Episode 11: Lester, Boyd, and Spry

[00:00:05.870] [SPEAKER_01] The Confrontation Clause prohibits the introduction of testimonial hearsay unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the witness. The North Carolina Supreme Court has now ruled that machine-generated raw data is neither hearsay nor testimonial under the Confrontation Clause. We'll be discussing that case state v. Lester 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 District Attorneys. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina.
[00:00:47.607] [SPEAKER_00] Joe, let's jump right into that confrontation clause case. I believe the contested evidence here consisted of cell phone records. So tell us about State v. Lester. State v. Lester,
[00:00:56.015] [SPEAKER_01] right. This is a case out of Wake County decided by the North Carolina Supreme Court at the end of January of 2025. In the summer of 2019, 13-year-old Riley met 32-year-old Ray Ray. They apparently had oral and vaginal sex at that time. Later the summer, Riley revealed to a clinical social worker that she had had a sexual experience with a man around 30 years of age. The social worker reported that to law enforcement, and the Cary Police Department investigated. Riley's brother identified Ray Ray as the perpetrator, and then another officer recognized Ray Ray as the defendant. Riley was able to provide Ray Ray's cell phone number. Cary Police Department then obtained a court order from Verizon to disclose the call detail records of Ray Ray's cell phone number. The record showed every call from May 2019 to July 2019 also included such information as the time, the date, the duration, the direction, and the contacted phone number for all communications to and from Ray Ray's cell phone. The Cary Police Department then used filtering software to narrow that data to communications only between Ray Ray and Riley, the victim in this case, and created a spreadsheet showing about 100 communications in that designated time period. Defendant was charged with statutory rape of a child 15 years of age or younger, statutory sex offense with a child 15 or younger, and indecent liberties. At trial, the state called Riley as its first witness. They also called Cary Police Department officers to testify to the investigation. And then during that detective's testimony, the state introduced two exhibits based on the call detail records. Exhibit two was a full set of the Verizon records for the date range specified. And then exhibit three was that spreadsheet that the Cary Police Department had created showing about 100 communications between Riley and Ray Ray. Defendant objected to both exhibits, The trial court admitted the exhibits and then the defendant was convicted on all counts and appealed. This went to the court of appeals and the court of appeals held that the admission of exhibits two and three, that is the cell phone data and then the spreadsheet that was created by the police department violated the confrontation clause and ordered a new trial. The state petitioned for discretionary review and the North Carolina Supreme Court allowed review. On review, the North Carolina Supreme Court posited that hearsay is a statement from a declarant and it requires a human source. The confrontation clause, it says, targets a subset of hearsay, specifically testimonial hearsay. A statement is testimonial if its primary purpose is to establish past events for later prosecution. The Supreme Court went on to say, but machines are not declarants and their data is not created for the purpose of criminal prosecution. So it concluded based on that, that machine generated raw data is neither hearsay nor testimonial under the confrontation clause. The Court of Appeals, it noted, failed to distinguish between computer-generated and computer-stored data. The important distinction there being the statements of a declarant that might be put into a digital format like notes saved on a computer, that would constitute computer-stored data. But data that is collected by a computer in real time would not be that sort of computer-stored data, but computer-generated raw data. The Supreme Court also noted that the Court of Appeals conflated the timing of production with the timing of creation. Just because the records were produced in response to a court order doesn't make them testimonial. It said if Verizon recorded the data in real time as part of its day-to-day operations, then the information was probably not created for purposes of use in a future trial. So with that ultimate conclusion, the North Carolina Supreme Court reversed and remanded for reconsideration. The takeaway there, I think, is that that ultimate holding that machine generated raw data falls outside of the ambit of
[00:04:38.084] [SPEAKER_00] the confrontation clause. Joe, that's what I wanted to ask you about. You know, that quote that we see here in the opinion that machine generated raw data, if truly machine generated, are not statements by a person. They are neither hearsay nor testimonial. I mean, that quote is coming from State v. Ortiz-Zape, an opinion that we had back in 2013. So on the one hand, it seems like this opinion is not particularly surprising. But why does it stand out for
