Episode 19: Arrington, Gardner, and Owens

[00:00:05.870] [SPEAKER_01] The statutory offense of assault on a female requires the state to prove, among other things, that the defendant was a male of at least 18 years of age. The Court of Appeals recently held that the state's evidence of the defendant's sex was sufficient to go to the jury when the attorneys for the state and the defense and the prosecuting witness all consistently referred to the defendant with masculine pronouns. We'll be discussing that case, State v. Gardner, 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.
[00:00:50.457] [SPEAKER_00] Joe, before we get to that assault on a female case, there was another case where the defendant was complaining about the prosecutor's closing argument. Tell us a little about State v. Arrington.
[00:00:58.890] [SPEAKER_01] Safety Arrington is a case decided by the Court of Appeals on June 4th of 2025. This is a case out of Wake County. The facts as shown by the state's evidence were these. In December of 2020, Robert Taylor apparently robbed the defendant, giving him a gash wound on the head. Later in August of 2021, defendant went to Boyer Street in Raleigh looking for Taylor. Instead of meeting Taylor, he met a man named Zachary Sanders. Defendant was brandishing a rifle, and he told Sanders to tell Taylor that he's a dead man. The next day, Taylor and his girlfriend parked on Boyer Street. Taylor got out to talk to her friend, and the evidence showed that apparently defendant shot Taylor with a .22 rifle, hitting him five times. Taylor died at the hospital. Sanders testified for the state at trial that he saw someone shoot Taylor, that the shooter had to be lying in the woods, and that the gun was the same rifle as the one that defendant was brandishing the day before. Based on those facts, the defendant was indicted for murder, possession of a firearm by a felon, and habitual felon status. The matter came on for trial by jury in October of 2023. During the state's closing argument, the prosecutor made certain comments about Sanders' veracity. And this is a direct quote. He said, Sanders was the most credible witness that testified in this trial. He said, he told you how it is. Sanders gave you specific details. I want you to remember that when I was questioning Sanders, I never approached him with shell casings. I never asked him about the physical evidence. But did you notice how everything he said matched up with all the physical evidence? And then later on, the prosecutor continued, Sanders told you the truth. He never lied. Let's make that clear. He told you I didn't want to be involved. He never gave a statement. He didn't want to talk to Detective Morgan. What we wish he would have, he didn't. He never lied. He told you all the truth. The defendant was ultimately convicted of murder, possession of a firearm by a felon. He pled guilty to habitual felon status, and then he appealed. And the argument before the Court of Appeals was that the trial court erred by failing to intervene ex mara motu when the prosecutor stated that Sanders told the truth, that Sanders did not lie, that Sanders was the most credible witness. There's a statute applicable here under General Statute 15A-1230. During closing argument, an attorney may not, among other things, express his personal belief as to the truth or falsity of the evidence. That's really the hook that the defendant found here to make this argument that the prosecutor was vouching for the credibility of one of the state's witnesses. The Court of Appeals recognized under its case law that prosecutors may, however, argue that a state's witness is credible in order to give the jury a reason to believe the state's evidence. The Court of Appeals said the challenge statements here were made in the context of the prosecutor's argument that Sanders' testimony was credible because his testimony matched the physical evidence discovered at the scene. The prosecutor was not impermissibly vouching for Sanders, but giving the jury reasons to believe the state's witness. The defendant had relied on cases where the North Carolina Supreme Court said that it was improper for the prosecutor to say that a witness was lying or was patently unbelievable. The Court of Appeals distinguished those cases. It went on to say, even if the prosecutor's statements here were improper, defendant failed to show prejudice by showing the statements infected the trial with unfairness and rendered the conviction fundamentally unfair. So that was really, there was just one issue in Arrington, and the Court of Appeals had rejected that argument that the state's alleged vouching for the state's witness was improper.
