal “United States currency” from a named victim; at trial, the State

presented no evidence identifying what type of property the defendant sought to obtain; the gravamen of

the offense charged is the taking by force or putting in fear, while the specific owner or the exact property

taken or attempted to be taken is mere surplusage).


A robbery indictment must name a person who was in charge of or in the presence of the prop-

erty at the time of the robbery.102 When a store is robbed, this person is typically the store clerk,

not the owner.103

Finally, no error occurs when a trial court allows an indictment for attempted armed robbery

to be amended to charge the completed offense of armed robbery; the elements of the offenses are

the same and G.S. 14-87 punishes the attempt the same as the completed offense.104

An indictment for robbery with a dangerous weapon must name the weapon and allege either

that the weapon was a dangerous one or facts that demonstrate its dangerous nature.105

F. Assaults1. Generally

Although it is better practice to include allegations describing the assault,106 a pleading sufficiently

charges assault by invoking that term in the charging language.107 If the indictment adds detail

regarding the means of the assault (e.g., by shooting) and that detail is not proved at trial, the

language will be viewed as surplusage and not a fatal variance.108 A simple allegation of “assault”

is insufficient when the charge rests on a particular theory of assault, such as assault by show of

violence or assault by criminal negligence.109

102. State v. Burroughs, 147 N.C. App. 693, 696 (2001) (“While an indictment for robbery … need not

allege actual legal ownership of property, the indictment must at least name a person who was in charge or

in the presence of the property at the time of the robbery….”) (citations omitted); State v. Moore, 65 N.C.

App. 56, 61, 62 (1983) (robbery indictment was fatally defective; “indictment must at least name a person

who was in charge or in the presence of the property”).

103. State v. Matthews, 162 N.C. App. 339 (2004) (indictment was not defective by identifying the

target of the robbery as the store employee and not the owner of the store); State v. Setzer, 61 N.C. App.

500, 502-03 (1983) (indictment alleging that by use of a pistol whereby the life of Sheila Chapman was

endangered and threatened, the defendant took personal property from The Pantry, Inc., sufficiently alleges

the property was taken from Sheila Chapman; it is clear from this allegation that Sheila Chapman was the

person in control of the corporation’s property and from whose possession the property was taken).

104. State v. Trusell, 170 N.C. App. 33, 36-38 (2005).

105. State v. Marshall, __ N.C. App. __, 656 S.E.2d 709 (2008) (armed robbery indictment was defective;

indictment alleged that the defendant committed the crime “by means of an assault consisting of having

in possession and threatening the use of an implement, to wit, keeping his hand in his coat demanding

money”).

106. See Farb, Arrest Warrant & Indictment Forms (UNC School of Government 2005) at

G.S. 14-33(a) (simple assault).

107. State v. Thorne, 238 N.C. 392, 395 (1953) (warrant charging that the defendant “unlawfully, willfully

violated the laws of North Carolina . . . by . . . assault on . . . one Harvey Thomas” was sufficient to charge a

simple assault).

108. State v. Pelham, 164 N.C. App. 70 (2004) (indictment alleging that defendant assaulted the victim

“by shooting at him” was not fatally defective even though there was no evidence of a shooting; the phrase

was surplusage and should be disregarded); State v. Muskelly, 6 N.C. App. 174, 176-77 (1969) (indictment

charging “assault” with a deadly weapon was sufficient; words “by shooting him” were surplusage).

109. State v. Hines, 166 N.C. App. 202, 206-08 (2004) (the trial court erred by instructing the jury

that it could convict on a theory of criminal negligence when the indictment for aggravated assault on a

handicapped person alleged that the defendant “did . . . assault and strike” the victim causing trauma to

her head); State v. Garcia, 146 N.C. App. 745, 746-47 (2001) (warrant insufficiently alleged assault by show

of violence; warrant alleged an assault and listed facts supporting the elements of a show of violence and a


2. Injury Assaults

When the assault involves serious injury, the injury need not be specifically described.110 It is, how-

ever, better practice to describe the injury.111

3. Deadly Weapon Assaults

A number of assault offenses involve deadly weapons. Much of the litigation regarding the suffi-

ciency of assault indictments pertains to the charging language regarding deadly weapons. As the

cases annotated below reveal, an indictment must name the weapon and either state that it was a

“deadly weapon” or include facts demonstrating its deadly character. The leading case on point is

State v. Palmer,112 in which the court upheld an indictment charging that the defendant commit-

ted an assault with “a stick, a deadly weapon.” The indictment did not contain any description of

the size, weight, or other properties of the stick that would reveal its deadly character. Reviewing

prior case law, the court held:

it is sufficient for indictments … seeking to charge a crime in which one of the elements

is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly

that the weapon used was a “deadly weapon” or to allege such facts as would necessarily

demonstrate the deadly character of the weapon.

The cases applying this rule are summarized below.


State v. Moses, 154 N.C. App. 332, 334-37 (2002) (count of indictment charging assault

with deadly weapon was invalid because it did not identify the deadly weapon; charge

was not saved by allegation of the specific deadly weapon in a separate count in the

indictment).


State v. Brinson, 337 N.C. 764, 766-69 (1994) (original assault with deadly weapon

indictment stated that defendant assaulted the victim with his fists, a deadly weapon,

by hitting the victim over the body with his fists and slamming his head against the cell

bars and floor; was not error for the trial court to allow the State to amend the indict-

ment on the day of trial to charge that defendant assaulted the victim with his fists by

hitting the victim over the body with his fists and slamming his head against the cell

bars, a deadly weapon, and floor; original indictment satisfied the Palmer test: it specifi-

cally referred to the cell bars and floor and recited facts that demonstrated their deadly

character; identifying fists as deadly weapons did not preclude the state from identify-

ing at trial other deadly weapons when the indictment both describes those weapons

and demonstrates their deadly character).

deviation from normal activities by the victim but failed to allege facts supporting the element of “reason-

able apprehension of immediate bodily harm or injury on the part of the person assailed”).

110. See State v. Gregory, 223 N.C. 415, 420 (1943) (indictment charging that defendant assaulted the

victim and inflicted “serious injuries” is sufficient).

111. See Farb, Arrest Warrant & Indictment Forms (UNC School of Government 2005) at

G.S. 14-33(c)(1) (assault inflicting serious injury).

112. 293 N.C. 633, 634-44 (1977)


State v. Grumbles, 104 N.C. App. 766, 769-70 (1991) (indictment “more than adequately”

charged assault with a deadly weapon; indictment named defendant’s hands as the

deadly weapon and expressly stated defendant’s hands were used as “deadly weapons”).

State v. Everhardt, 96 N.C. App. 1, 10-11 (1989) (indictment sufficiently alleged the

deadliness of “drink bottles” by stating that defendant assaulted the victim by inserting

them into her vagina), aff’d on other grounds, 326 N.C. 777 (1990).

State v. Hinson, 85 N.C. App. 558, 564 (1987) (“Each of the indictments … names the

two and one-half ton truck as the weapon used by defendant in committing the assault

and expressly alleges that it was a ‘deadly weapon.’ The indictments were, therefore,

sufficient to support the verdicts of guilty of felonious assault with a deadly weapon and

the judgments based thereon.”).

State v. Jacobs, 61 N.C. App. 610, 611 (1983) (since defendant’s fists could have been a

deadly weapon in the circumstances of this assault, the indictment was sufficient; the

indictment specifically stated that defendant used his fists as a deadly weapon and gave

facts demonstrating their deadly character).

Even when the indictment is valid on its face, challenges are sometimes made regarding a fatal

variance between the deadly weapon charged in the indictment and the proof at trial. The cases

summarized below are illustrative.


State v. Skinner, 162 N.C. App. 434 (2004) (fatal variance existed between the indict-

ment and the evidence at trial; indictment alleged that defendant assaulted the victim

with his hands, a deadly weapon; evidence at trial indicated that the deadly weapon

used was a hammer or some sort of iron pipe; although indictment was sufficient on its

face, variance was fatal).


State v. Shubert, 102 N.C. App. 419, 428 (1991) (no fatal variance; rejecting defendant’s

argument that while the indictment charged that defendant “unlawfully, willfully, and

feloniously did assault Lizzie Price with his feet, a deadly weapon, with the intent to

kill and inflicting serious injury,” the evidence proved only the use of defendant’s fists;

the evidence that the victim was hit with something harder than a fist and that human

blood was found on defendant’s shoes is sufficient to justify an inference that the assault

was in part committed with defendant’s feet).

State v. Everhardt, 96 N.C. App. 1, 10-11 (1989) (no fatal variance between indictment

alleging that defendant assaulted the victim with a “table leg, a deadly weapon” and the

evidence, showing that the deadly weapon was the leg of a footstool; “This is more a

difference in semantics than in substance. The defendant had fair warning that the State

sought to prosecute him for assaulting his wife with the leg of a piece of furniture, and

the State explicitly called it a deadly weapon . . . .”), aff’d on other grounds, 326 N.C. 777

(1990).

State v. Jones, 23 N.C. App. 686, 687-88 (1974) (no fatal variance in indictment charging

assault with a firearm on a law enforcement officer; indictment charged that defendant

used a 16 gauge automatic rifle and evidence showed that defendant fired a 16 gauge


automatic shotgun; “the indictment[] charged assault with a firearm and clearly an

automatic shotgun comes within that classification”).

State v. Muskelly, 6 N.C. App. 174, 176-77 (1969) (no fatal variance between indictment

alleging that defendant assaulted the victim “with a certain deadly weapon, to wit:

a pistol . . . by shooting him with said pistol” and proof which showed that although

shots were fired by the defendants, the victim was not struck by a bullet but was in fact

beaten about the head with a pistol; the words “by shooting him with said pistol” were

superfluous and should be disregarded).

4. Assault on a Government Official

Unlike indictments alleging resisting, delaying, and obstructing an officer, indictments alleging

assault on a law enforcement officer need not allege the specific duty that the officer was perform-

ing at the time of the assault.113 Nor are they required to allege that the defendant knew the victim

was a law enforcement officer, provided they allege the act was done willfully, a term that implies

that knowledge.114

5. Habitual Misdemeanor Assault

An indictment for habitual misdemeanor assault must conform to G.S. 15A-928. For additional

detail, see Robert Farb, Habitual Offender Laws at p. 13 (Faculty Paper, July 1, 2008) (available on-

line at www.sog.unc.edu/programs/crimlaw/habitual.pdf).

6. Malicious Conduct by Prisoner

In State v. Artis,115 the court of appeals held than an indictment charging malicious conduct by a

prisoner under G.S. 14-258.4 was not defective even though it failed to allege that the defendant

was in custody when the conduct occurred. The court held that the defendant had adequate notice

of the charges because he was an inmate in the county detention center, was incarcerated when he

received notice of the charges, and raised no objection that he was unaware of the facts giving rise

to the charges.

G. StalkingState v. Stephens, __ N.C. App. __, 655 S.E.2d 435 (2008) (the trial court did not err

by allowing amendment of a stalking indictment; the amendment did not change the

language of the indictment, but rather separated out the allegation regarding the prior

conviction that elevated punishment to a felony, as required by G.S. 15A-928).

113. See State v. Bethea, 71 N.C. App. 125, 128-29 (1984) (indictment charging that defendant assaulted a

law enforcement officer who “was performing a duty of his office” was sufficiently specific to permit entry of

judgment for felony assault with a firearm on a law enforcement officer; the indictment need not specify the

particular duty the officer was performing; indictment only needs to allege that the law enforcement officer

was performing a duty of his office at the time the assault occurred).

114. See State v. Thomas, 153 N.C. App. 326, 335-336 (2002) (indictment charging assault with deadly

weapon on law enforcement officer did not need to allege that the defendant knew or had reasonable

grounds to believe that the victim was a law enforcement officer; indictment alleged that defendant “will-

fully” committed an assault on a law enforcement officer, a term that indicates defendant knew that the

victim was a law enforcement officer).

115. 174 N.C. App. 668, 671-73 (2005).


H. Resist, Delay, and Obstruct OfficerIndictments charging resisting, delaying, and obstructing an officer must identify the officer by

name, indicate the duty being discharged (e.g., “searching the premises”), and indicate generally

how the defendant resisted the officer (e.g., “using his body to block the officer’s entry into the

premises”).116

I. Disorderly ConductIn State v. Smith,117 the court held that an indictment under G.S. 14-197 charging that the defen-

dant “appeared in a public place in a rude and disorderly manner and did use profane and indecent

language in the presence of two or more persons” was fatally defective. The indictment failed to

allege that (1) the defendant used indecent or profane language on a public road or highway and (2)

such language was made in a loud and boisterous manner.

J. Child AbuseIn State v. Qualls,118 the court held that there was no fatal variance when an indictment alleged

that the defendant inflicted a subdural hematoma and the evidence showed that the injury was

an epidural hematoma. The court explained that to indict a defendant for felonious child abuse

all that is required is an allegation that the defendant was the parent or guardian of the victim,

a child under the age of sixteen, and that the defendant intentionally inflicted any serious injury

upon the child. The court regarded the indictment’s reference to the victim suffering a subdural

hematoma as surplusage.

K. Sexual AssaultG.S. 15-144.1 prescribes a short form indictment for rape and G.S. 15-144.2 prescribes a short

form indictment for sexual offense. The statutes provide that the short form indictments may

116. See State v. Smith, 262 N.C. 472, 474 (1964) (pleading alleging that the defendant “did obstruct, and

delay a police officer in the performance of his duties by resisting arrest” by striking, hitting and scratching

him was fatally defective; a warrant or indictment charging a violation of G.S. 14-223 must identify the

officer by name and indicate the official duty he was discharging or attempting to discharge, and should

note the manner in which defendant resisted, delayed or obstructed); In Re J.F.M., 168 N.C. App. 144 (2005)

(juvenile petition properly alleged resist, delay and obstruct by charging that “[T]he juvenile did unlawfully

and willfully resist, delay and obstruct (name officer) S.L. Barr, by holding the office of (name office) Deputy

(describe conduct) delay and obstructing a public [officer] in attempting to discharge a duty of his office. At

the time, the officer was discharging and attempting to discharge a duty of his/her (name duty) investigate

and detain [TB] whom was involved in an affray[.] This offense is in violation of G.S. 14-233.”); State v.

Swift, 105 N.C. App. 550, 552-54 (1992) (indictment charging resisting an officer was not fatally defec-

tive; such an indictment must identify the officer by name, indicate the official duty being discharged and

indicate generally how defendant resisted the officer); see also State v. White, 266 N.C. 361 (1966) (resisting

warrant charging that defendant “did unlawfully and willfully resist, delay and obstruct a public officer, to

wit: Reece Coble, a Policeman for the Town of Pittsboro, while he, the said Reece Coble, was attempting

to discharge and discharging a duty of his office, to wit: by striking the said Reece Coble with his fist” was

insufficient) (citing Smith, 262 N.C. 472, discussed above).

117. 262 N.C. 472, 473-74 (1964).

118. 130 N.C. App. 1, 6-8 (1998), aff’d, 350 N.C. 56 (1999).


be used for a number of listed offenses.119 For example, G.S. 15-144.1(a) provides the short form

for forcible rape and states that any indictment “containing the averments and allegations herein

named shall be good and sufficient in law as an indictment for rape in the first degree and will

support a verdict of guilty of rape in the first degree, rape in the second degree, attempted rape

or assault on a female.” However, when a rape indictment specifically alleges all of the elements

of first-degree rape under G.S. 14-27.2 and does not contain the specific allegations or averments

of G.S. 15-144.1, the court may instruct the jury only on that offense and any lesser included

offenses.120

The appellate courts repeatedly have upheld both the rape and sexual offense short form

indictments.121 This does not mean, however, that all indictments conforming to the statutory

short form language are insulated from attack. In State v. Miller,122 for example, the court of

appeals found the statutory sex offense indictments invalid. In that case, although the indict-

ments charged first-degree statutory sex offense in the language of G.S. 15-144.2(b), they also cited

G.S. 14-27.7A (statutory rape or sexual offense of a person who is 13, 14, or 15 years old) instead

of G.S. 14-27.4 (first-degree sexual offense). Moreover, the indictments included other allegations

that pertained to G.S. 14-27.7A. Based on the “very narrow circumstances presented by [the] case,”

the court held that the short form authorized by G.S. 15-144.2 was not sufficient to cure the fatal

defects.123

The effect of the short form is that although the State must prove each and every element

of these offenses at trial, every element need not be alleged in a short form indictment.124 A

defendant may, of course, request a bill of particulars to obtain additional information about

the charges.125 The trial court’s decision to grant or deny that request is reviewed for abuse of

discretion.126 An indictment that conforms to the statutory short form need not allege:

127 128

119. See also State v. Daniels, 164 N.C. App. 558 (2004) (holding that the short form in G.S. 15-144.2(a)

may be used to charge statutory sex offense against a person who is 13, 14, or 15 years old).

120. See State v. Hedgepeth, 165 N.C. App. 321 (2004) (reasoning that the short form was not used and

that assault on a female is not a lesser included offense of rape).

121. See, e.g., State v. Wallace, 351 N.C. 481, 503-08 (2000) (upholding short form indictments for first-

degree murder, rape, and sexual offense in the face of an argument that Jones v. United States, 526 U.S. 227

(1999), required a finding that they were unconstitutional); State v. Effer, 309 N.C. 742, 745-47 (1983) (short

form for sexual offense); State v. Lowe, 295 N.C. 596, 599-604 (1978) (short form for rape is constitutional).

122. 159 N.C. App. 608 (2003), aff’d, 358 N.C. 133 (2004).

123. See id. at 614; see supra p. 14 & nn. 44-45 (discussing other sexual assault cases involving amend-

ments to the statutory citation).

124. G.S. 15-144.1 (“In indictments for rape, it is not necessary to allege every matter required to be

proved on the trial . . . .”); G.S. 15-144.2 (same for sexual offenses); Lowe, 295 N.C. at 600.

125. See State v. Randolph, 312 N.C. 198, 210 (1984).

126. See id.

127. See State v. Bell, 311 N.C. 131, 137-38 (1984) (indictments for attempted rape were sufficient even

though they did not allege that the victims were females).

128. See Lowe, 295 N.C. at 600 (short form for rape “clearly authorizes an indictment … which omits

[the] averment[] … [regarding] the defendant’s age”); State v. Wiggins, 161 N.C. App. 583 (2003) (defendant’s

age not an essential element in statutory rape case); State v. Hunter, 299 N.C. 29, 37-38 (1980) (same). Note

that under prior law both first-degree statutory and first-degree forcible rape required that the defendant be

more than 16 years of age. See G.S. 14-21(1) (repealed). Under current law, although first-degree statutory


forcible offense;129 or130

The statutes require that short form indictments for both forcible rape and forcible sexual

offense include an averment that the assault occurred “with force and arms.”131 However, failure

to include that averment is not a fatal defect.132 The short forms for both forcible rape and forc-

ible sexual offense also require an allegation that the offense occurred “by force and against her

will.”133 However, in State v. Haywood,134 the court of appeals concluded that the trial court did not

err by allowing the State to amend a first-degree sex offense indictment by adding the words “by

force.” The court reasoned that because the indictment already included the terms “feloniously”

and “against the victim’s will,” the charge was not substantially altered by the addition of the term

“by force.”

rape requires that the defendant be at least 12 years old, first-degree forcible rape no longer has an element

pertaining to the defendant’s age. See G.S. 14-27.2.

129. See State v. Roberts, 310 N.C. 428, 432-34 (1984) (rejecting defendant’s argument that a short form

rape indictment was insufficient to charge first-degree rape because it did not allege that “defendant dis-

played a dangerous weapon or that he caused serious injury or that he was aided and abetted by another,

essential elements of first degree rape”); Lowe, 295 N.C. at 600 (indictment is valid even if it does not indi-

cate whether offense was perpetrated by means of a deadly weapon or by inflicting serious bodily injury).

130. See State v. Kennedy, 320 N.C. 20, 23-25 (1987) (indictments charging that defendant engaged in

a sex offense with the victim without specifying the specific sexual act were valid); State v. Edwards, 305

N.C. 378, 380 (1982) (sexual offense indictment drafted pursuant to G.S. 15-144.2(b) need not specify the

sexual act committed); State v. Burgess, 181 N.C. App. 27 (2007) (same); State v. Mueller, __ N.C. App. __,

647 S.E.2d 440 (2007) (indictments charging sexual crimes were sufficient even though they did not contain

allegations regarding which specific sexual act was committed); State v. Youngs, 141 N.C. App. 220, 229-31

(2000) (no defect in indictments charging indecent liberties with a minor and statutory sex offense; an

indictment charging statutory sex offense need not contain a specific allegation regarding which sexual act

was committed; an indictment charging indecent liberties need not indicate exactly which of defendant’s

acts constitute the indecent liberty).

Although the State is not required to allege a specific sex act in the indictment, if it does so, it may be

bound by that allegation, at least with respect to prosecutions under G.S. 14-27.7. See State v. Loudner, 77

N.C. App. 453, 453-54 (1985) (indictment pursuant to G.S. 14-27.7 (intercourse and sexual offenses with

certain victims) charged that defendant engaged “in a sexual act, to wit: performing oral sex” and the

evidence showed only that defendant engaged in digital penetration of the victim; “While the State was not

required to allege the specific nature of the sex act in the indictment, having chosen to do so, it is bound

by its allegations….”) (citation omitted); State v. Bruce, 90 N.C. App. 547, 549-50 (1988) (fatal variance in

indictment pursuant to G.S. 14-27.7 indicating that charge was based on defendant’s having engaged in

vaginal intercourse with the victim and evidence at trial that showed attempted rape, attempted anal inter-

course and fellatio but not vaginal intercourse).

131. G.S. 15-144.1(a); G.S. 15-144.2(a).

132. See G.S. 15-155 (indictment not defective for omission of the words “with force and arms”); State v.

Cheek, 307 N.C. 552, 555 (1983); State v. Corbett, 307 N.C. 169, 173-75 (1982).

133. See G.S. 15-144.1(a); G.S. 15-144.2(a).

134. 144 N.C. App. 223, 228 (2001).


For first-degree statutory rape and first-degree statutory sex offense, the short forms state that

it is sufficient to allege the victim as “a child under 13.” 135 Although that allegation need not follow

the statute verbatim,136 it must clearly allege that the victim is under the age of thirteen.137

For cases dealing with challenges to sexual assault indictments regarding the date of the

offense, see supra pp. 5–7.

L. Indecent LibertiesAn indictment charging taking indecent liberties with a child under G.S. 14-202.1 need not

specify the act that constituted the indecent liberty.138

M. Larceny, Embezzlement, and Related Crimes Interfering with Property RightsLarceny and embezzlement indictments must allege a person or entity that has a property interest

in the property stolen. That property interest may be ownership, or it may be some special prop-

erty interest such as that of a bailee or custodian.139 Although the name of a person or entity with

a property interest must be alleged in the indictment, the exact nature of the property interest,

e.g., owner or bailee, need not be alleged.140 G.S. 15-148 sets out the rule for alleging joint owner-

ship of property. It provides that when the property belongs to or is in the possession of more than

one person, “it is sufficient to name one of such persons, and to state such property to belong to

the person so named, and another or others as the case may be.”

As the cases summarized below illustrate,141 failure to allege the name of one with a property

interest in the item will render the indictment defective. Similarly, a variance between the person

or entity alleged to hold a property interest and the evidence at trial is often fatal. And finally,

amendments as to this allegation generally are not permitted.

135. G.S. 15-144.1(b); G.S. 15-144.2(b).

136. See State v. Ollis, 318 N.C. 370, 374 (1986) (allegation that the victim is “a female child eight (8) years

old” sufficiently alleges that she is “a child under 12” and satisfies the requirement of G.S. 15-144.1(b) as it

existed at the time; the additional allegation that the child was “thus of the age of under thirteen (13) years”

is surplusage [Note: at the time of the alleged offense in this case, first-degree statutory rape applied to

victims under the age of 12; the statute now applies to victims under the age of 13]).

137. See id.; State v. Howard, 317 N.C. 140, 140-41 (1986) (defendant was tried and convicted under

G.S. 14-27.2 of rape of a “child under the age of 13 years” upon a bill of indictment which alleged that the

offense occurred when the old version of G.S. 14-27.2, applying to victims under the age of 12, was in effect;

although valid for offenses occurring after amendment of the statute, the indictment did not allege a crimi-

nal offense for a rape allegedly occurring before the amendment); State v. Trent, 320 N.C. 610, 612 (1987)

(same).

138. See State v. Youngs, 141 N.C. App. 220, 229-31 (2000) (citing State v Blackmon, 130 N.C. App. 692,

699 (1998), and State v. Singleton, 85 N.C. App. 123, 126 (1987)).

139. See, e.g., State v. Greene, 289 N.C. 578, 584 (1976).

140. See Greene, 289 N.C. at 586-86 (no fatal variance between indictment alleging that Welborn and

Greene had a property interest in the stolen property and evidence showing that Greene was the owner and

Welborn merely a bailee).

141. Many cases on point exist. The cases annotated here are meant to be illustrative.



State v. Downing, 313 N.C. 164, 166-68 (1985) (fatal variance between felony larceny

indictment alleging that items were the personal property of a mother who owned the

building and evidence showing that items were owned by the daughter’s business, which

was located in the building).

State v. Eppley, 282 N.C. 249, 259-60 (1972) (fatal variance between larceny indictment

alleging that property belonged to James Ernest Carriker and evidence showing that

although the property was taken from Carriker’s home, it was owned by his father).

State v. Cathey, 162 N.C. App. 350 (2004) (error to allow amendment regarding owner

of property).

State v. Craycraft, 152 N.C. App. 211, 213-14 (2002) (fatal variance between felony lar-

ceny indictment alleging that stolen property belonged to one Montague and evidence

showing that items belonged to defendant’s father; Montague, the landlord, did not have

a special possessory interest in the items, although he was maintaining them for his

former tenant).

State v. Salters, 137 N.C. App. 553, 555-57 (2000) (fatal variance between felony larceny

indictment charging defendant with stealing property owned by Frances Justice and

evidence showing that the property belonged to Kedrick (Justice’s eight-year old grand-

son); noting that had Justice been acting in loco parentis, “there would be no doubt” that

Justice would have been in lawful possession or had a special custodial interest in the

item).

State v. Johnson, 77 N.C. App. 583, 585 (1985) (indictment charging defendant with

breaking or entering a building occupied by Watauga Opportunities, Inc. and stealing

certain articles of personal property was fatally defective because it was silent as to

ownership, possession, or right to possess the stolen property; fatal variance existed

between second indictment charging defendant with breaking or entering a building

occupied by St. Elizabeth Catholic Church and stealing two letter openers, the personal

property of St. Elizabeth Catholic Church, and evidence that did not show that the

church either owned or had any special property interest in the letter openers but rather

established that the articles belonged to Father Connolly).


State v. Green, 305 N.C. 463, 474 (1982) (no fatal variance between larceny indictment

alleging that the stolen item was “the personal property of Robert Allen in the custody

and possession of Margaret Osborne” and the evidence; rejecting defendant’s argument

that the evidence conclusively showed that Terry Allen was the owner and concluding

that even if there was no evidence that Robert Allen owned the item, there would be no

fatal variance because the evidence showed it was in Osborn’s possession; the allegation

of ownership in the indictment therefore was mere surplusage).

State v. Liddell, 39 N.C. App. 373, 374-75 (1979) (no fatal variance between indictments

charging defendant with stealing “the property of Lees-McRae College under the

custody of Steve Cummings” and evidence showing that property belonged to Mackey

Vending Company and ARA Food Services; Lees-McRae College was in lawful posses-

sion of the items as well as having custody of them as a bailee).


When a variance between the indictment’s allegation regarding the owner or individual or

entity with a possessory interest and the evidence can be characterized as minor or as falling

within the rule of idem sonans,142 it has been overlooked.143

Larceny and embezzlement indictments must allege ownership of the property in a natural

person or a legal entity capable of owning property. When the property owner is a business, the

words “corporation,” “incorporated,” “limited,” and “company,” as well as abbreviations for those

terms such as “Inc.” and “Ltd.” sufficiently designate an entity capable of owning property.144 The

following cases illustrate this rule.


State v. Thornton, 251 N.C. 658, 660-62 (1960) (embezzlement indictment charging

embezzlement from “The Chuck Wagon” was defective because it contained no allega-

tion that the victim was a legal entity capable of owning property; although the victim’s

name was given, there was no allegation that it was a corporation and the name itself

did not indicate that it was such an entity).

State v. Brown, __ N.C. App. __, 646 S.E.2d 590 (2007) (larceny indictment stating

that stolen items were the personal property of “Smoker Friendly Store, Dunn, North

Carolina” was defective because it did not state that the store was a legal entity capable

of owning property; rejecting the State’s argument that when count one and two were

read together the indictment alleged a legal entity capable of owning property; although

count two referenced a corporation as the owner, that language was not incorporated

into count one and each count of an indictment must be complete in itself).

State v. Price, 170 N.C. App. 672, 673 (2005) (indictment for larceny was defective when

it named the property owner as “City of Asheville Transit and Parking Services,” which

was not a natural person; the indictment did not allege that this entity was a legal entity

capable of owning property).

State v. Phillips, 162 N.C. App. 719 (2004) (larceny indictments were fatally defective

because they failed to give sufficient indication of the legal ownership of the stolen

items; indictment alleged that items were the personal property of “Parker’s Marine”;

Parker’s Marine was not an individual and the indictment failed to allege that it was

a legal entity capable of ownership; defective count cannot be read together with

142. See supra pp. 10–11.

143. State v. Weaver, 123 N.C. App. 276, 291 (1996) (no fatal variance between attempted larceny indict-

ment alleging that the stolen items were “the personal property of Finch-Wood Chevrolet-Geo Inc.” and

evidence; evidence showed that Finch-Wood Chevrolet had custody and control of the car but did not show

that entity was incorporated or that it also was known as Finch-Wood Chevrolet-Geo); State v. Cameron, 73

N.C. App 89, 92 (1985) (no fatal variance between indictment alleging that stolen items belonged to “Mrs.

Narest Phillips” and evidence showing that the owner was “Mrs. Ernest Phillips”; names are sufficiently

similar to fall within the doctrine of idem sonans, and the variance was immaterial); State v. McCall, 12

N.C. App. 85, 87-88 (1971) (no fatal variance between indictment and proof; indictment charged the larceny

of money from “Piggly Wiggly Store #7,” and witnesses referred to the store as “Piggly Wiggly in Wilson,”

“Piggly Wiggly Store,” “Piggly Wiggly,” and “Piggly Wiggly Wilson, Inc.”); see also State v. Smith, 43 N.C.

App. 376, 378 (1979) (no fatal variance between warrant charging defendant with stealing the property of

“K-Mart Stores, Inc., Lenoir, N.C.” and testimony at trial that the name of the store was “K-Mart, Inc.,”

“K-Mart Corporation,” or “K-Mart Corporation”).

144. State v. Cave, 174 N.C. App. 580, 583 (2005).


non-defective count when defective count does not incorporate by reference required

language).

State v. Norman, 149 N.C. App. 588, 593 (2002) (felony larceny indictment alleging that

defendant took the property of “Quail Run Homes Ross Dotson, Agent” was fatally

defective because it lacked any indication of the legal ownership status of the victim

(such as identifying the victim as a natural person or a corporation); “Any crime that

occurs when a defendant offends the ownership rights of another, such as conversion,

larceny, or embezzlement, requires proof that someone other than a defendant owned

the relevant property. Because the State is required to prove ownership, a proper indict-

ment must identify as victim a legal entity capable of owning property.”)

State v. Linney, 138 N.C. App. 169, 172-73 (2000) (fatal variance existed in embezzle-

ment indictment alleging that rental proceeds belonged to an estate when in fact they

belonged to the decedent’s son; also, an estate is not a legal entity capable of holding

property).

State v. Woody, 132 N.C. App. 788, 790 (1999) (indictment for conversion by bailee alleg-

ing that the converted property belonged to “P&R unlimited” was defective because it

lacked any indication of the legal ownership status of the victim; while the abbreviation

“ltd” or the word “limited” is a proper corporate identifier, “unlimited” is not).

State v. Hughes, 118 N.C. App. 573, 575-76 (1995) (embezzlement indictments alleged

that gasoline belonged to “Mike Frost, President of Petroleum World, Incorporated, a

North Carolina Corporation”; evidence showed that gasoline was actually owned by

Petroleum World, Incorporated, a corporation; trial judge improperly allowed the State

to amend the indictments to delete the words Mike Frost, President; because an indict-

ment for embezzlement must allege ownership of the property in a person, corporation

or other legal entity able to own property, the amendment was a substantial alteration).

State v. Strange, 58 N.C. App. 756, 757-58 (1982) (arresting judgment ex mero moto

where the defendant was charged and found guilty of the larceny of a barbeque cooker

“the personal property of Granville County Law Enforcement Association” because

indictment failed to charge the defendant with the larceny of the cooker from a legal

entity capable of owning property).

State v. Perkins, 57 N.C. App. 516, 518 (1982) (larceny indictment was defective because

it failed to allege that “Metropolitan YMCA t/d/b/a Hayes-Taylor YMCA Branch” was a

corporation or other legal entity capable of owning property and name did not indicate

that it was a corporation or natural person).


State v. Cave, 174 N.C. App. 580, 582 (2005) (larceny indictment was not defective; the

indictment named the owner as “N.C. FYE, Inc.”; the indictment was sufficient because

the abbreviation “Inc.” imports the entity’s ability to own property).

State v. Day, 45 N.C. App. 316, 317-18 (1980) (no fatal variance between the indictment

alleging that items were the property of “J. Riggings, Inc., a corporation” and evidence;

witnesses testified that items were owned by “J. Riggings, a man’s retailing establish-

ment,” “J. Riggins Store,” and “J. Riggings” but no one testified that J. Riggings was a

corporation).


One case that appears to be an exception to the general rule that the owner must be identified

as one capable of legal ownership is State v. Wooten.145 That case upheld a shoplifting indictment

that named the victim simply as “Kings Dept. Store.” Noting that indictments for larceny and

embezzlement must allege ownership in either a natural person or legal entity capable of owning

property, the Wooten court distinguished shoplifting because it only can be committed against a

store. At least one case has declined to extend Wooten beyond the shoplifting context.146

A larceny indictment must describe the property taken. The cases annotated below explore

the level of detail required in the description. When the larceny is of any money, United States

treasury note, or bank note, G.S. 15-149 provides that it is sufficient to describe the item “simply

as money, without specifying any particular coin [or note].” G.S. 15-150 provides a similar rule for

embezzlement of money.


State v. Ingram, 271 N.C. 538, 541-44 (1967) (larceny indictment that described stolen

property as “merchandise, chattels, money, valuable securities and other personal prop-

erty” was insufficient).

State v. Nugent, 243 N.C. 100, 102-03 (1955) (“meat” was an insufficient description in

larceny and receiving indictment of the goods stolen).

State v. Simmons, 57 N.C. App. 548, 551-52 (1982) (fatal variance between larceny

indictment and the proof at trial as to what item or items were taken; property was

alleged as “eight (8) Imperial, heavy duty freezers, Serial Numbers: 02105, 02119, 01075,

01951, 02024, 02113, 02138, 02079, the personal property of Southern Food Service,

Inc., in the custody and possession of Patterson Storage Warehouse Company, Inc., a

corporation”; however, the property seized was a 21 cubic foot freezer, serial number

“W210TSSC-030-138”).


State v. Hartley, 39 N.C. App. 70, 71-72 (1978) (larceny indictments alleging property

taken as “a quantity of used automobile tires, the personal property of Jerry Phillips

and Tom Phillips, and d/b/a the Avery County Recapping Service, Newland, N.C.” was

sufficient; indictments named property (tires), described them as to type (automobile),

condition (used), ownership, and location).

State v. Monk, 36 N.C. App. 337, 340-41 (1978) (indictment alleging “assorted items of

clothing, having a value of $504.99 the property of Payne’s, Inc.” was sufficient).

State v. Boomer, 33 N.C. App. 324, 330 (1977) (“When describing an animal, it is suf-

ficient to refer to it by the name commonly applied to animals of its kind without

further description. A specific description of the animal, such as its color, age, weight,

sex, markings or brand, is not necessary. The general term ‘hogs’ in the indictment suf-

ficiently describes the animals taken so as to identify them with reasonable certainty.”)

(citation omitted).

State v. Coleman, 24 N.C. App. 530, 532 (1975) (no fatal variance between indictment

describing property as “a 1970 Plymouth” with a specific serial number, owned by

145. 18 N.C. App. 652 (1973).

146. See State v. Woody, 132 N.C. App. 788, 791 (1999).


George Edison Biggs and evidence which showed a taking of a 1970 Plymouth owned by

George Edison Biggs but was silent as to the serial number).

State v. Foster, 10 N.C. App. 141, 142-43 (1970) (larceny indictment alleging “automobile

parts of the value of $300.00 . . . of one Furches Motor Company” was sufficient).

State v. Mobley, 9 N.C. App. 717, 718 (1970) (indictment alleging “an undetermined

amount of beer, food and money of the value of $25.00 . . . of the said Evening Star

Grill” was sufficient).

State v. Chandler147 held that when the charge is attempted larceny, it is not necessary to specify

the particular goods and chattels the defendant intended to steal. The court reasoned that the

offense of attempted larceny is complete “when there is a general intent to steal and an act in fur-

therance thereof.” Thus, it concluded, an allegation as to the specific articles intended to be taken

is not essential to the crime.148

A larceny indictment need not describe the manner of the taking, even if the larceny was by

trick.149 Nor is it necessary for a larceny indictment to expressly allege that the defendant intended

to convert the property to his or her own use, that the taking was without consent, or that the

defendant had an intent to permanently deprive the owner of the property of its use.150

In order to properly charge felony larceny, the indictment must specifically allege one of the

factors that elevate a misdemeanor larceny to a felony.151 Thus, if the factor elevating the offense to

a felony is that the value of the items taken exceeds $1,000, this fact must be alleged in the indict-

ment. However, a variance as to this figure will not be fatal, provided that the evidence establishes

that the value of the items is $1,000 or more.152 An indictment alleging that the larceny was

committed “pursuant to a violation of G.S. 14-51” is sufficient to charge felony larceny committed

pursuant to a burglary.153 Also, a defendant properly may be convicted of felony larceny pursuant

147. 342 N.C. 742, 753 (1996).

148. See id.

149. See State v. Barbour, 153 N.C. App. 500, 503 (2002) (“It is not necessary for the State to allege the

manner in which the stolen property was taken and carried away, and the words ‘by trick’ need not be

found in an indictment charging larceny.”); State v. Harris, 35 N.C. App. 401, 402 (1978).

150. See State v. Osborne, 149 N.C. App. 235, 244-45 (indictment properly charged larceny even though

it did not allege that item was taken without consent or that defendant intended to permanently deprive

the owner; charge that defendant “unlawfully, willfully and feloniously did “[s]teal, take, and carry away”

was sufficient), aff’d, 356 N.C. 424 (2002); State v. Miller, 42 N.C. App. 342, 346 (1979) (rejecting defendant’s

argument that the indictment was fatally defective because it failed to state a felonious intent to appropriate

the goods taken to the defendant’s own use; allegation that defendant “unlawfully and willfully did feloni-

ously steal, take, and carry away” the item was sufficient); see also State v. Wesson, 16 N.C. App. 683, 685-88

(1972) (warrant’s use of the term “steal” in charging larceny sufficiently charged the required felonious

intent).

151. See G.S. 14-72 (delineating elements that support a felony charge); State v. Wilson, 315 N.C. 157,

164-65 (1985) (agreeing with defendant’s contention that the indictment failed to allege felonious larceny

because it did not specifically state that the larceny was pursuant to or incidental to a breaking or entering

and the amount of money alleged to have been stolen was below the statutory amount necessary to consti-

tute a felony).

152. See State v. McCall, 12 N.C. App. 85, 88 (1971) (indictment alleged larceny of $1948 and evidence

showed larceny of $1748).

153. See State v. Mandina, 91 N.C. App. 686, 690-91 (1988).


to a breaking and entering when the indictment charged felony larceny pursuant to a burglary,154

because breaking or entering is a lesser included offense of burglary.155

N. Receiving or Possession of Stolen PropertyUnlike larceny, indictments charging receiving or possession of stolen property need not allege

ownership of the property.156 The explanation for this distinction is that the name of the person

from whom the goods were stolen is not an essential element of these offenses.157

O. Injury to Personal PropertyAn indictment for injury to personal property must allege the owner or person in lawful posses-

sion of the injured property.158 If the entity named in the indictment is not a natural person, the

indictment must allege that the victim was a legal entity capable of owning property.159 These rules

follow those for larceny, discussed above.160

P. False Pretenses and Forgery1. False Pretenses

One issue in false pretenses cases is how the false representation element should be alleged in the

indictment. In State v. Perkins,161 the court of appeals held that an allegation that the defendant

used a credit and check card issued in the name of another person, wrongfully obtained and with-

out authorization, sufficiently apprised the defendant that she was accused of falsely representing

herself as an authorized user of the cards.162 In State v. Parker,163 the court of appeals upheld the

154. See State v. McCoy, 79 N.C. App. 273, 277 (1986); State v. Eldgridge, 83 N.C. App. 312, 316 (1986).

155. See McCoy, 79 N.C. App. at 277.

156. See State v. Jones, 151 N.C. App. 317, 327 (2002) (variance between ownership of property alleged

in indictment and evidence of ownership introduced at trial is not fatal to charge of felonious possession

of stolen goods); State v. Medlin, 86 N.C. App. 114, 123-24 (1987) (“In cases of receiving stolen goods, it

has never been necessary to allege the names of persons from whom the goods were stolen, nor has a vari-

ance between an allegation of ownership in the receiving indictment and proof of ownership been held to

be fatal. We now hold that the name of the person from whom the goods were stolen is not an essential

element of an indictment alleging possession of stolen goods, nor is a variance between the indictments’

allegations of ownership of property and the proof of ownership fatal.”) (citations omitted).

157. See Jones, 151 N.C. App at 327.

158. See State v. Price, 170 N.C. App. 672, 673-74 (2005).

159. See id. at 674 (indictment for injury to personal property was defective when it named the property

owner as “City of Asheville Transit and Parking Services,” which was not a natural person; the indictment

did not allege that it was a legal entity capable of owning property).

160. See supra pp. 34–36.

161. 181 N.C. App. 209, 215 (2007).

162. Id. (the indictment alleged that the defendant “unlawfully, willfully and feloniously did knowingly

and designedly, with the intent to cheat and defraud, attempted to obtain BEER AND CIGARETTES from

FOOD LION by means of a false pretense which was calculated to deceive. The false pretense consisted

of the following: THIS PROPERTY WAS OBTAINED BY MEANS OF USING THE CREDIT CARD AND

CKECK [sic] CARD OF MIRIELLE CLOUGH WHEN IN FACT THE DEFENDANT WRONGFULLY

OBTAINED THE CARDS AND WAS NEVER GIVEN PERMISSION TO USE THEM”).

163. 146 N.C. App. 715 (2001).


trial court’s decision to allow the State to amend a false pretenses indictment by changing the

items that the defendant represented as his own from “two (2) cameras and photography equip-

ment” to a “Magnavox VCR.”164 The court held that the amendment was not a substantial altera-

tion because the description of the item or items that the defendant falsely represented as his own

was irrelevant to proving the essential elements of the crime charged. Those essential elements

were simply that the defendant falsely represented a subsisting fact, which was calculated and

intended to deceive, which did in fact deceive, and by which defendant obtained something of

value from another.

In false pretenses cases, the thing obtained must be described with reasonable certainty.165 This

standard was satisfied in State v. Walston,166 where the court held that there was no fatal vari-

ance between a false pretenses indictment alleging that the defendant obtained $10,000 in U.S.

currency and the evidence that showed that the defendant deposited a $10,000 check into a bank

account. The court reasoned that “whether defendant received $10,000.00 in cash or deposited

$10,000.00 in a bank account, he obtained something of monetary value which is the crux of the

offense.”167 Although early cases indicate that a false pretenses indictment should describe money

obtained by giving the amount in dollars and cents,168 more modern cases have been flexible on

this rule. Thus, an indictment alleging that the defendant falsely represented to a store clerk that

he had purchased a watch band in order to obtain “United States currency” was held to be suf-

ficient, even though a dollar amount was not stated.169 The court distinguished the earlier cases

noting that in the case before it, the indictment alleged the item – the watch band – which the

defendant used to obtain the money.170

G.S. 15-151 provides that in any case in which an intent to defraud is required for forgery or any

other offense, it is sufficient to allege an intent to defraud, without naming the person or entity

intended to be defrauded. That provision states that at trial, it is sufficient and not a variance if

there is an intent to defraud a government, corporate body, public officer in his or her official

capacity, or any particular person. Without citing this provision, at least one case has held that a

false pretenses indictment need not specify the alleged victim.171

2. Identity Theft

Identity theft172 is a relatively new crime and few cases have dealt with indictment issues regard-

ing this offense. One case that has is State v. Dammons,173 in which the indictment alleged that

the defendant had fraudulently represented himself as William Artis Smith “for the purpose of

making financial or credit transactions and for the purpose of avoiding legal consequences in the

name of Michael Anthony Dammons.” The State’s evidence at trial indicated that the defendant

assumed Smith’s identity without consent in order to avoid legal consequences in the form of

164. See id. at 719.

165. See State v. Walston, 140 N.C. App. 327, 334 (2000) (quotation omitted).

166. 140 N.C. App. 327 (2000).

167. Id. at 334-36

168. See State v. Smith, 219 N.C. 400, 401 (1941); State v. Reese, 83 N.C. 638 (1880).

169. State v. Ledwell, 171 N.C. App. 314, 317-18 (2005).

170. See id. at 318.

171. State v. McBride, __ N.C. App. __, 653 S.E.2d 218 (2007) (the court concluded that the statute pro-

scribing the offense, G.S. 14-100, does not require that the State prove an intent to defraud any particular

person).

172. G.S. 14-113.20.

173. 159 N.C. App. 284 (2003).


felony charges. The appellate court rejected the defendant’s argument of fatal variance, conclud-

ing that the charging language about the financial transaction was unnecessary and was properly

regarded as surplusage.174

3. Forgery

In North Carolina, there are common law and statutory offenses for forgery.175 For offenses

charged under G.S. 14-119 (forgery of notes, checks, and other securities; counterfeiting instru-

ments), the indictment need not state the manner in which the instrument was forged.176

Q. Perjury and Related OffensesG.S. 15-145 provides the form for a bill of perjury. G.S. 15-146 does the same for a bill of suborna-

tion of perjury. G.S. 14-217(b) specifies the contents of an indictment for bribery of officials.

R. Habitual and Violent Habitual FelonIn North Carolina, being a habitual felon or a violent habitual felon is not a crime but a status,

the attaining of which subjects a defendant thereafter convicted of a crime to an increased pun-

ishment.177 The status itself, standing alone, will not support a criminal conviction.178 Put another

way, an indictment for habitual or violent habitual felon must be “attached” to an indictment

charging a substantive offense.179 Focusing on the distinction between a status and a crime, the

174. Id. at 293.

175. See Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime pp.

334-39 (6th ed. 2007).

176. State v. King, 178 N.C. App. 122 (2006) (indictment alleged that “on or about the 19th day of March,

2004, in Wayne County Louretha Mae King unlawfully, willfully, feloniously and with the intent to injure

and defraud, did forge, falsely make, and counterfeit a Wachovia withdrawal form, which was apparently

capable of effecting a fraud, and which is as appears on the copy attached hereto as Exhibit “A” and which is

hereby incorporated by reference in this indictment as if the same were fully set forth”; rejecting the defen-

dant’s argument that the indictment was defective because it failed to allege how the defendant committed

the forgery; concluding that the indictment clearly set forth all of the elements of the offense and that

furthermore a copy of the withdrawal slip was attached to the indictment as an exhibit showing the date

and time of day, amount of money withdrawn, account number, and particular bank branch from which the

funds were withdrawn).

177. See, e.g., State v. Allen, 292 N.C. 431, 433-35 (1977) (“Properly construed the [habitual felon] act

clearly contemplates that when one who has already attained the status of an habitual felon is indicted

for the commission of another felony, that person may then be also indicted in a separate bill as being an

habitual felon. It is likewise clear that the proceeding by which the state seeks to establish that defendant is

an habitual felon is necessarily ancillary to a pending prosecution for the ‘principal,’ or substantive felony.

The act does not authorize a proceeding independent from the prosecution of some substantive felony for

the sole purpose of establishing a defendant’s status as an habitual felon.”).

178. See, e.g., id. at 435.

179. Compare id. at 436 (holding that habitual felon indictment was invalid because there was no pend-

ing felony prosecution to which the habitual felon proceeding could attach) and State v. Davis, 123 N.C.

App. 240, 243-44 (1996) (trial court erred by sentencing defendant as an habitual felon after arresting

judgment in all the underlying felonies for which defendant was convicted) with State v. Oakes, 113 N.C.

App. 332, 339 (1994) (until judgment was entered upon defendant’s conviction of the substantive felony,

there remained a pending, uncompleted felony prosecution to which a new habitual felon indictment could


North Carolina Court of Appeals has stated that because being a habitual felon is not a substan-

tive offense, the requirement in G.S. 15A-924(a)(5) that each element of the crime be pleaded does

not apply.180 It went on to indicate that as a status, “the only pleading requirement is that defen-

dant be given notice that he is being prosecuted for some substantive felony as a recidivist.”181

The relevant statutes provide that the indictment charging habitual felon or violent habitual

felon status shall be separate from the indictment charging the substantive felony.182 Although it

has not ruled on the issue, in State v. Patton, the North Carolina Supreme Court has indicated

that this language requires separate indictments.183 In State v. Young,184 the North Carolina Court

of Appeals upheld an indictment that charged the underlying felony and habitual felon in separate

counts of the same indictment. Young held that G.S. 14-7.3 does not require that a habitual felon

indictment be contained in a separate bill of indictment; rather it held that the statute requires

merely that the indictment charging habitual felon status “be distinct, or set apart, from the

charge of the underlying felony.” However, Young was decided before Patton and it is not clear that

its rationale survives that later case.

The indictment for the substantive felony need not charge or refer to the habitual felon status.185

Nor must the habitual felon indictment allege the substantive felony.186 If the substantive felony

is alleged in the habitual felon indictment and an error is made with regard to that allegation, the

allegation will be treated as surplusage and ignored.187 Finally a separate habitual felon indictment

is not required for each substantive felony indictment.188

A number of issues have arisen regarding the timing of habitual and violent habitual felon

indictments. The basic rule is that an indictment for habitual felon or violent habitual felon must

be obtained before the defendant enters a plea at trial to the substantive offense.189 The reason

for this rule is “so that defendant has notice that he [or she] will be charged as a recidivist before

pleading to the substantive felony, thereby eliminating the possibility that he [or she] will enter a

attach) and State v. Mewborn, 131 N.C. App. 495, 501 (1998) (after the original violent habitual felon indict-

ment was quashed, prayer for judgment continued was entered on the substantive felony, a new indictment

was issued, and defendant stood trial under that indictment as a violent habitual felon; because defendant

had not yet been sentenced for the substantive felony and because the original indictment placed him on

notice that he was being tried as a violent habitual felon, the subsequent indictment attached to the ongoing

felony proceeding and defendant was properly tried as a violent habitual felon).

180. See State v. Roberts, 135 N.C. App. 690, 698 (1999).

181. Id. at 698 (quotation omitted and emphasis deleted).

182. See G.S. 14-7.3 (habitual felon); 14-7.9 (violent habitual felon).

183. See State v. Patton, 342 N.C. 633, 635 (1996); State v. Allen, 292 N.C. 431, 433 (1977).

184. 120 N.C. App. 456, 459-61 (1995).

185. See State v. Todd, 313 N.C. 110, 120 (1985); State v. Peoples, 167 N.C. App. 63, 71 (2004); State v.

Mason, 126 N.C. App. 318, 322 (1997); State v. Hodge, 112 N.C. App, 462, 466-67 (1993); State v. Sanders, 95

N.C. App. 494, 504 (1989); State v. Keyes, 56 N.C. App. 75, 78 (1982).

186. See State v. Cheek, 339 N.C. 725, 727 (1995); State v. Smith, 160 N.C. App. 107, 124 (2003); State v.

Bowens, 140 N.C. App. 217, 224 (2000); State v. Roberts, 135 N.C. App. 690, 698 (1999); Mason, 126 N.C.

App. at 322.

187. See, e.g., Bowens, 140 N.C. App. at 224-25.

188. See State v. Patton, 342 N.C. 633, 635 (1996) (rejecting the notion that a one-to-one correspondence

was required); State v. Taylor, 156 N.C. App. 172, 174 (2003).

189. See State v. Allen, 292 N.C. 431, 436 (1977); State v. Little, 126 N.C. App. 262, 269 (1997).

The court of appeals has rejected the argument that the “cut off” is when a defendant enters a plea at an

arraignment. State v. Cogdell, 165 N.C. App. 368 (2004). The court concluded that “the critical event . . . is

the plea entered before the actual trial.” Id. at 373.


guilty plea without a full understanding of the possible consequences of conviction.”190 A habitual

or violent habitual indictment may be obtained before an indictment on the substantive charge is

obtained, provided there is compliance with the statutes’ notice and procedural requirements.191

Once a guilty plea has been adjudicated on a habitual felon indictment or information, that par-

ticular pleading has been “used up” and cannot support sentencing the defendant as a habitual

felon on another felony; this rule applies even if the sentencing on the original pleading has been

continued.192

The most common challenges to habitual felon and violent habitual felon indictments are to the

prior felonies alleged. G.S. 14-7.3 (charge of habitual felon), provides that indictments “must set

forth the date that prior felony offenses were committed, the name of the state or other sovereign

against whom said felony offenses were committed, the dates that pleas of guilty were entered to

or convictions returned in said felony offenses, and the identity of the court wherein said pleas or

convictions took place.” G.S. 14-7.9 (charge of violent habitual felon) contains similar although not

identical language. The prior convictions are treated as elements; thus, it is error to allow the State

to amend an indictment to replace an alleged prior conviction.193 Similarly, an indictment will be

deemed defective if one of the alleged priors is a misdemeanor, not a felony, even if defense counsel

stipulates that the prior convictions were felonies.194 By contrast, the courts are lenient with regard

to the statutory requirement that the indictment identify the state or other sovereign against whom

the prior felonies were committed.195

190. State v. Oakes, 113 N.C. App. 332, 338 (1994). The court of appeals has deviated from the basic timing

rule in two cases. However, in both cases, (1) the habitual felon indictment was obtained before the defendant

entered a plea at trial and was later replaced with either a new or superseding indictment; thus there was

some notice as to the charge; and (2) both cases described the defects in the initial indictment as “technical”;

thus, both probably could have been corrected by amendment. See Oakes, 113 N.C. App. 332; Mewborn, 131

N.C. App. 495.

191. See State v. Blakney, 156 N.C. App. 671, 675 (2003); see also State v. Murray, 154 N.C. App. 631, 638

(2002).

192. State v. Bradley, 175 N.C. App. 234 (2005) (when the defendant pleaded guilty to two crimes and hav-

ing attained habitual felon status as to each but sentencing was continued, the original habitual felon infor-

mations could not be used to support habitual felon sentencing for a subsequent felony charge).

193. State v. Little, 126 N.C. App. 262, 269-70 (1997) (the State should not have been allowed to obtain

a superseding indictment which changed one of the three felony convictions listed as priors; the court

concluded that a change in the prior convictions was substantive and altered an allegation pertaining to an

element of the offense).

194. State v. Moncree, __ N.C. App. __, 655 S.E.2d 464 (2008) (habitual felon indictment was defective

where one of the prior crimes was classified as a misdemeanor in the state where it was committed; defense

counsel’s stipulations that all of the priors were felonies did not foreclose relief on appeal).

195. State v. Montford, 137 N.C. App. 495, 500-01 (2000) (trial court did not err in allowing the State to

amend the habitual felon indictment; original indictment listed three previous felonies, but did not state

that they had been committed against the State of North Carolina, instead listing that they had occurred

in Carteret County; State amended the indictment by inserting “in North Carolina” after each listed felony;

“we need not even address the amendment issue, as we conclude that the original indictment itself was not

flawed”; although the statute requires the indictment to allege the name of the state or sovereign, we have not

required rigid adherence to this rule; “the name of the state need not be expressly stated if the indictment

sufficiently indicates the state against whom the felonies were committed”; the original indictment suffi-

ciently indicated the state against whom the prior felonies were committed because “State of North Carolina”

explicitly appears at the top of the indictment, followed by “Carteret County,” thus, Carteret County is

clearly linked with the state name); State v. Mason, 126 N.C. App. 318, 323 (1997) (indictment stated the

prior assault with a deadly weapon inflicting serious injury occurred in “Wake County, North Carolina” and


Cases dealing with date issues regarding prior convictions in these indictments are summarized

above, see supra pp. 8–9. The summaries below explore other challenges that have been asserted

against the prior felony allegations in habitual felon and violent habitual felon indictments.

State v. McIlwaine, 169 N.C. App. 397, 399-499 (2005) (habitual felon indictment alleged

that the defendant had been previously convicted of three felonies, including “the felony

of possession with intent to manufacture, sell or deliver [S]chedule I controlled substance,

in violation of N.C.G.S. 90-95”; the indictment was sufficient to charge habitual felon even

though it did not allege the specific name of the controlled substance).

State v. Briggs, 137 N.C. App. 125, 130-31 (2000) (habitual felon indictment listing convic-

tion for “felony of breaking and entering buildings in violation of N.C.G.S. 14-54” and

containing the date the felony was committed, the court in which defendant was con-

victed, the number assigned to the case, and the date of conviction was sufficient).

State v. Hicks, 125 N.C. App. 158, 160 (1997) (no error by allowing State to amend habitual

felon indictment; original indictment alleged that all of the previous felony convictions

were committed after the defendant reached the age of eighteen; the State amended to

allege that all but one of the previous felony convictions were committed after the defen-

dant reached the age of eighteen; the three underlying felonies remained the same).

S. Drug Offenses1. Sale or Delivery

Indictments charging sale or delivery of a controlled substance in violation of G.S. 90-95(a)(1) must

allege a controlled substance that is included in the schedules of controlled substances.196 Such

indictments also must allege the name of the person to whom the sale or delivery was made, when

that person’s name is known, or allege that the person’s name was unknown.197 One exception

that judgment was entered in Wake County Superior Court and listed voluntary manslaughter as occurring

in “Wake County” and that judgment was entered in Wake County Superior Court, but did not list a state;

indictment was sufficient “because the description of the assault conviction indicates Wake County is within

North Carolina, and the indictment states both judgments were entered in Wake County Superior Court, we

believe this, along with the dates of the offenses and convictions, is sufficient to give defendant the required

notice”); State v. Young, 120 N.C. App. 456, 462 (1995) (rejecting defendant’s argument that habitual felon

indictment inadequately alleged the name of the state or other sovereign against whom the prior felonies were

committed); State v. Hodge, 112 N.C. App. 462, 467 (1993) (upholding indictment that alleged that the felony

of common law robbery was committed in “Wake County, North Carolina,” and that the other priors were

committed in “Wake County,” descriptions which were in the same sentence; the use of “Wake County” to

describe the sovereignty against which the felonies were committed was clearly a reference to Wake County,

North Carolina); State v. Williams, 99 N.C. App. 333, 334-35 (1990) (habitual felon indictment setting forth

each of the prior felonies of which defendant was charged and convicted as being in violation of an enumer-

ated “North Carolina General Statutes” contained a sufficient statement of the state or sovereign against

whom the felonies were committed).

196. State v. Ahmadi-Turshizi, 175 N.C. App. 783, 785-86 (2006); see infra pp. 47-48 (discussing allegations

regarding drug name).

197. See State v. Bennett, 280 N.C. 167, 168-69 (1971) (an indictment for sale of a controlled substance must

state the name of the person to whom the sale was made or that his or her name was unknown) (decided

under prior law); State v. Calvino, 179 N.C. App. 219, 221-222 (2006) (the indictment alleged that defendant

sold cocaine to “a confidential source of information” and it was undisputed that the State knew the name


to this rule has been recognized by the court of appeals in cases involving middlemen. State v.

Cotton198 is illustrative. In Cotton, the sale and delivery indictment charged that the defendant

sold the controlled substance to Todd, an undercover officer. The evidence at trial showed a direct

sale to Morrow, who was acting as a middleman for Todd. Defendant unsuccessfully moved to

dismiss on grounds of fatal variance. The court of appeals noted that the State could overcome the

motion by producing substantial evidence that the defendant knew the cocaine was being sold to

a third party, and that the third party was named in the indictment. Turning to the facts before

it, the court noted that the evidence showed that Todd accompanied Morrow to the defendant’s

house and was allowed to stay in the house while Morrow and defendant had a discussion. Todd

was brought upstairs with them and waited in the bedroom when they went into the bathroom.

Morrow then came out and told Todd to give him the money because the defendant was paranoid,

went back into the bathroom, and came out with the cocaine. The court concluded that there was

substantial evidence that the defendant knew that Morrow was acting as a middleman, and that

the cocaine was actually being sold to Todd, the person named in the indictment, and thus that

there was no fatal variance.199 When there is insufficient evidence showing that the defendant

knew that the intermediary was buying or taking delivery for the purchaser named in the indict-

ment, a fatal variance results.200

If the charge is conspiracy to sell or deliver, the person with whom the defendant conspired to

sell and deliver need not be named.201

2. Possession and Possession With Intent to Manufacture, Sell or Deliver

An indictment for possession of a controlled substance must identify the controlled substance

allegedly possessed.202 However, time and place are not essential elements of the offense of

of the individual to whom defendant allegedly sold the cocaine in question; the indictment was fatally

defective); State v. Smith, 155 N.C. App. 500, 512-13 (2002) (fatal variance in indictment alleging that defen-

dant sold marijuana to Berger; facts were that Berger and Chadwell went to defendant’s bar to purchase

marijuana; Berger waited in the car while Chadwell went into the building and purchased marijuana on

their behalf; there was no substantial evidence that defendant knew he was selling marijuana to Berger);

State v. Wall, 96 N.C. App. 45, 49-50 (1989); (fatal variance between indictment charging sale and delivery

of cocaine to McPhatter, an undercover officer, and evidence showing that McPhatter gave Riley money

to purchase cocaine, which she did; there was no substantial evidence that defendant knew Riley was act-

ing on McPhatter’s behalf); State v. Pulliman, 78 N.C. App. 129, 131-33 (1985) (no fatal variance between

indictment charging sale and delivery to Walker, an undercover officer, and evidence; evidence showed

that although the sale was made to Cobb, defendant knew Cobb was buying the drugs for Walker); State

v. Sealey, 41 N.C. App. 175, 176 (1979) (fatal variance between indictment charging defendant with selling

dilaudid to Mills and evidence showing that defendant made the sale to Atkins); State v. Ingram, 20 N.C.

App. 464, 465-66 (1974) (fatal variance between indictment charging that defendant sold to Gooche and

evidence showing that the purchaser was Hairston); State v. Martindate, 15 N.C. App. 216, 217-18 (1972)

(indictment that did not name the person to whom a sale was allegedly made and did not allege that the

purchaser’s name was unknown was fatally defective); State v. Long, 14 N.C. App. 508, 510 (1972) (same).

198. 102 N.C. App. 93 (1991).

199. See also Pulliman, 78 N.C. App. at 131-33.

200. See Wall, 96 N.C. App. at 49-50; Smith, 155 N.C. App. at 512-13.

201. See, e.g., State v. Lorenzo, 147 N.C. App. 728, 734-35 (2001) (indictment charging conspiracy to traf-

fic in marijuana by delivery was not defective for failing to name the person to whom defendant allegedly

conspired to sell or deliver the marijuana).

202. See State v. Ledwell, 171 N.C. App. 328, 331 (2005).


unlawful possession.203 Indictments charging possession with intent to sell or deliver need not

allege the person to whom the defendant intended to distribute the controlled substance.204

For case law pertaining to drug quantity, see infra pp. 46–47. For case law pertaining to the

name of the controlled substance, see infra pp. 47–48.

3. Trafficking

An indictment charging conspiracy to traffic in controlled substances by sale or delivery is suf-

ficient even if it does not identify the person with whom the defendant conspired to sell or deliver

the controlled substance.205

For case law pertaining to drug quantity in trafficking cases, see infra pp. 46–47.

4. Maintaining a Dwelling

The specific address of the dwelling need not be alleged in an indictment charging the defendant

with maintaining a dwelling.206

5. Drug Paraphernalia

In State v. Moore,207 an indictment charging possession of drug paraphernalia alleged that the

defendant possessed “drug paraphernalia, to wit: a can designed as a smoking device.” However,

none of the evidence at trial related to a can; rather, it described crack cocaine in a folded brown

paper bag with a rubber band around it. After denying the defendant’s motion to dismiss, the trial

court granted the State’s motion to amend the indictment striking “a can designed as a smoking

device” and replacing it with “drug paraphernalia, to wit: a brown paper container.” The court of

appeals held that because this change constituted a substantial alteration of the indictment, it

was impermissible and the motion to dismiss should have been granted. It reasoned: “As com-

mon household items and substances may be classified as drug paraphernalia when considered

in the light of other evidence, in order to mount a defense to the charge of possession of drug

paraphernalia, a defendant must be apprised of the item or substance the State categorizes as

drug paraphernalia.” Without citing Moore, a later case held that no plain error occurred when

the indictment charged the defendant with possessing “drug paraphernalia, SCALES FOR

PACKAGING A CONTROLLED SUBSTANCE,” but the trial court instructed the jury that it

could find the defendant guilty if it concluded that he knowingly possessed drug paraphernalia,

without mentioning scales or packaging.208

203. See Bennett, 280 N.C. at 169.

204. See State v. Campbell, 18 N.C. App. 586, 589 (1973) (decided under prior law).

205. See Lorenzo, 147 N.C. App. at 734.

206. See State v. Grady, 136 N.C. App. 394, 396-98 (2000) (no error in allowing amendment of dwelling’s

address in indictment for maintaining dwelling for use of controlled substance; address changed from “919

Dollard Town Road” to “929 Dollard Town Road”; because the specific designation of the dwelling’s address

need not be alleged in an indictment for this offense, the amendment did not “substantially alter the charge

set forth in the indictment”; also, defendant could not have been misled or surprised because another count

in the same indictment contained the correct address).

207. 162 N.C. App. 268 (2004).

208. State v. Shearin, 170 N.C. App. 222, 232-33 (2005).


6. Obtaining Controlled Substance by Fraud or Forgery

Cases involving challenges to indictments charging obtaining a controlled substance by forgery

are annotated below.

State v. Brady, 147 N.C. App. 755, 758 (2001) (no error in allowing amendment to

change the controlled substance named from “Xanax” to “Percocet” in an indictment

for obtaining a controlled substance by forgery; the name of the controlled substance is

not necessary in an indictment charging this offense).

State v. Baynard, 79 N.C. App. 559, 561-62 (1986) (indictments charging crime of

obtaining controlled substance by fraud and forgery under G.S. 90-108(a)(10) were

adequate to support conviction, even though they did not specifically state that defen-

dant presented forged prescriptions knowing they were forged; indictments alleged that

the offense was done “intentionally” and contained the words “misrepresentation, fraud,

deception and subterfuge,” all of which implied specific intent to misrepresent).

State v. Fleming, 52 N.C. App. 563, 565-66 (1981) (indictment properly charged offense

under G.S. 90-108(a)(10); the illegal means employed was alleged with sufficient

particularity).

State v. Booze, 29 N.C. App. 397, 398-400 (1976) (indictment alleging the time and place

and the persons from whom defendant attempted to acquire the controlled substance,

identifying the controlled substance, and stating the illegal means with particularity,

“by using a forged prescription and presenting it to” the named pharmacists, was suf-

ficient; “it was not necessary to make further factual allegations as to the nature of the

forged prescriptions or to incorporate the forged prescriptions in the bills”).

7. Amount of Controlled Substance

When the amount of the controlled substance is an essential element of the offense, it must be

properly alleged in the indictment. Amount is an essential element with felonious possession


of marijuana,209 felonious possession of hashish,210 and trafficking in controlled substances.211

Quantity is not an element of an offense under 90-95(a)(1).212

8. Drug Name

When the identity of the controlled substance is an element of the offense,213 the indictment must

allege a substance that is included in the schedules of controlled substances.214 Thus, when an

indictment alleged that the defendant possessed “Methylenedioxyamphetamine (MDA), a con-

trolled substance included in Schedule I,” and no such controlled substance by that name is listed

in Schedule I, the indictment was defective.215 Similarly, an indictment that identified the con-

trolled substance allegedly possessed, sold, and delivered as “methylenedioxymethamphetamine a

controlled substance which is included in Schedule I of the North Carolina Controlled Substances

Act” was defective because although 3, 4-Methylenedioxymethamphetamine was listed in

209. See State v. Partridge, 157 N.C. App. 568, 570-71 (2003) (indictment charging felonious possession

of marijuana was defective because it did not state drug quantity; the weight of the marijuana is an essential

element of this offense); State v. Perry, 84 N.C. App. 309, 311 (1987) (the elements of felony possession were

set out with sufficient clarity in indictment that specifically mentioned drug quantity).

210. See State v. Peoples, 65 N.C. App. 168, 168 (1983) (indictment that failed to allege the amount of

hashish possessed could not support a felony conviction).

211. See State v. Outlaw, 159 N.C. App. 423 (trafficking indictment that failed to allege weight of cocaine

was invalid) (citing State v. Epps, 95 N.C. App. 173 (1989)); State v. Trejo, 163 N.C. App. 512 (2004) (rejecting

defendant’s argument that the indictments charging him with trafficking in marijuana by possession and

trafficking in marijuana by transportation were fatally defective because each failed to correctly specify

the quantity of marijuana necessary for conviction; indictment charging trafficking in marijuana by pos-

session alleged that defendant “possess[ed] 10 pounds or more but less than 50 pounds” of marijuana; the

indictment charging defendant with trafficking in marijuana by transportation alleged that defendant

“transport[ed] 10 pounds or more but less than 50 pounds” of marijuana; indictments, although overbroad,

did allege the required amount of marijuana; fact that challenged indictments were drafted to include the

possibility that defendant possessed and transported exactly ten pounds of marijuana (which does not con-

stitute trafficking in marijuana) does not invalidate the indictments); Epps, 95 N.C. App. at 175-76 (quash-

ing conspiracy to traffic in cocaine indictment for failure to refer to amount of cocaine); State v. Keyes, 87

N.C. App. 349, 358-59 (1987) (although statute makes it a trafficking felony to possess “four grams or more,

but less than 14 grams” of heroin, the indictment charged possession of “more than four but less than four-

teen grams of heroin”; distinguishing Goforth, discussed below, and holding that variance was not fatal; the

indictment excludes from criminal prosecution the possession of exactly four grams, whereas the statute

includes the possession of exactly four grams; the indictment, while limiting the scope of defendant’s liabil-

ity, is clearly within the confines of the statute); State v. Goforth, 65 N.C. App. 302, 305 (1983) (applying

prior law that criminalized trafficking in marijuana at weights of in excess of 50 pounds and holding that

indictment charging conspiracy to traffic “in at least 50 pounds” of marijuana was defective). But see Epps,

95 N.C. App. at 176-77 (affirming trafficking by sale conviction even though relevant count in indictment

did not allege a drug quantity; defendant was charged in a two-count indictment, count one charged traf-

ficking by possession of a specified amount of cocaine and count two charged trafficking by sale but did not

state an amount; the two counts, when read together, informed defendant that he was being charged with

trafficking by sale).

212. See State v. Hyatt, 98 N.C. App. 214, 216 (1990) (“while the quantity of drugs seized is evidence of

the intent to sell, ‘it is not an element of the offense’”); Peoples, 65 N.C. App. at 169 (same).

213. See, e.g., supra pp. 43, 44.

214. State v. Ahmadi-Turshizi, 175 N.C. App. 783, 784-85 (2006); State v. Ledwell, 171 N.C. App. 328

(2005).

215. Ledwell, 171 N.C. App. at 331-33.


Schedule I, methylenedioxymethamphetamine was not.216 Notwithstanding this, cases have held

that controlled substance indictments will not be found defective for minor errors in identifying

the relevant controlled substance, such as “cocoa” instead of cocaine,217 cocaine instead of a mix-

ture containing cocaine,218 and the use of a trade name instead of a chemical name.219

T. Weapons Offenses and Firearm EnhancementSeveral cases addressing indictment issues with regard to weapons offenses and the firearm

enhancement in G.S. 15A-1340.16A are annotated below.

1. Shooting into Occupied Property

State v. Pickens, 346 N.C. 628, 645-46 (1997) (no fatal variance between indictment

alleging that defendant fired into an occupied dwelling with a shotgun and evidence

establishing that the shot came from a handgun; the essential element of the offense is

“to discharge ... [a] firearm”; indictment alleging that defendant discharged “a shotgun, a

firearm” alleged that element and the averment to the shotgun was not necessary, mak-

ing it mere surplusage in the indictment).

State v. Cockerham, 155 N.C. App. 729, 735-36 (2003) (indictment charging shooting

into occupied property was not defective for failing to allege that defendant fired into

a “building, structure or enclosure”; indictment alleged defendant shot into an “apart-

ment” and as such was sufficient; an indictment which avers facts constituting every

element of the offense need not be couched in the language of the statute).

State v. Bland, 34 N.C. App. 384, 385 (1977) (no fatal variance between indictment

alleging that defendant shot into an occupied building and evidence showing that he

shot into an occupied trailer; indictment specifically noted that the occupied building

was located at 5313 Park Avenue, the address of the trailer).

State v. Walker, 34 N.C. App. 271, 272-74 (1977) (indictment not defective for failing to

allege that the defendant knew or should have known that the trailer was occupied by

one or more persons).

2. Possession of Firearm by Felon

G.S. 14-415.1 makes it a crime for a felon to possess a firearm or weapon of mass destruction.

G.S. 14-415.1(c) provides that an indictment charging a defendant with this crime “shall be sepa-

rate from any indictment charging him with other offenses related to or giving rise to a charge

under this section.” It further provides that the indictment

must set forth the date that the prior offense was committed, the type of offense and the

penalty therefore, and the date that the defendant was convicted or plead guilty to such

216. Ahmadi-Turshizi, 175 N.C. App. at 785-86.

217. See State v. Thrift, 78 N.C. App. 199, 201-02 (1985).

218. State v. Tyndall, 55 N.C. App. 57, 61-62 (1981) (although the indictment alleged that defendant sold

cocaine rather than a mixture containing cocaine, this was not a fatal variance).

219. State v. Newton, 21 N.C. App. 384, 385-86 (1974) (no fatal variance between indictment charging

that defendant possessed Desoxyn and evidence that showed defendant possessed methamphetamine;

Desoxyn is a trade name for methamphetamine hydrochloride).


offense, the identity of the court in which the conviction or plea of guilty took place and

the verdict and judgment rendered therein.

The court of appeals has held that the statutory requirement that the indictment state the convic-

tion date for the prior offense is directory and not mandatory.220 Thus, it concluded that failure

to allege the date of the prior conviction did not render an indictment defective.221 Also, State

v. Boston,222 rejected a defendant’s claim that an indictment for this offense was fatally defective

because it failed to state the statutory penalty for the prior felony conviction. The court held that

“the provision . . . that requires the indictment to state the penalty for the prior offense is not

material and does not affect a substantial right,” that the defendant was apprised of the relevant

conduct, and “[t]o hold otherwise would permit form to prevail over substance.” Other relevant

cases are summarized below.


State v. Langley, 173 N.C. App. 194, 196-99 (2005) (in conviction under a prior version

of G.S. 14-415.1, the court held that there was a fatal variance where the indictment

charged that the defendant was in possession of a handgun and the State’s evidence at

trial tended to show that defendant possessed a firearm with barrel length less than 18

inches and overall length less than 26 inches, a sawed-off shotgun).223

Finding No Fatal Defect or Variance/No Error With Respect to an Amendment

State v. Coltrane, __ N.C. App. __, 656 S.E.2d 322 (2008) (the trial court did not err

by allowing the State to amend the allegation that the defendant’s underlying felony

conviction occurred in Montgomery County Superior Court to state that it occurred

in Guilford County Superior Court; the indictment correctly identified all of the other

allegations required by G.S. 14-415.1(c).

State v. Bishop, 119 N.C. App. 695, 698-99 (1995) (indictment was not invalid for failing

to allege (1) that possession of the firearm was away from defendant’s home or busi-

ness; (2) that defendant’s prior Florida felony was “substantially similar” to a particular

North Carolina crime; and (3) to which North Carolina statute the Florida conviction

was similar; omission of the situs of the offense was not an error because situs is an

exception to the offense, not an essential element; omission of a statement that the

Florida felony was “substantially similar” to a particular North Carolina crime was not

an error because the indictment gave sufficient notice of the offense charged; the indict-

ment clearly described the felony committed in Florida, satisfying the requirements of

G.S. 14-415.1(b)(3) and properly charging defendant with possession of firearms by a

felon).

State v. Riggs, 79 N.C. App. 398, 402 (1986) (indictment charging that defendant pos-

sessed “a Charter Arms .38 caliber pistol, which is a handgun” was not invalid for fail-

ing to allege the length of the pistol).

220. State v. Inman, 174 N.C. App. 567 (2005).

221. Id. at 571.

222. 165 N.C. App. 214 (2004).

223. At the time, the prior version of the statute made it a crime for a felon to possess “any handgun or

other firearm with a barrel length of less than 18 inches or an overall length of less than 26 inches, or any

weapon of mass destruction as defined by G.S. 14-288.8(c).” G.S. 14-415.1(a) (2003).


3. Possession of Weapon of Mass Destruction

State v. Blackwell, 163 N.C. App. 12 (2004) (no fatal variance between indictment charg-

ing possession of weapon of mass destruction that alleged possession of “a Stevens 12

gauge single-shot shotgun” and evidence at trial that shotgun was manufactured by Jay

Stevens Arms; even if there was no evidence that the shotgun was a “Stevens” shotgun,

there would be no fatal variance because “any person of common understanding would

have understood that he was charged with possessing the sawed-off shotgun that he

used to shoot the victim).

4. Firearm Enhancement

G.S. 15A-1340.16A provides for an enhanced sentence if the defendant is convicted of a felony fall-

ing within one of the specified classes and the defendant used, displayed, or threatened to use or

display a firearm during commission of the felony. The statute provides that an indictment is suffi-

cient if it alleges that “the defendant committed the felony by using, displaying, or threatening the

use or display of a firearm and the defendant actually possessed the firearm about the defendant’s

person.”224

U. Motor Vehicle Offenses1. Impaired Driving

G.S. 20-138.1(c) and 20-138.2(c) allow short-form pleadings for impaired driving and impaired

driving in a commercial vehicle respectively. For a discussion of the implications of Blakely v.

Washington,225 on these offenses, see supra p. 16. A case dealing with an allegation regarding the

location of an impaired driving offense is summarized below.

State v. Snyder, 343 N.C. 61, 65-68 (1996) (indictment alleged that offense occurred on

a street or highway; trial judge properly permitted the State to amend the indictment to

read “on a highway or public vehicular area”; although the situs of the impaired driving

offense is an essential element, the indictment simply needs to contain an allegation of

a situs covered by the statute and no greater specificity is required; change in this case

merely a refinement in the description of the type of situs on which the defendant was

driving rather than a change in an essential element of the offense).

2. Habitual Impaired Driving

Under the current version of the habitual impaired driving statute,226 this offense is committed

when a person drives while impaired and has three or more convictions involving impaired driv-

ing within the last ten years. Under an earlier version of the statute, the “look-back period” for

prior convictions was only seven years. At least one case has held, in connection with a prosecu-

tion under the prior version of the statute, that it was error to allow the State to amend a habitual

impaired driving indictment to correct the date of a prior conviction and thereby bring it within

the seven-year look-back period.227 Indictments charging habitual impaired driving must conform

to G.S. 15A-928. Cases on point are summarized below.

224. G.S. 15A-1340.16A(d).

225. 542 U.S. 296 (2004).

226. G.S. 20-138.5.

227. State v. Winslow, 360 N.C. 161 (2005).


State v. Mark, 154 N.C. App. 341, 344-45 (2002) (rejecting defendant’s argument that

indictment violated G.S. 15A-928 because count three was entitled “Habitual Impaired

Driving”), aff’d, 357 N.C. 242 (2003).

State v. Lobohe, 143 N.C. App. 555, 557-59 (2001) (indictment which alleged in one

count the elements of impaired driving and in a second count the previous convictions

elevating the offense to habitual impaired driving properly alleged habitual impaired

driving) (citing G.S. 15A-928(b)).

State v. Baldwin, 117 N.C. App. 713, 715-16 (1995) (indictment alleged the essential

elements of habitual impaired driving; contrary to defendant’s claim, it alleged that

defendant had been previously convicted of three impaired driving offenses).

3. Speeding to Elude Arrest

G.S. 20-141.5 makes it a misdemeanor to operate a motor vehicle while fleeing or attempted to

elude a law enforcement officer who is in lawful performance of his or her duties. The crime is

elevated to a felony if two or more specified aggravating factors are present, or if the violation is

the proximate cause of death.

An indictment for this crime need not allege the lawful duties the officer was performing.228

When the charge is felony speeding to elude arrest based on the presence of aggravating factors,

the indictment is sufficient if it charges those aggravating factors by tracking the statutory lan-

guage.229 Thus, when the aggravating factor is “reckless driving proscribed by G.S. 20-140,”230 the

indictment need not allege all of the elements of reckless driving.231 However, when the aggravat-

ing factor felony version of this offense is charged, the aggravating factors are essential elements of

the crime and it is error to allow the State to amend the indictment to add an aggravating factor.232

4. Driving While License Revoked

In State v. Scott,233 the court rejected the defendant’s argument that an indictment for driving

while license revoked was defective because it failed to list the element of notice of suspension.

Acknowledging that proof of actual or constructive notice is required for a conviction, the court

held that “it is not necessary to charge on knowledge of revocation when unchallenged evidence

shows that the State has complied with the provisions for giving notice of revocation.234

228. State v. Teel, 180 N.C. App. 446, 448-49 (2006).

229. State v. Stokes, 174 N.C. App. 447, 451-52 (2005) (indictment properly charged this crime when it

alleged that the defendant unlawfully, willfully and feloniously did operate a motor vehicle on a highway,

Interstate 40, while attempting to elude a law enforcement officer, T.D. Dell of the Greensboro Police

Department, in the lawful performance of the officer’s duties, stopping the defendant’s vehicle for vari-

ous motor vehicle offenses, and that at the time of the violation: (1) the defendant was speeding in excess

of 15 miles per hour over the legal speed limit; (2) the defendant was driving recklessly in violation of

G.S. 20-140; and (3) there was gross impairment of the defendant’s faculties while driving due to consump-

tion of an impairing substance); see also State v. Scott, 167 N.C. App. 783, 787-88 (2005) (indictment charg-

ing driving while license revoked as an aggravating factor without spelling out all elements of that offense

was not defective).

230. G.S. 20-141.5(b)(3).

231. Stokes, 174 N.C. App. at 451-52.

232. State v. Moses, 154 N.C. App. 332, 337-38 (2002) (error to allow the State to amend misdemeanor

speeding to allude arrest indictment by adding an aggravating factor that would make the offense a felony).

233. 167 N.C. App. 783 (2005).

