Episode 1: Little, Pierce, and Thomas

[00:00:05.852] [SPEAKER_00] The North Carolina Court of Appeals has held for the second time that the odor and smell of marijuana will support probable cause for a search. If that sounds vaguely familiar, it was also the conclusion of the Court of Appeals about a month ago in a case called Henry J.B.P., but that opinion was withdrawn before issuance of the mandate. We'll be discussing the new case, Date v. Little, today. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, before we begin, I want to talk for a minute about our goals for this podcast. This is, of course, our pilot episode. We've been doing case updates together for a while now at prosecutor conferences. And this podcast was actually inspired by feedback from one of those attendees. And I quote, Holbrook and Hyde need their own podcast. So here it is. I think moving forward, what we're going to try to orient this podcast around, that case update approach where we look at cases decided by the Court of Appeals, the North Carolina Court of Appeals and the North Carolina Supreme Court in the past month. The cases that we're going to be covering during this first episode were decided on September 3rd, and then the cases that we're going to be looking at in our second episode were decided on September 17th. Let's jump right in. John, I think you've got the first case, State v. Little.
[00:01:31.780] [SPEAKER_01] Right, we're going to talk today about State v. Little and then we'll look at State v. Pierce and State v. Thomas. But starting with State v. Little, this was a case out of Hoke County and the incident happened back on May 12th of 2020. It's a fairly routine traffic stop. A couple of Hoke County Sheriff's deputies see a Ford F-150 truck that is crossing the center line and traveling left of center and so they initiate a traffic stop on the vehicle. As deputies approach the truck, they report that they could immediately smell a strong and distinct odor of marijuana. Also, when they get up to the windows of the truck, they're able to actually see in what they describe as being in plain sight on the passenger floorboard of the F-150, extensive marijuana residue. They do speak with the driver about it. He's essentially blaming his cousin for it. They're certainly never saying that it's something else like saying that it's hemp. And so based on what they've seen and what they've smelled with the marijuana giving them probable cause, they then conduct a full search of the vehicle. And when they do a full search of the vehicle, ultimately they recover a firearm, bullets, an open box of sandwich bags, a flip phone, another touchscreen cell phone, and $10,600 in cash out of the defendant's vehicle. So he is indicted for that, of course, indicted for possession of a stolen firearm, carrying a concealed firearm, possession of firearm by a felon, and he files a motion to suppress.
[00:02:58.209] [SPEAKER_00] Wait a minute, there are no charges arising out of the marijuana? There weren't, I don't think. It was just charges arising out of the firearm. You
[00:03:04.919] [SPEAKER_01] know, and not as shocking as that may seem. You know, Joe, this is something you and I have talked about a few times at the case updates, that very often the marijuana providing a basis of probable cause to do a search of the vehicle. I mean, we're certainly aware districts have maybe, I don't know, deprioritized prosecution of marijuana to some extent,
[00:03:22.082] [SPEAKER_00] but
[00:03:22.584] [SPEAKER_01] it's still a vital component a lot of times in probable cause for the search that leads to the firearm, the meth. Just
[00:03:29.093] [SPEAKER_00] to
[00:03:29.313] [SPEAKER_01] get into the car to begin with. Right. The body in the trunk, whatever it may be. And this, I think, is a pretty good example of that.
[00:03:35.509] [SPEAKER_00] John, could you tell from the facts in this case whether they ever ascertained that that was marijuana or hemp or something else?
