Episode 24: McCall, Council, and Wright

[00:00:05.870] [SPEAKER_00] North Carolina courts have consistently held that the state may not introduce evidence that a defendant exercised his Fifth Amendment right to remain silent. The Court of Appeals has now held that the state may use evidence of a defendant's pre-arrest silence as substantive evidence of guilt if that silence does not implicate a defendant's unwillingness to speak with law enforcement. We'll be discussing that case, State v. McCall, today. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, this came up in a recent episode we did. I thought the first rule of the right to remain silent was not to talk about the defendant's right to remain silent. Tell us about State v. McCall.
[00:00:58.524] [SPEAKER_01] Yeah, Joe, so State v. McCall says it's a little bit more nuanced than that. This is a case we got from the Court of Appeals on August 20th of 2025. This is a case out of Jackson County dealing with this issue of the defendant's pre-arrest silence. This all comes out of a shooting that happened in Western North Carolina between the defendant and the person who's his second cousin, William McCall. It happens on October 23rd of 2020. Victim is driving past a campground and he notices some pigs that are out on the property. He shot and killed one of those pigs because of previous issues they'd had. with them destroying some of the campground property. As he's leaving, he notices the defendant's vehicle in front of him basically blocking the road while the defendant and the defendant's partner, a person named Lynn, are standing outside the vehicle. The defendant then apparently approaches William, the victim, and is chastising him about killing the pig. He's mad about it. William is sitting in the driver's seat of the truck, hears two gunshots, and realizes that he has been shot in the arm and the chest. So he flees from the campground, drives to a family member's house a short distance away, and that person then drives him to this nearby McCall's Grocery, and they call for EMS who take him to the hospital, and he has to actually be placed into a medically induced coma. After the shooting, the defendant drove about 40 minutes away to his brother's house because, in his words, he figured he would have to make bond. While he's there, the defendant talks to his brother, talks to his nephew at his brother's house, but doesn't really say much about the shooting. There's evidence that later comes out and testimony that comes out at trial about the nature of the wounds that the victim suffered. They talk about how the bullet basically entered into the victim's chest uh, through the backside around the tricep area. Uh, the relevance of that being that it indicates that the victim's left arm would have been up on the steering wheel. So in other words, you know, not, uh, for example, holding a rifle or doing anything like that. However, at trial, the defendant claims that is what happened. He claims that he shot the victim William in self-defense after William pointed a rifle at him. Uh, and so the state elicited testimony from this other person, Jonathan McCall, that the defendant did not ever mention the victim allegedly aiming his rifle at the defendant prior to the shooting. At the end of the trial, the jury finds the defendant guilty of one count of attempted murder, two counts of discharging a firearm into an occupied vehicle causing serious injury. This goes up to the Court of Appeals on a petition for writ of cert, and so this is the issue that they are struggling with. Obviously, Joe, as you said, we talk about how under the Fifth Amendment, 14th Amendment, The defendant here is arguing that the state should not have been allowed to draw out this testimony from the defendant's nephew, this Jonathan person, about this failure to ever mention during the time that they were sitting over there at the house waiting for law enforcement, never said anything about the victim William aiming a rifle at him. And this is in the immediate aftermath of the shooting when, you know, we might argue it would be natural for the person to say something about it. So the defendant, he's basically arguing that this would be essentially impeachment evidence. It was an error to allow that when it was tendered to the jury before the defendant had ever testified. And the Court of Appeals ultimately disagrees with that. They say that the North Carolina courts have not really directly addressed this issue before about whether the prosecutor could use, as you said, the defendant's pre-arrest silence as substantive evidence of guilt, but we've not ever really dug into this issue of, but what about when that is happening outside of or unrelated in any way to the interaction with law enforcement. Our appellate court is saying that the United States Supreme Court has determined that that does not violate a defendant's Fifth Amendment rights for the prosecutor to use it that way, citing to this Salinas v. Texas case. And they say that impeachment by use of the silence does not violate the Fifth Amendment where the defendant testifies at trial. We could certainly use it for impeachment purposes, right? That's kind of the starting point of all this, and that that is based