234. Id. at 787.


V. General Crimes1. Attempt

An indictment charging a completed offense is sufficient to support a conviction for an attempt

to commit the offense.235 This is true even though the completed crime and the attempt are not in

the same statute.236 G.S. 15-144, the statute authorizing use of short-form indictment for homicide,

authorizes the use of the short-form indictment to charge attempted first-degree murder.237

2. Solicitation

In solicitation indictments, “it is not necessary to allege with technical precision the nature of the

solicitation.” 238

3. Conspiracy

For the law regarding conspiracy to sell or deliver controlled substances indictments, see supra

p. 44. For cases pertaining to allegations regarding the date of a conspiracy offense, see supra p. 8.

Conspiracy indictments “need not describe the subject crime with legal and technical accu-

racy because the charge is the crime of conspiracy and not a charge of committing the subject

crime.”239 Thus, the court of appeals has upheld a conspiracy indictment that alleged an agreement

between two or more persons to do an unlawful act and contained allegations regarding their pur-

pose, in that case to “feloniously forge, falsely make and counterfeit a check.”240 The court rejected

the defendant’s argument that the indictment should have been quashed for failure to specifically

allege the forgery of an identified instrument.241

4. Accessory After the Fact to Felony

Accessory after the fact to a felony is not a lesser included offense of the principal felony.242 This

suggests that an indictment charging only the principal felony will be insufficient to convict for

accessory after the fact.243

235. See G.S. 15-170; State v. Gray, 58 N.C. App. 102, 106 (1982); State v. Slade, 81 N.C. App. 303, 306

(1986)

236. See Slade, 81 N.C. App. at 306 (1987) (discussing State v. Arnold, 285 N.C. 751, 755 (1974), and

describing it as a case in which the defendant was indicted for the common law felony of arson but was

convicted of the statutory felony of arson).

237. State v. Jones, 359 N.C. 832, 834-38 (2005) (noting that it is sufficient for the State to insert the

words “attempt to” into the short form language); State v. Reid, 175 N.C. App. 613, 617-18 (2006) (following

Jones).

238. State v. Furr, 292 N.C. 711, 722 (1977) (holding “indictment alleging defendant solicited another to

murder is sufficient to take the case to the jury upon proof of solicitation to find someone else to commit

murder, at least where there is nothing to indicate defendant insisted that someone other than the solicitee

commit the substantive crime which is his object”).

239. State v. Nicholson, 78 N.C. App. 398, 401 (1985) (rejecting defendant’s argument that conspiracy

to commit forgery indictment was fatally defective because it “failed to allege specifically the forgery of an

identified instrument”).

240. Id.

241. See id.

242. See State v. Jones, 254 N.C. 450, 452 (1961).

243. Compare infra n. 246 & accompanying text (discussing accessory before the fact). For a case allow-

ing amendment of an accessory after the fact indictment, see State v. Carrington, 35 N.C. App. 53, 56-58

(1978) (indictments charged defendant with being an accessory after the fact to Arthur Parrish and an


W. Participants in CrimeAn indictment charging a substantive offense need not allege the theory of acting in concert,244

aiding or abetting,245 or accessory before the fact.246 Thus, the short-form murder indictment is

sufficient to convict under a theory of aiding and abetting.247 Because allegations regarding these

theories are treated as “irrelevant and surplusage,” 248 the fact that an indictment alleges one such

theory does not preclude the trial judge from instructing the jury that it may convict on another

such theory not alleged,249 or as a principal.250

unknown black male in the murder and armed robbery of a named victim; trial court did not err by allow-

ing amendment of the indictments to remove mention of Parrish, who had earlier been acquitted).

244. See State v. Westbrook, 345 N.C. 43, 57-58 (1996).

245. See State v. Ainsworth, 109 N.C. App. 136, 143 (1993) (rejecting defendant’s argument that first

degree rape indictment was insufficient because it failed to charge her explicitly with aiding and abetting);

State v. Ferree, 54 N.C. App. 183, 184 (1981) (“[A] person who aids or abets another in the commission of

armed robbery is guilty … and it is not necessary that the indictment charge the defendant with aiding and

abetting.”); State v. Lancaster, 37 N.C. App. 528, 532-33 (1978).

246. See G.S. 14-5.2 (“All distinctions between accessories before the fact and principals … are abol-

ished.”); Westbrook, 345 N.C. at 58 (1996) (indictment charging murder need not allege accessory before the

fact); State v. Gallagher, 313 N.C. 132, 141 (1985) (indictment charging the principal felony will support trial

and conviction as an accessory before the fact).

247. State v. Glynn, 178 N.C. App. 689, 694-95 (2006).

248. State v. Estes, __ N.C. App. __, 651 S.E.2d 598 (2007).

249. Estes, __ N.C. App. __, 651 S.E.2d 598 (trial judge could charge the jury on the theory of aiding and

abetting even though indictment charged acting in concert).

250. State v. Fuller, 179 N.C. App. 61, 66-67 (2006) (where superseding indictment charged the defendant

only with aiding and abetting indecent liberties, the trial judge did not err in charging the jury that it could

convict if the defendant was an aider or abettor or a principal).


This bulletin is published and posted online by the School of Government to address issues of interest to government officials. This publica-tion is for educational and informational use and may be used for those purposes without permission. Use of this publication for commercial purposes or without acknowledgment of its source is prohibited.

To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Publications Division, School of Government, CB# 3330 Knapp-Sanders Building, UNC Chapel Hill, Chapel Hill, NC 27599-3330; e-mail [email protected]; telephone 919.966.4119; or fax 919.962.2707.

©2008School of Government. The University of North Carolina at Chapel Hill

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© 2011 School of Government. The University of North Carolina at Chapel Hill

Supplement to AOBJ 2008/03 on Indictments Jessica Smith, UNC School of Government

January 13, 2012 General Matters Date of Offense State v. Khouri, __ N.C. App. __, __ S.E.2d __ (Aug. 16, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMDMwLTEucGRm). In sexual assault case involving a child victim, there was a fatal variance between the indictment, that alleged an offense date of March 30, 2000 – December 31, 2000, and the evidence, which showed that the conduct occurred in the Spring of 2001. The State never moved to amend the indictment. In Re A.W., __ N.C. App. __, 706 S.E.2d 305 (Feb. 15, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC03MTMtMS5wZGY). There was no fatal variance between a juvenile delinquency petition for indecent liberties alleging an offense date of November 14, 2008, and the evidence which showed an offense date of November 7-9, 2008. The juvenile failed to show that his ability to present an adequate defense was prejudiced by the variance. State v. Hueto, 195 N.C. App. 67 (Jan. 20, 2009). No fatal variance between the period of time alleged in the indictment and the evidence introduced at trial. The defendant was indicted on six counts of statutory rape: two counts each for the months of June, August, and September 2004. Assuming that the victim’s testimony was insufficient to prove that the defendant had sex with her twice in August, the court held that the state nevertheless presented sufficient evidence that the defendant had sex with her at least six times between June 2004 and August 12, 2004, including at least four times in July. State v. Pettigrew, __ N.C. App. __, 693 S.E.2d 698 (June 1, 2010) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8wOS0xMjI2LTEucGRm). In a child sex case, there was substantial evidence that the defendant abused the victim during the period alleged in the indictment and specified in the bill of particulars (Feb. 1, 2001 – Nov. 20, 2001) and at a time when the defendant was sixteen years old and thus could be charged as an adult. The evidence showed that the defendant abused the victim for a period of years that included the period alleged and that the defendant, who turned sixteen on January 23, 2001, was sixteen during the entire time frame alleged. Relying on the substantial evidence of acts committed while the defendant was sixteen, the court also rejected the defendant’s argument that by charging that the alleged acts occurred “on or about” February 1, 2001 – November 20, 2001, the indictment could have encompassed acts committed before he turned sixteen. Delay in Obtaining Indictment State v. Martin, 195 N.C. App. 43 (Jan. 20, 2009). No due process violation resulted from the delay between commission of the offenses (2000) and issuance of the indictments (2007). Although the department of social services possessed the incriminating photos and instituted an action to terminate parental rights in 2001, the department did not then share the photos or report evidence of abuse to law enforcement or the district attorney. Law enforcement was not informed about the photos until 2007. The department’s delay was not attributable to the state.

2


Short Form Indictments State v. Freeman, __ N.C. App. __, 690 S.E.2d 17 (Mar. 2, 2010). Short-form murder indictment put the defendant on notice that the State might proceed on a theory of felony-murder. State v. Thomas, 196 N.C. App. 523 (May 5, 2009). The trial court did not err by denying the defendant’s request to submit the lesser offense of assault on a female when the defendant was charged with rape using the statutory short form indictment. The defense to rape was consent. The defendant argued on appeal that the jury could have found that the rape was consensual but that an assault on a female had occurred. The court rejected that argument reasoning that the acts that the defendant offered in support of assault on a female occurred separately from those constituting rape. Names Generally State v. Johnson, __ N.C. App. __, 690 S.E.2d 707 (Mar. 2, 2010). No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by both a married and maiden name, the indictment sufficiently identified the purchaser. The court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide.” Victim’s Name State v. McKoy, 196 N.C. App. 650 (May 5, 2009). Rape and sexual offense indictments were not fatally defective when they identified the victim solely by her initials, “RTB.” The defendant was not confused regarding the victim’s identity; because the victim testified at trial and identified herself in open court, the defendant was protected from double jeopardy. In Re M.S., 199 N.C. App. 260 (Aug. 18, 2009). Distinguishing McKoy (discussed immediately above), the court held that juvenile petitions alleging that the juvenile committed first-degree sexual offense were defective because they failed to name a victim. The petitions referenced the victim as “a child,” without alleging the victims’ names. Punishment/Sentencing Issues State v. Curry, __ N.C. App. __, 692 S.E.2d 129 (April 20, 2010). Indictment alleging that the defendant discharged a barreled weapon into an occupied residence properly charged the Class D version of this felony (shooting into occupied dwelling or occupied conveyance in operation) even though it erroneously listed the punishment as the Class E version (shooting into occupied property). State v. Carter, __ N.C. App. __, __ S.E.2d __ (June 21, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC05NzQtMS5wZGY=). Sentencing factors that might lead to an aggravated sentence need not be alleged in the indictment. Statutory Reference

3


State v. Burge, __ N.C. App. __, 710 S.E.2d 446 (May 17, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC00OTMtMS5wZGY=). Because an arrest warrant charged the defendant with a violation of G.S. 67-4.2 (failing to confine a dangerous dog), it could not support a conviction for a violation of G.S. 67-4.3 (attack by a dangerous dog). Even though the warrant cited G.S. 67-4.2, it would have been adequate if it had alleged all of the elements of a G.S. 67-4.3 offense. However, it failed to do so as it did not allege that the injuries required medical treatment costing more than $100. Specific Offenses Accessory After the Fact State v. Cole, __ N.C. App. __, 703 S.E.2d 842 (Jan. 4, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMzktMS5wZGY). An indictment charging accessory after the fact to first-degree murder was sufficient to support a conviction of accessory after the fact to second-degree murder. The indictment alleged that a felony was committed, that the defendant knew that the person he assisted committed that felony, and that he rendered personal assistance to the felon; it thus provided adequate notice to prepare a defense and protect against double jeopardy. Conspiracy State v. Billinger, __ N.C. App. __, __ S.E.2d __ (July 5, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xNDEyLTEucGRm). A conspiracy to commit armed robbery indictment was defective when it did not allege an agreement to commit an unlawful act. The court rejected the State’s argument that the indictment's caption, which identified the charge as "Conspiracy to Commit Robbery with a Dangerous Weapon," and the indictment's reference to the offense being committed in violation of G.S. 14-2.4 (governing punishment for conspiracy to commit a felony) saved the indictment. State v. Pringle, __ N.C. App. __, 694 S.E.2d 505 (June 15, 2010). When a conspiracy indictment names specific individuals with whom the defendant is alleged to have conspired and the evidence shows the defendant may have conspired with others, it is error for the trial court to instruct the jury that it may find the defendant guilty based upon an agreement with persons not named in the indictment. However, the jury instruction need not specifically name the individuals with whom the defendant was alleged to have conspired as long as the instruction comports with the material allegations in the indictment and the evidence at trial. In this case, the indictment alleged that the defendant conspired with Jimon Dollard and an unidentified male. The trial court instructed the jury that it could find the defendant guilty if he conspired with “at least one other person.” The evidence showed that the defendant and two other men conspired to commit robbery. One of the other men was identified by testifying officers as Jimon Dollard. The third man evaded capture and was never identified. Although the instruction did not limit the conspiracy to those named in the indictment, it was in accord with the material allegations in the indictment and the evidence presented at trial and there was no error. Assault In Re D.S., 197 N.C. App. 598 (June 16, 2009). No fatal variance occurred when a juvenile petition alleged that the juvenile assaulted the victim with his hands and the evidence established that he touched her with an object.

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Assault by Strangulation State v. Williams, __ N.C. App. __, 689 S.E.2d 412 (Dec. 8, 2009). Even if there was a fatal variance between the indictment, which alleged that the defendant accomplished the strangulation by placing his hands on the victim’s neck, and the evidence at trial, the variance was immaterial because the allegation regarding the method of strangulation was surplusage.

Assault on Government Officer

State v. Noel, __ N.C. App. __, 690 S.E.2d 10 (Mar. 2, 2010). Indictment charging assault on a government officer under G.S. 14-33(c)(4) need not allege the specific duty the officer was performing and if it does, it is surplusage. State v. Roman, __ N.C. App. __, 692 S.E.2d 431 (May 4, 2010). There was no fatal variance between a warrant charging assault on a government officer under G.S. 14-33(c)(4) and the evidence at trial. The warrant charged that the assault occurred while the officer was discharging the duty of arresting the defendant for communicating threats but at trial the officer testified that the assault occurred when he was arresting the defendant for being intoxicated and disruptive in public. The pivotal element was whether the assault occurred while the officer was discharging his duties; what crime the arrest was for is immaterial.

Malicious Conduct by Prisoner State v. Noel, __ N.C. App. __, 690 S.E.2d 10 (Mar. 2, 2010). Indictment charging malicious conduct by prisoner under G.S. 14-258.4 need not allege the specific duty the officer was performing and if it does, it is surplusage. Child Abuse State v. Lark, 198 N.C. App. 82 (July 7, 2009). An indictment charging felony child abuse by sexual act under G.S. 14-318.4(a2) is not required to allege the particular sexual act committed. Language in the indictment specifying the sexual act as anal intercourse was surplusage. Indecent Liberties State v. Carter, __ N.C. App. __, 707 S.E.2d 700 (Mar. 1, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC02NDgtMS5wZGY). In an indecent liberties case, the trial judge’s jury instructions were supported by the indictment. The indictment tracked the statute and did not allege an evidentiary basis for the charge. The jury instructions, which identified the defendant’s conduct as placing his penis between the child’s feet, was a clarification of the evidence for the jury. Injury to Real Property State v. Lilly, 195 N.C. App. 697 (Mar. 17, 2009). No fatal variance between an indictment charging injury to real property and the evidence at trial. The indictment incorrectly described the lessee of the real property as its owner. The indictment was sufficient because it identified the lawful possessor of the

5


property. Kidnapping State v. Yarborough, 198 N.C. App. 22 (July 7, 2009). Although a kidnapping indictment need not allege the felony intended, if it does, the State is bound by that allegation. Here, the indictment alleged confinement and restraint for the purpose of committing murder, but the evidence showed that the confinement or restraint was for the purpose of a committing a robbery. The State was bound by the allegation and had to prove the confinement and restraint was for the purposes of premeditated and deliberate murder (it could not rely on felony-murder). Larceny State v. Abbott, __ N.C. App. __, __ S.E.2d __ (Dec. 20, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMS02NTgtMS5wZGY=). (1) In a larceny by employee case, the trial court erred by allowing the State to amend the bill of indictment. The indictment stated that the defendant was an employee of “Cape Fear Carved Signs, Incorporated.” The State moved to amend by striking the word “Incorporated,” explaining that the business was a sole proprietorship of Mr. Neil Schulman. The amendment was a substantial alteration in the charge. (2) The court rejected the State’s argument that the defendant waived his ability to contest the indictment by failing to move to dismiss it at trial, reiterating that jurisdictional issues may be raised at any time. In re D.B., __ N.C. App. __, __ S.E.2d __ (Aug. 16, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xNDc2LTEucGRm). A juvenile petition alleging felony larceny was fatally defective because it contained no allegation that the alleged victim, the Crossings Golf Club, was a legal entity capable of owning property. State v. McNeil, __ N.C. App. __, 707 S.E.2d 674 (Mar. 1, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC00NTYtMS5wZGY). An indictment for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective. State v. Patterson, 194 N.C. App. 608 (Jan 6, 2009). Larceny indictment alleging victim’s name as “First Baptist Church of Robbinsville” was fatally defective because it did not indicate that the church was a legal entity capable of owning property. State v. Gayton-Barbossa, 197 N.C. App. 129 (May 19, 2009). Fatal variance in larceny indictment alleging that the stolen gun belonged to an individual named Minear and the evidence showing that it belonged to and was stolen from a home owned by an individual named Leggett. Minear had no special property interest in the gun even though the gun was kept in a bedroom occupied by both women. Burglary and Related Offenses State v. McCormick, __ N.C. App. __, 693 S.E.2d 195 (May 18, 2010). No fatal variance existed when a burglary indictment alleged that defendant broke and entered “the dwelling house of Lisa McCormick located at 407 Ward’s Branch Road, Sugar Grove Watauga County” but the evidence at trial indicated that the house number was 317, not 407. On this point, the court followed State v. Davis, 282 N.C. 107 (1972) (no fatal variance where indictment alleged that the defendant broke and entered “the dwelling house of Nina Ruth Baker located at 840 Washington Drive, Fayetteville, North Carolina,” but the

6


evidence showed that Ruth Baker lived at 830 Washington Drive). The court also held that the burglary indictment was not defective on grounds that it failed to allege that the breaking and entering occurred without consent. Following, State v. Pennell, 54 N.C. App. 252 (1981), the court held that the indictment language alleging that the defendant “unlawfully and willfully did feloniously break and enter” implied a lack of consent. State v. Chillo, __ N.C. App. __, 705 S.E.2d 394 (Dec. 21, 2010) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8xMC02MjItMS5wZGY). (1) An indictment for breaking or entering a motor vehicle alleging that the vehicle was the personal property of “D.L. Peterson Trust” was not defective for failing to allege that the victim was a legal entity capable of owning property. The indictment alleged ownership in a trust, a legal entity capable of owning property. (2) Because the State indicted the defendant for breaking or entering a motor vehicle with intent to commit larceny therein, it was bound by that allegation and had to prove that the defendant intended to commit larceny. State v. Clagon, __ N.C. App. __, 700 S.E.2d 89 (Oct. 5, 2010) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8xMC0yOTktMS5wZGY=). A burglary indictment does not need to identify the felony that the defendant intended to commit inside the dwelling. State v. Speight, __ N.C. App. __, __ S.E.2d __ (June 21, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xNDY3LTEucGRm). A burglary indictment alleging that the defendant intended to commit “unlawful sex acts” was not defective. State v. Clark, __ N.C. App. __, 702 S.E.2d 324 (Dec. 7, 2010) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8xMC0yMzUtMS5wZGY). (1) Although the State is not required to allege the felony or larceny intended in an indictment charging breaking or entering a vehicle, if it does so, it will be bound by that allegation. (2) An indictment properly alleges the fifth element of breaking and entering a motor vehicle—with intent to commit a felony or larceny therein—by alleging that the defendant intended to steal the same motor vehicle. Weapons Offenses Carrying Concealed State v. Bollinger, 361 N.C. 251 (May 1, 2009). No fatal variance between indictment and the evidence in a carrying a concealed weapon case. After an officer discovered that the defendant was carrying knives and metallic knuckles, the defendant was charged with carrying a concealed weapon. The indictment identified the weapon as “a Metallic set of Knuckles.” The trial court instructed the jury concerning “one or more knives.” The court, per curiam and without an opinion, summarily affirmed the ruling of the North Carolina Court of Appeals that the charging language, “a Metallic set of Knuckles,” was unnecessary surplusage, and even assuming the trial court erred in instructing on a weapon not alleged in the charge, no prejudicial error required a reversal where there was evidence that the defendant possessed knives. Discharging Weapon Into Property State v. Curry, __ N.C. App. __, 692 S.E.2d 129 (April 20, 2010). Fact that indictment charging discharging a barreled weapon into an occupied dwelling used the term “residence” instead of the statutory term “dwelling” did not result in a lack of notice to the defendant as to the relevant charge.

7


Felon in Possession State v. Taylor, __ N.C. App. __, 691 S.E.2d 755 (April 20, 2010). Felon in possession indictment that listed the wrong date for the prior felony conviction was not defective, nor was there a fatal variance on this basis (indictment alleged prior conviction date of December 8, 1992 but judgment for the prior conviction that was introduced at trial was dated December 18, 1992). Possession of Weapons on School Grounds In Re J.C., __ N.C. App. __, 695 S.E.2d 168 (July 6, 2010) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8xMC0zMS0xLnBkZg==). A juvenile petition sufficiently alleged that the juvenile was delinquent for possession of a weapon on school grounds in violation of G.S. 14-269.2(d). The petition alleged that the juvenile possessed an “other weapon,” specified as a “steel link from chain.” The evidence showed that the juvenile possessed a 3/8-inch thick steel bar forming a C-shaped “link” about 3 inches long and 1½ inches wide. The link closed with a ½-inch thick bolt and the object weighed at least 1 pound. The juvenile could slide his fingers through the link so that 3-4 inches of the bar could be held securely across his knuckles and used as a weapon. Finding the petition sufficient the court stated: “the item . . . is sufficiently equivalent to what the General Assembly intended to be recognized as ‘metallic knuckles’ under [the statute].” Drug Offenses Drug Name State v. LePage, __ N.C. App. __, 693 S.E.2d 157 (May 18, 2010). Indictments charging the defendant with drug crimes and identifying the controlled substance as “BENZODIAZEPINES, which is included in Schedule IV of the North Carolina Controlled Substances Act[.]” were defective. Benzodiazepines is not listed in Schedule IV. Additionally, benzodiazepine describes a category of drugs, some of which are listed in Schedule IV and some of which are not. Sale and Delivery of a Controlled Substance State v. Johnson, __ N.C. App. __, 690 S.E.2d 707 (Mar. 2, 2010). No fatal variance where an indictment charging sale and delivery of a controlled substance alleged that the sale was made to “Detective Dunabro.” The evidence at trial showed that the detective had since gotten married and was known by the name Amy Gaulden. Because Detective Dunabro and Amy Gaulden were the same person, known by both married and maiden name, the indictment sufficiently identified the purchaser. The court noted that “[w]here different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide.” Manufacture of a Controlled Substance State v. Hinson, 354 N.C. 414 (Oct. 8, 2010) (http://appellate.nccourts.org/opinions/?c=1&pdf=MjAxMC8xNzZBMTAtMS5wZGY=). For the reasons stated in the dissenting opinion below, the court reversed State v. Hinson, __ N.C. App. __, 691 S.E.2d 63 (April 6, 2010). The defendant was indicted for manufacturing methamphetamine by “chemically combining and synthesizing precursor chemicals to create methamphetamine.” However, the trial judge instructed the jury that it could find the defendant guilty if it found that he produced, prepared,

8


propagated, compounded, converted or processed methamphetamine, either by extraction from substances of natural origin or by chemical synthesis. The court of appeals held, over a dissent, that this was plain error as it allowed the jury to convict on theories not charged in the indictment. The dissenting judge concluded that while the trial court’s instructions used slightly different words than the indictment, the import of both the indictment and the charge were the same. The dissent reasoned that the manufacture of methamphetamine is accomplished by the chemical combination of precursor elements to create methamphetamine and that the charge to the jury, construed contextually as a whole, was correct. Maintaining a Dwelling State v. Garnett, __ N.C. App. __, 706 S.E.2d 280 (Feb. 15, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMTEtMS5wZGY). Theories included in the trial judge’s jury instructions were supported by the indictment. The indictment charged the defendant with maintaining a dwelling “for keeping and selling a controlled substance.” The trial court instructed the jury on maintaining a dwelling “for keeping or selling marijuana.” The use of the conjunctive “and” in the indictment did not require the State to prove both theories alleged. Conspiracy to Traffic State v. Cobos, __ N.C. App. __, __ S.E.2d __ (May 3, 2011) ( (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC01NTctMS5wZGY=). The trial court committed reversible error by allowing the State to amend an indictment charging conspiracy to engage in “trafficking to deliver Cocaine” to add the following language: “to deliver 28 grams or more but less than 200 grams of cocaine.” To allege all of the essential elements, an indictment for conspiracy to traffic in cocaine must allege that the defendant facilitated the transfer of 28 grams or more of cocaine. Here, the indictment failed to specify the amount of cocaine. The court also concluded that a defendant cannot consent to an amendment that cures a fatal defect; the issue is jurisdictional and a party cannot consent to subject matter jurisdiction. Motor Vehicle Offenses Impaired Driving State v. Clowers, __ N.C. App. __, __ S.E.2d __ (Dec. 20, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMS01OTAtMS5wZGY=). In an impaired driving case, citation language alleging that the defendant acted “willfully” was surplusage. Felony Speeding to Elude State v. Leonard, __ N.C. App. __, __ S.E.2d __ (July 19, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMzg3LTEucGRm). An indictment charging felonious speeding to elude arrest and alleging an aggravating factor of reckless driving was not required to specify the manner in which the defendant drove recklessly. Habitual Impaired Driving State v. White, __ N.C. App. __, 689 S.E.2d 595 (Feb. 16, 2010). The trial court did not err by allowing the State to amend a habitual impairing driving indictment that mistakenly alleged a seven-year look-back period (instead of the current ten-year look-back), where all of the prior convictions alleged in the

9


indictment fell within the ten-year period. The language regarding the seven-year look-back was surplusage. Fraud & Forgery State v. Moore, __ N.C. App. __, 705 S.E.2d 797 (Feb. 15, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC03NjQtMS5wZGY). Stating in dicta that an indictment alleging obtaining property by false pretenses need not identify a specific victim. State v. Guarascio, __ N.C. App. __, 696 S.E.2d 704 (July 20, 2010) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMC8wOS04ODMtMS5wZGY=). There was no fatal variance between a forgery indictment and the evidence presented at trial. The indictment charged the defendant with forgery of “an order drawn on a government unit, STATE OF NORTH CAROLINA, which is described as follows: NORTH CAROLINA UNIFORM CITATION.” The evidence showed that the defendant, who was not a law enforcement officer, issued citations to several individuals. The court rejected the defendant’s arguments that the citations were not “orders” and were not “drawn on a government unit” because he worked for a private police entity. G.S. 14-3 Misdemeanor Sentencing Enhancement State v. Blount, __ N.C. App. __, 703 S.E.2d 921 (Jan. 18, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0zNTItMS5wZGY). An obstruction of justice indictment properly charged a felony when it alleged that the act was done “with deceit and intent to interfere with justice.” G.S. 14-3(b) provides that a misdemeanor receives elevated punishment when done with “deceit and intent to defraud.” The language “deceit and intent to interfere with justice” adequately put the defendant on notice that the State intended to seek a felony conviction. Additionally, the indictment alleged that the defendant acted “feloniously.” Habitual Felon State v. Griffin, __ N.C. App. __, __ S.E.2d __ (July 19, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMjc0LTEucGRm). A habitual felon indictment was not defective where it described one of the prior felony convictions as “Possess Stolen Motor Vehicle” instead of Possession of Stolen Motor Vehicle. The defendant’s argument was “hypertechnical;” the indictment sufficiently notified the defendant of the elements of the offense. Moreover, it referenced the case number, date, and county of the prior conviction. Waiver of Fatal Variance Issue State v. Curry, __ N.C. App. __, 692 S.E.2d 129 (April 20, 2010). On appeal, the defendant argued that there was a fatal variance between the indictment charging him with possession of a firearm and the evidence introduced at trial. Specifically, the defendant argued there was a variance as to the type of weapon possessed. By failing at the trial level to raise fatal variance or argue generally about insufficiency of the evidence as to the weapon used, the defendant waived this issue for purposes of appeal.

10


No Waiver of Fatal Defect State v. Blount, __ N.C. App. __, 703 S.E.2d 921 (Jan. 18, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0zNTItMS5wZGY). A defendant may challenge the sufficiency of an indictment even after pleading guilty to the charge at issue. Retrial State v. Rahaman, __ N.C. App. __, 688 S.E.2d 58 (Jan. 19, 2010). Citing State v. Johnson, 9 N.C. App. 253 (1970), and noting in dicta that the granting of a motion to dismiss due to a material fatal variance between the indictment and the proof presented at trial does not preclude a retrial for the offense alleged on a proper indictment. Superseding Indictment State v. Fox, __ N.C. App. __, ___ S.E.2d __ (Oct. 4, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xNDg1LTEucGRm). Because the defendant was never arraigned on a second indictment (that did not indicate that it was a superseding indictment), the second indictment did not supersede the first indictment. State v. Twitty, __ N.C. App. __, 710 S.E.2d 421 (May 17, 2011) (http://appellate.nccourts.org/opinions/?c=2&pdf=MjAxMS8xMC0xMzIwLTEucGRm). The trial court’s failure to dismiss the original indictment after a superseding indictment was filed did not render the superseding indictment void or defective.

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Ifyouhavedifficultyobtainingcompletediscovery,notifytheADAandcontactCrimeLabLegalCounsel:JoyStrickland–[email protected],(919)662‐4509ext.4400

UnderstandingLabReports Onceyouhavereceiveddiscovery,readthelabreportstodetermine

o Whattestresultsdoyousee?o Whattestshavebeenperformed?o Whattestshavenotbeenperformed?o Ask:DoIunderstandwhatthistestcanandcannotprove?

NewLabProcedures:TheStateCrimeLabputnewproceduresintoeffectforevery

sectionofthelabonSept.17,2012.o Independentexpertshavereviewedtheseprocedures.Theircommentsareinyour

programmaterials.o Theseproceduresreplacedtheexistingprocedures.YouMUSTrequestin

discoverytheproceduresthatwereineffectatthetimethelabanalysiswasdoneinyourcase.

o ThenewlabproceduresarepostedontheNCDOJwebsite:http://www.ncdoj.gov/About‐DOJ/State‐Bureau‐of‐Investigation/Crime‐Lab/ISO‐Procedures.aspx

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o Tolocatehistoricalprocedures,gototheNCIDSForensicswebsite(thoughitis

preferabletogetthemthroughdiscovery):http://www.ncids.com/forensic/sbi/sbi.asp

o ManylocalcrimelabsarealsointheprocessofattainingISOaccreditation,whichmeanstheywillalsoberequiredtohavewrittenprocedures.

o Ifyouhavequestionsabouthowtouselabproceduresinyourcase,callSarahRackleyOlsonat919‐354‐7217.

Presumptivevs.ConfirmatoryTests:Youshoulddeterminewhetherthetestsdonein

yourcasewerepresumptiveorconfirmatorytests.o Presumptivetests(akascreeningtests,preliminarytestsorfieldtests)can

establishthepossibilitythataspecificsubstanceispresento Confirmatorytestscanconclusivelyidentifyaspecificsubstanceo FreeVirtualCLE:PresumptiveandConfirmatoryForensicTests

http://www.sog.unc.edu/node/2076

LabTours:Attendoneof3upcominglabtours‐Dates:April26,June14andJuly12,2013(RegionalLabtourdatesTBD).RSVP:OmbudsmantotheSBIStormieForte‐[email protected]

WorkingwithExperts DatabaseofExperts‐providesinformationonover300stateanddefenseforensicscience

experts:http://www.ncids.com/forensic/experts/experts.shtml

“GuidetoWorkingwithExperts”(inmaterials)o Vettinganexperto Referralquestionso Questionstoaskduringyourfirstconversationwiththeexpert

AdmissibilityofLabReportsandExpertTestimony

ConfrontationClause‐Under6thAmendmenttotheUSConstitution,theaccusedhasrighttobeconfrontedbywitnessagainsthim.

o Crawfordv.Washington(2004)‐TestimonialhearsaystatementbywitnesswhoisnotsubjecttocrossattrialisnotadmissibleUNLESS:thewitnessisunavailableandtherewasaprioropportunityforcross.

o Melendez‐Diazv.Massachusetts(2009)‐forensiclaboratoryreportsaretestimonialandthussubjecttoCrawford.

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o NoticeandDemandStatutes(N.C.Gen.Stat.90‐95)–theStatenotifiesDefendantincertaintimeperiodofintenttointroducereport.Defendanthastimeperiodtofilewrittenobjectionwithcourtanddemandthatanalystappear. IfDefendantdoesnotobject,waivestherightandreportcomesinwithout

theanalystbeingpresentforcross.o SubstituteAnalyst‐NCcourtshavefounduseofasubstituteanalystviolates

Defendant’srighttoconfrontwheretestifyinganalystissimplyreadingorsummarizingreportofpersonwhodidthetesting.Statev.Locklear,363N.C.438(2009).

o Williamsv.Illinois(2012)‐Fractureddecision.Takehomemessage:Objectifyouhavesubstituteanalystcaseandprosecutorarguesreportsareadmissiblebecausetheyarenotbeingofferedforthetruth,butarebeingofferedasbasisofexpertopinion. SeeJessicaSmith’sBulletin:

http://sogpubs.unc.edu/electronicversions/pdfs/aojb1203.pdf AdmissibilityofExpertTestimony(Rule702(a))

o Judgeasgatekeeper.Isthescientificevidencerelevantandreliableorisitjunk? Bepreparedtoconductrigorousscrutinyofexpertstochallenge

admissibility,viadiscovery,motions,andvoirdirepractices http://ncforensics.wordpress.com/2011/08/17/legislative‐change‐

regarding‐expert‐testimony/

FreeOnlineForensicTrainingAvailableTherearelinkstoover100freeonlinetrainingsinthetrainingsectiontheIDSForensicswebsite.Topicsincludecrimesceneinvestigation,DNAevidence,childabuse,toxicology,workingwithexperts,andmanymore.Someofthetrainingorganizationsrequireyoutoregisterbeforeyoutakethetraining,butitjusttakesafewminutestosignup.

WaystoStayInformed: Website:http://www.ncids.com/forensic Blog:http://ncforensics.wordpress.com/ Twitter:@IDSforensics Availableforcaseconsultation:

o [email protected]‐354‐7217

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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 09 CRS XXXX STATE OF NORTH CAROLINA ) ) vs. ) MOTION FOR DISCOVERY ) (LABORATORY/SCIENTIFIC DEFENDANT ) EVIDENCE) ) Defendant. )

____________________________________________________________

NOW COMES the Defendant, by and through the undersigned counsel, ____, and hereby moves this Honorable Court, pursuant to the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; Article I §§ 19 and 23 of the North Carolina Constitution; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny; N.C.Gen.Stat. §§ 15A-903(a)(2); State v. Cunningham, 108 N.C.App. 185, 423 S.E.2d 802 (1992); State vs. Dunn, 154 N.C.App. 1, 571 S.E.2d 650 (2002); State v. Fair, 164 N.C.App. 770 (2004); and State v. Edwards, 174 N.C.App. 490, 621 S.E.2d 333 (2005), for an Order requiring the State to disclose to the defense the underlying basis for the opinions of any witnesses the State intends to call to present evidence of a scientific nature in these matters. In support of the foregoing Motion, the Defendant would show unto the Court as follows:

1. Undersigned Counsel was appointed to represent the Defendant in July, 2010 on charges of Second Degree Murder, Felony Aggravated Serious Injury by Motor Vehicle, Felony Hit and Run, DWI, and Habitual Felon in the above file numbers.

2. Based upon communications with the prosecution in this matter, it is

known that these matters are set for trial beginning DATE.

3. On DATE, the prosecution filed a Notice of Intent to Introduce Expert Testimony in 09 CRS XXXX, providing the defense with notice of the State’s intent to introduce the expert testimony of AGENT, in the area of forensic chemistry, employed by the North Carolina State Bureau of Investigation.

4. Upon information and belief, AGENT is the same individual who tested

the defendant’s blood for the presence of ethyl alcohol and drugs.

5. The prosecution has previously provided a laboratory report of the North Carolina State Bureau of Investigation dated DATE in which AGENT

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concluded that the Defendant’s blood contained .XX grams of alcohol per 100 milliliters of whole blood, and confirmed the presence of 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid (THCA).

6. Pursuant to the legal authorities cited in the preamble of this Motion, the Defendant hereby moves the Court to enter and Order commanding the prosecution to provide the following information within ten days prior to the trial of these matters:

a. Any and all scientific conclusions the State intends to offer at trial; b. Any and all bases for said scientific conclusions;

c. Any and all procedures and tests used to reach said conclusions;

d. Any and all data generated by the procedures and used to reach

said conclusions;

e. Any and all procedures the State’s expert should have used to reach said conclusions; such procedures generally being termed “protocols.”

f. Any and all information concerning how the samples (evidence)

were collected and handled;

g. Any and all information concerning the chain of custody and transfer of all evidence;

h. Any and all laboratory receiving records (records documenting the

date, time, and condition of receipt of the evidence in question; laboratory assigned identifiers; storage location);

i. Any and all information concerning procedures for sub-sampling

and contamination control;

j. Copies of all technical procedures in effect at the time the test was performed during sample screening and confirmation, including, but not limited to: sample preparation, sample analysis, data reporting and instrument operation;

k. Copies of proficiency results and testing for each analyst and

technician responsible for preparation or analysis of subject specimens, including, but not limited to: raw data and reported results, target values and acceptance ranges, performance scores, and all related correspondence;

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l. Copies of all documentation related to corrective actions for each

analyst and technician responsible for preparation of analysis of subject specimens;

m. Copies of the corrective action report and corrective action

tracking, quality assurance review tracking, non-conformity tracking, and unexpected results for the Drug Chemistry Section and all sections of the State Crime Lab;

n. Copies of certification exam results for each analyst, technician

and reviewer responsible for preparation or analysis of subject specimens or review of analysis, including, but not limited to: each letter specifying the results of the exam and a list of topics where the analyst missed more than 20% of the questions (the second page of the second letter from the American Board of Criminalistics);

o. Copies of any ISO Deviation, Deviation Request Form, or

documentation related to current or archived deviations from lab procedures;

p. Any and all information related to traceability documentation for

standards and reference materials used during analysis, including unique identifications, origins, dates of preparation and use, composition and concentration of prepared materials, certification or traceability records from suppliers, assigned shelf lives and storage conditions;

q. Any and all information related to sample preparation records,

including dates and conditions of preparation, responsible analyst, procedural reference, purity, concentration and origins of solvents, reagents, and control materials prepared and used, samples processed concurrently, and extract volume;

r. Copies of all bench notes, log books, and any other records

pertaining to case samples or instruments; records documenting observations, notations, or measurements regarding case testing;

s. Any and all information related to instrument run logs with

identification of all standards, reference materials, sample blanks, rinses, and controls analyzed during the day/shift with subject samples (as appropriate run sequence, origins, times of analysis and aborted run sequences);

t. Copies of any and all records on instrument operating conditions

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and criteria for variables, including but not limited to: GC column, instrument file identification, tuning criteria, instrument performance check, initial calibration, continuing calibration checks, calibration verification;

u. Records of instrument maintenance status and activities for

instruments used in the testing of the substance at issue in this case, documenting routine as-needed maintenance activities in the four weeks prior to the testing of the substance at issue in this case;

v. Raw data for complete measurement sequence (opening and

closing quality control included) that includes the subject samples.

w. A description of the library used for spectral matches for the purpose of qualitative identification of controlled substances, including source(s) and number(s) of reference spectra;

x. Copies of records documenting computation of the SBI Lab’s

theoretical production yield, including the basis for the computation and the algorithm used;

y. Copies of the procedures for operation and calibration checks of

analytical balance used to weigh the substance at issue in this case;

z. Copies of results of calibration checks and documentation of mass traceability for gravimetric determinations;

aa. Copies of results of contamination control surveys for trace level

analytes relevant to test methods and the time of analysis, including sample design and analytical procedures;

bb. Copies of any and all records and results of internal review of

subject data;

cc. Copies of any and all method validation records documenting the laboratory’s performance characteristics for qualitative identification and quantitative determinations of the controlled substances, including, but not limited to, data documenting specificity, accuracy, precision, linearity, and method detection limits;

dd. Copies of the SBI Lab’s Quality Manual in effect at the time the

subject samples were tested as well as the laboratory’s most recent Quality Manual (i.e., the document(s) that describe the laboratory’s quality objects and policies);

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ee. Copies of the SBI Lab’s technical or operational procedures in effect at the time the subject samples were tested (often termed Standard Operating Procedures, for analytical laboratory operations) as well as the laboratory’s most recent technical or operational procedures for analytes detected in subject samples;

ff. A copy of the NC SBI lab’s ASCLD-LAB application for

accreditation, and most recent Annual Accreditation Review Report;

gg. A copy of the statement of qualifications of each analyst and/or

technician responsible for processing case samples to include all names, locations, and jurisdictions of cases in which said personnel testified concerning the same substances found in the present case;

hh. A copy of the NC SBI lab’s ASCLD-LAB on-site inspection

report, as well as any reports of the on-site inspections by any other testing laboratory audit organization;

ii. A copy of any and all internal audit, staff inspection, or any other

inspection report generated during the period the subject samples were tested;

jj. A list of capital instrumentation in the laboratory at the time

subject testing was performed, including manufacturer, model number, and major accessories;

kk. A copy of the Drug Chemistry Section Procedures Manual; and

ll. A copy of the Drug Chemistry Section Training Manual.

7. The requested information/documentation is critical to ensuring that the

Defendant’s rights to effective assistance of counsel, confrontation and cross-examination, and due process are provided.

8. At trial, the State intends to introduce expert opinion regarding the

substance alleged to be cocaine. As the State’s expert has performed experiments and tests on the substance alleged to be cocaine (in order to render opinion that said substance is, in fact, cocaine), the Defendant would be prejudiced in the trial of these matters if the methods and procedures used by the expert to reach said opinion were not disclosed to the defense.

9. In order to be able to prepare for cross-examination of the State’s expert,

and to prepare for cross-examination of the State’s expert, the Defendant must have access to the information outlined in paragraphs 10(a – hh)

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above.

10. If the Defendant is not given access to the information outlined in paragraphs 10(a – hh) above, the lack of such access will result in a denial of the Defendant’s rights to effective assistance of counsel, confrontation and cross-examination, and due process of law.

11. In State v. Cunningham, 108 N.C.App. 185, 423 S.E.2d 802 (1992), the

Court of Appeals, in holding that defendants are entitled to “pretrial discovery of not only conclusory lab report, but also of any tests performed or procedures utilized…to reach such conclusion”, the Court also held the scope of discovery to encompass the materials necessary to enable a defendant to determine that “the tests performed were appropriate and to become familiar with the test procedures.” (citing 2 A.B.A. Standards for Criminal Justice, Commentary to Standard 11-2.1(a)(iv)2d.ed. 1980 & Supp. 1986).

12. In State v. Dunn, 154 N.C.App. 1, 571 S.E.2d 650 (2002), the defendant

argued that the trial court erred “in failing to provide defendant discovery information pertaining to laboratory protocols, incidences of false positive results, quality control and quality assurance, and proficiency tests of the State Bureau of Investigation laboratory…”

13. In Dunn, the Court of Appeals said the defendant was entitled to such

information and ordered a new trial.

14. In order to ensure that the Defendant’s constitutional rights are afforded, the Court should order the State to disclose to the defense all of the information outlined in paragraphs 10(a – hh) above.

WHEREFORE, the Defendant respectfully prays unto this Court for the following relief: 1. That the Court enter an Order requiring the prosecution to provide the

defense with the information outlined in paragraphs 10 (a – hh) above; and 2. For such other and further relief to which the Defendant may be entitled

and which the Court may deem just and proper.

This the ____ day of _________________, 2010.

By: ________________________________

NORTH CAROLINA FILE NUMBER: 09-CRS-______PITT COUNTY

FILM NUMBER: ______________

IN THE GENERAL COURT OF JUSTICESUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA }}

vs }}

LAURA JANE DOE, }Defendant }

______________________________________________________________________________

MOTION FOR INDEPENDENT TESTING______________________________________________________________________________

NOW COMES the defendant, by and through counsel, and respectfully moves thisHonorable Court for the entry of an Order requiring the State to produce for the undersigned thecomplete records made by any scientists, forensic experts, or other experts who either performedor are responsible for the tests or experiments performed on all the items of physical evidence,including such information as: (1) Evidence involved; (2) Evidence tested; (3) Tests performed;(4) Results of each specific test; (5) Procedure for each test: laboratory worksheets, “benchnotes”, and copies of all said memoranda worksheets, notes, and records kept by said experts;and (6) any such other information related to any forensic testing on alleged marijuana seized bythe Pitt County Sheriff Department.

1. The defendant was indicted on manufacturing of marijuana and possession ofdrug paraphernalia.

2. This Court has not set any deadlines for the delivery of discovery, nor any datesfor the hearing of pretrial motions as contemplated by G. S. 7A-49.4. The defense was onlysupplied with limited discovery.

3. To the best of the belief and knowledge of defense counsel, law enforcementauthorities chose not to forward the alleged marijuana plant or any drug paraphernalia forforensic testing.

4. The Defense requests to have said items inspected or tested by the defenseexperts.

5. Defendant, by counsel, contends that she is entitled to production of same prior totrial pursuant to N.C.G.S. 15A-902, et. seq., and 15A-267, in sufficient time to enable her tomeaningfully examine said items and test them to prepare for trial. Failure to grant thedefendant’s motion would violate the defendant’s rights to Due Process of Law under the Fifthand Fourteenth Amendments to the United States Constitution; Article I, Sections 18, 19, and 23,

of the Constitution of North Carolina; and effective assistance of counsel, in violation of theSixth Amendment to the United States Constitution; Article I, Sections 19 and 23 of theConstitution of North Carolina; and his discovery rights under N.C. Gen. Stat. §15A-903.

6. Defendant requests the Court to order that the Pitt County Sheriff’s Department toprovide Defendant any evidence related to this case for testing, to be turned over to a privateinvestigator for the defense so that said items can be delivered to and inspected and tested by thedefense’s independent expert to confront, challenge, or rebut the State’s evidence in this case. After said inspections and testing the defense’s private investigator will collect said items fromthe defense expert and deliver them back to the Pitt County Sheriff’s Department.

WHEREFORE, the undersigned prays that this Court will enter such Orders as are justand proper with respect to production of the above-mentioned items and the inspection andindependent testing by the experts appointed to assist the defense.

Respectfully submitted this the ____ day of May, 2010.

________________________

Attorney for Defendant

CERTIFICATE OF SERVICE

This is to certify that on this date the attached pleading or paper was served upon theState of North Carolina by hand delivery or by mailing a copy of said motion to AssistantDistrict Attorney, Brian DeSoto, 3rd Floor, Courthouse, 100 W. 3rd St., P.O. Box 8185,Greenville, North Carolina 27835-8185.

This the ____ day of May, 2010.______________________Attorney for Defendant

Motion for independent testing

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF GUILFORD XX CRS XXXX STATE OF NORTH CAROLINA ) ) vs. ) MOTION TO EXCLUDE ) LATENT FINGERPRINT DEFENDANT ) TESTIMONY ) Defendant. ) ________________________________________________________________________

NOW COMES the Defendant, by and through the undersigned counsel, and hereby moves this Honorable Court, to exclude latent fingerprint testimony in this case because the relevant scientific community does not accept that latent fingerprint analysis can reliably and accurately demonstrate a connection between a latent print and a specific individual. This motion is based on State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004), N.C. Gen. Stat 8C-1, Rule 702, N.C. Gen. Stat 8C-1, Rule 403 and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; Article I §§ 19 and 23 of the North Carolina Constitution.

In support of the motion, the Defendant shows the following:

1. On February 18, 2009, the National Academy of Sciences published a watershed report, concluding that no forensic method, with the exception of DNA analysis, has “rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” National Research Council, National Academy of Science, Strengthening Forensic Science in the United States: A Path Forward, [hereinafter 2009 NAS Report], 7. The report is unequivocal: there is no existing research that demonstrates that latent fingerprint identification is valid.

2. The Supreme Court of North Carolina in State v. Ward, 364 N.C. 133 (2010) took

note that “the field of forensic science has come under acute scrutiny on a nationwide basis” and recognized the 2009 National Academy of Sciences Report as a “landmark report.” Id. at 141 (holding that a methodology of identifying pills by visual inspection was not sufficiently reliable to identify the substances at issue).

3. Admissibility of expert testimony in North Carolina is determined by a three-part

test: “(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in

that area of testimony? (3) Is the expert’s testimony relevant?” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).

4. “Where, however, the trial court is without precedential guidance or faced with

novel scientific theories, unestablished techniques, or compelling new perspectives on otherwise settled theories or techniques,” the trial court must look to other “‘indices of reliability’ to determine whether the expert’s proffered scientific or technical method of proof is sufficiently reliable[.]’” Howerton, 597 S.E.2d at 687 (quoting State v. Pennington, 393 S.E.2d 487, 453 (N.C.1990)).

5. The technique used in this case by examiner ________ to examine prints made by

friction ridge skin (known as the ACE-V technique) is not a novel technique. It has been described in literature since 1959. 2009 NAS Report at 137. However, the 2009 NAS Report’s determination that “following the steps of ACE-V does not imply that one is proceeding in a scientific manner or producing reliable results” represents a compelling new perspective on a technique that was previously relied upon by courts. 2009 NAS Report at 142.

6. Among the criticisms of the 2009 NAS Report are that “ACE-V does not guard

against bias; is too broad to ensure repeatability and transparency; and does not guarantee that two analysts following it will obtain the same results.” 2009 NAS Report at 142.

7. The 2009 NAS Report reflects the current view of scientists significant both in

number and expertise. The National Research Council Committee reviewed studies related to forensic disciplines, conducted independent research, heard testimony from experts in the field, and provided specific recommendations to address issues facing the forensic science community. 2009 NAS Report at ix-xx.

8. The 2009 NAS Report cited “a thorough analysis of the ACE-V method” and its

“unambiguous” conclusion was: “’We have reviewed available scientific evidence of the validity of the ACE-V method and found none.’” Id. at 143 (quotation and citation omitted).

9. Rule 702 provides that “[i]f scientific, technical or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.” Allowing an expert to testify to opinion evidence that is not based on a reliable scientific of technical method will not assist the trier of fact to understand the evidence. Instead, it will only serve to confuse and mislead.

10. Furthermore, Rule 403 guards against the introduction of such unreliable

evidence. Rule 403 provides as follows: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Any probative value of the fingerprint evidence is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, and misleading the jury given the unreliability of such evidence.

WHEREFORE, counsel for Defendant respectfully requests:

1. That the Court hold a pre-trial hearing in this matter; and 2. That this Honorable Court issue an Order excluding the fingerprint evidence.

RESPECTFULLY SUBMITTED this the _____ day of __________, 2011.

CERTIFICATE OF SERVICE

1

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF ________

FILE NO. ______

STATE OF NORTH CAROLINA ) MOTION TO PRESERVE ) EVIDENCE v. ) ) __________ ) ) NOW COMES Defendant, by and through counsel, and respectfully moves this

Court to issue an order requiring all prosecutorial and law enforcement agencies involved

in the investigation of _________ and related offenses to preserve and remain intact and

not to destroy or alter any evidence, tangible object, or other information relating in any

manner to this case. This includes the complete files of all prosecutorial and law

enforcement agencies, including any documents, audio and/or video recordings, and

investigative reports of potential witnesses, co-defendants, and/or informants who have

been involved in the investigation of this case. This includes preservation of “rough

notes” and audio and/or video recordings, whether or not those notes or recordings form

the basis of a formal typewritten report, as well as other products that could be classified

as work product. Additionally, Defendant moves that this order also apply to all

prosecutorial and law enforcement agencies involved in the investigation of Defendant

related to any other offenses which the State is contemplating using or attempting to use

at Defendant’s trial. Defendant is entitled to the “complete files of all law enforcement

and prosecutorial agencies involved in the investigation of the crimes committed or the

prosecution of the defendant.” N.C. Gen. Stat. §15A-903. Preservation of these files and

evidence is required under the Sixth, Eighth and Fourteenth Amendments to the United

2

States Constitution, Article I, §§ 19, 23 and 27 of the North Carolina Constitution and

under the general interests of justice.

This the _____ day of __________, 200_.

Attorney Name N. C. State Bar No. _______ Address Tel: Fax:

3

CERTIFICATE OF SERVICE I certify that I served a copy of the foregoing Motion to Preserve State’s Files by first class mail upon: Name District Attorney Address This the ___ day of ____________, 200_. ______________________________ Name

FILE NO:

NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE _____________ COUNTY SUPERIOR COURT DIVISION STATE OF NORTH CAROLINA v. ____________________, Defendant.

) ) ) ) ) )

NOTICE OF OBJECTION

PURSUANT TO N.C. GEN. STAT. §§ 90-95(g) AND

(g1)

NOW COMES the defendant by and through undersigned counsel and gives notice to the State that he OBJECTS to the introduction by the State of certain documents entitled “North Carolina Bureau of Investigation Department of Justice Western Laboratory Report” dated ___________, “North Carolina State Bureau of Investigation Request for Examination of Physical Evidence,” undated, and “Case #W2010____ - Chain of Custody Report,” undated, as evidence of the identity, nature and quantity of the matter analyzed in the present case and of the established chain of custody regarding said evidence. The defendant objects to introduction into evidence of the above-mentioned lab report and chain of custody statement pursuant to the Sixth Amendment to the United States Constitution, Article I, § 23 of the North Carolina Constitution, Melendez-Diaz v. Massachussetts, 129 S. Ct. 2527 (2009), and N.C. Gen Stat. § 90-95(g) and (g1).

This the ____ day of February, 2012.

___________________________ ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was served on ______ County District

Attorney’s Office by hand delivery.

This ___ day of February, 2012.

_________________________ ATTORNEY FOR DEFENDANT

By: ___________________________

BY RYAN NILAND | JANUARY 4, 2013 · 12:28 PM | EDIT

This is the first in a three-part series on lab accreditation, analyst certification, and ISO-compliant lab procedures

by Ryan Niland.

Understanding the distinctions between lab accreditation and analyst certification can be important when

critically examining forensic analyses. Although both processes relate to quality assurance for forensic analysis,

the term accreditation generally applies to laboratories as a whole, while certification applies to individual analysts

and technicians.

Accreditation refers to a recognition process for laboratories that meet certain standards for management,

operations, equipment, and security. Four major accrediting bodies offer accreditation programs for forensic labs

in the United States (ASCLD/LAB, FQS, A2LA, and ABFT – we’ll explain more about these organizations in Part

2), and each body has its own requirements. Lab accreditation is generally a voluntary process, but nine states

(including North Carolina) now require their labs to achieve some forms of accreditation. Although the

accreditation process is intended to promote standardization and quality control, recent scandals at crime labs in

North Carolina, San Francisco, and elsewhere have shown that lab accreditation does not always ensure sound

science.

Certification refers to a credentialing process for individual analysts and technicians who meet certain standards

for education, training, and experience. Innumerable organizations offer certification for forensic analysts in

fields ranging from toxicology to forensic art. Each certifying agency has its own requirements for education,

training, and experience, and while some certification programs are rigorous, others can be little more than

diploma mills. For example, one organization offers certification as a “forensic consultant” to anyone who watches

a 90-minute video and passes a short, multiple-choice test. The Forensic Specialties Accreditation Board (FSAB)

monitors the certification process for many of these organizations. A good starting point for determining whether

a forensic certification is of merit is to determine whether the certification is offered by an FSAB-accredited

organization. More information about the certifications held by NC State Crime Laboratory analysts is available

here.

Although most lab accreditation programs do not require that analysts be certified, the FBI’s Quality Assurance

Standards (QAS) do require some forms of certification for DNA analysts at labs that participate in the CODIS

national DNA database.

Part 2 of this series will explain how a lab becomes accredited and some potential shortcomings in that process.

Share this:

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1 of 1 1/8/2013 3:59 PM


This is the second in a three-part series on lab accreditation, analyst certification, and ISO-compliant lab

procedures by Ryan Niland.

Several major organizations offer accreditation services for forensic labs in the United States. The American

Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) is by far the largest

accrediting body for forensic labs, followed by Forensic Quality Services (FQS), the American Association for

Laboratory Accreditation (A2LA), and the American Board of Forensic Toxicology (ABFT).

Labs seeking accreditation generally start the process by performing an internal organizational audit. If the lab

believes that its policies, procedures, equipment, and other characteristics conform to the required standards, the

lab submits a report to the accrediting body. The accrediting body then sends a team of external examiners to

confirm the internal audit’s findings. The examiners use a checklist to ensure that the lab’s policies and

procedures meet the accrediting body’s requirements, and may also review analysts’ case files for consistency with

the requirements. The lab is given an opportunity to respond and correct any deficiencies reported by the

examiners before it receives accreditation. The SBI lab’s ASCLD/LAB Inspection Reports can be viewed online

here. Accreditation typically lasts for two to five years before the lab must be re-inspected.

In addition to the accreditation offered by the major accrediting bodies, the FBI maintains separate Quality

Assurance Standards (QAS) for all labs that participate in the CODIS national DNA database. (Click here to read

the specific requirements for these laboratories.) Labs that participate in the database are subject to annual

audits, and the North Carolina State Crime Lab’s website contains links to their QAS audit reports (under the

heading “DAB Audit Reports”). Appendix A to each report contains a short summary of all problems uncovered by

the audit and the lab’s responses, if any. Appendix D to each report details the certifications of the lab’s DNA

technicians.

Although courts have assumed previously that work performed in accredited labs is reliable, an increasing body of

evidence shows that accreditation provides little assurance that forensic analyses are carried out with sound

scientific methodology. Investigators have uncovered failures in at least 28 accredited laboratories since 2005,

including mis-identification of fibers, DNA contamination, mix-ups of physical evidence, expired chemicals, and

false calibration dates.

One of the most notable of these failures occurred in the NC State Bureau of Investigation’s (SBI) serology lab,

where false and misleading lab reports tainted at least 230 cases over a 16-year period. The SBI lab was accredited

by ASCLD/LAB five times during this period; none of its inspectors detected the widespread problems with the

lab’s policies and procedures.

Similar failures have been reported in other accredited labs. ASCLD/LAB re-accredited the US Army Criminal

Investigation Command in 2006 even after learning that the lab provided inadequate supervision to a DNA

analyst who falsified reports, cut corners, and found DNA in samples where none existed. ASCLD/LAB accredited

San Francisco’s crime lab in 2005, only to have the lab shut down when it was discovered that an analyst had been

stealing drugs from the lab. External audits revealed heavy case loads for lab workers and that technicians were

having trouble maintaining the chain of custody for evidence.

Part 2: The Lab Accreditation Process | Forensic Science in North Carolina http://ncforensics.wordpress.com/?p=833&preview=true

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Several factors may help explain the failure of ASCLD/LAB and other accrediting agencies to detect major

deficiencies in forensic labs. First, examiners review a very small number of cases—typically five per analyst—to

confirm compliance, and the cases are selected by supervisors rather than chosen at random. Additionally,

examination teams consist of forensic analysts from other labs, so there is some concern that these individuals

may be reluctant to report problems for fear of reprisals against their own labs when they are audited. Although

ASCLD/LAB accepts complaints, investigations into these issues are kept confidential. Finally, labs are given

advance notice of when accreditation inspections will occur, rather than subjected to surprise inspections.

Part 3 of this series will explain ISO accreditation for forensic labs. Part 1 of this series is available here.

Part 2: The Lab Accreditation Process | Forensic Science in North Carolina http://ncforensics.wordpress.com/?p=833&preview=true

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This is the third in a three-part series on lab accreditation, analyst certification, and ISO-compliant lab

procedures by Ryan Niland.

In response to concerns about the failures of the North Carolina State Crime Laboratory (formerly known as the

SBI lab), North Carolina passed the Forensic Sciences Act (FSA) in 2011. Among other things, the FSA requires

that for a report to be admissible in court, it must be produced by a lab accredited by an accrediting body which is a

signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement for

Testing.

ASCLD/LAB’s traditional accreditation program, sometimes referred to as its “Legacy Program,” does not use

ILAC standards. Consequently, in September 2012, the North Carolina State Crime Laboratory adopted and

posted new lab procedures on its website in order to seek additional lab accreditation according to ILAC standards.

ILAC requires forensic laboratories to follow procedures set by the International Organization for Standardization

(ISO).

ISO is an organization that develops international standards in many areas, including management, food safety,

and nearly all mass-produced products. Forensic labs seeking ISO accreditation must follow the procedures in ISO

17025, which contains general requirements for all testing and calibration laboratories. ILAC has produced

guidelines (ILAC G19) for laboratories applying ISO 17025 procedures in a forensic context. ISO 17025 and ILAC

G19 set out general principles that labs must adhere to, but each lab that seeks ISO accreditation will have its own

procedures interpreting these standards.

All state lab tests performed after September 17, 2012 should follow the new lab procedures. Analysts at the lab

report that the greatest procedural changes occurred in the Forensic Biology/DNA and Drug Analysis/Toxicology

sections, as well as in how documentation is kept. The lab procedures for tests administered prior to September

17, 2012 have been removed from the lab’s website. Attorneys should contact the lab to obtain copies of the older

procedures, or they can contact the Forensic Resource Counsel for assistance.

The North Carolina State Crime Lab accepted public comment on the new lab procedures, and independent

experts provided a number of critiques regarding the new procedures. The critiques included questions about the

lab’s forensic biology testing procedures, DNA analysis interpretation guidelines, drug sampling protocols, and

results statements used in fingerprint comparisons. The Forensic Resource Counsel has copies of many of these

comments and can provide them to you and discuss with you how they may relate to the analysis performed in

your case.

Part 1 of this series is available here. Part 2 is available here.

Part 3: ISO and the NC Forensic Sciences Act of 2011 | Forensic Science ... http://ncforensics.wordpress.com/?p=842&preview=true

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GUIDE TO WORKING WITH EXPERTS

Preliminary Considerations:

Review your case, client's records (medical, educational, etc.), and discovery prior to contacting experts. This will help you determine exactly what type of expert assistance is needed and have a more productive conversation with an expert.

Do not engage a mental health expert before obtaining substantial social history records (click here for a list of potential records to collect), unless the client is floridly psychotic upon you entry into the case. See IDS Policy on the Effective Use of Mental Health Experts in Potentially Capital Cases.

Educate yourself on the issues. Consult the IDS Forensics website for information on topics of forensic science, such as DNA, firearms, fingerprints, death investigation, etc. Scholarly articles are available such as Google Scholar and PubMed.

Do you need an expert? o Is the forensic evidence adverse to the defense theory of the case? o Do you need evidence re-tested? o Are you critiquing the state's testing of the evidence? o Even if the State is not using an expert, consider whether there are

affirmative uses of experts that would support your theory of the case, such as crime scene experts, use of force experts, or mental health experts.

Finding an Expert:

Don't wait until the last minute - your desired expert may not be available. Any expert will need time to review your case prior to forming an opinion.

Consider consulting with Sarah Rackley Olson, Forensic Resource Counsel or Elaine Gordon, Trial Resource Counsel for additional ideas about what type of expert to use.

Know what particular expertise you need before you start making phone calls: i.e., rather than looking for a "DNA expert," consider whether you need an expert on DNA mixtures, an expert who can challenge contamination, or an expert who can challenge the statistical computation.

Consider the role of the expert: Do you need an expert to assist in evaluating the quality of the evidence? To explain the science to you or to the jury? Do you need an expert to develop mitigation evidence or to establish a defense such as self-defense or diminished capacity? Will assistance require access to a laboratory? Can a professor or academic fulfill the role or do you need a practicing analyst or scientist? Is the expert willing to testify?

Research the Expert:

You should research your potential expert as thoroughly as you would research a State's witness that you are preparing to cross-examine.

Review his/her CV. Do not assume that just because the expert has been used frequently that he/she has been properly vetted.

Utilize disciplinary boards if available. If an expert lists a particular license or certification, see if that organization posts disciplinary information online.

Ask the expert about any certifications or professional qualifications attempted - has the expert taken any certification exams or other professional exams that he/she has not passed? This website can be used to check to see whether an MD is certified in a particular specialty.

Seek references on listservs, with the IDS Forensic Resource Counsel, NACDL Resource Center, American Academy of Forensic Sciences (AAFS), other lawyers, other experts and competitors, universities, and publicly-funded laboratories.

Search LexisNexis and/or Westlaw for cases in which the expert testified.

Guide to your first conversation with the expert:

Be able to explain to the expert what work you need performed, including specific referral questions you would like addressed if working with a mental health expert. Never ask a mental health expert simply to “evaluate” your client without providing specific guidance. Do not assume that the expert already knows what constitutes a potential defense or mitigating factor. Sometimes an expert who has not received proper guidance will tell an attorney that his or her evaluation has turned up nothing useful, when in fact the expert simply does not have the legal expertise to know what is useful and what is not.

Get the expert to provide you with a copy of his/her CV. Discuss with the expert anticipated hours of work needed, any re-testing needed,

any travel required in order to prepare a request for adequate funding. Discuss AOC's rate schedule (see p. 2), and prepare justification if the expert requires a deviation from the rate schedule.

Discuss any potential conflicts with the expert due to co-defendants, scheduling, or any other professional or personal matter that would adversely affect the expert's work/testimony in the case.

Verify that your expert will be able to testify. Do not assume that testimony will not be needed or promise your expert that testimony will not be needed.

Your expert will need lab reports and the underlying data in order to analyze the evidence.

Communication o Can your expert explain his/her conclusions clearly and understandably? o Consider non-verbal communication: arrogance, bias, appearing

defensive, organized, prepared, etc. Considerations to discuss with expert

o Position currently held.

o Description of the subject matter of the expert's specialty. o Specializations within that field. o What academic degrees are held and from where and when obtained. o Specialized degrees and training. o Licensing in field, and in which state(s). o Length of time licensed. o Length of time practicing in this field. o Board certified as a specialist in this field. o Length of time certified as a specialist. o If certifications/proficiency tests/etc have been attempted, history of

results. o Positions held since completion of formal education, and length of time in

each position. o Duties and function of current position. o Length of time at current position. o Specific employment, duties, and experiences. o Teaching or lecturing in the relevant field, dates and location of teaching. o Publications in this field and titles. o Membership in professional societies/associations/organizations, and

special positions in them. o Requirements for membership and advancement within each of these

organizations. o Honors, acknowledgments, and awards received by expert in the field. o Who is considered "the best" in the field? o Number of times testimony has been given in court as an expert witness in

this field. (Case names and transcripts, if available.) o How has the expert's testimony been treated in the past? Did the expert

appear balanced, knowledgeable, and credible? Has the expert ever not been qualified as an expert? Why?

o Is there any personal or professional information that the attorney should be aware of that may be used as impeachment material or to disqualify this expert?

o Availability for consulting to any party, state agencies, law enforcement agencies, defense attorneys.

DNA Advisory Board Quality Assurance Audits of SBI DNA Section (1999-2010) This chart is a summary of the most significant findings of the audits posted on the NCDOJ website. The FBI Director requires that these minimum quality assurance standards be met for participation in the National DNA Index System. An external audit to assess compliance with these standards is required every two years. The criteria that are currently used in these audits can be viewed here. The SBI lab has completed these audits on an annual basis since 1999. Despite findings of non-compliance during most audits, the lab has passed the audit each year. The purpose of this document is to summarize the annual findings. When evaluating the DNA evidence in a case, attorneys should consider the findings for the relevant year, as well as for the preceding and following years as it is possible that a practice may have gone undetected by certain auditors or may have remained an issue after the year it was reported in the audit. Year Topic Finding

# Finding Explanation/Case relevance

1999 Training 5.1.3 Potential budget constraints are preventing personnel from attending external training seminars. In order to comply with the requirement for continuing education and training, it is suggested that those personnel who attend external meetings be required to present information to the Section upon their return to work. An outline of the presentation and attendance can be maintained as documentation of an in-house training session. Another possible way to comply would be to conduct Journal Article Review sessions.

Lack of training can be a source of cross examination.

Attorneys should request in discovery the articles that analysts are relying on to reach conclusions.

SR has copies of several literature references used by biology section.

1999 Deviations from protocol, Validation of procedures

8.1.3.4 Auditors noted possible deviations from manufacturer’s protocols for the PowerPlex 1.1 and questioned whether deviations had been validated.

SBI responded that all deviations had been validated.

Consider further exploration of this issue if a deviation is suspected. How were these deviations validated? Were deviations discussed with the manufacturer?

SR has copies of PowerPlex user manuals. They are also available online.

1999 Lack of protocol, Interpretation issues

9.1.2 It would be clearer to add a disclaimer to the Technical Manual that STR Call is not required but is optional for casework.

This implies there are no standards for interpretation and that interpretation is left up to the individual analyst. Could lead to inconsistent results and improper interpretation because there are no guidelines for analysts to follow.

1999 Equipment (thermometers, centrifuges, hot shakers, autoclaves), Calibration, Contamination

10.2, 10.2.2

The DNA QA manual does contain documented programs of calibration and their frequency for certain equipment, but not all. The thermometers had a form present but no required time frame. There are not scheduled time references for calibration or checks of other equipment such as centrifuges, hot shakers, autoclaves, etc. The DNA QA manual should be modified to allow for an increase in tolerance ranges for temperatures of refrigerators and freezers. Currently, several refrig/freezer charts show temperatures out of the acceptable +/- 2 degrees. The

There is no schedule for calibrating autoclaves, thermometers and other equipment. Autoclaves are used for sterilization – if an autoclave is not calibrated we cannot know that it is heating to the proper temperature and actually cleaning the lab equipment. This could be a source of contamination. If thermometers, centrifuges and hot shakers are not calibrated we do not know that items are being heated to the correct temperature or spun at the

http://www.ncdoj.gov/About-DOJ/State-Bureau-of-Investigation/Crime-Lab/Crime-Laboratory-Documentation.aspx

http://www.cstl.nist.gov/strbase/dabqas.htm

thermometers have a tolerance range of +/- 1 degree and calibration documents recorded that no. 802774 was found to be 2 degrees off, but was still left in service (though labeled as such). This is a validation of your procedures which state that it should have been removed.

correct speed – improper temperatures and speeds can affect a chemical reaction, separation of DNA and the results produced. STR test kits are affected by temperature.

1999 Lack of protocols, Interpretation issues

12.1.1 Although there is clearly an understood policy with regards to handling discrepancies between analysts and reviewers, it is not spelled out within the QA Manual.

Where there is a discrepancy between an analyst’s casework and her supervisor’s review of her work, there needs to be a clear policy for recording what the discrepancy was so that the attorney is aware of where there were potential problems with the analysis.


Casework Review

The QA manual states that one should visually assess stutter. How is this performed and agreed upon without a mathematical reference? For consistency within the Laboratory perhaps guidelines should be developed to handle situations of stutter in regards to carry-over in mixed stains. Perhaps the Laboratory may want to conduct a mini-stutter study using the raw data in the population databases, to demonstrate that your stutter values are in accordance with West Palm Beach. This would just require some number crunching. Bands occurring in the n + 4 locations should also be addressed within the guidelines. The latest version of the guidelines handles partials profiles nicely by listing the number of bands present and those missing. This better clarifies your results versus just stating that the partial profiles are consistent with a donor.

Attorneys should be aware the there are not guidelines that insure a consistent approach to interpreting stutter. This could lead to incorrect interpretations, particularly with DNA mixtures, partial profiles or low copy number DNA. See Roland AH van Oorschot et al, Forensic trace DNA: a review. Investigative Genetics 2010, 1:14.

2000 Instrument precision studies

8.1.3.1(b) Reproducibility studies were conducted, however instrument precision studies were not. Since this laboratory uses visual confirmation of allele designations precision studies are not applicable. If the laboratory relies on StarCall, precision studies will need to be completed.

It is not possible to determine the precision of analyst interpretations because they are relying on visual confirmation of allele designations. The fact that the SBI is using visual confirmation after Genemapper means this is a human call (subjective) as opposed to a call made by program software.

2000 Quality Control 3.1, 5.1.3, 12.2

Recommend incorporating into Section 15 of the Quality Assurance Manual, specifics on the number of samples that will be randomly reanalyzed for quality control of outsourcing convicted offender samples as well as continuing education and court testimony standards. Recommend CODIS Manager acquire more training in computer networks and database management. Although this individual has some working knowledge of computers, he would benefit from formal coursework in computers. Currently he has no documented coursework.

If the number of samples that will be randomly reanalyzed for quality control is not clear, it is impossible to know whether this quality control is being performed adequately or not. Lack of training in the use of computer networks and database management could be a source of error in entering CODIS data into the database.

http://www.investigativegenetics.com/content/1/1/14

http://www.investigativegenetics.com/content/1/1/14

Recommend reviewing manuals with staff. The scientists interviewed were not familiar with all aspects of the Quality Assurance Manual, specifically quality control of critical reagents and Quantiblot protocol. Recommend surplussing of old equipment to ensure analysts do not inadvertently use equipment out of circulation (specifically serofuges and RFLP equipment). Recommend technical and administrative reviewers more closely scrutinize case files (specifically initialed cross-outs, concordance issues, use of correct forms, presence of all forms, completion of chain of custody data).

Inadvertent use of old equipment could result in reactions that do not occur as expected. Indicates reviews of casework are not being performed adequately.

2000 Quality Control 7.3.3 Recommend clarification of Section 7.3.3 of the Quality Assurance Manual that all forensic samples require quantitation of human DNA.

Failure to quantitate DNA can produce unexpected results.

2003 Calibration 1.1.2.7 (E)

Calibration of Equipment and Instruments - The calibration procedures for the balances and the FTIR in the Drug Chemistry and Biology sections do not include accuracy tolerance limits. Supplemental Finding: Accuracy tolerance limits have been added to the calibration in the Drug Chemistry and Biology Sections (See section 8.7 for Biology). Certified weights have been purchased and are available to these sections and other disciplines in the Crime Laboratory.

Prior to this audit we cannot be confident that any balance used in the Biology section was accurate. Balances are used in this section to prepare reagents used for extraction and other procedures.

2003 Calibration, Interpretation Issues

1.4.2.8 (E)

Are the appropriate controls and standards specified in the procedures and are they used and documented in the case record to ensure the validity of examination results? The quantitation procedure in Biology uses a serial dilution to create a set of standards ranging from 10 ng to 0.15 ng, as well as two calibration controls intended to assess the performance of the standards. The technical procedures specify the use of these standards and calibrators, but do not address the expected results, acceptable performance of the standards or calibrators, or the interpretation of the results (DNA Audit Document standard 9.1, 9.1.2). The procedure does not specify a minimum number of visible standards (or minimal DNA concentration) as well as data interpretation to ensure uniformity among analysts. Supplemental finding: The technical procedures for the Biology Section have been revised to address the expected results, acceptable performance of the standards or calibrators, and the interpretation of results. The procedures also specify a minimum number of visible standards (or minimal DNA concentration) as

Performance of calibration controls for measuring the quantity of DNA is useless if there is no guide for the accepted range of results. If there is no standard for interpretation, each analyst can use his/her own criteria (subjective) and there is no way to measure whether the analyst is using correct criteria. For DNA kits, a lab must demonstrate that their results are within the acceptable tolerance.

well as data interpretation to ensure uniformity among analysts.

2003 Case records, contamination

1.4.2.14 (e)

Do the examiners generate and does the laboratory maintain, in a case record, all the notes, worksheets, photographs, spectra, printouts, charts and other data or records used by examiners to support their conclusions? In the Biology Section, Administrative Order 01-PRO-4 dated April 24, 2001 requires that mandatory steps be followed when case samples are batched. During analyst interviews, it was determined that samples from different cases may be “batched” for extraction, quantitation, and/or amplification. However, there is no documentation in individual case records when samples are batched, making it impossible to compare results obtained between cases should the need for such comparison arise (i.e. for trouble-shooting). (DNA Audit Documentation standard 11.1, 11.1.1). Supplemental finding: Administrative Order 01-PRO-04 dated April 24, 2001 in the Biology Section has been revised and now includes the steps to be followed when case samples are batched. Additional notation areas have been added to the pre-printed case notes to show which case have been batched. The revised pre-printed forms were submitted for review to reflect that this documentation is currently being used in the individual case records. Review of three “batch sample confirmation” case record reviews confirmed that is now being done.

Where there is no notation that cases are batched together during extraction, quantitation or amplification, it cannot be determined whether cross contamination from another case may have occurred. If cases are batched, attorneys need the results from the other cases that are run with the sample in order to compare the results and explain unexpected results.

2003 Lack of Protocol, Interpretation issues

9.1, 9.1.2 Does the laboratory have and follow written analytical procedures approved by laboratory management/technical manager or leader? No. Do the analytical procedures describe reagents, sample preparation, extraction, equipment, and controls which are standard for DNA analysis and data interpretation? No. Response: In response to this finding, the Technical Leader produced written guidelines for DNA Quantitation and Interpretation. See attached sheets labeled NCSBI MOLECULAR GENETICS SECTION Quality Assurance Manual – Revision 04 Appendix F – STR Interpretation Guidelines.

If there is no standard for interpretation, each analyst can use his/her own criteria and there is no way to measure whether the analyst is using correct criteria.

2003 Case records 11.1, 11.1.1

Does the laboratory have and follow written procedures for taking and maintaining case notes to support the conclusions drawn in laboratory reports? Does the laboratory maintain in a case record, all documentation

If all case notes are not kept according to procedure, it is impossible to know whether all documentation regarding a case has been received in a case file. Additionally, notations that may be relevant to case work may be discarded and never

generated by examiners related to case analyses? Response: In response to this finding, the Technical Leader created new analysis forms which contain areas for writing down batched case numbers. Copies of actual case notes are attached which show the use of these new forms.

viewed by a reviewer or by the defendant.

2005 Training Recommendation (letter)

The CODIS Administrator and Safety Office each perform valuable functions within the department. The interviews conducted with each of these individuals indicated the need for additional training that would enhance their job performance. The CODIS Administrator indicated a need for training in computer networking (as required in the audit document). The Safety Officer has recently assumed her new role as a Safety Officer for the Forensic Laboratory as well as the DNA Laboratory. This is a significant role and external training in this field will benefit the laboratory.

The lack of computer networking training of the CODIS Administrator appears to be ongoing from 2003.

2005 Case records 11, Recommendation (letter)

Current laboratory reports include a report date that is not indicative of the time the final report was generated. It is difficult to determine from the report approximately when the report was issued to the requesting officer, or if the report was issued prior to all review being completed. Our recommendation would be to include a date next to the signature which reflects when the approved report was issued, or to have the date that is currently at the top of each report more accurately reflect when the approved report was issued.

It is possible that reports are being given to law enforcement officers prior to all reviews being completed because the lab reports do not include a date the indicates when the final report was generated.

2006 Expired reagents

According to current NCSBI safety policy, label all reagent-containing containers with an expiration date, or, revise the NCSBI safety manual to reflect current labeling practices of the DNA laboratory.

This problem reoccurred in 2010 – query whether it was ever corrected. Certain expired reagents will impact the results of STR analysis.

2006 Lab equipment (refrigerators, freezers, incubators)

Record temperatures for refrigerators, freezers, and incubators on a daily basis and disseminate responsibility for these duties, as necessary.

Failure to keep these records indicates that we cannot be sure that samples are being stored at or incubated at the correct temperature.


9.1 Does the laboratory have and follow written analytical procedures approved by laboratory management/technical manager/leader? No because the lab does not have a documented standard operating protocol for each analytical technique used. (9.1.1) DNA Database SOP (section 3.5.5.4) and CODIS SOP (section 3.2.1) do not reflect current practices (they still refer to PowerPlex 1.1/1.2 and gels)

It appears the lab was operating without a standard operating procedure for the current equipment.

2007 Calibration 10.2 10.3 - Does the laboratory have a documented program for calibration of equipment and instruments? No because each instrument requiring calibration, does not have

Source of cross exam

documented the frequency of calibration and such documentation has not been retained in accordance with applicable federal or state law. Per SBI QA manual section 8.9.4, Calibration of thermacyclers will be calibrated by an external agency twice a year. This was due in April, but was not completed.

SBI response: Questions 10.2 and 10.2.2 The requirement for biannual testing by an external vendor was deleted.

2009 NFSTC

Training Question 5.1.2.1(a) Does the training program contain at a minimum the following components: A training manual that covers all applicable DNA analytical procedures that the analyst/technician will perform? The training manual for STRs was not updated at the annual review following implementation of Y STR testing.

If the training manual is not kept up to date it calls into question what training on the newest procedures is being conducted.

2009 NFSTC

Training Question 5.2.3.2.6 Does the technical leader perform the following specific responsibilities: Review and approve the training, quality assurance, and proficiency testing programs in the laboratory? The technical leader did not document the approval of newly qualified analysts.

Failure to document approval of newly qualified analysts calls into question which analysts are qualified on which technique.

2009 NFSTC

Case records Question 9.1 Does the laboratory have and follow written analytical procedures approved by the technical leader? The laboratory is not consistently following its procedure for reporting the upload of forensic unknown CODIS samples as outlined in the laboratory’s Appendix E STR Interpretations Guidelines Section 3.5.1.3. The laboratory’s STR interpretation guidelines require that when samples are added to the forensic unknown index of CODIS, the report will reflect this by including standard wording in the report.

Attorneys may not know when a search of CODIS has occurred.

2009 ASCLD

Contamination, Lack of Protocols

Corrective Action Reports are not being sent to the Technical Leader for review as per Section Policy 10.1.2 of the DNA Database Policy and Procedures Manual. This included several issues of contamination. Staff interviews revealed that the Technical Leader was not always informed of Corrective Action Reports initiated in the DNA laboratory. Contamination issues are reported to the direct supervisor who sends a memo to the Deputy Assistant Director and Quality Assurance Manager. It is the Deputy Assistant Director who decides whether the section manager or the technical leader is informed. Consequently, the technical leader cannot monitor quality issues or conduct technical problem solving if he is not informed of quality issues that arise in the DNA laboratory.

Failure to send Corrective Action Reports to the Technical Leader of the Section means that the section manager and technical leader may be unaware of quality issues and problems with procedures being used in the section. Several issues of contamination are noted here.

2009 ASCL

Lack of Protocols,

Question 9.1 Does the laboratory have and follow written analytical procedures approved by laboratory

Analysts are not following procedures for calculating Combined Probability of Exclusion statistics for

D Issues with Interpretation

management/technical manager/leader? The DNA QA Manual states that for mixtures, Combined Probability Exclusion (CPE) statistic may be calculated independently for each reference sample not excluded from the mixture. When calculating separate CPE’s values for each reference sample on the mixture, the manual states the report will (Appendix F-4.4.3.7) indicate the number and the identity of loci used for each of the calculations. The reports reviewed using more than one CPE value for a mixture did not indicate the loci or the number of loci used in the calculations. SBI response: In Revision 10 of the Interpretation Guidelines (Appendix F-4.4.3.7), the wording has been changed from “the report wording will be as follows” to “the report may be worded as follows.”

samples not excluded from a mixture. An expert should review these calculations to determine whether they are appropriate. The SBI response perpetuates the problem by making the interpretation guidelines more of a suggestion than a protocol that must be followed.