[00:04:20.108] [SPEAKER_00] Joe, I feel like I understand the concept at issue here, but I'm still struggling a little bit to understand exactly how we draw the distinction between some of those cases. I understand the idea that if the prosecutor were to stand up and say to the jury, in my 22 years as a prosecutor this is the most credible witness i've ever heard from in my entire life you should believe everything he says that we're injecting that personal opinion and that is not what's happening here you know but then they sort of contrast that uh with like you for example you mentioned the phillips and the locklear these other cases where statements were deemed to be improper or too prejudicial for example where prosecutor was talking about a defense expert witness and saying that that witness was just wholly unbelievable, that they were calling him a liar. And so I guess that's what I struggle with a little bit is here, the statements from the prosecutor in this case don't clearly seem to fall into either one of those camps. It's not simply arguing to the jury, I believe this person, nor is it just sort of attacking him or saying, or explicitly saying, here are the reasons why you should believe this person, which I think is what they're saying would be acceptable. Yeah. There's kind of just this middle ground flat assertion from the prosecutor of, for example, like you said, Sanders was the most credible witness that testified in this trial. He's telling the truth.
[00:05:34.946] [SPEAKER_01] He didn't lie to you. The other distinction that I found, and I'm not sure kind of where you draw the line between these cases, but it is worth pointing out that the cases seem to support the prosecutor saying a witness is telling the truth, but not the prosecutor saying a witness is lying. So, for example, you can't get up there and say this witness is entirely unbelievable But a prosecutor is permitted to stand before the jury and say, our witnesses are believable. And I can tell you why. It certainly helps if you fill in that context by saying the physical evidence was there. It was consistent with what this witness testified. But in distinguishing these cases that the defendant relied on, it is worth pointing out, like you said, Phillips and Locklear, those were situations where the prosecutor actually was calling out defense witnesses and saying, you shouldn't believe those people. Those people are lying. Maybe you can't do that, but you can stand up and say, but our witnesses are truthful. Our witnesses are credible.
[00:06:23.942] [SPEAKER_00] And I think there's even that more egregious example in there of, you know, challenging the witness on cross-examination. You're just lying through your teeth, you know, that we don't want to do that. So, I mean, to me, that was maybe the takeaway for the prosecutors is obviously we want to stay away from, I believe, and we want to stay away from just the outright attacking of you are just nothing but a no good liar. But I think what I'm taking away from this case is that these sort of just neutral statements assertions like this is a credible witness and here is why, that it seems like Arrington is saying should be a pretty safe green light area for prosecutors, right?
[00:06:58.661] [SPEAKER_01] Yeah, I believe that's right. The Court of Appeals says this court has long held that prosecutors are allowed to argue that the state's witnesses are credible in order to give the jury reasons to believe the state's evidence. And I think so long as it falls within the ambit of that rule, I think prosecutor's probably on solid ground.
[00:07:14.208] [SPEAKER_00] You know, and we've talked about this at other trainings and stuff as well. I mean, I think that's, even if it weren't a question of what's permitted by the appellate courts, it seems like most of the time that's going to be more compelling for the jury anyway, right? I mean, not just telling them, I believe him and you should too, but let's talk about why you should believe this witness. I think
[00:07:31.612] [SPEAKER_01] it certainly helped here that the prosecutor tied it into the consistency of Sanders' testimony with the physical evidence that was found at the scene. Precisely what you were saying, Jonathan. don't believe this witness because I tell you, believe this witness because it's consistent with the other evidence in the case.