on the defendant's decision to sort of cast aside this protection or what they call sort of the the cloak of silence but the relevance here is they say pre-arrest silence however has no significance if there's no indication that a defendant was questioned by a law enforcement officer and refused to answer so in other words it isn't about you know that he was being questioned by law enforcement what do you have to say about this i'm exercising my right to remain silent you can't use that against me as substantive evidence of guilt but that's not what this was right he's just out at this family member's house with a couple of other family members around and at no point is ever saying anything to them about hey they're going to come arrest me i'm going to need money for bond but listen i was just defending myself this person pointed a rifle at me i had no other choice the fact that he never said anything like that to these family members is something the state would be allowed to use as substantive evidence of his guilt. And they say that that's true because they say, here, because of the complete lack of involvement by law enforcement at the time of silence, the facts do not fit within the holdings of any of these other cases that they're looking at. And so the defendant really didn't ever invoke this Fifth Amendment right to silence. It's not like he's being questioned and then under my Fifth Amendment rights, I'm declining to answer. And oh, yes, well, then, of course, we won't use that against you. That was just never used. I mean, this is more just this is the evidence of what happened. This is just the way the facts of the case unfolded. And so it has no bearing on his Fifth Amendment rights. They say. Accordingly, defendant's pre-arrest silence in this context has no significance to his Fifth Amendment right against self-incrimination or implication of that right because there is no indication that law enforcement played any role whatsoever in defendant's silence. And
[00:06:45.867] [SPEAKER_00] I
[00:06:45.928] [SPEAKER_01] think they're relying on that case Taylor, is that right? Exactly. They're saying, therefore, consistent with our holdings in Taylor, Boston, and Mendoza, we can talk about those, we hold the state may use evidence of a defendant's pre-arrest silence as substantive evidence of the defendant's guilt if that silence does not implicate a defendant's willingness to speak with law enforcement and that silence occurs without any influence from the government.
[00:07:11.812] [SPEAKER_00] So basically, the upshot is, I mean, we know under, I think it's the United States Supreme Court case called Doyle, if a defendant has received Miranda warnings, has been told that you have the right to remain silent, anything you say could be used against you. If he then chooses not to say anything, the prosecution moving forward is not allowed to comment either in direct examination or in closing argument on not only the defendant's failure to testify, but also the defendant's failure to make any statements to the police. But in this scenario, where you don't have that situation of him having been Mirandized by a police officer or even yet having been arrested, the fact that he hasn't refuted a statement made to his cousin or hasn't suggested what a normal person in the self-defense situation might have suggested, what I read the Court of Appeals saying here is that's fair game. The prosecution can use that and ask the jury to draw an inference from that failure to speak. I think that holding
[00:08:02.029] [SPEAKER_01] is pretty clear and explicit. I would agree with you. The Taylor case that you mentioned, Joe, I mean, that was one where the testimony that came in at trial was testimony from a detective, in a sense, talking about the absence of a statement from the defendant. But the testimony that was offered by the officer was basically just talking about how she had been unable to ever get in touch with the defendant during the investigation of the crime. So there is no statement there. pro or con from the defendant. And they distinguish that. I mean, that was not exactly commenting on the defendant's silence. That wasn't like, I asked him about this and he refused to speak. It was sort of, I don't know, indirectly referencing the absence of a statement, but it wasn't in that context of in response to questioning from law enforcement. And so I think they're kind of drawing from that and saying, The same thing ought to apply here, that it's really not the protection envisioned under that Fifth Amendment when it's not something like questioning by law enforcement. So the fact that he just sat there in stony silence and never said anything about self-defense and we're gonna make this argument that those are circumstances where you would think a person who thinks he's about to be arrested for shooting somebody It would be sort of natural under those circumstances to say something to your family members who are sitting right there about, it's not my fault. I was defending myself. I had to do it. And so, yes, under this ruling from the Court of Appeals, because that had nothing to do with law enforcement, that is fair game. And they can offer it as substantive evidence of guilt in the state's case.
