Episode 12: Nanes, Greenfield, and Velasco

[00:00:05.870] [SPEAKER_01] In United States v. Rahimi, the United States Supreme Court clarified that the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Applying Rahimi, the North Carolina Court of Appeals has upheld the constitutionality of North Carolina General Statute 14-415.1 prohibiting the possession of a firearm by a felon. We'll be discussing that case State v. Naines today. I'm Joseph Ide 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. John, the defendant in State v. Naines was convicted of two counts of first-degree murder in addition to possession of a firearm by a felon.
[00:00:56.040] [SPEAKER_00] Tell us about that case. Joe, this is a Wake County case. The Court of Appeals opinion came down on February 19th of this year, but the incidents happened back on August 7th and August 27th of 2020. That was when the defendant shot and killed two people he had never met. The first one happened on August 7th, where Raleigh police officers responded to a Report of gunshots at the Montecito West apartment complex and a victim named Bobby Lucas was found dead in the parking lot with five gunshot wounds to the back of his head. About three weeks later, August 27th, 2020, around 4 p.m., the Cary Police Department in Wake County got a report of gunshots at the Somerset neighborhood pool in Cary. There, when they responded, they again found the body of deceased victim. That was Selva Villangiri, an Indian man who lived with his family there in the neighborhood. The Cary police officers did get video footage from the pool that showed the defendant walking in at a certain time and then running away from the scene about 40 minutes later, around 4.06 p.m. Using that video, they were able to put out a bolo, and the defendant's probation officer recognized him. So the officers got a search warrant for his residence. They were able to find clothing that matched what the person at the Somerset pool was wearing. So that helped tie the defendant to the scene. A Wake County grand jury indicted him for those two murders, for Mr. Lucas and Mr. Villangiri, along with, as you said, possession of a firearm by a felon based on prior convictions that he had, which we will talk about at some length. And a case came on for trial in October of 2023, and the jury returned verdicts, finding him guilty of both of those murders and also possessing a firearm. And that's what he's appealed from in this case. He raises two issues on appeal related to this felon in possession of a firearm statute. And the first thing he's raising is a constitutional challenge to it. under that 14-415.1, he's arguing that it is both facially unconstitutional and unconstitutional as applied to him, as well as being a violation under Section 30 of the North Carolina Constitution. And as you forecast in the intro, he's calling back to these cases we've had recently, these U.S. Supreme Court cases, Bruin and, of course, Rahimi, and is asking the North Carolina court to say that this statute fails under that test about whether we have some historical precedent or historical analog to it. So they look first at this Second Amendment challenge that he's making, and they point out, when he wants to make that kind of a challenge, that the government has to affirmatively prove that the regulation on firearm ownership is part of a historical tradition that delimits the outer bounds of the right to keep and bear arms. But as you said, Rahimi sort of clarified or expanded a little bit on what we had gotten from Bruin in making it clear that it need not be a historical twin, as they say, or a dead ringer. But statutes in Rohini, they had found statutes prohibiting convicted felons, mentally ill, possessing firearms, are going to be presumptively lawful. And so that's their first answer is to look at this facial challenge that he's making. The challenge would be that the defendant is saying there is no set of circumstances that exists under which this statute could be valid per these standards that are set forth by Bruin and Rahimi, and they reject that. The court here is saying that this statute, 14-415.1, is at least sufficiently analogous to historical laws to show that prohibiting convicted felons from possessing a firearm is within the nation's history and tradition of firearm regulation. Joe, you'll remember that in the Rahimi case, the defendant there was subject to a domestic violence protection order, And so he was prohibited under federal statutes, 922 from possessing or using a firearm. And the court there said, no, we don't have a direct historical twin to something like a person having a domestic violence protective order that prohibited them from owning it. But it was close enough that we did have these other laws that prohibited an individual who posed a credible threat to physical safety of another. And they said that such a person may be temporarily disarmed consistent with the Second Amendment. And that's really an important part of this analysis here. They go on to point out, yes, we're more familiar, most of us as prosecutors, with 14-415.1, the statute that says if you have the felony conviction, you may not be in possession of a firearm. But they say that in this context, that has to be read in conjunction with Section 14-415.4, which is the one entitled Restoration of Firearm Rights. And it provides a procedure where a North Carolina resident who was convicted of a single nonviolent felony can petition the court to get their disentitlement removed and restore their firearm rights within the state after 20 years, assuming that they've met certain criteria. And so they say this is the same thing, that essentially conviction of a felony in North Carolina is the same idea, that it is a temporary deprivation of these persons' rights, and we have these close enough historical analogs as was found in Rahimi to say that a person can be deprived of their firearm when they pose that kind of a danger to society. And then more generally, they just cite to a number of cases we've had over the years that have generally supported the U.S. Supreme Court cases and North Carolina cases consistently reaffirming that statutes prohibiting possession of firearms by felons and by the mentally ill are presumptively lawful. They reject it on that facial constitutional challenge. These laws still hold up. Rahimi applies. Then they look at sort of his second line of attack, which was this as-applied challenge. And here what he's saying is not that there is no set of circumstances where it could ever be constitutional and proper, but as applied to this particular defendant, it's unconstitutional as applied to the facts of his specific case. Because
[00:06:39.278] [SPEAKER_01] he's arguing his prior felonies weren't violent felonies.