2009 ASCLD

Question 9.5 Does the laboratory check its DNA procedures annually or whenever substantial changes are made to the protocol(s) against an appropriate and available NIST standard reference material (SRM) or standard traceable to a NIST standard? Comment The laboratory has used a sample MJB 062304 since 2005 as their NIST traceable sample for their annual check. However, there is no direct documentation to support traceability to a NIST standard. Review of the documentation available for the comparison of the check of sample MJB 062304 completed in 2004 lacks the naming of the lot number of MJB used and a verification of the results obtained from the comparison to the NIST published values. In addition, the methodology using the Qiagen BioRobot Universal System using the QIAamp Media MDx kits on database samples was not checked against the NIST or NIST traceable standard in 2008.

The lab is using a DNA sample from an unknown source (though we believe the source to be analyst Mike Budzynski) to the annual check of their machines and procedures instead of using a known NIST sample that will produce known results.

2009 ASCLD

Case records, Interpretation issues

Question 11.1 (FO) Does the laboratory have and follow written procedures for taking and maintaining case notes to support the conclusions drawn in laboratory reports? The laboratory STR Interpretation Guideline, Appendix F, section 4.4.2.2.3 specifically states that if alleles are not present at one or more loci then there must be a compelling reason for “NOT” excluding a standard (e.g. allelic dropout and/or inhibition). There is no documentation in the case files reviewed as to why the analyst selected loci to be excluded. SBI response: In Revision 10 of the Interpretation Guidelines, Appendix F, section 4.4.2.2.3, the statement, “if alleles are not present at one or more locus, then there must be a reason for NOT excluding a standard (e.g. allelic dropout and/or inhibition),” has been deleted.

This indicates that case files were reviewed where analysts failed to exclude a standard where alleles were not present at one or more loci and in violation of the lab’s protocols, did not document a compelling reason for not excluding that standard. This indicates analysts are failing to exclude individuals should be excluded, according to their own protocol. The SBI response removes the need to justify a decision to not exclude despite alleles not being present at one or more locus. Source of cross exam

2009 ASCLD

Lack of Protocols

Question 11.1 (CO) Does the laboratory have and follow written procedures for generating and maintaining documentation for database samples? Comment The laboratory DNA Database Unit Standard Operating Procedure (December 15, 2008) in Section 3.3.3 requires that additions to records generated should not only initial the form where required but also date the entry. The DNA Database Collection Card is not dated or initialed when the technician adds information. The card is initialed and dated when changes or corrections are made. In addition, the required format for the naming of the batch for in house processing of convicted offender samples is not being used. This was corrected on site with an updated version (January 9, 2009) of the manual.

2009 ASCLD

Lack of protocols

Question 14.1 Does the laboratory have and follow written procedures for taking corrective action whenever proficiency testing discrepancies and/or casework errors are detected? Comment Section 10.1.2 of the DNA Policy and Procedure Manual states that the Special Agent in Charge and the Technical Leader will be notified anytime questions arise concerning discrepancies or the efficacy of a technical procedure using casework analysis. This section also states the technical leader should then immediately investigate. This section of the manual is in conflict with the laboratory’s corrective action plan (Procedure 39) which states that the individual recognizing a quality problem immediately notifies the supervisor who in turn notifies the Laboratory Director Quality Manager and the Assistant Deputy Director (Procedure 39). There is no requirement for the Assistant Laboratory Director to inform the Technical Leader. In addition, the DNA Quality Assurance Policy Section 2.1.5.7 states that the technical leader will be informed of any anticipated problems.

The Technical leader of the lab is not being notified of all Corrective Actions and therefore is not aware of the problems occurring within the lab.

2010 CW-KSP

Training Question 5.1.3.1.1 Comment – no internal continuing education was conducted.

Source of cross exam

2010 CW-KSP

Contract work Question 5.2.3.2.3 Comment – DNA casework was not outsourced

On p. 92 the audit states that Bode DB and LabCorp CW outsourcing agreements are in place. This indicates some confusion or miscommunication with the auditors about whether outsourcing is occurring. The audit notes that if casework is outsourced, the technical specifications must be approved by the technical leader.

2010 CW-KSP

Question 5.2.4.1.1 Comment – A new DNA Technical Leader was available and was immediately appointed.

This indicates that the DNA Technical Leader had been replaced since the last audit. Can we find out under what circumstances and what happened to the prior technical leader?

2010 CW-KSP

Validation Question 8.3.3, 8.3.4 Comment – The laboratory has not had a change in detection platform during this audit cycle. The new AB 7500 instruments for which initial validation has been conducted have not yet been put into use, nor have competency tests been conducted pending additional validation work not yet undertaken (Quantifiler Duo validation).

This indicates some new machines are coming online. What information do we have on AB 7500 or Quantifiler Duo? Are we certain that proper validation studies, training, and proficiency testing have been completed?

2010 CW-KSP

Expiration date of reagents

Question 9.2 Does the laboratory use reagents that are suitable for the methods employed? No. Comment The laboratory has no policy for setting expiration dates for reagents without a manufacturer-provided expiration date. They track reagent lot numbers in their casework, but have not assigned expiration dates to reagents such as phenol/chloroform, formamide, and other commercial reagents for which no manufacturer expiration date has been assigned. Question 9.2.2(b) Are commercial reagents labeled with: The expiration date as provided by the manufacturer or as determined by the laboratory? See comment to No. 1 above

The use reagents that are not suitable for the methods employed calls into question the validity of any of the results produced by this section of the lab. It is not clear which reagents are not suitable. The use of unsuitable reagents may affect any stage of DNA testing including DNA extraction, DNA quantitation, polymerase chain reaction, the separation and detection of PCR-produced STR (short tandem repeat) alleles, and the production of electropherograms through electrophoresis. Question 9.2.2(b) may explain what is meant by use of reagents that are not suitable, though it is not clear that the use of reagents without expiration dates is the only problematic practice that 9.2 refers to. Use of reagents that have not been assigned expiration dates may result in the use of reagents that are expired and are not longer effective. Among the reagents listed are phenol/chloroform (used for extraction) and formamide (used in electrophoresis).

2010 CW-KSP

Lack of protocols, Interpretation Issues

Question 9.6 Does the laboratory have and follow written guidelines for the interpretation of data? Comment The laboratory has written interpretation guidelines, but is not consistently following them with respect to their STR interpretation guidelines 3.2.7.5 (overblown samples may be re-run with lesser amounts of DNA) and section 3.3 (definition of an artifact). Auditors noted many sample electropherograms exhibiting off-scale/overblown data yet few of the “overblown” samples were re-run (or re-amplified) using a lower amount of amplified product (or reduced template) as indicated by 3.2.7.5. It was also noted that the “artifact” labeled was overused and often did not meet the definition of an artifact as defined in the interpretation guidelines. In reviewing recent corrective actions it was noted that there had been two corrective actions involving erroneous interpretation of artifacts. In one, an artifact peak was

The fact that the lab doesn’t follow its own policy regarding definition of an artifact indicates that analysts are using their own subjective criteria to decide what is an allele and what is an artifact. This means interpretations are not going to be consistent between analysts or reproducible. The results may be incorrect and may be subject to bias. See SWGDAM for a definition of artifact. We should attempt to get a copy of the Corrective Action logs and records. Failure to follow lab policy with respect to re-running “overblown” samples indicates again that analysts are using their own subjective criteria to make determinations in cases.

labeled as an allele, and in the other an allele peak was removed as an artifact.

2010 CW-KSP

Lack of Protocols

Question 12.2.4 Does the laboratory document the completion of the technical review of forensic casework, and does it include the following elements: A review of all controls, internal lane standards, and allelic ladders to verify that the expected results were obtained? Comment The laboratory does not require review of internal lane standards in their entirety, but only a review of the ~250bp peak within the internal lane standard. When questioned, some analysts said that they only looked at the 250 peak and not the rest of the size standard.

Analysts may not be reviewing standards completely and correctly. Failure to review all data available prevents analysts from making the best interpretation of the results.

2010 KSP-DB

Contract work The audit states that the lab uses Bode Technology Group as a contract laboratory.

It is not clear what type of contract work Bode Technology Group does for the State Crime Lab or why it is necessary to contract out work.

2010 KSP-DB

In section 5.2.4.1.1 b & c comments, it is stated that a qualified individual was immediately appointed as DNA Technical Leader.

The Technical Leader of a lab is accountable for the technical operations of the laboratory and is authorized to stop or suspend laboratory operations if there is a problem. This finding indicates that the Technical Leader was replaced since the last audit. It may be important to know why the previous Technical Leader left.

Former N.C. R. Evid. 702(a). 1

N.C. R. Evid. 702(a), as amended effective 1 October 2011.2

Changes to Rule 702(a): Has North Carolina Codified Daubert and Does It Matter?

During the past legislative session, the General Assembly changed Rule

702(a) that deals with the admissibility of expert testimony. This change tracked,

in pertinent part, an amendment to the same federal rule that was designed to

codify the principles in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993).

Previously, the Rule 702(a) rule allowed a qualified person to testify in the

form of an opinion “[i]f scientific, technical or other specialized knowledge”

would “assist the trier of fact to understand the evidence or determine a fact in

issue. The amendment added the following language regarding when a qualified1

person may testify. Now, a witness could testify in the form of

. . .an opinion, or otherwise, if all of the following apply: (1) The testimony is based upon sufficient facts or data.(2) The testimony is the product of reliable principles andmethods.(3) The witness has applied the principles and methods reliablyto the facts of the case. 2

Despite the identical language of the federal and North Carolina versions of

Rule 702, some confusion has surrounded whether North Carolina applies the

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 469, 597 S.E.2d 674, 693 (2004).3

State v. Hudson, No. COA11-444, slip op. at 5 n.1 (7 February 2012) (unpublished).4

principles in Daubert to the admissibility of expert testimony. Indeed, in

Howerton v. Arai Helmet, Ltd., the Supreme Court of North Carolina declared,

“North Carolina is not, nor has it ever been, a Daubert jurisdiction.” 3

But federal rule 702 was amended to codify Daubert and now the state rule

702(a) has been amended in a similar fashion. Indeed, the North Carolina Court of

Appeals recently noted Rule 702(a) was amended “to adopt the standard for expert

testimony set forth in Daubert . . .” Assuming this observation accurately4

describes this amendment as codifying Daubert, and assuming Howerton meant

what it said in stating North Carolina is not a Daubert state, the courts must now

puzzle what this change to Rule 702(a) means for the admissibility of expert

testimony in North Carolina.

This article offers some preliminary observations about this development.

In doing so, it provides some historical perspective on expert testimony and

Daubert, examines North Carolina’s approach to expert testimony, and compares

the new language of the rule to change with an eye toward explicating the effect of

the amendment.

Reviewing the import of Daubert on expert testimony in federal court

Daubert worked a fundamental change in the approach to novel scientific

Frye v. United States, 293 F. 1013 (D.C. App. 1923).5

Id. at 1014.6

Id.7

testimony in federal court. Essentially, Daubert decreed the Frye test no longer5

applied after the adoption of Federal Rule 702. Frye explained expert testimony

about novel scientific principles would only be admissible when there was a

general acceptance of the underlying theory in the relevant scientific community. 6

Frye involved the admissibility of testimony about the results of a systolic blood

pressure test. The court rejected the admissibility of this novel scientific

testimony. In doing so, it noted the line between experimental and demonstrable

stages is somewhat difficult to define. “Somewhere in this twilight zone the

evidential force of the principle must be recognized . . . [and] the thing from which

the deduction is made must be sufficiently established to have gained general

acceptance in the particular field in which it belongs.”7

Long after the Frye decision, the federal rules of evidence of were

adopted. Rule 702(a) provided, “if scientific, technical, or other specialized

knowledge will assist the trier of fact to determine the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form of an opinion or otherwise.”

Daubert held Rule 702 superseded the Frye test with respect to novel

Fed. R. Evid. 401.8

scientific testimony.

Daubert made several essential points. First, the rules of evidence are

designed to admit evidence whenever possible. Relevant evidence, which is any

item that tends to make a material fact more likely than it would be without the

evidence, is generally admissible. Rule 702 follows this general principle of8

evidential admissibility. It allows expert testimony from any person who is

appropriately qualified when the witness’ opinion would assist the fact-finder in

understanding the evidence or determining a material fact.

Daubert involved a situation where a trial court excluded expert testimony

about the effect of a particular drug on birth defects in humans. Once the trial

court excluded this expert testimony, the plaintiff was unable to establish

causation. Accordingly, the trial court granted summary judgment for the

defendant.

Daubert reversed this grant of summary judgment. It noted the Frye test

was inconsistent with Rule 702. The trial court had erred in excluding this

proffered expert testimony.

Again, Daubert focused on two important principles in rejecting the Frye

test and in reversing the grant of summary judgment for the defendant. First, the

rules of evidence are designed to allow the jury or the fact-finder to consider all

Daubert, 509 U.S. at 489-95.9

relevant evidence. That is, evidence should generally be freely admitted. Second,

Rule 702 is similarly designed to admit expert testimony when it would assist the

jury or the fact-finder in its consideration of relevant evidence or in its

determination of the issues. 9

Daubert explained that Rule 702 is broad. The pertinent inquiry for a trial

court regarding the admission of expert testimony is “flexible.” A trial court

should examine whether a particular theory has been tested; whether it has been

subjected to peer review; whether there is a potential or known error rate; and

whether there is a level of acceptance within the relevant scientific community.

Aside from its analysis of Rule 702, Daubert established a “gatekeeping

role” for trial judges. Trial judges must screen proffered expert testimony and

determine whether it is admissible within the context of the rules of evidence.

Although Daubert rejected the Frye test and indicated that expert testimony

should generally be admitted, its assignment of “a gatekeeping role” for trial

judges proved somewhat problematic. Indeed, several subsequent decisions

created a situation in the federal courts where trial judges continued to exclude

proffered expert testimony and prevented plaintiffs from taking their cases to a

jury trial. For example, a trial court was permitted to exclude proffered expert

testimony if the linkage to the applicable data was provided only by the ipse dixit

See General Electric Company v, Joiner, 522 U.S. 136 (1997). General Electric10

involved testimony about a study of the impact of PCBs on baby mice and an extrapolation totheir effect on humans. The linkage between this study and the effect on humans came only fromthe opinion of the expert.

See Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999). Kumho Tire approved11

the use of the Daubert analysis by a trial judge to exclude non-novel expert testimony about thedesign defects of tires based solely on a visual examination by the expert.

See Weisgram v. Marley Company, 528 U.S. 440 (2000).12

Howerton, 358 N.C. at 458-69, 597 S.E.2d 686-93, reversing, 158 N.C. App. 316, 58113

S.E.2d 816 (2003).

of the expert. Daubert was later extended to all expert testimony, not just novel10

scientific techniques. Finally, the procedure under Daubert expanded to allow11

an appellate court to find a trial court abused its discretion in admitting certain

expert testimony and remand the matter for entry of judgment as a matter of law

rather than merely remand for reconsideration. Despite the breadth of Daubert in12

touting the general admissibility of expert testimony, the post-Daubert practice in

federal court saw the tendency toward excluding expert testimony and granting

summary judgment.

Reviewing what Howerton did to expert testimony in North Carolina

Howerton was the important post-Daubert decision in North Carolina. In

Howerton, the trial court excluded four experts proffered by the plaintiff. It based

this exclusion on its determinations of unreliability given the methodology used by

the experts and the experts lack of qualifications. After the trial court’s ruling was

affirmed by the Court of Appeals, the Supreme Court of North Carolina reversed. 13

Id. at 464, 597 S.E.2d at 690.14

State v. Goode, 341 N.C. 221, 321 S.E.2d 224 (1998).15

Howerton included a lengthy discussion and analysis of Daubert and its

aftermath with respect to federal practice and procedure. This analysis surmised a

primary result of Daubert in the federal courts was a reduction in jury trials in

civil cases, stemming in large part from the tendency of trial judges to exclude

expert testimony in the exercise of their “gatekeeping role.” It found this

“gatekeeping approach” to be “troublesome” and unduly “mechanistic.” 14

Unquestionably, Howerton’s displeasure with this development played a

significant role in the ruling.

In supporting its declaration that “North Carolina is not, nor has it ever

been, a Daubert jurisdiction,” Howerton examined North Carolina’s longstanding

jurisprudence regarding expert testimony. At the outset, it explained North

Carolina has never used the Frye test. It discussed numerous decisions in which

proffered expert testimony, both involving routine science and novel science, had

been evaluated for admissibility based upon the essential criterion of reliability. It

did so by underscoring North Carolina’s stated preference for juries being allowed

to hear relevant expert testimony and decide how to apply it to the facts of a case.

Howerton noted the applicable standard in North Carolina had been

articulated in State v. Goode. Under Goode, the requirement for reliability of15

Howerton, 358 N.C. at 461, 597 S.E.2d 687.16

Id. at 459-64, 597 S.E.2d at 686-89.17

expert testimony added nothing new to the law of scientific and technical evidence

in North Carolina. A trial court should initially look to precedent for guidance in

determining whether a particular scientific technique has been accepted or

rejected. In the absence of specific precedent, a trial court should look for “indices

of the liability,” including estimated techniques, the expert’s background, visual

aids for the jury, and the expert’s independent research.16

Howerton distilled the inquiry delineated in Goode and fashioned a three-

step process a trial court should use in determining whether to admit expert

testimony:

1. Is the expert’s proffered method of proof sufficiently reliable as anarea for expert testimony?

2. Is the witness qualified as an expert in that area of testimony?3. Is the expert’s testimony relevant?17

This three-step process from Howerton and Goode is essentially an inquiry

to the relevancy and reliability of the evidence. The evidence must, of course, be

relevant under Rule 401. It must make a material fact at issue more or lass likely

than it would be without the evidence. Then it must be reliable. A trial court

should look at whether the expert used established techniques. The trial court

should look at whether the expert has a professional background in the field. The

trial court should look at whether the expert did independent research. The trial

court should look at whether the expert has visual aids so the jury does not have to

accept the expert’s hypothesis at face value.

At bottom, Howerton noted Rule 702 should be read liberally, as the

drafters intended, to admit expert testimony so long as it is both relevant and

reliable. That is what Daubert said. In many ways, Howerton was no different

than Daubert, except for Howerton’s displeasure with the manner in which federal

trial judges had exercised their “gatekeeping role” to increase the cases in which

summary judgment was granted and thereby decrease jury trials.

Reviewing how Rule 702(a) compares to Daubert and Howerton

Rule 702(a) now requires three things. First, the proffered expert testimony

must be based upon sufficient facts or data. Second, the proffered expert

testimony must be the product of reliable principles and methods. Third, the

proffered expert must have applied the principles and methods reliably to the facts

of the case. These three steps are essentially what Daubert and, to a great extent,

Howerton and Goode require.

Rule 702(a) now specifies two things not explicitly delineated in Daubert or

Howerton: the expert’s testimony must be “based upon sufficient facts or data”

and the expert must have “applied the principles and methods reliably to the facts

of the case.” These notions may well have been implicit in Howerton and Goode,

Id. at 460, 597 S.E.2d at 687.18

as it is unclear how proffered expert testimony could have been deemed “reliable”

under these cases if it was not “based upon sufficient facts or data” through

“principles and methods” applied “reliably to the facts of the case.”

One aspect of Howerton and Goode that should not survive this amendment

is the binding force of precedent. Howerton expressly directed trial courts to look

to “precedential guidance” in deciding whether to admit expert testimony. 18

Applied rigidly, this notion would freeze scientific testimony or at least make it

more difficult for trial courts to revisit areas of expert testimony despite changes in

scientific understanding. In light of recent scientific understanding of techniques

heretofore accepted in criminal cases, such as blood spatter analysis and other

types of novel or “junk science,” Rule 702(a) should provide for reexamination of

admissibility.

One aspect of Howerton that should survive this amendment is North

Carolina’s preference for jury trials. In many ways, Howerton could be interpreted

as an indication that North Carolina is not a “summary judgment state,” as

opposed to North Carolina is not a “Daubert state.” Trial courts should remain

vigilant in affording parties the opportunity to have a trial on the merits and resist

the temptation to resolve disputes through summary judgment.

Conclusion

The essential teaching of Daubert, Goode, and Howerton is expert

testimony should be liberally and freely admitted so long as it is relevant and

reliable. Although reliability may be in the eye of the beholder, both Daubert and

Howerton strongly suggest a preference admitting expert testimony so the trier of

fact can consider it.

http://ncforensics.wordpress.com/2011/08/17/legislative‐change‐regarding‐expert‐testimony/

Legislative Change Regarding Expert Testimony By Alyson Grine, UNC School of Government Defender Educator (August 17, 2011) In S.L. 2011‐283 (H 542), the General Assembly revised North Carolina Evidence Rule 702(a). Rule 702(a) guides the trial court in serving a gatekeeper function with regard to expert testimony; the trial court must make a preliminary determination as to whether a witness has the qualifications to testify as an expert, and if so, whether the expert’s testimony is admissible. S.L. 2011‐283 was enacted as a part of new limits in civil tort actions; however, the amended rule applies to criminal cases as well as civil. Thus, criminal defenders are asking: to what extent has the framework for determining the admissibility of expert testimony changed? The amendments to Chapter 8C, Rule 702(a) read:

(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise, if all of the following apply: (1) The testimony is based upon sufficient facts or data. (2) The testimony is the product of reliable principles and methods. (3) The witness has applied the principles and methods reliably to the facts of the case.

The legislation does not alter the language pertaining to the qualifications of an expert. Instead, the legislation adds the above subparts to impose restrictions on the admissibility of expert testimony. The subparts are lifted verbatim from Federal Rule of Evidence 702 as amended in 2000, which was intended to codify the criteria for the admissibility of expert testimony established in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert established the modern standard for admitting expert testimony in federal trials; the Court set out five factors for trial judges to use as a measure of reliability in making a preliminary determination about the admissibility of scientific evidence: 1. Is the evidence based on a testable theory or technique; 2. Has the theory or technique been subjected to peer review and publication; 3. Does the technique have a known error rate; 4. Are there standards controlling operation of the technique; and 5. To what degree is the theory or technique generally accepted by the scientific

community? Id. at 593‐94.

In Howerton v. Arai Helmet, Ltc., 358 N.C. 440 (2004), the North Carolina Supreme Court rejected the federal standard for determining the admissibility of expert testimony. “North Carolina is not, nor has it ever been a Daubertjurisdiction.” Id. at 469. Instead, North Carolina has used the three‐part inquiry set forth in Howerton: “(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?” Id. at 458, relying on State v. Goode, 341 N.C. 513, 527‐29 (1995) (internal citations omitted). The first prong of the Howerton test includes a requirement that the expert’s method of proof be reliable, much like the second restriction in amended Rule 702(a). Unlike amended Rule 702(a), however, the Howerton test does not explicitly require that experts have sufficient facts and data for their opinions, or that they apply their methods reliably to the facts. Arguably, these were implicit requirements underHowerton as they are components of reliability. Some North Carolina decisions have recognized that experts should have sufficient facts and data for their opinions and should apply their methods reliably. See, e.g., State v. Grover, 142 N.C. App. 411, aff ’d per curiam, 354 N.C. 354 (2001). Amended Rule 702(a) makes it clear that trial judges must apply those requirements before allowing expert testimony before the jury. The approach that North Carolina adopted in Howerton was “less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach.” Howerton, 358 N.C. at 464 (internal citations omitted); see alsoRobert P. Mosteller et al., North Carolina Evidentiary Foundations at pp. 10‐15 to 10‐17 (2d ed. 2006). Amended Rule 702(a) may or may not mandate the precise approach required by Daubert, but by adopting the language of Federal Rule 702, the General Assembly has raised the bar (or better stated, “the gate”), thereby requiring greater scrutiny of expert testimony than the former North Carolina rule and the cases interpreting it. Court actors should not presume that a method of proof that was deemed sufficiently reliable under the former North Carolina rule and Howerton will be admissible under the amended rule. The subparts added by S.L. 2011‐283 are not a codification of Howerton, and it may no longer be good law. See Daubert, 509 U.S. at 586‐87 (holding that the “general acceptance test” of Frye v. United States,54 App. D.C. 46 (1923) was superseded by the adoption of the Federal Rules of Evidence). In response to the legislative changes, defenders should be prepared to conduct more rigorous scrutiny of experts to determine admissibility, which will require probing discovery, motions, and voir dire practices to determine whether the expert’s testimony complies with the amended requirements. As mentioned above, the amendments to Rule 702(a) are part of the “An Act to Provide Tort Reform for North Carolina Citizens and Businesses.” Possibly, the General Assembly did not have an eye to the impact the amendments would have on criminal practice in North Carolina. However, recent cases reveal growing concerns about unreliable expert testimony in criminal cases. See State v. Ward, 364 N.C. 133 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert identified substances based on a visual examination rather than a chemical analysis); State v. Davis, __ N.C. App. __, 702 S.E.2d 507 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert relied on odor analysis to conduct retrograde extrapolation of defendant’s blood alcohol concentration at time of accident);State v. Meadows, __ N.C. App. __, 687 S.E.2d 305 (2010) (expert’s testimony was not based on sufficiently reliable methods of proof where expert relied on the results of the NarTest machine). Thus, amended Rule 702(a) may be viewed as a timely reform in the criminal context. Note: A later bill (SL 2011‐317) makes the revised rule applicable to actions arising on or after October 1, 2011. For criminal cases, the rule likely applies to cases in which the offense occurred on or after that date.

1


NO. 2012/03 | SEPTEMBER 2012ADMINISTRATION OF JUSTICE BULLETIN

Confrontation Clause Update: Williams v. Illinois and What It Means for Forensic ReportsJessica Smith

IntroductionIn 2004, the United States Supreme Court decided Crawford v. Washington,1 a blockbuster decision that overruled the Ohio v. Roberts 2 reliability test that formerly applied to the Sixth Amendment’s Confrontation Clause and adopted an entirely new analysis. Simply put, under the new Crawford analysis, a testimonial hearsay statement by a person who does not testify at trial is inadmissible unless the prosecution establishes unavailability and a prior opportunity to cross-examine.3 Crawford’s dramatic impact on the criminal justice system cannot be ques-tioned. Ample statistics back up this claim, among them, this: Westlaw reports that since 2004 a jaw-dropping 32,700 citing references have been made to the Crawford decision.

Also since 2004, the Court has issued numerous follow-up decisions. Each answered some questions about the new analysis but also generated new areas of confusion. No case, however, aside from Crawford, has created quite as much confusion as the Court’s latest, Williams v.

Jessica Smith is a School of Government faculty member who specializes in criminal law and procedure.1. 541 U.S. 36 (2004).2. 448 U.S. 56 (1980).3. Elsewhere I have written in greater detail about the new Crawford test and the exceptions

to it. See Jessica Smith, Crawford v. Washington: Confrontation One Year Later (UNC School of Government, Apr. 2005), http://shopping.netsuite.com/s.nl/c.433425/it.A/id.4164/.f; Jes-sica Smith, Emerging Issues in Confrontation Litigation: A Supplement to Crawford v. Washington: Confrontation One Year Later (UNC School of Government, Mar. 2007), http://shopping.netsuite.com/s.nl/c.433425/it.A/id.4165/.f; Jessica Smith, Crawford Primer: The New Confron-tation Clause Analysis, in The Survival Guide: Superior Court Judges’ Benchbook (Sept. 2009), www.sog.unc.edu/node/2197; Jessica Smith, Understanding the New Confrontation Clause Analysis: Crawford, Davis, and Melendez-Diaz, Admin. Just. Bull. 2010/02 (Apr. 2010), http://sogpubs.unc.edu/electronicversions/pdfs/aojb1002.pdf [hereinafter Smith, Understanding the New Confrontation Analysis]. My blog posts addressing case-specific updates and related legislation can be found at the North Carolina Criminal Law, UNC School of Government Blog, http://nccriminallaw.sog.unc.edu; enter “Crawford” in the search box.

http://sogpubs.unc.edu/electronicversions/pdfs/aojb1002.pdf

http://sogpubs.unc.edu/electronicversions/pdfs/aojb1002.pdf

2 Administration of Justice Bulletin No. 2012/03 | September 2012


Illinois.4 Like Melendez-Diaz v. Massachusetts 5 and Bullcoming v. New Mexico 6 before it, Wil-liams dealt with the status of forensic reports under the Confrontation Clause. Williams held that the defendant’s Confrontation Clause rights were not violated when the State’s DNA expert testified to an opinion based on a report done by a non-testifying analyst. The case is important because neither Melendez-Diaz nor Bullcoming addressed the issue of whether a forensic expert could testify at trial to an independent opinion based on reports prepared by other analysts who did not themselves testify.7 But because Williams is a fractured decision in which no one line of reasoning garnered a five-vote majority, it has resulted in confusion and uncertainty. This bul-letin discusses Williams and addresses its implications on criminal cases in North Carolina.

Overview of WilliamsThe FactsIn Williams, the defendant Sandy Williams was charged with, among things, sexual assault of victim L.J. After the incident in question, L.J. was taken to the emergency room, where a doctor performed a vaginal exam and took vaginal swabs. The swabs and other evidence were sent to the Illinois State Police (ISP) Crime Lab for testing and analysis. An ISP forensic scientist, Brian Hapack, confirmed the presence of semen in the swabs. About six months later, the defendant was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court order. State forensic analyst Karen Abbinanti extracted a DNA profile from the sample and entered it into the ISP Crime Lab database. Meanwhile, L.J.’s swabs from the earlier incident were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs to the ISP Crime Lab, having derived a DNA profile for the person whose semen was recovered from L.J. Sandra Lambatos, a forensic specialist at the ISP lab, conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to the profile produced by Abbinanti from the defendant’s blood sample. The police then conducted a lineup, and L.J. identified the defendant as her assailant. The defendant was charged and in lieu of a jury trial chose to be tried before a state judge, as apparently was permissible in that jurisdiction.

The TrialAt the defendant’s bench trial, the State offered three expert forensic witnesses. First, Hapack testified that through an acid phosphatase test he confirmed the presence of semen on the vagi-nal swabs taken from L.J. He then resealed the evidence and left it in a secure ISP lab freezer. Second, Abbinanti testified that she used Polymerase Chain Reaction (PCR) and Short Tandem Repeat (STR) techniques to develop a DNA profile from the blood sample that was drawn from the defendant after his arrest, which she then entered into the state forensic database.

4. 567 U.S. ___, 132 S. Ct. 610 (2012).5. 557 U.S. 305 (2009).6. 564 U.S. ___, 131 S. Ct. 2705 (2011).7. Bullcoming, 564 U.S. ___, 131 S. Ct. 2705 (Sotomayor, J., concurring) (noting: “this is not a case in

which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence”).

Confrontation Clause Update: Williams v. Illinois and What It Means for Forensic Reports 3


Third, Lambatos testified as an expert for the State. On direct examination Lambatos explained how PCR and STR techniques are used to generate DNA profiles from forensic samples, such as blood and semen, and how DNA profiles could be matched to an individual based on the person’s unique genetic code. Lambatos stated that when comparing DNA profiles it is a “commonly accepted” practice within the scientific community for one DNA expert to rely on another DNA expert’s records. Lambatos testified that Cellmark was an accredited lab and that the ISP lab routinely sent evidence samples to Cellmark for DNA testing by Federal Express to expedite the process and reduce lab backlog. To keep track of evidence samples and preserve the chain of custody, analysts relied on sealed shipping containers and labeled ship-ping manifests. Lambatos added that experts in her field regularly rely on such protocols. When Lambatos was shown shipping manifests that were admitted into evidence as business records, she explained that they showed that the ISP lab had sent L.J.’s vaginal swabs to Cellmark and that Cellmark returned them, along with a determined male DNA profile. The prosecutor then asked Lambatos, “Did you compare the semen that had been identified by Brian Hapack from the vaginal swabs of [L.J.] to the male DNA profile that had been identified by Karen [Abbinanti] from the blood of [the defendant]?” Lambatos answered “Yes.” She testified that, based on her own comparison of the two profiles, she “concluded that [the defendant] cannot be excluded as a possible source of the semen identified in the vaginal swabs” and that the probability of the profile appearing in the general population was “1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.” Asked whether she would “call this a match to [the defendant],” Lambatos answered affirmatively. The Cellmark report itself was neither admitted into evidence nor shown to the trial judge. Lambatos did not quote or read from the report, nor did she identify it as the source of any of the opinions she expressed.

On cross-examination, Lambatos confirmed that she did not conduct or observe the testing on the vaginal swabs and that her testimony relied on the DNA profile produced by Cellmark. She stated that she trusted Cellmark to do reliable work because it was an accredited lab but admitted that she had not seen Cellmark’s calibrations or work in connection with the analysis at issue. Asked about potential degradation of the DNA sample, Lambatos indicated that while technically possible, she strongly doubted degradation had occurred for two reasons. First, the ISP lab likely would have noticed the degradation before sending the evidence to Cellmark. Second, Lambatos noted that the data making up the DNA profile would exhibit certain telltale signs if the sample had been degraded: the visual representation of the DNA sequence would exhibit “specific patterns” of degradation, which she “didn’t see any evidence” of from looking at the profile that Cellmark produced.

When Lambatos finished testifying, the defense moved to exclude her testimony regarding the Cellmark testing, arguing that it violated the Confrontation Clause. The objection was over-ruled, and the defendant was convicted.

Direct AppealOn appeal to the Illinois Supreme Court the defendant again argued that Lambatos’s testimony violated his Confrontation Clause rights. The Illinois court disagreed, reasoning that because the Cellmark report supplied a basis for Lambatos’s opinion it was not admitted for the truth of the matter asserted. The United States Supreme Court granted certiorari.



The U.S. Supreme Court’s Decision in WilliamsThe United States Supreme Court affirmed the judgment below. Justice Alito wrote the plural-ity opinion, which was joined by Chief Justice Roberts and Justices Kennedy and Breyer. The plurality determined that no Confrontation Clause violation occurred for two reasons. First, the Cellmark report fell outside of the scope of the Confrontation Clause because it was not used for the truth of the matter asserted. Second, no Confrontation Clause violation occurred because the report was non-testimonial. Justice Thomas concurred in judgment only. He agreed that the report was non-testimonial, though he reached this conclusion through different reasoning. Thomas disagreed with the plurality’s conclusion that the report was not used for the truth for the matter asserted. Justices Kagan, Scalia, Ginsburg, and Sotomayor dissented. The sections below explore the opinions in more detail.

The PluralityThe plurality first determined that the Cellmark report fell outside of the scope of the Confron-tation Clause because it was not used for the truth of the matter asserted. The plurality noted that for more than two hundred years evidence law has allowed testimony like that at issue in the case before it:

Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. While it was once the practice for an expert who based an opinion on assumed facts to testify in the form of an answer to a hypothetical question, modern practice does not demand this formality and, in appropriate cases, permits an expert to explain the facts on which his or her opinion is based without testifying to the truth of those facts. That is precisely what occurred in this case, and we should not lightly swee[p] away an accepted rule governing the admission of scientific evidence.8

Concluding that this type of expert testimony does not violate the Confrontation Clause, the plurality explained that the clause “has no application to out-of-court statements that are not offered to prove the truth of the matter asserted.” 9

The plurality distinguished the Court’s prior decisions in Bullcoming and Melendez-Diaz, characterizing them as involving forensic reports that were introduced for the truth of the mat-ter asserted: in Bullcoming, that the defendant’s blood alcohol level exceeded the legal limit; in Melendez-Diaz, that the substance in question was cocaine.10 Here, however, the plurality explained, “An expert witness referred to the report not to prove the truth of the matter asserted in the report, i.e., that the report contained an accurate profile of the perpetrator’s DNA, but only to establish that the report contained a DNA profile that matched the DNA profile deduced from petitioner’s blood.”11

As a second independent basis for its decision, the plurality concluded that even if the report had been used for the truth of the matter asserted, no Confrontation Clause violation occurred

8. Williams, 567 U.S. ___, 132 S. Ct. 610, slip op at 2–3 (citation and quotation omitted). 9. Id. at 3.10. Id. at 25.11. Id. at 26.



because the report was non-testimonial. The plurality determined that the Confrontation Clause was aimed at addressing two abuses: (1) out-of-court statements that have a primary purpose of accusing a targeted individual of criminal conduct and (2) formalized statements, such as affidavits and confessions.12 The plurality noted that in Melendez-Diaz and Bullcom-ing the forensic reports at issue violated the Confrontation Clause on both grounds: they were affidavits made for the purpose of proving the guilt of an arrested defendant and were done when no emergency was ongoing.13 It found the Cellmark report distinguishable on both points. The plurality reasoned that the Cellmark report was produced before a suspect was identified, was not sought to obtain evidence against the defendant (who was not even under suspicion at the time) but rather to catch a rapist who was on the loose, and was not inherently inculpatory.14 The plurality explained:

[T]he primary purpose of the Cellmark report . . . was not to accuse [the defen-dant] or to create evidence for use at trial. When the ISP lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against [the defendant], who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to incul-pate [the defendant]—or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no “prospect of fabrication” and no incentive to produce anything other than a scientifically sound and reliable profile.15

The plurality continued, noting that DNA profiles have the ability to incriminate and exon-erate and that the analysts preparing them “generally have no way of knowing whether it will turn out to be incriminating or exonerating—or both.”16 The plurality went on to note that “the knowledge that defects in a DNA profile may often be detected from the profile itself provides a further safeguard.”17 The plurality noted that Lambatos testified that she would have been able to determine whether the Cellmark sample had been degraded. Moreover, it concluded, there was no real chance that sample contamination, switching, mislabeling, or fraud could have occurred in the Cellmark analysis. The plurality explained:

At the time of the testing, [the defendant] had not yet been identified as a sus-pect, and there is no suggestion that anyone at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the complexity of the DNA molecule, it is inconceivable that shoddy work could somehow produce a DNA profile that just so happened to have the precise genetic makeup of [the defen-dant], who just so happened to be picked out of a lineup by the victim. The prospect is beyond fanciful.18

12. Id. at 29.13. Id. at 30–31.14. Slip op. at 3.15. Id. at 31.16. Id. at 32.17. Id.18. Id. at 32–33.



Finally, the plurality noted that if these types of reports could not be admitted without call-ing the analysts who prepared them, economic pressures would force prosecutors to build their cases on less reliable forms of evidence, such as eyewitness testimony.19

Thomas’s ConcurrenceJustice Thomas concurred in the judgment only. He disagreed with that portion of the plurality opinion concluding that the report was not used for the truth for the matter asserted, stating, “There is no meaningful distinction between disclosing an out-of-court statement so that a fact-finder may evaluate the expert’s opinion and disclosing that statement for its truth.” 20 However, Thomas agreed with the plurality that the report was non-testimonial, though he reached this conclusion through different reasoning. According to Thomas, the report was non-testimonial because it lacked the requisite “formality and solemnity.” He noted:

Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results obtained. The report is signed by two “reviewers,” but they neither purport to have performed the DNA testing nor certify the accuracy of those who did. And, although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation.21

Thomas distinguished Melendez-Diaz, noting that the report there was sworn before a notary by the preparing analyst.22 As to the report in Bullcoming, he noted that though it was unsworn, it included a “Certificate of Analysis” signed by the analyst who performed the testing.23 By contrast, he noted, the Cellmark report “certifies nothing.” 24 He continued: “That distinction is constitutionally significant because the scope of the confrontation right is properly limited to extrajudicial statements similar in solemnity to the Marian examination practices that the Confrontation Clause was designed to prevent.” 25 Finally, lest a clever declarant think that he or she can evade the Constitution under Thomas’s theory by making his or her report less formal, Thomas precluded that option, stating that “informal statements” are also testimonial when made to “evade the formalized process” previously used to generate them.26 No other Justice adopted Thomas’s test for testimonial evidence.

Breyer’s ConcurrenceJustice Breyer joined the plurality opinion but wrote a separate concurring opinion, arguing for additional briefing and reargument on grounds that neither the plurality nor the dissent ade-quately addresses how the Confrontation Clause applies to forensic reports. He explained:

This case raises a question that I believe neither the plurality nor the dissent answers adequately: How does the Confrontation Clause apply to the panoply

19. Id. at 4.20. Slip op., Thomas, J., concurring at 3.21. Id. at 9 (citations omitted).22. Id.23. Id.24. Id. at 10.25. Slip op., Thomas, J., concurring at 10.26. Id. at 9 n.5.



of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians? In this context, what, if any, are the outer limits of the “testimonial statements” rule set forth in Crawford v. Wash-ington, 541 U.S. 36 (2004)? 27

Allowing that the plurality’s rule was “artificial,” Breyer determined that the dissent did not offer a viable alternative.28 He noted that if the traditional “basis of opinion” rule were aban-doned, “there would seem often to be no logical stopping place between requiring the prosecu-tion to call as a witness one of the laboratory experts who worked on the matter and requiring the prosecution to call all of the laboratory experts who did so.” 29 He noted that laboratory experts regularly rely on technical statements and other experts’ results to form their own opinions and that, in reality, “the introduction of a laboratory report involves layer upon layer of technical statements (express or implied) made by one expert and relied upon by another.” 30 In an appendix, Breyer laid out typical lab procedures, suggesting that anywhere from six to twelve or more technicians might be involved in a single DNA report. Breyer found that neither the plurality nor the dissent adequately explained how Crawford applies to such forensic reports and the underlying technical statements made by laboratory technicians. He further noted the pressing nature of the question:

Answering . . . [this] question . . . , and doing so soon, is important. Trial judges in both federal and state courts apply and interpret hearsay rules as part of their daily trial work. The trial of criminal cases makes up a large portion of that work. And laboratory reports frequently constitute a portion of the evidence in ordinary criminal trials. Obviously, judges, prosecutors, and defense lawyers have to know, in as definitive a form as possible, what the Constitution requires so that they can try their cases accordingly.31

For these reasons, Breyer argued for additional briefing and reargument.

The DissentJustice Kagan wrote the dissenting opinion and, as noted above, was joined by Justices Scalia, Ginsburg, and Sotomayor. The dissent found the case indistinguishable from Bullcoming and Melendez-Diaz. The specific aspect of Lambatos’s testimony that troubled the dissent was the fact that Lambatos, not a Cellmark employee, informed the fact finder that the testing of L.J.’s vaginal swabs had produced a male DNA profile implicating the defendant.32 Kagan explained:

Have we not already decided this case? Lambatos’s testimony is functionally identical to the “surrogate testimony” that New Mexico proffered in Bullcoming, which did nothing to cure the problem identified in Melendez-Diaz (which, for its part, straightforwardly applied our decision in Crawford). Like the surrogate witness in Bullcoming, Lambatos could not convey what [the actual analyst]

27. Slip op., Breyer, J., concurring at 1.28. Id. at 3.29. Id.30. Id. at 4.31. Id. at 7.32. Slip op., Kagan, J., dissenting at 7.



knew or observed about the events . . . , i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the testing analyst’s part. Like the lawyers in Melendez-Diaz and Bull-coming, Williams’s attorney could not ask questions about that analyst’s profi-ciency, the care he took in performing his work, and his veracity. He could not probe whether the analyst had tested the wrong vial, inverted the labels on the samples, committed some more technical error, or simply made up the results. Indeed, Williams’s lawyer was even more hamstrung than Bullcoming’s. At least the surrogate witness in Bullcoming worked at the relevant laboratory and was familiar with its procedures. That is not true of Lambatos: She had no knowledge at all of Cellmark’s operations. Indeed, for all the record discloses, she may never have set foot in Cellmark’s laboratory.33

Kagan scoffed at the plurality’s “not for the truth” rationale, reasoning that the use of the Cell-mark report was “bound up with its truth.” 34 In Kagan’s view, Lambatos did not merely assume that the Cellmark DNA profile came from L.J.’s vaginal swabs but, rather, “affirmed, without qualification, that the Cellmark report showed ‘a male DNA profile found in semen from the vaginal swabs of [L.J.].’” 35 Significantly, Kagan continued:

Had she done otherwise, this case would be different. There was nothing wrong with Lambatos’s testifying that two DNA profiles—the one shown in the Cell-mark report and the one derived from Williams’s blood—matched each other; that was a straightforward application of Lambatos’s expertise. Similarly, Lam-batos could have added that if the Cellmark report resulted from scientifically sound testing of L.J.’s vaginal swab, then it would link Williams to the assault. What Lambatos could not do was what she did: indicate that the Cellmark report was produced in this way by saying that L.J.’s vaginal swab contained DNA matching Williams’s. By testifying in that manner, Lambatos became just like the surrogate witness in Bullcoming—a person knowing nothing about “the particular test and testing process,” but vouching for them regardless. We have held that the Confrontation Clause requires something more.36

As to the plurality’s rationale that the report was non-testimonial because it was not prepared for the primary purpose of accusing a targeted individual, Kagan derided, “Where that test comes from is anyone’s guess.” 37 Kagan also rejected the plurality’s suggestion that the report was prepared to respond to an ongoing emergency and that it was inherently reliable. Finally, Kagan rejected Thomas’s proposed approach.

33. Id. at 7–8 (citations and quotations omitted).34. Id. at 12.35. Id.36. Id. at 12–13 (footnote and citation omitted).37. Id. at 18.



Williams’s Implications for North Carolina Criminal CasesWhat’s the Law?As indicated above, Williams was a plurality opinion with Thomas concurring in judgment only. In this scenario, the narrowest rationale supporting the holding of the case prevails.38 Consider-ing Williams, however, it is not clear which rationale supporting the holding is the narrowest. Recall that the four-Justice plurality found that no confrontation violation occurred for two reasons: that the report was not used for the truth of the matter asserted and that it was non-testimonial. Assuming that the “not for the truth” rationale could even qualify as the narrow-est ground supporting the holding given that it was expressly rejected by Thomas, it is broader than the non-testimonial approach. The “not for the truth” rationale would allow in all forensic reports used as the basis of a testifying expert’s opinion. The non-testimonial approach would allow in only those reports that qualify as non-testimonial. Recall, also, that the plurality and Thomas did not agree as to why the Cellmark report was non-testimonial. The plurality con-cluded that the report was non-testimonial because it was not accusatory, was produced when the perpetrator was at large and before the defendant was under suspicion, and was not inher-ently incriminatory. Thomas, on the other hand, concluded that the report was non-testimonial because it lacked sufficient formality and solemnity. Although these rationales overlapped in this particular case, it is not clear that one is broader than the other. Thus, Williams might present a situation where rather than having broader and narrower opinions, the opinions are just different. If that is the case, the decision will not stand for a lot more than as the resolution of this particular dispute and possibly others involving very similar facts. Specifically, that no Confrontation Clause violation occurs when (1) a testifying expert states that she found a match between two DNA profiles and that one of the profiles was produced from certain evidence, (2) the testifying expert was not involved in producing the profile, (3) the profile was produced before the defendant was identified as a suspect, and (4) the analyst who did the testing did not have a matching profile for comparison. Amplifying the uncertainty of the case’s impact is the obvious philosophical schism at the high Court regarding the parameters of the new Craw-ford rule. With Williams, the four dissenters in Melendez-Diaz and Bullcoming are now in the plurality, able to capture Thomas’s fifth vote as to the holding but without support to overrule or clearly limit those decisions. With no reason to suspect that this conflict will be soon resolved, more uncertainty is the only certainty.

What about Existing N.C. Appellate Cases?In North Carolina, a host of post-Crawford appellate cases hold that no confrontation violation occurs when a substitute analyst relies on forensic reports done by non-testifying analysts.39 These cases rely on the rationale that the reports were not admitted for their truth but, rather, as the basis of the testifying expert’s opinion. This rationale, however, was rejected by five members of the Court in Williams, and thus these cases, while not technically overruled, stand on very shaky ground. That does not mean that the cases will necessarily come out differently—after

38. Marks v. United States, 430 U.S. 188, 193 (1977) (when no single rationale supporting the result gets five votes, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” (quotation omitted)).

39. Smith, Understanding the New Confrontation Clause Analysis, supra note 3, at 18 & n.89 (discuss-ing these cases).



all, Williams involved this exact type of testimony and no confrontation violation was found. The point is that the rationale of the existing North Carolina cases is likely to be held invalid. It would thus be a strategic blunder for the State to rely on this ground for admissibility and for the defense to fail to contest reliance on this authority.

Does the Fact that Williams Was a Bench Trial Matter?In the context of discussing the “not for the truth” rationale—a rationale that did not find support from five Justices—the Williams plurality emphasized the ability of the trial judge as fact finder to parse out which portions of Lambatos’s testimony were offered for the truth versus as a basis of her opinion. However, the plurality went on to clarify: “We do not suggest that the Confrontation Clause applies differently depending on the identity of the factfinder.”40 Thus, the fact that Williams was a bench trial would seem to have no significance in the confrontation analysis.

Are N.C.’s Notice and Demand Statutes Affected by Williams?No. Under those statutes, the State can procure a waiver of the defendant’s confrontation rights by properly serving the defendant with notice of its intent to introduce into evidence a forensic report without the presence of the preparer. If the defendant fails to object within a specified period of time, the defendant is deemed to have waived his or her confrontation rights. However, if the defendant lodges a timely objection, no waiver occurs. No such statute was at issue in Wil-liams, and none of the opinions mentioned them. Williams thus has no impact of the validity of these statutes.41

Does Williams Affect Melendez-Diaz and Bullcoming?No clear reasoning emerged from Williams, and it is not certain what if any precedential value the case will have. Melendez-Diaz and Bullcoming are still valid, but Williams seems to have limited them in some way. As Justice Kagan put it in her dissent, Melendez-Diaz and Bullcoming “apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority.”42 At a minimum, Williams seems to have carved out an exception to those cases that would apply to situations that track Williams’s particular fact pattern: while testifying that she found a match between two DNA profiles, an expert states that one of the profiles was produced from certain evidence; the testifying expert was not involved in producing that profile; it was produced before the defendant was identified as a suspect, and the analyst who did the testing did not have a matching profile for comparison.

What Does Williams Mean for “Multi-Analyst” Cases?Williams was a multi-analyst case in which no less than four analysts were involved in the test-ing (the Cellmark analyst, Hapack, Abbinanti, and Lambatos). Thomas’s opinion suggests that in fact two Cellmark analysts were involved.43 In his concurring opinion, Justice Breyer posits that

40. Slip op. at 19 n.4.41. For more information about North Carolina’s notice and demand statutes, see Smith, Understand-

ing the New Confrontation Analysis, supra note 3, at pp. 21–26.42. Slip op., Kagan, J., dissenting at 25.43. Slip op., Thomas, J., concurring at 9 (noting that the report was signed by two “reviewers”).



in the typical case involving DNA analysis as many as twelve analysts may be involved.44 Given the fractured nature of the case and its questionable value as precedent, how should multi-analyst cases be litigated? This section explores the possibilities.

The Gold Standard: The Prosecution Calls All of the AnalystsIn Williams, one analyst (Hapack) determined that the swabs contained semen. A second ana-lyst (a Cellmark employee) produced a DNA profile from the semen. A third analyst (Abbinanti) produced a DNA profile from the defendant’s blood sample. And a fourth analyst (Lambatos) compared the two profiles. The confrontation issue arose in Williams because although the prosecution called analysts one, three, and four, it did not call analyst two. Had analyst two been called, a confrontation issue would not have arisen. Thus, the gold standard for the State in a multi-analyst case is to call as witnesses all of the analysts involved in the testing.

For Risk Takers: Rely on WilliamsIn Williams, the State did not follow the gold standard approach and the conviction was upheld. Given the fractured nature of the decision and its questionable value as precedent, a risk-averse prosecutor will not be willing to rely on Williams in an important case. But even if the prosecu-tor is a risk taker, it is not clear how many analysts the prosecution can do without.45 In Wil-liams, only one analyst was missing. It is not clear that Williams would have come out the same way if, for example, Lambatos had been the only analyst to testify.

When One of the Analysts Is UnavailableSituations will arise in which it will not be possible for the prosecutor to call all of the analysts, even if he or she wants to do so. This could occur, for example, if one of the original analysts is deceased or serving National Guard duty abroad. In such a situation, the prosecution has a few possible alternatives. A discussion of each follows.

Retesting. The best option for the State when an analyst is unavailable is to have the evidence retested and to call the analyst who does the retesting to testify at trial. If that option can be taken, there will be no conflict with the Confrontation Clause.

Substitute Analysts. In situations where the relevant lab lacks capacity to retest or the evidence has been consumed or degraded such that retesting is not possible, the prosecution has little choice other than to call a substitute analyst. As has been noted, because of the fractured nature of the opinion and its questionable value as precedent, Williams did not advance our under-standing of the permissible scope of substitute analyst testimony. As also noted, some risk-taking prosecutors may choose to present their case, as was done in Williams, and hope for the best. A modification to that approach, however, is worth examining.

The dissent objected to that portion of Lambatos’s testimony affirmatively stating that Cell-mark generated the DNA profile from the semen on L.J.’s swab. But even the dissenters would have approved of Lambatos’s testimony if she had merely opined that the DNA profile produced by Cellmark matched that produced by the ISP lab but had not commented on the source of the

44. Slip op., Breyer, J., concurring at 5 & App. A.45. Slip op., Breyer, J., concurring at 4 (writing separately to emphasize that neither the plurality opin-

ion nor Thomas’s concurring opinion gives adequate guidance on how to deal with multi-analyst cases); slip op., Kagan, J., dissenting at 18 n.4 (noting that none of the Court’s cases addresses the issue of how many analysts must be called to testify regarding a particular report).



DNA (from L.J.’s vaginal swabs). Thus, a majority of the Court would appear to approve of the following testimony:

Q: Did you develop a match between the DNA profile provided by the Cellmark analyst and DNA profile provided by Ms. Abbinanti?

A: Yes, I did.46

Furthermore, Kagan stated that “Lambatos could have added that if the Cellmark report resulted from scientifically sound testing of L.J.’s vaginal swab, then it would link Williams to the assault.”47 This could be read as suggesting that careful direct-examination may render the testimony consistent with the Confrontation Clause. But such a statement should be qualified in the strongest possible way: it is not the holding of the case; it is a proposition gleaned from a fractured, confusing decision of questionable precedential value.

Even if this testimony is admissible, there remains the issue of authentication, which is nec-essary to establish its relevance.48 Absent the missing analyst, the prosecution could possibly authenticate the DNA profile through careful chain of custody evidence.49 Chain of custody information, of course, is itself testimonial and therefore requires a live witness.50

Even if chain of custody is established, evidence Rule 403 might bar admissibility.51 In addi-tion, as a practical matter the defense may be able to severely undercut the value of the evidence through skillful cross-examination that undermines key assumptions supporting the expert’s opinion (such as the provenance of the sample and the quality of the testing).

Forgoing the Forensic Evidence. The option of forgoing forensic evidence was foreshadowed in the opinions of the plurality and Justice Breyer.52 Clearly there will be no Confrontation Clause issue if the State abandons the forensic evidence.

What Does Williams Mean for “Single-Analyst” Cases?Some forensic tests typically involve only one analyst.53 The gold standard for these cases is the same as for multi-analyst cases: for the prosecution to call the original analyst. When that is not possible, retesting is the next best option, as it is for multi-analyst cases. Where the State does not wish to forgo using the evidence and neither calling the original analyst nor retesting is feasible, the question becomes: can a substitute analyst testify? Assuming that Williams ends up

46. Slip op. at 17–18; slip op., Kagan, J., dissenting at 12 (“There was nothing wrong with Lambatos’s testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Wil-liams’s blood—matched each other.”).

47. Slip op., Kagan, J., dissenting at 12.48. Slip op. at 24 (“Of course, Lambatos’ opinion would have lacked probative value if the prosecution

had not introduced other evidence to establish the provenance of the [DNA] profiles . . . ”).49. In Williams, the plurality thought this occurred. Slip op. at 20 n.6 & 22–23 (noting that in Wil-

liams the foundational fact that one of the profiles came from the defendant and that the other came from the semen on the swabs was established by chain of custody information).

50. Smith, Understanding the New Confrontation Analysis, supra note 3 at 17.51. See, e.g., State v. King, No. 385A11 (N.C. filed June 14, 2012) (trial court did not abuse its discretion

by excluding the State’s expert testimony regarding repressed memory under Rule 403).52. Slip op. at 4; slip op., Breyer, J., concurring at 13.53. Slip op. at 31 (noting that drug tests and tests to determine blood-alcohol level are generally per-

formed by a single analyst).



having some small value in the multi-analyst case, its value is likely to be even more attenuated in the single-analyst scenario. Williams involved a scenario in which three of the four ana-lysts involved actually testified at trial. If a single analyst is unavailable in a single-analyst case, procuring even one witness who was actually involved in the testing will be impossible, and thus this scenario is significantly different from that in Williams. Nevertheless, some may rely on the language noted above from Justice Kagan’s dissent to suggest a possible path for admis-sibility: “Lambatos could have added that if the Cellmark report resulted from scientifically sound testing of L.J.’s vaginal swab, then it would link Williams to the assault.” 54 Suppose, for example, that the original analyst in a drug case (Analyst A) is unavailable and the evidence was consumed in testing. Suppose further that the State offers an evidence custodian from the lab who establishes chain of custody of the tested sample and that this evidence is deemed sufficient to establish the provenance of the test results.55 The judge then qualifies Analyst B as an expert substitute analyst. Analyst B works in the same lab that did the testing. Analyst B testifies that lab protocol requires that five specific tests must be done to determine whether a substance is cocaine. Analyst B then describes those tests and their implications. Analyst B then testifies:

A: If Analyst A in fact performed the tests as indicated, if they were performed according to lab protocol and in a scientifically sound manner, and if Analyst A properly recorded the results of the tests that were done, I would conclude, based on these results reported, that the substance was cocaine.

Because even the Williams dissenters would appear to approve of this testimony, the argument would seem to have legs. But the qualifier noted above as to the related argument in the multi-analyst discussion applies here as well: this is not the holding of the case; it is a proposition gleaned from a fractured, confusing decision of limited procedural value. Of course, even if this testimony were permissible under the Confrontation Clause, the trial judge might exclude it under Rule 403.56 And even if it is not excluded under the evidence rules, the defense would have a field day on cross-examination, with questioning along these lines:

Q: Can you personally verify that the five required tests were done?A: No.Q: Can you personally verify that the tests were done according to lab protocol?A: No.Q: Can you personally verify that Analyst A properly recorded the tests?A: No.

Thus, even if the testimony is permissible—and that is a big if—it is not clear that it would ulti-mately aid the prosecution.

54. Slip op., Kagan, J., dissenting at 12.55. See slip op. at 20 n.6 & 22–23 (noting that in Williams the foundational fact that one of the profiles

came from the defendant and that the other came from the semen on the swabs was established by chain of custody information).

56. See, e.g., King, No. 385A11 (trial court did not abuse its discretion by excluding the State’s expert testimony regarding repressed memory under Rule 403).

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Does Williams Affect Other “Not for the Truth” Decisions?Crawford noted that the use of testimonial statements for purposes other than establishing the truth of the matter asserted does not violate the Confrontation Clause.57 Since Crawford, courts have found that when evidence is admitted for a purpose other than the truth of the matter asserted, it falls outside of the scope of the Crawford rule. Such purposes have included

• basis of an expert’s opinion, • impeachment, and • corroboration.58

The basis of an expert’s opinion exception was at the heart of Williams, and this first rationale offered by the plurality failed to secure at least five votes. It thus is of questionable viability. However, all of the Justices appear to agree that evidence offered for impeachment purposes still falls outside of the Confrontation Clause.59 It is not clear whether they will come to the same conclusion regarding corroborative evidence.

What’s on the Horizon?First, more litigation. We still do not have clear direction from the high Court on how to deal with substitute analysts. Thus, there will be more litigation as the lower courts try to sort out the law. Second, more fractured opinions from the high Court. Crawford was decided in 2004. Since then the Court’s composition has changed, and Justice Scalia’s “stronghold” on Confronta-tion Clause doctrine has eroded, evidenced by, among other things, his now repeated position in the dissent. Furthermore, some members of the Court are open to reconsidering the issues.60 All of this suggests that the conflict among the Justices will not soon be resolved.

57. Crawford, 541 U.S. at 59–60 n.9.58. Smith, Understanding the New Confrontation Analysis, supra note 3 at 18–20.59. Slip op. at 2–3; slip op., Thomas, J., concurring at 3 (calling this a “legitimate nonhearsay purpose”);

slip op., Kagan, J., dissenting at 9–10.60. Slip op. at 29 n.13 (“Experience might yet show that the holdings in those cases should be reconsid-

ered for the reasons, among others, expressed in the dissents the decisions produced.”); slip op., Breyer, J., concurring at 7–8 (advocating for reargument so that the Court can consider any “necessary modification of statements” in earlier Crawford cases).

2/21/2013

1

Lab Reports and the Legal Issues Surrounding Them

Sarah Rackley Olson, IDS Forensic Resource Counsel

Alyson Grine, Defender Educator

2/21/2013

2

Lab Reports

Getting Lab Reports

http://www.ncids.com/forensic/motions/motions.shtml

Make sure you have underlying data, not just the final report

More than just the report: Communication logs Corrective actions (in materials) Audits (in materials) Certification Exam results

Lab Legal Counsel: Joy Strickland –[email protected], (919) 662-4509 ext. 4400

2/21/2013

3

Certification Exams

Certification Exams

Forensic Sciences Act of 2011 requires State Crime Lab analysts become certified http://www.ncids.com/forensic/sbi/analyst_ce

rtification/certification.shtml

Several analysts failed their certification exams one or more times

Third round of ABC certification exams given mid-December, now 98.7% of “eligible” analysts are certified

Understanding Lab Reports What test results do you see? What tests have been performed? What tests have not been performed? Ask: Do I understand what this test can

and cannot prove? http://www.ncids.com/forensic/resources/

resources.shtml

2/21/2013

4

New lab procedures

State Crime Lab (SBI lab) – new procedures went into effect Sept. 17, 2012

http://www.ncdoj.gov/About-DOJ/State-Bureau-of-Investigation/Crime-Lab/ISO-Procedures.aspx

Request lab procedures in discovery!! Put into place without review by NC Forensic Science

Advisory Board See comments of experts (in materials)

Local crime labs – should be in the process of seeking ISO accreditation

Presumptive vs. Confirmatory Tests

Presumptive tests (aka screening tests, preliminary tests or field tests) Can establish the possibility that a specific substance

is present

Confirmatory tests Can conclusively identify a specific substance

2/21/2013

5

Virtual CLE: Presumptive and Confirmatory Forensic Tests

Lab Tours

2/21/2013

6

Lab Tours

Dates: April 26, June 14 and July 12, 2013 (Regional Lab tour dates TBD)

RSVP: Stormie Forte - [email protected]

Working with Experts

Working with Experts Database of experts:

http://www.ncids.com/forensic/experts/experts.shtml

Please provide feedback on experts “Guide to Working with Experts” (in

materials) Vetting an expert Referral questions Questions to ask during your first

conversation with the expert

2/21/2013

7

Confrontation Clause

Crawford v. Washington (2004)

Testimonial hearsay statement by witness who is not subject to cross at trial is not admissible… UNLESS:

1) Witness unavailable, and

2) Prior opportunity for cross

21

2/21/2013

8

Notice and Demand Statutes

Substitute Analyst

Testing Analyst (not available at trial)

Testifying Analyst

Williams v. Illinois (USSC) (p. 24)

This is your brain after trying to figure out the holding.

2/21/2013

9

Admissibility of Expert Testimony

Howerton, 358 N.C. 440: Method of proof is

sufficiently reliable Witness is qualified as an

expert in that area Expert’s testimony is

relevant

Revised Rule 702(a): Testimony is based

upon sufficient facts or data.

Testimony is product of reliable principles and methods.

Witness has applied principles and methods reliably to facts of case

Stay Informed!

Website: http://www.ncids.com/forensic Blog: http://ncforensics.wordpress.com/ Twitter: @IDSforensics Available for case consultation:

Sarah Rackley [email protected]

DISCOVERY

Excerpts from Summaries of Legislation on Criminal Discovery

1. Excerpt from 2004 Legislation Affecting Criminal Law and Procedure: Summarizes “open-file” discovery law enacted by the 2004 NC General Assembly, which significantly expanded criminal defendants’ statutory right to discovery

2. Excerpt from 2007 Legislation Affecting Criminal Law and Procedure:

Summarizes limited changes to discovery law enacted by the 2007 NC General Assembly 3. Excerpt from 2009 Legislation Affecting Criminal Law and Procedure:

Summarizes limited changes to discovery law enacted by the 2009 NC General Assembly 4. Excerpt from 2011 Legislation Affecting Criminal Law and Procedure: Summarizes limited changes to discovery law enacted by the 2011 NC General Assembly The full summaries are available at www.sog.unc.edu/node/1791

http://www.sog.unc.edu/node/1791�

administration of justice Number 2004/06 October 2004

2004 LEGISLATION AFFECTING CRIMINAL

LAW AND PROCEDURE

John Rubin

Criminal Discovery 2

Domestic Violence 8

Criminal Offenses 13

Criminal Procedure and Evidence 15

Motor Vehicles 16

Juveniles 18

Law Enforcement 19

Sentencing 19

Capital Punishment 19

Victims Rights 20

Collateral Consequences 21

Court Administration 21

Studies 23

The General Assembly enacted three major pieces of legislation in the field of criminal law

and procedure as well as numerous smaller acts. The General Assembly significantly

expanded the discovery rights of both the defense and prosecution in criminal cases. It

enacted a package of legislation recommended by the House Select Committee on Domestic

Violence, making changes that affect domestic violence prosecutions and criminal law

generally. And, it significantly increased the punishments for offenses involving the

controlled substance methamphetamine.

Each ratified act discussed here is identified by its chapter number in the session laws and

by the number of the original bill. When an act creates new sections in the General Statutes

(G.S.), the section number is given; however, the codifier of statutes may change that number

later. Copies of the bills may be viewed on the website for the General Assembly,

http://www.ncga.state.nc.us/.

John Rubin is a School of Government faculty member who specializes in criminal law and

procedure.

jrubin

Rectangle

Administration of Justice Bulletin No. 2004/06 October 2004

2

Some of the material in this bulletin was drawn

from the forthcoming School of Government

publication NORTH CAROLINA LEGISLATION 2004. That

publication will be posted on the School’s web site at

http://ncinfo.iog.unc.edu/pubs/nclegis/

index.html and can be ordered from the School’s

publication sales office. Contact information for the

publications department is included on the last page of

this bulletin.

Criminal Discovery

A defendant’s right to pretrial discovery in cases

within the original jurisdiction of the superior court

(that is, felonies and misdemeanors joined with

felonies) has been limited to fairly narrow statutory

categories. The defendant was entitled to obtain

discovery of his or her own statements, statements of

codefendants, documents that the state intended to use

at trial or that belonged to the defendant, reports of

examinations and tests in connection with the case, and

statements of witnesses once the witness testified. The

defendant’s obligation to provide information to the

state has also been limited. A defendant had to turn

over documents and reports of examinations and tests

that he or she intended to introduce at trial but little

more. Both sides complained that criminal proceedings

amounted to “trial by ambush.”

Many district attorneys adopted “open-file”

discovery policies, allowing defendants access to

investigative and other materials beyond the statutory

categories. But, the decision to have an open-file

policy rested with individual district attorney’s offices.

There also was not a uniform understanding of what

information a defendant could review under an open-

file policy; and, if a prosecutor failed to turn over

information covered by the policy but not legally

required, a defendant had little, if any, recourse.

To ensure greater openness in the discovery

process, S.L. 2004-154 (S 52) revises the statutory

discovery rights of both the defense and prosecution.

The procedure for obtaining discovery remains

essentially the same, but the categories of discoverable

information differ significantly. This bulletin

summarizes the new discovery provisions and provides

some guidance concerning how the changes may apply

in practice.

Applicability and Effective Date

G.S. 15A-901 continues to provide that the revised

discovery article (Ch. 15A, Art. 48) applies only to

cases within the superior court’s original jurisdiction.

It does not apply to misdemeanors heard initially in

district court or appealed for trial de novo to superior

court. A defendant does not have the right to discovery

in those cases except to the extent guaranteed by the

United States and North Carolina Constitutions (a

defendant has the right to exculpatory evidence) or by

other statutes (for example, under G.S. 20-139.1(e), a

defendant has the right in impaired driving cases to a

copy of the record of the chemical analysis).

The changes become effective October 1, 2004,

and apply to cases in which the trial date set pursuant

to G.S. 7A-49.4 is on or after October 1, 2004. In other

words, in addition to future cases, the new discovery

provisions apply to pending cases in which the trial is

not set to commence before October 1. Thus, if the

trial is set for a date before October 1 but is continued

to a date after October 1, the new discovery provisions

may not apply. (A broader interpretation of the

effective-date language would be that the new

discovery provisions apply to cases in which the trial

has not actually commenced before October 1.)

What must the parties do to exercise their new

discovery rights in pending cases? For cases in which

the defendant is represented by counsel and the

probable cause hearing has not yet been held or

waived, the parties would have to comply with the

normal timelines for requesting discovery (for

defendants represented by counsel, within ten working

days of the probable cause hearing or waiver, and for

the prosecution within ten working days of when it

provides discovery in response to the defendant’s

request). In cases in which those dates have already

passed but the trial has not yet occurred, the parties

could not have complied with those timelines because

they had no right to request the broader discovery until

the act’s effective date. The legislation does not set a

specific deadline or procedure to follow to obtain the

broader discovery in those cases, and probably the

safest course for the parties to take is to make a new

discovery request as soon after the act’s effective date

as possible.

Basic Procedures

With minor revisions, G.S. 15A-902 continues to

establish the basic procedure for obtaining discovery.

The principal procedural changes do the following:

expand the circumstances in which a defense request

for discovery triggers reciprocal discovery rights by

the prosecution; allow the parties to apply ex parte for

a protective order limiting disclosure (in G.S. 15A-

908); modify the standard for obtaining sanctions (in

October 2004 Administration of Justice Bulletin No. 2004/06

3

G.S. 15A-910); and recognize explicitly that the parties

may waive the requirement of a written request for

discovery. There are additional procedural changes that

apply to specific categories of discovery (for example,

the disclosure of the identity of witnesses), which are

discussed below in connection with the particular

category of information.

Defense Discovery Requests. Under G.S. 15A-

902, the defendant ordinarily remains responsible for

initiating the discovery process by making a written

request that the prosecution voluntarily provide

discovery. A new provision, discussed below, waives

the requirement of a written request if the parties have

entered into a written agreement to that effect, but for

purposes of this discussion it is assumed there is no

written agreement in place. If dissatisfied with the

prosecution’s response to the discovery request, the

defendant may file a motion with the court to compel

the requested discovery. If the court orders discovery

and the prosecution fails to comply, the defendant may

ask the court for sanctions. The time limit for making

an initial discovery request is the same as under prior

law. If the defendant is represented by counsel, the

defendant may as a matter of right request discovery

no later than the tenth working day after either the

probable cause hearing or the date the defendant

waives the hearing. (The time limits for unrepresented

defendants also remain the same as under prior law.)

G.S. 15A-902 continues to state that if the

prosecution voluntarily provides discovery in response

to a written request, the prosecution assumes the

obligation to provide discovery as if under order of the

court. (Revised G.S. 15A-903(b), which describes the

information the prosecution must provide in discovery,

reiterates this requirement.) An important consequence

of this principle is that without first obtaining a court

order compelling discovery, the defendant may request

sanctions for the prosecution’s failure to provide

discovery.

Prosecution Discovery Requests. In most

respects, the same procedures apply to prosecution

discovery requests. The prosecution must make a

written request for discovery (unless there is a written

agreement waiving the requirement) and, if dissatisfied

with the response, must follow up with a motion to

compel discovery. If following a written request the

defendant voluntarily provides discovery or the court

orders discovery, the prosecution may seek sanctions

for non-compliance. As under prior law, the

prosecution must make its discovery request within ten

working days of when it provides discovery to the

defendant.

The prosecution’s right to discovery differs in one

significant respect from the defendant’s rights. At least

in principle, the defendant controls whether the

prosecution obtains discovery, although in practice

most defendants will rarely exercise this right. As

under prior law, the prosecution has the right to

discovery from the defendant only if the defendant

requests discovery of the prosecution and either the

prosecution voluntarily furnishes the discovery in

response or the court compels discovery. (G.S. 15A-

905(c), which sets forth the new categories of

information that the defendant must provide to the

prosecution, reiterates that if the prosecution

voluntarily furnishes discovery in response to a written

request for discovery, the discovery is deemed to have

been made under court order and therefore triggers the

prosecution’s reciprocal discovery rights; this language

does not change existing law, embodied in G.S. 15A-

902(b).) Consequently, if the defendant does not make

a written request for discovery, the prosecution has no

right to discovery from the defendant.

The circumstances in which a defendant opts not

to take advantage of discovery from the prosecution

should be rare, however. Under the revised statute, the

defendant must make an all-or-nothing decision about

discovery. If the defendant makes a written request for

any statutory discovery and the prosecution voluntarily

provides discovery or is ordered to do so by the court,

the prosecution gains full discovery rights. Previously,

a defendant could pick and choose which discovery

rights to afford the prosecution by selecting which

categories of discovery it wanted. For example, if the

defendant requested all of the discovery categories

from the prosecution except reports of examinations

and tests, the prosecution had no right to reciprocal

discovery of the defendant’s reports of examinations

and tests. The General Assembly accomplished this

change by providing that the prosecution is entitled to

the discovery set forth in each subsection of G.S. 15A-

905 if the court grants any relief sought by the

defendant under G.S. 15A-903, the section giving the

defendant discovery rights. Previously, each subsection

of G.S. 15A-905 was limited to the corresponding

subsection of G.S. 15A-903.

Written Agreements. Revised G.S. 15A-902(a)

and (b) recognize that a written request for discovery is

not required of either party if they have agreed in

writing to comply voluntarily with the statutory

discovery requirements. A written agreement, in other

words, takes the place of a written request. While the

provision allows the parties to enter into a written

agreement on a case-by-case basis, the main purpose of

the provision was to clarify the enforceability of

standing discovery agreements such as in Mecklenburg

County. There, the District Attorney and the Public

Defender’s office have had an agreement to provide


4

discovery without a written request by the opposing

party, reducing the need for form discovery requests by

both sides. Because the state is a party in all criminal

prosecutions, a District Attorney should be able to

enter into such an agreement and bind the state in all

prosecutions in that district. Such an agreement would

have a more limited effect on defendants because a

Public Defender can act only on behalf of clients

represented by his or her office. In addition, because

the defendant is not the same party in each case, a

standing agreement would have to give Public

Defender clients the right to opt out if they wanted to

forego discovery of the prosecution and avoid

triggering reciprocal discovery.

Protective Orders. G.S. 15A-908(a) has allowed

either party to apply to the court, by written motion,

for a protective order protecting information from

disclosure for good cause, such as substantial risk to

any person of physical harm, intimidation, bribery,

economic reprisals, or unnecessary annoyance or

embarrassment. The statute is revised to provide that a

party may now apply ex parte for such an order. Under

the revised provision, if an ex parte protective order is

granted, the opposing party receives notice of entry of

the order but not the subject matter of the order. The

revised section does not specify any further

procedures, but the court should maintain under seal

the motion, order, and information protected by the

order in the event disclosure is required at trial or the

propriety of the order is challenged on appeal.

Sanctions. G.S. 15A-910 has provided that a party

may seek sanctions if the responding party has failed to

comply with an order for discovery, including

voluntary discovery deemed to be made under court

order. The revised section adds that the court, before

imposing sanctions, must consider both the materiality

of the subject matter and the totality of the

circumstances surrounding an alleged failure to

comply. The extent to which this new requirement

changes existing law is not clear.

Continuing Duty to Disclose. G.S. 15A-907,

which imposes a continuing duty to disclose

discoverable evidence, was not materially changed.

Defense Discovery Rights

The legislation completely rewrites G.S. 15A-903, the

section giving the defense discovery rights, by deleting

all of the former discovery categories and creating

three new ones: investigative and prosecutorial files,

expert witnesses, and lay witnesses.

Investigative and Prosecutorial Files. The most

significant discovery category is in new G.S. 15A-

903(a)(1), which provides that the state must make

available to the defendant “the complete files of all law

enforcement and prosecutorial agencies involved in the

investigation of the crimes committed or the

prosecution of the defendant.” This provision is

patterned after G.S. 15A-1415(f), revised in 1996 to

give defendants sentenced to death the right to open-

file discovery in post-conviction proceedings. The

pretrial and post-conviction provisions differ in one

important respect, however. In capital post-conviction

proceedings, the law provides no protection for the

prosecuting attorney’s work product (although the state

may ask the court in the interests of justice to deny

access to some files). See State v. Bates, 348 N.C. 29

(1998). In contrast, revised G.S. 15A-904, discussed

below, continues to protect before trial materials

containing the prosecuting attorney’s theories,

strategies, and other mental processes. The new pretrial

discovery provision also differs from the post-

conviction discovery provision in that the pretrial

provision does not provide that the state’s disclosure

obligation is “to the extent allowed by law.”

Interpreting this qualifying language in the context of

capital post-conviction proceedings, the North

Carolina Supreme Court in Bates held that the state is

not required to produce information that it is prohibited

by other laws from disclosing. Because this

qualification does not appear in the new pretrial

discovery provisions, the state would appear to be

obligated to disclose all evidence it obtains in the

investigation or prosecution of the defendant. (Even

under the capital post-conviction provision, the extent

to which the state is actually prohibited from

disclosing information, once the state comes into

possession of the information, is unclear.) There

conceivably could be some circumstances, however, in

which other laws might preempt the statutory

discovery requirements.

The new subsection provides a definition of the

term “file,” stating that it includes “the defendant’s

statements, the codefendants’ statements, witness

statements, investigating officers’ notes, results of tests

and examinations, or any other matter or evidence

obtained during the investigation of the offenses

alleged to have been committed by the defendant.”

This definition, particularly the last clause, makes it

clear that the defendant is not literally entitled to

review all of the files of an agency involved in the

investigation or prosecution of a defendant; rather, the

defendant is entitled to the complete agency files

concerning the investigation or prosecution of the

defendant. For example, a defendant would be entitled

to law-enforcement files concerning the investigation

of the offenses allegedly committed by the defendant


5

but would not necessarily be entitled to information

from other files, such as the investigating officer’s

personnel file or the files of investigations of other

offenses, unless the investigation or prosecution of the

defendant involved that information or other grounds

warranted disclosure, such as that the files contained

exculpatory evidence.

The definition of “file” repeats some of the

categories of information that the prosecution formerly

had to provide—the defendant’s statements,

codefendants’ statements, and results of tests and

examinations. Presumably, the defendant (and the

prosecution to the extent it is entitled to discovery of

the defendant’s tests and examinations) would be

entitled to the data underlying the tests and

examinations, as under prior law. See State v.

Cunningham, 108 N.C. App. 185 (1992) (interpreting

prior discovery statute, which gave defendant right to

discover results and reports of tests and examinations,

court held that defendant was entitled to underlying

data).

The definition also adds new categories of

discoverable information. Thus, the prosecution must

turn over witness statements in pretrial discovery;

previously, the statute required the state to turn over

witness statements only after the witness testified and

only if the statement fell within the definition of

witness statement in repealed G.S. 15A-903(f)(5)

(requiring disclosure only of statements signed or

otherwise adopted or approved by the witness,

recorded statements, and substantially verbatim

transcriptions of statements). The prosecution also

must turn over officer notes; previously, the statute

required that an officer’s notes (as well as officer

reports) be turned over only to the extent they

contained information within specific statutory

discovery categories. The definition includes a catch-

all requirement that the state turn over any other matter

or evidence obtained during the investigation of the

offenses alleged to have been committed by the

defendant.

As under prior law, the defendant has the right to

inspect and obtain copies or photographs of

discoverable information and, under appropriate

safeguards, to test physical evidence. This language

tracks prior law. The subsection also states that oral

statements shall be in written or recorded form.

Previously, only oral statements of defendants and

codefendants had to be reduced to writing or recorded.

The new provision is not limited to defendants and

codefendants, and its reach is not clear.

What agencies’ files must the prosecution obtain

and make available for the defendant’s review? The

language of the statute both establishes the

prosecution’s obligation and limits it, although there

may be lingering questions. The clearest way to

consider this issue may be to look at different types of

agencies.

1. Obviously, files within the prosecuting

district attorney’s own office are subject to

the new discovery requirements.

2. The files of state and local law-enforcement

offices (as well as other district attorney’s

offices) involved in investigating the

defendant are also subject to discovery.

Revised G.S. 15A-501 reinforces this

obligation, stating that following arrest of a

person for a felony, law enforcement has the

duty to make available to the prosecutor on a

timely and continuing basis all materials and

information acquired in the course of the

investigation. These requirements are similar

to the obligations the state had under the prior

discovery statute and under Brady v.

Maryland, 373 U.S. 83 (1963), the United

States Supreme Court decision requiring the

state to turn over exculpatory evidence. See

Kyles v. Whitley, 514 U.S. 419, 437 (1995)

(prosecutor has duty to learn of favorable

evidence known to others acting on

government’s behalf in case); State v. Smith,

337 N.C. 658, 662 (1994) (under Brady,

prosecution deemed to have knowledge of

information in possession of law

enforcement); State v. Pigott, 320 N.C. 96,

102 (1987) (court holds under prior discovery

statute that prosecutor is obligated to turn

over discoverable information in possession

of “those working in conjunction with him or

his office”; photographs taken by law-

enforcement officer were subject to

discovery).

3. The files of state and local agencies that are

not law-enforcement or prosecutorial

agencies, such as schools and social services

departments, would appear to be exempt from

the statutory discovery procedures in most

circumstances. A defendant may still be

entitled to the information in some instances,

however. First, the disclosure requirements

would apply to materials obtained from other

agencies by law-enforcement or prosecutorial

agencies during the investigation of the

defendant. Second, in some circumstances a

defendant may have the right to obtain the

information directly from the agency in

possession of it, by subpoena or motion to the


6

court. See generally Pennsylvania v. Ritchie,

480 U.S. 39 (1987) (describing defendant’s

right to obtain records in possession of third

parties). Third, an agency could be so

involved in a criminal investigation that it

could be considered to be acting in a law-

enforcement capacity, and the portion of its

files pertaining to the investigation could

become subject to the statutory disclosure

requirements. Whether an agency has crossed

this line may be difficult to determine. See

generally State v. Morrell, 108 N.C. App. 465

(1993) (social worker representing abused

child acted as law-enforcement agent in

interviewing defendant, rendering

inadmissible custodial statements made to

worker without Miranda warnings); Martinez

v. Wainwright, 621 F.2d 184, 186–88 (5th

Cir. 1980) (in case applying Brady v.

Maryland, court found that prosecution was

obligated to disclose evidence in medical

examiner’s possession; although not a law-

enforcement agency, medical examiner’s

office was participating in criminal

investigation).

4. Information collected by federal agencies may

be subject to disclosure in some

circumstances. The prosecution would be

obligated to turn over information that it or

state or local law-enforcement agencies

obtained from federal agencies (unless the

prosecution obtained a protective order).

When state and federal law-enforcement

agencies are engaged in a joint investigation

of the defendant, the prosecution also may

have an obligation to request information

obtained by the federal agency. Ultimately,

however, the prosecution’s obligation to

obtain information from non-state agencies

would appear to be limited by the willingness

of the other agencies to provide it. See

generally State v. Crews, 296 N.C. 607

(1979) (prior discovery law obligated state to

produce information if within its possession,

custody, or control; materials within

possession of mental health center and social

services department were not subject to

statutory discovery where prosecution was

denied access to and had no power to obtain

information).