[00:09:29.376] [SPEAKER_00] Interesting. The second case we had on for today is State v. Council. This is a case out of Durham County that arose from a theft of a catalytic converter back in July of 2021. In that month, there was evidence that defendants stole a catalytic converter from a 1996 GMC Sierra that was parked at a business belonging to the victim, Calvin Tinnin. Police responded to the scene and observed defendant driving away. They attempted to conduct a traffic stop, but defendant failed to stop. According to the local policy, the officers terminated pursuit. The defendant was later indicted for felony larceny and felony injury to property to obtain non-ferrous metals. The indictment for injury to property alleged that the defendant unlawfully, willfully, and feloniously did cut, mutilate, deface, and otherwise injure or red 1996 GMC Sierra, the personal property of Calvin Tinnin, for the purpose of obtaining non-ferrous metals. Significantly, the indictment did not allege a value of the damage of the catalytic converter that was stolen. The matter came on for trial in November of 2023. At the close of the state's evidence, defendants specifically moved to dismiss the charge of injury to property because the indictment failed to allege value. The trial court denied the motion, defendant was convicted and appealed. Before the Court of Appeals, defendant argued the trial court erred by denying his motion to dismiss based on the insufficiency of the indictment. The Court of Appeals posited that a valid indictment is essential to the jurisdiction of the court to try an accused for a felony and that a valid indictment serves to identify the offense with certainty. The Court of Appeal said that an indictment must list all the elements of the offense charged in order to be valid. Under General Statute 14-159.4, it is unlawful for a person to injure property for the purpose of obtaining non-ferrous metals. If the value is less than $1,000, the violation is a Class I misdemeanor. If the value is between $1,000 and $10,000, the violation is a Class H felony. If the value is greater than $10,000, the violation is a Class F felony. In this case, the Court of Appeals analogized to a North Carolina Supreme Court case called State v. Mostafavi, where the North Carolina Supreme Court held an indictment for obtaining property by false pretenses, need not allege the amount of money obtained. That statute, remember, makes it one class of felony if the value of the property is greater and another class of felony if the value is less than a certain amount. The Court of Appeals here said that the statutes for false pretenses and injury to property, quote, exhibit similar structures, setting out the elements and then going on to delineate the level of the offense based on the value. Here, the indictment identified the subject of the charge by naming the vehicle involved. The Court of Appeals concluded that defendant's indictment was sufficient to charge felony injury to property despite the omission of value because, one, it contained a specific description of the crime charged, and two, its description of the property damage tracked the language of the statute. Defendant had reasonable notice, the Court of Appeals said, based on the information provided to inform him of the offense charged, to enable him to prepare a defense, and to protect him against double jeopardy. The indictment was therefore facially valid and the trial court did not err by denying defendant's motion to dismiss. The question is, what about Singleton?
[00:12:47.523] [SPEAKER_01] Well, yeah, I mean, Joe, I sort of was a little puzzled when I first read this one. I mean, I understand what they're saying about the specific details in here put the defendant on notice of what it is that we're saying that he's done, and it would protect him against double jeopardy. But those didn't seem like really the heart of the issue that was being raised. I mean, it seemed like the core issue was, is what you've written down here legally sufficient to, in fact, indict the crime that you intended to indict. And so that seems like it's teeing up a Singleton discussion, but then that's not really what we're getting.