[00:04:59.848] [SPEAKER_01] Well, so the reason that is significant, right, is that there's a good argument, at least, that portions of Ortiz-Zape had been overruled by Smith v. Arizona. That was the recent case that went back and looked at that possible end run around the confrontation clause via the Rule 702 admission of expert testimony. This case recognizes that at least that portion of Ortiz-Zape has survived the subsequent ruling of the U.S. Supreme Court in Smith v. Arizona, and that proposition that machine-generated raw data, if it really is raw data and not filtered through the interpretation of some state witness, that can come in without a confrontation clause problem. What the North Carolina Supreme Court pointed out, a human witness can take the stand, recount her observations, and have her reliability tested through cross-examination. A machine cannot. It has no mind of its own, no memory to probe, no truthfulness to impugn, and no agenda to uncover. So it distinguished between a human witness that might be interpreting certain data that was collected in the course of an investigation versus data that is just collected as part of a day-to-day operation of the machine. And if it is truly just the machine-generated raw data that's being introduced, as in this case, those call records that showed nothing more than the number of communications between the defendant and the victim, there really wasn't a viable confrontation clause
[00:06:14.644] [SPEAKER_00] challenge there. Joe, you mentioned in this case, of course, we're talking about phone records specifically. I know what a lot of prosecutors are wondering about is, as you just said, what about in this after Smith v. Arizona world? Like, for example, if we have to bring in a substitute expert witness. This case seems to be saying that a second or substitute expert could look at and rely on and base an opinion on at least the machine-generated raw data. But then we still have the question of, but where did that data come from, right? I mean, we still have this unresolved issue of what about the statements of the now absent first analyst saying, for example, this is the evidence that I put on a slide and put into the instrument. And now here's the data that the instrument spit back out.
[00:06:59.863] [SPEAKER_01] Yeah, Jonathan, you raise an interesting point there. There's still going to be this sort of line drawing that we have to do between the data and the interpretation of the data. Ultimately, I think you're right. If the state seeks to introduce the machine data itself, this case indicates we're not going to have a problem with that. But the North Carolina Supreme Court, in this opinion, goes on to say the state still has to satisfy the authentication rules, right? The state might still have to present sufficient evidence to show that the data is what it purports to be. If you have that raw data and then a second expert come and look at it, I think that second expert would be permitted to give an interpretation of that data so long as it's the same expert that testifies at trial. We're still going to have a problem with kind of switching from one expert to another. If the second expert is relying on the statements of the first expert, you could still run into a compensation clause problem there.
[00:07:46.742] [SPEAKER_00] In this opinion, Justice Earls draws an analogy between, in this case, with other things, other kinds of machine-generated raw data, and sort of analogizes this to a camera, or a flight recorder, or a seismograph. These are just instruments that are generating the data in real time. As soon as it's happening, they're spitting it back out. I mean, even with something like a camera, somebody still had to set up the camera. Somebody still has to press record. Somebody still had to put in the parameters. But we seem to be saying, that data would be, it's machine generated, so it all comes in to be determined, I guess, as you said, exactly where is this line of what kind of human input on the front end could still be considered just factoring into the then independently machine generated raw data.
[00:08:33.537] [SPEAKER_01] I think there's two points to make there. First of all, like you said, the human interaction on the front end, at least with regard to an automated recording device, the authentication rules are satisfied so long as you've got a witness to testify that the device was working properly and there's no evidence of tampering. But the other thing kind of on the back end, like you said, there's got to be a witness who can introduce this information. Is that witness providing some kind of interpretation, some kind of spin on the data, or is that witness being used merely as a conduit for the data that was entirely created by the machine. This leaves certain questions unanswered, but at least we've got some ammunition now to argue that the data itself, so long as there's not an expert witness who is interpreting that data as directly implicating the defendant, if it's just the data, the data comes in absent a confrontation
[00:09:21.005] [SPEAKER_00] clause violation. And I'm also going to be watching to see how, if at all, this primary purpose analysis that was discussed in Williams and Smith v. Arizona factors into all this. If, to the extent we do need to rely on some statements from an absent witness about, I took the sample, put it on the slide, put it in the instrument, is there more room to argue here about the primary purpose of that statement? Not to... generate testimonial evidence against the defendant, but just to document that I'm preparing the slide in the right way or carrying out my job as an analyst. That's certainly not at issue here, but Joe, we sit across from each other and we do this podcast for a reason. I see sort of a smirk and a faraway look. You feel like that might be a tougher argument to make?