[00:06:41.622] [SPEAKER_00] Exactly. Exactly. Even if you've got these analogs for these dangerous people, sure, a guy who committed a robbery, maybe that would be reasonable to say he can't have firearms anymore. But as applied to me, that should not apply because he says his disqualifying felony was larceny of a dog and animal cruelty. And those are not violent crimes against people. And the Court of Appeals pretty vigorously says no to that, that this argument is without merit. We'll talk a little bit more about a number of his convictions under this final discussion on the North Carolina Constitution, but it's larceny of a dog. But the Court of Appeals is not blind to the fact that what's really going on here is the defendant was convicted of felony animal cruelty for stealing his parents' pet dog and then using a knife to decapitate the dog, which they find little difficulty in characterizing as a violent crime. And so they say as applied here, yes, it again holds up and 14-415.1 satisfies that test under Rahimi.
[00:07:41.156] [SPEAKER_01] Jonathan, do you see in that kind of an interpretive technique for how we determine what constitutes a violent felony? I mean, I don't think anybody would have any reasonable disagreement that decapitating a dog constitutes a violent felony, but they just throw that out there. Okay, the violence of the felony may or may not determine whether this is a valid regulation of a person's right to have firearms. How do we decide moving forward what constitutes a violent felony and what doesn't?
[00:08:04.023] [SPEAKER_00] You know, Joe, they do discuss that a little bit more in this next section where they're looking at his challenge under Section 30 of the North Carolina Constitution. He's sort of making that same argument there that it violates that section both facially and as applied to him. And they say, again, it does not. They acknowledge that constitutional challenges under the state constitution generally do mirror those made under the federal constitution, but they point out we have had cases where people have gotten their firearm rights restored and they've been able to possess it again. And so looking at that, they say we apply five factors to the specific facts of the case when a defendant challenges the application of Section 14 And this is coming from that, you know, Brit v. North Carolina and Banetsky, cases that have raised these issues before. But these five factors, they say, yes, to your question, Joe, we look at the type of felony conviction and particularly whether they involve violence or the threat of violence. And then they go on with these other factors. So
[00:09:02.551] [SPEAKER_01] it's not a categorical, I mean, we can really get into the facts of the prior offenses to determine what the circumstances were.