[00:13:19.475] [SPEAKER_00] Yeah, Singleton, remember, is the case from 2024 where the North Carolina Supreme Court changed the rules around a little bit and rejected what it called the common law jurisdictional indictment rule. by which the trial court obtains jurisdiction from a facially valid indictment. And what the North Carolina Supreme Court said in Singleton is, henceforward, the failure of an indictment to allege each element of the offense is not going to constitute a fatal defect. There is no mention in this Court of Appeals opinion state fee counsel of Singleton. There's not an analysis under Singleton of whether the indictment is sufficient in light of the fact that now we don't have to have an indictment that alleges all the elements to have jurisdiction. Just reading counsel, you could be forgiven for thinking that this was a case that came down before Singleton was decided. That's just the tip of the iceberg because the other kind of problem here The analogy to Mostafavi is curious in the sense that false pretenses is a crime that is a felony regardless of the amount, whereas injury to property to obtain non-ferrous metals is a crime where if the value is less than $1,000, it's a class one misdemeanor. In other words, not a felony at all. And the Court of Appeals didn't really explain how this indictment, even under pre-singleton rules, would be sufficient to allege the felony without the element that is necessary to make this a felony violation.
[00:14:40.616] [SPEAKER_01] Yeah, that seems like a core distinction to me that I wrestled with a little bit as I was reading this. I mean, Joe, my take on it was the same as yours. Sure, we get it. You know, if you just allege obtaining property by false pretenses and there isn't anything clearly indicating that it's more or less than $100,000, well... then, you know, okay, as long as we've alleged a false pretense and what it was and what you got, we're still charging you with a Class H felony one way or the other, even if we don't have that sort of extra kicker about getting it over $100,000 to make it a Class C. But that's just not the way this statute is set up. I mean, wouldn't you have thought that maybe a better analogy for this would be something like a larceny? You know, where we would need to allege a certain dollar amount for it to be a felony rather than a misdemeanor.
[00:15:23.499] [SPEAKER_00] For it to be a felony amount. That's right. And that's what the Court of Appeals doesn't really wrestle with that. The other possible kind of avenue here would have been to say that this element of value is implied either from the description of the property that maybe there's no way to steal a catalytic converter. and create damage less than $1,000. They don't say that. They might have said you can infer the element from the fact that the indictment alleged sort of these boilerplate language unlawfully, willfully, and feloniously, although there are other case law that says including the word feloniously when you're alleging a misdemeanor is just treated as surplusage. I have a hard time seeing how this indictment, if we're not going to analyze this under the Singleton rules, how this indictment was sufficient to allege the felony without alleging a value to bring it up to a felony level offense.
[00:16:08.302] [SPEAKER_01] So what about this footnote where they say, listen, if the defendant needed more information or if he was confused, then hey, he could have just asked for a bill of particulars. So is that how we're supposed to be sort of breaking this down? That they're saying the state purported to charge him, right, with this felony or, you know, based on something being over a certain value. And they say that he had reasonable notice of it. Like you mentioned, we gave some specific information about the car, sort of inferring, I guess, that it would be of a certain value. And If he had questions about that, it was on him to ask for a bill of
[00:16:40.850] [SPEAKER_00] particulars? The rule pre-singleton was a bill of particulars is not going to save a facially defective indictment. So sure, that might have been sufficient if there was some question of notice. But if they're really applying this rule that to be valid, the indictment has to allege all the elements. If it failed to allege the element, you're not going to get around that with a bill of particulars.
[00:16:59.129] [SPEAKER_01] It's a little bit of a puzzling decision. I mean, Joe, what is your takeaway then from a charging perspective for prosecutors if they've got these kinds of staggered level offenses? Should we still keep alleging it?
[00:17:09.861] [SPEAKER_00] Yeah. I think the takeaway from this, regardless of the outcome in this particular case, I would not point to this in support of the proposition that you need not allege value when the value of the property is essential for the felony offense. I think the better practice going forward when you have an offense like this where the default is a misdemeanor, but you can get to a higher level with elements of the value of the property damaged or stolen, it is always a good idea to allege that value when you've got the evidence to support it.
[00:17:36.383] [SPEAKER_01] That's sort of a question we hear sometimes from prosecutors. I mean, do I need to? That's the way I often sort of look at these things is, I mean, if we're talking about it ahead of time, Why wouldn't we, right? I mean, if we're seeing this ahead of time, we're coming up with the charging language today, why not go ahead and include it? I mean, this might be a case we could lean on if we needed to, defending something on appeal, right, or defending, I don't know, a motion to dismiss, or what's going to be proper to submit to the jury. It might be some ammunition for that.