[00:07:45.434] [SPEAKER_00] And for the flip side as well. And here's, I'm not going to come right out and call him a liar, but ladies and gentlemen, here's why you cannot believe what you're hearing from the defense witness, because it doesn't match this other evidence or he's got a motive or whatever it may be. Just laying that out for the jury. So then the next case that we had on for discussion is the one that you mentioned in the introduction, Joe, State v. Gardner. We got this case from the Court of Appeals on June 4th of this year. This was a case out of Forsyth County. It's a jury trial for an assault on a female that happened back on June 26th of 2021. The defendant and a woman named Lavella Collins, his girlfriend at the time, were at the defendant's apartment. Another guest shows up. The three of them spend some time talking, and that sort of leads to disagreements. The friend leaves after about 20 minutes, but then, according to the victim, the defendant begins yelling at her for letting this friend into the apartment. That goes on for some period of time. Eventually, the defendant, she says, throws her out of the apartment. She came back into the apartment. There's some screaming and hollering in her words, but then the defendant goes to Collins and started choking her with his hands around her neck. She said he used a lot of force, eventually lets her go, and she fell to the floor struggling to breathe. She left the apartment and went to the hospital, and medical personnel at the hospital called the police. So the issue is that at trial on this charge of assault on a female, as you said in the introduction, Joe, the state and its witnesses, they're all repeatedly referring to the defendant as Mr. or he or him, and there's no objection from the defense counsel. They quote a few exchanges in the appellate opinion showing some of this testimony, like Collins describing how the relationship began, saying that he, meaning the defendant, got him a place after that one year and moved out of his mom's house, got his own place, and so forth. So at the close of the state's case in chief, the defendant moved to dismiss for insufficient evidence. And the defendant is specifically arguing that the state had not actually presented sufficient evidence that the defendant was a male. You know, it's one of the elements of the charge that he's got to be this male person over the age of 18 who's then assaulting a female. The trial court denied that motion, so it goes to the jury, and back on May 4th of 2023, A jury returns a verdict, finding him guilty of assault on a female, gets 75 days imprisonment, suspended on supervised probation. So that's what's now before the Court of Appeals. And the first issue they have to address is, do they have jurisdiction to even hear this case? And the reason that that is an issue is because there's essentially a defect in how the defendant gave notice of appeal, or rather how his attorney gave notice of appeal. after the jury announced their verdict but before sentencing happened the defendant's attorney said at the appropriate time we would respectfully give notice of appeal and the trial court responded so noted in other words it's a premature entry of this oral notice of appeal it's happening before final judgment has really been entered in the case and so that runs afoul of rule four meaning that the appellate court would not have jurisdiction to hear the appeal there had really been no proper or formal notice of appeal given The defendant acknowledges that in their application. That's why they are also filing a petition for writ of cert, asking the court to hear the appeal. And the Court of Appeals decides they will do that. They say it is clear that the defendant expressed an intent to appeal, even though it wasn't really done at the right time. So in their discretion, they're going to allow this petition for writ of cert and reach the merits of what the defendant wants to argue on appeal. And there's really a surprising level of discussion about whether that should happen or not. And then there's a dissent that takes a different view of that. But in the majority's view, they're saying that the court has routinely granted cert in these kinds of cases. The defendant's intent to appeal was pretty clear. He would lose that right to appeal if they didn't grant cert through essentially a technical mistake that was made by his attorney, something that he has no control over. would not even really have any reason to understand that it had been a mistake. And so they say that they have repeatedly concluded that these kind of minor technical errors are one of the kinds of circumstances where granting cert is appropriate. They do say, although this is a routine kind of granting for a petition for writ of cert, They say, objecting, I think, to some of the language in the dissent, the routineness of this type of grant is far from creating a per se rule, as the dissent asserts. Rather, it is a reflection of the fact that many members of this court have long agreed the situation is an appropriate circumstance qualifying for relief. So I'll leave it there for the moment. We'll come back and talk a little bit about the dissent after we talk about the merits of it. But basically, the majority is saying that Per the case law, the court should err on the side of adjudicating cases on the merits rather than punishing defendants for mistakes over which they had no control. So they say they will reach the merits. And what are those? The first thing that the defense wants to raise is the