[00:09:09.379] [SPEAKER_00] Exactly. I think they're saying we look at what it's for, the type of the conviction, and they say particularly whether they involve violence or the threat of violence. And then it goes on to look at the other factors, the remoteness in time of the conviction, the person's history of law-abiding conduct since that crime, their history of responsible and lawful firearm possession during a time period when their possession of firearms was not prohibited. And then finally, the felon's assiduous and proactive compliance with the 2004 amendments. So to be clear, part of the defendant's argument here is he's saying this statute was amended in 2004. I think we kind of need to look at it in a fresh light and see whether all the cases that we've used to make this determination before still apply. And the Court of Appeals has little difficulty in here again saying that they absolutely do. They talk about what a particularly challenging and violent crime it was that he was convicted of. I mean, yes, it was felony larceny for larceny of a dog, but also animal cruelty for using a knife to decapitate his parent's dog after he stole it. By the way, he was on post-release supervision at that time for another crime. He was convicted of larceny of a motor vehicle before that. And then they go on to look at a number of his other convictions that he had for assaults, disorderly conduct, other larceny, assault inflicting serious injury. assault on a handicapped person, assault and battery, intoxicated and disruptive, first-degree trespassing. They look at all of that and say, at bottom, the BRIT factors undoubtedly weigh in favor of upholding the application of Section 14-415.1 against the defendant as he has a demonstrated history of violence, victimizing others, and disregarding the law. So to circle back to your original question, yes. I mean, I think this five-factor analysis really allows them to look a little deeper at what's really going on here and make an assessment of whether this is the kind of person who would be eligible or would satisfy that sort of as-applied challenge under the state constitution. And they resolve it the same way they did for the federal decision. So This case is interesting, Joe, because I think this is the first one we've had in the state system, you know, looking at this very issue now in the... Exactly, in the light of Bruin and Rahimi. And it seems like they're generally resolving it the same way we would have expected. And like Rahimi, finding these... broader, not twins, not dead ringers for historical analogs, but the general idea of we need to take firearms away, at least temporarily, from people who've demonstrated that they are a danger to others by these violent convictions, and they find that to be the case here. There was one other issue in this case, the instruction issue. So there was one, there was an evidence issue dealing with a phone call that was admitted. The trial court admitted over the defendant's objection part of a phone call where the defendant in jail was speaking with his mother. So of course it was recorded. And she was basically asking him why he had put a photograph up showing him with a gun, knowing that he was a convicted felon. And the defendant stated to her, this is a hard time for our country and you've got racist black people out here. And the state offered that as evidence of motive. that these two victims, only one of them was actually African American, but the other one had a very dark complexion and a person might have thought that that was his race. And so the state was offering that as some evidence of motive. And that's why the trial court let it in. The appellate court here is looking at it and generally deferring and agreeing with the trial court that they do think there is some relevance to it under Rule 401 as being probative for showing motive, and that they did not think that it satisfied that test of being unfairly prejudicial to the defendant under Rule 403. And moreover, even if it was, he couldn't show prejudice in this case because of this substantial and overwhelming evidence that state offered on the other charges. So, came out in the state's favor on both of those issues, but... Noteworthy, I think, just for the fact that it's a first look, I think, at Rahimi under the state law and finding that our possession, felon in possession of a firearm statute holds up to that test.
[00:13:08.028] [SPEAKER_01] Right. Second case we have on for today is State v. Greenfield. This was a case out of New Hanover County. It arose from a drug deal gone bad that occurred in February of 2015. Defendant and a friend went to John and Beth's apartment to buy marijuana. Those are pseudonyms that the Court of Appeals chose for the victims. Beth testified that she was awakened by voices and found defendant trying to rob John at gunpoint. Defendant's friend found Beth in the bedroom. Defendant summoned her into the living room by threatening to shoot John in the head, and then Beth joins John in the living room. There are apparently two or three firearms involved. Defendant shot Beth and John. John died as a result of that gunshot and Beth was severely injured but survived. Defendant testified at trial and his account of what happened in the apartment was very different from the account that Beth gave. He testified that he did not bring a gun to the apartment but used a gun that he found there only after he was threatened and that he shot John and Beth in self-defense after they pointed guns at him. In May of 2015, defendant was indicted for murder, for attempted murder, for attempted armed robbery, and for assault with a deadly weapon with intent to kill, inflicting serious injury. The case was initially tried in February of 2017. Defendant was convicted of all charges except for attempted armed robbery and attempted murder. He was actually acquitted of armed robbery, and that matters for what ultimately happens in the retrial. Defendant appealed. North Carolina Supreme Court found error in the instruction and awarded the defendant a new trial on all charges. So it goes back for a second trial. The second trial ended in a mistrial due to the COVID-19 pandemic. So he's up for trial a third time in June of 2022. The trial court instructed at that time on felony murder with the underlying felony being assault with a deadly weapon with intent to kill, inflicting serious injury. At the first trial, the underlying felony for felony murder was that attempted armed robbery, but the first jury had acquitted the defendant of