[00:18:04.114] [SPEAKER_00] Well, that's another thing. I mean, not to complicate this even further, but this also is weird in the sense that this was not an indictment challenge that was raised for the first time on appeal. This was a defendant who actually raised it at trial. And there are certain statutes that say a defendant has a statutory right to dismissal based on the failure to comply with pleading requirements. That appears in 15A-924 and also 15A-952. This defendant raised this in a way that Singleton would seem to authorize moving forward, that a defendant should challenge the indictment if he's going to challenge it at the trial level. It just didn't work out for the defendant
[00:18:37.007] [SPEAKER_01] here. So it's kind of a curious opinion. We'll just have to, I guess, maybe wait and see if this gets adopted or applied in other contexts. But I mean, would you agree that otherwise going forward, maybe we want to stick with... Continue to allege the value,
[00:18:51.601] [SPEAKER_00] right? If the felony classification depends on the value, it's still a good idea to allege the value. Hard to ever go wrong with that one. Yeah. Our last case, I think, is a North Carolina Supreme Court case decided end of August, state v. Wright.
[00:19:03.952] [SPEAKER_01] Yeah, State v. Wright is the last one we had. This was a case out of Mecklenburg County and the incident at issue here happened back on January 29th of 2020. Some Charlotte Mecklenburg police officers got a tip from a confidential informant that a person who matched the defendant's description was riding a bicycle And according to the tip, was carrying an illegal firearm. So several officers respond. They locate the defendant with a bicycle, riding on a bicycle in the location that had been indicated. The defendant takes a shortcut on this dirt path that's marked as a no trespassing sign. So the officers split up, a couple of them pursuing, one of them essentially cutting him off at the other end. So they intercept the defendant. and then they begin asking him some questions. In response to that, he does turn over his ID card. That'll be significant a little bit later. They ask him to step off of the bicycle and take off his backpack, and he does both of those things. One of the officers does a protective pat-down, and throughout this interaction up to this point, they're not raising their voices or brandishing their weapons, As the dissent would point out, there are three of them. I mean, they are, of course, in uniform, they're armed. This is a person who it turns out is homeless and, you know, it's alone on a dark street after sort of cutting through this dirt path. So that's kind of the scene that we're in. But as part of this interaction, the officers are asking the defendant multiple times, several times for permission to search the backpack for weapons. And initially, the defendant agreed that he would let them search the backpack but then changed his mind and subsequently declined to let them search the backpack. Again, they say multiple times, telling them that he's scared. Eventually, one of the officers just asked the defendant to open the backpack so the officer could look inside and the defendant does agree to do that. And in fact, then the officer asks him to lower the backpack down so that the officer can see in it a little bit better. And when he does that, he sees the grip of a handgun. So then they place the defendant in handcuffs. Once the defendant learns that he's going to be searched, incident to arrest, he also informs them that he's got cocaine in his pocket. And the officers later determined that the handgun that he had in the backpack was also stolen. The defendant is charged with possession with intent to sell cocaine, unlawfully carrying a concealed weapon, possession of a stolen firearm, possession by a felon, along with attaining status of an habitual felon. He filed a motion to suppress based on how this ultimately looking in the backpack unfolded, but that was denied. The trial court decided that the defendant had freely consented to opening his backpack and was therefore allowed the legal search of the property. The defendant seeks review of that and goes up to the Court of Appeals. They remand it back down to the trial court for further findings of fact and conclusions of law about whether the defendant was trespassing when he sort of turned on his bike and went on that dirt path. So the trial court then issues an amended order, but again denying the defendant's motion and makes these findings that the officers had reasonable suspicion and probable cause for the stop and that there was no issue with the search of the backpack. The Court of Appeals then grants the defendant's petition for a writ of cert to look at that, and the Court of Appeals makes a couple of findings that are significant. They first find, they say that finding of fact number 20, that one of the officers had returned the defendant's ID to him prior to him consenting to the search. The Court