constitutional claim. He wants to argue that this offense is unconstitutional, this assault on a female claim. The court declines to reach the merits of that argument because it was not preserved. This is not something that was raised at the trial level and properly preserved, so they're not going to get into that. Just to touch on it briefly, although they're not addressing it here, we have seen constitutional challenges to this statute before. decades back, you know, when this statute was still relatively new, this was raised. And I think that the courts have generally found that it passes constitutional muster. You know, and I think the idea is that, yes, we are to some extent treating men and women differently under this statute. As a male over 18, if I commit this assault, I am punished more severely than a woman my same age committing this assault. But the courts have looked at it and said that they felt it passed constitutional muster it didn't run afoul of equal protection because there was a legitimate basis for this distinction in the law not that this is true in every single case but they talked about in those opinions they talked about how most of the time or in general you know that if a male suspect a male defendant over 18 is probably going to be larger taller stronger what have you than the female victim he's assaulting there is this difference in the risk of potential injury and so forth. And so they felt like it was reasonable to treat those two things differently. But that sort of tees up an interesting issue that comes on this second point about the motion to dismiss. Is this defendant in fact a male? You know, that's sort of the question that we have to ask because the state in this case did not offer something like a birth certificate or, you know, testimony from a family member or anything like that to specifically get it into the record that this defendant really was a male. And so the defendant is saying there was insufficient evidence because we don't have anything really in the record to conclusively establish what his sex was. And the court says they disagree. And it's based on that comment we talked about earlier that every party in the case, the state, the defendant, the witnesses, defense counsel, everyone repeatedly referred to the defendant as Mr. and spoke of the defendant using masculine pronouns. And so the court looks at that alone and says, although this evidence is circumstantial, it is sufficient to go to the jury, that the evidence taken in the light most favorable to the state could support an inference that the defendant is male. And so they say that would be enough to defeat that claim about insufficiency of the evidence. And then finally, there is this argument that's raised by the defense saying that his trial counsel was constitutionally ineffective, deficient, based on the failure to raise the above noted constitutional challenges that we talked about. But the court says, you know, in general, those kind of claims would be done on a motion for appropriate relief, not on direct appeal. And the defendant would have to show those standards, you know, about that the representation fell below an objective standard of reasonableness and a reasonable probability that otherwise the outcome of the proceeding would have been different. They say, we can't decide that on the cold record on this appeal, so they're dismissing that claim, but without prejudice for the defendant to pursue it as a motion for appropriate relief in the trial court if that's what he wants to do. In this case, sufficient evidence the defendant was a male and granting petition for writ of cert. Neither of those particularly extraordinary, but I think two kind of interesting issues. And the first of those is I talked about this evidence of, you know, was the defendant a male? This case sort of caught my eye, Joe, because this is a question that I've had prosecutors ask me a number of times and more so in recent years is, what if the defendant is, for example, a transgender male? Or what if the victim in the case is a transgender female? I can think of probably at least, I don't know, three, four, five times that prosecutors have asked me about that issue. Would this be an offense that we could pursue? To my knowledge, we do not have a case yet answering that question. I mean, this case would seem to say that if the defendant were not, for example, arguing that he is not a male and the victim is saying, my boyfriend, the defendant, and he did this and he did that. And well, Mr. Defendant, we're finding you guilty. I mean, evidently that would be sufficient evidence to support the verdict. But, you know, were the issue to be contested and raised at trial of, well, I'm a transgender male, but I don't think that falls within the coverage of the statute itself, I would struggle to predict how that claim might be resolved by the appellate courts. But my guess would be, thinking about sort of the constitutional justifications for it, that the court might be inclined to say, this is really defined in terms of, I don't know, sex, not gender, that, you know, that it might be a little bit of a reach for the state. So, you know, prosecutors facing those kinds of questions, I would say, rather than veering off into this sort of unknown territory, I think a safer course of action might be to proceed on, we could just do a class two simple assault, or we could do a misdemeanor crime of domestic violence. If you have that relationship between the parties, those might be easier ways to get where we're trying to go.