Expert Witnesses. Under new subsection (a)(2)

of G.S. 15A-903, the prosecution must give notice to

the defendant of any expert witness that it reasonably

expects to call as a witness at trial. Each such witness

must prepare, and the prosecution must furnish to the

defendant, a report of the results of any examinations

or tests, including the expert’s opinion and underlying

basis for that opinion. The expert also must provide his

or her curriculum vitae. The courts had interpreted the

prior discovery provisions as allowing trial courts to

require testifying experts for each side to prepare and

furnish reports of their findings to the other side. See

State v. East, 345 N.C. 535 (1997). The new provision

makes that practice an explicit requirement. The

specified information must be produced a reasonable

time before trial, as specified by the trial court.

Other Witnesses. Subsection (a)(3) of G.S. 15A-

903 provides that at the beginning of jury selection, the

state must provide to the defendant a list of all other

witnesses whom the state reasonably expects to call at

trial. Previously, trial judges often pressed the parties

to disclose their witnesses before jury selection, which

helped expedite the trial. The new subsection makes

this practice a requirement, subject to three exceptions.

First, the prosecution may omit names if it certifies in

writing and under seal to the court that disclosure may

subject the witnesses or others to physical or

substantial economic harm or coercion or that there is

other particularized compelling need. The statute does

not explicitly require court approval, but a prudent

prosecutor may want to obtain it. The omission of a

witness’s name without adequate cause could be

grounds for sanctions, including the witness being

precluded from testifying. Second, if the prosecution in

good faith did not list a witness because it did not

reasonably expect to call the witness, the statute does

not bar the prosecution from calling the witness. Third,

the court has the discretion to permit an undisclosed

witness to testify in the interests of justice.

Work Product Restrictions. The attorney work-

product doctrine is “designed to protect the mental

processes of the attorney from outside interference and

provide a privileged area in which he can analyze and

prepare his client’s case.” State v. Hardy, 293 N.C.

105, 126 (1977). At its broadest, the doctrine has been

interpreted as protecting information collected by an

attorney and his or her agents in preparing the case,

including witness statements and other factual

information. See Hickman v. Taylor, 329 U.S. 495

(1947) (discussing doctrine in civil cases). At its core,

the doctrine is concerned with protecting the attorney’s

mental impressions, opinions, conclusions, theories,

and strategies. See Hardy, 293 N.C. at 126. Former

G.S. 15A-904 reflected the broader version of the

work-product doctrine, although the statute did not

specifically mention the term. Id. (discussing statute

and doctrine). It allowed the state to withhold from the


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defendant internal documents made by the prosecutor,

law enforcement, or others acting on the state’s behalf

in investigating or prosecuting the case unless the

document fell within certain discoverable categories

(for example, it contained the defendant’s statement).

Revised G.S. 15A-904 reflects the narrower version of

the doctrine. It continues to protect the prosecuting

attorney’s mental processes while allowing the

defendant access to factual information collected by

the state.

The revised statute provides that the state may

withhold the following from discovery:

! written materials drafted by the prosecuting

attorney or the prosecuting attorney’s legal

staff for their own use at trial, including

witness examinations, voir dire questions,

opening statements, and closing arguments;

! legal research; and

! records, correspondence, reports, memoranda,

or trial preparation interview notes prepared

by the prosecuting attorney or the prosecuting

attorney’s legal staff to the extent they contain

the opinions, theories, strategies, or

conclusions of the prosecuting attorney or

prosecuting attorney’s legal staff.

Thus, the revised statute no longer protects

materials prepared by non-legal staff or by personnel

not employed by the prosecutor’s office, such as law-

enforcement officers. It also does not protect evidence

or information obtained by a prosecutor’s office. For

example, interview notes reflecting a witness’s

statements, whether prepared by a law-enforcement

officer or a member of the prosecutor’s office, would

not be protected under the work-product provision;

however, notes made by the prosecutor or his or her

legal staff reflecting their theories, strategies, and the

like remain protected.

Prosecution Discovery Rights

The legislation significantly adds to the prosecution’s

discovery rights in G.S. 15A-905, retaining the

previous two categories of discovery and adding three

new ones.

Documents and Reports of Examinations and

Tests. G.S. 15A-905(a) has given the state the right to

inspect and copy books, papers, photographs and other

tangible objects that the defendant intends to introduce

in evidence at trial. G.S. 15A-905(b) has given the

state the right to: (1) inspect and copy the results or

reports of physical or mental examinations or tests,

measurements, or experiments made in connection

with the case if the defendant intends to introduce them

at trial or they were prepared by and relate to the

testimony of a witness whom the defendant intends to

call at trial; and (2) test physical evidence, subject to

appropriate safeguards, if the defendant intends to

offer the evidence or tests or experiments made in

connection with the evidence. The legislation retains

these rights. The only change is that if the defendant

requests and obtains from the prosecution any

discovery authorized by G.S. 15A-903, the prosecution

is entitled to seek all of the discovery authorized by

G.S. 15A-905, not just the particular category of

discovery requested by the defendant (see Basic

Procedures, above).

Notice of Defenses. The first of three new

categories of prosecution discovery is in G.S. 15A-

905(c)(1). It requires the defendant to give notice of

the intent to offer at trial any of the following defenses:

alibi, duress, entrapment, insanity, mental infirmity,

diminished capacity, self-defense, accident,

automatism, involuntary intoxication, and voluntary

intoxication. The defendant must give this notice

within twenty working days after the date the case is

set for trial pursuant to G.S. 7A-49.4 or such other time

as set by the court. The notice is inadmissible against

the defendant at trial.

Conforming changes were made to G.S. 15A-959,

which contains a notice requirement for the defense of

insanity and the introduction of expert testimony

relating to a mental condition that bears on whether the

defendant had the mental state required for the offense

charged. Under amended G.S. 15A-959(a), if the

defendant intends to raise the defense of insanity, he or

she must comply with the time limits in revised G.S.

15A-905(c)(1); in cases not subject to G.S. 15A-

905(c)(1)—that is, cases in which the defendant has

not requested discovery and the prosecution has no

reciprocal discovery rights—the defendant must give

notice of the defense of insanity within a reasonable

time before trial. Likewise, under amended G.S. 15A-

959(b), if the case is not subject to G.S. 15A-905(c),

the defendant must give notice of the intent to use the

indicated expert testimony within a reasonable time

before trial; if the prosecution has reciprocal discovery

rights under G.S. 15A-905(c), the defendant must give

notice of the defenses listed in subsection (c)(1) and

notice of his or her expert witnesses as provided in

subsection (c)(2), discussed below.

For the defense of alibi, the court upon motion of

the state may order the defendant to disclose the

identity of his or her alibi witnesses two weeks before

trial. If the state opts to make the motion and the court

orders disclosure, the court must require the state to


8

disclose any rebuttal alibi witnesses no later than one

week before trial. The court may set different time

limits if the parties agree.

For defenses for which the burden is on the

defendant to persuade the jury—namely, duress,

entrapment, insanity, automatism, and involuntary

intoxication—the revised statute states that the notice

of defense also must contain specific information as to

the nature and extent of the defense.

Expert and Other Witnesses. G.S. 15A-

905(c)(2) mirrors G.S. 15A-903(a)(2), discussed

above, which gives the defendant the right to discovery

of the state’s expert witnesses. It requires the defendant

to give notice to the state of the expert witnesses he or

she reasonably expects to call at trial and to provide

the state with a report by each such witness and other

supporting information. The defendant must produce

the information within a reasonable time before trial,

as specified by the trial court.

Likewise, G.S. 15A-905(c)(3) mirrors G.S. 15A-

903(a)(3). It provides that at the beginning of jury

selection, the defendant must provide the state with a

list of all other witnesses whom the defendant

reasonably expects to call at trial. The subsection sets

forth the same circumstances in which non-disclosure

is permitted.

Work Product Restrictions. G.S. 15A-906,

which protects the defendant’s “work product,” was

not changed. It reflects that the defendant’s discovery

obligations, although expanded, remain narrower than

the prosecution’s. Thus, under G.S. 15A-905, the

defendant must provide certain categories of

information to the state, not his or her complete files.

G.S. 15A-906 recognizes that internal defense

documents outside these categories are not subject to

discovery.

Domestic Violence

The General Assembly passed a package of legislation

addressing domestic violence and related issues. The

principal act, S.L. 2004-186 (H 1354), spans several

areas of law, incorporating recommendations made by

the House Select Committee on Domestic Violence,

created by the General Assembly in 2003. That act is

referred to here as the DV Act. Unless otherwise noted,

all changes are contained in that act.

Criminal Offenses and Sentencing

New Strangulation Offense. The DV Act creates a

new felony offense of strangulation. Effective for

offenses committed on or after December 1, 2004, new

G.S. 14-32.4(b) makes it a Class H felony to:

! assault another person and

! inflict physical injury by

! strangulation.

The new subsection does not contain a definition

of “strangulation” or “physical injury.” (The revised

habitual misdemeanor assault offense, discussed

below, also makes “physical injury” an element of the

offense, but it does not define the term either.)

Courts from other states, interpreting the term

“strangulation” primarily in murder cases in which

strangulation was an element of the offense, have

looked to dictionaries for guidance. Although the term

“strangulation” (or “strangle”) often is used to refer to

acts that result in death, it does not always refer to

lethal acts, and the General Assembly certainly could

not have intended in an assault statute to refer only to

actions resulting in death. Webster’s Third New

International Dictionary (3d ed. 1966) gives as one

definition “inordinate compression or constriction of a

tube or part (as the throat . . .) esp. to a degree that

causes a suspension of breathing, circulation, or

passage of contents.”

If this or a comparable definition of strangulation

is used, the act of strangulation alone could be

sufficient to satisfy the element of “physical injury.”

Because the statute requires both strangulation and

physical injury, however, additional evidence of injury

may be required to prove the offense. See generally

State v. Kelly, 580 A.2d 520 (Conn. App. 1990)

(offense of assault on peace officer under Connecticut

statute required proof of “physical injury;” defined as

“impairment of physical condition or pain”; court finds

that judo stranglehold that made officer grow faint to

the verge of unconsciousness qualified as impairment

of physical condition). In comparison to existing

assault offenses in North Carolina, the injuries required

to show “physical injury” would certainly not need to

be as great as for the Class F felony of assault

inflicting “serious bodily injury” under G.S. 14-

32.4(a). Injuries inflicted by strangulation may not

need to be as great as for the misdemeanor offense of

assault inflicting “serious injury” under G.S. 14-33(c).

More would appear to be required, however, than is

required for the offense of battery under G.S. 14-33(a),

which may be proven by mere physical contact. See

State v. West, 146 N.C. App. 741 (2001) (defining

battery as unlawful application of force, however

slight). The new strangulation offense could not be

established by the threat of physical injury without

physical contact, which can be sufficient for assault

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A DMIN ISTR AT ION OF JUST ICE BULLE T IN NUMBER 2008 / 01 | JA NUA RY 2008

2007 Legislation Affecting

Criminal Law and Procedureby John Rubin*

Innocence Initiatives 2Lineups 2Interrogations 5DNA Testing 6

Sex Offender Registration and Satellite Monitoring 8Satellite Monitoring 8Other Sex Offender Changes 14

Criminal Discovery and Related Procedures 14Open-File Discovery Changes 15Other Discovery Mechanisms 17

Criminal Offenses and Related Matters 19Domestic Violence 19Weapons 20Drug and Alcohol Offenses 21Offenses of a Sexual Nature 22�eft Offenses 23Offenses Related to Animals 25Regulatory Offenses 26Motor Vehicles 27Other Criminal Offenses 28

Law Enforcement 30Bail Bonds 31Sentencing and Other Consequences 32Immigration and Related Issues 33Juvenile Delinquency Proceedings 35Court Administration 35

* John Rubin is a School of Government faculty member specializing in criminal law and procedure.

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Other Sex Offender Changes

Warrantless searches and other conditions. Effective for persons placed on probation on or after December 1, 2007, the 2007 Sex Offender Act (S.L. 2007-213) revises G.S. 15A-1343(b2) to provide that a person convicted of a reportable offense or of an offense involving physical, mental, or sexual abuse of a minor must submit at reasonable times to warrantless searches by a probation officer of the probationer’s person and of the probationer’s vehicle and premises while the probationer is present. �e searches must be for purposes specified by the court and reasonably related to the probation supervision, and the probationer may not be required to submit to a search that is otherwise unlawful. �e revised provision also states that warrantless searches of the probationer’s computer or other electronic mechanisms that may contain electronic data are considered reasonably related to the probation supervision. Amendments to G.S. 15A-1374(b)(11) and 15A-1368.4(b1) make similar changes for parolees and people on post-release supervision.

Other consequences. �e 2007 Sex Offender Act revises G.S. 14-208.9(a) to require offenders who are required to register and who move from one county to another to report in person to the sheriff of the new county (as well as to the sheriff of the previous county) and to provide written notice to each sheriff of the new address within ten days of the change of address. �is provision was initially set to take effect on December 1, 2007 (see Section 15 of S.L. 2007-213), but a technical corrections bill changed the effective date to July 11, 2007. See Section 42(b) of S.L. 2007-484 (S 613). Since the technical corrections bill did not take effect until August 30, 2007, the above requirement likely applies beginning on that date.

G.S. 14-208.16 prohibits a person who is required to register from residing within 1,000 feet of a school as defined in that section. Subsection (d) provides that the restriction does not apply if the residence was established before the nearby property was turned into a school. �is exception includes situations in which the offender resides with an immediate family member who established residence before a change in the ownership or use of the nearby property. Effective July 11, 2007, the act revises the exception to define immediate family member as a child or sibling who is eighteen years of age or older, or a parent, grandparent, legal guardian, or spouse of the offender.

Disclosure of certain reportable convictions in child custody proceedings. Effective for actions or proceedings filed on or after October 1, 2007, S.L. 2007-462 (H 1328) adds G.S. 50-13.1(a1) to require any person instituting an action or proceeding for custody ex parte who has been convicted of a sexually violent offense, as defined in G.S. 14-208.6(5), to disclose the conviction in the pleadings. A sexually violent offense is the principal type of conviction that requires a person to register as a sex offender under North Carolina’s sex offender registration law.

Funds. �e 2007 appropriations act appropriates approximately $210,000 in recurring funds for each year of the 2007–09 fiscal biennium for a staff position and operating funds for the sex offender registry. See Joint Conference Committee Report on the Continuation, Expansion and Capital Budgets, Section I, Justice.

Criminal Discovery and Related ProceduresIn 2004, the General Assembly rewrote the criminal discovery provisions and significantly expanded the statutory rights of criminal defendants to obtain information from the state about the prosecution against them. �e collection of revised statutes is commonly known as the “open-file discovery” law. See S.L. 2004-154 (S 52); John Rubin, 2004 Legislation Affecting Criminal Law and Procedure,

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2007 Legislation Affecting Criminal Law and Procedure 15

A J B No. 2004/06 (Oct. 2004), at www.sog.unc.edu/programs/crimlaw/aoj200406.pdf. In the 2007 session, the General Assembly passed three acts making minor modifications to those provisions as well as other acts giving the parties in criminal cases access to information.

Open-File Discovery Changes

Law enforcement’s obligation to provide evidence to prosecuting attorney. As part of the 2004 revisions to the criminal discovery laws, the General Assembly required law enforcement officers to make available to the state (that is, the prosecutor) on a timely and continuing basis all materials and information acquired in the course of the investigation of a felony. �is provision was added to enable the state to comply with its obligation under revised G.S. 15A-903(a) to make available to the defendant the complete files of all law enforcement agencies involved in the investigation. �e problem with the provision was that it was added to a statute that was easily overlooked—G.S. 15A-501(6), in Article 23 of G.S. Chapter 15A, Police Processing and Duties Upon Arrest. S.L. 2007-183 (H 786) reinforces law enforcement agencies’ obligations by placing a similar provision in new G.S. 15A-903(c), a part of the criminal discovery statutes. �e new subsection provides that on the state’s request, law enforcement agencies (and prosecutorial agencies) must make available to the state a complete copy of the complete files related to the investigation of the crimes committed or the prosecution of the defendant. �e act applies to cases where the trial date set pursuant to G.S. 7A-49.4 is on or after December 1, 2007. For cases before that date, law enforcement still has an obligation to provide its investigative files to the state under G.S. 15A-501(6).

Oral statements by witnesses. In 2004, the General Assembly significantly expanded the state’s obligation to provide statements of witnesses to the defendant. Before that change, the state was required to provide witness statements to the defendant only if the statements met certain criteria (for example, they were signed or otherwise formally adopted by the witness) and only after the witness had testified. �e state also was required to reduce to written or recorded form oral statements by the defendant and any co-defendant being tried jointly with the defendant. �e General Assembly deleted those provisions in 2004 and required in revised G.S. 15A-903(a)(1) that the state provide to the defendant all witness statements and reduce to written or recorded form and provide to the defendant all oral statements. In State v. Shannon, the Court of Appeals recognized that these provisions require prosecuting attorneys and their legal staff, as well as law enforcement officers, to memorialize oral statements made to them by witnesses and provide them to the defendant in discovery. �e court rejected the state’s argument that prosecuting attorneys are exempt from the requirement of memorializing oral statements by witnesses. See State v. Shannon, ___ N.C. App. ___, 642 S.E.2d 516 (2007) (state petitioned North Carolina Supreme Court to review Court of Appeals’ decision but, in light of legislation below, state withdrew its petition).

In S.L. 2007-377 (S 1009), the General Assembly reaffirmed its approach to oral witness statements, with minor modifications, effective for cases pending on or after August 19, 2007. Revised G.S. 15A-903(a)(1) continues to require the state to reduce all oral statements to written or recorded form and provide them to the defendant except in the following circumstances: (1) the oral statement was made to a prosecuting attorney outside the presence of a law enforcement officer or investigatorial assistant and (2) the oral statement does not contain significantly new or different information from a prior statement made by the witness. (�e classification of investigatorial assistant is described in G.S. 7A-69.) �us if the specified personnel are present when a witness speaks to a prosecutor, any


statements by the witness must be reduced to writing; if the prosecutor is alone or with someone other than the specified personnel, any statements also must be reduced to writing unless the statements contain no significantly new or different information.

Certain information not subject to disclosure. Before the 2004 revisions to the discovery law, the state had the right to withhold a broad range of information from discovery. �e then-existing “work product” provision, in G.S. 15A-904(a), provided that unless disclosure was otherwise required by the discovery statute or constitutional principles, the state could withhold reports, memoranda, and other documents made by the state in the investigation and prosecution of the case as well as statements made by witnesses and prospective witnesses. �e 2004 open-file discovery legislation rewrote the work product provision in G.S. 15A-904(a) to focus on protecting prosecuting attorneys’ mental impressions and conclusions about the case while ensuring that the defendant had access to factual information, whether obtained by a prosecuting attorney or law enforcement officer. �us revised G.S. 15A-904(a) allowed the state to withhold written materials drafted by the prosecuting attorney or the prosecuting attorney’s legal staff for their own use at trial (such as voir dire questions or closing arguments) and other materials that they drafted to the extent the materials contained their opinions, theories, strategies, or conclusions. Under G.S. 15A-908, prosecutors (as well as defendants) could apply to the court for a protective order if they wanted to withhold information that otherwise would have to be disclosed.

S.L. 2007-377 leaves these provisions in place but revises G.S. 15A-904, effective for cases pending on or after August 19, 2007, to allow the state to withhold two additional types of information without seeking a protective order. First, under new G.S. 15A-904(a1), the state is not required to disclose the identity of a confidential informant unless the disclosure is otherwise required by law. �us to obtain the identity of a confidential informant, a defendant would have to make a motion to the court for disclosure based on constitutional or statutory grounds. See, e.g.,

Roviaro v. United States, 353 U.S. 53 (1957); G.S. 15A-978. Second, under new G.S. 15A-904(a2), the state is not required to provide any personal identifying information of a witness (such as a social security number) beyond the witness’s name, address, date of birth, and published phone number unless on the defendant’s motion the court determines that the defendant needs additional information to accurately identify and locate the witness.

Meaning of “prosecutorial agency.” As revised in 2004, G.S. 15A-903(a)(1) requires the state to make available to the defendant the files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. In effect, this provision requires the prosecuting attorney to obtain the files of these agencies and provide them to the defendant. A lingering question has concerned which agencies’ files the prosecuting attorney must obtain and provide to the defendant. Certainly, the district attorney’s office that is prosecuting the case would be a covered agency, and the prosecuting attorney would have to disclose information in that office’s possession. Likewise, the files of investigating law enforcement agencies must be disclosed. (To assist prosecutors in complying with that obligation, another act from the 2007 legislative session requires law enforcement agencies to provide their files to the prosecuting attorney on request. See S.L. 2007-183, discussed above.)

What if an entity is not a law enforcement or prosecutorial agency itself but obtains information on behalf of a law enforcement or prosecutorial agency? For example, suppose the prosecuting attorney uses a private lab for DNA testing in a criminal case. Few would dispute that the prosecuting attorney would have to disclose that information. If the prosecuting attorney obtained the lab report, it would be considered part of the prosecutor’s file and therefore would be subject to statutory


discovery requirements. Even if the prosecutor did not actually take possession of the report, he or she would have the right to obtain it and would be obligated to disclose it to the defendant. See State v.

Pigott, 320 N.C. 96, 102 (1987) (court holds under prior discovery statute that a prosecutor is obligated to turn over discoverable information in possession of “those working in conjunction with him and his office”); see also Martinez v. Wainwright, 621 F.2d 184, 188 (5th Cir. 1980) (in case applying Brady v.

Maryland, which deals with prosecutors’ constitutional obligation to disclose evidence, court held that a prosecutor could not avoid disclosing evidence “by the simple expedient of leaving relevant evidence to repose in the hands of another agency while utilizing his access to it in preparing his case for trial”).

S.L. 2007-393 (S 1130) makes the prosecutor’s obligations explicit with respect to outside agencies. Effective October 1, 2007, G.S. 15A-903(a)(1) provides that “the term ‘prosecutorial agency’ includes any public or private entity that obtains information on behalf of a law enforcement agency or prosecutor in connection with the investigation of the crimes committed or the prosecution of the defendant.” �is language clearly would cover information developed by the private lab in the above example. �ere still may be some gray areas, however. For example, in connection with allegations of abuse and neglect, a county Department of Social Services (DSS) may investigate the same conduct as charged in a criminal case. Under the new language in G.S. 15A-903(a)(1), it seems unlikely that DSS would be considered a “prosecutorial agency” just because it had investigated the same conduct and, therefore, unlikely that its files would automatically be subject to the statutory discovery provisions. See

State v. Pendleton, 175 N.C. App. 230 (2005) (interpreting 2004 version of G.S. 15A-903(a)(1), court finds that DSS did not act in the capacity of a prosecutorial agency where DSS referred matter to police for investigation, the police gathered their own evidence, and a DSS employee sat in on an interview by police of a child victim). In some instances, however, DSS or other outside agencies could become so involved in a criminal investigation that they could be considered to be acting in a law enforcement or prosecutorial capacity, and the portion of their files pertaining to the case could be subject to the statutory disclosure requirements. See generally State v. Morrell, 108 N.C. App. 465 (1993) (social worker assigned to case of allegedly abused child acted as a law enforcement agent in interviewing the defendant, rendering inadmissible custodial statements made to social worker without Miranda warnings). Regardless of whether an outside agency would be considered a “prosecutorial agency” under the new language, the state would still have to disclose information it obtains from an outside agency, just as it would have to turn over information obtained from any other source. �e defendant also would have the right in some circumstances to obtain the information directly from the outside agency by motion to the court or subpoena. See generally Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (describing defendant’s right to obtain records in possession of third parties).

Other Discovery Mechanisms

Subpoenas for documents. Rule 45 of the North Carolina Rules of Civil Procedure governs the use of subpoenas in civil cases and, for the most part, in criminal cases as well. G.S. 15A-801 and 15A-802 state that Rule 45 applies to criminal cases except for one subsection of the rule—the provision that requires the subpoenaing party to serve a copy of the subpoena on the other parties to the case and not just on the person or entity being subpoenaed. In 2003 the General Assembly made numerous revisions to Rule 45, prompted primarily by concerns from civil practitioners. Because of the language of G.S. 15A-801 and 15A-802, those changes appeared to apply to criminal cases as well.9

9. For a discussion of the changes to Rule 45 and subpoena practice in general, see John Rubin and Aimee Wall, Responding to Subpoenas for Health Department Records, H L B No. 82 (Sept. 2005), posted at


In the 2007 legislative session, Rule 45 was revised in a more limited fashion but again apparently in response to concerns in civil cases. Effective for actions filed on or after October 1, 2007, S.L. 2007-514 (H 316) adds new subsection (d1) to Rule 45 to require a party who has obtained material in response to a subpoena to serve on all other parties a notice of receipt of the material. �e party must serve the notice of receipt within five business days after receipt and if requested must provide other parties an opportunity to inspect and copy the materials at the inspecting party’s expense.

�e act does not specifically exempt criminal cases from this requirement, although somewhat paradoxically the subpoenaing party in a criminal case need not give notice of the service of a subpoena in light of the above provisions of G.S. Chapter 15A. �e new subpoena provisions are also in tension with G.S. 15A-905 and 15A-906, which essentially provide that a criminal defendant is only obligated to disclose to the state evidence that he or she intends to use at trial. If the new notice and inspection requirements do apply to criminal cases, a party may have grounds to seek a protective order under G.S. 15A-908 to withhold the records from disclosure. Alternatively, instead of using a subpoena, a party may move for a court order for production of records, which is not governed by Rule 45.10

Access to confidential school personnel files by state. Effective July 8, 2007, S.L. 2007-192 (H 550) revises G.S. 115C-321 to create an exception to school employees’ right to confidentiality in their personnel files. New G.S. 115C-321(a1) provides that information in an employee’s personnel file that is relevant to certain crimes may be made available to law enforcement and the district attorney. New G.S. 115C-321(a2) provides that the employee must be given five working days’ written notice of any disclosure so that the employee may apply to the district court to determine whether the information is relevant to any criminal misconduct. Failure of the employee to apply for review waives any right to relief. �e statute does not specify who must give the employee notice. New G.S. 115C-321(a3) provides that statements or admissions made by the employee and produced under subsection (a1) are not admissible in any subsequent criminal proceeding against the employee.

Disclosures of health information to law enforcement. Effective June 27, 2007, S.L. 2007-115 (H 353) amends G.S. 90-21.20B in an attempt to harmonize state and federal confidentiality law by allowing health care providers to disclose health information in certain situations permitted under federal law. Under the federal privacy regulation promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA Privacy Rule, 45 C.F.R. Parts 160 and 164), regulated health care providers are allowed to disclose protected health information without patient permission in a variety of circumstances. States are allowed, however, to have more protective state laws in place. Interpretation and implementation of North Carolina’s confidentiality laws has been uneven and somewhat confusing over the years, primarily because it has not been clear whether the state’s physician-patient privilege (G.S. 8-53) was more protective of privacy than the HIPAA Privacy Rule. Many health care providers erred on the side of caution by concluding that the privilege was more protective. �erefore, many providers refused to disclose protected health information without patient permission or a court order in circumstances in which the HIPAA Privacy Rule would have allowed disclosure.

www.sog.unc.edu/pubs/electronicversions/pdfs/hlb82.pdf. Although this bulletin was written to assist health departments in responding to subpoenas, the information about subpoena requirements is generally applicable to all proceedings.

10. See 1 N C D M § 4.7A, at 35–38 (May 1998) (discussing grounds and procedures for obtaining records in possession of third parties), posted at www.ncids.org.


S.L. 2007-115 addresses this ambiguity in part by adding new language to G.S. 90-21.20B authorizing health care providers to ignore the privileges and disclose information for (1) law enforcement purposes as permitted by a specific section of the HIPAA Privacy Rule, 45 C.F.R. 164.512(f ) and (2) treatment, payment, and health care operations purposes as permitted by another section of the federal rule, 45 C.F.R. 164.506. Health care providers must still comply with any state law that “specifically” prohibits disclosure of particular information, such as information identifying a person who has or may have a reportable communicable disease, which is protected under G.S. 130A-143. Overall, this change in the law is rather significant in that it opens the door for health care providers to share information with each other and with law enforcement officials to the extent permitted by the HIPAA Privacy Rule without concern for potential violations of the privileges recognized in state law.11

Criminal Offenses and Related Matters

Domestic Violence

Felony violation of domestic violence protective order. Ordinarily, a violation of a domestic violence protective order (DVPO) is a Class A1 misdemeanor under G.S. 50B-4.1(a). �e 2001 General Assembly revised G.S. 50B-4.1 to add two felony offenses—committing a felony knowing that a DVPO prohibits that conduct, punishable as a felony one class higher than the felony committed, and violating a DVPO after three convictions under G.S. Chapter 50B, a Class H felony. Effective for offenses committed on or after December 1, 2007, S.L. 2007-190 (H 47) creates a new felony offense. Under new G.S. 50B-4.1(g), a person is guilty of a Class H felony if he or she

Pretrial release for domestic violence offenses. G.S. 15A-534.1 contains a special procedure, known as the “48-hour law,” for determining pretrial release conditions for defendants charged with certain domestic violence offenses. Under that statute, only a judge may determine pretrial release conditions during the first 48 hours after arrest. Effective for offenses committed on or after December 1, 2007, S.L. 2007-14 (H 42) revises that statute to make the offense of stalking subject to the 48-hour law if the offense is against a spouse or former spouse of the defendant or against a person with whom the defendant lives or has lived as if married.

Separate waiting area for domestic violence victims. Effective April 12, 2007, S.L. 2007-15 (H 46) provides that where practical, the clerk of superior court in each county must work with the county sheriff to make available to domestic violence victims a secure area, segregated from the general population of the courtroom and available on the victim’s request, where they may await hearing of their court case. �e Administrative Office of the Courts must report to the Joint Legislative Committee on Domestic Violence by May 1, 2008, on the progress of providing space in each courthouse.

11. �e summary of this bill is drawn from Aimee N. Wall, Health, in N C L 2007 (forthcoming), available online at www.sog.unc.edu/pubs/nclegis/nclegis2007/14%20Health.pdf.

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Postconviction Proceduresopen-file discovery in noncapital postconviction cases. G.S. 15A-1415(f) has allowed open-file dis-

covery in capital postconviction cases—that is, cases in which a person has been convicted of a capital offense and sentenced to death. The statute gives the defendant the right to the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. See John Rubin, “1996 Legislation Affecting Criminal Law and Procedure,” Administration of Justice Bulletin No. 96/03 (Aug. 1996).

Effective for motions for appropriate relief made on or after December 1, 2009, S.L. 2009-517 (S 853) extends G.S. 15A-1415(f) to all defendants represented by counsel in postconviction pro-ceedings in superior court. The statute continues to apply to capital defendants because capital postconviction proceedings are always in superior court and rarely would a capital defendant be without counsel in such proceedings. The statute also now applies to noncapital postconvic-tion proceedings in superior court if the defendant is represented by counsel. This precondition is potentially significant in noncapital postconviction cases because, at least initially, prisoners often proceed pro se. The precondition appears to serve as a proxy for a determination that the case meets a minimum threshold of merit. Thus, counsel must agree to represent the defen-dant on a retained basis; Prisoners Legal Services must decide to take the case; or a court must appoint counsel under G.S. 7A-451(a)(3) and G.S. 15A-1420(b1)(2), which have been interpreted as requiring appointment of counsel for an indigent defendant when the claim is not frivolous. Until the defendant satisfies this precondition, the revised statute does not put the state to the burden of producing its files. The revised statute also states that a defendant represented by counsel in superior court is entitled to the files of prior trial and appellate counsel; however, an unrepresented defendant is likely entitled to those files in any event, as case files belong to the client, not the attorney. See 98 Formal Ethics Opinion 9 (July 16, 1998) (lawyer may not withhold file to extract payment of legal fees, retrieval costs, or copying costs).

The act requires postconviction counsel for a defendant to take an additional step before actually filing a motion for appropriate relief (MAR) in superior court. Under revised G.S. 15A-1420(a), the attorney must certify in writing that there is a sound legal basis for the motion and it is being made in good faith, that the attorney has notified the district attorney’s office and at-torney who initially represented the defendant of the motion, and that the attorney has reviewed the trial transcript or made a good faith determination that the relief sought does not require that the trial transcript be read in its entirety. An MAR in superior court may not be granted unless the attorney has complied with these certification requirements. The certification re-quirement does not apply to requests for discovery, however. Once a defendant has counsel in a postconviction case, the defendant is entitled to discovery as provided in G.S. 15A-1415(f).

Appointment of counsel for capital mArs. See “Capital Cases,” below.Preservation of biological evidence after trial. See “Innocence Initiatives,” below.

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Excerpt from 2009 Legislation Affecting Criminal Law and Procedure: Summarizes limited changes to discovery laws enacted by the 2009 NC General Assembly

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JuvenilesThe General Assembly passed several acts relating to juveniles. Provisions that may have an

impact in criminal proceedings are discussed below. For a full discussion of legislation relat-ing to juveniles, see Janet Mason, “2009 North Carolina Legislation: Juvenile Law,” Juvenile Law Bulletin No. 1 (Sept. 2009), www.sog.unc.edu/pubs/electronicversions/pdfs/jvlb0901.pdf.

Access to confidential information held by social services departments. G.S. 7B-302 has provided that social services departments must maintain the confidentiality of information they receive in connection with the receipt and assessment of reports of child abuse, neglect, or dependency. Effective October 1, 2009, S.L. 2009-311 (H 1449) adds subsection (a1) to detail the exceptions to confidentiality. Among other things, it provides that a juvenile’s guardian ad litem or juve-nile, including a juvenile who has reached age 18 or been emancipated, has the right to examine the information on request. See G.S. 7B-302(a1)(2). It also provides that a district or superior court judge presiding over a criminal or delinquency case must conduct an in camera review before releasing to the defendant or juvenile in that case any confidential records maintained by the department of social services. See G.S. 7B-302(a1)(4). This requirement does not apply to records the defendant or juvenile is otherwise entitled to under G.S. 7B-302(a1)(2). The review provisions implicitly confirm that when a criminal or juvenile delinquency case is pending, the criminal defendant or respondent juvenile has the right to request a judge presiding in that case to order release of information; the criminal defendant or respondent juvenile need not obtain an order of the district court in which the particular child abuse, neglect, or dependency matter is or was heard.

Access to juvenile court records. Effective December 1, 2009, as described in the act, S.L. 2009-545 (S 984) revises G.S. 7B-3000 to broaden access to court records of juvenile delinquency pro-ceedings, providing greater access by law enforcement, prosecutors, magistrates, and the courts in specified circumstances. The revised statute and revised G.S. 7B-3001 also clarify that the juvenile’s attorney as well as the juvenile have a right to examine and obtain, without a court or-der, copies of court records and law enforcement records and files concerning the juvenile. S.L. 2009-372 (S 920), effective December 1, 2009, as described in the act, further rewrites G.S. 7B-3000(b) to allow probation officers in the Division of Community Corrections of the Depart-ment of Correction to examine and obtain copies of the written parts of a juvenile’s record in specified circumstances. These changes are discussed further in the legislative summary by Janet Mason, cited above.

Duty to report abuse, neglect, and dependency. Effective October 1, 2009, S.L. 2009-311 (H 1449) adds G.S. 7B-1700.1 to a part of the Juvenile Code relating to juvenile delinquency proceedings (Article 17, Screening of Delinquency and Undisciplined Complaints). The new statute provides that if a juvenile court counselor has cause to suspect that a juvenile is abused, neglected, or dependent or has died as the result of maltreatment, the juvenile court counselor must make a report to the county department of social services as required by G.S. 7B-301. Although insert-ed among the statutes on juvenile court counselors’ responsibilities, the new statute also states that it applies to “any person.” This provision is potentially problematic if construed as applying to an attorney representing a juvenile in a delinquency proceeding, as information gained in the course of representation is ordinarily confidential. By referring to G.S. 7B-301, the general duty-to-report statute, the new statute may incorporate the statutory exception in G.S. 7B-310 for information gained in the course of the attorney-client privilege, although the literal language of that statute applies to information gained in the course of an abuse, neglect, or dependency case. An attorney’s ability to divulge confidential information obtained in the course of representing a

http://www.sog.unc.edu/pubs/electronicversions/pdfs/jvlb0901.pdf

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EXCERPT FROM

2011 Legislation Affecting Criminal Law and Procedure (Dec. 12, 2011) John Rubin, © UNC School of Government

available at http://dailybulletin.unc.edu/summaries11/category05.html

S.L. 2011-19 (H 27), as amended by S.L. 2011-307 (S 684): SBI crime lab and related changes. Effective March 31, 2011 except as noted below, the act adds and modifies several statutes regarding the State Bureau of Investigation (SBI) Laboratory and forensic testing. The laboratory remains a part of the SBI, but it is renamed the State Crime Laboratory (State Crime Lab) and G.S. 114-16 is revised to direct the SBI to employ a sufficient number of skilled people to render a reasonable service to the “public and criminal justice system” (was, “prosecuting officers of the State”). . . . . Discovery. Amended G.S. 15A-903(a)(1), which requires the State to make available to the defendant its complete files as defined in the statute, states that “[w]hen any matter or evidence is submitted for testing or examination, in addition to any test or examination results, all other data, calculations, or writings of any kind shall be made available to the defendant, including, but not limited to, preliminary test or screening results and bench notes.” Amended G.S. 15A-903(c) requires all public and private entities that obtain information related to the investigation of the crimes committed or the prosecution of the defendant to disclose such information to the referring prosecutorial agency for disclosure to the defendant. New G.S. 15A-903(d) makes it a Class H felony for a person to willfully omit or misrepresent evidence or information required to be disclosed under G.S. 15A-903(a)(1) or required to be provided to the State under G.S. 15A-903(c); and makes it a Class 1 misdemeanor to willfully omit or misrepresent evidence or information required to be disclosed pursuant to any other provision of “this section” (meaning G.S. 15A-903).

S.L. 2011-247 (H 379): Interstate Depositions and Discovery Act and potential applicability to criminal cases. Effective for cases pending on or after December 1, 2011, the act creates new G.S. Chapter 1F, the North Carolina Interstate Depositions and Discovery Act. Its principal purpose is to simplify the procedure for parties in a civil case in one state to take depositions of witnesses in another state. The act also may affect criminal cases because, in addition to creating new G.S. Chapter 1F, it amends North Carolina Rule of Civil Procedure 45, which is applicable to criminal cases by virtue of G.S. 15A-801 and 15A-802 except as otherwise specified. New Rule 45(f) sets forth the procedure for obtaining discovery, including obtaining a deposition, from a person residing in a state or U.S. territory outside North Carolina. The new provisions do not appear to exclude criminal cases. See also Uniform Interstate Depositions and Discovery Act (National Conference of Commissioners on Uniform State Laws, 2007). If the new provisions apply to criminal cases, a party in a North Carolina case would be able to obtain a deposition or other discovery in another state only if the other state allows such discovery. Thus, if another state allows depositions in criminal cases, as in Florida, a party in a North Carolina criminal case

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may be able to use amended Rule 45 to depose a witness residing there; if the other state does not allow depositions, the amended provisions would not give a party in North Carolina that right. Rule 45(f) provides that if required by the other state’s procedures, a party first must obtain a commission (an order) from a North Carolina court before seeking the discovery in the other state.

S.L. 2011-250 (H 408): Changes to criminal discovery. Effective for cases pending on or after December 1, 2011, the act makes modest changes to North Carolina’s criminal discovery laws. These changes are in addition to those made in S.L. 2011-19, which primarily made changes to the SBI crime lab but also explicitly required production of lab notes and data and made discovery violations a crime in some instances. Amended G.S. 15A-903(a)(1) distinguishes between a prosecutor’s office, defined as the office of the prosecuting attorney, and an investigatory agency, defined as any public or private entity that obtains information on behalf of a law enforcement agency or prosecutor’s office. The change helps clarify the obligations of the different entities—law enforcement agencies, investigatory agencies, and prosecutors’ offices—that must provide information for disclosure to the defense. The change does not alter the obligation of the State as a whole to provide the defense with the complete files of all law enforcement agencies, investigatory agencies, and prosecutors’ offices involved in the investigation of the crimes allegedly committed or the prosecution of the defendant. Amended G.S. 15A-903(c) provides that law enforcement and investigatory agencies must make the required files available to the prosecutor’s office on a timely basis (was, on request by the prosecutor). New G.S. 15A-904(a3) provides that the State is not required to disclose the identity of any person who provides information about a crime to a Crime Stoppers organization under assurance of anonymity unless ordered by the court. The new subsection includes a definition of a Crime Stoppers organization. New G.S. 15A-904(a4) provides that the State is not required to disclose the Victim Impact Statement in a case—defined as the document submitted by the victim or family to the State pursuant to the Victims’ Rights Amendment—unless otherwise required by law. New G.S. 15A-910(c) provides that for purposes of determining whether to impose personal sanctions for untimely disclosure of law enforcement and investigatory agency files, it is presumed that prosecuting attorneys and their staffs acted in good faith if they made a reasonably diligent inquiry of those agencies and disclosed the responsive materials. This presumption does not appear to apply to the untimely disclosure of prosecutor office files. New G.S. 15A-910(d) provides that if the court imposes any sanction, it must make specific findings justifying the sanction. Amended G.S. 15A-903(a)(2), which addresses disclosure by the prosecutor of expert witnesses, and amended G.S. 15A-905(c)(2), which addresses disclosure by the defense of expert witnesses, require the Administrative Office of the Courts and Office of Indigent Defense Services to develop standard fee scales for expert witnesses and private investigators paid with state funds.



Excerpts from NC Defender Manual

on

Third-Party Discovery

1. Excerpt from Volume 1, Pretrial, of NC Defender Manual:

Discusses procedures for obtaining records from third parties and rules governing subpoenas

2. Excerpt from 1999 Supplement to NC Defender Manual:

Summarizes cases and materials since issuance of manual

3. Form motions for obtaining records from third parties

The full manual is online at www.ncids.org (under Defender Manual)

Ch. 4: Discovery

NC Defender Manual | May 1998 | © Institute of Government 35

H. Defendant’s Knowledge of Evidence

Agurs held that the prosecution violates its Brady obligations by failing to disclose

favorable, material evidence known to it but unknown to the defense. As a result, the

courts have held that nondisclosure does not violate Brady if the defendant knows of the

evidence and has access to it. See State v. Wise, 326 N.C. 421, 390 S.E.2d 142 (1990)

(defendant knew of examination of rape victim and results and could have subpoenaed

doctor to testify; prosecution’s failure to provide report therefore not Brady violation);

see also 2 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 546-47 (West

Pub. Co., 1984) (defendant must know not only of existence of evidence but also of its

potentially exculpatory value).

I. In Camera Review and Other Remedies

If defense counsel doubts the adequacy of disclosure by the prosecution, counsel may

request that the trial court conduct an in camera review of the evidence in question. See

State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977) (stating general right to in camera

review); State v. Kelly, 118 N.C. App. 589, 456 S.E.2d 861 (1995) (new trial for failure of

trial court to conduct in camera review); State v. Jones, 85 N.C. App. 56, 354 S.E.2d 251

(1987) (new trial). To obtain an in camera review, counsel must make some showing that

the evidence may contain favorable, material information. See State v. Soyars, 332 N.C.

47, 418 S.E.2d 480 (1992) (court characterized general request as “fishing expedition”

and found no error in trial court’s denial of in camera review).

If the court refuses to review the documents, or after review refuses to require production

of some or all of the documents, counsel should move to have the documents sealed and

included in the record in the event of appeal. See State v. Hardy, 293 N.C. 105, 235

S.E.2d 828 (1977).

In some instances, counsel may want to subpoena witnesses and documents to the motion

hearing. Examination of witnesses (such as law-enforcement officers) may reveal

discoverable evidence that the state has not yet disclosed. For a discussion of subpoenas,

see infra § 4.8, p. 42.

4.7 Other Constitutional Rights

A. Evidence in Possession of Third Parties

This section focuses on records in a third party’s possession concerning a victim or

witness. Records concerning the defendant are discussed briefly at the end of this section.

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Ch. 4: Discovery

36 NC Defender Manual | May 1998 | © Institute of Government

Right to Obtain. Due process gives the defendant the right to obtain from third parties

records containing favorable, material evidence even if the records are confidential under

state or federal law. This right is an offshoot of the right to favorable, material evidence

in the possession of the prosecution. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct.

989, 94 L. Ed. 2d 40 (1987) (records in possession of child protective agency); Love v.

Johnson, 57 F.3d 1305 (4th Cir. 1995) (North Carolina state courts erred in failing to

review records in possession of county medical center, mental health department, and

department of social services); State v. Bailey, 89 N.C. App. 212, 365 S.E.2d 651 (1988)

(following Ritchie).

Other grounds also may support disclosure of confidential records in the hands of a third

party. See State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979) (recognizing court’s

inherent authority to order disclosure); G.S. 8-53 (under this statute, which is

representative of several on privileged communications, court may compel disclosure of

communications between doctor and patient when necessary to proper administration of

justice); In re Martin Marietta Corp., 856 F.2d 619, 621 (4th Cir. 1988) (federal rule

allowing defendant to obtain court order for records in advance of trial “implements the

Sixth Amendment guarantee that an accused have compulsory process to secure evidence

in his favor”).

Directing Production of Records. In federal court, a judge may issue a subpoena

requiring a witness to produce records in advance of trial or in advance of other

proceedings at which the records are needed. See FED. R. CRIM. P. 17(c). North Carolina

does not have an explicit statute or rule to this effect, but defense counsel should be able

to obtain similar relief here.

• Counsel may move for a judge to issue an order or a subpoena requiring the third

party to produce the records in court so the judge may review them and determine

those portions subject to disclosure.

• Rather than asking the judge to issue the order or subpoena, counsel may issue a

subpoena directing the third party to produce the records in court for the judge to

review. This procedure has the advantage of requiring only one hearing, but it may

not be feasible in all cases.

• In some instances (discussed below), counsel may move for a judge to issue an order

requiring the third party to provide the records directly to counsel.

Sample motions to require third parties to produce records appear at the end of this

chapter. See also infra § 4.8D, p. 43 (discussing production of records in response to

subpoena).

Ch. 4: Discovery


In Camera Review and Alternatives. Under Ritchie, a defendant may obtain an in

camera review of confidential records in the hands of a third party and, to the extent the

records contain favorable, material evidence, the judge must order the records disclosed

to the defendant.

The in camera procedure has some disadvantages, however, and is not always required.

Principally, the court may not know the facts of the case well enough to recognize

evidence important to the defense. Some alternatives are as follows:

• If the evidence is within the prosecution’s possession, custody, or control, defense

counsel may move for disclosure without an in camera review on the ground that the

records come within some discoverable category of information (for example, reports

of examinations). Because it may be unclear whether the prosecution has access to the

records, counsel may need to move for an order requiring the prosecutor to disclose

the records or, in the alternative, requiring the third party to provide the records to the

court for an in camera review.

• Some judges may be willing to order disclosure of records in the hands of third parties

without conducting an in camera review. Defense counsel can argue that the interest

in confidentiality warrants neither restricting the defendant’s access to potentially

helpful information nor imposing the burden on the judge of conducting an in camera

review. See Ritchie, 480 U.S. at 60 (authorizing in camera review if necessary to

avoid compromising interest in confidentiality).

• Defense counsel can move to participate in any review of the records under a

protective order. Such an order might provide that counsel may not disclose the

materials unless permitted by the court. See G.S. 15A-908 (authorizing protective

orders); Zaal v. State, 602 A.2d 1247 (Md. 1992) (court may conduct review of

records in presence of counsel or permit review by counsel alone, as officer of court,

subject to restrictions protecting confidentiality); Commonwealth v. Lloyd, 567 A.2d

1357 (Pa. 1989) (requiring trial court to allow defense counsel to participate in in

camera review under appropriate orders assuring confidentiality).

Required Showing. In support of a motion for records from a third party, the defendant

must make some plausible showing that the records may contain favorable, material

evidence. See Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995).

If the court refuses to require the third party to produce the documents, or after reviewing

the documents refuses to require disclosure of some or all of them, counsel should move

to have the documents sealed and included in the record in the event of appeal. See State

v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977); see also State v. Burr, 341 N.C. 263, 461

S.E.2d 602 (1995) (court states that it could not review trial court’s denial of motion to

require production of witness’s medical records because defendant failed to make

documents part of record on appeal).

Ch. 4: Discovery


Ex Parte Application. In seeking third-party records, counsel should consider making

any application to the court ex parte. Although the North Carolina courts have not

specifically addressed this procedure in the context of third-party records, they have

allowed defendants to apply ex parte for funds for an expert (see infra § 5.4, p. 8). Some

of the same reasons for allowing ex parte applications for experts apply to motions for

third-party records (that is, need to protect trial strategy, confidential attorney-client

communications, etc.).

In view of these considerations, some courts have held that a defendant may move ex

parte for an order requiring pretrial production of documents from a third party. See

United States v. Tomison, 969 F. Supp. 587 (E.D. Cal. 1997) (court reviews Federal Rule

of Criminal Procedure 17(c), which authorizes court to issue subpoena duces tecum for

pretrial production of documents, and rules that defendant may move ex parte for

issuance of subpoena duces tecum to third party); United States v. Beckford, 964 F. Supp.

1010 (E.D. Va. 1997) (to same effect). See also State v. Gray, 347 N.C. 143, 491 S.E.2d

538 (1997) (court finds that it was permissible for prosecution to obtain ex parte order

requiring North Carolina Department of Revenue to produce defendant’s tax records in

advance of trial, although court did not address whether defendant’s interest in

confidentiality of records gave him right to notice of and opportunity to oppose

application for order).

If the prosecution receives notice of a motion or order for production of records from a

third party, it may not have a right to object or to obtain copies of the records. See

Tomison (prosecution lacked standing to move to quash subpoena to third party because

prosecution had no claim of privilege, proprietary right, or other interest in subpoenaed

documents; prosecution also did not have right to receive copies of the documents unless

defendant intended to introduce them at trial); State v. Clark, 128 N.C. App. 87, 493

S.E.2d 770 (1997) (court had discretion to require Department of Correction to provide to

prosecution records that it had provided to defendant). See also infra § 4.8E, p. 43

(discussing standing to move to quash subpoena duces tecum).

Records Concerning Defendant. When records in a third party’s possession concern

the defendant (for example, the defendant’s medical records), defense counsel often can

obtain them without court involvement by submitting a release to the custodian of

records. Some agencies may be unwilling to release the records without a court order or

payment of copying costs. In such instances, counsel may be able to apply to the court ex

parte for an order requiring production of the records. A sample motion appears at the

end of this chapter.

B. False Testimony or Evidence

Prosecutor’s Duty. The prosecution has a constitutional duty under the due process

clause to correct false testimony. This duty is the forerunner of the duty to disclose

favorable, material evidence. A conviction must be set aside if

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Ch. 4: Discovery


4.8 Subpoenas

Although not a formal discovery device, subpoenas (particularly subpoenas duces tecum)

may be a useful tool for obtaining information.

A. Right to Subpoena Witnesses and Documents

A subpoena may be used to compel a witness to testify, produce documents and other

tangible things, or do both at any court proceeding. Thus, a subpoena may compel a

witness to appear and produce documents for when the case is calendared for trial. It also

may compel a witness to appear and produce documents at pretrial proceedings, such as a

probable cause hearing, suppression hearing, or hearing on a discovery motion.

A defendant’s right to subpoena witnesses and documents is based primarily on the Sixth

Amendment right to compulsory process. See Washington v. Texas, 388 U.S. 14, 19, 87

S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (right to compel attendance of witnesses is “in

plain terms the right to present a defense”); State v. Rankin, 312 N.C. 592, 324 S.E.2d

224 (1985) (recognizing Sixth Amendment basis of subpoena power). See also N.C.

CONST. art. 1, § 23 (right to confront accusers and witnesses with other testimony). Other

grounds also may support the use of a subpoena. See supra § 4.7A, p. 36 (right to obtain

favorable, material evidence in possession of third party).

B. Permissible Scope of Subpoena

A subpoena may be directed to any person within North Carolina who is capable of being

a witness, including law-enforcement officers, custodians of records of public agencies,

and private businesses and individuals. To obtain witnesses or documents located outside

of North Carolina, defense counsel must use the Uniform Act to Secure Attendance of

Witnesses. See G.S. 15A-811; Jay M. Zitter, Annotation, Availability under Uniform Act

to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of

Subpoena Duces Tecum, 7 A.L.R.4th 836 (1981) (uniform act has been interpreted as

allowing subpoena to out-of-state witness to produce documents).

Documents not subject to discovery may be subpoenaed as long as they are material to the

proceedings. The subpoena must specify with some precision the documents to be

produced. Otherwise, the court may view the subpoena as an effort to circumvent the

discovery statutes and quash it as a “fishing expedition.”

C. Issuance and Service of Subpoena

Rule 45 of the North Carolina Rules of Civil Procedure governs the issuance and service

of subpoenas. See G.S. 15A-802 (subpoenas in criminal cases governed by Rule 45); G.S.

8-61 (to same effect). The court need not be involved in the issuance of a subpoena to

testify or to produce documents; defense counsel may issue either. See AOC-G-100

(blank subpoena form available from clerk).

Ch. 4: Discovery


The sheriff, or any person over age 18 who is not a party, may serve a subpoena. Service

is best effected by personal delivery to the person named in the subpoena but also may be

by certified mail or, in some instances, by telephone. See N.C. R. CIV. P. 45(e); G.S. 8-59.

The defendant need not tender any witness fee at the time of service. See G.S. 6-51

(witness not entitled to receive fees in advance); G.S. 7A-316 (witness must apply to

clerk of court for fees after appearance). Generally, the court may assess witness fees

against the defendant only on completion of the case. See G.S. 7A-304 (costs may be

assessed against defendant on conviction or entry of plea of guilty or no contest).

D. Time and Method of Production of Records

The person named in a subpoena duces tecum ordinarily must appear in court on the date

designated in the subpoena and must produce the requested documents. If the subpoena is

to a records custodian of a public entity or hospital, and does not direct the custodian to

appear, the custodian may be able to mail the records to the clerk of court in lieu of

appearing. See N.C. R. CIV. P. 45(c).

When the subpoena requires a records custodian to appear and produce documents, he or

she may be willing to provide the documents directly to defense counsel to avoid

appearing in court. If the subpoena seeks confidential records of a victim or witness,

however, the custodian likely will be unwilling to disclose the records in advance of the

proceeding. Defense counsel also may need to be wary of reviewing confidential records

of a victim or witness without the protection of a court order (or release or other

authorization). See generally Bass v. Sides, 120 N.C. App. 485, 462 S.E.2d 838 (1995)

(judge imposed monetary sanctions against attorney who reviewed confidential records

that had been mailed to clerk in response to subpoena but had not yet been ordered to be

disclosed by judge); Susan S. v. Israels, 67 Cal. Rptr. 2d 42 (Cal. Ct. App. 1997) (defense

attorney read and disseminated patient’s confidential mental health records that treatment

facility mistakenly sent directly to him in response to subpoena; court allows patient’s

suit against attorney for violation of state constitutional right of privacy); N.C. RULES OF

PROFESSIONAL CONDUCT, Ethics Opinion 236 (1997) (discussing misuse of subpoena).

If defense counsel needs to obtain confidential records concerning a victim or witness,

counsel should consider filing a motion requesting the court to order disclosure of the

records. See supra § 4.7A, p. 35 for a discussion of this procedure.

E. Motions to Quash

The person named in the subpoena, or a person who has some right or other protected

interest in the documents sought, may move to quash the subpoena on or before the date

set for appearance. In response, the court may quash the subpoena or modify it to narrow

Ch. 4: Discovery


its scope. See Vaughn v. Barefoot, 267 N.C. 691, 149 S.E.2d 37 (1966) (discussing

subpoenas in general); State v. Newell, 82 N.C. App. 707, 348 S.E.2d 158 (1986)

(quashing subpoena); State v. Little, 67 N.C. App. 128, 312 S.E.2d 695 (1984) (in

opposing motion to quash subpoena duces tecum, defendant need only make threshold

showing of claim or defense); State v. Richardson, 59 N.C. App. 558, 297 S.E.2d 921

(1982) (court may modify subpoena duces tecum rather than quash it), aff’d in part and

rev’d in part, 308 N.C. 470, 302 S.E.2d 799 (1983).

In some cases, trial courts have granted motions by the prosecutor to quash a subpoena

duces tecum directed to a third party. See State v. Love, 100 N.C. App. 226, 395 S.E.2d

429 (1990), conviction vacated on habeas, 57 F.3d 1305 (4th Cir. 1995). But those cases

did not explicitly address whether the prosecution had standing to object to a subpoena

for a third party’s records. See generally 2 G. GRAY WILSON, NORTH CAROLINA CIVIL

PROCEDURE 102 (Michie Co., 2d ed. 1995) (“A party does not have standing to challenge

a subpoena duces tecum issued to a nonparty witness unless he can claim some privilege

in the documents sought”); United States v. Tomison, 969 F. Supp. 587 (E.D. Cal. 1997)

(prosecution lacked standing to move to quash subpoena to third party because

prosecution had no claim of privilege, proprietary right, or other interest in subpoenaed

documents).

4.9 Prosecution’s Discovery Rights

A. Reciprocal Statutory Rights

Statutory Requirements. Defense counsel effectively controls whether the prosecution

has any statutory discovery rights. G.S. 15A-905 allows discovery of certain categories of

evidence in the defendant’s possession only if the defendant requests discovery of those

categories from the state and the state discloses that category of information, either

voluntarily or pursuant to court order. See G.S. 15A-902(b) (state’s voluntary compliance

in response to request is deemed to have been made under court order); State v. Clark,

128 N.C. App. 87, 493 S.E.2d 770 (1997) (defendant had no obligation to provide

reciprocal discovery of its expert’s report because defendant had not requested discovery

of report of state’s expert).

The state waives its statutory rights if it fails to make a voluntary request for discovery

within ten working days after it discloses information in response to a statutory discovery

request by the defendant. Only after making a timely request for voluntary discovery may

the state file a motion for discovery. See G.S. 15A-902(a), (e); State v. Anderson, 303

N.C. 185, 191, 278 S.E.2d 238, 242 (1981) (“Before either the state or defendant is

entitled to an order requiring the other to disclose, it or he must first request in writing

that the other party comply voluntarily with the discovery request.”).

If the defendant agrees to provide discovery in response to the state’s request, or the court

orders the defendant to provide discovery, the prosecution may seek sanctions for a

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1999 Supplement

NC Defender Manual | Sept. 1999 | © Institute of Government 11

summarizing the interviews, the handwritten notes revealed significant information not

contained in the written report.

4.7 Other Constitutional Rights

(The following supplements Directing Production of Records [in Possession of Third

Parties], Ch. 4, p. 36)

In seeking an order for production of confidential records in the possession of a third

party, counsel may need to apply to the level of court in which the case is then pending.

See State v. Rich, ___ N.C. App. ___, 512 S.E.2d 441 (1999) (court holds that district

court should not have entered order overriding doctor-patient privilege because G.S. 8-53

provides that once case is in superior court, as in this instance, the judge ruling on the

privilege must be a superior court judge), review granted, ___ N.C. ___, ___ S.E.2d ___

(July 22, 1999); see also State v. Jones, ___ N.C. App. ___, 516 S.E.2d 405 (1999) (until

case is transferred to superior court, district court has jurisdiction to rule on preliminary

matters such as production of medical records).

4.8 Subpoenas

(The following is a new section after Motions to Quash, Ch. 4, pp. 43–44)

F. Specific Types of Records

For a discussion of subpoenas for mental health records, see John Rubin & Mark Botts,

Responding to Subpoenas: A Guide for Mental Health Professionals, POPULAR

GOVERNMENT, Summer 1999, at 27 <http://ncinfo.iog.unc.edu/pubs/pg/rubin2.htm>.

For a discussion of subpoenas for school records, see John Rubin, Subpoenas and School

Records: A School Employee’s Guide, SCHOOL LAW BULLETIN, Spring 1999, at 1

<http://ncinfo.iog.unc.edu/pubs/slb/slbrubin.htm>.

4.9 Prosecution’s Discovery Rights

(The following supplements Reciprocal Statutory Rights, Ch. 4, pp. 44–45)

Statutory discovery by the prosecution is subject to two key limitations. First, a defendant

may avoid discovery of a particular statutory category of evidence, such as the results or

reports of examinations or tests, by not seeking discovery of that category from the

prosecution. G.S. 15A-905 contains this limitation for each category of statutory

discovery by the prosecution. See also Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208,

37 L. Ed. 2d. 82 (1973) (reciprocal discovery required by fundamental fairness).

Foregoing discovery of the prosecution’s evidence will often be too high a price to pay

for avoiding discovery by the prosecution, but defense counsel may wish to consider this

option in some circumstances.

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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 11 CRS STATE OF NORTH CAROLINA, ) ) MOTION TO OPEN JUVENILE vs. ) RECORDS & TO ALLOW DEFENSE ) TO USE PRIOR JUVENILE

) RECORD IN ) CROSS EXAMINATION OF Defendant. ) PROSECUTION WITNESSES

____________________________________________________

NOW COMES the Defendant, by and through his undersigned counsel, Maitri “Mike” Klinkosum, Attorney at Law, and Evonne S. Hopkins, Attorney at Law, and hereby moves this Honorable Court pursuant to the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article 1 §§ 19 and 23 of the North Carolina Constitution, N.C.G.S. § 8C-1, Rule 609(d) of the North Carolina Rules of Evidence, and the holdings of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny, to issue an Order commanding the Clerk of Superior Court and the Department of Juvenile Justice to open any juvenile files of the following potential prosecution witness:

1. (date of birth ).

The Defendant further requests that the Court allow the defense to use such juvenile records in the cross-examination of said prosecution witnesses. In support of this Motion, the Defendant would show unto the Court as follows:

1. The Defendant is charged with one count of Statutory Rape pursuant to N.C. Gen. Stat. § 14-27.7A(a) and one count each of Delivery of a Controlled Substance to a Person Under Sixteen Years of Age pursuant to N.C.Gen. Stat. § 90-95(e)(5).

2. Upon information and belief, the prosecution will call upon the above-

listed witness in its case-in-chief as said witness is the alleged victim in these matters.

3. Upon information and belief, said witness may have prior juvenile

adjudications.

4. N.C. Gen. Stat. § 8C-1, Rule 609(d) states:

2

Juvenile adjudications.-Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of that offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (Emphases added)

7. Rule 609(d) was placed into effect by the North Carolina General

Assembly in order to comply with the holding in the landmark case of Davis v. Alaska.1

8. Davis v. Alaska holds, “The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.”

9. If, as the defense believes, the prosecution witness, has, in fact, been

adjudicated delinquent for criminal offenses, then undoubtedly the offenses of which she was adjudicated are offenses which “would be admissible to attack the credibility of an adult” as that principle is used in 8C-1, Rule 609(d). Admission into evidence of such offenses will necessary for a fair determination of guilt or innocence.

10. Therefore, the requirements of the confrontation clause and the holding of

Davis v. Alaska would best be served by requiring the Clerk of Superior Court to open the juvenile file of prosecution witnesses and allow the court, the prosecutor, and the counsel for the defense to inspect said file for evidence of adjudications, which the defense, in good faith, believes to exist and by allowing the defense to use evidence of said adjudications in its cross-examination of the prosecution witnesses.

WHEREFORE, the Defendant respectfully prays unto this Honorable Court for the following relief:

1. That the Court order the Clerk of Court of Wake County, or any other county in North Carolina which may possess juvenile records related to the aforementioned witness, and the Office of Juvenile Justice, to open the juvenile files of the above-listed prosecution witness and provide the defense with copies of said files;

1 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

3

2. In the alternative, that the Court order the Clerk of Court of Wake County, or any other county in North Carolina which may possess juvenile records related to the aforementioned witness, and the Office of Juvenile Justice, to open the juvenile files of the above-listed prosecution witness and provide the Court with copies of said files for the Court to conduct an in camera inspection of said files pursuant to Pennsylvania v. Ritchie,2

480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), State v. Bailey, 89 N.C.App. 212, 365 S.E.2d 651 (1988), and State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977), and disclose to the defense any favorable and material evidence;

3. That the Court allow the defense to use evidence of juvenile adjudication(s) contained in the file in the defense’s cross-examination of said witnesses; and

4. For such other and further relief to which the Defendant may be entitled

and which the court may deem just and proper.

This the 9th day of October 2009.

By:_________________________________ Maitri “Mike” Klinkosum Assistant Public Defender Attorney for the Defendant 227 Fayetteville St., Suite 500 Raleigh, NC 27601 Telephone: (919) 715-1514 Facsimile: (919) 715-1510 Email: [email protected]

2

4

Certificate of Service

This shall certify that a copy of the foregoing Motion to Open Juvenile Records & to Allow Defense to Use Prior Juvenile Record in Cross-Examination of Prosecution Witnesses was this day served upon the District Attorney by the following method:

_____ depositing a copy hereof in a postpaid wrapper in a post office or official depository under the exclusive care, custody, and control of the United States Postal Service, properly addressed to Office of the District Attorney;

__X__ by personally serving the Office of the District Attorney via hand delivery

(Assistant District Attorney ); _____ by transmitting a copy via facsimile transmittal to the Office of the District

Attorney; and/or _____ by depositing a copy in the box for the Office of the District Attorney

maintained by the Clerk of Superior Court. This the 9th day of October 2009.

By:___________________________ Maitri “Mike” Klinkosum

Assistant Public Defender Attorney for the Defendant 227 Fayetteville St., Suite 500 Raleigh, NC 27601 Telephone: (919) 715-1514 Facsimile: (919) 715-1510

Email: [email protected]

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STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 11 CRS STATE OF NORTH CAROLINA ) ) VS. ) REQUEST FOR ) VOLUNTARY DISCOVERY ) (ALTERNATIVE MOTION FOR

, ) DISCOVERY) )

Defendant. ) ______________________________________________________________________________ NOW COMES the Defendant, , by and through the undersigned counsel, Maitri “Mike” Klinkosum, Attorney at Law, and hereby requests voluntary discovery from the prosecution in this case, pursuant to the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I, §§ 19 and 23 of the North Carolina Constitution, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny, and Article 48 of the North Carolina General Statutes.

1. Pursuant to N.C. Gen. Stat. § 15A-903(a)(1), the Defendant requests the complete files of all law enforcement agencies, investigatory agencies, and prosecutor offices involved in the investigation of the crimes committed or the prosecution of the defendant.

2. Pursuant to N.C.Gen. Stat. § 15A-903(a)(1)(a), the Defendant requests the following:

(a) The defendant’s statements;

(b) The co-defendant’s statements;

(c) Witness statements;

(d) Investigating officers’ notes;

(e) Results of tests and examinations; and

(f) Any other matter or evidence obtained during the

investigation of the offenses alleged to have been committed by the defendant.

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3. Pursuant to N.C. Gen. Stat. § 15A-903(a)(1)(a), if any matter or evidence has been submitted for testing or examination, the Defendant requests the following:

(a) Any and all test and/or examination results;

(b) Any and all testing/examination data;

(c) Any and all calculations, or writings of any kind, generated

in connection with said testing and/or examination results;

(d) Any and all preliminary test and/or screening results; and

(e) Any and all bench notes

4. Pursuant to N.C. Gen. Stat. § 15A-903(a)(1)(d), the Defendant invokes his the right to inspect and copy or photograph any materials in possession of the State and, under appropriate safeguards, to inspect, examine, and test any physical evidence or sample of physical evidence in possession of the State.

5. Pursuant to N.C. Gen. Stat. § 15A-903(a)(2), the Defendant requests,

within a reasonable time prior to trial, as specified by the Court, that the State provide the following to the Defendant:

(a) Notice to the defendant of any expert witnesses that the

State reasonably expects to call as a witness at trial;

(b) A report of the results of any examinations or tests conducted by any State experts.

(c) The curriculum vitae of any State experts,

(d) The opinion, and the underlying basis for that opinion, of

any State expert.

6. Pursuant to N.C. Gen. Stat. § 15A-903(a)(3), the Defendant requests that the State provided, at the beginning of jury selection, a written list of the names of all other witnesses whom the State reasonably expects to call during the trial.

7. The Defendant requests a complete copy of the Defendant's prior criminal record,

if any, including but not necessarily limited to:

a. All juvenile and adult detention, jail, prison, parole, probation, and pre-sentence investigation records and reports;

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b. All arrest, conviction, and adult and juvenile criminal offense records and

reports;

c. All records and reports of any law enforcement authority as that term is defined in paragraph 5(a) above;

d. All records and reports of any detention or court authority;

e. All records and reports of any prosecuting authority as that term is defined in paragraph 5(b) above;

8. The Defendant requests the opportunity to inspect and copy or photograph any

and all books, papers, documents, photographs, motion pictures, videotapes, mechanical or electronic recordings, buildings and places, or any other crime scene, tangible objects, or copies or portions thereof, which are within the possession, custody or control of the State and which are material to the preparation of the defense, or are intended for use by the State as evidence at the trial or were obtained from or allegedly belonged to the Defendant.

9. The Defendant requests a copy of any and all search warrants, arrest warrants and

non-testimonial identification orders issued in connection with the case, as well as any supporting affidavits, sufficient to allow the Defendant to determine whether to proceed under N.C. Gen. Stat. §15A-971 et seq.

10. The Defendant requests a description of any and all pre-trial identification

procedures conducted by the State or any of its agents in connection with the alleged crimes, and the date, time, place and persons present at such procedure, sufficient to allow the Defendant to determine whether to proceed under N.C. Gen. Stat. § 15A-971, et seq.

11. The Defendant requests a description of any conversation between the Defendant

and any law-enforcement officer, official or agent, and the date, time, place, and persons present at such time, sufficient to allow the Defendant to determine whether to proceed under N.C. Gen. Stat. § 15A-971, et seq.

12. The Defendant requests a description of any and all property or contraband seized

from the Defendant, Defendant's home, or an area under Defendant's control that the State intends to offer as evidence at trial, or which led to any other evidence the State intends to use at trial, and the time, place, and manner of any such seizure, sufficient to allow the Defendant to determine whether to proceed under N.C. Gen. Stat. § 15A-971, et seq.;

13. The Defendant requests a description of any and all electronic, mechanical, visual

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or photographic surveillance of the Defendant conducted by State or federal law-enforcement officers, officials or agents, and the date, time, place and persons present at such surveillance, sufficient to allow the Defendant to determine whether to proceed under N.C. Gen. Stat. § 15A-971, et seq.

14. The Defendant requests a description of any electronic, mechanical, visual, or

photographic surveillance of other persons, places or organizations conducted by State or federal law-enforcement officers, officials or agents which resulted in the interception and/or recording of any of the Defendant's conversations, photographs of the Defendant, or other information relating to the Defendant, and the date, time, location and manner of any such surveillance, sufficient to allow the Defendant to determine whether to proceed under N.C. Gen. Stat. § 15A-971, et seq.

15. The Defendant requests information related to the nature of any other criminal

acts, or prior bad acts, allegedly committed by the Defendant which the State intends to introduce as evidence in its case-in-chief or at sentencing, and the particulars of those acts, including but not limited to the time and place the acts were allegedly committed, whether the acts were the subject of any court proceedings, and the results of any such proceedings.

16. The Defendant requests a statement indicating whether or not any informants

were involved in the investigation or preparation of the cases against the Defendant.

17. Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427

U.S. 97 (1976), United States v. Bagley, 374 U.S. 667 (1985) and Kyles v. Whitley, 514 U.S. 419 (1995) any and all documents, reports, facts or other information in whatever form which would tend to exculpate the Defendant, mitigate the degree of the offense or the appropriate punishment, weaken or overcome testimony adverse to the Defendant given by a State's witness, impeach the credibility of a State's witness, or would otherwise tend to be favorable to the Defendant in any way, including but not limited to:

a. Any notes or reports, in whatever form, which were prepared by any law-

enforcement officer, official or agent and which would tend to refute, impeach or contradict any of the evidence the State intends to introduce at trial, or which tends to show or indicate in any way that the Defendant did not commit the crimes charged in the indictment or that he may have a legal defense to such crimes;

b. Any evidence or information which would tend to indicate in any way that

someone other than the Defendant committed the crimes charged, including but not limited to any reports concerning any investigation of

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suspects other than the Defendant carried out in connection with this case or containing a description of the alleged perpetrator that is inconsistent with the physical characteristics of the Defendant;

c. The facts and circumstances surrounding any pretrial identification

procedure conducted by any law-enforcement officer, official or agent in connection with this case in which any alleged witness failed to identify the Defendant or identified someone other than the Defendant;

d. Any written, recorded or oral statements made by any person which would

tend to exculpate the Defendant or indicate in any way that Defendant may not have committed the alleged crimes or that Defendant may have a legal defense to such crimes;

e. The names and addresses of any witnesses who may have knowledge of

facts which might be favorable to the Defendant, or who were interviewed by any law-enforcement officer, official or agent and failed to provide inculpatory information concerning the Defendant;

f. Any statements previously made by a prospective witness for the State,

whether written or oral and whether made under oath or otherwise, which are inconsistent or at variance in any way with what the witness is anticipated to testify to at trial;

g. The complete prior criminal and juvenile records of all witnesses who may

testify for the State, the nature of any criminal charges under investigation or pending against such witnesses in any jurisdiction, and a description of any prior bad acts engaged in by any such witnesses;

h. The details of any promises or indications of actual or possible immunity,

leniency, favorable treatment or any other consideration whatsoever, or of any inducements or threats, made or suggested by any State or federal employee or agent to any person who has provided information to or will testify for the State in this case, or to anyone representing such a person;

i. Any information suggesting any bias or hostility by any prospective

witness for the State toward the Defendant, or any other factor bearing on the credibility of any prospective witness for the State, including but not limited to any mental illness or condition, or dependence on or use of alcohol or drugs of any kind, whether or not received legally; and

18. All additional information of the type requested above that comes to the attention

of the State or its agents after initial compliance with this request.

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19. If the State intends to redact any portions of any discovery required to be provided to the Defendant under N.C. Gen. Stat. § 15A-903 et seq., then the Defendant specifically requests that the State first seek a protective order, with notice to the Defendant, from the Superior Court before any redacting is performed.

TIME OF REQUEST

This request for voluntary discovery is made not later than the tenth working day after the

Defendant received notice of the return of a True Bill in the above-referenced matter. The Defendant was notified of the return of a True Bill on January 9, 2013. WHEREFORE the Defendant respectfully prays unto this Honorable Court for the following relief:

1. That the State voluntarily provide the aforementioned items of discovery within seven (7) days of the service of this Request upon the State, pursuant to N.C.Gen.Stat. § 15A-902(a);

2. That if the State fails or refuses to provide the requested voluntary discovery herein,

within the time period prescribed by law, that the Court treat this voluntary discovery request as a motion for the Court to issue an Order compelling the Office of the District Attorney to provide the required discovery pursuant to Article 48 of the North Carolina General Statutes; and

3. For such other and further relief to which the Defendant may be entitled and which

the Court may deem just and proper.

This the 9th day of January, 2013.

By:________________________________

Maitri “Mike” Klinkosum Attorney for the Defendant State Bar No.: 25052 Cheshire, Parker, Schneider, & Bryan, P.L.L.C. 133 Fayetteville St., Suite 500 Raleigh, NC 27601 Telephone: (919) 833-3114 Facsimile: (919) 832-0739


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This shall certify that a copy of the foregoing Request for Voluntary Discovery (Alternative Motion for Discovery) was this day served upon the District Attorney by the following method:

_____ depositing a copy hereof in a postpaid wrapper in a post office or official depository under the exclusive care, custody, and control of the United States Postal Service, addressed to the following:

__X__ by personally serving the Office of the District Attorney via hand delivery (ADA

); _____ by transmitting a copy via facsimile transmittal to the Office of the District

Attorney; and/or _____ by depositing a copy in the box for the Office of the District Attorney maintained

by the Clerk of Superior Court. This the 9th day of January, 2013.

By:__________________________________ Maitri “Mike” Klinkosum

Attorney for the Defendant State Bar No.: 25052 Cheshire, Parker, Schneider, & Bryan, P.L.L.C. 133 Fayetteville St., Suite 500 Raleigh, NC 27601 Telephone: (919) 833-3114 Facsimile: (919) 832-0739


1

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF WAKE 10 CRS STATE OF NORTH CAROLINA ) ) vs. ) MOTION FOR DISCLOSURE OF ALL ) ATTORNEY FILES & RECORDS

, ) RELATED TO VS. ) (10 CVS – WAKE COUNTY)

) Defendant. )

_________________________________________________________ NOW COMES, the Defendant, , by and through his undersigned counsel, Maitri “Mike” Klinkosum, Attorney at Law, and hereby moves this Honorable Court, pursuant to the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I §§ 19 and 23 of the North Carolina Constitution, N.C.Gen.Stat. § 15A-903, Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, or, in the alternative, Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), for an Order commanding the production of the files and records held by the law firms of and , related to the civil action filed against the Defendant captioned

– 10 CVS . In support of the foregoing Motion, the Defendant would show unto the Court as follows:

1. is charged with one count of Second Degree Rape and one count of Second Degree Sexual Offense. The indictment alleges that on or about the September 26th, committed the alleged acts against

2. The trial of this matter is scheduled to begin on January 7th, 2013.

3. Although is alleged to have committed the acts on September 26th, 2009, the alleged acts were not reported to law enforcement until January 30th, 2010.

4. On March 2nd, 2010, 2010, the alleged victim and her husband filed a civil lawsuit

in Wake County Superior Court against claiming damages for the criminal acts allegedly committed by as well as other alleged tortuous conduct. On May 26, 2010 the alleged victim and her husband filed an amended complaint, under the same civil case number ( ), naming

, as well as his brothers, , as defendants in the civil action.

2

The Court Should Order the Files and Records of the Civil Action Lawyers Be Disclosed to the Defense for Preparation for the Criminal Trial

5. The original civil complaint was filed before an indictment was issued against

. The original complaint in the civil action has a filing date of March 2 , 2010. The indictment in the criminal matter is dated as being issued on April 6, 2010.

6. Upon information and belief, while the criminal investigation was still in process,

and before an indictment had been obtained against the lawyers for the plaintiffs in the civil action, and , spoke with, and may have investigated, the allegations made by the plaintiffs against

7. Based upon undersigned counsel’s prior experience in litigation involving

criminal matters with accompanying civil tort claims, undersigned counsel believes that the civil action lawyers may have been allowed access to the investigative files and evidence in the possession of law enforcement and the Wake County District Attorney’s office.

8. Further, based upon the fact that undersigned counsel received discovery from the

prosecution, which contained documents from the civil action, it is apparent that the civil action lawyers spoke to, and shared information with, the Wake County District Attorney’s Office. It would stand to reason that the civil action lawyers and the prosecution spoke and shared information with each other, as both parties share a common goal: the civil and criminal prosecution of

9. The sharing of information, between the prosecution and the civil action lawyers,

is such that the interests and work between the two parties have become entwined and comingled, sufficient for this Court to conclude that the actions of the civil action lawyers fall within the purview of a “private entity that obtains information on behalf of a law enforcement agency or prosecutor in connection with the investigation of the crimes committed or the prosecution of the defendant.”1

10. Because the actions of the civil lawyers fall within the purview of a “private entity that obtains information on behalf of a law enforcement agency or prosecutor in connection with the investigation of the crimes committed or the prosecution of the defendant,”2 the Court should order the civil action lawyers to provide any and all files and records regarding their efforts and investigation in the civil matter to the defense, for review pursuant to the criminal discovery statutes of North Carolina.3

1 N.C. Gen. Stat. § 15A-903

2 Id. 3 Id.

3

11. Further, if the prosecution intends to call either of the civil action lawyers to

testify at ’s criminal trial, or if the prosecution intends to delve into the issue of the aforementioned civil action during s criminal trial, such attempts place the credibility of the civil action lawyers before the jury. As such, in order to ensure that is afforded his right to confrontation and opportunity for effective cross-examination, the Court should order the civil action lawyers to provide any and all files and records regarding their efforts and investigation to the defense for review.

12. Further, in order for the defense to determine whether it should call either of the

civil action lawyers to testify at ’s criminal trial, and thereby insuring that is afforded his right to due process and the ability to present a defense, the Court should order the civil action lawyers to provide any and all files and records regarding their efforts and investigation to the defense for review.

Alternative Theory of Disclosure: The Sharing of Information Between

Attorneys in the Civil Lawsuit and the Prosecution Require the Files of the Attorneys in the Civil Lawsuit to

Be Provided to the Court for an In Camera Inspection

13. Upon information and belief, the civil action lawyers, prior to filing the Complaint, were ethically required to conduct an investigation into the grounds for filing the complaint in the civil matter.

14. Upon information and belief, such an investigation by the civil action lawyers may have included interviews with witnesses involved in the criminal investigation and/or witnesses not located and/or interviewed in the criminal investigation.

15. If the investigation by the civil action lawyers includes interviews with witnesses,

whether or not said witnesses were interviewed as part of the criminal investigation, such interviews may contain statements and/or evidence which could be exculpatory to either through actual exculpatory means or through information that could be used to impeach the testimony and credibility of said witnesses.

16. Because the files of the civil action lawyers may contain information that is

exculpatory to if the Court does not agree that the files should be provided directly to the defense in the criminal matter, the Court should conduct

4

an in camera inspection of the entire files of the civil action lawyers and provide any exculpatory material found in said files to the defense.4

17. Further, if the prosecution intends to call one or both of the civil action lawyers to testify at the trial of the criminal matter, or if the prosecution intends to delve into the issue of the aforementioned civil action, such action places the credibility of the civil action lawyers before the jury. As such, in order to ensure that

is afforded his right to confrontation and opportunity for effective cross-examination, the Court should conduct an in camera inspection of the entire files of the civil action lawyers and provide any exculpatory material found in said files to the defense.5

18. Further, in order for the defense to determine whether it should call either of the civil action lawyers to testify at ’s criminal trial, and thereby insuring that is afforded his right to due process and the ability to present a defense, the Court conduct an in camera inspection of the entire files of the civil action lawyers and provide any exculpatory material found in said files to the defense.6

19. Based upon the assertions as set forth above, the defense would assert that the communication and sharing of information between the lawyers in the civil action and the criminal prisecution provide sufficient foundation for this Court to order that the civil action lawyers provide the entire files related to the civil action of

vs. – 10 CVS to the Court for an in camera inspection.

WHEREFORE, the Defendant respectfully prays unto this Honorable Court for

the following relief:

1. That should the Court require further evidence regarding this Motion, that the Court schedule an evidentiary hearing in this matter, providing both sides with sufficient time to subpoena the necessary witnesses and documentation for said hearing;

2. That the Court enter an Order requiring the disclosure of any and all files and documents held by Attorneys and in connection with the case of vs.

– 10 CVS to the defense; or

4 See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); State v. Love, 57 F.3d 1305 (4th Cir. 1995); State v. Bailey, 89 N.C.App. 212, 365 S.E.2d 651 (1988), and State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). 5 Id. 6 Id.

5

3. In the alternative, that the Court order the disclosure of the any and all files and documents held by Attorneys and in connection with the case of

– 10 CVS , to the Court for review by the Court, that the Court disclose to the defense any favorable and material evidence that is gleaned from said review, and that the Court place copies of the files and documents disclosed, under seal, in the court file of this matter for potential appellate review; and

4. For such other and further relief to which the Defendant may be entitled and

which the Court may deem just and proper.

This the 18th day of December, 2012.