of Appeals says that was not supported by the competent evidence, and then they go on to say that there was not probable cause of a crime to search the backpack, and then significantly, that the defendant did not voluntarily consent to the search of his backpack. So then the state is seeking discretionary review of that with the Supreme Court. That's what's ultimately coming up to them. The Supreme Court, in a relatively short majority opinion, goes in the state's favor on this issue. They say that the trial courts, as to that first one about the finding of fact number 20, they say the trial court's findings of fact are conclusive on appeal if they are supported by competent evidence even if the evidence is conflicting. And so looking at that, what is the competent evidence to support that finding of fact number 20 about was the ID returned? The Supreme Court says there's evidence supporting that because of something that's shown on the body cam, where after this officer, Martin, had patted the defendant down for a weapon, defendant asked him, are we good? Officer Martin replied, yeah, you're good. And the defendant thanked the officer. And they say that this interaction provides competent evidence that reasonably supports finding a fact number 20. In other words, you know, this sort of saying, yep, we're good, as in, you know, we're done or we're all set, is an indication that the license had, in fact, been returned. We'll talk a little bit about Justice Earle's dissent. She sees it very differently and thinks the evidence maybe challenges that. But nevertheless, the majority is saying there's at least something in the record that would support the finding that he returned the license. So then they address this third issue.
[00:23:46.769] [SPEAKER_00] And remind us, Jonathan, why that matters? What difference does it make whether his license had been returned?
[00:23:51.336] [SPEAKER_01] Well, I mean, the whole issue they're trying to decide is, did he voluntarily consent to the search of the backpack? And it would be a pretty different situation if he's essentially being held hostage there, right? They've taken his ID and they're continuing to question him. Whereas if we've given back the ID, I mean, all you have to do is just say no thank you and walk away. I
[00:24:10.730] [SPEAKER_00] think that's that rule that kind of rule of thumb that comes out of the North Carolina traffic stop cases. As far as I know, there's no U.S. Supreme Court case speaking to this. But the notion that a person obviously is going to feel more free to leave has not been seized or is no longer seized after their license and documentation has been returned.
[00:24:26.451] [SPEAKER_01] I think, of course, he's on a bicycle, right? But I think that is part of it, Joe, because that's what they're looking at to answer, well, we're sort of jumping ahead to that third question about did he voluntarily consent? And so, yeah, that's certainly one of these factors. Did we give him back his ID or are we still holding on to some of his property? He could hardly be free to leave or feel like he was empowered to consent or deny. But looking at the other surrounding circumstances, the majority says the officers that he's talking to, Martin and Slaughter, maintained a calm and conversational demeanor. never raise their voices, they're not brandishing their weapons. And the court also talks about how, you remember he initially said, yes, you can look in the backpack, then changed his mind and said, no, I'm not gonna consent to a search of the backpack. But the majority points out, you know, just because he changed his mind to say no, doesn't somehow mean he couldn't change it back again and say, yes, I am going to consent to letting you search for it. They say the fact that defendant then changed his mind and gave his consent does not mean that his later agreement was involuntary. And then on top of that, you know, at the officer's suggestion, he's actually the one opening up the backpack and then lowering it all down. So ultimately, they conclude that, yes, this was a voluntary consent obtained from the defendant to let them look in the backpack. And so because they decide issue number three that way, they don't have to get into issue number two about would there have been probable cause for them to search the backpack even without it. So it's a relatively brief opinion from the majority saying, you know, we think there's evidence to support the findings of fact. We think the conclusions of law are correct, that this was voluntary based on these factors. Therefore, they find, you know, it's reversed. Discretionary review was improvidently
[00:26:01.207] [SPEAKER_00] allowed. Just to be clear, Jonathan, the Court of Appeals opinion was reversed. So we do get the ultimate conclusion is the defendant's consent to search was voluntary. And then the disc review improvidently allowed was the Supreme Court saying we need not reach the questions about probable cause reasonable suspicion. Is that right?
