Criminal Law Update & Review

Criminal Law Update & Review • Probation • Waiver & Forfeiture of Counsel • Jury Argument • Double Jeopardy Jessica Smith, Institute of Government, School of Government, UNC-Chapel Hill email: smithj@iogmail.iog.unc.edu phone: (919) 966-4105

PROBATION Warrantless searches pursuant to a probation condition Jurisdiction to hear probation violations

U.S. v. Knights, 122 S.Ct. 587 (12/10/01) p.1 • Facts: • D on probation • Condition says D must submit to a search at any time w/ or w/out a search/arrest warrant or reasonable cause by any probation/law enforcement officer • An officer searched D’s apartment • Officer had reasonable suspicion that evidence of a crime was inside

U.S. v. Knights continued Issue: Was the search—pursuant to the condition & supported by reasonable suspicion—consistent with the 4th Amendment? • Held: Yes • Search was reasonable under the totality of the circumstances • Balance of privacy interests v. legitimate gov’t interests requires “no more than reasonable suspicion” • Warrant unnecessary

U.S. v. Knights continued G.S. 15A-1343(b1)(7) provides: Submit at reasonable times to warrantless searches by a probation officer of . . . person[,] . . . vehicle and premises . . . .

U.S. v. Knights continued G.S. 15A-1343(b1)(7) provides: Submit at reasonable times to warrantless searches by a probation officer of . . . person[,] . . . vehicle and premises . . . . By statute, condition can require warrantless searches only by probation officers, not law enforcement officers

State v. Robinson (NC App. 2/5/02) p. 18 • Facts: • D on probation • Law enforcement gets anonymous call saying D is growing marijuana at home • Law enforcement contacts probation & learns D has a condition consenting to warrantless searches • Law enforcement & probation decide probation officer will try to do warrantless search & if D refuses he’ll be arrested; law enforcement will be nearby if assistance is needed . . .

State v. Robinson continued • D refuses to allow search, probation officer arrests him & takes him to jail • Law enforcement officers subsequently search the home & find drugs

State v. Robinson continued Issue: Did law enforcement officers illegally try to have the probation officer do a warrantless search as part of their investigation & not part of probation? • Held: • Citing Knights, the court found no violation • It furthered the supervisory goals of probation for probation officer to seek consent to search • Fact that officers were waiting in the wings doesn’t affect the legality of the conduct

PROBATION Warrantless searches pursuant to a probation condition Jurisdiction to hear probation violations

State v. Moore, NC App. 2/5/02 p.14 D pleads guilty; gets 6-year term suspended, probation for 5 years 6/3/94 Probation violation report signed & dated; given to clerk but not file stamped 11/3/95 8/6/96 Order for arrest Probationary term expires 6/3/99 5/9/00 Return of service on order for arrest 6/6/00 Probation revocation hearing

State v. Moore continued Issue: Did trial court have jurisdiction to hear the probation violation? Held: No, citing G.S. 15A-1344(f)

State v. Moore continued • G.S. 15A-1344(f) • Once the period of probation has ended, the court may revoke probation only if: • Before the expiration of the period of probation the State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and • The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier

State v. Moore continued D pleads guilty; gets 6-year term suspended, probation for 5 years 6/3/94 Probation violation report signed & dated; given to clerk but not file stamped 11/3/95 8/6/96 Order for arrest Probationary term expires 6/3/99 5/9/00 Return of service on order for arrest 6/6/00 Probation revocation hearing

State v. Moore continued • G.S. 15A-1344(f) • Once the period of probation has ended, the court may revoke probation only if: • Before the expiration of the period of probationthe State has filed a written motion with the clerk indicating its intent to conduct a revocation hearing; and • The court finds that the State has made reasonable effort to notify the probationer and to conduct the hearing earlier

State v. Moore continued • Thus the court held: • Violation report not file stamped • No other record evidence it was filed prior to expiration of probation • State failed to satisfy 15A-1344 • Trial court lacked jurisdiction

Waiver of the Right to Counsel

State v. Fulp, N.C. 2/1/02 p.2 • The case: • D indicted for felony possession of stolen goods & as an habitual felon • Moves to suppress prior conviction arguing it was obtained in violation of right to counsel; D was indigent @ time of prior conviction • Trial court denies motion, finding D waived right to counsel • On appeal, NC App. says trial court’s conclusion not supported by the record • State appeals to NC Supreme Court