[00:03:42.709] [SPEAKER_01] This is a constant challenge, Joe. And I think one of the reasons that we don't perhaps see as many of these marijuana charges you know actually getting that tested at a lab establishing that it's greater than 0.3 thc but you know this is sort of a i think what a lot of officers and prosecutors would call a vital investigative tool i mean to have this what we say is this distinct odor and appearance of marijuana generating the probable cause to do the search But that's also essentially the basis of the motion to suppress that the defense is filing is he's making an argument that we've seen in some of these other cases, some of the ones you mentioned, saying that it's not just marijuana that's in North Carolina anymore. It's for all you know, it could be hemp and that hemp, I mean, if it's less than 0.3% THC, that would be something legal for him to possess and so he's making that same argument here that we don't know you can't tell just from the odor and appearance that this is only marijuana i mean that this is uh this is in fact marijuana and is not simply him so he makes that motion to suppress it's denied by the trial court he ultimately pleads guilty but reserving his right to appeal and that's the appeal that's the issue that we're looking at in the appellate case here And of course, in the arguments on this, we once again talk a little bit about the infamous SBI memo from 2019, where there was a memo that was published back when they were initially looking at this industrial hemp issue. And the SBI put out that position saying, we don't think this is a good idea. This is going to make it hard for us to do these investigations. We won't have probable cause. The drug dogs won't be able to tell the difference between the hemp or the marijuana. And so that's, of course, referenced by the defendant here, as it has been in a number of other cases. And we'll talk about that just a little bit. But one other thing I just sort of wanted to mention, again, this is happening in 2020. So we're in a little bit of that in-between time. You know, we're in sort of this industrial hemp, right, that it would be legal, but with those additional conditions that it was properly licensed and so forth. So this is after the industrial hemp. But before we had some of the I guess you might say further liberalization of the hemp laws in the subsequent years. But the court mentions that SBI memo and they make a similar point. You know, you mentioned we had another decision not that long ago that was withdrawn before the mandate issue. There was sort of a great line in that opinion where the court said something to the effect of, With all due respect to the executive branch, they don't decide what's probable cause. The courts decide what is or is not probable cause. And they have a similar view to the memo here. Yes, we're aware of it. But as they point out, the mere existence of this memorandum is not creating some material conflict in the evidence that we're going to decide whether or not we think this still supports probable cause. And so the court then moves into this discussion of What we would call the plain view doctrine, the basic idea that if an officer is in a place that he has a lawful right to be, it's not a Fourth Amendment violation. If the illegal nature of it is immediately apparent to the officer, then that's something the officer could seize or like in this circumstance, that it would support probable cause for doing a search. And the court notes that for marijuana in particular, a lot of times when we say plain view, what we really mean is plain smell. that strong and distinct odor that marijuana has. And they review, we've had a number of cases over the years that have talked about how if you have that strong and distinct odor of marijuana or that distinctive appearance of that green leafy substance that like plain view that that plain smell or plain appearance would support probable cause for the officers to engage in a
[00:07:14.119] [SPEAKER_00] search. Yeah, this wouldn't have been a problem, right, John, except for this industrial hemp, as you said, the liberalization of some of these marijuana laws, because we have North Carolina precedents before those laws were changed that says odor or smell of marijuana would support probable cause. And
[00:07:27.300] [SPEAKER_01] you mentioned earlier in the introduction, Joe, that it's the second time we've gotten this holding. I'm going to say it's well more than the second time that we've gotten this holding that that law has not changed. But, you know, I think the perception is that that law changed because of State v. Parker that came out in 2021. And that case, I know most people are familiar with it. That was the case where the court, in essence, ruled. If you have that odor and appearance of marijuana plus something else, that's definitely good enough for you to have probable cause to do the search. But they specifically stayed away from saying or addressing the issue of whether that odor appearance alone would be enough. So it's assuming without deciding that you need something else, we have that here. And that has been the pattern that a number of cases have followed since. Even if you need something else, we do have something
[00:08:18.055] [SPEAKER_00] else.