By:___________________________________________ Maitri “Mike” Klinkosum Attorney at Law Attorney for the Defendant State Bar No.: 25052 Cheshire, Parker, Schneider, & Bryan, PLLC 133 Fayetteville St., Suite 500 Raleigh, NC 27601 Telephone: (919) 833-3114 Facsimile: (919) 832-0739 Email: [email protected]

mailto:[email protected]�

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This shall certify that a copy of the foregoing Motion for Disclosure of All Attorney Files & Records Related to vs. (10 CVS ) was this day served upon the District Attorney by the following method:

_____ depositing a copy hereof in a postpaid wrapper in a post office or official depository under the exclusive care, custody, and control of the United States Postal Service, properly addressed to Office of the District Attorney;

__X__ by personally serving the Office of the District Attorney via hand delivery (Assistant

District Attorney ); __X__ by transmitting a copy via facsimile transmittal to the following individuals: Attorney

Raleigh, NC 27601 Attorney

Raleigh, NC 27601 _____ by depositing a copy in the box for the Office of the District Attorney maintained by the

Clerk of Superior Court. This the 18th day of December, 2012.

By:___________________________________ Maitri “Mike” Klinkosum Attorney at Law State Bar No.: 25052 Cheshire, Parker, Schneider, & Bryan, PLLC 133 Fayetteville St., Suite 500

P.O. Box 1029 Raleigh, NC 27602 Telephone: (919) 833-3114 Facsimile: (919) 832-0739 Email: [email protected]

mailto:[email protected]�

New Felony Defender TrainingChapel Hill, NC

Thursday, February 11, 2010 to Friday, February 12, 2010

NEW FELONY DEFENDER TRAINING

A PRACTICAL GUIDE TO BRADY MOTIONS:

Getting What You WantGetting What You Need

Ira Mickenberg6 Saratoga CircleSaratoga Springs, NY 12866(518) 583-6730FAX (518) [email protected]

mailto:[email protected]

SOME BASIC INFORMATION ABOUT BRADY CLAIMS

I. THE PROBLEM OF “OPEN FILE” DISCOVERY

It has become custom in many courts and with many prosecutors that discovery incriminal cases operates on a streamlined “open file” process. Under the open file system,defense counsel is permitted to look at the State’s file on the case, and the prosecution’sdiscovery obligations are then satisfied.

This sounds good in theory – after all, why bother with time-consuming motions andarguments when the State is willing to let you look at everything they have?

In practice, though, every defense lawyer knows that “open file” discovery doesn’t workanything like it is supposed to. The files we are shown often do not contain some police reports,witness statements, and other crucial documents. Materials that contradict the State’s case orsupport a defense are frequently missing. Evidence that corroborates the defendant’s story ismysteriously absent. Items that would impeach the police are nowhere to be found.

Not only is the discovery often empty of anything that would help the defense –prejudicial and damaging evidence that we could prepare to refute (if only we knew about it) isalso frequently absent. Sometimes it seems that no trial is complete without the prosecutorproducing a “surprise” witness, statement, or piece of evidence that never made it into their“open file” discovery.

The practice of “open file” discovery has become the customary way of doing things inmany places not because it is good, or even legal, but because “that’s the way it’s always beendone.” Many judges and prosecutors even assume that because it has been around so long, itmust be legally required. This is, of course, completely wrong. In fact, the U.S. Supreme Court,in Strickler v. Greene, 527 U.S. 263, 283, 119 S.Ct. 1936, 1949 (1999), explicitly held that aprosecutor’s open file discovery policy in no way substitutes for or diminishes the State’sobligation to turn over all exculpatory evidence pursuant to Brady.

Regardless of what customs, practices and traditions may have grown up arounddiscovery, the fact remains that the U.S. Constitution, the North Carolina Constitution, and therulings of the North Carolina Supreme Court all supercede local “open file” customs. Andfortunately for the defense bar, all of those legal resources require that we get a lot morediscovery than most “open file” policies provide. If we are to get meaningful discovery, we mustuse those resources to compel the courts and prosecutors to follow the law, and release theinformation our clients need to get a fair trial.

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II. THE DIFFERENCE BETWEEN DISCOVERY AND BRADY

It is important to distinguish between the kind of discovery we are entitled to under stateand local statutes, rules and customs, and the U.S. Constitutional requirement that the State turnover to the defense all exculpatory evidence (Brady material).

Every state is free under the Constitution to establish whatever discovery rules it wants. Some states provide virtually no discovery at all. For example, New York does not even requirethe State to give defense counsel a witness list. This does not violate the Constitution. Otherstates require total discovery. For example, Florida gives the defense an absolute right to take asworn deposition of all prosecution witnesses (including police officers and crime victims) priorto trial. This too is constitutional. The discovery rules of most states, including North Carolinafall somewhere in between these extremes. And in general, the Constitution doesn’t care how astate deals with discovery.

The Constitution is concerned with only one aspect of discovery – prior to trial, theprosecution must turn over to the defense all exculpatory evidence in its actual or constructivepossession. Failure to do so is a violation of Due Process Clauses of the Fifth and FourteenthAmendments. This rule applies regardless of how a state has chosen to structure its discoveryprocess. The main U.S. Supreme Court cases that establish this right are:

Brady v. Maryland, 373 U.S. 83 (1963)Kyles v. Whitley, 514 U.S. 419 (1995)Strickler v. Greene, 527 U.S. 263 (1999)

The generic term applied to the exculpatory evidence the State must turn over is “Bradymaterial.”

III. WHAT IS BRADY MATERIAL?

Brady says that the prosecution must disclose any information or material that is:

� A. Material (and)

� B. Relevant to guilt or punishment. (and)

� C. Favorable to the accused. (and)

� D. Within the actual or constructive knowledge or possession of anyoneacting on behalf of the State.

It is helpful to examine each of these factors individually, to get a clear idea of exactlywhat kind of material the State is required to turn over:

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A. WHAT DO WE MEAN BY MATERIAL?

Materiality is the most confusing aspect of the Brady standard. Many courts definemateriality in terms of the standard the defense must meet to get a conviction reversed when aBrady violation is discovered after trial, and the issue is raised on appeal or at post-convictionproceedings. In this context, materiality is usually defined as whether there was a reasonableprobability that the result of the trial would have been different if the exculpatory material hadbeen turned over before trial.

Other courts have recognized, though, that this standard is not really appropriate as aguide for whether information must be turned over before trial. Those courts have usuallyadhered to the language of Brady, Bagley and Kyles, all of which speak of the obligation to turnover anything that is relevant to guilt or punishment and is exculpatory or favorable to thedefense.

B. WHAT IS “RELEVANT TO GUILT OR PUNISHMENT?”

This simply establishes that Brady material consists of anything that is helpful to thedefense at either the guilt or sentencing phase of a case. For example, assume that a robberyvictim identified the defendant as one of two people who robbed him, but also told police that thedefendant prevented the other robber from injuring him. This would be Brady material because itis relevant to mitigating punishment – even though it actually helps establish the defendant’sguilt.

C. WHAT IS “FAVORABLE TO THE ACCUSED?”

It is essential to realize that as used in Brady, the terms “favorable to the accused” and“exculpatory” are not limited to evidence that goes towards proving that the defendant isinnocent of the charges. Brady material is defined much more broadly, and the prosecution hasthe obligation to turn over many things that don’t directly go towards a claim of innocence.

For the purposes of Brady analysis, material that is favorable to the defense is anythingthat meets the following criteria:

! It is exculpatory – meaning that it tends to show that the defendant isinnocent of the charges. . . . or

! It may mitigate sentence. . . . or

! It can be used to impeach a state witness, or otherwise cast doubt on theprosecution case. Impeachment evidence must be turned over even if hasnothing to do with the defendant’s innocence.

Again, it is a good idea to look at each of these criteria individually:

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C-1. WHAT DO WE MEAN BY “ IS EXCULPATORY?”

The most important thing to understand about the term “is exculpatory,” is that it is notlimited to things that prove the defendant did not commit the crime. Rather, it includes anyinformation or material that might lead the jury to conclude that the defendant should be foundnot guilty of any of the crimes charged.

One constructive way of analyzing whether something “is exculpatory” is to look at thedifferent general categories (or genres) of defenses in criminal cases, and ask ourselves whetherthe evidence we want to discover helps establish any of those categories. These genres (withinwhich almost all defenses fit) are as follows:

1. The criminal act never occurred. (Frame-up, for example)2. The criminal act occurred, but the defendant was not the one who did it. (Alibi,

for example)3. The criminal act occurred, the defendant committed it, but it wasn’t legally a

crime. (Self-defense, for example)4. The criminal act occurred, the defendant committed it, but it wasn’t the crime

charged. (Lesser included offense, for example)5. The criminal act occurred, the defendant committed it, but he was not legally

responsible. (Insanity, for example)

Any material that might help to establish any of these categories is Brady material, andmust be disclosed. Moreover, it doesn’t matter whether the defendant has committed to raising adefense with that information. As long as the material would help to establish a defense, it mustbe turned over, and it is for the defense lawyer to determine whether and how he or she wishes touse it.

Along the same lines, any material that is inconsistent with the prosecutor’s theory of thecase is Brady material, regardless of whether and how defense counsel is going to use thatmaterial.

Due process also requires disclosure of any evidence that provides grounds for thedefense to attack the reliability, thoroughness, and good faith of the police investigation, toimpeach the credibility of the state’s witnesses, or to bolster the defense case againstprosecutorial attacks. Kyles v. Whitley, 514 U.S. 419, 442 n.134, 445-451 (1995).

To sum up:

• Any material that helps the defense attack the reliability, thoroughness, or goodfaith of the police investigation is discoverable under Brady. This is a terrific toolfor prying loose police reports that show inconsistent behavior or statements bypolice, incompetence or failure to follow guidelines or protocols for investigation,and general sloppiness in investigating the crime or in failing to follow leads orinvestigate anything that wouldn’t help convict your client. It is also very useful

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for obtaining information about informants, deals and other crimes that may havegiven witnesses a motive to lie in your case, or given the police a motive to frameyour client.

• Even if something would not be admissible at trial, if it fits within the definitionof Brady material, it must be disclosed. The key to Brady is that the defense mustbe given all favorable information – it is then up to defense counsel to figure out away, if possible, to use it. Contrary to what many prosecutors believe, the factthat a document or piece of information may be inadmissible does not relievethem of their obligation to disclose it under Brady.

• Even if the prosecutor thinks that the Brady material is unreliable or unbelievable,he or she must disclose it. It is for defense counsel, not the prosecutor to decidewhether the Brady material is reliable enough to be used. For example: the excusethat “the other guy who confessed was crazy and unbelievable” does not relievethe prosecution from the due process obligation to inform the defense about the“other guy and his confession.”

C-2. WHAT DO WE MEAN BY “MITIGATE SENTENCE?”

Information or material that mitigates sentence is:

# Anything that supports any argument you are permitted to make at sentence insupport of a less-than-maximum sentence.

# Anything the courts in your jurisdiction have held to be a mitigating factor at sentencing.

A good technique for supporting a demand for Brady material that mitigates sentence is tocite caselaw that either:

# Has explicitly held that such material is relevant to sentence. . . . or # In which a court has considered such material in its sentencing determination,

even if the case itself was not explicitly about that material.

C-3. WHAT DO WE MEAN BY “IMPEACH A STATE’S WITNESS?”

< Anything that is inconsistent with the testimony of a State’s witness. This mightinclude prior statements of that witness, or any other information from any othersource that is inconsistent with the witness’s testimony.

< Anything that is inconsistent with other prior statements of a State’s witness.

< Any statements omitting something the witness later told the prosecutor, or

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testified to. This covers the very common situation where a State’s witness at trial“remembers” for the first time that the defendant confessed to him. When thewitness has such a miraculous recovered memory, any prior statements thewitness made that did not include the alleged confession become Brady material,and must be turned over immediately.

D. WHAT IS “WITHIN THE KNOWLEDGE OR POSSESSION OF ANYONE ACTING ONBEHALF OF THE STATE?”

The important thing to recognize about this requirement for Brady material is that it is notlimited to things that are within the actual knowledge or possession of the individual prosecutoron the case. All of the following are included:

� Anything actually known to or in the possession of anyone in the prosecutor’soffice.

� Anything actually known to or in the possession of the police, even if theprosecutor doesn’t know about it.

� Anything actually known to or in the possession of anyone else acting on behalf ofthe State, even if the prosecutor doesn’t know about it.

The prosecutor is therefore prohibited from hiding behind the excuse that “I didn’t knowabout that.” If the material was within the knowledge or possession of anyone working on behalfof the prosecution, the State is considered to have constructive knowledge or possession of thatmaterial, and must obtain and turn it over to the defense pursuant to Brady..

Even better, in Kyles v. Whitley, the U.S. Supreme Court explicitly said that theindividual prosecutor has an affirmative duty to learn of any favorable evidence known to theother people and agencies acting on the government’s behalf on the case, including the police.

II. USING YOUNGBLOOD v. WEST VIRGINIA, ___U.S.___, 126 S.Ct. 2188 (2006)

A. WHAT IS YOUNGBLOOD?

Youngblood is the latest pronouncement of the U.S. Supreme Court on Brady/Kylesissues. In addition to reaffirming the rulings in Brady and Kyles, it explicitly orders the WestVirginia courts to stop avoiding some of the most important provisions of Brady and Kyles. Thus it can be cited for the proposition that state court efforts to dilute the due processprotections concerning disclosure of exculpatory evidence by casting them in terms of stateevidentiary law will not be tolerated.

Youngblood involved a defendant accused of abducting three teenaged girls and sexuallyassaulting one of them. His defense was consent. After he was convicted and sentenced to 26-60years in prison, a defense investigator discovered that the “victims” had written a letter bragging

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about how they framed Youngblood and how the entire incident was consensual. A policeofficer who saw the letter before trial refused to take custody of it, and told the person who hadthe letter to destroy it. The defense was never told about the letter until after Youngblood wasconvicted. Consequently, the jury never found out about the letter, and neither the “victims” northe police officer were cross-examined about it at trial.

The defense filed a state habeas petition, but the trial judge denied the petition, holdingthat the letter wasn’t Brady material because it only went to impeachment, not innocence. Thetrial court also held that it was not Brady material because the police officer never gave the letterto the prosecutor, so the prosecution was not in possession of the material.

When the denial of Youngblood’s habeas was appealed, the West Virginia SupremeCourt of Appeals, by a 3-2 vote, affirmed. The majority did not address the specific Brady/Kylesclaims, but merely held that the trial court did not abuse its discretion. Dissenting, two justicessaid that there was a clear Brady violation.

B. THE HOLDING OF YOUNGBLOOD

The U.S. Supreme Court reversed. It made following explicit findings, and ordered theWest Virginia courts to follow them:

1. Impeachment material falls under Brady/Kyles and must be disclosed, even if it doesnot directly go to innocence.

2. If the police know about exculpatory information (including impeachment material) itis considered to be within the possession of the prosecution and must be disclosed pursuant toBrady/Kyles, even if the police never told the prosecutor about it.

3. The prosecutor has an affirmative duty to seek out and learn of any exculpatorymaterial in the possession of anyone else acting on the government’s behalf in the case, includingthe police.

III. WHAT MUST WE DO TO GET BRADY MATERIAL?

A. HOW TO DEMAND BRADY MATERIAL

It is very tempting to store a form Brady motion on your computer, and file it in everycase, just changing the defendant’s name and case number. Unfortunately, the more general ourdemand is, the easier it is for the prosecution to weasel out of its obligations. By specificallytailoring our demand to the factual needs of our case, we make it difficult for the State or theCourt to claim that they didn’t know something existed or was relevant.

This does not mean that we can’t use the computer, or we can‘t use similar language inour Brady motions. It does mean, however, that our Brady motions must contain sufficient facts

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about the individual case to make our demand specific. At the very least, this means that weshould include facts in our demand that refer to:

T The prosecution witnesses we want information about. For example:

T “Any and all information bearing on the truthfulness, bad character or badreputation of State’s witness John Smith, including but not limited to:complete adult criminal record; complete juvenile record; any contemptcitations issued against the witness; any past instances of dishonesty,fraud, lying or violence on the part of the witness that is known to theState or its agents; any history of mental illness . . .”

T The specific documents (or at least the kind of documents) we want to get. Forexample:

T “The name, address and telephone number of any witness who at any timeidentified someone other than the defendant as the person who committedthe robbery charged in this case; any and all reports that mention in anyway that a witness, whether named or unnamed, identified someone otherthan the defendant as the person who committed the robbery charged inthis case; the name, address and telephone number of any witness who atany time stated that the defendant was not the person who committed therobbery charged in this case; any and all reports that mention in any waythat a witness, whether named or unnamed, stated that the defendant wasnot the person who committed the robbery charged in this case.”

T The specific evidence we think may be out there that fits within Brady. Forexample:

T “Any medical or scientific records (including but not limited to the resultsof any tests and the complete raw data upon which those test results werebased) that indicate that the defendant was not the person who committedthe crimes charged. This request is intended to encompass, but not belimited to all blood testing, DNA testing, serology testing, fingerprinttesting, hair sample testing

T When enumerating the things you are asking for in your motion, use the phrase“including, but not limited to” as a way of preventing the court or the prosecutorfrom claiming that you unnecessarily limited the scope of your request.

In order to make specific demands for Brady material, we have to do several things beforewriting the motion:

T Know your theory of defense. It is impossible to think of things that may beexculpatory if we haven’t figured out what our defense is.

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T Investigate. Often it will be impossible to complete an investigation beforemotion papers are due. When that happens, do the best you can to base thespecifics of your Brady motion on what you know about the facts of your case.Then supplement your requests for Brady material as you learn more about thecase.

T Follow up on what you learn. When you get some Brady material, investigate it,and then make demands for additional material on anything your follow-upinvestigation turns up.

B. WHEN TO DEMAND BRADY MATERIAL

The Brady process is not just for pre-trial. The prosecution has an ongoing constitutionalresponsibility to turn over all exculpatory material, whenever they find it. Imbler v. Pachtman,424 U.S. 409, 427,n.25, 96 S.Ct. 984 (1976), held that “after a conviction the prosecutor also isbound by the ethics of his office to inform the appropriate authority of after-acquired or otherinformation that casts doubt upon the correctness of the conviction.”

This means that demanding Brady material is something we should be doing throughoutthe case. For example:

� In pre-trial motions

� Just before trial begins – to make sure that nothing has come up that theprosecutor has neglected to mention

� After the prosecutor’s opening – to make sure there is nothing that may be inconflict with what the prosecutor has just told the jury.

� After the direct examination of every State’s witness – to make sure theprosecutor doesn’t possess something that contradicts the testimony the witnessjust gave.

� After the prosecutor’s closing – for the same reason you ask for it after his or heropening.

� Before sentencing – to make sure the State is not withholding anything that wouldmitigate sentence.

In your pre-trial motions and prior to sentencing, it is important to make the motion inwriting and to get the State’s response and the court’s decision (if any) in writing.

When you make Brady applications during trial, be sure to make them on the record,

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and to get the State’s response and the court’s ruling on the record. This is absolutely essentialif we are to have a remedy when we discover months later that the State lied about something.

C. BRADY DURING POST-CONVICTION

When Brady material turns up after a defendant has been convicted and sentenced, a statepost-conviction or habeas corpus petition is usually the appropriate way to raise the issue. This isstandard practice. But what can be done when the Brady material is discovered after thedefendant has not only been convicted, but lost his or her appeal, and lost a post-conviction case? In such cases, there are usually serious procedural problems with filing a second, or successorhabeas. In particular, the defendant must show cause why he did not raise the claim in his firstpetition, and actual prejudice from the violation.

In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 1949 (1999), the U.S. Supreme Court held that when a defendant files a successor habeas under Brady, if he proves that the Statewithheld evidence, that will constitute cause for not presenting the claim earlier.

It is essential that we take advantage of this law by:

T Remaining vigilant for concealed Brady material even after conviction.T Raising the claim even after a first habeas has failed.

IV. REFUTING THE PROSECUTOR’S ARGUMENTS – USING KYLES v. WHITLEY, 514 U.S. 419, 115 S.Ct. 1555 (1995)

The most significant Brady case of the past 30 years has been Kyles v. Whitley, 514 U.S.419 (1995). The importance of Kyles lies in the fact that the U.S. Supreme Court took theopportunity to explicitly refute virtually every excuse prosecutors have traditionally used to avoidturning over Brady material at trial, and to avoid reversals on appeal and habeas corpus whenthey are caught in a Brady violation. It is therefore essential that we become familiar with Kyles,and use it at every opportunity to refute the State’s arguments.

The following is a list of many rulings from Kyles that are helpful in refuting commonincorrect arguments made by the prosecution – at trial, appeal, and post-conviction:

Materiality: The State Argues that the Withheld Material Would Not Have Resulted in anAcquittal

Kyles: “The question is not whether the defendant would more likely than not have received a

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different verdict with the evidence, but whether in its absence he received a fair trial, understoodas a trial resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a differentresult is accordingly shown when the Governments evidentiary suppression ‘underminesconfidence in the outcome of the trial.’”

Materiality: The State Argues that Even Without the Withheld Material, the Evidence wasSufficient to Convict

Kyles: “A defendant need not demonstrate that after discounting the inculpatory evidence in lightof the undisclosed evidence, there would not have been enough left to convict. The possibility ofan acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. . . . None of the Brady cases has ever suggested that sufficiency of evidence (or insufficiency) isthe touchstone.”

Materiality: The Prosecutor Argues on a Brady Appeal of Post-Conviction that “The WithheldEvidence Wasn’t Important”

Kyles: The U.S. Supreme Court suggests that defense counsel look to (and cite) the prosecutor’sclosing argument at trial to show that the State argued that the subject matter of the withheldevidence was very important. In Kyles, for example, the prosecution withheld evidence that castdoubt on the credibility and observational powers of a witness. On appeal, the State argued thatthis wasn’t material under Brady, because the witness was not important. During closingargument at trial, though, the prosecutor had vehemently argued that those same witnesses werevery important and highly credible. The Supreme Court viewed this as a strong indication thatthe withheld information about the witness’ credibility was material.

Harmless Error: The State Argues that Even Though there was a Brady Violation, it wasHarmless Error

Kyles: Once a reviewing court has found constitutional [Brady] error, there is no need for furtherharmless-error review . . . . [a Brady error] could not be treated as harmless.”

The Prosecutor Says, “I Didn’t Know About that Information – the Police Never Told Me

Kyles: “The individual prosecutor has a duty to learn of any favorable evidence known to theothers acting on the government’s behalf in the case, including the police.”

The Prosecutor Says, “None of the Items We Failed to Disclose Would Have Changed the Jury’sMind.”

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Kyles: Brady does not require “a series of independent materiality decisions” for each individualpiece of information withheld. Rather, it requires, “a cumulative evaluation” to determinewhether the cumulative effect of all the pieces of information the State failed to disclose rises tothe level of Brady materiality.

Finally, Kyles determined that the following kind of information is all Brady material thatmust be disclosed:

< Inconsistent descriptions by different witnesses of the criminal.< Inconsistent descriptions by different witnesses of the crime.< The fact that some of the witness’s descriptions of the criminal matched the police

informant< That there were pending charges against the police informant< That there was an ongoing investigation of the police informant concerning other

crimes.< That the police informant made inconsistent statements to the police about the

crime and about his accusation of the defendant< That the police had other leads and information that they failed to follow up on or

investigate, that could have pointed the finger at someone other than thedefendant.

< That before accusing the defendant, one of the witnesses previously said that shehad not actually seen the crime

< That a witness’s description of the crime and/or the criminal became more“accurate” and more certain after the witness met with police and/or prosecutors,or after the witness testified at a first hearing or trial.

< That a witness’s prior statements omit significant details or facts that the witness“remembered” at trial.

< That a witness’s trial testimony omitted significant details or facts that the witnessmentioned in prior statements.

< That a witness or informant made statements that incriminated himself in thecrime charged against the defendant.

Please read Kyles before making your next Brady demand.

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Developing an Investigation and Discovery Plan

2013 New Felony Defender TrainingFebruary 13 – 15, 2013

UNC School of GovernmentChapel Hill, NC

Mike KlinkosumAttorney at Law

Cheshire, Parker, Schneider, & Bryan, PLLC133 Fayetteville St., Suite 500

Raleigh, NC 27601(919) 833-3114

[email protected]

District Court

No right to “formal” discovery until case goes to Superior Court

Sources of “informal” discovery:◦ Client◦ Client’s family or friends◦ Law enforcement, if they will talk to you◦ Motions filed in District Court Motion to Modify Bond Demand for Probable Cause Hearing

District CourtBond Hearings: Motion to Modify

Bond

Can be good source for discovery Article 26; 15A-531 – 547.1 State will likely lay out some facts about the

case in opposition Good opportunity to show your clients you

are on their side Also shows them the criminal justice system

is not on their side

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District CourtDemand for Probable Cause

Hearing

Filed in District Court Governed by Article 30 (15A-611 through 615) Also 15A-606 addresses demand and waiver of PC If you can get one:◦ Excellent source of discovery◦ Opportunity to cross-examine state’s witnesses◦ File motion for recordation of PC hearing◦ Get order for transcription of hearing

Motion to continue PC hearing is not timely unless made 48 hours prior to PC hearing – after that, must have “extraordinary cause.” 15A-606(f)

Trade off PC hearing for early discovery?

Superior CourtStatutory Discovery

Request for Voluntary Discovery (Article 48; 15A-901 through 910)◦ After indictment/PC hearing/waiver of PC hearing◦ No later than 10 working days after ◦ If negative/no response or 7 days pass after

request you may then file motion for discovery◦ Tip: File Request for/Alternative Motion for

Voluntary Discovery Prevents you from having to file motion after filing

Request

◦ File the Request/Alternative Motion! (protect record)


15A-903 governs what you get You get everything!!!◦ “complete files of all law enforcement and

prosecutorial agencies” Defendant’s statements Co-defendant’s statements Witness Statements Investigating officers’ notes Results of tests and examinations “or any other matter obtained during the

investigation of the offenses….”

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What is Discovery?“…any other matter or evidence

obtained…”

Photographs Physical evidence Videos Weapons Biological evidence Polygraph results Fingerprint cards Anything collected in the course of the

investigation!!!


Request for Discovery should include everything (see handout)

Cite NC Statutes, and federal and state constitutions (protect record)

Follow up with letters to ADA if no response◦ Always follow up with letters if you can◦ Shows a timeline of requests and “good faith” effort to

work with ADA


Discovery from requests form the 1st layer of discovery litigation

Review original packet for other items missing◦ Example: Police report mentions surveillance tape, but

not tape in 1st discovery packet – where’s the tape?◦ Example: Police report mentions “substance” sent to SBI

lab for testing – where’s the lab report and accompanying documents?

◦ Always assume you DON’T have everything Follow up with professional request (letter) – if no

response, file motions to compel additional discovery

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Sanctions for Noncompliance with Discovery Rules

15A – 910(a)◦ Order the offending party to produce the discovery or

permit inspection.◦ Grant a continuance or recess.◦ Prohibit the party from introducing evidence not

disclosed.◦ Declare a mistrial.◦ Dismiss the charge, with or without prejudice.◦ Enter other appropriate orders.

Sanctions for Noncompliance with Discovery Rules

15A – 910(b)◦ Prior to finding sanctions appropriate, the court

must consider (1) the materiality of the subjectmatter and (2) the totality of the circumstancessurrounding an alleged failure to comply withdiscovery statutes.

15A – 910(c)◦ Before imposing personal sanctions the court must

presume that prosecuting attorneys and their staffhave acted in good faith if they have madereasonably diligent inquiry of law enforcement andinvestigatory agencies and disclosed responsivematerials.

Constitutional Discovery

APPLIES IN

BOTHDISTRICT

&

SUPERIOR COURT

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Brady v. Maryland

All Requests for Voluntary Discovery andfollow-up motions to compel discoveryshould also request Brady material (i.e., anyevidence in hands of prosecution that isboth favorable and material to the accusedeither to the issue of guilt or sentencing).

- Brady v. Maryland, 373 U.S. 83(1963)

Essential Brady CasesU.S. Supreme Court

Brady v. Maryland, 373 U.S. 83 (1963);

United States v. Bagley, 473 U.S. 667 (1985);

Kyles v. Whitley, 514 U.S. 419 (1995) ;

Strickler v. Greene, 527 U.S. 263 (1999);

Banks v. Dretke, 540 U.S. 668 (2004);

Cone v. Bell, 2009 U.S. Lexis 3298, 129 S.Ct. 1769 (2009);

Smith v. Cain, 132 S.Ct. 627 (2012)

The Effect of the NC “Open File” Discovery Statute on

Brady Duties

Z E R O

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Even Though North Carolina has an Open –File Discovery Statute:

The Prosecutor still must seek out and disclose all exculpatory information.

The Brady material must be in the “open file” or statutory discovery package the State gives defense counsel; Or

The Brady material must be separately turned over to the defense -

EVEN IF IT DOESN’T COME UNDER THE STATUTE

WHO SAYS SO?

“We certainly do not criticize the prosecution’s use ofthe open file policy…We merely note that, if aprosecutor asserts that he complies with Bradythrough an open file policy, defense counsel mayreasonably rely on that file to contain all materialsthe State is constitutionally obligated to discloseunder Brady.”

- Strickler v. Greene, 527 U.S. 263 (1999), footnote 23

What Is BradyMaterial?

Any Information or Material That Is:

Relevant to Guilt or Punishment (and)

Favorable to the Accused (and)

Within the Knowledge of Anyone Acting on Behalf of the State (and)

Is Legally “Material”

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WHAT IS “FAVORABLE TO THE ACCUSED?”

Anything That is Relevant to Either Guilt or Punishment and

Is Exculpatory or

May Mitigate Sentence or

Can Be Used to Impeach a State Witness

Does Brady Really Include Impeachment Material?

“The due process duty of the prosecution under Brady . . . encompasses impeachment evidence as well as exculpatory evidence.”

Strickler v. Greene, 527 U.S. 263 (1999)

“Our cases make clear that Brady’s disclosure requirements extend to material that, whatever their other characteristics, may be used to impeach a witness.”

United States v. Bagley, 473 U.S. 667 (1985)

“the duty to disclose [Brady] evidence encompasses impeachment evidence .”

State v. Mack, 656 S.E.2d. 1 (N.C.App.2008)

What is “Within the Knowledge of Anyone Acting on Behalf of the

State”

Actually known to the prosecutor’s office.

Actually known by the police, even if the prosecutor doesn’t know about it.

Known to anyone else acting on behalf of the State, even if the prosecutor doesn’t know about it.

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What If the Prosecutor Says,

“I Didn’t Know About That?”

“The individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”

- Kyles v. Whitley, 514 U.S. 419 (1995)

What If the Prosecutor Says,

“I Was Acting in Good Faith?”

“The failure to disclose evidence favorable to the defense violates due process irrespective of the good faith or bad faith of the prosecution. . . . The prosecutor’s motive for withholding exculpatory evidence is immaterial.”

- Brady; Kyles; Bagley

Evidence Subject to Disclosure Under

Brady

Evidence lessening defendant’s degree of guilt; U.S. v. Bagley, 473 U.S. 667 (1985);

Evidence undermining the identification of defendant, Kylesv. Whitley, 514 U.S. 419 (1995);

Evidence tending to show guilt of another ; Barbee v. Warden, 331 F.2d 842 (4th Cir. 1988);

Promise of leniency to prosecution witness, Giglio v. U.S., 405 U.S. 150 (1972);

Investigator’s notes/letters on witness interviews useful for impeachment; Strickler v. Greene, 527 U.S. 263 (1999);

“Negative” impeachment evidence; Ring v. U.S., 419 U.S. 18 (1995);

Exculpatory information in Social Services files; PA v. Ritchie, 480 U.S. 39 (1987);

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Evidence Subject to Disclosure Under

Brady

False statements of witnesses; U.S. v. Minsky, 963 F.2d 879 (6th Cir. 1992);

Prior inconsistent statements of witnesses; Chavis v. NC, 637 F.2d 870 (4th Cir. 1980);

Bias of witnesses, specific threats of prosecution if witness does not testify; Banks v. Dretke, 540 U.S. 668 (2004), State v. Prevatte, 346 N.C. 162, 484 S.E.2d (1977);

Information affecting a witness’ capacity to observe, perceive, or recollect; Jean v. Rice, 945 F.2d 82 (4th Cir. 1976); State v. Williams, 330 N.C. 711, 412 S.E.2d 359 (1992);

Psychiatric evaluation of witnesses; Chavis v. NC, 637 F.2d 870 (4th

Cir. 1980); Criminal convictions or other bad acts of state’s witnesses; State

v. Kilpatrick, 343 N.C. 466, 471 S.E.2d 624 (1996); Evidence discrediting police investigation; Kyles v. Whitley, 514

U.S. 419 (1995); Evidence of defendant’s mental illness/drug use; Cone v. Bell, 129

S.Ct. 1769 (2009)

MAKING A BRADYMOTION

Ask for Everything that Might Be Out There Be as Specific as Possible Use the Phrase “Including But Not Limited To” Always Factually Explain Why the Material is

Relevant to Your Theory of Defense Always Factually Explain Why You Will Be Harmed

If You Don’t Get the Material Include Brady material in Request for Voluntary

Discovery

Third Party DiscoveryGetting Discovery from Sources Other than the Prosecutors and

LEOs

15A-903(a)(1)(b) Prosecutor’s office: “…refers to theoffice of the prosecuting attorney.”

15A-903(a)(1)(b1)“…investigatory agency includes anypublic or private entity that obtains information on behalfof a law enforcement agency or prosecutor’s office inconnection with the investigation of the crimescommitted or the prosecution of the defendant.”

Makes moot State v. Pendleton, 175 N.C.App. 230, 622S.E.2d 708 (2005) where NC Court of Appeals held DSSfiles in statutory rape cases were off limits because DSSnot a prosecutorial agency.

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LEOs

Constitutional Third Party Discovery

14th Amendment Due Process Clause gives defendantsthe right to obtain from third parties records that containfavorable, material evidence, even if the records areconfidential under state and/or federal law. SeePennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94L.Ed.2d 40 (1987), State v. Bailey, 89 N.C. 212, 365S.E.2d 651 (1988), State v. Kelly, 118 N.C.App. 589, 456S.E.2d 861 (1995).


LEOs

Constitutional Third Party Discovery

◦ Ritchie allows for in camera review of third partydiscovery to preserve confidentiality. If records containfavorable & material evidence the court must disclosethose parts of the records to the defense.

◦ Must show that records may contain favorable, materialevidence, Love v. Johnson, 57 F.3d 1305 (4th Cir. 1995).


LEOs

In camera review alternatives:

◦ If the third party discovery comes into the hands of theprosecution, statutory discovery applies and the defenseshould get everything (remember “complete file” & “anyother matter or evidence obtained”).

◦ Request in camera review as an alternative to givingdefense all the records. The judge does not know thecase like you do and will not be the most able reviewer todetermine what is favorable and material to your case.

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LEOs

Move to participate in the review of the records pursuant to a protective order that does not allow disclosure of records by counsel unless permitted by court. (15A-909 authorizes protective orders).

Third Party Discovery:What Can You Obtain???

Anything for which you have a good faith basis, including:

◦ Physician’s records;

◦ Mental health records;

◦ Social Services records (see PA v. Ritchie);

◦ Civil attorneys’ files.

Third Party Discovery:But The Third Party Will

Claim Privilege

That is why the U.S. Supreme Court ordered in camera inspection of records!

“We find that Ritchie’s interest (as well as thatof the Commonwealth) in ensuring a fair trialcan be protected fully by requiring that theCYS files be submitted only to the trial courtfor in camera review.”

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Do Not Forget About Public Records

ACIS

Tax Records (Most online)

Real Estate Records (Register of Deeds)

Civil Filings

Divorce

Adoptions

Domestic Violence (50-Bs)

Reciprocal Discovery Requirements

15A-905(a):

If you intend to introduce it at trial, disclose it to the prosecution!

15A-905(b):

Reports of Examinations and Tests. If you intend to introduce it at trial, disclose it to the prosecution!

15A-905(c):

Give notice of certain defenses:

Alibis

Duress

Entrapment

Insanity

Mental Infirmity

Diminished Capacity

Self-defense

Accident

Automatism

Involuntary Intoxication

Voluntary Intoxication


15A-905(c)(1)– Time ElementNotice of defenses must be given within 20 working days after the datethe case is set for trial pursuant to 7A-49.4, or a later time of set by thecourt.

15A-905(c)(1)(a) – Special Issues as to Alibis:Alibis: Disclose identity of alibis witnesses no later than two weeksbefore trial, if prosecution files motion for same and court ordersdisclosure. If court orders disclosure, the court SHALL order theprosecution to disclose any rebuttal alibis witnesses not later than oneweek before trial.

15A-905(c)(1)(b) – Special Issues as to Other Defenses:Duress, Entrapment, Insanity, Automatism, or Involuntary Intoxication:Notice by the Defendant shall contain specific information as to thenature and extent of the defense.

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15A-905(c)(3) – EXPERTS:Give notice of any expert witnesses the defendantreasonably expects to call as a witness at trial. Mustalso disclose:

Report of results of examinations or tests conductedby expert;

Expert’s Curriculum Vitae; Expert’s Opinion AND underlying basis for opinion; All within reasonable time prior to trial or as set by

court.


15A-905(c)(3) – List of Witnesses Given prior to jury selection; List of names of all witnesses defense reasonably

expects to call during the trial; No disclosure if defense certifies, in writing and under

seal, that disclosure would subject witnesses orothers to physical or substantial economic harm orcoercion, or that there is other particularizedcompelling need not to disclose.

If there are witnesses defendant did not reasonablyexpect to call, the court may, upon a good faithshowing, allow the witnesses to be called.

SENTENCING

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SENTENCINGINSUPERIORCOURTNewFelonyDefenderTraining

February2013

[email protected]

(919)843‐3914

STEPS FOR SENTENCING A FELONY UNDER STRUCTURED SENTENCING

1. Determinetheapplicablelaw2. Determinetheoffenseclass3. Determinethedefendant’spriorrecordlevel4. Consideraggravatingandmitigatingfactors5. Selectaminimumsentence6. Determinethemaximumsentence7. Chooseasentencedisposition

Step 1: DETERMINE THE APPLICABLE LAW Lookatthedateofoffensetodeterminethelawapplicabletothedefendant’scase:

Pre–FairSentencing.OffensescommittedbeforeJuly1,1981. FairSentencing.OffensescommittedonorafterJuly1,1981,andpriortoOct.1,1994. StructuredSentencing:

– OffensescommittedonorafterOctober1,1994;– OffensescommittedonorafterDecember1,1995;– OffensescommittedonorafterDecember1,2009;– OffensescommittedonorafterDecember1,2011;– ReportableClassB1‐EsexcrimescommittedonorafterDecember1,2011(tableof

maximumsonly). SomecrimeshavetheirownsentencingrulesasidefromorinadditiontoStructuredSentencing:

– First‐degreemurder,G.S.15A‐2000,etseq.;– Drugtrafficking,G.S.90‐95.

Step 2: DETERMINE THE OFFENSE CLASS

Offenseclassrulesforinchoateoffenses(unlessotherwiseprovidedbylaw):

OffenseClass

AidingandabettingAccessorybeforefact(14‐5.2)

Attempt(14‐2.5)Conspiracy(14‐2.4)

Solicitation(14‐2.6)Accessoryafterfact(14‐7)

Sameasprincipalfelony Oneoffenseclasslower TwooffenseclasseslowerA A B2 CB1 B1 B2 CB2 B2 C DC C D ED D E FE E F GF F G HG G H IH H I Class1misd.I I Class1misd. Class2misd.

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Step 3: DETERMINE THE DEFENDANT’S PRIOR RECORD LEVEL Usetheappropriatepriorrecordlevelworksheet(AOC‐CR‐600),basedontheoffensedateofthecrimebeingsentenced.Thepointrangesassignedtoeachrecordlevel(setoutinG.S.15A‐1340.14(c))wereamendedforoffensescommittedonorafterDecember1,2009.Burdenofproof.TheStatebearstheburdenofproving,byapreponderanceoftheevidence,thatapriorconvictionexistsandthattheoffenderbeforethecourtisthesamepersonastheoffendernamedthepriorconviction.Apriorconvictionmaybeprovedby:

Stipulation; Courtrecordsoradministrativerecords;or Anyothermethodfoundbythecourttobereliable.G.S.15A‐1340.14(f).

Rulesforwhatcountsforpriorrecordpoints:

Countapriorconvictionforpointsbasedontheoffenseclassassignedtoitonthedateoftheoffenseforwhichthedefendantisnowbeingsentenced.G.S.15A‐1340.14(c).

Multipleconvictions– Countonlyasingleconvictionfromeachcalendarweekofsuperiorcourt,orsession

(generally,oneday)ofdistrictcourt.15A‐1340.21(d). Convictionsonappeal:

– Districtcourtconvictionscountwhenthedefendanthasnotgivennoticeofappealandthetimeforappealhasexpired.

– Superiorcourtconvictionscountregardlessofwhethertheconvictionisonappealtotheappellatedivision.G.S.15A‐1340.11(7).

COUNT:– Allfelonyconvictions.– ClassA1andClass1non‐trafficmisdemeanors.– Impaireddriving,commercialimpaireddriving,andmisdemeanordeathbyvehicle.– Prayerforjudgmentcontinued(PJC).Statev.Canellas,164N.C.App.775(2004).

DONOTCOUNT:– Class2andClass3misdemeanors.– Misdemeanortrafficoffensesotherthanimpaireddriving,commercialimpaireddriving,and

misdemeanordeathbyvehicle.– Infractions.– Contempt.Statev.Reaves,142N.C.App.629(2001).– Probationrevocations.– Juvenileadjudications.

Crimesfromotherjurisdictions:– Felonies:CountasClassIbydefault.G.S.15A‐1340.14(e).– Misdemeanors:CountasClass3misdemeanorbydefault.– IfState/defendantprovessubstantialsimilarity(preponderanceoftheevidence)toaNC

offense,countforpointsliketheNCoffense. Substantialsimilarityisaquestionoflawwhichmustbefoundbythejudge—

stipulationsareineffective.Statev.Bohler,681S.E.2d801(2009). Thecourtshouldbaseitsdeterminationonacomparisonoftheotherstate’s

criminalstatutestothecriminallawsofNorthCarolina.Statev.Rich,130N.C.App.113(1998).

Ifanout‐of‐statecrimehaselementsthataresubstantiallysimilartomultipleNorthCarolinaoffenses,andtheprosecutorreliesonlyonthestatutorydefinitionsinprovingsubstantialsimilarity,theruleoflenityrequiresthatthecourtassignrecordpointscorrespondingtothelessseriousNorthCarolinaoffense.Hanton,175N.C.App.250(2006).

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Priorrecord“bonuspoints”– +1priorrecordpointifalltheelementsofthepresentoffenseareincludedinanyprior

offenseforwhichtheoffenderwasconvicted,regardlessofwhethertheprioroffensewasusedindeterminingthedefendant’spriorrecordlevel.G.S.15A‐1340.14(b)(6).

Thisfactorisaquestionoflawtowhichthedefendantmaynotvalidlystipulate.Statev.Prush,185N.C.App.472(2007).

– +1priorrecordpointiftheoffensewascommittedwhiletheoffenderwasonprobation,parole,orpost‐releasesupervision,orwhiletheoffenderwasservingasentenceofimprisonment,orwhiletheoffenderwasonescapefromasentenceofimprisonment.G.S.15A‐1340.14(b)(7).

TheStateneednotallegeinthechargingdocumentthatitintendstoestablishthispoint,butitmustgive30days’noticeofitsintenttodoso.G.S.15A‐1340.16(a6).

Priorrecordrulesrelatedtosentencingofparticularcrimes:– Habitualfelon:

Priorconvictionsusedtohabitualizeadefendantunderthehabitualfelonlawdonotcounttowardthedefendant’spriorrecordlevelwhensentencingthehabitualizedcrime.G.S.14‐7.6.

TheStateisfreetouseadefendant’sleastseriouspriorfeloniesinahabitualfelonindictment,leavingmoreseriousfeloniestocountforpriorrecordlevelpurposes.Statev.Cates,154N.C.App.737(2002).

Whenapreviousfelonyconvictionlistedinahabitualfelonindictmentwasconsolidatedwithalesserconviction,thelesserconvictionmaycounttowardthedefendant’spriorrecordlevelwhensentencingforthehabitualizedcrime.Statev.Truesdale,123N.C.App.104(1999).

– Habitualbreakingandenteringstatusoffense:Anyconvictionusedtoestablishaperson’sstatusasahabitualbreakingandenteringstatusoffenderdoesnotcountforpriorrecordpointswhensentencingthehabitualizedoffense.G.S.14‐7.31.

– HabitualDWI:ThepriormisdemeanorDWIoffensesusedtoqualifyapersonasahabitualimpaireddriverdonotcountforpriorrecordpointswhensentencingthehabitualDWI.Statev.Gentry,135N.C.App.107(1999).

However,whenapersonwithpriormisdemeanorDWIconvictionsandapriorhabitualDWIconvictionislatersentencedforanotherfelony,themisdemeanorDWIsandthehabitualDWIallcountforpriorrecordpoints.Statev.Hyden,175N.C.App.576(2006).

– Failuretoregisterasasexoffender:Thepriorsexcrimethatcausedtheoffendertobeplacedontheregistrycountsforpriorrecordpointswhensentencingaconvictionforfailuretoregisterasasexoffender.Statev.Harrison,165N.C.App332(2004).

– Possessionoffirearmbyafelon:Thepriorfelonythatcostthedefendanthisorhergunsinthefirstplacecountsforpriorrecordpointswhensentencingaconvictionforpossessionofafirearmbyafelon.Statev.Best,__N.C.App.__,713S.E.2d556(2011).

Step 4: CONSIDER AGGRAVATING AND MITIGATING FACTORS Aggravatingfactors

Notice– TheStatemustprovidethedefendantwrittennoticeofitsintenttoproveaggravating

factorsatleast30daysbeforetrialortheentryofaguiltyornocontestplea.ThenoticemustlistallthefactorstheStateseekstoestablish.Adefendantmaywaivethatrighttonotice.G.S.15A‐1340.16(a6).TheStateshoulduseformAOC‐CR‐614togivenotice.

– Statutoryaggravatingfactorsneednotbepledinthechargingdocument.Non‐statutoryaggravatingfactorsmustbepled.G.S.15A‐1340.16(a4).

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Proofofaggravatingfactors– TheStategenerallymustproveanaggravatingfactortothejurybeyondareasonabledoubt,

orthedefendantmustadmittotheaggravatingfactor.G.S.15A‐1340.16(a).– Admissionsoftheexistenceofanaggravatingfactormustbeconsistentwiththeprovisions

ofG.S.15A‐1022.1.(Amongotherthings,thecourtmustaddressthedefendantpersonallyandadvisehimorherthatoftherighttoajurytrialontheaggravatingfactorandtherighttoprovemitigatingfactorstothesentencingjudge.)

– Thejuryimpaneledforthetrialofthefelonymay,inthesametrial,alsodetermineifoneormoreaggravatingfactorsispresent,unlessthecourtdeterminesthattheinterestsofjusticerequirethataseparatesentencingproceedingbeusedtomakethatdetermination.

Weighingofaggravatingfactors– Ifaggravatingfactorsarepresentandthecourtdeterminestheyaresufficienttooutweigh

anymitigatingfactorsthatarepresent,itmayimposeasentencethatispermittedbytheaggravatedrange.

– Theweighingofaggravatingandmitigatingfactorsisamatterofdiscretionforthejudge.Statev.Vaughters,__N.C.App.__,725S.E.2d17(trialcourtdidnoterrwhenitfoundthat1aggravatingfactoroutweighed19mitigatingfactors).

– Thecourthasdiscretiontoenterapresumptiverangesentence,evenifitfindsmitigatingfactorsandfindsthattheyoutweighfactorsinaggravation.State.v.Bivens,155N.C.App.645(2002).

Additionalrulesforaggravatingfactors– Evidencenecessarytoproveanelementoftheoffenseshallnotbeusedtoproveanyfactor

inaggravation.G.S.15A‐1340.16.Thetrialjudgeshouldinstructthejuryonthispointoflaw.Statev.Barrow,__N.C.App.__,718S.E.2d673(2011).

– Thesameitemofevidenceshallnotbeusedtoprovemorethanonefactorinaggravation.– EvidencenecessarytoestablishthatanenhancedsentenceisrequiredunderG.S.

15A‐1340.16Amaynotbeusedtoproveanyfactorinaggravation.– Thejudgeshallnotconsiderasanaggravatingfactorthefactthatthedefendantexercised

therighttoajurytrial.G.S.15A‐1340.16(d).MitigatingFactors

Thedefendantmustprovemitigatingfactorsbyapreponderanceoftheevidence.Step 5: SELECT A MINIMUM SENTENCE

Chooseaminimumsentencefromtheappropriatecellonthefrontofthesentencinggrid,andinthe

desiredrange(presumptive,aggravated,ormitigated)basedonweighingofaggravating/mitigatingfactors.

Step 6: DETERMINE THE MAXIMUM SENTENCE

Flipthegridover.Findthemaximumsentencethatcorrespondstotheselectedminimumsentenceonthebackoftheappropriatesentencinggrid.Besuretousetheportionofthetableapplicabletotheoffenseclassbeingsentenced.

OffensesbeforeDecember1,2011:– ClassF‐I: Maximumis120%oftheminimum– ClassB1‐E: Maximumis120%oftheminimum,plus9(9‐monthPRS;

60‐monthPRSforsexoffenders) OffensesonorafterDecember1,2011:

– ClassF‐I: Maximumis120%oftheminimum,plus9(9‐monthPRS;60‐monthPRSforsexoffenders)

– ClassB1‐E: Maximumis120%oftheminimum,plus12(12‐monthPRS)– ClassB1‐Esexcrimes: Maximumis120%oftheminimum,plus60(60‐monthPRS)

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Step 7: CHOOSE A SENTENCE DISPOSITION “A”=Active Ifthecourtimposesactivepunishment,thedefendantisincarceratedforthedurationofhisorher

sentenceofimprisonment.“I”=Intermediate

ForoffensescommittedbeforeDecember1,2011:AnintermediatesentencerequiresthatthecourtsuspendthesentenceofimprisonmentandimposesupervisedprobationthatmustincludeoneofthesixconditionssetoutinG.S.15A‐1340.11(6):

– Specialprobation(a“splitsentence”)– Residentialprogram– Electronichousearrest– Intensivesupervision– Dayreportingcenter– Drugtreatmentcourt

ForoffensescommittedonorafterDecember1,2011:Anintermediatesentencerequiresthatthe

courtsuspendthesentenceofimprisonmentandimposesupervisedprobationthatmayincludedrugtreatmentcourt,specialprobation,oroneormoreofthe“communityandintermediateprobationconditions”setoutinG.S.15A‐1343(a1).Intensivesupervision,residentialprograms,anddayreportingcenterarerepealedasintermediateconditionsofprobation.

“C”=Community

ForoffensescommittedbeforeDecember1,2011:Acommunitypunishmentisanon‐active

punishmentthatdoesnotincludeanyofthesixintermediateprobationconditions.Itmayconsistofunsupervisedorsupervisedprobation,orafineonlywithoutprobation.G.S.15A‐1340.11(2).

ForoffensescommittedonorafterDecember1,2011:Acommunitypunishmentisanon‐active

punishmentthatdoesnotincludedrugtreatmentcourtorspecialprobation.Itmayincludeanyofanyoneormoreofthe“communityandintermediateprobationconditions”setoutinG.S.15A‐1343(a1).Itmayconsistofunsupervisedorsupervisedprobation,orafineonlywithoutprobation.

CONSIDERATIONS FOR ACTIVE SENTENCES

FelonysentencesareservedintheDepartmentofPublicSafety,DivisionofAdultCorrection(DAC).

G.S.15A‐1352(b). FelonsenterDACwithapresumptionthattheywillservetheirmaximumsentence.Theymayreduce

theirmaximumsentencethroughasentencereductioncreditcalledEarnedTimeatratesestablishedbyDAC(3,6,or9dayspermonth,dependingontheinmate’sparticipationinworkandprogramactivities).StructuredSentencinginmatesmayalsoreceivecreditcalledMeritoriousTimeforovertime,workinginharshconditions,orexemplaryacts.StructuredSentencinginmatesarenoteligibleforGoodTimeorGainTime(thosearecreditsforDWIsandoldercases).Innocasemaycreditreducethetimeaninmateactuallyservesbelowtheminimumsentence,unlesstheAdvancedSupervisedRelease(describedbelow)applies.G.S.15A‐1340.13(d).

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Averagepercentageofminimumsentenceserved,byoffenseclass:ClassB1–C: 102%ClassD: 105%ClassE–F: 106%ClassG: 107%ClassH: 111%ClassI: 114%

CONSIDERATIONS FOR PROBATIONARY SENTENCES PERIOD OF PROBATION

Defaultprobationlengthforfelonyprobation:

– Communitypunishment:Notlessthan12normorethan30months;– Intermediatepunishment:Notlessthan18normorethan36months.

Thecourtmaymakespecificfindingsthatalongerorshorterperiodofprobationisnecessary.Ifthecourtfindsthatalongerperiodofprobationisnecessary,thatperiodmaynotexceedamaximumof5years.G.S.15A‐1343.2(d).

DELEGATED AUTHORITY

Unlessthecourtsaysotherwise,aprobationofficerhasauthoritytoaddthefollowingconditionsofprobationincertaincircumstances:

– Performcommunityservice– Submittoanelectronically‐monitoredcurfew– Submittosubstanceabuseassessment,monitoringortreatment– Participateinaneducationalorvocationalskillsdevelopmentprogram– Submittosatellite‐basedmonitoring(certainsexoffendersonly;intermediateonly)– Submittoashortperiod(2‐3days)ofjailconfinement– Submittohousearrestwithelectronicmonitoring– Reporttotheprobationofficermorefrequently– ContinuousAlcoholMonitoring(CAM),ifabstinenceisacondition(intermediateonly)

CONDITIONS OF PROBATION

Regularconditionsofprobation

– Regularconditionsapplybydefaultandneednotbestatedaloudinopencourt.G.S.15A‐1343(b).

– Thecourtmaystrikeregularconditionsinitsdiscretion.

Specialconditionsofprobation:– StatutoryspecialconditionsaresetoutinG.S.15A‐1343(b1)andmaybeaddedinthe

discretionofthecourt.– Thecourtmay,initsdiscretion,addadditionaladhocconditionsthatarereasonablyrelated

totheoffender’scrimeandrehabilitation.

Specialprobation:A“splitsentence,”atermofprobationthatincludesaperiodorperiodsofincarceration.G.S.15A‐1351(a).

– Themaximumactiveportionofthesplitis¼ofthesentenceimposed.(NotethatforDWI,themaximumactiveportionofthesplitsentenceis¼ofthemaximumpenaltyallowedbylaw.)

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– Imprisonmentmaybefornon‐continuousperiods(e.g.,weekends)– Innon‐DWIcases,allspecialprobationconfinementmustbecompletewithintwoyearsof

conviction.G.S.15A‐1351(a).– Thecourtmay,butisnotrequiredto,orderthedefendanttopayajailfeeof$40perdayof

splitsentenceconfinement.Thisisthe“post‐trial”jailfee.G.S.7A‐313.– Whenimposingasplitsentence,thecourtmay,initsdiscretion,creditanypretrial

confinementtoeithertheactiveportionofthesplitsentenceortothesuspendedsentenceofimprisonment.G.S.15A‐1351.

“CommunityandIntermediateprobationconditions”underG.S.15A‐1343(a1)[onlyforoffenses

committedonorafterDecember1,2011]– Electronichousearrest– Communityservice– “Quickdipconfinement”ofupto18days,servedin2‐3dayincrements,nomorethan6days

permonth,inthreeseparatemonths– Obtainasubstanceabuseassessment,monitoringortreatment– Participationinaneducationalorvocationalskillsdevelopmentprogram– Submittosatellite‐basedmonitoringifdescribedbyG.S.14‐208.40(a)(2)(certainsex

offenders)– AbstainfromalcoholandsubmittoCAM[offenseson/after12/1/12]

IntermediateconditionsofprobationunderG.S.15A‐1343(b4)(automaticallyapplytoadefendant

subjecttointermediatepunishmentunlessthecourtexemptsthedefendant)– Ifrequiredbytheprobationofficer,performcommunityservice– Notuse,possess,orcontrolalcohol– Remainwithinthecountyofresidenceunlessgrantedwrittenpermissiontoleave– Participateinanyevaluation,counseling,treatment,oreducationalprogramasdirectedby

theprobationofficer

Specialconditionsforsexoffenders:Certainconditionsarerequiredforoffendersconvictedofareportablesexcrimeoranoffensethatinvolvesthephysical,mental,orsexualabuseofaminor.G.S.15A‐1343(b2).

Monetaryconditions:Unlessthecourtfindsthereareextenuatingcircumstances,anypersonplacedonprobationshall,asaconditionofprobation,berequiredtopayallcourtcosts,fees,andattorneyfees.G.S.15A‐1343(e).

OPTIONS FOR DEFENDANTS WITH MULTIPLE CONVICTIONS Whenadefendantisconvictedofmultipleoffenses,thecourthasbroaddiscretionindetermininghowthosesentencesareservedrelativetooneanother.

Consolidationforjudgment.G.S.15A‐1340.15(b).– Permissibleforconvictionsarisingatthesametime;mostseriousoffensecontrols.

Concurrentsentences– Bydefault,sentencesrunconcurrently.G.S.15A‐1340.15(a).

Consecutivesentences– Thecourtmay,initsdiscretion,orderasentencetorunconsecutivelywith(thatis,beginat

theexpirationof)anothersentence.Thereisnostatutorylimitonthecourt’sauthoritytorunfelonysentencesconsecutively.

– Whenfelonysentencesarerunconsecutively,DACtreatsthemasasinglesentenceunderG.S.15A‐1354(b).DACwillsumalloftheindividualminimumsentencestodeterminean

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aggregateminimumsentence.Theaggregatemaximumsentencewillbethesumofallthemaximums,less9monthsforeachofthesecondandsubsequentpost‐releasesupervision–eligiblesentencesimposed.Thatsubtractionaccountsforthefactthat9extramonthsarebuiltintoeverymaximumsentenceforapost‐releasesupervision–eligibleClassF–Ifelony.Becausethedefendantwillserveonlyasingle9‐monthtermofsupervisedreleaseuponhisorherreleasefromprison,the“duplicate”timebuiltintosecondandsubsequentfeloniesissubtracted.

“Contingent”probationsentence:ThecourtmayrunaprobationperiodconsecutivetoanactivejudgmentunderG.S.15A‐1346(b).

– Probationperiodsrunconcurrentlywithoneanotherandmaynotbestacked.G.S.15A‐1346(a).

DEFERRALS AND MITIGATED SENTENCES

DEFERRED PROSECUTION

ClassHandIfelonydefendantsareeligibleforastatutorydeferredprosecutionunderG.S.15A‐1341(a1).

– ProsecutionmaybedeferredforapersonchargedwithaClassHorIfelonyoramisdemeanor,andthepersonmaybeplacedonprobationonmotionofthedefendantandtheprosecutorifthecourtfindsthat:

Prosecutionhasbeendeferredpursuanttoawrittenagreementwiththedefendant; Eachknownvictimofthecrimehasbeennotifiedbysubpoenaorcertifiedmailand

beengivenanopportunitytobeheard; Thedefendanthasnotbeenconvictedofanyfelonyorofanymisdemeanor

involvingmoralturpitude; Thedefendanthasnotpreviouslybeenplacedonprobation;and ThedefendantisunlikelytocommitanothercrimeotherthanaClass3

misdemeanor.– Themaxprobationperiodforadeferredprosecutionis2years.G.S.15A‐1342(a).

Aprosecutor’sofficemayalsohavealocaldeferredprosecutionprogram,butthoseprogramsprobablyshouldnotincludeprobation.

“90‐96” PROBATION

G.S.90‐96(a)conditionaldischargeismandatoryforeligibleconsentingdefendantswhopleadguiltytoorarefoundguiltyof

– MisdemeanorpossessionofacontrolledsubstanceinSchedulesI–VI;– FelonypossessionofacontrolledsubstanceunderG.S.90‐95(a)(3);– MisdemeanorpossessionofdrugparaphernaliaunderG.S.90‐113.22.

Tobeeligible,adefendantmust:– Havenopriorfelonyconvictionsofanytype;– HavenopriorconvictionsunderArticle5ofG.S.Chapter90;– HaveneverreceivedapriordischargeanddismissalunderG.S.90‐96orG.S.90‐113.14.

G.S.90‐96(a1)describesadiscretionaryconditionaldischargewithbroadereligibilityanda7‐yearlook‐backperiodforpriordisqualifyingconvictions.

ProbationunderG.S.90‐96(a)maybeundersuchreasonabletermsandconditionsasthecourtmayrequire.Thecourtmayallowthedefendanttoparticipateinadrugeducationprogram,butitisnotmandatory.

ProbationimposedunderG.S.90‐96(a1)mustbefornotlessthanoneyearandshallcontainaminimumconditionthatthedefendantenrollinandsuccessfullycompletedrugeducationschool,unlessnoschoolisavailableorextenuatingcircumstancesapply.

9

EXTRAORDINARY MITIGATION Extraordinarymitigationallowsthesentencingcourttoimposeanintermediatepunishmentforaclassofoffenseandpriorrecordlevelthatordinarilyrequiresanactivesentence.G.S.15A‐1340.13(g).

Toapplyextraordinarymitigationthecourtmustfindinwriting(usingAOC‐CR‐606)that:– Extraordinarymitigatingfactorsofakindsignificantlygreaterthaninthenormalcaseare

present;– Thosefactorssubstantiallyoutweighanyfactorsinaggravation;and– Itwouldbeamanifestinjusticetoimposeanactivepunishmentinthecase.

Extraordinarymitigationisunavailableif:– TheoffenseisaClassAorClassB1felony;– Theoffenseisadrugtraffickingoffenseoradrugtraffickingconspiracy;or– Thedefendanthasfiveormorepriorrecordpoints.G.S.15A‐1340.13(h).

ADVANCED SUPERVISED RELEASE (ASR) AdvancedSupervisedRelease(ASR)providesanopportunityforcertaindefendantstobereleasedfromprisonbeforeservingtheminimumsentence.

Iftheprosecutordoesnotobject,thesentencingjudgemay,whenimposinganactivesentence,orderdefendantsinthefollowinggridcellsintotoDAC’sASRprogram:

– ClassDfelonies,priorrecordlevelsI–III– ClassEfelonies,priorrecordlevelsI–IV– ClassFfelonies,priorrecordlevelsI–V– AllClassGandHfelonies

Defendantswhocomplete“riskreductionincentives”inprison(orwhoareunabletodosothroughnofaultoftheirown)getreleasedontoPRSontheirASRdate

TheASRdateforapresumptiveoraggravatedrangesentenceisthelowestminimumsentenceinthemitigatedrangeforthedefendant’soffenseandpriorrecordlevel

TheASRdateforamitigatedrangesentenceis80%oftheimposedminimum.G.S.15A‐1340.18.SUBSTANTIAL ASSISTANCE Indrugtraffickingcasesonly,thecourtmaydepartfromthemandatorydrugtraffickingpunishmentandreducethefine,imposeaprisontermlessthantheordinarilyapplicableminimumterm,orsuspendtheprisontermandplacethedefendantonprobationifthepersonhasprovidedsubstantialassistanceintheidentification,arrest,orconvictionofanyaccomplices,accessories,co‐conspirators,orprincipals.Thecourtmustrecordafindingthatthedefendanthasrenderedsubstantialassistance.G.S.90‐95(h)(5).

*** Effective for Offenses Committed on or after 12/1/11 *** FELONY PUNISHMENT CHART PRIOR RECORD LEVEL

I 0-1 Pt

II 2-5 Pts

III 6-9 Pts

IV 10-13 Pts

V 14-17 Pts

VI 18+ Pts

A Death or Life Without Parole

A A A A A A DISPOSITION

240 - 300 276 - 345 317 -397 365 - 456 Life Without

Parole Life Without

Parole Aggravated Range 192 - 240 221 - 276 254 - 317 292 - 365 336 - 420 386 - 483 PRESUMPTIVE RANGE

B1

144 - 192 166 - 221 190 - 254 219 - 292 252 - 336 290 - 386 Mitigated Range

A A A A A A 157 - 196 180 - 225 207 - 258 238 - 297 273 - 342 314 - 393 125 - 157 144 - 180 165 - 207 190 - 238 219 - 273 251 - 314

B2

94 - 125 108 - 144 124 - 165 143 - 190 164 - 219 189 - 251 A A A A A A

73 – 92 83 - 104 96 - 120 110 - 138 127 - 159 146 - 182 58 - 73 67 - 83 77 - 96 88 - 110 101 - 127 117 - 146

C

44 - 58 50 - 67 58 - 77 66 - 88 76 - 101 87 - 117 A A A A A A

64 - 80 73 - 92 84 - 105 97 - 121 111 - 139 128 - 160 51 - 64 59 - 73 67 - 84 78 - 97 89 - 111 103 - 128

D

38 - 51 44 - 59 51 - 67 58 - 78 67 - 89 77 - 103 I/A I/A A A A A

25 - 31 29 - 36 33 - 41 38 - 48 44 - 55 50 - 63 20 - 25 23 - 29 26 - 33 30 - 38 35 - 44 40 - 50

E

15 - 20 17 - 23 20 - 26 23 - 30 26 - 35 30 - 40 I/A I/A I/A A A A

16 - 20 19 - 23 21 - 27 25 - 31 28 - 36 33 - 41 13 - 16 15 - 19 17 - 21 20 - 25 23 - 28 26 - 33

F

10 - 13 11 - 15 13 - 17 15 - 20 17 - 23 20 - 26 I/A I/A I/A I/A A A

13 - 16 14 - 18 17 - 21 19 - 24 22 - 27 25 - 31 10 - 13 12 - 14 13 - 17 15 - 19 17 - 22 20 - 25

G

8 - 10 9 - 12 10 - 13 11 - 15 13 - 17 15 - 20 C/I/A I/A I/A I/A I/A A 6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25 5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20

H

4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16 C C/I I I/A I/A I/A

6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12 4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10

OF

FE

NS

E C

LA

SS

I

3 - 4 3 - 4 4 - 5 4 - 6 5 - 7 6 - 8 A – Active Punishment I – Intermediate Punishment C – Community Punishment Numbers shown are in months and represent the range of minimum sentences

Revised: 08-11-11

*** Effective for Offenses Committed on or after 12/1/11 ***

MINIMUM AND MAXIMUM SENTENCES The corresponding maximum sentence for each minimum sentence is shown in the tables below. In each column, the number to the left of the dash represents the minimum sentence (in months) and the number to the right of the dash represents the corresponding maximum sentence (in months).

__________________FOR OFFENSE CLASSES B1 THROUGH E_________________

15-30 52-75 89-119 126-164 163-208 200-252 237-297 274-341 311-386 16-32 53-76 90-120 127-165 164-209 201-254 238-298 275-342 312-387 17-33 54-77 91-122 128-166 165-210 202-255 239-299 276-344 313-388 18-34 55-78 92-123 129-167 166-212 203-256 240-300 277-345 314-389 19-35 56-80 93-124 130-168 167-213 204-257 241-302 278-346 315-390 20-36 57-81 94-125 131-170 168-214 205-258 242-303 279-347 316-392 21-38 58-82 95-126 132-171 169-215 206-260 243-304 280-348 317-393 22-39 59-83 96-128 133-172 170-216 207-261 244-305 281-350 318-394 23-40 60-84 97-129 134-173 171-218 208-262 245-306 282-351 319-395 24-41 61-86 98-130 135-174 172-219 209-263 246-308 283-352 320-396 25-42 62-87 99-131 136-176 173-220 210-264 247-309 284-353 321-398 26-44 63-88 100-132 137-177 174-221 211-266 248-310 285-354 322-399 27-45 64-89 101-134 138-178 175-222 212-267 249-311 286-356 323-400 28-46 65-90 102-135 139-179 176-224 213-268 250-312 287-357 324-401 29-47 66-91 103-136 140-180 177-225 214-269 251-314 288-358 325-402 30-48 67-93 104-137 141-182 178-226 215-270 252-315 289-359 326-404 31-50 68-94 105-138 142-183 179-227 216-271 253-316 290-360 327-405 32-51 69-95 106-140 143-184 180-228 217-273 254-317 291-362 328-406 33-52 70-96 107-141 144-185 181-230 218-274 255-318 292-363 329-407 34-53 71-98 108-142 145-186 182-231 219-275 256-320 293-364 330-408 35-54 72-99 109-143 146-188 183-232 220-276 257-321 294-365 331-410 36-56 73-100 110-144 147-189 184-233 221-278 258-322 295-366 332-411 37-57 74-101 111-146 148-190 185-234 222-279 259-323 296-368 333-412 38-58 75-102 112-147 149-191 186-236 223-280 260-324 297-369 334-413 39-59 76-104 113-148 150-192 187-237 224-281 261-326 298-370 335-414 40-60 77-105 114-149 151-194 188-238 225-282 262-327 299-371 336-416 41-62 78-106 115-150 152-195 189-239 226-284 263-328 300-372 337-417 42-63 79-107 116-152 153-196 190-240 227-285 264-329 301-374 338-418 43-64 80-108 117-153 154-197 191-242 228-286 265-330 302-375 339-419 44-65 81-110 118-154 155-198 192-243 229-287 266-332 303-376 45-66 82-111 119-155 156-200 193-244 230-288 267-333 304-377 46-68 83-112 120-156 157-201 194-245 231-290 268-334 305-378 47-69 84-113 121-158 158-202 195-246 232-291 269-335 306-380 48-70 85-114 122-159 159-203 196-248 233-292 270-336 307-381 49-71 86-115 123-160 160-204 197-249 234-293 271-338 308-382 50-72 87-117 124-161 161-206 198-250 235-294 272-339 309-383 51-74 88-118 125-162 162-207 199-251 236-296 273-340 310-384

To calculate a maximum sentence when the minimum sentence is 340 months or more, multiply the minimum sentence by 1.2 (i.e., 120%), round to the next highest month, and add 12. See G.S. 15A-1340.17(e1).

Sex Offenses: To calculate a maximum sentence for a Class B1 through E felony that is subject to the registration requirements of G.S. Chapter 14, Article 27A, multiply the minimum sentence by 1.2 (i.e., 120%), round to the next highest month, and add 60. See G.S. 15A-1340.17(f).

_________________FOR OFFENSE CLASSES F THROUGH I_________________

3-13 8-19 13-25 18-31 23-37 28-43 33-49 38-55 4-14 9-20 14-26 19-32 24-38 29-44 34-50 39-56 5-15 10-21 15-27 20-33 25-39 30-45 35-51 40-57 6-17 11-23 16-29 21-35 26-41 31-47 36-53 41-59 7-18 12-24 17-30 22-36 27-42 32-48 37-54

STATE OF NORTH CAROLINA File No.

SUBTOTALX 1

FACTORS

X10

X 9

X 4

X 2

Defendant's Current Charge(s):

NUMBER POINTSTYPE

Prior Felony Class A Conviction

Prior Felony Class B1 Conviction

Prior Felony Class B2 or C or D Conviction

Prior Felony Class E or F or G Conviction

Prior Felony Class H or I Conviction

Prior Class A1 or 1 Misdemeanor Conviction (see note on reverse)

I. SCORING PRIOR RECORD/FELONY SENTENCING

(Over)

DistrictIn The General Court Of JusticeCounty Superior Court Division

STATE VERSUSName And Address Of Defendant

SID No.Social Security No.

Race Sex DOB

G.S. 15A-1340.14, 15A-1340.21

AOC-CR-600B, Rev. 6/12

© 2012 Administrative Office of the Courts

FELONYNOTE: If sentencing for a misdemeanor, total the number of prior conviction(s) listed on the reverse and select the corresponding prior conviction level.

PRIORCONVICTION

LEVEL

MISDEMEANORII. CLASSIFYING PRIOR RECORD/CONVICTION LEVEL

The Court has determined the number of prior convictions to beIn making this determination, the Court has relied upon the State's evidence of the defendant's prior convictions from a computer printout of DCI-CCH.

In making this determination, the Court has relied upon the State's evidence of the defendant's prior convictions from a computer printout of DCI-CCH.

The Court finds the prior convictions, prior record points and the prior record level of the defendant to be as shown herein.

In finding a prior record level point under G.S. 15A-1340.14(b)(7), the Court has relied on the jury's determination of this issue beyond a reasonable doubt or the defendant's admission to this issue.

NOTE: If sentencing for a felony, locate the prior record level which corresponds to the total points determined in Section I above.

No. Of PriorConvictions Level PRIOR

RECORDLEVEL0

1 - 45+

IIIIII

and the level to be as shown above.

Points0 - 12 - 56 - 9

10 - 1314 - 17

18+

LevelIIIIIIIVVVI

The Court finds that the State and the defendant have stipulated in open court to the prior convictions, points and record level.Date Name Of Presiding Judge (Type Or Print) Signature Of Presiding Judge

For each out-of-state conviction listed in Section V on the reverse, the Court finds by a preponderance of the evidence that the offense is substantially similar to a North Carolina offense and that the North Carolina classification assigned to this offense in Section V is correct.

The Court finds that all of the elements of the present offense are included in a prior offense.

WORKSHEET PRIOR RECORD LEVEL FOR FELONY SENTENCING

AND PRIOR CONVICTION LEVEL FOR MISDEMEANOR SENTENCING

(STRUCTURED SENTENCING)(For Offenses Committed On Or After Dec. 1, 2009)

TOTAL

If the offense was committed while the offender was:

If all the elements of the present offense are included in any prior offense whether or not the prior offenses were used in determining prior record level.

+ 1

+ 1

on supervised or unsupervised probation, parole, or post-release supervision;serving a sentence of imprisonment; or on escape from a correctional institution.

County File No. State (if other than NC)

X 6

Name Of Prosecutor (Type Or Print)Date Signature Of Prosecutor

The defendant is NOT required to provide a DNA sample for this conviction because (i) the offense is not covered by G.S. 15A-266.4 or (ii) a sample of the defendant's DNA has previously been obtained and the defendant's DNA record is currently stored in the State DNA database.The defendant IS required to provide a DNA sample for this conviction because (i) the offense is covered by G.S. 15A-266.4 and (ii)a sample of the defendant's DNA has not previously been obtained and the defendant's DNA record has not previously been stored in the State DNA Database, or if previously obtained and stored, the defendant's DNA sample and record have been expunged.

1.

2.

A review of the case record (the form required by G.S. 15A-266.3A(c)) and the records of the State Bureau of Investigation (the DCI-CCH rap sheet) indicates that (check one):

IV. DNA CERTIFICATION

V. PRIOR CONVICTIONNOTE: Federal law precludes making computer printout of DCI-CCH (rap sheet) part of permanent public court record.NOTE: The only misdemeanor offenses under Chapter 20 that are assigned points for determining prior record level for felony sentencing are misdemeanor death by vehicle [G.S. 20-141.4(a2)] and, for sentencing for felony offenses committed on or after December 1, 1997, impaired driving [G.S.20-138.1] and commercial impaired driving [G.S. 20-138.2]. First Degree Rape and First Degree Sexual Offense convictions prior to October 1, 1994, are Class B1 convictions.

SourceCode Offenses File No. Date Of

ConvictionCounty

(Name of State if not NC) Class

Source Code: 1 - DCI2 - NCIC

3 - AOC/Local4 - AOC/Statewide

5 - ID Bureau6 - Other

Date Prepared:

Prepared By:AOC-CR-600B, Side Two, Rev. 6/12© 2012 Administrative Office of the Courts

The prosecutor and defense counsel, or the defendant, if not represented by counsel, stipulate to the information set out in Sections Iand V of this form, and agree with the defendant's prior record level or prior conviction level as set out in Section II based on the information herein.

Signature Of ProsecutorDate Signature Of Defense Counsel Or DefendantDate

III. STIPULATION

See AOC-CR-600 Continuation for additional prior convictions.

(For Offenses Committed On Or After Feb. 1, 2011)

SEXUALLY VIOLENT OFFENSES (14-208.6(5)) First-degree rape (14-27.2) Rape of a child by an adult offender (14-27.2A) Second-degree rape (14-27.3) First-degree sexual offense (14-27.4) Sexual offense with a child by an adult offender (14-27.4A) Second-degree sexual offense (14-27.5) Sexual battery (14-27.5A) Attempted rape/sexual offense (14-27.6) Intercourse/sexual offense w/ certain victims (14-27.7) Statutory rape (13-15 y.o. & D 6+ yrs.older) (14-27.7A(a)) Sexual Servitude (14-43.13) Incest between near relatives (14-178) Employ minor in offense/public morality (14-190.6) Felony indecent exposure (14-190.9(a1)) First-degree sexual exploitation of minor (14-190.16) Second-degree sexual exploitation of minor (14-190.17) Third-degree sexual exploitation of minor (14-190.17A) Promoting prostitution of minor (14-190.18) Participating in prostitution of minor (14-190.19) Taking indecent liberties with children (14-202.1) Solicitation of child by computer (14-202.3) Taking indecent liberties with a student (14-202.4(a)) Parent/caretaker prostitution (14-318.4(a1)) Parent/guardian commit/allow sexual act (14-318.4(a2)) OFFENSES AGAINST A MINOR (14-208.6(1m)) Includes the following three crimes, only when the victim is a minor [under age 18] and the offender is not the minor’s parent [biological or adoptive parent, not stepparent, State v. Stanley, 697 S.E.2d 389 (2010)]: Kidnapping (14-39) Abduction of children (14-41) Felonious restraint (14-43.3) SECRETLY PEEPING (14-208.6(4)d.) The following are reportable only if the court decides registration furthers purposes of the registry (14-208.5) and that offender is a danger to community: Felony peeping under 14-202 (d), (e), (f), (g), or (h) ; or Second/subsequent conviction of:

Misd. peeping under 14-202(a) or (c) Misd. peeping w/ mirror/device under 14-202(a1)

Note: Inchoate & aiding/abet peeping are not reportable.

ATTEMPTS, CONSPIRACIES, SOLICITATIONS, & AID/ABETTING Attempt: Final convictions for attempts to commit an “offense against a minor” or a “sexually violent offense” are reportable. 14-208.6(4)a. At a minimum, applies to offenses committed on/after April 1, 1998 (unless target offense has a later date). S.L. 1997-516. Conspiracy/Solicitation: Conspiracy and solicitation to commit an “offense against a minor” or a “sexually violent offense” are reportable. 14-208.6(1m); -208.6(5). Applies to offenses committed on/after Dec. 1, 1999 (unless target offense has later date). S.L. 1999-363. Aiding & Abetting: Aiding and abetting an “offense against a minor” or “sexually violent offense” is reportable only if the court finds that registration furthers the purposes of the registry (set out in 14-208.5). 14-208.6(4)a. Applies to offenses committed on or after December 1, 1999 (unless the underlying offense has a later date). S.L. 1999-363. FEDERAL CONVICTIONS (including court-martial) (14-208.6(4)c.) Offenses substantially similar to a North Carolina “offense against a minor” or “sexually violent offense” (includes conspiracy, solicitation, and aiding/abetting; excludes attempts) CONVICTIONS FROM ANOTHER STATE (14-208.6(4)b.) 1. Offenses substantially similar to NC offense against a minor or sexually violent offense (includes conspiracy, solicitation, and aid/abetting; excludes attempts) (use effective date of similar NC offense); or 2. Any offense that requires registration in the state of conviction (applies to offenders who moved to NC on/after Dec. 1, 2006; and to offenders who moved to NC before Dec. 1, 2006 if they serve active time, are on probation/parole/PRS, are req’d to register in NC for another offense, or are convicted of any felony on/after Oct. 1, 2010. S.L. 2010-174).

KEY FOR EFFECTIVE DATE CRITERIA: Convicted/released from prison on/after Jan. 1, 1996. S.L. 1995-545 Committed on/after Dec. 1, 2005. S.L. 2005-226; -121; -130 Committed on/after Dec. 1, 2006. S.L. 2006-247 Committed on/after Dec. 1, 2008. S.L. 2008-117 Convicted /released on/after Dec. 1, 2008. S.L. 2008-220 Convicted /released on/after Dec. 1, 2009. S.L. 2009-498 Committed on/after Apr. 1, 1998 (at a minimum). S.L. 1997-516 Convicted/released on/after Apr. 3, 1997 (or use effective date of

similar NC offense if later). S.L. 1997-15 Committed on/after Dec. 1, 2003. S.L. 2003-303 Committed on/after Dec. 1, 2004. S.L. 2004-109

An offender with a reportable conviction must register for 30 years (reducible to 10 in some cases by petition under 14-208.12A), unless lifetime registration applies. 14-208.7. Lifetime registration applies to recidivists; offenders convicted of an aggravated offense; or sexually violent predators. 14-208.23. Because most of the case law related to those categories has arisen in the context of satellite-based monitoring, they are described in greater detail on the reverse side of this sheet.

Reportable Convictions

Sex Offender Registration & Satellite-Based Monitoring (SBM) Jamie Markham, UNC School of Government June 2012

© 2012 U

NC School of G

overnment.

SBM. A satellite-based monitoring (SBM) determination hearing must be held for a defendant with a reportable conviction. See reverse for applicable procedures.

NO CONTACT ORDER. The DA may ask the court to issue a permanent no contact order for any defendant convicted of a reportable offense. 15A-1340.50. Use AOC-CR-620.

http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_14/GS_14-208.5.html�

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http://www.ncleg.net/Sessions/2009/Bills/House/PDF/H726v5.pdf�





































http://www.nccourts.org/Forms/Documents/1142.pdf�

Satellite-Based Monitoring (SBM)

Effective date. SBM applies to offenders with a reportable conviction who: (1) Commit a reportable offense on/after Aug. 16, 2006; (2) are sentenced to intermediate punishment on/after Aug. 16, 2006; (3) are released from prison by parole/post-release supervision on/after Aug. 16, 2006; or (4) complete a sentence on/after Aug. 16, 2006 and are not on PRS or parole. S.L.2006-247 15(l). SBM determinations should be held at sentencing for defendants sentenced after December 1, 2007. G.S. 14-208.40A. S.L. 2007-484 42(b). Use AOC-CR-615.