State v. Fulp continued • Held: Reversed • Trial court’s findings of fact supported its conclusion that there was a knowing, voluntary & intelligent waiver • The “in writing” requirement of GS 7A-457 is directory (7A-457 provides: an indigent may waive in-court representation in writing after court considers D’s age, education, English ability, mental condition & complexity of the crime charged) • Trial court is required to consider the 7A-457 factors (age, etc.) but is not required to expressly state that it did so

Waiver: “The Basics” • Included in the right to counsel is the right to waive counsel & proceed pro se (Fulp, -- NC -- (2/1/02), Gerald, 304 NC 511; Thacker, 301 NC 348; Faretta, 422 U.S. 806) • To pass constitutional muster, waiver must be knowing, intelligent & voluntary (Fulp, --NC -- (2/1/02), Thacker, 301 NC 348; Faretta, 422 U.S. 806) • Compliance with GS 15A-1242 ensures a knowing, voluntary & intelligent waiver (Fulp, -- NC – (2/1/02), Gerald, 304 NC 511; Thacker, 301 NC 348) • Failure to make the 15A-1242 inquiry requires reversal (Dunlap, 318 NC 384; Bullock, 316 NC 180)

G.S. 15A-1242 • A defendant may proceed pro se “only after the trial judge makes thorough inquiry and is satisfied” that defendant: • (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled; • Understands and appreciates the consequences of this decision; and • Comprehends the nature of the charges and proceedings and the range of permissible punishments

Waiver: “The Basics” • If D is indigent, GS 7A-457 says • D may waive in-court representation in writing; court must consider age, education, English, mental condition, complexity of crime (7A-457(a)) • BUT Fulp said “in writing” requirement is directory, not mandatory • Waiver of out-of-court representation can made in writing or orally (7A-457(c))

Waiver: “The Basics” AOC-CR-227 Waiver of assigned counsel IS NOT a waiver of the right to counsel An indigent must waive BOTH to be allowed to proceed pro se (McCrowre, 312 NC 478)

Certificate of Judge Indicate whether defendant voluntarily, knowingly and intelligently elected in open court to be tried in this action: (check only one) _ 1. without the assignment of counsel _ 2. without the assistance of counsel, which includes the right to assigned counsel and the right to assistance of counsel

Waiver continued • Do I need to get a waiver if I appoint standby counsel? Yes (Dunlap, 318 NC 384) • Does D have a right to standby counsel is he/she waives counsel? No; no right to hybrid representation (Lawrence, 161 F.3d 250 (4th Cir.) • How long does the waiver remain in effect? Until proceeding terminates or D indicates wants to withdraw it (Sexton, 141 NC App. 344)

Waiver continued • Do I have to question D personally if the waiver form was filled out? Yes (Wells, 78 NC App. 769 (“written waiver . . . no substitute for actual compliance . . . with G.S. 15A-1242”)) • When D has problems w/counsel, do I have to inform D of his/her right to proceed pro se? No, so long as there has been “no intimation” that D wants to be pro se; BUT “better practice” is to inquire re: whether D wishes to be pro se(Gerald, 304 NC 511)

Forfeiture of the Right to Counsel • Right to counsel is not absolute; can be forfeited • Forfeiture is not the same as waiver

Forfeiture of the Right to Counsel When can forfeiture occur? Indigent D demands specific counsel Indigent’s right to counsel DOESN’T include the right to counsel of choice (Thacker, 301 NC 348; McFadden, 292 NC 609; Dunlap, 318 NC 384)

When can forfeiture occur? continued D uses the right to counsel to delay/obstruct trial “[A]n accused may lose his constitutional right to be represented by counsel of his choice when he perverts that right to a weapon for the purpose of obstructing and delaying his trial” (McFadden, 292 NC 609 (recognizing but not applying principle to the case before it)) Example of delay/obstruct case . . .

State v. Montgomery, 138 NC App. 521 (2000) • Facts: • PD appointed; D’s family then hires Laughrun • Laughrun allowed to withdraw b/c D doesn’t want him; PD is reappointed • D’s girlfriend then hires Duncan; on trial date D twice unsuccessfully objects to Duncan as counsel, twice disrupts court, & twice found in contempt • On new trial date, D throws water on Duncan, found in contempt & charged w/assault; Duncan allowed to withdraw; trial continued • On new trial date, PD seeks reappointment & is appointed only as stand-by

State v. Montgomery, 138 NC App. 521 (2000) • Held: • D forfeited right to counsel • Trial court didn’t err in requiring him to proceed pro se • G.S. 15A-1242 inquiry wasn’t required

Jury Argument

State v. Jones, -- NC – (2/1/02) p. 8 • Court says improper jury argument issue now arises in “Virtually every” capital case “Many” other criminal cases “Growing number” of civil cases • Thus, the court decides to “revisit in some detail” (1) limits of proper closings (2) attorneys’ professional/ethical responsibilities when making such arguments (3) judge’s duty in overseeing closing arguments (4) possible ramifications for improper arguments

State v. Jones continued • Facts: • Capital case • During sentencing phase closing arguments, defense timely objects to prosecutor’s references to Columbine school shooting & Oklahoma City bombing • During closing, prosecutor referred to D, w/out objection, as follows: “You got this quitter, this loser, this worthless piece of – who’s mean. . . . He’s as mean as they come. He’s lower than the dirt on a snake’s belly.”