[00:08:18.175] [SPEAKER_01] So the question is whether we have that plus, right? Whether that plus was even necessary or not. And I think that what stands out about this little case to me is that if you look at it, I think they absolutely could have decided this case the same way. When you look at other cases we've had over the last couple of years, what works as a plus, a number of things work as a plus. And several of those are present here in this case, again, large quantity of cash, multiple cell phones. He makes statements blaming this marijuana on the floorboards on his cousin. He never says that this is just him. You know, we have a lot of these other things that... Well, they don't get to the cash until after
[00:08:54.011] [SPEAKER_00] they've gotten into the car, though,
[00:08:55.212] [SPEAKER_01] right? Well, right, right,
[00:08:56.053] [SPEAKER_00] right. That's true. That's true. But certainly the statements about that belongs to somebody else. I mean, no need to put it in somebody else's hands unless it's something you're not supposed to have. And it's been
[00:09:07.063] [SPEAKER_01] a pretty minimal standard for what we needed to get to plus, you know, probably could have gone the same way in this case. But I think this is one where, as you mentioned, that the court is, if it wasn't clear before, I think now finally and hopefully permanently making it clear that no, the mere existence of hemp, the fact that it might also be something that's not illegal, doesn't mean that that fundamental law about plain view, plain smell, probable cause to search the vehicle has changed. And the court talks about that. Just one quote as you get down to the bottom of the opinion. Even if industrial hemp and marijuana look and smell the same, the change in the legal status of industrial hemp does not substantially change the law on the plain view or plain smell doctrine as to marijuana. We conclude that despite the liberalization of laws regarding possession of industrial hemp, and even if marijuana and industrial hemp smell and look the same, the trial court did not err in concluding there was probable cause for the search of the defendant's vehicle based upon the officer's reasonable belief that the substance he smelled and saw in the vehicle was marijuana. And again, I feel like the court has said this more than once already. We talked about this in Teague. We talked about this in Johnson. We talked about this in George. We talked about this in Guerrero. We talked about this in Springs. But Springs in particular is what I wanted to mention. You remember, we talked about that one at the summer case update. And that was one where there's an excerpt in the opinion, in the appellate opinion from the trial court, where the trial judge said, I think... paraphrasing, we all know we live in an odor plus world now, and I don't think there's a plus here. And the Court of Appeals reversed that, said there was a plus. If a plus is even required, there is one here. But that's sort of, I think, what we've been dealing with for the last couple of years. I think Parker was sort of the first word on this and sort of created a narrative that we're moving into an odor plus world. And I think cases like Teague, the federal cases cited in Teague, and all these other ones that I've mentioned, I feel like the Court of Appeals has been trying to make this clear for a while now. But if there were still some doubt. So can prosecutors drop that plus argument, John,
[00:11:20.070] [SPEAKER_00] do you think?
[00:11:20.431] [SPEAKER_01] I think they could. I don't think it hurts, right? I mean, I...
[00:11:25.856] [SPEAKER_00] Or you have
[00:11:26.096] [SPEAKER_01] the facts you've got, right? Absolutely. I would tell a prosecutor, absolutely everything you've got to support why there is probable cause to search this vehicle or whatever it may be, probable cause to support this affidavit for a search warrant. I mean, I would never recommend that we say, nah, that's probably enough. Let's just stop here. I mean, if there's more probable cause, then for goodness sakes, let's talk about it. But I think... Finally, this case maybe would put this issue to bed, that the law, the fundamental law has not changed. And that plain view, plain smell doctrine for marijuana that we've had for a long time still applies even in a world of industrial hemp. Last thing I'll say about this, you know, they make an interesting reference in that little case to State v. Cruz. That's the one where they're talking about the pills in a bottle, for example. And I think that's a good analogy that you may have a prescription for Percocet or whatever it may be. And so maybe your possession of that Percocet is not illegal because you are lawfully prescribed this drug. But I mean, if an officer were to find I don't know, 50 Percocet tied up in a plastic baggie hidden in your sock. You know, I think that's sort of the key that they bring out in Little about why this doctrine is not changing. And again, I'd say it's something they've been arguing ever since Teague is that it's not about proof beyond a reasonable doubt. It's about probability. Is it a reasonable belief of the officer establishing a probability that a crime has been committed, a probability that this substance might be contraband? And so even if it is actually hemp, sure, if like you said, if we want to charge and convict that crime, be ready to prove the chemical concentration. But probable cause to search the vehicle or get a warrant, that law has not changed. That odor and appearance should be good enough.