[00:10:01.725] [SPEAKER_01] No, I think that's a fascinating question, Jonathan, because the primary purpose test is always looking at the primary purpose of the statement being made. But you're talking about maybe the primary purpose of the investigation or the creation of the evidence. Yeah, I think that could lead to interesting questions moving forward. That primary purpose test may be where we see some litigation about this moving forward.
[00:10:21.081] [SPEAKER_00] So certainly not a clear answer in the expert witness Smith v. Arizona context, which is what we can't resist focusing on. But for these kinds of cases, something like this, the cell phone data, certainly a good clear-cut answer for the state to have in its pocket.
[00:10:34.826] [SPEAKER_01] That's right. The next case we had on for today was State v. Boyd.
[00:10:38.192] [SPEAKER_00] Yes. State v. Boyd was a court of appeals case that we got on February 5th of this year, a case out of Pasquotank County. And this all came to light as part of a shooting that happened on October 18th of 2020. At about two in the afternoon, officers were called to the river landings apartment regarding multiple shots being fired officers responded there they were able to speak with a couple of witnesses who were able to identify the defendant for them and ultimately ended up testifying at trial describing an argument that broke out a suspect pursuing the victim sort of around a corner in the parking lot and then hearing shots ring out. A second witness also heard that argument, looked out her window and called 911, actually recognized the defendant and this other person who was there from her time previously as a substitute teacher. Officers also responded or were dispatched out to another apartment complex, Fountain View Apartments, responding to a call about a suspicious vehicle. When they got there, they found the victim deceased in his car, this gray Honda, looked in the trunk and found marijuana in the trunk of the vehicle. Back at the first scene at River Landings, officers found a number of .22 caliber shell casings to go along with that 8.2 pounds of marijuana that was found in the trunk of the car. After identifying the defendant, they also did a search of his home and in his bedroom, they found .22 caliber Federal brand ammunition and a Glock firearm box. So that was also part of the evidence that the state had. Finally, he had a tamper alert on his ankle monitor that was triggered at the same day. The whole story of what happened came to light through a witness that the state called named Wilson testified that Bilger, the other person who was there at the scene, had gone out to California to get a better price on marijuana, that this defendant had invested some money in that. And when the victim in the case came back to North Carolina, the defendant was upset about not getting his money and being told that he would simply have to wait. So an argument broke out about that, that the defendant said he was going to go home and come back, which he did, ultimately shot the victim in the first apartment complex. Jury found the defendant guilty of all the charges, first degree murder, possession of a firearm by a felon that was based on him having a prior conviction for a guilty plea to common law robbery, which was a felony. Also interfering with his electronic monitoring device and the defendant gave notice of appeal for all that in open court. So the first issue that we're addressing on appeal is his argument about his right to a speedy trial. And this of course goes back to the classic Barker v. Wingo test. That's how we evaluate this. and the courts have explained it's a four-factor balancing test where the court looks at the length of the delay, the reason for the delay, the defendant's assertion of their right, and any prejudice that the defendant suffered as a result of the delay. Court explains here, they say, it is clear, based on significant federal and North Carolina precedent, that when the delay approaches a year, it is enough to cause concern that the delay may be unreasonable and to trigger the examination of all four Barker factors, However, the trial court's determinations are not required to be reduced to a written order. So we call it a four-factor test, but it's sort of a triggered four-factor test. We look first at the length of the delay to see if that is enough to, as they say, cause concern. And if it is, then we do the full four-factor analysis with the length of the delay then serving essentially as factor number one in the analysis that we're doing.
[00:14:00.764] [SPEAKER_01] And the first factor is whether it exceeds a year. And that first factor is clearly satisfied here, right?