[00:26:16.222] [SPEAKER_01] Yeah, sorry, I wasn't clear about that. Right. As to this issue of probable cause, they're saying we hold discretionary review was improvidently allowed as to that issue. In other words, we don't even need to get into that, you know, because we're finding that it was a voluntary consent, that that sort of obviates the need to really address whether they also had probable cause on that or not. But there was a pretty substantial dissent here. There is. Justice Earls files a fairly lengthy dissent, and she's joined in that by Justice Dietz, I believe, talking about a pretty different take that they have on these facts. And I forecast a little bit of this at the beginning of it. But, you know, she she's looking, I think, a little bit more at sort of the details of the defendant individually, not a wholesale subjective review of this. But I mean, she thinks it is important to note that this defendant, Mr. Wright, as she says, was an individual particularly susceptible to police pressure. He was homeless, walking alone on a cold night, lacking the security and stability that might otherwise permit resistance to unwanted police intrusion. And then I think she has a very different view about the questioning as well. You know, she talks about how it's not just that they asked if they could look in the bag and he said, yes, you may. She says it was repeated insistent requests after Mr. Wright's clear refusals. She says in barely one minute, Officer Martin asked five times to search the bag, while Officer Slaughter added several additional requests to search the bag. And this is after he's saying, no, you may not, no, you may not, no, you may not. And then again, she's pointing out that this encounter occurred on a cold, dark, isolated street where Mr. Wright stood alone facing three armed officers who surrounded him, one on each side and another in the squad car, effectively blocking his path. And I think in essence, her view is not that he's consenting to the search, but I think she would say he is really more like just surrendering ultimately to their kind of relentless and persistent authority. I think she makes sort of an interesting observation about how every time he says no, the only outcome he gets is that they keep asking him again and again and again and again. And in her view, this is sort of wearing a person down. The person would feel like there's nothing I can do except consent to the search because I'm trying to refuse and it's not working. And so based on all that, in her view, she would say that Mr. Wright's consent was neither free nor voluntary, but rather the predictable result of official coercion applied to an individual lacking meaningful alternatives. And based on that, she would have suppressed the evidence. I just think it's a little more time than we typically spend on a dissent. But I think it's an interesting point for these prosecutors. In theory, these are clear-cut constitutional legal principles. But I stress this a lot with prosecutors. There is always, I think, going to be room for advocacy in this job. The facts are what they are, but it's sort of how we view them or how they are argued. And I think one other point I didn't mention was, you know, we spent some time talking about that finding of fact number 20 about the license being returned. And I think she takes issue with the trial court's determination of that. She talks about how Looking at the video, it seems like the officer who actually took the license doesn't come back into frame with the license until the consent has already been obtained to search the bag. So, you know, kind of yet another factor thrown into this mix to her mind, indicating that it was not a voluntary consent to search the bag. Nevertheless, that is not the majority's opinion issued by Chief Justice Newby, indicating that on these facts where, yes, there's several officers and yes, it's a cold, dark night, but at the same time, they're not brandishing their weapons. They're not threatening him. You know, they're just asking the questions and he could say no. And they are asking him again, but you could keep saying no. I mean, you know, we could kind of go back and forth on this. Maybe not all that surprising that we ended up with sort of a split even on our own Supreme Court about whether that was voluntary consent or not. On these facts, the majority says, yes, it was. They were just asking, and he could have just said no, but ultimately he gave them that consent, so that's a valid search.
[00:30:12.955] [SPEAKER_00] Well, that's all we've got for today. In this episode, we discuss Stafy McCall allowing the defendant's silence to be used as substantive evidence of his guilt, Stafy Counsel concluding that an indictment for injury to property was not jurisdictionally defective, and Stafy Wright affirming the trial court's finding that the defendant voluntarily consented to a search of his backpack. 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, 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 S-O-G
[00:31:01.979] [SPEAKER_01] dot U-N-C dot E-D-U. 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.
[00:31:34.569] [UNKNOWN] Thank you.