[00:13:04.416] [SPEAKER_00] OK, sounds good. Let's move on to the second case. This is State v. Pierce, again decided by the North Carolina Court of Appeals on September 3rd. of 2024. John, there weren't really a lot of facts revealed in the opinion in this case. It just points out that the defendant was indicted for statutory rape of a 13, 14 or 15-year-old, first degree kidnapping and indecent liberties in February of 2017. Looks like defendant had some problems with his attorneys. He rolled through four, five, looks like five different court appointed attorneys. And there was something with delaying the trial for something close to two years. It goes back and forth. He eventually gets standby counsel. And then while the defendant has standby counsel, the defendant and the prosecutor arranged a waiver of indictment. Prosecutor has a bill of information and the defendant waives indictment and agrees to plead guilty to two crimes that had not been included in that original indictment, which were crime against nature and sexual battery. The original indicted charges were dismissed, judgment is entered, and then he gives notice of appeal arguing that the trial court lacked jurisdiction because under the North Carolina Constitution and North Carolina statute, it says a defendant who is not represented by counsel is not permitted to waive indictment. And what the Court of Appeals looks at here is the fact that the defendant actually cycled through a number of appointed attorneys. And there's no question that that waiver of counsel was valid and knowing and voluntary. The trial court apparently had an extensive discussion with the defendant. about how you go about waiving counsel. He understood his rights and his ability to do that. And so notwithstanding the fact that the statute says a defendant who is not represented by counsel may not waive indictment, the Court of Appeals actually found that there was no violation here, nothing that entitled this defendant to relief. It seemed to recognize that this was a jurisdictional issue. The fact that this is also a constitutional provision doesn't appear in the opinion. I can understand that, right? Because typically the rule on appeal is that if a constitutional issue was not raised at trial, it's not one that can be raised on appeal. A defendant represented himself, who is proceeding pro se, probably did not raise the constitutional issue at trial, although it does appear that the counsel on appeal raised the question of whether there was a violation of that statute. Again, that was 15A-642, which says that a defendant who is not represented by counsel is
[00:15:28.932] [SPEAKER_01] not permitted to waive indictment. And that's sort of getting to the heart of the issue. I agree with you. We don't seem to have a lot of dispute about the facts. There's not really a question. It's a valid waiver of counsel initially and all of that. And there's not really much we can dispute about what the statute says.
[00:15:42.331] [SPEAKER_00] I mean,
[00:15:42.572] [SPEAKER_01] 15A642 says what it says. But sort of the heart of the issue and what is interesting about the case is how the court decides the first of those impacts the significance of the
[00:15:53.927] [SPEAKER_00] second. Right. There's a great deal of discussion about his waiver of counsel. And had defendant been arguing on appeal that that waiver was invalid, then a lot of the bulk of that conversation about how he's gone through these different attorneys and the trial court thoroughly discussed that waiver with him would make sense. But in terms of this statute, the statute is pretty categorical. It doesn't provide for any exception, assuming that this was not for the purpose of delaying trial or something like that. It just says a defendant who is not represented by counsel may not waive indictment. The defendant in this case was not represented by counsel. He waived indictment and the Court of Appeals found that that was no problem. And so how do they
[00:16:30.022] [SPEAKER_01] find that it's no problem? I mean, the statute seems to say what it says. So talk to us about how does it apparently not mean what we think it says?
[00:16:38.812] [SPEAKER_00] As far as I can figure, John, it's because that waiver of counsel was knowing and voluntary and because there was evidence that this defendant was engaged in this delaying tactic. I think that the Court of Appeals was reluctant to countenance this kind of tactic that allows a defendant to just cycle through court-appointed counsel with the apparent object of putting off a trial or an ultimate resolution of these claims. So as I said, because that constitutional issue was not really... dealt with in the opinion, they found that that dilatory tactic on defendant's part and the fact that there was no question of the validity of his proceeding pro se allowed them to get around that statutory mandate that you may not waive indictment if you're not represented by counsel.