1. SEXUALLY VIOLENT PREDATOR (SVP) (14-208.6(6)). A person convicted of a sexually violent offense who suffers from an abnormality or disorder, as determined by the court after examination by an expert panel under 14-208.20. • The court cannot classify an offender as a SVP without following 14-208.20. State v. Zinkand, 190 N.C. App. 765 (2008). 2. RECIDIVIST (14-208.6(2b)). A person with a prior conviction for an offense described in 14-208.6(4). • A prior conviction need not itself be reportable to qualify a person as a recidivist. State v. Wooten, 194 N.C. App. 524 (2008). • At least one of the offender’s convictions must be committed on/after Oct. 1, 2001. S.L. 2001-373. 3. COMMITTED AN AGGRAVATED OFFENSE (14-208.6(1a)). An aggravated offense is one that includes: (1) Engaging in a sexual act involving vaginal, anal, or oral penetration; (2) (a) With a victim of any age through the use of force or the threat of serious violence, or (b) With a victim who is less than 12 years old. • Only offenses committed on/after Oct. 1, 2001 can be aggravated. S.L. 2001-373. • To determine whether an offense is aggravated, the court may only look at the elements of the conviction offense, not the underlying facts

of what might have happened in a particular case. State v. Davison, 689 S.E.2d 510 (2009). AGGRAVATED: 1st-deg. stat. rape (victim under 13, 14-27.2(a)(1)). State v. Clark, 714 S.E.2d 754 (2011). Stat. rape (victim 13, 14, 15/def. 6 yrs. older, 14-27.7A(a)). State v. Sprouse (Dec. 6, 2011). 2nd-deg. rape (forcible, 14-27.3(a)(1)). State v. McCravey, 692 S.E.2d 409 (2010). 2nd-deg. rape (mentally disabled victim, 14-27.3(a)(2)). State v. Oxendine, 696 S.E.2d 850 (2010). NOT AGGRAVATED: Sexual offense by a substitute parent (14-27.7(a)). State v. Mann, 715 S.E.2d 213 (2011). 1st-deg. sex offense (victim under 13, 14-27.4(a)(1)). State v. Treadway, 702 S.E.2d 335 (2010). Child abuse by sex act (14-318.4(a2)). State v. Phillips, 691 S.E.2d 104 (2010). Indecent liberties with a child. State v. Singleton, 689 S.E.2d 562 (2010). Sexual battery. State v. Brooks, 693 S.E.2d 204 (2010). 4. RAPE OR SEXUAL OFFENSE WITH MINOR BY ADULT (14-27.2A; -27.4A). A conviction for one of these crimes (created by S.L. 2008-117, effective for offenses committed on/after Dec. 1, 2008) requires lifetime SBM. If the court finds that the defendant does not fit into any of the four lifetime categories set out above, it must determine whether the offender committed an “offense that involved the physical, mental, or sexual abuse of a minor.”14-208.40A(d).

The court first determines whether the defendant falls into one of the four categories requiring lifetime SBM. If the defendant falls into the one of the categories set out below, the court must order SBM for life. 14-208.40A(c).

“Physical, mental, or sexual abuse of a minor” is undefined. The following have been ruled abuse of a minor: Indecent liberties, State v. Jarvis, 715 S.E.2d 252 (2011); Solicitation to commit ind. liberties, State v. Cowan, 700 S.E.2d 239 (2010); 1st deg. sexual offense, State v. Carter, 718 S.E.2d 687 (2011). Other crimes may also qualify.

If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, it must order DOC to do a risk assessment (Static-99). DOC shall have 30-60 days to complete the assessment. Upon receipt of the assessment, the court determines whether the offender requires the “highest possible level of supervision and monitoring.” If so, the court shall order SBM enrollment for a period specified by the court in its discretion. 14-208.40A(d)-(e).

• In determining whether an offender requires the highest possible level of supervision and monitoring, the court may consider any relevant evidence and is not limited to the risk assessment. State v. Morrow, 200 N.C. App. 123, aff’d, 364 N.C. 424 (2010); see State v. Green, 710 S.E.2d 292 (2011) (approving SBM for a defendant with a MODERATE-LOW Static-99 score when the court made additional findings that the victims were especially young and the defendant failed to complete treatment); State v. Jarvis, 715 S.E.2d 252 (2011) (approving of the trial court’s findings that the defendant took advantage of a position of trust and the victim’s vulnerability, but disapproving of a finding that the defendant’s Alford plea signaled a lack of remorse).

• The court should order a discrete time for SBM (e.g. 3 yrs.), not a range (7-10 yrs.). State v. Morrow, 200 N.C. App. 123 (2009). • The trial court may not order lifetime SBM for a defendant in this category. State v. Cowan, 700 S.E.2d 239 (2010).

Bring-back hearings. If no SBM determination is made at sentencing, DAC makes an initial determination as to whether SBM applies and notifies the offender. The notice must state the expected SBM eligibility category and a brief statement of the factual basis for that determination. State v. Stines, 200 N.C. App. 193 (2009). Despite SBM being civil, DAC is not req’d to file a civil complaint/summons for the hearing. State v. Self, 720 S.E.2d 776. The DA schedules a superior court hearing in county of residence (15 days notice req’d). Indigent offenders are entitled to counsel. 14-208.40B. Use AOC-CR-616.

Constitutional issues. SBM is civil in nature and thus does not violate the Ex Post Facto Clause, State v. Bowditch, 364 N.C. 335 (2010); double jeopardy, State v. Wagoner, 364 N.C. 422 (2010); or Apprendi/Blakely, State v. Hagerman, 364 N.C. 423 (2010). SBM does not infringe on a defendant’s right to interstate travel. State v. Manning, __ N.C. App. __ (June 5, 2012).

Appeals. Because SBM is civil in nature, defendants must note their appeal of an SBM determination in writing pursuant to Rule 3(a) of the N.C. Rules of Appellate Procedure; oral notice is insufficient. State v. Brooks, 693 S.E.2d 204 (2010).




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Justice Reinvestment Essentials (S.L. 2011-192, as amended)

Felony maximum sentences increased; all felons get

post-release supervision

Offenses committed on or after December 1, 2011

• ClassB1–Efelonies:12-monthPRS(maximumis120%ofminimum+12months)• ClassF–Ifelonies:9-monthPRS(maximumis120%ofminimum+9months)• Sexoffenders:PRSsupervised releaseperiodis5years.ForClassB1–Efeloniesrequiringregistration,themaximumsentenceis120%oftheminimum+60months.S.L.2011-307

•Drugtraffickingoffenseson/afterDec.1,2012receivePRS.S.L.2012-188

New Advanced Supervised Release (ASR) program created

Persons entering a plea or found guilty on or after January 1, 2012

(NotethatforClassF–Ifelonies,onlyoffensescommittedonor

afterDecember1,2011,receivepost-releasesupervision)

Iftheprosecutordoesnotobject,thesentencingjudgemay,whenimposinganactivesentence,orderdefendantsinthefollowinggridcellsintotoDAC’sASRprogram:• ClassDfelonies,priorrecordlevelsI–III• ClassEfelonies,priorrecordlevelsI–IV• ClassFfelonies,priorrecordlevelsI–V• AllClassGandHfeloniesDefendantswhocomplete“riskreductionincentives”inprison(orwhoareunabletodosothroughnofaultoftheirown)getreleasedontoPRSontheirASRdate.TheASRdateisthelowestmin.sentenceinthemitigatedrangeforthedefendant’soffenseandpriorrecordlevel(or80%oftheimposedminimumifamitigated-rangesentence).G.S.15A-1340.18.

Intermediate punishment redefined


Asentencethatplacesadefendantonsupervisedprobationandmayincludedrugtreatmentcourt,specialprobation,orotherconditionsofprobation,includingthe“communityandintermediate”conditionssetoutbelow.G.S.15A-1340.11(6).

Community punishment redefined


Asentencetosupervisedorunsupervisedprobationorafinethatdoesnotincludeanactivepunishment,drugtreatmentcourt,orspecialprobation.Thesentencemayincludeanyofthe“communityandintermediate”conditionsdescribedbelow.G.S.15A-1340.11(2).

New set of “community and intermediate probation conditions”

Offenses committed on or after December 1, 2011 (unlessotherwise

indicated)

(doesnotapplytoDWI)

Thefollowingconditionsmaybeorderedinanycase,communityorintermediate:• Electronichousearrest• Communityservice,andpaythefeeprescribedbylaw• Jailconfinementfor2–3days,fornomorethan6dayspermonth,duringany3separatemonthsofaprobationperiod.Ifthedefendantisonprobationformultiplejudgments,confinementperiodsmustrunconcurrentlyandmaytotalnomorethan6days/month

• Substanceabuseassessment,monitoring,ortreatment• Abstainfromalcoholandsubmittocontinuousalcoholmonitoring(CAM)ifdependencyorabuseidentifiedbyasubstanceabuseassessment(offenseson/after12/1/12)

• Participationinaneducationalorvocationalskillsdevelopmentprogram• Submissiontosatellite-basedmonitoring(ifacoveredsexoffender).G.S.15A-1343(a1)

Intermediate punishments repealed


• Intensivesupervision• Residentialprogram•Dayreportingcenter

Delegated authority expanded


(doesnotapplytoDWI)

Unlessthejudgefindsthatdelegationisnotappropriate,aprobationofficercanaddthefollowingconditionsinresponsetoaprobationer’sfailuretocomplywith1ormoreconditionsimposedbythecourtoriftheprobationerishighrisk(SupervisionLevel1or2):• Performupto20hoursofcommunityservice(50hoursinintermediatecases)• Submittoanelectronicallymonitoredcurfew• Submittosubstanceabuseassessment,monitoring,ortreatment• CAM,ifalcoholabstinenceisacondition(intermediateonly,offenseson/after12/1/12)• Participateinaneducationalorvocationalskillsdevelopmentprogram• Electronichousearrest• Reporttotheprobationofficeratafrequencydeterminedbytheofficer• Submittosatellite-basedmonitoringifacoveredsexoffender(intermediateonly)Inresponsetoadefendant’sfailuretocomplywithoneormoreconditionsimposedbythecourt(notbasedonrisklevelalone),theprobationofficermay,iftheprobationerwaivestherighttoahearingandalawyer,requirejailconfinementfor2–3days,fornomorethan6 dayspermonth,duringany3separatemonths.G.S.15A-1343.2.

ThisprojectwassupportedbyGrantNo.2010-RR-BX-K071awardedbytheBureauofJusticeAssistance.TheBureauofJusticeAssistanceisacomponentoftheOfficeofJusticePrograms,whichalsoincludestheBureauofJusticeStatistics,theNationalInstituteofJustice,theOfficeofJuvenileJusticeandDelinquencyPrevention,theSMARTOffice,andtheOfficeforVictimsofCrime.PointsofvieworopinionsinthisdocumentarethoseoftheauthoranddonotrepresenttheofficialpositionorpoliciesoftheUnitedStatesDepartmentofJustice.©2012UNCSchoolofGovernment(preparedbyJamesMarkham)

(over)

Statutory “absconding” condition


Itisaregularconditionofprobationthatadefendantnot“abscond,bywillfullyavoidingsupervisionorbywillfullymakingthedefendant’swhereaboutsunknowntothesupervisingprobationofficer.”G.S.15A-1343(b)(3a).

Revocation authority limited

Probation violations occurring on or after December 1, 2011

(allprobationcases,includingDWI)

UnderG.S.15A-1344(a)and-1344(d2),thecourtmayrevokeprobationonlyfor:• Violationsofthe“commitnocriminaloffense”condition• Violationsofthenewstatutory“absconding”condition•DefendantswhohavepreviouslyreceivedtwoCRVperiodsinthecase.Note:TheParoleCommission’sauthoritytorevokePRSissimilarlylimited.G.S.15A-1368.3.

New Confinement in Response to Violation (CRV) authorized

Probation violations occurring on or after December 1, 2011

(allprobationcases,includingDWI)

Inresponsetoprobationviolationsotherthananewcriminaloffenseorabsconding,thecourtmayimposeconfinementof90 days for a felonyorup to 90 days for a misdemeanor.• Felonies:Iftimeremainingonthedefendant’ssentenceis90daysorless,thenCRVisfortheremainderofthesentence(after7/16/12,notapplicabletomisdemeanors)

• AdefendantmayreceiveonlytwoCRVperiodsinaparticularcase• JailcreditfortimespentawaitingaviolationhearingmustbeappliedtoanyCRVordered• CRVperiodsmustrunconcurrentlywithoneanother• CRVconfinementisimmediateunlessotherwisespecifiedbythecourt• CRVisservedwheredefendantwouldhaveservedanactivesentence.G.S.15A-1344(d2)

G.S. 90-96 conditional discharge amended, made mandatory

Persons entering a plea or found guilty on or after January 1, 2012

Whenanyeligibledefendantwhopleadsguiltytoorisfoundguiltyof:•Misdemeanorpossessionofacontrolledsubstance(anyscheduleoramount);• PossessionofdrugparaphernaliaunderG.S.90-113.22;or• FelonydrugpossessionunderG.S.90-95(a)(3)(anyscheduleoramount)Thecourtshall(was,“may”),withtheconsentofthedefendant,placethedefendantonprobationwithoutenteringjudgmentunderG.S.90-96(a).Aneligibledefendantisanypersonwhohasnotpreviouslybeenconvictedofanyfelony,anyoffenseundertheControlledSubstancesAct,oranystate/federalcontrolledsubstance/paraphernaliaoffense.

G.S.90-96(a1)providesforadiscretionarydischargeanddismissalofthesameoffenseslistedinsubsection(a)forfirst-timeoffenders(7-yearlook-backforprioroffenses).

Habitual felon a 4-class enhancement

Principal felonies occurring on or after December 1, 2011

ClassIàClassEClassHàClassDAllotherfeloniesàClassCG.S.14-7.6.

Habitual breaking and entering status offense created

Principal felonies occurring on or after December 1, 2011

Defendantchargedwithfelony“breakingandentering”(listedoffenses)whohas1ormorepriorB/Econvictions(listedoffenses)can,inDA’sdiscretion,bechargedashabitualB/Estatusoffenderand,ifconvicted,sentencedasaClass E felon:

–1st/2nddeg.burglary(G.S.14-51);breakingoutofdwellinghouseburglary(G.S.14-53)–Felonybreaking/enteringbldgs.(G.S.14-54(a));B/Eplaceofworship(G.S.14-54.1)–Anyrepealed,supersededoffensesubstantiallysimilartotheoffensesabove–Anyoffensefromanotherjurisdictionsubstantiallysimilartotheoffensesabove

• AsecondB/Eoffenseonlyqualifiesifcommittedafterconvictionofthefirstoffense.• Theprincipaloffensemustoccurafterthedefendantturns18• Convictionusedtoestablishhabitualstatusdoesn’tcounttowardpriorrecordlevel• HabitualB/EsentencesmustrunconsecutivelytoanysentencebeingservedG.S.14-7.25through-7.31.

Changes to proper place of confinement

Sentences imposed on or after January 1, 2012

Misdemeanors:• 90daysorless:LocaljailexceptasprovidedinG.S.148-32.1(b)• 91–180days(exceptforDWI):StatewideMisdemeanantConfinementProgram(MCP),throughwhichplaceofconfinementwillbedeterminedbytheN.C.Sheriffs’Ass’n

• Sentenceorsentencestotaling181daysormore:ToDACFelons:DAC.G.S.15A-1352;148-32.1.Note:Differentrulesapplyforsplitsentences(G.S.15A-1351(a))andDWI(G.S.20-176(c1)).

ThisprojectwassupportedbyGrantNo.2010-RR-BX-K071awardedbytheBureauofJusticeAssistance.TheBureauofJusticeAssistanceisacomponentoftheOfficeofJusticePrograms,whichalsoincludestheBureauofJusticeStatistics,theNationalInstituteofJustice,theOfficeofJuvenileJusticeandDelinquencyPrevention,theSMARTOffice,andtheOfficeforVictimsofCrime.PointsofvieworopinionsinthisdocumentarethoseoftheauthoranddonotrepresenttheofficialpositionorpoliciesoftheUnitedStatesDepartmentofJustice.©2012UNCSchoolofGovernment(preparedbyJamesMarkham)

VOIR DIRE

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Jury Selection (or Jury De-selection) (6-29-11) Michael G. Howell Capital Defender’s Office 123 West Main Street, Ste. 601, Durham, NC 27701 (919) 354-7220 Purpose of Jury De-selection: IDENTIFY the worst jurors and REMOVE them. Means for removal 1) Challenge for Cause § 15A-1212…The 3 most common grounds are: (6) The juror has formed or expressed an opinion as to the guilt or innocence of the defendant. (You may NOT ask what the opinion is.) 8) As a matter of conscience, regardless of the facts and circumstances, the juror would be unable to render a verdict with respect to the charge in accordance with the law of North Carolina. (9) For any other cause, the juror is unable to render a fair and impartial verdict. 2) Peremptory Challenges § 15A-1217

Each defendant is allowed six (6) challenges (in non-capital cases).

Each party is entitled to one (1) peremptory challenge for each alternate juror in addition to any unused challenges.

Law of Jury Selection Statutes (read N.C.G.S. 15A-1211 to 1217) Case law (See outline, Freedman and Howell, Jury Selection Questions, 25 pp.) Jury instructions (applicable to your case) Recordation (N.C.G.S. 15A-1241)

Two Main Methods of Jury Selection 1) Traditional Approach or “Lecturer” Method Lecture technique (almost entirely) with leading or closed-ended questions Purposes…Indoctrinate jury about law and facts of your case, and establish lawyer’s authority or credibility with jury Commonly used by prosecutors (and some civil defense lawyers) In the “sermon” or lecture, the lawyer does over 95% of the talking Example…“Can everyone set aside what if any personal feelings you have about drugs and follow the law and be a fair and impartial juror?” Problem…Learn very little (if anything) about jurors

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2) The “Listener” Method of Jury Selection Purpose…Learn about the jurors’ experiences and beliefs (instead of trying to change their beliefs) The premise…Personal experiences shape jurors’ views and beliefs, and can help predict how jurors will view facts, law, and each other. Open-ended questions will get and keep jurors talking and reveal information about Jurors’ life experiences, Attitudes, opinions, and views, and Interpersonal relations with each other and their communication styles Information will allow attorney to achieve GOAL of jury selection… Identify the worst jurors for your case, and Remove them (for cause or by peremptory strike) Basically, a conversation with lawyer doing 10% of talking (the “90/10 rule”) Quote from life-long Anonymous public defender…“I used to think that jury selection was my chance to educate the jurors about the law or the facts of my case. Now, I realize that jury selection is about the jurors educating me about themselves.” “Default positions” Lecturer… “Can you follow the law and be fair and impartial?” Listener…“Please tell me more about that…” Command Superlative Analogue Technique (New Mexico Public Defenders) Effective technique within Listener Method Ask about significant or memorable life experiences It will trigger a conversation about jurors’ life experiences and views Three Elements of Command Superlative Analogue Technique 1) Ask about a personal experience relating to the issue, or an experience of a family member or someone close to the juror [analogue] 2) Add superlative adjective (best, worst, etc.) to help them recall [superlative] 3) Put question in command form (i.e., “Tell us about…) [command] Example…“Tell me about your closest relationship with a person who has been affected by illegal drugs.” Caution…Time consuming…Cannot use it for everything…Save it for the key issues (*For sample questions, see Mickenberg, Voir Dire and Jury Selection, pp. 11-13; Trial School Workshop Aids, pp. 5-7).

Listener Method in Practice Preparation Know the case and law…Develop theory and theme Pick the pertinent issues or areas (in that case) that you want jurors to talk about Cannot do the same voir dire in every case…It varies with the theory of each case Outline your questions (or offensive plays) for each area -Superlative memory technique and follow-up (for 3-4 key topics)

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-Open-ended questions for each area or topic -Introductions (*see below) -Standard group questions (that may lead to open-ended, individual follow-up) -Key legal concepts (for the most important issues) *Introductions…to jury selection overall…and to each issue or topic It makes the issue relevant It puts jurors at ease and increases their chances of talking to you Introductions need to be concise, straightforward, and honest Example…“Joe is charged in this case with selling cocaine. For decades, illegal drugs have been a problem for our society. Because of that, many of us have strong feelings about people who use and sell illegal drugs. I want to talk to you all about that.” For motor-mouths…if you have to talk, do it here…At least it serves a purpose. Jury selection “playbook” Questions Statutes and pertinent jury instructions Case law outline and copies of key cases Blank seating chart Three (3) Rules for the Courtroom 1) Always use PLAIN LANGUAGE

Never talk like a lawyer…Be your pre-lawyer self Talking to communicate with average folks…not to impress with vocabulary 2) Get the jurors talking…and keep them talking Superlative memory questions (for the key issues) Open-ended questions (who, what, how, why, where, when) Give up control…let jurors go wherever they want Follow “the 90/10 rule”…a conversation with lawyer doing 10% of talking Be empathetic and respectful…encourage them to tell you more Do NOT argue with, bully, or cross-examine a juror The “superlative memory technique” example…“Tell me about your closest relationship with a person who has been affected by illegal drugs.” Open-ended examples…“What are your views about illegal drugs? Why do you feel that way? What are your experiences with folks who use or sell drugs? How have you or anyone close to you been affected by people who use or sell drugs?” 3) Catch every response…Both verbal and non-verbal Must LISTEN to every word…and WATCH every gesture or expression Essential to catch every response to follow-up and keep them talking

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Do NOT ignore a juror or cut off an answer Use reflective questions in follow-up (Some people believe “x” and others believe “y”…What do you think?) Decision-Making Time Assess the answers and the jurors…Decide what to do..? NEVER make decision based on stereotypes or demographics ALWAYS judge a juror based on individual responses Challenge for cause…The decision whether to challenge is easy Do you immediately challenge or search for other areas of bias (?) The hard part is executing a challenge for cause See handouts, Jury Selection: Challenges for Cause (7-11-10) and Mickenberg, Voir Dire and Jury Selection, pp. 13-15) Peremptory challenges...rank the severity of bad jurors with 6 strikes in mind Severity issue…“Wymore Method” for capital cases uses a rating system Need to use your limited number of strikes wisely

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JURY SELECTION QUESTIONS Michael G. Howell, Stephen C. Freedman, and Lisa Miles

Capital Defender’s Office 123 West Main Street, Ste. 601, Durham, NC 27701

(919) 354-7220 (Feb. 14, 2012)

General Principles and Procedure (p. 1) Procedural Rules of Voir Dire (pp. 2-3) Permissible Substantive Areas of Inquiry (pp. 3-9) Improper Questions or Improper Purposes (pp. 9-15) Death Penalty Cases (pp. 15-30) List of Cases (pp. 30-32) I. GENERAL PURPOSE OF VOIR DIRE

“Voir dire examination serves the dual purpose of enabling the court to select an

impartial jury and assisting counsel in exercising peremptory challenges.” MuMin v Virginia, 500 U.S. 415, 431 (1991). The N.C. Supreme Court explained that a similar “dual purpose” was to ascertain whether grounds exist for cause challenges and to enable the lawyers to intelligently exercise their peremptory challenges. State v. Simpson, 341 N.C. 316, 462 SE2d 191, 202 (1995). “A defendant is not entitled to any particular juror. His right to challenge is not a right to select but to reject a juror.” State v. Harris, 338 N.C. 211, 227 (1994). The purpose of voir dire and the exercise of challenges “is to eliminate extremes of partiality and to assure both…[parties]…that the persons chosen to decide the guilt or innocence of the accused will reach that decision solely upon the evidence produced at trial.” State v. Conner, 335 N.C. 618, 440 S.E.2d 826, 832 (1994).

Jurors, like all of us, have natural inclinations and favorites, and they sometimes, at least on a subconscious level, give the benefit of the doubt to their favorites. So jury selection, in a real sense, is an opportunity for counsel to see if there is anything in a juror’s yesterday or today that would make it difficult for that juror to view the facts, not in an abstract sense, but in a particular case, dispassionately. State v Hedgepath, 66 N.C. App. 390 (1984).

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“Where an adversary wishes to exclude a juror because of bias, …it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality.” Wainwright v. Witt, 469 U.S. at 423 (1985).

II. PROCEDURAL RULES OF VOIR DIRE

Overall: The trial court has the duty to control and supervise the examination of prospective jurors. Regulation of the extent and manner of questioning during voir dire rests largely in the trial court’s discretion. Simpson, 341 N.C. 316, 462 S.E.2d 191, 202 (1995).

Group v. Individual Questions: “The prosecutor and the…defendant…may personally question prospective jurors individually concerning their competency to serve as jurors….” NCGS 15A-1214(c). The trial judge has the discretion to limit individual questioning and require that certain general questions be submitted to the panel as a whole in an effort to expedite jury selection. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980). Same or Similar Questions: The defendant may not be prohibited from asking a question merely because the court [or prosecutor] has previously asked the same or similar question. N.C.G.S. 15A-1214(c); State v. Conner, 335 N.C. 618, 440 S.E.2d 826, 832 (1994).

Leading Questions: Leading questions are permitted during jury voir dire [at least by the prosecutor]. State v. Fletcher, 354 N.C. 455, 468, 555 S.E.2d 534, 542 (2001).

Re-Opening Voir Dire: N.C.G.S. 15A-1214(g) permits the trial judge to reopen the examination of a prospective juror if, at any time before the jury has been impaneled, it is discovered that the juror has made an incorrect statement or that some other good reason exists. Whether to reopen the examination of a passed juror is within the judge’s discretion. Once the trial court reopens the examination of a juror, each party has the absolute right to use any remaining peremptory challenges to excuse such a juror. State v. Womble, 343 N.C. 667, 678, 473 S.E.2d 291, 297 (1996). For example, in State v. Wiley, 355 N.C. 592, 607-610 (2002), the prosecution passed a “death qualified” jury to the defense. During defense questioning, a juror said that he would automatically vote for LWOP over the death penalty. The trial judge re-opened the State’s questioning of this juror and allowed the prosecutor to remove the juror for cause. Preserving Denial of Challenges for Cause: In order to preserve the denial of a challenge for cause for appeal, the defendant must adhere to the following procedure: 1) The defendant must have exhausted the peremptory challenges available to him; 2) After exhausting his peremptory challenges, the defendant must move (orally or in writing) to renew a challenge for cause that was previously denied if he either: a) Had peremptorily challenged the juror in question, or

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b) Stated in the motion that he would have peremptorily challenged the juror if he had not already exhausted his peremptory challenges; and 3) The judge denied the defendant’s motion for renewal of his cause challenge. N.C.G.S 15A-1214(h) and (i). Renewal of Requests for Disallowed Questions: Counsel may renew its requests to ask questions that were previously denied. Occasionally, a trial court may change its mind. See, State v. Polke, 361 N.C. 65, 68-69 (2006); State v. Green, 336 N.C. 142, 164-65 (1994). III. SUBSTANTIVE AREAS OF INQUIRY

Accomplice Liability: Prosecutor properly asked about jurors’ abilities to follow the law regarding acting in concert, aiding and abetting, and the felony murder rule by the following “non-stake-out” questions in State v. Cheek, 351 N.C. 48, 65-68, 520 S.E.2d 545, 555-557 (1999): “[I]f you were convinced, beyond a reasonable doubt, of the defendant’s guilt, even though he didn’t actually pull the trigger or strike the match or strike the blow in the murder, but that he was guilty of aiding and abetting and shared the intent that the victim be killed—could you return a verdict of guilty on that?” “[T]he fact that one person may not have actually struck the blow or pulled the trigger or lit the match, but yet he could be guilty under the felony murder rule if he was jointly acting together with someone else in the kidnapping or committing an armed robbery?” “[C]ould you follow the law…under the felony murder rule and find someone guilty of first-degree murder, if you were convinced, beyond a reasonable doubt, that they had engaged in the underlying felony of either kidnapping or armed robbery, and find them guilty, even though they didn’t actually strike the blow or pull the trigger or light the match…that caused [the victim’s] death…?” Accomplice/Co-Defendant (or Interested Witness) Testimony: It is proper to ask about prospective jurors’ abilities to follow the law with respect to interested witness testimony…When an accomplice is testifying for the State, the accomplice is considered an interested witness, and his testimony is subject to careful [or the highest of] scrutiny. State v. Jones, 347 N.C. 193, 201-204 (1997). See, NCPI-Crim. 104.21, 104.25 and 104.30.

The following were proper questions (asked by the prosecutor) about a co-defendant/accomplice with a plea arrangement from State v. Jones, 347 N.C. 193, 201-202, 491 S.E.2d 641, 646 (1997):

a) There may be a witness who will testify…pursuant to a plea arrangement, plea bargain, or “deal” with the State. Would the mere fact that there is a plea bargain with one of the State’s witnesses affect your decision or your verdict in this case?

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b) Could you listen to the court’s instructions of how you are to view accomplice or interested witness testimony, whether it came from the State or the defendant….? c) After having listened to that testimony and the court’s instructions as to what the law is, and you found that testimony believable, could you give it the same weight as you would any other uninterested witness?

[According to the N.C. Supreme Court, these 3 questions were proper and not stake-out questions…They were designed to determine if jurors could follow the law and be impartial and unbiased. Jones, 347 N.C. at 204. The prosecutor accurately stated the law. An accomplice testifying for the State is considered an interested witness and his testimony is subject to careful scrutiny. The jury should analyze such testimony in light of the accomplice’s interest in the outcome of the case. If the jury believes the witness, it should give his testimony the same weight as any other credible witness. Jones, 347 N.C. at 203-204.]

You may hear testimony from a witness who is testifying pursuant to a plea agreement. This witness has pled guilty to a lesser degree of murder in exchange for their promise to give truthful testimony in this case. Do you have opinions about plea agreements that would make it difficult or impossible for you to believe the testimony of a witness who might testify under a plea agreement? The prosecutor’s inquiry merely (and properly) sought to determine whether a plea agreement would have a negative effect on prospective jurors’ ability to believe testimony from such witnesses. State v. Gell, 351 N.C. 192, 200-01 (2000). Age of Juror and Effects of It: N.C.G.S. 9-6.1 allows jurors age 72 years or older to request excusal or deferral from jury service but it does not prohibit such jurors from serving. In State v. Elliott, 360 N.C. 400, 408 (2006), the Court recognized that it is sensible for trial judges to consider the effects of age on the individual juror since the adverse effects of growing old do not strike all equally or at the same time. [Based on this, it appears that the trial court and the parties should be able to inquire into the effects of aging with older jurors.] Circumstantial Evidence/Lack of Eyewitnesses:

Prosecutor informed prospective jurors that “only the three people charged with the crimes know what happened to the victims…and…none of the three would testify against the others and therefore the State had no eyewitness testimony to offer.” He then asked: “Knowing that this is a serious case, a first degree murder case, do you feel like you have to say to yourself, well, the case is just too serious…to decide based upon circumstantial evidence and I would require more than circumstantial evidence to return a verdict of first degree murder?” The court found that these statements properly (1) informed the jury that the state would be relying on circumstantial evidence and (2) inquired as to whether the lack of eyewitnesses would cause them problems. (Also, it was not a stake-out question.) State v. Teague, 134 N.C. App. 702 (1999).

It was proper in first degree murder case for State to tell the jury that they will be relying upon circumstantial evidence with no witnesses to the shooting and then ask them

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if that will cause any problems. State v Clark, 319 N.C. 215 (1987).

Child Witnesses: Trial judge erred in not allowing the defendant to ask prospective jurors “if they thought children were more likely to tell the truth when they allege sexual abuse.” State v Hatfeld, 128 N.C. App. 294 (1998)

Defendant’s Prior Record: In State v Hedgepath, 66 N.C. App. 390 (1984), the trial court erred in refusing to allow counsel to question jurors about their willingness and ability to follow judge’s instructions that they are to consider defendant’s prior record only for purposes of determining credibility.

Defenses (i.e., Specific Defenses): A prospective juror who is unable to accept a particular defense...recognized by law is prejudiced to such an extent that he can no longer be considered competent. Such jurors should be removed from the jury when challenged for cause. State v Leonard, 295 N.C. 58, 62-63 (1978).

a) Accident: Defense counsel is free to inquire into the potential jurors’ attitudes concerning the specific defenses of accident or self-defense. State v. Parks, 324 N.C. 420, 378 S.E.2d 785 (1989). b) Insanity: It was reversible error for trial court to fail to dismiss juror who indicated he was not willing to return a verdict of NGRI even though defendant introduced evidence that would satisfy them that the defendant was insane at the time of the offense. State v Leonard, 295 N.C. 58,62-63 (1978); see also Vinson. c) Mental Health Defense: The defendant has the right to question jurors about their attitudes regarding a potential insanity or lack of mental capacity defense, including questions about: “courses taken and books read on psychiatry, contacts with psychiatrist or persons interested in psychiatry, members of family receiving treatment, inquiry into feelings on insanity defense and ability to be fair.” U.S. v Robinson, 475 F.2d 376 (D.C. Cir. 1973); U.S. v Jackson, 542 F.2d 403 (7th Cir. 1976).

d) Self-Defense: Defense counsel is free to inquire into the potential jurors’ attitudes concerning the specific defenses of accident or self-defense. Parks, 324 N.C. 420, 378 S.E.2d 785 (1989).

Drug-Related Context of Non-Drug Offense: In a prosecution for common law robbery and assault, there was no error in allowing prosecutor (after telling prospective jurors that a proposed sale of marijuana was involved) to inquire into whether any of them would be unable to be fair and impartial for that reason. State v Williams, 41 N.C. App. 287, disc. rev. denied, 297 N.C. 699 (1979).

The following was not a “stake-out” question and was a proper inquiry to determine the impartiality of the jurors: “Do you feel like you will automatically turn off the rest of the case and predicate your verdict of not guilty solely upon the fact that these

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people were out looking for drugs and involved in the drug environment, and became victims as a result of that?” State v Teague, 134 N.C. App. 702 (1999) Eyewitness Identification: The following prosecutor’s question was upheld as proper (and non-stake-out): “Does anyone have a per se problem with eyewitness identification? Meaning, it is in and of itself going to be insufficient to deem a conviction in your mind, no matter what the judge instructs you as to the law?” The prosecutor was “simply trying to ensure that the jurors could follow the law with respect to eyewitness testimony…that is treat it no differently that circumstantial evidence.” State v. Roberts, 135 N.C. App. 690, 697, 522 S.E.2d 130 (1999). Expert Witness: “If someone is offered as an expert in a particular field such as psychiatry, could you accept him as an expert, his testimony as an expert in that particular field.” According to State v Smith, 328 N.C. 99, 131 (1991), this was not an attempt to stake out jurors. It was not an abuse of discretion for the judge to prevent defense counsel from asking jurors “whether they would automatically reject the testimony of mental health professionals.” This was apparently a stake out question. State v. Neal, 346 N.C. 608, 618 (1997). Focusing on “The Issue”: In a child homicide case, the prosecutor was allowed to ask a prospective juror “if he could look beyond evidence of the child’s poor living conditions and lack of motherly care and focus on the issue of whether the defendant was guilty of killing the child.” The Supreme Court found that this was not a stake-out question. State v. Burr, 341 N.C. 263, 285-86 (1995). Following the Law: “The right to an impartial jury contemplates that each side will be allowed to make inquiry into the ability of prospective jurors to follow the law. Questions designed to measure a prospective juror’s ability to follow the law are proper within the context of jury selection.” State v. Jones, 347 N.C. 193, 203 (1997), citing State v. Price, 326 N.C. 56, 66-67, 388 S.E.2d 84, 89, vacated on other grounds, 498 U.S. 802 (1990). If a juror’s answers about a fundamental legal concept (such as the presumption of innocence) demonstrated either confusion about, or a fundamental misunderstanding of the principles…or a simple reluctance to apply those principles, its effect on the juror’s inability to give the defendant a fair trial remained the same. State v. Cunningham, 333 N.C. 744, 754-756, 429 S.E.2d 718 (1993). Hold-Out Jurors During Deliberations: Generally, questions designed to determine how well a prospective juror would stand up to other jurors in the event of a split decision amounts to impermissible “stake-out” questions. State v. Call, 353 N.C. 400, 409-410, 545 S.E.2d 190, 197 (2001).

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It is permissible, however, to ask jurors “if they understand that, while the law requires them to deliberate with other jurors in order to try to reach a unanimous verdict, they have the right to stand by their beliefs in the case.” (Note that, if this permissible question is followed by the question, “And would you do that?,” this crosses the line into an impermissible stake-out question.) State v. Elliott, 344 N.C. 242, 262-63, 475 S.E.2d 202, 210 (1997); see also, State v. Maness, 363 N.C. 261 (2009). Where defense counsel had already inquired into whether jurors could follow the law as specified in N.C.G.S. 15A-1235 by asking if they could “independently weigh the evidence, respect the opinion of other jurors, and be strong enough to ask other jurors to to respect his opinion,” the trial judge properly limited a redundant question that was based on an Allen jury instruction. (N.C.P.I.-Crim. 101-40). State v. Maness, 363 N.C. 261 (2009). Identifying Family Members: Not error to allow the prosecutor during jury selection to identify members of the murder victim’s family who are in the courtroom. State v Reaves, 337 N.C. 700 (1994). Intoxication: Proper for Prosecutor to ask prospective jurors whether they would be sympathetic toward a defendant who was intoxicated at the time of the offense. “If it is shown to you from the evidence and beyond a reasonable doubt that the defendant was intoxicated at the time of the alleged shooting, would this cause you to have sympathy for him and allow that sympathy to affect your verdict.” State v McKoy, 323 N.C. 1 (1988). Law Enforcement Witness Credibility: If a juror would automatically give enhanced credibility or weight to the testimony of a law enforcement witness (or any particular class of witness), he would be excused for cause. State v. Cummings, 361 N.C. 438, 457-58 (2007); State v. McKinnon, 328 N.C. 668, 675-76, 403 S.E.2d 474 (1991). Legal Principles: Defense counsel may question jurors to determine whether they completely understood the principles of reasonable doubt and burden of proof. Once counsel has fully explored an area, however, the judge may limit further inquiry. Parks, 324 N.C. 420, 378 S.E.2d 785 (1989). “The right to an impartial jury contemplates that each side will be allowed to make inquiry into the ability of prospective jurors to follow the law. Questions designed to measure a prospective juror’s ability to follow the law are proper within the context of jury selection.” State v. Jones, 347 N.C. 193, 203 (1997), citing State v. Price, 326 N.C. 56, 66-67, 388 S.E.2d 84, 89, vacated on other grounds, 498 U.S. 802 (1990).

Defendant Not Testifying: It is proper for defense counsel to ask questions concerning a defendant’s failure to testify in his own defense. A court, however, may disallow questioning about the defendant’s failure to offer evidence in his defense. State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994).

Court erred in denying the defendant’s challenge for cause of juror who

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repeatedly said that the defendant’s failure to testify would stick in the back of my mind while he was deliberating (in response to question “whether the defendant’s failure to testify would affect his ability to give him a fair trial”). State v Hightower, 331 N.C. 636 (1992). Presumption of Innocence and Burden of Proof: A juror gave conflicting and ambiguous answers about whether she could presume the defendant innocent and whether she would require him to prove his innocence. The Supreme Court awarded the defendant a new trial because the trial judge denied the defendant’s challenge for cause. The Supreme Court said that the juror’s answers demonstrated either confusion about, or a fundamental misunderstanding of the principles of the presumption of innocence, or a simple reluctance to apply those principles. Regardless whether the juror was confused, had a misunderstanding, or was reluctant to apply the law, its effect on her ability to give the defendant a fair trial remained the same. State v. Cunningham, 333 N.C. 744, 754-756, 429 S.E.2d 718 (1993).

Pretrial Publicity: Inquiry should be made regarding the effect of the publicity upon jurors’ ability to be impartial or keep an open mind. Mu’min, 500 U.S. 415, 419-421, 425 (1991). Although “Questions about the content of the publicity…might be helpful in assessing whether a juror is impartial,” they are not constitutionally required. Id. at 425. The constitutional question is whether jurors had such fixed opinions that they could not be impartial, not whether or what they remembered about the publicity. It is not required that jurors be totally ignorant of the facts and issues involved. Id., 500 U.S. at 426 and 430. It was deemed proper for a prosecutor to describe some of the “uncontested” details of the crime before he asked jurors whether they knew or read anything about the case. State v. Nobles, 350 N.C. 483, 497-498, 515 S.E.2d 885, 894-895 (1999) (ADA noted that defendant was charged with discharging a firearm into a vehicle occupied by his wife and three small children). It was not a “stake-out” question. Racial/Ethnic Background: Trial courts must allow questions regarding whether any jurors might be prejudiced against the defendant because of his race or ethnic group where the defendant is accused of a violent crime and the defendant and the victim were members of different racial or ethnic groups. (If this criteria is not met, racial and ethnic questions are discretionary.) Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981). Such questions must be allowed in capital cases involving a charge of murder of a white person by a black defendant. Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1783, 90 L.Ed.2d 27 (1986). Sexual Offense/Medical Evidence: In a sexual offense case, the prosecutor asked, “To be able to find one guilty beyond a reasonable doubt, are you going to require that there be medical evidence that affirmatively says an incident occurred?” This was a proper, non-stake-out question. Since the law does not require medical evidence to corroborate a victim’s story, the prosecutor’s question was a proper attempt to measure prospective jurors’ ability to follow the law. State v. Henderson, 155 N.C. App. 719, 724-727 (2003).

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Sexual Orientation: Proper for prosecutor to question jurors regarding prejudice against homosexuality for the purpose of determining whether they could impartially consider the evidence knowing that the State’s witnesses were homosexual. State v Edwards, 27 N.C. App. 369 (1975).

IV. IMPROPER QUESTIONS OR IMPROPER PURPOSES Answers to Legal Questions: Counsel should not “fish” for answers to legal questions before the judge has instructed the juror on applicable legal principles by which the juror should be guided. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980). [Does this mean can counsel get judge to give preliminary instructions before voir dire, and then ask questions about the law?] Arguments that are Prohibited: A lawyer (even a prosecutor) may not make statements during jury selection that would be improper if they were later argued to the jury. State v. Hines, 286 N.C. 377, 385, 211 S.E.2d 201 (1975) (reversible error for the prosecutor to make improper statements during voir dire about how the death penalty is rarely enforced). Confusing and Ambiguous Questions: Hypothetical questions so phrased to be ambiguous and confusing are improper. For example, “Now, everyone on the jury is in favor of capital punishment for this offense…Is there anyone on the jury, because the nature of the offense, feels like you might be a little bit biased or prejudiced, either consciously or unconsciously, because of the type or the nature of the offense involved; is there anyone on the jury who feels that they would be in favor of a sentence other than death for rape?” (see, Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975)); or, “Would you be willing to be tried by one in your present state of mind if you were on trial in this case?” State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978). Inadmissible Evidence: An attorney may not ask prospective jurors about inadmissible evidence. State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973). Incorrect Statements of Law: Questions containing incorrect or inadequate statements of the law are improper. State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975). Indoctrination of Jurors: Counsel should not engage in efforts to indoctrinate jurors and counsel should not argue the case in any way while questioning jurors. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980). In order to constitute an attempt to indoctrinate potential jurors, the improper question would be aimed at indoctrinating jurors with views favorable to the [questioning party]…or…advancing a particular position. State v. Chapman, 359 N.C. 328, 346 (2005). An example of a non-indoctrinating question is: Can you imagine a set of circumstances in which…your personal beliefs conflict with the law? In that situation, what would you do? See Chapman. Overbroad and General Questions: “Would you consider, if you had the opportunity,

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evidence about this defendant, either good or bad, other than that arising from the incident here?” This question was overly broad and general, and not proper for voir dire. State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973).

Rapport Building: Counsel should not visit with or establish “rapport” with jurors. State v. Phillips, 300 NC 678, 268 SE2d 452 (1980).

Repetitive Questions: The court may limit repetitious questions. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975). Where defense counsel had already inquired into whether jurors could “independently weigh the evidence, respect the opinion of other jurors, and be strong enough to ask other jurors to to respect his opinion,” the trial judge properly limited a redundant question that was based on an Allen jury instruction. State v. Maness, 363 N.C. 261 (2009). Stake-Out Questions: “Staking out” jurors is improper. Simpson, 341 N.C. 316, 462 S.E.2d 191, 202 (1995). “Staking out” is seen as an attempt to indoctrinate potential jurors as to the substance of defendant’s defense. State v. Parks, 324 N.C. 420, 378 S.E.2d 785 (1989). “Staking out” defined: Questions that tend to commit prospective jurors to a specific future course of action in the case. Chapman, 359 N.C. 328, 345-346 (2005).

Counsel may not pose hypothetical questions designed to elicit in advance what the jurors’ decision will be under a certain state of the evidence or upon a given state of facts...The court should not permit counsel to question prospective jurors as to the kind of verdict they would render, or how they would be inclined to vote, under a given state of facts. State v Vinson, 287 N.C. 326, 336-37 (1975), death sentence vacated, 428 U.S. 902 (1976).

Examples of Stake-Out Questions: 1) “Is there anyone on the jury who feels that because the defendant had a gun in his hand, no matter what the circumstances might be, that if that-if he pulled the trigger to that gun and that person met their death as result of that, that simply on those facts alone that he must be guilty of something?” Parks, 324 N.C. 420, 378 S.E.2d 785 (1989).

2) Improper “reasonable doubt” questions: a) What would your verdict be if the evidence were evenly balanced? b) What would your verdict be if you had a reasonable doubt about the defendant’s guilt? c) What would your verdict be if you were convinced beyond a reasonable doubt of the defendant’s guilt? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975). d) The judge will instruct you that “you have to find each element beyond a reasonable doubt. Mr. [Juror], if you hear the evidence that comes in and find three elements beyond a reasonable doubt, but you don’t find on the

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fourth element, what would your verdict be?” State v. Johnson, __ N.C.App. __, 706 S.E.2d. 790, 796 (2011) 3) Whether you would vote for the death penalty […in a specified hypothetical situation…]? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975). 4) If you find from the evidence a conclusion which is susceptible to two reasonable interpretations; that is, one leading to innocence and one leading to guilt, will you adopt the interpretation which points to innocence and reject that of guilt? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975). 5) If it was shown…that the defendant couldn’t control his actions and didn’t know what was going on…,would you still be inclined to return a verdict which would cause the imposition of the death penalty? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975). 6) If you are satisfied from the evidence that the defendant was not conscious of his act at the time it allegedly was committed, would you still feel compelled to return a guilty verdict? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975). 7) If you are satisfied beyond a reasonable doubt that the defendant committed the act but you believed that he did not intentionally or willfully commit the crime, would you still return a guilty verdict knowing that there would be a mandatory death sentence? State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975). 8) Improper Burden of Proof Questions:

a) If the defendant chose not to put on a defense, would you hold that against him or take it as an indication that he has something to hide?

b) Would you feel the need to hear from the defendant in order to return a verdict of not guilty?

c) Would the defendant have to prove anything to you before he would be entitled to a not guilty verdict? State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994); State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980), or

d) Would the fact that the defendant called fewer witnesses than the State make a difference in your decision as to her guilt? State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986). 9) Improper Insanity Questions:

a) Do you know what a dissociative period is and do you believe that it is possible for a person not to know because some mental disorder where they actually are, and do things that they believe they are doing in another place and under circumstances that are not actually real?

b) Are you thinking, well if the defendant says he has PTSD, for that reason alone, I would vote that he is guilty? State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985). 10) Improper “Hold-out” Juror Questions: a) A question designed to determine how well a prospective juror would stand up

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to other jurors in the event of a split decision amounts to an impermissible “stake-out.” State v. Call, 353 N.C. 400, 409-410, 545 S.E.2d 190, 197 (2001). For example, “if you personally do not think that the State has proved something beyond a reasonable doubt and the other 11 jurors have, could you maintain the courage of your convictions and say, they’ve not proved that?” b) It is permissible to ask jurors “if they understand that, while the law requires them to deliberate with other jurors in order to try to reach a unanimous verdict, they have the rights to stand by their beliefs in the case.” If this permissible question is followed by the question, “And would you do that?” this crosses the line into an impermissible stake-out question. State v. Elliott, 344 N.C. 242, 263, 475 S.E.2d 202, 210 (1996). c) The following hypothetical inquiry was deemed an improper stake-out question: “If you were convinced that life imprisonment without parole was the appropriate penalty after hearing the facts, the evidence, and the law, could you return a verdict of life imprisonment without parole even if you fellow jurors were of different opinions?” State v. Maness, 363 N.C. 261, 269-70 (2009). 11) Improper Questions about Witness Credibility: a) “What type of facts would you look at to make a determination if someone’s telling the truth?” b) In determining whether to believe a witness, “would it be important to you that a person could actually observe or hear what they said [that] they have [seen or heard] from the witness stand?” State v. Johnson, __ N.C.App. __, 706 S.E.2d. 790, 793-94 (2011). c) 11) “Whether you would automatically reject the testimony of mental health professionals.” State v. Neal, 346 N.C. 608, 618 (1997). Examples of NON-Stake Out Questions: 1) Prosecutor asked the jurors “if they would consider that the defendant voluntarily consumed alcohol in determining whether the defendant was entitled to diminished capacity mitigating factor.” The Supreme Court stated, “This was a proper question. He did not attempt to stake the jury out as to what their answer would be on a hypothetical question.” State v. Reeves, 337 N.C. 700 (1994)

2) Prosecutor informed prospective jurors that “only the three people charged with the crimes know what happened to the victims…and…none of the three would testify against the others and therefore the State had no eyewitness testimony to offer.” He then asked: Knowing that this is a serious case, a first degree murder case, do you feel like you have to say to yourself, well, the case is just too serious…to decide based upon circumstantial evidence and I would require more than circumstantial evidence to return a verdict of first degree murder? Court found that these statements properly (1) informed the jury that the state would be relying on circumstantial evidence and (2) inquired as to whether the lack of eyewitnesses would cause them problems. (Also, it was not a stake-out question.) State v. Teague, 134 N.C. App. 702 (1999).

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3) “Do you feel like you will automatically turn off the rest of the case and predicate your verdict of not guilty solely upon the fact that these people were out looking for drugs and involved in the drug environment, and became victims as a result of that?” State v Teague, 134 N.C. App. 702 (1999). 4) “If someone is offered as an expert in a particular field such as psychiatry, could you accept him as an expert, his testimony as an expert in that particular field.” According to State v Smith, 328 N.C. 99, 131 (1991), this was NOT an attempt to stake out jurors.

5) Proper “non-stake-out” questions (by the prosecutor) about a co-defendant/accomplice with a plea arrangement from State v. Jones, 347 N.C. 193, 201-202, 204, 491 S.E.2d 641, 646 (1997):

a) There may be a witness who will testify…pursuant to a plea arrangement, plea bargain, or “deal” with the State. Would the mere fact that there is a plea bargain with one of the State’s witnesses affect your decision or your verdict in this case?

b) Could you listen to the court’s instructions of how you are to view accomplice

or interested witness testimony, whether it came from the State or the defendant….? c) After having listened to that testimony and the court’s instructions as to what

the law is, and you found that testimony believable, could you give it the same weight as you would any other uninterested witness?

6) Proper “non-stake-out” questions asked by prosecutor about views on death penalty from State v. Chapman, 359 N.C. 328, 344-346 (2005):

a) As you sit here now, do you know how you would vote at the penalty phase…regardless of the facts or circumstances in the case?

b) Do you feel like in any particular case you are more likely to return a verdict

of life imprisonment or the death penalty? c) Can you imagine a set of circumstances in which…your personal beliefs [for or

against the death penalty] conflict with the law? In that situation, what would you do?

A federal court in United States v. Johnson, 366 F.Supp. 2d 822 (N.D. Iowa 2005), explained how to avoid improper stakeout questions in framing proper case-specific questions. A proper question should address the juror’s ability to consider both life and death instead of seeking to secure a juror’s pledge vote for life or death under a certain set of facts. 366 F.Supp. 2d at 842-844. For example, questions about 1) whether a juror could find (instead of would find) that certain facts call for the imposition of life or death, or 2) whether a juror could fairly consider both life and death in light of particular facts are appropriate case-specific inquiries. 366 F.Supp. 2d at 845, 850. Case-specific questions should be prefaced on “if the evidence shows,” or some other reminder that an ultimate determination must be based on the evidence at trial and the court’s instructions. 366 F.Supp. 2d at 850.

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7) The prosecutor’s question, “Would you feel sympathy towards the defendant simply because you would see him here in court each day…?” was NOT a stake-out attempt to get jurors to not consider defendant’s appearance and humanity in capital sentencing hearing. Chapman, 359 N.C. 328, 346-347 (2005).

8) Prosecutor properly asked “non-stake-out” questions about jurors’ abilities to follow the law regarding acting in concert, aiding and abetting, and the felony murder rule in State v. Cheek, 351 N.C. 48, 65-68, 520 S.E.2d 545, 555-557 (1999):

a) “[I]f you were convinced, beyond a reasonable doubt, of the defendant’s guilt, even though he didn’t actually pull the trigger or strike the match or strike the blow in the murder, but that he was guilty of aiding and abetting and shared the intent that the victim be killed—could you return a verdict of guilty on that?”

b) “[T]he fact that one person may not have actually struck the blow or pulled the trigger or lit the match, but yet he could be guilty under the felony murder rule if he was jointly acting together with someone else in the kidnapping or committing an armed robbery?” c) “[C]ould you follow the law…under the felony murder rule and find someone guilty of first-degree murder, if you were convinced, beyond a reasonable doubt, that they had engaged in the underlying felony of either kidnapping or armed robbery, and find them guilty, even though they didn’t actually strike the blow or pull the trigger or light the match…that caused [the victim’s] death…?”

9) In a sexual offense case, the prosecutor asked, “To be able to find one guilty beyond a reasonable doubt, are you going to require that there be medical evidence that affirmatively says an incident occurred?” This was NOT a stake-out question. Since the law does not require medical evidence to corroborate a victim’s story, the prosecutor’s question was a proper attempt to measure prospective jurors’ ability to follow the law. State v. Henderson, 155 N.C. App. 719, 724-727 (2003) (The court said that the following question would have been a stake-out if the ADA had asked it, “If there is medical evidence stating that some incident has occurred, will you find the defendant guilty beyond a reasonable doubt). 10) In a case involving eyewitness identification, the prosecutor asked: “Does anyone have a per se problem with eyewitness identification? Meaning, it is in and of itself going to be insufficient to deem a conviction in your mind, no matter what the judge instructs you as to the law?” The Court said that this question did NOT cause the jurors to commit to a future course of action. The prosecutor was “simply trying to ensure that the jurors could follow the law with respect to eyewitness testimony…that is treat it no differently that circumstantial evidence.” State v. Roberts, 135 N.C. App. 690, 697, 522 S.E.2d 130 (1999). 11) In a child homicide case, the prosecutor was allowed to ask a prospective juror “if he could look beyond evidence of the child’s poor living conditions and lack of motherly care and focus on the issue of whether the defendant was guilty of killing the child.” The

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Supreme Court found that this was not a stake-out question. State v. Burr, 341 N.C. 263, 285-86 (1995).

JURY SELECTION IN DEATH PENALTY CASES

I. GENERAL PRINCIPLES

Both the defendant and the state have the right to question prospective jurors about their views on capital punishment…The extent and manner of the inquiry by counsel lies within the trial court’s discretion and will not be overturned absent an abuse of discretion. State v. Brogden, 334 N.C. 39, 430 S.E.2d 905, 908 (1993).

A defendant on trial for his life should be given great latitude in examining

potential jurors. State v Conner, 335 N.C. 618 (1995).

[C]ounsel may seek to identify whether a prospective juror harbors a general preference for a life or death sentence or is resigned to vote automatically for either sentence….A juror who is predisposed to recommend a particular sentence without regard for the unique facts of a case or a trial judge’s instruction on the law is not fair and impartial. State v. Chapman, 359 N.C. 328, 345 (2005) (citation omitted).

“Part of the Sixth Amendment’s guarantee of a defendant’s right to an impartial

jury is an adequate voir dire to identify unqualified jurors…Voir dire plays a critical function in assuring the criminal defendant that his constitutional right to an impartial jury will be honored.” Morgan v Illinois, 504 U.S. 719, 729, 733 (1992)

Voir dire must be available “to lay bare the foundation” of a challenge for cause

against a prospective juror. Were voir dire not available to lay bare the foundation of petitioner’s challenge for cause against those prospective jurors who would always impose death following conviction, his right not to be tried by such jurors would be rendered as nugatory and meaningless as the State’s right, in the absence of questioning, to strike those who would never do so. �Morgan, 504 U.S. at 733-34.

In voir dire, “what matters is how…[the questions regarding capital punishment]

might be understood-or misunderstood-by prospective jurors.” For example, “a general question as to the presence of reservations [against the death penalty] is far from the inquiry which separates those who would never vote for the ultimate penalty from those who would reserve it for the direst cases.” One cannot assume the position of a venireman regarding this issue absent his own unambiguous statement of his beliefs. Witherspoon, 391 U.S. at 515, n. 9.

The trial court must allow a defendant to go beyond the standard “fair and impartial” question: “As to general questions of fairness and impartiality, such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed...It

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may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so. A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception.” Morgan, 504 U.S. at 735-36.

It is not necessary for the trial court to explain or for a juror to understand the process of a capital sentencing proceeding before the juror can be successfully challenged for his answers to questions. An understanding of the process should not affect one’s beliefs regarding the death penalty. Simpson, 341 N.C. 316, 462 SE2d 191, 202, 206 (1995). II. Death Qualification: General Opposition to Death Penalty Not Enough

Under the “impartial jury” guarantee of the Sixth Amendment, death penalty jurors may not be excused “for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction”…, or “that there are some kinds of cases in which they would refuse to recommend capital punishment. Witherspoon, 391 U.S. at 522, 512-13.

The Supreme Court recognized that “A man who opposes the death penalty…can

make the discretionary judgment entrusted to him by the state and can thus obey the oath he takes as a juror.” Id., 391 U.S. at 519.

“Not all [jurors] who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors…so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137, 149 (1986). [Note that the Court in Lockhart reaffirmed its position that death-qualified juries are not conviction-prone, and it is constitutional for a death-qualified jury to decide the guilt/innocence phase. The Court rejected the “fair-cross-section” argument against death-qualified juries deciding guilt.]

“[A] juror is not automatically excluded from jury service merely because that juror may have an opinion about the propriety of the death penalty.” State v. Elliott, 360 N.C. 400, 410 (2006). General opposition to the death penalty will not support a challenge for cause for a potential juror who will “conscientiously apply the law to the facts adduced at trial.” Such a juror may be properly excluded “if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge.” State v. Brogden, 430 S.E.2d at 907-08 (1993)(citing Witt, Adams v. Texas, and Lockhart). III. Death Qualification Rules: Witherspoon and Witt Standards

The State may excuse jurors who make it "unmistakably clear” that (1) they

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would “automatically vote against the death penalty” no matter what the facts of the case were, or (2) “their attitude about the death penalty would prevent them from making an impartial decision” regarding the defendant’s guilt. Witherspoon, 391 U.S. at 522, n. 21 (1968).

A . . . prospective juror cannot be expected to say in advance of trial whether he

would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed against the penalty of death regardless of the facts and circumstances...” that might emerge during the trial. Witherspoon v Illinois, 391 U.S. 510, 523 n.21 (1968).

The proper standard for excusing a prospective juror for cause because of his

views on capital punishment is: “Whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instruction or his oath.” Wainwright v. Witt, 469 U.S. at 424.

Note that considerable confusion regarding the law on the part of the juror

could amount to “substantial impairment.” Uttecht v. Brown, 551 U.S. 1, 127. S.Ct. 2218, 167 L.Ed.2d 1014, 1029 (2007).

Prospective jurors may not be excused for cause simply because of the possibility

“of the death penalty may affect what their honest judgment of the facts will be or what they may deem to be a reasonable doubt.” The fact that the possible imposition of the death penalty would “affect” their deliberations by causing them to be more emotionally involved or to view their task with greater seriousness is not grounds for excusal. The same rule against exclusion for cause applies to jurors who could not confirm or deny that their deliberations would be affected by their views about the death penalty or by the possible imposition of the death penalty. Adams v. Texas, 448 U.S. 38, 49-50 (1980).

The State may excuse for cause a juror if he affirmatively answers the following

question: “Is your conviction [against the death penalty] so strong that you cannot take an oath [to fairly try this case and follow the law], knowing that a possibility exists in regard to capital punishment.” Lockett v. Ohio, 438 U.S. 586, 595-96 (1978). This ruling was based on the impartiality prong of the Witherspoon standard (i.e., their attitudes toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.)

The N.C. Supreme Court has upheld the removal of potential jurors who

equivocate or who state that although they believe generally in the death penalty, they indicate that they personally would be unable or would find it difficult to vote for the death penalty. Simpson, 341 N.C. 316, 462 S.E.2d 191, 206 (1995); State v. Gibbs, 335 NC 1, 436 SE2d 321 (1993), cert. denied, 129 L.Ed.2d 881 (1994).

The following questions by the prosecutor were found to be proper:

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1) [Mr. Juror…], how do you feel about the death penalty, sir, are you opposed to it or [do] you feel like it is a necessary law?

2) Do you feel that you could be part of the legal machinery which might bring it about in this particular case? State v Willis, 332 N.C. 151, 180-81 (1992).

IV. Rehabilitation of Death Challenged Juror It is not an abuse of for the trial court to deny the defendant the chance to

rehabilitate a juror who has expressed clear and unequivocal opposition to the death penalty in response to questions asked by the prosecutor and judge when further questioning by defendant would not have likely produced different answers. Brogden, 334 N.C. 39, 430 SE2d 905, 908-09 (1993); see also State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992). [In Brogden, a juror said that he could consider the evidence, was not predisposed either way, and could vote for death in an appropriate case. The same juror also said his feelings about the death penalty would “partially” or “to some extent” affect his performance as a juror. The trial court erroneously denied the defendant the opportunity to rehabilitate this juror.]

It is error for a trial court to enter “a general ruling, as a matter of law,” a

defendant will never be allowed to rehabilitate a juror when the juror’s answers…have indicated that the juror may be unable to follow the law and fairly consider the possibility of recommending a sentence of death. State v. Green, 336 N.C. 142, 161 (1994) (based on Brogdon).

V. Life Qualifying Questions: Morgan v. Illinois

“If you found [the defendant] guilty, would you automatically vote to impose

the death penalty no matter what the facts were?” Morgan, 504 U.S. at 723. A juror who will automatically vote for the death penalty in every case will fail to follow the law about considering aggravating and mitigating evidence, and has already formed an opinion on the merits of the case. Id. at 504 U.S. at 729, 738.

“Clearly, the extremes must be eliminated-i.e., those who, in spite of the evidence,

would automatically vote to convict or impose the death penalty or automatically vote to acquit or impose a life sentence.” Morgan, 504 U.S. at 734, n. 7.

“General fairness and follow the law questions” are not sufficient. A capital

defendant is entitled to inquire and ascertain a potential juror’s predeterminations regarding the imposition of the death penalty. Morgan, 504 U.S. at 507; State v. Conner, 335 N.C. 618, 440 S.E.2d 826, 840 (1994).

[For a good summary of Morgan, see U.S. v. Johnson, 366 F.Supp. 2d 822, 826-

831 (N.D. Iowa 2005).]

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Proper Questions: 1) As you sit here now, do you know how you would vote at the penalty

phase…regardless of the facts or circumstances in the case? Chapman, 359 N.C. 328, 344-345 (2005).

2) Do you feel like in any particular case you are more likely to return a verdict

of life imprisonment or the death penalty? [According to the Supreme Court, these general questions (asked by the prosecutor, i.e., #1 and #2

herein) did not tend to commit jurors to a specific future course of action. Instead, the questions helped to clarify whether the jurors’ personal beliefs would substantially impair their ability to follow the law. Such inquiry is not only permissible, it is desirable to safeguard the integrity of a fair and impartial jury” for both parties. Chapman, 359 N.C. 328, 344-345 (2005).]

3) Can you imagine a set of circumstances in which…your personal beliefs

[…for or against the death penalty…] conflict with the law? In that situation, what would you do?

[While a party may not ask questions that tend to “stake out” the verdict a prospective juror would

render on a particular set of facts…, counsel may seek to identify whether a prospective juror harbors a general preference for a life or death sentence or is resigned to vote automatically for either sentence….A juror who is predisposed to recommend a particular sentence without regard for the unique facts of a case or a trial judge’s instruction on the law is not fair and impartial. State v. Chapman, 359 N.C. 328, 345 (2005) (citation omitted)…..The Supreme Court said that, although the prosecutor’s questions (numbered 1-3 above) were hypothetical, they did not tend to commit jurors to a specific future course of action in this case, nor were they aimed at indoctrinating jurors with views favorable to the State. These questions do not advance any particular position. In fact, the questions address a key criterion of juror competency, i.e., ability to apply the law despite of their personal views. In addition, the questions were simple and clear. Chapman, 359 N.C. 328, 345-346 (2005).]

4) Is your support for the death penalty such that you would find it difficult to

consider voting for life imprisonment for a person convicted of first-degree murder? Approved in State v Conner, 335 N.C. 618 (1994)

5) Would your belief in the death penalty make it difficult for you to follow the law and consider life imprisonment for first-degree murder? Approved in State v Conner, 335 N.C. 618 (1994). [The gist of the above two questions (numbered 4 and 5) was to determine whether the juror was willing to consider a life sentence in the appropriate circumstances or would automatically vote for death upon conviction. Conner, 440 SE2d at 841.]

6) If at the first stage of the trial you voted guilty for first-degree murder, do you

think that you could at sentencing consider a life sentence or would your feelings about the death penalty be so strong that you could not consider a life sentence? State v Conner, 335 N.C. 618, 643-45 (1994) (referring to State v Taylor).

7) If you had sat on the jury and had returned a verdict of guilty, would you

then presume that the penalty should be death? State v Conner, 335 N.C. 618, 643-45 (1994). [Referring to questions used in State v Taylor, 304 N.C. at 265, would now be acceptable). Also approved in State v. Ward, 354 N.C. 231, 254, 555 S.E.2d 251, 266 (2001) when asked by the prosecutor.]

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8) If the State convinced you beyond a reasonable doubt that the defendant was guilty of premeditated murder and you had returned a verdict of guilty, do you think then that you would feel that the death penalty was the only appropriate punishment? State v Conner, 335 N.C. 618, 643-45 (1994). [The Court recognized that questions (numbered here as 6-8) that were deemed inappropriate in State v Taylor, 304 N.C. at 265, would now be acceptable.]

9) A capital defendant must be allowed to ask, “whether prospective jurors

would automatically vote to impose the death penalty in the event of a conviction.” State v. Wiley, 355 N.C. 592, 612 (2002) (citing Morgan 504 U.S. 719, 733-736).

Improper Questions:

1) Improper questions due to “form” (according to Simpson, 341 N.C. 316, 462 S.E.2d 191, 203 (1995)):

a) Do you think that a sentence to life imprisonment is a sufficiently harsh punishment for someone who has committed cold-blooded, premeditated murder?

b) Do you think that before you would be willing to consider a death sentence for someone who has committed cold-blooded, premeditated murder, that they would have to show you something that justified that sentence?

2) Questions that were argumentative, incomplete statement of the law, and

“stake-outs” are improper. Simpson, 341 N.C. at 339-340. 3) The following question was properly disallowed under Morgan because it was

overly broad and called for a legislative/policy decision: Do you feel that the death penalty is the appropriate penalty for someone convicted of first-degree murder? Conner, 335 N.C. at 643.

4) Defense counsel was not allowed to ask the following questions because they

were hypothetical stake-out questions designed to pin down jurors regarding the kind of fact scenarios they would deem worthy of LWOP or the death penalty:

a) Have you ever heard of a case where you thought that LWOP should be the appropriate punishment?

b) Have you ever heard of a case where you thought that the death penalty should be the punishment?

c) Whether you could conceive of a case where LWOP ought to be the punishment? What type of case is that? State v. Wiley, 355 N.C. 592, 610-613 (2002). Case-Specific Questions under Morgan:

The court in United States v. Johnson, 366 F.Supp. 2d 822 (N.D. Iowa 2005) addressed the issue of whether Morgan allows for case-specific questions (i.e., questions that ask whether jurors can consider life or death in a case involving stated facts). The court decided that Morgan did not preclude (or even address) case-specific questions. 366 F.Supp. 2d at 844-845. The essence of the Supreme Court’s decision in Morgan was that, in order to empanel a fair and impartial jury, a defendant must be afforded the opportunity to question jurors about their ability to consider life and death sentences based on the facts and law in a particular case rather than automatically imposing a particular sentence no matter what the facts were. Therefore, the court in

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Johnson found that case-specific questions (other than stake-out questions) are appropriate under Morgan. 366 F.Supp. 2d at 845-846.

In fact case-specific questions may be constitutionally required since a prohibition

on such questions could impede a party’s ability to determine whether jurors are unwaveringly biased for or against a death sentence. 366 F.Supp. 2d at 848.

The Johnson court explained how to avoid improper stakeout questions in framing

proper case-specific questions. A proper question should address the juror’s ability to consider both life and death instead of seeking to secure a juror’s pledge vote for life or death under a certain set of facts. 366 F.Supp. 2d at 842-844. For example, questions about 1) whether a juror could find (instead of would find) that certain facts call for the imposition of life or death, or 2) whether a juror could fairly consider both life and death in light of particular facts are appropriate case-specific inquiries. 366 F.Supp. 2d at 845, 850. Case-specific questions should be prefaced on “if the evidence shows,” or some other reminder that an ultimate determination must be based on the evidence at trial and the court’s instructions. 366 F.Supp. 2d at 850. VI. Consideration of MITIGATION Evidence General Principles:

Pursuant to Morgan v. Illinois, capital jurors must be able to consider and give

weight to mitigating circumstances. “Any juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty.” Morgan, 504 U.S. at 738, 119 L.Ed.2d at 508. Such jurors “not only refuse to give such evidence any weight but are also plainly saying that mitigating evidence is not worth their consideration and that they will not consider it.” Morgan, 504 U.S. at 736, 119 L.Ed.2d at 507. “Any juror to whom mitigating factors are likewise irrelevant should be disqualified for cause, for that juror has formed an opinion concerning the merits of the case without basis in the evidence developed at trial.” Morgan, 504 U.S. at 739, 119 L.Ed.2d at 509.

Not only must the defendant be allowed to offer all relevant mitigating

circumstance, “the sentencer [must] listen-that is the sentencer must consider the mitigating circumstances when deciding the appropriate sentence. Eddings v Oklahoma, 455 U.S. 104, 115 n.10 (1982)

[Jurors] may determine the weight to be given relevant mitigating evidence...[b]ut

they may not give it no weight by excluding such evidence from their consideration. Eddings v Oklahoma, 455 U.S. 104, 114 (1982)

[The] decision to impose the death penalty is a reasoned moral response to the

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defendant’s background, character and crime…Jurors make individualized assessments of the appropriateness of the death penalty. Penry v. Lynaugh, 109 S.Ct. 2934, 2948-9 (1988)

Procedure must require the sentencing body to consider the character and

record of the individual offender and the circumstances of the particular offense. Woodsen v North Carolina, 428 U.S. 280, 304 (1976)

In a capital sentencing proceeding before a jury, the jury is called upon to make a highly subjective, unique individualized judgment regarding the punishment that a particular person deserves. Turner v Murray, 476 U.S. 23, 33-34 (1985) (quoting Caldwell v Mississippi, 472 U.S. 320, 340 n.7 (1985).

Potential Inquiries into Mitigation Evidence: [The N.C. Supreme Court] conclude[d] that, in permitting defendant to inquire generally into jurors’ feelings about mental illness and retardation and other mitigating circumstances, he was given an adequate opportunity to discover any bias on the part of the juror…[That, combined with questions] asking jurors if they would automatically vote for the death penalty…and if they could consider mitigating circumstances.., satisfies the constitutional requirements of Morgan. State v. Skipper, 337 N.C. 1, 21-22 (1994). [Note that the only restriction…was whether a juror could “consider” a specific mitigating circumstance in reaching a decision. State v. Skipper, 337 N.C. 1, 21 (1994)] The Supreme Court had the following to say about the following question (and two other questions) originally asked by a prosecutor: “Can you imagine a set of circumstances in which…your personal beliefs [about __?] conflict with the law? In that situation, what would you do?” Although the prosecutor’s questions were hypothetical, they did not tend to commit jurors to a specific future course of action in this case, nor were they aimed at indoctrinating jurors with views favorable to the State. These questions do not advance any particular position. In fact, the questions address a key criterion of juror competency, i.e., ability to apply the law despite of their personal views. In addition, the questions were simple and clear. Chapman, 359 N.C. 328, 345-346 (2005).

Note, however, the following questions were deemed improper because 1) they

“fished” for answers to legal questions before the judge instructed the jury about the applicable law, and 2) the questions “staked-out” jurors about what kind of verdict they would render under certain named circumstances:

a) “If the State is able to prove that the defendant premeditatedly and deliberately killed three people…, would you be able to fairly consider things like sociological background, the way he grew up, if he had an alcohol problem, things like that in weighing whether he should get death or LWOP?”;

b) “Assuming the State proves three cold-blooded P&D murders, can you

conceive in your own mind the mitigating factors that would let you find your ability for a

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penalty less than death?” State v. Mitchell, 353 N.C. 309, 318-319 543 S.E.2d 830, 836-837 (2001).

The following question was allowed by the trial court: “Do you feel like whatever

we propose to you as a potential mitigating factor that you can give that fair consideration and not already start out dismissing those and saying those don’t count because of the severity of the crime.” State v Jones, 336 N.C. 229, 241 (1994).

An inquiry into jurors’ latent bias against any type of mitigation evidence may be appropriate. In Simpson, 341 N.C. 316, 340-341, 462 S.E.2d 191, 205 (1995), the “majority” of the following questions were deemed improper questions about whether jurors could consider certain mitigating circumstances due to “form” or “staking out”: a) “Do you think that the punishment that should be imposed for anyone in a criminal case in general should be effected [sic] by their mental or emotional state at the time that the crime was committed?” b) “If you were instructed by the Court that certain things are mitigating, that is they are a basis for rendering or returning a verdict of life imprisonment as opposed to death and were those circumstances established you must give them some weight or consideration, could you do that?” c) “Mr. [Juror], in this case if there was evidence to support, evidence to show that the defendant was under the influence of a mental or emotional disturbance at the time of the commission of the murder and if the Court instructed you that was a mitigating circumstance, if proven, that must be given some weight, could you follow that instruction?” d) “If the Court advises you that by the preponderance of the evidence that if you are shown that the capability of the defendant to conform his conduct to the requirements of the law was impaired at the time of the murder, and the Court instructed you that was a circumstance to which you must give some consideration, could you follow that instruction?” e) “Do you believe that a psychologist or a psychiatrist can be successful in treating people with mental or emotional disturbances?” f) “Do you personally believe, and I am talking about your personal beliefs, that if by the preponderance of evidence, that is evidence that is established, that a person who committed premeditated murder was under the influence of a mental or emotional disturbance at the time that the crime was committed, do you personally consider that as mitigating, that is as far as supporting a sentence of less than the death penalty?” g) “Now if instructed by the Court and if it is supported by the evidence, could you take into account the defendant's age at the time of the commission of the crime?” h) “Do you believe that you could fairly and impartially listen to the evidence and consider whether any mitigating circumstances the judge instructs you on are found in the jury consideration at the end of the case?” In finding “most” of the above-cited questions improper, it was important to the Supreme Court that the trial court had allowed the defense lawyers to asked jurors about their experiences with mental problems, mental health professions, and foster care. Such questions allowed the defendant to explore whether jurors had any latent bias

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against any type of mitigation evidence. Simpson, 341 N.C. at 341-342. See discussion of U.S. v. Johnson, 366 F.Supp. 822 (N.D. Iowa 2005) above for authority or argument that case-specific inquiry about mitigation should be allowed under Morgan. *For more mitigation questions, see below for “specific areas of inquiry.”

VII. Specific Areas of Inquiry

Accomplice Liability: It was proper for prosecutor to ask prospective juror if he would be able to recommend the death penalty for someone who did not actually pull the trigger since it was uncontroverted that the defendant was an accessory. The State could inquire about the jurors’ ability to impose the death penalty for an accessory to first-degree murder. State v Bond, 345 N.C. 1, 14-17, 478 S.E.2d 163 (1996):

a) “The evidence will show [the defendant] did not actually pull the trigger.

Would any of you feel like simply because he did not pull the trigger, you could not consider the death penalty and follow the law concerning the death penalty.”

b) “Regardless of the facts and circumstances concerning the case, you could not

recommend the death penalty for anyone unless it was the person who pulled the trigger.” Age of Defendant:

The following question was asked by defense counsel: “[T]he defendant will introduce things that he contends are mitigating circumstances, things like his age at the time of the crime...Do you feel like you can consider the defendant’s age at the time the crime was committed ...and give it fair consideration?” The Supreme Court assumed it was error for the trial court to sustain the State’s objection to this question. In finding it harmless, however, the Court stated, “[i]n the context that this question was propounded, the juror is bound to have known the circumstance to which the defendant referred was the age of the defendant.” State v Jones, 336 N.C. 229, 241 (1994)

Note, however, the question “Would you consider the age of the defendant to be

of any importance in this case [in deciding whether the death penalty is appropriate]?” was found to be a “stake-out” question in State v. Womble, 343 N.C. 667, 682 473 S.E.2d 291, 299 (1996). Aggravating Circumstances: The Supreme Court has held that questions about a specific aggravating circumstance that will arise in the case amounts to a stake–out question. State v. Richmond, 347 N.C. 412, 424, 495 S.E.2d 677 (1998)(“could you still consider mitigating circumstances knowing that the defendant had a prior first-degree murder conviction”); State v. Fletcher, 354 N.C. 455, 465-66 (2001)(in a re-sentencing in which

25

the first-degree murder conviction was accompanied by a burglary conviction, counsel asked, the State has “to prove at least one aggravating factor, that is…the fact that the murder was part of a burglary. That’s true in this case because [the defendant] was also convicted of burglary. Knowing that about this case, could you still consider a life sentence…?”) Cost of Life Sentence vs. Death Sentence In State v. Elliott, 360 N.C. 400, 409-10 (2006), the Supreme Court held that “we cannot say that the trial court clearly abused its discretion” when it did not allow defense counsel to ask, “Do you have any preconceived notions about the costs of executing someone compared to the cost of keeping him in prison for the rest of his life.” The Supreme Court admitted that the question was “relevant” but, in light of the inquiry the trial court allowed, it was not a clear abuse of discretion to disallow the question. See also, State v. Cummings, 361 N.C. 438, 465 (2007). On the other hand, a trial court may reverse its previous denial and allow the “costs” question. State v. Polke, 361 N.C. 65, 68 (2006). Course of Conduct Aggravator (or Multiple Murders):

Prosecutor was not staking out juror when asking: “If the State satisfied you... that the aggravating circumstances were sufficiently substantial to call for the imposition of the death penalty, then I take it you could give the defendant the death penalty for beating two humans to death with a hammer, is that correct?” State v Laws, 325 N.C. 81 (1989). Felony Murder Defined:

Prosecutor properly defined felony murder as “a killing which occurs during the commission of a violent felony, such as _____” (the felony in this case was discharging a firearm into an occupied vehicle). State v. Nobles, 350 N.C. 483, 498, 515 S.E.2d 885, 895 (1999). Forecast of Aggravating or Mitigating Circumstance(s):

In State v Payne, 328 N.C. 377, 391 (1991), the defendant argued it was improper for the prosecutor to forecast to the jury during voir dire that they might consider HAC as an aggravating factor. The Court found no error and stated: [I]t is permissible for a prosecutor during voir dire to state briefly what he or she anticipates the evidence may show, provided the statements are made in good faith and are reasonably grounded in the evidence available to the prosecutor. A defendant is not entitled to put on a mini-trial of his evidence during voir dire by using hypothetical situations to determine whether a juror would cast his vote for his theory. The trial court in Cummings allowed defense counsel to question prospective jurors about whether they had been personally involved in any of those situations [such as domestic violence, child abuse, and alcohol and drug abuse], however, the judge properly refused to allow defense counsel to ask hypothetical and speculative questions that were being used to try the mitigation evidence during jury selection. State v. Cummings, 361 N.C. 438, 464-65 (2007).

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Foster Care: It was proper to ask, Whether any jurors have had any experience with foster

care? Simpson, 341 N.C. 316, 462 S.E.2d 191, 205 (1995). Gender of Defendant [or Victim?]:

The prosecutor properly asked, “Would the fact that the Defendant is a female in any way affect your deliberations with regard to the death penalty?” This was not a stake-out question. It was appropriate to inquire into the possible sensitivities of prospective jurors toward a female defendant facing the death penalty in an effort to ferret out any prejudice arising out of defendant’s gender. State v. Anderson, 350 N.C. 152, 170-171, 513 S.E.2d 296, 307-308 (1999). HAC Aggravator:

In State v Payne, 328 N.C. 377, 391 (1991), the defendant argued it was improper for the prosecutor to forecast to the jury during voir dire that they might consider HAC as an aggravating factor. The Court found no error and stated: [I]t is permissible for a prosecutor during voir dire to state briefly what he or she anticipates the evidence may show, provided the statements are made in good faith and are reasonably grounded in the evidence available to the prosecutor. Impaired Capacity (f)(6):

Could the juror consider impaired capacity due to intoxication by drugs or alcohol as a mitigating circumstance and give the evidence such weight as you believe it is due ? Would your feelings about drugs or alcohol prevent you from considering the evidence ? State v Smith, 328 N.C. 99, 127 (1991). (See, where Court found that the following was a stake-out question: “How many of you think that drug abuse is irrevelant to punishment in this case.” State v. Ball, 344 N.C. 290, 304, 474 S.E.2d 345, 353 (1996).

Prosecuting attorney asked the jurors, “If they would consider that the defendant voluntarily consumed alcohol in determining whether the defendant was entitled to diminished capacity mitigating factor. The Supreme Court stated: “This was a proper question. He did not attempt to stake the jury out as to what their answer would be on a hypothetical question.” State v. Reeves, 337 N.C. 700 (1994). It was proper for prosecutor to ask prospective jurors whether they would be sympathetic toward a defendant who was intoxicated at the time of the offense. (If it is shown to you from the evidence and beyond a reasonable doubt that the defendant was intoxicated at the time of the alleged shooting, would this cause you to have sympathy for him and allow that sympathy to affect your verdict.) State v McKoy, 323 N.C. 1 (1988). Lessened Juror Responsibility: In closing argument and during jury selection, it is improper for a prosecutor to make statements that lessens the jury’s role or responsibility in imposing a potential death penalty or lessens the seriousness or reality of a death sentence. State v. Hines, 286 N.C. 377, 381-86, 211 S.E.2d 201 (1975) (reversible error for the prosecutor to tell a

27

prospective juror, “to ease your feelings [about imposing the death penalty], I might say…that one [person] has been put to death in N.C. since 1961”; State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975), State v. Jones, 296 N.C. 495, 497-502 (1979) (it is error for a prosecutor to suggest that the appellate process or executive clemency will correct any errors in a jury’s verdict); State v. Jones, 296 N.C. at 501-502 (prosecutor improperly discussed how 15A-2000(d) provides for an automatic appeal and how the Supreme Court must overturn a death sentence if it makes certain findings. This had the effect of minimizing in the jurors’ minds their role in recommending a death sentence). Life Sentence (Without Parole):

During jury selection, a prospective juror indicated that he did not feel that a life sentence actually meant life (prior to LWOP statute). The trial court then instructed the jury that they should consider a life sentence to mean that defendant would be imprisoned for life and that they should not take the possibility of parole into account in reaching a verdict. The juror indicated that he would have trouble following that instruction and was excused for cause. Defense counsel requested that he be allowed to ask the other prospective jurors whether they could follow the court’s instructions on parole. The trial court erroneously refused to allow the question. The Supreme Court held that the defendant has a right to inquire as to whether a prospective juror will follow the court’s instruction (i.e., life means life). State v Jones, 336 N.C. 229, 239-40 (1994).

In several cases, the Supreme Court has upheld the refusal to allow defense

counsel to ask about jurors’ “understanding of the meaning of a sentence of life without parole”, “conceptions of the parole eligibility of a defendant serving a life sentence”, or their feelings about whether the death penalty is more or less harsh that life in prison without parole.” State v. Neal, 346 N.C. 608, 617-18 (1997); State v. Jones, 358 N.C. 330 (2004); State v. Garcell, 363 N.C. 10, 30-32 (2009). These decisions were based on the principle that a defendant does not have the constitutional right to question the venire about parole. State v. Neal, 346 N.C. at 617.