[00:17:31.358] [SPEAKER_01] But Jonathan, just in terms of this particular offense, the assault on a female, is our takeaway that prosecutors should ask the victim that question or don't ask that question unless you're pretty sure you know what the answer
[00:17:41.194] [SPEAKER_00] is? Well, you know, Joe, that's I mean, that's a good point. I think we live in a day and age where you kind of run the risk of making some assumptions when you meet a person. You may not know that for certain. I think it might be something that we do want to inquire about, if possible, before we're walking into a jury trial that, you know, maybe we wouldn't want to be surprised by testimony from the victim that says, well, yes, he's a transgender male. And OK, well, now, wait, what does that mean in terms of fitting under the statute or not? So but I think the the bigger takeaway for me is that If we had, for example, the defendant's birth certificate, you know, showing that he was born a male 30 years ago, then great, you know, we could offer that into the record as evidence. But I think the important thing here is something as simple as witness testimony, just saying, yes, he's a male over 18 years. But the curious thing
[00:18:23.693] [SPEAKER_01] about this case, right, is that, as you pointed out, it was not contested and it wasn't brought up by either side as a contestable issue. It seemed to have been assumed by all the parties up until we get to the Court of Appeals. This is as an example of a situation where everybody is relying on those assumptions. We're not going to let the defendant raise this claim for the first time on appeal and say the state's evidence was insufficient when that had never been raised before. How do you square that with the notion that the burden remains on the state to prove every element of the offense beyond a reasonable doubt?
[00:18:53.795] [SPEAKER_00] Well, Joe, I think that is kind of getting into this other issue that I was forecasting a little about the dissent with Judge Freeman. Because again, there is no proper notice of appeal given here, right? It's a petition for writ of cert that they have to grant. And Judge Freeman says is concurring in part and dissenting in part, concurs with the majority's reasonings about the merits of the defendant's arguments, but disagrees that this should have been taken on petition for writ of cert at all. And Judge Freeman talks about there is binding precedent from the North Carolina State Supreme Court that says, we don't reach the merits unless the defendant's petition for writ of cert establishes both probable error and extraordinary circumstances. And Judge Freeman says, as defendant's petition establishes neither, this court should deny his petition and dismiss his appeal. I mean, in other words, this was never raised as an issue of the trial court. I mean, it was understood by everybody that the defendant was a male. This is not a real issue. And so if we aren't getting to that point of saying there's probable error here and then extraordinary circumstances that would justify allowing the appeal, even though we have not followed the rules for a normal appeal. In Judge Freeman's view, why are we granting a petition for writ of cert on this? And actually, Judge Freeman is the dissenting judge as well in the next case that we were going to talk about, that state versus Owens. Yeah, we see
[00:20:14.182] [SPEAKER_01] that same debate kind of play out in Owens between the majority and the dissent. And you get the same kind of, just in terms of the architecture of the opinion, a great deal of the majority opinion is devoted to rebutting This argument that's raised by this dissent that this is not a proper vehicle for allowing review by cert. So if you go to these cases looking for the merits, you kind of have to plow through a lot of this procedural argument that really pertains more to whether the Court of Appeals should be getting to the merits of the case at all. What happened in Stafy Owens, this is a case out of Henderson County, decided by the Court of Appeals June 4th, 2025. The facts were these. On January 30th, 2024, defendant Pro Se pled guilty to 25 charges pursuant to a plea agreement whereby he agreed to an habitual felon sentence of a minimum 117, maximum 153 months. During the plea colloquy, the prosecutor recited a factual basis for each of the 25 charges, and then for each of the four counts of habitual felon status, the prosecutor recited the details of the three prior convictions alleged in those indictments. The trial court found there was a sufficient factual basis for all of the counts, accepted the guilty plea, and sentenced the defendant pursuant to his plea agreement to a minimum 117, maximum 153 months. Defendant appealed, also filed a petition for writ of certiorari. Before the Court of Appeals, the majority recognized that the defendant's notice