[00:17:23.412] [SPEAKER_01] So what do you think about this final part where they talk about invited error?
[00:17:26.756] [SPEAKER_00] Yeah, there was this sort of backup rationale that says, OK, even if there was a statutory violation here, the defendant invited any error there, invited the violation of this statute by, again, going through so many of these court-appointed attorneys, by trying to delay his trial, and not going along with the process toward ultimate resolution of his claims. Again, it strikes me as a little bit odd only because it does have that kind of constitutional component here. There's a provision of the state constitution that's reflected in that statute. It seems difficult for me to see how a defendant's choosing to exercise his constitutional right to represent himself could constitute an invited error that could somehow get around the problem of waiving indictment when you're not represented by counsel, but that's what the Court of Appeals has decided in this case.
[00:18:14.932] [SPEAKER_01] You know, the other thing that stood out to me a little bit was this idea of, okay, so even if he is waiving counsel, right, and you could make an argument of, therefore, that should sort of undercut the statutory protection that 642 would otherwise provide. Like, yes, the waiver and information has to be signed by you and your attorney, assuming you have an attorney. But if you've waived an attorney, then, hey, that's no big deal. But when you go back and look at the statute of 15A-642, that's not the only protection that it's talking about, right? It also says, we will not do this if the person is not represented by counsel or in capital cases.
[00:18:51.375] [SPEAKER_00] Right. And that makes sort of the takeaway from Pierce kind of difficult, right? Because what is the lesson that we're supposed to draw from this? That a defendant who properly waives counsel and is demonstrating this kind of dilatory tactic, that gets you around the statute. But that provision that's set up to protect defendants who are not represented by counsel and for those in capital cases, seems to be a protection that shouldn't be so easily frittered away. I guess in sum, I don't think this should create an avenue for prosecutors to make this argument on a regular basis that, well, he didn't have counsel, but maybe that was the defendant's own fault, so we're not going to comply with the provisions of the statute that says defendant not represented by counsel may waive indictment. The better thing to do in this case, if you have a defendant who is insisting upon proceeding pro se and you've got charges, felony charges, go back to the grand jury and get an indictment. The fact that the state was able to make this argument work in this case, I don't think provides a blueprint for moving forward.
[00:19:48.875] [SPEAKER_01] Yeah. And we've talked about this before. I think that a lot of times this may come up as well in district court, for example, that we know that we're not going to have these pro se defendants waving indictment, pleading that out, pleading the information without having counsel appointed in district court. I think that's where we may see it more often. But I can certainly understand how we get here. I mean, the reality of we're in the courtroom, we've talked this thing out. I think we've got a plea deal. The defendant is willing to take it today. And it sounds like this defendant might have been a little bit difficult to deal with at different times over the life of the case. So I certainly understand the desire to say, for goodness sake, let's just get this thing played out and settled. But it does seem like a challenging and questionable situation. Well,
[00:20:34.635] [SPEAKER_00] particularly because, and we're going to talk about this a little in our next episode, but sort of those jurisdictional issues are really hot and on the table right now. That case Singleton where the North Carolina Supreme Court had said indictment defects are no longer jurisdictional. This question of when the trial court has jurisdiction and doesn't is really something that we're seeing play out in a lot of these cases. This case is not an indictment defect of that sort, but you see the Court of Appeals wrestling with that same kind of problem of a rule that we've had for a long time and a defendant who maybe doesn't fit into the mold for the protection that that statute is meant to enforce.