In light of this, a safe inquiry might avoid the topic of “parole” and simply ask

jurors about “their views of a life sentence for first-degree murder.”

Another safe inquiry might be based on 15A-2002 which provides that “the judge shall instruct the jury…that a sentence of life imprisonment means a sentence of life without parole.” There is no doubt that the jury will hear this instruction and, generally, the parties should be allowed to inquire whether jurors hold misconceptions that will affect their ability to “follow the law.” “Questions designed to measure a prospective juror’s ability to follow the law are proper within the context of jury selection voir dire.” See, State v. Jones, 347 N.C. 193, 203 (1997), citing State v. Price, 326 N.C. 56, 66-67, 388 S.E.2d 84, 89, vacated on other grounds, 498 U.S. 802 (1990); State v. Henderson, 155 N.C.App. 719, 727 (2003) A juror’s misperception about a life sentence with no possibility of parole may substantially impair his or her ability to follow the law. Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007). In Uttecht, despite a juror being informed four

28

or five times that a life sentence meant “life imprisonment without the possibility of parole,” the juror continued to say that he would support the death penalty if the defendant would be released to re-offend. That juror was properly removed for cause. 167 L.E.d2d at 1025-30. In a pre-LWOP case, the prosecutor improperly argued that the defendant could be paroled in 20 years if the jury awarded him a life sentence. The Supreme Court stated that, “The jury’s sentence recommendation should be based solely on their balancing the aggravating and mitigating factors before them. The possibility of parole is not such a factor, and it has no place in the jury’s recommendation of their sentence to be imposed.” State v. Jones, 296 N.C. 495, 502-503 (1979). This principle might provide authority for inquiring into jurors’ erroneous beliefs about parole to determine if they can follow the law. Mental or Emotional Disturbance:

If the court instructs you that you should consider whether or not a person is suffering from mental or emotional disturbance in deciding whether or not to give someone the death penalty, do you feel like you could follow the instruction? State v Skipper, 337 N.C. 1, 20 (1994)).

The following were proper mental health related questions as found in Simpson, 341 N.C. 316, 462 S.E.2d 191, 205 (1995):

1) Whether the jurors had any background or experience with mental problems in their families ?

2) Whether the jurors have any bias against or problem with any mental health professionals ? Murder During Felony Aggravator (e)(5):

Prosecutor informed jury about aggravating factors and indicated that the State is relying upon...the capital felony was committed while the defendant was engaged, or was an aider and abettor in the commission of, or attempt to commit...any homicide, robbery, rape.... Supreme Court said that the prosecutor during jury voir dire should limit reference to aggravating factors, including the underlying felonies listed in G.S. 15A-2000(e)(5), to those of which there will be evidence and upon which the prosecutor intends to rely. Payne, 328 N.C. 377 (1991) No Significant Criminal Record: The following question was deemed improper as hypothetical and an impermissible attempt to indoctrinate a juror: “Would the fact that the defendant had no significant history of any criminal record, would that be something that you would consider important in determining whether or not to impose the death penalty?” State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989). Personal Strength to Vote for Death:

Prosecutor asked: “Are you strong enough to recommend the death penalty ?”

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State v Smith, 328 N.C. 99, 128 (1991). This repeated inquiry by prosecutor is not an attempt to see how jurors would be inclined to vote on a given state of facts. State v. Fleming, 350 N.C. 109, 125, 512 S.E.2d 720, 732 (1999). Prosecutors were allowed to ask jurors “whether they possessed the intestinal fortitude [or “courage”, or “backbone”] to vote for a sentence of death.” When jurors equivocated on the imposition of the death penalty, prosecutors were allowed to ask these questions to determine whether they could comply with the law. State v. Murrell, 362 N.C. 375, 389-91 (2008); State v. Oliver, 309 N.C. 326, 355 (1983); State v. Flippen, 349 N.C. 264, 275 (1998); State v. Hinson, 310 N.C. 245, 252 (1984). Religious Beliefs:

The defendant’s “right of inquiry” includes “the right to make appropriate inquiry concerning a prospective juror’s moral or religious scruples, morals, beliefs and attitudes toward capital punishment.” State v. Vinson, 287 N.C. 326, 337, 215 S.E.2d 60, 69 (1975), death sentence vacated, 428 U.S. 902, 49 L.Ed.2d 1206 (1976). The issue is whether the prospective juror’s religious views would impair his ability to follow the law. State v. Fletcher, 354 N.C. 455, 467 (2001). This right of inquiry does not extend to all aspects of the jurors’ private lives or of their religious beliefs. State v. Laws, 325 N.C. 81, 109, 381 S.E.2d 609, 625 (1989).

General questions about the effect of a juror’s religious views on his ability to follow the law are favored over detailed questions about Biblical concepts or doctrines. It was held improper to ask about a juror’s “understanding of the Bible’s teachings on the death penalty.” State v. Mitchell, 353 N.C. 309, 318, 543 S.E.2d 830, 836 (2001). The Defendant, however, was allowed to ask the juror about her religious affiliation and whether any teachings of her church would interfere with her ability to perform her duties as a juror. In State v. Laws, 325 N.C. 81, 109, 381 S.E.2d 609, 625-626 (1989), sentence vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990), the trial court did not abuse its discretion by not allowing defense counsel to ask a juror “whether she believed in a literal interpretation of the Bible.”

In State v. Fletcher, 354 N.C. 455, 467, 555 S.E.2d 534, 542 (2001), defense counsel was allowed to inquire into a juror’s religious affiliation and his activities with a Bible distributing group, but the trial court properly disallowed the question, whether the juror is a person “who believes in the Biblical concept of an eye for an eye.” On the other hand, another trial court did not allow counsel to ask questions about jurors’ “church affiliations and the beliefs espoused by others [about the death penalty] representing their churches.” State v. Anderson, 350 N.C. 152, 171-172, 513 S.E.2d 296, 308 (1999). Sympathy for the Defendant [or the Victim?]:

An inquiry into the sympathies of prospective jurors is part of the exercise of (the prosecutor’s) right to secure an unbiased jury. State v. Anderson, 350 N.C. 152, 170-171, 513 S.E.2d 296, 307-308 (1999). (Arguably, the same right applies to the defendant.)

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Prosecutor properly asked, “Would you feel sympathy towards the defendant simply because you would see him here in court each day…?” Jurors may consider a defendant’s demeanor in recommending a sentence. The question did not “stake out” jurors so that they could not consider the defendant’s appearance and humanity. The question did not address definable qualities of the defendant’s appearance and demeanor. It addressed jurors’ feelings toward the defendant, notwithstanding his courtroom appearance or behavior. Chapman, 359 N.C. 328, 346-347. LIST OF CASES Federal Courts Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) Eddings v Oklahoma, 455 U.S. 104 (1982) Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) Mu’min v. Virginia, 500 U.S. 415, 111 U.S. 1899, 114 L.Ed.2d 493 (1991) Penry v. Lynaugh, 109 S.Ct. 2934 (1988) Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1783, 90 L.Ed.2d 27 (1986) Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) Woodsen v North Carolina, 428 U.S. 280 (1976) United States v. Jackson, 542 F.2d 403 (7th Cir. 1976) United States v. Robinson, 475 F.2d 376 (D.C. Cir. 1973) United States v. Johnson, 366 F.Supp. 2d 822 (N.D. Iowa 2005) Uttecht v. Brown, 551 U.S. 1, 127. S.Ct. 2218, 167 L.Ed.2d 1014 (2007) North Carolina Courts State v. Anderson, 350 N.C. 152, 513 S.E.2d 296 (1999) State v. Avery, 315 N.C. 1, 337 S.E.2d 786 (1985) (note 6-7) State v. Ball, 344 N.C. 290, 474 S.E.2d 345 (1996) State v. Blankenship, 337 N.C. 543, 447 S.E.2d 727 (1994) (note 2) State v Bond, 345 N.C. 1, 478 S.E.2d 163 (1996) State v. Brogden, 334 N.C. 39, 430 S.E.2d 905 (1993) (notes 1-2) State v. Burr, 341 N.C. 263, 285-86 (1995) State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001) State v. Chapman, 359 N.C. 328 (2005) (note 2) State v. Cheek, 351 N.C. 48, 520 S.E.2d 545 (1999) State v Clark, 319 N.C. 215 (1987) State v. Conner, 335 N.C. 618, 440 S.E.2d 826 (1994) (notes 1-4, 7-9, 19-21) State v. Cummings, 361 N.C. 438, 457-58 (2007) State v. Cunningham, 333 N.C. 744, 429 S.E.2d 718 (1993) State v. Davis, 325 N.C. 607, 386 S.E.2d 418 (1989) (notes 5, 8) State v. Denny, 294 N.C. 294, 240 S.E.2d 437 (1978) (note 1)

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State v Edwards, 27 N.C. App. 369 (1975) State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996) State v. Elliott, 360 N.C. 400, 628 S.E.2d 735 (2006) State v. Fleming, 350 N.C. 109, 512 S.E.2d 720 (1999) State v. Fletcher, 354 N.C. 455, 555 S.E.2d 534 (2001) State v. Garcell, 363 N.C. 10 (2009) State v. Gell, 351 N.C. 192 (2000) State v. Gibbs, 335 NC 1, 436 SE2d 321 (1993), cert. denied, 129 L.Ed.2d 881 (1994) State v. Green, 336 N.C. 142, 161 (1994) State v Hatfeld, 128 N.C. App. 294 (1998) State v Hedgepath, 66 N.C. App. 390 (1984) State v. Henderson, 155 N.C. App. 719, 724-727 (2003) State v Hightower, 331 N.C. 636 (1992) State v. Hines, 286 N.C. 377, 381-86, 211 S.E.2d 201 (1975) State v. Johnson, __ N.C.App. __, 706 S.E.2d. 790 (2011) State v. Jones, 296 N.C. 495, 497-502 (1979) State v Jones, 336 N.C. 229 (1994) State v. Jones, 347 N.C. 193, 491 S.E.2d 641 (1997) State v. Jones, 358 N.C. 330 (2004) State v. Laws, 325 N.C. 81, 381 S.E.2d 609 (1989), sentence vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990) State v Leonard, 295 N.C. 58 (1978) State v. Maness, 363 N.C. 261 (2009) State v. McKinnon, 328 N.C. 668, 675-76, 403 S.E.2d 474 (1991) State v McKoy, 323 N.C. 1 (1988) State v. Mitchell, 353 N.C. 309, 543 S.E.2d 830 (2001) State v. Murrell, 362 N.C. 375 (1008) State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1998) State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999) State v. Parks, 324 N.C. 420, 378 S.E.2d 785 (1989) (notes 1-2) State v. Payne, 328 N.C. 377 (1991) State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980) (note 1) State v. Polke, 361 N.C. 65 (2006) State v Reaves, 337 N.C. 700 (1994) State v. Richmond, 347 N.C. 412, 424, 495 S.E.2d 677 (1998) State v. Roberts, 135 N.C. App. 690, 522 S.E.2d 130 (1999) State v Robinson, 339 N.C. 263 (1994) State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986) (note 12) State v Skipper, 337 N.C. 1 (1994) State v. Simpson, 341 N.C. 316, 426 S.E.2d 191 (1995) (notes 1-10) State v Smith, 328 N.C. 99 (1991) State v. Taylor, 332 N.C. 372, 420 S.E.2d 414 (1992) (note 10) State v. Teague, 134 N.C. App. 702 (1999) State v Thomas, 294 N.C. 105 (1978) State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975), death penalty vacated,

428 U.S. 902, 49 L.Ed.2d 1206 (1976) (notes 2-10)

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State v. Ward, 354 N.C. 231, 555 S.E.2d 251 (2001) State v. Washington, 283 N.C. 175, 195 S.E.2d 534 (1973) (note 7) State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975) State v. Wiley, 355 N.C. 592 (2002) State v Williams, 41 N.C. App. 287, disc. rev. denied, 297 N.C. 699 (1979) State v Willis, 332 N.C. 151 (1992) State v. Womble, 343 N.C. 667, 473 S.E.2d 291 (1996)

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Jury Selection: Challenges for Cause (7-11-10) Michael G. Howell Capital Defender’s Office 123 West Main Street, Ste. 601, Durham, NC 27701 (919) 354-7220 Basis for Challenge for Cause. 15A-1212 (6) The juror has formed or expressed an opinion as to the guilt or innocence of the defendant. (You may NOT ask what the opinion is.) (8) As a matter of conscience, regardless of the facts and circumstances, the juror would be unable to render a verdict with respect to the charge in accordance with the law of N.C. (9) For any other cause, the juror is unable to render a fair and impartial verdict. GOAL for Challenge for Cause…Have the juror agree that the juror: 1) has formed an opinion about guilt (or “expressed” an opinion),

2) would be unable to follow the law about ____, or 3) would be unable to be fair and impartial. The STEPS to obtain a for cause challenge 1) Repeat the juror’s bias or impaired position. Use their EXACT words “My son was a cocaine addict…I despise anyone ever remotely involved in it.” 2) Follow up with OPEN-ENDED questions to get the juror to further explain views. Tell me more…What happened…Why…? NO leading at this point “Tell us about your son’s problem…How did he get into using cocaine…What happened…How is he today…? 3) Acknowledge the validity of the juror’s position and compare it to other jurors Ira calls it…“Normalize the impairment” Do NOT argue or be judgmental…Some empathy but NOT condescending Recognize their sharing of a very personal experience See if other jurors have the same or similar views “Thank you for your honesty and for sharing your personal experience about your son. It is understandable that you feel the way you do. Does anyone else feel the same way about people charged with selling drugs?” 4) Lock the juror’s biased answer into a challenge for cause basis Switch to LEADING questions from here on Repeat the juror’s biased views and emphasize the strength of the views If the juror tries to wiggle out or qualify the answer, strip or take away their

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qualifier and repeat the essence of their views “Your son’s struggles with cocaine has caused you to have very strong and personal feelings against anyone charged with a drug crime.” 5) Suggest how the bias or impairment “might” provide the grounds for challenge First, just raise the issue…do not go for the kill The bias may provide more than one basis for challenge [see below examples] Use leading questions but do not be confrontational You may have to re-validate the juror’s belief and right to hold those beliefs “Your feelings about someone charged with a drug crime might affect your ability to be a neutral juror in this case? [or your ability to presume innocence…or may make you lean toward an opinion of guilt before the trial starts…or prevent you from considering all the evidence]” 6) Get the juror to agree that their bias will affect their ability to serve This may be tricky…you have to go from “might affect” to “would affect” It might take several closely worded questions quantifying the effect...from “might” to “possible” to “probable” to “likely” to “substantially”, etc. You need to discuss how every case is not a right fit for every juror Another type of case would be better for that juror…a case not involving that bias Do not argue with the juror…You need the juror to agree with you You may need to praise their honesty or right to hold their beliefs “Your views about someone charged with a drug crime would affect your ability to be a neutral juror in this case? [or your ability to presume innocence…or may make you lean toward an opinion of guilt before the trial starts…]” This should provide the basis for a challenge for cause but beware “rehabilitation” 7) Protect your challenged juror’s answers from “rehabilitation” Commend the juror’s honesty and willingness to talk about this personal issue Remind juror of appropriateness of having strong views Lock juror in on strength of views and views are part of who they are Reassure juror that there is nothing wrong with having views that differ from lawyers, other jurors, or judge from the rules about jury service Note that the juror does not appear the type who change opinions for convenience Make your Challenge for CAUSE

SENTENCING

Voir Dire

How to Ask Life Experience Questions on Voir Dire

A. Start with an IMPERATIVE COMMAND:

“Tell us about,” “Share with us,” “Describe for us”

The reason we start the question with an imperative command is to make sure that the juror feels it is

proper and necessary to give a narrative answer, not just a “yes” or “no.”

B. Use a SUPERLATIVE to describe the experience you want them to talk about:

“The best,” “The worst,” “The most serious”

The reason we ask the question in terms of a superlative is to make sure we do not get a trivial

experience from the juror.

C. Ask for a PERSONAL EXPERIENCE

“That you saw,” “That happened to you,” “That you heard of,” “That you know of”

This is the crucial part of the question where you ask the juror to relate a personal experience. Be sure

to keep the question open‐ended, not leading.

D. Or ask for an EXPERIENCE OF A FAMILY MEMBER OR SOMEONE CLOSE to the juror

“That you or someone close to you saw,” “That happened to you or someone you know”

This gives the jurors the chance to relate an experience that had an effect on their perceptions but may

not have directly happened to them. It also lets the jurors avoid embarrassment by attributing one of

their experiences to someone else.

E. PUTTING THE QUESTION TOGETHER

See sample questions, below.

Some Sample Life Experience Voir Dire Questions

A. Race

1. Tell us about the most serious incident you ever saw where someone was treated badly

because of his or her race (or gender, religion, etc.).

2. Tell us about the worst experience you or someone close to you ever had because someone

stereotyped you or someone close to you because of your race (or gender, religion, etc.).

3. Tell us about the most significant interaction you have ever had with a person of a different

race.

4. Tell us about the most difficult situation where you, or someone you know, stereotyped

someone, or jumped to a conclusion about them because of his or her race (or gender, religion, etc.) and

turned out to be wrong.

B. Alcohol/Alcoholism

1. Tell us about a person you know who is a wonderful guy when sober, but changes into a

different person when drunk.

2. Share with us a situation where you or a person you know of was seriously affected because

someone in the family was an alcoholic.

C. Self‐Defense

1. Tell me about the most serious situation you have ever seen where someone had no choice

but to use violence to defend himself or herself (or someone else).

2. Tell us about the most frightening experience you or someone close to you had when

threatened by another person.

3. Tell us about the craziest thing you or someone close to you ever did out of fear.

4. Tell us about the bravest thing you ever saw someone do out of fear.

5. Tell us about the bravest thing you ever saw someone do to protect another person.

D. Jumping to Conclusions

1. Tell us about the most serious mistake you or someone you know has ever made because you

jumped to a snap conclusion.

E. False Suspicion or Accusation

1. Tell us about the most serious time when you or someone close to you was accused of doing

something bad that you had not done.

2. Tell us about the most difficult situation you were ever in, where it was your word against

someone else’s, and even though you were telling the truth, you were afraid that no one would believe

you.

3. Tell us about the most serious incident where you or someone close to you mistakenly

suspected someone else of wrongdoing.

F. Police Officers Lying/Being Abusive

1. Tell us about the worst encounter you or anyone close to you has ever had with a law

enforcement officer.

2. Tell us about the most serious experience you or a family member or friend had with a public

official who was abusing his authority.

3. Tell us about the most serious incident you know of where someone told a lie, not for

personal gain, but because he or she thought it would ultimately bring about a fair result.

G. Lying

1. Tell us about the worst problem you ever had with someone who was a liar.

2. Tell us about the most serious time that you or someone you know told a lie to get out of

trouble.

3. Tell us about the most serious time that you or someone you know told a lie out of fear.

4. Tell us about the most serious time that you or someone you know told a lie to protect

someone else.

5. Tell us about the most serious time that you or someone you know told a lie out of greed.

6. Tell us about the most difficult situation you were ever in where you had to decide which of

two people were telling the truth.

7. Tell us about the most serious incident where you really believed someone was telling the

truth, and it turned out he or she was lying.

8. Tell us about the most serious incident where you really believed someone was lying, and it

turned out he or she was telling the truth.

H. Prior Convictions/Reputation

1. Tell us about the most inspiring person you have known who had a bad history or reputation

and really turned himself around.

2. Tell us about the most serious mistake you or someone close to you every made by judging

someone by his or her reputation, when that reputation turned out to be wrong.

I. Persuasion/Gullibility/Human Nature

1. Tell us about the most important time when you were persuaded to believe that you were

responsible for something you really weren’t responsible for.

2. Tell us about the most important time when you or someone close to you was persuaded to

believe something about a person that wasn’t true.

3. Tell us about the most important time when you or someone close to you was persuaded to

believe something about yourself that wasn’t true.

J. Desperation

1. Tell us about the most dangerous thing you or someone you know did out of hopelessness or

desperation.

2. Tell us about the most out‐of‐character thing you or someone you know ever did out of

hopelessness or desperation.

3. Tell us about the worst thing you or someone you know did out of hopelessness or

desperation.

How to Lock in a Challenge for Cause

Step #1. Mirror the juror’s answer: “So you believe that . . . .”

a. Use the juror’s exact language

b. Don’t paraphrase

c. Don’t argue

Step #2. Then ask an open‐ended question inviting the juror to explain (no leading questions at this

point):

“Tell me more about that”

“What experiences have you had that make you believe that?”

“Can you explain that a little more?”

Step #3. Normalize the impairment

a. Get other jurors to acknowledge the same idea, impairment, bias, etc.

“Ms. Smith feels that the police would not arrest a person if he were not guilty. Do you feel that

way as well, Mr. Barnes?”

b. Don’t be judgmental or condemn it.

“I see. Thank you for sharing that, Ms. Smith.”

Step #4. Now switch to leading questions to lock in the challenge for cause:

a. Reaffirm where the juror is:

“So you would need the defendant to testify that he acted in self‐defense before you could

decide that this shooting was in self‐defense”

b. If the juror tries to weasel out of his impairment, or tries to qualify his bias, you must strip away the

qualifications and force him back into admitting his preconceived notion as it applies to this case:

Q: “So you would need the defendant to testify that he acted in self‐defense before you could

decide that this shooting was in self‐defense.”

A: “Well, if the victim said it might be self‐defense, or if there was some scientific evidence that

showed it was self‐defense, I wouldn’t need your client to testify.”

Q: “How about where there was no scientific evidence at all, and where the supposed victim

absolutely insisted that it was not self‐defense. Is that the situation where you would need the

defendant to testify before finding self‐defense?”

c. Reaffirm where the juror is not (i.e., what the law requires).

“And it would be very difficult, if not impossible, for you to say this was self‐defense unless the

defendant testified that he acted in self‐defense.”

d. Get the juror to agree that there is a big difference between these two positions.

“And you would agree that there is a big difference between a case where someone testified

that he acted in self‐defense and one where the defendant didn’t testify at all.”

e. Immunize the juror from rehabilitation

“It sounds to me like you are the kind of person who thinks before they form an opinion, and

then won’t change that opinion just because someone might want you to agree with them. Is

that correct?”

“You wouldn’t change your opinion just to save a little time and move this process along?”

“You wouldn’t let anyone intimidate you into changing your opinion just to save a little time and

move the process along?”

“Are you comfortable swearing an oath to follow a rule 100% even though it’s the opposite of

the way you see the world?”

“Did you know that the law is always satisfied when a juror gives an honest opinion, even if that

opinion might be different from that of the lawyers or even the judge? All the law asks is that

you give your honest opinion and feelings.”

A Rating System for Non‐Capital Jurors

1. LEGALLY EXCLUDABLE AS BIASED FOR THE DEFENSE. This juror openly expresses the view that he will or cannot vote for conviction.

2. This juror overtly expresses views favorable to accused people in general (“I see the police shooting/framing too many people in my community”), or favorable to what your client is accused of doing (“I don’t think anyone should go to jail for marijuana,”), but also says she will follow the judge’s instructions and convict if the evidence warrants.

3. This juror comes across as truly open‐minded. He is willing to convict, but is aware of and concerned with the effect of a conviction on the client’s life. He may be an intelligent abstract thinker, or a less analytical but compassionate, person. He will be tolerant of and listen to the views of those he disagrees with.

4. Moderately pro‐prosecution. This juror believes that crime is a serious problem and generally thinks the police do a good job. She does not, however, have any particular axe to grind concerning your client or the kind of crime your client is accused of committing. She wants to be sure of guilt before convicting and can recount experiences/stories of someone being falsely accused about a serious matter.

5. Pro‐prosecution. This juror not only believes that crime is a serious problem, but has a personal experience, connection, or belief that gives him an axe to grind concerning your client or the kind of crime your client is accused of committing. Often, she will have had very little personal contact with members of your client’s racial or ethnic group and, if she has had contact, she recalls it in the context of a negative experience. This juror is often afraid: afraid of crime, afraid of people of different races and backgrounds, afraid of poor people. It is important to get these jurors talking about their experiences. They will often say something that establishes a challenge for cause.

6. Very pro‐prosecution. This juror is a version of #5 on steroids. She not only believes crime is a very serious problem, but talks aggressively about the need to do something about it. She speaks in cop‐talk (as derived from television) and speaks in general terms about the importance of holding people responsible for their actions. These jurors may also associate themselves (at least figuratively, sometimes literally) with law‐enforcement issues, institution, and people. They may get their news and information from right‐wing talk radio and may blame specific classes of people (liberals, minorities) for problems of crime and lawlessness.

LEGALLY EXCLUDABLE AS BIASED FOR THE STATE. This juror either openly expresses the view

that he will vote for conviction or will not follow the judge’s instructions; or has some factual

characteristic that makes him automatically disqualified (involved with the prosecution or police

investigation of this case, etc.).

PRESERVING THE RECORD

PRESERVING ERROR FOR APPEAL: A CHECKLIST Staples Hughes, Appellate Defender

New Felony Defender Training, School of Government, Chapel Hill, February 10, 2012

T H E B I G P I C T U R E

PRESERVING THE RECORD FOR APPEAL IS PART OF YOUR JOB AS TRIAL COUNSEL. IT IS PART OF THE DUTY OF LOYALTY AND COMPETENCE YOU OWE YOUR CLIENT.

1. Common misapprehensions.

A. “We’ll save that for appeal.” NO. WRONG. B. “They can raise that in an MAR.” NO, NOT IF YOU KNOW

ABOUT “THAT.” C. “They can raise that in federal court.” HELL NO.

2. Why do trial counsel fail to fully preserve issues?

A. Trying cases is stressful and complex and exhausting. B. Trial counsel may not aware of the importance of the mechanics of

fully preserving issues. That’s what this checklist is for.

3. BE PARANOID. NEVER assume that an issue is preserved as a matter of law. It almost certainly isn’t.

4. Preservation is MORE important in tough cases. The appellate

courts are not going to cut your client a break because the stakes are high.

5. ABLE TO WRITE DOWN YOUR THEORY OF THE CASE IN ONE PAGE? NO? THEN YOU AREN’T READY FOR TRIAL. Too basic or even silly? You will discover the strengths and expose the weaknesses in your case (and will be better prepared to preserve error).

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FUNDAMENTAL PRINCIPLES FOR PRESERVING EVIDENTIARY ISSUES

I. You have to object or make a request.

A. An objection or request must be timely. B. Specific grounds must be articulated in some fashion.

Just “Objection” won’t do. Just “Because it’s admissible” won’t do. More below.

C. If the answer to the objectionable question is inadmissible for additional reasons, you have to object on the additional grounds (see below re: motion to strike).

D. You must comply with procedural requirements (like “written,” in the case of jury instructions).

E. You must reassert the objection or request consistently when the same or a similar issue comes up. THIS IS A COMMON PROBLEM. You cannot give up on the objection, or we lose it on appeal. Even if the judge says you don’t have to, you have to.

F. You must renew before the jury an objection to a ruling on pre-trial motion or issue. This includes rulings on motions in limine and suppression motions. You should renew, outside the jury’s presence, all requests to admit evidence previously excluded by rulings on the prosecution’s motions in limine.

G. Forget Evidence Rule 103(a) [last paragraph]. State v. Tutt, 615 S.E.2d 688 (2005) (rule violates N.C. Constitution).

H. No objection at trial = plain error or ex mero motu or, if we are lucky, some equivalent impossible standard of review on appeal = client loses. DOA (dead on appeal).

II. Why stating the grounds REALLY MATTERS.

A. A general objection to the prosecution’s evidence, overruled, is no good unless the evidence wasn’t admissible for any reason.

B. A specific objection, overruled, is no good if you miss another objection for admission of the evidence.

C. If you do not articulate a specific ground for admissibility of defense evidence that is excluded, we lose that ground on appeal.

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III. If the state’s objection is sustained, you have to make an offer of proof to show what you wanted to do.

A. Don’t rely on the context to make the record. B. Don’t rely on your own summary unless you have to, that is, unless

the judge makes you summarize (object to that restriction), or unless there is some other good reason to summarize (like the witness was taken to the hospital with a suspected heart attack when the judge wouldn’t let him testify).

C. Best: get the witness to testify out of the jury’s presence. D. If the court shuts you down: “Your Honor, we want the record to

reflect that we tried to make an offer of proof concerning the excluded testimony [or evidence] [or argument].” (GREAT issue).

E. If the court tells you to make your offer of proof later (e.g. “when we recess for lunch”), remember that the burden’s on YOU to bring it to the court’s attention again.

F. State that the exclusion of the evidence violates whatever evidence rule or doctrine is in play, and the defendant’s right to present a defense under the Fifth, Sixth, Eighth, and Fourteenth Amendments. If you do not state the constitutional basis for admissibility, we cannot argue that basis on appeal (see V, just below).

IV. You Have To Get A Ruling on Your Objection. If you don’t insist on a ruling, your client will have no issue on appeal. Keep a list going of the things you have to do to preserve your objections, e.g. if the judge says you can put something on the record at a later time, make a note.

V. CONSTITUTIONALIZE!

A. Substantive issues and the prejudice standard are at stake. B. Non-constitutional: we have to show a reasonable possibility of a

different result. C. Constitutional: the state has to show harmlessness beyond a

reasonable doubt. D. If you don’t raise it, we can’t argue it on appeal. E. NEVER MAKE AN OBJECTION THAT DOES NOT STATE A

CONSTITUTIONAL GROUND (more on this later).

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VI. Limiting Instructions Are Potentially Crucial.

A. A limiting instruction restricts the legal relevance and use of evidence.

B. A request for a limiting instruction is not an empty exercise – potentially significant for sufficiency and closing argument.

C. If you don’t request a limiting instruction, the evidence can be used for any purpose (think about corroborative statements).

D. And in that vein, make specific motions to excise non-corroborative or otherwise objectionable portions of purportedly corroborative statements.

VII. Motions to Strike are Potentially Crucial.

A. If the prosecutor’s question was OK, but the answer was objectionable you must move to strike (“Move to strike the answer.”) or we cannot raise the issue on appeal (if the court denies the motion to strike).

B. If the court sustains your objection, but the witness answers anyway, you must move to strike, or we lose the issue on appeal (and may have a good issue if the judge denies the motion to strike).

C. Be alert for the question that itself was objectionable. Object as soon as it is clear that the question is objectionable.

D. You have to decide whether a cautionary instruction does more harm than good.

VIII. Even if your objection was sustained and your motion to strike was granted, if what the jury heard was sufficiently catastrophic, ask that the jury be excused and move for a mistrial, asserting that the damage cannot be undone and is a violation of constitutional rights.

IX. When your objection is overruled, and what the jury heard was sufficiently catastrophic, also move for a mistrial.

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PRESERVING OTHER ISSUES BEFORE (AND MAYBE DURING) CLOSING ARGUMENT

I. Jury Instructions

A. Requests must be in writing. Write out what you want the judge to say. If it’s in writing, it’s preserved if the judge refuses to give it.

B. If it’s a pattern instruction, submit the request in writing, quoting the text of the pattern instruction.

C. Oral requests are void. Oral requests are void. Oral requests are void.

D. If you know something objectionable is coming, make your objection in writing. If not, an oral objection during the charge conference is sufficient to preserve the issue.

E. Insist that the judge commit in writing to the precise words he or she is going to use so you can have an adequate opportunity to lodge specific objections.

II. When something “non-verbal” and prejudicial happens in the courtroom, put it on the record, and move for whatever corrective action is appropriate.

A. What needs to be stated for the record, or filed with the clerk, or put into evidence outside the presence of the jury so that someone reading the transcript and looking at the court file will understand?

B. Displays of emotion by spectators. C. Actions of the prosecutor (e.g. yelling on cross, pointing at a

particular juror in argument, intimidation of a witness when standing at the witness stand).

D. Shackling of the client, particularly if the court refuses a hearing on necessity.

E. Etc. etc. etc. etc. etc.

III. State on the record with the jury absent what happened at significant bench conferences.

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IV. If something bad happens outside the courtroom (prejudicial contact with jurors, for instance), insist on an evidentiary hearing. If the judge denies an evidentiary hearing, put on the record your summary of the facts you know. Consider moving for a mistrial if whatever happened cannot be cured by a less drastic remedy.

V. Get Powerpoint presentations by the prosecution in the record (copies of the slides and copies of the software). Get a picture of other visual aids used by the prosecution in the record. Get copies of audio and video record filed with the clerk of court. If possible, make indices of the portions played before the jury if the whole recording isn’t played.

VI. MOVE TO DISMISS AT THE END OF THE EVIDENCE ON THE GROUND THAT THE EVIDENCE IS INSUFFICIENT, WHETHER THAT’S AT THE END OF STATE’S EVIDENCE OR YOUR EVIDENCE OR THE STATE’S REBUTTAL, ETC. WHEN ALL THE EVIDENCE IS IN, MOVE TO DISMISS. EVERY TIME. Make a specifc argument if appropriate, but always add or begin with, “The defendant moves that the evidence was insufficient on every element of the offense in violation of the Sixth and Fourteenth Amendments.”

VII. Jury Selection: Trial Strategy Comes First

A. Fight tooth and nail for the questions you want to ask. B. Constitutionalize the adverse rulings. C. Under current law, restrictions on questioning are not preserved

unless you exhaust peremptory challenges. D. Don’t worry about the current law – don’t exhaust peremptory

challenges to preserve the issue if you will lose good jurors or open yourself up to bad prospective jurors.

E. Don’t exhaust peremptories to preserve a denied cause challenge if you will lose a good juror or open yourself up to bad prospective jurors.

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F. Preserving the denied cause challenge:

1. You must peremptorily excuse the juror unless you are already out of peremptory challenges.

2. If you are out of peremptory challenges when you make the cause challenge, state on the record that you would excuse the juror if you had any peremptory challenges left (probably not necessary, but a nice touch).

3. If you are not out of peremptories, again, you must excuse the juror.

4. When you exhaust peremptories, you must renew the cause challenge and have it denied.

VIII. Batson

A. The race and gender of every prospective juror must be in the record.

B. Questionnaires can be the vehicle, but you must make them a part of the record.

C. Object if the judge does not find a prima facie case.

D. If the court finds a prima facie case or asks the prosecutor for an explanation or the prosecutor volunteers an explanation, ask for an opportunity to rebut.

E. Renew previous objections when making subsequent objections.

F. Renew the objections at the end of jury selection.

G. Read State v. Barden, 362 N.C. 277, 279-80, 658 S.E.2d 654 (2008), the core of which is as follows:

“On remand, a judge presiding over a criminal session shall consider the voir dire responses of prospective juror Baggett and those of Teresa Birch, a white woman seated on defendant's jury, in light of Snyder v. Louisiana, 552 U.S. ___, 128 S.Ct. 1203, L. Ed. 2d (2008), Rice v. Collins, 546 U.S. 333, 163 L. Ed. 2d 824 (2006), and Miller-El v. Dretke, 545 U.S. 231, 162 L. Ed. 2d 196 (2005), cases decided after defendant's prior Batson hearing. The State shall have an opportunity to offer race-neutral reasons for striking juror Baggett while seating juror Birch. The court should determine whether these

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explanations are race-neutral under the framework set forth in these United States Supreme Court decisions, which were not available to it at the time of the 2003 hearing. If the court upholds the strikes after this new hearing under Batson in light of Snyder, Rice, and Miller-El, the defendant's sentence will stand. If not, he is entitled to a new trial.”

H. The big point is that the courts have now proclaimed comparative analysis of the prosecutor’s exercise of a peremptory against a black juror when a very similar white juror was not struck is a very relevant part of the analysis.

IX. Get times in the record, e.g.:

A. How long did jurors deliberate, accounting for recesses, reinstruction, lunch, etc.? (always get this)

B. How long did jurors take looking at prejudicial photographs? C. Even how long did a witness sit in silence after you posed the

crucial question?

X. Get into the record jury notes and communications with the judge.

XI. Use jury selection to let jurors know the lawyers may be objecting during the trial.

A. They have all watched TV. B. If you are doing your job, most of them will like you. C. They can stand some drama.

XII. OBJECT TO IMPROPER JURY ARGUMENT!

A. Appellate counsel with some frequency read objectionable closing argument of prosecutors where there is no objection by trial counsel. Object to bad argument. Object Object Object.

B. “Although he did not object at the time, defendant now argues that the argument by the prosecutor was grossly improper. Where a defendant fails to object, an appellate court reviews the prosecutor's arguments to determine whether the

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argument was so grossly improper that the trial court committed reversible error in failing to intervene ex mero motu to correct the error. Only an extreme impropriety on the part of the prosecutor will compel this Court to hold that the trial judge abused his discretion in not recognizing and correcting ex mero motu an argument that defense counsel apparently did not believe was prejudicial when originally spoken.”

[from a recent decision, which sounds like many other decisions]

C. To sum up, no objection = ex mero motu standard of review = we lose.

D. Pre-argument motions to prohibit bad argument are fine for whatever deterrence value they may have, but do not count on them to preserve objections to bad argument.

E. Specifically, if the prosecutor has a reputation for improper argument, file a motion before argument asking for a ruling prohibiting what he does, tailored to the specific facts of the case (e.g. name-calling, using evidence outside the purpose for which it is admitted). Whether or not the judge denies your motion in whole or in part, YOU MUST OBJECT DURING THE ARGUMENT TO THOSE PARTS THAT ARE OBJECTIONABLE. Otherwise the appellate court will hold, and at gut level feel, that you have waived the argument.

XIII. RECORD – have opening statements and closing arguments recorded in every non-capital trial. G.S. §15A-1241 gives you the right to recordation upon request. (Recordation is automatic in capital trials.)1

§ 15A-1241. Record of proceedings.

(a) The trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except:

(1) Selection of the jury in noncapital cases;

1 I realize that this checklist is prepared for use in capital trials, but the principles articulated in it are applicable to all criminal trials. Get jury selection and arguments recorded in all criminal trials. It may make the difference between winning and losing on appeal.

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(2) Opening statements and final arguments of counsel to the jury; and

(3) Arguments of counsel on questions of law.

(b) Upon motion of any party or on the judge's own motion, proceedings excepted under subdivisions (1) and (2) of subsection (a) must be recorded. The motion for recordation of jury arguments must be made before the commencement of any argument and if one argument is recorded all must be. Upon suggestion of improper argument, when no recordation has been requested or ordered, the judge in his discretion may require the remainder to be recorded.

...... (emphasis added)

A. If necessary, change the culture in your jurisdiction by asking for recordation of argument in every case.

B. Record because it may be a deterrent, sometimes.

C. Record because it is absolutely crucial to preservation of prosecutorial misconduct in closing argument, and to full appellate presentation of other issues.

D. Do not decide to get recordation in the middle of argument when you hear something bad – reconstruction is a mess and may prejudice your client if you get fact-found away by the judge.

XIV. LISTEN. You will be emotionally and physically drained at the end of the trial, but you cannot relax. You have to be focused on what the prosecutor is saying. TAKE NOTES DURING CLOSING ARGUMENT TO KEEP YOU FOCUSED.

Further, if the prosecutor is doing something objectionable, for instance getting up in the defendant’s face, you must object and state for the record what happened.

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XV. What are you listening for? What follows are general categories of objectionable argument.

A. Something that wasn’t in evidence. DA just makes it up or talks about evidence that was excluded outside the presence of the jury.

B. Jail conditions: televisions, weight rooms, three hots and a cot at taxpayer expense. This argument is likely not supported by evidence and deprives the defense of the opportunity to confront such argument with evidence of the reality of life imprisonment without parole. If the argument is not sustained, ask off the record for a recess and to reopen the evidence to present an accurate picture of life imprisonment without parole.

C. Arguing evidence that was struck or to which an objection was s sustained.

D. Any comment on the defendant’s “failure” to testify, particularly cast as a right that the defendant has that the jury should not hold against him.

E. Any comment based on assertion of a privilege or constitutional right (e.g. marital privilege [“Where’s his wife if he didn’t do it. Why didn’t she testify?”]; right to silence [“Don’t you know if he won’t there, he would have told the police about this silly alibi.”]; again, the testimonial privilege (“Now, the defendant has the right not to testify.”)

F. The DA’s personal opinion (“I think he was lying.” “I don’t believe a word of what he said.”). In particular, watch out for, “This is the worst case that has ever come before a jury in this county.”

G. Name calling and mud-slinging. (“Animal.” “Liar.” “Not a human being.” “Child of Satan.” “S.O.B.”) Etc. etc. etc.

H. References and comparisons to historic monsters (“He’s the same as Hitler.”), or monstrous historical events (“Oklahoma City,” “Columbine.” ).

I. Evidence argued for a purpose outside the basis for its admission into evidence. The classic is arguing a conviction admitted for impeachment as character evidence (“Anyone convicted of breaking into another person’s house is the same kind of person that would kill them once there are in there.”).

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J. “The community demands that you convict this defendant,” and similar arguments that society demands a conviction because of a generalized problem (gang violence, domestic violence).

K. Unsupported assertions of characteristics of a class of cases (“In the penalty phase of a capital case, they always put on the mama to tell us what a bad, bad man daddy was.”).

L. Guilt based on previous proceedings (arrest, probable cause hearing, grand jury proceedings, prosecutor’s decision to try the case).

M. The guilt or guilty plea of a co-defendant as evidence of guilt of the defendant on trial.

N. Arguing the facts of appellate decisions (usually OK to argue and quote relevant statutes and case law).

O. Intimations that appellate review will fix any mistakes the jury makes.

P. Intimations that the judge wouldn’t have let evidence in unless it was trustworthy.

Q. Addressing jurors personally (“Ms. Adams, can you put him where he belongs? Mr. Smith can put him where he belongs?” etc etc

R. “It could have been you, Mr. Adams,” or “It could have been any one of you,” i.e. putting jurors in the place of the victim.

S. Personal attacks on defense counsel’s integrity or veracity.

T. Argument based on ethnicity (“Welcome to America, Mr. Hernandez.”) or economic status (“You are paying for his public defender, folks.”) or any other general characterization based on some group classification.

U. In particular, watch out for argument about experts being paid for with the jurors’ and other citizens’ taxes.

V. GENERALLY, IF IT SEEMS UNFAIR OR WRONG OR VERY FAR OUT THERE, IT PROBABLY IS.

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XVI. OBJECT TO IMPROPER ARGUMENT. But do not object unless you think the argument is improper. You cede the high ground and violate several ethical directives if you object to closing argument in bad faith. Be attentive; don’t be stupid. Leave the misconduct to the prosecutor.

XVII. If you think objecting to closing argument will alienate the jury, drop that thought. Most jurors are probably going to like you. They all watch TV and enjoy some drama in the courtroom. They will just think you are being a lawyer. If your objection is sustained, the DA may look like an ass. If the judge overrules your objection in a nasty way and you have maintained the high ground, the jury may think he’s an ass and count that in favor of your client. If you object and the client is convicted, you have preserved the error for appeal.

A. Object as specifically as the judge will let you, e.g.:

1. “Objection, not in evidence, due process.” 2. “Objection, personal opinion, due process.” 3. “Objection to the inflammatory argument, due process.”

B. If the judge indicates the he or she doesn’t want you to make a specific objection, fine, or if you can’t articulate exactly why the argument is improper, keep a list going, and after argument is over and before the jury is instructed, ask for a hearing to flesh out the basis for your objection. The delay may give you a better opportunity to fully articulate your objection. Even if you make a specific objection, you may be able to sharpen it in such a hearing.

C. In this hearing, always constitutionalize. State specifically that you contend that the improper argument violated your client’s right to a fair trial and to due process of law under the sixth and fourteenth amendments. In the penalty phase, in addition, state that the argument violated your client’s eighth amendment right to a reliable capital sentencing proceeding.

D. Move for a mistrial as appropriate, but only if you want one.

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SOME SUGGESTIONS FOR PRESERVING SPECIFIC GROUNDS, AND, IN PARTICULAR, CONSTITUTIONAL GROUNDS

These suggestions are different strategies to try to make preservation as efficient as possible. Some judges will make things difficult. The important thing is that you achieve the goal of full preservation.

I. The first time you encounter a particular category of objectionable evidence that has not been the subject of a motion to suppress or motion in limine, consider asking to be heard outside the jury “on a matter of law.” If the court rules against you after you have fully argued the grounds, then after that state the grounds in summary fashion, e.g.: “Objection: relevance, due process, hearsay, confrontation.”

II. What if the judge yells at you for making specific objections before the jury, for example: “Objection, relevance, hearsay, confrontation.”

A. Keeping it up and letting him or her yell and perhaps find you in contempt is an option, but probably not a good option. Requesting that the judge declare that he or she will find you in contempt if you keep it up is an option. The judge will either say you will be in contempt, and then you are good shape, or will back off.

B. Consider broaching the issue pre-trial, and explaining the necessity to make specific objections.

C. The judge cannot relieve you of the necessity to make specific objections.

D. If the judge prohibits you from making specific objections in the presence of the jury, you still have to make them outside the presence of the jury. Do this at the earliest opportunity after the ruling in question, stating all grounds. Pair objections as suggested below.

III. What if the judge says, “Fine, make your specific objections”???

A. Make them. Associate non-constitutional bases with constitutional bases – the most common is “Hearsay – Confrontation.” The most

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common associations are laid out on the last pages of this manuscript.

B. State for the record in a written pre-trial notice that by “confrontation,” for example, you mean the right conferred by the sixth and fourteenth amendments, and by article I, §23 of the N.C. Constitution.

C. Such a notice does NOT relieve you of the necessity to make specific objections.

D. What about something that comes in as the result of the denial of a motion to suppress or motion in limine? Simply “Renew the pretrial motion on the stated grounds,” assuming that the pretrial motion stated all grounds. State applicable additional grounds not specified in a motion in limine. AND, renew the objection to each question that elicits testimony that was the subject of a pre-trial motion.

IV. What about line objections?

A. WATCH OUT. POTENTIAL TRAP. B. There is case law that throws doubt on the validity of line

objections in criminal cases. C. Even assuming that line objections are valid, you must state

specific grounds up front, just as with any objection. D. Even assuming that line objections are valid, and that you state

specific grounds up front, any objectionable testimony outside the line objection (that is, that is objectionable for a different or additional reason than initially stated) must be the subject of an additional objection.

E. For instance, if the line objection is hearsay/confrontation, and something that is completely irrelevant and prejudicial comes in during what otherwise is within the parameters of the line, you have not preserved the relevancy bases for objecting, or we lose that ground on appeal.

F. A line objection made at the time of the denial of a pre-trial motion IS CLEARLY NO GOOD. You must make the objection at trial.

G. All things considered, don’t rely on line objections.

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COMMON RELATED GROUNDS FOR TRIAL OBJECTIONS

I. If something is unfair, it violates due process of law. Anything admitted in violation of a North Carolina Rule of Evidence, or statute, or case law is unfair.

What you say in your pre-trial notice:

“When defense counsel state “due process,” as the basis for an objection, what is meant is a violation of the right to fundamental fairness and due process of law guaranteed by the 5th and 14th amendments, and art. I, § 19 of the N.C. Constitution.”

What you say when you object, whether or not you have filed a pre-trial notice: “Objection, (articulate North Carolina law violation) and due process.” Example: “Objection, Evidence Rule 608(b) and due process.”

II. If something is unreliable or irrelevant in the penalty phase, it violates the prohibition on cruel and unusual punishment.

“When defense counsel state “eighth amendment,” what is meant is a violation of the prohibition against cruel and unusual punishment guaranteed by the eighth amendment and art. I, § 27 of the N.C. Constitution.” What you say when you object: “Objection, 8th Amendment.”

III. Include in all hearsay objections a confrontation objection.

“When defense counsel state “hearsay and confrontation,” what is meant is a violation of the prohibition against inadmissible hearsay and of the right to confront adverse evidence guaranteed by the sixth and fourteenth amendments and art. I, § 23 of the N.C. Constitution.”

What you say when you object: “Objection, hearsay and confrontation.”

IV. Any impairment of your right to put on evidence or argue admitted evidence for a permissible purpose:

“When defense counsel state “right to a defense,” what is meant is a violation of the right to the assistance of counsel, the right to due process of law,

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and the right to confront adverse evidence guaranteed by the fifth, sixth, eighth, and fourteenth amendments and art. I, § 19, 23, and 27 of the N.C. Constitution.”

What you say when you object: “Objection, 5th, 6th and 14th Amendments” or “Objection, right to defense.”

V. Anything that impairs fair jury selection or the impartiality or bias of jurors (including taints outside the courtroom from exposure to media, to other information outside the evidence, or to prejudicial opinions of other persons):

“When defense counsel state “right to fair jury selection” or “impartial jury,” what is meant is a violation of the right to a fair and impartial jury guaranteed by the sixth and fourteenth amendments and art. I, §§ 19 and 24 of the N.C. Constitution.”

What you say when you object: “Objection, 6th and 14th Amendments” or “Right to impartial Jury” or “Right to fair jury Selection.” VIII. Include “due process” in the objection to violation of any rule of evidence other than confrontation, including objections on relevance grounds or Rule 403 grounds. Again, Never Make An Objection That Does Not Also State A Constitutional Ground.

SUGGESTED TEXT FOR A PRE-TRIAL NOTICE ON DEFENSE OBJECTIONS

Following the caption of your case:

DEFENSE NOTICE OF BASIS FOR PRE-TRIAL OBJECTIONS

The defendant through counsel gives notice that the following is the basis for objections that counsel may make in summary fashion during trial: 1. When defense counsel state “due process,” as the basis for an objection, what is meant is a violation of the right to fundamental fairness and due process of

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law guaranteed by the 5th and 14th amendments, and art. I, § 19 of the N.C. Constitution. 2. When defense counsel state “hearsay and confrontation,” what is meant is a violation of the prohibition against inadmissible hearsay and of the right to confront adverse evidence guaranteed by the sixth and fourteenth amendments and art. I, § 23 of the N.C. Constitution. 3. When defense counsel state “right to defense,” what is meant is a violation of the right to the assistance of counsel, the right to due process of law, and the right to confront adverse evidence guaranteed by the fifth, sixth, eighth, and fourteenth amendments and art. I, § 19, 23, and 27 of the N.C. Constitution. 4. When defense counsel state “right to fair jury selection” or “right to impartial jury,” what is meant is a violation of the right to a fair and impartial jury guaranteed by the sixth and fourteenth amendments and art. I, §§ 19 and 24 of the N.C. Constitution.

PRESERVING THE RECORD ON APPEAL

Originally Presented in 2001 and Updated in 2003 by

Danielle M. Carman, Assistant Director, Office of Indigent Defense Services Updated for Summer 2004 New Felony Public Defender Training by

Anne M. Gomez, Assistant Appellate Defender Updated for Spring 2006 Public Defender Conference and

Fall 2009 Mecklenburg County Public Defenders Conference & CLE Training by Julie R. Lewis, Assistant Public Defender

I. INTRODUCTION:

Our appellate courts are increasingly using “waiver” to avoid reaching the merits of defense challenges in criminal cases.

While appellate attorneys can and do fail to preserve appellate issues, “waiver” most often begins at the trial level . . . . . . . . . . .

II. BASIC PRESERVATION PRINCIPLES:

Express disagreement with what the trial court did (or did not do) and the complete grounds for that disagreement by objection, exception, motion, request, or otherwise.

Assert your position in a timely fashion.

Assert your position in the form required by the applicable rule or statute.

Constitutionalize your position whenever possible by explicitly asserting both Federal and State constitutional grounds.

Re-assert your position every time the same or a substantially similar issue arises.

Obtain a ruling on your request, motion, or objection. If the judge says he or she will rule “later,” make sure that he or she does so.

Make an offer of proof if your evidence is wrongly excluded.

Case Note: In State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002), the trial attorneys preserved a number of statutory and constitutional errors. While the individual errors may not have warranted a new trial, the Supreme Court held that, when “taken as a whole,” the cumulative preserved errors “deprived defendant of his due process right to a fair trial.” Id. at 254, 559 S.E.2d at 768. The Court’s opinion in Canady demonstrates the benefit of lodging timely, specific, and frequent objections.

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III. PRE-TRIAL:

A. Short-Form Indictments:

N.C. Gen. Stat. §§ 15-144, 15-144.1, and 15-144.2 permit short-form indictments in first-degree murder, first-degree rape, and first-degree sexual offense cases. In all cases utilizing such a short-form indictment, as well as any cases where the indictment does not in fact set forth all elements of the offense, you should move to dismiss the indictment on the ground that it violates the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. See Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435 (2000). In capital cases, you should move to strike the death penalty from consideration because no aggravating factors are alleged in the indictment. See Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002) (aggravating factors are elements of a capital offense and must be found by the jury).

Make a motion for a bill of particulars asking the State to identify the degrees of the offense (e.g., first-degree vs. second-degree) and the theories (e.g., premeditation and deliberation vs. felony murder). If the judge denies the motion, the State cannot then argue on appeal that the defense attorney waived any opportunity to obtain adequate notice of the charge.

In numerous cases, the Supreme Court of North Carolina has rejected the argument that short-form first-degree murder indictments that do not allege premeditation and deliberation violate Apprendi. The Supreme Court has also rejected a challenge to the failure of an indictment to allege aggravating factors in a capital case. See State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003). Regardless of the Court’s decisions, you should still preserve the issue for federal review.

For preservation purposes, you should also move to dismiss under Article I, §§ 22 and 23 of the North Carolina Constitution. Argue two bases for the motion: (1) that the indictment does not give the trial court jurisdiction to try the defendant or to enter a judgment; and (2) that the indictment does not give the defendant adequate notice of the charge.

B. Miscellaneous:

If your ex parte motion for expert assistance is denied, make sure you get the substance of your motion and the trial judge’s order on the record.

If you believe that your client’s right to presence has been violated by an ex parte contact, find a way to have the record reflect that the contact occurred.

IV. GUILTY PLEAS:

The ONLY pretrial motion that you can preserve for appeal after a guilty plea is the denial of a motion to suppress. N.C. Gen. Stat. § 15A-979(b); State v. Smith, --- N.C.

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App. ---, 668 S.E.2d 612, 614, disc. review denied, No. 534P08, 2009 N.C. LEXIS 764 (N.C. August 27, 2009). To preserve this error, you must notify the State and the trial court during plea negotiations of your intention to appeal the denial of the motion, or the right to do so is waived by the guilty plea. State v. Tew, 326 N.C. 732, 735, 392 S.E.2d 603, 605 (1990); State v. Brown, 142 N.C. App. 491, 492, 543 S.E.2d 192, 192 (2001). The best way to do this is to put it in writing.

V. COMPLETE RECORDATION:

In criminal cases, the trial judge must require the court reporter to record all proceedings except non-capital jury selection, opening and closing statements to the jury, and legal arguments of the attorneys. See N.C. Gen. Stat. § 15A-1241(a).

However, you should move to have everything recorded under § 15A-1241(b)!! Upon motion, the court reporter “must” record all proceedings. You should also ensure that the court reporter is actually present and recording at all stages of trial.

If a bench conference is not recorded, ask the trial judge to reproduce it for the record and ensure that all of your objections are in the record.

If something “non-verbal” happens at trial, ask to have the record reflect what happened.

e.g.: In State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), the trial attorneys should have asked to have the record reflect that the prosecutor pointed a gun at the only African American juror during closing arguments.

e.g.: If your client is shackled without the necessary hearing and factual findings required by N.C. Gen. Stat. § 15A-1031, and the jury saw the shackles, ask to have the record reflect that fact. Also describe for the record what type of restraint was being used.

VI. JURY SELECTION:

A. Preserving Your Right to Ask a Question on Voir Dire:

e.g.: In a case involving an interracial crime, you want to ask prospective jurors questions about their views on interracial dating. However, the trial court sustains the State’s objections to your questions.

N.C. Gen. Stat. § 15-1212(9) provides that “[a] challenge for cause to an individual juror may be made by any party on the ground that the juror . . . [f]or any other cause is unable to render a fair and impartial verdict.” This section allows a statutory challenge for cause based on juror bias and, thus, should give a defendant a statutory right to explore possible sources of bias.

In addition, you should try to constitutionalize your right to ask the question. See, e.g., Turner v. Murray, 476 U.S. 28, 90 L. Ed. 2d 27 (1986) (right to impartial jury under the Fifth, Sixth, and Fourteenth Amendments guarantees a capital defendant accused of

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interracial crime the right to question prospective jurors about racial bias; violation of right requires death sentence to be vacated).

To fully preserve any error based on curtailed defense questioning during voir dire, you should submit a written motion listing the questions you want to ask and obtain a ruling on the record. You also need to exhaust your peremptory challenges. See State v. Fullwood, 343 N.C. 725, 734-35, 472 S.E.2d 883, 888 (1996).

B. Preserving Your Denied Motion to Excuse for Cause:

State clearly and completely the grounds for your challenge for cause. If the trial court denies your challenge, you must use a peremptory to excuse that juror unless you have already exhausted all peremptories.

In addition, N.C. Gen. Stat. § 15A-1214(h) and (i) require that you then: (1) exhaust all peremptories; (2) renew your challenge for cause; and (3) have your renewed challenge denied. See State v. Cunningham, 333 N.C. 744, 429 S.E.2d 718 (1993) (ordering a new trial where defendant satisfied requirements of § 15A-1214(h)); State v. Hightower, 331 N.C. 636, 417 S.E.2d 237 (1992) (same). This procedure is mandatory and must be precisely followed or the error is waived on appeal. State v. Garcell, 363 N.C. 10, 678 S.E.2d 618 (2009).

C. Batson Error:

Establish the races of all prospective jurors for the record: File a pre-trial motion asking the trial court to ensure that the races of prospective jurors are recorded by (1) the judge inquiring and making findings for the record, or (2) the judge requiring the parties to stipulate to jurors’ races as selection proceeds. If the court will not permit any other way, ask each juror to put his or her race on the record orally or by questionnaire.

If you use juror questionnaires, move to have them admitted into evidence and made part of the record. If the questionnaires are left in your possession, save them for the appellate attorney.

Object every time the prosecutor excuses a juror for even arguably racial reasons. See State v. Smith, 351 N.C. 251, 524 S.E.2d 28 (2000). If you are prepared to make a prima facie showing, ask the trial court for an opportunity to present evidence. The court is required to honor this request. See State v. Green, 324 N.C. 238, 376 S.E.2d 727 (1989).

If the trial court declines to find a prima facie case, object. If the court asks the prosecutor to offer race-neutral reasons, ask for an opportunity to rebut the prosecutor’s showing.

Remember that Batson applies to gender-based challenges as well!

VII. EVIDENTIARY RULINGS:

If you do not make timely and proper objections at trial, erroneous evidentiary rulings will only be reviewed for “plain error” – an extremely difficult standard to meet. On

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appeal, the defendant will have to show the error was so fundamental that it denied him a fair trial or had a probable impact on the jury’s verdict. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).

A. Objecting to the State’s Evidence:

Make timely objections. See N.C. Gen. Stat. § 15A-1446(a); N.C. Gen. Stat. § 8C-1, Rule 103(a)(1); N.C. R. App. P. 10(b)(1). If the prosecutor asks a question that you think is improper or may elicit improper testimony, enter a quick general objection. If the trial court invites you to argue the objection or rules against you, you should follow up by stating the basis for your objection.

A defendant’s general objection to the State’s evidence is ineffective unless there is no proper purpose for which the evidence is admissible. See State v. Moseley, 338 N.C. 1, 32, 449 S.E.2d 412, 431 (1994) (burden on defendant to show no proper purpose).

If evidence is objectionable on more than one ground, every ground must be asserted at the trial level. Failure to assert a specific ground waives that ground on appeal. See State v. Moore, 316 N.C. 328, 334, 341 S.E.2d 733, 737 (1986); N.C. R. App. P. 10(b)(1).

If evidence is admissible for a limited purpose, object to its use for all other improper purposes and request a limiting instruction. See State v. Stager, 329 N.C. 278, 309-10, 406 S.E.2d 876, 894 (1991). Upon request, the trial court is required to restrict such evidence to its proper scope and to instruct the jury accordingly. See N.C. Gen. Stat. § 8C-1, Rule 105.

e.g.: If the trial court rules that hearsay statements are admissible for corroboration, ask the trial court to instruct the jury about the permissible uses of that evidence.

If there are portions of the statements that are non-corroborative, specify those portions and ask to have them excised.

If there are portions of the statements that are objectionable on other grounds (e.g., inadmissible “other crimes” evidence), specify those portions and ask to have them excised.

When appropriate, constitutionalize your objections. If a defendant wishes to claim error on appeal under the Federal Constitution as well as state law, the defendant must have raised the constitutional claim when the error occurred at trial. See State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 222 (1994); State v. Skipper, 337 N.C. 1, 56, 446 S.E.2d 252, 283 (1994).

e.g.: If the trial court excludes your proffered evidence, do not object solely on state law relevance grounds. You should also cite your client’s constitutional due process right to present evidence in his defense.

e.g.: If the State offers hearsay evidence, do not object solely on state law hearsay grounds. You should also cite the Confrontation Clause.

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Object to any attempts by the prosecutor to admit substantive or impeachment evidence about your client’s post-Miranda exercise of his constitutional rights to remain silent and have an attorney present. See Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976).

e.g.: If the State offers police testimony that your client refused to talk and asked for his attorney, object.

e.g.: If the State tries to cross-examine your client about his failure to tell certain facts to the police, object.

B. Moving to Strike the State’s Evidence:

If the prosecutor’s question was not objectionable (or if your objection to a question is overruled and it later becomes apparent that the testimony is inadmissible) but the witness’ answer was improper in form or substance, you must make a timely motion to strike that answer. See State v. Grace, 287 N.C. 243, 213 S.E.2d 717 (1975); State v. Marine, 135 N.C. App. 279, 285, 520 S.E.2d 65, 68 (1999).

Similarly, if the trial judge sustains your objection but the witness answers anyway, you must make a timely motion to strike the answer. See State v. Barton, 335 N.C. 696, 709, 441 S.E.2d 295, 302 (1994); State v. McAbee, 120 N.C. App. 674, 685, 463 S.E.2d 281, 286 (1995).

C. Waiving Prior Objections:

If you make a motion in limine to exclude certain evidence but then fail to object when the evidence is actually offered and admitted at trial, the issue is not preserved for appeal. See State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam); State v. Wynne, 329 N.C. 507, 515, 406 S.E.2d 812, 815-16 (1991). Similarly, if your suppression motion is denied, you must renew that motion or object to the evidence when it is introduced at trial to preserve the error. See State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000). You must do this even if the trial judge specifically says you don’t have to. State v. Goodman, 149 N.C. App. 57, 66, 560 S.E.2d 196, 203 (2002), rev’d in part on other grounds, 357 N.C. 43, 577 S.E.2d 619 (2003).

Do NOT rely on N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) to preserve the issue!!! Although the Legislature attempted to make things easier by amending Evidence Rule 103(a)(2) in 2003 to add a second sentence that states that once the trial court makes a definitive ruling admitting or excluding evidence, either at or before trial, there is no need to later renew the objection, do not rely on this rule. Rule 103(a)(2) has been held to be invalid because it conflicts with Appellate Rule 10(b)(1) which has been consistently interpreted to provide that an evidentiary ruling on a pretrial motion is not sufficient to preserve the issue for appeal unless the defendant renews the objection during trial. See State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007).

If you initially object but then allow the same or similar evidence to be admitted later without objection, the issue is not preserved for appeal. See State v. Jolly, 332 N.C. 351, 361, 420 S.E.2d 661, 667 (1992). Likewise, you waive appellate review if you fail to object at the time the testimony is first admitted, even if you object when the same

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or similar evidence is later admitted. See State v. Davis, 353 N.C. 1, 19, 539 S.E.2d 243, 256 (2000). Bottom line: You must object each and every time the evidence is admitted.

One way to deal with this problem is to enter a standing line objection to the evidence when it is offered at trial. See N.C. Gen. Stat. § 15A-1446(d)(9) & (10); see also 1 KENNETH S. BROUN, BRANDIS & BROUN ON NORTH CAROLINA EVIDENCE § 22, at 92 (Michie Co., 6th ed. 2004) (discussing waiver and the status of line objections in North Carolina).

To preserve a line objection, you must ask the trial court’s permission to have a standing objection to a particular line of questions. See, e.g., State v. Crawford, 344 N.C. 65, 76, 472 S.E.2d 920, 927 (1996). In addition, you should clearly state your grounds for the standing objection. If the court denies your request, object to every question that is asked.

You cannot make a line objection at the time you lose your motion to suppress or your motion in limine; you must object to the evidence at the time it is offered. See State v. Gray, 137 N.C. App. 345, 348, 528 S.E.2d 46, 48 (2000).

If there are additional grounds for objection to a specific question within that line, you must interpose an objection on the additional ground.

e.g.: If you have a standing line objection based on relevance and a specific question in that line calls for hearsay, you need to interpose an additional hearsay objection.

D. Making an Offer of Proof:

Evidence Rule 103(a)(2) provides that “[e]rror may not be predicated upon a ruling which . . . excludes evidence unless . . . the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” N.C. Gen. Stat. § 15A-1446(a) provides that “when evidence is excluded a record must be made . . . in order to assert upon appeal error in the exclusion of that evidence.”

Thus, if the trial court sustains the prosecutor’s objection and precludes you from presenting evidence, making an argument, or asking a question, you must make an offer of proof. For further discussion of this topic, see 1 KENNETH S. BROUN, BRANDIS

& BROUN ON NORTH CAROLINA EVIDENCE § 18, at 70 (Michie Co., 6th ed. 2004).

You should make your offer of proof by actually filing the documentary exhibit or by eliciting testimony from the witness outside the presence of the jury. It is not enough to rely on the context surrounding the question. See State v. Williams, 355 N.C. 501, 534, 565 S.E.2d 609, 629 (2002). Summarizing what the witness would have said also may not be sufficient. See State v. Long, 113 N.C. App. 765, 768-69, 440 S.E.2d 576, 578 (1994).

If the court does not allow you to make an offer of proof, state: “Defendant wants the record to reflect that we have tried to make an offer of proof.” Also state that the trial court’s failure to allow you to do so violates the defendant’s constitutional rights to confrontation, to present a defense, and, if applicable, to compulsory process. It is error

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for the court to prohibit you from making an offer of proof. State v. Silva, 304 N.C. 122, 134-36, 282 S.E.2d 449, 457 (1981).

If the court tells you to make your offer “later,” the burden is on you to remember and to make sure that the offer is made.

VIII. MOTIONS TO DISMISS:

Always move to dismiss at the close of the State’s case. See N.C. Gen. Stat. 15-173; N.C. Gen. Stat. § 15A-1227.

Always renew your motion to dismiss at the close of all the evidence (even if you only introduce exhibits). The defendant is barred from raising insufficiency of the evidence on appeal if you fail to do so. See N.C. R. App. P. 10(b)(3); see also State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987) (appellate rule abrogates the contrary provision in N.C. Gen. Stat. § 15A-1446(d)(5)). Furthermore, the appellate courts will not even review the error using the “plain error” standard of review if the motion is not renewed. See State v. Freeman, 164 N.C. App. 673, 596 S.E.2d 319 (2004) (plain error analysis only applies to jury instructions and evidentiary matters in criminal cases).

If you forget to renew your motion to dismiss at the close of all the evidence, after the verdict you should move to dismiss based on the insufficiency of the evidence or move to set aside the verdict as contrary to the weight of the evidence. See N.C. Gen. Stat. § 15A-1414(b). These motions are addressed to the discretion of the trial court and are reviewable on appeal under an abuse of discretion standard. See State v. Fleming, 350 N.C. 109, 512 S.E.2d 720 (1999); State v. Batts, 303 N.C. 155, 277 S.E.2d 385 (1981).

IX. CLOSING ARGUMENTS:

Always object to improper arguments. Failure to timely object to the prosecutor’s

argument constitutes a waiver of the alleged error. In the absence of an objection, appellate courts will review the prosecutor’s argument to determine “whether it was so grossly improper that the trial court abused its discretion in failing to intervene ex mero motu to correct the error.” State v. Taylor, 337 N.C. 597, 447 S.E.2d 360 (1994). This is a much more stringent standard of review than is applied to preserved errors so it is critically important for appellate purposes to timely object to improper statements made by the prosecutor and to request curative instructions if the objection is sustained.

If your objection is sustained, immediately ask the judge to instruct the jury to disregard

the improper statements. You should also carefully consider whether further remedy is necessary or whether it would serve to draw further negative attention to the comments. If you decide that the prejudice resulting from a prosecutor’s improper argument was severe and in need of further remedy, you may ask the judge to:

admonish the prosecutor to refrain from that line of argument; require the prosecutor to retract the improper argument; repeat the curative instruction during the jury charge; or

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grant a mistrial.

See State Jones, 355 N.C. 117, 129, 558 S.E.2d 97, 105 (2002) (it is incumbent on trial judge to vigilantly monitor closing arguments, “to intervene as warranted, to entertain objections, and to impose any remedies pertaining to those objections”); Wilcox v. Glover Motors, Inc., 269 N.C. 473, 153 S.E.2d 76 (1967) (listing several methods by which a trial judge, in his or her discretion, may correct an improper argument).

The filing of a motion in limine regarding closing arguments is not sufficient, by itself, to preserve closing argument error. Appellate Rule 10(b)(1) requires that you actually obtain a ruling on the motion from the trial judge. See State v. Daniels, 337 N.C. 243, 275-76 n.1, 446 S.E.2d 298, 318 n.1 (1994). In addition, you should renew the motion or object during the prosecutor’s closing argument.

Object to any attempts by the prosecutor to argue in closing that your client’s post-Miranda exercise of his constitutional rights to silence and counsel support an inference of guilt. See Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976).

The Supreme Court of North Carolina has displayed an increasing willingness to find reversible error due to improper closing arguments by prosecutors. Be vigilant to improper arguments and object!

X. JURY INSTRUCTIONS:

Clearly and specifically object to erroneous jury instructions before the jury retires to deliberate. See N.C. R. App. P. 10(b)(2); see also State v. Bennett, 308 N.C. 530, 302 S.E.2d 786 (1983) (appellate rule abrogates the contrary provision in N.C. Gen. Stat. § 15A-1231(d)). If you do not object at trial, instructional errors will only be reviewed for plain error – an extremely difficult standard to meet. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).

Submit all of your proposed jury instructions -- especially special instructions -- in writing. See N.C. Gen. Stat. § 1-181; N.C. Gen. Stat.§ 15A-1231(a). Requested instructions that are refused then become a part of the record on appeal by statute. N.C. Gen. Stat. § 15A-1231(d). Then follow along on your copy as the judge instructs the jury. Judges very often make unintentional mistakes while instructing the jury.

Submit your proposed jury instructions as early as possible so the judge will have a chance to review them and make a ruling. Parties may submit proposed jury instructions at the close of the evidence or at an earlier time if directed by the judge. N.C. Gen. Stat. § 15A-1231(a). Requests for special instructions must be submitted to the judge before the judge begins to give the jury charge. N.C. Gen. Stat. § 1-181(b); see also N.C. Gen. R. Prac. Super. & Dist. Ct. 21 (providing that “[i]f special instructions are desired, they should be submitted in writing to the trial judge at or before the jury instruction conference”); State v. Long, 20 N.C. App. 91, 200 S.E.2d 825 (1973) (holding that a request for special instruction is not timely if it is tendered after the jury retires to deliberate). However, the judge may, in his or her discretion, consider requests for special instructions regardless of the time they are made. N. C. Gen. Stat. § 1-181(b).

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XI. JURY DELIBERATIONS:

Before consenting to the jury’s request to take an exhibit into the jury room pursuant to

N.C. Gen. Stat. § 15A-1233(b), carefully consider how the jury may use the exhibit during its deliberations and decide whether it would be in the defendant’s best interest to consent. If the trial judge, without obtaining consent from all parties, sends an exhibit to the jury room that you believe is harmful to the defendant’s case, object on the record in order to ensure preservation of the issue on appeal.

Make sure that the timing of jury deliberations is made a part of the record. Lengthy or troubled jury deliberations are an extremely helpful way to show prejudice on appeal.

Make sure that all jury notes and other communications between the judge and jury are made a part of the record.

XII. SENTENCING:

Do not stipulate as a matter of course to the prior record level worksheet or to the defendant’s prior convictions, especially if they are out-of-state convictions. The burden is on the prosecution to prove that the defendant’s prior convictions exist. N.C. Gen. Stat. § 15A-1340.14(f). If they are out-of-state convictions, the State must prove they are substantially similar to North Carolina convictions or else they must be classified at the lowest punishment level (Class I for felonies, Class 3 for misdemeanors). N.C. Gen. Stat. § 15A-1340.14(e). If you stipulate (or fail to object when asked or agree in any way), the State does not have to prove anything. See State v. Alexander, 359 N.C. 824, 616 S.E.2d 914 (2005). The issue will most likely be preserved if you “take no position” but the safer position is to object (even if you do not wish to be heard).

Errors that occur during sentencing are supposed to be automatically preserved for review. See N.C. Gen. Stat. § 15A-1446(d)(18); State v. McQueen, 181 N.C. App. 417, 639 S.E.2d 139 (2007), appeal dismissed and disc. review denied, 361 N.C. 365, 646 S.E.2d 535 (2007); State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003) (citing State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991)). However, the Court of Appeals has also repeatedly found that a defendant waives appellate review of a sentencing error when he or she fails to object. See, e.g., State v. Black, --- N.C. App. ---, 678 S.E.2d 689 (2009) (right to appellate review of constitutional issue was waived because defendant failed to raise it at the sentencing hearing); State v. Kimble, 141 N.C. App. 144, 539 S.E.2d 342 (2000) (issue regarding sufficiency of the evidence to support the finding of aggravating factors was not properly before the Court because defendant did not object during the sentencing hearing). To be safe, always object to errors that occur during the sentencing hearing.

In response to the United States Supreme Court decision in Blakely v. Washington, our legislature substantially amended the Structured Sentencing Act. Session Law 2005-145, referred to as the Blakely bill, went into effect on June 30, 2005 and applies to prosecutions for all offenses committed on or after that date. It is prudent to preserve all Blakely issues just as you would preserve other issues during a trial. This includes

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motions to dismiss for failure to prove an aggravating factor beyond a reasonable doubt, objections to evidence, and objections to erroneous jury instructions.

Present evidence to support mitigating factors if the evidence was not presented at trial. E.g., Have your client’s mom testify about his support system in the community. If the mitigating factors are supported by documentary evidence, ask that the documents be entered into evidence.

New Felony Defender TrainingCosponsored by the UNC School of Government & North Carolina Office of Indigent Defense Services

Chapel Hill / February 11-12, 2010

PRESERVING THE RECORD AND MAKING OBJECTIONS AT TRIAL:

A Win-Win Proposition for Client and Lawyer

Ira Mickenberg Public Defender Trainer and Consultant 6 Saratoga Circle Saratoga Springs, NY 12866 (518) 583-6730 [email protected]

I. The Prime Directive For Preserving the Record and Making Objections at Trial

WHEN IN DOUBT -- OBJECT A. This cannot be overstated. If you do not object, you have lost -- regardless of whether you are right or wrong about the issue. If you do object, two things can happen, and both of them leave your client in a better position than if you were silent: 1. The objection will be sustained. Whatever you were objecting to has been excluded, and some prejudice has been kept out of the trial. You have also seized the moral high ground for future objections, if the prosecutor violates the judge’s ruling. 2. The objection will be overruled. This is not great, but at least you have preserved the issue so that on appeal or habeas, your client will have a chance for reversal. Almost as important, you have begun to educate the judge on the issue, which maximizes your chances of limiting the prosecution’s ability to expand the prejudice later in the trial. B. Many lawyers are afraid to make objections because they think the court may get angry at them for daring to object. There are two answers to this: 1. It is more important to preserve your client’s right to appellate and habeas review than it is to have the court happy with you. 2. If a judge is going to get upset with you for objecting, he or she is probably the kind of judge who is already upset with your very existence as a defense lawyer. It’s part of our job, so we have to learn to live with it.

MYTH ALERT #1 Objecting too much will make the jurors angry: When I took trial advocacy courses in law school, I was advised not to object too much, because it will make the jury angry. This is nonsense for two reasons: 1. Jurors don’t get angry because you are objecting. They get angry if you are behaving like a jerk when you object. Whining, eye-rolling and other stereotypical lawyer histrionics might offend a jury. Making your objection in an intelligent, calm, sincere and respectful-sounding way lets the jury know you are doing your job and care about your case. 2. The law professors who keep advising you not to object have never gone to jail because they were procedurally barred from raising a winning issue on habeas. Your client will.

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II. How to Prepare For Objections and Record Preservation

MYTH ALERT #2: You can’t prepare for trial objections. You just have to be very smart and very fast on your feet. This is also nonsense. It was probably made up by a trial attorney who was invited to teach at an advocacy seminar, and wanted to convince the audience that he was smarter and faster than they were. Like every aspect of a trial, knowing your theory of defense, thinking about your case critically and doing your homework in advance will allow you to make effective objections even if you are really slow on your feet.

A. Know your theory of defense inside out. Go through the exercise of writing out your theory of defense paragraph. Know what story you are going to tell the jury that will convince them to return the verdict you want. B. Then ask yourself four questions: 1. What evidence, arguments and general prejudice might the prosecutor come up with that will hurt my theory of defense? 2. What legal objections can I make to those tactics? 3. What evidence and arguments will the prosecutor offer in support of his or her theory of the case? 4. What legal objections can I make to the prosecutor’s evidence and arguments? C. Once you have answered these four questions, take the following steps: 1. Go to the law library and research the law on those objections. 2. If you find supportive law, make copies of the relevant cases or statutes. Bring them to court with you, and cite them if you make a motion in limine. D. If appropriate, make a motion in limine, in writing and on the record, to obtain the evidentiary ruling you want before trial. E. If a motion in limine is not appropriate, bring the copies of the law you have found with you to trial. This will guarantee that when you make the objection, you will be the only one in the courtroom who is able to cite directly relevant law.

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MYTH ALERT #3: You have to choose between preserving the record, and following a good trial strategy. Baloney. If you know your theory of defense, you will know whether an objection advances the theory or conflicts with it. Object when it advances your theory. Don’t object if it conflicts with your theory. Just make sure you know the difference.

III. How to Make Objections A. Whenever you anticipate a problem, consider making a motion in limine to head off the difficulty and get an advance ruling. B. When you are unsure whether to object, DO IT. You have far less to lose if you have an objection overruled than if you allow the damaging evidence in without a fight. C. Be unequivocal when you object, don't waffle. 1. RIGHT: I object. WRONG: Excuse, me you honor, but I think that may possibly be objectionable. 2. Don’t ever let the judge bully you into withdrawing an objection. If the judge goes ballistic because you have made an objection, just make sure you get it all on the record -- including his ruling. D. If the objection is sustained, ask for a remedy. 1. Mistrial. 2. Strike testimony. 3. Curative instruction. E. If you realize that you have neglected to make an objection which you should have made: 1. DON'T PANIC -- but don't just forget about it. 2. Make a late objection on the record. 3. Ask for a remedy which the court can grant now. a. Curative instruction/strike testimony. b. Mistrial.

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IV. If You Happen To Have A Capital Case, Remember To Make Objections On Non-Capital Issues NOTE: This particularly important because in many jurisdictions death penalty law is so bad that if a reviewing court feels that an injustice is being done, you have to give the court a non-death penalty issue on which to peg its reversal. A. If you are objecting to the admission of evidence, raise every possible ground: EX: If you are objecting to admission of a photo array, don’t just cite your state’s equivalent of Wade. You may also wish to raise: 1. Suggestive behavior by police 2. Photo array unreliable based on nature of the witness 3. Right to counsel. 4. Fruit of an illegal arrest or other police misconduct. 5. Fruit of an illegally obtained statement a. Coerced statement b. Miranda c. Right to counsel 6. The photo array is biased, based on the latest scientific research on photo arrays. B. If you are relying on scientific or technical information as the basis for your objection, give the court a copy of the relevant articles in advance of the court proceeding. This not only helps your chances of winning the objection, but it educates the judge about the issue. C. Prosecutorial Misconduct in Summation 1. In General a. It is not impolite to interrupt opposing counsel's summation -- it is mandatory to preserve error and stop the prejudice. b. Be sure to ask for some remedy any time an objection is sustained to remarks in a prosecutor's closing argument. 1. Admonish the jury to ignore the statements. 2. Admonish the prosecutor not to do it again. 3. Mistrial. 2. Some common objections to prosecutorial summations. a. Distorting or lessening the burden of proof. b. Negative references to the defendant's exercise of a constitutional or statutory right.

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1. Pre- and post- arrest silence. 2. Requests for counsel. 3. Not testifying at trial. c. Religious or patriotic appeals -- particularly now that the government is asserting that everything it doesn’t like (including your client) is tied to terrorism. d. Appeals to sympathy, passion or sentiment. e. Name-calling or other invective directed at either the defendant, defense counsel or the defense theory. f. References to evidence that has been suppressed or not introduced. g. Attacks on the defendant's character, when character has not been made an issue in the case. D. Some Common Objections in the Evidentiary Portion of the Trial 1. Improper introduction of uncharged crimes or bad acts attributed to the defendant 2. The court improperly limited the defense right to cross-examine witnesses. 3. The court wrongfully permitted the prosecutor to cross-examine the defendant in a prejudicial manner or about improper subjects. a. The defendant's pre- and post-arrest silence. b. The defendant's request for a lawyer and consultation with counsel. 4. The prosecutor tried to have a police officer testify about the defendant’s invocation of his right to silence or his request for a lawyer. 5. Improper use of expert testimony. a. There was no need for an expert because a lay jury could understand the subject on its own. b. The opinion evidence was given outside the area of the expert's expertise. c. The expert is unqualified. d. The expert’s opinion is so far outside the mainstream of current thought as to be junk science. Make a Daubert challenge.

EVIDENCE BLOCKING

Evidence Blocking*

Jonathan Rapping**

* The term “evidence blocking” and the ideas set forth in this paper come from my colleague and mentor at the D.C. Public Defender Service, Jonathan Stern. Mr. Stern honed the practice of evidence blocking to an art. There is not a concept in this paper that I did not steal from Mr. Stern, including examples presented. He deserves full credit for this paper. ** Jonathan Rapping is the Executive Director of the Southern Public Defender Training Center and is on the faculty of Atlanta’s John Marshall law School.

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I. Facts of the World v. Facts of the Case If a tree falls in the woods and no one is there to hear it, does it make a sound? We may confidently answer, “yes.” However, we cannot, with certainty, know what exactly it sounded like. Scientists might estimate what the sound would have been based on whatever factors scientists use, but that will be an approximation. They may disagree on the density of other vegetation in the area that would affect the sound, or the moisture in the soil that may be a factor. Perhaps the guess will be close to the actual sound. Perhaps not. We can never know for sure. A trial is the same way. It is a recreation, in a courtroom, of a series of events that previously took place. There are disagreements over factors that impact the picture that is created for the jury. The picture painted for the jury is affected by biases of the witnesses, the quality and quantity of evidence that is admitted, and the jury’s own viewpoint. In the end, the picture the jury sees may be close to what actually occurred or may be vastly different.

Understanding that the picture that is painted for the jury is the one that matters is central to the trial lawyer’s ability to be an effective advocate. It is helpful to think of facts in two categories: facts of the world and facts of the case. The first category, facts of the world, are the facts that actually occurred surrounding the event in question in our case. We will never know with certainty what the facts of the world are. The second category, facts of the case, are the facts that are presented at trial. It is from these facts that the fact-finder will attempt to approximate as closely as possible the facts of the world. The fact-finder will never be able to perfectly recreate a picture of what happened during the incident in question. How close the fact-finder can get will be a function of the reliability and completeness of the facts that are presented at trial. II.