of appeal was defected. Remember, defendant was... proceeding pro se. The written notice of appeal didn't include all of the pertinent file numbers, did not identify the court to which appeal was taken as required by Rule 4 for a written notice of appeal. There was no indication that the notice of appeal was served on the state. The Court of Appeals included this long discussion attempting to rebut the argument raised by the dissent that this was not a proper candidate for certiorari, but ultimately exercised its discretion under Rule 21 and granted cert to address the merits of the case. Basically, the defendant argued that the trial court erred in finding a factual basis for the plea where the prosecutor merely read allegations from the indictments in some of those habitual felon indictments with incomplete and inconsistent recitations of the prior convictions. The Court of Appeals recited General Statute 15A-1022 for the proposition that the determination of a factual basis may be based on, among other things, a statement of facts by the prosecutor, statement of facts by the defendant or the defense counsel, or by sworn testimony. They compared and contrasted these two cases, a case from the North Carolina Supreme Court called Agnew from 2007, where the trial court had before it only the bare bones indictment, the transcript of plea, and the defense counsel's oral stipulation that there was a sufficient factual basis. And the North Carolina Supreme Court said that's not enough, that this requirement for a factual basis for the plea contemplates some other recitation or some other evidence beyond just what is shown in the bare bones indictment and the transcript of plea form. The Court of Appeals contrasted that with a Court of Appeals case from 2021 called Stafy Crawford, where the defendant's indictment provided more details than just the bare bones indictment in Agnew. That was including a factual description of the defendant's conduct, including a description of the stolen car. And in that case, even though the prosecutor got up and merely read the allegations from the indictment, the Court of Appeals found that the prosecutor's factual basis was sufficient because that indictment contained these additional information beyond what was required merely for the elements of the offense. Here, for the non-habitual felon charges, the prosecutor recited specific information, including a description of the stolen property, the name of the owner, the date of the offenses, the address of the buildings broken into, and the Court of Appeals had no problem saying that factual basis was sufficient. The Court of Appeals said specifically this was sufficient to show, independent of the plea, that the defendant was guilty of those charges for which he was pleading guilty. The Court of Appeals recognized that there were what it called minor misstatements in the prosecutor's recitation of the habitual felon indictments, but concluded based on the repeated information, apparently these four habitual felon indictments repeated the same three prior convictions. And so even if the prosecutor had misstated one of them in one habitual felon indictment, that same information was conveyed when he was reciting the allegations from another. Based on that repeated information, the Court of Appeals concluded that the trial court had enough information to determine that there was a sufficient factual basis to support the charges and rejected the defendant's challenge. Again, you got a dissent from Judge Freeman, basically the same grounds, Jonathan, that you were talking about a moment ago. saying that the majority was creating this per se rule and not abiding by the North Carolina Supreme Court guidance about when certiorari is really an appropriate vehicle. I think Judge Freeman agreed that this was not a good vehicle for certiorari, given kind of the flimsiness of the argument. Judge Freeman would have dismissed the appeal and denied the petition for cert.
[00:24:55.932] [SPEAKER_00] You know, the majority seems to respond to that directly at one point in the majority opinion, where they say, we do not establish a per se rule that any good faith effort may be rewarded by issuance of writ following a defective appeal. We simply exercise our discretion to address the merits of the case. Judge Freeman, I think, sort of has some strong language. I mean, in this case and in the last case where he's sort of saying it's It's not just an exercise of your discretion if the petition for writ of cert isn't actually satisfying these two criteria that need to be addressed. We really do have, for example, these extraordinary circumstances that would justify issuing the writ. But the majority here seems to feel that there are extraordinary circumstances, those being when somebody's communicated this wish to appeal and just has, I guess, failed to do it in the right way.