[00:21:10.403] [SPEAKER_01] Yeah, but big picture, I think I completely agree with you. If we've got a pro se defendant, even if we have worked out this plea, probably just going to be safer to go ahead and get that indictment so that we don't have to wrestle with this issue about whether he's sufficiently waived it or invited that error, or am I running afoul of this 15A-642? Probably, if you got the time, it seems like it'd be a safer course to just go ahead and get the new indictment when you can. That's right. So then Joe, I think the last one we wanted to talk about in our final segment here today was case State versus Thomas. And this was a case out of my former home, Wake County, former Wake County DA's office. And in this one, the facts are unfortunate. It happened back in November of 2019. There was a shooting that occurred at a convenience store near Bragg Street in Raleigh. One young woman was shot and killed. Another young man was shot and seriously injured. Witnesses were able to provide some information to the police. They talked about seeing a red charger that slowed down and then pulled away from the scene. And they did their investigation. They were able to connect that red charger to a certain woman and her boyfriend. And then additional information links that boyfriend back to the defendant as the idea that he's also connected to the shooting. And so they're digging into this further and looking into this defendant. They learned that he actually was on court supervision at the time and was wearing an ankle monitor that would report his GPS location. So one of the investigators in the case is a person who's authorized to access that GPS information, Sergeant Lane. So he goes and does that, looks up the GPS information, does not have a search warrant at the time that he does that, but he's just able to go into the system and see it. And so with that additional information, they are able to link the defendant to the scene and the crime. So he is charged for one count of first-degree murder and three counts of assault with a deadly weapon with intent to kill, and also indicted for having the status of a violent habitual felon. He files a motion to suppress based on this ankle monitor data saying that they needed a search warrant if they wanted to look at that. It was an improper search for them to do that. And the trial court denies that motion, so then the case goes to trial. And an issue that came up in the jury selection of the trial is that juror number eight let the court know that they were only going to be available up to a certain point. But we expected the trial to be done before we reached that point. But unfortunately, we are not able to get there. As they are deliberating, once the trial is concluded, They get a note initially from the jury saying that they feel like they're hung at this point and they're going to have to keep working. But this is going to go past the point that juror eight said they would no longer be able to serve. And so relying on the new statute that we got in 2021, 15A-1215, the judge does what we now were under the impression we were able to do, which is excuse juror number eight and move that first alternate juror into juror eight's seat and instruct them to begin their deliberations anew. And they ultimately do that. They're able to return a verdict for second degree murder and assault with a deadly weapon with intent to kill. So the two issues in this case, the bulk of the opinion is actually filled with a second, with that search issue. And that's not what we wanted to focus on today, but just if that's something prosecutors or others are dealing with, I would let you know they agree that the trial court was correct to deny that motion to suppress. The defendant in this case, that ankle monitor that he's wearing, he's on post-release supervision. That's where that condition is actually coming from. And I think at trial or even on appeal, they're quoting some statutes about, well, who's allowed to look at that data? Who's allowed to do that kind of a search? But it's kind of getting muddled between probation and post-release supervision. And so the court addresses that second issue on appeal and they say, they clarify this defendant, that GPS monitor was happening as part of his post-release supervision conditions. And this officer, Sergeant Lane, is somebody who was authorized to look at that data in the system of recording those GPS coordinates. So what he's doing is not a search that would run afoul of the Fourth Amendment. They talk about how this defendant would have this lower expectation of privacy as a person who's on post-release supervision regardless. And those other statutes talking about searches of people on probation and who's authorized to do that and what they're authorized to search and their purposes and so forth, that doesn't really apply. So they dispense with that argument, but they clarify we're only doing that because we know this is going to come up again at his retrial, which we are now ordering as a result of what we're deciding regarding the first issue, which is looking into this substitution of an alternate juror. And there, the court says that we are finding that to be error. They reference a case we had recently called State v. Chambers, And the Court of Appeals says, as we are required by Chambers to grant defendant a new trial based upon the substitution of an alternate juror after the trial jury deliberations had begun their deliberations. And they note here, I just want to talk about a sort of an interesting point. They reference Chambers. And then here, in this opinion, the court goes on to say, although the Supreme Court of North Carolina has granted discretionary review of Chambers, This court remains bound by chambers, and we are therefore required to grant defendant's request for a new trial based upon the juror's substitution. So, Joe, are they bound by chambers at the time that they are issuing this opinion?