attempted armed robbery, so they couldn't use that as the underlying felony and chose to use the assault on the other victim, Beth, as the underlying felony this time. The trial court also instructed the jury on self-defense as required by that North Carolina Supreme Court opinion that had sent this back for retrial. Defendant was convicted of felony murder of John and assault with a deadly weapon with intent to kill, inflicting serious injury of Beth. He was sentenced to life, and he appealed to the Court of Appeals. So the Court of Appeals was really addressing a lot of different issues here, and I'm going to focus on just a few of those. The first of those, the trial court had declined to give the defendant's proposed instruction that in order to find the defendant guilty of first-degree felony murder, he would have to find that John was killed as a result of defendant's assault on Beth. In other words, because they had made the assault with a deadly weapon of the second victim, the underlying felony, the defendant was arguing that the jury should be told that if he shot at John with the intent to kill John, that the jury had to acquit him of felony murder. because the felony murder alleged here was the assault on the other victim. The Court of Appeals went through this and noted that the trial court gave correct instructions on transferred intent and on the elements of felony murder and ultimately rejected this theory. Arguable as it might be, I think the Court of Appeals was not prepared to countenance the possibility that an intentional killing of one victim would exculpate the defendant of felony murder of that very victim. And maybe taking this as a as a continuing course of conduct, as one sort of series of transactional connection between the assault on one victim and the murder of the other, that there was no error in this instruction. The Court of Appeals found that there is no reason to believe the jury was misled or misinformed.
[00:16:37.479] [SPEAKER_00] And, Joe, just so I'm clear, not to say that he would not be guilty of anything for the murder or for the killing of John if he were intentionally shooting at John, just that we couldn't call that a felony murder, first-degree murder, right? I mean, it would be a merger, essentially.
[00:16:52.480] [SPEAKER_01] Yeah, the merger problem is the issue here, right? Because if the state had charged the defendant also with an assault on John, then it would have merged. And because the attempted robbery got kicked out by the first acquittal, they couldn't make the attempted robbery the underlying felony for felony murder. So they made the assault on the other victim the underlying felony for felony murder. But that gave the defendant an opening to argue, well, if I was shooting at John, trying to kill John, you can't get me for felony murder where the underlying theory is the assault on the other victim. The Court of Appeals did not buy that, found that there was no reason to believe the jury was misled or misinformed about these instructions, and so rejected the instruction challenge. The other thing that the defendant argued, and again, stemming from that prior acquittal of attempted armed robbery, is that because the defendant was previously acquitted of attempted armed robbery, the trial court erred by admitting evidence and allowing the prosecutor to argue in closing about that robbery charge. Basically, in telling the story of this drug deal gone bad, that the defendant had gone there to rob the victims and that one victim had been assaulted and the other killed. The Court of Appeals posited that evidence is inadmissible under the double jeopardy clause only when it falls within the scope of the collateral estoppel doctrine, which precludes relitigation of an issue already decided. They cited ultimately back to a United States Supreme Court case called Dowling v. United States. And the rationale in Dowling was that the state is permitted to use evidence of conduct for which the defendant has been acquitted, so long as that evidence is being used for some other purpose than conviction for the offense at trial. In other words, if a defendant has been acquitted of a prior crime, so long as the defendant is not being retried for that crime for which he was already acquitted, then evidence of that prior conduct can come in. And the explanation from the United States Supreme Court in Dowling was that, for example, under 404 , if that evidence of other conduct is being used as part of the res geste or to show other conduct relevant to the crime being prosecuted, that the standard of proof is different. You don't have to have proof beyond a reasonable doubt of that other conduct. So the acquittal of a crime based on that other conduct does not violate the double jeopardy clause when that evidence comes in in the subsequent prosecution. So that's ultimately what the Court of Appeals here held as well. The Court of Appeals noted that the prosecutor's discussion of robbery was used to explain the chain of events that led to the shooting here, not to retry the defendant for this armed robbery of which he had been acquitted. And ultimately, it concluded that the trial court did not err by not intervening in the state's closing argument where the state was making use of that evidence of conduct, even where the defendant had previously been acquitted of that attempted armed robbery. There were other issues here. The defendant argued about that the trial court erred by excluding evidence of John's prior convictions, his gang affiliation, his thug tattoos, his possession of other guns that were not used in this particular altercation that resulted in the shooting. Actually incorporating some of the rationale from its earlier opinion, the Court of Appeals rejected all of those arguments, found that the trial court did not err by excluding that evidence. There was finally an argument The trial court erred by not intervening in the prosecutor's argument where the prosecutor intimated that the defendant had been lying about these different accounts of the altercation that he gave. The Court of Appeals recited that earlier precedent for the proposition that a prosecutor is not permitted to stand up and explicitly call the defendant a liar. But in a case like this where the defendant had admitted on the stand that his story had changed multiple times over the course of the investigation. There was no error in not intervening where the prosecutor did nothing more than intimate that the jury should not believe these alternate stories that the defendant gave.