[00:14:05.029] [SPEAKER_00] Right. So yeah, going all the way back to Barker v. Wingo, the courts have said that, that when the delay, and as they say here in this opinion, when a delay approaches a year, it is enough to cause concern that the delay may be unreasonable and to trigger the examination of all four Barker factors. So we do sort of use that as a guide. The judge in this case, that motion was made on November 8th of 2022. It says the trial court held a hearing on it. And the judge I guess you just have to call it a forecast or a preliminary ruling on the motion to dismiss for a speedy trial. The judge said, I will announce and give you a forecast of my ruling today so there won't be any delay in everybody attempting to get prepared as soon as possible. I intend to deny that motion. And then the court said it would ask the state to draft it up, but went on to say, I do not determine at this juncture that there is a presumptive prejudice, but I will rule in the alternative as well, considering the other factors. However, I will set this case for trial. So in other words, saying, I don't think we've really even got factor number one, that there is a presumptive prejudice, but in the alternative, even if we should do the full inquiry, I will rule in the alternative that the defendant has not made a sufficient showing. But no written order was ever actually entered and so the appellate court here is saying, we really don't have a ruling on that. Now, you know, we sort of have the judge saying, I'm forecasting to you, it's my intent that I'm gonna deny the motion. In the alternative, I will consider the other Barker factors, but it's not clear from the record that that is exactly what the judge is doing if we're gonna call this an oral ruling on the motion. And then there's no written order that actually follows that up. And so the appellate court says, This is going to have to be remanded. We're going to have to send this back down for a hearing on that speedy trial issue. And essentially, if the judge on this rehearing make findings of fact, make your legal conclusions, if the judge still says that there is no speedy trial violation, then the motion will be denied and the conviction would stand. But if the judge on this fuller finding of fact and fuller legal conclusion says there is a speedy trial violation, then the conviction would be vacated.
[00:16:16.604] [SPEAKER_01] Do you envision that, Jonathan? Can you tell from the opinion whether they're sending it back for an evidentiary hearing or are they just sending it back for the trial court to put his thoughts on paper so that the Court of Appeals can review it better?
[00:16:27.461] [SPEAKER_00] The actual wording says, down at the conclusion of the majority opinion, it says, the presiding judge shall make the necessary findings and conclusions of law to support an order on defendant's motion to dismiss.
[00:16:41.544] [SPEAKER_01] I guess there's already been a hearing on his suppression motion, so presumably that judge could just go back and base this order on the hearing that's already taken place. But he at least needs to make a formal ruling on
[00:16:51.701] [SPEAKER_00] that. I think it would have to be up to the judge if they feel like there's been a full hearing on this sufficient for the court to make those findings. And, you know, Joe, if, for example, the court were to say, I don't think we need any deeper hearing than we've already done. I'm just going to make that findings in order like we already talked about. I would throw it to you. If the defendant then, for example, says, I think that's defective process. I think we needed to have a whole other separate hearing. Could the defendant then appeal?
[00:17:19.902] [SPEAKER_01] Well, I mean, as you pointed out, if that's all the Court of Appeals says about what happens on remand, it's not clear to me that the Court of Appeals has specified how this order is supposed to get back to the Court of Appeals for review absent a right to appeal. And there would not be a statutory right to appeal the denial of a motion to dismiss. Presumably, the defendant could file a petition for cert with the Court of Appeals seeking discretionary review of that, but it looks like the Court of Appeals has not provided at least a direct avenue to get that order back in front of the Court of Appeals to see if it complied with their orders on remand.