[00:26:30.708] [SPEAKER_00] John, I was afraid you were going to ask me that. Typically, what happens on appeal, if the state has gotten the North Carolina Supreme Court to grant a petition for discretionary review, there also would have been a stay of the Court of Appeals opinion. Now, there is some disagreement as to whether that stay means it stayed only for purposes of those parties or whether that stay also means it doesn't count as a precedent for other Court of Appeals panels deciding similar issues. In this case, I think there's a number of things that the panel could have done. They could have hold this case in abeyance until the Supreme Court has decided whatever it's going to decide in chambers. What they decided to do, however, was go ahead and issue this opinion on the basis of chambers, what that means is if the state is going to seek review of this case as well, and that might be a good idea given that the Supreme Court has granted review in chambers, they would need to file an additional petition for discretionary review. They have a better chance of getting some traction on that since the Supreme Court has indicated its interest in this issue, having allowed that petition in chambers, which is what this case was based on.
[00:27:31.672] [SPEAKER_01] Well, unsurprisingly, given Joe's background working at the Attorney General's office, he's exactly right. The state did seek a stay, of course, in chambers. And I pulled that up, Joe, and they noted in there, the state explained, this opinion is the first, this is back in chambers again, this opinion is the first to directly address the constitutionality of a recent amendment to GS 15A, 1215A, and the court declared it unconstitutional, permitting such an opinion to stand pending this court's review for would frustrate and confuse both practitioners and judges faced with a potential juror substitution during deliberations and it seems that the supreme court agreed with that assessment because they then granted that stay in chambers back on march 6 before this one was decided but You know, it's a little bit of a cop-out either way for us to just say, oh, well, we're bound by chambers. You know, I mean, I'm not disputing the court's interpretation of that. I'm just saying that doesn't really answer the question of, but why? So then, you know, if you go back and look at chambers, you can get a little bit better of an explanation of why they're saying this would be a problem. And so when you go look at chambers, what you see the court there did is they referred back to an earlier case called State v. from 1987. And it was a very similar situation where there's a juror who begins participating in the deliberations, is not able to continue due to a medical issue, so that juror is excused and the court substituted in a new alternate juror. And interestingly enough, even though this is way back in 1987, the trial judge there specifically instructed the jurors to begin their deliberations anew.
[00:29:05.327] [SPEAKER_00] We
[00:29:05.428] [SPEAKER_01] start fresh with these 12, but the North Carolina Supreme Court in Bunning didn't seem to think that that was sufficient. And so in chambers, there's a quote from Bunning where they explain, the juror who was excused participated in the deliberation for half a day. We can't say what influence she had on the other jurors, but we have to assume she made some contribution to the verdict. In this case, 11 jurors fully participated in reaching a verdict, and two jurors participated partially in reaching a verdict. This is not the 12 jurors required to reach a valid verdict in a criminal case. And so in chambers, the appellate court said, sure, we have a statute that now says this is allowed, but a statute can't overrule our court's interpretation of a constitutional provision, which says we're supposed to have a jury of 12. And, you know, Joe, what this immediately called to mind for me is this fight we've been having for the better part of, or over a decade now, on the good faith exception. Right. We had the same thing there where the Supreme Court said we don't have a good faith exception. We got that new statute or the new amendment to the 158974 added in saying, let's do let's let's do have a good faith exception. But it's sort of not activated unless and until the court will revisit State v. Carter. And so I think that's
[00:30:24.093] [SPEAKER_00] what. What's peculiar about that, right, is that Carter itself had invited the legislative branch to kind of weigh in on this issue. And then we come back with that amendment to the statute that says the legislature is now indicating it wants there to be a good faith exception. And still, you've got that reluctance from the appellate division to change their precedent, because by this point, it's understood, at least by the North Carolina Supreme Court and the Court of Appeals, we don't have a good faith exception in North Carolina.