By understanding that the outcome of the trial is a function of the facts of the case, we have a huge advantage over the prosecution. The prosecutor tends to believe he knows the “truth.” He thinks the facts of the world are perfectly reflected by his view of the evidence known to him. When the facts of the case point to a conclusion that is different from the one he believes he knows to be true, the prosecutor is unable to adjust. He can’t move from the picture he has concluded in his mind to be “true.” Therefore, he renders himself unable to see the same picture that is painted before the jury at trial. The good defense attorney understands she is incapable of knowing the “truth.” She focuses on the facts of the case. She remains flexible to adjust to facts that are presented, or excluded, that she did not anticipate. In that sense she is better equipped to see

The Difference Between Prosecutors and Defense Attorneys

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the picture the jury sees and to effectively argue that picture as one of innocence, or that at least raises a reasonable doubt.

The ability to think outside the box is one of the main advantages defense attorneys have over prosecutors. It is a talent honed out of necessity. We necessarily have to reject the version of events that are sponsored by the prosecution. They are a version that points to our client’s guilt. We must remain open to any alternative theory, and proceed with that open mind throughout our trial preparation.

Prosecutors generally develop a theory very early on in the investigation of the case. Before the investigation is complete they have usually settled on a suspect, a motive, and other critical details of the offense. In the prosecutor’s mind, this version of events is synonymous with what actually happened. In other words, the prosecutor assumes he knows the “truth.” The fundamental problem with this way of thinking is that all investigation from that point on is with an eye towards proving that theory. Instead of being open minded about evidence learned, there is a bias in the investigation. Evidence that points to another theory must be wrong. When it comes to a witness who supports the government’s theory but, to an objective observer, has a great motive to lie, the prosecutor assumes the witness is truthful and that the motive to lie is the product of creative defense lawyering. This way of thinking infects the prosecution at every level: from the prosecutor in charge of the case to law enforcement personnel who are involved with the prosecution. Whether the prosecution theory ultimately is right or wrong, this mid-set taints the ability to critically think about the case.

Good defense attorneys don’t do this!!! We understand that the “truth” is something we will almost certainly never know and that, more importantly, will not be accurately represented by the evidence that makes it into the trial. We understand that a trial is an attempt to recreate a picture of historical events through witnesses who have biases, mis-recollections, and perceptions that can be inaccurate. We know trials are replete with evidence that is subject to a number of interpretations and that the prism through which the jury views this evidence depends on the degree to which, and manner in which, it is presented. In short, as defense attorneys, we understand that a trial is not about what “really happened.” Rather, it is about the conclusions to which the fact-finder is led by the facts that are presented at trial. This may closely resemble what actually occurred or be far from it. We will never know. As defense attorneys we deal with the facts that will be available to our fact-finder. To do otherwise would be to do a disservice to our client.

For example, imagine a case that hinges on one issue, whether the traffic light was red or green. The prosecutor has interviewed ten nuns, all of whom

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claim to have witnessed the incident in question. Each of the ten nuns insists that the light was green. The defense has one lone witness. This witness says the light was red. At trial, not a single nun shows up to court. The only witness to testify to the color of the light is the lone defense witness, who says it was red. The prosecutor sees this case as a green light case in which one witness was wrong. The jury, on the other hand, sees only a red light case. It knows nothing of the nuns. The only evidence is that the light was red. As defense attorneys we must also see the case as a red light case. These are the only facts of the case. Even assuming the ten nuns were correct, that the light was green, those facts are irrelevant to this case and the jury that will decide it. III.

A wise advocacy principle is to never underestimate your opponent. Along this line it would behoove you to assume that if the prosecutor wants a piece of evidence in a case, it is because it is helpful to his plan to win a conviction against your client. Assume he is competent. Assume he knows what he is doing. Assume that fact is good for his case, and therefore bad for your client. Therefore, you do not want that fact in the case. Resist the temptation to take a fact the prosecution will use, and make it a part of your defense before you have considered whether you can have that fact excluded from the trial and how the case will look without it. Far too often defense attorneys learn facts in a case and begin thinking of how those facts will fit into a defense theory without considering whether the fact can be excluded from the trial. This puts the cart

The Art of Evidence Blocking The defense attorney’s job is to shape the facts of the case in a manner

most favorable to her client. She must be able to identify as many ways as possible to keep facts that hurt her client from becoming facts of the case. Likewise, she must be thoughtful about how to argue the admissibility of facts that are helpful to her client’s case. This requires a keen understanding of the facts that are potentially part of the case and a mastery of the law that will determine which of these facts become facts of the case.

As a starting proposition, the defense attorney should consider every conceivable way to exclude every piece of evidence in the case. Under the American system of justice, the prosecution has the burden of building a case against the defendant. The prosecution must build that case beyond a reasonable doubt. The facts available to the prosecution are the bricks with which the prosecutor will attempt to build that case. At the extreme, if we can successfully exclude all of the facts, there will be no evidence for the jury. It follows that the more facts we can successfully keep out of the case, the less bricks available to the prosecution from which to build the case against our client.

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before the horse. We must train ourselves to view every fact critically. We must consider whether that fact is necessarily going to be a part of the case before we decide to embrace it1

A.

. The prosecutor obviously knows his case, and how he plans to build it,

much better than you do. If you accept the premise prosecutors tend to do things for a reason, i.e. to help convict your client, then it follows that any fact the prosecution wishes to use to build its case against your client is one we should try to keep out of evidence. Even if you are unwilling to give the prosecutor that much credit, limiting the facts at his disposal to use against your client can only be beneficial. This defines a method of practice coined by Jonathan Stern as “evidence blocking.” Put plainly, evidence blocking is the practice of working to keep assertions about facts of the world out of the case. This exercise is one that forces us to consider the many ways facts can be kept out of evidence, and therefore made to be irrelevant to the facts of the case, and the derivative benefits of litigating these issues.

It is helpful to think of evidence blocking in four stages: 1) suppression/discovery violations; 2) witness problems; 3) evidence problems; and presentation problems.

The first stage we must think about when seeking to block evidence

Suppression / Discovery and Other Statutory Violations

includes violations by the prosecution team of the Constitution, statutory authority, or court rule. We must think creatively about how evidence gathered by the State may be the fruit of a Constitutional violation. Generally, in this regard, we consider violations of the Fourth, Fifth, and Sixth Amendments. We look to any physical evidence seized by the government, statements allegedly made by your client, and identifications that arguably resulted from a government-sponsored identification procedure. We consider theories under which this evidence was obtained illegally and we move to suppress that evidence. We also must look to any violations of a statute or rule that might arguably warrant exclusion of evidence as a sanction. A prime example of this is a motion to exclude evidence based on a violation of the law of discovery. How we litigate these issues will define how much of the evidence at issue is admitted

1 Of course, after going through this exercise, there will be facts that you have concluded are going to be part of the “facts of the case.” These are “facts beyond control.” At that point it is wise to consider how your case theory might embrace these facts beyond control, thereby neutralizing their damaging impact. However, this paper is meant to serve as a caution to the defense attorney to not engage in the exercise of developing a case theory around seemingly bad facts until she has thoroughly considered whether she can exclude those facts from the case.

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at trial and how it can be used. We must use our litigation strategy to define how these issues are discussed.

B.

A second stage of evidence blocking involves identifying problems with government witnesses. This includes considering the witness’ basis of knowledge. A witness may not testify regarding facts about which she does not have personal knowledge. It also includes thinking about any privileges the witness may have. Be thoughtful about whether a witness has a Fifth Amendment privilege. Consider marital privilege, attorney/client privilege, and any other privilege that could present an obstacle to the government’s ability to introduce testimony it desires in its case. Another example of a witness problem is incompetency. We should always be on the lookout for information that arguable renders a witness incompetent to testify and move to have that witness excluded from testifying at trial. These are some examples of witness problems.

Witness Problems

C.

While witness problems relate to problems with the witness herself, we must also consider a third stage of evidence blocking: problems with the evidence itself. Even with a witness who has no problems such as those described above, there may be problems with the evidence the government wishes for them wish to present. Perhaps the information the witness has is barred because it is hearsay. Consider whether the evidence is arguably irrelevant. Think about whether the evidence is substantially more prejudicial than probative. These are all examples of problems with the evidence.

Evidence Problems

D.

A final stage of evidence blocking involves a problem with the method

Presentation Problems

of presentation of the evidence. Maybe the government is unable to complete the necessary chain of custody. The prosecutor may be missing a witness who is critical to completing the chain of custody. Maybe the prosecutor has never been challenged with respect to chain of custody and is unaware of who he needs to get the evidence admitted. By being on your feet you may successfully exclude the evidence the prosecutor needs to make its case against your client. Another example of a presentation problem is where the prosecutor is unable to lay a proper foundation for admission of some evidence. A third example is a prosecutor who is unable to ask a proper question (for example, leading on

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direct). These are all examples of problems the prosecutor could have in getting evidence before the jury if you are paying attention and making the appropriate objections. IV.

Some motions must be filed in writing prior to trial, such as motions to suppress. Each jurisdiction is different on the requirement regarding what must be filed pre-trial and the timing of the filing

How Do You Raise An Issue Once you have decided that there is evidence that should not be admitted at your trial you must consider the best method for bringing the issue to the Court’s attention. You essentially have three options: 1) file a pretrial written Motion in Limine, 2) raise the issue orally as a preliminary matter, or 3) lodge a contemporaneous objection. There are pros and cons to each of these methods.

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What are the pros and cons of the different methods of raising an objection? Let’s first consider a written, pretrial motion in limine. There are several advantages to filing a pretrial motion in limine to exclude evidence on evidentiary grounds. One is that it gives you a chance to educate the judge on the issue. Judges, like all of us, often do not know all of the law governing a particular issue off the top of their heads. If forced to rule on an issue without giving it careful thought, most judges rely on instinct. It is the rare judge whose instinct it is to help the criminal defendant. If the judge is going to rely on one of the parties to guide her, it is more often than not the prosecutor

. For any motions that must be filed pretrial, you should always file pretrial motions whenever possible, for reasons stated below. However, many evidentiary issues may be raised without filing a motion. Objections to evidence on grounds that it is hearsay, irrelevant, substantially more prejudicial than probative, or any number of evidentiary grounds, are routinely made contemporaneously during trial. Certainly, should you anticipate an evidentiary issue in advance of trial you may raise it with the court. This may be done orally as a preliminary matter or in writing as a motion in limine.

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2 In Georgia, pursuant to O.C.G.A. 17-7-110, all pretrial motions, demurrers, and special pleas must be filed within ten days of the date of arraignment unless the trial court grants additional time pursuant to a motion. 3 To the extent that you have previous experience with that judge and you have developed a reputation for being thorough, smart, and honest, you may be the person upon whom the judge relies. If that is the case with the judge before whom you will be in trial, that may factor into your decision about whether to object contemporaneously.

. Therefore, you are often better often having had the chance to educate the judge than to rely on her ruling in your favor on a contemporaneous objection when the answer is not obvious.

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A second reason for filing a written motion pretrial is that you are entitled to a response from the prosecutor. This benefits you in several ways. First, every time you force the prosecution to commit something to writing, you learn a little more about their case. Filing motions are a great way to get additional discovery by receiving a response. Second, whenever the prosecutor commits something to writing, he is locking himself into some version of the facts. If he characterizes a witnesses testimony in a particular way and that witness ends up testifying differently, you have an issue to litigate. Presumably, the prosecutor accurately stated in his response to your motion what the witness told him or his agent. You now are entitled to call the prosecutor, or his agent, to impeach the witness. Maybe the response is an admission of the party opponent that can be introduced at trial. The bottom line is that there is now an issue where there would not have been one had you not forced the response to your motion4

4 One of Jonathan Stern’s cardinal rules that I have taken to heart is that you always want to be litigating something other than guilt or innocence.

. A third reason for filing a written motion is that there is always the chance that the prosecutor will fail to respond, despite being required to by law or ordered to by the court. Whenever the prosecutor fails to respond to a written motion you are in a position to ask for sanctions. Sanctions may be for the court to treat your motion as conceded. They might be exclusion of some evidence. Perhaps you may get an instruction in some circumstances. Be creative in the sanctions you request. A fourth reason is that when you file a motion, you get a hearing. Pretrial hearings are great things. They give us a further preview of the prosecutions case, commit the prosecution to the evidence presented at the hearing, and may result in sanctions. A fifth reason for filing motions whenever you can is that it increases the size of your client’s court file. A thick court file can be beneficial to your client in several ways. The shear size of a large court file is intimidating to judges and prosecutors. Judges like to move their dockets. Thick case files tend to be trials that take a long time to complete. Judges will be less likely to force you to trial in a case with a thick case jacket. Similarly, prosecutors often have to make choices about which cases to offer better pleas in or to dismiss outright. The more of a hassle it is to deal with a case, the greater the chance the prosecutor will offer a good plea to your client or dismiss the case outright. A sixth reason is that by taking the time to research and write the motion, you are better preparing yourself to deal with the issue and to consider how it impacts your trial strategy.

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A final reason for filing pretrial motions even when not required is that you appear to be honest and concerned with everyone getting the result right. By appearing to be on the up and up you can gain points with the court that will spill over to other aspects of the trial. What are the downsides to filing a motion in advance of trial. One is certainly that you give the prosecution a heads up to an issue you seek to raise. To the extent that you identify a problem with the government’s case, they may be able to fix it with advance notice. Certainly this is an important consideration that must be factored into your decision about whether to raise an evidentiary issue in writing, pretrial. A second issue, which concerns me much less, is that it allows the prosecutor to do the research he needs to do to address the legal issue you raise. Certainly by filing a pretrial motion you allow everyone to be more prepared. However, if the issue is an important one, and the judge’s ruling depends on the prosecutor having a chance to do some research, most judges will give the prosecutor time to research the question before ruling whenever you raise it. To the extent this holds up the trial, there is always the risk the judge will fault you for not raising the issue earlier. The third option, raising the issue orally as a preliminary matter, is a compromise between the other two alternatives. Obviously, it has some of the pros and cons of the other alternatives. How you handle any given issue must be the product of careful thought and analysis. V. Conclusion In conclusion, as defense attorneys we must take advantage of any tools at our disposal to alter the landscape of the trial in our client’s favor. In order to do this we must understand and appreciate the difference between facts in the world and facts in the case. By undergoing a rigorous analysis of the facts that are potentially part of the case against our client, we may be able to keep some of those facts out of evidence. This exercise has the benefit of keeping from the prosecutor some of the blocks he hoped to use to build the case against you client. It alters the facts of the case in a way the prosecutor may be unable to deal with. And by litigating these issues we stand to derive residual benefits that will shape the outcome of the trial.

8 Trial Briefs n APRIL 2005

F O C U S

by Stephen P. Lindsay

Stephen P. Lindsay is a senior partner in the law firm of Cloninger, Lindsay, Hensley & Searson, P.L.L.C, in Asheville. His firm specializes in all types of litigation. Lindsay focuses primarily on criminal defense in both state and federal courts. He graduated from Guilford College with a BS in Administration of Justice and earned his JD from the University of North Carolina School of Law. A faculty member of the National Criminal Defense College in Macon, Georgia, Lindsay dedicates between four and six weeks per year teaching and lecturing for various public defender organizations and criminal defense bar associations both within and outside of the United States.

If You Build It, They Will Come: Creating and Utilizing a Meaningful Theory of Defense

So the file hits your desk. Before you open to the first page you hear the shrill noise of not just a single dog,

but a pack of dogs. Wild dogs. Nipping at your pride. You think to yourself, “Why me? Why do I always get the dog cases? It must be fate.” You calmly place the file on top of the stack of ever-growing canine files. Your reach for your cup of coffee and seriously consider upping your member-ship in the S.P.C.A. to “Angel” status. Just as you think a change in profession might be in order, your coworker steps in the door, new file in hand, lets out a piercing howl and says, “This one is the dog of all dogs. The mother of all dogs!” Alas. You are not alone.

Dog files bark because there does not appear to be any reasonable way to mount a successful defense. Put another way, winning the case is about as likely as a crowd of people coming to watch a baseball game at a ballpark in a cornfield in the middle of Iowa. According to the movie, Field of Dreams, “If you build it, they will come . . .” And they came. And they watched. And they enjoyed. Truth be known, they would come again, if invited —even if they were not invited.

Every dog case is like a field of dreams: nothing to lose and everything to gain. Believe it or not, out of each dog case can rise a meaningful, believable, and solid de-fense—a defense that can win. But as Kev-in Costner’s wife said in the movie, “[I]f all of these people are going to come, we have a lot of work to do.” The key to build-ing the ballpark is in designing a theory of defense supported by one or more mean-ingful themes.

What Is a Theory and Why Do I Need One? Having listened over the last 20 years to some of the finest criminal defense attor-neys lecture on theories and themes, it has

become clear to me that there exists great confusion as to what constitutes a theory and how it differs from supporting themes. The words “theory” and “theme” are of-ten used interchangeably. However, they are very different concepts. So what is a theory? Here are a few definitions:

• That combination of facts (beyond change) and law which in a common sense and emotional way leads a jury to conclude a fellow citizen is wrong-fully accused.—Tony Natale

• One central theory that organizes all facts, reasons, arguments and furnishes the basic position from which one determines every action in the trial. —Mario Conte

• A paragraph of one to three sentences which summarizes the facts, emotions and legal basis for the citizen accused’s acquittal or conviction on a lesser charge while telling the defense’s story of innocense or reduces culpability. —Vince Aprile

Common Thread Theory ComponentsAlthough helpful, these definitions, with-out closer inspection, tend to leave the reader thinking “Huh?” Rather than try to decipher these various definitions, it is more helpful to compare them to find com-monality. The common thread within these definitions is that each requires a theory of defense to have the same three essential el-ements:

1. a factual component (fact-crunching/brainstorming);

2. a legal component (genre); and 3. an emotional component (themes/

archetypes).

In order to fully understand and appre-ciate how to develop each of these elements in the quest for a solid theory of defense, it

APRIL 2005 n Trial Briefs 9

C R E A T I N G A N D U T I L I Z I N G A M E A N I N G F U L T H E O R Y O F D E F E N S E

is helpful to have a set of facts with which to work. These facts can then be used to create possible theories of defense. The Kentucky Department of Public Advocacy developed the following fact problem:

State v. Barry Rock, 05 CRS 10621 (Buncombe County)

Betty Gooden is a “pretty, very intelligent young lady” as described by the social worker investigating her case. Last spring, Betty went to visit her school guidance counselor, introducing herself and com-menting that she knew Ann Haines (a girl that the counselor had been working with due to a history of abuse by her uncle, and who had recently moved to a foster home in another school district).

Betty said that things were not going well at home. She said that her stepdad, Barry Rock, was very strict and would make her go to bed without dinner. Her mother would allow her and her brother (age 7) to play outside, but when Barry got home, he would send them to bed. She also stated that she got into trouble for bringing a boy home. Barry yelled at her for having sex with boys in their trailer. This morning, she said, Barry came to school and told her teacher that he caught her cheating—copy-ing someone’s homework. She denied hav-ing sex with the boy or cheating. She was very upset that she wasn’t allowed to be a normal teenager like all her friends.

The counselor asked her whether Barry ever touched her in an uncomfortable way. She became very uncomfortable and began to cry. The counselor let her return to class, then met her again later in the day with a police officer present. At that time, Betty stated that since she was 10, Barry had told her if she did certain things, he would let her open presents. She explained how this led to Barry coming into her room in the middle of the night to do things with her. She stated that she would try to be loud enough to wake up her mother in the room next door in the small trailer, but her mother would never come in. Her mother is mentally retarded, and before marrying Barry, had quite a bit of contact with Social Services due to her weak parenting skills. She stated that this had been going on more and more frequently in the last month and estimated it had happened 10 times.

Betty is an A/B student who showed no

sign of academic problems. After report-ing the abuse, she has been placed in a fos-ter home with her friend Ann. She has also attended extensive counseling sessions to help her cope. Medical exams show that she has been sexually active.

Kim Gooden is Betty’s 35-year-old men-tally retarded mother. She is a “very meek and introverted person” who is “very soft spoken and will not make eye contact.” She told the investigator she had no idea Bar-ry was doing this to Betty. She said Barry made frequent trips to the bathroom and had a number of stomach problems that caused diarrhea. She said that Betty always wanted to go places with Barry and would rather stay home with Barry than go to the store with her. She said that she thought Betty was having sex with a neighbor boy, and she was grounded for it. She said that Betty always complains that she doesn’t have normal parents and can’t do the things her friends do. She is very confused about why Betty was taken away and why Bar-ry has to live in jail now. An investigation of the trailer revealed panties with semen that matches Barry. Betty says those are her panties. Kim says that Betty and her are the same size and share all of their clothes.

Barry Rock is a 39-year-old mentally re-tarded man who has been married to Kim for five years. They live together in a small trailer making do with the Social Security checks that they both get due to mental re-tardation.

Barry now adamantly denies that he ever had sex and says that Betty is just making this up because he figured out she was hav-ing sex with the neighbor boy. After Betty’s report to the counselor, Barry was inter-

viewed for six hours by a detective and local police officer. In this videotaped statement, Barry is very distant, not making eye con-tact, and answering with one or two words to each question. Throughout the tape, the officer reminds him just to say what they talked about before they turned the tape on. Barry does answer “yes” when asked if he had sex with Betty and “yes” to other lead-ing questions based on Betty’s story. At the end of the interview, Barry begins rambling that it was Betty that wanted sex with him, and he knew that it was wrong, but he did it anyway.

Barry has been tested with IQs of 55, 57, and 59 over the last three years. Following a competency hearing, the trial court found Barry to be competent to go to trial.

The Factual Component The factual component of the theory of de-fense comes from brainstorming the facts. More recently referred to as “fact-busting,” brainstorming is the essential process of setting forth facts that appear in discovery and arise through investigation.

It is critical to understand that facts are nothing more—and nothing less—than just facts during brainstorming. Each fact should be written down individually and without any spin. Non-judgmental recitation of the facts is the key. Do not draw conclusions as to what a fact or facts might mean. And do not make the common mistake of attribut-ing the meaning to the facts that is given to them by the prosecution or its investigators. It is too early in the process to give value or meaning to any particular fact. At this point, the facts are simply the facts. As we work through the other steps of creating a theory of defense, we will begin to attribute meaning to the various facts.

Judgmental Facts Non-Judgmental Facts (WRONG) (RIGHT)

Barry was retarded Barry had an IQ of 70

Betty hated Barry Barry went to Betty’s school, went to her classroom, confronted her about lying, accused her of sexual misconduct, talked with her about cheating, dealt with her in front of her friends

Confession was coerced Several officers questioned Barry, Barry was not free to leave the station, Barry had no family to call, questioning lasted six hours



The Legal ComponentNow that the facts have been developed in a neutral, non-judgmental way, it is time to move to the second component of the theo-ry of defense: the legal component. Experi-ence, as well as basic notions of persuasion, reveal that stark statements such as “self-defense,” “alibi,” “reasonable doubt,” and similar catch-phrases, although somewhat meaningful to lawyers, fail to accurately and completely convey to jurors the essence of the defense. “Alibi” is usually interpret-ed by jurors as “He did it, but he has some friends that will lie about where he was.” “Reasonable doubt” is often interpreted as, “He did it, but they can’t prove it.”

Thus, the legal component must be more substantive and understandable in order to accomplish the goal of having a meaning-ful theory of defense. Look at Hollywood and the cinema; thousands of movies have been made that have as their focus some type of alleged crime or criminal behavior. According to Cathy Kelly, training director for the Missouri Pubic Defender’s Office, when these types of movies are compared, the plots, in relation to the accused, tend to fall into one of the following genres:

1. It never happened (mistake, set-up);2. It happened, but I didn’t do it (mistak-

en identification, alibi, set-up, etc.);3. It happened, I did it, but it wasn’t a

crime (self-defense, accident, claim or right, etc.);

4. It happened, I did it, it was a crime, but it wasn’t this crime (lesser included offense);

5. It happened, I did it, it was the crime charged, but I’m not responsible (insanity, diminished capacity);

6. It happened, I did it, it was the crime charged, I am responsible, so what? (jury nullification).

The six genres are presented in this particular order for a reason. As you move down the list, the difficulty of persuading the jurors that the defendant should prevail increases. It is easier to defend a case based upon the legal genre “it never happened” (mistake, set-up) than it is on “the defen-dant is not responsible” (insanity).

Using the facts of the Barry Rock ex-ample as developed through non-judgmen-tal brainstorming, try to determine which genre fits best. Occasionally, facts will fit

into two or three genres. It is important to settle on one genre, and it should usu-ally be the one closest to the top of the list; this decreases the level of defense difficul-ty. The Rock case fits nicely into the first genre (it never happened), but could also fit into the second category (it happened, but I didn’t do it). The first genre should be the one selected.

But be warned. Selecting the genre is not the end of the process. The genre is only a bare bones skeleton. The genre is a legal theory, not your theory of defense. It is just the second element of the theory of defense, and there is more to come. Where most attorneys fail when developing a the-ory of defense is in stopping once the le-gal component (genre) is selected. As will be seen, until the emotional component is developed and incorporated, the theory of defense is incomplete.

It is now time to take your work prod-uct for a test drive. Assume that you are the editor for your local newspaper. You have the power and authority to write a head-line about this case. Your goal is to write it from the perspective of the defense, be-ing true to the facts as developed through brainstorming, and incorporating the legal genre that has been selected. An example might be:

Rock Wrongfully Tossed from Home by Troubled Stepdaughter

Word choice can modify, or entirely change, the thrust of the headline. Consider the head-line with the following possible changes:

Rock → Barry, Innocent Man, Mentally Challenged Man

Wrongfully Removed, Ejected, Tossed → Sent Packing, Calmly Asked To Leave

Troubled → Vindictive, Wicked, Confused

Stepdaughter → Brat, Tease, Teen, Houseguest, Manipulator

Notice that the focus of this headline is on Barry Rock, the defendant. It is impor-tant to decide whether the headline could be more powerful if the focus were on someone or something other than the de-

fendant. Headlines do not have to focus on the defendant in order for the eventual the-ory of defense to be successful. The focus does not even have to be on an animate ob-ject. Consider the following possible head-line examples:

Troubled Teen Fabricates Story for Freedom

Overworked Guidance Counselor Unknowingly Fuels False Accusations

Marriage Destroyed When Mother Forced to Choose Between Husband and Troubled Daughter

Underappreciated Detective Tosses Rock at Superiors

Each of these headline examples can be-come a solid theory of defense and lead to a successful outcome for the accused.

The Emotional ComponentThe last element of a theory of defense is the emotional component. The factual ele-ment or the legal element, standing alone, are seldom capable of persuading jurors to side with the defense. It is the emotional component of the theory that brings life, vi-ability, and believability to the facts and the law. The emotional component is generated from two sources: archetypes and themes.

Archetypes, as used herein, are basic, fundamental, corollaries of life that tran-scend age, ethnicity, gender and sex. They are truths that virtually all people in virtu-ally all walks of life can agree upon. For example, few would disagree that when one’s child is in danger, one protects the child at all costs. Thus, the archetype dem-onstrated would be a parent’s love and ded-ication to his or her child. Other archetypes include love, hate, betrayal, despair, pover-ty, hunger, dishonesty and anger. Most cas-es lend themselves to one or more arche-types that can provide a source for emotion to drive the theory of defense. Archetypes in the Barry Rock case include:

• The difficulties of dealing with a stepchild

• Children will lie to gain a perceived advantage

• Maternity/paternity is more powerful than marriage

• Teenagers can be difficult to parent

APRIL 2005 n Trial Briefs 11


Not only do these archetypes fit nicely into the facts of the Barry Rock case, each serves as a primary category of inquiry during jury selection.

In addition to providing emotion through archetypes, attorneys should use primary and secondary themes. A prima-ry theme is a word, phrase, or simple sen-tence that captures the controlling or dom-inant emotion of the theory of defense. The theme must be brief and easily remem-bered by the jurors.

For instance, a primary theme developed in the theory of defense and advanced dur-ing the trial of the O.J. Simpson case was, “If it doesn’t fit, you must acquit.” Other examples of primary themes include:

• One for all and all for one• Looking for love in all the

wrong places• Am I my brother’s keeper?• Stand by your man (or woman)• Wrong place, wrong time,

wrong person• When you play with fire, you’re going

to get burned

Although originality can be successful, it is not necessary to redesign the wheel. Music, especially country/western music, is a wonderful resource for finding themes. Consider the following lines taken direct-ly from the songbooks of Nashville (and assembled by Dale Cobb, an incredible criminal defense attorney from Charles-ton, South Carolina):

Top 10 Country/Western Lines (Themes?)

10. Get your tongue outta my mouth ’cause I’m kissin’ you goodbye.

9. Her teeth was stained, but her heart was pure.

8. I bought a car from the guy who stole my girl, but it don’t run so we’re even.

7. I still miss you, baby, but my aim’s gettin’ better.

6. I wouldn’t take her to a dog fight ’cause I’m afraid she’d win.

5. If I can’t be number one in your life, then number two on you.

4. If I had shot you when I wanted to, I’d be out by now.

3. My wife ran off with my best friend, and I sure do miss him.

2. She got the ring and I got the finger.1. She’s actin’ single and I’m drinkin’

doubles.

Incorporating secondary themes can often strengthen primary themes. A sec-ondary theme is a word or phrase used to identify, describe, or label an aspect of the case. Here are some examples: a person—“never his fault”; an action—“acting as a robot”; an attitude—“stung with lust”; an approach—“no stone unturned”; an omis-sion—“not a rocket scientist”; a condition —“too drunk to fish.”

There are many possible themes that could be used in the Barry Rock case. For example, “blood is thicker than water”; “Bit-ter Betty comes a calling”; “to the detec-tives, interrogating Barry should have been like shooting fish in a barrel”; “sex abuse is a serious problem in this country—in this case, it was just an answer”; “the extent to which a person will lie in order to feel ac-cepted knows no bounds.”

Creating the Theory of Defense ParagraphUsing the headline, the archetype(s) identi-fied, and the theme(s) developed, it is time to write the “Theory of Defense Paragraph.” Although there is no magical formula for structuring the paragraph, the following template can be useful:

Theory of Defense Paragraph• Open with a theme• Introduce protagonist/antagonist• Introduce antagonist/protagonist• Describe conflict• Set forth desired resolution• End with themeNote that the protagonist/antagonist does not have to be an animate object.

The following examples of theory of de-fense paragraphs in the Barry Rock case are by no means first drafts. Rather, they have been modified and adjusted many times to get them to this level. They are not perfect, and they can be improved upon. However, they serve as good examples of what is meant by a solid, valid, and useful theory of defense.

Theory of Defense Paragraph OneThe extent to which even good people will tell a lie in order to be accepted by others

knows no limits. “Barry, if you just tell us you did it, this will be over and you can go home. It will be easier on everyone.” Barry Rock is a very simple man. Not because of free choice, but because he was born men-tally challenged. The word of choice at that time was “retarded.” Despite these limita-tions, Barry met Kim Gooden, who was also mentally challenged, and the two got married. Betty, Kim’s daughter, was young at that time. With the limited funds from Social Security Disability checks, Barry and Kim fed and clothed Betty, made sure she had a safe home in which to live, and provided for her many needs. Within a few years, Betty became a teenager, and with that came the difficulties all parents expe-rience with teenagers: not wanting to do homework, cheating to get better grades, wanting to stay out too late, experimenting with sex. Mentally challenged, and only a stepparent, Barry tried to set some rules—rules Betty didn’t want to obey. The lie that Betty told stunned him. Kim’s trust in her daughter’s word, despite Barry’s denials, hurt him even more. Blood must be thicker



than water. All Barry wanted was for his family to be happy like it had been in years gone by. “Everything will be okay, Barry. Just say you did it and you can get out of here. It will be easier for everyone if you just admit it.”

Theory of Defense Paragraph TwoThe extent to which even good people will tell a lie in order to be accepted by oth-ers knows no limits. Full of despair and all alone, confused and troubled, Betty Gooden walked into the guidance counselor’s of-fice at her school. Betty was at what she be-lieved to be the end of her rope. Her mother and stepfather were mentally retarded. She was ashamed to bring her friends to her house. Her parents couldn’t even help her with homework. She couldn’t go out as late as she wanted. Her stepfather punished her for trying to get ahead by cheating. He even came to her school and made a fool of him-self. No—of her!!! She couldn’t even have her boyfriend over and mess around with him without getting punished. Life would

be so much simpler if her stepfather were gone. As she waited in the guidance coun-selor’s office, Bitter Betty decided there was no other option—just tell a simple, not-so-little lie. Sex abuse is a serious problem in this country. In this case, it was not a prob-lem at all—because it never happened. Sex abuse was Betty’s answer.

The italicized portions in the above ex-amples denote primary themes and sec-ondary themes—the parts of the emo-tional component of the theory of defense. Attorneys can strengthen the emotional component by describing the case in ways that embrace an archetype or archetypes—desperation in the first example, and shame towards parents in the second. It is also im-portant to note that even though each of these theories are strong and valid, the fo-cus of each is from a different perspective. The first theory focuses on Barry, and the second on Betty.

The primary purpose of a theory of de-fense is to guide the lawyer in every action

taken during trial. The theory will make trial preparation much easier. It will dic-tate how to select the jury, what to include in the opening, how to handle each witness on cross, how to decide which witnesses are necessary to call in the defense case, and what to include in and how to deliver the closing argument. The theory of de-fense might never be shared with the ju-rors word for word; but the essence of the theory will be delivered through each wit-ness, so long as the attorney remains dedi-cated and devoted to the theory.

In the end, whether you choose to call them dog cases, or to view them, as I

suggest you should, as fields of dreams, such cases are opportunities to build base-ball fields in the middle of cornfields in the middle of Iowa. If you build them with a meaningful theory of defense, and if you believe in what you have created, the peo-ple will come. They will watch. They will listen. They will believe. “If you build it, they will come . . .” n

Leonard T. Jernigan, Jr., attorney and adjunctprofessor of law, is pleased to announce that the 4th

edition of North Carolina Workers’ Compensation -Law and Practice is now available from ThomsonWest Publishing (1-800-328-4880).

Leonard T. Jernigan, Jr.Attorney at Law

The Jernigan Law FirmLeonard T. Jernigan, Jr.N. Victor FarahGina E. CammaranoLauren R. Trustman

Practice Limited To:Workers’ CompensationSerious Accidental Injury

Wachovia Capitol Center150 Fayetteville Street MallSuite 1910, P.O. Box 847Raleigh, North Carolina 27602

(919) 833-1283(919) 833-1059 faxwww.jernlaw.com

JURY INSTRUCTIONS

1

Creative Use of Jury Instructions

Why are jury instructions important?

They are the law of the universe of your case.

They are the only law the jurors will hear.

They come from the judge, not from either side.

They are the last thing the jurors hear.

Because jurors want to do the right thing.

Pattern vs. Non-Pattern Jury Instructions

PATTERN JURY INSTRUCTIONS are written by a committee of eleven superior court judges and are updated annually. They are published by the SOG each June.

NON-PATTERN JURY INSTRUCTIONS are written by the trial judge, the DA or YOU in cases where the pattern instructions fail to address a legal question at issue in the case.

2

When should you be thinking about writing your own instruction?

WHENEVER A CRITICAL CONCEPT ISN’T

CLEARLY ARTICULATED BY ANY OF THE

PATTERN INSTRUCTIONS.

When should I read the jury instructions?

AS SOON AS YOU THINK THERE IS ANY CHANCE THAT THE CASE IS GOING TO TRIAL!

Focusing on the jury instructions will help you focus on the issues and doing so as

early as possible will help you make better use of your prep time.

Why do we try the cases we try?

We have a great case, with great issues!

Our client is being unreasonable and/or can’t bring him/herself to sign up for time in prison.

The DA is being unreasonable and, with a plea offer that lousy, there’s nothing to lose in going to trial.

3

What does the last slide have to do with jury instructions?

RARELY ARE YOU GOING TO TRIAL BECAUSE YOU’VE

GOT A GREAT CASE. YOU NEED TO BE FOCUSED ON THE ISSUES & HOW FOCUS

THE JURY’S ATTENTION ON YOUR ISSUES .

EXAMPLES OF NON-PATTERN

INSTRUCTIONS

Witness has been granted immunity:

“There is evidence in this case which shows that the witness, Joe Plumber, is testifying under an agreement with the prosecutor, whereby he will not be prosecuted for his crimes in exchange for his testimony against the defendant.

In the situation presented, Mr. Plumber is considered, by law, to have an interest in the outcome of this case. You should therefore be suspicious of his testimony and approach it with the greatest care and caution.

In your deliberations you should carefully consider whether there are inconsistencies in the evidence of Mr. Plumber and what evidence exists to support what he is saying.”

4

Mere presence 1

“I must caution you that merely being with the co-defendant at or near the location of the crimes, does not render the defendant guilty of any crime. Association or contact between the defendant the co-defendant before or after the commission of these crimes is not sufficient and will not justify the conclusion that the defendant is guilty.”

Mere presence 2

“A person is not guilty of a crime merely because they are present at or near the scene of the crime. In this case, if you find that the defendant was merely involved in the fight inside the restaurant, along with the actual perpetrator of this crime, either before or after the commission of the crime, this evidence, in and of itself, is not proof of guilt.”

Analyst failed certification exam

“You have heard evidence in this case that Ms. Smith, the DNA analyst employed by the State Bureau of Investigations, has not passed her certification exam, as required by the NC General Assembly. You may consider this evidence, along with other evidence about her qualifications, when determining what, if any, weight to give to her testimony”

5

Eyewitness Identification Reform Act

“There has been eyewitness testimony in this case identifying the defendant as the perpetrator of this crime. There has also been testimony about the failure of the Rocky Mount Police Department to comply with the Eyewitness Identification Reform Act. The purpose of that law is to solve crime, convict the guilty, & exonerate the innocent. The Court has taken judicial notice of the law and a copy will be provided to you along with these jury instructions. If you are not convinced beyond a reasonable doubt that the police failure to comply with the law did not taint the identification, you may disregard the evidence.”

Value is contested

“And Sixth, that the fair market value of the stolen property was greater than $1000. The jury shall not consider the replacement cost for the property but only its fair market value.”

Officer gives opinion testimony

“Officer Brady provided opinion testimony in this trial. Opinion testimony is offered, solely, for the purpose of corroborating other evidence. You should consider the officer’s opinion only if you believe it is consistent with the other evidence. Officer Brady is not an expert and his opinion should not be given more weight than that of any civilian witness.”

6

Finally, always remember…

The jury must not only consider the case in accordance with the State’s theory of the occurrence but also in accordance

with the defendant’s theory. Defendant in apt time requested that the law bearing upon his theory of the case be presented to the jury. He was merely asking the court to charge the law arising on the evidence. Justice and the

law countenance nothing less.- State v. Tioran, 65 N.C.App.122, 125 (1983),

citing State v. Harrington, 260 N.C. 663, 666 (1963).

RECORDS GATHERING

ART OF SENTENCING

Robert C. Kemp, III Pitt County Public Defender

New Felony Defender Training February 15, 2013

A judge is a man who ends a sentence with a sentence. -Unknown Guideline 8.1 Obligations of Counsel in Sentencing 1) Manage Client’s Expectations

a. Fully inform client of potential sentences. b. Explain to client left/right limits of sentencing options.

2) Sell The Plea

a. To the Prosecutor b. To the Client c. To the Judge

Guideline 8.2 Sentencing Options, Consequences, and Procedures 1) Know your options and its consequences, to include collateral consequences

Options: Deferred prosecution, NCGS 90-96 sentencing,

consolidation of charges, probation, split-sentence, incarceration, drug rehabilitation programs, drug court, post-release supervision.

Consequences: Loss of driver’s license, deportation, violation of probation,

no contact order, loss of certification/professional license, loss of the use of a firearm, loss of rights of citizenship, etc.

2) Review NCGS 15A-1334—The Sentencing Hearing

- Formal rules of evidence do not apply.

Guideline 8.3 Preparation for Sentencing 1) Gather helpful documents

a. Employment history: paychecks, attendance history, W-2 forms, letter from employer

b. Proof of education: transcript, class schedule, letter from registrar c. Medical/mental health records d. Any certifications and licenses e. Any evaluation and treatment documents f. Military documents g. Client’s financial documents 2) Determine who will be in court on behalf of your client.

a. Parents, spouse, children, church official, doctor, etc. 3) Do you need a mitigation specialist?

a. Serious cases (A, B1, B2 Felonies). b. Will the court grant you the funds to hire one?

4) Appearance of Client (You are an artist! Know your audience!)

a) Haircut b) Clean Clothes c) Tie (if male) d) Belt e) Shoes/Socks (no flip-flops) f) No jewelry (except wedding ring), conservative earrings on females,

tasteful religious symbol g) Hide Tattoos! (If possible) h) No gum i) Stay in courtroom unless official break j) No hands in pockets k) No cell phone l) No crossed arms m) “Dress like you are going to your Grandmother’s funeral”

5) Will Client Address the Court?

- Address the Court “Your Honor” or “Yes Ma’am/Sir” 6) Will anyone else address the Court?

- Deviation from NCGS 15A-1334

Guideline 8.4 The Sentencing Services Plan or Presentence Report 1) If your district provides such a service, this is a valuable option.

a. Make a tactical decision on whether such a plan/report is prepared. b. If your client participates, ensure the plan/report is accurate and complete. c. If approved by the Court, IDS will authorize, and pay, a flat fee of $500 for

defense requested sentencing plans. Guideline 8.5 The Prosecution’s Sentencing Position 1) Determine prosecutor’s position on sentencing

a. Agree to no jail, will not object to probationary sentence, consolidation of sentences, concurrent sentences, restitution issues, etc.

b. Factual Basis: minimum or no gruesome details 2) Restitution

a. Agree to amount ahead of time (leverage). b. If no such agreement, judge shall determine whether Defendant pays. NCGS

15A-1340.34 c. Amount of restitution must be supported by the record/evidence. 15A-1340-36 d. Examples:

i. Bodily injuries—medical bills/income lost. 15A-1340.35(a)(1) ii. Real/personal property—value of the property on the date of the

damage. 15A-1340.35(a)(2) iii. Death of individual—funeral expenses/medical bills/income lost. 15A-

1340.35(a)(4)

e. Court must take into account ability to pay. 15A-1340.36 Guideline 8.6 The Defense Sentencing Theory 1) Mitigation Factors: (NCGS 15A-1340.16)

a. Burden of Proof—on Defendant - preponderance of the evidence

b. Proven at sentencing hearing

2) Aggravating Factors: (NCGS 15A-1340.16) a. Burden of Proof—on State - beyond a reasonable doubt

b. Must be admitted by Defendant or determined by a jury

3) Departing from the presumptive range is in the discretion of the court. NCGS 15A-1340.6(a)

4) Recommended Sentence:

a. Use the phrase: “I would respectfully request the Court to consider …..when fashioning a judgment.”

b. Use the phrase: “Would the Court consider……”

5) KNOW THE JUDGE! a. Her peculiarities; b. Her idiosyncrasies; c. Her typical judgments for certain offenses; d. Her willingness to predict sentence pre-plea; or e. Her “pet peeves”

6) Most of the time: CLEAR, CONCISE, CREDIBLE AND CONFIDENT

a. Credibility can be lost in a sentencing hearing i. Do not guess ii. Do not embellish/exaggerate iii. No ridiculous points

b. Do not get a reputation for coming to court unprepared. (Asking your client the answer to a judge’s question IN COURT!)

6) Examples of theories (not necessarily good ones): one of the crowd; a pawn in

the crime; substance abuse; spousal abuse; parent abuse, stupid mistake; youngest one involved; has taken responsibility and ready to pay for her deeds, financially destitute, etc.

7) Substantial Assistance [90-95(h)]

- Have officer and ADA locked into the deal. 8) Extraordinary Mitigation[1340.13(g)]—Good Luck

- Do not ask for it without permission of your supervising attorney. 9) Advanced Supervised Release—if DA does not object. 15A-1340.18

10) Federal Charges and Court - Trafficking of drugs, child pornography, illegal firearm possession - Target Letter - Proffer Agreement - If you think your case may go Federal, talk to your supervising attorney. Guideline 8.7 The Sentencing Process 1) Know the Basics of your case:

a. The facts of the case. b. Client’s background: born and raised, education, family life, work history c. Forecast the future for your client if the Court gives your client a second

chance. d. What has the client done since being arrested.

2) Weave your facts into your mitigation factors. 3) If court rejects plea deal with sentencing recommendations, defendant is entitled

to a continuance. NCGS 15A-1023(b). 4) District Attorney may withdraw guilty plea at ANYTIME before the Court

accepts it. 5) If your client has first been found incompetent to stand trial and then is

rehabilitated, do not forget the competency hearing BEFORE you take the plea.

1. a. The defendant induced others to participate in the commission of the offense.

2. a. The offense was committed for the purpose of avoiding or preventing a lawful arrest.

3. a. The defendant was hired to commit the offense.

4. a. The offense was committed to disrupt the lawful exercise of a governmental function or the enforcement of laws.

5. The offense was committed against a present or former: law enforcement officer, employee of the Department of

6. The offense was especially heinous, atrocious or cruel.7. The defendant knowingly created a great risk of death to more than one person by means of a weapon or device which

8. The defendant held public office at the time of the offense and the offense related to the conduct of the office.9. a. The defendant was armed with a deadly weapon at the time of the crime.

10.a. The victim was very young.

11. The defendant committed the offense while on pretrial release on another felony charge.12. The defendant involved a person under the age of 16 in the commission of the crime.13.a. The offense involved an attempted taking of property of great monetary value.

14. The defendant took advantage of a position of trust or confidence to commit the offense.15. The defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days confinement.16. The offense was committed against a victim because of the victim's race, color, religion, nationality, or country of origin.17. The offense was committed because of the race, color, religion nationality, or county of origin of another person.18. Additional written findings of factors in aggravation:

Name Of Defendant

STATE OF NORTH CAROLINA

AGGRAVATING FACTORS

File No.

FELONY JUDGMENTFINDINGS OF FACTORS IN AGGRAVATION

AND MITIGATION OF PUNISHMENT

STATE VERSUS

G.S. 15A-1340.4(a)NOTE: Separate findings of aggravating factors and mitigating factors should be made for each offense. Only one factor should be found under each numbered item for which there are alternatives listed.

Material opposite unmarked squares is to be disregarded as surplusage.(Over)

The Court makes no findings of any aggravating factors.

In The General Court Of JusticeSuperior Court Division

would normally be hazardous to the lives of more than one person.

Correction, jailer, fireman, emergency medical technician, ambulance attendant, justice or judge, clerk or assistant or deputy clerk of court, magistrate, prosecutor, juror, or witness against the defendant, while engaged in the performance of that person's official duties or because of the exercise of that person's official duties. (NOTE: Strike words that are not applicable.)

County

b. The defendant occupied a position of leadership or dominance of other participants in the commission of the offense.

b. The offense was committed for the purpose of effecting an escape from custody.

b. The defendant was paid to commit the offense.

b. The offense was committed to hinder the lawful exercise of a governmental function or the enforcement of laws.

b. The defendant used a deadly weapon at the time of the crime.

b. The offense involved the actual taking of property of great monetary value.c. The offense involved damage causing great monetary loss.d. The offense involved an unusually large quantity of contraband.

b. The victim was very old.c. The victim was mentally infirm.d. The victim was physically infirm.

AOC-CR-303, Rev. 7/95 1997 Administrative Office of the Courts

Date Name Of Presiding Judge (Type Or Print) Signature Of Presiding Judge

The Court makes no findings of any mitigating factors.

DETERMINATION (NOTE: Check only one)

factors in aggravation outweigh the factors in mitigation.factors in mitigation outweigh the factors in aggravation.

1. The defendant has no record of criminal convictions. 2. The defendant has a record of criminal convictions consisting solely of misdemeanors punishable by not more than 60

3. The defendant committed the offense under duress which was insufficient to constitute a defense but significantly

4. The defendant committed the offense under coercion which was insufficient to constitute a defense but significantly

5. The defendant committed the offense under threat which was insufficient to constitute a defense but significantly

6. The defendant committed the offense under compulsion which was insufficient to constitute a defense but

7. The defendant was a passive participant in the commission of the offense. 8. The defendant played a minor role in the commission of the offense. 9. The defendant was suffering from a mental condition that was insufficient to constitute a defense but significantly

10. The defendant was suffering from a physical condition that was insufficient to constitute a defense but significantly

11. The defendant's immaturity at the time of the commission of the offense significantly reduced the defendant's

12. The defendant's limited mental capacity at the time of the commission of the offense significantly reduced the

13. The defendant has made substantial restitution to the victim.14. The defendant has made full restitution to the victim.15. The victim was more than 16 years of age and was a voluntary participant in the defendant's conduct.16. The victim was more than 16 years of age and consented to the defendant's conduct.17. The defendant aided in the apprehension of another felon.18. The defendant testified truthfully on behalf of the state in another prosecution of a felony.19. The defendant acted under strong provocation.20. The relationship between the defendant and the victim was an extenuating circumstance.21. The defendant could not reasonably foresee that the defendant's conduct would cause or threaten serious bodily harm

22. The defendant exercised caution to avoid serious bodily harm or fear to other persons.23. The defendant reasonably believed that the defendant's conduct was legal.24. Prior to arrest, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law

25. At an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the

26. The defendant has been honorably discharged from the United States Armed Services.27. The defendant has been a person of good character or has had a good reputation in the community in which the

28. The defendant is a minor and has reliable supervision available.29. Additional written findings of factors in mitigation:

MITIGATING FACTORS

Material opposite unmarked squares is to be disregarded as surplusage.

The Court, after considering the evidence and arguments presented at the trial and sentencing hearing, finds that the aggravating and mitigating factors marked, if any, were proven by a preponderance of the evidence and that the

days imprisonment.

reduced the defendant's culpability.



significantly reduced the defendant's culpability.

reduced the defendant's culpability for the offense.

reduced the defendant's culpability for the offense.

culpability for the offense.

defendant's culpability for the offense.

or fear.

enforcement officer.

defendant lives.

offense to a law enforcement officer.

AOC-CR-303, Side Two, Rev. 7/95 1997 Administrative Office of the Courts


I 0-1 Pt

II 2-5 Pts

III 6-9 Pts

IV 10-13 Pts

V 14-17 Pts

VI 18+ Pts



240 - 300 276 - 345 317 -397 365 - 456 Life Without

Parole Life Without

Parole Aggravated Range 192 - 240 221 - 276 254 - 317 292 - 365 336 - 420 386 - 483 PRESUMPTIVE RANGE

B1

144 - 192 166 - 221 190 - 254 219 - 292 252 - 336 290 - 386 Mitigated Range

A A A A A A 157 - 196 180 - 225 207 - 258 238 - 297 273 - 342 314 - 393 125 - 157 144 - 180 165 - 207 190 - 238 219 - 273 251 - 314

B2

94 - 125 108 - 144 124 - 165 143 - 190 164 - 219 189 - 251 A A A A A A

73 – 92 83 - 104 96 - 120 110 - 138 127 - 159 146 - 182 58 - 73 67 - 83 77 - 96 88 - 110 101 - 127 117 - 146

C

44 - 58 50 - 67 58 - 77 66 - 88 76 - 101 87 - 117 A A A A A A

64 - 80 73 - 92 84 - 105 97 - 121 111 - 139 128 - 160 51 - 64 59 - 73 67 - 84 78 - 97 89 - 111 103 - 128

D

38 - 51 44 - 59 51 - 67 58 - 78 67 - 89 77 - 103 I/A I/A A A A A

25 - 31 29 - 36 33 - 41 38 - 48 44 - 55 50 - 63 20 - 25 23 - 29 26 - 33 30 - 38 35 - 44 40 - 50

E

15 - 20 17 - 23 20 - 26 23 - 30 26 - 35 30 - 40 I/A I/A I/A A A A

16 - 20 19 - 23 21 - 27 25 - 31 28 - 36 33 - 41 13 - 16 15 - 19 17 - 21 20 - 25 23 - 28 26 - 33

F

10 - 13 11 - 15 13 - 17 15 - 20 17 - 23 20 - 26 I/A I/A I/A I/A A A

13 - 16 14 - 18 17 - 21 19 - 24 22 - 27 25 - 31 10 - 13 12 - 14 13 - 17 15 - 19 17 - 22 20 - 25

G

8 - 10 9 - 12 10 - 13 11 - 15 13 - 17 15 - 20 C/I/A I/A I/A I/A I/A A 6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25 5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20

H

4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16 C C/I I I/A I/A I/A

6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12 4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10

OF

FE

NS

E C

LA

SS

I


Revised: 08-11-11

26

*** Effective for Offenses Committed on or after 12/1/11 ***

MINIMUM AND MAXIMUM SENTENCES The corresponding maximum sentence for each minimum sentence is shown in the tables below. In each column, the number to the left of the dash represents the minimum sentence (in months) and the number to the right of the dash represents the corresponding maximum sentence (in months).

__________________FOR OFFENSE CLASSES B1 THROUGH E_________________

15-30 52-75 89-119 126-164 163-208 200-252 237-297 274-341 311-386 16-32 53-76 90-120 127-165 164-209 201-254 238-298 275-342 312-387 17-33 54-77 91-122 128-166 165-210 202-255 239-299 276-344 313-388 18-34 55-78 92-123 129-167 166-212 203-256 240-300 277-345 314-389 19-35 56-80 93-124 130-168 167-213 204-257 241-302 278-346 315-390 20-36 57-81 94-125 131-170 168-214 205-258 242-303 279-347 316-392 21-38 58-82 95-126 132-171 169-215 206-260 243-304 280-348 317-393 22-39 59-83 96-128 133-172 170-216 207-261 244-305 281-350 318-394 23-40 60-84 97-129 134-173 171-218 208-262 245-306 282-351 319-395 24-41 61-86 98-130 135-174 172-219 209-263 246-308 283-352 320-396 25-42 62-87 99-131 136-176 173-220 210-264 247-309 284-353 321-398 26-44 63-88 100-132 137-177 174-221 211-266 248-310 285-354 322-399 27-45 64-89 101-134 138-178 175-222 212-267 249-311 286-356 323-400 28-46 65-90 102-135 139-179 176-224 213-268 250-312 287-357 324-401 29-47 66-91 103-136 140-180 177-225 214-269 251-314 288-358 325-402 30-48 67-93 104-137 141-182 178-226 215-270 252-315 289-359 326-404 31-50 68-94 105-138 142-183 179-227 216-271 253-316 290-360 327-405 32-51 69-95 106-140 143-184 180-228 217-273 254-317 291-362 328-406 33-52 70-96 107-141 144-185 181-230 218-274 255-318 292-363 329-407 34-53 71-98 108-142 145-186 182-231 219-275 256-320 293-364 330-408 35-54 72-99 109-143 146-188 183-232 220-276 257-321 294-365 331-410 36-56 73-100 110-144 147-189 184-233 221-278 258-322 295-366 332-411 37-57 74-101 111-146 148-190 185-234 222-279 259-323 296-368 333-412 38-58 75-102 112-147 149-191 186-236 223-280 260-324 297-369 334-413 39-59 76-104 113-148 150-192 187-237 224-281 261-326 298-370 335-414 40-60 77-105 114-149 151-194 188-238 225-282 262-327 299-371 336-416 41-62 78-106 115-150 152-195 189-239 226-284 263-328 300-372 337-417 42-63 79-107 116-152 153-196 190-240 227-285 264-329 301-374 338-418 43-64 80-108 117-153 154-197 191-242 228-286 265-330 302-375 339-419 44-65 81-110 118-154 155-198 192-243 229-287 266-332 303-376 45-66 82-111 119-155 156-200 193-244 230-288 267-333 304-377 46-68 83-112 120-156 157-201 194-245 231-290 268-334 305-378 47-69 84-113 121-158 158-202 195-246 232-291 269-335 306-380 48-70 85-114 122-159 159-203 196-248 233-292 270-336 307-381 49-71 86-115 123-160 160-204 197-249 234-293 271-338 308-382 50-72 87-117 124-161 161-206 198-250 235-294 272-339 309-383 51-74 88-118 125-162 162-207 199-251 236-296 273-340 310-384

To calculate a maximum sentence when the minimum sentence is 340 months or more, multiply the minimum sentence by 1.2 (i.e., 120%), round to the next highest month, and add 12. See G.S. 15A-1340.17(e1).

Sex Offenses: To calculate a maximum sentence for a Class B1 through E felony that is subject to the registration requirements of G.S. Chapter 14, Article 27A, multiply the minimum sentence by 1.2 (i.e., 120%), round to the next highest month, and add 60. See G.S. 15A-1340.17(f).

_________________FOR OFFENSE CLASSES F THROUGH I_________________

3-13 8-19 13-25 18-31 23-37 28-43 33-49 38-55 4-14 9-20 14-26 19-32 24-38 29-44 34-50 39-56 5-15 10-21 15-27 20-33 25-39 30-45 35-51 40-57 6-17 11-23 16-29 21-35 26-41 31-47 36-53 41-59 7-18 12-24 17-30 22-36 27-42 32-48 37-54

27


I 0-1 Pt

II 2-5 Pts

III 6-9 Pts

IV 10-13 Pts

V 14-17 Pts

VI 18+ Pts



240 - 300 276 - 345 317 - 397 365 - 456 Life Without

Parole Life Without

Parole Aggravated Range

192 - 240 221 - 276 254 - 317 292 - 365 336 - 420 386 - 483 PRESUMPTIVE RANGE B1

144 - 192 166 - 221 190 - 254 219 - 292 252 - 336 290 - 386 Mitigated Range

A A A A A A 157 - 196 180 - 225 207 - 258 238 - 297 273 - 342 314 - 393 125 - 157 144 - 180 165 - 207 190 - 238 219 - 273 251 - 314

B2

94 - 125 108 - 144 124 - 165 143 - 190 164 - 219 189 - 251 A A A A A A

73 - 92 83 - 104 96 - 120 110 - 138 127 - 159 146 - 182 58 - 73 67 - 83 77 - 96 88 - 110 101 - 127 117 - 146

C

44 - 58 50 - 67 58 - 77 66 - 88 76 - 101 87 - 117 A A A A A A

64 - 80 73 - 92 84 - 105 97 - 121 111 - 139 128 - 160 51 - 64 59 - 73 67 - 84 78 - 97 89 - 111 103 - 128

D

38 - 51 44 - 59 51 - 67 58 - 78 67 - 89 77 - 103 I/A I/A A A A A

25 - 31 29 - 36 33 - 41 38 - 48 44 - 55 50 - 63 20 - 25 23 - 29 26 - 33 30 - 38 35 - 44 40 - 50

E

15 - 20 17 - 23 20 - 26 23 - 30 26 - 35 30 - 40 I/A I/A I/A A A A

16 - 20 19 - 23 21 - 27 25 - 31 28 - 36 33 - 41 13 - 16 15 - 19 17 - 21 20 - 25 23 - 28 26 - 33

F

10 - 13 11 - 15 13 - 17 15 - 20 17 - 23 20 - 26 I/A I/A I/A I/A A A

13 - 16 14 - 18 17 - 21 19 - 24 22 - 27 25 - 31 10 - 13 12 - 14 13 - 17 15 - 19 17 - 22 20 - 25

G

8 - 10 9 - 12 10 - 13 11 - 15 13 - 17 15 - 20 C/I/A I/A I/A I/A I/A A 6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25 5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20

H

4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16 C C/I I I/A I/A I/A

6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12 4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10

OF

FE

NS

E C

LA

SS

I


Revised: 08-31-09

28

MINIMUM AND MAXIMUM SENTENCES

The corresponding maximum sentence for each minimum sentence is shown in the tables below. In each column, the number to the left of the dash represents the minimum sentence (in months) and the number to the right of the dash represents the corresponding maximum sentence (in months). To calculate a maximum sentence when the minimum sentence is 340 months or more see G.S. 15A-1340.17(e1).

______________FOR OFFENSE CLASSES B1 THROUGH E____________

15-27 16-29 17-30 18-31 19-32 20-33 21-35 22-36 23-37 24-38 25-39 26-41 27-42 28-43 29-44 30-45 31-47 32-48 33-49 34-50 35-51 36-53 37-54 38-55 39-56 40-57 41-59 42-60 43-61 44-62 45-63 46-65 47-66 48-67 49-68 50-69 51-71 52-72 53-73 54-74 55-75

56-77 57-78 58-79 59-80 60-81 61-83 62-84 63-85 64-86 65-87 66-89 67-90 68-91 69-92 70-93 71-95 72-96 73-97 74-98 75-99 76-101 77-102 78-103 79-104 80-105 81-107 82-108 83-109 84-110 85-111 86-113 87-114 88-115 89-116 90-117 91-119 92-120 93-121 94-122 95-123 96-125

97-126 98-127 99-128 100-129 101-131 102-132 103-133 104-134 105-135 106-137 107-138 108-139 109-140 110-141 111-143 112-144 113-145 114-146 115-147 116-149 117-150 118-151 119-152 120-153 121-155 122-156 123-157 124-158 125-159 126-161 127-162 128-163 129-164 130-165 131-167 132-168 133-169 134-170 135-171 136-173 137-174

138-175 139-176 140-177 141-179 142-180 143-181 144-182 145-183 146-185 147-186 148-187 149-188 150-189 151-191 152-192 153-193 154-194 155-195 156-197 157-198 158-199 159-200 160-201 161-203 162-204 163-205 164-206 165-207 166-209 167-210 168-211 169-212 170-213 171-215 172-216 173-217 174-218 175-219 176-221 177-222 178-223

179-224 180-225 181-227 182-228 183-229 184-230 185-231 186-233 187-234 188-235 189-236 190-237 191-239 192-240 193-241 194-242 195-243 196-245 197-246 198-247 199-248 200-249 201-251 202-252 203-253 204-254 205-255 206-257 207-258 208-259 209-260 210-261 211-263 212-264 213-265 214-266 215-267 216-269 217-270 218-271 219-272

220-273 221-275 222-276 223-277 224-278 225-279 226-281 227-282 228-283 229-284 230-285 231-287 232-288 233-289 234-290 235-291 236-293 237-294 238-295 239-296 240-297 241-299 242-300 243-301 244-302 245-303 246-305 247-306 248-307 249-308 250-309 251-311 252-312 253-313 254-314 255-315 256-317 257-318 258-319 259-320 260-371

261-323 262-324 263-325 264-326 265-327 266-329 267-330 268-331 269-332 270-333 271-335 272-336 273-337 274-338 275-339 276-341 277-342 278-343 279-344 280-345 281-347 282-348 283-349 284-350 285-351 286-353 287-354 288-355 289-356 290-357 291-359 292-360 293-361 294-362 295-363 296-365 297-366 298-367 299-368 300-369 301-371

302-372 303-373 304-374 305-375 306-377 307-378 308-379 309-380 310-381 311-383 312-384 313-385 314-386 315-387 316-389 317-390 318-391 319-392 320-393 321-395 322-396 323-397 324-398 325-399 326-401 327-402 328-403 329-404 330-405 331-407 332-408 333-409 334-410 335-411 336-413 337-414 338-415 339-416

____________FOR OFFENSE CLASSES F THROUGH I____________

3-4 4-5 5-6 6-8 7-9

8-10 9-11 10-12 11-14 12-15

13-16 14-17 15-18 16-20 17-21

18-22 19-23 20-24 21-26 22-27

23-28 24-29 25-30 26-32 27-33

28-34 29-35 30-36 31-38 32-39

33-40 34-41 35-42 36-44 37-45

38-46 39-47 40-48 41-50

29


I 0 Pts

II 1-4 Pts

III 5-8 Pts

IV 9-14 Pts

V 15-18 Pts

VI 19+ Pts



240 - 300 288 - 360 336 - 420 384 - 480 Life Without

Parole Life Without



144 - 192 173 - 230 202 - 269 230 - 307 260 - 346 288 - 384 Mitigated Range

A A A A A A 157 - 196 189 - 237 220 - 276 251 - 313 282 - 353 313 - 392 125 - 157 151 - 189 176 - 220 201 - 251 225 - 282 251 - 313

B2

94 - 125 114 - 151 132 - 176 151 - 201 169 - 225 188 - 251 A A A A A A

73 - 92 100 - 125 116 - 145 133 - 167 151 - 188 168 - 210 58 - 73 80 - 100 93 - 116 107 - 133 121 - 151 135 - 168

C

44 - 58 60 - 80 70 - 93 80 - 107 90 - 121 101 - 135 A A A A A A

64 - 80 77 - 95 103 - 129 117 - 146 133 - 167 146 - 183 51 - 64 61 - 77 82 - 103 94 - 117 107 - 133 117 - 146

D

38 - 51 46 - 61 61 - 82 71 - 94 80 - 107 88 - 117 I/A I/A A A A A

25 - 31 29 - 36 34 - 42 46 - 58 53 - 66 59 - 74 20 - 25 23 - 29 27 - 34 37 - 46 42 - 53 47 - 59

E

15 - 20 17 - 23 20 - 27 28 - 37 32 - 42 35 - 47 I/A I/A I/A A A A

16 - 20 19 - 24 21 - 26 25 - 31 34 - 42 39 - 49 13 - 16 15 - 19 17 - 21 20 - 25 27 - 34 31 - 39

F

10 - 13 11 - 15 13 - 17 15 - 20 20 - 27 23 - 31 I/A I/A I/A I/A A A

13 - 16 15 - 19 16 - 20 20 - 25 21 - 26 29 - 36 10 - 13 12 - 15 13 - 16 16 - 20 17 - 21 23 - 29

G

8 - 10 9 - 12 10 - 13 12 - 16 13 - 17 17 - 23 C/I/A I/A I/A I/A I/A A 6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25 5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20

H

4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16 C C/I I I/A I/A I/A

6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12 4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10

OF

FE

NS

E C

LA

SS

I


Revised: 08-04-95

30


The corresponding maximum sentence for each minimum sentence is shown in the tables below. In each column, the number to the left of the dash represents the minimum sentence (in months) and the number to the right of the dash represents the corresponding maximum sentence (in months). To calculate a maximum sentence when the minimum sentence is 340 months or more, see G.S. 15A-1340.17(e1). ───────────────────FOR OFFENSE CLASSES B1 THROUGH E ─────────────

15-27 16-29 17-30 18-31 19-32 20-33 21-35 22-36 23-37 24-38 25-39 26-41 27-42 28-43 29-44 30-45 31-47 32-48 33-49 34-50 35-51 36-53 37-54 38-55 39-56 40-57 41-59 42-60 43-61 44-62 45-63 46-65 47-66 48-67 49-68 50-69 51-71 52-72 53-73 54-74 55-75

56-77 57-78 58-79 59-80 60-81 61-83 62-84 63-85 64-86 65-87 66-89 67-90 68-91 69-92 70-93 71-95 72-96 73-97 74-98 75-99 76-101 77-102 78-103 79-104 80-105 81-107 82-108 83-109 84-110 85-111 86-113 87-114 88-115 89-116 90-117 91-119 92-120 93-121 94-122 95-123 96-125

97-126 98-127 99-128 100-129 101-131 102-132 103-133 104-134 105-135 106-137 107-138 108-139 109-140 110-141 111-143 112-144 113-145 114-146 115-147 116-149 117-150 118-151 119-152 120-153 121-155 122-156 123-157 124-158 125-159 126-161 127-162 128-163 129-164 130-165 131-167 132-168 133-169 134-170 135-171 136-173 137-174

138-175 139-176 140-177 141-179 142-180 143-181 144-182 145-183 146-185 147-186 148-187 149-188 150-189 151-191 152-192 153-193 154-194 155-195 156-197 157-198 158-199 159-200 160-201 161-203 162-204 163-205 164-206 165-207 166-209 167-210 168-211 169-212 170-213 171-215 172-216 173-217 174-218 175-219 176-221 177-222 178-223

179-224 180-225 181-227 182-228 183-229 184-230 185-231 186-233 187-234 188-235 189-236 190-237 191-239 192-240 193-241 194-242 195-243 196-245 197-246 198-247 199-248 200-249 201-251 202-252 203-253 204-254 205-255 206-257 207-258 208-259 209-260 210-261 211-263 212-264 213-265 214-266 215-267 216-269 217-270 218-271 219-272

220-273 221-275 222-276 223-277 224-278 225-279 226-281 227-282 228-283 229-284 230-285 231-287 232-288 233-289 234-290 235-291 236-293 237-294 238-295 239-296 240-297 241-299 242-300 243-301 244-302 245-303 246-305 247-306 248-307 249-308 250-309 251-311 252-312 253-313 254-314 255-315 256-317 257-318 258-319 259-320 260-321

261-323 262-324 263-325 264-326 265-327 266-329 267-330 268-331 269-332 270-333 271-335 272-336 273-337 274-338 275-339 276-341 277-342 278-343 279-344 280-345 281-347 282-348 283-349 284-350 285-351 286-353 287-354 288-355 289-356 290-357 291-359 292-360 293-361 294-362 295-363 296-365 297-366 298-367 299-368 300-369 301-371

302-372 303-373 304-374 305-375 306-377 307-378 308-379 309-380 310-381 311-383 312-384 313-385 314-386 315-387 316-389 317-390 318-391 319-392 320-393 321-395 322-396 323-397 324-398 325-399 326-401 327-402 328-403 329-404 330-405 331-407 332-408 333-409 334-410 335-411 336-413 337-414 338-415 339-416

───────────────────FOR OFFENSE CLASSES F THROUGH I ───────────── 3-4 4-5 5-6 6-8 7-9 8-10

9-11 10-12 11-14 12-15 13-16 14-17

15-18 16-20 17-21 18-22 19-23 20-24

21-26 22-27 23-28 24-29 25-30 26-32

27-33 28-34 29-35 30-36 31-38 32-39

33-40 34-41 35-42 36-44 37-45 38-46

39-47 40-48 41-50 42-51 43-52 44-53

45-54 46-56 47-57 48-59 49-59

31


I 0 Pts

II 1-4 Pts

III 5-8 Pts

IV 9-14 Pts

V 15-18 Pts

VI 19+ Pts



240 - 300 288 - 360 336 - 420 384 - 480 Life Without

Parole Life Without



144- 192 173 - 230 202 - 269 230 - 307 260 - 346 288 - 384 Mitigated Range

A A A A A A 135 - 169 163 - 204 190 - 238 216 - 270 243 - 304 270 - 338 108 - 135 130 - 163 152 - 190 173 - 216 194 - 243 216 - 270

B2

81 - 108 98 - 130 114 - 152 130 - 173 146 - 194 162 - 216 A A A A A A

63 - 79 86 - 108 100 - 125 115 - 144 130 - 162 145 - 181 50 - 63 69 - 86 80 - 100 92 - 115 104 - 130 116 - 145

C

38 - 50 52 - 69 60 - 80 69 - 92 78 - 104 87 - 116 A A A A A A

55 - 69 66 - 82 89 - 111 101 - 126 115 - 144 126 - 158 44 - 55 53 - 66 71 - 89 81 - 101 92 - 115 101 - 126

D

33 - 44 40 - 53 53 - 71 61 - 81 69 - 92 76 - 101 I/A I/A A A A A

25 - 31 29 - 36 34 - 42 46 - 58 53 - 66 59 - 74 20 - 25 23 - 29 27 - 34 37 - 46 42 - 53 47 - 59

E

15 - 20 17 - 23 20 - 27 28 - 37 32 - 42 35 - 47 I/A I/A I/A A A A

16 - 20 19 - 24 21 - 26 25 - 31 34 - 42 39 - 49 13 - 16 15 - 19 17 - 21 20 - 25 27 - 34 31 - 39

F

10 - 13 11 - 15 13 - 17 15 - 20 20 - 27 23 - 31 I/A I/A I/A I/A A A

13 - 16 15 - 19 16 - 20 20 - 25 21 - 26 29 - 36 10 - 13 12 - 15 13 - 16 16 - 20 17 - 21 23 - 29

G

8 - 10 9 - 12 10 - 13 12 - 16 13 - 17 17 - 23 C/I I I/A I/A I/A A 6 - 8 8 - 10 10 - 12 11 - 14 15 - 19 20 - 25 5 - 6 6 - 8 8 - 10 9 - 11 12 - 15 16 - 20

H

4 - 5 4 - 6 6 - 8 7 - 9 9 - 12 12 - 16 C C/I I I/A I/A I/A

6 - 8 6 - 8 6 - 8 8 - 10 9 - 11 10 - 12 4 - 6 4 - 6 5 - 6 6 - 8 7 - 9 8 - 10

OF

FE

NS

E C

LA

SS

I


Revised: 04-05-94

32


The corresponding maximum sentence for each minimum sentence is shown in the tables below. In each column, the number to the left of the dash represents the minimum sentence (in months) and the number to the right of the dash represents the corresponding maximum sentence (in months). To calculate a maximum sentence when the minimum sentence is 340 months or more, see G.S. 15A-1340.17(e1). ───────────────────FOR OFFENSE CLASSES B1 THROUGH E ─────────────

15-27 16-29 17-30 18-31 19-32 20-33 21-35 22-36 23-37 24-38 25-39 26-41 27-42 28-43 29-44 30-45 31-47 32-48 33-49 34-50 35-51 36-53 37-54 38-55 39-56 40-57 41-59 42-60 43-61 44-62 45-63 46-65 47-66 48-67 49-68 50-69 51-71 52-72 53-73 54-74 55-75

56-77 57-78 58-79 59-80 60-81 61-83 62-84 63-85 64-86 65-87 66-89 67-90 68-91 69-92 70-93 71-95 72-96 73-97 74-98 75-99 76-101 77-102 78-103 79-104 80-105 81-107 82-108 83-109 84-110 85-111 86-113 87-114 88-115 89-116 90-117 91-119 92-120 93-121 94-122 95-123 96-125

97-126 98-127 99-128 100-129 101-131 102-132 103-133 104-134 105-135 106-137 107-138 108-139 109-140 110-141 111-143 112-144 113-145 114-146 115-147 116-149 117-150 118-151 119-152 120-153 121-155 122-156 123-157 124-158 125-159 126-161 127-162 128-163 129-164 130-165 131-167 132-168 133-169 134-170 135-171 136-173 137-174

138-175 139-176 140-177 141-179 142-180 143-181 144-182 145-183 146-185 147-186 148-187 149-188 150-189 151-191 152-192 153-193 154-194 155-195 156-197 157-198 158-199 159-200 160-201 161-203 162-204 163-205 164-206 165-207 166-209 167-210 168-211 169-212 170-213 171-215 172-216 173-217 174-218 175-219 176-221 177-222 178-223

179-224 180-225 181-227 182-228 183-229 184-230 185-231 186-233 187-234 188-235 189-236 190-237 191-239 192-240 193-241 194-242 195-243 196-245 197-246 198-247 199-248 200-249 201-251 202-252 203-253 204-254 205-255 206-257 207-258 208-259 209-260 210-261 211-263 212-264 213-265 214-266 215-267 216-269 217-270 218-271 219-272

220-273 221-275 222-276 223-277 224-278 225-279 226-281 227-282 228-283 229-284 230-285 231-287 232-288 233-289 234-290 235-291 236-293 237-294 238-295 239-296 240-297 241-299 242-300 243-301 244-302 245-303 246-305 247-306 248-307 249-308 250-309 251-311 252-312 253-313 254-314 255-315 256-317 257-318 258-319 259-320 260-321

261-323 262-324 263-325 264-326 265-327 266-329 267-330 268-331 269-332 270-333 271-335 272-336 273-337 274-338 275-339 276-341 277-342 278-343 279-344 280-345 281-347 282-348 283-349 284-350 285-351 286-353 287-354 288-355 289-356 290-357 291-359 292-360 293-361 294-362 295-363 296-365 297-366 298-367 299-368 300-369 301-371

302-372 303-373 304-374 305-375 306-377 307-378 308-379 309-380 310-381 311-383 312-384 313-385 314-386 315-387 316-389 317-390 318-391 319-392 320-393 321-395 322-396 323-397 324-398 325-399 326-401 327-402 328-403 329-404 330-405 331-407 332-408 333-409 334-410 335-411 336-413 337-414 338-415 339-416

───────────────────FOR OFFENSE CLASSES F THROUGH I ───────────── 3-4 4-5 5-6 6-8 7-9 8-10

9-11 10-12 11-14 12-15 13-16 14-17

15-18 16-20 17-21 18-22 19-23 20-24

21-26 22-27 23-28 24-29 25-30 26-32

27-33 28-34 29-35 30-36 31-38 32-39

33-40 34-41 35-42 36-44 37-45 38-46

39-47 40-48 41-50 42-51 43-52 44-53

45-54 46-56 47-57 48-59 49-59

33

1/31/2013

1

Records Gatheringand

Sentencing Advocacy

2013 New FelonyDefender Training

Why Request Records?

Support your Defense Corroborate your Facts and Mitigation Alter a Jury or Judge’s Perception Discover Potential Witnesses Demonstrate Client’s Character, Background &

History Assist in Plea Negotiations or Sentencing

Arguments Possible Admittance into Specialty Courts

Types of Records &Potential Uses

School Records Request Cumulative File; not just Transcript

Potential Witnesses

Shows Stability or Chaos

Disciplinary

Test Scores

Exceptional Children’s Confidential File -Make Specific Request for File in its Entirety

1/31/2013

2


Out-Patient Records Family Doctor / Pediatrician

Local Health Department

Substance Abuse Treatment

Mental Health Treatment


Hospital Records Diagnoses

ER Visits

Date(s) of Treatment

Potential Witnesses

Other Collateral Records


Prison Records Medical & Mental Health Files

Prison File – Disciplinary, Movement, etc.

Education File - Must Use Specific Language in Release

DART File (Drug/Alcohol Recovery Treatment) - Must Use Specific Language in Release

1/31/2013

3


Jail Records Infractions / Behavior

Medical or Mental Health Issues

Visitation Logs

Potential Witnesses


Employment Records Application

Performance Evaluations

Raises

Conditions of Termination

Potential Witnesses


Social Security Certified Detailed Earnings Report (Form 7050) Details Employment History per Year

Proves Income / Work History

Potential Witnesses

1/31/2013

4

Types of Records & Potential Uses

Military Records Duty Assignment & Performance

Promotions / Honors / Awards

Disciplinary

Medical / Mental Health

Potential Witnesses

Types of Records

Requires Court Order DSS / CPS Records

Juvenile Records

No Signed Release Uncooperative Defendant

NC DOC Entire File (Probation/Parole, etc)

When / How to Request?

Going to Trial, Seeking Plea or Plea Hearing

Gather specific information from Client to decide where to send releases – Doctors, hospitals, schools, jobs, etc.

Have Client sign release(s) as early as possible. It often takes weeks to receive records If Client is a Minor (under 18), get Guardian to sign release(s)

Send Release & Cover Letter to Appropriate Agency Note – some agencies may charge for records

1/31/2013

5

IDS MiscellaneousExpense Policy

Over $250 Obtain prior approval from Court Send bill and signed Court Order to IDS

Under $250 No need for prior approval Send bill to IDS

For details see IDS Policy on “Public Defender Miscellaneous (Non-Expert Expenses)” at IDS Website:

www.ncids.org

Sample Releasesin Packet

General Release

SampleHIPPA Language

I certify that this authorization is made freely, voluntarily, and without coercion. I understand that this information may include references to psychiatric care, sexual assault, alcohol and drug abuse and results of tests for all infectious diseases including AIDS/HIV. I understand that the information to be released is protected under State and Federal laws and cannot be re-disclosed without my further written consent unless otherwise provided for by State or Federal law. I hereby give written consent for the re-disclosure of any such information when it is deemed necessary. I understand that I may revoke this authorization at any time by notifying the agency or person listed above in writing, except to the extent that action has already been taken to comply with it. This authorization will automatically expire one year from the date it is signed unless revoked sooner. A photocopy of this authorization may be considered as valid as the original. This information is critical and is to be used for legal purposes by the above-mentioned legal representative(s) for their representation of me and/or my family member. This release is absolutely limited to the designated agency or person named above.

1/31/2013

6


General Release

Military Release

Military RecordsContact Information

National Personnel Records Center1 Archive DriveSt. Louis, MS 63138Phone: 888-276-9472Fax: 314-801-9195

www.archives.govClick on “Forms” and “SF 180, Request Pertaining to Military Records” for Release


General Release

Military Release

NC DOC Release

Social Security Earnings Release

Agency Specific – ie UNC Hospitals

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Sample Release ScheduleJohn Smith DOB: 1/1/1961

Release Schedule SSN: 123-45-6789

Records Needed Date Requested Date Received/Info

Wake County Jail 11/30/2010 12/17/2010

UNC Hospitals 11/30/2010 12/10/2010

Dr. Jones 11/30/2010

Guilford County Schools 12/3/2010 12/8/2010

Wake County Schools 12/3/2010 12/9/2010

12/17/2010

Sample Release ScheduleJohn Smith DOB: 1/1/1961

Release Schedule SSN: 123-45-6789

Records Needed Date Requested Date Received/Info

Wake County Jail 11/30/2010 12/17/2010

UNC Hospitals 11/30/2010 12/10/2010

Dr. Jones 11/30/2010

Guilford County Schools 12/3/2010 12/8/2010

Wake County Schools 12/3/2010 12/9/2010

12/17/2010

Background “B” Record Charting

John Smith BACKGROUND RECORDS as of 12.17.10

Page Record Description Date received B1-B13 Guilford County Schools 12/8/2010 B14 – B46 Wake County Schools 12/9/2010 B47-B285 UNC Hospitals 12/10/2010 B286 – B330 Wake County Jail 12/17/2010

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Mentally Ill& the Criminal Justice System

Sentencing Advocacy

2013 New FelonyDefender Training

Scenario You are preparing for a sentencing hearing. Your client entered an Alford plea to 1 count of PWISD Cocaine. State dismissed Sell of Cocaine/ Maintaining a Dwelling/Possession of Marijuana (M)/PDP. Your client’s history is as follows:Record Level II [Misd. Drug offense/ Misd. Larceny/2 DWI-s/ Traffic viol.]

Says he has been married for 3 years and is 25 years old Says he was born and raised in the community and both parents are alive Says he was set up/CI is lying/Co-Defendant did it Says he has been working at Arby’s for 3 months Says he supports two children (one from a previous relationship) Finished the 10th Grade at the local high school Has and attitude. Never seen him wear a belt or a dress shirt (shirt always not tucked) Has shoulder length hair. Has tattoos on both of his arms Wears an earring on each ear and large gold necklace Has a learning disability Has two months jail credit Police seized $500.00 in cash at the time of arrest Says he goes to church Date of offense: 11/30/11 and Date of Plea/Sentencing: 4/5/12

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Discussion What are your objectives/end state? What do you want?

What records might you need? Documentation.

Who do you want in courtroom? Presentation/Support

How do you prepare your client? You are an artist!

What mitigating factors are available? Be specific and thorough.

Does your client address the court? Toughest Question

Guidance

CLEAR

CONCISE

CREDIBLE

CONFIDENT

Guidance

Sell the ProsecutorSell the ClientSell the Judge

YOU ARE A SALESPERSON!

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Contact Info:

Beth WinstonCapital Case InvestigatorOffice of the Capital Defender123 W. Main St., Suite 601Durham, NC [email protected]

Contact Info:

Robert C. Kemp, III (Bert)Pitt County Public Defender212 S. Greene StreetGreenville, NC [email protected]