[00:17:51.491] [SPEAKER_00] The requirement here is not entirely clear to me. I mean, I read you that part. It just says the judge shall make the necessary findings and conclusion of law. And then they quote from another case, Clark, in saying that if the court determines the defendant's right was violated, the court shall find those facts, enter an order vacating judgment, setting aside the verdict, dismissing indictment as to all charges. If the court determines that the defendant's right to a speedy trial was not violated, then the court shall find those facts and conclusions of law, enter an order denying the motion, and order commitment to issue in accordance with the judgment that was entered back at the March 15th of 2023 session of Pasquotank Superior Court. On the one hand, they're saying the court needs to determine that, but then at the same time, they're just saying, make the necessary findings and conclusions of law. So I think probably the parties and the trial judge will have to decide whether there was a sufficient hearing on this was already done or if some follow-up is required. That was the main issue of the case. There were a couple of other issues that were raised. There was an issue raised on appeal about whether the trial court erred by not replacing juror number seven. It was brought to the court's attention that the juror appeared to have their eyes closed, not clear if the juror was perhaps falling asleep or just resting their eyes as they listened. The trial judge said that could have been all it was, just resting your eyes, sleeping, taking a break, but was not inclined to replace the juror at the time. And the Court of Appeals said, we're gonna defer to the trial judge. We're not gonna say it was error to not go do a deeper inquiry into that. The judge is the one looking at it. The judge is right there in the moment. So we defer to the trial judge. And they found no evidence that the defendant was prejudiced in any way by juror number seven, having closed her eyes for a short period of time. And then the final issue was just about a clarification of the jury instructions, that when the judge was giving the instructions to the jury for first and second degree murder, gave all of the instructions fully and properly in the initial set of instructions, but in the giving the final mandate, the trial court omitted the intent to kill requirement in that sort of summary or wrap up in the final mandate. And the defendant is arguing that that was error on appeal. the Court of Appeals disagrees because the trial judge did give the full and complete instructions the first time through, including all the references on intent to kill, and only omitted that when giving the final charge to the jury. And so they distinguish that from case law that has said it's, I mean, of course, it's an error if the judge leaves out an element that the jury is supposed to have to find as a matter of fact, but That is different than something like this where they were told the right element. It just was inadvertently left out of the final mandate. And the court says that is a different situation. In their words, it is not contradictory, but at most incomplete at one important point, quoting cases like State v. Stevenson. And so they find that that, again, would not be grounds to reverse for this incomplete instruction. They say it did not create a fundamental error sufficient to breach the plain error standard, which is what they were reviewing for since there was no proper objection. I'll just note in closing, Judge Griffin issued a concurrence here, agreed with the majority on that speedy trial issue that were bound by precedent, and there was not a clear indication from the judge, but raises some interesting points about how exactly we're supposed to treat that presumptive prejudice of that one-year delay, and whether we are or are not required to go through the rest of the analysis, looking at those factors two, three, and four, if the judge, perhaps despite more than a one-year delay, finds there is not presumptive prejudice. Acknowledges that we're bound by precedent, citing these cases, State v. Wilkerson, but just sort of teased that up in a concurrence, saying he'd like the higher court to maybe take a look at it and make sure that we're applying that consistently and with what Barker v. Wingo actually required.
[00:21:41.999] [SPEAKER_01] But a concurrence, meaning the Court of Appeals was unanimous in sending it back for additional findings.
[00:21:45.826] [SPEAKER_00] They are. I think all three judges agreed that the way it was worded here with the oral ruling of, you know, a forecast or I intend to find or I will find, it just wasn't clear that that was what the judge was actually doing. And so we have to send it back for those findings and conclusions.
[00:21:59.470] [SPEAKER_01] Last case we have on for today is State v. Spry. This is a case out of Guilford County, decided by the Court of Appeals February 5th, 2025. Jonathan, we've done a lot of cases in this podcast. I'm not sure we've had one specifically about a post-conviction motion, but this has to do with the review of the denial of the motion for appropriate relief. So we've got to reach a little bit further back in terms of the facts here. Back in November of 2006, Defendant robbed a restaurant in Greensboro. He was indicted for three crimes, common law robbery, second-degree kidnapping, attempted second-degree kidnapping. The kidnapping indictments alleged that the victims were under the age of 16 years. In January of 2007, defendant pled guilty to those charges and then consistent with his plea arrangement, the trial court consolidated the offenses for judgment and sentenced defendant to 25 to 39 months with nine months of post-release supervision. Significant to this opinion, the trial court did not check the box indicating that this was a reportable conviction involving a minor. Then about a week later in March of 2007, and allegedly without notice to the defendant, the trial court entered what it called a corrected judgment, including the finding that the offense was a reportable conviction involving a minor. As a result of that corrected judgment, defendant was sentenced to five years of