State v. Jones continued Issues: Did trial judge abuse discretion in overruling objection to remarks about Columbine & Oklahoma City? Was trial judge required to intervene ex mero motu when prosecutor engaged in name calling?

State v. Jones continued Held: Yes (on both issues) (1) Court abused discretion in overruling objection to Columbine/Oklahoma comment Referred to events o/s record; urged jurors to compare D’s acts to them; appealed to passions/prejudice Impact “too grave to be easily removed . . . even if the trial court had attempted to do so with instructions” (2) Insults were “grossly improper” & prejudicial warranting intervention even without objection Shifted focus to prosecutor’s opinions & appealed to passions/prejudices

State v. Jones continued Limits on Argument & Lawyers’ Ethical/Professional Responsibilities GS 15A-1230(a) Not become abusive Not inject “personal experiences” Not express personal belief re: truth/falsity of evidence or D’s guilt/innocence Not make argument on basis of matters o/s record

Limits on Lawyers . . . continued Rule 12—Courtroom Decorum—General Rules of Practice for Sup. & Dist. Courts Prohibits “abusive language” & “offensive personal references” Requires “candor” “fairness” “dignity and propriety” Professional Rules of Conduct 3.4(e) Not allude to matter not relevant/not supported by admissible evidence Not assert personal knowledge of facts Not state personal opinion re: justness of cause, credibility of witness, culpability of civil litigant or guilt/innocence of accused

Judge’s Responsibility • “Diligently ensure” that counsel “honor” these obligations • Take action against “opportunists who purposely . . . violate courtroom protocol” (citing cases involving sanctions) • “Vigilantly” monitor argument • Intervene as warranted • Entertain objections • Impose remedies including but not limited to: requiring counsel to retract improper argument & issuing instructions that the jury disregard • Mistrial as a remedy?

One final note from the court: In determining prejudice, consider the trial stage Improper argument at guilt phase may not be prejudicial where evidence of guilt is “virtually uncontested” Same argument “may in many instances” prove prejudicial at capital sentencing

Double Jeopardy Why Discuss Double Jeopardy? • Since 9/01, there have been 5 published NC appellate decisions on DJ (summarized on pp. 10-11 in the handout) • Inquiries from judges & other public officials • Judge’s rulings can have unintended DJ consequences

U.S. Supreme Court has described its DJ decisions as follows: “a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator” (Albernaz, 450 US 333)

5th Amendment to the U.S. Constitution provides: “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb” Art. I, Sec. 19 of N.C. Constitution also protects against DJ (Rambert, 341 NC 173)

What does that mean? • No 2nd prosecution for the “same offense” after acquittal • No 2nd prosecution for the “same offense” after conviction (by trial or plea) • No multiple punishments for the “same offense” • (Pearce, 395 US 711, overruled on other grounds; Gardner, 315 NC 444)

Eight Core Double Jeopardy Questions When does jeopardy attach? Can the state ever retry after a dismissal? Can the state ever retry after a mistrial? Can the state ever retry after an acquittal? Can the state ever retry after a conviction? How do you determine if offenses are the “same” for purposes of DJ? Can imposition of a civil remedy bar a criminal trial? Why can I impose multiple punishments for the “same offenses” at a single trial?

If the proceeding terminates before jeopardy attaches, there can be no DJ issue (Crist, 437 US 28) • Trials (1) Non-jury trials: jeopardy attaches when the court begins to hear evidence (1st witness sworn) (Serfass, 420 US 377) Ex: Dismissal after state’s opening statement Jeopardy did not attach

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

Guilty pleas Jeopardy attaches when the court accepts the plea Ex: State offers 2nd-degree murder plea. Judge rejects it. Did jeopardy attach? No (Wallace, 345 NC 462) BUT . . . D’s guilty plea to a lesser offense over state’s objection doesn’t bar state from prosecuting on a greater offense pending at the time of the plea (Ohio, 467 US 493)

Criminal Law Update & Review