[00:20:28.095] [SPEAKER_00] Joe, on that point, just for those that haven't read the opinion yet, earlier in the fact summary, they mentioned that defendant changed his story at least eight times in his interview with law enforcement before giving his final version events. Right. And then testified at trial that he had lied in the interviews. He actually testified that he had lied. Testified that he had lied. And then after being asked on cross-examination, every time law enforcement pokes holes in your story, you change it, correct? And defendant answered, yes. And
[00:20:52.001] [SPEAKER_01] given that evidence, there was no problem in the prosecutor standing up and telling the jury that this was not really a person whose story could be believed based on the fact that he had changed the story so many times and admitted on the stand to lie. So long as the prosecutor did not just stand out and flat
[00:21:06.040] [SPEAKER_00] out call the defendant a liar. And I think that's just maybe where the court is offering a little bit of a note of caution here. You know, for example, in the portion of the closing argument where the prosecutor, understandably, given what we just talked about, the court says the state does repeatedly refer to these many statements as lies and then states he's lying about the number of times that he's lied. So, you know, that... It is there. And to the extent possible, maybe that's our takeaway for prosecutors. To the extent possible, maybe we just want to avoid using some of those red flag words and just point it out to the jury and let them see it for themselves.
[00:21:41.210] [SPEAKER_01] Yeah, I think that's a good takeaway. Court of Appeals ultimately found no error in this case and upheld those convictions. John, the last case we had on for today was State v. Velasco.
[00:21:52.012] [SPEAKER_00] This is a difficult case to talk about, unfortunately. This is one out of Johnston County that was decided by the Court of Appeals on February 19th of this year. The victim in this case is referred to as Katie as a pseudonym, and the defendant is Katie's biological mother. This happened back in 2020, on August 28th of 2020. I believe Katie, as we're calling her, would have been about 17 years old at the time. Katie was living with her biological father and some of her siblings. She did not live with her mother. Her biological mother, the defendant, was separated from her father, but they were still in touch. And on the date that this incident happened, the mother got in touch with her and had her come over. Katie snuck out basically with her younger sister, who they're calling Penny, snuck out of her father's house to go spend time with her mother. The defendant had a plan to consume alcohol and party with her daughters that evening, and went ahead and gave them a marijuana gummy in the car, and then when they got to the house, gave them shots of tequila and vodka. They thought they were just going to be them and their mother, but the mother's boyfriend, a person named Gamaliel, was with them that evening. So after the marijuana gummy, after the drinking, Katie started to feel sick. She said she was dizzy and the room was spinning. She went to the bathroom to throw up. Her mother came in there and told them to get cleaned up and washed up, but also instructed them to clean their vaginas and washed her own in the bathtub as well. So Katie, now sick and intoxicated and vulnerable, is taken into Gamaliel's bedroom at the mother's residence to lie down. Gamaliel comes into the room, lays down on the bed with her, starts touching her. Katie's mother came in at some point. Katie basically pleading with her, you know, asking for assistance by sort of squeezing her hand and saying she needs a glass of water, but really just asking her mother not to leave. But her mother does leave and instead came back with two more drinks of alcohol. Katie started crying and told her no, didn't drink either of those liquor shots. But nevertheless, the sexual assault unfolds there in the bedroom. At some point after defendant comes back into the room, This individual, Gamaliel, has begun touching Katie sexually. The defendant is performing oral sex on Gamaliel while Katie is right there in the room. And then, unfortunately, it gets much worse. The defendant brings in a pair of scissors into the bedroom, tells Gamaliel, I know you want to, you can do it. So Gamaliel uses the scissors to cut off Katie's clothing and then takes further sexual advantage of her. Gamaliel actually asked the defendant, Katie's mother, again, to take pictures while this was happening. And Katie knew that that had happened because even though her eyes were closed, she could tell that the flash of the camera was going off. After all this is over, defendant and this Gamaliel drive Katie and Penny back to their neighbor's backyard where they pick them up and drop them off. Katie eventually makes her way back home. Of course, she's devastated and traumatized, but does start telling family members. She is, thankfully, you know, eventually authorities are notified. They take her to a fire station. law enforcement is notified she's taken in for a sexual examination at wake med and then referred to a sexual assault center for further testing where an examination is done of course you know they've identified that it was the defendant and gamaliel that had done this charges are taken out for the defendant before they could be arrested they actually fled johnston county they were located and arrested about a month later in indio