post-release supervision and required to register as a sex offender. You learn later in the opinion, and these facts are a little bit buried in there, but in 2012, defendant was convicted of failing to register as a sex offender. And then in another instance in 2016, defendant pled guilty of failing to register as a sex offender. And it wasn't until after his petition to be removed from the registry was denied that he came back and filed this motion for appropriate relief in 2023, contending that his guilty plea was not knowing and voluntary. He alleged that he was never informed that he would be required to register as a sex offender or be subject to that extended post-release supervision. The Court of Appeals noted that his MAR was supported by an affidavit from defendant, an affidavit from trial counsel, and a letter from Combined Records. Combined Records had apparently sent the judgment back to the trial court saying, look, this conviction of kidnapping with a victim under the age of 16 years is going to be one of those reportable convictions. In March of 2023, the trial court summarily denied the MAR, that is, without an evidentiary hearing. The trial court specifically found that sex offender registration was a collateral consequence of a guilty plea, that sex offender registration did not affect the voluntariness of the plea, and that the potential for sex offender registration did not have to be disclosed by trial counsel to make this a knowing and voluntary guilty plea. The trial court noting that defendant had been convicted of failing to register and then also pled guilty to failing to register as a sex offender Between the time that he pled guilty to kidnapping and the time that he filed his motion for appropriate relief, the trial court found that defendant was aware of the requirement to register as a sex offender when he pled guilty in 2007. Defendant then filed supplemental motions for appropriate relief, subsequent motions. Those were summarily denied. And then in August of 2023, the Court of Appeals granted defendant's petition for cert to review the denial of his MAR. On appeals, the Court of Appeals cited State v. Allen, which is a North Carolina Supreme Court case, for the proposition that in determining whether a defendant is entitled to an evidentiary hearing on his motion for appropriate relief, the evidence must be considered, quote, in the light most favorable to the defendant. It went on to find that in order for the plea to be knowing and voluntary, the defendant must be advised of the direct, and in some cases, the collateral consequences that might affect his taking a guilty plea. With regard to whether the defendant was entitled to an evidentiary hearing, the Court of Appeals noted that the defendant argued that the trial court had erred by summarily denying his motion for appropriate relief. The record did not contain a verbatim transcript of plea that the trial court had apparently relied on in finding that this plea was knowing and voluntary, and it said the trial court should have held an evidentiary hearing to determine whether the defendant entered the plea under a misapprehension. The reason this is a little bit problematic is that proposition that the Court of Appeals cited from State v. Allen has been specifically overruled by a North Carolina Supreme Court case called State v. Walker in 2024. I will note that it looks like a temporary stay has been allowed of this Court of Appeals opinion, State v. Spry, and I suspect it's because it looks like the Court of Appeals is relying on a proposition that at least has been called into question by subsequent North Carolina Supreme Court opinion. So it's got to go back for an evidentiary hearing, according to the Court of Appeals. But then the Court of Appeals goes on to address these two other questions that were raised by the motion for appropriate relief. And that was whether the requirement to register as a sex offender constitutes a direct or a collateral consequence of a guilty plea. The reason that matters is that under a US Supreme Court case called Boykin v. Alabama, in order for a guilty plea to be knowing and voluntary, the defendant has to have been advised of the direct consequences of the plea. Whether a consequence of a conviction is going to constitute a direct consequence or a collateral consequence makes a difference because if it's a direct consequence, the defendant has to have been advised of it and evidence showing that he was not advised of it can be used to undermine the voluntariness of the plea. The Court of Appeals looked at cases from other jurisdictions and concluded that it adopted the majority view that sex offender registration is a collateral consequence. So it agreed with the trial court here that sex offender registration was not one of these direct consequences that the defendant had to be advised of before his plea was going to be found knowing and voluntary. It came to a different conclusion with regard to that extended post-release supervision. The Court of Appeals noted that the trial court did not specifically address that in the order denying the motion for appropriate relief, but it concluded that five years of post-release supervision is a direct consequence of the plea. And where the defendant's plea arrangement had called for consolidating the offenses and ascendance of 25 to 39 months with nine months of post-release supervision, the fact that the trial court went back and corrected that judgment to extend the period of post-release supervision was a direct consequence that the defendant was entitled to be aware of before he pled guilty. So the Court of Appeals remanded for the trial court address, specifically the defendant's argument regarding post-release supervision. Ultimately, the conclusion was that the trial court erred by summarily denying the motion for appropriate relief, and the Court of Appeals remanded for an evidentiary hearing. But as I pointed out, it does seem to have relied on this at least questionable proposition from an older North Carolina Supreme Court opinion, State v. Allen, and the North Carolina Supreme Court has stayed this Court of Appeals opinion pending a determination of whether it's going to allow review.