[00:30:47.741] [SPEAKER_01] And I feel like that's the same thing happening here. Yes, you've now got a statute that says you can swap in a new juror as long as you tell them to start over, but that's not going to trump our interpretation of a constitutional protection. But then that sort of begs the question to me of, it sounds like what you're saying is we won't trust jurors to follow the court's instructions When we tell them to disregard whatever you may have discussed with this juror who's now been excused and start over fresh with new deliberations, which ordinarily we like to think that we can trust the jurors to follow the court's instructions. When I tell you this is only for impeachment, it's not substantive evidence. There's a presumption that the jurors are going to get that and they're going to follow it. Right. But nevertheless, for where we are now, that's I think the assessment of the court in this case is whether you wanna say I'm bound by chambers or whether you wanna say I'm bound by the same logic in chambers of relying on bunning. I think the issue is they're saying this statute can't give us this ability to swap in a juror until the Supreme Court says, Things are different than what we said back in Bunning in 1987. Before that statute, before
[00:32:01.144] [SPEAKER_00] the legislature weighed in on that.
[00:32:03.307] [SPEAKER_01] Exactly. So, you know, we've talked a number of times. Prosecutors listening to something like this say, so what's the point? What's the advice? What am I supposed to do? I don't know what to offer at this moment other than to say, well, don't do this until we hear something different from the North Carolina Supreme Court. But I mean, in all seriousness, I think... For the moment, at least, we have to basically just go back to how we were doing it before.
[00:32:28.042] [SPEAKER_00] Well, and the other thing in Thomas, right, is that we at least had some anticipation that this could happen. This was a juror who said, I've got this conflict coming up. So if a prosecutor has some foresight going into a case that you're going to have a potential swap, right, just make sure it doesn't happen after the jury has begun its deliberations, at least until we get some clarification from chambers of whether that's going to be permitted going forward.
[00:32:51.300] [SPEAKER_01] But if we sort of default to the old procedure of send those 12 back to the room, alternates, thank you for being here. Looks like we won't need you. Or even if we do need you, we're not allowed to use you. So I'm going to go ahead and excuse you now. If then we ran into a juror eight situation where this one can't continue, this person has to leave. We're only going to have 11 left. Wouldn't you think then in light of these cases like Chambers, the courts would agree that it was proper for the judge to then declare a mistrial if we had to do that? Yeah, I think that would be the only remedy at that point. Notwithstanding the fact that we have a statute, given the cases interpreting the statute, saying we can't really use that until our Supreme Court says otherwise. That's right. Given what we've got right now, I think that's right. Well, Joe, I think that's all I've got on my last case.
[00:33:34.951] [SPEAKER_00] That's all, folks, for this episode. Today we discussed State v. Little, dealing with probable cause from the odor and appearance of marijuana. State v. Pierce, waiver of indictment for a defendant not represented by counsel. And State v. Thomas, regarding that troublesome issue of juror substitution. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We were coming to you from the recording studio at the School of Government in Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holtz for our music. If you liked what you heard today, if you have questions, comments, concerns, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's jhyde at sog.unc.edu.
[00:34:21.228] [SPEAKER_01] Thank you. And I'm Jonathan Holbrook. I can be reached at jonathan.p.holbrook at nccourts.org. It's a long one, but that's j-o-n-a-t-h-a-n dot p, as in Philip, dot holbrook, h-o-l, be like boy, r-o-o-k, at nccourts, with an s, dot org. Unfortunately, our
[00:34:43.858] [SPEAKER_00] complaints department is currently down for site maintenance. Good night, John, and good luck. Good night, Joe. Thanks very much. Hope it helped.
[00:34:58.048] [UNKNOWN] Thank you.