california and brought back to north carolina so this defendant was indicted for first-degree forcible rape forced first degree forcible sexual offense sexual servitude of a child victim and incest and is ultimately tried and convicted of all that i will tell you some of the evidence that came out at trial included testimony from the family members katie testified her sister father other family members they gave A lot of other background information about other incidents that had happened with this Gamaliel person. Good news for the state was that they also had strong DNA evidence in the case. Despite the lapse of time and changing clothes and being transported to another location, they were still able to recover some DNA evidence, which did match back to the defendant. This DNA evidence, you know, is so powerful. It says in the opinion that the partial DNA profile obtained from the right breast swab is approximately 199 quintillion times more likely that it originated from Katie and Hernandez Gamaliel Velasco. than that it originated from Katie in an unknown, unrelated individual. And another sample that they recovered from her left neck swab was reported as being approximately 1.16 non-million times more likely to have originated from Katie and Gamaliel than from Katie in an unknown individual. So strong evidence, obviously. And as I said, oh, and finally, they searched the defendant's and Gamaliel's apartment and in there they found a pair of blue panties that had obviously been damaged or cut and a pair of pants that had obviously been cut. So, clear evidence to convict Gamaliel and the defendant. She was found guilty of all four of the crimes of which she was indicted. So the issues that are here, the first that they raise is an issue with these jury instructions on flight. The court instructed the jury about how they may consider evidence of flight, and that's the instruction that says that they may consider that as evidence of guilt. The defendant argues that the trial court erred, though, by omitting the parenthetical phrase from the first sentence of the pattern jury instruction on flight, which says the state contends and the defendant denies that the defendant fled. But the court points out a defendant has to specifically and distinctly argue an issue that was not preserved by objection amounted to plain error. And they're saying without an objection here and without specifically identifying it as being plain error on the appeal, the failure to allege plain error regarding an unpreserved issue waives all appellate review. And since that was not preserved at trial, nor specifically and distinctly contending that it was plain error on the appeal. So they argue, they deem this argument to be waived and dismissed. So not even really saying that it failed to rise to the level of plain error, but just that this is not, it would have to be plain error since you did not object at trial and you've not specifically alleged it that way. However, The second issue that comes up are these jury instructions on aiding and abetting. And here the court does get into the substance of what's being argued. And the defendant is arguing that the trial court erred by giving an instruction that basically for aiding and abetting these offenses like rape or sexual assault or incest, based solely on her being Katie's biological mother, and being present in the home when the alleged incidents occurred. There's an instruction that was given in this case, talking about the defendant as being an aider and abettor. And they do that for a couple of reasons. First, they say, yes, this would itself be evidence of the second element of aiding and abetting in first degree forcible rape. But they were instructed on this aiding and abetting theory of liability as a part of the instructions for all of these offenses. And the instruction at issue is one that was, they'd say it was discussed during the charge conference and later read a total of four times to the jury. And this was what they read out. The failure of a parent who is present to take all steps reasonably necessary to protect his or her child from attack or sexual assault by another person constitutes an act of omission by the parent, showing the parent's consent and contribution to the crime. and thus is sufficient to support a conviction based on aiding and abetting. And they're getting that from these cases, State v. Walden, State v. Ainsworth, which are cited there. So
[00:29:37.424] [SPEAKER_01] the interesting thing, Jonathan, here, I mean, it's unusual, right, for criminal law to impose an obligation, the failure to comply with which will give rise to criminal liability. But this is a situation, because of the relationship between the victim and the defendant, where you've got one of those rare cases of failure to act can give rise to
[00:29:54.046] [SPEAKER_00] criminal liability. Is that right? Exactly. That's what those cases are setting forth. And they discuss a little bit more in this opinion. They're not saying, I mean, even though probably any parent would, they're not saying a parent necessarily has to sacrifice their own life to step in front of the incoming bullet or something like that. I mean, there are limits to it. But yeah, those cases like State v. Walden say that a parent has a duty to protect their child from the commission of a crime and then Given that, what actions would be sufficient to support a conviction for aiding and abetting? That's what this instruction is trying to explain to the jury so they can decide the facts of this case.