[00:28:23.561] [SPEAKER_00] Joe, I'm just trying to get clear in my own mind about exactly what falls into the bucket of what the defendant does or does not have to be advised of. Looking at the case law that they cite here in that analysis section, they quote first from Brady v. U.S. from way back in 1970 for this proposition of, "...although a defendant need not be informed of all possible indirect and collateral consequences, the plea nonetheless must be entered by one fully aware..." of the direct consequences, including the actual value of any commitments made to him by the court. But then just one plus paragraph down, it says, nevertheless, a defendant cannot plead guilty without being formed of collateral consequences that might affect their taking the
[00:29:05.678] [SPEAKER_01] plea. The older US Supreme Court cases recognize that defendant has to be advised of the direct consequences and lower courts have held that the direct consequences at least means the maximum possible sentence. That understanding was fairly stable for a long time until the US Supreme Court decided Padilla, remember, was the case about immigration consequences of a guilty plea. And in that case, the United States Supreme Court says, look, we recognize lower courts have drawn a distinction between direct consequences for which a defendant is entitled to be made aware. That typically means maximum possible sentence, right? What any mandatory minimum and a maximum possible sentence to the defendant would be subject to. Other things maybe fall outside that ambit. Padilla called that into question and said the United States Supreme Court has never really drawn that strict line between direct consequences and collateral consequences. So whether you call immigration consequences direct or collateral, a defendant who is not a citizen of the United States is at least entitled to be made aware of immigration consequences when those immigration consequences include an almost certain deportation. Padilla kind of called into question this distinction between direct consequences and collateral consequences, at least for purposes of immigration. This case is interesting because it cites that older court of appeals case that was relying on Padilla to say, look, there are some circumstances where a defendant might be entitled to be aware of collateral consequences as well. That's a little bit of a loose end because ultimately what the Court of Appeals here held was sex offender registration is not a direct consequence, so defendant does not have to be advised of it, and extended post-release supervision is a direct consequence, so defendant does have to be advised of it. Ultimately, it goes back to that dichotomy that we are aware of and familiar with applying between direct consequences and collateral consequences. But those, I will say those immigration cases have kind of called that dichotomy into question because the United States Supreme Court refused to say the possibility that a defendant would be subject to deportation necessarily falls on one line or the other. Is that a direct consequence or an indirect consequence? Doesn't matter. Defendant who is not a... citizen of the United States is entitled to be made aware of those. That was not the case here. There's no indication that this particular defendant in Spry was not a United States citizen. And like I said, the Court of Appeals ultimately doesn't pursue that possibility that there might be collateral consequences that a defendant is entitled to be made aware of. It doesn't identify what those might be.
[00:31:26.538] [SPEAKER_00] Yeah, that's sort of the challenge, I guess, I'm struggling with. We've got Padilla or North Carolina cases like State v. Nakia saying, yes, immigration is on the list. And now we've got cases like this saying, well, here's another thing that would not be on the list, but another part that would be on the list. It just gets a little bit challenging to think about why. Everything that may or may not go on that list of what the defendant would have to be advised of. It
[00:31:48.721] [SPEAKER_01] seems to me we're still relying on that distinction between direct and collateral consequences, but that line has become kind of blurred. It's made kind of shaky by those immigration cases. That's all for today. In this episode, we discussed State v. Lester about the confrontation clause application to machine-generated raw data, State v. Boyd about a speedy trial motion, and State v. Spry about the direct and indirect consequences of a guilty plea. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are 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, if there's a topic you'd like for us to cover, please contact us. My name is Joseph Hyde, and I can be reached at jhyde at sog.unc.edu. That's J-H-Y-D-E. at
[00:32:46.020] [SPEAKER_00] sog.unc.edu. And I'm Jonathan Holbrook, and I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot o-r-g. Thank you, John. That would be the showing for the state. Sounds good, Joe. Thanks. Hope it helped.
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