[00:25:47.164] [SPEAKER_01] Question for you, kind of arising out of State v. Owens, and the question is this. Why would a defendant be indicted four different times for habitual felon? Doesn't the case law indicate that if you got even just a handful of different offenses, if they're all charged and tried at the same time, you can go with one habitual felon indictment?
[00:26:03.634] [SPEAKER_00] I think depending on sort of how some of our dates work. I mean, I think you're right. Generally, if we had a series of offenses that all happened around the same period of time, now we've indicted him for those and we decide we want to indict the habitual felon, then I would agree with you. We should be able to add on the one habitual felon that should attach to all of those pending felonies. The only one that it would not attach to would be, you know, the new offense that's committed after that, for example, that, you know, and then that's indicted. We might need a second one for that. I don't know what the reasoning was for doing, you know, multiple individual ones for each one of these. But I think you're exactly right. I think it should attach to all these ones that sort of fall within its scope, you know, in terms of the timing, as long as that works out.
[00:26:45.653] [SPEAKER_01] It ended up being a fortuitous circumstance at Owens because it was precisely because some of those habitual felon indictments contained redundant information that the Court of Appeals was allowed to say the factual basis was sufficient even if some of those details kind of fell through the cracks because the prosecutor ended up saying the same three prior convictions over and over again.
[00:27:02.866] [SPEAKER_00] Right.
[00:27:02.967] [SPEAKER_01] But it just raised a question in my mind. If you had only one habitual felon indictment, I guess the guidance going forward that you still have to put on a factual basis for that allegation under 15A-1022. And if you have only one habitual felon indictment, you better be careful that you get the details of those prior convictions.
[00:27:21.277] [SPEAKER_00] I would absolutely agree with that. So, Joe, I have not spoken with whoever the prosecutor was on this, but it occurs to me that part of the thought process might have been that we might not want to proceed on habitual felon status on one or more of these offenses. You know, that we might be in a situation where if we were to have the habitual felon status attached to this conviction, it would raise the offense level, but then it might lower the prior record level. You know, we might end up actually with a lower... And so perhaps the prosecutor wanted to have the ability to say, I'm pursuing habitual felon on these three, not pursuing habitual felon on this one over here. If that is the issue, actually your colleague, Jeff Welty, in his 2013 habitual felon bulletin that I still reference all the time has got a great discussion about that, that the prosecutor has the option of essentially just withdrawing the allegation as to a given offense, if that's what the prosecutor wants to do. for some strategic or sentencing reason like that. So if that was the thinking behind this, I don't think that would be necessary.
[00:28:21.740] [SPEAKER_01] Right. Yeah. And so I guess the global takeaway is, and the Court of Appeals recognize this, it's usually not sufficient for the prosecutor just to stand up and recite the allegations from an indictment. When you've got an habitual felon charge, it might be fine so long as you're careful about reciting what those three prior convictions were.
[00:28:38.023] [SPEAKER_00] And, you know, I think the other good takeaway for this is even when it's a fully negotiated plea and it just feels kind of routine that we're standing up and giving whatever the factual basis for it is, we've got to be careful about making sure we are really giving a good and sufficient factual basis. Right. The factual basis for the larceny can't just be, hey, he committed a larceny on such and such day. You know, we really have to lay out what it was or else. I mean, as these cases show, there is this. danger of an appeal or a somewhat liberally granted petition for writ of cert that might undo the whole thing like back in that agnew case and a number of others we may end up seeing this thing thrown back even though it was a negotiated plea and we didn't expect that to happen right
[00:29:20.836] [SPEAKER_01] Well, that's all the time that we've got for today. In this episode, we discussed Statefee Arrington rejecting the defendant's argument about the prosecutor's closing argument, Statefee Gardner finding sufficient evidence of assault on a female, and Statefee Owens concluding that the prosecutor presented an adequate factual basis for habitual felon status. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We're 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 in a later episode, 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.
[00:30:15.226] [SPEAKER_00] And I'm Jonathan Holbrook. 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.