[00:30:31.367] [SPEAKER_01] The other interesting thing here is you've got a female defendant and a female victim, and the female is charged with forcible rape, forcible sex offense. The only way that could happen is through a theory of aiding and abetting, insofar as rape requires vaginal intercourse.
[00:30:47.371] [SPEAKER_00] Right. That is sort of the one point the court wants to make here is these cases like State v. Walden, they do say what we've got in this instruction, right, about, you know, this duty of a parent to do what's reasonably necessary to protect a child from an attack or sexual assault. But the Court of Appeals here points out that Walden also has what they call this final caveat to it. and that's sort of what I was referencing a moment ago, it also says, it remains the law that one may not be found to be an aider and a better and thus guilty as a principal solely because he is present when a crime is committed. It will still be necessary in order to have that effect that it be shown that the defendant said or did something showing his consent to the criminal purpose and contribution to its execution. This is the bystander exclusion,
[00:31:32.835] [SPEAKER_01] right? Exactly. Somebody happens to be at the scene or in the room is not going to be found guilty just because they happen to be there.
[00:31:39.141] [SPEAKER_00] And that's not going to be different just because you're a parent, right? Nevertheless, if you are the parent and you are right there where you could take some reasonable steps to protect the child and you fail to do that, then yes, under those cases, you are an aider and abettor in the sense of helping it to go forward. And imagine a scenario where that would be a more difficult line drawing than it is here. Here, I would agree with you, Joe. I think here the Court of Appeals said this is not a challenging line for us to draw. This is not simply where the mother is in a different room in the home, or even that the mother is just in the room and failing to do anything to stop what this attacker is actually doing to her 17-year-old daughter. They review just some of those facts we've already talked about here today, like, Katie's testimony that she heard the defendant telling Gamaliel, I know you want to, you can do it. Or the defendant brought the scissors in to cut off her underwear and outer clothing, taking photos, helping her sneak out in the first place to get her there, serving alcohol when she's underage. I mean, all these things she did that were direct steps to contribute, much less just failing to do what any parent ought to have done to protect the child if it was all somebody else doing it. So that's why ultimately they say, that even if the trial court's omission of this final caveat from Walden was error in terms of this special instruction that's being read, that the state had plenty of evidence to show that this defendant really did say or do something showing her consent to the criminal purpose and the contribution of its execution, and so it's not something that would undo the conviction. They ultimately find that the defendant received a fair trial, that there is no prejudicial or reversible error in the judgments, and so the case is affirmed. I just would say cases like this are always incredibly tough, but kudos to the prosecutors on this one for making sure that the jury, in case they had some concerns, right? I mean, you know, but it's the mom, and, you know, she's not the one actually... committing this or that sexual act. So kudos to them for making sure it was clear to the jury exactly how this aiding and abetting liability could mean, yes, as the victim's mother, yes, you are also guilty of this rape that is committed on the child because you were a direct participant of it. Nevermind just failing your basic human duty as a parent to stop somebody else who was trying to do those things.
[00:33:59.223] [UNKNOWN] Right.
[00:33:59.644] [SPEAKER_01] That's all for today. In this episode, we discussed State v. Naines, the constitutionality of possession of a firearm by a felon, State v. Greenfield regarding the scope of the collateral estoppel component of double jeopardy, and State v. Velasco with regard to that aiding and abetting instruction in a rape and incest case. 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
[00:34:49.090] [SPEAKER_00] s-o-g dot u-n-c dot e-d-u. 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.